REPORTS OF CASES
ADJUDGED AND DETERMINED
IN THE
Supreme Court of Judicature
AND
COURT FOE THE TRIAL OF IMPEACHMENTS
AND
CORRECTION OF ERRORS
OF
THE STATE OF NEW YORK.
WITH COPIOUS NOTES AND REFERENCES, TABLES OP CITATIONS, Ac.
BY
EDWIN BURRITT SMITH
AND
ERNEST HITCHCOCK,
COUNSELORS AT LAW.
BOOK V.
CONTAINING JOHNSON'S REPORTS, VOLUMES 11-15.
THE LAWYERS' CO-OPERATIVE PUBIJSHING COMPANY,
NEWARK, WAYNE COUNTY, NEW YOKE.
1883.
1
Entered according: to Act of Congress, in the year eighteen hundred and eighty-three, by
THE LAWYERS' CO-OPERATIVE PUBLISHING CO.,
In the Office of the Librarian of Congress, Washington, D. C.
E. R. Andrews, Printer, Rochester, N. Y.
GENERAL TABLE OF CASES REPORTED
THIS BOOK.
CASES REPORTED IN VOL. XL, JOHNSON'S REPORTS.
[Figures refer to marginal paging in respective Vols.J
Agan P. M'Manus, 180
Alexander «. Mahon, .... 185
Andrews v. Vanduzer, 88
Armstrong v. Hasten, .... 189
B
Babcock P. Stanley, - • « - 178
Bailey and Bogert P. Freeman - - 221
Ballard. Hines v. 491
Bates and Handy, Doty P. - - - 544
Beardsley's Ex'rs p. Root. - - 406, 464
Bebee. Benedict «. - - . - - 145
Beekman p. Wright, .... 442
Beekman, Hess ».-••- 457
Bell P. Dole, 173
Benson's Lease P. Matsdorf, 91
Benedict p. Bebee, 145
Benedict, M'Inroy v. - • - - 402
Best, Dibble t>. 103
Best, Plainer p. 580
Bissell P. Hall, 168
Black c. Marine Ins. Co., - - - 287
Blake, Gidnev P. 54
Blenheim P. Windham, - - . - 7
Brewster r. Gelston, .... 390
Brisban P. Caines, - - - - 197
Brown v. Vanduzen, .... 472
Brown, Posson p. .... 166
Bryden P. Bryden, 187
Buck, Martin P. 271
Burgott, Juliand p. - - - 6,
Burhans, Langendyckp.
Burling, Thorp p. -
Burr, Gelston p. -
Burton, J., ex dem. Livingston v. -
Butler ». Warren,
Byrne, Livingston ».
£
285
482
64
57
C»ser P. Peabody, .... 68
Caines P. Gardner, 89
Caiues, Brisban p. 197
Carpenter, J., et dem. Wallace, ». - - 539
Chapman, Demick P. - - • - 132
( li'iroh v. Mumford, .... 479
Clossey, Union Bank P. - - - 182
Coffin, Watts e. 495
Collins, Jackson, ex detn. Van Rensse-
laer. p. ...... 1
Columbian Ins. Co. P. Lynch - - 283
Columbian Ins. Co., Murray and Ogden v. 302
Com. Ins. Co., Patrick and Bowne P. 9, 14
JOHNS. REP., 11.
Com. Ins. Co., Cook and Pratt v. • 40
Com. Ins. Co.. Dunham v. • - - 815
Com. Ins. Co., Graham e. 852
Comstock, Crane t. - - - 404
Cook P. Commercial Ins. Co., - 40
Coughnet v. Eastenbrook, - .- - 582
Coughtry, Kempt>. - ... . 107
Corwein P. Hames, - ... 76
Coventry, Dorchester,*. - .- - - 510
Crane n. Comstock, - - - 404
Cris, Ja"ckHon,ftT(fe/n. Watson p. - ' - 437
Crosby, Sherman v. - - 70
Grouse v. Mabbett, - » • ' - - 167
Culver, Danforth «.--•• 146
Curry v. Pringle, - - - • - 444
D
Danforth P. Culver, ." . . . 146
Davis, Moore P. ..... 144
Decker, Jackson, ex dem. Johnston, «. 418
Delamater p. Rider, - - •' - - 533
De Lancey, J., ex dem. Livingston p. - 365
Delaplaine, Graves P. - - - - 200
Demick v. Chapman, .... 182
De Ridder's Lessee P. Rogers, - - 88
Dewitt v. Post, - - - - - 460
Dibblee P. Best, - - - - - 108
Dickey t>. United Ins. Co., - - - 858
Dole, Belle. - 173
Dole v. Young, - .... . 90
Dorchester P. Coventry, - - • - 510
Doty t. Bates, - - . 544
Douglass r. Satterlee, • • • -16
Downer, Hill c. .... 461
Downing. Vanderbilt r. - - - - 88
Drake P. Drake, 581
Dunham P. Commercial Ins. Co., - 815
Dunham and Tompkios p. Stuyvesant, - 569
Dunn, Wilde «. 459
Dj er P. Vandenbergh, - - - ' - 149
E
Eastenbrook, Coughnet v. • •" ' - 582
Evertson, Lovell v. - • ' - - - 52
Fontaine P. Phoenix Ins. Co., - 298
Freeman, Bailey and Bogert e. - • 221
Frisbee P. HofTnagle. - 50
G
Gardner, Humphrey p. - r - - 61
Gardner, Caiues P. . - « . 89
a
CASES REPORTED.
Gardner, Ramsey t>.
Gary v. Hull',
Geib v. Icard, -
Gelston v. Russell,
Gelston v. Burr,
Gelston, Brewster v.
Germond, Vincent v.
Gidney v. Blake,
Gilfert, Oswald v.
Gillespie's Lesse v. Woolsey,
Gomparts, Wilson n,
Goold, Icard v.
Gracy, Lawrence v,
Graham v. Commercial Ins. Co.,
Graham, Youle v. -
Graves v. Delaplaine, -
H
Hall, Bissell v.
Hallett v. Slidell,
Hames, Corwein v. -
Hammond's Lessee «. Veeder,
Harrow, J., ex dem. Wood v. -
Haskin, Waterman v. -
Haywood v. Wheeler,
Haywood, Livingston v.
Hearsey, Streeter v.
Henry, Stanton v.
Hess «. Beekman, -
Hewitt, Tower v.
Heyliger v. New York Ins. Co.,
Highland Turnpike Co. v. M'Kean,
Hill v. Downer,
Hines v. Ballard,
Hoffnagle, Frisbee v.
Hogeboom, Jackson, ex dem. Van Rens-
selaer, ».
Hogeboom, Ray ».----
Hopkins v. Smith, - ...
House, Murray v. -
Hull, Gary v. -
Humphreys v. Gardner,
Hyde v. Melvin,
1
Icard v. Goold,
Icard, Geib ». -
Ireland v. Kip,
Jackson, ex dem. Benson, v. Matsdorf, -
Jackson, ex dem. De Ridder, v. Rogers,
Jackson, ex dem. Gillepsie, v. Woolsey, -
Jackson, ex dem. Hammond, v. Veeder,
Jackson, ex dem. Johnson, v. Decker,
Jackson, ex dem. Livingston, v. De
Lancey,
Jackson, ex dem. Livingston, v. Bur
ton, -
Jackson, ex dem. Snyder, v. Lawrence,
Jackson, ex dem. Smith, v. M'Connell, -
Jackson, ex dem. Staats, v. Staats,
Jackson, ex dem. Sternberg, v. Shaffer, -
Jackson, ex dem. Tillotson, v. Stiles, -
Jackson, ex dem. Van Cortlandt, v. Van
Corlaer, -
Jackson, ex dem. Van Vechten, v. Sill, ' -
Jackson, ex dem. Van Rensselaer, v.
Collins,
Jackson, ex dem. Van Rensselaer, v.
Hogeboom,
Jackson, ex. dem. Wallace, v. Carpenter,
Jackson, ex dem. Watson, v. Cris,
439
Jackson, ex dem. Wood, v. Harrow,
434
441
Jackson v. Randall,
405
82
Jackson, ex dem. , v. Stiles,
407
415
Jenks v. Stebbins, ....
224
482
Jenkins v. Waldron, - - . ; /. / «
114
390
Johnson, Raymond ». -
488
283
Johnston's Lesse v. Decker, -
418
54
Jones, Lohnis v.
174
443
Joyce, Yates v.
136
446
Judson v. Wass,
525
193
Juliand v. Burgott, - - 6
477
279
179
K
352
Kemp v. Cough try, - - - '•?'*'
107
199
Kibling, White v.
128
200
Kip, Ireland ».----.
231
Kline v. Low,
74
168
L
56
Langendyck v. Burhans,
461
76
Lawrence v. Gracy, ....
179
169
Lawrence v. Ocean Ins. Co.,
241
434
Lawrence, J. , ex dem. Snyder, «. -
191
228
Leonard, People v.
504
432
Livingston's Ex'rs v. Tremper,
101
429
Livingston v. Haywood,
429
168
Livingston, Wood, ex dem. Elmendorf, ».
36
133
Livingston v. Byrne, -
555
457
Livingston's Lessee v. De Lancey, -
365
134
Livingston's Lessee v. Burton, - . -;
64
85
Lohnis v. Jones, ....
174
98
Loucks, Snell v. - - - - :W-
69
461
Lovell v. Evertson, - - - - -L , *
52
491
Low, Kline v.
74
50
Lynch, Columbian Ins. Co. r.
233
Lynch, People v.
549
163
433
1fi1
M
Mabbett, Grouse v. - - - - .'
167
AUJ.
464
M'Cutchen v. M'Gahay, - - - .V
281
441
M'Connel, J., ex dem. Smith v.
424
rt^tJ.
61
M'Carty v. M'Pherson, - - - '.
407
VI .L
KOI
M'Gahay, M'Cutchen v.
281
1X0 A
M'Kean, Highland Turnpike Co. v.
98
M'Inroy v. Benedict, ....
402
070
M'Manus, Agan v. - - - -
180
*<y
09
M'Pherson, M'Carty ».
407
OfW
Q1
Mahon, Alexander v.
185
V i
Mann, Witherby v.
518
Marine Ins. Co, Black v.
287
Ml
Martin et al. v. Buck, -
271
S/l
QQ
Masten, Armstrong 0. - - -•.,..
189
oo
44fi
Matsdorf, J. , ex dem. Benson v. - -
91
rr±D
ll'.'l
Melvin, Hyde v.
521
± VI t/
A~l Q
Mersereau, Runyan 0. - - - ,-i
534
41o
Miuton v. Woodworth, -
474
Moore v Davis -
144
365
Morgan, Sullivan v. -
.l^rrt
66
fi4
Morgan, Underwood v.
425
vl^
Mumford, Church v.
479
424
Murray v. House, ....
464
337
Murray v. Col. Ins. Co. ....
302
513
N
195
New York Corporation, Matter of,
77
New York Ins. Co., Heyliger v.
85
123
201
New York Fireman Ins. Co, Strong v.
Nichols, Runyan «.
323
547
1
O
Ocean Ins. Co. , Lawrence v.
241
163
Oswald v. Gilfert, -
443
539
Overseers of Blenheim v. Same of Wind-
437
Windham,
7
JOHNS. REP.,
1-1.
CASES REPORTED.
Page, Shuter ».
Pangburn v. Ramsay, -
Patrick r. Com. Ins. Co., -• • ; ( - '
Peabody .Caesar «.
People c. Leonard, -
People v. Lynch, -
Phillips v. Trull. -
Phinney, Sessions t. - *t
Phoenix Ins. Co, Fontaine ». -
Plainer t>. Best, • - - . -
Posson t>. Brown, ....
IW. Dewittv. ....
Pringle, Curry t. - - -
R
Ramsay r. Gardner, - •*
K mi-ay. Pangburn v. • r
Randall. Jackson e. •
Rayr. Hogeboom, - - - •
Raymond v. Squire,
Raymond P. Jolmson, - -
Rider, Delamater «.
Rogers, J., ex dem. De Ridder, P. -
Root, Beardsley's Ex'rs «. - •
Rossen, Wysham ». - - - -
Runyan v. Mersereau, -
Runyan v. Nichols, ....
Russel, Qelston t>.
S
Sailly v. Smith, - - - >-
Sanborn, Smith v.
Satterlee, Douglas v.
S. lu-nck, Van Brundt v.
Schermerhorn P. Van Volkenbergh,
Sessions n. Phinney,
Shaffer, Jackson, ex dem. Sternbergh
Sherman p. Crosby,
Sherwood v. Tremper,
Shuter v. Page, -
Sicard t. Whale, ....
Sill, J., ex dem. Van Vechten, «. -
Slidell. Hallett P. -
Smith's Lessee r. M'Connell,
Smith P. Sanborn, - ...
Smith, Hopkins v.
Smith. Sailly u.
Snider's Lessee t>. Lawrence,
Snell P. Loucks, ...
South wick, Spencer v. - - -' ,
Spencer v. Southwick,
Squire, Raymond v. •
Stanton c." Henry,
Statts, Jackson, ex dem. Staats «. -
Stanley, Babcock P.
Stebbins, Jenks t>. -
Sternbergh 's Lessee P. Shaffer, -
Stiles, -Jackson, ex dem. Tillotson, r.
Stiles, Jackson, ex dem. , ». -
Storm v. Woods, ....
Streeter t. Hearsey.
Strong T. New York Fireman Ins. Co
Stuyvesant, Dunham v.
Sullivan v. Morgan,
JOIINH. REP., 11.
T
.
196
Thorp P. Burling,
285
.
141
Tilton's Adm'rs p. Williams, ...
408
.{
9, 14
Tillotson's Lessee c. Stiles, -
195
.
68
Tower P. Hewitt, .....
184
504
Tremper, Livingston's Ex'rs v. -
101
.
549
Tremper, Sherwood «.----
406
- .
436
Trull, Philips ». -
486
.
162
.
293
.
530
Underwood ». Morgan, -
425
.
166
Union Bank p. Clossey, •
182
• '.
460
United Ins. Co., Dickey v. ... «.
858
•
444
V
Van Brundt p. Schenck, - - - .
877
439
Van Corlaer, Jackson, ex dem. Van Cort-
141
landt, v. - • • . - - -
128
1 1 1
40*?
Vanderkarr p. Vanderkarr, • - . •*
122
tvv
4^3
Vanduzer, Andrews p. -
38
*tOO
47
Vanduzen, Brown ».----
472
1 1
488
Vandenbergh, Dyer P. -
149
too
Vl'4
Vanderbilt t>. Downing, - •
88
«JOO
33
Vanderheyden r. Young, • •
150
III.'
ARA
Vau Ness, Whitbeck t. - - -
409
tmj
t t\rt
TO
Van Rensselaer's Lessee P. Collins, --
1
n
534
Van Vechten's Lessee t>. Sill, - -
201
547
Van Volkenbergh, Schermerhorn t.
529
41 "5
Veeder, J. , ex dem. Hammond, v.
169
VAV
Vincent c. Germond, - t - - . , «•
383
Vischer c. Yates, -
23
si
500
Vosburgh v. Welch,
175
.
59
W
-
16
Waldron, Jenkins v. - - . "-.
114
-
377
Wallace's Lessee v. Carpenter,
539
529
Warren, Butler v. -
57
-
162
Wass, Judson v.
525
, P.
513
Waterman v. Haskin, -
223
-
70
Watson's Lessee t>. Cris, - - •
437
-
406
Watts v. Coffin. - - '. , . .
495
•
196
Welch. Vosburgh v.
175
-
194
Whale, Sicard v. -
194
-
201
Wheeler, Haywood t. - -
432
' . -
56
Whitbeck n. Van Ness,
409
-
424
White v. Kibling, - - -
128
-
59
Wilde v. Dunn, - - • • •
459
-
161
Williams, Tilton's Adm'rs t. -
403
-
500
Wilson v. Gomparts,
193
-
191
Windham Overseers, Blenheim P. -
7
-
69
Witherby v. Mann,
518
-
573
Woodworth, Minton «. - •
474
•
573
Wood, ex dem. Elmendorf, v. Living-
47
ston,
36
133
Wood's Lessee t. Harrow, -
484
-
837
Woolsey, J., ex dem. Gillespy, v.
446
-
178
Woods, Storm r. - - - ...
no
-
224
Wright, Beekman «.
442
•
518
195
Wysnam t>. Rossen,
73
.
407
Y
1 m
136
,
168
Vatcs, Vischer t>. -
23
,t -
823
Youle v. Graham, .....
199
-
569
Young, Dole v.
90
-
66
Young, Vanderheyden r.
150
CASES REPORTED IN VOL. XII., JOHNSON'S REPORTS.
[Figures refer to marginal paging in respective Vols.]
Adams v. Freeman, 408
Adams, Everts ». 352
Albany, Supervisors of, People, ex relat.
Wilson, v. 414
Alexander v. Fink, 218
Amory v. M'Gregor, ... - 287
Anderson v. Van Alen, - 343
Anonymous,
Arnold v. Camp, 409
B
Babcock, Jackson, ex dem. Herrick. v. 389
Barker, Weston v. 276
Badger, Belts v. 223
Bearnard, Raymond ».---• 274
Bell v. Hall, - - - 152
Belknap, Jackson, ex dem. Wickham, v. 96
Benedict, St. John v. - - - - 418
Benjamin, Clements v. - - - - 299
Belts v. Badger, 223
Bleeker, Cairnes and Lord v. - - - 300
Board, Wheeler v. - - - - 363
Bronson and Mitchill, Mailer of, - - 460
Brown, Hicks v. 142
Brown v. Cowell, 384
Brown, Gill v. 385
Brown «. Wilde, 455
Biiel, Sumner v. 475
Burger, Wynkoop v. - - - - 222
Burham and Olcolt, Gardiner v. - - 459
Bush, Wiggin v. 306
Cairnes and Lord v. Bleecker, - - 300
Camp, Arnold ».----,- 409
Camp, Dowdle v. 451
Canfield v. Monger, - 346, 347
Case, Jackson v. 431
Carman, Herrick v. 159
Chamberlain v. Lovet, - - - 217
Chattle, Garland v. 430
Clark, Flinl ». 374
Clason v. Shotwell, - - - 31, 512
Clason, Merrill «. 102
Clemenls v. Benjamin, .... 299
Clowes v. Hawley, .... 484
Coan v. Whilmore, 353
Cole, Myer's Execulors v. - - 349
Concklin v. Havens, .... 314
Cook v. Husled, 188
Cook, Dennislon v. 376
Cowell, Brown v. 384
Crafls, Pierce v. 90
Crosby, Jackson, ex dem. Wolcott, v - 354
Croy, Jackson, ex dem. Russell, v. - - 427
G'udderback, Ryder v. - - - 412
Cuyler v. Rusl, 372
D
Dash, Graves v. 17
Danforth v. Schoharie and Duanes-
burgh Turnpike Co., - - - 227
6
Denniston v. Cook,
Dexler v. Taber,
Dobbin, Handy v.
Dowdle v. Camp,
Durkin, Walsh v.
E
Edwards D. Elbert,
Elberl, Edwards v. - lj- '•'*' •'''•* •'• ( *?•»•
Elmendorf , Scoll and Wigram v. -
Elmendorf , Scoll v. - - - -
Elslon, Jackson, ex dem. Brislol, ®. -
Evarts v. Adams, ----*•
F
Ferguson, Jackson, ex dem. Tracy, v.
Fink, Alexander v.
Flint v. Clark,
Flushing, Overseers of, t>. Overseers of
Jamacia,
Fonda, Van Bracklin v. -
Foot, Yates v.
Foster v. Trull,
Foster, Jackson, ex dem. Bonnel and
Goodyear, ».
Fox, Sellick v.
Freeman, Wickham v. - - - -
Freeman, Adams v.
G
Gale and Slanley v. O'Bryan, -
Gardiner ». Burham and Olcolt, -
Garlick v. James,
Garland v. Chattel and Clough, -
Gill v. Brown, %
Gillet, Reed®. - - - - ". ",
Goff, Griffin®. v. ?
Goodrich, Keep and Hale v.
Grace, Wilbur -a.
Graves v. Dash, ; r ',
Green, Lovet and Abel v.
Green, Winter v.
Griffith v. Ketchum's Adm'rs,
Griffin v. Goff,
Guthrie v. Pugsley, - - - - -
H
Hall, Bell «. -
Hampton, M'Connell v. •
Handy v. Dobbin,
Hart, Jackson, ex dem. Houseman, v.
Hasbrouck, Jackson, ex dem. Bush v.
Hasbrouck. Jackson, ex dem. Sleighl, v.
Halch, Taylor v.
Havens, Concklin t>.
Hawley, Clowes v. - - - -
Hayner, Jackson, ex dem. Tracy, v.
Heath v. Ross,
Hees, Shepherd v.
Henshaw, Welmore v . -
Herrick v. Carman,
Hicks v. Brown,
Hicks, Horlon v.
Hildrelh, Sands v . -
JOHNS. REP.
376
239
220
451
99
466
466
315
317
452
352
469
218
374
285
468
1
456
488
205
183
408
216
459
146
430
385
296
423
397
68
17
204
497
379
423
126
152
234
220
77
192
213
340
314
484
469
140
433
324
159
142
341
493
, 18.
CASES REPORTED.
Holmes «. Nuncaster, - v .. : - - 395
Hoofut. Woodin ». - -T - . * 298
Hornbeck r>. Sleight, - -> . • '. - 199
Horton v. Hicks. - ..... 841
Hotchkiss e. M'Vickar, - ... 403
Howard. Stevens and Hoage. - /- 195
Hoyt v. Hudson, - - ... - 207
Hudson. Hoy t «. - - • »• - -•» ;r 207
Husted, Cook e. - - - - - 188
Jackson, ex dem. Anderson, v. M'Leod. 182
Jackson, ex dem. Bonnel and Goodyear
T. Foster, .... 488
Jackson, ex dem. Bristol, r. Elston, - 452
Jackson. ••* dem. Bush, v. Hasbrouck, 192
Jackson, ex dem. Dan forth, v. Murray, - 201
Jackson, ex dem. Eames, v. Phipps, - 418
Jackson, ex dem. Qouch, v. Wood, 78
Jackson, ex dem. Herrick, r. Babcock, 389
Jackson, ex dem. Hicks, r. Van Zandt, - 169
Jackson, ex dem. Houseman, t. Hart, - 77
Jackson, ex dem. Merritt, v. Wilson, - 818
Jackaon, ex dem. People, v. Wood, - 242
Jackson, ex dem. Roman, v. Sidney, - 185
Jackson, ex dem. Russell, t. Croy, - 427
Jackson, ex dem. Sleight, t. Hasbrouck, 213
Jackson, ex dem. Tracy, v. Hayner, - .419
Jackson, ex dem. Tracy, «. Ferguson, - 469
Jackson, ex dem. Trustees of Kingston,
v. Louw, 252
Jackson, ex dem. Van Den Bergh, v.
Trusdell, - - 246
Jackson, 6c dem. Wadsworth, v. Wen-
dell, ...... 355
Jackson, ex dem. Wickham, v. Belknap, 96
Jackson, ex dem. Winthrop, «. Waters, - 365
Jackson, ex dem. Wolcott, «. Crosby, 354
Jackson v. Rayner, 291
Jackson v. Case, 431
Jumacia, Overseers of, Overseers of
Flushing v. 285
James, Qarlick v. 146
Johnson, People v. 292
Kain, Tappen v. 120
Kane n. Smith, 156
Keep and Hale v. Goodrich, - - 397
Ketchum's Adm'rs, Griffith, v. • • 379
Kincaird v. Scott, .... 368
King, Pabodie v. 426
Lawrence, Monell v. ... 521
Leal t». Wigram, 88
Lock wood v. Thomas, - 248
Louw, Jackson, ex dem. Trustees of
Kingston, «. 252
Lovet and Abel r. Green, ... 204
Lovet, Chamberlain v. - - • 217
M
M'Carty t. Vickery, 848
M'Connell «. Hampton, .... 284
M'Crea, Plumb t. ... 491
M'Dowell t. Van Deusen, - - - 856
M'Gahay v. Williams, 298
M'Gregor, Amory v. - • 287
M'Leod, Jackson, ex dem. Anderson, t. 182
M'Millan r. Vanderlip, ... 165
M'Vickar. Hotchkiss e. - - - - 408
Meigs, Stewart ».-.-'•" - - 417
JOHNS. REP., 12.
Merritt v. Clason, - - ... - 103
Miller. Wickham t». - ... 820
Monell r. Lawrence, - - . . 521
Money t. Tobias, - .... 422
Monger, Oanfield e. .... 345
Monger and Adams, Canfield r. - - 347
Morrell ». Pixley, - - . - - 256
Montrose, Van Wyck e. 850
Murray, Jackson,"«r dem. Danforth, «. 201
Myer's Executors T. Cole, - - - 349
N
New York Corporation ». Ordrenan, - 122
New York Firemen Ins. Co., Ogden
and Murray v. - 25
New York Firemen Ins. Co., Oeden «. 114
New York Firemen Ins. Co., Walden t. 128
New York Firemen Ins. Co. v. Walden, 518
Niven «. Spickerman and Stever, - - 401
Nuncaster, Holmes «. - - - - 395
O
O'Bryan, Gale and Stanley v. ' • - 216
Ocean Ins. Co.. Saltus r>. - - • 107
Ogden v. Orr. - 148
Ogden n. New York Firemen Ins. Co., 114
Ogden and Murray ». New York Fire-
men Ins. Co., 25
Olney, Tyler v. - '- - - - 878
Oothout v. Rooth, - ... 151
Ordrenan, New York Corporation v. • 122
Orr, Ogden v. '- - ' - -' - - 143
Pabodie ». King, - - * - - 426
Paddock, Van Vechten t>. - • • 178
Palmer v. West, - - <• - - 186
People ». Johnson, - - - . ' 292
People T. Rose, 339
People, ex relat. Wilson, v. Albany Su-
pervisors, 414
Philips' Heirs, Salisbury's Ex'r. t». - 289
Phipps, Jackson, ex dem. Eames, v. - 418
Pierce v. Crafts, - - - - .90
Pixley, Morrell «. - t - - - 256
Plumb t>. M'Crea, - - - - 491
Porter v. Rose, 209
Puersley, Guthrie «. - - - - 126
Putnam v. Shelop, - . ' * -\ - 435
R
Raymond v. Bearnard, - - __ - - 274
Rayner, Jackson t>. . 7 . 291
Redmond v. Russell, .... 153
Reed v. Gillet, 296
Richard and Finney t>. Walton, - - 434
Roberts v. Turner, 232
Rogers t>. Van Hoesen, .... 221
Roosa, Sandford v. 162
Rooth. Oothout ». 151
Rose, People r. 839
Rose, Porter 0. 209
Ross, Heath e. 140
Rouk, Van Valkenburgh ». 837
Russell, Redmond «. ... 153
Rust, Cuyler v. • 872
Ryder «. Cudderback, - - - 412
8
Salisbury's Ex'r t>. Heirs of Philips, - 239
Saltus ». Ocean Ins. Co., - - 107
Sandford r. Roosa, 162
Sanford, Van Santwood ». - - - 197
Sands v. Hildreth, 493
7
CASES REPORTED.
Schermerhorn, Springstein 0. - • • 357
Schenectady City, Van Eps v. - 436
Schoharie Turnpike Co., Danforth 0. - 227
Scott v. Elmendorf, - - - 317
Scott and Wigram v. Elmendorf, - - 315
Scott, Kincaird v. - - - - 368
Sellick v. Fox, - - - 205
Shaw, Smith v. - - - 257
Shelop, Putnam v. - 435
Shepherd 0. Hees, - - 433
Shotwell, Clason v. • - - - 31, 512
Sidney, Jackson, ex dem. Roman v. - 185
Sleight, Hornbeck v. - - - - 199
Smith, Kane v. 156
Smith 0. Shaw, ... 257
Spickerman, Niven 0. - - - - 401
Springstein v. Schermerhorn, - - 357
St. John 0. Benedict, - - 418
Stevens and Hoag 0. Howard, - - 195
Sterry, Verplank ».-.-- 536
Stewart 0. Meigs, 417
Sumner0. Buel, - - 475
Swartwout, Walker 0. 444
Taber, Dexter 0. - - - 239
Tappeu 0. Kain, - - - 120
Taylor 0. Hatch, - - 340
Thayer, Vosburgh 0. - - - 461
Thomas, Lockwood 0. ... 343
Tobias, Money 0. 422
Travis 0. Waters, 500
Trull, Foster 0. ...... 456
Trusdell, Jackson, ex dem. Van Den
Bergh, 0. 246
Tucker 0. Woods, - - 190
Turner, Roberts 0. ... 232
Tyler 0. Olney, - - - 378
Van Alen, Anderson 0. - - 343
Van Anker, Westfall 0. - - - - 425
Van Bracklin 0. Fonda, - - 468
Vanderlip, M'Millan 0. - - - - 165
Van Deusen, M'Dowell v. - - 356
8
Van Eps 0. Schenectady City,
Van Hoesen, Rogers 0.
Van Houten, Wheeler 0. - - •-,,'*
Van Santwood 0. Sandford, ^ -«
Van Valkenburgh 0. Rouk,
Van Vechten 0. Paddock, - • - -•••• r"
Van Wyck 0. Montrose,
Van Zandt, Jackson, ex dem. Hicks, 0.
Verplank 0. Sterry,
Vickery, M'Carty 0. - -
Vosburgh 0. Thayer, -
W
Walden 0. New York Firemen Ins Co.,
Walden, New York Firemen Ins. Co. v.
Walker 0. Swartwout, -
Walton, Richard and Finney 0.
Walsh 0. Durkin,
Waters, Jackson, ex dem. Winthrop, 0.
Waters, Travers 0.
Wendell, Jackson, ex dem. Wadsworth, 0.
West, Palmer 0. - - - » •
Westfall 0. Van Anker,
Weston 0. Barker, - - - -
Wctmore 0. Henshaw, -
Wheeler 0. Van Houten,
Wheeler and Bracket v. Board,
Whitmore, Coan 0.
Wickham 0. Freeman,
Wickham 0. Miller, ....
Wiggin 0. Bush,
Wigram, Leal 0. -
Wilbur 0. Grace,
Wilde, Brown 0. - - - - * -
Williams, M'Gahay 0.
Wilson, Jackson ex dem. Merritt, 0. -
Winter 0. Green,
Wood, Jackson, ex dem. Gouch, 0.
Wood, Jackson ex dem. People, 0. -
Woodin 0. Hoofut,
Woods, Tucker 0. -
Wynkoop 0. Burger, ....
221
311
197
337
178
350'
169-
53&
348
461
Yates 0. Foot, -
JOHNS. REP.
CASKS REPORTED IN VOL. XIII., JOHNSON'S REPORTS.
[Figures refer to marginal paging in respective Vols.]
Abeel T. Radcliff, ....
Alder P. Qriner, -
Aldrich, Jackson, ex dem. Phillips, p.
Angel, Green P. - •
Annin P. Chase, •••.-.;*
Austin p. Hall, -
B
Bailey, Wheeler P. -
Baldwin P. Prouty, .......
Bancraft p. Wardell,
Barney r. Dewey,
Barnes, Russell v. - - • -
Bates P. Shraeder,
Battey P. Button, ....
Beecker p. Vrooman,
Benedict, Jackson, ex dem. Spencer, r.
Bennet P. Jenkins, - - «. -
Berner, People r.
Betsford, Taylor p. - - - -
Bigelow v. Johnson,
Bnidstreet, Matter of, -
Bradley r, Ousterhouldt,
Bradwell P. Weeks, -
Brainan P. Hess, -
Brandigee v. Hale, -
Breese, Hinman v. -
Briggs v. Hubbard, -
Brinckerhoff, Wheelock p.
Brisban, Caines •-.
Bronson P. Mann, ....
Brown, Bunting •.--«•
Bryan P. Seely,
Bulkley. Wood P. -
Bunting v. Brown, - - - -
Burtus v. M'Carty, -
Bushnell, Jackson, >.r dem. Erving, <•.
Butterworth P. Soper, - - - -
Button, Battey P. - -
Caines v. Brisban,
Camp, Jennings p. •
Cantine, Labagli p. - - -
Carpender, Penfleld v.
Casborus, People v.
Chapman t>. Smith, -
Chase, Annin v. -
Chipman v. Martin, -
Clayton p. Per Dun,
Clow, Jackson, ex dem. Barhydt, P.
Golden, Monell v. - - -
Cook v. Howard, -
Coppernoll, Dygert v. -
Crary, Killmer r.
Crawford P. Millspaugb,
('real, Jackson, ex dem. Fisher, P. -
Cunningham v. Spier, -
I)
Davis, Thompson v.
Davis, Louw p.
JOHNS. RKP., 18.
297
449
100
469
462
Ml
430
489
234
156
260
187
302
533
50
383
487
428
385
404
1
52
125
529
510
481
9
460
425
123
486
425
424
330
443
187
9
94
272
350
351
78
462
240
218
157
395
276
210
ni
87
116
112
227
Dean. Hall v. • - - - - - 105
Delancey, Jackson, ex dem. Living-
ston, p. ...... 537
De Mott, Utica Bank p. - , 432
Denston p. Henderson, - - - 322
Deridder p. M'Knight, - - - 294
Dewey, Osgood p. 240
Dewey, Barney P. - - - • 224
Dey, Dunham p. - - - - 40
Dodge v. Lean, ... - 508
Dole, Ross p. ... . 80S
Dorr P. Munsell, - - 430
Driggs, Tiffany P. - 252, 253
Dubois, Nelson «. 175
Duckingfield, Webb P. - .'.>.. 390
Dunham r. Dey, ..... 40
Dunlap, People p. - - • • ' • 437
Dygert P. Coppernoll, - - • - 210
E
Elmendorf. Van Ynlkenburgh p. - - 314
Ellis, Jackson, ex dem. Young, P. - 118
Evertson, Ketchum P. - - .' - • 359
Finney, Wilson v. - - - - 358
Forbes P. Qlashan, .... 158
Fosdick, Wardell P. - 825
Foster P. Garnsey,^ .... 465
G
Gale P. O'Brien, - - - - - 189
Garnsey, Foster v. -. 465
Gclston, Hoyt v. ... 139, 141
Gelston & Schenck p. Hoyt, - - 561
Genesee Court of Sessions, People P. - 85
Glashan, Forbes p. - - - - 158
God f red P. Van Cott, - - -... • 345
Goes, Jackson, ex dem. Shalt/, r. 518
Grade P. New York Ins. Co., 161
Green p. Angel, 469
Griffin, Spafford p. - - - - - 328
Grim P. Ph(Enix Ins. Co., - - 451
Griner, Alder p. 449
Guy P. Oakley, 832
H
Haight, Johnsou v. 470
Hall P. Dean, 105
Hall, Austin p. 286
Hale, Brandigee P. - - - - 125
Hallenbeck, Jackson, ex dem. Living-
ston, P. 499
Hancock P. Sturges, • 831
Hand. Palmer P. 484
Hassenfraats p. Kelly, .... 466
Hastings p. Wood, .... 482
Haviland Jackson, ex dem. Beekman P. 229
Hay wood P. Sheldon. 88
Hazard, Mechanics' Bank p. - - 85S
Heffcrnan, Mauri p. 58
Henderson, Denston p. - - 322
Herrick, People p. 82
CASES REPORTED.
Hess, Braman t>.
Hess, Yordan v. -
Hide, Wylie v.
Hillsdale, Overseers of, Shear u.
Hinman v. Breese, - ...
Holbrook, People v.
Hopkins, Laurence v. - - -
Hopkins, Swift v.
Howard, Cook v.
Hoyt v. Gelston, ....
Hoyt, Gelston & Schenck v. -
Hubbard, Briggs v.
Hull, Pratt v.
Hudson, Overseers of, v. Taghkanac
Overseers of, -
Hugarin, M'Lean v. - - -
Hunt. Johnson «.----
Hull, Schermerhorn v. - -
Ives t>. Ives,
- 52
492
- 249
496
- 529
90
- 288
313
- 276
139, 141
- 561
510
- 334
- 245
184
- 186
270
235
J
Jackson v. Stone, 447
Jackson, ex dem. Barhydt, v. Clow, - 157
Jackson, ex dem. Beekman, v. Havi-
land, 229
Jackson, ex dem Beekman, ». Stephens, 495
Jackson, ex dem. Boyd, v. Lewis, - - 504
Jackson, ex dem. Carman, v Roosevelt, 97
Jackson, ex dem. Colden, v. Moore, - 513
Jackson, ex dem. Erving, v. Bushnel, 330
Jackson, ex dem. Fisher, ®. Creal, - - 116
Jackson, ex dem. Harder, v. Moyer, - 531
Jackson, ex dem. Klock, v. Richtmyer, - 367
Jackson ex dem. Livingston, «. Hallen-
beck, - - 499
Jackson, ex dem. Livingston «. Delan-
cey, 537
Jackson ex dem. Ludlow, v. Sowle, - 336
Jackson ex dem. Merritt, ®. Terry, - - 471
Jackson, ex dem. Philips, v. Aldrich, - 106
Jackson ex dem. Potter, v. Leonard, - 180
Jackson ex dem. Preston, v. Smith, - 406
Jackson, ex dem. Schenck, u. Wood, - 346
Jackson, ex dem. Spencer, v. Benedict, - 533
Jackson, ex dem. Smith, «. Vrooman, - 488
Jackson .c-x dem. Schultz, v. Goes, - 518
Jackson, ex dem. Stevens, ». Stevens, - 316
Jackson, ex dem. Van Valkenburgh, v.
Van Buren, 525
Jackson, ex dem. Watson v. Smith, - 426
Jackson, ex dem. Whitlocke, ». Mills, - 463
Jackson, ex dem. Young, v. Ellis, - 118
Jenkins, Bennett v. 50
Jennings v. Camp, - 94
Johnson v. Hunt, 186
Johnson n. Haight, .... 470
Johnson, Bigelow v. .... 433
K
Kelly, Hassenfraats v. - - - - 466
Kenny, Lord v. 219
Kerr v. Shaw, 236
Keys, Suydam v. 444
Ketchum v. Evertson, - 359
Killmer v. Crary, 228
Labagh v. Cantine, .... 272
Laurence v. Hopkins, .... 288
Lawyer, Vrooman r>. - - - - 339
Lawson, Ruggles D, 285
10
Lean, Dodge v. 508
Leonard, Jackson, ex dem. Potter, v. - 180
Lewis, Jackson, ex dem. Boyd, v. - - 504
Livingston, Winter v. - - - ;-•> ;• 54
Lobdell, Union Cotton Manufactory v. - 462
Louw v. Davis, 227
Lord v. Kenny, 219
Lynch v. Mechanics' Bank, - - 127
M
Malcolm. Pratt v. - - \ - - 320
Mancius, M'Elroy v. - - • - 121
Mann, Bronson v. 460
Marshall v. Mott, 423
Martin v. Williams, - - - • '•'<- • :-> -- 264
Martin «. Stillwell, - ... 275
Martin, Chipman v. 240
Mauri v. Heffernan, - ... 53
M'Carty, Burtus v. 424
M'Elroy «. Mancius, - ... 121
M'Knight, Deridder ».---- 294
M'Lean v. Hugarin, .... 134
M'Intyre, Pulver v. - 503
M'Instry, Solomons v. 27
Mechanics' Bank v. Hazard, - - 353
Mechanics' Bank, Lynch v. - - - 127
Merritt «. O'Neil, 477
Merrill, Shepard v. - - - - 475
Mills, Jackson, ex dem. Whitlocke v. - 463
Mil Ispaugh, Crawford v. - u.^ ;'-...'• 87
Miller v. Starks, 517
Millon v. Salisbury, - - - - 211
Minturn, Northrop v. - - - 85
Moore, Jackson, ex dem. Colden, v. - 513
Mott, Marshall v. 423
Monell v. Colden, 395
Moyer, Jackson, ex dem. Harder, v. - 531
Munsell. Dorr v. 430
Munn, Niven v. 48
N
Nelson v. Dubois, - - - - 175
Nelson v. Swan, 483
Nelson, People r>. - 340
New York African Society v. Varick, - 38
New York Ins. Co., Gracie v. - - 161
Niven v. Munn, 48
Northrop v. Minturn, - 85
O
Oakley, Guy v. 332
O'Brien, Gale v. 189
O'Neil, Merritt v. 477
Ogden. Wilt v. - - - - - 56
Olmstead v. Stewart, - - - - 238
Osgood v. Dewey, .... 240
Ousterhoudt, Bradley v. - - - - 404
Oyer, Widrig v. 124
Packard, Paine v. -
Paine v. Parker, -
Paine v. Packard,
Parker, Paine v. -
Palmer v. Hand,
Patterson v. Patterson,
Pawling v. Wilson, -
Payne, Putnam v.
Peck, Thome v.
Penfield v. Carpender,
People v. Berner,
People v. Casborus,
People v. Dunlap, -
- 174
329
- 174
329
- 434
379
- 192
312
- 815
350
- 383
351
- 487
JOHNS. REP., 13.
CASES REPORTED.
People r>. General Sessions of Qenessee, 85
People v. Herrick, .... 82
People ». Hoi brook. .... 90
People t>. Nelson, 340
Per Dun. Clayton t>. -. •- >- i . . - > . 218
Phoenix Ins. Co., Grim «. - - - 451
Pierce o. Sheldon, 491
Pratt r>. Malcomb, 820
Pratt v. Hull. - ,• - - - - 884 1
Prouty, Baldwin «. - - ". - 480
Pulvert>. M'Intyre, .... 508
Putnam v. Payne, ' -* ' • ' • ' - - 812
R
Radcliff, Abeel t>. • - • • -297
Raymond v. Smith, .... 329
Richtmyer, Jackson, ex dem. Klock, «. - 807
Roosevelt, Jackson, ex dem. Carman, v. 97
Ross n. Dole. - . - - -. ' - - 306
Ruggles v. Lawson, .... 285
Rules, General, .... 160, 803, 422
Russel «. Barnes, 156
S
Salisbury, Millon v. - - - - 211
Schenck* Van Brundt t>. • • • 414
Scidmore v. Smith, - - - - - 822
Schermerhorn v. Hull, - - - 270
Seneca, Overseers of, Tioga Overseers, t. 380
Scott v. Shaw, - - ... 878
Seely, Bryan v. . . - - - 128
Slmrp, Sickles v. - - - 497
Sharp, Smith v. 466
Shaw p. White, - - •' •(•V- -' 179
Shaw, Kerr «. 286
Shaw, Scott t>. • - - - 378
Sheldon, Pierce t>. 191
Sheldon p. Sheldon, - - - - 220
Sheldon, Haywood v. - - 88
Shepard t. Merrill. - - - - 475
Shear v. Hillsdale O/erseers, - - - 496
Sherwood, Tomb v. - - 289
Short r. Wilson, - - - 33
Shraeder, Bates «. 260
Sickles v. Sharp, ' - - - - 497
Skinner, White t>. 807
Slingerland v. Swart, .... 255
Sloan r. Wattles, ..... 158
Smith, Jackson, ex dem. Watson, v. • 426
Smith, Jackson, ex dem. Preston, v. - 406
Smith, Raymond v. 829
Smith v. Sharp, 466
Smith. Scidmore t>. 822
Smith v. Ware, - - - - - 257
Smith, Chapman t>. 78
Soper, Butterworth v. - - - - 443
Sowle, Jackson, ex dem. Ludlow, v. - 886
Solomons v. M'Instry. .... 27
Spafford ». Griffin, 828
Spier, Cunningham t>. - - - - 892
Starks, Miller t. 517
Stewart, Olmstead t>. 288
Stephens, Jackson, ex dem. Beekman, v. 495
Stevens, Jackson, ex dem. Stevens, t>. - 816
Stillwell, Martin ». 275
Stone, Jackson t>. - - . - - 447
Sturges, Hancock e. • - • • 881
JOHNS. REP. 9.
Swan, Nelson ».
Swart, Slingerland v.
Suydara r. Keys, -
Swift v. Hopkins,
488
- 255
444
- 318
Taghkanac, Overseers of, Hudson «. - 245
Taylor v. Betsford, 487
Taylor, Watts e. 805
Terry, Jackson, ex dem. Men-it v. - - 471
Thompson*. Davies, • « - • 112
Thome t>. Peck, ' - - • - 815
Thorpe v. White, .... 58
Tiffany v. Driggs, - - - 252, 258
Tioga. Overseers of, «. Seneca Overseers, 880
Tomb r. Sherwood, .... 289
U
I'nion Cotton Manufactory r. Lobdell, -
Utica Bank v. De Mott,
Van Buren, Jackson, ex dem Van Valken-
burgh, v.
Van Benschotten, Waterman t>. - -
Van Bergen, Vandenbergh t>. - 1
Van Brunt v. Schenck, - « . • •
Van Cott, Godfrey v. - - «
Vandenbergh r. Van Bergen, -
Van Valkinburgh v. Elmendorf,
Van Valkenburgh v. Watson,
Varick, New York African Society, v.
Vrooman c. Lawyer,
Vrooman, Beecker v. •
Vrooman, Jackson, ex dem. Smith, ».
W
Waldron, Matter of, - • . • -.•,
Ware, Smith v.
Waterman v. Van Benschotten, -
Wattles, Sloan v. - r - - , ••
Wardell P. Fosdick, - - • -
Wardell, Bancraft e. - . - - •
Watts v. Taylor, - - - ...
Watson. Van Valkinburgh «. -
Webb v. Duckingtield,
Weeks, -Bradwellr. -
Wheelock v. Brinckerhoff, -
White, Shaw t>.
White. Thorpe t>.
Widrig v. Over, - . , . ,
Whceier P. Bailey, ....
White P. Skinner, - .- - - . - ? -
Wilson v. Finney,
WiNon, Short t. - - - -
Williams, Martin ». - -' • -
Wilt t. Ogden, . ; . .
Wilson, Pawling t>. - • ». .-
Winter v. Livingston, - - - - *•
Wood, Jackson, ex dem. Schenck, ». -
Wood v. Bulkley, - . -
Wood. Hastings t, - - - -
Wylie v. Hide, - - ...
Y
Yordan ». Hess,
462
482
525
425
212
414
345
212
314
480
38
339
302
488
418
257
425
158
325
489
305
480
390
1
481
179
53
124
366
807
:;.-)S
33
264
56
192
54
846
486
482
49
11
CASES REPORTED IN VOL. XIV., JOHNSON'S REPORTS.
[Figures refer to marginal paging in respective Vols.]
Abbott v. Allen, ....
Ackley v. Hoskins, -
Alger v. Weston, -
Allen, Abbott v. -
Ambler, Jackson, ex dem. Van Alen, v.
Anderson v. Drake, ....
Anderson, People v.
Arnold v>. Sandford, •-..-•
Ashton, Thompson v.
Austin's Lessee v. Howe, ...
Ayers, Jackson, ex dem. Brown, v. -
B
Bailey, Clason v.
Bame, Vosburgh v. -
Barker, Bristol v.
Barrymore, Drake 0. - - -
Bartlett v. Wyman, -
Bentley v. Morse, - ...
Bissell v. Dennison, -
Bill v. Fourth Western Turnpike Co.,
Black River Manufacturing Co. v. Cas-
well,
Blake v. Jerome,
Blanchard, Caldwell 9. -
Blin v. Campbell, -
Bracket! v. M'Nair,
Brayton's Lessee V. Burchin,
Bogert, Murray v. -
Brill v. Lord,
Brink v. Richtmyer,
Brown v. Howard, ....
Bristol v. Barker, -
Brush, Morris v,
Brunswick, Scaghticoke v.
Bulkley v. Dayton,
Burchin, Jackson, ex dem,. Bray ton, v.
Burnet, Waters v. -
Burtis, Jackson, ex dem. King v.
Button v. Thompson, ...
Button, Grant v.
Butler v. Kelsey, ....
Butler, Campbell v. - - - -
Caldwell v. Blanchard, ....
Campbell v, Butler, ....
Campbell, Blin v.
Canfield, Scoville «.----
Caswell v. Black River. Manufacturing
Co.,
Case v. Reeve,
Chipman, Matter of ,
Clark t>. Smith,
Clark, Douglas v.
Clarke, Hyslop D.
Clasou v. Bailey, -
Cleland, Henry v.
Clute v. Wiggins,
Colvin. Hilts v.
Collins v. Ferris,
12
Coolidge v. New York Firemen Ins.
248
Co.
308
374
Constable. Whitestown v. - - -
469
231
Corley, Jackson, ex dem. Kip, «.
323
248
Crosby, Sherrill v.
358
96
114
D
294
Dana v. Dana,
181
417
Davis, Dutchess Cotton Manufac-
316
tory, v, 238.
343
405
Day v. Leal,
404
224
Dayton, Bulkley v. - - - -
387
Degear v. Nellis,
382
Delaplaine, Graves v. -
146
484
Delavergne ». Noxon,
333
302
Dennison, Bissell «.----
483
205
Diblee, Schuneman v.
235
166
Dodge, United States «. - . - -,
95
260
Doty v. Wilson, - - - - ' >- >
378
468
Dominick Jackson, ex dem. Van Stern-
483
bergh, v.
435
416
Doe, Linnedoll v. - - - -
222
Douglas v. Clark,
177
453
Drake v. Barrymore, -
166
406
Drake, Anderson v. -
114
331
Dunn v. St. Andrew's Church, -
118
332
Dunham v. Pratt,
372
170
Durand, Fleurot v.
329
124
Dutchess Cotton Manufactory v.
318
Davis, 238,
243
341
E
255
119
Ellis v. Hoskins,
363
205
Embler, Jackson, ex dem. Newkirk, v.
1W8
•328
F
199
387
Farrington, People v.
348
124
Ferguson, Strang D.
161
362
Ferguson, Green v.
389
391
Ferris, Collins ».
246
84
Fitch v. Forman,
172
377
Fleet, Skinner v.
263
342
Fleurot v, Durand, - - - •> . -
329
349
Foot v. Wiswall,
304
Forman, Fitch «.-----
172
Fort Ann v. Kingsbury,
365
331
Franklin v. Osgood,
527
349
Fuller v. Mattice,
357
432
338
G
Gardner v. Thomas,
134
453
Gibbs, Rowley v. <•
385
79
Goodell, ex parte,
325
217
Grant v. Butler,
377
326
Graves v. Delaplaine,
146
177
Green v. Ferguson, -
389
458
484
H
400
Hall, Ruggles v.
112
175
Hallet v. Novion,
273
182
Hart, Simpson ®.
63
246 ' Harsen, Lattimore v. -
330
JOHNS. REP., 14.
CASKS REPORTED.
Harter, Jackson, ex dem. Helmer, ».
Henderson, Shippey v. • • -, .,,•
Henry ». Clelaud,
Hildreth, Sands v. - .«
Hilts t>. Colvin, ....
Ilinman »..Moulton,
Hitchcock, Lane t». ...
Hoke. Lambert v. -
Holt t>. Johnson, -
Hoskins, Ellis v.
Hoskins, Acklcy «.
Howe, Jackson, ex dem. Austin, t».
Howard, Brown v.
Howard, Pease v.
Hozier, Peck ». -
Hyslop v. Clark, ....
Jackson, ex dem. Austin, ». Howe, - 405
Jackson, ex dem. Brayton, v. Burchin, • 124
Jackson, ex dem. Brown, t>. Avers, - 224
Jackson, ex dem. Golden, v. Walsh, - 407
Jackson, ex dem. Helmer, t>. Harter, - 226
Jackson, ex dem. Kip, v. Corley, - - 888
Jackson, ex dem. King, «. Burtis, - 891
Jackson, ex dem. M'Crackin, «. Wright, - 193
Jackson, ex dem. Newkirk, ». Embler, - 198
Jackson, ex dem. Rowley, v. Kinney, - 186
Jackson, ex dem. Sternbergh, v. Dominick, 435
Jackson, ex dem. Tewahanarahkan, v.
Sharp, - 472
Jackson, ex dem. Van Alen, v. Ambler, 96
Jackson, ex dem. Van Dyke, t>. Reynolds, 335
Jackson, ex dem. Wynkoop, v. Myers, 354
Jacobs, Van Sickler v. 434
Jenkins, Woert v. 352
Jerome, Blake v. - - 406
Johnson, Holt v. • • • . • - 425
Kane v. Sanger, - - - 89
Kelsey, Butler «. 342
Kennedy v. Strong, .... 128
Kidzie v. Sackridec. - - - 195
Kingsbury, Fort Ann v. - - - 365
King's Lessee v. Burtis, - - - 229
Kinney, Jackson, ex dem. Rowley, v. - 186
Kipp's Lessee v. Corley, - - 323
Lambert t>. Hoke, - - - 888
Lampman, Wheeler v. • • 481
Lane v. Hitchcock, 213
Lattimore i>. Harsen, - - - 330
•Lawrence, New York Firemen Ins.
Co. «. 46
Leal, Day v. • • 404
Lent, Raymond ». 401
Linnendoll v. Doe, 222
Little, Shephard v. 210
Lord, Brill ». - - - 841
Low t>. Mumford, - - 426
Lyon 9. Tallmadge, • 601
M
Macomb «. Thompson, 207
Mann t>. Mann, 1
Mann *. Swann, - 270
Mamakating, Walkill ». - - - 87
Marsh v. W~ickham, - - 167
Marshall, Taylor ». - - 204
Mattice, Fuller t>. 857
JOIINB. RKP., 14.
M'Nair, Brackettr. 170
M'Daniel, Thomas ». . 185
M'Crackin's Lessee v. Wright, - - 193
Merrill, Miller v. - 848
Miller, People t>. - - *- -' 871
Miller r. Merrill, - - - ... 848
Moulton, ilinman t>. ... 466
Morris r. Brush, ' 828
Morrison, Timuierman e. 369
Morse, Bentley t>. .... 438
Mumford, Low «. .... 436
Murray, Matter of, - - • - . 221
Murray v. Bogert, .... 318
Myers, Velie ». 162
Myers, Jackson, ex dem. Wynkoop, t>. 354
N
Nan Mickel, Mattter of, - - - - 824
Newkirk's Lessee ». Embler, - - 198
Nellis, Degear ». 382
New York Firemen Ins. Co. ». Law-
rence, - 46
New York Firemen Ins. Co., Coolidge r. 308
Newburgh Bank v. Seymour, - 819
Noxon, Delavergne v. • . - 333
Novion, Hallett v. - ... 373
O
Oatfleld v. Waring, - .- • ' . • '-188
Ocean Ins. Co.. Saltus t>. •. 188
Osgood, Franklin t>. - 527
Owens, Shultys v. - 345
Parkhurst v. Van Cortlandt, - 15
Patterson, Sterns v. - - 182
Patterson, Reed v. - - 828
Pease v. Howard, 479
Peck v. Peck, - 219
Peck v. Hozier, ------ 346
People v. Anderson, - 294
People v. Farrington, - ... 343
People v. Miller, - ... 371
Platt v. Smith, - 368
Potter v. Smith, - - 444
Pratt, Dunham v. - - 372
R
Raymond v. Lent, 401
Read v. Patterson, 828
Reeve, Case v. - 79
Reynolds, Jackson, ex dem. Van Dyke, c. 885
Richtmyer, Brink v. - -j.v>
Rowley" t>. Qibbs, .... 335
Rowlev's Lessee t>. Kinney, - - - 186
Rugglesc. Hall, - - - - 112
Ruggles v. Sherman, - - - 446
S
Sackrider, Kidzie e. 195
3altus v. Ocean Ins. Co., - - 188
Sanford, Arnold v. - ' - - - - 417
Sands v. Hildreth, . 493
Sanger, Kane c. 89
Scaghticoke o. Brunswick, - > 199
Scoville t>. Canfleld, .... 339
Schuneman t?. Diblee. .... 235
Seymour, Newburgh Bank t>. - - - 219
Sharp v. United Ins. Co.. - - - 201
Sharp, Jackson, ex dem Tewahannrnh-
kan. «. 472
Shelden «. Soper, .... 350
18
CASES REPORTED.
Shephard v. Little, 210
Sherman, Ruggles v. - - - - 446
Sherrill v. Crosby, 358
Shippey v. Henderson, - - - 178
Shultys v, Owens, 345
Simpson v. Hart, 63
Skinner v. Fleet, 262
Smith. Clark fl. - - - - 326
Smith, Platt *. 368
Smith, Pot l or v. 444
Soper, Shelden v. 352
St. Andrew's Church, Dunn v. • - 118
Stebbins v. Wilson, 403
Sterling, Whitney v. - 215
Sternbergh's Lessee ». Dominick, - - 435
Sterns v. Patterson, - 132
Stockholm, Tallmadge v. 342
Strang v. Ferguson, - - - - 161
Strong, Kennedy v. 128
Swann, Mann v. 270
Tallmadge v. Stockholm, - - - 342
Tallmadge, Lyou v. - - - - 501
Taylor v. Marshall, 204
Tewahanarahkan's Lessee v. Sharp, - 472
Thomas, Gardner «.---- 134
Thomas v. M'Daniel, - 185
Thomas v. Weed, - - - - 255
Thompson v. Button, - - - - 84
Thompson, Macomb v. - - - - 207
Thompson, Ashton v. - - - - 316
Timmerman v. Morrison, - - - 369
14
U
United States v. Dodge, ... 95
United Ins. Co., Sharp v. 201
United Ins. Co., Wilson v. - - - 227
V
Van Ankin v. Westfall, - - - - 233
Van Cortlandt, Parkhurst v. 15
Van Sickler v. Jacobs, .... 434
Velie v. Myers, 162
Vosburgh v. Bame, 302
W
Wallkill v. Mamakating, - - • ;J: 87
Walsh, Jackson, ex dem. Golden, v. - 407
Waring, Oatfield v. - - - - 188
Waters v. Burnet, 362
Weed, Thomas v. - - - - 255
Weston 0. Weston, 428
Weston, Alger v. 231
Westfall, Van Ankin v. - - - - 233
Western (4th) Turnpike Co., Bill v. - 416
Wheeler v. Lampman, - ... 4yi
Whitney v. Sterling, - ... 215
Whitestown v. Constable, - - - 469
Wickham, Marsh v. - - - 167
Wiggins, Clute v. 175
Wilson v. United Ins. Co., - - - 227
Wilson, Doty v. 378
Wilson, Stebbins v. - - *• » i>: 403
Wiswall, Foot v. - • - . ^ 304
Woert v. Jenkins, 352
Wright, Jackson, ex dem. M'Crackin, v. 193
Wyman, Bartlett v. - • - - 260
JOHNS. REP., 14.
CASES REPORTED IN VOL. XV., JOHNSON'S REPORTS.
[Figures refer to marginal paging in respective Vols.]
Abeel v. Radcliff, 505
Addams, Sellick t>. - - - - 197
Amory ». M'Gregor, 24
Arnold «. Sandford, 534
Asnley, Baker t>. 536
Austin. Jackson, ex dem. Beebee, t>. - 477
B
Baker t. Brill, 260
Baker p. Ashley, 536
Baldwin P. Carter, 496
Barringer, Jackson, ex dem. Living-
ston, t>. 471
Bassett, Dolf t>. - - - . - 21
Bates v. Sutherland, - - - - 510
Bartlett t>. Crozier, .... 250
Beardslee, Johnson «.---- 3
Bennet v. Smith, - - - 'v •' ':. 855
Birdsall, Seeley ». - - - • -> • 267
Bissell, Cooper v. ... 318
Borden v. Fitch, 121
Booge, Warner v. .... 233
Boneham, Jackson, ex dem. Miner, v. • 226
Boyce, Sherman «. • - - • • 443
Breed v. Cook, - - - - - 241
Brill, Baker p. 260
Boerum, Wilson v. 286
Bromhagen r. Thorp, - - - - 476
Brown, Hall t>. 194
Brown, Jackson, ex dem. Gillet, v. - 264
Brown, Ostrander «.---- 89
Burdick v. Green, .... 247
Budlong, Rathbon p. - - - - 1
Burk ». Campbell, .... 456
Butler P. Kelsey, 177
Butler, King v. 281
C
Cable v. Cooper, 152
Campbell, Burk t>. - - - • 456
Campbell, Gardner v. - - - - 401
Caniff v. Myers, 246
Capron, Mechanics' Bank v. - - 467
Carpenter v. Whitman, • - - 208
Carter, Baldwin «. 496
Caswell. Farrington v. ... 430
Chase, Jackson, ex dem. Colden, v. • 854
Cheever v. Smith. .... 276
Clark, Peterson v. 205
Claw, Kinderhook, Commissioners of
Highways of, p. - - - - 587
Claverack, Overseers of Poor of, v.
Hudson, - - 288
Clute. Hoar P. 224
Colden v. Eldred, 220
Coles u. Coles, .... 159. 319
Collins o. Ragrew, - 5
Colquhoun P. N. Y. Firemen Ins. Co. 852
Commission Co., Munn «. ..- V. f . 44
Comley ». Lockwood, ... 188
Coon, Sweet v. • - » • • - 86
Coons e. M'Munus. ... . •• , ..:. 181
JOHNS. UK iv. 15.
Cook, Breed v. - • • • •
Cook, Irvine v. -
Cook, Insolvent Debtor, Matter of,
Cook, Whitbeck t>. - • .-
Cooper, Cable v. - • - '-
Cooper v. Bissel, -
Cooper, Widow, Matter of, • >
Coster v. Watson,
Cross t>. Moulton, - • ;- - v
Crozier, Bartlett t». - ;'• - '•
Decker v. Livingston, .-
Dey, Dunham, v.
Dirkenson, Jackson, ex dem. Noah, e.
Dolf v. Bassett, ' - ; - -. -
Dorr, Sharp v.
Drake, Pierce v. -
Dudley v. Staples, - , - '. ••
Duffle v. Hayes, - - ' -
Dunham v. Dey, - , -
R
Eldred, Colden v.
Evans, Pike v. -
241
23»
183
483
152
818
533
535
469
250
479
555
309
21
531
475
196
827
555
220
210
Farrington v. Sinclair, - - - 428, 429
Farrington v. Caswell, .... 430
Farrington v. Payne, - - - 431, 432
Ferris, Jackson, ex dem. Hunt, v. - - 346
Fitch, Borden «. - - - . - 121
Fisher, Myer v. - - - - - . 504
Fleet, Van Cleef v. - - ... 147
Fletcher, Rotan v. - - - - • - 207
Fowler v. Sharp. - - ...... 323
Fulton v. Matthews, - - - ... - 433
Furse, Suckley v. - - - , . 838
G
Gage v. Reed, - - - -. , - 403
Gardner v. Campbell, - - - • • • 401
Gelston, Hoyt v. • - -, - - 221
Gilbert P. Vanderpool, - 242
Gilchrist. Jackson, ex dem. Woodruff, v. 89
Gelston, Sands P. - -. - . . * 511
Goodrich v. Gordon, - - •• +. - 6
Gordon. Goodrich P. - .- .•••-• « 6
Green, Burdick v. • - i « - 247
Griswold v. Waddington, - - -57
Haight, Ryckman v. " - - '- - 222
Hallett, Pennoyer ». - - . • 832
Hall v. Brown, - - - . - 194
Hailing. Loring v. ..... lift
Ham, Jackson, ex dem. Van Alen, v. - 261
Hart, Quimby v. • • . - - 804
Harvey r. Rirkett, -'*-..-.. 87
Harwood. Matter of, - - - - 897
Hasbrouck r. Tappen, - - 182, 200
Hatheway, Jackson, ex dem. Yates, 9. 447
Hayes, D'uffle v. 827
IS
CASES REPORTED.
Hawkes, Martin v. -
Herrick v. Whitney, ....
Hewitt, M'Donald v.
Hitchcock, Johnson v.
Hoghtailing v. Osborn,
Hoar v. Clute,
Hoyt v. Gelston,
Hubbard v. Spencer, ....
Hudson, Claverack. Overseers of Poor,
of, v.
Huntington, Leonard D. -
405
24S.
349
Irvine v. Cook,
.1
Jackson, ex dem. Bates, v. Lawson,
Jackson, ex dem. Beebee, v>. Austin, -
Jackson, ex dem. Brown, v. M'Vey,
Jackson, ex dem. Cplden, v. Chase,
Jackson, ex dem. Gillet, v. Brown, -
Jackson, ex dem. Hunt, v. Ferris,
Jackson, ex dem. Livingston, v. Barrin-
ger,
Jackson, ex dem. Livingston, v. Rob-
ins, -
Jackson, ex dem. Miner, v. Boneham, -
Jackson, ex dem. Malin v. Malin,
Jackson, ex dem. Noah v. Dickenson,
Jackson, ex dem. Stevens, v. Silvernail, -
Jackson, ex dem. Van Alen, v. Ham, -
Jackson, ex dem. Woodruff, v. Gilchrist,
Jackson, ex dem. Yates, v. Hatheway,
Jenks v. Payne,
Johnson v. Beardslee, - ...
Johnson v. Hitchcock, ....
Johnson, Platt t>.
Jones, Smith v.
Judd, Williard v.
K
Kellogg v. Wilder, - - -
Kelsey, Butler v.
Kent v. M'Donald, - - -
King ®. Butler,
Kinderhook, Commissioners of High;
ways, v. Claw, ...
Kissam, Woodworth r>. -
Lawson, Jackson, ex dem. Bates, v.
Lenox, Page v.
Leonard v. Huntington,
Livingston, Decker v.
Lockwood, Comley v. -
Lock wood, Thompson v.
Low v. Vnooman, - ...
Lorillard v. Palmer,
Loring v. Hailing,
M
Malin, Jackson, ex dem. Malin, v. •
Manhattan Company «. Osgood, -
Martin v. Hawkes, -
Matthews, Fulton v.
M'Donald v. Hewitt,
M'Donald, Kent v.
M'Gregor, Amory v.
Mechanics' Bank t>. Capron.
M'Manus, Coons v. - -
M'Vey, Jackson, ex dem. Brown, v.
Mersereau v. Norton,
Moulton, Cross v. -
1C
11!
22
221
244
283
298
239
539
47
234
354
264
346
471
169
226
293
309
278
261
89
447
399
3
185
213
229
531
445
177
400
281
537
186
539
172
298
479
188
256
238
14
119
293
162
405
433
349
400
24
467
181
234
179
469
Morse, Myers v. 425
Munn v. Commission Co., - - .44
Murray v. Riggs, ----- 571
Myers®. Morse, - !i :, ,> . . .'.,;„ 435
Myers, Cauiff v. 246
Myer v. Fisher, 504
N «
New Paltz, Overseers of, Plattekill v. - 305
New York Firemen Ins. Co., Colqu-
houn v. 352
Norton, Mersereau v. - - - - 176
O
Osborn, Houghtailing v. 119
Osgood, Manhattan Co. v. 162
Ostrander ». Brown, .... 39
Page 0. Lenox and Maitland, -
Page, Smith v.
Palmer, Lorillard 0.
Payne v. Wheeler,
Payne, Farrington D.
Payne, Jenks v. -
Paine, Woodard v. - - •' 33
Peet, Rice D. -
Pennoyer D. Hallett,
People v. Utica Ins. Co.,
Peterson v. Clark, -
Pike v Evans,
Pierce v. Drake,
Pittstown, Overseers of Poor
Plattsburgh,
Platt v. Johnson and Root, -
Plattsburgh, Overseers of
town v. - - - -
Plattekill, Overseers of, v. New
- 172
395
- 14
492
- 431, 432
399
- 493
.-• - 503
- 332
- - 358
- 205
210
.;:-,- ft - 475
of, v.
- 398, 436
213
Pitts-
- 398, 436
Platz, 305
Quimby v. Hart,
Q
R
Radcliff, Abeel v. -
Ragrew, Collins v.
Rathbon v. Budlong, - - . <- ;
Reed, Gage v.
Rice v. Peck, -----
Rickett, Harvey v. -
Riggs, Murray v.
Robins, Jackson, ex dem. Livingston, v.
Rood, Sills.
Rotan v. Fletcher, - -
liyckman v. Haight,
Ryers, Shepard v.
304
505
5
1
403
503
87
571
169
230
207
222
497
S
Sands v. Gelston, 511
Sandford, Arnold v. 534
Saltus v. United Ins. Co., - - - 523
Seymour, Sprague v. - - - - 474
Seeley v. Birdsall, 267
Sellick v. Addams, - ... 197
Sharp v. Dorr, 531
Sharp, Fowler v. - - - 323
Sherburn, Walden v. ... 499
Sherman v. Boyce, - - - 443
Sherman, Williams e. .'...., 195
Shepard v. Ryers, 497
Sill v. Rood, 230
Silvernail, Jackson, ex dem. Stevens, t>. 278
Sinclair, Farrington v. 428, 429
JOHNS. REP., 15.
CASES REPORTED.
^kilding t>. Warren,
Smith v. Jones,
Smith, ex dfm. Rosevelt, u. Van Dursen, 348
Smith, ex dem. Page, «. -. r -,. :;;) '
-Smith, ex dfm.. Rennet t>.
Smith, exdem., Cheever t>. • * .-.> 276
Spencer, Hubbard v.
Spr;i£ue v. Seymour, - • • . - -. 474
Staples, Dudley «. •' • ' • '' - 196
Stowt>. Tiflft, - - - -••'•*• 458
Buckley o. Furse, - - • - 9K
Sutherland, Bates «.. • -' -. • •!•
Sweet e. Coon, .... - 86
Tappen, Hasbrouck r. -
Thompson c. Lockwood,
Thorp, Rromhagen ». -
Tifft, Stowe t>. - -.
U
United Ins. Co., Saltus ».
Utica Ins. Co., People «.
JOHNS. REP., 15.
182, 200
- .256
476
- 458
528
358
Van Cleef «. Fleet, ....
Van Deusen t>. Van Slyck,
Van Dursen, Smith, ex dem. Roose-
velt, «.
Vanderpool, Gilbert «.
Vrooman, Low ».---•
W
Waddington, Griswold «. • » -
Walden r>. Sherburne, - - •
Warren, Skilding «. - .-
Warner r. Booge, ....
Watson, Coster e. t • • •
Wheeler, Payne v. -
Whitman, Carpenter t>. • • . •
VVhitbeck «. Cook, - - . •>
Whitney, Herrick v. - - * •
Willardu. Judd, - - ' .*•
Wilder, Kellogg «.-•--
Williams ». Sherman,
Wilson v. H< it-rum. -
Woodard ». Paine, - - - -
Woodworth c. Eissam, •-
N. Y. R.. 5.
147
228
848
242
M
57
409
270
233
535
452
208
483
240
531
455
195
286
493
186
17
CITATIONS
IN OPINIONS OF THE JUDGES CONTAINED IN THIS BOOK-
JOHNSON, VOLUMES 11-15.
CASES CITED.
Abbott 0. Smith, 2 W. Bl. 947
Abeel0. Radcliffe, 13 Johns, 297.15 J.
Abraham v. Noakes, 1 Chitty, 615. .
Ackland v. Pearce, 2 Camp. 599 —
Adam v. Ker, 1 Bos. & P. 360....
Adams®. Adams, 2 Mod. 169
Adams v. Dyer. 8 Johns. 347
Adams v. Willoughby, 6 Johns. 65,
Allen v. Bennet, 3 Taunt. 169, 176,
.14 J. 204,
Allen v. Bower, 3 Bro. Ch. 149
Allen v. Harris, 1 Ld. Raym. 122..
Allen v. Horton, 7 Johns. 23
Alner v. George, 1 Camp. 392
Alsop v. Caines, 10 Johns. 400
Amcotts v. Catherick, Cro. Jac. 615,
Anderson v. May, 2 Bos. & P. 237.
Amlertont). Beck, 16 East, 250
Andrews v. Beecker, 1 Johns. Cas.
411 11 J. 49;
Anonymous, Cro. Car. 232
Anonymous, Dyer, 122 b, pi. 24 —
Anonymous, Dyer, 295, pi. 16
Anonymous, Dyer, 363
Anonymous, Jenk. Cent. 216 pi. 59.
Anonymous, Kelyng, 24
Anonymous, Moore, 61
Anonymous, 1 Roll. Abr. 291, 36 ..
Anonymous, 2 Salk. 588
Appleton 0. Binks, 5 East, 148
Archbishop of Canterbury v. House,
Cowp. 140
Archbishop of Canterbury v. Wells,
1 Salk. 316....
Ariadne, The, case of, 2 Wheat. 147
Armistead v. Philpot, Doug. 231 . . .
Arnold v. Crane, 8 Johns. 81, 82..
11 J. 476;
Ash 0. Ash, Comb. 357
Ashby v. White, 2 Ld. Raym. 938.
.___• 11 J
Aslin0. Parkin, 2 Burr. 667
Atkins v. Barnwell, 2 East, 504, 505,
12 J. 353; 13 J. 382;
Atty.-Gen. v. Buller, 5 Ves. 339. . .
11 J. 374;
Atty.-Gen. v. Meyrick, 2 Ves. 44. .
Atty.-Gen. v. Ltica Ins. Co., 2
Johns. Ch. 376
Auriol 0. Thomas, 2 T. R. 52
Aurora, The, case of, 8 Cranch, 219,
Austin v. Hall, 13 Johns. 286
Aveson v. Kennaird, 6 East, 188...
15 J. 422
507, 509
13 J. 274
13 J. 46
11 J. 65
11 J. 106
11 J. 230
13 J. 268
487, 489
14 J. 33
11 J. 191
11 J. 144
11 J. 49
11 J. 491
15 J. 462
12 J. 316
13 J. 471
13 J. 22
12 J. 219
12 J. 47
15 J.
15 J.
12 J.
14 J,
14 J.
12 J.
12 J.
168
115
44
297
563
167
55
13 J. 310
13 J. 441
13 J. 440
15 J. 353
12 J. 396
12 J.
12 J.
93
237
120, 121
13 J. 235
443
13 J. 558
13 J. 559
15 J. 379
15 J. 168
15 J. 353
15 J. 482
15 J. 292
B
Badkin v. Powell, Cowp. 476 12 J. 267
Bailey v. Freeman, 4 Johns. 283.. . 13 J. 485
18
Bailey v. Freeman, 11 Johns. 221 ..
Bailey v. Ogden, 3 Johns. 399
Bainbridge v. Pickering, 2 W. Bl.
1325
Baird v. Vanderlyn, Aug., 1816
Bairne's case, W. Jones, 252
Baker 0. Barney, 6 Johns. 72
Baker v. Pierce, 2 Ld. Raym. 959 ..
Baker v. Button, 1 Com. Dig. Ac-
tion, F
Baldwin v. Church, cited Str., 20. .
Ballard 0. Walker. 3 Johns. Cas. 60.
Balmain v. Shore, 9 Ves., Jr. 500. .
Bancroft 0. White, 1 Cai. 185
Bantleon v. Smith, 2 Binney, 152 ..
Bank of Columbia v. Paterson's
Adm'rs, 7 Cranch, 299
Bank of England v. Newman, 1 Ld.
Raym. 442; 12 Mod. 241
Bank of U. S. 0. Haskins, 1 Johns.
Cas. 132
Barber 0. Backus, Peake's Cas. 61 .
Barber v. Gingill, 3 Esp. Rep. 62..
Barber v. Root, 10 Mass. 261
Baring v. Christie, 5 East, 398
Baring v. Royal Exch. Ass. Co. 5
East, 99 -
Barker v. Barney, 8 Johns. 73
Barkers. Braham, 3 Wils. 370
Barker®. Braham, 2 Bl. Bep. 869. .
Barker v. Cheriot, 2 Johns. 352.15 J
Barker v. Phoenix Ins. Co., 8 Johns.
307, 317 11 J. 260;
Barker®. Redding, W. Jones, 163;
Palm. 485
Barnes v. Billington, 1 Wash. 31. .-
Barnewell v. Church, 1 Cai. 229
Barney 0. Dewey, 13 Johns. 226. ..
Baron 0. Abeel, 3 Johns. 481
Barrington 0. Atty.-Gen., Hard.
419 -
Bartlett 0. Irwin, 3 Johns. 366
Bartlett 0 Vinor, Carth, 252
Basten 0. Butten, 7 East, 480, n
Bateman 0. Willoe, 1 Sch. & Lef
201 14
Bayard 0. Malcolm, 2 Johns. 550..
Bayley 0. Bates, Johns, 185
Beale v. Thompson, 3 Bos. & P.
430; 4 East, 558
Beals 0. Guernsey, 8 Johns. 446 —
Beckford 0. Jackson, 1 Esp. Rep.
337
Becloe 0. Alpe, W. Jones, 126
Beebe ad's. People,
Beecker v. Beecker, 7 Johns. 103 . .
Bee 0. Chapman, 10 Johns. 183
Benuet 0. Miller, 5 T. R. 273
Bennett 0. Hamill, 2 Sch. & Lef. 566,
13 J. 17T
13 J. 301
13 J. 480
13 J. 405
14 J. 554
11 J. 282
12 J. 241
12 J. 168-
11 J. 21
14 J. 487
15 J.
15 J.
161
23
13 J. 244
12 J. 231
11 J. 412
14 J. 246
11 J. 51
14 J. 166
15 J. 143
14 J. 314
14 J. 314
12 J. 250
11 J. 133
14 J. 70
. 336, 337
14 J. 314
15 J. 116
13 J. 443
12 J. 516
13 J. 404
11 J. 463
11 J. 554
14 J. 194
14 J. 290
13 J. 303
J. 72, 77
11 J. 143
15 J. 151
12 J. 335
12 J. 324
11 J. 454
12 J. 181
13 J. 343
12 J. 278
11 J. 423
14 J. 177
13 J. 551
CITATIONS.
ii
386
405
553
.. 12 J. 334
116
93
274
13 J. Ill
326
889
177
888
141
591
Bennett T. Ward. 3 Cai. 259 ....... 11 J.
Benson t>. Matsdorf, 2 Johns. 871.. 11 J.
Bergen v. Bennet, 1 Cai. Cas. 15 —
.................. 12 J. 347; 14 J.
Bergstrom e. Mills. 3 Esp. 36 ..
Bexwell ». Christie, Cowp. 895.. . 18 J.
Bickford P. Page, 2 Mass 460. ... 14 J.
Bendon t>. Robinson, 1 Johns. 516. 13 J.
Birch r. Wright, 1 T. R. 387
Bird v. Caritat, 2 Johns. 842, 344,
.................... 11 J. 490; 15 J.
Bird v. Clark, 3 Day's Rep. 277... 11 J.
Bishop v. Hay ward, 4 T. R. 470...
.................... 12 J. 161; 18 J.
Bishop t>. Montague, Cro. Eliz. 824. 11 J
Bissell v Briggs, 9 Mass. 462, 464..
................... 13 J. 206; 15 J.
Bize P. Dickason, 1 T. R. 285 ..... 15 J.
Blackenhagen r. London Ins. Co.,
Park, 226; 1 Camp, 454 ......
................... 11 J. 268; 14 J.
Blagden v. Bladen, 12 Ves. 466 ____
................... 18 J. 300; 14 J.
Blagge «. N. Y. Ins. Co., 1 Cai. 545. 14 J.
Blandford t>. Foot, Cowp. 73 ...... 15 J.
Bla-sdalee. Babcock, 1 Johns. 517.. 13 J.
Bliss t. Ball, 9 Johns. 132 ....... 12 J.
Bliss P. Rice, 9 Johns. 159 ........ 15 J.
Blower P. Mowets. 3 Atk. 772 ..... 12 J.
Blunt v. Melcher, 2 Mass. 228 ..... 14 J.
Bolton t>. Prentice, 2 Str. 1214 ..... 11 J.
Bond P. Gibson, 1 Camp. 185 ______ 15 J.
Bonnell v. Beighton, 5 T. R., 182.. 11 J.
Bostwick P. Lewis. 1 Day. 250 ..... 13 J.
Bourne v. Hunt, 1 Bro. P. C. 49,
1st ed ....................... 11 J.
Boussmaker, Ex-parte, 13 Ves. 71. 13 J.
Bownet. Joy, 9 Johns. 221 ........ 12 J.
Boydell P. Drummond, 11 East, 142 13 J.
Bradhurst P. Col. Ins. Co., 9 Johns.
20 ........................... 15 J.
Bradish v. Gee, Amb. 229 ......... 12 J.
Bradshaw's case, 9 Co. Rep. 606.. 14 J.
Bradshaw r. Callaghen, 5 Johns.
80 ............. 8 J. 558; 15 J. 321,
Bradwayp. Leworthy, 9 Johns. 251. 11 J.
Braman p. Hess, 13 Johns. 52 ..... 15 J.
Brandt p. Ogden, 1 Johns. 156 ..... 12 J.
Brant p. Dyckman, 1 Johns. Cas.
275 ......................... 12 J.
Bradshaw r. Callaghar, 8 Johns.
566 ......................... 12 J.
Branch P. Ewington, Doug. 518. . . 14 J.
Braybroke v. Inskip, 8 \es. 407.
436,437 ....... 11 J. 874; 13 J. 555,
Breckville t>. Tpke. Co., 8 Dall. 496 12 J.
Breretonc. Evans, Cro. Eliz. 700..
......................... 15 J. 547,
Brewerton v. Harris, 1 Johns. 144.
. ..................... 14 J. 70,
Brewsterp. Kidgell, Carth. 438... 11 J.
Bridgen P. Parkes, 2 Bos. &P. 424. 12 J.
Bright r. Forth. Cro. Eliz. 448.... 11 J.
Bristol r. Barker. 14 Johns. 205... 15 J.
Brodie r. St. Paul, 1 Ves.. Jr., 338. 14 J.
Bromley P. Holland, 5 Ves. 610 ; 7
Ves. 8, 14, 15 .............. 14 J. 72,
Bromley p. Jeffries, 2 Vern. 415... 18 J.
Bronson p. Mann, 18 Johns. 460. . . 15 J.
Brooker p. Coffin. 5 Johns. 188, 191
........................ 18 J. 125,
Brooks P. Dorr, 2 Mass. 89 ........ 12 J.
Brown t. Austin, 1 Mass. 208 _____ 12 J.
61
39
814
882
226
479
88
506
376
282
422
160
328
120
4
101
301
19
535
252
322
476
56
368
247
434
376
558
231
549
75
80
850
19
879
81
76
Brown T. Campbell, 1 Serg. & R
179 15 J. 521
Brown e. Carter, 5 Ves., Jr.. 862.. 12 J. 550
Browne. Hincbman, 9 Johns. 75.. 11 J. 177
Brown t. Howard, 14 Johns. 122.. 15 J 224
Brown p. Jones, 1 Atk. 191 15 J. 586
Brown «. Mott, 7 Johns. 361 18 J. 52
Brown t. Peys, Cro. Eliz. 858 11 J. 351
Brown r. Sefwin, Cas. lemp. Talb.
240 11 J. 220
Bryan p. Horseman, 4 East, 599... 11 J. 147
Buchanan P. Rucker, 9 East, 192. .
13 J. 206; 15 J. 141
Bucherp. Jarratt, 3 Bos. & P. 143. 18 J. 92
Buckhouse P. Crosby, 2 Eq. Cas.
Abr, 32, pi. 44 14 J. 488
Buckler P. Buttwant, 8 East, 85.. . 18 J. 440
Bullock's case. Moore, 81 18 J. 528
Bunn t. Croul, 10 Johns. 239 15 J. 88
Bunn P. Riker, 4 Johns. 426
11 J. 28; 12 J. 877
Burd T. Lessees of Dunsdale, 2
Binney, 80. 91 12 J. 50
Burrowst*. Locke, lOVes., Jr.,474. 11 J. 566
Busk v. Davis, 2 Maule & S. 397... 15 J. 852
Butler's case, 14 J. 297
Buxenden v. Sharp, 2 Salk. 662 13 J. 339
Cabel P. Vaughan, 1 Saund. 291,
n. 1 12 J. 198
Cahill r?. Dolph, 1 Johns. Cas. 333. 12 J. 435
Cakish v. Ross, 1 Taunt. 164 n .... 15 J. 536
Callen T. Queensbury, 1 Broch.
101 n 12 J. 888
Campbell v. Arnold, 1 Johns. 511,
512 ....11 J. 386; 12 J. 184
Cannon t. Titus, 5 Johns. 355 15 J. 536
Capron t>. Austin, 7 Johns. 96 15 J. 292
Carev ». Schooner Kitty, 1 Bee's
Rep. 255 12 J. 337
Carpenter v. Butterfield, 3 Johns.
Cas. 145, 146 12 J. 181 ; 15 J. 326
Carre v. Barker, Cro. Jac. 250 14 J. 423
Carter t. Phelp's Adm'r, 8 Johns.
840 12 J. 350
Carters. Simpson, 7 Johns. 535... 12 J. 215
Carver e. Tracy. 8 Johns. 427 15 J. 280
Casborne T. Scarfe, 1 Atk. 605, n..
11 J. 874; 13 J. 558
Case P. Barber, T. Raym. 450 11 J. 191
Case v. DeGoes, 8 Cai. 261, 262
11 J. 384; 12 J. 184
Caser. Potter, 8 Johns. 212 12 J. 462
Case « VanNess, 1 Johns. Cas. 248. 12 J. 417
Caswell «. Allen, 10 Johns. 118.... 11 J. 476
Caulkin P. Harris, 9 Johns, 324 18 J. 51
( aylc'scase, N Co. ::-.' ... .1-1 J. 177
Chamberlain t. Lovett, 12 Johns.
217 15 J. 497
Chambers ». Robinson, 1 Str. 692.. 12 J. 237
Chamley P. Lord Dunsany, 2 Sen.
&Lef. 712... 18 J. 576
Champion p. Plumer, 4 Bos. & P.
252 14 J. 487. 488
Chancellor P. Phillips. 4 Dall. 168 n 11 J. 118
801 Chandler t>. Edson, 9 Johns 862... 14 J. 182
195 Chandler «. Greaves, 2H. Bl. 606, n
12J. 886, 387
275 Chaplin r. Rogers, 1 East, 192 11 J. 284
837 Chapmans p. Chapman, 1 Mun. 398,
4471 403 14 J. 88
19
CITATIONS.
Chapman ». Lipscombe, 1 Johns.
294 :.... 18 J.
Chapman ®. Staverton, Cowp. 278. 12 J.
Chapman v. Thumblethorp, Cro.
Eliz. 329.... 11 J.
Cheesebrough ®. Millard, 1 Johns.
Cas. 411 15 J.
Cheetham v. Lewis, 3 Johns. 42.. . 12 J.
Cheneyes' case, 5 Co. 68 b 13 J.
Chesterfield, Earl of, ®. Janssen, 2
Ves. 155,156 14 J.
Child v. Gibson, 2 Atk. 603 14 J.
Child v. Hardimer, 2Str. 875 11 J.
Christopher, The, case of, 2 Rob.
209 15 J.
City of Berne ®. Bk. of England, 9
Ves. 347 13 J.
Clark ®. Hyslop, 14 Johns. 458 15 J.
Clark®. Morey, 10 Johns. 72... 13 J. 5,
Clark v. Mundell, 1 Salk. 124 ; 12
Mod. 203 11 J. 412, 413 ; 15 J.
Clark v. Withers, 2 Ld. Raym 1072 ;
1 Salk. 322 12 J.
Clark v. Wright, 1 Atk. 12 13 J.
Clarke ®. Blake, 2 Br. Rep. 320- .. 11 J.
Clarke ®. Bradshaw, 3 Esp. N. P.
Cas. 155. .- 11 J.
Clarke v. Norris, 3 Ves., Jr., 362 ._ 11 J.
Clarke v. Turton, 11 Ves., Jr.,
240 14 J.
Clarke ®. Wright, 1 Atk. 12 14 J.
Clavering®. Clavering, 2Vern. 473. 12 J.
Clement v. Brush, 3 Johns. Cas.
180
433
240
389
407
289
522
513
511
282
176
587
588
6
341
208
301
350
147
219
42
40
548
13 J. 310
Clements v. Benjamin, 12 Johns.
298.
13 J. 335
Clements v. Williams, 8 Cranch, 72. 15 J. 521
Clerk®. Udall, Salk. 649 12 J. 237
Clerk®. Webb, 8 T. R. 459 13 J. 440
Clerke v. Martin, 2 Ld. Raym. 755. 12 J. 93
Cleveland v. Union Ins. Co., 8 Mass.
308 13 J. 459
Clifford v. Berry, 11 Mod. 241 12 J. 282
Clifton's case, 5 Co. 75.-.. 12 J. 371
Clinan ®. Cooke, 1 Sch. & Lef. 22,
37 13 J. 301 ; 14 J. 33, 39
Clinton Wollen, &c., Co. v. Morse,
Oct., 1817 15 J. 382
Clothworthy ®. Clothworthy, Cro.
Car. 437 13 J. 101
Clute®. Robison, 2 Johns. 613 11 J. 528
Cock v. Goodfellow, 10 Mod. 489,
497 15 J. 584, 586
Cockerill ®. Kynaston, 4 T. R. 277. 11 J. 403
Cocking®. Fraser, Marsh. 227 ... . 14 J. 145
Cockshot ®. Bennet, 2 Dura. & E.
763 12 J. 309
Codwise ®. Hacke, 1 Cai. 539 12 J. 305
Cogswell v. Dolliver, 2 Mass. 217. . 12 J. 463
Coffin ®. Tracy, 3 Cai. 129 12 J. 467
Colcord®. Swan, 7 Mass. 291 15 J. 553
Cole ®. Smith, 4 Johns. 193 15 J. 5
Coleman v. Barker, Gilb. 232 14 J. 83
Coleman ®. Upcot, 5 Viner, 527, pi.
17 14 J. 488
Collins®. Butler, Str. 1087 14 J. 117
Collins®. Emmett, 1 H. Bl. 313... 13 J, 179
Collins ®. Tony, 7 Johns. 278, 283.
...12 J. 245; 15 J. 321
Colt ®. M'Mechen, 6 Johns. 160 11 J. 108
Combes' case, 9 Co. 76 12 J. 447
Commonwealth ®. Addicks, 5 Binn.
520 13 J. 421
20
Comstock ®. Smith, 7 Johns. 88- .. 14 J. 382
Cone ®. Whitaker, 2 Johns. Cas.
280 '14 J. 403
Coney® Williams, 9 Mass. 117 13 J. 443
Conklin v. Dyer, 8 Johns. 347 11 J. 230
Cook's case, 4 St. -Tr. 748; Salk.
153 13 J. 83
Cook ®. Oxley, 3 T. R. 653 12 J. 191, 401
Cooke ®. Munstone, 1 Bos. & P. (N.
S.)353 12 J. 276
Cooke®. Sholl, 5 T. R. 255 13 J. 154
Coope®. Eyre, 1 H. Bl. 37 15 J. 422
Cooper ®. Kerr, 11 J. 53
Cooper®. Slower, 9 Johns. 331 13 J. 236
Cpppel ®. Smith, 4 T. R. 312 11 J. 463
Corbet's case, 1 Co. 77 15 J. 462
Cornu ®. Blackburne, Doug. 641,
642 13 J. 7; 14 J. 400
Corp. of N. Y. ®. Cashman, 10
Johns. 96 11 J. 443
Cortelyou ®. Lansing, 2 Cai. Cas.
201 12 J. 149
Cortelyou ®. Van Brundt, 2 Johns.
363 .-... 15 J. 453
Cossens v. Cossens, Willes, 25 14 J. 134
Cotton v. Lee, cited 2 Bro. 564 14 J. 488
Cotton v. Thurland, 5 T. R. 405... 11 J. 29
Covenhoven ®. Seaman, 1 Johns.
Cas. 23 14 J. 268
Craig®. Union Ins. Co., 6 Johns.
252 15 J. 530
Crain®. Colwell, 8 Johns. 384 11 J. 181
Cranston ®. Exr's. of Kenny, 9
Johns. 212 14 J. 105
Craven's case, 2 East, 601 13 J. 93
Crooke®. Brooking, 2 Vern. 106.- 11 J. 349
Cross®. Smith, 7 East, 246 11 J. 21
Crouse®. Mabbitt, 11 Johns. 167.. 15 J. 442
Crousillat®. Ball, 4 Dall. 294 11 J. 46
Crowder ®. Wagstaff, 1 Bos. & P.
18-. 11 J. 476
Cruger ®. Armstrong, 3 Johns.
Cas. 5 12 J. 95
Crusoe ®. Bugby, 3 Wils. 234 15 J. 279
Cuming®. Sibly, Burr. 2490 11 J. 460
Cummings ®. Hackley, 8 Johns.
202,206 11 J. 468, 520
Curling ®. Long, 1 Bos. & P. 637..
-.12 J. 334, 335
Cutter ®. Powell, 6 T. R. 320 13 J. 96
Dacres ®. Doe, 2 Bl. Rep. 892 12 J. 55
Danforth ®. Culver, 11 Johns. 146.
.- ....15 J. 4, 520
Danforth ®. Schoharie Tp'ke, 12
Johns. 231 14 J. 119
Dash ®. VanKleeck, 7 Johns. 477- . 13 J. 122
Davey ®. Turner, 1 Dall. 11 15 J. 109
Davies ®. Pierce, 2 T. R. 53, 125. .. 12 J. 520
Davis®. Gillet, 7 Johns. 318 13 J. 424
Davis ®. Thome, 2 Sch. & Lef.
347 14 J. 36
Davison ®. Gardner, cited 1 Cruise,
551 13 J. 223
Day®. Wilber, 2 Cai. 134, 135....
12 J. 286; 13 J. 250
Dean v. Abel, Dick. 287 13 J. 576
Dean ®. Allen, 8 Johns. 390 -. 11 J. 144
Dean & Chapter of Norwich's case,
3C0.786.- . 15 J. 168
CITATIONS.
I)ean& Chapter of Bristol v. Guyse,
1 Saund. 106 18 J. 274
Dederick P. Leman, 9 Johns. 338.. 13 J. 357
Deeze, Er-parte, I Atk. 228 15 J. 591
Delamater t>. Borland, 1 Cai. 594.. 12 J. 192
Delavergne v. Norris, 7 Johns. 858. 18 J. 106
Demanneville «. Demanneville, 10
Ves., Jr., 59 18 J. 421
Demare P. Rebello, 8 Bro. C. C.
446 11 J. 219
Denn t>. Rawlins, 10 East, 261 11 J. 110
Dennie v. Hill, 2 II. Bl. 587.. 14 J. 75
Denton v. Livingston, 9 Johns. 96. 11 J. 470
Derrick v. Chapman, 11 Johns. 132. 13 J. 284
Devoee. Elliot, 2 Cai. 244
12 J. 479; 13 J. 257
DeVoy t». Boyer, 8 Johns. 247 14 J. 70
Dew v. Parsons, 1 Chitty, 297, 302.
12 J. 192, 14 J. 400
DeWitt ». Post, 11 Johns. 460
14 J. 425; 15 J. 535
Dey t>. Lovett, 7 Johns. 874 12 J. 342
Dicksone. Thompson, 2 Shaw. 126 ;
2 Vent. 152 11 J. 147
Do«t>. Applin, 4 T. R. 87 11 J. 171
Doe ». Bell, 5 T. R. 471.. 13 J. 277 ; 15 J. 509
Doe «. Campbell, 10 Johns. 475 ... 18 J. 516
Doer. Carter. 8 T. R. 57 15 J. 280
Doet>. Cuff, 1 Camp. 178 11 J. 463
Doee. Manning, 9 East, 68, 71
12 J. 555, 556
Doe v. Martyr, 4 Bos. & P. 332.... 12 J. 557
Doe P. Phelps, 9 Johns. 171 13 J. 516
Doe v. Robson, 15 East, 84, 35 15 J. 167
Doe P. Rosser, 3 East, 15 15 J. 503
Doe 0. Rutledge, 2 Cowp. 713.. 12 J. 556, 559
Doe, ex dem. Wilbourue, v. Simp-
son. 2 Wils. 22 11 J. 351
Doe, ex dem. Stopford. v. Stopford,
5East,501 11 J. 348
Doe. ex dem. Forster, v. Vandless,
7 T. R. 117 11 J. 4
Doe, ex dem. Martin, v. Watts, 7 T.
R. 83 18 J. Ill
Doe, ex dem. Foster, t>. Williams,
Cowp. 632.... 12 J. 248
Dole o. Moulton, 2 Johns. Cas. 206. 13 J. 346
Dominus Rex «. Parsons, Salk.
449 15 J. 58(5
Dominus Rex t>. Reason, Str. 499.. 15 J. 29i
Doolinc. Ward, 6 Johns. 194 13 J. 115
Dorchester t». Coventry, 11 Johns.
510,512. 13 J. 180; 15 J. 28
Dormer's case, 5 Co. 40, 46 11 J. 5
Dowsland v. Thompson, 2 Bl. Rep.
910 11 J. 22
Deacon «. Haigh, 1 Esp. Rep. 409. . 12 J. 226
Drake t>. Mitchell. 8 East, 251, 258.
11 J. 520; 18 J. 244; 14 J. 405
Drews. Thorn, Alleyn, 72 15 J. 404
Drewy v. Coulton, 1 East, 562. n..
11 J. 120, 121, 160
Drinkwater e. Goodwin, Cowp.
255 18 J. 28
Duberly v. Gunning, 4 T. R. 657.. 12 J. 237
Duffleld v. Scott, 3 T. R. 876, 877.
11 J. 19; 14 J. 349
Dufresne v. Hutchinson, 3 Taunt.
117 12 J. 805
Dunham ». Hoyden, 7 Johns. 381.. 15 J. 492
Duryce P. Denniston, 5 Johns. 248.
11J. 181; 12 J. 424
Dyson t>. Rowcroft, 8 Bos. & P. 474. 14 J. 145
'E
Earle v. Rowcroft, Park, 121 ; 8
East, 126, 138,140
11 J. 46; 12 J. 137; 13 J. 457
Eastont). Coe, 2 Johns. 383
11 J. 442; 13 J. 462
Edgar t. Fowler, 3 East. 222... 11 J. 29 30
Edgcomb r. Dee, Vaugh. 89 11 J. 20
Egerton v. Matthews, 6 East, 307. .
14 J 487 488
Elliot t>. Rogers, 4 Esp. 59 - - . 13 j! 299
Elliott). Rossell, 10 Johns. 1 11 J. 108
Ellis *>. Rowles, Willes, 638 14 J. 184
Elmore ». Stone, 1 Taunt. 457 11 J. 284
Elsworth ». Woolmore, 5 Esp. Rep.
85 14 J. 262
Elwellt. Quash, Str. 20 11 J. 21
Embreer. Ellis, 2 Johns. 119 15 J. 23
Emly v. Lye, 15 East, 12 11 J. 413
Emraersont). Heelis, 2 Taunt. 38.. 14 J. 491
England, ex dem. Syburn, v. Slade,
4T. R. 682 11 J. 375, 456
Ensign t>. Webster, 1 Johns. Cas.
145 12 J. 531
Erving v. Peters, 3 T. R. 688, 689.
11 J. 21 ; 14 J. 449, 450
Estwick v. Caillaud, 5 T. R. 452. .. 15 J. 585
Evans v. Thompson, 5 East. 193. .. 15 J. 204
Evelyn ». Templar, 2 Bro. 149 12 J. 556
Eyre v. Countess of Shaftsbury, 2
P. Wms. 102. . . 14 J. 553
Fabrigasr. Mostyn, Cowp. 176 13 J. 450
Falls t>. Belknap, 1 Johns. 476.... 12 J. 286
Farmer v. Davies, 1 T. R. 109 15 J. 303
Farmer v. Russell, 1 Bos. & P. 296
11 J. 30; 12 J. 279
Farrington v. Rennie, 2 Cai. 220... 11 J. 406
Faxon v. Mansfield. 2 Mass. 147- .. 13 J. 96
Felterc. Mulliner, 2 Johns. 181... 11 J. 458
Fenn v. Harrison, 3 T. R. 760 15 J. 54
Fenner v. Meares, 2 Bl. Rep. 1269.
12 J. 281, 283
Fentont;. Garlick, 8 Johns. 197 ... 15 J. 142
Fermor's case, 3 Co. 77, 78
14 J. 465; 15 J. 145
Fieldhouse v. Croft, 4 East, 510 ... 12 J. 396
Finch t>. Newnham, 2 Vern. 216 —
11 J. 215, 219
Fink v. Hall, 8 Johns. 437 11 J. 442
Fishc. Fisher, 2 Johns. Cas. 89... 14 J. 269
Fisher v. Evans, 5 Binn. 542 14 J. 116
Fisher t>. Lane. 8 Wils. 297 13 J. 206
Fisher «. Samunda, 1 Camp. 190. . 18 J. 303
Fitzwalter's case, 1 Mod. 105 14 J. 259
Fitz William's case, Cro. Eliz. 915 ;
Yelv. 82 12 J. 47
Fletcher c. Dyche, 2 T. R. 82 11 J. 71
Floyd C. Day, 8 Mass. 408 11 J. 469
Floyer v. Edwards, Cowp. 112 18 J. 44
Folliott c. Ogden, 1 H. Bl. 185 ;
Cowp. 848 14 J. 340
Fontaine v. Phoenix Ins. Co., 11
Johns. 298 14 J. 129, 131 ; 15 J. 33
Foote «. Colvin, 3 Johns. 216 11 J. 97
Ford v. Fothergill, 1 Esp. Rep. 211. 13 J. 480
Foreland v. Marygold, 1 Salk. 72 ;
1 Ld. Raym.715; 12 Mod. 534. 11 J. 106
Forster c. Hale, 8 Ye*. . .1 r. 7 12 .... 14 J. 81
Fosdicke. Cornell, 1 Johns. 444... 11 J. 348
21
CITATIONS.
Fowle®. Freeman, 9 Ves. 351 14 J. 488
Fowler®. Shearer, 7 Mass. 20 15 J. 110
Foxcraf t ®. Lacy, Hob. 89
11 J. 55; 12 J. 479, 482
Franklin ®. Osgood, 14 Johns. 527
14 J. 399; 15 J. 347
Franklin ®. Talmadge, 5 Johns. 84. 12 J. 87
Frary v. Dakin, 7 Johns. 75
11 J. 226, 227, 493
Fraser v. Hopkins, 2 Taunt. 5 14 J. 204
Freeman v. Barnard, 1 Ld. Raym.
247, 248 ; Salk. 69 ; 12 Mod.
130 11 J. 190
Freer 0. Hardenbergh, 5 Johns. 272. 11 J. 145
French's Ex'rs v. B'k of Columbia,
4Cranch, 141 11 J. 182
Friends The, case of, 4 Rob. Adm.
116 -- 12 J. 334
Frier v. Jackson, 8 Johns. 495 14 J. 104
Frost®. Carter, 1 Johns. Gas. 73. . 15 J. 468
Frost v. Raymond, 2 Cai. 191, 192,
193. 11 J, 122; 12 J. 443; 13 J. 328
Frost 0. Walverton, 1 Str. 94 11 J. 543
Fry v. Philips, 5 Burr. 2827 12 J. 75
Fydell Y. Clark, 1 Esp. Cas. 448. .. 11 J. 413
G
Gale®. Bennet, Arab. 681 11 J. 349
Gale®. O'Bryan, 12 Johns. 216 13 J. 190
Gardiner®. Buchan, 12 Johns. 459. 13 J. 424
Garman v. Bennet, Str. 816.-.. 15 J. 303
Garside v. Prop'rs of Trent, &c.,
Nav., 4 T. R. 581 1-2 J. 233
George v. Claggett. 2 Esp. N. P. 558 11 J. 132
Geyer v. Aguilar, 7 T. R. 696 13 J 583
Gibson ». Colt, 7 Johns. '393 15 J. 54
Gidney v. Blake, 11 Johns. 54
.. ...12 J. 479, 482
Gile'scase, 2 Str. 881 12 J. 416
Gill®. Brown, 12 Johns. 385 12 J. 446
Gillet®. Maynard, 5 Johns. 87 12 J. 276
Given v. Driggs, 1 Cai. 460 14 J. 381
Glaister v. Hewer ; 8 T. R. 69 14 J. 70
Gleinister v. Audley, T. Raym. 14. 14 J. 252
Godin v. London Ass. Co. , 1 Burr.
489.. .- . 11 J. 238
Golightly ®.*Jellico, 4 T. R. 146, n. 12 J. 313
Goodinge®. Goodinge, 1 Ves. 232. . 11 J. 219
Goodisson ®. Nunn, 4 T. R. 763... 15 J. 116
Goodright ®. Castor, Doug. 485,
486. 11 J. 4
Goodright®. Noright, Barnes, 178. 12 J. 55
Goodright ®. Pears, 11 East, 57. .. 11 J. 219
Goodright ®. Straphan, Cowp. 201,
203 15 J. 547, 548, 550
Goodtitle ®. Alker, Burr. 143 -15 J. 453
Goodtitle v. Paul, 2 Burr. 1089.... 11 J. 217
Gordon «. Harper, 7 T. R. 9, 11, 12
11 J. 286, 383, 386
Gordon®. Secretan, 8 East, 12 J. 226
Goshen Tp'ke Co. ®. Hurtin, 9
Johns. 217, 218 11 J. 100; 14 J. 244
Goss v. Withers, 2 Burr. 693 13 J. 282
Gould®. Robson, 8 East, 576.. 15 J. 340, 341
Grace®. Smith, 2 W. Bl. 998 15 J. 422
Gracie v. N. Y. Ins. Co.. 8 Johns.
337 11 J. 334
Graham is. Peat, 1 East, 244 13 J. 151
Grant ®. Paxton, Marsh. 274 11 J. 310
Grant ®. Vaughan, 3 Burr. 1516. .12 J. 93, 95
Graves v. Mar. Ins. Co.. 2 Cai, 399. 11 J. 310
Gray®. Portland Bank, 3 Mass. 364. 12 J. 231
Greathead ®. Bromley, 7 T. R. 455. 14 J. 73
22
Green ®. Seals, 2 Cai. 254 13 J. 310
Green ®. Emslie, Peake's N. P. Cas.
212 11 J. 15
Green ®. Hart, 1 Johns. Rep. 590.. 11 J. 538
Green ®. New River Co., 4 T. R. 590 14 J. 82
Green Reynolds, 2 Johns. 207 12 J. 212
Greenby ®. Wilcox, 2 Johns. 4..1'. '
11 J. 123; 14 J. 93
Greenside ®. Benson, 3 Atk. 248... 13 J. 441
Greenwood ®. Tyber, Cro. Jac. 563,
564 _ 15 J. 547
Griffin ®. Eyles, 1 H. Bl. 122 15 J. 407
Griffith ®. Walker, 1 Wils. 336 .... 15 J. 269
Griswold ®. N. Y. Ins. Co., 3 Johns.
328 14 J. 143
Groenvelt ®. Burwell, 1 Ld. Raym.
454, 467 . . 11 J. 160 ; 12 J. 46
Gwinne®. Poole, Lutw. 937, 1560.. 12 J. 272
H
Hackley®. Patrick, 3 Johns. 536. . 15 J. 424
Hales ®. Petit, Plowd. 258 a 15 J. 547
Hall®. Odber, 11 East, 118 13 J. 450
Hall ®. Phelps, 2 Johns. 452 13 J. * 75
Hall ®. Shultz, 4 Johns. 240 14 J. 361
Hall ®. Smith, 1 Bro. Ch. Cas. 438. 12 J.
Hallet ®. Jenks, 3 Cranch. 219 15 J.
Hallet®. Wylie, 3 Johns. 44 15 J.
Hammett «. Yea, 1 Bos. &P. 144..
.13 J. 47; 15 J.
Hancock ®. Prowd, 1 Saund. 336 ..
...11 J. 19,
Handy ®. Dobbin, 12 Johns. 220. .. 12 J.
Banning ®. Ferrers, 1 Eq. Cas. Abr.
375 -. 14 J.
Hanway «. Eve, 3 Cranch, 242 14 J.
Harding ®. Crethorn, 1 Esp. Rep. 57 13 J.
Harding®. Holmes, 1 Wils. 122. .. 14 J. 134
Haigthorp ®. Millford, Cro. Eliz.
318 -- 11 J. 21
Harker®. Birkbeck, 3 Burr. 1563.. 13 J. 151
Harman ®. Tappenden, 1 East, 555.
11 J. 120,
Harnett ®. Yielding, 2 Sch. & Lef .
552 14 J.
Harrison ®. Barney, 5 T. R. 249. .. 15 J.
Harrison ®. Boecles, cited in 3 T.
. R, 688.-. - 11 J.
Harrison®. Bulcock, 1 H. Bl. 68.. 13 J. 447
Harrison ®. Close, 2 Johns. 450 13 J. 87
Harrison v. Jackson, 7 T. R. 207... 13 J. 310
Harrison®. Parker, 6 East, 154 15 J. 453
Harrison ®. Rumsey, 3 Ves. 488.... 12 J. 534
Hart ®. Lovelace, 6 T. R. 471 14 J. 77
Hart ®. Ship Littlejohn, 1 Peter's
Adm. Dec. 115 12 J.
Hartop®. Hoare, 3 Atk. 50 11 J.
Harvey ®. Richards, 1 H. Bl. 644.. 12 J.
Haswell®. Bates, 9 Johns. 80 13 J. 424
Haswell ®. Bussing, 10 Johns. 128. 15 J. 240
Hatch ®. Hatch, 9 Mass. 307 13 J. 286
Hatton ®. Gray, 2 Cha. Cas. 164 ; 1
Eq. Cas. Abr. 21, pi. 10 14 J.
Hawkins ®. Holmes, 1 P. Wms.
770 ... 14 J.
Hawkins ®. Kemp, 3 East, 441 11 J. 171
Hawks. ®. Crofton, 2 Burr. 698 14 J. 86
Hayman ®. Gerrard, 1 Saund. 103. 13 J. 274
Hayne, ®. Maltby, 3T. R. 440 13 J. 431
Hayward ®. Hammond, 1 Atk. 15. 15 J. 168
Haywood ®. Rodgers, 4 East, 590 ;
1 Marsh. 476.. 12 J. 135
506
36
351
168
21
396
43
159
240
121
36
482
21
336
413
353
488
489
CITATIONS.
Hearle*. Greenbank, 8 Atk. 714.. 14 J.
Hearsay r. Boyd. 7 Johns. 185 15 J.
Hr.-rmance P. Vernoy, 6 Johns. 5.. 14 J.
H-M«-r 9. Fortner, 2*Binn. 10 18 J.
Hellame. Ley, 1 Brownl. 182 12 J.
I!* -distract r. Youngs, 9 Johns. 864. 11 J.
Henchett P. Kempson, 2 Wils. 140. 11 J.
Henderson v. Brown, 1 Cai. 91 18 J.
Hriiriques P. Dutch West India Co.,
2Ld. Raym. 1585
Henshaw p. Mar. Ins. Co., 2 Cai.
274 11 .
Henshaw p. Pleasance. 2 Bl. Rep.
1174.1176 18 J. 158,
Herle t. Greenbank. 1 Dick. 870... 12 J.
Hcrrick P. Carman, 10 Johns. 224. . 12 J.
Herrick T. Carman, 12 Johns. 159,
160 18 J. 177;
Herring P. Sanger, 3 Johns. Cas.
72
Herrington «. Perrot, 2 Ld. Raym.
1006
Hewlet P. Framiugbam, 8 Lev. 28. 15 J.
Heyl P. Burling, 1 Cai. 19 14 J
Hcvlin P. Hastings. Com. Rep., 54:
r, Mod. 425 ; Carth. 470 ; 1 Ld.
Kaym. 889 ; 1 Salk. 29 ; Bull.
Ji. P. 148 11 J.
Hey ward's case, 2 Co. 86, 87 18 J.
Hickman v. Walker, Willes, 27...
Hicks ». Burhans, 10 Johns. 244. .. 14 J.
Higgins' case, 6 Co. 44 11 J.
Higginson p. Martin, 1 Freem. 322. 12 J.
Biggs, AuMin. Vrlv. l.VJ 1-2 J.
High r. Wilson, 2 Johns. 46 12 J.
Highland Tp'ke Co. P. M'Kean, 10
Johns. 156 14 J.
Hill P. Thorn, 2 Mod. 809 13 J.
Hilsden P. Mercer, Cro. Jac. 677.. . 11 J.
Hine P. Dodd, 2 Atk. 275
.'.... 12 J. 245; 15 J. 569,
Henman p. Breeze, 15 Johns. 529.. 15 J.
Hiram, The, case of, 1 Wheat. 440. 15 J.
Hitchcock v. Aickin, 1 Cai. 460... 13 J.
Hitchcock v. Harrington, 6 Johns.
290 15 .
Hitchings P. Lewis, 1 Burr. 614 11 J.
Hodges v. Raymond, 9 Mass. 316.. 14 J.
Hodgson P. Dexter, 1 Cranch, 345,
362 12J. 388, 448,
Hodgson t. Richardson, 1 Bl. Rep.
463
Hodsden P. Harridge, 2 Saund. 64,
65
Holbrook P. Finney, 4 Mass. 569..
..: is*
Holliday P. Marshall, 7 Johns. 211. 12 J.
Hollis P. Smith, 10 East, 293 11 J.
Holly P.' Rathbone, 8 Johns. 149... 12 J.
Hoi man t>. Johnson, Cowp. 341... 14 J.
Holmes p. Cradock, 8Ves., Jr. 820. 14 J.
Holmes*. D'Camp, 1 Johns. 85... 15 J.
Holmes p. Rhodes, 1 Bos. & P. 638. 14 J.
Hoop, The, IRob. 20 15 J.
Hooper's case, 2 Leon. 110 14 J.
Hopkins t>. Hopkins, 10 Johns. 347,
369, 372. ..11 J. 888; 18 J. 49 ; 15 J.
Hopkins r. Hopkins, 8 Mass. 158.
Hopper F. Hasket, 1 Keb. 788 18 J.
Hornbeck P. Westbrook, 9 Johns.
78
House P. Low, 2 Johns. 378 12 J.
Howt. Hall, 14 East, 274 13 J.
14 J. 553
15 J. 511
14 J. 407
18 J. 550
Howard v. Castle, 6 T. R. 642 13 J. 116
Howell P. Barnes, Cro. Car. 882... 15 J. 848
Howland p. Brig Lavania, 1 Pet.
Adm. Dec. 128 12 J 336
12 J. 479
11 J. 442
Howson P. Hancock, 8 T. R. 575..
11 J 28 29
11 J. 186
13 J. 446
14 J. 245
. 261, 265
Hoyt P. Hudson, 12 Johns. 207 18 J. 414
Hoyt P. Wildfire, 8 Johns. 520 ... 11 J. 67
Hubbell P. Cowdrey, 5 Johns. 181. 11 J. 168
Huddleston P. Briscoe. 11 Ves. 592. 14 J. 489
Hudson P. Guestier. 4 Cranch, 298 ;
6 Cranch, 281 15 J. 174
r. 158, 583
Hullenback t>. DeWitt, 2 Johns.
404 ... 12 J. 478
12 J. 507
Humbler. Glover, Cro. Eliz. 828.. 12 J. 82
12 J. 161
Humphrey, t>. Phinney, 2 Johns.
484 11 J 511 • 13 J 180 • 15 J 28
14 J. 851
Hunt t. Adams, 5 Mass. 358
11 J. 223 ; 13 J. 178
11 J. 413
Hunt P. Enickerbacker, 5 Johns.
327. 14 J. 159
11 J. 280
Hunt r. Silk, 5 East, 449 14 J. 457
15 J. 825
14 J. 381
Hunter P. Prinsep, 10 East, 293 15 J. 19
Huscombe P. Standing, Cro. Jac.
187 15 J. 259
Hyatt v. Wood, 4 Johns. 150 13 J 236
11 J. 147
Hyde t. Trent, &c., Nav. Co., 5 T.
R. 394 12 J. 233
18 J. 628
14 J. 134
14 J. 192
11 J 517
I
Imlav v. Ellesfen, 2 East, 453 12 J 101
12 J. 272
12 J. 241
12 J 215
Ingram v. Webb, 1 Roll. Rep. 362. 13 J. 29
Israel v. Douglass, 1 H. Bl. 239...
12 J. 280 283
14 J. 416
13 J. 29
11 J. 89
•
J
Jackson r. Bartlette, 8 Johns. 361,
365 13 J. 102, 550
. 569, 570
Jackson v. Bowen, 1 Cai. 858 . . . . 12 J. 454
15 J. 457
15 J. 353
13 J. 205
Jackson t>. Brownell, 1 Johns. 267. 14 J. 367
Jackson P. Bryan, 1 Johns. 822,
324 18 J. 108, 110, 111
321, 465
Jackson t>. Bull, 1 Johns. Cas. 81,
85, 90 . 12 J. 141, 204 ; 18 J. 414
11 J 4
Jackson v. Bull, 10 Johns. 19
14 J 86
13 J. 552 ; 15 J. 171
1 448, 449
Jackson p. Bull, 10 Johns 148
12 J. 392, 893
11 J. 810
Jackson t>. Burtis, 14 Johns. 391... 15 J. 847
Jackson r. Carpenter, 11 Johns.
539 14 J. 126
14 J. 480
Jackson P. Clark, 3 Johns. 424
'. 18 J. 236; 15 J. 351
. 463, 466
12 J. 75
11 J. 403
12 J. 278
14 J. 159
Jackson t>. Clark, 7 Johns. 217 15 J. 120
Jackson P. Coleman, 2 Johns. 391.. 12 J. 898
Jackson c. Corliss, 7 Johns. 581 ... 15 J. 280
Jackson t>. Deiffendorf, 3 Johns.
269, 270 11 J. 164 ; 18 J. 377
14 J. 32
15 J. 249
Jackson «. DeLancey, 13 Johns.
587,551 15 J. 171, 172
14 J. 178
15 J. 88
Jackson P. Demont, 9 Johns. 55, 59
12 J. 490; 18 J. 468
14 J. 405
15 J. 402
18 J. 208
Jackson P. Deyo, 3 Johns. 422 18 J. 108
Jackson t>. Dunlap, 1 Johns. Cas. 114 12 J. 422
Jackson P. Dunsbagh, 1 Johns. Cas.
91,95 11 J. 351 ; 15 J. 463
13 J. 28
12 J. 201
12 J. 531
13 J. 92
Jackson P. Fairbank, 2 H. Bl. 340. 15 J. 4
Jackson t. Foster, 12 Johns. 490.. 13 J. 413
Jackson P. Fuller, 4 Johns. 215.... 18 J. 108
Jackson p. Given, 8 Johns. 139,
140 12 J. 245; 18 J. 414
H
vii
CITATIONS.
Jackson ®. Hart, 12 Johns. 77- .13 J. 523,
Jackson ®. Hathaway, 15 Johns. 447 15 J.
Jackson v. Henry, 10 Johns. 185,
197 ..... ................ 14 J. 415,
Jackson v. Howe, 14 Johns. 406. .. 15 J.
Jackson v. Hudson, 3 Johns. 375,
386 ................ 12 J. 245; 13 J.
Jackson v. Ingraham, 4 Johns. 182. 12 J.
Jackson v. Jackson, 1 Johns. 424,
432 ............ 13 J. 205, 208; 15 J.
Jackson v. Ketchum, 8 Johns. 479.
..... . .......... ... 12 J. 488; 13 J.
Jackson v. Kisselbrack, 10 Johns.
336 ........ ..... . ............ 15 J.
Jackson v. Kniffen, 2 Johns. 35. .. 15 J.
Jackson v. Le Long.. 9 Johns. 43.. 15 J.
Jackson v. Limerick, 9 Johns. 129. 14 J.
Jackson v. Lindsey, 3 Johns. Gas.
86 ............. . ...... _______ 13 J.
Jackson v. Longhead, 2 Johns. 75. 13 J.
Jachson M'Kee, 8 Johns. 429. ..... 13 J.
Jackson®. Merrill, 6 Johns. 185.. . 11 J.
Jackson v. Myers, 3 Johns. 388 ____
................... 13 J. 236; 15 J.
Jackson ®. Neely, 10 Johns. 374. . . 15 J.
Jackson v. Niven, 10 Johns. 335... 13 J.
Jackson v. Ogden. 1 Johns. 156 ____ 13 J.
Jackson v. Pierce, 2 Johns. 226 ____ 14 J.
Jackson p. Plumbe, 8 Johns. 378 ..
.... ........... _________ 14 J. 246,
Jackson v. Phelps, 3 Cai. 62 ......
.. ..... _____ ..... 14 J. 405
Jackson v. Raymond, 1 Johns. Gas.
85
15 J.
15 J.
Jackson v. Richard, 2 Cai. 343 ____
_________ 11 J. 182*12 J. 424; 13 J.
Jackson v. Rogers, 1 Johns. Gas.
36 _______ .................. 13 J.
Jackson v. Rowan, 7 Johns. 330. .. 13 J.
Jackson v. Shoonmaker, 2 Johns.
230, 234 ...... . 12 J. 201, 368 ; 15 J.
Jackson v. Schoonmaker, 4 Johns.
163 ........... . ..... ________ 12 J.
Jackson ®. Sellick, 8 Johns. 262,
269 ..... .13 J. 468; 14 J. 406: 15 J.
Jackson v. Sharp, 9 Johns. 167 ____ 12 J.
Jackson v. Sharp, 14 Johns. 472... 15 J.
Jackson v. Shearman, 6 Johns. 21. 15 J.
Jackson v. Sill, 11 Johns. 201, 218,
220. ..- _______ 13 J. 533 ; 14 J. 12,
Jackson v. Smith, 5 Johns. 112 ____ 15 J.
Jackson v. Stanley. 10 Johns. 133.
...... ... 12 J. 82, 83, 86; 13 J. 522,
Jackson t>. Steenbergh, 1 Johns.
Cas. 153 ....... ______ 11 J. 97; 13 J.
Jackson v. Stiles, 4 Johns. 498 _____ 15 J.
Jackson v. Striker, 1 Johns. Cas.
286 _____ ..................... 14 J.
Jackson v. Todd, 2 Cai. 183 ..... . 13 J.
Jackson v. Van Dalfsen, 5 Johns.
48 ................ .. ......... 14 J.
Jackson v. Vreedenburgh, 1 Johns.
162,163 ........... 12 J. 248 ; 15 J.
Jackson v. Walsworth, 1 Johns.
Cas. 372 _____________ ...... .. 13 J.
Jackson v. Wass, 11 Johns. 525 ____ 12 J.
Jackson v. Wheeler, 10 Johns. 164.
166 __________ ...... 12 J. 490; 13 J.
Jackson v. White, 1 Peters' Adm. • i
179 ............ _________ ..... 12 J.
Jackson, exdem. Norton, v. Willard,
4 Johns. Rep. 42.. ........... 11 J.
Jackson v. Wilsey, 9 Johns. 269... 13 J.
24
524
491
441
345
376
367
146
414
351
292
200
360
495
108
507
348
351
570
Ill
495
415
416
345
316
471
121
Ill
114
472
117
368
265
237
45
157
524
464
586
353
120
415
292
207
192
413
531
538
Ill
Jackson ®. Wilson, 3 Johns. Cas.
295 11 J. 4
Jackson ®. Winslow, 2 Johns. 80. .
14 J. 405; 15 J. 345
Jackson v. Wood, 7 Johns. 290. ..
14 J. 182, 475
Jackson, ex dem. Cooch, ®. Wood,
12 Johns. 73. 12 J. 356
Jackson ®. Woolsey, 11 Johns. 455. 13 J. 223
Jacomb ®. Harwood, 2 Ves. 267. . . 11 J. 22
Jacobson «. Fountain, 2 Johns. 176. 14 J. 259
Jacobson «. Ex'rs of LeGrange, 3
Johns. 200 13 J. 380
James v. M'Kernon, 6 Johns. 565. _ 14 J. 516
James ®. Rutlech, 4 Co. 176 11 J. 55
James ®. Tutney, Cro. Car. 532. .. 14 J. 386
James ®. Walruth, 8 Johns. 410... 14 J. 401
Jaques®. Nixon, 1 T. R. 280 14 J. 424
Jason ®. Jervis, 1 Vern. 286. 12 J. 534
Jelsey ®. Robinson, Owen, 88 11 J. 351
Jenkins ®. Turner, 1 Ld. Raym.
109 13 J. 339
Jenkins®. Union Turnpike Co., 1
Cai. Cas. 86 11 J. 100-
Jennings®. Camp, 13 Johns. 94. ..
13 Johns. 392; 14 J. 327
Jennings ®. Newman, 4 T. R. 347. 12 J. 350
Johnson ®. Beardslee, 15 Johns. 4_. 15 J. 520
Johnson ®. Bloodgood, 1 Johns.
Cas. 51 12 J. 345; 13 J. 22
Johnson ®. Child, 1 Bro. C. C. 94. . 14 J. 42
Johnson ®. Collins, 1 East, 98, 104.
12 J. 281, 283; 15 J. 12
Johnson®. Hart, 3 Johns. Cas. 329. 11 J. 538
Johnson ®. Weed, 9 Johns. 310
11 J. 412, 520
Jolland ®. Stainbridge, 3 Ves., Jr.
478.. 15 J. 570
Jolley ®. Taylor, 1 Camp. 143 13 J. 92
Jones ®. Caswell, 3 Johns. Cas. 29- 13 J. 114
Jones®. Hake, 2 Johns. Cas. 60... 15 J. 56
Jones®. Moore, 5 Bin. 573 11 J. 148
Jones®. Pope, 1 Saund. 38 14 J. 480
Jones®. Reid, 1 Cai. 594 ... 12 J. 467
Jones®. Spurron, 5 T. R. 257 12 J. 237
Josselyn ®. Ames, 3 Mass. 274
12 J. 161 ; 13 J. 177
Judson ®. Wass, 11 Johns. 525 14 J. 456
Julia, The, case of, 8 Cranch, 189. - 15 J. 353
K ;'.7i ,.'
Kellogg ®. Ingersoll, 2 Mass. 97
15 J. 491, 552
Kellogg's Adm'rs®.Wilcox, 2 Johns
377 12 J. 289
Kemp®. Mackrell, 2 Ves. 580 12 J. 506
Kendrick ®. Delafield, 2 Cai. 71, 72
_ -..11 J. 46; 13 J. 457
Kensington®. Inglis, 8 East, 273. . 15 J. 342
Kent®. Lowen, 1 Camp. 177. 13 J. 46
Kent ®. Sponder, Cro. Eliz. 331 ... 11 J. 19
Kent ®. Welch, 7 Johns. 258 11 J. 123
Kewley r. Ryan, 2 H. Bl. 343. ,11 J. 261, 264
Kibbe.®. Kibbe, Kirby, 119, 13 J.
206 15 J. 142
Kilburn ®. Woodworth, 5 Johns.
37, 41 13 J. 206; 15 J. 142
Kilmore®. Sudani, 7 Johns. 530... 15 J. 492
King ®. Alme, 3 Salk. 224 ; 1 Ld.
Raym. 486 12 J. 477
King®. Bengough, 3 Salk. 287.... 12 J. 46-
King ®. Burgess, T. Raym. 85 ; 1
Keb. 343.. . 12 J. 48-
CITATIONS.
viii
King v. Chaloner, 1 Sid. 1 6 ; 1
Keb. 572, 585; 1 Lev. 113.... 12 J. 44
King P. Dean, &c., Trinity Chapel,
Dublin, 2 Bro. P. C. 554 12 J. 50
King v. Edwards. 4 T. R. 440 13 J. 88
King r. El well, Str. 794.. 12 J. 45
King P. Ford, Yelv. 99 Cro. Jac.
151 12 J. 47
King r. Inhab'ts of Castell Carei-
nion, 8 East, 77 18 J. 84
King v. Inhab'ls of Chailey, 6 T.
R. 755 14 J. 470
King r. Inhab'ts of Middlezoy, 2 T.
B.44 12 J. 226
King r. Inhab'ts of Offchurch, 3 T.
R. 114 14 J. 471
King P. Inhab'ts of Roach, 6 T. R.
248 11 J.
King P. Inhab'ts of St. Michael,
Doug. 630 14 J.
Kinge. Lara, 6 T. R. 565 14 J.
King P. Marrow, Cas. temp. Hardw.
164.. 12 J.
King r. Mailing, Ventris, 229, 230. 11 J.
King P. Nicholson, 1 Str. 303 15 J.
King v. Rhodes, 4 T. R. 220 15 J.
King P. Shepherd. 4. T. R. 381 .... 15 J.
Kingr. Stacey, 1 Sid. 287 12 J.
King P. Warden of the Fleet, Rep.
temp. Holt, 134 14 J.
Kingc. Webb, 2 Show. 166 12 J.
Kingston, Duchess of, case of, 11
St. Tr
....13 J. 579, 582. 583, 585; 14 J.
Kingston ». Phelps, Peake's N. P.
227 12 J.
Kinnereley t>. Orpe, Doug. 499.... 14 J.
Kip P. Brigham, 7 Johns. 172 14 J.
Kitchen p. Buckley, 1 Lev. 109 ; T.
Raym. 80 14 J.
Knights. Criddle, 9 East, 48 12 J.
Kohne «. Ins. Co. of N. A., 1 Con-
dy's Marsh., n. 75 12 J.
Kortz v. Carpenter, 5 Johns. 120,
121 13 J. 105, 238; 15 J. 490,
Leavenworth e. Delafleld, 1 Cai.
573.
11 J. 321. 332, 333, 385
160
472
372
48
351
388
297
387
46
396
88
401
81
327
94
396
136
545
Lacaussade t>. White, 7 T. R. 525.. 11 J
Lacon, ». Hooper, 6 T. R. 226 15 J
Ladd v. Blunt, 4 Mass. 403 12 J,
Lade, Sir John v. Shepherd, 2 Str,
1004
Lambert t>. Stroother, Willes, 221.. 18 J
Lane P. Bacchus, 2 T. R. 44 11 J
Lane r. Degberg, Bull. N. P. 244.. 18 J
Lansing v. Fleet, 2 Johns. Cas. 2
Lansing «. Oaine, 2 Johns. 800 ... 11 J.
Lansing v. Lansing, 8 Johns. 454.. 11 J.
Lastlow t>. Thomlinson. Hob. 88. 12 J.
Lavender ». Blackstone, 3 Lev. 146. 15 J.
Lawrence v. Hopkins, 13 Johns.
288 15 J.
Lawrence v. Knies, 1Q Johns. 142.. 18 J.
Lawrence v. Sebor, 2 Cai. 208 11 J.
Lawrence t. Van Home, 1 Cai.
276
28
120
208
15 J. 453
151
198
585
15 J. 259
546
28
401
587
520
47?
812
Lawrenson v. Butler, 1 Sch. & Lef.
13.
11 J. 812
14 J. 489
Lawton ». Com'r, of Cambridge, 2
2Cai.l79 .. 12 J. 49; 15 J. 688
Layfleld «. , Salk. 292 15 J. 181
Layton e. Pearce, Doug. 14 14 J. 55
LeCaux v. Eden, Doug. 594, 610,
614, n.
..11 J. 588; 13 J. 283; 14 J. 289,
15 J.
18 J.
Lee t». Vincent, Cro. Eliz. 26.
14 J. 554;
Leeds, Duke of, P. Munday, 3 \Y».
848
291
848
.V)S
120
Lefflngwell v. Pierpont, 1 Johns.
Cas. 100 15 J.
Legh P. Legh, I Bos. & P. 447 11 J. 4»
LeGuen t>. Gouverneur, 1 Johns.
Cas. 436 14 J. 77
LeGuen v. Gouveneur, 1 Johns.
Cas. 528
LeNevep. LeNeve, 8 Atk. 646
Lenox t. United Ins. Co., 8 Johns.
Cas. 178
Leonard v. Vredenbergh, 8 Johns.
29, 39.... 11 J. 223; 13 J. 177;
Le Roy p. Gouverneur, 1 Johns.
Cas.
12 J.
15 J.
11 J.
15 J.
14 J.
Le Sage t>. Coussmaker. 1 Esp. N.
P. 187
Leslie v. Pounds. 4 Taunt. 651
Levy v. Wallis, 4 Dall. 167
Lewis v. Casgrave, 2 Taunt. 2
Lewis v. Norton. 1 Wash. 76
Liddard, v. Lopes, 10 East. 529 ...
Linch, v. Hooke, 6 Mod. 311 ; Salk.
7
Lindo v. Rodney, Doug. 591 n. 14 J
Linnendoll p. Doe, 14 Johns. 222. .
Linningdale P. Livingston, 10 Johns.
13 J.
14 J.
11 J.
13 J.
12 J.
15 J.
15 J.
291,
14 J.
58
570
332
427
145
380
204
113
303
463
337
549
292
358
36.
13 J. 97 ; 14 J. 327
Littlefield v. Storey, 3 Johns. 425..
11 J.49; 13 J.
Liviep. Janson, 12 East, 648 11 J.
Livingston v. Delafleld, 1 Johns.
522 12 J.
Livingston v. Hastie, 2 Cai. 246,
248 11 J. 546; 13 J.
Livingston v. Maryland Ins. Co., 6
Cranch, 274 12 J.
Livingston v. Rogers, 1 Cai. 583,
585, 586 12 J. 400, 401; 14 J.
Livingston v. Roosevelt, 4 Johns.
251 11 J.
Lloyd v. Maund, 2 T. R. 760 11 J.
Lloyd v. Powis, 1 Dick. 16 12 J.
Lloyd v. Williams, 2 Bl. Rep. 792.. 15 J.
Lo. v. Saunders. Cro. Jac. 166 12 J.
Lodge P. Phelps, 1 Johns. Cas. 139. 14 J.
cited in
Lolly's case,
Long p. Jackson, 2 Wils. 8 11 J.
Longchamp v. Kenny, Doug. 186.. 11 J.
Longworth P. Hockmore, 12 Mod.
144: 1 Ld. Raym. 444
Lord v. Francis. 12 Mod. 408
Lotan r. Cross, 2 Camp. 464 .
Lovedale P. C'laridge,
Comvn. 451.
11 J.
11 J.
11 J.
14 J.
13 J.
22
15
516
52
516
192
547
147
506
168
241
340
208
57
471
282
413
492
218
Low v. Rice, 8 Johns. 409
Lowry, p. Lawrence, 1 Cai. 70, 71.
12 J. 181; 15 J. 826
Lowthal P. Tonkins, 2 Eq. Cas. Abr.
381
12 J. 406, 407
Lundie r. Robertson, 2 Camp. 107. 14 J. 204
Lush P. Wilkenson, 5 Ves. 384 . 12 J. 557
I.vniK- Regis, case of, 10 Co. 125 b. 18 J. 89
Lytlep. Lee, 5 Johns. 118 12 J. 491
Lytledale P. Dixon, 4 Bos. & P. 151 . 12 J. 516
CITATIONS.
M
M'Menomy v. Ferrers, 3 Johns. 71,
84 12 J. 281, 347; 15 J. 585
M'Millan v. Vanderlip, 12 Johns.
165, 166 13 J. 53, 96, 392
M'Nitt v. Clarke, 7 Johns. 465 11 J. 60
M'Quirk v. Ship Penelope, 2 Pet.
Adm. Dec. 276 11 J. 280
Macbeath®. Haldiman, 1 T. R. 172.
..12 J. 448, 449
M'Claughry v. Wetmore, 6 Johns.
82 -- 13 J. 80
M'Coombe v. Ex'rs of Hudson, 2
Ball. 73 - 13 J. 207
M'Cu'llum v. Gourley, 8 Johns. 147. 11 J. 29
M'Cutchen v. M'Gahay, 11 Johns.
281- 12 J. 295
M'Dougall v. Sitcher, 1 Johns. 43.. 13 J. 344
Macdowall ®. Fraser, Doug. 260- .. 12 J. 515
M'Evers v. Mason, 10 Johns. 213,
214 12 J. 284; 15 J. 12
M'lver ®. Humble, 16 East, 169.-.. 14 J. 204
Mackally's case, 9 Co. 68 12 J. 181
M'Kernon v. James, 6 Johns. 560,
561, 564, 565 14 J. 42
M'Kim ®. Smith, 1 Hall's L. J. 486.
12 J. 282, 284
Maggrath v. Church, 1 Cai. 196,
212.-.- 14 J. 145
Maigley v. Hauer, 7 Johns. 342 14 J. 211
Main v. Prosser, 1 Johns. Cas. 130. 12 J. 466
Maleverer v. Redshaw, 1 Mod. 35 .. 14 J. 465
Malone v. Bell, 1 Pet. Adm. Dec.
139 13 J. 391
Manby v. Scott, 1 Sid. 1*30 15 J. 549
Manchester, Earl of, v. Vale, 1
Saund.27 11 J. 19
Mancius v. Lawton, 10 Johns. 23. . 12 J. 83
Manhood ®. Erick, Cro. Eliz. 718.. 11 J. 517
Manilla, The, case of, 1 Edw. Adm.
Rep. 1 13 J. 587
Mann v. Mann, 14 Johns. 1 14 J. 40
Mann v. Pearson, 2 Johns. 40 15 J. 473
Manning v. Manning, 1 Johns. Ch.
533 14 J, 415
Marine Ins. Co. v. Hodgson, 6
Cranch,206-.. 12 J. 50
Marine Ins. Co. ®. Tucker, 3
Cranch, 384, 388--..11 J. 261, 263, 265
Markle®. Hatfield, 2 Johns. 459. .. 11 J. 414
Marks v. Marriot, 1 Ld. Raym. 114. 15 J. 199
Marlow v. Smith, 2 P. Wms. 198.. 13 J. 557
Marshall v. Union Ins. Co., 1 Con-
dy's Marsh. 473 b, n 12 J. 516
Marshalsea, case of, 10 Co., 76 .... 13 J. 447
Marston®. Hobbs, 2 Mass. 433 14 J. 252.
Martin v. Moss, 6 Johns. 126 15 J. 477
Martin®. Smith, 6 East, 562 14 J. 400
Mary, The, case of, 9 Cranch, 147- 15 J. 37
Maryland Ins. Co. v. Rudens, 6
Cranch, 338---. 12 J. 516
Masters®. Lewis, Ld.Raym. 56 13 J. 207
Mayor ®. Knowles, 4 Taunt. 634. . .' 13 J. 447
Mayor, &c., of Northampton ®.
Ward, 1 Wils. 107 15 J. 453
Mead®. Billings, 10 Johns. 99 14 J. 376
Meadows v. Duchess of Kingston,
Amb. 756 18 J. 154
Mellor®. Barber, 3 T. R. 387 13 J. 450
M. E. Ch. v. Jaques, 3 Johns. Cas.
97 -. 15 J. 19
Meux®. Howell, 4 T. R. 14 15 J. 588
Middleditch v. Sharland, 5 Ves. 87. 12 J. 531
Middleton®. Price, Str. 1184 11 J. 19
Middlewood v. Blakes, 7 T. R. 162. 14 J. 59
Miller v. Hackley, 5 Johns. 385 12 J. 425
Miller v. Miller, 8 Johns. 74 1 3 J. 49
Miller v. Taylor, 4 Burr. 2406 13 J. 24
Mills® Duryee, 7 Cranch, 481 15 J. 143
Milne's case, 2 East, Ch. L, 602- .. 13 J. 93
Mima Queen v. Hepburn, 7 Cranch.
297-- 14 J. 119
Mitchell 0. Oldfield, 4 T. R. 123..-
14 J. 70, 75; 15 J. 406
Mitchell V. Tarbutt, 5 T. R. 65 14 J. 427
Mitchinson ®. Hewson. 7 T. R. 348. 15 J. 404
Moffat, Ex'rs of, v. Strong, 10
Johns. 13 11 J. 347
Monell®. Weller, 2 Johns. 8 14 J. 445
Money®. Leach, 3 Burr. 1742 12 J. 518
Moore ®. Jones, Ld. Raym 537. .. 12 J. 198
More®. Watts, 12 Mod. 428 14 J. 268
Morgan, Ex-parte, 10 Ves. 101 13 J. 556
Morgan ®. Richardson, 1 Camp.
40%.-- -. 11 J. 51
Morris®. Phelps, 5 Johns. 49 12 J. 127
Moravia ®. Levy, 2 T. R. 483, n 12 J. 230
Morgan®. Dyer, 10 Johns. 161 11 J. 226
Morgan ®. Scudamore, 3 Ves. 195. - 12 J. 506
Morison®. Tumour, 18 Ves. 183--- 14 J. 488
Morton®. Lamb, 4 T. R. 125 12 J. 212
Mosher ®. Hubbard, 13 Johns. 512. 15 J. 520
Moss®. Gallimore, Doug. 280 11 J. 171
Mostyn ®. Fabrigas, Cowp. 172, 175,
176 11 J. 160; 12 J. 267; 14 J. 137
Mount v. Waites, 7 Johns. 434 11 J. 29
Munn ®. The Commission Co., 15
Johns. 44 .--. 15 J. 357
Munn ®. Wilsmore, 3 T. R. 529 12 J. 549
Munro®. Allaire, 2 Cai. 327 15 J. 199
Murgatroyd ®. Crawford, 3 Dall.
491... 12 J. 516
Murray®. Ballou, 1 Johns. Ch. 576. 15 J. 315
Murray ®. Burling, 10 Johns. 172- . 15 J. 188
Murray ®. Col. Ins. Co., 4 Johns.
443 -. 11 J. 310
Murray®. Tilly, 11 J. 148
Muscot®. Ballet, Cro. Jac. 369 14 J. 252
N
Nash®. Preston, Cro. Car. 190
15 J. 462, 461
Neilson ®. Blight, 1 Johns. Cas.
205..- 12 J. 281
Neilson ®. Col. Ins. Co., 8 Cai.
108. 14 J. 145
Nevin ®. Belknap, 2 Johns 589 14 J. 48
Newmarck ®. Clay, 14 East, 239... 12 J. 411
Newstead®. Searles, 1 Atk. 264.. . 12 J. 549
Newton ®. Preston, Prec. in Ch.
104 - 14 J. 10
Niblet®. Smith. 4 T. R. 504 14 J. 134
Nicholson ®. Gouthit, 2 H. Bl. 609. 11 J. 182
Nightingal ®. Devisme, 5 Burr.
2589 - *. 11 J. 471
Nix®. Cutting, 4 Taunt. 18 14 J. 83
Nixon®. Hyserott, 5 Johns. 58..".- 12 J. 443
Norfolk, Duke of, case of, 7 Mod.
39 11 J. 462
Norfolk, Duke of, ®. Worth, 1
Camp. 837 11 J. 28
Norris®. Trift, 3 Salk. 277. 14 J. 553
Norton ®. Harvey, cited in 2 Saund.
48... - 11 J. 18
CITATIONS.
Norton *. Simmes. Hob. 14 14 J. 465, 466
Norville *. St. Barbe, 5 Bos. & P.
439 14 J. 61
Norwood *. Qrype, Cro. Eliz. Tfl
11 J. 517
Nunn *. Wilsmore. 8 T. R 528 15 J. 585
Nutt P. Bourdieu. IT. R. 830 13 J. 458
Oates v. Brydon, 3 Burr. 1895, 1897
11 J. 462, 463
Oldham v. Peake, W. Bl. 959 12 J. 240
Oliet v. Bessey, 2 T. Jones, 214 ... 12 J. 272
Oliver Union Ins. Co., 3 Wheat.
183 15 ,L 529
Onslow *. Home, 8 Wils. 184 18 J. 39
Osborne c. Duke of Leeds, 5 Ves.
841 n 18 J. 558
Ormond ». Anderson. 2 Ball. & B.
870 14 J. 489
Ormond Lady v. Hutchinson, 13
Ves., Jr. 51 14 J. 513
Otley «. Manning, 9 East, 69 12 J. 550
Outram v. Morewood, 8 East, 346,
366 14 J. 82
Overseers of Poor of Schaghticoke
9. Overseers of Poor of Bruns-
wick, 14 Johns. 199 14 J. 470
Overseers of Poor of Tioga *. Over-
seers of Seneca. 13 Johns. 380, 15 J. 440
Overseers of Poor of Washington
v. Overseers of Stanford, 3
Johns. 193 13 J. 248
Owen*. Davies, 1 Ves. 82 14 J. 488
Owen *. Qooch, 2 Esp. Rep. 567... 15 J. 2
Owenson v. Morse. 7 T. R. 66 11 J. 413
Paine v. Cave, 3 T. R. 148 12 J. 401
Pain t>. Packard, 13 Johns. 174. .. 15 J. 434
Palgraveu. Windham, 1 Str. 212.. 12 J. 384
Palmer r. Mulligan, 8 Cai. 818 ... 15 J. 2.18
Palmer*. Stone, 2 Wils. 96 14 J. 184
Pangburn v. Patridge, 7 Johns.
142 14 J. 87
Pangburn t. Ramsay, 11"^ Johns.
142 18 J. 81
Parker *. At field, 1 Ld. Raym. 678;
1 Salk. Ill ; 12 Mod. 527 11 J. 19
Parr*. Etiason, 1 East. 95 15 J. 587
Parsloe*. Bailey, 1 Salk. 76 11 J. 191
Parson v. Gill. 7 T. R. 21, n 12 J. 406
Partridge *. Strange, 1 Plowd. 80,
88; 1 Dyer, 746 18 J. 468
Passell v. Godsall, cited in 2 T. R.
44 12 J. 226
Pawling *. Bird's Ex'rs, 13 Johns.
192 15 J. 142
Payne v. Drew. 4 East, 586. 587... 12 J. 479
Payne *. Eden, 3 Cai. 218 12 J. 810
Paynes *. Coles, 1 Mun. 894 14 J. 83
Pearce «. Chamberlain, 2 Ves. 88.. 15 J. 82
Pearson*. Bailey, 10 Johns. 219... 18 'J. 346
Pender r. Hcale, 8 Bro. P. C. 178.. 12 J. 50
Pendlebury r. Elmott, Cro. Eliz.
268 11 J. 19
Penfield *. Carpender, 18 Johns.
850 15 J. 195
People c. Babcock, 7 Johns. 201,
304 12 J. 298; 14 J. 872
People *. Barret, 1 Johns. 66 18 J. 851
People r. Herrick, 13Johns.82 14 J. 184
People *. Jansen, 7 Johns. 332, 336.
18 J. 174. 384
People v. King, 2 Cai. 98
11 J. 509; 13 J. 348
People *. Landt. 2 Johns. 875 15 J. 209
People r. Leonard, 11 Johns. 509. . 13 J. 343
People*. Ruckel, 8 Johns. 468... . 11 J. 509
People*. Shaw, 1 Cai. 125 12 J. 48
Percival «. Jones, 2 Johns. Cas. 49,
51 . 11 J. 445; 18 J. 328
Perkin*. Proctor, 2 Wils. 382 12 J. 267
Perley *. Chandler, 6 Mass. 454. . 15 J. 453
Peters *. Brown, 4 Esp. N. P. 46.. 11 J. 147
Peters*. Henry, 6 Johns. 278 13 J. 560
Peyton ». Hallett, 1 Cai. 863, 864..
...12 J. 347; 18 J. 471
Phelps «. Holker, 1 Dall. 261
18 J. 206; 15 J. 142
Phillips ». Biron, Str. 509 11 J. 19
Phillips *. Johnson, 8 Johns 54 11 J. 517
Phillips*. Blagge, 3 Johns. 141... 11 J. 82
Phin «. Royal. Exch. Ass. Co., 7T.
R. 508 12 J. 137
Phoenix Ins. Co.*. Fiquet, 7 Johns.
383 11 J. 51
Pickering *. Dowson, 4 Taunt.
786 18 J. 404
Pierson v. Dunlop, Cowp. 572, 573.
12 J. 284; 15 J. 12
Pierson v. Hooker, 8 Johns. 70. ..
14 J. 175, 888
Piggot v. Penrice, Rep. temp. Finch,
472...... .....:. 14 J. 76
Pigot's case, 11 Co. 26 15 J. 297
Pike *. Crouch, 1 Ld. Raym. 730.. 15 J. 544
Pillans «. Van Mierop, 3 Burr.
1663 15 J. 12
Finder t>. Morris, 3 Cai. 165 15 J. 406
Pitcher*. Livington, 4 Johns. 1..
11 J. 513; 13 J. 51
Pitman ». Maddox, 2 Salk. 690 ... 12 J. 463
Platt v. Adm'rs of Smith, 1 Johns.
Cas. 276 14 J. 449
Platt r. Storer, 5 Johns. 846 11 J. 458
Poole, Ex-partc, 1 Ves., Jr. 160.... 15 J. 888
Pordage r. Cole. 1 Saund. 320 n, 4. 12 J. 466
Portington's case, 10 Co. 48 15 J. 112
Posson r. Brown, 11 Johns. 166... 13 J. 185
Post *. Phoenix Ins. Co., 10 Johns.
79 11 J. 313
Potter*. Case, 8 Johns. 211 12 J. 463
Potts ». Bell. 8 T. R. 554 15 J. 84
Poultnev*. Holmes, Str. 405 15 J. 279
Poultney t. Ross, 1 Dall. 238 12 J. 464
Powdick*. Lyon, 11 East, 565.... 11 J. 22
Powers *. Lockwood, 9 Johns. 138
... 11 J. 442; 13 J. 462
Pratt c. Petrie. 2 John. 191 .. ... 13 J. 479
Preston *. Ferrand, 2 Bro. P. C.
179 12 J. 50
Preston *. Merceau, 2 Bl. Rep.
1249 14 J. 211
i Price r. Torrington, 1 Salk. 285... 12 J. 463
i Priddle's case. Leach, 882 18 J. 88
! Prigge. Adams, 2 Salk. 674 15 J. 156
| Prodgers t. Langham, 1 Sid. 188.. 11 J. 587
iProudflt*. Henman.SJohns. 391. 11 J. 407
! Pullen t. Birkbeck.Buller, 104 .... 12 J. 215
Purdy*. Delavan, 1 Cai. 814. 315.. 14 J. 108
i Putnam *. Wyley, 8 Johns. 432,
485 11 J. 383,884; 12 J. 815
27
CITATIONS.
Quantlock 0. England, 5 Burr. 2630;
Cowp. 548 ; "Peake's N. P. Cas.
93 11 J. 147
Queen®. Taylor, 7 Mod. 123 13 J. 343
R
Rafael v. Verelst, 2B1. Rep. 1058- . 14 J. 137
Randall v. Randall, 7 East, 81 14 J. 106
Randle ». Blackburn, 5 Taunt. 245. 15 J. 424
Rapid, The, case of, 8 Cranch, 155. 15 J. 35
Ratcliffe*. Bishop, 1 Keb. 865 13 J. 29
Rathbone v. Warren, 10 Johns. 587. 14 J. 72
Rawson v. Johnson, 1 East, 203. .. 12 J. 212
Rawson *. Turner, 4 Johns. 469. .. 13 J. 122
Ray v. Lister, 1 And. 384, 385 15 J. 3J9
Raynes*. Clarkson, 1 Phillim. 22. . 14 J. 492
Raymond 0. Bearnard, 12 Johns.
274 13 J. 96,365; 14 J. 327
Read 0. Brookman, 3 T. R. 151.. .. 11 J. 454
Read0. Dupper, 6 T. R. 361. 15 J. 406
Reed v. Pruyn, 7 Johns. 426, 428..
.... 12 J. 208; 15 J. 447
Reeve*. Farmer, 4 T. R. 146. 12 J. 313
Reide v. Wilkinson, 11 J. 148
Rex v. B'k of England, Doug. 424. 12 J. 230
Rex. *. Bigg, 3 P. Wins. 419 12 J. 230
Rex. v. Clark, Cowp. 610 14 J. 166
Rex*. Delaval, 3 Burr. 1436 13 J. 420
Rex v. Huggins, 2 Ld. Raym. 1583. 13 J. 339
Rex v. Inhab'ts of Bedford, Burr.
S. C., 57; 1 Barnard, 297 14 J. 470
Rex *. Inhab'ts of St. Nicholas,
Burr. S. C. 91, No. 28 *. 13 J. 248
Rex*. Leigh, 4 Burr. 2146-7 15 J. 388
Rex v. Marsden, 3 Burr. 1817 15 J. 387
Rex 0. Stafferton, 1 Bulst. 55 15 J. 387
Rex*. Toslin, Salk. 58T 12 J. 48
Reynolds*. Bedford, 3 Cai. 140... 13 J. 250
Reynolds *. Corp, 3 Cai. 267, 270. .
13 J. 550; 15 J. 155
Richard 0. Walton, 12 Johns. 434. . 14 J. 425
Richards *. Mar. Ins. Co., 3 Johns.
307 .. 11 J.,310
Richardson *. Backus, 1 Johns.
493 ..." 14 J. 224
Richardson *. Williams, Bull. 2f.
P. 233 14 J. 83
Right*. Beard, 13 East, 210 13 J. Ill
Right 0. Darby, 1 T. R. 162 13 J. 109
Right*. Thomas, 3 Burr. 1446. ... 11 J. 171
Rising *. Burnett, Marsh. 730. -_
11 J 312 313
Roberts *. Camden, 9 East, 96 12 j! 240
Robertson *. Ewer, 1 T. R. 132... 11 J. 321
Robertson *. French, 4 East, 130 ..
11 J. 310; 14 J. 204
Robinson *. Ex'rs of Ward, 8
Johns. 90 15 J. 142
Robinson *. Marine Ins. Co., 2
Johns. 89 14 J. 315
Rock 0. Leighton, 1 Salk. 310 ; 1
Ld. Raym. 589 14 J. 449, 450
Roe, ex dem. West, v. Davis, 7 East,
363 11 J. 4
Roe, ex dem. Wood, 0. Doe, 2 T. R.
644... 14 J. 162
Roe*. Freeman, 2 Wils. 75 11 J. 351
Roe *. Harrison, 2 T. R. 425 15 J. 279
Roe *. Reade, 8 T. R. 118
---, 11 J. 374; 13 J. 556
28
Roget *. Merritt, 2 Cai. 117, 120.. .
11 J. 413; 14 J. 487
Rooke *. Rooke, 2 Saund. 122 n. 2. 13 J. 485
Rose *. Himely, 4 Cranch, 241, 272
.. 13 J. 155, 588
Rosekrans *. Van Antwerp, 4 Johns.
228 12 J. 423
Rous 0. Hazard, cited 2 Doug. 602.14 J. 291, 293
Rowcrof t 0. Lomas, 4 Maule & S.
457 15 J. 52)5
Ruggles 0. Keeler, 3 Johns. 263. ..
13 J. 22; 14 J. 340
Runquist 0. Ditchell, 3 Esp. Rep.
64 15 J. 55
Runyan *. Nichols, 11 Johns. 547,
548 - 13 J. 303; 15 J. 231
Russell 0. Langstaffe, Doug. 514. .
12 J. 161; 13 J. 178
Russell *. The Men of Devon, 2 T.
R. 671 15 J. 254
S
Sable *. Hitchcock, 2 Johns. Cas.
79 11 J. 68
Sackrider 0. M'Donald, 10 Johns.
253 13 J. 479
Sadi 0. Morris, 2 East, Ch. L. 749.
13 J. 93, 94
St. John 0. Standring, 2 Johns.
468 15 J. 181
St. Lawrence, The, case of, 8
Cranch, 434. 16 J. 36
St. Lawrence, The, case of, 9
Cranch, 121 15 J. 36
St. Leger0. Pope, Comb. 327 12 J. 48
Sallours 0. Girling, Cro. Jac. 278 n. 11 J. 134
Salmon 0. Percival, Cro. Car. 196. 12 J. 270
Sally, The, case of, 8 Cranch, 384. 15 J. 34
Saltus *. Ocean Ins. Co., 12 Johns.
107 14 J. 144
Sands*. Hildreth, 12 Johns. 493.. 13 J. 576
Saunderson 0. Judge, 2 H. Bl. 509. 14 J. 117
Saunderson 0. Jackson, 2 Bos. & P.
237, 238 ; 3 Esp. 180 ; ^ Esp.
' 199; 1 P. Wms. 770 n...
12 J. 107: 14 J. 487, 488, 491
Sayer 0. Bennet, Watson, 382 15 J. 82
Schermerhorn 0. Schermerhorn, 3
Cai. 190. 14 J. 70, 75
Schermerhorn 0. Tripp, 2 Cai. 108. 14 J. 16&
Schermerhorn, 0. Vanderheyden, 1
Johns. 139 14 J. 211
Schermerhorn *. VanValkenburgh,
11 Johns. 529 13 J. 284
Schemerhorn 0. Weatherhead, 1
East, 537 14 J. 73
Schieffelin 0. N. Y. Ins. Co., 9
Johns 21 11 J. 15; 12 J. 112
Schmidt 0. United Ins. Co., 1
Johns. 249 11 J. 333 ; 15 J. 529
Scott 0. Libby, 2 Johns. 336, 340..
15 J. 20, 336
Scott 0. Lefford, 1 Camp. 249 .... 11 J. 232
Scott 0. Shearman, 2 W. Bl. 977...
..' 13 J. 153, 582, 584
Scott*. Surman, Willes, 400 11 J. 469
Seagood *. Meale, Free, in Ch. 560. 13 J. 301
Sears*. Brink, 3 Johns. 210 13 J. 237
Sebring *. Wheedon, 8 Johns. 458. 15 J. 470
Sergison, Ex-parte, 4 Ves. 187 13 J. 557
Service *. Hermance, 1 Johns. 91 ;
2 Johns. 96 11 J. 427, 493
CITATIONS.
xii
Seton P. Slade. 7 Ves. 275 14 J. 488
Seydt. Hay, 4 T. R. 260 12 J. 805
Seymour's case, 10 Co. 76 12 J. 267
Shannon p. Bradstreet, 1. Sch. &
Lef. 73 14 J. 87
Sharp F. United Ins. Co., 14 Johns.
201 15 J. 302
Shaw P. Ad's People. 1 Cai. 125... 18 J. 343
Sheehy p. Mandeville. 6 Cranch,
264.. 11 J. 413, 414 ; 12 J. 411 ; 14 J. 405
Sheffield F. Watson. 8 Cai. 69. 72..
12J. 388, 446, 448
Sheldon P. Sheldon's Ex'rs, 18
Johns. 222&n 14 J. 415
Shepard F. Watrous, 8 Cai 167 14 J. 105
Sherewood P. Nonnes, 1 Leon. 250. 14 J. 94
Sliiply F. Davis, 5 Taunt. 621 14 J, 332
Shirley c. Wilkinson. Doug. 896 n. 12 J.
Shoolbred P. Nut, Park, 300, 1
Marsh. 475 12 J. 134.
Shotwell, In re, 10 Johns. 806 11 J.
Silva r. Low, 1 Johns. Cas. 184. .
11 J. 261,
Simmons P. Wilmot, 3 Esp. 91 13 J.
Simond and Han key, case of, Ab-
bott, 318 15 J.
Simonds p. Catlin, 2 Cai. 61.. .13 J. 478,
Simpson F. Nardeau, Cam. & Nor.
115 14 J.
Simpson t. Patten. 4 Johns. 442... 12 J.
Simpson r. Robertson, 1 Esp. Rep.
17 18 J.
Sims P. Jackson's Adm'r, 1 Peters'
Adm. Dec. 157 12 J.
Six Carpenters' case, 8 Co. 145,
146 11 J. 387;
Skelton r. Brewster, 8 Johns. 376..
14 J. 467; 15 J.
Sluby P. Champlin, 4 Johns. 461 . . 15 J.
Smallcomb P. Cross, Carlh. 419,
420 ; 1 Salk. 320 ; 1 Ld. Raym.
251
Small P. Dudley, 2 P. Wms. 427.. . 15 J.
Smart p. Wolfe, 3 T. R. 344 14 J.
Smith P. Bouchier, Star. U93 11 J.
Smith r. Bromley, Doug. 697 11 J.
Smith P. Brush, 8 Johns. 86 15 J.
Smith P. Burke, 10 Johns. 110.-... 12 J.
Smith F. Burtis. 9 Johns. 174 13 J.
Smith P. Carrington, 4 Cranch, 64. 13 J.
Smith P. Fierce, Comb. 145 12 J.
Smith P. Hodson, 4 T. R. 211 15 J.
Smith c. Jansen, 8 Johns. Ill 15 J.
Smith P. Jones, 15 Johns. 229 15 J.
Smith c. Ludlow, 6 Johns. 267 15 J.
Smith F. Miller, 1 T. R. 475 11 J.
Smith P. Oriell, 1 East, 867 15 J.
Smith P. Smith, 2 Johns. 285, 242.
12 J. 93,
Smith P. Spinolla, 1 Johns. 198 14 J.
Smith P. Stewart, 6 Johns. 46. 48,
49 13 J. 109. 299, 492; 15 J.
Smith P. Tonstall, Carth 3 ; 13 Vin.
Abr.558 11 J.
Smithies p. Dr. Harrison 1 Ld.
Raym. 727 ; Bull. N.P.9....
Snellp. Brooks, Aug., 1812 18 J.
Sorrcll P. Carpenter, 2 P. Wms.
483 , 12 J. 534
Southwel P. Brown, Cro. Eliz.
571.
Spencer P. Hall, 1 East. 688 15 J. 899
Sperling P. Rochfort, 8 Ves. 175... 14 J. 492
15 J.
12 J.
11 J.
12 J.
515
135
510
264
382
336
474
292
291
480
v
336
402
427
167
164
583
292
19
143
213
206
120
517
406
591
195
433
4
386
181
143
847
508
140
39
Mi.-)
Spicerp. Slade, 9 Johns. 360 18 J. 461
Sprange P. Barnard, 2 Bro. C. C.
585 14 J. 491
Spurraway p. Rogers, 12 Mod.
517.... 11 J. 413
Staats v. Exr's of Ten Eyck 13 J. 51
Stafford P. Green, 1 Johns. 505 13 J. 49, 80
Stead P. Burrier, T. Rayra. 411.... 11 J. 351
Stedman t. Qooch, 1 Esp. Cas. 8. . 15 J. 341
Steenbachp. Col. Ins. Co., 2 Cai.
129 15 J. 218
Stephens p. Olive, 2 Bro. Ch. Cas.
90 12 J. 557
Sterrit P. Bull, 1 Binney, 234 12 J. 464
Sterry p. Arden, 1 Johns. Ch. 271. 15 J. 587
Stewart P. Eden, 2 Cai. 127, 152. . .
14J. 116. 117, 881
Stilibardp. Glover Barnes, 364 11 J. 196
Stileman P. Ashtown, 2 Atk. 479.. 11 J. 96
Stocker p. Harris, 8 Tyng, 409
11 J. 269; 14 J. 61
Stokes «. Moor, 1 P. Wins. 771 «... 14 J. 487
Story P. Atkins, 2 Str. 719 12 J. 93
Stratton n. Herrick, 9 Johns. 356.. 15 J. 511
Stratton p. Rastall, 2 T. R. 366. .... 12 J. 531
Strode*. Russell, 2 Vern 621 18 J. 558
Suffern P. Townsend, 9 Johns. 35. 13 J. 236
Surtees p. Hubbard, 4 Esp. Rep.
203 12 J. 283
Surtell P. Brailsford. 2 Bay, 338. . . 13 J. 550
Sutton P. Mandeville. 1 Mun. 407.. 14 J. 88
Swann P. Broome, 3 Burr. 1600. .. 12 J. 181
Symm'scase, Godb. 381. 12 J. 479
Symond P. Tweed, Prec. in Ch.
374 ; Gilb. Eq. Cas. 85 13 J. 301
Talcot t. Marine Ins. Co., 2 Johns.
136 11 J. 260
Tallmadge P. Brush, not rep'd 13 J. 174
Tarbuck P. Marbury. 2 Vern. 510.. 15 J. 588
Tattersall P. Groote, 2 Bos. & P.
Tatlock P. Harris, 3 T. R. 174.... 12 J. 94
255 12 J. 290
Tawney P. Crowther, 8 Bro. C. C.
318 13 J. 301
Taws' Ex're p. Bury, 3 Dyer, 167 b. 12 J. 546
Taylor t>. Bryden, 8 Johns. 173 18 J. 205
Taylor P. Hatch, 12 Johns. 340.... 15 J. 581
Taylor P. Higgins, 8 East, 171 12 J. 281
Taylor P. Jones, 2 Atk. 600 15 J. 168
Taylor P. Philips, 8 East. 156 12 J. 181
Tenant P. Elliott, 1 Bos. & P. 3.... 11 J. 30
Terry P. Huntington, Hard. 480... 12 J. 267
Thomas Gibbons, The, case of. 8
Cranch, 431 15 J. 87
Thomas P. Thomas, 6 T. R. 1671. .. 11 J. 219
Thompson p. Button, 14 Johns. 86. 15 J. 403
Thompson P. Jones, cited in 2 T. R.
44 12 J. 226
Thompson P. Ketchum, 4 Johns.
SWT- 14 J. 116
Thompson P. Skinner, 7 Johns.
556 18 J. 550
Thornel P. Lassels, Cro. Jac. 27... 11 J. 19
Thornton t>. Dixon, 8 Bro. Ch. 199. 15 J. 161
Thornton P. Payne, 5 Johns. 74... 15 J. 351
Thurston p. Koch, 4 Dall. 348 ; 1
Marsh. 115 11 J. 238
Timmins p. Rowlinsou. 8 Burr.
1609 18 J. 110
CITATIONS.
340
204
310
531
386
423
208
276
Tindal®. Brown, 1 T. R. 167 .....
......... 11 J. 189; 15 J.
Tinkler e. Walpole, 14 East, 226... 14 J.
Tippets ®. Walker, 4 Mass. 595..-. 13 J.
Tobey v. Barber, 5 Johns. 68, 72..
„ ...... .. 11J. 414, 520; 12 J. 411,
Tobey v. Webster, 3 Johns, 468. .. 11 J.
Tom®. Goodrich, 2 Johns. 213.... 15 J.
Tovey v. Lindsay, 1 Dows. Rep.
117 .......................... 13 J.
Towers «. Barrett, 1 T. R. 133 ____ 12 J.
Towle v. Stevenson, 1 Johns. Cas.
110 ............. .- ......... 12 J. 305
Townsend «. Susquehanna Tp'ke
Co., 6 Johns. 90 .............. 15 J. 255
Townsend ®. Windham, 2 Ves. 11. 12 J. 557
Trent Nav. Co. v. Harley, 10 East,
34.. ...................... .-- 13 J. 175
Tresham's case, 9 Co. 108 ......... 11 J. 20
Trethewy v. Ackland, 2 Saund. 48. 11 J. 18
Truscott v. Carpenter, 1 Ld. Raym.
229... ....... , .............. - 12 J. 272
Tuckers Woods, 12 Johns. 190--- 12 J. 400
Turner v. Fendall, 1 Cranch, 117,
133 ......... ... ......... 12 J. 220, 396
Turner®. Wilson, 3 Cai. 174 ...... 13 J. 471
Turwin v. Gibson, 3 Atk. 719 ..... 15 J. 407
Tuttle v. Beebe, 8 Johns. 152.. .13 J. 22, 23
Tuttle v. Maston, 1 Johns. Cas. 25. 12 J. 435
Tuttle D. Mayo, 7 Johns. 132 ...... 12 J. 276
Twine's case, 3 Co. 81 b ....... 15 J. 168, 587
Tye v. Gwynne, 2 Camp. 346 ..... . 11 J. 51
Tyler®. Littleton, 2 Brownl. 190.- 15 J. 587
Tyly ®. Morrice, Carth. 485 ........ 11 J. 109
U
Underwood v. Hithcox, 1 Ves., Jr.
279 ..................... . ..... 13 J. 301
U. S. v. Cunningham, 4 Dall. 168,% 11 J. 113
U. 8. ®. Fisher, 2 Cranch. 386 ..... 12 J. 175
U. S. v. Grundy, 3 Cranch, 337,
356 ______ 11 J. 300; 12 J. 272; 14 J. 129
U. S. v. Porter, 3 Day's Rep. 285- - 14 J. 123
Union B'k ®. Clossey, 10 Johns.
273 ___________ ...... - ..... -- 11 J.,183
Union Tp'ke Co. v. Jenkins, 1 Cai.
Cas. 86 _______ ______ ........ . 14 J. 244
Union Tp'ke Road ®. Jenkins, 1
Cai. 381 ____ ........ ......... 15 J. 318
Upton v. Vail, 6 Johns. 182 ____ 13 J. 226, 404
Vail®. Lewis, 4 Johns. 456 13 J. 257
Van Antwerp v. Ingersoll; 2 Cai.
107 13 J. 346
Van Brunt ®. Schenck, 11 Johns.
377 13 J. 415
Vandenbergh ®. Van Bergen, 13
Johns. 212 -. 13 J. 528
Van Doren v. Walker, 2 Cai. 373.. 11 J. 442
Van Doren v. Wilcox, 2 Cai. 373. . 11 J. 532
Van Eps v. Corporation of Sche-
nectady, 12 Johns. 436 13 J. 363
Van Nuys v, Terhune, 3 Johns.
Cas. 82.... 14 J. 81
Van Rensselaer v. Dole, 1 Johns.
Cas. 279 12J. 240, 241
Van Slyck ®. Kimball, 8 Johns.
198. 11 J. 478
Vaughan ®. Havens, 8 Johns. 109. . 13 J. 80
Vavasor®. Baile, 1 Salk. 52 13 J. 138
30
Vincent ®. Germond, 11 Johns. 283. 12 J. 250
Violett®. Patton, 5 Cranch. 151... 13 J. 179-
Vos v. United Ins. Co., 2 Johns,
Cas. 180 13 J. 458-
Vroman v. Phelps, 2 Johns. 177. . _ 13 J. 431
W
Waddington ®. Oliver, 5 Bos. & P.
2N. S. 61 12 J. 166-
Wailing®. Toll, 9 Johns. 141 15 J. 230
Wain v. Warlters, 5 East. 10 11 J. 22&
Wakely®. Hart, 6 Binn. 316 15 J. 224
Waldegrave's case, 12 Mod. 607. .. 15 J. 549
Walden ®. LeRoy, 2 Cai. 263 11 J. 321
Waldron ®. M'Carty, 3 Johns. 471 .
13 J. 105, 238; 15 J. 490
Walker's case, 3 Co. 23 13 J. 263
Walker ®. Burrows, 1 Atk. 94 15 J. 168
Walker®. Witter, Doug. 1 14 J. 479
Wallis ®. DeLancy, 7 T. R. 266, n. 11 J. 65
Wallis ®. Wallis, 4 Tyng, 136 11 J. 351
Walton®. Shelly, 1 T. R. 296 15 J. 274
Walton ®. Ship Neptune, 1 Peters'
Adm. Dec. 142 12 J. 336
Waples ®. Eames, 2 Str. 1244 11 J. 363
Ward ». Clark, 2 Johns. 10 13 J. 80
Ward ®. Evans, 2 Ld. Raym. 928. .
11 J. 413, 469; 12 J. 280
Ward ®. Macauley, 4 T. R. 483
11 J. 383, 386
Ward®. Snell, 1 H. Bl. 13 13 J. 306
Wardell®. Eden, 2 Johns. Cas. 121. 13 J. 22
Wardell ®. Eden, 1 Johns. 531 13 J. 22
Waring ®. Dewberry, 1 Str. 97
11 J. 186; 12 J. 383
Waring ». Lockwood, 10 Johns.
108.--. 12 J. 206
Waring®. Yates, 10 Johns. 119.. . 12 J. 289
Warne®. Constant, 5 Johns. 135.. 14 J. 403
Warren ®. Lynch, 5 Johns. 244 12 J. 198
Wash burn ®. M'Inroy, 7 Johns.
134 13 J. 253
Waterhouse ®. Skinner, 2 Bos. & P.
447 r... 12 J. 212
Watkinson ®. Laughton, 8 Johns.
213 15 J. 38
Watson's Lessee ®. Bailey, 1 Binn.
470..-. 15 J. 110
Watson ®. Christie, 2 Bos. & P.
224... ... ..- 14 J. 123
Watson®. Fuller, 6 Johns. 283 12 J. 351
Wattles®. Laird, 9 Johns. 327 13 J. 358
Waugh®, Austen, 3 T. R. 438.... 11 J. 490
Waugh ®. Bussell, 5 Taunt. 707 15 J. 297
Way®. Carey, 1 Cai. 191 12 J. 467
Way®. Modigliani, 2 T. R. 32 11 J. 267
Waymell v. Reed, 5 T. R. 596 14 J. 159
Waynam ®. Bend, 1 Camp. 175 12 J. 94
Webb ®. Martin, 1 Lev. 48 11 J. 19
Weller®. Weedall, Noy, 107 15 J. 446
Welford®. Beazley, 3 Atk. 503.-.
14 J. 487, 488
Wells ®. Newkirk, 1 Johns. Cas.
228 12 J. 467
Welsh®. Hole, Doug. 238 15 J. 406
Wendover ®. Hogeboom, 7 Johns.
308. 15 J. 303
Wennall ®. Adney. 3 Bos. & P. 247,
249.--- 13 J. 259, 382
West®. Emmons, 5 Johns. 179 12 J. 212
Weston ®. Russell, 3 Ves. & Bea.
192.. . 14 J. 489
CITATIONS.
xiv
Wetherston «. Edgington, 2 Camp.
94 ia j.
Wheelwright v. Depeyster, 1 Johns.
479,484 15 J. 174,
Wheelwright v. Wheelwright, 2
Mass. 447 13 J.
Whetherby t>. Mann, 11 Johns. 5,8. 12 J.
Whichcote r. Lawrence, 8 Ves. , Jr.
750 18 I
Whipplec. Foot, 2 Johns. 422 11 J.
Whitbeck e. Van Ness, 11 Johns.
409 15 J.
Whitcomb t>. Whiting, Doug. 652.. 15 J.
White ». Damon, 7 Yes., Jr. 34 11 J.
White t>. Hawn, 5 Johns. 351 13 J.
White v. Haywood, 2 Ves. 461 ; 1
Dick. 173 12 J.
White v. Rowland, 9 Mass. 814 ... 13 J
White P. Thurston, Arab. 553 11 J.
White t>. Wilson, 2 Bos. & P. 116.. 14 J.
U'hitehead t>. Tuckett, 15 East, 407. 15 J.
Whiteraan t>. Ship Neptune, 1 Pe-
ter's Adm. Dec. 180, 184.. 12 J. 336,
Whiting v. Sullivan. 7 Mass. 109 .. 13 J.
Whitley v. Loftus, 8 Mod. 190 14 J.
Whitney ». Crosby. 8 Cai. 89
11 J. 55; 13 J.
Wickham t>. Couklin. 8 Johns. 227. 18 J.
Wiffln r. Roberts, 1 Esp. Cas. 261 .. 18 J.
Wilbraham v. Snow, 1 Sid. 438 ; 1
Vent. 52 11 J. 389; 12 J.
Wilbur v. How, 8 Johns. 444 13 J.
Wilde v. Cantillon, 1 Johns. Cas.
123 18 J.
Wilkie r. Roosevelt, 8 Johns. Cas.
69, 206- 15 J.
Wilkinst*. Despard, 5 T. R. 112.... 11 J.
Willand t>. Fenn, cited 2 Ves. 267. . 11 J
Willes P. Glove, 4 Bos. & P. 14.... 12 J.
Williams t. Frith, Doug. 198 12 J.
Williams r. Jackson, 5. Johns. 489. 13 J.
Williams v. Lewis, 3 Day's Rep.
498 11 J.
Williams ». Rodgers, 5 Johns. 167. 12 J.
Ml
176
286
411
223
112
242
4
566
185
506
178
349
262
55
531
97
376
268
458
52
479
115
236
56
300
22
515
316
414
389
220
Williamson v. Kincaid, 4 Dall. 20. 15 J. 503
Willson t. Force, 6 Johns. 110
11 J. 53,414; 15 J. 476
Wilson, Ex-partf, 6 Cranch, 52 15 J. 156
Wilson t. Marsh, 1 Johns. 505 15 J 318
Wilson ». Reed, 8 Johns. 176 15 J. 181
Wilson t. Witherby, Bull. N. P.
110 12 J. 245
Wiltc. Ogden, 18 Johns. 56 15 J. 231
Wimbish v. Tailbois, Plowd 54... 14 J. 465
Winn v. Littleton, 1 Vern. 3, 2 Ch.
Cas 51 13 J. 556
Winton ». Saidler, 3 Johns. Cas. 185 15 J. 274
Wise v. Withers, 8 Cranch, 331 12 J. 907
Wood v. Braddick, 1 Taunt. 104. . . 15 J. 424
Wood t?. Gunston, Sty. 462 12 J. 237
Woodhull t. Holmes, 10 Johns. 231
15 J. 274, 275
Wooldridge t>. Bovdell, Doug. 16..
11 J. 362, 264, 267; 14 J. 57, 58
Woodrightt>. Wright, 10 Mod. 376. 11 J. 351
Wortley v. Birkhead, 2 Ves. 577... 14 J. 511
Wotlon v. Hele, 2 Saund. 177; 1
Mod. 290 ; 1 Lev. 301 .... 15 J. 546, 547
Wright r. Littler, 3 Burr. 1244; 1
W. Bl. 345 15 J. 291
Wrotesley v. Adams, Plowd. 191..
11 J. 214, 21S
Wyatt v. Marquis of Hertford, 8
East, 147 15 J. 277
Wyvil v. Stapleton, Str. 615 12 J. 58
Yates v. Joyce. 11 Johns, 140 14 J. 214
Yatese. People, 6 Johns. 580 15 J. 157, 158
Young v. Brander, 8 East, 10 15 J. 300
Young v. King, 8 T. R. 98 12 J. 293
Young v. Overacker, 2 Johns. 191. 11 J. 458
Zebach's Lessee t>. Smith, 3 Binn. 69
14 J. 554; 15 J. 348
Zouch v. Parsons, 8 Burr. 1804 14 J. 1','T
ACTS OF THE LEGISLATURE, CONSTRUED, EXPLAINED OR CITED.
1782, July 12, Seas. 6. ch. 2 (En-
tails) 12 J. 169
1786, Feb. 23, Sess. 9, ch. 12 (De-
scents).. .12 J. 169; 13 J. 261 ; 14 J. 405
1787, Jan. 80, Sess. 10, ch-. 6
(Waste) 12 J. 368
1787. Feb. 8, Sess. 10, ch. 18
(Usury) 13 J. 492
1787, Feb. 26, Sess. 10 ch. 44
(Frauds).... 11 J. 91, 145, 221,
283 : 12 J. 102. 408 ; 13 J. 175,
886, 508 ; 14 J. 358, 458, 484,
493; 15 J, 425, 503
1788, Feb. 6, Sess. 11, ch. 6 (Forci-
ble Entry) 12 J. 81; 13 J. 158
1788, Feb. 6, Sess. 11, ch. 6 (Forci-
ble Entry) 11 J. 504
1788. Feb. 6, Sess. 11, ch. 9 (Com-
mon Informers) 11 J. 474
1788, Feb. 6. Sess. 11, ch. 11 (Quo
Warranto) 15 J. 386
1788. Feb. 20, Sess. 11, ch. 82
(Amendment and Jeofails). . . 14 J. 184
1794, Jan. 8, Sess. 17, ch. 1 (Mili-
tary Lands) 18 J. 478
1797, March 24, Sess. 20, ch. 51
(Onondaga Titles) 18 J. 504
1798, April 2, Sess. 21, ch. 72
(Aliens) 11 J. 418, 424
1801. Feb. 20, Sess. 24. ch. 11 (Ap-
prentices) :...13 J. 270; 14 J. 374
1801. Feb. 24, Sess. 24. ch. 18 (Cer-
tiorari) 14 J. 323
1801. March 20, Sess. 24, ch. 20
(Treason) : 11 J. 549
1801, March 21, Sess. 24 ch. 44
(Promissory Notes). . .12 J. 98 ; 14 J. 23*
1801. March 21, Sess. 24, ch. 46
(Gaming) . .11 J. 31 ; 13 J. 88 ; 15 J. 5
1801, March 21, Sess. 24, ch. 47
(Pleading Action against Offi-
cers). 18 J. 443: 14 J. 166; 15 J. 188. 267
1801, March 21, Sess. 24, ch. 49
(Absent and Absconding Debt-
ors) 14 J. 160, 217 ; 15 J. 179
1801, March 80, Sess. 24, ch. 87
(Champerty and Maintenance)
18 J. 289, 466
1801. March 30, Sess. 24, ch. 88
(Stealing Bills and Note*) 18 J. 90
31
CITATIONS.
1801, March 31, Sess. 24, ch. 105
(Judgments and Executions).. 11 J. 228
1801, April, 2, Sess. 24, ch. 113
(Oaths) 11 J. 173
1801, April 3, Sess. 24, ch. 121
(State Prison) 14 J. 184
1801, April 3, Sess. 24, ch. 131 (In-
solvents).... .' 11 J. 162
1801, April 4, Sess. 24. ch. ^(Dis-
trict Attorneys) 14 J. 184
1801, April 7, Sess. 24, ch. 164
(Inns).. 11 J. 76; 13 J. 85, 253,
428;.-.. 14 J. 231
1801, April 7, Sess. 24, ch. 176
(Partition) 12 J. 246
1801, April 8, Sess. 24, ch. 183
(Limitation of Actions) ..11 J.
146 ; 13 J. 288. 500, 552 ; 14 J.
479; 15 J. 3
1801, April 8, Sess. 24, ch. 184
(Poor) 12 J. 286
1802, March 19, Sess. 25, ch. 44
(Horse Racing) 1 1 J. 31 ; 13 J. 88
1802, April 5, Sess. 25, ch. Ill
(Dutchess T'pke Co.) 15 J. 510
1803, April 5, Sess. 26, ch. 88 (Mili-
tary Lands) 15 J. 345
1804,' April 11, Sess. 27, ch. 117
(Banks) 15 J. 358
1805, April 9, Sess. 28, ch. 99
(Mortgages).. 15 J. 464, 466
1806, April 2, Sess. 29, ch. 119
(Highland T'pke Co.) 11 J. 98
1806, April 2, Sess. 29, ch. 126 (N.
Y. City) 12 J. 122
1806, April 7, Sess. 29, ch. 168
(Dower) 11 J. 510; 13 J.
..180; 15 J. 23, 533
1808, April 11, Sess. 30, ch. 204,
(Justices' Courts) 11 J. 075
1808, April 11, Sess. 31. ch. 225
(Steamboats) 15 J. 382
1809, Feb. 2, Sess. 32, ch. 10 (Jus-
tices'Courts) 11 J. 174
1809, March 29, Sess, 32 ch. 165
(Militia) 11 J. 83; 13 J.- 186
1811, April 3, Sess. 34, ch. 123 (In-
solvents).... 1 1 J. 162, 193, 224,
.491; 13 J. 9, 314; 14 J. 128
1811, April 6, Sess. 34, ch. 161
(Town of Kingston) 12 J. 252
1811, April 22, Sess. 34, ch. 67
(Manuf'g Go's.). 14 J. 238
1812, June, 19, Sess. 35, ch. 242
(Common Schools) .. 12 J. 412; 14 J. 166
1813, Feb. 25, Sess. 36, ch. 4 (Bills
of Exception) 13 J. 320
1813. Feb. 25, Sess. 36, ch. 12 (Bas-
tards) ... 14 J. 334
1813, Feb. 25, Sess. 36, ch. 13
(Oaths)... 11 J. 173
1813, Feb. 25, Sess. 36, ch. 21
(Strays) 12 J. 187
1813, March 5, Sess. 36, ch. 23
(Wills) .14 J. 15, 407; 15 J. 348
1813, March 5, Sess. 36, ch. 24 (Im-
morality: Sunday) 12 J. 180
1813, March 5, Sess. 36, ch. 27 (In-
spection of Flour) 13 J. 331
1813, March 19, Sess. 36, ch. 29
(Crimes, Cheat, Escape).. .12 J. 292, 339
1813, March 19, Sess. 36, ch. 32
(Mortgages). 14 J. 435 ; 15 J. 119, 463, 477
32
1813, March 19, Sess. 36. ch. 33
(Highways) 11 J. 432 ;
13 J. 460; 14 J. 383; 15 J. 254, 447
1813, March 19, Sess. 36, ch. 35
(Towns). .11 J. 432 ; 12 J. 433 ;
- - 13 J. 477 ; 14 J. 401 ; 15 J. 220
1813,. March 29, Sess. 36, ch. 41
(Elections) 11 J. 521
1813, April 2, Sess. 36, ch. 44 (For-
gery).... ._ 14 J. 348
1813, April 2, Sess. 36, ch. 48
(Counselors and Attorneys) ... 13 J. 465
1813, April 2, Sess. 36, ch. 50
(Judgments and Execution). .
13 J. 378, 529 ; 14 J. 162
1813, April 5. Sess. 36, ch. 52
(Taxes) 12 J. 414; 15 J. 509
1813, April 5, Sess. 36, ch. 53
(Justices' Courts). 11 J. 69, 144,
166, 168, 174, 407, 444, 457,
472, 532 ; 12 J. 205, 322, 423 ;
13 J. 185, 191, 210, 218, 227,
228, 249, 252, 328, 350, 430, 460,
462, 481, 503, 517 ; 14 J. 246,
341, 357, 369, 382 ; 15 J. 86, 196, 431, 470
1813, April 5, Sess. 36, ch. 56
(Amendment: Dilatory Pleas:
Reference: Set-off: Trespass:
Witnesses: Reversions and Re-
mainders)... 11 J. 402, 406 ; 12
J. 186; 13 J. 9, 189,263, 329,
476; 14 J 75,328,358; 15 J. 243
1813, April 5, Sess. 36, ch. 56 (Re-
mainder and Reversion) 11 J. 429
1813, April 5, Sess. 36, ch. 58
(Fines) 13 J. 426
1813, April 5, Sess. 36, ch. 63
(Rents, Distresses and Eject-
ment). -11 J. 1, 434 ; 12 J. 380;
13 J. 243, 305, 417, 537; 14 J. 125
1813, April 6, Sess. 36, ch. 67
(Sheriffs: Bail-bonds) 15 J. 259
1813, April 6, Sess. 36, ch. 69 (Jail
Liberties) 15 J. 259, 474
1813, April 6, Sess. 36. ch. 71
(Banks)... ...14 J. 205; 15 J. 358
1813, April 6, Sess. 36, ch. 75 (Dis-
tributions) 13 J. 1
1813, April 8, Sess. 36, ch. 78 (Poor)
11 J. 7, 167; 12 J. 352, 415;
13 J. 245, 270, 380 ; 14 J. 88,
199, 333, 365, 469 ; 15 J. 282, 283, 305
1813, April 8, Sess. 36, ch. 79 (Ad-
ministration) 12 J. 120; 13
.. J. 437; 14 J. 430
1813, April 8, Sess. 36, ch. 80 (Mili-
tary Lands).
-...11 J. 424; 12 J. 319; 14 J. 405
1813. April 9, Sess. 36, ch. 81 (Re-
lief of Debtors).
12 J. 373; 13 J. 121, 533; 15 J. 152
1813, April 9. Sess. 36, ch. 86 (N.
Y.. Opening Streets) 11 J. 80, 443
1813, April 9, Sess. 36, ch. 88
(Slaves).. 13 J. 322 ; 14 J. 263 ; 15 J. 283
1813, April 10, Sess. 36, ch. 92 (In-
dians) 14 J. 181, 335; 15 J. 264
1813, April 10, Sess. 36, ch. 93
(Heirs and Devisees) 13 J. 272
1813, April, 10, Sess. 36, ch. 94
(Physic and Surgery).. 14 J. 369
1813, April 12, Sess. 36, ch. 96
(Damages and Costs). .11 J. 404,
ivi
CITATIONS.
405 ; 12 J. 289; 340 ; 13 J. 306, (Commission Co.) 15 J. 53
345, 425, 465, 587; 14 J. 385 ; 15 J. 534 \ 1815, April 15, Sess. 88. ch. 22?
1818, April 12, Seas. 86, ch. 97
(Executions) 14 J. 484
(Deeds) 11 J. 434 ! 1815, Feb. 17, Sess. 88, ch. 88 (Orig-
1818. April 12, Sess. 36, ch. 98 (In-
solvent). . 12 J. 841 ; 13 J. 385 ;
14.1.221; 15 J. 468
1818, April 12, Sess. 86, ch. 100
(Partition) 18 J. 489 ; 15 J. 319
1813, April 13, Sess. 86, ch. 104
(Special Sessions) ... ... 14 J. 372
1818, April 18, Sess. 86, ch. 150
innl Writs) 18 J. 127
1815, April 11, Sess. 88, ch. 146
(Fishing in the Hudson) 18 J. 497
1816, March 29, Sess. 39, ch. 52
(Utica Ins. Co.) 15 J. 858
1818, April 10, Sess. 41, ch. 94 (Jus-
tices'Courts) 15 J. 397
NEW YORK CONSTITUTION CITED.
N. Y. Constitution, Art. 87 14 J. 475
ACTS OF CONGRESS CITED.
1 Sess.. 1 Cong., ch. 90, sees. 9,
11 14 J. 96
1 Bess., 1 Cong., ch. 20, sec. 11... 11 J. 554
3 Sess., 5 Cong., ch. 128, sees. 62,
65 14 J. 96
2 Sess., 7 Cong., ch. 62. sec. 8 12 J. 144
1 Sess., 9 Cong., ch. 20, arts. 80, 81 12 J. 2#6
Act, July 20, 1790 14 J. 261
Act, Dec. 31, 1792 11 J. 300
Act, ,1794 18 J. 586
Act, JuneS, 1794, sec. 8 14 J. 294
Act, Feb. 28. 1795 11 J. 157
Act, July 6. 1798. .. 18 J. 5
Act, March 2, 17W 11 J. 389 ; 13 J. 416
N. Y. R., 5.
Act, March 2, 1799, sec. 89 11 J. 401
Act, March 2, 1799. sec. 91 11 J. 396
Act, Feb. 28, 1803 11 J. 67
Act, Feb. 28, 1806 ... 18 J. 586
Act, April 10, 1806. 12 J. 2«9
Act. March 1, 1809, sec. 4 11 J. 299
Act, July 6, 1812 15 J. 342
Act. Aug. 2. 1818 15 J. 11
1 Laws of U. S., p. 66, sec. 12 12 J. 153
1 Laws of U. S., 74 ._ 13 J. 581
1 Laws of U. S.. 140 ... 13 J. 3»1
3 Laws of U. S., p. 88 13 J. 155
4 Laws of U. S., 390 .. 13 J. 581
4 Laws of U. S., 427, sec. 89.. .13 J. 581
REPORTS OF CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE,
AND IN THE
COURT FOR THE TRIAL OF IMPEACHMENTS
AND
THE CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK.
BY
CTOIIilSJ SO3ST,
COUNSELOR AT LAW.
VOL. XI
JUDGES
OF THE
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW YORK,
DURING THE TIME OF
THE ELEVENTH VOLUME OF THESE REPORTS.
JAMES KENT, Esq., Chief Justice (appointed Chancellor, February 25, 1814).
SMITH THOMPSON, Esq., Associate Justice (appointed Chief Justice, February 25, 1814).
AMBROSE SPENCER, Esq., Associate Justice.
WILLIAM W. VAN NESS, Esq., Associate Justice.
JOSEPH C. YATES, Esq., Associate Justice.
JONAS PLATT, Esq., Associate Justice (appointed February 25, 1814).
ABRAHAM VAN VECHTEN, Esq., Attorney -General.
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF JSEW YORK
m
JANUARY TERM, IN THE THIRTY-EIGHTH YEAR OP OUR INDEPENDENCE.
JACKSON, ex dem. VAN RENSSELAER,
COLLINS.
Ejectment — Distress — Under Statute, Proof of
Demand or of Insufficient Distress on Premises
— Disclaimer of Landlord's Title, Waiter of
Demand.
When a lease contained a covenant that In case
the rent was in arrear for 40 days, the lessor mix-lit
enter and distrain, and if no sufficient distress was
found on the premises, that then the lessor might
re-enter. &c., in an action of ejectment to recover
the possession, it was held that, under the statute (1
N. it. I ... 434), the lessor was bound to prove either a
regular demand of the rent, or that no sufficient dis-
tress was to be found on the premises ; but where
the tenant, on the rent being' demanded, declared
that he did nof hold under the lessor, but had a
warranty deed, and had agreed to accept a lease for
a part of the premises from a stranger, this dis-
claimer was held to amount to waiver of a formal
demand of the rent.
Citations— Stat. 4 Oeo. II., ch. 28; 1 Saund., 287, n.
IB : 7 East, 383 : 1 Burr., 614 ; Doug., 485, 486 ; 7 T. R.,
117 ; 3 Johns. Cas., 296 ; 5 Co., 40, 4«.
THIS was an action of ejectment for a farm
in Hillsdale. The cause was tried at the
Columbia Circuit, before Mr. Justice Yates,
when afverdict was taken for the plaintiff, sub-
ject to the opinion of the court on the follow-
ing case :
The proprietor of the Manor of Rensselaer,
called Claverack, and legal owner of the prem-
ises, executed a perpetual lease of the farm,
dated the 21st of January, 1774, to Samuel W.
Hallenbeck, his heirs, executors, administra-
tors and assigns, forever ; yielding and paying
therefor unto the lessor 144 bushels of good
winter wheat, to be delivered at Claverack,
&c., on the first day of May, and every year
thereafter on the first of May, and reserving
also one fourth of the moneys arising from the
sale or assignment of the premises ; and the
lessee covenanted to pay the actual rent, &c.,
so reserved, &c.
The lease contained an express proviso and
condition, that in case the rents, &c., should
be in arrear and unpaid for 40 days after the
time limited for the payment, the lessor or his
servants, or bailiff*, might enter on the prem-
ises and distrain, «»c., and if no sufficient
JOHNS. REP., 11.
distress could be found on the premises, &c. ;
or in *case the lessee should not perform [*2
all and every of the covenants and conditions
contained in the lease, and on his part to be
performed, that then, or in either of the said
cases, it should be thenceforth lawful for the
lessor, his heirs, &c., to re-enter into the whole
or any part of the premises, and the same to
repossess and enjov, as his or their former es-
tate, &c. The defendant derived a regular
title under the lease, and the premises had been
held under it since 1774. In the year 1806,
Henry W. Livingston claimed title to a part of
the premises in the possession of the defend-
ant, being about 30 acres, and on the 21st of
June, 1806, the defendant took an agreement
for a lease from Livingston for 99 years, for a
parcel of land including the 80 acres, and cov-
enanted to pay the rent to Livingston, &c.
When the agent of the lessors applied to the
defendant for the payment of the rent due
under the lease to Hallenbeck, he declared that
he would not pay any rent ; that he did not
hold under any lease from Van Rensselaer, but
that he claimed the whole under a warranty
deed, and that, as to a part of the farm, Liv-
ingston was bound to defend him.
~&fr. E. Williams, for the plantiff. We con-
tend that there has been a complete forfeiture
at law, on the part of the lessee, of all his es-
tate under the lease, MJ that the defendant can-
not set up any estate under it against the
lessor's right of entry. The defendant has
taken a deed from a third person, and the per-
son under whom he claims not only has re-
fused to pay rent, but, in defiance of the rights
of his landlord, has alienated in fee. Any act
of the lessee, by which he disaffirms of im-
pugns the title 'of his lessor occasions a for-
feiture of his lease (Bac. on Leases, 119), and
the lessor may re-enter.
By virtue of the clause in the lease the lessor
had a right to re-enter for the non-payment of
the rent. It will, perhaps, be said that there
ought to have been an actual and specific de-
mand of the rent before this action could be
brought. This point was not raised at the trial
and so ought not to be urged here ; but waiv-
ing that objection, what is the reason of re-
quiring a previous demand of the rent ? It is
87
SUPREME COURT, STATE OP NEW YORK.
1814
that it may appear that the tenant is in default.
(Bac. Abr., Rent, I, 1.) If he is not at the place
where the rent is payable, or absolutely refuses
to pay, and denies the title and authority of
the landlord, no demand is necessary.
Again, where the estate is forfeited and gone
3*J no re-entry *is necessary, and so no de-
mand is requisite. Where there was a lease
with a proviso that it should be void if the
rent was not paid, it was decided that the les-
see was bound to seek the lessor and pay the
rent. (Noy, 145.)
But further, we contend that under the stat-
ute (sess. 11, ch. 36, sec. 23; 1 N. R. L., 434),
where one half year's rent is in arrear, no for-
mal demand or re-entry is necessary, but the
landlord may serve a declaration in ejectment
for the recovery of the demised premises. The
preamble to the 23d section shows that the Act
was passed to prevent the inconvenience and
expense of a re-entry at common law. It will
be said, however, that the statute applies only
to cases where the land is vacant, or no suffi-
cient distress is to be found on the premises.
But in Roe v. Davis, 7 East, 363, Lord Ellen-
borough was of opinion that the statute of 4
Geo. II., ch. 28, from which our Act was
copied, is not confined to cases of ejectment
brought for a half year's rent in arrear, where
no sufficient distress is found on the premises;
but that it was general in its operation.
Mr. Van Buren, contra. It would be op-
pressive and unjust, if the estate of a lessee
should be forfeited for this pretended attorn-
ment. By the statute (sess. 11, ch. 26, sec. 28),
attornments to strangers are declared void; but
such attornments do not operate as a for-
feiture.
But the principal question is, whether the
lessor had a right to bring ejectment and re-
cover for the non-payment of rent in this case
without showing a regular demand of rent, or
that no sufficient distress was to be found on the
premises. That it is a settled rule of the com-
mon law, that such previous demand of rent
is requisite, cannot be denied. (Bac. Abr.,
Lease, I; 2 Co. Litt, 201 b, 202 a, 211 a, 153 a;
4 Co., 73; Cro. Eliz., 415; Vaugh., 31, 32;
Hob., 82, 133, 208; Jones' Rep., 32.) The
statute of 4 Geo. II., ch. 28, or our Act, made
no alteration of the common law rule, unless
in the case where no distress is found on the
premises. The statute does not apply to cases
where there is a sufficient distress on the prem-
ises. This has been repeatedly decided. (1
Burr., 619; Doug., 485 ; 7 Term Rep., 117 ; 3
Johns. Cas., 295; 1 Saund., 287, n. 16.) It is
pretended that all the decisions on this point
have been overruled by the case of Roe v. Davis;
but that case does not apply here. It did not
turn on the construction of the Act as to the
necessity of proving that no sufficient distress
was to be found on the premises. As, then, it
was not made to appear that no sufficient dis-
tress was to be found on the premises, the
lessor is bound to show that he has proceeded
according to the common law, by which it is
required that there should be a demand of the
precise rent due, precisely on the day when it
4*] is *made payable, at a convenient time be-
fore sunset, and at the most notorious place on
the land. (ILeon., 305; Cro. Eliz., 209; 4 Co.,
73; 1 Roll. Abr., 458; Plowd., 172 b; 4 Leon.,
38
180; Noy, 101.) None of these requisites have
been observed in the present case.
Mr. Williams, in reply, observed that the
cases cited applied only to the clauses of re-
entry in ordinary leases. The present suit is
on a lease or grant in fee, on a condition ; and
that condition being broken, there is an end of
the estate. It is, therefore, distinguishable
from the cases which have been mentioned.
KENT, Ch. J. , delivered the opinion of the
court :
The defendant contends, that as the suit is
for a forfeiture of the lease, for the non-pay-
ment of rent, the lessor of the plaintiff was
bound to have shown upon the trial, either
that no sufficient distress was to be found upon
the premises, to entitle him to recover under
the Act of the 21st of February, 1788, sec. 23
(and which was copied from the statute of 4
Geo. II., ch. 28), or that they were bound to
show a regular demand of the rent with all the
nicety and precision required by the rules of
the common law. (See these rules collected in
1 Saund., 287, n. 16.) In Roe, ex dem. West, v.
Dams, 1 East, 363, Lord Ellenborough held
it not to be indispensable in an ejectment under
the statute to prove that no sufficient distress
was to be found. But this, though, perhaps,
the most liberal, was not the hitherto received
construction of the Act; for in the cases of
Doe, ex dem. Hitchings, v. Lewis, 1 Burr., 614 ;
Goodright v. Castor, Doug., 485, 486, and of Doe,
ex dem. Forster, v. Wandless, 7 Term Rep.,
117, the Court of K. B. consider it as a given
point, that the plaintiff must prove either a
demand or no sufficient distress ; and in Jack-
son v. Wilson, in this court (3 Johns. Cases
295), the same doctrine was recognized. Nor
can we discern, on a careful examination of
the statute, sufficient ground for adopting the
new, and rejecting the long settled previous
construction.
The counsel for the plaintiff contend,
however, that admitting the general rule, a
regular demand was not requisite in this case,
as the defendant, on being applied to for the
rent, not only refused to pay, but disclaimed
holding under any lease from the Van Rens-
selaer family, and asserted that he held under
a warranty deed ; and it was further shown, in
confirmation of his disloyalty, that for the bet-
ter part of the premises he had agreed, by
*covenant,to accept a deed from a stranger. [*5
The defendant having thus disaffirmed and
denied the title of the lessor, and the relation-
ship of landlord and tenant, there is great
weight in the objection that he ought not to
be allowed to set up the want of a technical
demand of the rent. The disclaimer proves
that such an act had become unnecessary and
useless. The demand was given for the benefit
of the lessee, and was required for his pro-
tection under his lease ; but, as was said by the
court in Dormer's case, 5 Co. , 40, 46, the act
might be dispensed with by his consent, and
the disclaimer is at least equal in effect to an
express waiver on the part of the tenant of the
requisite demand. If he denies the holding
altogether, it would be vain and idle to require
the landlord to go on and make a regular de-
mand at the precise time, and of the precise
sum due. The disclaimer by parol might not
JOHNS. REP., 11.
1814
JDLLIAND v. BUROOTT.
have been sufficient in this case to amount
of itself to a forfeit of the lease. That is
not the point in the case. But it is suffi-
cient to excuse the plaintiff from the necessity
of a regular, formal demand of the rent, in
like manner at) the act or declaration of the
opposite party will, in many cases, supersede
the necessity'of a formal tender, and in like
manner as "such a disclaimer will excuse the
omission of a notice to quit. The plaintiff is,
accordingly, entitled to recover to the whole
•extent of the lands contained in the lease.
Judgment for the jAaintiff.
N. B. In the case of Jucfaon, ex dem. Van
Rensaelaer, v. Defriest, which was argued at
the same terra, the court also gave judg-
ment for the plaintiff, as depending on the
same principles as the above case.
L1mlted-9 N. Y., 20.
CiN-dln— 4 Wend.. 637. 5 Denio, 139; 19 N. Y., 86,
108, 367 ; 39 N. Y., 132 ; (15 N. Y., 431 ; 6 Trans. App.,
301; 9 Barb., 366; 12 Barb.. 133; 46 Barb., 452.
6*]
MULLIAND
BURGOTT AND BURQOTT.
Action on Bond — Negativing Words of Condition
Insufficient.
In an action of debt on a bond conditioned " to
free the land, A.T., from all legal incumbrances,
fithiT by deed or mortgage, or otherwise, now in ex-
istence, and binding on the premises, bv the 30th of
February, 18UJ," the plaintiff assigned the breach by
following' and negativing the words of the con-
dition; this was held insufficient, as such assign-
ment did not necessarily amount to a breach, and
the plaintiff ought to have 8hown some existing in-
cumbrance on the 20th of February, 1812, or at the
commencement of the suit.
'TUHS was an action of debt on a bond,
-L dated 3d December, 1811, with a condi-
tion that the defendants should secure certain
lands (sold and conveyed by Peter Burgott and
wife, by a warranty deed, dated the 80th of
September, 1811, to Henry Van Vliet, and
-conveyed by him, by deed, dated the 3d of
December, 1811, to the plaintiff) in the peacea
ble and quiet possession of the plaintiff, his
heirs and assigns, " free from all legal incum
brances, either by deed or mortgage, or other-
wise, now in existence and binding on the
premises," &c. ; and it was expressly agreed
and understood that the defendants were " to
see the lands free from all incumbrances as
above mentioned, bv the 20th of February,
1812," &c. The plaintiff averred that the de-
fendants, although often requested, &c., did
not free, nor cause to be freed, the land above
described from all legal incumbrances, either
by deed, mortgage, or otherwise, then in ex-
istence, and binding on the premises, by the
20th February, 1812, &c., in the words of the
condition.
The defendants demurred to the declaration,
and there was a joinder in demurrer, which
was submitted to the court without argument.
Per Curiam. Without noticing other points
in the case, the declaration is bad in substance
in not assigning a sufficient breach. The
breach is, that the defendants " did not free
the land from all legal incumbrances, either by
JOHNS. REP., 11.
deed, mortgage or otherwise, then in existence
and binding on the premises, by the 20th of
February, 1812." This was following and
negativing the very words of the condition of
the bond ; but unless such an assignment
necessarily amounts to a breach, it is insuffi-
cient, and here it does not ; for non coiuUU
that there was any existing incumbrance on the
20th of February, 1812. The condition spoke
hypothetically of legal incumbrances, either
by deed, mortgage, or otherwise, then in ex
istence. It did not refer to any particular in-
cumbrance, nor was any alluded to in the re-
cital to the condition. By the generality of the
terms, and by the words "or otherwise," it is
most apparent that the bond was taken for
greater caution, and to guard against any such
incumbrance *which might then be in ex- [*7
istence. It was incumbent, therefore, on the
plaintiff to have shown at least some existing
incumbrance at the commencement of the suit,
or on the 20th February, the time referred to
in the bond. He has shown none ; there is,
then, no certain cause of action appearing in
the declaration, and the defendants are en-
titled to judgment, with leave to the plaintiff
to amend on the usual terms.
Judgment for the defendants.
Cited in— t Hill., 158.
THE
OVERSEERS OF THE POOR OF
BLENHEIM
THE OVERSEERS OF WINDHAM.
Settlement of Pauper — Acquirement under Statue.
A., in 1777, came Into the town of W., and about
20 years ago, purchased 100 acres of land in the
Hardenbergh patent, situated in the town of B.; he
cleared part of the land and improved part of it, for
two seasons, and boarded, at that time, in B., and
about 10 years afterwards sold all his interest in the
land; hut during all the time, from 1777 to the
present day, except the time he boarded in B., he
continued to reside in W.
It was held that the land not lying in the Har-
denbergh patent, no " estate, or interest," in the
town of B. passed by the deed : and that the act
of the pauper, in clearing the land, and boarding
at the time in B., did not change his place of settle-
ment, which still remained in W.
IN ERROR, from the General Sessions of
the Peace of the County of Greene. This
was an appeal from the order of the justices of
the town of Windham, in the County of
Greene, for the removal of Julius Agars, a
pauper, from that town to the town of Blen-
heim, in the County of Schoharie, to the Gen-
eral Sessions of the Peace of the County of
Greene. In 1777 Agars came into the town of
Woodstock, in that part of it which is now
Windham, and about 20 years ago purchased
of Johannes Hardenbergh 100 acres of land,
for the consideration of $75, for which land
he received a deed in fee ; but the deed, as
the witness testified, was lost. The person
who drew the deed stated that the land was
described as situated in the Hardenbergh patent
in the town of Woodstock and County of
Ulster ; but that, in fact, the land lay in the
town of Blenheim, in Schoharie County, and
south of a line run for the north line of the
Hardenbergh patent, called Coxe's line. After
the purchase, Agars took possession of the
8»
SUPREME COURT, STATE OP NEW YORK.
1814
land, which was wild and covered with wood,
and improved part of it, for two seasons ; but
except during that time, when he boarded in
Blenheim, he had resided in that part of Wood-
stock which is now Windham, since 1777, to
the time of the order for his removal. It ap-
peared that, at the time of the conveyance to
Agars, the land was claimed as part of Due's
manor, and half of it was included in a lease to
one Bartlett, and his son testified that he was
well acquainted with the bounds, &c., and that
the 100 acres purchased by Agars, lay within
8*] *Due's manor, and in the town of Blen-
heim. It was further proved that, about 12
years after Agars purchased the 100 acres, he
sold all his interest and title in the land for a
horse, to Alexander Boyd, who had previous-
ly purchased the title of Due.
The appellants offered to prove, by the
statutes, the boundaries of the counties of
Ulster and Schoharie, and of the towns of
Woodstock, Blenheim and Windham, and for
that purpose also offered in evidence the map
of the State ; but this evidence was overruled
by the court, who adjudged that the pauper's
last place of legal settlement was in the town
of Blenheim, in the County of Schoharie, and
confirmed the order of the justices.
Per Curiam. The legal settlement of the
pauper was originally in Windham, and the
only question is, whether he acquired a settle-
ment in Blenheim, by the purchase of the 100
acres of land of Johannes Hardenbergh, for
the consideration of $75, which was paid. This
deed was taken about 20 years ago, and the
land was described as lying in the Hardenbergh
patent in Ulster County, and it was under-
stood to lie south of Coxe's line. The pauper
cleared, in one season, a part of the land and
put in a crop of grain, which he gathered the
next year. While he was so at work he board-
ed in the town of Blenheim, but he resided
there in no other way, nor at any other time ;
and from 1777, until his removal, he continued
to reside in Windham. The 100 acres were at
the time claimed adversely, and were in part
covered by a lease, and were, undoubtedly, a
part of Due's manor, in Schoharie County,
and lay north of the line of the Hardenbergh
patent. The pauper afterwards sold his claim
under the deed for a horse to one Boyd, who
held under Due's title.
Here was evidently a mistaken purchase.
The lands were sold as part of the Harden-
bergh patent, and, in fact, they did not lie in
that patent, and so no '• estate or interest " in
the town of Blenheim passed by the deed. Nor
can the act of the pauper, in clearing a part, be
deemed a title by possession in Blenheim suffi-
cient to gain a residence. His domicil was
never changed, and he only went occasionally
on the land for a special purpose. The statute
never meant that a settlement should be ac-
quired by purchase, if no estate or interest
9*] known *and valid in law passed, and here
none was intended to pass but what was cov-
ered by the Hardenbergh patent.
The purchase ought, therefore, to be dis-
regarded, and the order of the Sessions
quashed.
Order quashed.
Cited in— 3 Cow.. 301.
40
PATRICK AND BROWN
v.
THE COMMERCIAL INSURANCE COM-
PANY.
Marine Insurance. 1. Seaworthiness. 2. Sea
Risks. 3. " No Risk in Port" Refers to any
Port into which Vessel may of Necessity
Enter. 4. Abandonment — Stranding not ipso
facto a Total Loss. 5. Capture After Strand-
ing.
A vessel was insured from New York to Cadiz and
back, and the policy contained a clause that " the
assurers took no risk in port but sea risk." While
the ship lay off the Mole of Cadiz, in March, 1810,
she was forced from her mooring-s in a violent gale
of wind and driven on shore, east of Trochedera
Creek, opposite Fort Puntales, and near the forts
there occupied by the French troops, where she lay
above high water-mark, and, as soon as the gale
abated, was forcibly taken possession of by the
French troops, and burnt. It was held that the
word " port," in the clause in the policy, was used
in contradistinction to the high seas, and was not
confined to the port of departure or discharge, but
referred to any port into which the vessel might of
necessity enter during the voyage insured ; and, if
it were otherwise, it would seem that the place
where the ship was stranded was within the port
of Cadiz : that as the vessel, after she was so strand-
ed, could not have been got off, unless at an ex-
pense exceeding half her value, if at all, it was a
total loss by the perils of. the sea. •
THIS was an action on a policy of insurance
OP the ship Thomas Jefferson, Thomas
Dinsmore master, "at and from New York to
Cadiz and back again." The policy, dated the
28th of November, 1809, contained the follow-
ing clause: "The assurers take no risk in port
but sea risk." The cause was tried at the New
York sittings before Mr. Justice Yates.
The master deposed that he sailed from
New York the 18th of November, 1809, and
arrived at Cadiz the 12th of January, 1810.
The ship, on account of certain articles on
board, was obliged to perform quarantine, and
was not released from it until the 8th of Feb-
ruary following. The greater part of the cargo
was sold soon after the arrival of the ship at
Cadiz, but from tempestuous weather, and va-
rious other causes, and particularly on account
of the difficulty of procuring lighters, the
place then being besieged by the French, it
was not wholly discharged; she began to dis-
charge as soon as a permit was obtained from,
the custom house, and about one third of the
bulk of the cargo was landed, when, on Sun-
day, the 4th of March, while the ship was
safely moored in the harbor, a very heavy gale
of wind commenced from the southwest, and
continued until the 9th of the same month.
On the 6th of March the ship parted her best
bower, and on the 7th, at half past one A. M.,
parted all her moorings, and drove ashore, op-
posite the Isle of Leon. All the crew were on
board during the storm, and every exertion
made to save the vessel. On Friday, the 9th
of March, at noon, the gale had in some degree
abated, and at 9 P. M. some French soldiers,
from a neighboring French battery, came on
board and *set fire to the ship, and both [*1O
vessel and cargo were entirely consumed. The
NOTE. — Seaworthiness— Warranty of implied —
What amounts to breach of. See Fontaine v. Com-
mercial Ins. Co., 10 Johns., 58, note ; Silva v. Law,
1 Johns. Cas., 194, note ; Barn wall v. Church, 1 Cai.,.
217, note.
JOHNS. REP., 11.
1814
PATRICK v. COMMERCIAL INS. Co.
10
master and the crew (except the mate and four
seamen, who had gone in a boat to Cadiz to
inform the consignee of the state of the vessel,
and to obtain assistance) were taken prisoners
and marched to Seville. The vessel was driven
on shore at high water, when, on account of
the continued violence of the storm, the water
was sixteen feet higher than it had been known
to be before. After the gale abated, she lay
high and dry, near 200 yards above high water-
mark, and was buriea in mud and sand to
within three streaks of her bends. The mas-
ter believed she was bilged, though, from her
situation, he could not ascertain the fact; but
from the violence and manner of striking, he
thought that must be the case; and that she
could not have been gotten off without taking
her to pieces, or digging a canal down to the
water, which, if it were practicable, would
have <••>-! more than the value of the ship.
The place where the ship was driven ashore
was nearly opposite Fort Puntales, and imme-
diately adjoining the fortifications of the
French, on Trochedera Creek, being a beach
(or, as some of the witnesses said, the Troche-
dera Islands) on the opposite side of the Bay
of Cadiz. The master said the place was not
considered as part of the port of Cadiz, and
was then held bv a hostile power, and entirely
out of the jurisdiction of Cadiz. Before the
French besieged Cadiz, merchant ships used
to lie along from Cadiz to Puntales, and the
Spanish prison ships used to lie above the lat-
ter place; but in consequence of the position
taken by the French, they were moved nearer
Cadiz. When the Thomas Jefferson arrived,
the Spanish, English and Portuguese ships-of-
war lay before Cadiz, and the shipping were
anchored within the ships-of-war, extending
from Puntales to Cadiz Point, above a mile
from the shore. The Thomas Jefferson lay
nearly opposite the mole, or gates of Cadiz.
Four ships of the line, one frigate, and two
transports, and a number of American mer-
chant ships, in "fcll about thirty, were driven
on shore in the same gale with the Thomas
Jefferson. The wind was from S. W. to S. S.
W. After the storm abated, the mate was sent
on shore to the consignee, with a view to save
some part of the cargo, but no exertions were
made to get off the ship or save her, as it was
deemed utterly impracticable.
Several witnesses were examined, and several
depositions read at the trial. The mate stated
1 1*] that the ship had four anchors, *a
halser, and a part of a halser ; that they lent
one of the anchors, the kedge, and part of a
halser to a vessel called the Mary, after the
storm began. Another witness said it was the
stream anchor that was lent. The mate said
the water was ten or twelve feet, and another
witness that it was six or eight feet higher
than usual. The mate said the Thomas Jef-
ferson was ashore l>etween Matagorda and a
fort built by the French on the east side of the
creek ; that she went on with great violence,
striking forcibly, and thumping violently
several times ; that the ground where she
struck was sand covered with mud ; that she
lay above 100 yards above high water-mark. He
could not ascertain that the hull WHS injured ;
he did not think it possible to get her on with
anchors and cables, though she might, per-
JOIINS. REP., 11.
haps, have been got off after the cargo was
discharged, by means of machinery. That she
drew seven feet of water when in ballast, and
about twelve feet when loaded. That she could
not have been raised and floated by means of
hogsheads, without seven feet of water around
her. Several witnesses thought she could not
be got off. unless at an expense greater than her
value. Some of them said the water round
the vessel was two or three feet high, and that
it was practicable to get her off at a small ex-
pense. Some of the witnesses also thought
that the place where the ship stranded was
within the harbor of Cadiz ; others said that it
was within the jurisdiction of Port Royal, which
was then occupied by the French. It was also
testified that all intercourse with Trochedera,
then in possession of the French, was pro-
hibited by the Spanish government at Cadiz,
on pain of death, and that this prohibition
extended to Americans as well as Span-
iards.
The judge charged the jury that he did not
think there was evidence of a want of seaworthi-
ness arising from the loan of the anchor and
cable to the Mary, but that it was a question for
their determination. If they believed her sea-
worthy, the next question for their decision
was, whether the loss happened in port. That
if they believed that the loss did not happen in
port, they should find for the plaintiffs ; but
if the loss did happen in port, the next
question for their consideration would be,
whether there was a total loss of the vessel be-
fore the burning. That in their inquiry as to
the practicabilitv of getting the ship off, the
jury should confine themselves to the practica-
bility of doing it by ordinary means ; that any
extraordinary means by which she might have
been got off, at an expense of more than half
*her value, were not to be taken into [* 1 2
consideration. That if she could have been
got off at an expense of less than half her
value, they ought to find for the defendants ;
otherwise, for the plaintiff. The jury
found a verdict for the plaintiffs for a total loss.
A motion was made to set aside the ver-
dict, and for a new trial, on the following
grounds :
1. That the vessel was made unseaworthy
by the loan of a cable and anchor to the
Mary, and by leaving the long boat with the
Mary.
2. That the loss was not in port.
8. That the vessel was lost by burning, and
not bv the perils of the sea.
4. That the judge admitted improper and
rejected proper evidence.
5. That the verdict was against law and
evidence.
The cause was argued by 3/iwwr*. Well* and
D. B. Ogden for the defendants, and Mt**r».
Hoffman and T. A. Emmtt for the plaintiffs ;
but as their arguments were principally con-
fined to a critical examination of the pvfdence
and a discussion of the facts in the case, it is
deemed unnecessary to state them. The coun-
sel for the defendants cited Peake's N. P., 212;
12 East, 647; 9 Johns., 21 ; 6 Mass. Rep.,
482 ; 18 East. 894; 1 Taunt. Rep., 516.
KENT, Ch. J., delivered the opinion of the
court :
41
12
SUPREME COURT, STATE OF NEW YORK.
1814
1. The question of seaworthiness ought not
to be disturbed. The loan of a cable and small
anchor to a neighboring vessel in the harbor
was not a strong fact in support of the allega-
tion, and the weight of evidence was in favor
of the finding of the jury.
2. As the defendants, by the contract, were
to take " no risk in port but sea risk," it be-
came material to ascertain whether the loss
happened in port ; and on this point there
seems to be no room for doubt. The place
where the ship lay at anchor when the storm
arose, and the place where she was subsequent-
ly stranded, were both of them equally in
port. The words are general : "no risk in
port," and they do not refer to the port of de-
parture or the port of discharge, in exclusion of
all other ports into which the vessel might of
necessity enter during the course of her voy-
age. The word "port" seems here to have
been used in a general sense, as contradis-
1 3*] tinguished from the high seas ; *and no
good reason occurs why the term should be
confined to the two ports mentioned in the
policy, in opposition to its popular and gram-
matical meaning. The general risks assumed
by the defendants equally apply to all ports
into which the vessel would of necessity enter,
and the limitation of that general risk ought to
be equally co-extensive. The loss, therefore,
happened in port. If, however, the words of
the policy were to be construed to refer to the
port of discharge, and to none other, the
weight of evidence is, that the port of Cadiz
embraced the place where the ship was strand-
ed. The position of the port of Cadiz, and
the commercial privileges and jurisdiction of
that port, are matters of general and public
notoriety, and go strongly to show the fact, to
which some of the witnesses attested, that the
shore on which the ship was driven by the
tempest was part of the port.
3. The only important and serious question
in the case is, whether the loss was or was not
by sea risk. The case turns wholly upon this
fact. The ship was stranded by the storm, and
the place where she was stranded was, at the
time it happened, though not at the time when
the contract was made, out of the actual juris-
diction of the port and government of Cadiz,
and under the actual jurisdiction of a foreign
and hostile force. The vessel and cargo were
destroyed by this force within 48 hours after the
ship was stranded, and before any experiment
was made to relieve her.
The question at the trial was, whether the
ship was so disabled by the stranding, or was
cast so far on shore, as not to be worth reclaim-
ing, or to be incapable of recovery. It is well
understood that stranding is not, ipso facto, a
total loss. It may be, and it often is, followed
by shipwreck, or becomes, by other means, a
total loss ; but it is not, of itself, a loss that
will justify an abandonment. It is always, in
such cases, a question of evidence, whether the
stranding be attended with such circumstances
as to produce a total loss, either because it is
followed by shipwreck or other destruction of
the property, or because the vessel cannot be
set afloat, or because she cannot be repaired at
the place of the peril, for want of materials or
workmen, &c. In this case it was submitted
to the jury, upon the testimony, whether the
42
vessel was so stranded that she could not have
been got off at an expense of half her value.
The jury have decided this point in the nega-
tive, and as there was a contrariety of evidence
on the *point, the court do not think [*14
proper to interfere with the verdict, although
some of us are not perfectly satisfied that the
weight of evidence warranted that conclusion.
The motion to set aside the verdict is denied.
Motion denied.
Cited in— 3 Mason, i
I ; 12 Bank. Reg., 256.
PATRICK AND BROWN
THE COMMERCIAL' INSURANCE COM-
PANY.
Marine Insurance — Sea Risk — Loss of Cargo of
Stranded Ship, by Public Enemies, not Covered
by-
In an action on a policy of insurance on the cargo
of the same ship, and for the same voyage, and
with the same clause, as in the last case ; it was held
that, though the loss was in port, it was not occa-
sioned by sea risk, but was to be attributed wholly to
the act of the French, for there was no evidence of
the cargo being injured by the stranding: and had
it not been for the French force, it might have
been removed in safety.
Citations— Peake's N. P. Cas., 212 ; 12 East, 648 ; 9
Johns., 21.
THIS was an action on a policy of insurance
on the cargo of the ship Thomas Jefferson,
for the same voyage as in the last case, and
the policy contained the same clause as to the
risk in port. The facts proved at the trial
were substantially the same as in the last
cause. (Ante, p. 9.) The cargo on board the
Thomas Jefferson, after she was stranded, and
before she was burnt by the French, was not
injured ; but it did not appear that any at
tempt was made to unload the ship after she
had stranded.
The judge charged the jury, that if they
should be of opinion that theTrochedera Islands
were within the port of Cadiz.that then the ship
must be considered as lost in port, although
she was burnt on dry land and above high
water mark, and then the case would fall
within the exception in the policy, unless the
jury should be of opinion that the loss was oc-
casioned by sea risk ; that if they are convinced
that the cargo, after the ship was stranded,
could not have been removed to a place of
safety, either on account of the interdiction of
the intercourse between Cadiz and the place
where the Thomas Jefferson lay, or on account
of the contiguity of the enemy, they ought to
find for the plaintiffs as for a total loss. The
jury found a verdict for the plaintiffs for a
total loss.
A motion was made to set aside the verdict,
and for a new trial.
The cause was urged with the last case,
which arose on the policy on the vessel, by
Messrs. Wells and D. B. Ogden for the de-
fendants ; and
Messrs. Hoffman and T. A. Emmet for the
plaintiffs.
*KENT, Ch. J., delivered the opinion [*15
of the court :
JOHNS. REP., 11.
1814
DOUGLASS v. SATEIU.EE ET AL.
15
The same question arises here as in the for-
mer case, whether the loss of the cargo is to be
attributed to the stranding of the ship. But as
the cargo was not injured by the stranding, and
as no effort was made to take it from the vessel,
and as the means of removing it (if necesasry)
from the vessel, across the Bay of Cadiz, to the
City, might easily have been procured, it is
evident that the loss of the cargo must be im-
puted to a peril not insured against. It must
be attributed wholly'to the act of the French.
"Whether we refer the loss to the French vio-
lence, or to the Spanish prohibition, in either
case the loss was not by sea risk. The strand-
ing, undoubtedly, led to this unhappy result,
but the court are to place the loss to this re-
sult, and not to the stranding ; and this, upon
the mnxim that causa projnma et non remota
spett.itur. If there was any deterioration of
the cargo arising from the stranding, it was
unascertained, and was presently absorbed in
the total loss by fire. " If," says Lord Ellen-
borough, "a ship meet with sea damage
which checks her rate of sailing, so that she is
taken by an enemy from whom she would
otherwise have escaped, though she would
have arrived safe but for the sea damage, the
loss is to be ascribed to the capture, not to the
sea damage." This principle is illustrated in
the cases of Green v. Emslie, Peake's N. P.
Cases, 21*2, and Lime v. Janson, 12 East, 648.
Had the stranding amounted, of itself, to a
total loss, then the subsequent act of the
French would not have altered the case ; and
this was all that was said by the court upon
this point in Schieffelin v. New York Ins. Co.,
9 Johns., 21. u the ship, instead of be-
ing driven on the opposite shore of the port,
had been driven to auy part of the shore of the
Isle of Leon, and within the same bay, but out
of the reach of the French, can any oae doubt
that the cargo would not have been saved ?
The charge of the learned judge was incor-
.rect in stating ^hat if the cargo, after the
stranding, could not have been removed by
reason of the French force or the Spanish in-
terdiction, the iury ought to find a total loss ;
for this was making the defendants responsible
for a loss in port, arising directly and imme-
diately from other risks than those which the
defendants had assured.
The verdict must, therefore, be set aside, and
a new trial awarded, with costs to abide the
event of the suit.
New trial granted.
Criticised-61 N. Y., 343.
Distinguished-SB N. Y., 53.
Cited in-14 How. Pr., 370; 34 Super., 330; 40
Super., 420; 1 Boa., 381.
*DOUGLASS
SATTERLEE KT AL., Administrators of
SATTERLEE.
Executort and Administrator*. 1. Each Liable
only for Assets Proved in his Hands. 2.
Plettding — Plea of Outstanding Judgment
against Intestate, Jointly with Others, must
aver his Survivorship — Demurrer — Surplus.
In an action of amumfxU, on a promissory note,
MErfMt A, B and C., administrators of S., A, who
JOITNS. REP.. 11.
alone was taken, appeared and pleaded three sev-
eral judgments, outstanding against the intestate,
HUH uniting to $1,0*0.13; also two judgments against
tin- intestate, jointly with \V. and I., amounting to
$i!4.3H ; also a covenant, by d<>ed. by the intestate
and W. Jointly, to pay JMQ. at different tinu-s <>f
which $000 was then due and payable ; also that the
int'-itatt . in his lifetime, owed A, the defendant,
£»,!«s^.4:J, which was still due. and was also indebted
to B, one of his c-o-ailminirttrators. in the sura of
SiiOO.uc!. which wasstilldut-; and pitm odmfctfitrOTtt,
ice., except as to $1.000, and no assets further, ex-
cept to that sum, which was not sufficient to pay
the said judgments, &e.
On a general demurrer to this plea, it was held
that part of the pica, as to the outstanding judg-
ments against the intestate jointly with others, was
bad, as it did not aver that the intestate was the
survivor of the others; but though bad in part, it
was not bad in tutu ; and as there were three out-
standing judgments well pleaded, more than suffi-
cient t<i cover the amount of assets specially statrd.
the other part not well pl«*ad«-d might be reji-<-t' .1
as surplusage, and the plaintiff was not entitled to
judgment K-<-ii<'rally.
An administrator is answerable only to the extent
of the assets proved in his hands, without refer-
ence to his co-administrators; for one executor or
administrator is not chargeable with the acts or
deitutavlt of his companion, but is only answerable
for the assets which nave come to his own hands,
and for the goodness and truth of his own plea. If
asset?, however, have come into his possession and
In- ili-liver them over to his co-administrator, he is,
then, answerable for their due administration.
Where a plea, as in this case, contains distinct
matters, divisible in their nature, as separate and
distinct demands, the plaintiff cannot demur gen-
erally to the whole because a part U bad ; but
should demur as to the matters badly pleaded, and
traverse the residue.
Citations-2 Saund., 48; 1 Saund., 27 ; Cro, Eliz.,
268,331, 443: Cro. Jac.. 27; 1 Lev., 48; 1 Saund., 27;
Str., 509, 988, 1184 ; 3 T. R., 376, 377 ; 1 Saund.. 336 ; 1
Ld. Raym., 878; 1 Salk., 311; 12 Mod., 527; Vaugh..
89 ; 9 Edw. IV., 12 /> ; 9 Co., 108 ; 1 Saund., 337, note 1 ;
3 T.R., 688; Cro. Eliz.. 318; Str., 20; 7 East, 246; 2
Ves., 267 ; 2 Bl., 910 ; 11 East, 565 ; 1 Chitty on Plead-
ings, 643.
THIS was an action of assumpsit against
Samuel Satterlee, Jr., and Micah Sterling,
administrators, and Martha Satterlee. adminis-
tratrix, &c., of Elisha Satterlee, deceased, in-
testate, the said Samuel being returned in cus-
tody, &c. , and the said Micah and Martha not
found. The declaration contained three counts-
1. On a promissory note madebv the intestate,
dated 14th February, 1810, for "$126.47, pay-
able to Rathbone and Douglass, or order, on
demand, and indorsed by them to Benjamin
Chamberlain, and by him indorsed to the
plaintiff. 2. For goods sold and delivered to
the intestate. 3. Quantum raleoant.
The defendant Samuel Satterlee pleaded a
judgment in favor of D. Cady and A. Liddell,
against the intestate, in his lifetime, to wit :
in May Term, 1806. in this court, for $700 of
debt, and $13.68 costs, remaining in full force
&c. ; a judgment in favor of A. Laston aguinst
the intestate, in his lifetime, to wit: in Febru-
ary Term, 1806, in this court, for $57.93 of
debt, remaining in full force, &c. ; a judgment
in favor of Charles Richards aguinst the intes-
tate, in his lifetime, to wit : in August Term,
1810, in this court, for $308.52, remaining in
full force, Arc.: a judgment in favor of John
and Luke Devereaux, of November Term,
1810, in this court, against the intestate, in his
lifetime, and Leonard Wheelock and Nathan
Jones, for $131. NO, remaining in full force,
A:<-.; and a judgment against the same three
defendants, in favor of M. S. Gilbert and P.
Bours, *of November Term, 1810, in f*17
this court, for $82.58, remaining in full force;
it
17
SUPREME COURT, STATE OP NEW YORK
1814
and also that, by a certain indenture, dated the
36th November, 1808, between D. Salisbury,
of the one part, and the intestate and Leon-
ard Wheelock, of the other part, the intes-
tate and Wheelock covenanted to pay $900,
), part of the said sum, to Samuel
Wardell, in three years from the 14th Septem-
ber, 1807 ; $150 to Salisbury, on the 1st April,
1814, and $150 to him on the 1st April, 1815,
and that the said sum of $600 remained un-
paid. That the intestate, at his death, was
indebted to the defendant, S Satterlee. in the
sum of $2,000, for goods sold and delivered,
and in the sum of $1,982.42, on a promissory
note, dated the 14th August, 1810, which is
still due ; and that the intestate, at his death,
was indebted to Micah Sterling, one of the ad-
ministrators, in the sum of $400, for money
lent, and in the sum of $100.92, on a promis-
sory note, dated the 29th October, 1809, pay-
able 60 days after date, which remained
unpaid ; and that the defendant S. Satterlee
had fully administered all, &c., except goods
aud chattels to the value of $1,000, and that
he had no other assets, except the goods, &c.,
to the value of $1,000, which are not sufficient
to satisfy the several debts aforesaid, due and
owing on the said judgments, &c., aforesaid ;
aud this he is ready to verify, &c.
To this plea there was a general demurrer
and joinder. The following points were raised
by the plaintiff, and submitted to the court:
1. That the judgment of .1. C. Devereaux
and L. Devereaux against the intestate and L.
Wheelock and N. Jones, and also the judg-
ment of M. W. Gilbert and P. Bours against
the same persons, as pleaded, were no bar to
the plaintiff's recovery in this cause.
2. That the indenture or bond executed by
the intestate and Wheelock to D. Salisbury, as
pleaded, was no bar to the plaintiff's recov-
ery.
3. That the plea of plene administravit pra-
ter, &c. , ought to have been pleaded by the
defendant, not only as to the assets in his
hands, but as to the assets in the hands of the
other administrators.
4. The plea being bad in part is bad in toto.
18*] *KENT, Ch. J., delivered the opinion
of the court:
The questions in this case arise upon the
plea of the administrator, S. Satterlee, who
was the only administrator taken and brought
into court.
There is no doubt that the plea is bad in
part. The outstanding judgments in favor of
J. and L. Devereaux, and of Gilbert and
Sours, and the debt due on the covenant to
Salisbury, are neither of them well pleaded.
In all these cases, the intestate was jointly in-
debted with others, and there is no averment
in the plea that he was survivor, without
which he was not chargeable at law. The
case of Norton v. Harvey, cited in Trethewy v.
Ackland, 2 Saund., 48, is directly in point.
That case is also in point, in another respect,
as it was there held, that as the plea was bad
as to one judgment outstanding, though not as
to the other, it was bad in toto, and judgment
was given for the plaintiff, which was affirmed
in the Exchequer Chamber. It does not ap-
pear, from the very imperfect report of that
44
case in Saunders, and from the one still more
so in T. Raym., 153, that the plea set forth
the precise amount of the assets in hand, and
it might not have appeared with sufficient cer-
tainty that the assets were insufficient to satis-
fy more than the judgments that were well
pleaded. But the fair inference from the plea
must be admitted to be otherwise, for it set
forth "several judgments for large sums," be-
sides the judgment badly pleaded, and it
averred that the executrix had "assets only to a
small sum." In the present case, the defend-
ant has well pleaded three outstanding judg-
ments, which amount to upwards of $1,000 ;
and he hath pleaded no assets prater $1,000 ;
and the important question then arises wheth-
er a plea stating specially the amount of assets,
and well pleading judgments more than suffi-
cient to cover that amount, is to be adjudged
bad in toto, so as to entitle the plaintiff to his
judgment generally, for his whole demand,
merely because the plea sets forth other judg-
ments, which form no protection to the assets.
There is neither good sense nor justice in the
rule, as laid down in the case to which I have
referred/ and with respect to executors and
administrators, who are only defending en
auter droit, the rule goes to charge them in
their own proper persons for the debts of others
and thereby works intolerable hardship. There
is a general rule in pleading, that a plea being
entire is not divisible ; and being bad in part
is bad for the whole. (Earl of *Man- [*19
Chester v. Vale, 1 Saund., 27.) This rule, when
correctly applied, is logical and just. Thus,
when a plea, being entire, and going to the
whole declaration, is good only as to part, and
leaves material parts of the declaration un-
answered, it is bad in toto, for it must contain
an answer to the whole declaration, or it is no
bar. There are numerous cases in which this
rule has been applied. (Cro. Eliz., 268, 331,
443 ; Cro. Jac.. 27 ; 1 Lev., 48 ; 1 Saund., 27.)
So when two persons join in a justification
which is bad as to one, the plea, being entire
and going to the whole declaration, is neces-
sarily to be condemned as no sufficient answer.
(Str., 509, 993, 1184.) In all these cases, the
fitness of the rule will at once be perceived.
But as Mr. Justice, Buller observed in Duffleld
v. Scott, 3 Term Rep. , 376, 377, the rule has
no application where the objection is merely
'on account of surplusage ; and if the plea
states sufficient matter in bar, even if it states
something afterwards which is inaccurate,
yet that will not vitiate the whole.
In the present case, the plea sets forth suf-
ficient matter in bar, viz. : the three outstand-
ing judgments, which will more than absorb
the assets in hand, and the adding of other
outstanding judgments, which are not well
pleaded, may be disregarded as surplusage:
and it ought not to vitiate the sound part of
the plea, on the maxim that uttte per inutile
non viliatur.
Nor is the rule stated in support of the de-
murrer so well settled in the books as to re-
quire our obedience to it, in opposition to the
reason and justice of the case. In Hancocke
v. Prowd, 1 Saund.. 336, the rule was disre-
garded, or set aside, by the court ; for to a
plea by the administrator of four several out-
standing judgments, and nil ultra, the plaint-
JOHNS. REP., 11.
1814
DOUGLASS v. SATERLEE ET AL.
19
iff replied severally to each judgment, that the
first judgment was kept on foot by fraud, and
the second satisfied, and that the defendant
had assets over and above the two remaining
judgments, and the replication was held good
on demurrer, though, if the rule had pre-
vailed (and which was strongly urged by
Saunders, the counsel for the plaintiff), the
replication was double and bad, because the
avoiding any one of the judgments in the plea
would have entitled the plaintiff to his judg-
ment.
The rule is, however, said to have been laid
down by Lord Chief Justice Holt, in Parker v.
Atjuld. 1 Ld. Ilaym., 678 ; 1 Sulk., 811 ; 12
Mod., 527. But it is stated rather as a dictum
than the governing point in the case, and the
2O*] reason assigned *does not seem to be
sound ; for it is said that if the administrator
plead three judgments, though pie may not
have assets more than to satisfy one, it is an
admission of assets to satisfy three judgments,
and if any one of them be ill pleaded, the
plaintiff must have judgment for the value of
the judgments pleaded. If the conclusion
was just, the rule would be applicable ; but
when the plea contains an explicit averment of
assets, it is equally illogical and unjust to let
the implied admission of assets prevail over the
express averment to the contrary, expressum
fatit cessare taciturn. This case is differently
reported in the three books from which it is
cited, and it is badly reported in all, and is not
entitled to much weight in support of the doc-
trine for which it is adduced.
The correct rule on this subject is undoubt-
edly given by Lord Chief Justice Vaughan, in
the case of Kdgcomb v. bee, Vaugh. , 89. To
the action in that case on simple contract, the
administrator pleaded payment of several
debts by specialty, and a debt by recognizance
to £2,000 still due, and a judgment debt in
favor of Allingtpn, in the London court, to
£2,670, and which he had paid, "and also a
judgment for £7,000 still due to one Corn-
waltis, and plene administravit pratter assets to
the value of the debts so paid, and to the
amount of 104., and which remaining assets of
10*. were bound by the recognizance, and the
judgment of Cornwallis. To this plea there
was a demurrer, on the ground that the judg-
ment in favor of Allington, and the payment
of it, was badly pleaded, and that, as the plea
was bad in part, the plaintiff was entitled to
Judgment for his whole debt. But the Chief
ustice, in the able opinion which he has pre-
served, denied this conclusion, even admitting
the judgment of Allington to be bad, and that
until the valid judgment of £7,000, and the
recognizance of £2,000 were satisfied (or either
of them, if the other was not well pleaded), and
further assets remained, the plaintiff had no
right to be paid : for until then he had suffered
no wrong, nor had the administrator done any
or derived any benefit by not satisfying the
plaintiff. The true rule of pleading in this
case, as he said (and which was to be deduced
from the case in 9 Edw. IV., 12 b., and
Tret/tarn's case, 9 Co., 108), was, that the
plaintiff must avoid all payments pleaded in
bar, until assets appear remaining in the de-
fendant's hands ; and that the defendant was
bound to set forth the amount of the assets, so
JOHNS. REP., 11.
that it might appear that he had none remain-
ing, even if *one or more of the judg- [*21
ments be badly pleaded. Unless this appeared
with sufficient certainty, he admitted that the
plaintiff would be entitled to judgment, and
that, if it did so appear, the badness of part of
the plea was neither hurtful to the plaintiff
nor beneficial to the defendant; for "why
should the plaintiff have what he ought not. or
the defendant pay what he ought not ?" and
he observed further, " that the spongy reason
that the defendant's plea is all entire, and
therefore, if any part be false, the plea is bad,
is not sense." Sergeant Williams cites this same
argument, and comes to the same result, in his
note to the case of Hancocke v. Prowd, 1 Saund. ,
387, note 1, and he supposes the true rule may
be, that if the executor plead judgments ob-
tained against the testator, and that he has not
sufficient to satisfy them, or any of them, if
any one or more of the judgments be avoided,
still there ought not to be a general judgment
for the plaintiff, until so many are avoided as
to leave assets in the executor's hands. The
decision of Lord Mansfield in Harrison v.
Boecles, in 1769, and which is cited with ap-
probation by Lord Kenyon, in :> Term Rep.,
688, has much bearing on this point, because
it is founded on a case analogous in principle.
He held that the executor, on plene ad-
ministramt, was not responsible for the whole
demand, if the plaintiff could even prove as-
sets unadministered to any small amount, for
that would be wrong and absurd : and that he
was answerable only to the extent of the as-
sets proved. In deciding a point of such clear
and manifest justice, it is said he ovei turned
a host of authorities.
Another objection to the plea is, that it does
not extend to the assets in the hands of the
other administrators, and if one administrator
be responsible for the acts or denastant of a
co-administrator, the plea is undoubtedly bad.
But I apprehend that is not the case, and that
the rule is settled that one executor is not
chargeable with the devastont, or other act of
his companion, and is only chargeable with
the assets which come to his hands, and is an-
swerable only for the goodness of his own plea.
(Hnrgthorpv. MiUforth, Cro. Eliz.. 818; El-
well v. Quash, Sir., 20 ; Baldwin v. Church,
cited, Ibid.) When assets have once come to
his possession, he is answerable for the due
administration of them, even if he deliver them
over to his co-executor. (Cross v. Smith, 7
East, 246.) It is also equally well settled that
each executor has the control of the estate, and
may release, ' pay or transfer, without the
agency of the other, and that executors
*and administrators stand on the same j *— —
ground, and their powers and responsibilities,
in respect to each other, are the same. (•/</-
wmbv. Han food, 2 Ves., 267, and the case of
WiUandv. Fenn, in the K. B., there cited.)
The plea that the intestate owed his co-admin-
istrator a certain debt, which remains unpaid,
may, perhaps, not be well pleaded ; but
whether it be or be not, is quite immaterial,
and need not be considered, since the sound
part of the plea covers the assets in hand, and
more.
The plea contained distinct matters, divisi-
ble in their nature, in like manner as a plea of
45
22
SUPREME COUKT, STATE OF NEW YORK.
1814
set-off of two separate and distinct demands.
The plaintiff, therefore, instead of a general
demurrer to the whole plea, should have con-
fined his demurrer to the judgments and mat-
ters that were illy pleaded, and have traversed
the residue of the plea. The.different parts of
the plea were as different counts in a declara-
tion, or, perhaps, as different parts of the same
count when it consists of distinct divisible mat-
ter, and then if any part be good, it is suffi-
cient on a general demurrer to the whole plea.
(Dowsland v. Thompson, 2 Bl. Rep., 910;
I Chitty on Pleadings, 643 ; Poicdick v. Lyon,
II East, 565.)
The defendant is, accordingly, entitled to
judgment, with liberty to the plaintiff to with-
draw his demurrer and reply, or take judg-
ment for assets infuturo which may come to
hand, after satisfying the judgments well
pleaded.
Judgment for the defendant.
Cited in— 1 Wend. , 617 ; 4 Wend., 228, 441 : 12 Wend.,
169 ; 23 Wend., 215, 230 ; 24 Wend., 102 ; 28 N. Y., 228 :
17 Hun., 296 ; 61 Barb., 193 ; 17 Abb. Pr., 217 ; 3 How.
Pr., 306; 8 W. Dig., 193; 14 Peters, 169; 3 Cranch
C. C., 35 ; 19 Wis., 316 ; 97 Mass., 503.
23*]
*VISCHER v. YATES.
1. Wager between Electors on Event of Election
Illegal — Recovery against Stakeholder before
Payment to Winner, Maxim, In Pari Delicto,
&c. 2. Parties — Recovery by Principal, of
Money paid by Agent.
A wager between two qualified electors, on the
event of an election, is illegal. And where A de-
livered money to B, as his agent, to bet with on the
event of the approaching election of Governor, and
B made a bet with C, and they deposited the sums
bet with, in the hands of D, it was held that A, the
principal, might maintain an action against D, the
stakeholder, to recover back the money deposited
by B ; the money not having been paid over by D,
though the event of the election was known, and
the wager lost by B.
The maxim that in pan delicto potior eat conditio
possidentis, does not apply in a suit against a stake-
holder, but only where it is f ounded'on the disaffirm-
ance of the contract, and on the ground of its being
void, and that the money ought not to pass to the
winner. Where the event has happened, the maxim
applies, and the loser cannot recover back his
money from the winner ; but before the event hap-
pens, either party may recall his money from the
hands of the other ; and if the money is still in the
hands of a stakeholder, whether the event has hap-
pened or not, either party may reclaim his money,
at any time, while it is in transitu.
Citations— 1 Campb. N. P.. 337 ; 3 Johns., 454 ; 4
Johns., 424 ; 8 T. R., 575 ; 7 T. R., 525 ; 8 Johns. 147 ; 5
T. H., 405 ; 7 Johns., 434 ; 3 East, 222 ; 1 Bos. & P., 31,
296 ; sess. 24, ch. 46 ; 1 N. R. L., 152 ; sess. 25, ch. 44 ;
1 N. R. L., 222 ; Code, 3, 43, 1 & 2.
THIS was an action of assumpsit for money
had and received to the use of the plaint-
iff. Plea, non assumpsit. The cause was tried
at the Albany Circuit, in October, 1813, before
Mr. Justice Thompson.
The plaintiff, in April, 1813, deposited with
Joseph Alexander, as his agent, $500, to bet
on the approaching election of the Governor
of this State. Before the election took place,
NOTE.— Wagers on elections. See Yates v. Foot, ]2
Johns., 1 (reversing the above case of Vischer v.
Yates), note; Clendining v. Church, 3 Cai., 141,
note.
46
to wit : on the 17th of April, Alexander and
Philip S. Parker made a bet of $2,500, and
deposited the money with the defendant, who
delivered to each of them a certificate in
writing, as follows : "This may certify that
Philip S. Parker has deposited with me $2,500,
and Joseph Alexander has deposited with me
the like sum; and incase Stephen Van Rensse-
laer is elected Governor of the State of New
York, at the ensuing election, then I am to
pay the above two sums to Joseph Alexander;
and in case Daniel D. Tompkins is elected
Governor as aforesaid, then I am to pay the
said sums to Philip S. Parker ; such payments
to be made immediately after the votes are
canvassed. April, 17, 1813. John W. Yates."
The $500 left with Alexander, by the plaintiff,
was part of the sum so deposited ; the residue
belonged to four other persons ; and Alexander
informed the defendant and Parker, at the
time, that the money so deposited by him was
not his own, but that he made the bet as agent
for others, whose names, however, he did not
then mention. On the 31st of May, 1813, Alex-
ander gave a written notice to the defendant,
mentioning the names of the persons to whom
the money deposited by him belonged, and
specifying the particular sums belonging to
each respectively. After this notice, the plaint-
iff demanded the $500 belonging to him, from
the defendant, who admitted he had the money
in his possession, but refused to deliver it the
plaintiff. The plaintiff and defendant, Alex-
ander and Parker, were all legal *voters [*24
for Governor, and were so at the time of the
election. All the votes .for the Governor were
returned to the office of the Secretary of State,
and the returns had been published in all the
gazettes, before the 31st of May, and the plaint-
iff knew of the returns before that time ; and
it was admitted that, by the returns of votes
so published, Daniel D. Tompkins had a
majority of votes. The returns of votes were
afterwards, on the 1st of June, 1813, canvassed,
according to the directions of the Act, and the
canvassers certified that Daniel D. Tompkins
was duly elected Governor of the State.
The jury found a verdict for the plaintiff for
$500, with interest, subject to the opinion of
the court, on a case containing the facts above
stated ; and it was agreed that either party
might turn the case into a special verdict, for
the purpose of bringing a writ of error.
Mr. Foot, for the plaintiff. The money in
the hands of the defendant was not so tied or
bound in law, as to prevent the plaintiff from
claiming it. Where money is deposited in the
hands of a stakeholder, on an unlawful con-
tract, it may be recovered back. The wager
in tli is case was unlawful. It was decided in
Bunn v. Hiker, 4 Johns., 426, that wagers
against the principles of sound policy were
void. That was also a wager on the election
of Governor Tompkins. The same doctrine
was laid down in Lansing v. Lansing, 8 Johns,,
454, on the authority of the decision in
Bunn v. Biker. In Cotton v. Thurland, 5
Term Rep., 405, and Lacaussade v. White, 7
Term Rep., 535, it was decided by the Court
of K. B., in England, that money deposited on
an illegal wager, or contract, might be recov-
ered back, even after the event had happened.
In the case of Townsend v. Wilson, 1 Campb.
JOHNS. REP., 11.
1814
VIBCUER v. YATKS.
24
JV. P. , 898, Lord Ellenborough laid it down, ]
that if a person gets money into his bands
illegally, he cannot discharge himself by pay-
ing it over to another ; but is liable to refund
it in an action for money had and received.
Mewr». Woodworth and T. A. Emmet, contra,
contended. 1. That Alexander only, not the
plaintiff, could have a right to bring the ac-
tion. The stakeholder knows only the person
who makes the deposit. The defendant gave
a receipt to Alexander, who might have
brought an action for the money. If the
25*] plaintiff *has a right of action, it must be
on the ground of notice to the defendant. But
the effect of notice is not to create a legal right;
it furnishes only an excuse to the defendant
for paying over the money to the principal.
The cases as to principal and agent arise out of
the law merchant, and are peculiar to commer-
cial transactions. They do not apply to other
affairs. The right of action Accrued", if at all,
the moment the money was deposited. But to
whom ? The person who made the bet and
deposited the money ; not to the plaintiff. The
defendant may not have been willing to have
been a stakeholder to the plaintiff, though he
was to Alexander. Had the names of the
other persons been disclosed, he might have
had good reasons for refusing to be a stake-
holder for them. It would be a fraud on the
defendant to allow the plaintiff, and the others
who claim to be interested, now to bring their
actions against him. Again, five persons were
jointly interested in the sum deposited ; and
will the court tolerate that so many separate
suits should be brought against the defendant?
2. But the principal question is, whether,
after a bet has been fairly made, and the event
has happened by which the money was to be j
lost or won, the court will permit it to bft re-
covered back from the stakeholder. It is sup-
posed that a distinction has been taken in the
English courts, which authorizes a suit to re-
cover back the money deposited with a stake-
holder, if it is not paid over, though the event
has happened on which the wager was to de-
pend. This distinction is first met with in the
case of Cotton v. Thurland, 5 Term Rep., 405.
In that case it was a matter of dispute whether
the event had happened, or the bet was lost or
won. Here no demand was made of the de-
fendant until the event had happened, and the
risk run, and the plaintiff knew that it was
against him. The counsel there argued it on the
supposition that it was not yet decided who
was the winner, and contended for the plaint-
iff's right of action, on the ground that the con-
tract was executory, which distinguished it
from the case of C'ann v. Alder, before Wilson,
J., on which Grose, J., relied at the trial, when
he nonsuited the plaintiff. Lord Kenyon, in
this case, for the first time, takes the distinc-
tion that the action was brought, not against
one of the parties laying the wager, but the
stakeholder. Ashhurst, J., who also concurred
in the opinion that the plaintiff was entitled to
recover, says there was neither equity nor con-
science on the part of the defendant ; for if
the contract were illegal between the parties,
12O*] *yet, as long as the money remained in
his hands, he was answerable to some one for
it. Buller, J.. is stated to have been of the
same opinion, and Grose, J., said, at the trial,
JOHNS. REP., 11.
he agreed to the case decided by Wilson, J.,
but as the cases from Lord Raymond and
Buller's N. P. were the other way, he thought
the nonsuit suit ought to be set aside . and his
opinion seems to accord with the reasons of
neither of the other judges, and is, at best,
founded in error. As. then, none of the other
judges, it this case, take notice of the distinc-
tion taken by Lord Kenyon, it must be regard-
ed merely as adictvm of His Lordship, and in a
case where the contract was executory, or the
event had not happened. Besides, the posi-
tion of Ashhurst, J., that the stakeholder must
be answerable to somebody, is not universally
true ; for in Norman v. Cole, 8 Esp. Cas. , 253,
Lord Elden held that the action was not main-
tainable, though the money was in the bands
of the stakeholder. The case, then, of Cotton.
v. Thurland will not support the plaintiff's
action.
Next as to the case of Lacaustade v. White.
1 Term Rep., 535. That was a wager that
peace would take place between Great Britain
and France before the llth September, 1797.
As it is a notorious fact that no such peace did
take place, the wager was won, and it must
have been an action by the winner against the
loser. The marginal abstract of the point de-
cided is palpably wrong. The counsel do not
argue the case, either on the facts as stated, or
on the principle said to be decided by it. It
is, in truth, a case so misreported as to be en-
titled to no weight as an authority. Indeed,
the case was afterwards discussed and exam-
ined in the case of Hmexm v. Hancock, 8 Term
Rep., 575; see, also, 1 East, 98 ; 8 East, 881, n.
a, and considered as overruled.
The confusion and uncertainty which has
prevailed on this subject has arisen from the
want of a clear and fixed principle of decision.
Lord Mansfield, in Smith v. Bromley, Doug.,
696, lays down the rule that where both par-
ties are equally criminal, the party paying
shall not have his action to recover back his
money, according to the established legal max-
im, that where both are in pan deUeto, potior
estconditiodefendentin; and the only distinction
is between the case where both parties are
equally affected by the illegality, and that in
which the party receiving the money only is
affected by it. The legal maxim applies to
the present case ; for though the defendant
Yates, being a mere stakeholder, cannot be
said to be in part deUcto with the plaintiff,
*yet the real parties in interest are so, [*27
and it is to them the court will look. For, as
Lord Ellenborough said in Edgar v. Fowler, 8
East, 223, the court will not assist an illegal
transaction, iu any respect, but leave the mat-
ter as they found it ; and then the maxim ap-
plied of potior est conditio pomdenti*.
In Bunn v. Hiker, 4 Johns., 426, in which
the wager was decided to be illegal, this court
would not allow the plaintiff to recover any-
thing, not even his own money.
Again, what is the principle of the action
for money had and received? It is that the
demand of the plaintiff is equitable and con-
scientious, not merelv that it arises out of an
illegal transaction. It is unfair and unconsci-
entious to wait until the event happens, and
take the chance of winning, and then, when
the event is known, bring his action to recov-
47
27
SUPREME COURT, STATE OF NEW YORK.
1814
er back his money, There is, therefore, no
distinction between an action against the stake-
holder or the principal after the event has hap-
pened. The claim is equally unconscientipus
in either case. The equitable and conscien-
tious nature of the plaintiff's claim is the es-
sence of the action, and the illegality of the
transaction gives him a right to recover no fur-
ther than his demand is conscientious.
The impolicy of wagers of this kind is not
the only evil to be guarded against; there is
another and greater evil, as it respects morality
and good faith, which is to allow a party,
after the event has happened, to recover back
his money against probity and conscience. ^
A stakeholder is the agent of both parties.
Each authorizes him to use the same defense
the principal would have if the suit was against
him. This court is not shackled by any En-
glish authority antecedent to pur Revolution ;
but is at liberty to decide this case on prin-
ciple.
Mr. Foot, in reply, said as to the mode of
bringing the action, it is sufficient to cite the
case of the Duke of Norfolk v. Worthy, 1 Campb.
N. P., 337, in which Lord Ellenborough de-
cided that an action for money had and received
might be brought by the principle to recover
back money deposited by his agent in the
hands of a third person.
Again, parties are not bound to join in an
action, unless they have a joint interest in the
same thing. Here each of the persons who
have brought suits against the defendant
claims his own separate and distinct sum of
money.
All the cases, old and new, agree in saying,
28*] that where the *money is not paid over,
or where the contract is executory, the plaint-
iff may bring an action to recover back the
money.
KENT, Ch. J., delivered the opinion of the
court :
Two questions have been made upon this case:
1. Whether the action (if any) ought not
to have been brought by Alexander, who ac-
tually deposited the money.
2. Whether an action will lie at all to re-
cover back the deposit money.
1. The case of the Duke of Norfolk v.
Worthy, 1 Campb. N. P. , 337, is in point, to
prove that the suit is well brought in the name
of the plaintiff ; for the $500 deposited was
the plaintiff's money paid through the medium
of his agent, and if the money ought to be re-
funded to any person it ought to be to the
plaintiff. The decision of Lord Ellenborough,
in the above case, was afterwards sanctioned
by the K. B., and the principle contained in it
appears to be solid.
2. The wager in this case was illegal. This
was so decided in Bunn v. Biker, 4 Johns.,
426, and that decision was afterwards repeated
in Lansing v. Lansing, 8 Johns., 454. And
when we consider the importance of popular
elections to the Constitution and liberties of
this country, and that the value of the right
depends upon the independence, moderation,
discretion and purity with which it is ex-
ercised, we cannot but be disposed to cher-
ish a decision which declares gambling upon
such elections to be illegal, as being founded
48
in the clearest and most incontestable princi-
ples of public policy. Here was, then, an ille-
gal contract, and the plaintiff, by his agent,
deposited $500 with the defendant, as a stake-
holder, to be hazarded at the Governor's elec-
tion. If. after the determination of the event
against the plaintiff, the money had actually
been paid over to the winner with the plaint-
iff's consent, or perhaps without notice to the
defendant to the contrary, the plaintiff could
not have sustained an action against the win-
ner to recover back the deposit. This was so
decided in Howson v. Hancock, 8 Term Rep. ,
575, and Lord Kenyon said in that case, that
there was no instance of such an action being
maintained. The case, then, of Lacaussade v.
White, in 7 Term Rep., 525 (and which ap-
pears to be very imperfectly reported), was ei-
ther an action against the stakeholder, before
the money was paid over, as Lord Kenyon
understood it, or it was corrected and overruled
by the *case of Howson v. Hancock. [*29
There is also a decision in this court in exact
conformity with the latter case. (M'Cullum
v. Gfourlay, 8 Johns., 147.) But the present
action is not against the winner, after the
money has been paid, but it is against the
stakeholder before the money has been paid,
and after notice to the stakeholder not to pay
it over, and it falls within the case of Cotton v.
Thurland, 5 Term Rep., 405. That was the
case of a wager deposited with a stakeholder,
upon the event of a battle to be fought between
the plaintiff and a third person. The battle
was fought, and notice was then given to the
defendant not to pay over the money ; and it
was held by the Court of K. B. that the action
lay against the stakeholder to recover back the
deposit, as the money was still in his hands,
and he was answerable to some person for the
money, and had no conscience on his part to
retain it. This case has never been contradict-
ed or questioned, and it is precisely in point.
There is not a decision to be met with in the
English law that is against it. The cases are
generally between the principals to the illegal
contract ; and the courts take a distinction be-
tween contracts that are immoral or criminal,
and such as are simply illegal and void. Assist-
ance is usually given to the party, in the latter
cases, to recover back his money ; and this
court lent such assistance in the case of Mount
& Wardett v. Waites, 7 Johns., 434. The
stakeholder ought not to be permitted to hold
the money in defiance of both parties. There
would be no equity in such a defense, and if
the plaintiff cannot recover back the deposit in
this case, the winner cannot recover it ; for
that would be compelling the execution of an
illegal contract as if it were legal, and would
at once prostrate the law that declares such
contracts illegal. The case of Edgar v. Fow-
ler, 3 East, 222, is to this effect. In that case
the premium, for an illegal insurance, was
considered by the assured and by the broker,
as paid to the broker for the insurer, and the
policies were signed. The assured afterwards
gave notice to the broker "to hold the stakes
deposited by him in his hands, for his use, and
not to pay any money over ;" and the insurer
was not permitted to recover the premium, so
admitted to be deposited, because it would be
enforcing an illegal contract.
JOHNS. REP., 11.
1814
VISCHER v. YATES.
29
Much is said, in some of the cases, upon the
distinction between executed and executory
.contracts, and that where the plaintiff waits,
without taking any step to rescind the con-
3O*J tract, *until the risk has been run, the
courts will, not help him to recover back the
deposit money, but will remain neutral be-
tween the parties. The claim of the plaintiff
is repelled by the maxim that in parideltetopotior
>-it condttio poutidentu. But this objection is
applied exclusively to the suit against the prin-
cipal or winner ; and there is no instance in
which it has been used as a protection to the
intermediate stakeholder, who, though an
.agent in the transaction, is no party in interest
to the illegal contract. As between the plaint-
iff and him, the maxim has no application.
He is not in pari delicto, and the parties must
be equally criminal, before the maxim can be
applied. The stakeholder canuot in good con-
science appropriate the money »to his own use ;
and as it was received without a valid consid-
eration, and for an illegal purpose, the plaintiff,
as against him, has the preferable title. The j
action is founded on the disaffirmance of the
unlawful contract and on the ground that it
is void, and that the money ought not to pass
to the winner. After the event, it is then in-
deed too late for the loser to reclaim the money
from the winner, for then the maxim applies ;
but before the event has happened, either
party may repent and recall the deposit money
• • v.-n out of the hands of his opponent. And
if the money is still with the stakeholder, the
happening of the event is immaterial, and
either party may, at any time, arrest it. These
are the true distinctions, and which go to
reconcile all the cases. " In illegal transac-
tions the money," as Lord Ellenborough said
an Edgar v. Fowler, " may always be stopped
while it is in transitu to the person who is en-
titled to receive ft,"
There is not a case, or a dictum, as I appre-
hend, that does not allow the merits of the
/contract to be discussed, so long as the defend-
ant stands in the character of a stake-
.holder. There are cases in which the pay-
ment of money to an agent, on the consum-
mation of an illegal contract, to and for the
use of the opposite party, has been held re-
•coverable without looking back to the original
contract ; but in those cases the money was
not deposited with the agent, qua stakeholder,
to abide the event. (Tenant v. Elliott, 1 Bos. &
Pull., 8, and Fanner v. Jtusnell, Ibid., 296.) It
was paid absolutely for the principal's use.
But where it is a mere deposit on the contin-
gency of the bet, the winner cannot claim it by
suit as that would be an affirmance of the
illegal contract, and asking the aid of the
court to enforce it. In Edgar v. Fowler, some-
losses had actually happened upon the illegal
31*] 'policies before the assured gave notice
to the broker not to pay over the premium,
and yet the assignees of the underwriter were
not allowed to recover that premium out of
the hands of the broker, though the risk in
that case had actually been run.
The English rule is the true rule on this sub-
ject. On the disafilrmance of the illegal and
void contract, and before it had been carried
into effect, and while the money remains in
ilir hands of the stakeholder, each party
JOHNS. RKP., 11. N. Y. R. 5. 4
ought to be allowed to withdraw his own de-
posit. The court will then be dealing equi-
tably with the case. It will be answering the
policy of the law, and putting a stop to the
contract before it is perfected. By denying
the plaintiff his right of recovery, we should
condemn what is now the acknowledged En-
glish law, and we should infringe the spirit of
many decisions (and one of them in this court),
which have allowed premiums to be recovered
back, when actually paid over, where there is
no intrinsic criminality in the contract. We
should also find that the practice of betting
at elections would be continued, with all the
heat and corruption which it engenders ; for
if the plaintiff cannot, by law, recall his de-
posit from the stakeholder, it will most cer-
tainly pass into the hands of the winner. The
courts have gone quite far enough, when they
refuse to help either party, as against the
other, in respect to these illegal contracts.
This was a step beyond the policy of the law-
giver. The Act of 1801, against gaming
(sess. 24, ch. 46 ; 1 N. R. L., 152), allowed the
loser to recover back of the winner his lost
money, and the subsequent Act,^ of 1802,
against horse-racing (sess. 25, ch. 44"; 1 N. R.
L., 222), contained the same provision. Nor
are our statute laws peculiar on this subject.
The statute of Anne, from which the Act of
1802 was borrowed, contains the same regula-
tion ; and so did one of the edicts in the code
of the civil law. (Code, 3, 43, 1 and 2.) The
French ordinance of Louis XIII. went still
further, and gave to the loser an action to re-
cover back his money, even against the owner
of the house in which he was permitted to
gamble. We may be assured that the present
action (and which, indeed, falls far short of
these statute provisions) is perfectly consistent
with the policy and the wisdom of the sound-
est institutions among mankind. And if
gambling on elections does really lead to cor-
ruption, passion and violence, we ought anx-
iously to adopt every just principle calculated
to put an end to the mischievous *prac- [*32
tice. No rule which falls within the cog-
nizance of the courts appears to me to be more
fit and effectual than that which suffers the
deposit money to be arrested while it is in
transitu.
We have hitherto proceeded upon the as-
sumption of the fact that the event had hap-
pened within the contemplation of the con-
tract, when notice was given to the defendant
not to pay over the money. But this was con-
ceding more than the case required. The
money was not to be paid over until the votes
for Governor were "canvassed." The statute
renders the decision of the canvassers final and
conclusive ; and it by no means necessarily
followed, that the majority of votes returned
into the Secretary's office would determine the
event ; for some of the votes might have been
illegally returned. Frequent instances have
occurred in which the candidate for an elect-
ive office, with a minority of the votes re-
turned, has been declared duly elected. In
this case, the parties referred to the decision
of the canvassers, as the true and only certain
test of the determination of the bet, and that
test had not been given when the money was
demanded of the defendant. The risk had
32
SUPREME COURT, STATE OP NEW YORK.
1814
not, at that time been run and determined
within the purview of the contract. This ob-
jection is, however, founded on a strict con-
struction of the contract ; and though it would
be sufficient to avoid the application of much
of what was urged on the part of the defend-
ant, yet we choose rather to place the decis-
ion of this case upon those great and solid
principles of publ;c policy which forbids this
species of gambling, as tending to debase the
character, and impair the value of the right of
suffrage.
The court are, accordingly, of opinion that
the plaintiff is entitled to judgment.
Judgment for the plaintiff.
N. B. There were four other suits by the
other persons who had delivered different
sums at the same time to Alexander, for the
purpose of betting on the election of Governor,
and which, depending on the same facts and
principles as the above case, were decided by
the court on the same ground, and judgments
were entered for the plaintiffs accordingly.
Reversed— 12 Johns., 1, 17, n.
Cited in- 17 Johns., 195; 5 Wend., 251; 15 Wend.,
415 ; 1 N. Y., 401 ; 27 N. Y., 263 ; 4 Barb.. 526 : 60 How.
Pr.. 57 : 8 Abb. N. C-, 450 ; 7 Leg. Obs., 13 ; 4 Cranch.
C. C., 166 ; 46 Wis., 486.
33*] *JACKSON, ex dem. DE BIDDER,
v.
ROGERS.
Ejectment — The Place of Taking a Distress is
Material and Traversable — Forfeiture — Dis-
claimer.
The place of taking a distress for rent is material
and traversable : and where, in an action of replev-
in, the tenant in his pleas to the avowry denied
holding under the lease, but from the points in is-
sue it appeared that the only question was, whether
the place in which the distress was taken, was with-
in the demised premises, it was held, in an action of
ejectment to recover the premises, on the ground
of a forfeiture by reason of a disclaimer, that the
pleas did not amount to a general disclaimer of all
holding under the lease : and that the doc-
trine of a forfeiture, if applicable to a lease for
life, would not apply to such a disclaimer, but that
evidence was admissible, to show that the disclaimer
was intended only as to the place in which the dis-
tress was taken, and also that such place was not
covered by the lease.
THIS was an action of ejectment for one
hundred acres, part of great lot No. 15, in
the Saratoga patent. The cause was tried in
September, 1812, at the Saratoga Circuit, be-
fore Mr. Justice Yates.
The lessor of the plaintiff claimed the prem-
ises as heir of Walter De Ridder, on the
ground that the lease of the premises made by
his ancestor to Foster Whitford of whom the
defendant had purchased the term, and under
which he held possession, had been forfeited
by the disclaimer of the defendant to hold un-
der the lessor.
It was proved by the attorney of the lessor,
the ancestor, that he demanded rent of the de-
fendant on the lot in question, which was the
westernmost lot in the subdivision of lot No.
15, in the Saratoga patent ; that the defendant
admitted himself to be in possession of the
oO
lot described in the lease (produced at the
trial), which made one farm, and recognized
the claim of the lessor of Walter De Ridder,
the ancestor of the plaintiff's lessor ; that the
rent not being paid by the defendant, the at-
torney caused a distress to be made on the lot,
and the property taken was replevied by the
defendant, on which issues were joined in an
action of replevin, which was tried before the
Court of Common Pleas of Saratoga County ;
and that, on the trial, the whole evidence of
the defendant went in support of his plea of
disclaimer, and no other plea was attempted
to be supported ; though the witness stated
that he could not say that the defendant denied
the claim of the lessor to the whole lot, but it
was contended that the barn was out of the
patent of Saratoga. The disclaimer thus in-
sisted on, the witness believed, was the sole
ground on which jury in the Court of Com-
mon Pleas gave a verdict for the defend-
ant.
The record of the judgment in replevin in
the C. P. was produced, from which it ap-
peared that the lessor of the present plaintiff
pleaded not guilty, with an avowry and cog-
nizance that the barn in which the distress was
taken, as alleged in the declaration, was on
and parcel of certain lands and premises con-
taining one hundred acres, held by Foster
Whitford of K. De *Ridder (the ances- [*34
tor), deceased, by virtue of a lease, &c., and
justified the taking of the goods, &c. , in the
said barn in which the same were taken, as a
distress for rent arrear, &c. To this avowry
and cognizance, the defendant pleaded six
pleas in bar : 1. That the avowant took them
in his own wrong, without any such cause,
&c. 2. Because the lands and premises, with
the appurtenances, in which, &c., supposed to.
contain one hundred acres, have not been held
and rented by one Foster 'Whitford of one
Kilian De Ridder, late deceased, by virtue of
an indenture, &c., &c., nor have the same for
a longtime, to wit: from the 17th of June, 1798,
until the 17th of June, 1807, been held and en-
joyed of or under one Walter De Ridder, and
as the avowant, in his said cognizance, has al-
leged, &c., nor during all that time did the
said Rogers hold the same of the said Walter
De Ridder as his tenant, &c. 3. Because he
says that he did not, for and during the time
in the said cognizance mentioned, &c., hold
the said place in which, &c., of the said Wal-
ter De Ridder, &c. 4. Because, at the said
time when, &c., nothing of the said rent was
in arrear, &c. 5. Because, protesting that the
said barn in which the said goods were seized
and taken, &c., at the time, &c., was not on
and parcel of the lands and premises contain-
ing one hundred acres, rented and held by,
&c., the said Rogers was not, during the time
&c., or any part thereof, seized as of fee and
right of and in the said lands and premises
in which, &c., or of and in the said rent of,
&c., issuing out of the said place, land and
premises in which the said goods, &c. , are al-
leged to have been seised, &c. 6. Because,
protesting that the said barn in which, &c.,
was not on and part of the lands and prem-
ises, &c., and protesting that the same place
in which, &c., from &c., have not been held
of, &c., he says that long before the taking of
JOHNS. REP., 11.
1814
WOOD, EX DEM., v. LIVINGSTON.
34
the said goods, &c.( in the said place in which
&c., and also at the time when, &c., he, the
said Rogers, was seised of the said place, lands
and premises, in which, &c., in his demesne as
of fee, and this, &c.
The defendant's counsel offered to prove
that that part of the lot on which the barn
stood in which the distress was made, and
which they disclaimed to hold of Walter De
Ridder, was not within the bounds of the
Saratoga patent, and had been so pointed out
by K. De Ridder, the ancestor, in his lifetime,
and who admitted that it could not be com-
prised within lot No. 15 of that patent, nor
within the lease which was offered in evidence,
35*] and that before *the trial the sum of
$110 had been tendered to the plaintiff in full
of the rent of that part of the lot which was
within the Saratoga patent, and of the costs
of the suit. But this evidence was overruled
by the judge, under whose dkection the jury
found a verdict for the plaintiff
A motion was made to to set aside the ver-
dict, and fora new trial.
Mr. Foot for the defendant.
Mr. Wendell, contra, cited Co. Litt., 283 a.
2336/2 Bac. Abr., 280, Estate for Life; C.
Woodfall's Tenant, 202, 203 ; Co. Litt., 251 b;
Finch, 270, 271 ; Booth's Real Act, 131 ; Com.
Dig. Droit, F. ; 2 Bl. Com., 275 ; 3 Bl. Com.,
233, 234 ; 7 Johns., 34, 188 ; 8 Johns., 868; 6
Johns., 63 ; 2 Caines' Rep., 215.
Per Curiam. It struck the court, on the
first perusal of the second plea contained in the
record of the action of replevin, that it was a
disclaimer of any holding under the present
lessor of the plaintiff, and so it must have been
understood in the court below. But, on fur-
ther examination of the whole record, the plens
and the issues appear to have been confined
to the fact whether the barn in which the
distress was made was part and parcel of the
one hundred acres covered by the lease, and
the pleas were not intended as a general dis-
claimer of holding any lands whatever under
the lease. The place of taking a distress is
material and traversable ; and at common law
the distress was to be made upon the demised
premises, and it is only in the cases mentioned
in the statute that the distress may now be
made off the premises. The whole question
put in issue by those pleas was, whether the
barn was or was not on the one hundred acres
demised. The doctrine of forfeiture, if it ap-
plied at all to a disclaimer by a tenant for life,
did not apply to this case, and when the de-
fendant offered to show that his disclaimer was
only intended to be confined to the barn, and
that the barn was not covered by the lease, and
that the original lessor had admitted it, the
evidence was material, and ought to have been
received. It went to show that he was only
contesting the legality of the distress in a place
not included in the lease, and that, as to the
38*] lands *actually demised, he had no inten-
tion of doing any act inconsistent with his
duty as a true and loyal tenant.
A new trial ought, therefore, to be awarded,
with costs to abide the event of the suit.
New trial granted.
Cited In— 41 N. Y., 78.
JOHNS. REP., 11.
WOOD, ex dem. ELMENDORF,
f.
LIVINGSTON.
Ejectment— Estoppel— Grantor Bound in Private
Capacity by Boundary settled by him as
Trustee.
In ejectment, where A. claimed title under J. 8.,
and B. also claimed title under a deed from J. 8.
and others, as trustees of the town of R., settling
the boundary line of the disputed premises, it was
held that J. S. was bound, in his individual capacity,
to the line BO agreed to and settled by him as a
trustee, and which hi- had covenanted to maintain ;
and that such deed of settlement was a bar to the
claim of A.
THIS was an action of ejectment for land in
the town of Neversink, in the County of
Sullivan. The cause was tried at the Ulster
Circuit, in November, 1812, before Mr. Justice
Van Ne*s.
The plaintiff gave in evidence, 1. A patent
dated the 25th of June, 1708, to Henry Beek-
man, Joachim Schoonmaker and Moses Depuy
as trustees for the town of Rochester. 2. A
patent to the trustees of Marbletown. 8. The
records of the town of Rochester, by which it
appeared that Jacob Hornbeck, Andriee
Dewitt and Jacobus Van Wagenen were
trustees of Rochester, and Elias and Ephraim
Depuy, freeholders, elected for one year, from
the first Tuesday of June, 1767 ; and a con-
veyance to them from the trustees of the
former year of all lands within the patent not
sold. 4. A conveyance from the said Horn-
beck, Dewitt and Van Wagenen, as trustees
of Rochester, with the advice and consent of
Elias and Ephraim Depuy, to Joachim Schoon-
maker, Jr., dated 19th of December, 1768. 5.
A deed from Joachim Schoonmaker, Jr., the
said grantee, to Lucas Elmendorf, the lessor of
the plaintiff, for the same premises and other
tracts, dated the 15th of January, 1805. The
plaintiff then produced several witnesses to
show the bounds of the lands so conveyed, &c.,
but it is thought unneccessary to state their
testimony.
The defendant gave in evidence a partition
deed of the proprietors of the Hardenbergh
patent, dated the 15th of November, 1749,
whereby great lot No. 4, in the said patent,
was released to Robert Livingston and Gulian
Verplanck ; and also a release of the said lot
No. 4 to the said Livingston, dated the 12th
of December, 1749. He also proved that he
was the heir at law of the said Robert Living-
ston. He further gave in evidence *a [*37
deed from Jacob Hornbeck, Andrics Dewitt
and Joachim Schooumaker, Jr., styling them-
selves trustees of the lands, &c., of the town
of Rochester, and Benjamin Hornbeck, Hen-
drick Hornbeck and Johannes Ousterhoudt,
Jr., dated the 18th of February, 1778. reciting
that doubts had arisen between the trustees of
the town of Rochester and the proprietors of
the Hardenbergh patent, relative to the true
NOTE.— Extannel— Admixxionx try one in an official
capacitii,hmp far binding on him in hi* private ca-
. To the same effect as the above case of
v. Living-ston, we Vroom v. Van Home, 10
iKirihi.
Wood
, 549. But see Cauirbey v. Smith, 47 N. Y..
244; Benjamin v. Frazer, 5 N. Y. Leg. Obe., 18.
51
37
SUPREME COURT, STATE OF NEW YORK.
1814
bounds of the town of Rochester, and in order
to remove those doubts, &c., the parties of the
first part released to the parties of the second
part all the lands southwest and northwest of
an agreed line then fixed, mutually concluded
on, and run, &c., which line, it was admitted,
was several miles to the southeast of the prem-
ises in question. The defendant also gave in
evidence the records of the town of Rochester,
by which it appeared that the parties of the
first part, named in the said deed of settlement,
were the trustees and freeholders of the town
at the date of the said deed, and that an entry
of this settlement was made in the records, and
a memorandum that the deed to Joachim
Schoonmaker, Jr., was void, and that the
consideration money had been returned to
him.
The judge being of opinion that the deed
of settlement of the 13th of February, 1778,
was a bar to the plaintiff's recovery, he con-
sented to a nonsuit, with liberty to move the
court to set it aside, and for a new trial.
Mr. Sudam, for the plaintiff. He cited 2
Term Rep., 169 ; 2 Johns. Cases, 278.
Mr. P. Buggies, contra.
Per Guriam. The plaintiff claims title
under a deed from Joachim Schoonmaker, Jr. ,
bearing date in 1805 ; and the defendant claims
title under a deed of settlement and release,
from the same Schoonmaker and others, as
trustees of Rochester, bearing date in 1778.
This last mentioned deed was a solemn settle-
ment of the line between the Rochester and
Hardenbergh patents ; and Schoonmaker was
bound in his private capacity to the line so
settled by him as trustee. Justice and good
faith hold him to this recognition of the line
by the deed of 1778, notwithstanding he acted
as a trustee for the town. He cannot acknowl-
edge a line in one capacity, and then be per-
38*] mitted to *deny it in another ; and espe-
cially, as in the deed of 1778 he bound himself,
individually, by covenants, to the maintenance
of that line.
Motion denied.
ANDREWS v. VANDUZER.
Slander — Justification — Pleading.
When, in an action of slander, the defendant at-
tempts to justify a charge of felony, he must justi-
fy as to the specific charge laid, and cannot set up
a charge of the same kind, but distinct as to the
subject matter.
In an action of slander, the defendant cannot give
in evidence, under the general issue, matter which
might be pleaded in bar, nor give evidence of any
other crime than the one charged.
Citations— Cro. Jac, 677 ; 1 Ld. Raym., 727 : Bull.
N. P., 9.
IN ERROR, from the Court of Common
Pleas of Sullivan County. Vanduzer
brought an action of slander against Andrews
in the court below. The declaration stated
that the defendant had maliciously, &c., said
of the plaintiff, that he, the plaintiff, "had
had connection with a mare," &c., meaning
-52
thereby that he had been guilty of the crime
against nature with a beast. The defendant
pleaded the general issue, with notice that he
would give in evidence that the plaintiff , be-
fore, &c., committed the detestable crime
against nature on a certain beast called a cow ;
and also that he, afterwards, &c., committed
the crime against nature with a certain beast
called a mare. At the trial, the defendant of-
fered to prove that the plaintiff had been guilty
of the said crime with a cow, and insisted that
the evidence ought to be received in bar of the
plaintiff's action, or, at least, in mitigation of
damages ; but the court below refused to ad-
mit the evidence either in bar of the action, or
in mitigation of the damages, and the defend-
ant thereupon tendered a bill of exceptions to
the decision of the court. _
A verdict was found for the plaintiff for
$250 damages, on which the court below gave
judgment.
Mr. Sudam, for the plaintiff in error, con-
tended that the evidence offered, if not admis-
sible in justification, was good evidence in
mitigation of damages. The notice was tan
tamount to a plea of the special matter, and the
court, in Underwood v. Parkes, Str. Rep., 1200,
refused to allow the truth of the words to be
given in evidence under the general jssue, but
said it must be pleaded.
frrMessrs. Setts and Fish, contra, insisted that
the facts stated in the plea could never be a
justification, nor could they be given in evi-
dence in mitigation of damages. In Hilsdenv.
Mercer, Cro. Jac., 677, the charge was, that
A was a thief and had stolen £20 ; and
*the defendant, in justification, pleaded [*39
that the plaintiff had stolen a hen ; and the
court said the words pleaded were as slander-
ous as the others, and no justification of them.
And in Smithies v. Dr. Harrison, Lord Raym. ,
727 ; Bull. N. P., 9, where the charge was the
adultery of the plaintiff with J. S., the court
said the defendant could not give in evidence
the adultery of the plaintiff with any other
woman, even in mitigation of damages. It is
not necessary to give notice of matter intended
merely in mitigation of damages. One slan-
der cannot be justified, or its damages miti-
gated, by another slander. The charge is of
a specific offense, and the defendant must
be confined in his defense to the special
charge.
Per Ouriam. The decision of the court be^ j
low was correct. The cases in Cro. Jac. , 677,
1 Ld. Raym., 727 ; Bull. N. P., 9, show that
the defendant who would justify a charge of
felony, must justify as to the specific charge
laid, and cannot set up a charge of the same
thing, but distinct as to the subject matter.
It is a settled rule that a defendant cannot give
in evidence, under the general issue in an acj
tion of slander, matter which might be plead-
ed in bar, nor can he give in evidence any
other crime than the one charged. The judg-
ment below must be affirmed.
y
Judgment affirmed.
Cited in-« Cow., 122 ; 19 Wend., 490 ; 24 Wend.,
107 ; 4 N. Y., 166 ; 2 Barb., 213 ; 3 Barb., 601 ; 13 Barb.,
223 ; 6 How. Pr., 257 ; 9 How. Pr., 49 ; 46 Wis., 296.
JOHNS. REP., 11.
1814
COOK v. COMMERCIAL Ins. Co.
40
4O*J *COOK AND PRATT
v.
THE COMMERCIAL INSURANCE COM-
PANY.
Marine Insurance — Barratry — By Matter when
Supercargo or Consignee — Owner may f future
against Barratry by Master.
Barratry may be committed by the master of a
ship, in rc8|>ect to the cargo, though the owner of
the cargo is, at the same time, owner of the ship,
and though the master is also the supercargo or
consignee for the voyage.*
Citations— 4 Dall., 294 ; 8 East, 140 ; 2 Cai.. 72.
was an action on an open policy of in-
surance, dated the 5th June, 1809, on the
cargo of the schooner Despatch. " ai and from
St. Jago de Cuba to New Orleans, and at and
from thence to New York.i' The plaintiffs
claimed a total loss by barratry of the master.
The Despatch, belonging to the plaintiffs, with
a cargo also owned by them, sailed from New
York on the 29th August, 1806, for St. Jago
de Cuba, commanded by L. Rogers, who was
also supercargo and consignee for the voyage.
The vessel arrived at St. Jago de Cuba, where
the outward cargo was sold by Rogers, and
part of the proceeds invested in a return cargo,
consisting of indigo, tortoise shell and specie,
equal in value to the amount insured ; and on
the 26th April, 1809, the vessel sailed, under
the command of Rogers, on the voyage in-
sured, and arrived at New Orleans on the 8th
June, 1809, where Rogers, the master, fraudu-
lently converted the specie to his own use, and
never further prosecuted the voyage, but af-
terwards absconded.
A verdict was taken for the plaintiffs, sub-
ject to the opinion of the court on the above
case.
Mr. D. B. Ogden, for the plaintiffs, con-
tended that this was a clear case of barratry,
and the only possible objection he could an-
ticipate to the plaintiffs' right of recovery was,
that when the master was also supercargo and
consignee there could be no barratry in regard
to the cargo, or there could be no barratry in
that respect, where the owner of the cargo
was at the same time owner of the vessel. As
to this objection, he relied on the case of
Earle v. Rnccroft, 8 East, 126, in which Lord
Ellenborough considered it as hardly deserv-
ing a serious answer, but that it need only to
*8ee Grim v. The Phoenix Ins. Company, 13
Johns., 451 ; Dederer v. Delaware Ins. Co., 2 Wash.
C. C. K., 61 ; The Patapsco Ins. Co. v. John Coulter.
3 Peters, 222.
be stated to show that it had no weight. Bar-
ratry is there laid down to be any fraudulent
or criminal conduct against the owners of ship
or goods by the master or mariners, in breach
of the trust reposed in them, and to the injury
of the owners, though not done with intent to
injure the owners, or to benefit, at their ex-
pense, the master or mariners.
*Mr. Wells, contra. The doctrine of [*41
barratry is not founded on principles of natur-
al justice. Its operation against insurers, who
do not appoint and seldom have any knowl-
edge of the master or mariners, is hard and
unjust. The court, therefore, will not feel
disposed to extend it, but will rather confine
it where it ought to be confined, to the own-
ers of the vessel, who have the appointment of
the master. Lord Mansfield (Nntt v. Bourdieu,
1 Term Rep. , 323-330) thought it extraordinary
that the doctrine should ever have crept into
the law of insurance.1
1. The first proposition for which I shall
contend is, that there cannot be barratry, in
relation to the cargo, when it is owned by the
owner of the vessel.
Marshall (Marsh, on Ins., 875) defines barra-
try "any act committed by the master or mar-
iners, for an unlawful or fraudulent purpose,
contrary to their duty to their owners, and
whereby the owners sustain an injury." The
definition of Park is more accurate: "that
any act of the master or mariners, which is of
a criminal or fraudulent nature, or which is
grossly negligent, tending to their own benefit,
to the prejudice of the owners of the ship,
without their consent or privity, is barratry."
This definition is adopted bv Brackenridge,
«/., in the case of Calhoun v. Int. Co. of Penn-
sylvania, 1 Binney's Rep., 293, 322, omitting
the words "tending to their own benefit.
All these definitions agree in one essential cir-
cumstance, that the act done must be to the
prejudice of the owners of the vessel. This
prejudice may be either direct and immediate,
or consequential. For when the cargo is
fraudulently disposed of by the master, it is
consequentially injurious to the owners of the
vessel, because they are responsible for the
embezzlement of the cargo. But if no injury,
direct or consequential, arises to the owners
of the vessel, there can be no barratry. Here
the plaintiffs are owners of both vessel and
cargo, and as they cannot, in the character of
owners of the vessel, be answerable to them-
selves, as owners of the cargo, no such
injury can arise, and so there is no barratry.
1.— See Millar on Insurance. 138-455 : 1 Emerigon,
. * > . .
NOTB.— Barratry— Definitions— Insurance by own-
" Barratry includes every species of fraud, concern-
ing cither the *hip or caryo, committed by the mtutter,
in rcsjtect to hi* trust as master, to the injury of the
fwwnc or 8/»i/>;»w«." Poet, p. 45.
Barratry I* KIWI,- breach of trust in the master, ex
iimlrtlrio. Phin v. Royal Exchange Assurance Co.,
7 T. K.. 508.
" There must he fraud or crime to eonrtitute bar-
ratry." Earl v. Rowcroft, 8 East, 126.
It iiu-liulix acts of the master which are fraudulent
or criminal, and hi* breaches of trust, ex" maleflcio.
Walden v. X. Y.. *c., Ins. Co., 12 Johns., 128.
" An act to fte Itarratroux muxt he done tcith frautl-
ulent intent, or ex malendo." Grim v. Pnuenix
Ins. Co., 13 Johns.. 457. To the same general effect
as above definitions, see Kcndrick v. Delafleld, 2
JOHNS. REP.. 11.
Cal., 67 ; Mclntyre v. Bowne. 1 Johns., 229 ; Ameri-
can Ins. Co. v. Bryan. 28 Wend.. 583: 1 Hill, 26;
Mathews v. Howard. 11 N. Y., 9; Wiggin v. Amory.
14 Mam., 1 : Crousillat v. Hull. 4 Dall.. 204; Knight
v. Cambridge, 1 Str., 581-8 Mod., 230; Valk-go v.
Wheeler, Cowp.. 154: waters v. Merchants Ins.
Co., 11 Pet., 213, note in Laic ed,
A matter who is al*o part oirncr is legally inca-
pable of committing an art of barratry. Wilson v.
• irn.-nil Ins. Co.. 12 Tush., 3HO. See. also, Taggard
v. Loring, 1H Mass., 336.
Barratry may be committed by the master in re-
*ucct t<> th< raruo when owned by the owner of the
ship. Kendrick v. Delafleld, 2 Cai.. 67; the above
case of Cook v. Com. Ins. Co.
The owner of the ship and cargo may insure both
nirai MSI tin- barratrous act* of the master and crew.
See the authorities above cited.
53
41
SUPREME COUKT, STATE OF NEW YORK.
1814
This is an insurance on the cargo only. If the
vessel only had been insured, or if the cargo
had belonged to third persons, then there
might have been barratry.
On examination, every case of barratry re-
ported in the English books will be found to
militate against the distinction which has been
stated by the plaintiffs' counsel. They will be
42*] found to be *cases in which the policy
of insurance was on the vessel only, or where
the cargo insured belonged to third persons,
and not to the owner of the vessel. In Stamma
v. Brown, 2 Str., 1174, the goods insured were
shipped by a third person. In Elton v. Brog-
den, 2 Str., 1264, the policy was on the ship.
In Vallejo v. Wheeler, Cowp., 143, and see
1 Johns., 235, n., goods were insured; the
ship belonged to Willis, who chartered her to
Darwin, who set her up as a general ship, and
Vallejo was one of the shippers of goods. In
Nutt v. Bourdieu, 1 Term. Rep., 313, the pol-
icy was on goods shipped by a third person.
Lockyer v. Offley, Term. Rep., 252 ; see, also,
Term Rep. , 277, was on the ship, and the act
of barratry was smuggling. In Ross v. Hunter,
4 Term. Rep. , 35, the insurance was on goods
shipped by a third person. In Moss v. Byron,
6 Term. Rep., 379, the policy was also on
goods shipped by a third person ; and the act
of barratry consisted in deviating for the pur-
pose of taking prizes, and which made the
owners of the vessel, under the charter-party,
liable for damages. In Phynn v. Royal Ex-
change Ins. Co., 7 Term Rep., 503 ; see, also,
Knight v. Cambridge, 1 Str., 581 ; Ld. Raym.,
1349, there was a policy on goods, but it does
not appear who owned the goods. In the case
of Lewin v. Sitasso, cited by Park, 128, it is not
distinctly stated whether the insurance was on
the ship or cargo, but as the barratrous act
was alleged to be a fraudulent sale of the ves-
sel, the inference is irresistible that the policy
was on the ship.
In the decisions of our own courts will be
found two cases which seem to militate against
the proposition which I have endeavored to
support. In all the other cases, the insurance
was either on the ship alone, or on goods owned
by a third person. (2 Caines' Rep., 67, 222;
3 Caines' Rep., 1, 89 ; 1 Johns., 229 ; 8 Johns.,
272.)
The case of Crousillat v. Ball, 4 Dallas' Rep. ,
294, in the Supreme Court of Pennsylvania,
arose on a policy on ship and cargo, both of
which were owned by the plaintiff ; and Yeates,
J., before whom the cause was tried, directed
the jury to find a verdict for the plaintiff, on
the ground of the barratry of the master. In
that cause, however, the distinction now
raised was not made by the counsel, nor con-
sidered by the court. In the case of Wilcocks
el al. v. Union Ins. Co. , Marsh, on Ins. , 534,
n. by Condy, it is stated in a note to Condy's
Edition of Marshall on Insurance, that the
plaintiffs were owners both of the vessel and
cargo ; but the fact is not stated in the report
of the case by Binney, 2 Binney's Rep., 574 ;
and there is reason to conclude that Mr.
Condy must have been mistaken as to that
fact. There is not, then, a single decision, in
our own courts, except that of Crousillat v.
Ball, where the plaintiff, being owner both of
the vessel and cargo, recovered against the in-
o4
surer on the ground of barratry. The Ameri-
can *decisions in this respect are in [*43
unison with those of the English courts. This
court, therefore, in adopting what I conceive
to be a solid distinction, will not violate any
authority.
2. Where the master is also supercargo or
consignee, and the barratrous act may be re-
ferred to his character as consignee, the in-
sured cannot recover on the ground of the bar-
ratry of the master. Here the master was con-
signee of the cargo, and so it is distinguish-
able from the case of Earl v. Rowcroft, 8 East,
127, in which the captain was a supercargo.
Emerigon, notwithstanding the marine or-
dinance of France, is of opinion that the
owner of the ship cannot be insured against
the barratry of the master, because, being
himself answerable, according to the Roman
law (Dig., lib. 14, tit. 1. sec. 5), for the master
he employs, he cannot, as insured, throw the
burden on the insurer, who would have im-
mediate recourse against him as owner, to re-
cover back the same loss, and thereby produce
a circuity of action, which is not allowed by
law. And he states and discusses the precise
question, whether, if the master has a commis-
sion to dispose of an adventure of goods on
board, the insurer of such adventure is an-
swerable for the loss of it occasioned by the
fault of the master ; and he is of opinion that
he is not, for this would make the insurer an-
swerable to the insured for the faults of his
own agent or factor. He says the clause in
the policy as to barratry of master and mar-
iner, relates only to the acts of the captain
committed in quality of master, and not to
such acts as render him culpable in his func-
tion of mercantile agent. And, he adds, the
matter is attended with much less difficulty,
if the captain, having arrived at his port of
destination, squanders away the goods or ad-
venture consigned to him ; for it is then a land
risk, for which the insurer cannot, in any
manner, be responsible. Now, in the present
case, the vessel had actually *arrived at [*44
New Orleans, her port of destination. Mar-
shall who cites the doctrine of Emerigon, does
it with approbation, and seems not to consider
it, in this respect, as different from the En-
glish law. And in Crousillat v. Ball the propo-
sition is admitted to be clear law. The court
there said the plaintiff must recover, "unless
the evidence shall satisfy the jury that the
captain was the general agent and consignee
of the plaintiff, and acted as such ; in that
case the law is equally clear, that the acts of a
general agent cannot, any more than the acts
of the principal himself, be- denominated bar-
ratry." The doctrine of Emerigon was rec-
ognized by this court in the case of Kendrick
v. Delafield, 2 Caines' Rep., 67, 62, and im-
pliedly adopted as law. Kent, /., having in
view the distinction, says : "The fraud of the
master was not committed in the character of
consignee of the plaintiff's cargo, but in his
character of master of the vessel. This is the
true distinction on the subject, and which rec-
onciles the doctrine in Emerigon with the
plaintiff's claim in the present case. The cap-
tain did not, and could not, lay aside his char-
acter and responsibility as master, until the
vessel had performed her voyage, and arrived
JOHNS. RFP., 11.
1814
RAYMOND v. SQUIRE.
44
at the port of destination." So here, on the
arrival of the Despatch at New Orleans, the
character of the captain as master, in relation
to the goods ceased, and his character as con-
signee commenced, and it was in the latter
character that the fraudulent act was com-
mitted.
Mr. D. B. Ogilen, in reply, said the distinc-
tion raised by the counsel for the defendant,
in discussing the first point, though ingen-
ious, was not to be found in the books, and it
is very surprising that Marshall, a writer so
learned and correct, in his treatise on this sub-
ject, bad not taken notice of such a distinc-
tion, which, if known in the law of insurance,
must be allowed to be very important. The
fact that it has never been stated in the ariru-
ni'-nt of the numerous cases which have arisen
on the subject, nor been laid down by any
elementary writer or judge, sp far from being
in favor of the proposition, is conclusive evi-
dence against it.
It is an erroneous argument to say that the
insurers are liable, where the owners of the
45*] vessel are consequentially injured *by
barratrous acts in relation to the cargo, be-
cause they are consequentially answerable to
the owners of the cargo for the injury ; but
that, when the injury is direct and immediate
to them, it should; not be barratry. There are
numerous cases where the owners of the cargo
have recovered against the insurer for the bar-
ratry of the master. Barratry is any fraudu-
lent act of the master to the" injury of the
owner of the ship or cargo. And it isjbecause
it was perfectly immaterial whether the fraud-
ulent act was to the injury of the owner of the
vessel or the owner of the cargo, that the dis-
tinction now attempted to be made was never
thought of before.
As to the second point, the opinion of L«rd
Ellenborough, in Enrle v. Rowcroft, is a con-
clusive answer. The distinction between the
two characters united in the captain, of mas-
ter and supercargo, is treated as perfectly
futile and groundless.
Again: the act of barratry was not in taking
the goods on shore, but because he carried
them on shore fraudulently, with an intent to
convert them to his own use. It can make no
difference when or where the act is done, if
the vessel has not been so long in port as to
put an end to the insurance. Here the voyage
insured was from New Orleans to New "Vork,
so that the risk still continued in that port.
Per Curiam. There is no ground for the
distinction taken by the defendant's counsel,
that the master can only commit barratry as
to the vessel, and as to the cargo belonging to
third persons, but not as to the cargo which is
ownea by the owner of the vessel. The law
permits the owner of the ship to be insured
against the misconduct of the captain and
crew, though they are his own agents, and
persons of his own choice. It is too late to
question the law, whatever we may think of
its policy. And as the owner of the vessel
can be insured against the barratry of the mas-
ter, committed against the vessel, there is no
reason why he should not be equally insured
as to the cargo. The principle is the same,
and all the cases in the English law, which
JOHNS. REP.. 11.
define barratry, render it sufficiently compre-
hensive to embrace the owner of the cargo,
notwithstanding he may happen to be also
owner of the ship. Barratry includes every
species *of fraud, concerning either the (^*4o
ship or cargo committed by the master, in re-
spect to his trust as master, to the injury of
the owners or shippers. It was for the de-
fendants to show the exception, and the books
afford no pretense for any ; on the contrary,
the case of OrousiUat v. Ball, 4 Dall. Rep.,
294, is an authority against the exception.
That was a policy on ship and cargo, and both
ship and cargo were owned by the plaintiff,
who recovered on the charge of barratry com-
mitted particularly in respect to the cargo.
Nor can the barratrous act be referred to
the master in his character of consignee. The
cargo consisted partly of specie, and when the
captain arrived at New Orleans he converted
the specie to his own use, abandoned the
voyage, and absconded. This was clearly a
criminal breach of duty in his character of
master of the vessel, and though he had a
superadded character of consignee, the act is
properly imputable to him as master. (8 East,
140; 2 Caines' Rep., 72.)
Judgment for the plaintiffs for a total low.
Cited in-7 Cow.. 300 ; 24 N. Y., 239; 65 N. Y., 587 :
4 Daly, 6.
"RAYMOND t. SQUIRE. [*47
Potter of Attorney, Coupled with an Interest,
Equivalent to Formal Assignment — Release
Procured by Fraud, Void.
8. executed a conveyance of land to R., with cov-
enants of seisin, &u.. dated the 3d of January, 1810.
On the 16th of March. 1811, H. sold and conveyed the
same premises to C., and it being afterwards dis-
covered that s. was not the legal owner of the land,
K. agreed with C., in order to re-imburee and secure
him the money he had paid, that he should have
the benefit and use of the covenants in the deed of
8., and on the 5th of July, 1811, executed a power of
attorney to C. to sue 8. in the name of R., of which
S. had notice. On the 10th of September, 1811, R.
executed a release to S. of all his estate and interest
in the premises, and of all actions and demands, &c.
In an action of covenant afterwards, brought in the
name of R., for the use and benefit of C. against 8.,
it was held that the release of R. to S. was fraudu-
lent and void, and that the agreement between R.
and C. and the power of attorney executed and de-
livered pursuant thereof, was equivalent to a for-
mal assignment of the covenants, and the power
being coupled with an interest, and given as a secu-
rity, was not voidable.
Citations -1 Johns. Cas., 411 : 3 Johns., 425; 1 Bos.
&P., 447; N. P., 382.
was an action of covenant, for the
I breach of the covenant of seisin in a deed,
dated the 3d of January, 1810, executed by the
defendant to the plaintiff for lands in Broome
County. The defendant pleaded, 1. Aim est
factvm. 2. That the defendant was lawfully
seised, &c. 8. That the plaintiff, after the
making of the deed, &c., and before the com-
mencement of this suit, to wit : on the 10th of
September, 1810, did, by a certain deed, &c.,
release to the defendant all his estate, right, &c.,
claim and demands which he or his heirs, &c.,
could or might have of, in, or to, the land,
A.T.. and from all actions, suits and demands
whatsoever, concerning, &c., should be
47
SUPKEME COURT, STATE OP NEW YORK.
1814
forever debarred, &c. 4. That the de-
fendant, on the 10th of September, 1811.
and before suit, &c., paid to the plaintiff
$1,300, in full satisfaction and discharge of the
covenants, &c., and of the supposed breaches
thereof, and of all damages, &c. Issues were
joined on the first and second pleas. To the
third plea the plaintiff replied, that before the
making of the said releases, and before this
suit, &c., to wit: on the 16th of March 1811,
he, the plaintiff, for the consideration of
$2,106, sold and conveyed the premises to
Benoni St. John and Lew'is St. John ; and that
afterwards, and before the said release, &c., to
wit : on the 5th of July, 1811, the plaintiff and
the said Benoni St. John discovered that the
defendant was not, at the time he executed the
said deed to the plaintiff, the true and lawful
owner thereof, and was not seised thereof, &c.,
and it was thereupon agreed, in order to secure
and re-imburse the said Benoni St. John the
said sum of $2,106, &c., that he, the said
Benoni St. John, should have the use, benefit
and advantage of the covenants contained in
the said deed of the defendant to the plaintiff,
and that in pursuance of that agreement, be-
fore the making the said release, and before
this suit, &c., to wit : on the 5th of July, 1811,
the plaintiff, by writing under his hand and
48*] seal, constituted and *appointed the said
Benoni St. John his attorney, for him, and in
his name, &c., and to the use of the said
Benoni St. John, to demand, sue for, &c., all
sums of money, demands by the defendant,
&c., giving and granting, &c., of which the
defendant, afterwards, to wit : on the 9th of
September, 1811, and before the said release,
had notice, &c. And that this suit is brought
in the name of the plaintiff, for the use and
benefit of the said Benoni St. John, and not
for the benefit of the said plaintiff, &c., with
a verification, &c. There was a similar repli-
cation to the fourth plea. The defendant,
after craving over of the power of attorney,
demurred specially to the replication to the
third plea, 1. Because it does not confess or
deny the matters set forth in that plea. 2.
Because it does not expressly allege that the
covenants were assigned by the plaintiff to
Benoni St. John, &c.
To the replication to the fourth plea there
was a rejoinder, protesting that the premises,
&c., were not released and conveyed to Benoni
and Lewis St. John, &c., and protesting that
the defendant was the true owner thereof, and
was lawfully seised, &c. ; and protesting also
that it was not agreed that Benoni St. John
should have the benefit of the covenants in the
said deed, &c. ; that the defendant had no
notice of the premises mentioned in the said
replication, in manner and form, &c., and
issue thereon.
Mr. Van Buren, in support of the demurrer,
contended that it did not appear from the rep-
lication that there was, in fact, an assignment
of the covenant. There was only a power of
attorney to sue. There is no allegation of an
assignment, or that any deed had been executed.
It is true this court will recognize the right of
an assignee, where there has been a regular
assignment and notice. (Andrews v. Beecher,
1 Johns. Cases, 40 ; Litttefield v. Storey, 3
Johns., 425.) But it ought to be alleged
56
that the beneficial interest has been assigned ;
and the assignment ought to be absolute and
conclusive of the whole interest, so that the-
assignor should not appear to have an interest
or control in the thing assigned.
Again, this covenant was not assignable. The
covenant was broken the moment it was made.
(Greenby v. Willcocks, 3 Johns., 1.) It was a
mere chose in action, and in no case has a
court of law gone so far as to protect the as-
signment of a covenant, after a breach of it.
As to the form of the replication ; it neither
admits nor denies the release set up by the
plea.
*Mr. P. A. Jay, contra, insisted that [*49
it was not necessary that the replication should
specially admit or deny the facts in the plea.
It is enough if they are substantially, or by-
necessary implication, denied or admitted.
(Chitty'sPl., 599.)
The replication sets out the power of attor-
ney, and if that does not amount to an assign-
ment, then it is admitted that there is
none. But, if this power was not revocable,
it is equivalent to an absolute assignment. It
is a power to sue for, recover and receive the
money to the use of St. John, and so vests the
interest in him as effectually as if there had
been a formal assignment. It is a power
coupled with an interest, and, therefore, not
revocable. (1 Games' Cases in Error, 15; Welsh
v. Whitcomb, 2 Esp. N. P., 565.) Courts of law
have frequently decided that they would pro-
tect the rights of an assignee of a bond, or
other chose in action, and not suffer them to
be defeated by a release made on the part of
the assignor. (1 Bos. & Pull., 447; 1 Term
Rep., 670.) There is no reason why the present
case should be an exception to the general rule
laid down on this subject.
Per Curiam. This court have gone so far as
to recognize the rights and interests of the as-
signee of a chose in action, and to protect him
against the fraud of the original contracting
parties, when the right and the fraud have
both appeared upon the record. In the case
of Andrews v. Beecker, 1 Johns. Cases, 411, the
defendant pleaded a release to a bond, and the
replication stated that the bond was assigned
to a third person, for whose benefit the suit
was brought, before the execution of the re-
lease, and that the defendant had notice of it
before the release, and the replication was held
good upon demurrer. The same decision was
made in the case of Littlefield v. Storey, &
Johns., 425, and these decisions are founded
upon the plain principle that a release ap-
pearing on the face of the record to have
been procured by fraud, is and must be ad-
judged by a court of law, as well as by a court
of equity, null and void. The English courts
of law have with equal effect protected the
rights of the assignee by setting aside a plea so
founded in injustice. (Legh v. Legh, 1 Boss.
& Pull., 447; Lord Ellenborough, in 1 Campb.
N. P., 392.) The case before us comes within
the principle of the above decisions. The re-
lease of the action upon the covenant of seisin
was made after it had been agreed between
the plaintiff and St. John, the purchaser under
him, for a valuable consideration, that St.
John should have the benefit of the covenants of
JOHNS. REP., 11.
1814
FRISBIE v. HOKFNAGLE.
50
5O*] *the defendant, for his re-imbursement
and indemnity, and after a power of attorney to
enable St. John to sue in the plaint ill"- name,
but for his own beneflt, had been executed,
and after the defendant had notice of the same.
It is not, indeed, stated in the replication that
there was a formal assignment of the cove-
nants to St. John ; but it stated that it was
agreed between the plaintiff and him that he
should have the benefit of them, and for that
purpose the power of attorney was duly exe-
cuted and delivered ; this was equivalent to a
formal assignment, for the letter of attorney,
being coupled with an interest, and given as a
security, was not revocable.
The plaintiff is accordingly entitled to judg-
ment upon the demurrer.
Judgment for the plaintiff. '
Cited in-5 Cow., 498 ; 1 HiU, «54 ; 10 Paige, 209 ; 4
Wheat., 700.
FRISBIE v. HOFFNAGLE.
Promissory Note — No Recovery where Consider-
ation has Wholly Failed.
H. gave a promissory note to F. for the purchase
money of a certain piece of land, conveyed by F.
to H. by deed, with warranty, and at the time of
the conveyance then1 waa a judgment against P.,
under which the land was afterwards sold and con-
veyed by the plaintiff on execution. In an action
brought by F. against H. on the note, it was held
that the suit could not be maintained, as the con-
sideration of the note bad wholly failed, the title
of H. being extinguished by the sale under the
judgment, though he had not vet been evicted by
the purchaser, for he was liable to be evicted, and
was responsible to him for the rnvme profits.
Citations— 1 Campb. If. P., 40, note ; 2 Campb., 346 ;
Peake's Cas., 61 ; 7 Johns., 383.
THIS was an action to recover the amount
of two promissory notes for $100, pay-
able in specific articles. The cause was tried
at the last Essex Circuit before the Chief Jus-
tice.
It was proved that the notes were given by
him to secure the purchase money of a cer-
tain piece of land, conveyed to him by the
plaintiff, by a deed of warranty ; that before
the conveyance a judgment had been obtained
in this court against the plaintiff in favor of
Hart and Smith ; and after the notes were
given by the defendant, the land so conveyed
to him by the plaintiff was taken by virtue of
an execution on that judgment, and sold and
conveyed by the sheriff. The plaintiff proved
1.— See Turtle v. Bebee, 8 Johns., 158.
NOTE. — NeonttoJte paper — Consideration — When
inquired into — What anuniiitu ID failure of on note*
uivenfor inirchane money of Uiwlx with warranty of
title.
Between the original parties to negotiable paper
the consideration may foe Inquired into. See linker
v. Arnold, 3 Cai., 279, mite, for a full discussion.
See, also, Tappan v. Van Wagenen, 3 Johns., 465;
Kiting v. Hrinkerhoff. 2 Hall. 4tt» ; Sawyer v.
McLouth, 4« Harb., 350; Sawyer v. Chambers, 44
Barb., 42.
A» to what amount* tn a failure of conxitlf ration In
case of notes given for purchase money of lands
with warranty of title, see Talmadge v. Wallls, 25
Wend., 107, note, where the above case of Frisbee v.
HofTimglt* IH criticised by the Court of Krrors. See,
also. Batterman v. Fierce, 3 Hill, 176; Case v. Hall,
24 Wend., 102; Whitney v. Lewis, 21 Wend., 131;
Lameraon v. Marvin, 8 Barb., 9.
Joints. REP., 11.
that the defendant had not been evicted or
disturbed in his possession of the land by the
purchase at the sheriff's sale. But the judge,
being of opinion that the consideration of the
notes had failed, directed the plaintiff to
be nonsuited, with leave to move the
court to set aside the nonsuit, and for a new
trial.
The case was submitted to the court with-
out argument.
*Per Cvriam. The note was payable [*5 1
in specific articles, and the consideration was
a piece of land conveyed by the plaintiff to
the defendant, not by a quitclaim deed, but by
a deed with warranty ; and it appears that
there was a judgment against the plaintiff, at
the time he executed the conveyance, and that
the land has since been sold under that judg-
ment. The consideration for the note has,
therefore, entirely failed ; for the defendant
has no title, it having been extinguished by
the sale under the judgment. Here is a total,
not a partial, failure of consideration ; for
although the defendant has not yet been
evicted by the purchaser under the sheriff's
sale, he is liable to be so, and will be responsi-
ble for the mesne profits. (Morgan v. Richard-
son, 1 Campb. N. P., 40. note ; Tye v. Gicynne,
2 Campb. Rep. , 346 ; Barber v. Backus, Peake's
cases/61 ; Ph&niz Ins. Co. v. Piquet, 7 Johns. ,
883.)
To allow a recovery in this case would lead
to a circuity of action; for the defendant, on
this failure of title, would be entitled immedi-
ately to recover back the money.
The motion to set aside the nonsuit must,
therefore, be denied.
Motion denied.
Overruled-21 Wend., 134; 25 Wend., 116; 3 Hill.
176 ; 8 Barb., 14.
Criticised— Hill & D., 179.
Approved— 19 Johns., 77; 24 Wend., 102.
Cited in— 4 Wend., 491 ; 8 Wend.. 117 ; 63 Barb..
239.
*LOVELL t>. EVERTSON. [*52
1. Note Indorsed in Blank — Holder may Insert
any Name. 2. Parties. 3. Practice — Error
to Judgment of Nonsuit.
Where a promissory note, payable to order, is in-
dorsed in blank, the holder has a right to till it up
with any name he pleases; and the person whose
name is inserted will be deemed the legal owner;
and if, in fact, the indorsement in blank was in-
tended as a transfer for the beneflt of other per-
sons, yet he would be considered as a trustee suing
for the beneflt of the persons having the legal In-
terest.
Error lies from a Judgment of nonsuit In a court
of common picas, though no costs are awarded on
the record, for the plaintiff is aggrieved by being
defeated of his right of action in that suit, and to
the costs of prosecuting it.
Citation— 6 Johns.. 110, Cooper v. Kerr.
IX ERROR, from the Court of Common
Pleas of Orange County. Lovell brought
an action of asmimpnt in the court below
against Evertson, as the indorser of a promis-
sory note, dated 28th November, 1810, made
by Robert Barnes, for $31.21, payable to the
defendant or order, ninety days after date.
The defendant pleaded nan assumpsit. At
57
52
SUPREME COURT, STATE OP NEW YORK.
1814
the trial, the note was produced, with the
name of the defendant indorsed, and was
then filled up with these words: "Pay the
contents to Thomas Lovell." The note in
question, with several others, had been in-
dorsed in blank by the defendant, and deliv-
ered to the attorney of Thomas Lovell & Co.,
merchants in New York, as security for a
debt due to them by the defendant, to be col-
lected for the benefit of the said T. Lovell &
Co., and applied towards paying the said debt.
It was agreed, at the time of the transfer of
the notes, that the defendant should not be
called upon for payment until all legal means
had been used to recover the amount of such
notes from the makers. The note in question
not being paid, a suit was brought against the
ranker and a judgment recovered against him,
on which afi.fa. was issued, and afterwards
a ca. sa., on which, being taken in custody,
the maker afterwards obtained his discharge
under the Insolvent Act, so that nothing had
been collected from him ; and a suit was after-
wards brought in the name of the plaintiff
against the defendant.
It was contended by the plaintiff's counsel,
at the trial, that the interest in the note was in
Thomas Lovell & Co. at and from the com-
mencement of the suit.
The defendant's counsel moved for a non-
suit, on the ground that as the note was in-
dorsed and delivered for the benefit of Thomas
Lovell & Co., and was so indorsed after it was
due, jt was not competent to the plaintiff alone
to sustain the action ; and that no action could
be maintained for the benefit of T. Lovell &
Co.on these indorsements,unless it was brought
in the name of T. Lovell, and his partner, or
partners.
The court below, therefore, nonsuited the
plaintiff. A bill of exceptions was tendered,
and a writ of error brought thereon to this
court.
53*] *Mr. D. Buggies, for the plaintiff in
error, was stopped by the court.
Mr. Story, contra, contended, 1. That the
action ought to have been in the name of
Lovell and his partners. 2. That by giving
time of payment to the principal, the defend-
ant, as indorser, was discharged. 3. That the
plaintiff below having voluntarily submitted
to a nonsuit, and there being no judgment for
costs, no error would lie on the judgment.
The defendant did not ask for a nonsuit, but
the plaintiff suffered himself to be nonsuited,
and he cannot now get rid of the judgment. (1
H. Bl., 432 ; 4 Term Rep., 436 ; 2 Johns., 9.)
Per Curiam. The court below erred in non-
suiting the plaintiff, for the note being in-
dorsed in blank, the owner had a right to fill
it up with what name he pleased, and the per-
son whose name was so inserted would be
deemed on record as the legal owner, and if
not so in fact, he could sue as trustee for the
persons having the real interest. But the
defendant could have no concern with that
question. He was responsible to the person
whose name was so inserted in the blank in-
dorsement. This is a plain and settled rule,
and a decision to this effect was made in the
Court of Errors in 1800, in the case of Cooper
v. Kerr. It is also settled that error will lie on
a judgment of nonsuit ( Willson v. Foree, 6
Johns., 110) ; and though there be no costs
awarded upon the record in this case against
the plaintiff, who was nonsuited, yet he was
aggrieved by being defeated of his right of
action 'in that suit, and of his costs for pros-
ecuting the same. If illegally nonsuited, the
judgment of nonsuit ought to be reversed,
and the plaintiff re-instated in the cause in
court.
Judgment reversed.
Cited in— 3 Cow., 261 ; 6 Cow., 455 ; 5 Wend., 602 ; 10
Wend.. 523 ; 14 Wend., 580 ; 15 Wend., 640 ; 5 Hill,
549 ; 5 Denio, 83 ; 24 Hun, 289, 408 ; 10 How. Pr., 235 ;
2 Hall, 557 ; 35 Mich., 52.
*C. GIDNEY v. BLAKE.
[*54
Pleading — Slander — " Your Children" Em-
braces all Children of Person Addressed.
Where a declaration in slander stated that B., in
a certain discourse with G ., of and concerning the
children of G., and of and concerning- C., one of the
children of G., and the plaintiff in the suit, B. said :
" Your children are thieves, and I can prove it ; "
it was held that the charge was sufficiently definite
to designate the plaintiff as one of the children of
G., intended by B. If one count is good, it is suffi-
cient, on a general demurrer to the whole declara-
tion.
Citations-Hob., 89 ; 4 Co., 17 Z> ; 2 Cai., 89.
TN ERROR, from the Court of Common
J- Pleas of Orange County. Gidney brought
an action of slander against Blake in the court
below. The declaration contained several
counts ; the first count stated that the plaintiff
was the infant son and one of the children of
Daniel Gidney, by whom he prosecuted, &c.,
and after the usual averment, that in a certain
discourse which the defendant had with the
said Daniel, of and concerning the children of
the said Daniel, and of and concerning the
said Charles, the plaintiff, &c., maliciously
spoke and published, &c., the following
words : "Your children (meaning, &c.,) are
thieves, and I (meaning the defendant) can
prove it." There were several other counts,
one of which stated the words to be: "His
children (meaning the children of the said
Daniel) are thieves, and I can prove it." The
other counts in the innuendoes stated the
words as spoken of the plaintiff among the
children of the said Daniel. There was a gen
eral demurrer to the declaration and joinder,
on which the court below gave judgment for
the defendant.
Mr. D. Russell, for the plaintiff, contended
that the declaration was sufficient. The want
of certainty in the description of the person
accused may be supplied by averment. (6
Bac. Abr., 231, Slander, I. 2 ; IChit. PI. 382 ;
Cro. Car., 107 ; 1 Roll. Abr., 75, 85). Here is
an averment that the plaintiff is one of the
children of Charles Gidney, and this applies to
all the counts, and there is a colloquium in each
count. It is enough if it be substantially
alleged that the words were spoken of the
plaintiff. (Brown v. Lamberton, 2 Binney's
Rep., 34.)
Mr. Story, contra, insisted that the words
were too general and vague to be the founda-
JOHNS. REP., 11.
1814
HALLETT v. SLIDELL.
54
tion of an action of slander, and that they
were not helped by the innuendoes. If this
were allowed, the characters of some of the
children of D. Gidnev, who are not parties to
the record, might be Involved. In Kan Vech-
ten v. Uopkin*, 5 Johns., 211, it was decided
that an innuendo could not be proved, though
it was said that where the person meant to
be libeled could not be identified, without the
aid of extrinsic facts, by a proper averment
and a wUoquium. such extrinsic facts might be
mtroduced and proved. Though there is a
55*] colloquium, *there are not, m the present
case, those proper averments to point the slan-
der, with certainty, to the plaintiff.
Per Curiam. The charge is not vague or
indefinite. The words "your children," "hi?
children," apply to and embrace all the child-
ren of Daniel Gidney, with whom the defend-
ant was conversing. The case of Foxcraft v.
Lacy, Hob., 89, is analogous, as to the effect
and application of such expressions. In that
case, it appears that a suit was pending against
the plaintiff and 16 other persons, and a dis-
course being had concerning the suit, the
defendant said : "These defendants helped to
murder H. F." and it was adjudged that each
of the 17 defendants was entitled to his sepa-
rate action of slander. It might have been
urged, as well in that case as in this, that the
words did not necessarily mean the plaintiff.
In this case, the first count contains a colloqui-
um concerning the plaintiff in particular, as
well as the other children of Daniel Gidney,
and the colloquium conclusively points the
words, and designates the plaintiff as one of
the children intended. A colloquium is suf-
ficient to give application to words still more
indefinite, such as: " One of the servants of
I. S. is a thief" (4 Co., 17 b) ; and if one count
be good, it is sufficient on general demurrer
to the whole declaration. (3'Caines' Rep., 89.)
The judgment below must be reversed.
Judgment reversed. '
N. B. In the case of Gidney y. Cook, on the
same pleadings, there was the same judgment.
Cited 1n-I2 Johns., 479 : 6 Wend., 414 ; 7 Wend., 56;
23 \Vend., 424 ; 25 Wend.. 1»4 ; 1 Denio, 428 ; 42 Barb.,
380 ; 3 E. D. Smith, 344.
56*] *J. AND A. HALLETT
t.
J. AND T. 8LIDELL, Assignees of the Sheriff,
&c.
Pleading — Replication may Contain Nete
Matter.
A plaintiff, in his replication, may introduce now
inait. r to explain and fortify his declaration ; and
when* such new matter is introduced, he may con-
clude with a verification.
Cltation-2 Wils., 8.
IN EHHOH, from the Mayor's Court of the
City of New York. J. and T. Slidell. as
assignees of the sheriff, brought an action
1.— Munford v. Kitzliuich, 18 Johns., 467; Martin
v. Williams, 13 IIM., 2tt4; Million v. Thorn, 6
Wendell's Rep., 412; Monell v. Colden, 13 Johns., 396.
JOHNS. REP.. 11.
! against J. and A. Hallett, in the court below,
! on a bail-bond, dated 28th September, 1812,
i taken in a suit in which the writ was return-
able the third Monday of October then next.
The defendants pleaded comperuit ad diem.
The plaintiff replied that after the third Mon-
day of October, 1812, and after the forfeiture
of the bond on which. &c., and after it was
assigned to the plaintiffs, to wit: on the 9th
I November, 1812, the plaintiffs brought their
I action on the said bail-bond, &c. That by the
i course and practice of the Mayor's Court," &c.,
i the appearance of any defendant, arrested on
a capia» and held to bail, according to the exi-
gence of the writ, is effected by putting in, and
filing in the office of the clerk of the court,
special bail, in such action, within ten days
inclusively after the return day of such writ,
and not otherwise ; and that the defendant in
the original suit, who was arrested and held to
bail. &c. , did not, within 10 days inclusively
after the return day of the writ, nor before the
suit was commenced by the plaintiffs in the
bail-bond, put in and file special bail, Ac., nor
otherwise howsoever, appear in the said court,
&c., according to the exigence of the said writ,
and according to the condition of the said bond,
&c. , and this they are ready to verify, &c.
To this replication the defendants demurred
specially, 1. Because, as the traverse in the
replication denies the whole substance of the
plea, the inducement to the traverse was un-
necessary ; and by such useless and superfluous
inducement, rendered a conclusion to the court,
with a verification, requisite ; and. 2. Because
the inducement to the traverse, containing no
new matter in itself, was immaterial, argumen-
tative, and superfluous, and produced an un-
necessary prolixity of pleading, &c.
On this demurrer, the court below gave judg-
ment for the plaintiffs, and a writ of error was
brought to this court.
*Jfewr«. Maynard and Foot, for the [*57
plaintiffs in error. They cited 5 Went. PI.,
463; 2 Johns., 428.
Mr. Slos#on, contra. He cited Long v. Jack-
ton, 2 Wils., 8.
Per Curiam. According to Long v. Jackson,
2 Wils., 8, the plaintiffs were authorized to
introduce into their replication, matter in ex-
planation of, or to fortify, their declaration,
without incurring the charge of a departure ;
and as they introduced new matter, to wit :
the course and practice of the court as to ap-
pearance, the conclusion with a verification
was proper, and the judgment below must be
affirmed.
Judgment affirmed.
BUTLER t>. WARREN.
Witne»*e» — Incompetence, becatue of Interest of
one who gave Bond for Coste
Where a person had given a bond of indemnity to
the plaintiff, atrainst the coats of the suit, it was held
that he was an incompetent witness for the plaintiff,
as to uny point arising on the trial of the cause, such
as the service of notice on the defendant to produce
certain papers at the trial. Where a witness has a
direct interest, however small, in the event of a
cause, he cannot be admitted to testify, in any re-
spect, In favor of such interest.
59
SUPREME COTJKT, STATE OP NEW YORK.
1814
T1HIS was an action of trespass de bonis aspor-
I tatis. The defendant pleaded the general
issue, with notice of special matter in justifica-
tion. The cause was tried at the Steuben Cir-
cuit, in June, 1813.
At the trial, the plaintiff offered Thomas
Lusk as a witness, to prove the service of a
notice on the defendant to produce at the trial,
the warrant or execution issued by the defend-
ant, as president of a court-martial, by virtue
of which the property in question was taken.
The defendant's counsel objected to the witness
as incompetent, on the ground that he had
indemnified the plaintiff from the costs of this
suit, and had given him a bond for that pur-
pose. The fact of his having given the bond
of indemnity was admitted, but it was contend-
ed by the plaintiff that the witness was com-
petent to prove the service of the notice ; and
the judge, being of that opinion, admitted the
witness.
As the opinion of the court turned on the
single question as to the admissibility of the
witness, it is unnecessary to state the other
58*1 *facts in the cause. The case was sub-
mitted to the court without argument.
Per Curiam. Without touching other points
in the case, there was an error in the admission
of Thomas Lusk as a witness for the plaintiff,
after the fact was conceded that he had given
a bond of indemnity to the plaintiff, against
the costs of the suit. He was then directly in-
terested in the event of the suit, and was an
incompetent witness for the plaintiff on any
point arising on the trial of the cause. In
proving the serving of notice, he swore under
the influence of interest, for the proof of that
fact might have been essential to the plaintiff's
success. The rule is stubborn and inflexible,
that if a witness has a direct interest, however
small, in the event of the cause, he cannot be
admitted to testify upon the trial in favor of
that interest, in any respect or degree.
There must be a new trial awarded, with
costs to abide the event of the suit.
New trial granted.
Overruled— 16 Johns., 195.
Cited in— 16 Johns., 72; 5 Cow., 216 ; 6 Cow., 491: 18
Wend., 497 ; 26 Barb., 351.
59*] *SMITH v. SANBORN.
Contracts — Alternative Obligations — Election.
A agreed to pay B eight dollars an acre for land,
in two several payments, at different days, and in
case of default in either of the payments, A agreed
to pay B nine dollars per acre, at another and fur-
ther specified time ; and B agreed, on payment of
principal and interest, &c., to convey the land in fee
simple to A, and in case of default on the part of A
in any of the payments stipulated, it was agreed
that B should be acquitted from the agreement, and
that it should be considered null and void.
After a default in the payment of the sums at the
days first stipulated for the payment at eight dol-
lars an acre, and before the further specified day at
which A was to pay at the rate of nine dollars per
acre, B brought an action on the agreement to re-
cover the amount at the rate of eight dollars an
acre. It was held that A had his election to pay at
the rate of eight dollars an acre at the time speci-
fied, or to pay at the rate of nine dollars an acre at
the further time specified, and as that day had not
arrived when the suit was commenced, the action
could not be maintained. In alternative obligations
the debtor or defendant has the right of election.
Whether the last provision in the agreement did not
render the contract, of itself, null and void. Qucere.
Citations— 7 Johns., 465; Traite des Obligations, 246,
247.
THIS was an action of assumpsit on a memo-
randum or agreement, dated the 20th of
December, 1810, by which the defendant
agreed and promised to pay the plaintiff eight
dollars an acre for each and every acre con-
tained in the south equal half part of lot No.
68, in the fifth township, &c., containing 125
acres, or thereabouts ; the estimated sum
amounting to one thousand dollars, of which
three hundred dollars were to be paid on or
before the 20th of April, 1811, and the residue
on or before the 20th of April, 1812, with the
lawful interest, annually, to be computed from
the 6th of November, 1810 ; and in case de-
fault should be made in either of the said pay-
ments, as stipulated, the defendant agreed and
promised to pay the plaintiff nine dollars for
each and every acre of land, &c., on or before
the 20th of April, 1813, with lawful interest
annually, to be calculated from the 6th of No-
vember, 1810, in consideration of which, and
upon payment of the several sums of money,
principal and interest aforesaid, the plaintiff
agreed and promised to convey to the defend-
ant, in fee simple, the said south equal half
part of lot No. 68, &c. And further, that if
default should be made on the part of the de-
fendant in any of the payments stipulated to
be made at the periods above mentioned, the
plaintiff should be fully and entirely acquitted
of any obligation to fulfill any articles of 'the
memorandum, and it should be considered as
null and void.
The cause was tned at the Oneida Circuit, in
June, 1813, before Mr. Justice Yates.
At the trial, the defendant insisted that the
agreement, by its terms, was void and at an
end, as no payments had been made thereon ;
but if not void, no action could be sustained
on the agreement until after the 20th of April,
1813, and this action had been commenced
before that time. But the judge overruled the
objections, and a verdict was taken for the
plaintiff for $1,192.50, being the amount of
NOTE.— Alternative contracts — Election.
Where the agreement is alternative, the promisor
may elect. In addition to above case of Smith v.
Sanborn, see Disborough v. Neilson, 3 Johns. Gas.,
81; Oatman v. Taylor, 29 N. Y., 649: McNitt v.
Clark, 7 Johns., 465: Brooklyn Oil Refinery v.
Brown, 61 N. Y., 643: Wood v. Sheehan, 68 N. Y.,
365 ; Collins v. Hall, 50 N. Y., 687 ; Norton v. Webb,
36 Me., 270 ; Williams v. Triplett, 3 Iowa, 518 ; Cen-
ter v. Center, 38 N. H., 318; Mayer v. Dwinell, 29
Vt., 298 ; Choice v. Mosley, 1 Bailey, 136 ; Layton v.
Pearce, Doug., 16 ; Small v. Quincey, 4 Greenl., 497,
Co. Litt., 145 a.
Where the time is limited, a failure to elect with-
60
in the time destroys the right, or passes it to the
other party. McNitt v. Clark, 7 Johns., 465 ; Ste-
phens v. Howe, 34 Super. Ct., 133 ; Choice v. Mosley,
1 Bailey, 136 ; Plummer v. Keaton, 9 Yerg., 27 ;
Baker v. Todd, 6 Tex., 273 ; Norris v. Harris, 15 Cal.,
226.
An election once made is irrevocable. Dinsmore v.
Duncan, 57 N. Y., 573; S. C., 15 Am. R., 534, note;
Norton v. Webb., 36 Me., 270. See, also, Woodman
v. Stearns, 23 Vt., 655.
If one alternative becomes impossible, the other is
stitt binding, in absence of any contrary provision.
Stevens v. Webb, 7 Car. & P., 60.
JOHNS. REP., 11.
1814
HUMPHREYS v. GARDNER.
principal and interest, estimating the land at
eight dollars per acre.
OO*1 *A motion was made to set aside the
verdict, and for a new trial, on the above case,
which was submitted to the court without ar-
gument.
Per Curiam. This appears to have been an
alternative obligation, and the defendant had
his election to pay at the rate of eight dollars
an acre by certain times, or to pay nine dollars
an acre by another specified time, and which
last time had not arrived when the suit was
commenced. The right of electing the alter-
native belonged to the defendant. This ap-
pears by the case of M'NUt v. Clarke, 7 Johns.,
465, and the authorities there referred to. !
The right of election by the debtor, in all j
alternative obligations, was also a principle in
the civil law, and the passages in support of it j
are collected by Pothier, Trafte des Obligation*, \
n. 246, 247. The plaintiff, therefore, on this j
point, ought to have been nonsuited at the trial, j
Whether the whole contract was not. from ;
the beginning, a felo de »e, and null and void
I iy reason of the last provision in it, has also
been made a question. But it is unnecessary to
give an opinion on that point in the present
suit. It may be more maturely considered if j
the contract should again be brought before
the court in a new suit.
The verdict must be set aside, and a judg-
ment of nonsuit entered.
Judgment of nonsuit.
Cited in-9 Bos., Ill ; 34 Super., 142.
61*] 'HUMPHREYS t. GARDNER.
Arbitration — Parties Privy to Submission bound
to take Notice of Award.
R. let a house to H. fora year, who being about to
take possession, a dispute arose between K. and O.
aa to which of them had a right to receive the rent,
and they agreed, in the presence of H., and with his
approbation, to submit the question to the decision
of F. and S., as arbitrators, and that H. should, in
the meantime, take possession of the premises. The
arbitrators, after hearing the allegations of H. and
< . .. decided that H. should pay thu rent to G. Both
R. and O. bad notice of the decision, but it did not
appear that actual notice had been given to H. It
was held that H. was bound to take notice of the
award, at his peril, he being privy to the submission
and assenting to it, and entering into the possession
of the premises, at the time, with knowledge of the
submission of the parties claiming the rent.
'THIS was an action of replevin, which had
1 been brought before this court, by a writ
of error, from the Court of Common Pleas of
Orange County, the judgment of which court
was reversed and a venire de now awarded, re-
turnable at the Orange Circuit (see 10 Johns.,
58), where it was tried the 14th of September,
1813.
The declaration was in replevin for house-
hold goods, &c. There was an avowry for rent
due the defendant, and that the plaintiff, for
one year, ending the first of May, 1811, and
from thence until, «fec. , occupied the house in
which, «fec., as tenant of the defendant, under
a demise, for the j'early rent of $100, &c., and
because one year's rent was due, &c., he, the
defendant, well avows the taking, &c. The
JOHNS. REP., 11.
plaintiff pleaded that he did not hold, &c.. as
tenant of the defendant, &c., on which issue
was joined.
At the trial, T. E. Colden testified that he
was present at a conversation between the
plaintiff and defendant and William Ross,
Esq., on the 1st of May, 1810, in which it ap-
peared that Ross had let a house to Hum-
phreys for a year, and who was then about to
enter and take possession of it, when Gardner,
who claimed a right to let the house, forbade
him ; that it was then agreed between Ross and
Gardner, in the presence of Humphreys, to
submit the question, to which of them the
rent should be paid, to the decision of J. Fisk
and J. Storey, Esquires, as arbitrators, and
that, in the meantime, Humphreys should
enter into the house — to which agreement he,
Colden, was called as a witness, and that
Humphreys took possession of the house, &c.
Storey testified that Gardner informed him
that Ross and he bad agreed to submit to him
and Fisk to whom the rent should be paid ;
and the witness understood the same from
Ross, who requested him to act as an arbitra-
tor, and lie thought, also, that Humphreys
spoke to him and wished the question decided ;
that the witness and Fisk met as arl itrators,
and Gardner and Ross appeared before them
and stated their respective cases, and that,
after hearing the parties, the arbitrators
awarded that Humphreys should pay the rent
to Gardner, and the witness soon afterwards
*iuformed Ross of the decision, who said [*62
the arbitrators had mistaken the question, &c.
Fisk, who was also a witness, testified sub-
stantially to the same facts, and that he in-
formed Ross and Gardner of the decision of
the arbitrators in May, or the beginning of
June, 1810.
On this evidence, the counsel for Hum-
phreys objected : 1. That it did not appear
that the plaintiff occupied the premises under
any demise. 2. That it did not appear that
Humphreys was a party to the submission,
and, therefore, ought not to be bound by the
award. 3. That it did not appear that the ar-
bitrators had published their award. 4. The
submission being by parol, it was not valid so
as to affect the right to real property ; but
these objections were overruled by the judge.
The son of the plaintiff was then sworn as
a witness, and testified that on the 1st of May,
1810, when his father was about moving into
the house, as a tenant to Ross, an altercation
arose between Gardner and Ross, and the
plaintiff wished them to decide to whom the
rent was to be paid ; and thereupon Gardner
and Ross agreed to submit the matter to Fisk
and Storey, as arbitrators ; that be understood
the question submitted was, whether it was
competent to Gardner, who was a co-executor,
to give a lease to Ross.
It being objected that there was no proof
that Humphreys had notice of the award, the
judge decided that it was necessary to show
there was notice before he could be charged.
The counsel for Gardner then attempted to
prove a notice, and insisted that it ought to be
left to the jury, from all the circumstances, to
presume a notice to Humphreys ; but the
judge said that there was nothing shown to
authorize such a presumption, and he charged
•1
SUPREME COURT, STATE OF NEW YORK.
1814
the jury that, for want of such notice, Hum-
phreys was entitled to a verdict, and the jury
found a verdict accordingly.
A motion was made to set aside the verdict,
and for a new trial.
Messrs. Fisk and Storey, for the defendants.
They cited 2 Chit. PL, 80, 81, note ; 2 Saund.,
62 a, note 4 ; Bulst., 144 ; 2 Games' Rep., 320 ;
1 Ld. Raym., 114 ; 10 Johns. Rep., 143 ; Cro.
Car., 133.
Messrs. Ross and P. Ruggles, contra, They
cited Kyd on Awards, 115 : 1 Bay's Rep., 315;
1 Esp. Dig., 206.
63*] *Per Curiam. It was proved upon
the trial, by Golden, that on the 1st of May,
1810, there was a dispute between the defend-
ant Gardner and one Ross, as to which of
them belonged the right to let the house in
question to Humphreys, and Humphreys being
then in the act of moving in, it was agreed by
Gardner and Ross, in the presence of Humph-
reys, to submit to two persons, then named as
arbitrators, to determine to which of them
Humphreys was to pay the rent for the ensu-
ing year. The two arbitrators prove the same
facts substantially, and one of them says he
thinks Humphreys spoke to him and wished
the question decided, and a son of Humphreys,
introduced by him, also stated the same con-
troversy and submission, as stated by Golden,
and that Humphreys said, at the time of the
altercation, that he wished Gardner and Ross
would determine to whom he should pay the
rent, and the submission to arbitration was
thereupon made. The arbitrators met and
heard the allegations of Ross and Gardner,
and decided in the same month of May, 1810,
that the rent ought to be paid to Gardner.
Upon these facts, the question of notice to
Humphreys of the award does not arise. He
was bound to take notice of the award at his
peril, for he was present when it was submit-
ted to the arbitrators to determine to whom he
should pay the rent, and it was in proof that
he was privy to the submission, and the con-
clusion is irresistible that it was so referred
with his approbation. The parties claiming
respectively the right to let, interpleaded, as it
were, in his presence, and agreed to refer the
question to the arbitrators, and he entered into
possession with the knowledge of that inter-
pleader and submission, and at the time it took
place.
A new trial ought, therefore, to be awarded,
with costs to abide the event of the suit.
New trial granted.
64*J*JACKSON, exdem. LIVINGSTON ET AL.,
BURTON.
Catting of one Witness to Deed, Sufficient — After
many Tears' Proof of Signature of one field
Sufficient — No Fixed Rule.
A deed 44 years old, to which there were two wit-
nesses, was allowed to be read in evidence, on proof
of the handwriting of one of the subscribing wit-
nesses, and that he was dead, without any proof of
the handwriting of the other witness, or that he was
62
dead or absent, or could not be found, or that any
inquiry had been made after him ; but there were
strong circumstances in the case to induce a pre-
sumption that he could not be found, or was dead
or beyond sea.*
Citations— 7 T. K., 266, n. ; 1 Bos. & P., 360.
THIS was an action of ejectment. At the
trial of the cause at the Schoharie Cir-
cuit, in September, 1812, the plaintiff, in de-
ducing the lessor's title to the premises, being
part of lot No. 34, in the second allotment of
Lawyer and Zimmer's patent, offered in evi-
dence a deed, dated the 31st of December,
1768, from nine of the patentees, named in the
patent (which was dated the 24th of December,
1768, granted to Lawyer and thirty-seven other
persons), to Philip Livingston, Jr. , who was
described as an attorney at law of the City of
New York. To this deed Alexander M'Cul-
lough and James Murray were the subscribing
witnesses.
John Shaw, a witness for the plaintiff, testi-
fied that he knew Alexander M'Gullough, one
of the witnesses to the deed, and that he was
dead ; that he had seen him write, &c., and
that the name subscribed to the deed was
in his handwriting. The witness further tes-
tified that he had lived in New York before
and since the date of the deed, but did hot
know James Murray, nor had he ever made
any inquiry after him. It did not appear that
possession was taken under and had accom-
panied the deed.
The defendant objected to the competency
of the proof of the deed and its admissibility
in evidence ; but the judge overruled the ob-
jection, and a verdict was found for the plaint-
iff.
A motion was made to set aside the verdict,
and for a new trial ; and a case containing the
above facts was submitted to the court with-
out argument.
KENT, Ch. J., delivered the opinion of the
court:
The proof of the deed was, prima facie,
sufficient. It was a deed of 44 years' standing,
and there was proof of the handwriting of one
of the subscribing witnesses, and that he was
dead. If there be two or more subscribing
witnesses to a deed, the calling of one to prove
the deed has always been held sufficient ; and
when the witnesses cannot be produced, there
is no fixed rule requiring proof of the hand of
all the absent witnesses. The only point in
the case is, that the absence of Murray, the
other subscribing witness, was not accounted
for : but the presumption *that he was [*65
not to be found, and that he was either dead
or beyond sea, was, under the circumstances,
very strong, and sufficient to let the proof go
to the jury, Shaw, the witness produced, had
always lived in New York, and did not know
such a man as James Murray. It may be that
this witness Shaw, from his business as a mer-
chant, was well acquainted generally with the
old inhabitants of New York, and the Murray
family. It is probable, also, that the deed
was originally executed in New York, because
it was given to Philip Livingston, Jr., who
was described as "an attorney at law of New
"Jackson v. Cody, 9 Cow. Rep., 140; Jackson v,
Luquere, 5 Ibid., 221 ; Jackson v. Gager, Ibid., 383 ;
Jackson v. Lewis, 13 Johns., 504.
JOHNS. REP., 11.
1814
SULLIVAN KT AL. v. MOKOA.N.
65
York." It was a release from nine out of
thirty-eight patentees, and from the rule of
the colonial government, in allowing only a
certain number of acres to one patentee, and
from the known practice under thin rule, it
was very probable that most of tin- patentees
resided In New York, from whence all patents
issued ; and that the witness Murray may have
been a clerk in some of the offices in that City.
And when we consider the effects of the Revo-
lutionary War, and the great changes which
that eve'nt produced in the population of the
City, the court ought not to be rigid in requir-
ing, at this day, some further account of Mur-
ray. The rules and practice of the courts leave
this point with some latitude of discretion.
In WaMis v. Delaney, 7 Term Rep., 266, n.,
there were two witnesses to a bond of 16
years' standing. The* handwriting of one,
who was absent, was proved, and Lord Kenyon
thought that some evidence respecting the
other absent witness was necessary ; and all
that was given was, that there was such a man
of that surname, a clerk to the other subscrib-
ing witness ; but there was no proof of his
Christian name, or of his handwriting, or
whether he was dead or alive, or of any search
for him ; yet, as the bond had been executed
in America, Lord Kenyon held the evidence
sufficient, saying : " This being the case of a
foreign transaction, though, perhaps, the evi-
dence was capable of being more perfect, yet
it was sufficient and reasonable evidence to go
to the jury, at least, unless it were rebutted by
some evidence on the other side." In the case
of Adam v. Ker, 1 B. & P. 360, the bond was
executed in the island of Jamaica, and attested
by two witnesses. One was dead and his hand-
writing proved ; the other resided abroad, and
no evidence was given of his handwriting ;
and it was held by the Court of C. B. to be
Otf *] unnecessary. These two cases *go far
in support of the competency of the proof in
the present case.
The motion on the part of the defendant, to
set aside the verdict, is denied.
Motion denied.
Cited in-5 Cow., 386 ; 8 Wend.. 824 ; 13 Wend., 199.
SULLIVAN ET AL. v. MORGAN.
Admiralty— Voyage Bmfan Up — Right of Sea-
men to Wages.
Whore a voyage is broken up, not from necessity,
or in consequence of the perils of the sea, but from
the act of the master, the seamen are entitled to
payment of their wajres to the time, and also for a
reasonable time to be allowed for their return home.
Whether seamen can maintain an action atfttinst
the owners of the vessel for the two months' waves,
allowed by the Act of Congress of the 38th of Feb-
ruary, 1803 (Cong. 7, Bt«s. 1, eh. 52, sec. 3), whore the
v««sfl is sold and the seamen disclmrKed ina forehrn
country. Qturrc;.
Citations— 3 Johns.. 520; Act Feb. 28. 1808. Sec. 8.
IN ERROR, on certiorari from the Justices'
Court of the City of New York. Morgan
brought an action in the court below against
Sullivan and four others, as owners of the
schooner Garonne, for his wages as a seaman
and carpenter on board of that vessel, on a
voyage from New York to Charleston, and
JOHNS. REP., 11.
thence to France, and back to New York.
; The plaintiff shipped on board the Garonne.
, the 8th of January, 1813, for $35 per month.
j The schooner proceeded to Charleston, where
she took on board a cargo of cotton, and
sailed for France. During the voyage, she
met with a gale of wind, in which she lost
her foremast (owing, it was testified, to the
shrouds being too much strained on one side),
her mainmast being also injured; and on con-
sultation of the master and crew, it was
thought best to put into Fayal to refit; and
they arrived at that place the 19th of March.
On the 2d of April, the plaintiff and the rest
of the crew were sent on shore by the captain,
who told them that the vessel was sold. While
on shore, they were allowed 20 cents a day by
the American consul, for their support, who
sent them home, and they arrived at Boston
in July following, having received no wages
for their voyage home, and having paid noth-
ing for their passage. It appeared that the
cargo was discharged at Fayal, on the 2?th of
March, and received by the supercargo, who
remained at that place. The schooner was
soon after refitted for another voyage. After
the sale she appeared under Portuguese colors,
and was said to be destined for Kio Janeiro.
On the evidence given in the case, the court
below were of opinion, that the sale of the ves-
sel at Fayal was not the result of necessity, or
of the perils of the sea, but of the fear of Brit-
ish cruisers, on account of the war between
Great Britain and the United States, and that,
had it not been for such fears, the vessel
might, after being refitted, have prosecuted
her voyage to its termination; and they, there-
fore, adjudged to the plaintiff his wages from
*the time of his shipping on board the [*67
Garonne to the time of his discharge at Fayal,
on the 2d of April; and also two months' *pav
in addition, which they considered him enti-
tled to, under the Act of Congress, providing
for the further protection of American seamen,
passed the 28th of February, 1813; and iudg-
ment was accordingly rendered for the plaint-
iff below, after deducting all payments and
advances, for $69. 49 damages, and* $5. 62 costs.
The case was submitted to the court without
argument.
Per.Guriam. The court below inferred, from
the testimony, that the voyage was not broken
up at Fayal from necessity, or by reason of
the perils of the sea; and that the seamen were,
consequently, entitled to wages for the services
they had rendered, though the vessel had not
earned freight on the voyage to which the
contract applied. We think there was color
for inference sufficient to warrant the opinion
of the court below, and the seamen were, there-
fore, entitled to their wages to the time of their
discharge. It is a settled rule of maritime
law, founded in manifest justice, that if the
contract of hire be not fulfilled, in consequence
of the act of the muster or owners, and not
in consequence of the perils of the sea, capt-
ure by enemies, &c., the seamen are to be
paid, at least for the time they are employed,
and also for a reasonable time to be allowed
for their return to the place of departure. (8
Johns,, 520.) The court below, instead of
allowing fora reasonable time for the plaint -
IS
67
SUPREME COURT, STATE OF NEW YORK.
1814
iff's return, allowed two months' wages, under
the 3d section of the Act of Congress of the
28th of February, 1803. (Laws of the U. S.,
Vol. VI., p. 208.) Whether the seamen can
maintain a suit under that Act against the
owners for the two months' wages, as being a
debt due from the owners' agent, in his charac-
ter of agent, to the American consul, as trustee
for the seamen, whenever the vessel is sold, or
the seamen are discharged in a foreign country,
is a question quite immaterial in the present
case; for as the plaintiff, with the other seamen,
appear to have been detained at Fayal for two
months before a passage was procured for them
to the United States, he was entitled to the sum
allowed, if not under the Act of Congress, yet
as reasonable compensation for his loss of ser-
vice while detained at Fayal. The judgment
below ought, therefore, to be affirmed.
Judgment affirmed.
Cited in— 1 Mason, 53; Olcott, 320.
68*] *!N THE MATTER OP CAESAR, a Black
Man,
v.
PEABODY.
Slave — Sale under Execution, Valid — Voluntary
Sale Invalid under Statute.
Where a slave, brought into this State, was sold
at a sheriff's sale, under a fl. fa. against the estate
of his master, and the purchaser, afterwards, sold
him at private sale, it was held that the first sale
was valid, but the second, being a voluntary sale,
was void, as against the Act. (1 N. B. L., 201.)
Citation— 2 Johns. Cas.. 79.
A MOTION was made for a mandamus in
this cause, directed to I. Peabody, com-
manding him to manumit and set free Caesar,
a black man, held by him as a slave. It ap-
peared that Caesar was brought into this State,'
about nine years ago, from Virginia, by one
Hallam, as his slave, and the requisite certifi-
cate obtained and filed, according to the 4th
section of the Act passed the 8th of April,
1801, sess. 24, ch. 188; 1 N. R. L., 201.
A judgment was afterwards obtained against
Hallam and a fi. fa. issued thereon, under
which Caesar was sold at the sheriff's sale,
to one Perkins who afterwards sold him at
private sale to Peabody, who now holds him
as a slave.
It was agreed that if the court should be of
opinion that the sale by Perkins to Peabody
was void, and the slave, under the Act, was
free (sess. 24, ch. 188, sec. 5), that then a peremp-
tory mandamus should issue.
Per Curiam. According to the decision of
this court, in Sable v. Hitchcock, 2 Johns. Cases,
79, the sale of the slave on the execution was
valid; but the subsequent sale by the purchaser
to Peabody was contrary to the Act, being a
voluntary sale by the master of a slave, im-
ported or brought into the State. That sale
was, therefore, void; and, according to the
agreement of the parties, a peremptory man-
damus must issue.
Rule granted.
*SNELL v. LOUCKS. [*69
Justice Court — Practice — Evidence.
Where a summons was personally served, and the
defendant did not appear on its return, and the
justice then adjourned the cause for two days, at
which day the defendant appeared and tendered a
plea and demanded a jury, it was held that the plea
was properly overruled by the justice, as too late
after a default; and that he could only be entitled
to give evidence in mitigation of damages.
IN ERROR, on certiorari from a justice's
court. Loucks brought an action against
Snell before the justice. The summons was
returned personally served on the 28th of Oc-
tober, 1812, and the defendant did not appear.
The plaintiff declared for goods sold and de-
livered, &c. The defendant was called, and
his default entered; and the justice then ad-
journed to the 30th of October, at which day
the defendant appeared by attorney, and ten-
dered a plea of the general issue, and request-
ed a venire in the cause. The justice over-
ruled the plea, and refused the venire, on the
ground of its being too late after the de-
fendant had been called and defaulted; but
permitted the defendant to give evidence in
mitigation of the damages. The justice, after
hearing the evidence, gave judgment for the
plaintiff for $25.
Per Curiam. As the summons was person-
ally served, and the defendant did not appear
on its return, the justice was then, or within
six days thereafter, to proceed and hear the
proofs and allegations of the parties. He ap-
pointed two days thereafter for that purpose,
when he rejected the plea of the defendant,
and his motion for a venire, as coming too late.
The decision was correct; for otherwise the
defendant would be taking advantage of his
own delay, without cause for it. It would be
delaying the plaintiff oppressively. The de-
fendant was only entitled to the indulgence
granted him by the justice. The judgment
must be affirmed.
Judgment affirmed.
Cited in— 12 Wend., 152; 3 B. D. Smith, 593.
*SHERMAN v. T. AND H. CROSBY. [*7O
1. Evidence — Receipt, Prima Facie Evidence of
Payment. 2. Set-off — Objection — When too
Late.
Where S. authorized C. to settle a certain suit
brought by B. against S., and to adjust all the mat-
ters and pay all dues and costs; a receipt signed by
B. stating that he had received of S., by the hands
of C., $411, &c., in full of the judgment and execu-
tion in the cause, &c., it was held to be prima facie
evidence of a payment of so much money by C., so as
to authorize him to set it off against a demand of S.,
unless he could show some fraud or abuse of au-
thority by C.
Though the separate debt of one defendant can-
not be set off against the joint debt of both defend-
ants, yet if the objection is not made by the plaint-
iff. at the trial, he cannot afterwards avail himself
of it, on a motion to set aside the verdict.
Citation— Montague on Set-Off, p. 23; 2 T. R., 32.
was an action of assumpsft on a prom-
issory note for $600, payable to the plaint-
iff, or order, on demand, with interest. The
defendant pleaded non assumpsit with notice
JOHNS. REP.. 11.
1814
WY8IIAM V. ROSSEX.
70
of a set-off. The cause was tried at the Broome
Circuit in May 181 8, before Mr. Justice Spencer.
In support of their set-off the defendants
gave in evidence a written authority from the
plaintiff, dated November 17, 1810,by which he
authorized Thomas Crosby, one of the defend-
ants, to settle a suit then depending between
the plaintiff and John Bennet, in the Supreme
Court, Samuel Sherwood, attorney, and "to
adjust all the matters and pay all the due* and
costs," and agreeing " to account with T.
Crosby for all lawful demands on that subject
that he should settle."
The defendant then offered in evidence the
following receipt, Admitted to be in the hand-
writing of Sherwood, and proved to have been
signed by John Bennet, Jr. : " Supreme Court,
John Bennet, Jr., v. George Sherman. Received
of the defendant in this cause, by the hands of
Thomas Crosby, Esq., $411.83, in full of the
judgment and execution in this cause, except-
ing the sheriff's fees on the execution now in
the hands of the sheriff of Broome County.
January 17, 1811."
The plaintiff's counsel objected to this re-
ceipt as being no evidence of a payment of the
amount by the defendants, but that such
payment by them ought to be shown by the
testimony of some witness ; and that, at any
rate, it was not sufficient evidence that the
amount was actually due Bennet. The judge
overruled the objection, and stated the receipt
to be priina facie evidence, sufficient to entitle
the defendants to set off the amount against
the plaintiff. The plaintiff then submitted to
a nonsuit with leave to move the court to set
it aside and grant a new trial.
On the motion to set aside the nonsuit, the
following points were made on the part of the
plaintiff, and the case submitted to the court
without argument : 1. That the receipt of Ben-
net, who was not a party in this suit, was not
evidence, but he ought to have been produced
as a witness.
7 1*] *2. It ought not to have been admitted
without proving that amount actually due to
Bennet from the plaintiff.
3. The defendants could not avail them-
selves of a payment by one of them as a set-off
against a joint debt of both the defendants.
Per Curiam. The only question made at the
trial was, whether the receipt was competent
«vidence of the payment by T. Crosby. It
was proved to have been signed by Bennet. and
as the plaintiff had instructed the defendant,
T. Crosby, to settle the suit of Bennet against
the plaintiff, and pay the demand and costs for
him, the receipt of Bennet was prima facie evi-
dence of the demand and payment, and it was
not requisite for the defendant to make out, in
the first instance, the legality of Bennet's de-
mand, or higher evidence of the payment. The
plaintiff had given the defendant a discretion
to adjust the demand and to pay the dues and
costa, and the adjustment and payment of the
sum demanded was sufficient lor the defend-
ant ; and it lay with the plaintiff to show some
fraud in the adjustment or some abuse of the
discretion. There was no other point raised
at the trial, or arising on the case, for it is too
late for the plaintiff now to object to the set-
off on the ground that it was setting off the
JOHNS. REP., 11. N. T. R., 5.
separate debt of one of the defendants against
the joint debt of both the defendants. That
objection might have been good if made at the
trial. (Montague on Set-Off, p. 23; Buller, J.,
in Fletcher v. Dyche, 2 Term Rep., 32.) It is
now inadmissible, as the defendants are there-
by deprived of the privilege of showing that
the payment by T. Crosby was in fact made by
him and his co-defendant, as partners, and out
of the partnership funds.
The motion to set aside the nonsuit is
denied.
Rule refuged.
Cited in-21 N. Y., 251 : 6 Barb., 32 : 3 Wall., 148 ; 81
N. J. E.. 551.
*WY8HAM «. ROSSEN. [*72
Admiralty — Seamen's Remedy for Wage* — Mas-
ter Liable only on Special Contract.
R., a seaman, shipped on boardof a vessel of which
H. was master, for a voyage from Baltimore to Lis-
bon or Cadiz and back, and sailed from Baltimore
on the voyage, during which the vessel was capt-
ured and carried into Jamaica, and while the
vessel was detained there H., the master, returned
to Baltimore, and the owners of the vessel sent out
W. to take charge of the vessel and bring her home,
she having been released with her cargo, which was
sold at Jamaica; the vessel returned to Baltimore
in ballast, under the command of W., and K.. the
seamen, brought an action against W. to recover
his whole wages from Baltimore to Jamaica and
back, to the time of his discharge. But it was held
t hat \v.\v; is not responsible under the contract made
with H., the first master : the voyage home from Ja-
maica to Baltimore, during which W. acted as mas-
ter, being a new and distinct voyage, and for which
only, under the new contract, he was answerable to
the seamen.
Citation— 1 Comyn on Contracts, 493.
IN ERROR, on certiorari from the Justices'
Court of the City of New York. Rossen
brought an action against Wysham in the co'urt
below for wages as second mate on board of the
ship Philip, on a voyage from Baltimore to
Lisbon or Cadiz, and l>ack. The plaintiff
below shipped on board the vessel, of which
one Hall was master, and signed articles in the
usual form at Baltimore, the 4th of September,
1812, at the rate of $30 per month. The ship
sailed the 6th of September, and, on the llth
of the same month, a ship of war appeared
in sight, about 7 miles to the eastward, and
soon after showed British color. The Philip,
instead of avoiding her, which she might easily
have done, bore down for her and was capt-
ured. The Philip had a British license on
board. She arrived at Jamaica the 9th of
October. The plaintiff, after being on board
a month, was compelled, with the rest of he
crew, to goon board a prison ship, there being
no provisions on board the Philip, and was
detained on board the prison ship until the
llth of March, when he and the rest of the
crew were restored to the Philip. While the
plaintiff was on board the prison ship, Hull, the
master, returned to Baltimore, and the de-
fendant below was sent out by the owners to
take charge of the ship and bring her home.
He informed the plaintiff and the rest of the
crew, on their return to the Philip, that the
vessel and cargo had been acquitted by the
Court of Admiralty. The ship sailed from
Jamaica under the command of the defendant
i «;:,
72
SUPREME COURT, STATE OP NEW YORK.
1814-
on the first of April, 1813, in ballast, and ar-
. rived at New York the 26th of April, and the
plaintiff was discharged by the defendant on
the 3d of May following. The defendant
proved that he was owner of the outward
cargo, consisting of flour and corn, and that
he was a Portuguese ; that he had not yet paid
the owners of the ship their freight, nor had
he received the proceeds of the cargo, though
he was about sending an agent to Jamaica for
that purpose. The cause was tried by a jury,
who found a verdict for the plain tiff for $185.-
50, being the whole amount of his wages from
Baltimore until his return to New York, de-
73*] ducting what *had been paid to him in
advance, on which the court below gave judg-
ment.
The case was submitted to the court without
argument.
Per Curiam. Seamen are said to have a
threefold remedy for their wages, to wit :
against the ship, the owners, and the master.
But the master is chargeable only on his special
contract in hiring the seamen. The action
against him arises solely from the obligation
which he contracts by such hiring ; and the
action against the owners arises from the im-
plied contract which they are supposed to have
made through their agent, the master. (1
Comyn on Contracts, 493; Pothier, Louage des
Matelots, n. 226.) What evidence is there in
this case of a contract between the defendant
below and the seamen for their wages, for the
voyage from Baltimore to Lisbon and back ?
Clearly none. The contract of the plaintiff
below and the rest of the crew was with Cap-
tain Hall. The defendant was merely sent out
to Jamaica by the owners of the ship, to bring
her back to New York, and he engaged the
plaintiff and seamen for that voyage only. He
never assumed the contract of Captain Hall,
nor did he contract with the seamen for any
other voyage than the new one conducted by
him from Jamaica to New York. This was a
voyage altogether distinct from the one for
which the plaintiff engaged with Captain Hall.
The only case in which it can be supposed that
a new or substituted master assumes the con-
tract is when he takes upon himself the orig-
inal voyage. To carry his responsibility
further would be unprecedented and of dan-
gerous consequence. The recovery in the
court below was against law, and must be
reversed.
Judgment reversed.
Cited in— 3 Daly, 85 ; 123 Mass., 128.
74*]
*KLINE v. LOW.
Subscription for Books Published in Parts — Death
of Publisher does not Terminate Contract.
K. subscribed to a work to be published in 120
numbers. L., the publisher, died before all the
numbers were delivered, and his administratrix
afterwards completed the numbers, and sent them
to K., who refused to receive and pay for them ; it
was held that the contract having been completed
by the administratrix, K. was bound to pay for the
numbers so delivered by her, after the death of L.
IN ERROR, on certiorari from a justice's
court. Low sued Kline before the justice,
06
for 46 numbers of a book, at 25 cents each,
and a book of plates at $2, amounting to
$14.25. It appeared that the husband of
the plaintiff, in his lifetime, issued proposals
for publishing by subscription a new and
complete encyclopaedia, to be comprised in
120 numbers, or six volumes quarto, each
number to be accompanied with one or more
plates, &c. A note of hand was to be given
with the 10th number to each subscriber,
engaging to deliver the surplus numbers, if
any, gratis. The defendant was one of the
subscribers to the work, and had received 92
numbers, being all that were published in the
lifetime of the intestate, and had paid for the
same. The subscription paper, containing
the name of the defendant, was proved to be
lost or mislaid, and the contents were testified
to by a witness. The plaintiff administered
on the estate of her husband, who died the
23d of May, 1806. After the death of her
husband, she published, at her own expense,
for the benefit of the subscribers, 49 numbers,
which were necessary for the completion of
the work, making in the whole 141 numbers.
None of the 49 numbers, published by her,
were offered to the defendant until about three
weeks before the trial of the cause, when the
whole of them, with the book of extra plates,
were left at the house of the defendant, in his
absence, and he, afterwards, on being called
upon for that purpose, refused to pay for
them, and desired the witness to take them
back. The note of hand for the surplus
numbers, mentioned as one of the terms of
subscription, though called for, was not pro-
duced by the defendant, who said he claimed
none of those numbers. The defendant
moved for a nonsuit : 1. On the ground that
there was no evidence of any contract, ex-
press or implied, between the plaintiff and de-
fendant. 2. If any such contract did exist, it
was within the statute of frauds. 3. That if
the evidence showed a contract made with the
husband of the plaintiff in his lifetime, then
the plaintiff ought to have sued or declared in
*her representative character, as admin- [*75
istratrix. 4. That the written contract spoken
of by the witness ought to have been com-
plied with. 5. That the terms of the sub-
scription had been fulfilled by the plaintiff or
the intestate. 6. That the defendant could not
be liable for the 21 surplus numbers and book
of plates. The court below overruled all these
objections, and gave judgment for the plaint-
iff for the $14.25.
The cause was submitted to the court with-
out argument.
Per Curiam The demand of the plaintiff
below for all, except the surplus numbers, was
valid ; as she, being administratrix, went on,
after the death of her husband, and completed
the contract. The surplus numbers were not
within the contract, and as the justice express-
ly allowed that part of the demand, amounting
to more than one half of the sum recovered,
there is too great an excess in the recovery to
be overlooked, especially as it was made a
point before the justice. The judgment below
must, for that reason, be reversed.
Judgment reversed.'
JOHNS. REP., 11,
1814
70*]
C'ORWEIN V. HAKES.
76
*CORWEIN r. HAMES.
Justice — Interest of, in Cause.
An action </ui tarn, Ac., was brought before a
justice to recover the penalty for retailing liquors
In the town of W. without a license, a moiety of
tin- penalty being given to the poor of the town of
W. (Sew. 14, ch. 164; 1 N. R. L., 178.) It was held
that though the justice was an inhabitant of the
town of w., his interest was too remote and contin-
gent to avoid a valid objection to his trying the
cause.
IN ERROR, on certiorari from a justice's
court. Hames brought an action qui tarn,
<fec. , against Corwein, before the justice, for
selling spirituous liquors, by retail, in the
town of Wai kill, without a license, &c., as
required by the Act for Regulating Inns and
Taverns, passed the 7th of April, 1801, sess.
24, ch. 164, 1 N. R. L. One of the objec-
tions made by the defendant in the court below
was, that as a moiety of the penalty, if re-
covered, would go to the support of the poor
of the town of \Valkill, in which the justice
then lived, he had an interest in the cause*.
The objection was overruled, and the plaint-
iff having demanded a venire, the cause was
tried bv a jury, who found a verdict for the
plaintiff, on which the justice gave judgment
for $25.
The cause was submitted to the court with-
out argument.
Per Curiam. The interest of the justice
was too remote and contingent to be regarded
in this case. The judgment must be affirmed.
Judgment affirmed.1
Cited in— 3 N. Y.. 913 ; 18 How. Pr., 174 ; 9 Abb.
Pr., 42 : 2 Hilt.. 450.
77*1 *b» THE MATTER OF THE APPLICATION
OF THE MAYOR, ALDERMEN AND COM-
MONALTY OF THE CITY OF NEW
YORK, for the Enlarging and Improving a
Part of Nassau Street, in the said City.
Taxation ofChurcfi Property — Exemption under
Statute does not Extend to Assessments for
Benefits for Public Improvements.
The exemption in the Act for the Assessment and
Collection of Taxes, passed the 8th April. 1801, sees.
4, ch. 178, sec. 24; 2 X. R. L.. 519, sec. 28, of churches
or places of public worship, &c., from being
" taxed by any law of the State," has reference
only to the general and public taxes, for the benefit
of the town, county, or State at large; and not to
assessments of the benefit resulting to the property
from opening, enlarging or improving streets in
the City of New York, under the Act (sess. 36, ch,
86, sec. 178) passed 9th April, 1813; but as they are
exclusively devoted to religious purposes, the bene-
fit of such improvements must be small to them, in
comparison with other property, and they ought
not to contribute In like proportion.
Taxes are burdens, charges, or impositions, set on
persons or property, for public uses ; but an assess-
ment for a supposed benefit, is not a tax or talliage,
within the meaning of the exemption.
Cltations-2 N. R, L.. 408; 1 X. R. L., 6M; 2 Inst,
688; Carth., 488; Act, sess. 43, ch. 246, sec. 30; Act,
sess. S6, ch. 239, sec. 43 .
TI I E commissioners appointed by the court,
on the application of the Corporation of
the City of New York, pursuant to the 178th
l.-l Johns., 486.
JOHNS. REP., 11.
section of the Act " to Reduce Several Laws
relating Particularly to the City of New York
into one Act," passed 9th April, 1813, 2 N. R.
L., 408, made a report of their estimate and
assessment of the damage and benefit to the
parties interested, &c., in enlarging part of
Nassau Street, by which, among other things
it appeared that they assessed the benefit of
the proposed improvement to the following
churches, to be paid by them, viz.: on the
French Church Du St. Esprit, $1.273; the
Presbyterian Church in Wall Street, $1,981.81;
and the Scotch Presbyterian Church, in Cedar
Street, $410. To this assessment the several
churches stated their objections in writing to
the commissioners. Several individuals, also
owners of houses and lots assessed, stated their
objections to the report on the ground of the
assessment being inequitable and dispropor-
tionate. A motion having been made at the
last term to have the report of the commis-
sioners confirmed, the churches, by their
counsel, as well as the individual proprietors,
were heard in support of their objections.
Against the motion, it was argued, in be-
half of the churches, 1. That by the general
Act for the Assessment and Collection of
Taxes (sec. 28, 2 N. R. L., 519), churches or
places of public worship were not liable to this
assessment. That Act declares "that no real
estate belonging to any church or place of
public worship, &c., " shall be taxed by any
law of this State." The term " tax " compre-
hends every species of contribution or burden
imposed by the authority of the State. In
Brewster v. KidgeU, Lord Holt says the "word
'taxes' comprehends rates * for the [*78
church and poor, and those rates imposed by
the commissioners of the sewers," as well as
parliamentary taxes. The statute of 23 Hen.
VIII., ch. 5, relative to the commissioners of
sewers, is perfectly analogous" to the provisions
of our Act.
" Tax" is used, in modem times, by Parlia-
ment, and by our Legislature, instead of the
ancient word " talliage;" and " talliage," am
Lord Coke, 2 Inst., 532, is a general word, and
includes all subsidies taxes, tenths, fifteenths,
impositions, or other burdens or charges put
or set upon any man. So in the case of The
King v. The St. Luke's Hospital, Burr., 1058,
Lord Mansfield uses the word "tax" in this
general sense. The language of the Act
creating the exemption is general, without
any limitation or restriction.
In the Act of 43 Eliz., ch. 2, sec. 1, the
overseers of the poor are authorized to raise
money by "taxation of every inhabitant, "&c.,
which shows that the word " taxes" is used
in reference to local assessments, as well as to
impositions of a more general nature. And in
our Act for Defraying the Public and Neces-
sary Charges in the Several Counties (see 2
N. R. L., 187, 275, sec. 16), one of the town
charges, directed to be collected with the
stated taxes, is the expense and damage of lay-
ing out and improving roads and highways*
In the case of The King v. Scott, 3 Term
Rep., 602 ; see, also, 4 Term Rep., 4, where,
by a private Act of Parliament of 12 Car. II.,
certain lands and premises appropriated for
school houses, and alms houses, were to be
" freed, discharged, &c., of and from the
67
78
SUPKEME COURT, STATE OF NEW YORK.
1814
payment of all and every manner of taxes,
assessments and charges, civil or military,
whatsoever," it was contended that the ex-
emption was only from the general public
taxes of the kingdom, but not from any partic-
ular local tax, as, the Poor's Rate ; but it was
held by the court that the exemption extended
to the Poor's Rate.
An exemption contained in a prior Act is
not repealed or taken away by a subsequent
general statute. (11 Co., 68 b.) Thus, in
WiUiams v. Pritchard, 4 Term Rep., 2, where
houses built on lands embanked on the Thames
were, by the Act of 7 Geo. III., ch. 37, to
be held " free from all taxes and assessments
whatsoever," it was held that they were not
liable to be assessed for the general land tax
imposed by a subsequent Act of 27 Geo. III.,
though couched in the most general terms.
And so in the case of Eddington v. Barman, 4
Term Rep., 4, it was held that such houses,
thus exempted by the 7 Geo. III., ch. 37, were
not liable to pay the rates assessed under the
subsequent Act of 11 Geo. III., ch. 29, for
"making, enlarging, &c., the vaults, drains
and sewers in the City of London, and for
79*] paving, cleaning *and lighting the
streets," &c. The word "taxes," then, is clearly
broad enough to cover the charge in this case.
The word " assessment " means only the ap-
portioning or rating a tax.
2. The amount assessed on these churches is
excessive, and enormously disproportionate to
any possible benefit they can be supposed to
derive from the widening of Nassau Street.
The Act directs the commissioners to make a
•" just and equitable estimate and assessment
of the value of the benefit and advantage of
the proposed improvement to the owners of the
adjoining lands," &c. These churches are set
apart and consecrated to the purposes of re-
ligious worship.* They cannot be converted
to secular uses, and it is the secular benefit
only that is liable to assessment under this
Act. The commissioners have proceeded on
an arbitrary rule of apportionment, applied
to these churches in the same manner as
if they were employed for private or secular
purposes.
For the motion, it was insisted that the ex-
emption claimed by the churches under the
general " Act for the Assessment and Col-
lection of Taxes," had reference only to the
general and public taxes, imposed by the State,
or to assessments on the towns or counties at
large, not to local and limited assessments for
the improving a part of a particular street.
That the assessment from which the churches
seek to be relieved in this case, is of a ratable
proportion of the benefit and advantage derived
from the improvement of the street which is to
be widened ; and in the same section of the
Act which exempts ministers of the gospel and
churches from being taxed, houses or lands
belonging to the United States, or to the peo-
ple of this State, are also exempted ; yet the
Legislature have, by various Acts, recognized
the validity of similar assessments on the
public property in the City of New York,
showing evidently the legislative sense of the
nature and extent of the exemption. It must
be presumed that the Legislature intended only
to relieve from a burden, not from a benefit.
68
2. As to the quantum of the benefit assessed
and which is complained of, that was a matter
resting on the sound discretion of the commis-
sioners, who adopted the only practicable rule
on the subject. The property of these churches
is undoubtedly benefited ; for though, at
present, they are exclusively devoted to
*religious purposes, yet circumstances [*8O
may arise hereafter to induce the congregations
interested to secularize the property, and the
improvement of the street may be regarded,
therefore, as a permanent advantage. There
is, besides, an incidental advantage arising
from widening the street so near the churches,
and thereby enlargening one of the avenues to
them.
Mr. D. 8. Jones, in support of the motion.
Messrs. Harison, Griff en, Brinckerlioff and
Kip, contra.
Per Curium. The churches are not well
founded in their claim to a total exemption of
their lots from assessments for opening, en-
larging, or otherwise improving streets in the
City of New York, made in pursuance of the
Act of the 9th of April, 1813, 2 N. R. L., 408.
These assessments are intended and directed
to be made upon the owners of lands and lots
who may receive "benefit and advantage" by
the improvement. The exemption granted by
the Act of 1801 was in the general Act for the
Assessment and Collection of Taxes (1 N. R.
L., 556), and the provisions of that Act all
refer to general and public taxes to be assessed
and collected for the benefit of the town, coun-
ty, or State at large. The words of the ex-
emption are, that no church or place of pub-
lic worship, nor any school house, &c., "should
be taxed by any law of this State." The word
"taxes"means burdens, charges, or impositions,
put or set upon persons or property for pub-
lic uses, and this is the definition which Lord
Coke gives to the word "talliage" (2 Inst.,
532), and Lcrd Holt, in Garth., 438, gives the
same definition, in substance, of the word
"tax." The Legislature intended, by that ex-
emption, to relieve religious and literary in-
stitutions from these public burdens, and the
same exemption was extended to the real es-
tate of any minister, not exceeding in value
$1,500. But to pay for the opening of a street,
in a ratio to the '"benefit or advantage'' de-
rived from it, is no burden. It is no talliage or
tax within the meaning of the exemption, and
has no claim upon the public benevolence.
Why should not the real estate of a minister,
as well as of other persons, pay for such an
improvement in proportion as it is benefited ?
There in no inconvenience or hardship in it,
and the maxim of the law that qui sentit com-
modum debet sentire onus, is perfectly consistent
with the interests and dictates of science and
*religion. The Legislature have, in sev- [*8 1
eral instances, given this construction to the
exemption in question, by recognizing as valid
similar assessments upon public property in
New York. (Acts, sess. 34, ch. 246, sec. 30 ;
sess. 35, ch. 236, sec. 43.)
The next and only remaining question is,
whether the estimate and assessment, either
in respect to the churches, or in respect to the
individuals claiming, does, in any respect, re-
quire revisal and correction. As the church
JOHNS. REP., 11.
1814
QEIB v. ICARD.
81
property is not, nor is likely soon to be, either
appropriated to renting or exposed to sale, but
{H devoted exclusively to religious purposes,
the benefit resulting to it. by the improvement
of Nassau Street, must be small in comparison
with that of other property, and it, therefore,
ought not to contribute in the like proportion.
It may be considered, possibly, a- benefited,
by rendering the access to the churches
more convenient, and the places more pleas-
ant and salubrious, by the freer circulation of
the air. This may have some influence on the
pew rents, and the ground may become per-
manently more valuable. These, however,
appear to be small and remote benefits to prop-
erty so circumstanced ; and to charge the
churches equally with adjoining private prop-
erty is unreasonable and extravagant ; and on
this point the report ought to be sent back to
the commissioners for revisal and correction.
Motion denied.
Overruled-* N. Y., 433 ; 2 Hun, 433 ; 5 T. & C., 63.
Approved-36 Ind.. 340.
Dtstlnjruishpd-W Wend., 891 ; 104 Mass., 484 ; 35 N.
J. L., 166 ; 36 N. J. L., 59.
Cited in-S Wend., 3b6 ; 4 Hill, 83 ; 63 N. Y., 299 ; 67
X. Y., 533; 6Lans.,96; 6 Barb.. 223 : 9 Barb., 551 ; 43
How. Pr., 372; 2 Redf., 339; 20 Wall., 664 ; 46 Mich.,
M; 53 Wis.. 185: 50 Mo., 158; 85 N. J. L., 163.
82*]
*GEIB t>. ICARD.
Practice.
An affidavit of merits on the part of the defendant,
taken before the return of the writ against him, or
the filing of the declaration, is not sufficient to pre-
vent an inquest being taken by default at the sit-
tings.
Citation-3 Johns., 141.
MR. WOODWARD, for the defendant,
moved to set aside the inquest taken in
this cause at the sittings in the City of New
York. He read an affidavit stating that, pre-
vious to the sittings, a copy of an affidavit of
merits, and notice of its being filed with the
clerk of the sittings, were duly served on the
plaintiff's attorney, who had noticed the cause
for trial as an inquest. (See Rule of November
Term, 1808.)
It appeared that the capita ad rcqpondendum
in the case was issued the 4th January, and re-
turnable the 16th January. 1813; anil that the
declaration was filed the" 23d Februarv, and
special bail put in the 22d March, 1813. "
The affidavit of merits made by the defend-
ant was taken the 18th January, 1813, three
days before the return of the writ ; and the
defendant's attorney stated that the defendant
being about to leave the State for the West In-
dies, and being fully apprised of his defense,
in the suit commenced against him, made the
affidavit of merits to be used, as occasion
might require, and that the defendant had not
yet returned to the State.
Mr. Johnson, contra, objected that the affi-
davit of merits was premature. Until the dec-
laration wax filed, the defendant could not be
presumed to know the grounds of the action,
and could not, therefore, be legally advised as
to a defense.
Per Curtain. The affidavit of a defense on
JOHNS. REP., 11.
the merits cannot be made before the plaintiff
has declared ; and the reason assigned in this
case for making it is insufficient, as, in the ab-
sence of the defendant, it may be made by his
attorney or counsel. (Phillips v. Blagge, 8
Johns., 141.) It appears also that the de-
fendant's attorney was apprised, by the plaint-
iff's attorney, that he considered the affidavit
as insufficient on this account. The motion is
denied.
Motion denied.
Cited In— Olcott, 223.
*VANDERBILT v. DOWNING. [*83
Quakers — Exemption from Military Duty —
Mwtbe Claimed.
No action lies against a captain or commandant of
a company in the militia for returning a Quaker to
the court-martial as a delinquent, in not appearing
at the parade, pursuant to notice for that purpose,
unless it appear that he gave notice to the officer of
his claim to be exempted, and offered proper evi-
dence of his being entitled to such exemption under
the statute. There must be malice express or Im-
plied, to support the action.
IN ERROR, on certwran from a justice's
court. Downing sued Vanderbilt before the
justice, to recover the amount of a fine paid
by him, in consequence of being returned by
the defendant below, who was captain of a com-
pany of miltia, as a delinquent for not appear-
ing at the company parade, to the court-martial,
who imposed a fine upon him. There was a trial
by jury. It was proved by the plaintiff that
when his name was called on the parade, a
person in the ranks answered that he was a
Quaker, but it did not appear that the defend-
ant heard him, or that he knew the plaintiff.
It was proved that he was in fact a Quaker,
and had a certificate of membership from the
Society of Friends. He was enrolled by a cor-
poral of the company, and warned to appear
at the parade. It was admitted that the plaint-
iff, being marked on the roll for notappearing
on the parade, was returned to the court-mar-
tial as a delinquent, and that due notice was
given to him to appear before the court-mar-
tial, and show cause why a fine should not be
imposed on him, &c.
The jury found a verdict for the plaintiff
for $10.50, on which the justice gave judg-
ment.
Mr. Bloom, for the plaintiff in error. 1. The
Militia Act (seas. 83, ch. 165) requires every
captain or commanding officer of a company
to enrol every free, able-bodied male citizen, of
the age of 18 and under 45 years, resident
within his bounds, and all such persons are
subject to the performance of military duty.
Certain persons, specially enumerated, are,
however, exempted from militia duty, their
offices or occupations being of a public nature.
Other persons (sec. 14), being the people
called Quakers, who would otherwise be sub-
ject to miltiary duty by virtue of the Act,
and who refuse personal military service, are
exempted from such service, on paying the
the annual sum of $4 for such exemption.
This class of persons must claim their exemp-
tion, and give notice of such to the command -
69
83
SUPREME COURT, STATE OP NEW YORK.
1814
ing officer of the companies, who are required
by the Act to deliver a list of them to the asses-
sors of the town.
2. Again, the plaintiff below ought to have
appeared before the court-martial, and there
84*] claimed his exemption; otherwise, *their
decision against him justifies the return made
by the defendant, and is conclusive on the sub-
ject. (Ferris v. Armstrong, 10 Johns., 100.)
8. The return of the captain to the court-
martial being an act of official duty, he can-
not be liable to the action, unless on the ground
that he made the return willfully and mali-
ciously, with a view to harass and injure the
plaintiff below ; nor even on that ground, un-
less it appear, also, that he knew that the
plaintiff below was a Quaker, and exempt
from military service. There is no evidence
of any notice to the defendant below of that
fact, or that the plaintiff claimed the privilege,
or gave any proof whatever, that he was en-
titled to the exemption allowed by the statute.
There is not, therefore, any evidence of mal-
ice on the part of the plaintiff in error.
Mr. P. Buggies, for the defendant in error,
was stopped by the court.
KENT, Ch. J. The last two points are con-
clusive. There is no malice express or im-
plied on the part of the plaintiff in error, and
no action can be maintained against him. The
judgment below ought to be reversed.
THOMPSON, J. Every male inhabitant above
18 years of age, and under 45, is, prima facie,
liable to be enrolled in the militia ; and how
are the commandants of companies to know
that a person is a Quaker, or exempted from
military duty, unless he claims his privilege?
It is the duty of the officer to return all de-
faulters, though they are Quakers, to the
court-martial as delinquents, unless they
claim their privilege, and offer proper proof
that they are entitled to the exemption given
by the statute.
Judgment reversed.
Per (Juriam.
85*] *HEYLIGER
v.
THE NEW YORK FIREMEN INSUR-
ANCE COMPANY.
Marine Insurance — Salvage Goes into General
Average.
A vessel insured from St. Croix to New York,
was stranded, in January, 1810, at Shrewsbury, on
the coast of New Jersey, information of which ac-
cident being received at New York, lighters and
men were, by the agreement and consent of all
parties, without prejudice to their respective rights,
sent down from New York, to endeavor to save the
property. The vessel was wrecked and lost, except
a few materials, but the cargo was saved and
brought up to New York, in the lighters, and de-
livered to the consignees and owners.
It was held that the expenses of salvage, includ-
ing the cost of lighters, &c., were general average,
and that the insurers on the cargo were bound to
pay their proportion of such average.
NOTE.— Marine Insurance.— In connection with
above case of Heyliger v. N. Y. Firemens' Ins. Co.,
consult Lewis v. Williams, 1 Hall, 430.
70
THIS was an action on a policy of insurance,
dated the 8th December, 1810, on 74 hogs-
heads of sugar, at and from St. Croix to New
York, on board the British schooner Success,
William Forbes master. Markoe and Mas-
ters, who caused the insurance to be effected,
as agents of the plaintiff, were the consignees
and agents of the owners of the vessel, and of
the cargo on board belonging to the owners,
and were also the consignees and agents of
the owners of the residue of the cargo, not be-
longing to the owners of the vessel, excepting
one barrel of sugar. The cargo consisted of
17 tierces and 50 barrels of sugar, belonging
to the owners of the vessel, and 74 hogsheads
of sugar belonging to the plaintiff , and 10 bar-
rels of sugar belonging to the master. The ves-
sel and freight, and that part of the cargo which
belonged to the owners of the vessel, were in-
sured by the United Ins. Co. of New York,
the insurance being effected by Markoe and
Masters, for account of the owners.
The cause was tried at the New York sit-
tings, in June, 1818, before Mr. Justice Van
Ness.
From the evidence at the trial, it appeared
that Markoe and Masters, on the 15th Janu-
ury, 1810, received information that the
schooner was on shore near Shrewsbury, in a
very perilous situation, which was communi-
cated to the defendants and the other insurers,
and it was agreed that immediate measures
should be taken to save the vessel and cargo,
if practicable, and, in case the vessel was lost,
to bring on the cargo to New York, and that
the measures so taken should be without prej-
udice to the rights of either party. The vessel
was wrecked and totally lost, excepting a few
of her materials, but the cargo was saved and
brought up in lighters to New York, and there
delivered free of damage, to Markoe and Mas-
ters, the consignees, who paid all the expenses.
They called on the defendants to settle the ac-
counts, and pay their proportion of the ex-
penses, as general average ; but the defend-
ants refused to pay any part, insisting that
they were not liable, as the expenses of light-
erage and forwarding the cargo to its place of
destination ought to be paid by the ship own-
ers or their agents, or out of the freight. The
freight *policy remained uncanceled in [*86
the hands of Markoe and Masters, and they
had not settled the freight with the owners of
the vessel.
The present suit was brought by the plaint-
iff to recover the amount of the contribution
of the assured, in respect to the sugars in-
sured by the defendants, to the expenses of
salvage, lighterage, &c., the whole of which
the plaintiff insisted were general average.
It appeared that the vessel, having been
spoken off the Hook, and supposed to stand
in need of suppjies, the wind and weather be-
ing unfavorable, a pilot boat, with the consent
of the insurers, was sent down in search of
her, and to afford assistance in case of neces-
sity.
Two statements of the general average, pro-
duced at the trial, marked A and B, were ex-
hibited to the court. The account marked B,
which was that of the plaintiff, and allowed
by the court as correct, included the following
charges :
JOHNS. REP., 11.
1814
HEYLIOER v. NEW YORK COMMERCIAL INS. Co.
86
Provisions sent down to the people
employed in saving property,
Paid four riggers sent to assist,
Plank to get out cargo, -
Cartage 50 cente. Wages of 5 rig-
gers, $99.50, -
Hire of 5 lighters employed in saving
the property, and biinging it to
New York.
Captain, paid express to New York,
Paid wages of 6 riggers. -
* Pilot lioat employee three days in
search of the vessel,
Blocks and yards sent down, -
Cartage in saving cargo, &c.,
Carting and labor, •
Notary and wardens, -
$44 10
39 90
34 87
100 00
Commissions, 5 percent.,
578 00
15 00
SM 00
90 00
5 83
16 90
189 00
31 50
$1,233 20
61 66
Amount of salvage and expenses, $1,294 86
•87*} *To contribute to general average :
Vessel, materials saved, $369 37 pays, $44 91
Cargo, - - - 9,568 00 ". 1,162 25
Freight, $1,444, half, 722 00 " 87 70
.<ln.r,.vj ::; $1,294 86
Cargo's share, $1,162 25, to be paid as fol-
lows :
C.Walker, sugar and rum, $1,976 pays $240 03
J. Hevliger,74hhds. sugar, 7,400 " 89890
W. Forbes. 10 bbls. do., 180 " 2186
Peter Walker, 1 do. do., 12 " 146
$9,568 $1,162 25
Mr. S.Jonet, Jr., for the defendants. As in-
surers of goods, the defendants are not respon-
sible for the expense of bringing them to New
York. These expenses are to be paid by the
ship owners, or carrier. They were incurred
exclusively for his benefit ; for unless the
goods were delivered at their port of destina-
tion, the freight would not be earned. In case
of accident to the vessel, which renders her
incapable of completing the voyage, it is the
duty of the master or owner to provide an-
other vessel to transport the cargo to its
destined port. (1 Johns., 335 ; 9 Johns., 17.)
This was not the case of an extra freight
paid on a new contract of hire ; it is a
continuance of the same freight or carriage
for the same voyage.
The lighters and riggers were sent down by
consent of all parties, without prejudice to
their rights. The lighters were of no use, ex-
cept to tiring up the cargo, as the vessel could
not be got off.
Mr. Huffman, contra, said he did not dis- >
pute the principles laid down by the counsel \
JOHNS. REP.. 11.
for the defendants ; but it was only necessary
for the court to understand the facts in this
case, to decide in favor of the plaintiff's
claim. The pilot boat was sent down to the
place of stranding by consent of all par-
ties, owners and insurers of vessel, freight and
cargo. The lighters were afterwards sent by
common consent, and for the common benefit
of all concerned. We admit that if these acts
had not been done, *and these expenses [*88
incurred, in consequence of the agreement and
common consent of all parties, the charge
would be exclusively on the cargo ; but we
contend that it is in consequence of this
agreement that these expenses are to be deemed
general average, and equally to be borne by
the parties interested.
Mr. Jone*, in reply, said that be did not ob-
ject to the expenses incident to saving the
property being considered as general average ; '
but he insisted that the expense of lighterage
and transportation of the cargo to New York
could not be made a general average. The
rights of the parties, in this respect, were not
varied by the agreement. Suppose there had
been no insurance made, could the plaintiff
have been liable for these expenses? If he could
not, neither are the defendants liable.
Again, one of the items, the charge of $90
for the pilot lx>at, was incurred before the ac-
cident happened.
Per Curiam. The claim of the plaintiff is
just and legal. The expenses were incurred
in laboring for the safety and recovery of the
cargo from shipwreck, and the general con-
tribution is founded on the most equitable
principles. The expenses were incurred for
the common benefit. The doctrine of the de-
fendant's counsel is inapplicable. The expense
of conveyance, in another vessel or boat, strict-
ly so considered, ought to fall on the ship
owner, and not on the shipper of the goods.
But this was not that case. The vessel was
stranded, and the cargo and vessel in jeopardy,
and here was a joint effort and expense for tne
recovery of both, and the ship was lost, and
the cargo only saved. The expense of remov-
ing the cargo from the place of the shipwreck
to the port of New York may have been a
small item, of itself, but it is not separated
and stated in the case. As the plaintiff claims
only the defendants' proportion of a general
average, there is no just ground, on the part
of the defendants, for objection to the claim;
and he is entitled to the amount as in the ac-
count marked (B), being $898.90, with interest.
Judgment for the plaintiff.
Cited tn-44 N. Y., 217 ; 68 N. Y., 196: 74 N. Y., 255 :
1 Hall, 443.
71
[END or JANUARY TERM, 1814.]
CASES AROUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
STATE OF NEW YORK,
MAY TERM, IN THE THIRTY-EIGHTH YEAR OF OUR INDEPENDENCE.
[During the last vacation, the Honorable JAMES KENT, Chief Justice, was appointee!
Chancellor, in the place of the Honorable John Lansing, Jr., who had attained the age limited
by the Constitution (art. xxiv.) for the tenure of the office.
His Honor, Mr. Justice THOMPSON, was, at the same .time, appointed Chief Justice, and
Jonas Platt, Esq., counselor at law, one of the judges of this court. Their commissions were
all dated the 25th February, 1814.
Mr. Justice PLATT took his seat on the Bench the first day of this term.]
CAINES v. GARDNER.1
Practice — Service of Notice.
The rule requiring a service of notice of proceed-
ings to be made on the agent of the attorney re-
siding at the place where the court sits, applies only
to notices given during the term, and not to notices
in vacation.
MR. BURR, for the defendant, moved to set
aside the proceedings in this cause ; but
Mr. E. Williams objected to the motion be-
ing heard, because the service of the notice
had been on the agent of the plaintiff's attorney
in New York, and he insisted that the service
should have been on his agent in Albany, where
the court, was to sit ; and referred to some
manuscript decisions of the Cfiief Justice.
9O*] *THE COURT said the rule requiring
service to be made on the agent of the attorney,
at the place where the court sits, had reference
only to notices in or during the term.2
DOLE v. YOUNG.
Practice — Time to Declare.
The plaintiff is not out of court, if he does not de-
clare in a year : but if the defendant wishes to
hasten the plaintiff, or put him out of court, he must
enter a rule for him to declare or to be nonprossed,
and until a judgment of non pros is obtained, the
plaintiff may declare at any time.*
MR. FOOT, for the defendant, moved to set
aside the default, and all subsequent pro-
ceedings in this cause, for irregularity.
The capias ad respondendum was returned in
January Term, 1812, with the defendant's ap-
pearance indorsed thereon.
1.— This and the next case arose, and were decided'
at the last term.
2.— See Chapman v. Raymond, 8 Johns., 360; Eighth
rule of January Term, 1799; Rule of S. C., 36.
* Vide Sharp v. Dorr, 15 Johns., 531 ; Montgomery
v. Hasbrouck, 3 Ibid., 538.
72
The declaration, which was for a libel, was
filed the 21st August, 1813, and the default of
the defendant, for not pleading, was entered
on the llth September following, and an in-
terlocutory judgment, the 22d October last, on
which a writ of inquiry of damages had been
executed.
Mr. Foot contended that the plaintiff, by not
declaring within a year after the defendant's
appearance was entered, was out of court ; and
that such was the rule of the Court of K. B. in
England.
Mr. Buel, contra, insisted that by the prac-
tice of this court the proceedings were regular.
The defendant, if he wishes to hasten the
plaintiff, or to put him out of court, may serve
a rule to declare, or be non prossed ; and until
such judgment of non pros has been obtained,
the plaintiff has a right to declare at any
time.
Mr. Foot, in reply, said that, even if the court
should not adhere to the English practice, yet,
as the plaintiff himself had been guilty of such
great delay, there ought to have been, at least,
a personal service of the notice of the rule to
plead on the defendant, and not by putting
the notice up in the clerk's office, as hi other
cases.
Per Curiam. We have not adopted the
rule of the English Court of K. B., that the
plaintiff is out of court if he does not declare
*in one year after the defendant's ap- [*91
pearance. But, there being no attorney em-
ployed in this case, the copy of the declaration
and notice of the rule to plead ought to have
been served on the defendant, personally, or
by leaving them at his usual place of abode.
The proceedings must, therefore, be set aside.
Rule granted.*
1.— See S. P. Cheetham v. Lewis, 3 Caines* Rep.,
256.
JOHNS. REP., 11.
1814
JACKSON, BX DEM., v. MATSDORF.
91
JACKSON, ex-dem. BENSON.
T.
MATSDORF ET AL.
Trust* — Deed Executed to Infant Daughter of
Purchaser and Retained by him, held, not an
Adtancement to her, but a Resulting Trust
for him — Advene Potttuion — Estoppel.
B. executed a deed of a farm in 1776. to K., the in-
fant daughter of A., " for the consideration of A'112
jvoelved of A." The deed was not actually deliv-
ered to K., but remained in the possession of A.,
until it was afterwards surreptitiously taken away
by K.. and her husband; on which B. executed
another deed for the same land to A. At the time
of the deed. A. took possession of the premises, and
continued in possession, using and claiming them
aa his own, from 1766 to the time of his death, atxuit
the year 1802. K. and her second husband, in 1786,
executed a quitclaim deed for the same premises to
B., for the consideration of £112.
In an action of ejectment, brought in 1812, by B.,
claiming under K., against a person claiming under
A., it was held that the taking the deed in the name
of K. was not an advancement to her by A.; but
was a trust for her father, who paid the considera-
tion money.
And being a resulting trust, it was not within the
statute of frauds, but might be proved by parol.
It not being intended as an advancement, there
was not a valid delivery of the deed to the trustee :
and A's title became complete by length of posses-
sion.
But admitting a delivery of the deed so as to vest
the legal estate in K., yet B. could not avail himself
of the deed from K. to B.. in 1786, B. having full
knowledge, at the time, of the trust to A. And if
that deed was not absolutely void, the person claim-
ing under it was to be deemed a trustee for A., the
real owner.
The lapse of time, in this case, was sufficient to
warrant the presumption of a conveyance by K.,
the trustee, to A., the cestui </i/» trust.
The second deed from B. to A., with warranty,
was sufficient to pass a title subsequently acquired
by the grantor.
And the possession of A. being adverse, at the
time of the deed from K. to B., in 1786, that deed
was imperative and void.
Citations— 2 Atk., 479 : 1 Johns. Cas., 153 ; 3 Johns.,
216; 1 Cruise's Dig.. 485 ; Co. Litt., 285 a.
THIS was an action of ejectment for a farm
in Pawlings, in the County of Dutchess.
The cause was tried at the Dutchess Circuit in
September, 1812, before Mr. Justice Yates.
At the trial, the plaintiff read in evidence a
deed, dated the 8th December, 1764, from
Matthias Marsh and William Marsh, to Benja-
min Benson, for the premises in question, for
the consideration of £1 12, with the usual cove-
nants and warranty ; a deed, dated 9th June,
1766, from Benjamin Benson to Keziah lien-
son, expressed to be for the consideration of
£112 received from Ambrose Benson ; also a
quitclaim deed from James Morehouse and
Keziah, his wife, to Benjamin Benson, for the
same premises, dated 3d November, 1 786, for
the consideration of £112. This deed was not
acknowledged by the *wife of More- [*9SJ
house. The execution of the deeds was ad-
mitted by the defendants' counsel, but not the
delivery of the deed from Benjamin Benson to
Keziah Benson.
Many witnesses were examined, and a great
mass of evidence taken at the trial, and de-
tailed in the case, the whole of which it is not
thought necessary to state here. The follow-
ing are the material facts in the case.
William Pavne, a witness for the plaintiff,
testified that after Benjamin Benson purchased
the premises in question of M. and W. Marsh,
he lived on the farm until he and Ambrose
Benson exchanged farms, when Ambrose en-
tered into possession of the premises. Keziah
Benson, who was the daughter of Ambrose,
was under age when her father took posses-
sion of the farm, and lived in his family. The
father sometimes called the farm Keziah's
land, and after her marriage with Morehouse,
he called it Morehouse's land, and sometimes
Keziah's. And when disputes arose in the
family, he frequently said he would send for
Morehouse to come and take the land, and that
Morehouse should have it. Mary Matsdorf, a
daughter also of Ambrose Benson, lived with
her father. She lived with her first husband
(Clear) a short time in Connecticut, but during
most of the time resided in her father's fami-
ly. She and her mother chiefly managed the
business. Ambrose Benson "died 10 or 12
years ago, and Benjamin died about two or
three years since. The witness further stated
that he had heard the declarations of Ambrose
Benson above mentioned, at different times,
for many years, and towards the close of his
life ; and that since the sale back to Benjamin
Benson, he heard Benjamin Benson say that
he had purchased the land. That B. Benson
called him to witness his forbidding Mary
Matsdorf building on the farm. She was then
erecting a building of stone in addition to the
house. Ambrose Benson was present, and
heard Benjamin forbid her building, and she
told him to go away and mind his own busi-
ness, and not interrupt her. Ambrose Benson
said nothing ; nor did Mary Matsdorf say she
had any claim to the land. The witness heard
Ambrose Benson say that Benjamin should
have the land, but* without assigning any
reason.
John Payne, a witness for the defendants,
testified that after the exchange of farms be-
NOTK.— 1. Resulting trust. 2. Advancements. 3.
Adoerte P<me**i<m.
At common law, where lands were cnnvened tonne
penum, the tmrchase money hcino void t>u another,
a trust resulted in fantr of the latter. See wtte to
Foote v. Colvin,3 Johns., 216. See, also, Jackson v.
Batenmn, 2 Wend., 570; Guthrie v. Gardner. 19
Wi-nd.. 114; Jackson v. Walker, 4 Wend. 462; Gar-
tti-M v. Hatmaker, 16 N. Y..475; Jackson v. Moore.
6 Cow., 706 ; Steere v. Steere, ft Johns. Oh., 1 : Boyd
v. Me1 Lean, 1 Johns. Ch., StCJ; Botsford v. Burr, 2
Johns. Ch., 405; Willis v. Willis, 2 Atk., 71; Bart-
lett v. PickeriigtII. 1 Eden, 515; Hall v. Snrigg. 7
Martin, 243; Powell v. Monson, &c., Co., 3 Mason,
362 ; Hall v. Young. 37 N. 11 .. 134.
Advancement*.
Where a father makes a purchase in the name of a
fhilil. U will he presumetl an advancement, not a
result iny trust in favor of himself. Partridge v.
JOHNS. HEP., 11.
Havens, 10 Paige. 618 ; Welton v. Divine. 30 Barb..
9 ; Brown v. Burk, 22 Ga.. 574; Page v. Page. 8 N.
H., 187 ; Butler v. Merchant*' Ins. Co., 14 Ala., 777;
Dudley v. Bosworth, 10 Humph., 9; Dutch's Ap-
peal, 57 Pa. St., 461 ; Murphey v. Nathans. 46 Pa.
St., 50H. See, also, Livingston v. Livingston, 2
Johns. Ch., 537.
But where the erpress intcntioit is that it shall not
he ein advancement, a trust results. In addition to
above cast' of Jackson v. Matodorf. see Proseus v.
M< lutyre. 5 Barb., 424. See Garnckl v. Hatmaker,
15 X. Y., 475, and Everett v. Everett, 48 X. Y.,218,
overruling the above case of Jackson v. Matsdorf,
under subsequent statutes affecting trusts.
Adverse I'osseMitm,
Conveyances asaffected tty. SeeWhittaker v. Cone,
2 Johns. Cas., note ; Jackson v. Todd, 2 Cai., 183,
note ; Jackson v. Wheeler, 10 Johns.. 104, wtte.
73
SUPREME COURT, STATE OP NEW YORK.
1814
tween Benjamin and Ambrose, the latter took
possession of the farm in question, and con-
tinued in possession until his death, which was
O3*] about twelve years ago. *His daughter
Mary lived with him, and since his death has
been in possession, except when put out by a
former action of ejectment. Soon after the
deeds were executed, about 40 years ago, Ben-
jamin Benson told the witness that he and
Ambrose had exchanged farms, and that, for
particular reasons, Ambrose did not choose to
take the deeds in his own name. The deeds
for the lands in Connecticut were in the name
of Mary and Hannah, his daughters, and the
deeds for the lands in New York were to
Keziah. Ambrose was under some difficulties;
and the deeds were not recorded, as Ambrose
did not know but that he might wish to take
them up and have others given for different
lands, in his own name.
After Mary was married, Benjamin Benson
said that Ambrose had left his chest, contain-
ing the deeds, in the House of Benjamin Ben-
son, as he did not know^but some of the fami-
ly might get hold of them. When Benjamin
Benson was absent from home, and his wife
sick, Mary and her husband, Patrick Clear,
and Keziah, went to his house, took the chest,
carried it into the woods, and there broke it
open and took out the deeds. Benjamin Ben-
son, on his return home, being informed of
what had been done with the chest, told it to
Ambrose, and they went to New Milford, and
there new deeds were made to Ambrose ; but
how they were made out, whether separately
or not, the witness did not know. It was in-
tended to have them recorded, but Clear had
been to the clerk and had got the other deeds
recorded first. The witness said the reason
why the deeds were not taken in the name of
Ambrose was on account of a bond which
Ambrose feared might be prosecuted against
him. That Ambrose said he did not own any
of the children, except Mary, Hannah and
Keziah, who should have his property, but
that the others should have none.
Another witness (J. Hoag) also testified that
Ambrose used the premises as his own until
his death, about 10 or 12 years ago ; that since
his death Mary had been in possession, except
when turned out by a former action of eject-
ment. Benjamin Benson told the witness, at
different times, that Ambrose was in trouble,
and that the deeds were given to his daughters,
so that the lands should not go to pay the
bond ; that he and Ambrose had exchanged
lands, and after the deeds were given, they
were put into a chest, which was carried to
Benjamin Benson's house to be kept, and the
witness understood that if Ambrose got clear
of his difficulty about the bond, the deeds were
to be taken up, and new deeds were to be
given to Ambrose. After the deeds were
O4*] *taken away by Mary, her husband and
Hannah, as before stated, "Benjamin and Am-
brose went to Connecticut, and there new
deeds were executed to Ambrose ; but Clear
had got the other deeds recorded. The deeds
were separate — the one for lands in Connecti-
cut was to Mary and Hannah, and the one for
lands in this State was to Keziah. The first
conversation between the witness and B. Ben-
son was before the deed from Morehouse to
74
him, and another conversation was since, and
before the death of Ambrose, and the story
told by B. Benson, at both times, was the
same. The witness never heard Benjamin
Benson claim the lands until since the death of
Ambrose. A few years before his death, Am-
brose Benson desired the witness to write his
will, and said he wished to give the property
to Mary and her children, and that Benjamin
Benson might try to get it from them.
The counsel for the plaintiff objected to any
evidence of the declarations of Ambrose Ben-
son ; but the judge overruled the objection.
Another witness testified to conversations
with Benjamin Benson, in which he stated the
same facts about the deeds, as above stated,
and said he kept them for Ambrose.
James Morehouse, who was called by the
defendants, said that after he married Keziah
Benson, her father (Ambrose) told him he had
given her a deed, but it was not intended that
she should have it, and that he meant the lands
should go to Mary and her children. The
declarations of Ambrose Benson were ob-
jected to, but the evidence was admitted by
the judge. The witness further testified that,
after he was informed there was a deed to his
wife, he inquired of his father about it, who
told him the land was the property' of the
State, and never could be recovered. The wit-
ness never made any claim for the property,
and had given up the idea of any claim, think-
ing he might look to Benjamin Benson. About
7 or 8 years after his marriage with Keziah,
Benjamin Benson told him the deed to her was
a fraud, that it never was intended for her,
that the title from M. & W. Marsh would fail,
and that the land belonged to the State ; that,
as the deed was with covenants, he wished to
have it back, and to be discharged ; that the
deed had never been delivered, but had been
taken away from his house. The witness
never consulted with Ambrose Benson about
giving the quitclaim to Benjamin Benson.
The witness said he never claimed or expected
to get the land. But it appeared that he had
said, on a former trial, that *he had con-[*95
suited with Ambrose Benson, before he gave
the quitclaim deed. The witness, however,
said his recollection was sot clear ; that he
thought his wife sent to Ambrose Benson and
his family to ask about it, and they sent back
word they might do as they pleased about sell-
ing to B. Benson.
A verdict was taken by consent, for the
plaintiff, for six eighths of the premises, sub-
ject to the opinion of the court on a case.
Messrs. J. Tallmadge and P. Ritggks, for the
plaintiff, contended, 1. That the evidence of
the declarations of Ambrose Benson, in hostil-
ity to the title of the lessors, was inadmissible;
and that the testimony of James Morehouse
ought not to have been received.
Though in favor of the possession, all things
will be presumed to be regularly transacted ;
yet when, as in this case, there is evidence of
an intention to the contrary, there can be no
ground for the presumption. (Burr. Rep.,
1073.)
This was an advancement to Keziah, the
daughter, not a trust for the father. Where
a father purchases land in the name of his son,
this is considered as an advancement for the
JOHNS. REP., 11.
1814
JACKSON, K\ DEM., v. MATODORF.
95
son, and not a trust ; and it is laid down to be
clearly so, where the child in whose name the
deed is taken has not already been advanced.
<1 Ch. Cases, 37, 296 ; 2 Oh. Cas., 281; 2
Freera. Rep.. 252 ; 1 P. Wins., 608; 2 Vern.,
19.) It may be said that a resulting trust may
be proved by parol. So also may it be re-
butted by parol ; and the evidence clearly
shows that Ambrose Benson intended this land
as an advancement to his daughter. [Here the
counsel discussed the facts in the cat*.]
Mr. Emntt, contra, contended that there had
not been such a delivery of the deed under
which the lessors claim, as would transfer a
title. But admitting even that there was a de-
livery of the deed, so as to make it a valid
conveyance, yet, as the consideration money
was paid by Ambose Benson, there was a re-
sulting trust to him. The deed not only states
the fact, but all the witnesses prove that
Ambrose Benson paid the money for the land.
This being a resulting trust, it is'not within the
statute of frauds, and parol evidence is admis-
sible to show the trust. (1 Johns. Cas., 153 ;
3 Johns., 216-221.)
Again, here was a uninterrupted possession
for near 40 years, by Ambrose Benson, the
OO*] supposed ce«tui qut trust. After such *a
lapse of time, the law will presume a convey-
ance to him from the trustee.
It is said that this was an advancement to
Keziah Benson, and not a trust for her father,
for the proof of a trust is rebutted by the
plaintiff's evidence. But the facts in the case
do not support the position that this was an
advancement.
THOMPSON, Ch. J., delivered the opinion of
the court :
It is a well-settled rule of law, that if A buys
land, and takes a conveyance in the name of
B, it is a resulting trust for him who paid the
purchase money, raised by implication of law,
and, therefore, not within the statute of frauds.
The defendants in this case claim under
Ambrose Benson, who, it is admitted, paid the
consideration money ; but the deed of the 9th
of June, 1766, was taken in the name of his
daughter Keziah, under whom the lessor of the
plaintiff claims, by deed, dated November 3,
It is a question which has often been agitated
in chancery, whether, when a parent purchases
land in the name of his child, it shall be deemed
a trust for the father or an advancement for
the child. When a child is under age, it has
generally been considered an advancement ;
though Lord Hardwicke, in the case of Stile-
man v. A*/<t<»ri,. 2 Atk., 479, said he thought
the cases on that subject had gone full far
enough. But no case will be found where a
purchase so made has been held an advance-
ment, when it expressly appears to have been
the intention of the parent that it should not
be considered as such, as it does in the case
oefore us. It is in proof, derived from the
confessions of the lessor himself, who was the
grantor, that the deed was given to the
daughter for the purpose of avoiding some ex-
pected difficulties, and with an understanding
that, when Ambrose Benson should get rid of
those difficulties, the deed was to be taken up,
and another given to Ambrose himself. This,
JOHNS. REP., 11.
doubtless, was the reason why the deed re-
mained in the possession, or under the control
of Ambrose, until fraudulently taken away by
Keziah and others. No objection was made to
this evidence, nor, indeed, could any be made:
for it not only appears on the face of the deed
to be a resulting trust, but such a trust, not
j being within the statute of frauds, may be
proved by parol evidence. This was consid-
ered as a settled rule of law in the cases of
* Jackson v. Steenbcrgh, 1 Johns. Cases, [*O7
153, and Foote v. Colvin, 8 Johns., 216.
If this is not to be considered an advance-
ment to the daughter, as we think it clearly
cannot, then there was no trust completed by
a delivery of the deed to the trustee. Ambrose
Benson being the person beneficially interested,
and retaining the deed in his own possession,
no_interest vested in the trustee. Had the deed
been intended as an advancement, possibly the
i delivery to Ambrose might have been consid-
ered as accruing to the benefit of his daughter.
' And in this view of the case, the title of Am-
brose was complete by length of possession.
But admitting a delivery of the deed, the
interest created thereby was a resulting trust
for Ambrose Benson, who paid the considera-
tion money ; and if the legal estate was, by
that deed, vested in his daughter Keziah, the
lessor of the plaintiff cannot avail himself of his
purchase from her and her husband, in the year
1786, since he purchased with full notice of
the trust, and was, therefore, guilty of fraud,
although he might have paid a valuable con-
sideration. (1 Cruise's Dig., 485 : Fonb. Eq..
bk. 2, ch. 6, sec. 2. and note.) If that deed
was not absolutely void, yet the lessor of the
plaintiff would be considered a trustee for
Ambrose Benson, who was the real owner ; and,
if necessary, the lapse of time is amply suffi-
cient to warrant the presumption of an execu-
tion of the trust, by a release to Ambrose, the
cestui qne trust. Besides, it appears from the
confessions of the lessor, that, upon discover-
ing that the deed of 1766, given by him to
Keziah, had been surreptitiously taken away,
he gave another deed to Ambrose Benson him-
self, which deed, if it contained a warranty,
would pass any title subsequently acquired by
the grantor. (Co. Litt., 265 a.)
There is another and conclusive objection to
the plaintiff's right to recover in .this action,
which is the adverse possession of Ambrose
Benson, at the time the deed was given by
Morehouse and his wife, in 1786, to the lessor
of the plaintiff.1 It is unnecessary to recapit-
ulate the testimony on this point. An exami-
nation of it will abundantly show that Ambrose
Benson, from the year 17^6 until the time of
his death, which was about ten or twelve years
ago, continued in possession of the premises in
•question, using and improving them as [M)8
his own, and in hostility to any right or claim
that might be set up under the deed to Keziah.
The circumstances stated by some of the wit-
nesses, that he sometimes" called the farm
Morehouse's and Keziah's, is entitled to but
little weight, in opposition to the mass of evi-
dence showing that he held it in defiance of
that title. In whatever point of view, there-
l.-Wickham v. Conklin, 8 Johns.. 230: Wbltaker
v. Cone, 2 Johns. Cases, 58 ; Woodworth v. Junes.
2 Johns. Cases, tl ; 2 Cairn*. 147.
98
SUPREME COURT, STATE OP NEW YORK.
1814
fore, this case is considered, there must be
judgment for the defendants.
Judgment for the defendants. '
Explained— i8 N. Y., 223 ; 16 Peters, 57.
Cited in— 7 Wend., 379 ; 19 Wend., 415 ; 2 Denio, 25;
5 Denio, 233 ; 4 Paige, 582 ; 3 Edw., 282 ; 9 Hun, 282 ;
20 Barb., 11 ; 33 Barb., 497: 16' Peters, 57 ; 3 Mason,
363; 2 Wood.. & M.. 201.
THE PRESIDENT, DIRECTORS AND
COMPANY OF THE HIGHLAND TURN-
PIKE «.
M'KEAN.
1. Pleading and Practice — Corporations — Action
on Stock Subscription — Averment of Facts
Essential to Validity, Under Statute, Neces-
sary. 2. Subscription by Officer.
Where an Act incorporating a Turnpike Company
(sess, 29, ch. 119, sec. 2) required every subscriber to
the stock to pay, at the time of subscribing', to one
of the commisioners, the sum of 85 ; it was
held, in an action brought by the corporation
against a subscriber to recover the amount of the
snares subscribed by him, that the declaration must
aver the payment of the 85 on each share sub-
scribed : and for want of such necessary averment,
judgment was arrested. But where it was averred
that the defendant was a commissioner under the
Act, and held the subscription book, and while the
book was open and in his hands, subscribed 20 shares,
this was held to be equivalent to an averment of
the payment of the $5 on each share. Where there
are two counts in the declaration, one good and the
other bad, and the verdict is general, judgment will
be arrested, unless the verdict can be so amended
by the judge's notes as to apply to the good count
only.
Citations— 1 Cai. Cas., 86 ; 9 Johns., 218.
THIS was an action on the case. The decla-
ration contained two counts. The first
count stated that by an Act, dated the 2d April,
1806, William Edgar and others, named in the
Act, were incorporated, &c. That the defend-
ant, with other persons named in the Act, were
appointed .commissioners to perform certain
duties, &c., and the commissioners were di-
rected, on or before the 1st of July then next,
to procure and open thirteen books, for sub-
scription of shares of the stock of the Company,
one of which was kept and opened by each
commissioner. That the defendant and the
other persons, elected to act as commissioners,
opened the books, &c., on the 7th of May,
1806, according to the directions of the Act ;
that after the book in the hands of the defend-
ant was opened, and while it was in his hands,
as one of the commissioners, he subscribed in
the book, opposite to his name, twenty shares,
under the following words written in the
book : "We, whose names are hereunto sub-
scribed, do, for ourselves and our legal repre
sentatives, promise to pay to the President, Di-
rectors and Company of the Highland Turn-
pike the sum of $25 for every share of
stock in the said Company, set opposite to
our respective names, in such mannerand pro-
portions, and at such times and places as shall
99*] *be determined by the said President, Di-
rectors and Company ;" by reason whereof , and
by force of the Act, the defendant became a
stockholder, and entitled to twenty shares of
such stock, and became liable to pay the plaint-
iffs $500, &c.
I.— Vide Jackson v. Bradford, 4 Wendell, 618.
76
The plaintiffs averred the subscription of
the number of shares required by the Act, the
advertisement and notice to the subscribers
to meet and choose directors, the meeting
of the subscribers, &c., and the election of
thirteen, directors, who chose one of their num-
ber president. That the President and Directors
commenced their operations on the road, and
having from time to time expended large sums
of money, they, on the 30th of May, 1809, de-
termined that the persons who had subscribed
to hold stock in the Company, and who resided
in Dutchess County, &c., should pay the whole
of the money due on their shares respectively
to certain persons named, on or before the 24th
of June ; that the persons so named were, on
the 30th of May, and all the time until the 24th
of June, at, &c., ready to receive the payments,
&c., and the defendant resided in Dutchess
County, and notice was given to him of the
call and determination of the Directors afore-
said.
The second count stated that the defendant
applied to the plaintiffs, and offered that in
case they would permit him to become a stock-
holder, by subscribing, &c., to take twenty
shares, and to pay $25 for each share, &c. That
the book was opened, and the plaintiffs consent-
ed to let the defendant subscribe.and that he,ac-
cordingly, subscribed for twenty shares, and
thereby, &c., as in the first count ; but without
mentioning that the defendant was a commis-
sioner, &c.
The Act of Incorporation (sess. 29, ch. 119,
sec. 2) declares, that " every subscriber shall,
at the time of subscribing, pay unto either of
the commissioners $5 for each share so sub-
scribed."
The defendant pleaded the general issue.
After a trial of the cause, and a verdict for
the plaintiffs, the defendant moved in arrest of
judgment, and also for a new trial, and the
court, being of opinion that a new trial ought
to be granted, gave no opinion on the motion
in arrest of judgment. (See 10 Johns., 154,
S. C.) A verdict having been again found
for the plaintiffs, the defendant moved in ar-
rest of judgment, 1. Because the declaration
does not allege that the defendant paid the five
dollars on each share, at the time of subscrib-
ing, in conformity *to the Act of In- [*1OO
corporation. 2. Because it did not appear by
the declaration that the parties were mutually
bound, or that the plaintiffs were liable to the
defendant for the stock, or that the defendant
acquired any rights by the subscription. 3.
That the promises stated in the declaration
were void for want of a consideration.
Mr. J. Tallmadge for the defendant.
Mr. J. Emott, contra.
Per Curiam. The ground urged by the de-
fendant's counsel, in support of the motion in
arrest of judgment, is the want of an aver-
ment in the declaration that the defendant, at
the time of subscribing, paid to the com-
missioner the sum of $5 on each share
subscribed by him. The necessity of such an
averment appears to be supported by the de-
cision of the Court of Errors in the case of
Jenkins \. The Union Turnpike. (1 Caines'
Cases in Error, 86.) It is a little difficult to"
ascertain the point upon which the Court of
JOHNS. REP., 11.
1814
E.V'HS OF LIVINGSTON v. TREMPEK ET AL.
100
Errors grounded their decision. One of the
questions before them was the one raised on
the argument of the present motion ; and this
court, in the case of The Gothen Turnpike
Co. v. Hurtin, 9 Johns.. 218, seemed to sup-
pose that to have been the point upon which !
the Court of Errors intended to decide ; and, j
according to that decision, an averment of the
payment of $5 on each share at the time of
subscribing was necessary.
The first count in this declaration can, how-
ever, be supported without infringing upon
the doctrine of the Court of Errors. It con-
tains averments of facts which, in judgment of
law, must be deemed equivalent to an aver-
ment of a payment of the money. The de-
fendant was a commissioner to receive sub-
scriptions, and he subscribed while the book
was in his own hands. This was, no doubt, a
valid subscription, so as to entitle the defend-
ant to the stock subscribed, and it would be a
useless ceremony for him to pay himself the
money required to be advanced on the sub-
scription.
The second count, however, contains noth-
ing equivalent to such an averment, or that
can be considered as dispensing with a specific
averment of the payment of the five dollars on
each share ; and the verdict being general, the
1O1*] judgment must be *arrested, unless
the verdict can be amended by the judge's
notes, so as to apply to the first count only.
Judgment arrested.1
8. C., 10 Johns., 154.
Incorporated Companies— Action on sidxcription
to capital flock. Questioned— 16 N. Y., 458, n.
Cited in— 21 Wend., 230, 275 ; 3 Denio, 354 ; 3 Sand.
cii. .»:•«; 2 N. Y., 343; 25 Hun, 95; 10 Barb., 271 ; 17
Barb., 573 ; 28 Uarb., 263 ; 58 How. Pr., 274 ; 61 How.
Pr.. 4«1.
General verdict where counte good ami bad, erro-
neowi. Disapproved— 7 How. (U. 8.), 7-J2.
Cited in-9 Cow., 153 ; 3 Abb. Pr., 429 : 2 McLean,
an.
THE EXECUTORS OF LIVINGSTON
t>.
TREMPER ET AL., Heirs and Devisees of J.
W. TKEMPER, Deceased.
1. Pleading and Practice — Joint Liability Not
Proven — Nonsuit. 2. Assignee of Ileir'n
Share is not an Heir or Devi**.
In an action of debt on a bond executed by T..
deceased, brought against several defendant**,
rhuririiitf them generally as heirs and devisees of
T., the defendants pleaded riens per descent, on
which issue was joined ; and at the trial it appeared
that one of the defendants was neither an heir nor
devisee of T. It was held that l>eing an action ex
contract*, the plaintiff was bound to show a Joint
liability of ail the defendants ; and not having done
so, he was nonsuited.
Citations-2 Saund., 7, n. 4; 1 Chitty's PI., 31,
note H.
THIS was an action of debt on a bond for
£200 ($500), dated 14th Julv, 1794, exe-
cuted by J. \V. Tremper, deceased, in his life-
time, to Margaret Livingston, the testatrix, in
her lifetime. The declaration contained but
one count, charging the defendants as heirs
and devisees generally, without showing how
1.— Norris v. Durham, 9 Cow. Rep., 151.
JOHNS. REP., 11.
they were heirs and devisees. The defend-
ants pleaded riens per descent, &c., on which
the plaintiffs joined issue. The cause was
tried at the Ulster Circuit, in September, 1818,
when a verdict was taken for the plaintiffs, by
consent, subject to the opinion of the court on
the following case :
J. W. Tremper, the obligor, in October,
1794, died seised of a large real estate, leaving,
as his heirs and representatives, William
Tremper ; Catharine, the wife of Conrad E.
Elmendorf ; John Tremper; Elizabeth, the wife
of S. H. Phillips ; and Jacob I. Tremper, all
of whom were defendants ; and Ann, who
married John Story, the other defendant, by
whom she had a son named John. Ann after-
wards died ; and after her death her son also
died, before the commencement of this suit.
Ann, before her intermarriage with John
Story, had married John M'Gregor, by whom
she had a son named John, now living ; the
father having died soon after he was born,
and after the death of J. W. Tremper. John
Story, the husband of Ann, and one of the de-
fendants, before and after the death of Ann
and her son, and before and since the com-
mencement of this suit, possessed and occu-
pied a part of the real estate of which the said
John W. Tremper died seised, and received
the rents, &c., for the same, by virtue of a
conveyance thereof, made by the" said Ann, in
her lifetime, during her intermarriage with
the defendant John Story, to Alexander Story,
his brother, who, afterwards, before the com-
mencement of this suit, conveyed the same to
the said John Story ; but the plaintiffs were
ignorant of such conveyance until the trial of
the cause.
*The defendants insisted that the [*1O2
plaintiffs ought to be nonsuited, because they
had not proved their allegation that the de-
fendant John Story was an heir or devisee of
J. W. Tremper.
The cause was submitted to the court with-
out argument.
Per Curiam. The declaration is against the
defendants as heirs and devisees of Tremper
generally, and the defendants have pleaded
riens per descent. With respect to all the de-
fendants, except John Story, it was proved
that they were heirs or devisees, but he neither
inherited nor took anything by devise from
Tremper. His wife was a daughter of Trem-
per, but had, together with her husband, con-
veyed her proportion of his real estate to a
third person, who afterwards conveyed it back
to Story. It cannot be pretended that Story is
either an heir or devisee of Tremper, and he
cannot be charged as such. (2 Saund., 7, note
4.) The declaration is in the debet and detinet.
This action is, therefore, to be classed among
those arising ex contractu ; and, by the settled
principles 01 law, the plaintiffs were bound to
prove a joint liability on the part of all the de-
fendants ; and not having done so, they ought
to have been nonsuited. (1 Chitty's PL, 51,
note n.)
Judgment of nonsuit.*
Cited in— 42 Mich., 460.
1.— Jenk's case, Cro. Car., 151 ; 1 East, 52 ; 1 Lev..
«3; 1 Eep. Rep., 363; Bull. X. P.. 129: 1 H. Bl.,37; 2
Chitty, fn, 273.
77
103
SUPREME COURT, STATE OF NEW YORK.
1813
1O3*] *DIBLEE v. BEST ET AL.
1. Arbitrators — Misrecital does not Vitiate
Award. 2. Pleading on Award or Arbitra-
tion Bond.
Where a submission to arbitrators was special,
of one matter only, and the award recited a general
submission of all matters. &c., referring- to the ar-
bitration bond, "as by the said bond may more
fully appear." it was held that the recital might be
rejected as Immaterial; and the award, being- of a
sum of moncv to be paid in full of the differences
expressed in the condition of the bond, was good.
A misrecital does not vitiate an award. When the
action is on the award, the plaintiff is not bound to
set forth more of the award than is necessary to
support his action ; but where the action is on the
arbitration bond, he must, in his replication to the
plea of no award, set out the whole award, though
it is not necessary, in that case, to set it out in Tteec
verba ; but such parts as are void or immaterial
may be omitted. As, where the plaintiff, in his rep-
lication, omitted the recital in the award, this was
held not to be such a variance as would vitiate the
plea, the recital being immaterial and void.
Citations— 1 Chit. PI., 555: 1 Salk.,72; 1 Ld. Raym.,
715 ; 12 Mod., 534 ; 2 Mod., 169.
THIS was an action of debt on an arbitration
bond. The defendants prayed oyer of
the bond, the condition of which recited that
whereas certain disputes and controversies had
arisen between the parties relative to the hire,
use arid treatment of a certain horse called the
Highlander, as well as in other respects, in
and about the said horse, as, under a certain
agreement, dated the 22d of March, 1812, be-
tween the said parties, &c., and it having been
mutually agreed to submit all and singular the
matters in dispute between the parties, or
either of them, of and concerning the said
horse, whether, under the said agreement, or
otherwise, to A.., B., &c., the condition was,
if the defendants should abide, &c., the award
of the arbitrators, or any two of them, of and
concerning the premises aforesaid, and the
reasonable costs of the arbitration, so that,
£c., then, &c. The defendants pleaded no
award.
The plaintiff replied, stating the submission,
&c., and averring that two of the arbitrators
made and published their award in writing,
&c., and did award and order that the defend-
ants should pay to the plaintiff the sum of
$1,000, and the further sum of $54.31, costs of
the arbitration, &c., and which was to be in
full of all differences expressed in the condi-
tion of the said bond, and averring that the
defendants did not pay, &c., wherefore, he
prayed judgment, &c.
The defendants craved oyer of the award
which was set forth, reciting that divers dis-
putes, variances, &c., have been and were de-
pending between the parties, for the determ-
ining whereof the parties had submitted them-
selves, and became bound each to the other,
by their several obligations, dated the 17th of
August, 1812. &c., with a condition thereun-
der written, in all things well and truly to
stand to, abide, &c., the award of, &c., or any
of them, &c., indifferently chosen, &c., to ar-
bitrate, &c., of and concerning all and all
manner of actions, cause and causes of ac-
tions.promises, accounts, reckonings, sums of
money, judgments, executions, quarrels, con-
troversies, trespasses, damages and demands
whatsover, at any time heretofore had, &c., or
78
depending *by and between the said [*1O4
parties, so as the award, &c., "as by the said
obligations and conditions doth more fully ap-
pear ; that the arbitrators, having taken upon
themselves the burden of the award, &c., and
having heard the parties, &c., at large, and the
witnesses and evidence concerning the prem-
ises, made their award, &c., of and concerning
the premises, &c., awarding that the defend-
dants pay to the plaintiff the sum of $1,000,
and $54.31 for the costs of arbitration, on
or before the 1st of October then next, and
" that the same be considered in full of and
concerning all differences expressed in the
above-named bond." The defendants then
demurred specially to the replication, and
assigned as causes of demurrer, that there
was a manifest variance between the submis-
sion set forth in the condition of the bond
declared upon and set forth in the plea, and
the submission set forth in the award, &c.,
the submission in the bond, set forth in the
declaration and plea being special, of and
concerning one matter only, and the submis-
sion set forth in the award of the arbitra-
tors, referred to in the replication, being gen-
eral of all matters whatsoever in difference
between the parties. The plaintiff joined in
demurrer. *
Mr. E. Williams, in support of the demur-
rer. The replication does not set forth the
whole of the award as it ought to have done.
Where an action of debt is brought on the
award itself, the plaintiff may set forth as
much of the award as may be necessary to
maintain the action ; but when the action is on
the arbitration bond, and the defendant pleads
that no award was made, the plaintiff, in his
replication must set forth the whole of the
award, and assign his breaches. (Saund., 62
b, n. 8 ; 1 Leon.. 72 ; 1 Sid., 161 ; 1 Salk., 72 ;
IBurr., 281; 1 Chit. PI., 555; 2 Chit. PI.,
618, 619.)
The variance in this case, between the sub-
mission contained in the bond and that recited
in the award, is palpable. The first is of a
single specific point of controversy. The other
is of all manner of controversies which could
possibly exist between the parties.
Messrs. Bloom and J. Tallmadge, contra.
There is no variance between the award itself
and the bond. There is a misrecital only,
which does not vitiate the award. (2 Mod.,
169.) The recital was not necessary, and the
award would have been sufficient without it.
(Kyd on Awards, 230, 232, 235.) If the award
is in all other respects good, and within the
Submission, it ought not to be deemed [*1O5
bad, merely because the arbitrators have re-
cited greater power than they actually pos-
sessed. Where there is a submission of all
matters in controversy, an award of a single
matter only is good ; for it will not be intended
that there were any other matters in difference,
unless they be shown. (8 East, 445 ; 1 Burr..
277.) Awards are to be construed liberally ;
if they are certain and final, it is sufficient.
The plaintiff in his replication did not make
a profert in curia of the award ; the defend-
ants ought not, therefore, to have craved oyer.
Oyer is demandable only where the deed is
necessarily pleaded with a profert. (1 Chit.
PI., 414 ; 1 Tidd's Prac., 526.) If the plaint-
JOHNS. REP., 11.
1814
KEMP v. COUOHTHY ET AL.
105
iff sets forth an award with a profert, the de-
fendant nmy crave oyer, and demur for the
variance ; but if the award is set forth without
u profert, he must plead " no such award,"
on which issue is joined (Kyd on Awards, 289);
and if, on the trial of the issue, there is a ma-
terial variance between the award set forth
and the one given in evidence, the defendant
will be entitled to a verdict.
Mr. Williams, in reply. The award recites
that all matters of controversy were sub-
mitted, and the arbitrators say they took upon
themselves the charge of that submission ;
and they go on and award a sum of inoney in
full of all those matters so submitted. If the
recital is struck out, it will not appear that
the arbitrators had any power.
The defendants have a right, though a
profert was not necessary, to crave oyer and
demur. Besides, the plaintiff did not object
to the demand of oyer. but regularly joined
in demurrer. He cannot, therefore, object to
any informality in this respect.
THOMPSON, C h. J., delivered ,the opinion of
the court :
The special demurrer alleges for cause, a
variance between the submission as contained
in the bond, and the submission as set out in
the award. According to the condition of the
bond, the submission was special, of one mat-
ter only in dispute between the parties. But
the award contains a recital of a general sub-
mission of all matters, concluding, however,
with a reference to the bond, for more particu-
lar information, as to the matter submitted.
The question arising on these pleadings is,
whether this is such a variance as to vitiate
the replication.
The rule of pleading, as to setting out the
award, is, no doubt, different when the action
1OO*J is upon the arbitration bond. *and
when ft is upon the award itself. In the lat-
ter case the plaintiff is not bound to set forth
more of the award than is necessary to sup-
port his particular claim. In the former, he
must set out, in his replication, the whole
award. This appears to be the general rule
laid down by elementary writers. (1 Chit.
PI., 555.) But, by a recurrence to the cases
decided, it will be seen that it is not required
that the award should be set out /// //</<• verba.
If any part is void and immaterial, it may be
omitted. This distinction is supported by the
case of Foreland v. Marygold, 1 Salk., 72 ; S.
C., 1 Ld. Raym., 715; S. C., 12 Mod., 534,
which is a leading case on this subject.
In the case before us, the only variance is
an omission in the replication of the recital
contained in the award. That recital is not
only immaterial, but void, as being foreign
from the submission, and not warranted by it,
and containing matter upon which no award
was pretended to be made. In the case of
Adams v. Adams, 2 Mod., 169, it is expressly
laid down that a misrecital in an award will
not vitiate it. There is no objection, therefore,
to the replication in matter of form.
On the merits, the plaintiff is clearly entitled
to recover. The award does not extend to
matters not contained in the submission.
Though the recital is broader than the condi-
tion of the bond, and purports to extend the
JOHNS. RKP., 11.
powers of the arbitrators to matters not con-
tained in the submission, yet it expressly
refers to the bond for the particulars of the
matter submitted ; and being mere recital only,
it may be rejected as immaterial. The award
purports to be upon the matter contained in
the condition of the bond, and no further ;
for it directs the payment of a sum of money
by the defendants to the plaintiff, which • 'shall
be considered in full of and concerning all
differences in the condition expressed in the
bond. Judgment must be entered for the
plaintiff.
Judgment for tht plaintiff.
*KEMP AND BILLINGS [MOT
COUGHTRY ET AL.
Common Carriers — Owners of Vessels are Liable
as such — Loss by Theft.
The owners of vessels employed in the transpor-
tation of property, are considered us common car-
riers, and liable to all the duties and n>spoii8ibilitics
attached to that character; being liable for the safe
delivery of all goods intrusted to them or their
agents, or servants, unless the loss is occasioned by
inevitable accident, or a public enemy.
Where a master of a vessel, employed in the trans-
portation of goods between the Cities of Albany and
New Y'ork, received on board a quantity of Hour to
be carried to New York, and there sold, in the usual
course of such business, for the ordinary freight ;
and the flour was sold by the master at New York
for cash, and while the vessel was lying at the dock,
the cabin was broken open, and the money stolen
out of the master's trunk, while he and the crew
were absent ; it was held that the owners of the ves-
sel were answerable for the money to the shippeis
of the flour, though no commissions, or a distinct
compensation, beyond the freight, was allowed for
the sale of the goods and bringing back the money,
such being the duty of the master, in the usual
course of the employment, where no special instruc-
tions were given.
Citations— tf Johns., 160; 10 Johns., 1 ; Cart h., 485.
TWO of the defendants, Sherman and Yale,
were owners of a sloop, called the Wash-
ington, employed in carrying" and transporting
goods, &c., between the" Cities of New York
and Albany ; and in the spring of the year
1818,they agreed to sell the one third part of the
vessel to Coughtry, the other defendant, who
was the master, and for a price stipulated ; the
conveyance of the one third to be executed on
the payment of the money. In the meantime,
Coughtry was to take charge of the vessel, as
master, and use and employ her for the bene-
fit of the other defendants, who were to pay
him wages for his services. No payment was
made by Coughtry in pursuance of that agree-
ment. In June, 1818, the plaintiffs delivered
on board of the vessel, at Coeymans, near Al-
bany, 156 barrels of flour ana a quantity of
shorts, to be carried to the City of New \ ork,
and there sold, in the usual course of such car-
rying business, and for which they were to pay
the ordinary freight in such cases. Coughtry,
as master of the said sloop, carried the flour
and shorts to New York, and there sold them
for $1,081.19 in cash, part of which sum,
NOTE.— Jf astern and owners of vasete art common
carrfen*. Fora full discussion, see Elliot v. Kossell,
10 Johns., 1, note.
107
SUPREME COURT, STATE OF NEW YORK
1814
3, he paid to the plaintiffs; but the resi-
due, being $895, 19, he alleged was lost in New
York.
The witnesses, as to the loss of the money,
testified that while the vessel lay at the dock in
the East River, Coughtry, the master, and all
his crew, about sunset, went in the boat across
the river, for the purpose of bathing, having
requested the master of a sloop lying next to the
Washington to permit one of his men to look
after the vessel in their absence. The cabin
door was locked when the master and his crew
left the vessel ; on their return in the evening,
after being absent near an hour, they found
the man belonging to the other vessel asleep.
Coughtry went into the cabin, the door of
which was open, but soon returned on deck
and said he was robbed. The witness then
went down into the cabin, and found a trunk
1O8*] broken open, and Coughtry *declared
he was robbed of $1,200 and some clothes,
but afterwards recollected that he had lent
$150 of that sum. Search was made, but noth-
ing could be discovered of the money or the
thief. The cabin door was secured with iron
fastenings, which appeared to have been forced
off.
Several merchants, masters and owners of
vessels at Albany, concerned in the business of
shipping and transporting goods between that
place and the City of New York, were exam-
ined as witnesses. They testified that it was
the usual course for the owner of the goods to
make out a bill of the articles to be sent,
which was delivered, with orders, or direc-
tions, to the master. These orders, which
were either verbal or written, were sometimes
to sell for cash or on credit, and sometimes to
deliver to certain persons. The price of the
freight was not increased by the circumstance
of the master being ordered to sell the goods
and bring back the money to the owner ; nor
was any commission charged by the master,
nor did any profit accrue to the owner, • on ac-
count of such selling for cash, and returning
the money. Sometimes the goods were de-
livered to be disposed of at the discretion of
the master, but no additional compensation
was allowed beyond the freight ; and accord-
ing to the course of the business, it was the
duty of the master to account to the owners of
the goods, and not to the owners of the ves-
sel, for the avails or proceeds of the goods
shipped.
It appears that the plaintiffs had delivered a
memorandum in writing to the master of the
number of barrels of flour shipped, but with-
out any written directions.
On this case, the question raised for the con-
sideration of the court was, whether Sherman
and Yale were liable to the plaintiffs for the
money so received for the flour, and lost,
•either by themselves, or jointly with Coughtry.
Mr. A. Van Vechten, for the plaintiffs, re-
lied on the case of Elliot & Stewart v. Rossett &
Lewis, 10 Johns., 1.
Mr. Foot, contra.
Per Curiam. Since the decision of this
court, in the cases of Colt v. M'Mechen, 6
Johns., 160, and Elliot & Stewart v. Rossett &
Lewis, 10 Johns., 1, it is no longer to be
questioned that the owners of vessels employed
80
in the transportation *of property [*1OO
are to be considered common carriers, and lia-
ble to all the duties and responsibilities attach-
ed to that character. They are responsible for
the safe delivery of all goods intrusted to them,
or their agents, or servants, unless the loss is
occasioned by the act of God, or a public ene-
my. The general principles being well settled,
the only question is, whether they are appli-
cable to the present case. Had the property
which was put on board this vessel for trans-
portation been stolen, before it was converted
into money, there could be no doubt the de-
fendantg would have been responsible. But
the character of common carrier does not cease
upon the sale of the property. According to
the testimony in this case, the sale of the goods
and return of the proceeds to the owner is a
part of the duty attached to the employment,
where no special instructions are given. The
contract between the parties is entire, and is
not fulfilled on the part of the carrier until he
has complied with his orders, or has account-
ed with the owner for the proceeds, or brought
himself within one of the accepted cases. The
sale in this case was actually made, and the
money received ; and had it been invested in
other property, to be transported from New
York to Albany, there would be no question
but the character of common carrier would
have continued. It can make no difference
whether the return cargo is in money or goods.
A person may be a common carrier of money
as well as of other property. (Garth., 485.)
Although no commission or distinct compen-
sation was to be received upon the money, yet,
according to the evidence, it appears to be a
part of the duty attached to the employment,
and in the usual and ordinary course of the
business, to bring back the money, when the
cargo is sold for cash. The freight of the
cargo is the compensation for the whole ; it is
one entire concern. And the suit may be
brought against the owners of the vessel. The
master is considered their agent or servant, and
they are responsible for the faithful discharge
of his trust. The plaintiffs are, therefore, en-
titled to judgment for the sum of $895,19.
Judgment for tJie plaintiffs.
Cited in— 2 Wend., 339 ; 13 Wend., 61, 628; 19 Wend.,
238; 21 Wend., 193; Hill & D., 165; 42 Barb., 250; 44
Barb., 666; 2 Ware, 165.
*STORM AIO> BEEKMAN [* 1 1 0
WOODS.
Practice — Goods Seized on Execution left in Own-
er's Possession — Fraudulent and Void as
against Subsequent Execution — Sheriff's Lia-
bility.
If a creditor cause the goods of his debtor to be
seized by a. fieri facias, and suffer them afterwards
to remain in the possession of the debtor, the ex-
ecution will be deemed fraudulent and void, as
against a subsequent execution. A sheriff seized
goods on an execution in favor of A, and by his
direction delayed a sale, and left them in the pos-
NOTE. — Possession by owner of goods under ezecti-
tton. Rew v. Barber, 3 Cow., 272, note.
JOHNS. REP., 11.
1814
STORM v. WOODS.
110
session of the debtor more than a year, when a
second execution. In favor of B, cowing to his
hands, the sin-riff uold the Roods on both executions,
but refused to pay the proceeds to A, and returned
nulla Ixnut to the execution. In an action for a
fid*- return, brought by A against the sheriff, it
was held that the first execution was dormant, and
must be postponed to the second, and that no ao-
tion would lie against the sheriff for a false return.
CiUUion-2 Johns., 422; 4 Dull.. 167; 4 Dull., 168,
note 1.
'PHIS was an action on the case against the
1 defendant, as late sheriff of Washington
County, for a false return on a te«t. ft. fa.
.against Peter Hilton, at the suit of tly- plaint-
iffs
The declaration contained two counts : the
first charged a false return of nulla bona, after
the defendant had seized and levied on -uili
•cient property of Hilton to satisfy the execu-
tion. The second count, averring that Hilton
had sufficient goods, &c., within the bailiwick
of the defendant, on which he might and
ought to have levied the amount indorsed on
the execution, but did not, &c., though he had
notice, &c., alleged a false return of nulla
bona, &c.
The cause was tried at the Albany Circuit,
in October, 1813, before Mr. Justice Thomp-
son. The judgment at the suit of the plaint-
iff against Hilton, for $591.29, and $25.75
•costs, was proved ; it was docketed on the
24th of November, 1806. A tent. fi. fa. was
regularly issued, directed to the defendant, as
sheriff, tested 14th of May, 1807, returnable
the 1st Monday of August next thereafter, on
which was indorsed a direction to the sheriff
to levy $295.64 of debt, and the costs, with in-
terest on the debt from the 26th of July, 1804,
besides his fees. And it was proved that the
amount was justly due the plaintiffs. The ex-
ecution was delivered to the defendant on the
5th of June, 1807, and was returned, with
nulla bona thereon indorsed by the defendant,
in May Term, 1810.
A witness for the plaintiff testified, that after
the execution was delivered to the deputy,
he frequently told the witness that he had lev-
led the execution on the goods of Hilton.
In the autumn of 1808 the deputy was di-
rected to sell the goods under the execution,
and they were advertised for sale on the 16th
of November, 1810, under the executions, one
of them, as above mentioned, the other issued
subsequently, in favor of John T. Close. The
goods, &c., of Hilton sold for $408.24.
It appeared that in September, 1807, the
plaintiffs assigned the judgment against Hilton
to A. and D. J^ane, who gave directions to the
1 1 1*1 "deputy to sell on the execution. The
goods levied upon and sold consisted of house-
hold furniture, and a few dry goods and farm-
ing utensils. A. Lane, who was a witness,
having assigned his interest to D. Lane, testi-
fied that I lilton had the goods in his possession
in 1807 and 1808, and kept his store open,
doing business as usual, and had a sawmill,
•and some other property ; that after the judg-
ment was assigned to A. and D. Lane, they
sold some goods to Hilton, who never paid
•anything afterwards. The witness thought
the circumstances of Hilton doubtful in 1807,
*nd he had not secured A. and D. Lane for
their claims ; and they, when they took the
Assignment of the judgment, knew that Close
JOHNS. RKP., 11. N. Y. R. 5.
was about to obtain a judgment against Hilton.
The attorney on record for the plaintiffs wrote
a letter to the deputy -sheriff, dated the 10th of
June, 1807, in which he requested him to de-
fer the sale of Hilton's property on the execu
tion sent him, which letter was written at the
request of A. and D. Lane, and forwarded by
them to the deputy-sheriff, the 1st of June,
1807 ; and the attorney testified that he never
countermanded the directions indorsed, nor
gave any other directions, except that con-
tained in his letter of the 10th of June, and
when the execution was issued he gave no di-
rections to the deputy-sheriff not to levy the
execution, or to indulge Hilton. The deputy
afterwards told the attorney that he had levied
the execution, but the attorney made no in
quiry as to the inodc in which it had been done,
nor did he give the deputy any instructions as
to the manner of levying the execution.
The deputy-sheriff, having been released
and sworn as "a witness for the defendant, tes-
tified that he received the execution of the
plaintiffs against Hilton in June, 1807, about
eight or ten days before the attorney's letter of
the 10th of June ; that he made the seizure
before the return day of the execution, and at
that time there was no other execution against
Hilton in the sheriff's hands. The witness re-
ceived no instructions as to the mode of pro-
ceeding. The witness levied on Hilton's house-
hold furniture and farming utensils, and a few
goods he had in his store ; but took no inven-
tory or receipt for them, as he thought Hilton
safe, and he should have no difficulty, having
received the attorney's letter ; and Hilton said
the business would be soon settled. The ex-
ecution remained in this situation until May,
1808, when another execution in favor of Close
against Hilton was received by the sheriff ;
after which the *deputy took an inven- [* 1 1 2
tory of the goods, «fcc., and advertised them
for sale on the two executions. A. Lane fixed the
day of sale on the 16th of November, 1808,
when it took place. The goods were sold, by
consent of Lane, who attended, and of the
attorney of Close, on a credit ; and a note for
$850 was taken, payable in 18 mouths, which
was afterwards delivered to Close, by the di-
rections of the defendant, who said he was in-
demnified by Close. The deputy -sheriff never
took the goods into his possession, nor did he
take a receipt for them from any person, un-
der either of the executions. In August, 1808,
the deputy received a letter from A. and D.
Lane, directing him not to proceed in the sale
of Hilton's property, under their execution,
unless younger executions pressed him to do
so, in which case he was required to give their
execution, being the oldest, a preference. In
consequence of this letter, as well as the one
received from the attorney of the plaintiff on
record, he delayed the plaintiffs' execution.
Before the sale he told Lane that the execution
of the plaintiff had the preference ; for he did
not then know that an execution could lose its
priority.
The judge expressing an opinion that the
proceedings under the plaintiffs' execution
must be deemed fraudulent, and that the
plaintiff had no right to recover, they submit-
j ted to a nonsuit, with liberty to move'the court
to set it aside, and for a new trial.
6 81
112
SUPREME COURT, STATE OP NEW YORK.
1814
The case was submitted to the court without
argument.
Per Curiam. This case comes within the
principle laid down and recognized by this
court, in the case of W hippie v. Foot, 2 Johns.,
422, that if a creditor seize the goods of
his debtor, on an execution, and suffer them
to remain in his hands, the execution is deemed
fraudulent and void, as against a subsequent
execution. This rule has been long established
in the English courts,1 and is founded upon
reasons best calculated to prevent fraud.
So far as the facts disclosed at the trial were
proper to be submitted to a jury, they must
be understood to have been found by them.
That the property was left in the possession
113*] of *Hilton, the debtor, after the pre-
tended levy of the plaintiffs' execution, is not
denied, and that this was known to the assign-
ees of the judgment, and acquiesced in by
them, is clearly to be inferred from the case.
In this situation the execution was permitted
to remain for nearly ayear; Hilton, the debtor,
continuing in the possession of the property,
using it as his own, in the same manner as he
had previously done, and until the second ex-
ecution came into the sheriff's hands. Under
these circumstances, the first execution ought
to be considered as dormant, and postponed in
favor of the second.
Whether the sheriff is chargeable or not with
neglect of duty, depends upon the fact wheth-
er his conduct was known or approved of by
the assignees of the judgment ; and whether
they knew in what manner the levy had been
made, may be questionable ; but that they did
know that the property was left in the posses-
sion of Hilton, cannot admit of a doubt. No
actual fraud was intended by them. They un-
doubtedly supposed they could postpone pro-
ceedings under their execution, until pressed
on by younger ones, and still retain their pri-
ority. Motives of humanity might have in-
fluenced them to this indulgence ; still, it was
not warranted by the sound and salutary prin-
ciples of the common law. The case of Levy
v. Wattis, 4 Dall., 167, decided in the Supreme
Court of Pennsylvania, which has been referred
to, admits the English rule to be, as understood
and recognized by this court ; but, it is said,
that sentiments of humanity, and the peculiar
necessities of the country, has induced the
court in Pennsylvania to depart from it. In
that state, however, the soundness of their own
rule has been questioned, and much shaken in
later cases. (See 4 Dall., 168, note 1.) The
motion on the part of the defendant must be
denied.
Motion denied*
Cited in— 17 Johns., 377 ; 3 Cow., 279; 5 Cow., 394 ;
15 Wend., 629 ; 5 Hill, 381 : 66 N. Y., 584 ; 13 Abb. Pr.,
118.
1.— 1 Wils., 44; Salk., 721; 1 Ld Raym., 251 ; 5 Mod.,
377 : 7 Mod., 37 ; 2 Term., 287, 596 ; 1 Tidd's Prac., 919,
920 ; 1 Esp. Rep., 205 ; 1 Camp. N. P., 333.*
2.— See Reals v. Guernsey, 8 Johns., 432 ; Barrow
v. Paxton, 5 Johns., 258 ; Prec. in Chanc., 285 ; Cowp.,
432 ; 2 Bos. & Pull., 59 ; 1 Taunt. Rep., 381 ; Pow. on
Mort., 29, 4th edit.
*Russell v. Gibbs, 6 Cow., 390 ; Rew v. Barber, 3
Ibid., 272.
82
*JENKINSETAL. «. WALDRON.[*114
Judicial Officers — Inspectors of Election — Not
Liable for Refusing Vote in Absence of Malice.
An action on the case will not lie against the in-
spectors of an election, for refusing the vote of a
person legally qualified to vote, without proving
malice express or implied.
Officers required by law to exercise their judg-
ments, are not answerable for mistakes in law or
mere errors of judgment, without any fraud or
malice.
Citations— 2 Ld. Raym., 938 ; 1 Bro. Parl. Cas., 49,
1st ed. ; 1 East, 555.
•
IN ERROR, on certiorari from a justice's
court. Waldron brought an action on the
case against Seth Jenkins, Erastus Pratt, Dan-
iel Clark and William Coventry, the plaintiffs
in error, as inspectors of the election held in
Hudson, in Columbia County, in April, 1811,
for refusing to receive his vote, as an elector,
&c.
The plaintiff below stated, in his declaration,
that the defendants below were inspectors of
the poll in the City of Hudson, at the general
election in 1811 ; that the plaintiff was duly
qualified to vote for members of Assembly ;
that he tendered his vote to the defendants,
and that they wickedly and designedly refused
his vote, and would not permit him to exercise
his right of suffrage ; to his damage, &c. The
defendants pleaded the general issue.
The following facts appeared in the justice's
return, as proved and admitted on the trial
before him. The defendants below were duly
elected and sworn as inspectors, at the general
election, in 1811, and acted as such when the
plaintiff below offered his vote at the poll for
members of Assembly. The plaintiff is a
black or colored man ; and at the time he of-
fered his vote he tendered a certified copy of
a certificate of his being a free man, under
the hand and seal of Samuel Edmonds, one
of the judges of the Court of Common Pleas
of the County of Columbia, dated 9th April,
1811, which certificate was recorded in the
office of the clerk of the town of Livingston,
and the copy was certified by the clerk of that
town. The plaintiff offered, at the same time,
to make any other proof of his qualification to
vote that the inspectors might require, and to
take the oaths required by law. The defend-
ants below rejected the plaintiff's vote, solely
on the ground that Samuel Edmonds, at the
time of giving the certificate of freedom, was
not a judge according to law, and, therefore,
not authorized to give the certificate. The
inspectors declared they did not require any
other proof of the plaintiff's qualification to
vote, except a different certificate, or such a
one as they should deem legal and valid.
*One of the inspectors presented to [*115
the board his written protest against their de-
cision, and which was produced at the trial.
Before the decision of the defendants, the
plaintiff presented to them a certificate of the
clerk of the County of Columbia, that, on the
20th March, 1810, Samuel Edmonds, was ap-
NOTE.— Judicial Officers— Personal liability of. See
Henderson v. Brown, 1 Cai., 93, note; Seaman v.
Patten, 2 Cai., 313, note; Yates.v. Lansing, 9Johps.,
395, nnte; Wallsworth v. M'Cullough, 10 Johns.,
93, note.
JOHNS. REP., 11.
1814
JENKINS ET AL. v. WALDRON.
115
pointed one of the judges of the Court of
Common Pleas of the County of Columbia, as
by a certain commission, &c., remaining in
the office of the clerk, &c., and that no tuper
udea* had been received for the said Samuel
Edmonds, at the clerk's office, unless a new
general commission of the pleas, which was
received at the office, the llth March, 1811, in
which his name is not inserted is to be con-
sidered as a supersedes.
The plaintiff had. for eight or ten years
previous to the election in 1811, voted for
members of Assembly, and at some of the
elections during that period some of the de
fendants were inspectors of the poll, and re-
ceived the plaintiff's vote.
Samuel Edmonds, from the date of com-
mission down to the time of trial, had con-
stantly continued to perform the duties and
exercise the powers of a judge of \he Court
Common Pleas, «fec., and before and since the
month of April, 1811, as such judge, took the
proof and acknowledgments of deeds, mort-
gages and bailpieces, which were tiled and
recorded in the clerk's office, and performed
all other acts pertaining to his office as such
judge, of which the defendants were informed
by nim, previous to their rejection of the
plaintiff's vote.
The exemplification of the com mission, under
the great seal, to Edward P. Livingston, Sam-
uel Edmonds, and others, judges of the Court of
Pleas, dated the 20th March, 1810, and recorded
in the clerk's office the 29th March, 1810,
was given in evidence ; also a commission,
dated 5th March, 1808, to Jonathan Warner
and others, in which the name of Edmonds
was not inserted as one of the judges, &c.,
and another commission dated the 2rt March,
1811, directed to Jonathan Warner and others,
in which the name of Samuel Edmonds was
not inserted, as one of the judges, &c. There
was no other commission of judges of the
Court of Common Pleas issued, and it appeared
that Samuel Edmonds took the oaths under
the commission of 1810 ; and that commission
was seen and examined by the defendants be-
fore they rejected the plaintiff's vote. The
clerk of" the county had inserted in a gazette
printed at Hudson, where Samuel Edmonds
resides, a notice of the appointment of the
1 1(5*] *persons named in the commission of
1811, as judges, justices, &c., among which
the name of Edmonds did not appear. It ap-
peared, further, that before Samuel Edmonds
gave the certificate of the plaintiff's freedom,
the clerk of the county had sent to him a
notice in writing, stating that "a commission
of the peace for the county was received at
his office, on the llth March, directed to Will-
iam Wilson and others, in the words follow-
ing : ' Know ye that we have appointed and
assigned, and by these presents do appoint
and assign, you and every of you. jointly and
severally, justices, to keep the peace in our
County of Columbia,' &c., in which com-
missio'n your name was not inserted, dated
the 9th April, 1811. M. Jenkins, clerk. To
Samuel Edmonds, Esq.," which notice was re-
ceived by Edmonds on the 10th April, 1811.
The justice stated further, that there was
no evidence whatever given, at the trial, to
show that the defendants, in the rejection of
JOHNS. REP.. 11.
the vote of the plaintiff, were actuated by any
corrupt or malicious motives towards the
plaintiff, or by any other wish or desire than
to discharge tlieir duties as inspectors.
A certificate of Elishp Jenkins, the Secre-
tary of State, was also produced, stating that,
on examination of the minutes of the Council
of Appointment, it did not appear that it had
ever been the practice of the Council to direct
a supersedeas to any judge, assistant justice,
or justice of the peace, in any county, in cases
where a new general commission was directed
to issue, in which any judge, assistant justice,
or justice of the peace, who was previously in
the exercise of his office, by any commission,
general or special, was not named.
On this evidence the counsel for the defend-
ants below moved for a nonsuit, which was re-
fused by the justice, who gave judgment for
the plaintiff for three dollars damages and
the costs.
Mr. Van Buren, for the plaintiffs in error.
1. By the 28th article of the Constitution, it is
directed that new Commissions shall be issued
to the judges of the county courts, except the
first judge, and to justices of the peace, once,
at least, in every three years. (1 N. R. L.,
40.) The new commission is, in effect, a
superseded* of the old commission. No writ
of superaedta* was, therefore, necessary to be
directed to Judge Edmonds ; nor was any
notice to him of the new commission requisite.
A new commission virtually discharges all
*the former justices not named there- f*l 17
in ; for there cannot be two commissions in
force at the same time. (1 Bl. Com., 853.)
2. But there is another and an insuperable
difficulty in this case. This action will not
lie without alleging and proving that the de-
fendants acted willfully and maliciously, &c.
The plaintiff must prove corruption, and a
design to injure the plaintiff. The action does
not lie for a mere error of judgment. (liar-
man v. Tappenden et nl. , 1 East, 555 ; Drewy
v. Coulton, lb., 568, note.)
Mr. Jo*. Strong, contra. These defendants,
though they may be considered as judges to a
certain extent, yet judges of inferior juris-
diction, who exceed their authority, or abuse
it, are not protected. The law in such case
implies malice. Now the defendants knew,
and perfectly understood, all the facts and the
law in the case, yet they willfully decided con-
trary to both.
But we contend that the inspectors are not
judges, but ministerial officers only. In Ash-
by v. White, 2 Ld. Raym., 988. 950; S. C.. 6
| Mod., 45 ; Holt's Rep., 524 ; 1 Bro. P. C.. 45,
I though the judgment was arrested by three of
the judges, yet Holt. Ch. J., and Powell, ./.,
were of opinion that the defendant was neither
a judge, nor anything like a judge; and the
! judgment of the K. B., in that case, was re-
versed in the House of Lords.
By the law of this State regulating elections,
J the inspectors may challenge persons who of-
i fer to vote, and may tender them the oaths
prescribed, and inquire into their qualifica-
1 tions. (Seas. 88, oh. 41 ; 2 N. R. L., 251, 253,
law. 8, 9, 10, 11, 12.)
But even if these officers have any judicial
power or discretion, still they are liable, if
they go beyond their powers, or exercise them
117
SUPREME COURT, STATE OP NEW YORK.
1814
in an improper, illegal or oppressive manner.
(l4Vin. Abr., Judges, F, 579; 1 Ld. Raym.,
467 ; 2 Lev., 50 ; 2 Bl. Rep., 1142. 1017, 1035 ;
1 Burr., 595 ; 5 Johns., 125; 7 Johns., 549;
9 Johns., 381.)
Then as to the validity of the certificate
granted by Judge Edmonds ; it is sufficient,
if he was even a judge, de facto, at the time he
gave it. His acts would be valid. All judicial
and ministerial acts done by an officer, de
facto, who comes into his office by color of
title, are good, as they concern the public, or
the rights of third persons. (16 Vin. Abr.,
114; Officer, G, 3, 64, Y. B., 9 Hen. VI.,
32; Lutw., 508, 519, 156; 1 Ld. Raym., 658,
660 ; Cro. Eliz., 699 ; 7 Johns., 549 ; 9 Johns.,
135.)
But we insist that he was, by common law.
a judge, dejure. Though in England, the de-
mise of the King puts an end to the authority
of the justices appointed by commissioners,
yet notice to them of that fact is necessary.
So, though their authority is determined by a
new commission of the peace, yet, unless the
new commission is shown to them, or is read
in full County Court or Sessions held under
it, or is proclaimed in the county, or the
justices of the new commission sit and hold a
court by virtue of their commission, the
former commission is not countermanded.
118*] *(4 Inst., ch. 28, 164, 165 ; 34 Ass., 8;
Bro. Commiss., 6, 14, 18 ; 4 Com. Dig., 526 ;
Justices, A, 8 ; 10 Edw. IV., 7, a.) The no-
tice sent to Judge Edmonds, by the clerk of
the county, was an officious and nugatory act,
of which the judge was not bound to take no-
tice. The clerk had no authority to give such
notice. Where the duration of the office is
not ascertained, it is held at the pleasure of
the Council of Appointment. This is the case
with the judges aad justices of the county
courts and justices of the peace ; but the 28th
article of the Constitution provides that new
commissions are to issue to all of them, ex-
cept to the first judge, once, at least, in three
years. The pleasure of the Council of Ap-
pointment can only be signified by a super-
sedeas. In England, the King being a corpo-
ration sole, may express his pleasure in various
ways ; but the Council of Appointment being
a corporation aggregate, can speak only, or
declare their will and pleasure, by writing
under their seal. Suppose each individual
member of the Council should say to a judge
or justice of the peace: "Sir, you are no
longer a judge or justice," would he be bound
to take notice of it, or would such a declara-
tion put an end to his commission ? Would
it be a legal or constitutional expression of the
pleasure of the Council ? The only legal
mode of expressing their will and pleasure is
by an instrument under seal, which is to pass
the office of the Secretary of State.
Such, also, is the sense of the Legislature.
By the Act Concerning the Council of Revis-
ion and Council of Appointment (sess. 24, ch.
27 ; 1 N. R. L., 458 ; sess. 36, ch. 14, sec. 4),
the Secretary of State is required, as often as
any person is appointed or superseded by the
Council of Appointment, to send the com-
mission and superseded* speedily to the clerk
of the county, who is to give notice thereof
to the person appointed or superseded.
84
. If Edmonds, then, was a judge, his certifi-
cate was legal and valid, and ought to have
been received by the inspectors. They were
bound to proceed according to the law and
the facts. They admit they knew the facts,
and they must be presumed to know the law.
Having decided willfully, contrary to law,
malice is implied, and they are liable to this
action. Where a person has a vested right,
known to these officers, and they devest him
of it, an action lies. Judges do not make law.
They declare it only, and if they decide know-
ingly against law, malice is implied.
In Drewy v. Coulton, Wilson, J.. relied
strongly on the statute of 7 and 8 William III.,
ch. 7,as declaratory of the common *law, [* 1 1 9
though that statute was not applicable to the
case of Ashby v. White. He admits that the
ground of the decision, in that case, was not
the malice*. Lord Holt took no notice of the
want of malice being any defense. There
was no suggestion of want of malice. And
the decision in the House of Lords went on
different grounds. The five resolutions passed
by the House of Parliament do not speak of
malice being necessary. (1 Bro. P. C., 62, 2d
edit., Tomlins, and notes ; 3 Chand. Debates,
385.)
Mr. Van Buren, in reply. The uniform prac-
tice of the Council of Appointment not to issue
a supersedeas where there is a new commission,
is proved by the certificate of the Secretary of
State. The commission is directed to the
judges, assistant justices, and justices of the
peace, jointly and severally, who together form
the general magistracy of the county. Where
a magistrate is left out of the commission, in
England, it is true there must be a personal
notice to him, or the new commission must be
read in court. This is necessary, because the
magistrate continues in office at the pleasure
of the King, until his demise, or a new com-
mission issues, either of which facts he can-
not be presumed to know until specially and
formally made known to him. Here the mag-
istrate may continue for three years ; but he
cannot hold his office beyond that period, un-
less a new commission issues. He knows from
the date of his commission when his office
must end. Personal notice is not, therefore,
requisite. And, in case of a new commission,
that is equivalent to a supersedeas, as to all the
former justices not named in it.
A judge, de facto, is one who exercises the
office by color of right. The mere single fact
of his acting as a judge will not make him
one de facto, againstall manner of right. After
the new commission, Judge Edmonds had no
more color of right than if he never had been
a judge.
It is true, that in the case of Ashby v. White
the Court of K. B. , Holt, Ch. J. , dissenting, have
decided that the action would not lie, that
judgment was afterwards reversed in the
House of Lords. But on what ground ? Pre-
cisely on the ground of malice, or a willful
and corrupt denial, on the part of the defend-
ant of the vote of the plaintiff. This appears
from one of the resolutions of the House of
Lords, in answer to the resolutions of the
House of Commons, as printed, in a note, in
the first edition of Brown's Parliamentary
Cases, 49. By some mistake, that part of
JOHNS. REP., 11.
1814
VANDEKKARR v. VANDEKKARR.
120
12O*] *the note containing the resolutions of
the Lords is not printed in the second edition,
edited by Mr. Tomlins. Justice Wilson, there-
fore, in the case of Dreiey v. Cotillon, was cor-
rect in saying that the House of Lords put the
justification of their decision on the ground of
the willful or malicious conduct of the of-
ficer. And he considered the statute of Will-
iam III. as declaratory of the common law,
that no action would he against an officer for
refusing a vote of an elector, unless such re-
fusal was willful and malicious.
SPENCER, J., delivered the opinion of the
court :
It is not necessary to the decision of this
cause to pronounce any opinion on the ques-
tion, whether Judge Edmonds was a judge de
jure, or de facto, when he gave the certificate
that the defandant had duly proved himself to
be a free man ; for, admitting that Judge Ed-
monds was either, this action, as- laid, is not
maintainable. It is not alleged or proved that
the inspectors fraudulently or maliciously re-
fused to receive Waldron's vote ; and this we
consider to be absolutely necessary to the
maintenance of an action against the inspec-
tors of an election.
The case principally relied on by the coun-
sel for the defendant in error is that of Ashby
v. White, 2Ld. Ilaym.. 938. There the dec-
laration alleged that the rejection of Ashby's
vote was done fraudulently and maliciously,
and, although the jury found the defendant
guilty, the judgment was arrested by three
judges, in opposition to the opinion of Chief
Justice Holt. This judgment was afterwards
reversed in the House of Lords. The reasons
for the reversal do not appear in the report of
the case ; but the ground of the reversal is
distinctly stated in the resolutions of the Lords,
in answer to the resolutions of the Commons,
reprehending the bringing the action and the
judgment thereon. The first resolution of the
Lords states, "that by the known laws of this
kingdom, every freeholder, or other person
having a right to give his vote at the election
of members to serve in Parliament, and being
willfully denied, or hindered so to do, by the
officers who ought to receive the same, may
maintain an action in the Queen's courts
against such officer to assert his right, and to
recover damages for the injury. (1 Bro.
Parl. Cas.. 49, 1st edit.) The case of liar-
man v. Tappende et al., 1 East, 555, and Drewy
v. Coulton, in a note to that ca«e, clearly show
that this action is not maintainable, without
121*1 stating and proving *malice express
or implied on the part of the officers. In the
case in the text, Lawrence, J., said : "There
is no instance of an action of this sort main-
tained for an act arising merely from error of
judgment ;" and he cited Mr. Justice Wilson's
opinion in Dreiry v. Coulton with approbation.
In that case the suit was for refusing the
plaintiff's vote. Ju*tice Wilson considered it
as an action for misbehavior by a public offi-
cer in the discharge of his duty, and that the
act must be malicious and willful to render it
a misbehavior ; and he held that no action
would lie for a mistake in law. In speaking
of the case of Ashby v. White, he considered it
as having been determined by the House of
JOHNS. REP., 11.
Lords on that ground, from the resolutions en-
tered into by them. The whole of Judge Wilson's
reasoning is clear, perspicuous and irresistible,
and is fully confirmed in Harmen v. Tappen-
den. It would, in our opinion, be opposed to
all the principles of law, justice and sound
policy, to hold that officers, called upon to
exercise their deliberative judgments, are
answerable for a mistake in law, either civilly,
or criminally, when their motives are pure,
and untainted with fraud or malice.
Judgment reversed.
Cited in-19 Johns., 229; 6 Cow., 280; 8 Cow.. 185 ; 8
Wend., 4«8; 1 Denio, 591; 1 N. Y.. 5*8; 27 N. V., 65;
36 N. Y., 616 ; 61 N. Y., 437 ; 2 Trans. App., 216 ; 5
Lans.. 317. 576; 8 Hun, 386: :(fl Barb., 505 : 38 Barb.,
53; 4 How. (U.S.). 149: 7 How. (U.S.); 129, 131; 95
111., 267 ; 3 Allen. 172 ; 48 Mo.. 267.
•VANDERKARR
VANDERKARR.
[*122
Covenants — Express does away with Implied —
Action on Covenant of Warranty.
When there is an express covenant in a deed, it
takes away all implied covenants. A general cove-
nant of warranty in a deed does not imply a cove-
nant of seisin, nor can the want of seisin in the
grantor, or that he had no such land as, &c., be as-
signed, as a breach of the covenant of warranty ;
nor can the plaintiff maintain an action for a breach
of the covenant of warranty, without alleging- and
proving a lawful eviction.
Citations-2 Cai., 192 ; 7 Johns., 258 ; 2 Johns.. 4.
THIS was an action of covenant. The dec-
laration stated that the defendant by his
deed dated 25th April, 1810, granted, bar-
gained and sold to the plaintiff, all the undi-
vided part of lot No. 120, in Van Schaick's
patent, containing 120 acres, &c., to have and
to hold, &c., and covenanted the premises,
&c., to the plaintiff and his heirs and assigns,
"against all and every person or persons law-
fully claiming, or to claim, the whole or any
part of the premises, &c., to warrant and de-
fend." The plaintiff alleged, 1. That the de-
fendant, at the time of the sealing and deliver-
ing of the deed, was not seised, &c. 2. That
at the time, &c. , there was not, nor is there at
this day, any such land, &c., as lot No. 120, in
Van Schaick's patent, described in and by the
said indenture, &c. And so he saith, the said
defendant hath not kept his covenant, &c.
NOTE.— Covenants. 1. Warranty— Breach of. 2.
Imntltrt.
warranty in onlifhrnken by an eviction. Kent v.
Welch, 7 Johns., 258 ; Miller v. Watson, 5 Cow.,
195 ; Bank of Utica v. Merscreau, 3 Barb. Ch., 528 ;
Kickert v. Snyder, 9 Wend., 416; Cowdrey v. Colt,
44 N. Y., 882 ; Winslow v. McCall, 32 Barb.. 241 ;
Cooper v. Watoon, 10 Wend., 202; RindskopflT v.
Farmers' L. & T. Co., 58 Barb.. 36 : Fowler v. Pol-
ing, 6 Barb., 165; Whltbeck v. Cook, 15 Johns., 488 ;
Oreenby v. Wilcocks, 2 Johns., 1 notf ; Swazey v.
Brooks, 34 Vt., 451; Reed v. Pierce. 36 Me., 455;
Carter v. Denman. 23 N. J. L. 260; Bearce v. Jack-
son, 4 Mass.. 408; Oilman v. Haven, 11 Cush., 330:
Glddimrs v. Cnnfleld. 4 Conn., 482: Succession of
Coxe, 15 La. Ann., 514; Norton v. Jackson, 5 Cal.
262; Davis v. Smith. 5 Oa.. 274; Woodford v.
Leavenworth. 14 Ind. 311; Tufts v. Adams, 8 Pick.,
547 : Simpson v. Hawkins, 1 Dana, 308.
The act of Eviction need not affect the ichrte
premise*. Funk v. Creswell, 5 Iowa, 88: West v.
So
122
SUPREME COURT, STATE OF NEW YORK.
1814
To this declaration the defendant demurred,
and assigned for causes of demurrer : 1. That
in the breach first assigned by the plaintiff,
there is no breach of the covenant of warranty
alleged, and the want of seisin or title is not
within the covenant, nor a breach of it ; 2.
Because, in the second breach assigned, the
plaintiff does not allege that he was evicted by
a person having the lawful title ; and, 8. Be-
cause the plaintiff puts in issue, under the
covenant of warranty, the facts whether the
defendant was seised, &c., and whether there
was any such land as is described in the deeds
at the time, &c.
The plaintiff joined in demurrer, and the
same was submitted to the court without ar-
gument.
Per Curiam. The breaches assigned in the
declaration are not warranty by the covenant.
The only express covenant set out is a general
warranty. And it is a well-settled rule that all
implied covenants are done away by express
ones. (2 Caines' Rep., 192.) It is unnecessary,
therefore, to notice the general words in the
deed, although they certainly imply no cove-
nant of seisin. Under the general covenant
of warranty, the breaches assigned are, want
of seisin, and that there is no such land as
that described in the deed; neither of these
123*] are *within the covenant. The former
can only be properly assigned, under a cove-
nant of seisin ; and the latter amounts only to
an allegation that the grantor had no estate in
the land which he undertook to sell, or that
it is not truly described in the deed. These
are no breaches of the covenant of warranty,
according to the decision of this court in the
case of Kent v. Welch, 7 Johns.. 258. It is
a well-settled rule that under a covenant of
warranty, the plaintiff must show a lawful
eviction in order to maintain his action. (2
Johns., 4.) No eviction whatever is ,shown
in the present case. The declaration, there-
fore, cannot be supported, and the defendant
is entitled to judgment.
Judgment for the defendant.
Cited in— 3 Wend., 183; 7 Wend., 285; 17 Wend.,
160; 18 Wend., 347; 21 Wend., 125; 4 Hill, 644; 1
Sand. Ch., 378 ; 43 N. Y., 464 ; 52 N. Y., 516 ; 58
Barb., 50; 64 Barb., 560; 2 Hall, 643; 1 Duer, 196;
35 Super., 181.
JACKSON, EX DEM. VAN CORTLANDT &
PATTON,
VAN CORLAER.
Ejectment — Practical Location of Boundaries —
Conclusive after Nineteen Years.
Where parties, claiming lands under different pat-
ents, had, nineteen years before the trial, caused a
new survey, and had agreed that the line so run on
that survey to be the true boundary line between
them, and had afterwards repeatedly acquiesced in
such line ; it was held that the line so settled be-
tween them could not be questioned or disturbed,
though it might be shown to have been, at first,
incorrectly settled.
THIS was an action of ejectment for lands
in the town of Hoosick, in the County of
Rensselaer, and was tried before the Chief
Justice.
The premises in question were claimed by
the plaintiff, as part of great lot No. 30, in the
Hoosick patent ; more particularly as part of
great lot B, in the subdivision of great lot No.
30. He gave in evidence : 1. Letters patent,
dated in June, 1688, to Jacobus Van Cortlandt,
and three other patentees named, for the tract
of land commonly called the Hoosick patent.
2. The will of Jacob Van Cortlandt, dated
12th May, 1739, devising the one fourth of the
patent to his son, Frederick Van Cortlandt, for
life, and after his death to all his children in
fee. The plaintiff then deduced a regular title
in fee, under this will, to Augustus Van Cort-
landt, the lessor of the plaintiff, for a moiety
of lot No. 30, in the patent, as possessed by
the defendant. He further gave in evidence a
deed from Augustus Van Cortlandt and his
brother Frederick, to the other lessor, Patton,
dated 28th May, 1798, for the consideration of
£236, "for all that certain lot of land, situate,
lying and being in the Hoosick patent, dis-
tinguished in a survey made by Naunring
Visscher, by letter B, now in the possession of
the said Robert Patton, and bounded
*northerly by lot No. 46, in the pos- [*124
session of John Ryan and Thomas Leonard;
westerly by the farm of land now in possession
of John Munro; southerly by land now claim-
ed by Daniel B. Bradt; and easterly by the
land of Henry Lake, being the easterly bounds
of the said Hoosick patent, containing, by esti-
mation, 236 acres, more or less.
Stewart, 7 Pa. St.. 122 ; Day v. Adams, 42 Vt., 510 ;
Lamb v. Danf orth, 59 Me.. 324 ; Russ v. Steele, 40
Vt., 310; Harlow v. Thomas, 15 Pick., 66. But see
Hendricks v. Stark, 37 N. Y., 106; Janes v. Jenkins,
34 Md., 11.
Act of stranger, though under pretense of title,
which is invalid, does not amount to a breach.
Laughran v. Ross, 45 N. Y., 792 ; Gleason v. Smith.
41 Vt,, 293; Norton v. Jackson, 5Cal., 262; Hannah
v.Hendereon, 4Ind., 174; Hale v. New Orleans, 13
La. Ann., 499.
Evict ion l>y process nf law is not necessary. Eviction
by, or surrender to one having a paramount legal
right is sufficient. St. Johns v. Palmer, 5 Hill, 599 ;
Greenvault v. Davis, 4 Hill, 643 : Stone v. Hooker,
9 Cow., 154; Fowler v. Poling, 6 Barb., 165: Webb
v. Alexander. 7 Wend., 282; Cowdrey v. Coit, 44
N. Y., 382 ; Blydenburgh v. Cotheal, 1 Duer, 176 ;
Hamilton v. Cutts, 4 Mass., 349; Clarke v. M'Anulty,
3Serg. &R., 364; Peck v. Hensley., 20 Tex., 673;
Funk v. Creswell, 5 Iowa, 65 : Kellogg v. Platt, 4
Vroom, 328 ; Loomis v. Bedel, 11 N. H., 74 : Sprague
v. Baker, 17 Mass.. 586; Oilman v. Haven, 11 Cush.,
330 ; White v. Whitney, 3 Met., 81 ; Tufts v. Adams,
8 Pick., 547 ; Mitchell v. Warner, 5 Conn., 521. But
see, Stewart v. Drake, 9 N. J. L. 139.
86
Warranty as against all persons claiming under
grantor, is not broken if the grantor himself sets
up a title subsequently acquired by him. Wood-
cock v. Bennet, 1 Cow, 711 ; Comstock v. Smith,
13 Pick., 116; Allen v. Say ward, 5 Me., 227 ; Trull v.
Eastman, 3 Met., 124 ; Hawle Cov., 3rd ed., 46.
But in case of a general warranty, subsequently
acquired title inures to the grantee. Jackson v.
Hoffman, 9 Cow., 271, note.
An express covenant controls or does away with an
implied one, where they relate to the same subject
matter. They may exist together when entirely
consistent. Kent v. Welch, 7 Johns., 258 ; Summer
v. Williams, 8 Mass., 201 ; Gates v. Caldwell, 7 Mass.,
68; Rowe v. Heath, 23 Tex., 614; Alexander v.
Schreiber, 10 Mo., 460; Crouch v. Fowle, 9 N. H.,
219; Roebuck v. Dupuy, 2 Ala., 535 ; Blair v. Hardin,
1 A. K. Marsh., 232; Morris v. Harris, 9 Gill., 19:
Line v. Stephenson, 5 Bing. N. C., 183 ; 4 Cruise Dig.,
370 ; 3 Washb. Real. Prop., 485.
On the general subject, see 3 Washb. Real Prop.,
473-478 ; Curtis v. Deering, 12 Me.. 499.
NOTE.— Practical location of boundaries. For full
discussion, see note to Jackson v. Dysling, 2 Cai.,
198.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. VAN CORLAER.
124
The plaintiff next produced Bleecker's map
and field book of the survey of the Hoosick
patent, and proved that the defendant was in
possession of part of lot No. 80, as laid down
in the said map and field book.
One of the plaintiff's witnesses, on his cross-
examination, stated that the defendant was in
possession of part of lot No. 30, according to
Bleecker's map and survey, the lines of which
he had seen run so a.s to include the defend-
ant's possession ; that part of the land, being
about one sixteenth part of an acre, in the pos-
session of thf defendant, was within the de-
scription contained in the deed of the 28th
May, 1798, from A. and F. Van Cortlandt to
Patton, and that, according to the survey of
lot B, by Visscher, the defendant had about
50 acres of that lot in his possession.
The defendant claimed the premises in ques-
tion, as part of lot No. 2, in Snyder's patent,
dated 24th March, 1762. He gave in evidence
a deed from Cretin Brush to Hendrick Lake,
dated 25th September, 1762, conveying a lot
of land, part of Snyder's patent. Part of the
boundaries described were as follows : "along
the north bounds of lot No. 8, west, to a tract
of land, &c., called Hoosick; then along the
east bounds of said tract called Hoosick, to the
southwest corner of lot No. 1 ; then along the
south bounds of lot No. 1, east, to the place of
beginning," &c., containing 160 acres, more
or less.
The defendant gave in evidence a deed from
Hendrick Lake to Abraham and Garret Lake,
for said lot No. 2, dated 22d January, 1798,
and a deed of a moiety of the same lot from
Abraham to Garret Lake, dated 29th August,
180ft.
It was proved that Hendrick Lake entered
into possession of lot INo. 2 not long after the
date of his deed, that is, about five or six years
before the late war. He cleared up to the road
north of his lot, and the lands east of the road
have been inclosed for above 30 years. The
defendant is a tenant under Garret Lake. The
witness understood the road to be the Hoosick
line.
Asahel Shephard, a surveyor, testified that
125*] about 19 years ago *he run out the east
line of the Hoosick patent (but at whose re-
quest he did not recollect, but he thought
David Sprague paid him), assuming the river
as the base, and running two miles east of the
river, according to its bend. According to
Bleecker's map and survey, the premises in
question woulu be within the Hoosick patent,
and include 42$ acres east of the road, and 84
acres west of it.
Another witness testified that he surveyed
17 acres of the premises in question, in Janu-
ary, 1794, soon after the survey by Shephard,
at the request of Henry Lake. He understood
there had been difficulties about the land, and
the iMirties, Lake and Patton, recognized Shep-
liani's line as the true division line, and had
settled and agreed to it believing it to be the
true line. About 17 acres west of the road
and east of Shephard's line, fell to Lake, and
Patlon purchased it of him, and about 8 acres
west of the road Patton gave up to Lake ; that
it was agreed and understood by them, on that
settlement, that Lake was to give up to Patton
all the land he held west of the line, and Pat-
JOHNB. REP., 11.
! ton then claimed the land west of the road,
! and said it was covered by his title and the
| Hoosick patent ; that these pieces of land have
] ever since been held pursuant to that agree-
ment.
A deed was produced, dated 28th February,
1794, from Henry Lake to Robert Patton, for
part of lot No. 2, in Snyder's patent, lying
west of the road, and on Shephard's line, "par-
ticularly describing the bounds, and contain-
ing 17 acres and 24 rods, more or less.
It was further proved that al>out 11 years
ago the lessor. Van Cortlandt, said he gave no
deed of lands in Hoosick but according to
Shephard's survey. That Henry Lake, 38
years ago, was in possession east of the road
and up to the road ; that within ten years, the
lessor and the defendant had mutually sup-
ported the division fence, as it now stands,
between the pieces of land above mentioned,
one of 8 acres, and the other of 17 acres. That
about two years ago, Patton said "there had
been differences between the claimants under
the Hoosick and Snyder patents ; but that he
had settled according to Shephard's survey,
supposing that to be the true one, but that he
was a fool for having made the settlement."
David Sprague testified that he was the agent
for the Van Cortlandt's, as to the Hoosick
lands, but he did not recollect whether
*he employed and paid Shephard for [* 1 26
that survey, but he had frequently employed
him to make surveys, and was directed by
Van Cortlandt to procure parallel lines to be
run out from the Hoosick River, two miles on
each side, from the river as a base.
It was further proved that after Shephard's
line was run, Lake agreed with Patton to give
up all the land, in his possession, west of that
line, and Patton was to give up all that lay
east of the line, which he had done, except a
small piece or corner, less than one fourth of
an acre, which the defendant held in his pos-
session.
The Chief Justice was of opinion that Shep-
hard's line was conclusive on the parties ; that
Patton's title did not extend beyond that line,
and that Van Cortlandt was estopped by his
deed from extending the line of lot No. 30, be-
yond the traverse line of Shephard ; but that,
as a small piece of land west of Shephard's
line was in possession of the defendant, the
plaintiff was entitled to recover to that extent.
A verdict was, therefore, by consent, taken
for the plaintiff, subject to the opinion of the
court on the whole case.
Mr. Foot, for the plaintiff, contended, 1.
That the plaintiff had shown a title to the
whole of the premises, there bein^ no adverse
possession sufficient to bar his claim. (2 Johns.
Cases, 355 ; 1 Johns., 51.)
2. That Van Cortlandt was not estopped by
his deed to Patton in 1798. (1 Caines, 493 ;
8 Mod.. 813 ; Co. Litt., 852 a; 8 Johns. Cases,
108.)
8. That neither Van Cortlandt nor Patton
were concluded by any declarations or agree-
ments of either, as to Shephard's line being the
true line. (1 Caines, 886 ; 2 Johns., 855 ; 5
Johns., 502-507.)
Mt**ra. Wendfil&nd Rwuell, contra, insisted
that the lessors of the plaintiff were concluded
by the agreement with Patton, establishing
87
126
SUPREME COURT, STATE OP NEW YORK.
1814
Shephard's line as the true boundary between
them. They cited Jackson, ex dem. Nettis, v.
Dysling, 2 Caines, 197; Jackson, ex dem. Whit-
man, v. Douglas, 8 Johns., 367; Stuyvesanl v.
Tompkins & Dunham, 9 Johns., 61.
127*] *Per Curiam. Whether Bleecker's
line is correct or not, cannot now be made a
question between these parties: for they under-
took to run and establish a line for themselves,
which is the line run by Shephard in his survey
about nineteen years ago. According to that
urvey, the defendant is in possession of no lands
belonging to the lessors of the plaintiff, except
a small piece lying east of the road, and north
of Shepherd's line.
After such a lapse of time, and the repeated
acquiescence on the part of the lessors, it
would be unjust and inexpedient to disturb
that line, admitting that it had been incor-
rectly settled at first. The parties themselves
ought to be the best judges of the boundaries
of their own lands ; and after they have de-
liberately settled a boundary line between
them, it would give too much encouragement
to the spirit of litigation to look beyond such
settlement, and break up the lines so established
between them. Though the small piece of
land mentioned was not, probably, the object
of the action, and is almost too trifling in value
to be noticed, yet, as the plaintiff is clearly en-
titled to recover it, he must have judgment for
that and no more.
Judgment for the plaintiff, pro tanto.
Distinguished— 6 Cow., 722.
Cited in— 16 Wend., 305 ; 20 Mich., 438.
128*] * WHITE «. KIBLING.
Negotiable Paper — Payment icithout Surrender,
Conclusive against Subsequent Indorsee with
Notice — Witnesses.
Where a negotiable note was paid before it became
due, to the payee, by the maker, who took a receipt
in full, and the note was afterwards, before it be-
came due, indorsed by the payee, but the indorsee
was informed of the fact of such payment before
the note was delivered to him ; it was held that the
indorsee took the note subject to such payment. An
indorsee of a promissory note is a competent wit-
ness to prove a payment of it by the maker.
Evidence of what a witness who is dead swore to
at a former trial of a cause, is admissible, though
unaccompanied with the postea, if no objection is
made at the trial, on that ground ; for it will then
be presumed that the pendency of the former suit
and trial was admitted.
fTlHIS was an action of assumpsit. The cause
J- was tried at the Jefferson Circuit, the
16th of June, 1813, before Mr. Justice Yates.
The plaintiff gave in evidence a promissory
note, dated 17th of May, 1808, by which he
promised to pay Simeon Daggett, or order,
two hundred and twelve dollars, on or before
the 1st of January, 1811, with interest, and in-
dorsed by Daggett.
The defendant's counsel offered to prove
that the note was indorsed originally by Dag-
fett to one William Otis, and that, at the time
e so made the indorsement, he informed the
agent of Otis that the defendant had paid the
note ; and that Otis, when he transferred the
88
note to the plaintiff, was informed of the same
fact. The plaintiff objected to this evidence,
unless the defendant first proved that the note
was indorsed and transferred after it became
due : but the judge overruled the objection.
Ackley, a witness for the defendant, testified
that in May or June, 1809, Otis delivered the
note in question to him, and requested him to
get it indorsed by Daggett. The witness soon
after saw Daggett, and requested him to in-
dorse it, which he objected to, saying the de-
fendant had paid the note to him, and that he
had given a receipt to the defendant for the
amount. Daggett, however, indorsed the note,
on the express condition that the witness
should keep it, and not let Kibling know of it
until the 20th of August, when he agreed to-
be at Ellisburgh, where Otis resided, and pay
it. The witness accordingly kept the note in
his hands until after the 20th of August, and
then delivered the note to Otis, informing
him of the conversation which had passed
between the witness and Daggett.
Another witness (Cole) testified that he was
at the house of Otis in the winter of 1809, when
Kibling told Otis the note in question had been
paid, and that he should not pay it again.
Otis produced the note, which was not then
indorsed by Daggett, and the defendant pro-
duced the receipt in full. Otis said the note
had been delivered to him by Daggett as secur-
ity for another note, signed with Daggett to-
the plaintiff. The witness *further [*129
stated that Otis was dead ; that, on a former
trial of the cause, in the Court of Common
Pleas of Jefferson County, from which it was
removed to this court, Otis was a witness,
and testified that the note was first deposited
with him in the autumn of the year 1808, in
the manner mentioned by the witness ; that in
February, 1809, Kibling informed him, Otis,
of the payment of the note ; that the indorse-
ment of it was afterwards obtained, and it
was delivered to the plaintiff towards payment
of his demand against Daggett and Otis, on
their note above mentioned ; that, at the time
he so delivered the note to the plaintiff, he in-
formed him of the payment of it, and of the
manner in which the indorsement from Dag-
get had been obtained, and told the plaintiff he
might take the note and make what he could
from it. This evidence, as to what Otis testi-
fied at a former trial, was objected to by the
plaintiff's counsel, but the judge admitted it
on the ground that Otis was dead. The de-
fendant then produced and proved a receipt
given by Daggett to the plaintiff, which was
objected to by the plaintiff's counsel, but ad-
mitted by the judge.
The receipt was as follows : " Chester, Jan-
uary 3, 1809, received of John Kibling, Jr.,
the full demand which I hold against him,,
dated the 17th of May last, which was given
for a certain lot of land in Ellisburgh, being
for value received."
The jury, under the direction of the judge,
found a verdict for the defendant.
A motion was made to set aside the verdict,
and for a new trial.
Mr. N. Williams, for the plaintiff, contended,
1. That the note in question having been in-
dorsed and transferred before it became due,
and before the alleged payment by the maker,
JOHNS. REP., 11.
1814
DEMICK v. CHAPMAN.
129
evidence of such payment was inadmissible.
Where a note is negotiated before it is due, the
holder cannot be affected by any dealings or
transactions between the maker and payee.
(Prior v. Jacock», 1 Johns. Cas.. 169 ; Str.,
1155; Doug., 735; 1 Johns. Cas., 51-53.)
Where a note is transferred before it is due,
the maker is not allowed to show payment, or
to impeach the consideration, unle-s-s to prove
a fraud in its original creation (Brown v.
!>.,, ,- :; T.-MU. ^ii ; I'.niu. v. /•:•/..',. :;
Caines. 213 ; 2 Caines, 369 : Uendricks v.
Judah, 1 Johns., 318; 5 Johns., 113; see,
also, 1 Bos. & Pull. 399 ; 7 Term, 427,
429, 630), and it .is only where it is nego-
tiated after it is due, that any such defense
is allowed. Again, this note was actnallv
delivered to Otis in 1808, and before the
13O*] *time of the alleged payment, though
not then indorsed. This was a valid transfer
of the note, at that time, and Daggett was
bound, when called upon at any time after-
wards, to indorse the note. It is not essential
to the transfer of a note that it should be in-
dorsed at the time of its delivery to the indorsee
(Smith v. Pickering, Peake's N. P. Cas., 10;
see, also, Baker v. Arnold, 1 Caines' Rep., 258,
270 ; 1 Camp. N. P., 45, 47), provided the in-
dorsement is afterwards made.
Again, it is a general principle of law, that
where one of two innocent persons must suf-
fer by the act of a third, he who enables such
third person to occasion the loss ought to
sustain it. (Lickbarrow v. Mason, 2 Term.
70.) The plaintiff is an innocent indorsee; and
the defendant, who has suffered the note to
remain in his hands after it was paid, ought
to sustain the loss, or to seek his remedy against
Daggett, the payee, if he has fraudulently in-
dorsed it.
Again, the evidence of the payment was im-
proper and illegal. The receipt and declara-
tions of Daggett, the indorser, who was no
party to the suit, ought not to be allowed to
defeat the right of a bona fide holder. The
terms of the receipt are peculiar and remark-
able, and may well induce a suspicion as to its
fairness. The evidence of Cole as to what Otis
swore as a witness at the former trial, was not
admissible, without producing the record or
postal. The rule, that testimony of what a
witness swore at a former trial is not admissi-
ble, unless accompanied with the postea, was
recognized by this court in Beala v. Guern-
tey, 8 Johns., 446-451. See, also, Str., 162 ;
Peake's Ev.. 40 ; 2 Show., 168.)
Mr. Sedgieick, contra. The note was not reg-
ularly indorsed or negotiated ; it was delivered
as a pledge, or for collateral security merely.
Daggett, evidently, did not mean to negotiate
it. Notes payable to order are transferable
only by indorsement. Though the note was
not due, yet, as the plaintiff took it knowing
that it had been paid, he took it subject to
such payment. Notice of the equities of an-
other before the execution of a contract, or
the payment of the money, is equivalent to a
notice before the contract. (Sugd. Law of
Vend., 487 ; 3 P. Wms.. 307 ; 2 Atk., 630 ; 1
Atk., 384.) The plaintiff having taken the
note, with full knowledge of ii- being paid,
does not stand in the situation of an innocent
and bona fide holder ; and having such notice,
JOHNS. REP., 11.
it can make no difference whether the note
was negotiated before or after it was due. The
j defendant was justified in making the pay-
ment, not having any knowledge of the trans-
fer of the note. The note produced to him was
not indorsed ; there was no evidence, there-
fore, of the transfer of the title or property in
the note. For aught that appeared Otis may
*have been the agent of Daggett. [*13l
(Meghan v. Mill*, 9 Johns., 64.) It cannot
be pretended that the payment was fraud-
ulent, a-s it regarded Otis, or the plaintiff, un-
less clear and positive notice of the transfer or
assignment to him was shown.
Per Curiam. The verdict is clearly accord-
ing to the justice of the case. The testimony
is abundantly sufficient to show a payment of
the note to the payee, and that the fact of such
payment was communicated to the plaintiff
before the note was transferred or delivered
to him. The only doubt that can arise is, as
the competency of the evidence admitted to
prove the payment. This evidence principally
consisted in the proof of what was sworn to
by William Otis on a former trial of this cause
in the Common Pleas of Jefferson County. It
was objected that this testimony was not ad-
missible. As a general proposition, this objec-
tion was not well taken, and was, therefore,
properly overruled. There was no pretense
that Otis, if living, would not have been a
competent witness, and no such objection
could have been made ; for, even admitting
! him to have stood in the character of an in-
I dorsee of the note, yet he was a competent
i witness to prove a payment.1 We must pre-
sume that the pendency of the former trial
was admitted, as no objection appears to have
been made at the trial on that ground. This
testimony was, then, properly admitted ; and
shows conclusively that when the note was
delivered to the plaintiff he was informed that
it had been paid, and of the manner in which
the indorsement, by Daggett, the payee, had
been procured. There was no pretense that
the payment to Daggett was fraudulent. If
so, it was matter which ought to have been
submitted to the jury. But the case does not
furnish evidence from which the jury could
reasonably have inferred fraud. The motion
for a new trial must, therefore, be denied.
Judgment for the defendant.
Cited in :. Wend., 22 ; 5 Hill, 296 ; 2 McLean,
247.
*T. DEMICK 9. D. CHAPMAN. [*132
Pleading and Prarlice — Trt*pa»* — Matter in
Justification Mu«t be Sjtetuilly Plmded.
In trespass, if the defendant has any matter of
justification or excuse, he must plead it, and can-
not five it in evidence under the general Irene,
without a special notice in writing. In trespass
tie limn* axixirtatif, on a plea of not guilty, the de-
fendant offered to prove that the goods, &c., were
the property of R. C., who had fraudulently eon-
1.-2 East, 868 : Chitty on Bills, 284 ; Peake's \. P.
6,88.
13-3
SUPREME COURT, STATE OP NEW YORK.
1814
veyed them to the plaintiff, with intent to defeat
and defraud the defendant, his creditor : and that
the property had been taken by virtue of an attach-
ment issued against the property of R. C., in favor
of the defendant. This evidence was held to be in-
admissible under the general issue.
Citations— Co. Litt., 282 ; 2 Esp. N. P., 558 ; 3 Wils.,
370.
TN ERROR, from the Court of Common Pleas
-L of Otsego County. Chapman brought an
action of trespass de bonis asportatis, against
Demick, in the court below, who pleaded not
guilty At the trial of the cause, the defend-
ant (Demick) offered to prove that the prop-
erty for which the action was brought be-
longed to one Ralph Chapman, who had
fraudulently conveyed it to the plaintiff, for
the purpose of defrauding and defeating the
defendant, a creditor of Ralph Chapman, and
that the property had been taken by virtue of
an attachment issued against the goods, &c-, of
Ralph Chapman, in favor of the defendant.
The counsel for the plaintiff below objected
to this evidence on the ground that it was not
admissible under the general issue ; that if the
defendant intended to rely on such evidence
he ought to have pleaded it specially, or given
notice of it in writing. The court below re-
jected the evidence on that ground, and the
jury found a verdict for the plaintiff. A bill
of exceptions was tendered by the defendant's
counsel to the opinion of the court.
The cause, on the bill of exceptions, was
submitted to the court without argument.
Per Curiam. The possession of the prop-
erty by the plaintiff below was, prima facie,
evidence of right ; and a mere stranger could
not lawfully deprive him of that possession.
The offer, therefore, to prove that the prop-
erty belonged to Ralph Chapman, could not
excuse the taking by the defendant, without
showing some authority or right derived from
Ralph Chapman, amounting to a justification,
and this was not admissible under the general
issue. The taking was, prima facie, a tres-
pass ; and the excuse, that it was done by
virtue of an attachment issued by a justice
of the peace, ought to have been pleaded spe-
cially. Lord Coke lays it down (Co. Litt., 282 ;
2 Esp. N. P., 558) as an established rule of
the common law, that if a defendant hath
cause of justification or excuse, he must plead
it, and cannot give it in evidence under the
general issue. This is a rule well settled in
actions for false imprisonment, and assault
133*] and battery *(8 Wils., 370); and the
reason for the rule applies in this case, it be-
ing necessary to prevent surprise, and to
enable the parties to go to trial on equal
terms, with respect to evidence, and proof of
facts.
The transfer of the property, although with
a design to defraud creditors, was valid as be-
tween the parties. And the defense, founded
on the right of a creditor to defeat it, by at-
tachment, or by a judgment and execution, is
very special, and ought to be disclosed by
pleading. The defendant in the court below
did not come in aid of the officer or act under
his command so as to bring himself within the
statute authorizing the special matter to be
given in evidence under the general issue.
90
The testimony was, therefore, properly over-
ruled, and judgment below must be affirmed.
Judgment affirmed. '
Cited in— 13 Johns., 284 ; 1 Cow., 239 ; 1 Wend., 469 ;
10 Wend., 112 ; 13 Wend., 33 ; 13 Wend., 143 : 16 Wend.,
358 : 17 Wend., 92 ; 3 N. Y., 511 ; 6 Bos., 161 ; 1 Duer,
367 ; 4 Duer, 438 : 7 Rob., 173.
STANTON «. HENRY.
Arbitrators — Award Must Comply with Submis-
sion.
Where there is a proviso, in a bond of submission
to arbitrators, that the award shall be in writing-,
under their hands and seals, an award in writing,
but not under seal, is bad.
Citation— Cro. Jac., 278, note.
IN ERROR, on certiorari from a justice's
court. Henry brought an action of as-
sumpsit, on a book account against Stanton,
before a justice. The defendant set up in bar
of the action an award of arbitrators on a sub-
mission between the parties. The bond of
submission contained a proviso that the award
should be in writing, under the hands and
seals of the arbitrators. The award produced
was in writing and signed by the arbitrators,
but not under their seals, and on that ground
it was rejected by the justice. The plaintiff's
account consisted of sundry articles, and about
twelve dollars of the amount appeared to have
accrued since the submission. The award was
not set forth, but the return stated that Henry
had paid Stanton the amount of the award,
which he accepted ; so that it would appear
that the award was against Henry. The jury
found a verdict for the plaintiff for $15.90, on
which the justice gave judgment.
*Per Curiam. In the case of SaUours [* 1 34
v. Girling, in the Exchequer Chamber (Cro.
Jac.. 278, note),'2 it was ruled that where the
bond of submission provided that the award
should be under the hands and seals of the ar-
bitrators, an award under their hands, but
without seals, was not good. This is an
authority in support of the decision of the
justice. Independent of this, however, the
judgment ought to be affirmed ; for it appears
that a very great proportion of the plaintiff's
account arose after the submission, and so
could not be affected by the award, admitting
it to be valid.
Judgment affirmed.3
Cited in— 5 Paige., 578 ; 20 Barb., 485.
TOWER v. HEWETT.
Practice — Conduct of Jury — Waiver of Irregu-
larity— Irregularity must clearly Appear in
Record.
If the parties on the trial of a cause, before a jury
in the justice's court, agree that the jury may retire
to consider of their verdict, without a constable to
1.— See 1 Chit. PL, 491-493, 497.
2.— 3 Vin. Abr.,116; S C.,Yelv., 203; Kyd on Awards,
262. 2d edit.
3.— 3 Salk., 44 ; Palmer, 109. 112 ; Pratt v. Hackett,
6 Johns., 15; Green v. Miller, /&.. 39.
JOHNS. REP., 11.
1814
YATES v. JOYCE.
134
attend them, it will amount to a waiver of any ob-
jection to the verdict on the ground of Irregularity
in the conduct of the jury, in drinking and admit-
ting other persons in the room, while they were
consulting on their verdict.
IN EHKOR, on certiorari from a justice's
court. Hewett brought an action against
Trover, before a justice of the peace, for wood
sold and delivered. The defendant admitted
the delivery of the wood, but set up an agree-
ment that it was to be paid for in whisky at
his distillery, and that the whisky had never
been demanded by the plaintiff. The cause
was tried by a jury. After the evidence was
closed, there being no constable present, it was
agreed by the parties that the jury might retire
to consider of their verdict without a constable
to attend them. After being out some time,
the jury applied to the justice to be discharged,
alleging that they could not agree ; but the
justice refused to discharge them. After some
further time, a second and third application
was made by the jury to be discharged, which
was refused. The jury then called for spirits,
and admitted other persons among them, and
after some time spent in drinking, &c., they
found a verdict for the plaintiff for 62 cents.
The drink was delivered to the jury with the
defendant's consent. The trial was on Satur-
day evening ; and when the jury brought in
their verdict, the defendant objected to receiv-
ing the verdict, on the ground of the conduct
180*] of the jury, and 'because it was past
12 o'clock. Some inquiry was made as to the
time, and the justice said* it appeared doubtful
to him whether it was past midnight or not.
He, however, gave judgment for the plaintiff
on the verdict.
Per Curiam. The consent of the parties
that the jury might retire, without any con-
stable to attend them, was a waiver of the
irregularity complained of in their conduct.
The parties, by their agreement, took from the
magistrate the power, which he would other-
wise have had, of enforcing a private deliber-
ation of the jury, and of preventing their
obtaining refreshment.
It is not certain, from the justice's return,
whether the verdict and judgment were given
on Sunday morning or not. The fact ought
to be made explicitly and clearly to appear, to
justify a reversal of the judgment on that
ground. The testimony given in the cause is
not returned, so as to enable the court to
decide as to the merits of the case ; and the
presumption ought to be in favor of the judg-
ment.
Judgment affirmed.
Cited in-^ N. Y., 534 : 1 T. & C.. UK.
13O*] *J. B. YATES r. G. JOYCE.
Practice — Parties — Action by Attianee of Judg
ment Creditor, agaiitut One who had Converted
Property of Judgment Debtor.
Where A, the assignee of a judgment against B,
whloh was a lien on the property of B, wasabout to
take out execution, and seize a certain lot of land,
aii'M'. knowing, &<:., pulled down and carried away
certain baOdlnn, in:., from off the land, whereby A
was deprived of the benefit of his judgment. Sec; it
was held that A might maintain an action on the
JOHNS. REP., 11.
I case against C for fraudulently removing the prop-
I erty of B, and converting it to his own use, with in-
I tent to defeat the judgment of A.*
Citations-Carth., 3 : 13 Vin. Abr., 653.
THIS was an action on the case. The declar-
ation contained three counts. The first
count stated that in the Term of May, 1809, at
Schnectady, to wit : &c., Charles Kane recov-
ered judgment in the Supreme Court against
John Joyce and Darcy Joyce, for $8,000 of
i debt, and $14,48 damages, which was filed
and docketed on the 8d June, 1809. On the
llth of January. 1812. Kane assigned this judg-
! ment to the plaintiff, who. on the 8th June
I following, sued out a test. fi. fa. to the sheriff
of the County of Schenectady, returnable on
the first Monday in August, directing him to
cause the debt and damages to be made of the
goods and chattels of John and Darcy Joyce,
and if sufficient goods and chattels could not
be found, then of the lands and tenements
! whereof they were seised, on the said third of
i June, 1809, &c. The execution was delivered
to the sheriff of Schenectady on the 8th of
, June, 1813, and on it a direction wax indorsed
I to levy $1,474.30, with interest on $1,456.56,
! from the'Sd June, 1809, till paid ; which said
writ the plaintiff avers to have been sued out
by him, the plaintiff, in the name of Kane, for
the sole benefit and use of the plaintiff. On
the 8th of June, 1812, the said sheriff, for want
of sufficient goods and chattels, levied upon a
certain lot in the City of Schenectady, with a
dwelling house, storehouse, and other out-
houses on the same, belonging to the said John
Joyce, together with all and singular the
| buildings, &c., the same lot of ground being
bound and held by such judgment ; yet the
defendant, well knowing the premises before
mentioned, but intending to injure and aggrieve
the plaintiff, and prevent his having satisfac-
tion of the said judgment, did, on the loth of
June, 1812, wrongfully, &c., take down, de-
molish, waste, despoil and remove away from
the said lot, and convert to his own use, a
building of the value of $250, being part and
parcel of the hereditaments and appurtenances
of the said lot, &c., well knowing that the same
were in execution, and having had notice there-
of from the sheriff, to wit: on the. &c. By
reason of which premises the plaintiff has been
deprived of obtaining satisfaction of the judg-
! ment, by virtue of the said writ, and the .sheriff
i was *preve/ited from selling the same [*1«J7
i hereditaments, with the lot of ground, and the
said lot of ground was sold fora less sum than it
would otherwise have been worth and sold for,
to wit : the sum of $1,0*0, and so the said
plaintiff saith he is injured, &c.
The second count stated the judgment and
assignment as in the first count. That the
said judgment was a lien upon that certain lot,
&c. And that the said John and Darcy Joyce
had not. at the time of filing and docketing
the said judgment, sufficient to satisfy the
same, other than the said lot, and two pasture
lot*, and the right of redeeming seven lots on
the Albany and Schenectady turnpike, and
that they then were, and are still, insolvent
*Seo Beaton v. Pratt, 2 Wendell's Rep., 385 ; Gall-
agher v. Brunell, 6 Cowen's Kep.*34fl: T'angburn v.
Hull, 1 Wendell 's Kep., 345; Niagara Bank v. Roose-
velt, 9 Cow. Rep., 409.
91
137
SUPREME COURT, STATE OF NEW YORK.
1814
and unable to pay their debts, &c. That the
plaintiff, being minded to cause the said lots to
be taken in execution on the said judgment,
did, on the 8th June, 1812, cause the same to
be duly seized and taken in execution ; yet
the defendant, well knowing that the said judg-
ment was a lien, and that the said John and
Darcy Joyce had no other estate, &c., to satisfy
the same, except the said lots, &c., and that
they were insolvent, and that the said plaintiff
did intend to take the said lots in execution,
but contriving, &c., and to defraud him of the
recovery and satisfaction of the said judgment,
&c., did, on the 8th June, 1812, demolish, &c.,
one barn, of the value of $300, &c. By reason
whereof the said lot is made of less value, to
wit : the sum of $300 ; and the said plaintiff
has been deprive'd of the benefit of the judg-
ment, to that amount.
The third count stated the judgment and
assignment as in the first, and that the judg-
ment was a lien upon that certain lot, &c. Yet
the defendant, well knowing the premises, but
contriving, &c., did, on the 8th June, 1812,
demolish, &c., one storehouse of the value of
$250, and one barn of the value of $300, being
part, &c., by reason whereof the said lot is
made of less value, to wit : the sum of $300 ;
and the plaintiff has lost the said sum, and the
benefit of the judgment to that amount. By
reason of all which premises he has sustained
damages to $3,000, &c.,
To the first count the defendant pleaded :
1. The general issue.
2. That Kane did not assign in manner and
form, &c., and tendered an issue.
138*] *3. That long previous to the time
of the alleged assignment, and long previous
to the time when the said judgment is supposed
to have been obtained, to wit : on the 26th
February, 1805, the said John Joyce, for secur-
ing the payment of $750 with interest annually,
mortgaged to the new loan officers of, the
County of Albany, all that certain house and
lot of ground situate, &c., as the same was
conveyed to him, &c., being in breadth, &c.,
together with, &c., which is the same lot in
the first count of the plaintiff's declaration pre-
tended to have been seized and sold under
execution ; that after the execution and de-
livery of the mortgage, and before the
time of the sale, to wit : on the 30th May,
1811, the said John Joyce having failed
in the payment of the yearly interest due on
the mortgage on the first Tuesday *of May, in
the said year, the said new loan officers became
seized of an absolute indefeasible estate in the
mortgaged premises, and the equity of redemp-
tion was thereby foreclosed, pursuant to the
statute, &c.
4. That previous to the seizure and sale, and
previous to the assignment, to wit: on the 21st
August, 1800, the said lot was exposed to sale
at public auction by the sheriff of Schenectady,
by virtue of two writs of fi. fa. issuing out of
the Supreme Court against John Joyce, and a
test. fi. fa. against John Darcy Joyce, and was
sold to the defendant, he being the highest bid-
der ; and the sum at which the same was struck
off having been paid to the sheriff, he executed
a conveyance in fee of the lot to the defendant,
by virtue whereof the defendant entered into
possession, and continued in the reception of
92
the rents and profits until the time of the pre-
tended assignment, and at the time of the pre-
tended seizure was, and for a long time pre-
vious had been, in the actual possession of the
same, &c.
There was a replication to the third plea,
protesting that the plea is insufficient, and pro-
testing that, at the time of the seizure and sale,
John Joyce was in legal possession, and had an
estate in fee in the premises, and that the same
was bound by the judgment ; that there was
and is no interest due to the new loan officers,
and that John Joyce was not foreclosed of all
equity of redemption in manner and form,
&c. , and this he prays, &c.
There was a replication also to the fourth
plea, protesting that the plea is insufficent.&c.,
that the judgment in favor of Kane was duly
filed and docketed in the records of the Su-
preme Court, to *wit: in the clerk's ofr [*139^
fice of the said Court, at the City of Albany,
long before the judgments or either of them
upon which the said sale and conveyance to
the defendants were made, were filed and
docketed, and this the plaintiff is ready to
verify, wherefore, &c.
To the second and third counts there was a
general demurrer and joinder.
Mr. Foot, in support of the demurrer, con-
tended that the plaintiff, having a mere lien
only, and not being in possession, could not
maintain any action against the defendant,
who is answerable only to the person in pos-
session. The defendant had no license from
the tenant in possession to enter and remove
the building. (Case v. Goes, 3 Caines' Rep.,
261.) Trespass would, therefore, lie against
him at the suit of the tenant, and, in that ac-
tion, the defendant could not set up in bar, a
recovery in the present suit. There is no pre-
cedent for such an action as this, though the
cause must have frequently occurred.
Mr. J. V. N. Tates, contra. The question
is, whether an action on the case will not lie
against a person for fraudulently endeavoring
to defeat the plaintiff's satisfaction of his judg-
ment or execution, by removing the property.
In principle, the law is in favor of such an ac-
tion, and analogous cases are to be found in
the books. In Smith v. Tonstall, Garth. Rep.,
3; 1 Danv., 194 ; 13 Vin. Abr., 553, an action
on the case was brought by an administrator,
durante minore cetate of an executor, &c. , against
the defendant, for conspiring with one 8.
against whom the testator had a judgment, on
which the administrator intended to take out
execution, to defeat that judgment, by procur-
ing S. fraudulently to confess a judgment to
the defendant, to whom he owed nothing, and
taking out execution on such judgment, and
seizing and carrying away the goods of S. , which
were sufficient to pay the plaintiff's judgment,
and took and converted them to his own use,
by reason whereof the plaintiff lost his debt.
There was a demurrer to the declaration in
that case, on the ground that no action would
lie ; but the Court of King's Bench gave judg-
ment for the plaintiff, and on a writ of error to
the House of Lords, the judgment was af-
firmed.
An action on the case is not brought upon.
any writ formed in the register, but the writ
varies according to the variety of the case. In
JOHNS. REP., 11.
1814
PANOBURN v. RAMSAY.
139
all cases where a person sustains a temporal
loss or damage by the wrong of another, an
14O*J action on the case lies at *the suit of the
Strtv injured to repair the damage. (1 Com.
ig., 178, Action on the Case.) Where one
person does an act which, if done by two,
would amount to a conspiracy, an action on
the case lies. (Cro. Jac., 198; Cro. Eliz.. 701 ;
1 Com. Dig., 222.)
The common law abhors all manner of
fraud, and wherever a person is injured by
the fraudulent acts or contrivances of another,
it will afford a remedy.
If this court, on affidavit, would have inter-
fered in favor of the plaintiff to prevent the
injury, he is clearly entitled to an action to re-
pair the wrong done to him by the defendant.
It cannot be objected that the plaintiff is only
an assignee of the judgment, for it is alleged
in the declaration that the defendant knew of
the assignment to him ; and this court will
protect the rights of an assignee.
Per Curtain. This appears to be an action
of the first impression. The books do not
furnish a precedent in its favor. It is obvious,
however, from the statement of the plaintiff's
case, in the declaration, the truth of which is
admitted by the demurrer, that he has sus-
tained damage by the act of the defendant,
which he alleges was done fraudulently, and
with intent to injure him. It is the pride of
the common law. that wherever it recognizes
or creates a private right, it also gives a rem-
edy for the willful violation of it. The facts
stated in the declaration being admitted by the
demurrer, we are to assume that the plaintiff
had acquired a legal lien on the property, by
means of the judgment in favor of Kane, and
the assignment of it to himself ; and that the
injury to the property was done with a full
knowledge of the plaintiff's rights. If, then,
there is any remedy for him, it is in this form
of action o'nlv that he can obtain it. Trespass
will not lie, for the plaintiff was not in posses-
sion. The principle which governed the decis-
ion in the case of Smith v. 2onstall, Carth., 3 ;
13 Vin. Abr. , 5o3, is somewhat analogous. It
was there ruled that an action will lie against
the defendant for confessing a judgment by
fraud, in order to prevent the plaintiff's hav-
ing the benefit of a judgment he had obtained
against him. It is a sound principle, that
where the fraudulent misconduct of a party
occasions an injury to the private rights of an-
other, he shall be responsible in damages for
the same ; and such is the case presented by
the pleadings in this cause. The plaintiff
must, accordingly have judgment upon the
demurrer.
Judgment for the plaintiff.
Distinguished— U Johns.. 214; 1 Denio. 836.
Cited fii-9 Cow.. 416 ; 8 Wend., 681 ; 17 Wend., 557;
3 Denio. ZU ; 4 N. V.. 113 ; 35 tf . Y.. 290 ; 9 Hun. 23 ;
4 Barb., 350, 522 ; 3B Harb., 2TM : 1 Hall. 216 ; 3 Rob.,
JO; 2 Leg. Obs., 330 ; 24 How. (U. S.), 412.
141*] *PANGBURNt>. RAMSAY.
Juttice- Action against, for Faint Return— Plead-
ing— Cotlt,
In an action against a justice of the peace, for
.a ful- return to a ccrtiorarl, the declaration, after
JOHNS. REP., 11.
stating the falsity of the return, averred, that " by
pretext whereof, the plaintiff was not only pre-
vented from obtaining any redress or reversal of
the judgment and proceedings aforesaid : but was
also compelled to suffer imprisonment, and endure
great pain both of body and mind, and to pay and
expend divers large sums of money," &c. This was
held, after verdict, to be a sufficient averment of
the judgment, and the loss or damage consequent
thereon. A verdict aids a title defectively set lorth.
On an arrest of judgment no costs are recoverable.
Where a judgment is given in a court below against
a plaintiff, this court, on a reversal of that judg-
ment will give such judgment as the court below
ought to have given.
Oitations-2 Johns.. 550 ; Doug., 897 : 2Tidd'ePr.,
BM,
TN ERROR, from the Albany Court of Com-
-L mon Pleas. The plaintiff in error brought
an action against the defendant, in the court
below, for a false return to a writ of ctrtiorari,
directed to him, as a justice of the peace, re-
quiring him to certify the proceedings, &c., in
a certain cause before him. as a justice, in
which Israel Nix was plaintiff, and the plaint-
iff in error defendant. The declaration stated
the issuing of the certiorari out of this court
and its delivery to the defendant, who con-
triving and intending, &c., falsely, maliciously
and deceitfully, and in deceit of the Supreme
Court, &c., to prevent the plaintiff in error
from obtaining a reversal of the said judgment,
&c., made a certain return, &c. (setting it
forth), that " the plaintiff demanded, &c., and
the defendant pleaded the general issue ; " and
" that the defendant, being called on for his
testimony, alleged that his witness was gone,
and he producing no testimony, I gave judg-
ment for the plaintiff," &c., "and that, after
the plaintiff had exhibited his proof as afore-
said, and until the said cause was finally ended,
the defendant did not, as is alleged in his affi-
davit, offer any proof to show payment of the
said demand, or any other defense." Whereas,
in truth and fact, the plaintiff did not plead
the general issue, as is alleged in the said re-
turn, but pleaded payment, &c. , and after the
plaintiff's proof before the said justice was
ended, the defendant offered to prove payment
of the plaintiff's demand, &c., which proof
the defendant (Ramsay) refused to receive or
hear ; and whereas, also, in truth and fact, the
matter of the answer and return aforesaid is
false, and altogether contrary to the truth, by
pretext whereof he, the plaintiff in error, was
not only prevented from obtaining any redress
or reversal of the judgment and proceeding
aforesaid, &c., but he, the plaintiff in error,
was also compelled to suffer imprisonment,
and endure great pains both in body and mind,
and to pay and expend divers large sums of
money, «fcc., to his damage, &c.
The defendant below pleaded the general is-
sue, and the cause being tried, the jury found
a verdict for the plaintiff, and assessed his
damages to $164.75. The court *be-[*142
low, being of opinion that a new trial ought
not to be granted, unless the plaintiff would
remit $60, part of the damages assessed by the
jury, the plaintiff, therefore, entered a remit-
i itnr for that sum; and a motion was after-
wards made in arrest of judgment, and the
court being of opinion that the declaration
was bad and insufficient, adjudged that the
plaintiff should take nothing by his bill, &c.,
and further, that the defendant recover against
93
142
SUPREME COURT, STATE OP NEW YORK.
1814
the plaintiff $40.44 for his costs and charges,
&c.
Mr. I. Hamilton, for the plaintiff in error,
contended that if there were any defects in the
declaration, they were cured by the verdict.
The general rule is well settled, that a verdict
will aid a title defectively set out, though not
a defective title. (1 Johns.. 470; 2 Johns.,
563; 2 Tidd's Prac., 826; 2 Saund., 228, n. c.)
But the declaration is substantially good.
The falsity of the return, and the consequent
injury, are the gravamen of which the plaintiff
complains, and they are stated with all requis-
ite certainty. (3 Term Rep., 767; 8 Term Rep.,
462; 2 Term Rep., 229, 230; 1 Wils., 336; Bull.
N. P., 202.)
Again, the court below ought not to have
adjudged costs te be recovered by the defend-
ant. On an arrest of judgment no costs can
be given; for it is not a case within any of the
statutes allowing costs.
As judgment was given against the plaintiff
in the court below, this court, if they are of
opinion that the judgment was erroneous, will
give such judgment as the court below ought
to have given. (2 Tidd's Prac., 1130, 1131; 2
Bac. Abr., 502.)
Mr. J. V.N. Tates, contra, insisted, 1. That
the declaration contained no averment that
the suit on the certiorari was at an end, or
that any judgment was given on the return.
In this action, as well as for a malicious pros-
ecution, it ought to appear that the original
suit was at an end.
2. The allegation of falsity in the return is
too vague and general; it is not set forth with
that precision and certainty which is requisite
to enable the court below to give judgment
with safety. (1 Chit. PI., 255; 3 Bl. Com.,
395).
3. But whether the court below were right
or wrong in arresting the judgment, this court
will see from the whole record, and may award
a venire facias de novo.
SPENCER. J., delivered the opinion of the
court:
The principal question is, whether the plaint-
143*] iff's declaration contains a *sufficient
averment that the judgment on which the writ
of certiorari was brought was reversed ; for the
allegation of falsity in the return is sufficiently
clear and explicit. The declaration states
that "by pretext whereof (the false return) he,
the said Joseph, was not only prevented from
obtaining any redress or reversal of the judg-
ment and proceedings aforesaid, of the said
Frederick, in the said suit between him, the
said Frederick, and the said Joseph ; but the
said Joseph was also compelled to suffer im-
prisonment, and to endure great pains in body
and mind, and to pay and expend divers large
sums of money." After a verdict, there can
be no doubt that this averment substantially
sets forth the affirmance of the judgment, and
the loss or damage consequent thereon. The
doctrine on this subject is well settled by Ser-
geant Williams, in a note to 1 Saund., 128.
Where there is a defect, imperfection, or omis-
sion, which would have been a fatal objection
on demurrer; yet if the issue joined be such
as necessarily »quired, on the trial, proof of
the facts defectively or imperfectly stated, or
94
omitted, and without which it is not to be pre-
sumed that either the judge would direct, or
the jury would have given the verdict, such
defect, imperfection or omission is cured by
the verdict at common law. This principle
was admitted and enforced in the case of
Bayard v. Malcolm (in error), 2 Johns., 550.
Considering this, then, an imperfect setting
forth of the affirmance of the judgment, it is
entirely cured by the verdict; for it is a settled
principle that a verdict aids a title defectively
set out. (Doug., 697; 2 Tidd's Prac., 886.)
This view of the case renders it unnecessary
to consider whether costs can be given on an
arrest of judgment. But I think it proper to
say that they are not recoverable. An arrest
of judgment is a refusal to give judgment; and
the statute concerning costs does not extend to
such a case.
The damages in this case having been found
by a jury, and this court being bound to give
such judgment as the court below ought to
have given, the judgment for the costs must
be reversed, and a judgment entered that the
plaintiff recover the damages found by the
jury, and not remitted by the plaintiff, to-
gether with the costs of this court, and his
costs in the court below; and that he be re-
stored to all things which he has lost by the
judgment below.- (2 Tidd's Prac., 1130.)
Judgment for the plaintiff.
Cited in— 13 Johns., 81; 11 .Wend., 40, 404; Hill & D.,
363; 58 Barb., 74; 2 Bradf ., 186; 2 Wood. & M., 424; 31
Ohio, 29.
*MOORE v. DAVIS. [*144
Trover — Set-Off not Allowable.
In an action of trover before a justice's court, a
set-off is not allowable; and if the defendant after-
wards bring1 an action to recover his demand against
the plaintiff, the former action is no bar under the
Act. (Sees. 36, ch. 53, sec. 6.)
Citations— Sess. 26, ch. 53, sec. 6; 1 N. B. L., 387; 7
Johns., 23 ; 8 Johns., 390.
IN ERROR, on certiorari from a justice's
court. Davis brought an action of assump-
sit, before the justice, against Moore, for work
and labor, &c., Plea, non assumpsit, and a
former suit and recovery by the defendant
against the plaintiff, in which the plaintiff neg-
lected to set off his demand.
The plaintiff having proved his cause of ac-
tion, the defendant produced a certificate of
his former suit and judgment, and contended
that the plaintiff ought to have set off his de-
mand in that action. The plaintiff offered to
prove that the action against him by the de-
fendant was in trover. This was objected to,
but the objection was overruled by the justice.
It appeared that the action was trover for a
horse, in which the plaintiff did not set off his
demand. But the justice decided that the for-
mer suit was no bar, as the plaintiff was not
bound to set off his demand in that suit: and
he gave judgment for the plaintiff for $25.
Per Curiam. The former suit by the defend-
ant, in which it was alleged that the plaintiff
ought to have set off his demand, was an ac--
tion of trover. It was an action founded on a
JOHNS. REP., 11.
1814
BENEDICT v. BEEEBE.
144
tort, and, according to the construction riven
to the Act (seas 86, ch. 53, sec. 6; 1 N. R. L.,
387), in the cases of Allen v. Ilorton, 7 Johns.,
23, and Dean <t Chamberlain v. Allen, 8
Johns., 390, on set-off was admissible. The
justice was, therefore, correct in deciding
that the former suit and trial was no bar to the
present suit. The judgment must be affirmed.
- Judgment affirmed.
145*] *BENEDICT «. BEEBEE.
Statute of Fraud* — Promite to pay for Improve-
ments, not within.
*DANFOKTH ». CULVER. [»146
Statute of Limitations — Acknowledgment or
Nete Promue, made after Commencement of
Suit, Sufficient.
In an action on a promissory note the defendant
pleaded the statute of limitations, and the plaintiff
proved that, within a year of the trial, and after
the commencement of the suit, the defendant, on
being Shown the note, admitted that he had exe-
cuted the note, but said that it was outlawed.and t hat
he meant to avail himself of the statute of limita-
tions; this was held not to be sufficient evidence of
a promise to pay within six years. An acknowl-
edgment does not revive the old dent, but is evi-
dence only of a new promise, of which the former
debt is the consideration. The acknowledgment or
promise to pay, though made after the commence-
ment of the suit, is sufficient.
Where A, in the possession of land, on which he Citations— 2 Show., 136; 2 Vent., 152; Com Kep ,
had made improvements, agreed to transfer the 54; Mod., 425; Carth., 470; 1 Ld. Itaym., 389 • 1 Sulk
'
•ameto B, who promised to pay him for the hn-
provements. it was held that a parol promise to pay
for t In- improvements on hind was not within the
statute of frauds. (Seas. 10, ch. 44. sec. 11.)
Citation— o Johns.. 272.
IN ERROR, on certiarari from a justice's
court. Bee bee brought an action against
Benedict, before the justice, and declared for
goods sold and delivered, work and labor,
money had and received, and also for damages
in not performing a certain contract relative to
the possession and improvement of a certain
farm.
The defendant objected to any evidence as
to the contract stated in the plaintiff's declara-
tion relative to the farm. The plaintiff then
waived all claim under that part of his decla-
ration, and stated that he should confine his
proofs to the other demands. In the course
of the trial some of the witnesses spoke of the
contract, but no objection was made by the
defendant's attorney. The evidence in sup-
port of the other parts of the declaration was
not clearly stated in the return ; but it seemed
that the plaintiff had given up the possession
of a farm, and some improvements made there-
on by him, to the defendant ; and there was
some evidence from which a jury might
infer that the defendant had agreed to allow
the plaintiff for the improvements, to the
amount of $15 or $20.
The jury found a verdict for the plaintiff
for $30, on which the justice gave judg-
ment.
Per Curiam. The plaintiff having expressly
abandoned all claims for damages for a breach
of the contract as to the farm, all objections
as to the statute of frauds are removed. A
promise or undertaking by the defendant to
pay the plaintiff for the improvements made
by the defendant on the land, is not void
under the statute. It was so decided by this
court in the case of Freer v. Hardenbergh, 5
Johns., 272.
The judgment below must be affirmed.
Judgment affirmed.
Cited ln-7 Cow., 264.
29; Bull. N. P., 148; 5 Burr., 2830; Cowp.. 548;
P eake's JVr. P. Cas., 93; 2 T. K.. 760; 4 East, 599; J
Esp. N. P. Cas., 155 ; 4 Esp. JV. P.. 4« ; 5 Bin., 573.
rpIIIS was an action of a#*ump*it, tried at the
-L last Onondaga Circuit, before Mr. Jvntice
Thompson. The declaration contained a count
on a promissory note made by the defend-
ant to the plaintiff, dated the 18th Sep-
tember, 1804, for $30, payable in one year
from the date, with interest. There was also
a count on a note or memorandum in writing,
dated May 30, 1803, by which the de-
fendant promised to pay the plaintiff $25
in cattle, at cash price, on the 1st day
j of October then next. There were also
! the usual money counts. The defendant
pleaded non a&umjmt, with notice in writing
of a set-off, and of the statute of limitations.
After the notes were proved by the plaintiff,
the defendant objected that they were barred
by the statute. The plaintiff then proved that
the notes in question were presented and shown
to the defendant within a year of the time of
trial, and since the commencement of the suit,
who then admitted that he bad executed them,
but observed that the notes were outlawed,
and that he meant to avail himself of the statute
of limitations ; and stated further that he had
delivered to the plaintiff three or four tons of
NOTK.— Statute of limitations— A'eir j/mrotee.
An ackiutuiedament intut Itc o/uiraleut f<» a prom-
ise to take the debt out of the statute.
"An acknowledgment is only evidence of a
promise to pay ; and unless it is conformable to,
, and maintains, the promises in the declaration,
I though it may show to demonstration that the debt
has never been paid, and is still subsisting, it has
no effect." Tanner v. Smart, 6 Barn. & (."., HUB ; Bell
v. Morrison, 1 Pet., 351 ; Van Kernen v. 1'armlee, 2
N. Y., 623; Bloodgood v. Bruen. 8 X. \'.. 388; Hul-
bert v. Nichol, 20 Hun, 454; Allen v. Webster, 15
Wend., 284 ; Winched v. Hicks, 18 X. Y.. 558; Sher-
man v. Wakeman, 11 Barb., 254 ; Brown v. Kdes, 37
Me., 318; Morgan v. Walton, 4 Pa. St.. 321 ; Uilling-
liam v. Gillingham, 17 Pa. St., 303: Bell v. Craw-
ford, 8 i , i-iii i.. 110; Koss v. Koss, 20 Aim. 105; Itui-
Statutc of Fraud*— Promise to pay for improve-
ment* nut within. See Froar v. Hardenbergh, 5
Johns., 272, note.
JOHNS. REP., 11.
7 lllng., MB; PMUrn v. l>>wia, 4 Moore & P., 1 ; Cory
v. Breton, 4 C. & P.. 462; Morrell v. Frith, 3 M. &
W., 402; Cowley v. Fumed, 12 C. B., 2»1 ; Hart v.
Prundergast, 14 M. & W., 741 ; Smith v. Thorn, 18
O. B., 134 : 10 Eng. L. & Eq.. 3»1 ; 3 Pars. Cont., ch. 8.
See full discussion in mAe to Wetzell v. Bussard, 11
Wheat.. 309, Law. ed. See, also, Sands v. Gelaton. 15
Johns., 511, n»te
146
SUPREME COURT, STATE OF NEW YORK.
1814
hay, which were to be applied to the payment
of the notes. The defendant's counsel objected
that this evidence of the admission of the
defendant of the execution of the note, ac-
companied with a declaration that he intended
to avail himself of the statute of limitations,
was not sufficient evidence of a new promise,
so as to entitle the plaintiff to recover. The
judge was of this opinion, but permitted the
plaintiff to take a verdict, subject to the
opinion of the court on a case, which was sub-
mitted without argument.
Two points were stated for the considera-
tion of the court:
1. Whether the acknowledgment of the de-
fendant, with the accompanying declaration,
was sufficient to take the case out of the statute.
2. If the acknowledgment was sufficient,
whether the plaintiff could not avail himself
of it, though made after the commencement of
the suit.1
147*] *Per Guriam. The evidence to take
this case out of the statute is, that the defend-
ant, when the notes were shown to him, " ad-
mitted that he executed them, but observed that
they were outlawed, and that he meant to
avail himself of the statute of limitations."
Even if they were to admit the authority of all
the adjudged cases on the point, in the English
courts, we should not think this to be such an
acknowledgment of the debt as would author-
ize the jury to presume a new promise. It was
for a long time held, in England, that an
acknowledgment of a debt, without a promise
to pay, was not enough to deprive the defend-
ant of the benefit of the statute. (Dickson v.
Tliompson, 2 Show., 126; 2 Vent., 152.) It
was then adopted as a rule of evidence, that an
acknowledgment of a debt was evidence only
to warrant a jury in inferring a promise to
pay ; but was not matter, if especially found,
on which the court would give judgment for
the plaintiff. (Heylinv. Hastings, Com. Rep.,
54, ; S. C., 5 Mod., 425 ; S. C., Garth., 470 ;
S. C., Ld. Raym.,389; S. C., 1 Salk., 29;
Bull. N. P., 148.) Afterwards, the courts went
further, and it was held that the slightest word
of acknowledgment, or writing an ambigu-
ous and begging letter, would have the effect
of taking the case out of the statute. (Quantock
v. England, 5 Burr., 2630; Cowp., 548;
Peake's N. P. Gas., 93.) But no case appears
to have gone so far as to consider such facts
as are stated in this case as having that effect.
In Lloyd v. Maund, 2 Term Rep., 760,2 Lord
Kenyon nonsuited the plaintiff, not thinking
that the letter of the defendant amounted to an
acknowledgment of the debt, so as to take it
out of the statute ; but the other three judges
thought the evidence sufficient to go to the
jury ; all of them, however, agreed that there
must be an acknowledgment of the debt to take
it out of the statute,
In Bryan v. Horseman,* 4 East., 599, the de-
fendant, when arrested, said : " I do not con-
sider myself as owing Mr. Bryan a farthing, it
1.— See Yea v. Fouraker, 2 Burr., 1099.
2.— See Bicknell v. Kepple, 4 Bos. & Pull., 20, or 1
New Rep., 20.
3.— See Rucker v. Hannay, n., 4 East, 604.
96
being more than six years since I contracted. I
have had the wheat, I acknowledge, and I
have paid some part of it, and £26 remains
due." This was held to be sufficient to take
the case out of the statute ; it certainly
amounted to an actual admission that part of
the debt was due.
In Clarke v. Bradshaw & Coghlan, 3 Esp. N.
P. Gas., 155 ; Peters v. Brown, 4 Esp., N. P.,
46, one of the defendants (Coghlan) wrote a
letter, within a year preceding the trial, prom-
ising to pay the demand. The other defend-
ant, after he was arrested in the suit, said that
the plaintiff *had paid money for him [*148
12 or 13 years ago ; but that he had since be-
come a bankrupt, by which he was discharged
as well by law, as from the length of time
since the debt had accrued." This Lord Ken-
yon, before whom the cause was tried, thought
was a sufficient acknowledgment to take the
case out of the statute. This was a Ni»i Prius
opinion, on which little reliance is to be placed,
and the letter written by Coghlan was abund-
antly sufficient to take the case out of the
statute.4 In all the cases on the subject, it is
considered that the acknowledgment of a debt
barred by the statute, is evidence to the jury
of a new promise, under the replication of
assumpsit in fra sex annos. It is not recon-
cilable with common sense to say that the bare
admission of the execution of the notes, in this
case, accompanied with a declaration that the
party meant to avail himself of the statute of
limitations, shall be evidence of a promise to
pay when the party protests against paying,
and against his liability.
In the case of Jones v. Moore, 5 Bin. Rep.,
573, the counsel for the defendant, arguendo,
observed, that "if an acknowledgment operat-
ed by revival of the original debt, then it
would answer, though accompanied by an ex-
press refusal to pay, which was contrary to the
opinion of the present Chief Justice, in Mur-
ray v. Tilly, and of Judge Washington, in
Reide v. Wilkinson. " Tilghman, Ch. J., in the
same case, says : " When the defendant pleads
non assumpsit infra sex annos, and the plaintiff
replies assumpsit infra sex annos, how can the
issue be found for the plaintiff without proof
of a promise, express or implied, within six
years ? " And Yeates, J. , says : ' ' Where it (the
acknowledgment of the debt) is accompanied
by circumstances or declarations, that the
party means to insist on the benefit of the stat-
ute, no promise can possibly be implied,
without violating the truth of the case, and so
it has been decided."6
This reasoning is founded in principle, and
is perfectly satisfactory. We are of opin-
ion that the defendant is entitled to judg-
ment.
Judgment for the defendant.
Cited in— 15 Johns., 3, 520 ; 20 Johns., 588 ; 5 Wend.,
352 ; 15 Wend., 288 ; 6 Johns. Ch., 290 ; 73 N. Y., 192.
4.— See Jackson v. Fairbank, 2 H. Bl., 340; Whit-
comb v. Whiting, Doug., 652; Poth., Trait, des
OlMg., n. 663, 665 ; Cod., lib. 8, tit. 40, sec. 5.
5.— See, also, Bosanquet, arguendo, in Bryan v.
Horseman, 4 East, 600-603; Cowan v. Magrauran,
Wall. Rep., 66, 71; Ferguson v. Taylor, 1 Hayw.
Rep., 20, 239 ; 2 Salk., 421, 422 ; 2 Wms. Saund., 64 b, n.
JOHNS. REP., 11.
1814
DYER v. VANDENBERGH.
149
149»] *DYER e. VANDENBERGH.
fmer—Partie* — Exchange of Pertonal Prop-
erty.
V. and D. agreed to exchange horse*, and after
they had been mutually delivered, V., being dissat-
isfied with the bargain, immediately took back Inn
horae, and D. likewise took back his, and sued V.
before a Justice, and recovered ten dollars : V. af-
NTwards brought an action of trover against D. for
the horse, so exchanged by him, and on the trial it
appeared that the horse which V. had offered to ex-
change with D. belonged to < '., who bad intrust. -.1
him to V. to sell ; it was held that admitting there
waa a valid exchange of horses, in this case, which
was very questionable, yet V. had not property suf-
fleient to maintain the action, for the property In
the horse of D., if it passed by the exchange, vested
in < '., and not in V., his agent.
IN ERROR, on certwrari from a justice's
court. Vandenbergh brought an action of
trover against Dyer, in the court below. Plea,
the general issue. It appeared from the evi-
dence stated in the return, that the parties met
on the road, and some conversation took place
between them about the exchange of horses.
V. agreed to let D. have his horse for the mare
in question, the exchange to be even, and no
questions to be asked. 1 >. said his mare was
live years old. After the horses were mutually
delivered, V. said the mare was more than five
years old, and he would not exchange, and im-
mediately took back the horse, and the de-
fendant again took the mare in question, de-
claring at the same time he would sue V., and
he afterwards brought an action against V.,
before a justice, and recovered ten dollars, the
minutes of which trial were admitted by con-
sent.
It appeared that the horse which V. had at-
tempted to exchange with D. for the mare was
not the property of V., but had been intrusted
to him by Freeman and Crane, the owners of
the horse, for sale. The jury found a verdict
for the plaintiff for $15, on which the justice
gave judgment.
Per Curiam. It is very questionable whether
what took place between the parties amounted
to a valid exchange of horses, so as to pass the
property. Admitting, however, there was a
valid exchange, the plaintiff below had no
right of action. He showed no property in
himself sufficient to maintain trover ; for he
acted in the capacity of an agent for Freeman
and Crane. The horse he let the defendant
have was their property, and the property in
the mare vested in them, if it passed from the
defendant by that exchange.1 Besides, the
merits of the exchange appear to have been
the subject of the former trial between the
parties, and ought not, therefore, to be again
1 5O*] drawn *into question. Whether that
judgment was properly obtained or not, cannot
be the subject of inquiry in this case. The
judgment below must be reversed.
Judgment of reversal.
Cited ln-13 Wend.. 64.
1.— Though a mere servant has not such a special
property as will enable him to maintain trover, yet
a bailee or trustee, or any other person who is re-
sponsible to his principal, may maintain the action :
and the lawful possession of the goods is, prima
faete, evidence of property. 2 Saund., 47 b, r, d ; 1
East, 244 ; 4 East, 214 ; 1 Salk., 290 ; Cro^liz.. 819.
JOHNS. RKP., 11. N. Y. R. 5.
VANDERUEYDEN t>. YOUNG.
1. Pleading and Practice. 2. Action for Fade
Impri»onment under Court-Martial. 3. Officer*
Composing Court- Martial act Judicially — Not
Personally Liable. 4. State Militia in Service
of United State*, Subject to it* Rule* and Article*
of War.
In a plea of justification, in an action of trespass
assault and battery, and false imprisonment,
brought by a militiaman of the State, employed as
a soldier in the service of the United States, against
the president of a court-martial, it is not necessary
to allege that a case had occurred which gave au-
thority to the President of the United States to call
forth the militia of the states, under the Act of
Congress of the 28th February, 1795, Cong. 3, 8688. 1 ,
• •!}. 91.
The President of the United States, alone, is made
the judge of the happening of such event, and he
acts upon his responsibility under the Constitution.
Nor is it necessary to allege what President, by-
name, issued his orders to the Governor of this
State, to order into the service of the United States
a portion of the militia of the State, nor the num-
ber of militia ordered out.
Nor is it necessary to allege that the officers com-
posing the court-martial were in the service of the
United States ; nor that the general who ordered the
court-martial commanded in the Army of the
United States when he issued the order, or approved
the sentence of the court.
The militia of the states, ordered Into the service
of the United States, under the Act of the 28th Feb-
ruary, 1795, are subject to the Rules and Articles of
War of the United States, though made subsequent
to that Act, which is prospective.
Whether a militiaman ordered Into the service of
the United States, under that Act, is liable to be ar-
rested, tried and punished, for desertion, &c., after
his term of service has expired. Qitcrre.
A court-martial, under the United States, consti-
tuted to try delinquent militiamen, sit as judges,
and where a party arrested waives all objection to
the jurisdiction of the court, by pleading guilty, he
cannot afterwards allege that the court had no Ju-
risdiction. The partv aggrieved by the sentence of
the court-martial, which has no power to carry the
sentence into execution, must apply for redress to
the commanding officer, to whose revision all the
proceedings of tne court are subject, and who is to
order the execution of the sentence.
Where the court has jurisdiction of the person of
the delinquent and of the subject matter, they are
not answerable for their sentence, in an action at
the suit of the party.
Citations— Act Feb. 28, 1796, sec. 4 ; Act April 10,
1806; Cowp., 172; 5 T. H., 182; 6 T. R., 284; 1 Ld.
I Say in., 407.
THIS was an action of trespass, assault and
battery, and false imprisonment. The
declaration contained two counts. The de-
fendant pleaded, 1. Not guilty. 2. A special
plea, in bar to the first count, stating that,
before the time when, &c., to wit : on the 15th
September, 1812, at, «fcc., Daniel D. Tomp-
kins, Esq., Governor of the State, &c., upon
application of, and conformable to directions
and bv authority of the President of the
United States, and pursuant to the Act of
Congress passed the 2bth of February, 1795,
ordered into the public service of the United
States -a portion of the militia of the State of
New York, and for that purpose issued his or-
ders, as such Commander-iu-Chief, dated 15th
September, 1812, whereby the officers, non
commissioned officers, musicians and privates
of Captain Higbee's Company of Light Infant-
NOTE.— Judicial iificfrt—I'rrMHutl IMiititu of. See
II. •nderaoii v. Brown, 1 Cai., 92, note; Seaman v.
I'.itien. 2 Cai.. 312. note; Yates v. Lansing, fl Johns.,
395, note; Wallsworth v. M'Cullough. 10 Johns., 93,
note.
97
150
SUPREME COURT, STATE OF NEW YORK.
1814
ry of Troy, were ordered to rendezvous at, &c. ,
on the 18th September, in the same year, and
from thence to march to Plattsburgh, there to
receive and obey the orders of Brigadier Genfe-
ral Bloomfield, the commandant of the mili-
tary force there employed in the service of the
151*] United States ; in pursuance *of which
orders, Captain Higbee's Company, of which
the plaintiff was a private, did rendezvous at,
&c., and afterwards, to wit : on the same day,
did march with and under the command of
the said Captain Higbee to Plattsburgh, where
they were stationed, and continued in the ser-
vice of the United States, under the command
of General Bloomfield, until the 30th of Sep-
tember in the same year, when the plaintiff,
without the leave or license of any or either of
his superior officers, deserted and ran away to
places unknown, without being discharged,
and his time of service not having ended.
That after the plaintiff's desertion, and before
the assaulting, &c. , is supposed to have been
done, to wit : on the 16th January, 1813,
Major-General Dearborn, by general orders of
that date, appointed a general court-martial,
composed of militia officers of the State of
New York, consisting of the defendant, being
a major in the militia, Ira Gale, Oliver Lyon,
and Moss, Jr., captains, and Lucas Goes,
William L. Marcy, and Henry Spear, lieuten-
ants, and directed the said court-martial to
proceed to the trial of all such persons, within
the counties of Rensselaer, Columbia and
Washington, as had been lawfully ordered into
the military service of the United States,
during the year 1812, and had refused or neg-
lected to obey such orders, or to perform the
duties required of them, and to convene at the
City of Hudson on Monday, the 1st of Febru-
ary, and to adjourn to one or more places
within the limits of the said counties, at the
discretion of the court. (He, the said Henry
Dearborn, having competent jurisdiction,
power and authority to issue said orders, and
to appoint the said court-martial in the manner
and form aforesaid.) That the court convened
on the said 1st of February, at the City of
Hudson, and proceeded to the trial of all such
persons, &c., and adjourned from day to day,
until the 3d of February, at the City of Hud-
son, the said court being then and there sitting
and holden, of which the defendant was presi-
dent, a charge was exhibited against the plaint-
iff for deserting on the 30th September, as
above stated, and the said plaintiff being in
court, voluntarily pleaded guilty to the said
charge, and put himself upon the mercy of
the court, and the said court having competent
jurisdiction, power and authority to take cog-
nizance of the offense charged against the
plaintiff, and to hear, try and determine the
same, did, as such court, and not otherwise,
adjudge and sentence the plaintiff, for the
offense aforesaid, to pay a fine of $75, and be
152*] *imprisoned one month, and to remain
in prison until the fine be paid ; and, as such
court, did cause the plaintiff to be placed
under guard, using no more force than was
necessary to detain him confined under guard,
until afterwards, to wit : on the 7th of Febru-
ary, the record of the proceedings being in due
form of law transmitted to the said Henry
Dearborn, who, as Major-General, approved
98
the sentence,. And the defendant averred that
from the time of issuing the orders by the
Governor, until the time that the sentence of
the court was approved of, the plaintiff con-
tinued to be one of the persons, to wit : a pri-
vate in the militia, within the counties of
Washington, Rensselaer and Columbia, and as
such had been lawfully ordered into the mili-
tary service of the United States, in the year
1812, by virtue of the Act of Congress of the
28th of February, 1795, which is the same as-
saulting, &c. And this he is ready, &c.
3. Another special plea in bar to the first
count, stating that before, &c., to wit : on the
18th September, 1812, the said plaintiff, being
a private soldier within the County of Rensse-
laer, in a company of light infantry comanded
by Captain Benjamin Higbee, was, among
others, by virtue of the Act of Congress of the
28th February, 1795, entitled "An Act to Pro-
vide for Calling forth the Militia to Execute the
Laws of the Union, Suppress Insurrections and
Repel Invasions, and to Repeal the Act now in
force for those purposes, called forth in pur-
suance of orders issued by the President to
Daniel D. Tompkius, Esq., Governor, and was
actually employed in the service of the United
States, and did actually rendezvous at the
village of Troy on the said 18th of September,
1812, and from thence (that time) continued to
be employed in the service of the United States
as such private, and marched to Plattsburgh,
and there continued in such employment and
service until, &c., he deserted, &c., whereby
he became subject to be tried and punished
by court-martial, according to the laws of the
United States. That after the plaintiff's de-
sertion, and before the assaulting, &c., to wit :
on the 3d of February, 1813, at a general court-
martial, composed of militia officers, held at
Hudson before the defendant, &c., the defend-
ant being a major and president of the court,
and Ira Gale, &c., being captains and members
of the court, and Lucas L. Goes, &c., being
lieutenants and members of the court, which
court was on the 16th of January, 1813, duly
constituted by Major-General Dearborn, by
general orders bearing date the *said [*153
day, he having competent power, &c., by
which orders the said court was directed to
try all persons within, &c., and who had re-
fused, &c., and the said plaintiff was charged
with the crime of desertion by him committed
on, »&c., and being so charged in proper per-
son, came into the said court and pleaded
guilty, and put himself upon the mercy of the
court, who did convict and adjudge the plaint-
iff guilty, and did, as such court-martial,
and not otherwise, sentence, &c., the said
court-martial having competent jurisdiction to
take cognizance of such offense and try, con-
vict and punish the plaintiff for the same.
And that the said court, of which the defend-
ant was president, did, as such court-martial,
and not otherwise, on the conviction aforesaid
order, &c., which was lawful for the said court
to do for the cause aforesaid, until afterwards,
to wit : on the 7th of February the record, &c.,
was transmitted to the said H. Dearborn who,
as Major-General, approved the sentence, and
which is the same assaulting, &c. And this
he is ready, &c.
4. A third special plea in bar to the first
JOHNS. REP.. 11.
1814
VANDERHEYDEN v. YOUNO.
153
couot. stating that by an Act of Congress, en
titled an Act, &c., passed 28th February, 1795,
it was among other things, enacted as follows:
That the militia employed in the service of the
United States shall be subject to the same rules
and articles of war as the troops of the United
States; that after the passing the said Act and
before, &c.. to wit : on the 30th September,
1812, the said plaintiff, being one of the militia
of the State of New York, was, at Plattsburgh,
in due form of law pursuant to, and by virtue
of the said Act, employed as a private, among
others, in the service of the United States,
thereby became subject to the same rules and
articles of war as the troops of the United
Slates. That bv another Act of Congress passed
the 10th April. 1806, entitled "An Act for Estab- 1
Hshing Rules and Articles for the Government j
of the Armies of the United States," it was, |
among other things, enacted as follows : "All
officers and soldiers who have received pay, or
have been duly enlisted in the service of the
United States, and shall be convicted of having
deserted the same, shall suffer death, or such
other punishment as by a court-martial shall be
inflicted." That after the passing of the said
Acts, and before, &c., on the 30th September,
1812. at Plattsburgh, the said plaintiff, being
employed in the service of the United States,
without the leave or license, privity, or con-
sent of, &c , deserted, &c., whereby he became
1 54*] *liable to be tried, convicted and pun-
ished for the said offense. That after the said
30th of September, and the desertion, &c., and
before, &c. , to wit: on the 3d of February. 1813,
at Hudson, at a general court-martial composed
of militia officers of the State of New York,
ordered by, &c., then and there having com-
petent jurisdiction, &c. , and which court was
composed of the defendant, being a major,
&c. . the said plaintiff was tried and convicted
of the crime of desertion, upon the confession
of the said plaintiff in open court, of the crime
of desertion aforesaid, as above stated : where-
upon the said court, of which the defendant
was president as such court, and not otherwise,
did adjudge.&c., the said court having compe-
tent jurisdiction, &c. (as in the third plea to the
end).
The 5th, 6th and 7th special pleas in bar to
the second count, were merely a repetition
of the special pleas to the first count.
The plaintiff demurred to the special pleas
to both counts, and assigned the following
causes of demurrer :
1. That it is not alleged in either of the said
pleas the United States were invaded, or in im-
minent danger of invasion, from any foreign
nation or Indian tribe ; nor that the laws of
the United States were opposed, or the execu-
tion thereof obstructed, in any state.
2. That it is not alleged when or where, or
in what manner, the President of the United
States issued his orders to the Governor of this
State, to order into the public service of the
United States a portion of the militia of this
State ; nor is it alleged which of the Presi-
dents of the United States issued such orders
to the Governor of this State, nor what num-
ber of the militia of the State were ordered
into the service of the United States, by au-
thority of the President.
3. That it is not alleged that the plaintiff
JOHNS. REP.. 11.
was one of the militia of this State, employed
in the service of the United States, at the time
when General Dearborn issued his orders for
calling the court-martial on the 16th of Jan-
uary. 1813 ; nor that the time for which the
plaintiff was liable to be employed in the mili-
tary service of the United States had not ex-
pired previous to issuing such orders ; nor
that the plaintiff had not been discharged from
the military sen-ice of the United States, when
employed as a private in the militia, &c.
4. That it is not alleged that General Dear-
born ever ordered the pretended sentence of
the court-martial to be executed.
*Other objections to the pleas were [*155
also raised by the plaintiff, on the argument
of the cause: 1. That it is not alleged that
General Dearborn, when he ordered the court-
martial, commanded an Army of the United
States, or had any command whatever in such
Army.
2. That it is not alleged that the defendant
was ever employed in the service of the United
States as a major of the milita of this State.
3. That it is not alleged that General Dear-
born was commanding officer of an Army of
the United States, for the time being, or that
he had any command whatever in the Army,
when he approved of the sentence of the
court-martial.
4. That it is not alleged that the defendant
was ever ordered to place the plaintiff under
guard, or to imprison him.
5. That the Rules and Articles of War set
forth in the last plea to each count, were not
enacted by the Congress of the United States
until long after the passing of the Act of the
28th of February, 1795, to wit: not until the
10th of April, 1806.
6. That it is not alleged that the President
of the United States ever issued his orders for
calling forth any portion of the militia of the
State of New York into the service of the
United States.
The cause was argued by
Mr. Paine for the plaintiff, and
Mr. J. RuHsell, contra.
The plaintiff's counsel, to show that an ac-
tion would lie against an officer of the court-
martial, cited Monty n v. Fabriga*, Cowp., 161,
169; Rafael v. Verebt, W. Bl., 983.
As to the jurisdiction of the court-martial,
which appeared to be the principal point in
the case, he contended that the fourth section
of the Act of Congress, passed the 28th of
February. 1795. Cong. 8, sess. 1, ch. 91, de-
claring that the militia employed in the service
of the United States shall be subject to the
same Rules and Articles of War as the troops
of the United States, had reference only to the
Rules and Articles of War then in existence,
and not to such as may have been subsequently
made, in the year 1806. The word "em-
ployed " must be taken *and under- [* 1 5O
stood to mean while actually employed, or in
actual service. A person in the militia can-
not be subject to punishment after the time of
his service has expired. If he were so, how
long after the expiration of the term of service
is he liable ? Is it for an indefinite period ?
Can he be tried and punished, after he has re-
turned home, has married, perhaps, and has a
family ? The Act of Congress of the llth of
99
56
SUPKEME COURT, STATE OP NKW YORK.
1814
January, 1812, to raise an additional military
force (Cong. 12, sess. 1, ch. 14, sec. 16), which
provides that a deserter from the service of the
United States may be tried by a court-martial,
and punished, although his term of enlist-
ment had elapsed previous to his arrest, shows
the sense of Congress, that without such
special regulation, a soldier could not be tried
or punished after his term of service had ex-
pired.
For the defendant, it was insisted that the
court-martial was not a court of inferior juris-
diction, though it was limited as to place, and
as to the subject matter, or persons to be tried.
The only question is, whether the plaintiff
was subject to the jurisdiction of the court-
martial. The court proceeded under the
authority of the Act of Congress of the 28th
of February, 1795. The plea states, and the
fact is admitted by the demurrer, that the
plaintiff was employed in the service of the
United States. As soon as he was employed,
he became liable to the Rules and Articles of
War. The Act is prospective ; it relates to
persons when employed, or for the time being.
The Rules and Articles of War, in 1806, are the
same as those which were in force in the year
1795. The latter (art. 1, sec. 6 ; see Graydon's
Digest, Appendix, 146) declare that all officers
and soldiers, who, having received pay, or
having been duly enlisted in the service of the
United States, who shall be convicted of
deserting, shall suffer death, or such other
punishment as a court-martial may inflict. So,
by art. 1, sec. 17 (Graydon's Digest, Appen-
dix, 156), militiamen mustered and in pay, and
joined or acting with the regular forces of the
United States, are to be governed by the Rules
and Articles of War, and subject to be tried by
court-martial, in the same manner as the regu-
lar forces, except that the court-martial is to
be composed of militia officers. To the same
effect is the 97th article of the Rules of War,
established by the Act of Congress of the 10th
of April, 1806, Cong. 9, sess. 1. Lapse of
time will not oust the court-martial of its juris-
157*] diction, *if no time is fixed ; but by
the 88th article of the Rules of War, there is a
limitation fixed for such trials to two years
after the offense committed. The plaintiff was
amenable to the court when it was ordered to
be held. A court of limited jurisdiction, act-
ing within its jurisdiction as to place and the
subject matter, cannot be made liable to an
action. The court could not know who were
ordered into the service of the United States,
until the person accused was tried. That was
to be ascertained at the trial. The plaintiff
made no objection to the jurisdiction of the
court-martial.
Again, the court-martial merely pronounces
judgment ; the sentence is to be reviewed and
executed by the Commander-in-Chief , to whom
all their proceedings are to be reported, and
who, if he approves them, confirms the sen-
tence and orders it to be executed. The
plaintiff, then, if he was aggrieved by the pro-
ceedings of the court-martial, should have ap-
plied to General Dearborn, and made his ob-
jection. That was his remedy. (Bonnell v.
Brighton, 5 Term Rep., 182.) The case of
Mostynv. Fabrigas, Cowp., 172, shows that a
court of limited jurisdiction is not liable to this
too
action, but the party aggrieved should apply
to the superior court of review, having power
to correct the proceedings of which he com-
plains. A court deciding a question within
its jurisdiction, can never be liable for their
decision. While it remains unreversed, it is
final and conclusive. (1 Salk., 396 ; 1 Ld
Raym., 467.)
SPENCER, J., delivered the opinion of the
court :
The first and second objections to the pleas
are wholly untenable. It is not necessary to
allege that a case had occurred which gave
authority to the President of the United
States to call forth the militia, under the Act
of the 28th of February, 1795. That Act,
after enumerating the cases, on the occurrence
of which the militia may be called into the
public service of the United States, vests in
the President a high discretionary power : he,
and he alone, is jmade the judge, as well of
the happening of the events, on which the
militia may be called forth, as of the number,
time and destination of that species of force.
In every case in which the President acts un-
der that law, he acts upon his responsibility
under the Constitution.
If it was necessary to. the validity of these
pleas to state, either that the United States
were invaded, or in imminent danger of inva-
sion, or that the laws of the United States were
opposed, *or the execution thereof ob- [*158
structed, the matter thus stated would be issu-
able, and the plaintiff might, in his replica-
tion, take issue on them, and oblige the de-
fendant to prove the occurrence of a case spe-
cified in the Act ; and thus every subordinate
officer, who should be called into service,
would be put to the necessity, when he was
sued for any act of discipline upon the pri-
vates, to prove to a jury that the President had
acted correctly in making his requisitions ; and
if he failed in this proof, it would subject him
to damages for an act otherwise lawful.
To countenance such a construction of the
Act would be monstrous. Every trial would
either subject all the archives of state to an
examination before the court and jury, or the
defendant would inevitably be found guilty.
No man would dare to obey the orders, either
of the President, or of his superior officer, lest,
peradventure, the President had either abused
his authority, or misjudged, in relation to the
occurrence of the fact, which authorized him
to call forth the militia.
It is a general and sound principle, that
whenever the law vests any person with a
power to do an act, and constitutes him a
judge of the evidence on which the act may
be done, and at the same time, contemplates
that the act is to be carried into effect, through
the instrumentality of agents, the person thus
clothed with power is invested with discretion
and is, quoad hoc, a judge. His mandates to
his legal agents, on his declaring the event to
have happened, will be a protection to those
agents ; and it is not their duty or business to
investigate the facts thus referred to their
superior, and to rejudge his determination. In
a military point of view, the contrary doc
trine would be subversive of all discipline ;
and as it regards the safety and security of the
JOHNS. REP., 11.
1814
HOPKINS v. SMITH.
158
United States and its citizens, the conse-
quences would be deplorable and fatal. It
was not necessary, therefore, to set forth the
occurrence of these events in the pleas, as a
justification of the defendant's conduct, be-
cause they were not, and could not be matter
of trial.
The objection that the Governor's order does
not mention which President gave the order
to him, nor what number of militia was called
out, is too refined and idle to require examina-
tion.
The third objection is also untenable.
Courts-martial for the trial of militia officers
or privates are to be composed of militia offi-
cers. (97th article of Rules and Articles of War.)
159*] It is *not a superadded qualification
that such officers shall have been in the service
of the United States.
The objections that the pleas do not allege
that General Dearborn, when he ordered the
court-martial, commanded the Army of the
United States, or that he ordered the sentence
to be executed, are not well taken. The plea
states that General Dearborn, when h§ issued
the order, was a Major-General of the Army
of the United States ; and this imports that he
then commanded the Army ; but, under the
Act of 1795, it is not required that courts-
martial should be ordered by a general com-
manding an army. The 65th article gives to
the officer ordering the court the power of
confirming and executing the sentence ; but it
does not prescribe the manner of doing either ;
and from analogy to all other courts of crimi-
nal jurisdiction, it necessarily follows, that the
court, before whom the trial is had, has the
power, after conviction, of keeping the person
of the delinquent, until the will and pleasure
of the superior officer be known.
It is also objected that the plaintiff was not
subject to the Rules and Articles of War, be-
cause they were enacted in 1806, and posterior
to the Act authorizing the President to call out
the militia.
The 4th section of the Act of the 28th of
February, 1795, provides that the militia em-
ployed in the service of the United States shall
be subject to the same rules and articles of war
as the troops of the United States. The Act
of the 10th of April, 1806, establishingthe Rules
and Articles of War, ordains, that from and
after the passing that Act, the rules and
articles therein shall be the rules and articles
by which the Army of the United States shall
be governed. It follows, necessarily, then,
that these rules and articles attached to the
militia which were called into the service of
the United States thereafter, without reference
to the time when the power to call them out
was conferred : and this independently of the
97th article, which actually extends the rules
to the militia. The Act of"l795 is clearly pros-
pective.
The only remaining objection is, that the
pleas do not state that the plaintiff's term of
service was unexpired when he was tried, and
sentenced, and put under guard.
Withoutexamining the question whether the
plaintiff was liable to be tried, after the period
lor which he was called out had elapsed, we
arc clearly of opinion that the defendant is not
liable to this action.
JOHNS. REP., 11.
*The court-martial was constituted to [* 1 GO
try all the delinquent militiamen in three coun-
ties.and the plaintiff was personally and regular-
ly before the court, and charged with the offense
of desertion. The defendant, and the other
members of the court, were sitting as judges.
It was competent to the plaintiff to have raised
the objection under consideration, or any other ;
but he waived every objection by pleading
guilty, and throwing" himself on the mercy of
the court. (Cowp., 172.) After this, can he
be permitted to turn round upon the court, and
pretend that he was not liable to their juris-
diction ? Had he urged the objection, it might
have availed him ; but his plea admits their
jurisdiction, and his own guilt. Besides, the
court-martial had not power to carry any sen-
tence into execution. Their proceedings were
liable to the review of General Dearborn, and
there he should have resorted with his excul-
patory proof. (5 Term Rep., 182; 6 Term
Rep., 248.)
The distinction taken by Mr. Justice Wilson,
in Drewey v. Coulten, 1 East, 56, in the notes,
is a very sound one. " In very few instances,"
he says, " is an officer answerable for what he
does to the best of his judgment, in cases where
he is compellable to act ; but the action lies
where the officer has an option whether he will
act or not." If the court-martial had jurisdic-
tion over the person of the plaintiff, and over
the subject matter(his offense), then, most clear
ly, the members of that court are not answera
ble. (ILd. Raym.,467.) The plaintiff admitted
both facts, by submitting to the jurisdiction of
the court ana pleading guilty. I will only add
that it would be most mischievous and perni-
cious, to subject men acting in a judicial ca-
pacity, to actions, where their conduct is fair
and impartial, when they are uninfluenced by
any corrupt or improper motives, for a mere
mistake of judgment. In the present case, they
are called in question by a person who, by ac-
knowledging the jurisdiction of the court" and
his own guilt, never required them even to de-
liberate on any of these points or objections.
VAN NESS, J., dissented.
PL ATT, J., not having heard the argument,
gave no opinion.
Judgment for the defendant.
Distinguished— 19 Johns., 30.
Cited in— 26 Wend.. 500 : 35 N. Y., 253; 51 N. Y.. 15;
8 Hun, 386 ; » Barb., 363 : 38 Barb., .v.' (2 Donor., 416) ;
12 Wheat., 32; 7 How (U. 8.), 77, 130. 131 ; 86 Pa., 444;
48 Mo. 257 ; 3i Ind., 134 ; 11 Mich., 323.
•HOPKINS 9. SMITH. [* 1 0 1
Evidence — Proof of Partner»hip.
Two persons signing a Joint note is no evidence of
a partnership between them. If A admits that B
signed the note Jointly with him, but says that B
signed it as security only, the whole admission must
!>•• taken together. And in an action against A by
C, to whom the note was paid, for roods sold, for
an alleged deficiency in the goods. Bis a competent
witness to prove that he signed the note as security
only, not as a partner.
IN ERROR, on certiorari from a justice's
court. Hopkins sued Smith, before a jus-
tice, to recover damages for a deficiency in a
101
161
SUPREME COURT, STATE OF NEW YOKK.
1814
quantity of shingles purchased of the defend-
ant. The defendant pleaded in abatement,
that the shingles were sold to the plaintiff and
one J. H., who gave their joint note in pay-
ment tor the same, and that if the defendant
was responsible at all, it must be to them
jointly. The plaintiff admitted that he and J.
H. both signed the note given to the defendant
for the shingles, but that J. H. signed the note
as security only. The justice ruled that it was
incumbent on the plaintiff to prove that J. H.
signed the note as security only. The plaintiff
then offered J. H. as a witness to prove that
fact.but he was objected to on the ground of in-
terest, and rejected by the justice, who gave
judgment for the defendant.
Per Guriam. A partnership between the
plaintiff and J. H., asset up in the plea of the
defendant, was not supported by evidence.
The fact that the plaintiff and J. H. both
signed the note given for the shingles, was no
evidence of a partnership. And when the ad-
mission of that fact, by the plaintiff, was re-
ceived in evidence, the whole admission should
have been taken together, which showed that
J. H. signed the note as security only. The
justice, in effect, required the plaintiff to prove
a negative. But even if the plaintiff was
bound to show that J. H. signed the note as a
security, and not as a partner, J. H. was a
competent witness to that fact, for he had no
interest in the event of the suit, for the note
was not in question. The judgment below
must, therefore, be reversed.
Judgment reversed.
Cited in— 15 Wend., 384 ; 2 Hill, 442 ; 25 Barb., 281 ;
6 Duer, 125.
162*] *SESSIONS v. PHINNEY,
Pleading — Insolvent's Discharge must be Specially
Pleaded.
A discharge of an insolvent granted under the
Act of the 3d April, 1811 (which was repealed in
1812). is not admissible in evidence under the general
issue, in an action commenced against the insolvent
in 1813 : the rule of pleading the discharge prescribed
by the Act of 1801 (which was revived by the repeal
of the Repealing Act of 1811), applies only to dis-
charges under that Act ; an£ the Act of 1811 re-
quired the defendant to give notice of his discharge
with the plea.
Citation— Act April 3, 1811, sess. 24, ch. 131, sec. 11.
IN ERROR, on certiorari from a justice's
court. Phinney sued Sessions, before the
justice, on a note or due bill. The defendant
pleaded non assumpsit ; and at the trial offered
in evidence his discharge under the Act for the
Benefit of Insolvent Debtors and their Credit-
ors, passed April 8, 1811, sess. 24, ch. 123.
The justice rejected the discharge, because the
defendant had given no notice of it, as required
by the fourth section of that Act, which de-
clares that if the insolvent who has obtained
his discharge be sued, &c.. " he may plead the
general issue, and give the special mat-
ter in evidence, upon and under a no-
tice given with said plea, in which no-
tice he shall be required to state that he has
been discharged," &c. The defendant offered
to prove that when he pleaded the general is-
102
me, he mentioned his discharge, but the justice
overruled the evidence.
It appeared that the suit was commenced in
March, 1813, and that the Act of the 3d April,
1811, was repealed the 14th February, 1812.
Per Curiam. The Insolvent Act of 1811,
which repealed the former Act of 1801, re-
quired the insolvent to give notice of his dis-
charge with the plea of the general issue. The
Act of the 3d April, 1801, sess. 24, ch. 131, sec.
11, allows the insolvent to plead the general
issue, and give the special matter in evidence.
By the repeal of the Act of April, 1811, the for-
mer Act of 1801 was revived. The question
is, whether the mode of pleading required un-
der the Act of 1811 is to be pursued since its
repeal. The rule of pleading prescribed by the
Act of 1801 applied only to discharges under
that Act. The discharge of the defendant was
not admissible in evidence under the general
issue, either at common law, or by the Act of
1811. Any evidence that the defendant men-
tioned his discharge at the time of pleading the
general issue, was properly overruled. The
judgment below must, therefore, be affirmed.
Judgment affirmed.
Cited in— 17 Wend., 558.
*JACKSON, EX DEM. VAN RENNSE- [*163
LAER,
HOGEBOOM.
Lease in Fee — Ejectment Under Statute — Plead-
ing— Boundary Line not Disturbed after Fifty -
one Tears,
. A lease in fee. reserving rent, was made in 1763,
and a map of the survey of the land on which the
lease was founded was also made at the same time,
and 8 or 10 years afterwards it was discovered and
known to the lessor, that one of the courses of the
survey was omitted in the lease ; but the possessions
had been taken and held according to the survey
for more than fifty years ; it was held that after
such a lapse of time and the acquiescence of the les-
sor, the • possession taken according to the survey
could not be disturbed ; and it seems that a court
of equity, in such case, would rectify the mistake
in the lease, so as to- make it conform to the survey.
Where a lease contains no clause of re-entry for
non-payment of rent, the landlord cannot maintain
ejectment under the statute.
Admitting the statute authorizing an ejectment
where the lessor has a right to re-enter, in case a
sufficient distress is not to be found on the premises
applied, it must appear that there was no sufficient
distress at the time the declaration in ejectment
was served.
Citations— 3 Johns., 270; Bac. Abr., Rent, 4.
THIS was an action of ejectment, tried at the
Columbia Circuit, 3d October. 1812, be-
fore Mr. Justice Van Ness.
The lessor of the plaintiff deduced a title
under the Claverack patent, granted to John
Van Rensselaer, including the premises in
question. The defendant gave in evidence a
lease from John Van Rensselaer to Johannes
Hogeboom, dated 8th February, 1763, and a
second lease between the same parties, the 8th
November, 1763, of all those certain parcels
of land, &c., describing them, to have and to
hold to the lessee, his heirs and assigns forever,
upon condition that the said J. Hogeboom,
JOHNS. REP., 11.
1814'
POSSON v. BROWN.
163
his heirs «fcc.. render and pay. as a yearly rent
for the premises granted, the yearly tenth
p:irt of all the produce thereof, to the lessor
anil his heirs, &c., on the first day of February
vearly, and every year during the continu-
ance of the grant.* &c., «fcc. The lessor cov-
• •uaiiti-i 1 to pay the rents or tenths so reserved,
and perform certain covenants. The lease
contained no covenant for a re-entry of the
lessor, in case of non-payment of the rent or
tenths reserved.
Johannes Hogeboom, by will, dated 19th
March, 1784, devised to his son Lawrence all
his claim and possession to all the lands pos-
senBed by him. Lawrence died about ten
years ago, and the defendant, his son. suc-
ceeded to the possession of his father. A map,
made about the time of the lease, was pro-
duced. A person who surveyed the land at
the request of the defendant, testified that all
the courses on the map were contained in the
lease, except one. and if that line be omitted,
on the construction contended for by the de-
fendant, a considerable part of the land of
Johannes Hogeboom would be excluded from
the lease.
A witness testified that he saw the map,
which was made by Philip Schuyler, about 50
years ago, being present at the survey by him,
and from which he made the map. The lease
was given about the time, and the lands have
always been held according to the survey.
The witness has always understood that one
line on the map was omitted in the lease. He
1 04*l saw a *survey .about 12 or 15 years after
Schuyfer's survey, made by JamesVan Rensse-
laer, who said that the course mentioned was
not in the lease ; and then the witness went
and procured the map and showed it to Van
Rensselear, who examined it and said it was
right, and that it must be run according to the
map. The witness stated that all the land held
by him was included in the map, but if the
description in the lease was pursued, about
100 acres of his farm would be excluded ; that
he had always lived on his farm since the year
1 763, and the whole of the land in the map
had been held as it was now held.
It was proved that the defendant admitted
he had not paid any rent since he had been in
possession of the farm. There had always
been sufficient distress on the land, though on
the east side of the road there had been no
property, except cattle, which were occasion-
ally pastured there ; and in February there
was nothing on the land on the east side of the
road on which a distress could be made. It
did not appear that any rent had ever been de-
manded. Notice to quit was proved.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on a case made,
which was submitted to the court without ar-
gument.
Per Ouriam. 1. The first question is,
whether the defendant is to hold according to
the courses and distances in the lease of the
3th of November, 1763, or according to the
map made by Schuyler, contemporaneously
with the lease; Schuyler also having made the
survey on which the lease was founded.
It seems to be admitted that there is a mis-
take in the lease ; and it I* very clear that a
.JOHNS. RKP.. 11.
court of equity, after so long an acquiescence,
would rectify the mistake. But it is not neces-
sary to send the party to that court. In the
case of .lii--t.-M.it v. Dvtfendurf <t ZoUer, 3 Johns.,
270. we held that a possession of 88 years
was not to be disturbed, because, from a re-
cent survey, it did not correspond with par-
tition deeds executed 60 years before. We
considered the parties, and tho^e who claimed
under them, concluded by so long an acqui-
escence, and that every legal presumption,
and every consideration of policy, required
that this evidence of right should 'in- taken to
be conclusive.
In this case, the lands have been held 51
years, according to the survey. Twelve or
fifteen years after giving the lease, *the [165
mistake was discovered by one of the agents
of the lessor, and, on the production of the
map, the agent declared that the line must be
run according to the map. The agent certainly
could not bind the principal : but this furnishes
evidence, that in all human probability the
principal was made acquainted with the dis-
crepancy between the map and survey, and
acquiesced in the land being held according
to the map.
\i would appear, however, that there is some
land (how much is not stated) held by the de-
fendant, without the survey ; the same prin-
ciple applies to that excess.
2. Has the plaintiff a right to maintain an
ejectment for the rents due and unpaid under
the lease of November, 1763?
The lease does not provide for a re-entry in
case the rents remain due ; but after the ha-
bendum, there follows a condition that the les-
sor, his heirs and assigns, shall pay a yearly
rent of one tenth part of the produce of the
lands demised. It may well be doubted whether
the lessor, or his representatives, have any
other remedy to be re-invested with the pos-
session than that afforded by the common law,
a demand of the rent on the land, and at the
day it became due. (Bac. Abr., Rent, K, 4.)
But, admitting that the statute authorizing an
ejectment, where the party has a lawful right
to re-enter in case there be no sufficient dis-
tress, extends to such a lease, the evidence in
this case by no means proves that there was
not a sufficient distress on the premises when
the declaration in ejectment was served. The
want of distress must IK? at the time the party
serves the ejectment. The testimony docs not
show when it was served, or that there was
then a want of distress.
Judgment for the defendant.
Cited in-6Denio, 130; 9 N. Y., 20, 25.
*POSSON 9. BROWN. r*16G
Evidence of Proceedings in Jvtlict Cmirt—Parol
Inadmusible.
Though the proceedings and Judgment in a jus-
tice's court are not strictly and technically a record,
yet i HIT" I evidence of them Is not admissible ; but
the written minutes, or evidence of the proceed-
ings, must be produced : and they may be verified
by the testimony of the justice.
Citation— 1 N. R. L., 388, seas. 36, ch. 63, «ec, 21.
108
166
SUPREME COURT, STATE OF NEW YORK.
1814
IN ERROR, on certiorari from a justice's
court. Brown brought an action of as-
sumpsit against Posson, before the justice, for
money had and received, money paid, &c. At
the trial, Brown offered a justice of the peace (P.
I. Hoes) as a witness to prove that there had been
a trial in a suit before him, in which a judgment
was given for Posson against Brown, for $16
damages, and $4.81 costs. This evidence was
objected to, but admitted bv the justice. The
defendant then offered to inquire of the wit-
ness what was the evidence before him on the
trial of that cause ; but this was overruled by
the justice, and a verdict was found for the
plaintiff for $22 and the costs.
Per Curiam. The return to the certiorari,
in this case, is very obscurely drawn, and it is
difficult to discover the real grounds of the ac-
tion. As the judgment obtained before the
other justice (Hoes), in favor of Posson against
Brown, was given in evidence, it is most proba-
ble that the present suit was brought to recover
back the money recovered of the plaintiff
below in the other suit. The judgment, at all
events, was deemed material evidence. The
question then is, whether that judgment was
duly proved.
Though the proceedings and judgment be-
fore a justice may not be, technically, a record,
yet the material parts are in writing, and ought
to be produced. Parol evidence of such pro-
ceedings is not the highest or best evidence in
the power of the party, and ought not, there-
fore, to be admitted. The magistrate should,
at least, produce the written evidence of his
proceedings, as far as the same is in his posses-
sion or power. The statute (1 N. R. L., 398,
sess. 36, ch. 53, sec. 21), directing the manner
in which the proceedings before justices of the
peace are to be authenticated, seems to regard
such proceedings as in the nature of a record.
167*] *Though the magistrate would be a
competent witness to verify the written evi-
dence of the proceedings before him, it would
be repugnant to the sound and salutary rules
of evidence to dispense with the production of
the written minutes.
Judgment reversed.
Cited in— 13 Johns., 185 ; 7 Wend., 105 ; 10 Wend.,
527 : 4 N. Y., 385 ; 6 Barb., 626 ; 25 Barb., 197 ; 2 Hilt.,
322, 437 : 4 E. D. Smith, 474.
GROUSE
v.
MABBETT AND TRIPP, Overseers of the
Poor, &c.
Pauper — Recovery of Penalty under Statute.
Overseers of the poor, who have expended money,
under an order of two justices, for the maintenance
of a pauper, cannot maintain an action on the case
against a person who brought the pauper into the
town, having no legal settlement in the State, for the
amount so expended ; but their remedy is under the
statute (sess. 36, ch. 78, sec. 8, 1 N. R. L, 279), to re-
cover the penalty given in such case.
Citation— Sess. 36. ch. 78, sec. 8, 1 N. R. L.. 279.
IN ERROR, on certwrari from a justice's
court. Mabbett and Tripp sued Grouse be-
fore the justice, and declared against him, that
104
he, without any lawful authority, brought
into the town of Washington one William-
Brown, a pauper, having no settlement there,
or within this State ; that the pauper fell sick,
and was supported by them, the plaintiffs, as
overseers, &c., under an order of two jus-
tices of the peace, until the death of the
pauper, at the expense of about twenty-
dollars ; and th'at the defendant well knew,
&c., the facts set forth. Plea, general issue.
The return stated that the plaintiffs proved alJ
the material allegations in their declaration.
The defendant offered to prove that Mabbett,
one of the plaintiffs, had said that there was
property enough left by Brown, after his
death, in the town of Washington, to defray
all the expenses ; but this evidence being ob-
jected to, was overruled by the justice, and a
judgment given for the plaintiffs for $20, with
costs.
Per Curiam. This judgment must be re-
versed. There is no principle of the common
law on which the action can be maintained.
The statute for the relief and settlement of the
poor (sess. 36, ch. 78, sec, 8, 1 N. R. L., 279)
subjects to a penalty any inhabitant who shall
receive and entertain, for the space of fifteen
days, any person who has not gained a settle-
ment in some city or town in the State, with-
out giving notice thereof, in writing, to one of
the overseers of the poor, &c. But this action
was not brought on the statute, and cannot be
sustained.
Judgment reversed.
Cited in— 15 Johns., 442.
*BISSELL v. HALL [*168
Foreign Judgments — /Statute of Limitations.
Judgments recovered in other states are consid-
ered as simple contracts in this State, to which the
statute of limitations may be pleaded in bar.
Citation— 5 Johns., 131.
IN ERROR, on certiorari from a justice's
court. Hall sued Bissell, before the justice,
in an action of debt on a judgment obtained in
the State of Connecticut, in 1803. The defend-
ant pleaded the statute of limitations, and the
justice overruled the plea, on the ground that
it could not be pleaded in bar of an action of
debt on a judgment. There was no evidence
to take the case out of the statute, and judg-
ment was given by the court below for the
plaintiff.
Per Curiam. The plea of the statute of limit-
ations was improperly overruled by the jus-
tice. Judgments of the courts of other states
are considered in this State as simple contracts
only, to which the statute of limitations may
be pleaded. It was so decided by this court
in the case of Hubbett v. Cowdrey, 5 Johns.,
131. The judgment below must, therefore,,
be reversed.
Judgment reversed.
Overruled— 19 Johns., 162.
Cited in-7 Hun, 330.
JOHNS. REP., 11-
1814
STREETEK v. HEARSEY.
188
STREETER v. HEARSEY ET ux.
Justice Court — Jurors in, under Statute.
It la a good caiue of challenge to a juror, in a jus-
tice's court, that he is not a freeholder of the town
in which the cause is tried. (Act., seas. 86, ch. 53,
sec. 9, 1 X. R. L.. 801.)
Citation-Seas. 38, ch. 53, sec. 9. 1 X. R. L., 391.
IN KRROR, on eertiarari from a justice's
court. Hearsey and his wife sued Streeter,
before a justice in Antwerp, in the County of
Jefferson ; and issue being joined, a venire was
issued, at the request of the defendant, to
summon a jury. The jury being called, on
the return of the venire, two of the jurors were
objected to by the defendant, on the ground
that they were not freeholders. One of the
jurors stated that he had a freehold in the
County of Otsego. and the other that he had
a freehold in the town of Rutland, in Jefferson
County ; and the return stated that they were
admitted and sworn as jurors. A verdict was
found for the plaintiff, on which the justice
gave judgment.
1 69*] *Per Curiam. The statute (sess. 86,ch.
85, sec. 9. 1 N. R. L., 391) requires the jurors in
a justice's court to be freeholders of the town
where the cause is to be tried. It is not stated
positively in what town the cause was tried,
out it was certainly tried in the County of Jef-
ferson, and it is necessarily to be inferred from
the return that the trial was in the town of
Antwerp. One Of the jurors challenged by
the defendant had his freehold iii the County
of Otsego, and the other in Rutland, in Jeffer-
son County. Neither of them, therefore, were
competent jurors within the Act, and it does
not appear that the objection was waived.
The judgment must be reversed.
Judgment reversed.
JACKSON, ex dem. HAMMOND,
t.
VEEDER.
Witt* — General Intent, to Prevail over Particular
Intent — Powers Equitably Conntrued.
V., by his last will, devised his real estate to E..
his wife, during her life or widowhood, with re-
mainder to his six sons, by name, as tenants in com-
mon, in fee : and, by a codicil to'.his will, devised a
certain farm " to such of his said sons, and his heirs
and assigns forever, as shall agree and live best
with their mother, which was to be signified in writ-
ing under her hand and seal, signed in the presence
of two credible witnesses, with a proviso that the
same should serve as part of the portion of such son
as his wife should allot the same to, and that his
other sons should receive so much land in lieu
thereof."
K . the widow, by an instrument, purporting to be
her last will, under hand and seal, executed in the
presence of three credible witnesses, by virtue of
the codicil in the will of her husband, '^devised the
farm, Ac., to V., 8. and A., three of the sons of V., I
their heirs and assigns forever, and in case either
of them should die without lawful issue, then to
the survivors or survivor of them, binding them, !
in every other respect, as they were bound by the !
last will of their father." This was held to be a I
good execution of the power to E. contained in the ;
codicil of the will of V.
JOHNS. REP., 11.
Powers in a court of law, as well as in a court of
equity, are to be construed equitably, so as to carry
the general intention of the power into effect.
Citations— Doug., 280 : 3 East, 441 ; 3 Burr., l u-; ;
4 T. R., 87.
THIS was an action of ejectment. Johannes
8. Veeder, being seised in fee of the prem-
ises in question, by his last will, dated the 15th
July, 1746, devised the same to his two sons,
Myndert and Simon Veeder, as tenants in com-
mon, and died seised. Myndert, the son, being
seised in fee of an undivided moiety of the
premises in question, und of other real estate,
by his last will, dated the 7th July, 1754, de-
vised his real estate to his wife Elizabeth, dur-
ing her life or widowhood ; and out of the
rents and profits of which she was to maintain
and bring up his children, until they came of
age or were married ; with remainder over,
after the death or remarriage of the wife, to
the testator's six sons, Johannes, Volkert,
Simon, Abraham, Myndert and Jacob, as
tenants in common, in fee. The testator, Myn-
dert, by a codicil to his said will, on the 19th
September. 1759, devised the farm then in his
possession, and the house, homestead, &c. ,
wherein he*dwelt, at Norman's Kill.of [*1 7O
which the premises in question were a part, unto
such of his said sons and his heirs and assigns
forever, as shall agree and live best with their
mother, which was to be signified by an instru-
ment in writing under her hand and seal,
signed in the presence of two credible wit-
nesses, with a proviso that the same should
serve as part of the portion of such son as his
wife should allot the same to. and that his
other sons should receive so much land in lieu
thereof. The devisor afterwards died seised
of the said farm, &c., and of other real estate.
Elizabeth, the widow, by an instrument,
purporting to be her last will and testament,
duly signed, sealed and published, in the pres-
ence of three credible witnesses, directed as
follows : "I give and bequeath, by virtue of
the codicil annexed to the last will and testa-
ment of Myndert Veeder, deceased, dated the
19th September, 1759. unto Volkert, Simon
and Abraham Veeder (three of the sons named
in the last will of Myndert Veeder), the farm
now in my possession, with the houses, &c.,
and homestead, where I now live in, at the
Norman's Kill, to them, their heirs and assigns
forever ; and in case either of them should die
without lawful issue, then to the survivors or
survivor of them, binding them, in every
other respect, as they were bound by the last
will and testament of their father," Myndert
Veeder."
8. 1. Veeder, one of the devisees of Johannes
Veeder, and Volkert and Abraham, two of the
sons and devisees of Myndert Veeder, with
others, conveyed eleven acres and one quarter,
part of the said farm so devised, including the
premises in question, to S. M. Veeder, under
whom the lessor of the plaintiff claimed. The
defendant, Jacob Veeder, now in possession,
claimed to bold an undivided 'part of the prem-
IMC,
The case was submitted to the court without
argument.
The question stated for the consideration of
the court was. whether the devise by Elizabeth
Veeder to Volkert, Simon and Abraham Veeder
170
SUPREME COURT, STATE OF NEW YORK.
1814
was a good execution of the power contained
in the codicil to the will of Myndert Veeder.
THOMPSON, C h. J., delivered the opinion
of the court :
The question in this case is, whether there
was a due execution by Elizabeth Veeder of
the power given her by the codicil to the will
of Myndert Veeder. By the codicil the testator
171*] devised a *certain farm, of which the
premises in question are a part, to such of his
said sons, and his heirs forever, as shall agree
and live best with their mother, which was to
be signified by an instrument in writing, under
the hand and seal of his wife, signed in the
presence of two credible witnesses. And he
further provides, that the same should serve
as a part of the portion of such son as his wife
should allot the same to, and that his other
sons should receive so much land in lieu thereof.
His widow, by an instrument in writing, pur-
porting to be her last will and testament, duly
signed, sealed and published in the presence of
three credible witnesses, devised and directed
as follows : "I give and bequeath, by virtue
of the codicil annexed to the last will and testa-
ment of Myndert Veeder, deceased, bearing
date the 19th of September, 1759, unto Volkert,
Simon and Abraham Veeder, the farm, &c.,
binding them, in every other respect, as they
were before bound by the last will and testa-
ment of their father, Myndert Veeder."
There can be no doubt that the instrument
by which the power was attempted to be ex-
ecuted, comported with the directions of the
power. It was an instrument in writing, under
her hand and seal, and signed in the presence
of two credible witnesses, and was intended
by her as an execution of the power, being made
with express reference to it.
The point upon which the doubt arises, if
any exists, is, whether the designation should
not have been to one only of the sons, aqd not
to three. The general rule of law is, that the
execution of a power must be according to the
substantial intention and purpose of the party
creating the power ; not restraining or lessen-
ing it by a narrow and rigid construction ; nor
by a loose and extended interpretation, dis-
pensing with the substance of what was meant
to be performed. (Doug., 280 ; 3 East's Rep.,
441.) Powers are to be construed equitably in
a court of law as well as in a court of equity.
(3 Burr., 1446.) And the general intention
must be carried into effect, though it may de-
feat a particular intent. (4 Term Rep., 87.)
Testing the power given in the will before us
by these rules of construction, it is evident
that the general intention of the testator was
to place the farm, of which the premises in
question are a part, at the disposal of his wife,
to enable her to live comfortably, and com-
mand the care and attention of some of her
172*] *sons ; for it was devised to such of
his sons as should agree and live best with
their mother, of which she was to be the
judge. If this was the general intent, and she
supposed the object best answered by the des-
ignation of three, it was within the general
object of the power, although the testator
might have intended the designation of one
only. It would then fall within the rule that
the particular must yield to the general inten-
10G
tion. The provision was intended for the ben-
efit of the wife, and not for the son whom she
should designate, for it was to go as a part of
his portion ; and his other sons were to receive
other lands in lieu thereof. No possible in-
jury could, therefore, accrue to the other sons,
whether the designation was to one or more.
It is, however, by no means certain that the
testator intended the designation to one only
of his sons. The grammatical construction
will not altogether bear out this interpretation,
though it bests comports with the probable in-
tention of the testator. This would, however,
be too narrow and rigid a construction to carry
into effect the real and substantial object of
the power.
The plaintiff is entitled to judgment.
Judgment for the plaintiff.
Cited in— 2 Barb., 80 ; 8 Daly, 461.
*BELL t>. DOLE.
[*173
Penalty — Penal Statutes Construed Strictly.
A person who has administered an oath under the
authority given by the Act (sess. 33, ch. 141 ; see 1
N. R. L., 385), without his name being- inserted in a
commission of dedimus potestatem, is not liable to
the penalty given by the Act of the 2d of April,
1801, sess. 24, ch. 113, sec. 13, for not filing: the oath
within 6 months. (And see 1 N. R. L., 385, sess. 36,
ch. 13.)
Citation— Sess. 32, ch. 141, sess. 36, ch. 13, 1 N. R.
L., 385.
IN ERROR, on certiorari from a justice's
court. Dole, as clerk of Rensselaer
County, sued Bell, in debt for the penalty of
$25, given by the 13th section of the Act of
the 2d of April, 1801, sess. 24, ch. 113 ; sess.
36, ch. 13 ; 1 N. R. L., 384, concerning Oaths.
Upon the evidence before the justice, it ap-
peared that Bell, being a judge of the Court of
Common Pleas of Rensselaer County, on the
4th of March, 1813. administered the oaths of
office to Henry Fellers, a lieutenant in a rifle
corps, but did not file the oaths in the clerk's
office until the 4th of October following, be-
ing more than six months. Under the above
statute, the persons authorized to administer
oaths were those named in a dedimus potesta-
tem, of whom the defendant was not one. But
by an Act of 1809, sess. 32, ch. 141, judges of
the respective counties are, among others,
made, ex officio, commissioners for administer-
ing oaths to persons appointed to office. Upon
this testimony, the court below gave judg-
ment for the plaintiff for $25.43 costs.
Per Curiam. By the Act of IbOl, persons
appointed to office are directed to take and
subscribe the necessary oaths before such per-
sons as shall be appointed for that purpose, in
the nature of a dedimus potestatem. The Act
also directs how such oaths are to be disposed
of when taken, and in the section under which
the present action is brought, declares that if
any person whose name is inserted in the com-
mission of dedimus potestattm, shall not make
return of the rolls, &c., within six months, he
shall forfeit $25. It was not under this Act
that the defendant derived his authority to ad-
minister oaths ; but under the Act of 1809
JOHNS. REP., 11.
1814
LOHNIS v. JONES.
173
seas. 82, ch. 141: BOSS. 86. ch. 13 ; 1 N. R. I,.,
385, which extends the power to the judges of
the respective counties'. This Act directs the j
rolls to be disposed of in the same manner as j
prescribed in the former Act, but does not ex- j
tend the penalty for neglect. It is a settled j
rule that penal statutes are to be construed
strictly, and not extended by implication, j
Under this rule of construction, the penalty j
given by the Act of 1801 cannot be extended i
1 74*] to persons not *named in the dedimus
mlHtatem. The judgment must, accordingly,
be reversed.
Judgment reverted.*
Cited in-70 N. Y/., 588 ; 4 Abb. N. C., 110.
appears to be imperative upon the sheriff ; it
declares that " on producing and delivering
such affidavit to the sheriff or *jailer [*1 7o
of the county, where the party shall be im-
prisoned, such party shall be 'forthwith dis-
charged from prison!" The statute makes the
affidavit the authority upon which the sheriff
is to act, and does not leave it open to him to
judge whether it is true in point of fact. Thut
this is the construction to be given to the Act
is evident from the last proviso, which sub-
jects the parties to the pains and penalties of
perjury for false swearing, and makes him
liable again to be taken in execution, as if he
had never been discharged.
Judgment reverted.
S. AND A. LOIINIS v. JONES.
Sheriff — Discharge of Prisoner on Affidavit
Under Statute.
Where a pnraon havimr a family, not being1 a free-
holder, imprisoned under the Ten Pound Act, pro-
duce* to the sheriff or jailer an affidavit, conforma-
bly to the Act (seas. 32, ch. 10. or 1 K. N. L., 394, seas.
38, ch. 53, sec. 12), the sheriff or Jailer is bound j
forthwith to discharge him ; and such discharge be-
ing by due course or l.iw. no action lies on a bond
given by the party for the liberties of the jail.
Citation— Act, sees. 32, ch. 10.
IN ERROR, on ctrtinrari from a justices'
court. Jones sued S. and A. Lonnis. in
covenant on a bond, in the penalty of $36,
conditioned for the jail liberties for Adam
Lohnis. It appeared in evidence that A. Loh-
nis was committed to prison, under an execu-
tion, on the 15th of June ; and on the 15th of
July was discharged by the sheriff, upon an
affidavit made by the prisoner, conformably to
the Act (sess. 32, ch. 10; sess. 36, ch. 53, sec.
12; 1 X. R. L., 394), that he had a family,
was not a freeholder, and that he had been in
prison more than 30 days. The justice, how-
ever, gave judgment against the defendant
for $18.77, on the ground that A. Lohnis
had not remained in prison more than thirty
days.
Per Curiam. It is admitted that the affidavit
upon which the prisoner was discharged was,
in point of form, conformable to the directions
of the Act (sess. 82, ch. 10), though, from the
evidence, it appeared that he had not been in
prison more than 80 days. And the question
is, whether the sheriff was bound to discharge
the prisoner upon the production of his affi-
davit ; for if it was his duty so to do, the
prisoner was discharged by due course of law,
within the condition of the bond. The Act
L— By the 10th section of the Act of the 25th of
February. 1HW (aern. 38, ch. 13; 1 N. K. L., 3H5.) con-
cerning Oaths, the Lieutenant-Governor, Chancel-
lor, Secretary of State, Attorney-General. Mayors,
({••••orders and Clerks of cities and the Judges and
< 'li-rks of the several counties are declared to be, r.r
urficia commissioners for administering the oaths of
office to civil and military officers; and by the 13th
section of the same Act, all the persons named as
such <-i MM mi>.-( HUTU, ex otticui. are to return the rolls,
&c., within 0 months. The Act is silent as to the
former practice of issuing a special commission In
the nature of a tledimwt /. .'• w<;'. 1/1, for the purpose
of administering oaths of office.
JOHNS. REP.. 11.
VOSBURGH 9. WELCH.
Justice Court — Attachment, when l**ued under
Statute — Evidence — Justice not to act on His
own Knowledge-^ Liability of Justice — Dam-
ages.
If a justice of the peace issues an attachment
under the Act (sess. 31, ch. 204, sec. 21), against tin-
property of a person, as an absent debtor, without
any proof on oath, before him. of absence or con-
cealment of the debtor, he is liable us a trespasser.
Satisfactory proof, as required by the Act. means
legal evidence, or such as would be received in the
ordinary course of judicial proceeding*. A mere
return to an execution that the defendant could
not be found, is not the satisfactory proof re-
quired.*
In an action of trespass quare claiuum, &c., et de
lionif ntix>rtittix. brought against a justice for issu-
ing an attachment against the goods of the plaintiff.
as an absent or absconding debtor, without legal
proof of the fact of concealment, the restoration of
the property attached, to the plaintiff before suit,
cannot be pleaded in bar of the action, nor pui* anr-
reln continuance, but it may be admitted as evidence
in mitigation of damages.
Citations— Sess. 31, ch. 204, sec. 23 ; 9 Johns., 75: 6
fJac. Abr.. 628.
was an action of trespass, tried before
J. Mr. Justice Van Ness, at the Columbia
Circuit, in 1812. The declaration contained
several counts, for trespass quare clausum f re-
git, et de, bo ni* a*\wrtatis.
At the trial the plaintiff's counsel, pursuant
to previous notice for that purpose, called on
the defendant to produce two writs of attach-
ment, issued by the defendant as justice of
the peace, against the plaintiff, or that he
would offer copies of them in evidence. The
originals not being produced, the copies were
offered by the plaintiff. The first was dated
the 25th October. 1811, under the hand and
seal of the defendant, reciting that " whereas
satifactory proof entitling the plaintiff to a
writ of attachment, according to the law in
•Sec Jackson v. Kobinson. 4 Wendell's. 436 ; Scott
v. Ely, 4 l>i.. 55T> ; Kogers v. Mulliner. 6 /<!., 507 :
Wheeler v. Tnwnsend, 3 /•'.. 247 ; Hunk of Columbia
v. Attorney-General, Id., 588: Adkins v. Brewer. 3
Cow., 206.
NOTE.— Judicial nfflcen— Justice— Ptrtnnal liahUitu
of.
Jiutticcs are liahls fnr ejrtrajudicM aft*, or art* t*~
\ftnd their iuri*dictum. See Walisworth v. M'Cul-
lough, 10 Johns., 98, note, and authorities there
cited.
107
175
SUPREME COURT, STATE OF NEW YORK.
1814
such case made and provided," &c., requiring
the officer to attach the goods, &c., of the
plaintiff, &c., returnable the 3d of November,
1811. The other writ was the same, excepting
that it was dated the 28th of October, 1811,
and was made returnable the 7th of Novem-
ber. The officer to whom the attachment was
delivered, testified that he served the first writ
of attachment on the plaintiff's goods. &c., on
the 25th of October, 1811, the plaintiff being
at home at the time ; and after the property
176*] was removed, he discovered that *this
attachment, with several other writs he had
to execute, were made returnable on Sunday,
and the defendant sent word to the witness to
alter the process in his hands ; that the wit-
ness altered the attachment so as to make it
bear date the 28th of October, and to be re-
turnable on the 7th of November, 1811 ; and a
copy of it was delivered to the plaintiff, who
was at home.
It was proved, that on the return of the first
attachment, the plaintiff went to the defend-
ant, who said the cause could not be tried,
as the writ had been made returnable on Sun-
day. On being asked by the plaintiff if the
attachment was issued on the oath of any
person, the defendant answered that it had
been issued without oath. On the return of
the second writ, the plaintiff again attended
before the defendant, who was proceeding to
try the cause, when the attachment was with-
drawn. The defendant admitted that no oath
was made by any person of the plaintiff being
absent, &c., but said he had sufficient evi-
dence, which he did not, however, disclose.
The defendant gave in evidence an execu-
tion, issued by him on a judgment in his
court, against the plaintiff, on which was in-
dorsed a return of the constable, dated the 25th
of October, 1811, that neither the body nor the
property of the plaintiff was to be found.
The officer, who was a witness, stated, that
being in ill health, and unable to attend to bus-
iness, he made a return of all the process in
his hands, and resigned his office ; and that he
made no effort to take the plaintiff on the ex-
ecution. The defendant offered to prove that,
after the commencement of the suit, part of the
property had been returned to the plaintiff, on
a settlement made between him and the credi-
tor, at whose instance it had issued. This ev-
idence was objected to, and the point reserved.
A verdict was then taken for the plaintiff for
$31.50, subject to the opinion of the court on
the above case. It was agreed that if the
court should be of opinion that the defendant
was justified in issuing the attachment, then
the verdict should be entered for the defend-
ant ; or, if the plaintiff was entitled to recover,
and the testimony offered as to the return of
the property ought to have been admitted, that
the amount of the verdict should be reduced
to six cents.
The cause was submitted to the court with-
out argument.
THOMPSON, C h. J., delivered the opinion
of the court.
The statute (sess. 31, ch. 204, sec. 23) re-
177*] quires the justice, before issuing *the
attachment, to have satisfactory proof offered
him, of the departure or concealment of the
108
debtor, with intent to defraud his credit-
ors, or to avoid being personally served with
process. A mere error in judgment as to the
legality of the proof offered, would not make
the magistrate a trespasser, by issuing the at-
tachment. But such proof, in order to give
jurisdiction to the justice, ought at least, to be
colorable. He cannot act upon his own
knowledge, or mere belief on the subject, how-
ever well founded it may be. Proof, in the
sense in which it is used in the Act, means
legal evidence (9 Johns., 75), or such species
of evidence as would be received in the ordi-
nary course of judicial proceedings. The
evidence upon which the justice acted, in
this case, was not of that description. It
did not amount even to the information of the
constable, that the debtor had departed the
county, or was concealed, with intent to de-
fraud his creditors, or to avoid being served
with process. The justice might have be-
lieved the fact upon mere report, or the infor-
mation of some person in whom he had con-
fidence. But this would not have been satis-
factory proof, within the meaning of the Act ;
nor was the return of the constable, on an ex-
ecution against the debtor, any such proof. It
was altogether foreign and irrelevant. The
justice must be considered as having issued the
attachment without any proof whatever of the
departure or concealment required by the Act;
and of course, without any axithority.
The evidence offered to show that the prop-
erty taken under the attachment had been re-
stored to the plaintiff after the suit was
brought, ought to have been received in miti-
gation of damages. The plaintiff, by his ac-
tion, seeks to recover not only damages for
the taking, but also the value of the property.
It would be unjust to allow him the value,
after the property had been restored to him.
It is immaterial as to the person from whom
he received the property ; having received
it, he is not entitled to a compensation for it.
If the restoration of the property had been
made before the commencement of the suit,
it could not have been pleaded in bar of the
suit, which is as well for the taking and de-
tention, as the value of the goods ; nor, for the
same reason, could it have been pleaded puts
darrein continuance. *It follows, then, [*1 78
of course,that the evidence must be received in
mitigation of damages ; otherwise, the plaintiff
will recover for an injury which he never has
sustained. (6 Bac. Abr., 628.) The plaintiff
must, therefore, take judgment for six cents
only, according to the stipulation in the case.
Judgment for the plaintiff for six cents.
Personal liability of judicial officer not havingjuris-
diction. Cited in— 3 Cow,, 209 ; 4 N, Y., 383 ; 3 Lans.,
48 : 17 Barb., 183 ; 16 Mich., 248.
Attachment— Jurisdiction. Cited in— 3 Wend., 248;
10 Wend., 421 ; 13 Wend., 48 ; 20 Wend., 80 ; 4 N. Y.,
256; 28 N. Y., 665.
Proof required by statute to enable judicial officer
to act. ' Distinguished— 9 Barb., 384.
Cited in— 3 Wend., 603 ; 23 Wend., 640 ; 55 N. Y., 4 ;
7 Barb., 42 ; 14 Barb., 99 ; 16 Barb., 322 : 49 Barb., 94 :
62 Barb.. 442; 17 How. Pr., 561 ; 23 How. Pr., 460 ; 9
Abb. Pr., 197; Co. R. N. 8., 269; 9 Lejr. Obs.. 60.
Judicial acts void or voidable. Cited in— 4 Denio,
120; 23 How. Pr.. 460; 23 Mich., 137.
Return of property illegally tahen no bar to action.
Cited in— 17 Wend., 93; 5 Lans., 304; 42 How. Pr.,
406 ; 1 Hilt., 209 ; 41 Mich., 57.
JOHNS. REP., 11.
1814
BABCOCK v. STANLEY.
178
BABCOCK 9. STANLEY.
Contract — Offer to Perform.
In order to maintain an action for the price of
service of a chattel, the plaintiff must show a deliv-
ery, or offer to deliver. Whether a parol agree-
ment to sell or let the services of a negro slave, is
a sale of goods, within the statute of frauds. Du-
bitatur.
Citation— 2 Saund., 252, n. 3.
IN ERROR, on eertiorari from a justice's
court. Stanley brought an action against
Babcock, before the justice. On the 1st Oc-
tober, 1812, be declared on an agreement, stat-
ing that B. agreed to purchase of him the ser-
vice of a certain negro woman, for four years,
at ten dollars per annum, which 8. agreed to
accept ; and that B. had refused to perform
the contract. B. pleaded the statute of frauds.
There was no evidence that the negro woman
was delivered, or offered to be delivered, by
S. to B., or that any earnest money was paid,
or a note or memorandum in writing, made
of the agreement. The justice gave judgment
for the plaintiff below.
Per Curiam. It may be questionable wheth-
er the contract for the sale of the service of the
negro woman could be considered as a sale of
goods, &c., within the statute for the preven-
tion of frauds : but it was incumbent on the
plaintiff below to show a performance on his
part by an offer of the wench to the defend-
ant, before he called upon him for the pay-
ment of the money. (2 Saund. Rep., 252, n. 3.)
No such offer appears to have been made.
The judgment below must, therefore, be re-
versed.
Judgment reversed.
grant the same. The clause under which this
suit is brought declares that if any person
shall sell by retail any strong or spirituous
liquors, without having such license as afore-
said, &c., he shall forfeit the sum of $25.
The license proved by the defendant was not
such a one as the Act requires. The evidence
of a parol license ought not, therefore, to have
been received, and could not amount to an
authority to sell liquors. The offense having
been made out, and no sufficient justification
shown, the plaintiff was entitled to recover.
The judgment must, therefore, be reversed.
Judgment reversed.
Cited in-78 Ind., 433.
1 79*] 'LAWRENCE v. GRACY.
License to Sell Liquors — Parol, Insufficient.
In an action for retailing spirituous liquors with-
out a license (BOSS. 24. ch. Ift4 ; 1 N. K. L., 178). the de-
fendant cannot Justify under a parol license from
the supervisor, to whom he paid the sum required.
IN ERROR, on eertiorari from a justice's
court. Lawrence sued Gracy for the
penalty of $25, under the statute, passed the
7th April, 1801, sess. 24, ch. 104. sec. 9 ; 1 N.
R. L., 176, for retailing spirituous liquors
without a license. Upon the trial, it appeared
that the defendant did, on the 7th April, 1812,
being town meeting day, nell liquor in his
wagon house. The defendant, as his justifi-
cation, proved that he paid to the supervisor
of the town (Stillwater) six dollars for the li-
cense, to be applied to the use of the poor ;
and that a license was given by the supervisor
and justices to sell liquor on that day. It ap-
peared, however, that the license or permis-
sion was by parol. This was objected to, but
admitted by the justice, and the jury found
a verdict for the defendant, on which the jus-
tice gave judgment.
PerCuriam. The statute requires the license
to be in writing, under the hand and seal of
the respective commissioners authorized to
JOHNS. REP., 11.
*AGAN «. M'MANUS. [*18O
i Negotiable Paper — Notice of Non-payment —
Waiver of. What Excuse*.
A, on the 31st of July, 1811. made a note payable
to B, or order on demand, who Indorsed it to C. In
April, 1812, the maker absconded. C, having fre-
quently demanded payment of the maker, without
effect, in March, 1812, left the note with B. who was
an attorney, to collect the money ; and after A had
absconded. B offered C to take up the note, and give
him another, payable in one year ; but the offer
was not accepted by C. A and C lived in the same
place, and within 10 miles of B. It was held that
the leaving of the note with B by C was not equiva-
lent to a notice of non-payment ; nor was the offer
of B to give C another note, such a promise to pay
as would make B liable on that ground, the offer
not having been accepted ; nor was it a waiver of
notice of non-payment. The doctrine as to waiver
of notice of the dishonor of bills of exchange does
apply to promissory notes. Notice ia the ordinary
course of business, can be dispensed with only
where the insolvency of the maker is known at the
time of the indorsement.
Citations— 5 Johns., 248 ; 8 Johns., 384 : 2 Cal., 343 ;
4 Cranch. 141 ; 2 H. HI ., 609.
THIS was an action of a&sumpsit, on a prom-
issory note, dated July 31, 1811, made by
Hiram Clowes, payable on demand, with in-
terest to the defendant, or order, and by him
indorsed to the plaintiff. The cause was tried
at the Rensselaer Circuit in 1818, before the
Chief Justice.
Clowes, the maker, absconded the 29th of
April, 18J2. The defendant was indebted to
him, and had no effects in his hands from the
time the note was given to the time he went
I away. On the 17th of March, 1812, the plaint-
iff left the note with the defendant, who is an
1 attorney of this court, and desired him to ob-
tain the money of the maker. The defendant
immediately afterwards called on the maker
and demanded payment, and the maker said
. he could not pay the note. After Clowes had
absconded, the defendant told the plaintiff
that he would take up this note, and give an-
other payable in a year ; but the plaintiff re-
quired an indorser on the new note, which was
i not given.
It was proved that after the note was left
with the defendant, and after Clowes had ab-
sconded, the plaintiff stated to the defendant
that he had called upon the maker for the pay-
ment (before he left the note with the defend-
ant) until he was tired, and wished the de-
i fendant to obtain the money from Clowes.
109
180
SUPREME COURT, STATE OF NEW YORK.
1814
The plaintiff and Clowes lived in the same
town, and within 10 miles of the defendant.
The Chief Justice, on this evidence, directed
the plaintiff to be called, and he was nonsuited,
with leave to move the court to set aside the
nonsuit, and grant a new trial.
The cause was submitted to the court with-
out argument.
THOMPSON. G h. J., delivered the opinion
of the court :
The motion to set aside the nonsuit must be
denied. There was no notice of a demand of
pavment from the maker ; nor was there any
promise by the defendant to pay the note, or
other circumstances rendering such notice un-
18 1*] necessary. The note is dated *the 31st
of July, 1811. At what time it was indorsed
by the defendant does not appear. It is, how-
ever, necessarily to be inferred from the case,
that it was some time previous to the 17th of
March, 1812 : for on that day the note was
left with the defendant, by the plaintiff, for
the purpose of obtaining payment from the
maker ; and it appeared that some time previ-
ous to that day, the plaintiff had called on the
maker for payment. It is evident, therefore,
that when the note was left with the defend-
ant, it was not intended as a notice of non-pay-
ment, or a demand of payment from the in-
dorser ; for it was left, as is stated, for the
purpose of obtaining the money from the
maker.
There was no promise of payment by the de-
fendant sufficient to charge him on that ground.
There is no doubt that if an indorser of a note,
who has not had regular notice of non-payment
by the maker, does, with full knowledge of
the fact, make a subsequent promise to
pay, it is a waiver of the want of due
notice, and he may be made liable for the pay-
ment. (5 Johns., 248.) But if such promise
be a qualified or conditional one, and rejected
by the holder of the note, it is no waiver,
according to the decision of this court, in the
case of Vrainv. Colwell, 8 Johns., 384. The
promise or offer of the defendant to take up
this note, and give his own payable in one
year, was a promise of that description ; and,
having been rejected by the plaintiff, was not
binding upon the defendant.
The objection that the defendant had no
funds in the hands of Clowes, the maker, and
could, therefore, sustain no damage, by not
having received notice of non-payment, can-
not apply to this case. The consideration for
this note must be taken to have been received
by the maker, and he is the person who ought
in justice to pay it, and is bound ultimately to
make it good.
Where the money raised upon the note is re-
ceived by the indorser, as where the note is
discounted for his accommodation, and he is the
person who is ultimately to pay it, notice of
non-payment by the maker may not be neces-
sary.
There is no evidence that Clowes was insolv-
ent when he made the note, or when it was
indorsed by the defendant. The plaintiff
must, therefore, be considered as taking it in
the ordinary course of business, with an un-
derstanding of all the legal consequences at-
tached to the indorsement ; that the under-
110
taking of the indorser was conditional, that
the holder was *bound to demand pay-[*182
ment from the maker, and give reasonable
notice of non-payment, before he could call
upon the indorser.
The doctrine applicable to waiver of notice
of the dishonor of bills of exchange, does not
apply to promissory notes ; and it seems
now to be settled, in England, that if 'such
notice in the ordinary course of business can
be dispensed with in any case, it is only where
the insolvency of the maker was known at the
time of the indorsement. (2 Caines' Rep.. 343;
4 Cranch, 141; 2 H. Bl.. 609.)
Motion denied.
Cited in— 16 Johns., 154 ; 1 Cow., 406 ; 6 Wend.,
661 ; 7 Wend., 168; 23 Wend., 383; 12 How. Pr., 168 ;
13 Mich., 277.
THE PRESIDENT AND DIRECTORS OF
THE UNION BANK
v.
CLOSSEY ET AL.
Pleading — Liability of Sureties on Bond.
In an action of debt on a bond conditioned that
C., a clerk in a bank, should " well and faithfully
perform the duties assigned to and trusts reposed
in him, as first teller," &c., the plaintiffs, in their
replication, assigned breaches, that C., as first teller,
intentionally and fraudulently deceived and de-
frauded the plaintiffs, by making1 false entries and
statements in the books of the plaintiffs, of money
received and paid him, &c., by reason whereof, the
plaintiffs lost, &c., and that C., knowingly and
fraudulently , concealed and kept secret, deficien-
cies of sums of money, of which he was in arrear to
the plaintiffs, for moneys received, &c.
The defendants rejoined that the false entries, &c.,
if any, and arrearages, if any, took place and ac-
crued by means of over payments made by C., by
mistake, and not otherwise.
On demurrer, the rejoinders were held bad, for
not answering the breaches as to the fraudulent
concealment, &c., and not taking- issue on the
points tendered in the replication.
Whether the losses alleged to have been sustained
by the plaintiffs arose from fraud and concealment,
or not, was matter of fact for a jury. But admit-
ting the losses to have arisen from the fraudulent
concealment of a transaction originally innocent,
the sureties were liable on the bond.
Citation— 10 Johns.. 273.
THIS was an action of debt on a bond, upon
the condition " that if the defendant
(Clossey) shall well and faithfully perform the
duties assigned to and trusts reposed in him,
as first teller," &c., to the plaintiffs.
Pleas. 1. Non estfactum. 2. Non damniflca-
tus.
Replication to the 2d plea, assigning
breaches pursuant to the statute, to wit : *
1. That while Clossey was such first teller, he
received divers large sums of money, amount-
ing to $1,639.95, which, contrary to the intent
and meaning of the condition of the said
bond, and contrary to his duty in that behalf,
he appropriated and applied to his own use,
and has not in any manner accounted for,
&c. 2. That while the said Clossey was such
first teller, &c., he did not well and faithfully
perform the duties assigned to and trusts re-
posed in him, as such first teller, in this, that
he, the said Clossey, intentionally and fraudu-
lently deceived and defrauded the plaintiffs,
by making and keeping false and erroneous
JOHNS. REP., 11.
1814
ALEXANDER v. MAHON.
182
entries, statements and accounts in the books
of account of the plaintiffs, of the moneys by
him, from time to time, received and paid for
1 8tt*J the plaintiffs, &c., by *means whereof
another large sum of money, to wit: the sum
of $1,689.98. was lost to the plaintiffs. 8. That
while the said Clossey was such first teller, he
did not well and faithfully perform the duties \
assigned to and trusts reposed in him, &c., in ;
this, that he, as such first teller, knowinglv
and fraudulently, kept secret and concealed,
contrary to his duty as such first teller, in that
behalf, from the plaintiffs, the deficiency of a
large sum of money, to wit: other the sum of
$1,689.95, in which sum the said Clossey was
and is in arrear and deficient to the plaintiffs,
for account of moneys received bv him as such
first teller, and for money paid, &c., for a
long time, <fec. By reason whereof the said
sum of money was wholly last to the plaint-
iffs, &c.
Rejoinder, with protestation, as to the first
breach, that the sum of money mentioned, «fcc.,
never came to the hands of Clossey, nor
any other sum above $100, Arc., taking issue
thereon.
2. As to the second breach, that the false en-
tries, statements, &c., mentioned, if any, were
of and concerning divers sums of money over-
paid, by mistake of the said Clossey, as first
teller, &c., and not otherwise.
3. That as to the third breach assigned, &c.,
that the sum of $.500 only was in arrear and
deficient of all the sums mentioned, <fec., and
such deficiency and arrears accrued by reason
of over payments, by mistake.by the said Clos-
sey. &c., and not otherwise.
4 Non dainiiificatus. as to the second and
third breaches assigned, tendering issue to the
country.
General demurrers to the rejoinders to the
2d and 3d breaches, and joinder in demurrer.
The cause was submitted to the court with-
out argument. (See S. C., 10 Johns., 271.)
Per Curium. When this case was before the
court, on a former occasion, we gave a con-
struction to the condition of the bond. It
was considered as a security for the honesty
of Clossey, in his trust, and not for his com-
petency ; and that, consequently, a mistake
in overpaying a check could not be alleged
as a breach of trust. (10 Johns., 278.) The
second breach assigned in the replication al-
leges a deceit and fraud by Clossey. in keep-
ing and making false entries in the plaintiff's
1H4*1 books, by *stating that balances re-
mained in his hands, when, in truth, there
were no such balances, but smaller ones, con-
trary to his duty, by reason whereof the
plaintiffs lost $1,639.95. The third breach al-
leges that Clossey fraudulently concealed,
contrary to his duty, the deficiency of a like
sum in 'which he was in arrear, for money had
anil received, and paid and laid out on the
plaintiffs' account, between certain periods,
when he was first teller, by means whereof
the aforesaid sum was lost to the plaint-
iffs.
The rejoinders to these breaches state that
the false entries, if made, and the arrearages,
if any, took place and accrued by reason of
over payments made by Clossey, by mistake,
JOHNS. RKP., 11.
and not otherwise. To these rejoinders the
plaintiffs have demurrer, and the defendants
have joined in demurrer.
It is very clear that the rejoinders do not take
issue on the points tendered in the replications.
The plaintiffs allege a loss by the deceit and
fraudulent entries made in their books
of account; and also a loss by a fraud-
ulent concealment of a deficiency in the
moneys received by Clossey. If these losses
arose from mistakes" in the first instance inno-
cent, and the fraudulent concealment produced
a damage, the acts made use of to conceal the
mistake, in the one case, was a *uyyt*tiv faisi,
and t he concealment itself was a suppresitio teri ;
both acts are unfaithful, and are alleged to
to have produced losses. That such losses
have been produced, is matter of fact to be
shown on the trial. Admitting them to have
arisen from acts of fraud and concealment, in
regard to a transaction originally innocent,
the court have no doubt but Clossey and bis
sureties are answerable ; and for not taking
issue on the fraud, and the loss consequent
thereon, the rejoinders demurred to are bad.
Judgment for the plaintiffs, irith leave to the
defendant* to amend on payment of costs.
8. C.. 10 Johns., 271.
Cited in— 15 Wend., 316.
•ALEXANDER o. MAHON. [*185
Trover. 1. Witnesses. 2. Good* seized under
Execution, not subject to Distraint.
A sheriff who levies a fl. fa. Is not bound to leave
goods on the premises sufficient for the payment of
the rent in arrear, without notice for that purpose
from the landlord. If the sheriff, without such notice
has levied upon the goods of the tenant, the land-
lord cannot take them as a dist n •><.
I n an action of trover by a sheriff who levied on
goods without notice of any rent being1 in arrear,
against the landlord, who had distrained the same
goods, the tenant was held to be a competent wit-
ness, and evidence of his confessions inadmissible.
It seems that in such an action, the landlord can-
not show, in mitigation of damages, that the rent
was actually due.
Citations— Stat. 8 Ann., oh. 14. sec. 1 : 2 Wils., 140 ;
1. N. R.L., 434, sees. 36, cb. B3, sec., 12; 1 Str., 97 :
Woodfall's Tenants' Law, 389, 2d ed.
IN ERROR, from the Court of Common
Pleas of Herkimer County. Mahon brought
an action of trover against Alexander in the
court below. It appeared that the plaintiff
below, as sheriff, had seized and taken the
goods in question, by virtue of a fieri facias
against the goods, &c., of Jonas Churchill;
and before the goods were removed from the
possession of Churchill, the defendant below
took them as a distress, and sold them for rent.
At the trial, the plaintiff offered Churchill as a
witness, and being objected to by the defend-
ant, he was rejected by the court. The de-
fendant then offered parol evidence to prove
that Churchill had acknowledged that he and
Alexander had agreed, more than two months
prior to the seizure under the execution, that
Churchill should be the tenant of Alexander,
and should hold the premises, on which the
111
185
SUPREME COURT, STATE OF NEW YORK.
1814
goods were distrained, at a certain annual rent;
and that Alexander distrained the goods in
question for rent in arrear, under that agree-
ment, and while Churchill was in possession of
the premises. This evidence was objected to,
and rejected by the court; and a bill of ex-
ceptions was taken by the defendant below to
the opinion of the court.
The case was submitted to the court, on the
bill of exceptions, without argument.
Per Curiam. The court below undoubtedly
erred in excluding Churchill as a witness. He
stood perfectly indifferent between the parties,
for it was immaterial to him which of them
held his goods. He was entirely disinterested,
for whoever succeeded in the suit he was sure
to lose his goods. His exclusion as a witness
operated injuriously to the defendant in error.
He was, however, excluded at the instance of
the plaintiff in error. As Churchill was a good
and competent witness, the plaintiff in error
cannot avail himself of his confessions, and in
overruling the proof of these confessions, the
court below decided correctly. It does not
lie with the plaintiff in error to complain of
the rejection of that proof, after he had him-
self procured the total exclusion of the wit-
ness.
186*] *At common law, executions took
place of all debts which were not specific liens,
even of rents due to landlords. The statute of
8 Ann., ch. 14, sec. 1, gave landlords a remedy
for one year's rent, but no more. (2 Wils.,
140, Pratt, Cfi.J.) Our statute (1 N. R. L.,
434, sess. 36, ch. 63, sec. 12) is almost a
transcript of the English Statute, under which
it has been decided that the landlord is bound
to give notice to the sheriff of the rent being
due; for the sheriff is not bound, without
such notice, to know who the landlord is, or
what is in arrear. (Waring v. Dewberry, 1
Sir., 97.)'
By the seizure under the execution, the goods
were in the custody of the law, and were not,
therefore, distrainable; for it is repugnant, ex
m termini, that it should be lawful to take the
goods out of the custody of the law, and that
cannot be a pledge which cannot be reduced
into actual possession. (Woodfall's Tenants'
Law, 389, 2d edit.)
Had the defendant below offered legal proof
of rent being due, it might well be doubted
whether such proof would have availed him,
even in mitigation of damages, the act of dis-
training being illegal after the levy of the exe-
cution. It might lead to great abuse to suffer
the landlord to deprive the sheriff of his legal
possession, and thus defeat a sale of the goods
by him, and still allow the landlord to retain in
his hands, under the notion of mitigating the
damages, perhaps the whole value of the goods.
This point however, is not raised in this case,
and we give no opinion upon it. The judg-
ment below must be affirmed.
Judgment affirmed.
Distinguished— 4 Cranch C. C., 68.
Cited in— 7 Cow.. 759 ; 8 Wend., 491 ; 7 Hill, 369 : 6
Barb., 77 ; 5 Leg. Obs., 337.
1.— See, also, Palgrave v. Windham, 1 Str., 213, 214 :
Darling v. Hill, Cas. temp. Hardw., 255.
112
*W. BRYDEN
J. BRYDEN.
[*187
Negotiable Paper—Sills of ExcJiange — Reason-
able Notice, a Question of Law and Fact.
What is reasonable notice of the dishonor of a
bill is a mixed question of law and fact; but when
the facts are ascertained, it becomes purely a ques-
tion of law.
Where the holder and indorser of a bill of ex-
change both resided in the same city, proof of
notice to the indorser, within three days after ad-
vice of the dishonor of the bill, was held not to be
sufficient.
Citations— Kyd on Bills, 3d Ed., 127 ; 1 T. R., 167-
THIS was an action of assumpsit brought
against the defendant as indorser of a bill
of exchange. The cause was tried before the
Chief Justice, at the New York sittings, in
November, 1813.
The bill of exchange was dated at Baltimore,
the 23d July, 1799, drawn by C. F. C. Busche
on J. A. and D. H. Rucker, Esqs., of London,
for £120 sterling, at sixty days' sight, in favor
of William Magruder, who indorsed it to the
defendant, who indorsed it to the plaintiff.
The first of the set of exchange which had
been protested, was lost with the vessel in
which it was sent, in its passage from London
to Baltimore, in the autumn of the year 1799.
It appeared by a copy of the protest for non-
acceptance, taken from the books of the notary,
in July, 1804, by another notary (the notary
who made the protest being since dead), that
the bill was regularly protested for non-accept-
ance the 14th September, 1799; and it also ap-
peared by a copy of the protest for non-pay-
ment, that it had been regularly protested for
non-payment on the 16th November, 1799.
To prove notice to the defendant, as in-
dorser of the bill, of the non-acceptance of it,
the plaintiff's counsel read the deposition of
William Taylor, residing in Baltimore, taken
under a commission issued in the cause. The
witness stated that he received the bill in
question from W. Bryden the plaintiff, in pay-
ment of a debt, and transmitted it to his cor-
respondent in London. That some time in the
month of November, 1799, the witness re-
ceived a letter from his correspondent, advis-
ing him that the bill had not been accepted; and
within three days after the receipt of the letter,
the witness himself gave verbal notice thereof
to the defendant, who resided at the Fountain
Inn tavern in Baltimore; that the witness also
directed William O. Payne, who was then a
clerk in his employment, to give notice to the
defendant of the non-acceptance of the bill,
and the defendant afterwards acknowledged
to the witness that he had received such notice
from his clerk; that his clerk had been dead
for several years, and that the witness was the
holder of the bill at the time the notice of the
non-acceptance thereof *was so given [*188
NOTE. — Negotiable paper — Notice of dishonor —
Time to give.
The law requires reasonable diligence in giving no-
tice of dishonor. Bank of Utica v. Smith, 18 Johns.,
230 ; Mead v. Enars, 5 Cow., 303 ; Bank of U. S. v.
Davis, 2 Hill, 451 ; Corp v. McComb, 1 Johns. Cas.,
328; Manhattan Co. v. Hackley, 3 Johns. Cas., 563;
Farmers' Bank v. Vail, 21 N. Y., 485.
Where the parties reside in the same place, the
holder has until the close of the following day to
JOHNS. REP., 11.
1814
ARMSTRONG v. MASTEJJ.
188
to the defendant; the witness did not recollect
whether the notice given by Payne was verbal
or written, but the purport of it was to inform
the defendant of the non-acceptance of the bill,
and that the witness, as holder, looked to him
for the payment of it.
On this evidence, the defendant's counsel
moved for a nonsuit, on the ground that due
notice of the non-acceptance of the bill had
not been proved; but the motion was overruled
by the Chief Justice, who, in his charge to
the jury, stated that it was for them to decide,
from the testimony and the circumstances of
the case, whether or not there had been rea-
sonable and due diligence in giving notice to
the defendant of the dishonor of the bill; and
that, if they should be of that opinion, and to
which opinion he inclined, the plaintiff was
•entitled to recover. The jury found a verdict
for the plaintiff.
A motion was made to set aside the verdict,
And for a new trial.
Mr. T. V. W. Graham for the defendant.
Mr. ./',/< H.-I/I, contra. He cited Chitty on
Bills, 2d edit., 162-166; 12 East, 433; 1 Term
Rep., 168; Doug., 514.
SPENCER, J., delivered the opinion of the
court:
Taylor, the holder of the bill, and the de-
fendant, the indorser. both resided in the City
of Baltimore. The only evidence of the non-
acceptance of the bill is the deposition of Tay-
lor, who states that within three days after
the receipt of the letter advising him of the
non-acceptance of the bill, he gave verbal
notice thereof to the defendant. He also di-
rected Payne, his clerk, who is since dead,
to give notice to the defendant, who after-
wards acknowledged to Taylor that he had re-
ceived such notice from Payne; but when Payne
gave the notice does not appear. It is pre-
sumable, however, that it was after the notice
given by Taylor.
The question then is, whether notice to an
indorser, given within three days after advice
is received of the dishonor of a bill, where the
parties reside in the same place, is reasonable
notice: What is a reasonable notice in such
case, is a mixed question of law and fact; but
when the facts are ascertained, it becomes
purely a question of law. This results from
the necessity of having some fixed legal stand-
ard, by which men may not only know the
law, but be protected by it. This principle is
18J)*1 *settled in the 'English courts. (Kyd
on Bills, 3d edit., 127. and the cases cited.) In
the case of Tindall v. Brmcn, 1 Term Hep.,
167, a bill was payable on the 5th OctolHT.
The holder callea on that day, and on the 6th
and 7th, on the acceptor, and was amused by
fair 'promises. On the 7th October he gave
notice to the indorser, the parties living within
20 minutes' walk. The court held the notice
too late, and. to enforce the law, granted a
third trial. We have always required the ear-
liest notice of the protest of a bill for non-accep-
tance, or non-payment.
The Chief Justice submitted the question of
law and fact to the jury, with an intimation
in favor of the plaintiff's right to recover,
when, in my judgment, he ought to have non-
suited the plaintiff, for not proving notice to
the defendant, within a reasonable time. The
transaction, it is true, is stale, and the defend-
ant has not pleaded the statute of limitations;
but the plaintiff can derive no benefit from
these considerations. This laches ought not
to work any prejudice to the defendant, or
create any presumptions against him. There
must be a new trial, and the costs are to abide
the event of the suit.
New trial granted.
Cited in-15 Wend., 387; 21 Wend.. 644: 34 N. Y.. 553;
52 Barb., 334; 2 Daly, 473; 4 How. (U. S.), 345; 40 Ind.,
405.
ARMSTRONG ». MASTEN.
Remedy on Award — Pleading of Award.
Where an award creates a new duty, instead of
that which was in controversy, the party has his
remedy on the award, and cannot resort on the orig-
inal cause of action; for the award is a good bar to
that action.
In pleading an award in bar to an action, it is not
necessary to aver a performance of the thing
awarded, where the award is valid.
Citations— 1 Ld. Kaym., 247, 248; Salk., 60; 12 Mod.,
130; 1 Salk., 7«; 1 Ld Kaym., 122: T. Kaym., 450.
THIS was an action of covenant. The plaint-
iff declared on a covenant in a lease, dat-
ed the 1st of May, 1803, of premises in Rhine-
beck, for the term of nine years; and assigned
as a breach that the defendant did not repair,
&c. The defendant pleaded nan est factum,
with notice of the special matter to be given in
evidence, as a defense and a bar to the action.
The cause was tried before Mr. Justice Spen-
cer, at the Dutchess Circuit, in November,
1813.
The plaintiff produced and proved the lease,
and offered to prove that the demised premises
were not repaired, &c., according to the tenor
and effect of the covenant of the defendant in
the lease. The defendant gave in evidence an
agreement, or submission in writing, under
the hands and seals of the parties, dated the
5th of May, 1812, reciting an agreement as to
the repairs of a certain grist mill ami saw mill,
the property of the *plaintiff; and the [*19O
parties agreed and covenanted, within twenty
days, respectively to choose an arbitrator, who
should, within twenty days after their nomi-
nation, meet at the said mill, and there adjust
the amount in money of the repairs to be made
«lT« notice. Howard v. Ives, 1 Hill, 263; Cuyler v.
Stevens, 4 Wend., 587; Farmers' Bank v. Valf. 21 N.
Y., 488: The West Klvor Bank v. Taylor, 34 N. Y.,
12* ; Smith v. Poillon. 23 Hun. 028; Whiting v. City
of Rochester, 77 N. Y., 383; Cayujra Co. IJank v.
Hunt, 2 Hill, rtVi: Adams v. Wright, 14 Wis.. 408;
Crowe* v. Smith, 1 Maule & S.. 545: Parker v. Gor-
don, 7 (last, 385; Allen v. Edumnaon, 2 Carr. & K.,
•A" ; (iraud Bank v. Blanchard, 23 Pick., 305.
Where thr /Kirtie* lice in different plnce* notice
must be mailed by the following day. Howard v.
Ives, 1 Hill. 263; Cuyler v. Stevens, 4 Wend., 567;
JOHNS. REP., 11. N. Y. R., 5. 8
Lawson v. Farmers' Bank, 1 Ohio St., 206; Carter v.
Hurley, » N. H.,558; 1 Am. Lead. Cas.,390: Smith v.
I'.iillon. 23 Hun, '128 : Hartford Bank v. Steadman,
3 Conn.. 489; (ioodman v. Norton, 17 Me., 381;
Hou.Hutonir (tank v. l-allin, 5 dish., 546; Lenox v.
Kobertn, 2 Wheat., 373; United States v. Barker, 12
Wheat., V*; Story on Bills, sec. 288 ; Fullerton v.
liank U. S., 1 Pet., 605, n»f • in Law. ed. ; Buasard v.
Levering, 6 Wheat.. 102, note in L<nc. ed.
On the general subject, see Dan. Neg. Inst., sees.
1035-1046; 1 Par. Bills & N.. 506-520; Stewart v. Eden,
2 t'ai.. 121, note, and "tin r ni>te» there cited.
113
190
SUPREME COURT, STATE OF NEW YORK.
1814
by the defendant, and of all other things ap-
pertaining thereto, which amount the defend-
ant agreed to pay to the plaintiff, within ten
days from the time of such adjustment, &c. ;
and in case the arbritrators did not agree, they
were to elect a third, and that their award
should be final and conclusive on the parties.
By an indorsement on this agreement, each of
the parties nominated an arbitrator to carry it
into effect.
The defendant also proved and gave in evi-
dence an award reciting the submission, and
that the two arbitrators named had elected a
third arbitrator, in case of disagreement, and
that they had met and fully examined the mat-
ters submitted, &c., and awarded that the de-
fendant pay to the plaintiff the sum of $250,
&c. The award was dated the 2d of June,
1812, under the hands and seals of the three
arbitrators. The plaintiff knew of the award
being made, a few days after it was declared.
The defendant insisted that the award was a
bar to the present suit; but the plaintiff object-
ed that it was not a bar, unless pleaded with
an averment of the performance of the award,
and such performance proved at the trial.
The judge reserved the point, and after the
evidence was closed, the jury found a verdict
for the plaintiff for $250, subject to the
opinion of the court on a case, as above
stated.
The cause was submitted to the court with-
out argument.
Per Curiam. The submission and award is
a bar to this action. There were some distinc-
tions formerly made in the manner of pleading
an award, with respect to the necessity of
awarding a performance of the thing awarded.
In the case of Freeman v. Barnard, 1 Ld.
Raym., 247, 248, Lord Holt said: "Where an
award creates a new duty, instead of that
which was in controversy, the party has a rem-
edy for it upon the award; therefore, if a
party resort to demand that which was referred
and submitted, the arbitrament is a good bar
against such action. Contra: where the award
does not create a new duty, but only extin-
guishes the old duty by a release of the ac-
tion." This case is also reported in Salk., 69,
191*] and 12 Mod., 130. The *distinction
which formerly prevailed was between the
cases of verbal submission and a submission by
bond. When the submission was by bond, the
award always was considered a bar, even be-
fore performance ; because the party had his
remedy to enforce performance. But before
it was settled that assumpsit would lie upon
mutual promises, it was held, when the sub-
mission was not by deed, that the party was
bound, in pleading, to allege performance of
the award. At this day, these distinctions no
longer exist, and there is scarcely a case that
can now arise where it is requisite for the de-
fendant, in pleading an award in bar of an
action, to allege performance. This doctrine
is settled, and illustrated in the cases already
cited, and in the cases of Parsloe v. Bailey, 1
Salk., 76; Allen v. Harri*, 1 Ld. Raym., 122,
and Case v. Barber, T. Raym., 450.
Judgment for the defendant.
Cited in-4 Barb., 545: 20 Barb., 487.
114
JACKSON, exdem. SNYDER and SNYDER,
LAWRENCE.
Construction of Exception in deed — Natural
Mill-seat.
Where a partition deed contained an exception of
all places which may be found convenient for erect-
ing1 mills on a certain creek, &c., it was held to mean
only natural mill seats, or falls in the creek, and not
places where mills might be erected and supplied
with water by means of sluices, or other works of
art.
THIS was an action of ejectment brought to
recover the undivided half of the mill
seats and mills, situate in lot No. 117, in the
Scoharie patent. The cause was tried at the
Scoharie Circuit, in September, 1813, before
Mr. Justice Yates, and a verdict was taken for
the plaintiff, subject to the opinion of the
court on a case.
The plaintiff gave in evidence a deed of par-
tition, dated 18th March, 1808, between Peter
Vroman and Jacob Snyder, which recited cer-
tain lots in the Scoharie patent, held by them
in common, and, among others, lot No. 117,
which, with others, Vroman released to Sny-
der. The partition deed contained the follow-
ing clause: "Always excepted out of this in
denture of partition, all places which may be
found convenient for erecting mill or mills on
Foxe's Kill, and on any of the lots and pieces
of land hereby divided, which shall remain in
common among the said Jacob Snyder and Pe-
ter Vroman, and their heirs and assigns for-
ever. And it was agreed that each party was-
to have a free road across the other's land,
where it might be wanted, &c.
It was proved that the defendant was ia
possession of 50*acres, part of lot No. [*192
117, and that he admitted to the witness that
he claimed title from Peter Vroman by sundry
mesne conveyances ; that he had erected on the
said lot a saw mill, an oil mill, a fulling mill,
and a carding machine, about six years ago ;
that the lessors of the plaintiff were the sons
and heirs at law of Jacob Snyder. The wit-
ness testified that he never considered the
premises in question as containing a miU seat,
until after the defendant purchased, in 1804 ;.
that the water supplying the mills erected by
the defendant was taken from Foxe's Creek,
and conducted by a sluice to the distance of
forty rods, to the fulling mill and oil mill ;
that the saw mill was near the dam at the
creek side, and the water was conveyed to it
from the sluice.
Another witness testified that the defendant
and the persons through whom he derived
title had been in the quiet possession of the
premises since 1 789 ; the witness never con-
sidered the premises as containing a mill seat ;
and that there was no natural mill seat on the
premises ; that the water which carried the
mills had been obtained at great expense, by
means of a sluice from the creek, &c., and
that when the mills were erecting, several per-
sons, and Snyder among the rest, said it was
a foolish undertaking on the part of the de-
fendant.
The case was submitted to the court with-
out argument.
Per Curiam. According to the true con-
JOHNS. REP., 11,
1814
WlLLBON V. GOMPART8 ET AL.
192
struction of this exception, it applies to a nat-
ural, as contradistinguished from an artificial
mill seat. From the uncontradicted testimony
of Josias Clark, it appears that there was no
natural mill seat on the premises in question.
The water of Pose's Creek had been diverted
by the defendant, at a great expense, so as to
umlt, as it were, a place where mills can be
erected and put in motion on lot No. 117.
This is not that kind of mill seat which conies
within the obvious and reasonable meaning of
the exception in the deed. There are other
grounds upon which the defendant would be
entitled to judgment ; but the one mentioned
appears to be so entirely free from doubt that
it is unnecessary for the court to go any fur-
ther.
Judgment for the defendant.
Cited in-2 Wend., 535; 34 N. Y., 116; 4 How. (U.
8.),a75; 37 W to.. 003.
193*] *WILLSON «. GOMPARTS ET AL.
Discharge Includes both Joint and Separate
Debit.
Where one of two partners obtains his discharge
under the Insolvent Act, from all his debts, this is a
discharge from his joint as well as separate debts.
TMIIS w.-i- an action of assumpsit on a prom-
JL Usory note made by Gomparts, Nathan
and Jacobs, partners in trade, &c.
Gomparts pleaded, separately, his discharge
under the "Act for the Benefit of Insolvent
Debtors and their Creditors," passed the 3d
April, 1811. The plea, after stating the pro-
ceedings under the Act, to entitle the defend-
ant to his discharge, set it forth verbatim,
dated 6th August, 1811, by which the defend-
ant Gomparts was discharged " from all debts
due from him at the time of his said assign-
ment, or contracted for before that time,
though payable afterwards," '&c.
Nathan, also, in like manner, pleaded his
discharge under the same Act.
Jacobs, the other defendant, pleaded non
aasumpsil and payment, with notice of set-off.
The plaintiff replied to the plea of Gom-
parts, that the plaintiff ought not to be barred,
&c., li.-c.ui-- he, the said Gomparts, together
with the said Nathan and Jacobs, did assume,
&c.
The same replication was also made to the
plea of Nathan.
To each of these replications there was a
general demurrer and joinder.
Mr. 8. Jonet, Jr., in support of the demur-
rer, contended that the defendant was dis-
charged from his joint, as well as separate
debts. He cited 3 P. Wins., 25 ; Ho»ey'» case,
note A.
Mr. Golden, contra, said that our Insolvent
Act was, in terms, the same as the English
Bankrupt Law. In White v. Combe* et mL, in
which the pleadings are stated in 1 Lil. Ent.,
1U6; S. C.. 1 Rich. K. B. Prac.. 219-227, one
of three defendants pleaded his separate dis-
charge under the bankrupt law, and the
plaintiff, admitting his bankruptcy, replied
the joint contract, and there was judgment for
the plaintiff, which, in a note, is said to have
JOHNS. RKP., 11.
been affirmed, on a writ of error, in the Ex-
chequer Chamber.
•Again, a plea that the promise was [*194
made jointly with others, and not by the de-
fendant separately, is a plea in abatement, not
in bar. (Robinson & Ilartshorn v. Fisher, 3
Caines' Rep., 99.)
Mr. Wells, in reply, observed that in the case
cited from Lil. Ent. it appeared that a day
was given to the defendant to rejoin, and
there was judgment by default against him for
want of a rejoinder, and a venire tarn quam
awarded. That case could not apply here,
where the defendant demurs to the replica-
tion.
The discharge of the insolvent defendant is
from all his debts. Now the debts he owes
jointly with others are equally his debts, as
those he owes separately.
Per Curiam. This is a clear case. The in-
solvent is discharged from his joint as well as
separate debts, for, as each partner is several-
ly as well as jointly responsible for the part-
nership debts, they are equally his debts as
those contracted by him individually. The
defendants are entitled to judgment on de-
murrer.
Judgment for the defendant*.
8ICARD v. WHALE.
Lex Fori Govern* the Remedy — Foreign Dis-
charge.
Where the creditor and his debtor reside in an-
other state, and the debtor there obtains his dis-
charge under the insolvent law of that state, and to
afterwards arrested, at the suit of the creditor, in
this State, for the same debt, this court will not dis-
charge the defendant from the arrest, on filing-
common bail, nor order an ejcnneretur to be entered
on the bailpiece.
Citation— 1 Johns., 198.
MR. FAY, for the defendant, moved that
an exoneretur be entered on the bailpiece
filed in this cause. It appeared that the debt
for which the present suit was brought, was
contracted in the State of Pennsylvania, where
the parties were at that time resident, and that
the defendant, on the 27th March. 1812, ob-
tained a discharge under the insolvent laws of
that State, from imprisonment and from all
liability of his person, for any debts before
that time contracted. The plaintiff was, at
the time of the defendant's obtaining his dis-
charge, and still is, resident in Pennsylvania.
Mr. Fay cited Smith v. SmitJi, 2 Johns.,
235.
Mr. Brackett, contra, cited Smith v. SpinoUa,
1 Johns.. 198; White v. Canfield, 7 Johns.,
117; James v. Allen, 1 Dallas, 188; and Pear-
sail v. Dwight, 2 Mass. T. R, 84-89.
•THOMPSON, Ch. J. It is impossible f*195
to distinguish this case from that of Smith v.
SpinoUa. That case was decided on a sound
principle, that if a foreign creditor pursues his
debtor here, he is entitled to the remedy pro-
vided by our own laws. We look only to the
course of proceedings established in o'ur own
lit
195
SUPREME COURT, STATE OP NEW YORK.
1814
courts. The lex loci contractus is not applica-
ble on this motion. When the cause comes
to issue, and the discharge is pleaded, it will
be time enough to consider of its effect.
Per Curiam.
Motion denied.
Cited in-2 Cow., 632 ; 16 Wend., 442 ; 2 Paige, 616 ;
6 Lans., 28; 28 How. Pr., 402; 10 Abb. N. S., 113; 2
Mason, 161.
JACKSON, ex dem. TILLOTSON ET AL.,
v.
STILES.
Attorneys — Agents.
Where two attorneys are jointly concerned for a
party, they must have a joint agent appointed un-
der the rules of the court.
Where two attorneys, jointly concerned for a
plaintiff, had each a separate but not joint agent at
Utica, it was held that a service of notice of the ap-
pearance of the defendant, by affixing: it up in the
clerk's office, was good.
MR. JOHNSON, for the defendant, moved
to set aside the default entered in this
cause, and all subsequent proceedings, for ir-
regularity. The tenant, on being served with
a copy of the declaration, and notice in this
cause in Cortland County, employed an attor
ney to defend the suit. Messrs. Tillotson and
Vanderheyden, the attorneys of the plaintiff,
who resided at Albany, had no joint agent at
Utica or New York, though each of them had
a separate agent in both places. The attor-
ney for the tenant served the notice of being
retained, and the copies of the consent rules,
within the times prescribed by the rules of
the court, by causing them to be affixed up in
the clerk's office at Utica.
The plaintiff's attorneys, after the expiration
of the twenty days for the tenant's appear-
ance, entered a default, and afterwards ob-
tained a judgment thereon, and issued execu-
tion.
Mr. Tillotson for the plaintiff.
Per Curiam. Where two attorneys are
jointly concerned for a party, they should ap-
point a joint agent ; otherwise the adverse
party may be embarrassed in the service of no-
tices, and be led into mistake. The agent of
one is not necessarily the agent of both. The
default and subsequent proceedings must be
set aside.
Rule granted.
196*] *SHUTER«. PAGE.
Replevin — Pleading.
In replevin the defendant may plead non cepit
and property in himself, or a stranger.
Citations— Barnes, 364 ; Com. Dig-. Pleader, E, 2,
THIS was an action of replevin. The de-
fendant pleaded two pleas : 1. Non cepit,
on which issue was joined. 2. That the prop-
erty of the goods, &c., was in the defendant,
absque hoc, &c., with a verification.
Mr. Anthon, for the plaintiff, moved for a
116
rule that the defendant make his election as to
one of the two pleas, and that the other be
struck out. He insisted that they were incon-
sistent and could not be joined.
The plea of non cepit admits the property to
be in the plaintiff, and no precedent was to be
found in which the two pleas were joined, He
cited 1 Sellon's Prac., 331 ; Gilb. on Replev.,
181 ; Woodfall's Tenants' Law, 588 ; Barnes,
363.
Mr. Sampson, contra, cited Pangburn v.
Patridge, 7 Johns., 140; 1 Chit. PI., 541;
Barnes, 364, 365, 347 ; 1 Sellon's Prac., 299 ;
1 Tidd's Prac., 608, 609; 2 Term Rep., 237.
Per Curiam. Courts have allowed pleas in
many instances, apparently as inconsistent as
those in the present case. In Stibbard v. Glover,
Barnes 364, non cepit, property in a stranger,
and liberum tenementum were allowed to be
pleaded together, in replevin. So, not guilty
and justification may be pleaded in trespass.
We see no reason for distinguishing the pres-
ent case from those decided. (Com. Dig.
Pleader, E, 2.) The motion is denied.
Motion denied.
Cited in— 11 Barb., 385 ; 10 How. Pr., 45.
*BRISBAN AND BRANNAN [*197
•».
CAINES.
Practice — Time to put in Bail.
A defendant has four clear days after signing
final judgment, to put in bail in error.
The plaintiff may take out execution after the al-
lowance of a writ of error, and before bail is put in,
at his peril ; and if the writ of error is regularly
followed up by putting in bail, the execution will
be set aside : but if bail in error is not put in, the
writ of error is a nullity.
Citations— 3 T. R., 44 ; 2 Tidd's K. B. Pr., 1071-1073.
MR. CAINES moved to set aside the fi. fa.
issued in this cause, for irregularity. He
read an affidavit, stating that judgment having
been given against the defendant, he sued out
a writ of error, which was filed with the clerk
of this court on the 4th January last, and no-
tice thereof given to the plaintiffs' attorney ;
that on the 7th January the plaintiffs' attorney
entered up the judgment, and a fieri facias
was afterwards issued thereon, which having
been received by the sheriff of Columbia on
the 13th January, must have been taken out
on or before the llth January, so that there
were not four days between the signing of the
judgment and the issuing of the execution. It
did not appear that bail in error had been put
in.
The defendant contended that by the set-
tled practice of the Court of K. B. in En-
gland, and which was followed by this court,
the defendant has four clear days, after final
judgment, to put in bail in error. (Bennet v.
Nichols, 4 Term Rep., 121 ; See, also, Jaques
v. Nixon, 1 Term Rep., 279.)
Mr Slosson, contra, said that if the practice
of this court was not settled on this subject,
the rule of the Court of K. B. was to be
adopted. Now, according to that rule, bail
JOHNS. REP., 11.'
1914
YOULE v. GRAHAM.
197
in error must be put in in four days, in order
to make the writ of error a supenedeas. But
between the signing of the judgment, in this
case, and the delivery of the writ to the sher-
iff, six days had elapsed. The court will look
only to the time of the delivery of the writ to
the sheriff, without entering into any nice cal-
culation as to the course of the mail, or the
probable dispatch of the attorney. The de-
livery of the writ is the commencement of the
suit. (Lowry v. Lawrence, 1 Caines' Rep.,
69 ; Carpenter v. Butterfteld, July Term, 1801.)
A party may have a writ filled up and sealed,
ready to be "delivered as occasion may require,
and keep it in his pocket for months.
In fact, however, no bail in error has yet
been put in by the defendant ; and by the
statute (1 N. R. L. 143, sess. 24, ch. 25, sec. 2),
no writ of error can be a supersedeas, or stay
an execution, until the party prosecuting the
writ puts in good and sufficient bail.
198*] *Mr. Caines. in reply, said that the
decision of the court in Lowryv. Lawrence, and
Ofirpenter v. Butterfield, was, that the suing out
of the writ was the commencement of the
action.
The statute for preventing delays of execu-
tion by writs of error, applies only to execu-
tions regularly issued. The court is bound,
by its own authority, to supersede or set aside
an execution which has been irregularly issued.
The Court of C. P. in England, in the case
of Dudley v: Stokes, 2 W. Bl., 1183, decided
that the allowance of a writ of error was a
tupersedea* to an execution and all subsequent
proceedings.
Per Curiatn. In the case of Lane et al. v.
fticchus, 2 Term Rep., 44, the Court of K. B.
decided that if the writ of error is followed
up immediately, by the plaintiff in error regu-
larly putting in bail, it will operate as a super-
ttdeas ; but if no bail is put in. the writ of
error is a mere nullity ; and the party may
take out execution, after the allowance of the
writ of error, and before bail is put in, at his
peril : and if the writ of error is followed up
regularly, the execution will be set aside. (2
Tidd's K. B., Prac ., 1071-1073.) And such is
the practice of this court.
In the present case the writ of error was al-
lowed the 4th of January, and no bail in error
was put in within four days after the judg-
ment was signed, nor before the execution
wa« delivered to the sheriff, nor does' it appear
tluit it has even been put in at this day. The
motion must, therefore, be denied.
Motion denied.
Cited In— 1 Cow., 18.
Where the action la against two defendants in the
! court below, and one only is taken, and removes the
cause by /m//. ,r« corpim, whether he must put in bail
in this court, for both defendants or not. Queen.
MR. P. W. RADCLIFF, for the plaintiff,
moved for a writ of procedendo in this
cause to the Mayor's Court of the City of New
York.
The suit was originally commenced in the
, Mayor's Court, and Heurv, one of the defend-
| ants only was taken. The plaintiff issued
another writ against Graham and Wilson, to
answer together with Henrv, on which Gra-
ham only was taken. Graham appeared by
attorney, and Henry in proper person. A hob-
eas corpus cum causa, &c. , as to the defendants,
Graham and Henry, was taken out, to remove
the cause to this court, returnable at the last
term. On the 24th January last, the plaintiff's
attorney demanded, in writing, of the attorney
of Graham and Henry, to file special bail for
all the defendants, within twentvdays, so that
the plaintiff might proceed to declare against
them in this court. It did not appear that
any rule had been entered by the plaintiff's at-
torney for the defendants to appear, or that a
procedendo issue ; and no bail had been put in
by the defendants.
Mr, Slosnon objected that by the 10th rule
of October Term, 1796, the plaintiff, before
he could be entitled to a procedendo, must
enter a rule that the defendants appear within
twenty days, and make affidavit of the service
of notice of such rule on the defendants.
Mr. Radcliff, in reply, said the plaintiff
could not enter such a rule, as only two of
the defendants were in this court. In Fry v.
Carey, 1 Str., 527 ; 2 Sell. Prac., 381, where
an action was brought in the Sheriff's Court
against two partners, and one of them brought
a habeas corpus and put in bail for himself
only, the Court of K. B. granted a procedtndo,
for, otherwise, the plaintiff would be unable
to proceed in either court.
Per Curiam. The plaintiff, to entitle him-
self to a procendendo, should have proceeded
according to the rules of the court, to compel
an appearance in this court. How that ap-
pearance is to be effected- it is not necessary
now to decide. As the plaintiff has not en-
tered any rule for an appearance, the motion
must be dented.
Motion denied.
Cited in-4 Cow., 71 ; 7 Cow., 146.
199*] * YOULE
GRAHAM, WILSON AND HENRY.
Practice- — Habeas Corpus — Motion for Proce-
dendo.
Where a cause had been removed to this court by
li'ii i, <t* rorpiw, the plaintiff must enter a rule for the
defendant to appear in twenty days, or that a pro-
Oadendo Issue, and serve a notice thereof on the de-
fendant, Defore he can be entitled to move for a
ii, for want of bail in this court.
JOHNS. REP., 11.
•GRAVES ET AL. r. DELAPLAINE. [*2OO
Depositions — Competency of Witnesses Deter-
mined at Trial.
The court will not refuse a rule for a commission
to take the examination of witnesses residing:
abroad, thoujrh the opposite party make affidavit
that the witnesses named art- interested in the cause:
but will leave the question as to their competency
to be determined at the trial of the cause.
MR. EMMETT. for the plaintiffs, moved,
on the usual affidavit, for a commission
to take the examination of witnesses residing
in Liverpool, in Great Britain.
117
200
SUPREME COURT, STATE OP NEW YORK.
1814
Mr. Slosson, contra, objected to the issuing
of the commission on the ground that the wit-
nesses named by the plaintiffs were interested
in the cause, and, therefore, incompetent, and
he read an affidavit of the defendant to show
their interest.
Mr, Emmett said that the court ought not to
prejudge the question of interest, nor try it
thus, in limine, by affidavits. It may be that
the plaintiffs, at the trial of the cause, may
disprove all the facts now stated by the de-
fendant, to show the interest of these witnesses
and wholly repel every objection to their com-
petency. Commissions are issued ex-parte. It
is the right of the party to take out a commis-
sion at his own risk. The court will only ex-
ercise its discretion, as to the effect which the
issuing of a commission is to have on the pro-
ceedings in the cause, so as to prevent a delay
of justice.
Per Curiam. The affidavit read is neither
118
proper nor sufficient evidence to show that the
witnesses are incompetent, on the ground of
interest. If we are to deny the commission, it
ought to be on the same evidence, as to the
fact of interest, which would be proper and
sufficient, at the trial of the cause, to show the
incompetency. The affidavit or testimony of
the defendant would not be admitted for that
purpose. Besides, if the witnesses have any
interest, it may be that it will be released be-
fore their examination, so as to render them
competent. We think the commission ought
to issue.
Rule granted.
Cited in— 4 How. Pr., 274.
***N. B.— In most of the cases decided this term,
Mr. Justice PLATT gave no opinion, they having
been argued before pe took his seat on the Bench.
The other judges being unanimous, rendered it the
less necessary to notice this circumstance at the
end of each case.
JOHNS. REP., 11.
[END OF MAY TERM, 1814.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THK
STATE OF NEW YORK,
IN
AUGUST TERM, IN THE THIRTY-NINTH TEAR OP OUR INDEPENDENCE.
JACKSON, ex dem. VAN VECHTEN ET AL.,
v.
SILL ET AL.
With — Construction — Evidence — Extrinsic or
Parol — Liadmusible to Correct MixUike, — Ad-
missible to Explain Latent Ambiguity — It i*
not Necessary to Look at Entire Will, where
the Intention is Clear and no Ambiguity
Exists.
G. devised as follows: "lirlvo and bequeath to my
beloved wife, for and during her widowhood, the
farm which I now occupy, together with the whole of
the crops, of every description.whieh may be there-
on at the time of my death, "&c.,and after the remar-
riage or death of his wife, he devised the same to
8. and his heirs. It was held that extrinsic or
parol evidence to show that the testator intended
to devise the whole of his real estate at W., and
which included a farm of ninety acres, in the tenure
of B. under a lease from the testator for seven
years, and that he gave such instructions tu the at-
torney who drew the will, was inadmissible, there
being no latent ambiguity in the will, but a mis-
take.
Citations-Plowd., 191. 195 ; 11 East., 57 : 6 T. R.,
«71 ; 8 Vin., 312 ; 2 V'es.. 216; 2 Ves., Jr., 382 ; 3 Brown,
C.C.: 44«: 1 Ves.. "232 : Cas. temp. Talb.. 240.
THIS was an action of ejectment, for land in
Watervliet, tried at the Albany Circuit,
in October, 1813, before Mr. Justice Thomp-
son.
The plaintiff gave in evidence the last will
and testament of Cornelius Glen, dated the
28th of August, 1809, by which, amongst
other things, he devised as follows : " I also
.give, &c., to my said beloved wife, for and
during her widowhood, the farm which I now
•occupy, together with the whole crops, of
every description, which may be thereon stand
JJO2*] ing at the time of my *death. whether
the same be standing or growing on the land,
or have been gathered into my barns, &c. ;
and also all the buildings," &c. " Also 1 give,
Ac., to my said beloved wife, for and during
her widowhood, all the land which I have ob-
tained of Stephen Van Rensselaer.Esq.. adjoin-
ing my said farm, together with the island in
the Hudson River, commonly called the Flat ts
Island." " I give. &c., all and singular the
real estate and the remainder of the personal
•estate hereinabove devised to my said beloved
JOHNS. .REP.. 11.
wife, during her widowhood, and from and
after her remarriage, or in case she does not
remarry, from and after her death, to my
nephew John L. Sill, his heirs and assigns for
ever." " Item. It is my will that my beloved
wife shall, at my decease, enter into the pos-
session of, and take and enjoy the rents, issues
and profits of all and singular my real and
personal estate hereinabove demised to her
in the manner hereinbefore expressed; and
that my said nephew, John L. Sill, his heirs
and assigns, shall, in like manner, possess and
enjoy the said real and personal estate above
demised to him, and the rents, issue and prof-
its thereof, from and after the death or remar-
riage of my said wife" : " I give, &c., all the
residue of my real and personal estate, not
hereinabove disposed of, to my friends Abra-
ham Van Vechten, Saunders Lansing and
Barent Bleecker, and the survivors or survivor
of them, and the heirs of such survivor, in
trust," Ac. Under this last clause the lessors
of the plaintiff claimed the premises in ques-
tion.
The lessors of the plaintiff also gave in evi-
dence an indenture of a lease, dated the 18th
of March, 1806, by which the testator demised
to Henry Salisbury, for the term of seven
years, from the 1st of April ensuing, subject
to the yearly rent of $325, payable half yearly
all that certain farm, &c., in the town of
Watervliet. containing about ninety acres of
land, bounded north by Philip S. Schuyler,
east by John Schuyler, south by Peter 8.
Schuyler, and west by the lessor, and as is now
in fence, and in the possession of the said
party of the second part, with the dwelling-
house. &c., and appurtenances, &c. Except-
ing and reserving to the party of the first part,
his heirs, &c., all the wood, timber and trees
now standing and growing, or which shall
during the time stand, grow, or be in or upon
the premises, or any part thereof, together
with full liberty of ingress, egress and regress
of him. &c., to cut down and carry away any
of the wood, &c. And reserving, also, to the
said party of the first *part, &c., all [*2O3
streams of water for mills and so much land
as may be necessary for the erection and ac-
119
203
SUPREME COURT, STATE OP NEW YORK.
1814
commodation of the said mills and mill dams,
&c. ; and also reserving to the said party of
the first part, &c., all such land as may be
overflowed with water by any dam, &c., and
also a right to dig or trench any part of the
premises for the purposes aforesaid, and to lay
out a road througli any part of the premises
for the purposes aforesaid, &c.
By virtue of this lease, Henry Salisbury en-
tered into the possession of the premises
demised, and the same were held and enjoyed
by him, or persons deriving under him, at the
date of the will of Cornelius Glen, who died
in the month of March, 1810. His widow died
in the month of November, 1812.
A map of the premises in question, of the
land purchased of Stephen Van Rensselaer,
and other land of the testator, was produced
at the trial.
The defendants offered in evidence a deed
from Stephen Van Rensselaer to the testator,
executed also by the testator, bearing date the
26th of September, 1804, of all that certain
farm, &c., in the town of Watervliet, &c.,
" containing 223 acres of land," &c. This
deed was offered for the purpose of showing
the description of the land mentioned in the
will of the testator as obtained from Stephen
Van Rensselaer, and its situation in relation
to the premises in question and the other lands
of the testator ; and also for the purpose of
showing that the testator considered the prem-
ises claimed by the plaintiffs as part of his
farm ; but the evidence was objected to and
overruled by the judge.
The defendants also gave in evidence a lease
of the premises in question, together with the
other land, from the testator to Joseph and
Henry Salisbury, dated the 21st of March,
1798, for seven years, from the 1st of May en-
suing, with exceptions and reservations sub-
stantially the same as in the lease above men-
tioned, and containing also covenant that the
lessees should procure out of the commons of
the manor of Rensselaer all such wood and
timber as they might want to use on the
demised premises for building, fencing or
fuel, and that they should not cut or destroy
any of the wood or timber standing or grow-
ing on the premises, &c. The defendants'
counsel then offered to give in evidence a deed
from Hermanns V. Cuyler and others to the
testator, dated the 4th of January, 1797 ; but
the evidence was objected to by the plaintiff's
counsel, and overruled by the judge. It was
agreed that the deed might be referred to in
the argument of the case.
2O4*] *The defendants then offered to
prove that, during the continuance of the
leases above mentioned, the testator exercised
some of the rights reserved by him, and had,
in other respects, partially occupied the prem-
ises in question ; but this evidence was ob
jected to, and overruled by the judge, on the
ground that any acts of occupation not author-
ized by the lease would be a trespass, and the
lease itself gave the plaintiff the benefit of all
rights reserved, without any parol proof of
their having been exercised.
The defendants' counsel then offered in evi-
dence a memorandum, in the handwriting of
the testator, stating the particulars of the pur-
chase of the land of Cuyler, &c., but this was
120
objected to by the plaintiff's counsel, and
overruled by the judge. The defendant then
called as a witness A. Van Vechten, one of
the lessors of the plaintiff, and one of the
trustees named in the will of the testator (who
declared that he was willing to testify, if the
facts offered to be proved by him were compe-
tent evidence), for the purpose of proving that
he drew the will of the testator, and that the
testator, when he instructed him to draw the
will, repeatedly and explicitly declared to him
that he meant to devise all his real estate in
Watervliet to Mrs. Glen for life, with remain-
der to John L. Sill in fee, and that, when he
drew the will, he understood the testator to be-
in full possession of the whole Watervliet
farm, except the islands, which he understood
were leased, and that the whole of the im-
proved land was included in one farra, and
that, under this impression, he drew the will
to carry into effect the declared intention of
the testator, whose intentions, in this respect,
were repeated and unequivocal. This evi-
dence was objected to by the plaintiff's coun-
sel, and overruled by the judge. A written
declaration from the lessor, to the same effect,
offered in evidence, was also objected to, and
overruled by the judge. The defendants then
offered to prove that the testator had no other
land in Watervliet but the land mentioned in
the will, and the premises in question, but this-
was objected to, and the evidence rejected by
the judge.
The jury found a verdict for the plaintiff.
A motion was made by the defendants to set
aside the verdict and for a new trial. 1. Be-
cause, by the will of Cornelius Glen, the prem-
ises in question passed to the widow of the tes-
tator for life, with remainder to John L. Sill
in fee. 2. Because the evidence *of- [*2O&
ered by the defendants at the trial, and over-
ruled by the judge, was admissible, and ought
to have been received.
Mr, J. Emott, for the defendants. The les-
sors of the plaintiff claim under the devise^
made by the testator of the residue of his es-
tate to them as trustees. The defendant Sill
claims under a particular devise in the same
will, which the lessors contend must be re-
stricted to the lands in the actual occupancy
of the devisor at the time. At the trial, proof
extrinsic to the will was offered to show the
intent of the testator, which was rejected by
the judge, and the principal question is,
whether that proof was admissible.
The well-known rule is, that a latent am-
biguity in a deed or written instrument may
be explained by extrinsic or parol evidence.
(Bac. Maxims, 99, 106. — " Ambiguitas verborum
bitens verificatione suppletur ; nam quod ex-
facto oritur amMguum verificatione faeti . tolli-
tur.") The rule is applicable to contracts and
conveyances (Plowd., 191, 195), and is applied
both in law and equity to wills. (Thomas v.
Thomas, 6 Term Rep., 671, 676 : 7 Term Rep ...
138, 148 ; 2 P. Wms., 35, 141 ; 1 Bro. C. C.,
472 ; 1 Vesey, 232 ; 2 Vesey, 217 ; 1 Ves., Jr.,.
259, 266. 35'7; 3 Ves. Jr., 148, 362.) As to
wills, courts have gone much further in let-
ting in this species of evidence, than they have-
done in regard to contracts and conveyances,1
1.— See Jackson v. Stanley, 10 Johns., 133, 137.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. SILL ET AL.
205
because mistakes in the latter may be corrected
by a court of equity.
Id there, then, a latent ambiguity in this
•Me T Where the plaintiff cannot recover
without giving parol evidence as to the person
who is to take, or the thing devised, then there
is a latent ambiguity. The plaintiff, in this
case, commenced by offering evidence dehon
the will, which shows there was a latent am-
biguity, and if the plaintiff has a right to re-
sort to this kind of evidence, the defendants
also may introduce it. The defendants had no
intention to contradict the will. The words
" I now occupy," are not words of restriction,
but of description. The testator does not say,
the land, but "the farm which I now occu-
py." He does not say, as I now occupy. He
meant merely to describe and locate the farm
devised, that is, the farm at Watervliet. includ-
ing such part of it as had been leased under
him, or the entire farm. Suppose a person
devises a house by the words, " the house
which I now occupy," though, in fact, he oc-
cupies only one room in the house, would not
the whole house pass ? "A farm," says Plow-
den (Plowd. Com.. 191, 195; 8 Vin. Abr.,
348, S. 8), " is a collective word, consisting of
divers things collected together, as a mes-
2O<J*] suage, lands, meadows, *&c., and
other things lying or appertaining thereto."
And a further thirg is requisite, namely, that
it has been " let or demised for years, for life,
or at will." "A farm is a capital messuage
and the lands Iving to it, and signifies the chief
house and the lands belonging to it." A de-
vise of all tlie farm, then, carried with it the
reversion. The first tract in the deed from
Cuyler to the testator is the farm intended.
The will shows that the testator had other
farms in other places. The property in ques-
tion was leased to Salisbury merely for agri-
cultural purposes ; the testator had a right to
cut wood there, and exercise other acts of
ownership. (The counsel here referred to the
will, the deeds, and map, &c.)
The parol evidence offered as to the intent
of the testator was full, clearand unequivocal.
It ought to have been received on principle as
well as on the authority of adjudged cases.
In Cro. Klix. . 118, it is said that in one
Batite'* case, where one being sick, sent for a
scrivener, and gave him instructions that he
devised his house and the lands belonging to
it, and the scrivener drew a devise of the
house with the appurtenances, it was adjudged
that the land passed. There the instructions i
given to the scrivener must have been admit-
ted in evidence. In Thoma* v. Thmna*, 6
Term Hep.. 671, Lord Ken von and Mr. Juttict
Lawrence agreed, that though parol evidence
of the declarations of the testator, relative to
his intention, made before the will, was not to
be received, yet such evidence was admissi-
ble to explain a latent ambiguity not apjK'ar
ing on the face of the will.
Again, the evidence offered to show that
when the testator took a deed of the farm in
Watervliet, there was an existing lease, which
was not considered as affecting the entirety of
the farm, was admissible. The premises leased
to Salisbury made a part of the farm devised.
The words " which I now occupy." are mere-
ly descriptive. Thus, in Goodtitte v. Paul, 2
JOHNS. HBP., 11.
Burr.. 1089; Sir W. Bl. Rep., 25« ; Poph.,
188, the testator devised to his wife "all his
farm at Bovington, in the tenure of John
Smith," and the Court of K. B. were of opin-
ion that the words "in the tenure of John
Smith," were words of description, and not of
restriction. In Rumbold v. Runibold, 3 Ves.,
Jr., 65, the testator devised all the residue of
his estate, as well copyhold as freehold, "the
part thereof having been previously surren-
dered to the use of my will ; " the testator
never having, in fact, surrendered his copy-
hold ; it was held to be a mistaken descrip-
tion, *and that the copyhold was [*2O7
clearly intended to be passed. So, in Goodriyht
v. Pears, II East's Rep., 58. the testator "sur-
rendered his copyhold cottage, with a croft
adjoining, and a common right, &c., all which
premises were then in his own possession ; "
and on the same day devised "all his copy-
hold, cottage and premises then in his own
possession." In fact, the croft, which was
divided from the cottage and garden by a
gooseberry hedge, was in the actual occupa-
tion of a tenant at the time, yet it was held
that the whole passed under the description of
" copyhold, cottage and premises," the words,
" then in his own possession," being merely a
mistaken description.
Mr. Henry, contra. The rules laid down as
to latent ambiguities are not denied. But they
are not applicable in the present case. Tocreat'e
such an ambiguity, there must be a doubt
as to the sense, or some uncertainty in the
signification of the words. If there is no such
doubt or uncertainty, parol evidence is inadmis-
sible. The court cannot admit parol evidence
to enlarge or contradict a written instrument,
under pretense of explaining a doubt. The
matter of fact, what the testator did occupy,
was certain, or might be made certain. There
is no ambiguity in the will itself. The inten-
tion and the language are both clear.
It is said that we were obliged to resort to a
lease, or evidence dehorn the will, which shows
a latent ambiguity. But this lease is of a dis-
tinct and independent farm from the one in the
occupancy of the testator. It was for a rent in
money. In the exercise of common sense, or
even of that subtle and legal sense, for which
the opening counsel is distinguished, it is im-
possible to discover any ambiguity in the
devise. Because the plaintiff must locate the
subject matter of the devise, it does not follow
that there exists that latent ambiguity spoken
of in the books. If it were so, there is a latent
ambiguity in almost every devise; for in
almost every action of ejectment brought by a
devisee, the plaintiff must resort to extraneous
evidence to establish his title. Suppose the
testator had devised lot No. 1 in the Kayaderos-
seras patent, could the necessity of introduc-
ing parol evidence to show the true location or
bounds of that lot. create such a latent ambigu-
ity as would authorize the introduction ot
parol evidence, by the defendants, to explain
it ? The farm leased was within Plowden's
definition of a farm, for it was let. But that
is not necessary to the 'definition of a [*UOH
farm, in this country. To constitute what is
understood to be a farm here, it is not necessary
that it should be let. A messuage. Arc., on
which the owner lives, and ploughs and culti-
121
208
SUPREME COURT, STATE OF NEW YORK.
1814
vates the land himself, is universally called
and understood to be a farm. In the case
put of a devise of a house, it is admitted that
the whole would pass, because a house is one
and entire.
Without examining the mass of authorities
to show the distinction between a restriction
and a description, a single case will be suffi-
cient to illustrate my meaning. In the case of
Goodtitle v. Paul, 2 'Burr. , 1089, the testator
devised to his wife his farm at Bovington, in
the tenure of John Smith. Lord Mansfield
observes that the thing was well and sufficient-
ly described by the words " my farm at Bov-
ington," which had gone at one rent, and had
been used and passed as one entire thing, for
which one entire quitrent had been paid.
The words "in the tenure of John Smith," was
an additional description merely, which did
not vitiate the previous description, but might
be rejected as surplusage. In the present case,
the testator does not say, my farm at Water-
vliet ; and without the words "which I now
occupy," it would be impossible to know
where it was situated. These latter words,
therefore, are not mere words of description,
but of designation and location, which must be
proved. To make this case analogous to that
of Goodtille v. Paul, the words of the will
should have been, my farm at Watervliet.
The subsequent clause in the will, by which
the testator gives to his wife all the laud ob-
tained of Stephen Van Rensselaer, adjoining
his said farm, &c., does not aid in explaining
the extent or bounds of that farm. The word
"adjoining" does not imply contiguity through-
out ; if it touched the farm in any one part,
it would be considered as adjoining to it.
The word " possessed," if it had been used,
raight have been equivocal, for there is a legal
as well as an actual possession ; but the term
"occupy" implies actual possession, a pedis
jwssesitio, or actual cultivation of the land, not
a constructive possession. This description
must stand as it was, true or not, at the time
it was made. If the testator did not occupy
the land at the time he made the will, though
he might afterwards have acquired the actual
possession of it, yet it would not pass under
the will. The lease to Salisbury was not mere-
ly for cropping, as has been said, but was for
2O9*] large rents reserved in money. *Had
Glen entered without leave of the tenant, he
would have been liable as a trespasser.
The evidence offered was to show a mistake
in the will, not to explain an ambiguity. The
court ought not to give facility to this species
of testimony, so dangerous in its consequences.
The testator was perfectly compos mentis, and
intelligent, and the will was read to him.
Again, the island was excepted because it
was leased. For the same reason, we contend,
the premises in question were also excepted.
In Brown v. Sclicin, Cas. temp. Talbot, 240,
note 242 and the cases there cited, and in the
note of the editor, the whole doctrine on this
subject is to be found. The Lord Chancellor
Talbot, in that case, though his private opin-
ion was in favor of the intention of the testa-
tor, as to Selwin, yet decreed against him on
the ground that none of the authorities went
so far as to let in parol evidence in such a
case ; and this decree was affirmed in the House
122
of Lords. (4 Bro. P. C., 180.) The rule es-
tablished by that case is. that no parol evi-
dence is admissible to supply or contradict the
words of a will, or to explain the intention of
the testator, where the words used are un-
ambiguous and intelligible. ( Ulrich v. Litch-
field. 2Atk., 372.)
The testator gave the rest and residue of his
estate not before particularly devised, to trus-
tees for the use of his heirs at law ; and it is
attempted to defeat this plain bequest by ex-
planatory evidence.
To show that the intention of the testator
was not expressed, one witness only, Mr. Van
Vechten, was offered. He proves only that he
was mistaken as to the fact ; and it is sought
to alter the will on the ground of such mistake.
In Brown v. Selwin, it appears that Mr. Viner
had instructions in writing, which showed it
to be the clear intention of the testator to give
the money to the defendant ; but as that was
not expressed in the will, the Chancellor would
not allow the evidence of Mr. Viner to alter the
will.
Besides, Mr. Van Vechten, being a trustee,
was an incompetent witness, as his evidence
would go to a breach of his trust. (2 Fonbl.
Equ., 170.) He is, moreover, a co-trustee, and
is called upon to alter and contradict the will,
under which the trust estate is created.
The declarations or confessions of a party,
as to the title to real property, though admis-
sible to show a tenancy, or to satisfy doubts
*as to the nature of the possession, are [*21O
never received as evidence of title ; for an es-
tate might thus be made to pass by parol in
contradiction to the statute of frauds. (Jack-
son v. Shearman, 6 Johns., 19-21 ; Jackson v.
Vosburgh, 7 Johns., 186.) If the declarations
of Mr. Van Vechten could not, neither can
his testimony, have this effect ; and as a co-
trustee, he cannot, even by his own solemn
deed, alienate or impair the trust estate.
Mr. Woodworth, in reply. The words " I
now occupy " were not essential to the descrip-
tion of the subject. Had they been omitted,
the devise would not have been void for un-
certainty. The farm intended is made certain
by a subsequent clause in the will, which clear-
ly designates its situation. It was shown that
the testator always called it, emphatically, the
farm, that is, the farm at Watervliet. If there
was a mistake in the opinion of the testator
that he did occupy the farm, in the sense con-
tended for by the other side, still the words
"the farm" are sufficiently definite and cer-
tain.
Having shown that "the farm " was the farm
at Watervliet, the case is precisely similar to
that of Goodtitle v. Paul, 2 Burr., 1089 ; S. C.,
1 W. Bl. Rep., 255. Goodrightv. Pears is also
in point. The words "my farm" mean all my
farm, and when it is shown what was meant
by "the farm," it shows that the whole passed,
through a part may have been in the occu-
pancy of a tenant. Suppose the testator had
been in the actual occupancy of the house and
garden only, and had leased all the rest of the
farm to a tenant, would not the words "the
farm which I now occupy " include more than
the house and garden ? The case of Wrotesley
v. Adams, Plowden, 191, is also in point.
What was the sense in which the testator
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. SILL ET AL.
210
used the words " the farm ? " It is clear from !
the will that the farm at Watervliet, adjoining
land bought of 8. Van Rensselaer. was intend- \
t-il. /•<//*' demonttratio non nocet, if sufficient
certainty appear before.
This maxim of Lord Bacon is recognized in
Doe v. Oreathed, 8 East., 104, and in Thonuit v.
Thomas, 9 Term Rep., 671-676; and Lord
Bacon illustrates the maxim by putting the
case : "If I grant land epucopi nunc Londinensi •
qui me frudimt in pueritia, this is a good grant,
though he never instructed me."
So, in the civil law, though the testator mis-
takes the iiomtn cognomen, prenomen or agnomen
of the legatee, yet, if his perw>n be certain, the ;
legacy is good ; and a legacy is not rendered
null liv a false description. (Cooper's Just., !
167; fnst., lib. 2. tit. 20, sec. 29, 80.) The I
same doctrine is applied to a devise of land, a
farm, or tenement. (2 Domat., B. 2, tit. 1,
«ec. 6, art. 10, 19 ; lb., sec. 8, art. 11.)
211*] *The word " occupancy " has a legal
meaning. (Jacob's Law Diet.) It is where land
is in the possession or management of a person. !
The lease to Salisbury is of ninety acres, and [
there is a reservation of all the wood and tim-
ber, &c. . to the lessor and his heirs and assigns,
with full liberty of ingress, egress and regress,
Ac. There are also other reservations of all
streams of water and mills, and mill seats, and
land necessary for the same, and the right of
laying out roads, &c., through the premises.
The lessor must, therefore, be considered as
in the possession or occupation of such parts
of the demised premises as are so reserved. If
so, it is 'enough to support the construction
for which we contend.
Again, the reference to the farm devised, as
adjoining the lands obtained of Stephen Van
Rensselaer, makes the farm intended as cer-
tain as if it had been described by metes and
bounds. And the testator, in the following
clause, gives to his wife the rents, issues and
profits, not of his said farm merely, but of all and
singular his real and personal estate, therein
ber'ore devised to her In the residuary clause
the testators gives instructions to his trustees,
as to the disposition of the rents, «fcc. , which
do not apply -t all to the lands demised to
Salisbury, which shows clearly that he con-
sidered them included in the previous devise.
To show how fur the courts in England have
gone in giving effect to the intention of the
testator, notwithstanding the words of the will, j
the counsel cited Due v. C'Mins, 2 Term. Rep., !
498 ; D»e v. Aplin. 4 Term Rep., 82. Hnntnere \
v. Na*h. 5 Term Rep.. 716. and Doe v. Burt, '
7 Term Rep., 701.
And to show that the parol evidence offered
in this case was admissible, the following au-
thorities were cited : Roberts on Wills. 407 or
470 ; Roberts on Frauds. 14. 27, 26, 28. 82 ;
Fonntrea-u v. Poynt, 1 Bro. C. C., 472; Har-
risv. Iti*IiopnfLincoln,2P. Wms.,185: 2 Vern.,
519, 598 ; 6 Term Rep., 671 ; Cas. temp. Talb.,
240 ; Finch's Rep.. 895 . 4 Day's Rep.. 265.
In Fonnerenu v. P(tynt, though the words
of the devise were in themselves definite and i
clear, and there was neither a patent nor a '
latent ambiguity, yet parol evidence was let in
to aid the application of the words to the prop- i
er subject of the devise, and to support the in-
ference that the testator meant to give a gross i
JOHNS. RKP., 11.
sum in money, and not an annuity. Though
the case of JJarris v. The Bishop of Lincoln
may not be perfectly consistent with that of
Brown v. Selwin, yet the latter case is not op-
posed to the principle laid down in Fonnereau
v. Poynt, that parol *and extrinsic evi-[*2 12
dence is admissible to incline the judgment,
where there is a doubt arising from the con-
text of the instrument. This case goes the
full length of the doctrine for which we con-
tend, and justifies the admission of the evi-
dence offered.
Besides, we insist that there is a latent am-
biguity in this case. "An ambiguity," says
Roberts, "is latent when the equivocality of
expression or obscurity of intention does not
arise from the words themselves, but from the
ambiguous or delitescent state of extrinsic cir-
cumstances to which the words of the instru-
ment refer, and which is susceptible of ex-
planation by the mere development of extra-
neous facts, without altering or adding to the
written language, or requiring more to be
understood thereby, than will fairly comport
with the ordinary or legal sense of the words
made use of." Now, is not the state of ex-
trinsic circumstances in this case, such as to
raise a doubt ?
Instructions given by the testator, as to draw-
ing his will, are admissible in evidence. (2
Fonbl. Equ., 186.) And a trustee or plaintiff
may, if willing, be admitted a witness by con-
sent of parties In Nordin v. Williamson it
was decided that if both parties were willing,
the plaintiff might give evidence, as a witness,
on oath, though his evidence went to defeat
the claim of another plaintiff suing jointly
with himself. In Forbes v. Wale, 1 W. Bl.
Rep.. 582, the plaintiff was examined as a wit-
ness before Lord Mansfield. So, in Douglas'
Lessee v. Sanderson, 2 Dallas' Rep., 116, in the
Supreme Court of Pennsylvania, the plaintiff
was admitted as a witness to prove the death
of a subscribing witness to a deed, in order to
let in evidence of his handwriting.
The evidence of Mr. Van Vechten is full
and satisfactory, and, if admitted, must be
conclusive in the case.
THOMPSON, Ch. J,, delivered the opinion of
the court :
The question in this cause arises under the
will of Cornelius Glen, bearing date the 28th
of August. 1809. The lessors of the plaintiff
claim the premises in question under the resid-
uary devise to them in trust, for the pur-
poses therein mentioned, and the defendant
John L. Sill claims them as devisee in remain
der, and as being included in the devise to
Mrs. Glen, in the following words : "I give,
devise and bequeath unto my beloved wife, for
and during her widowhood* the farm which I
now occupy, together with the whole crops of
every description which may be thereon, at
the time of my death, whether the same are
standing or growing on the land, or have been
gathered into my *barns," &c. The [*2Ui
premises in question were, at the time the will
was made, and also at the death of the testa-
tor, in the possession of Henry Salisbury, un-
der a lease, bearing date the 18th of March.
1806, for the term of seven years ; and are
described as a farm, piece or parcel of land,
121
213
SUPREME COURT, STATE OF NEW YORK.
1814
containing about ninety acres of land, as is now
in fence, and in the possession of the said party
of the second part, together with the dwelling-
house, barn, barrack, and other appurte-
nances, &c. Upon the trial, testimony was of-
fered tending to show that the testator in-
tended to devise the premises as a part of the
farm he occupied himself, and of which he
died possessed. And the question now is,
whether such testimony was admissible.
I think it unnecessary to notice particularly
the evidence offered ; for it is obvious that if
it was competent, especially that of Mr. Van
Vechten, it would have shown that the prem-
ises were intended, by the testator, to be de-
vised to the defendant Sill. The will was
drawn, however, by Mr. Van Vechten, under
a misapprehension of facts, and under a belief
that the testator was in the actual possession
of the premises. It is, therefore, a clear case
of mistake, as I apprehend, and under this be-
lief, I have industriously searched for some
principle that would bear me out in letting in
the evidence offered ; but I have searched in
vain, and am satisfied the testimony cannot be
admitted in a court of law, without violating
the wise and salutary provisions of the statute
of wills, and breaking down what have been
considered the great landmarks of the law on
this subject.
The ground of argument assumed by the
defendants' counsel was, that here was a latent
ambiguity, which required explanation by
extrinsic evidence. I did not understand them
as going so far as to contend, that if the lan-
guage of the will was clear, plain and unambig-
uous, extrinsic evidence could be received to
contradict it, or show an intention repugnant
to the plain meaning of words made use of.
Such a doctrine, if recognized in our courts of
justice, would, indeed, be alarming. It be-
comes necessary, then, in the first place, to in-
quire whether there be any ambiguity ,in this
clause in the will. If there be none, there
is no pretense for admitting the evidence of-
fered. The general description of the thing
devised is "the farm I now occupy." There
are other parts in the clause which go to Il-
lustrate and confirm the sense in which this
expression was used. The term "occupy,"
2 14*] both in a popular and *legal accepta-
tion, has a known certain and definite mean-
ing. It would be nonsense, in common par-
lance, to say that a man occupied a farm
which was in the tenure, possession and man-
agement of another ; nor is the law chargea-
ble with so much absurdity. The term, in
legal acceptation, implies actual use, posses-
sion and cultivation ; and that this is the sense
in which the term is here used is obvious ; it
is the farm I now occupy. The word " now "
seems to be used emphatically, so as to leave
no possible doubt as to the identity of the
thing devised. But if any such doubt could
exist, it is removed by the subsequent part of
the clause, which gives to his wife the whole
crops, of every description, which may, at the
testator's death, be thereon. This is a relative
term, referring to the land devised, and she
was to have the crops, whether standing or
growing, on the land (devised), or gathered
into the barns. The crops here devised, evi-
dently refer to those produced by his own im-
124
mediate cultivation, and could not, by any
possible construction, he extended to crops on
a farm in the occupation of his tenant, es-
pecially as, by the terms of the lease, he was
not entitled to any part of the crops, the rent
reserved being payable in money. The de-
vise of the crops, therefore, identifies, beyond
the possibility of a doubt, the land devised.
It seemed to be admitted, on the argument,
that if the designation of the thing devised
had been the "land" I now occupy, it must
have been restricted to the testator's own pos-
session ; but it was said that the word "farm"
had a more general meaning ; and Plowden,
191-195, was referred to in support of the dis-
tinction. According to this authority, the land
occupied by the testator, and that by his
tenant, were each farms, or the one as much
as the other. Each had a distinct messuage,
and lands attached to it ; and there was no
evidence that one messuage was more a chief
house, in the language of Plowden, than the
•other. And, indeed, according to the tech-
nical definition of the term "farm," as here
given, it would only extend to the land in Ihe
occupation of the tenant : for, says the au-
thority, it must not only be a capital messuage
and laud attached to it, but it must have been
let or demised to another ; for if it has always
been reserved in the hands of the inheritor
thereof, it has not the name of a farm. But I
presume that we are not at liberty to resort to
any such subtle distinctions for rules by which
to construe the meaning of this devise ; for no
such distinction could have been in the mind
of the testator. We must understand the
*term "farm" as used in the common [*215
popular sense, according to which the land in
the possession of Salisbury was a separate and
distinct farm from that occupied by the testa-
tor, and had been so used and improved for
many years.
According to this view of the case, there is
no ambiguity in the devise which requires the
aid of extrinsic evidence to render it certain ;
and, of course, I might here conclude that the
testimony offered was properly overruled. It
may not, however, be amiss to look a little at
the light of which latent ambiguities are re-
ceived, and how far they are explainable by
extrinsic evidence ; and here, as in many other
cases; the difficulty consists more in the due
and correct application of principles to the
given case, than in ascertaining and defining
the principles themselves. It is a general and
settled distinction, running through all the
cases on this subject, that extrinsic evidence
cannot be received to contradict, vary or add
to an instrument in writing, but only to ex-
plain and elucidate it, and this only in the case
of a latent ambiguity. (2 Vern., 216.) "An
ambiguity." says Roberts, in his Treatise on
Frauds, 15, "is properly latent, in the sense of
the law, when the equivocality of expression,
or obscurity of intention, does not arise from
the words themselves, but from the ambiguoxis
or delitescent state of extrinsic circumstances
to which the words of the instrument refer,
and which is susceptible of explanation by a
mere development of extraneous facts, without
altering or adding to the written language, or
requiring more to be understood thereby than
will fairly comport with the ordinary or legal
JOHNS. REP., 11.
1814
JACKHON, EX DBM., v. SILL ET AL.
215
sense of the words made use of." Let us ap-
ply this rule to the case before us. There was
no question at the trial whether the testator
was, in point of fact, in the actual possession
of the premises in question, at the time of
making his will, or at the time of his death.
The evidence on the part of the plaintiffs left
no doubt on that subject. It showed, conclu-
sively, that he was not in possession of any
part of the premises. The evidence offered
was not for the purpose of showing the actual
possession of the testator, but to show that he
intended to devise as well the farm leased to
Salisbury, as the one which he occupied him-
self, and that both farms had, on some occa-
sions, been considered and treated by him as
one farm. The admission of such testimon}'
would have been infringing upon the rule as
above laid down. It would have been adding
to the written language, by allowing us to say
2 IO*] the farm in his own occupation *meant
also the farm in the occupation of his tenant.
It would be requiring us to understand more
by the phrase "the farm I now occupy" than
the ordinary or legal sense would warrant. It
would be extending it to a farm in the posses-
sion of another. Nor was it competent to
prove that these farms were once united in one.
Such testimony would would have been alto-
gether immaterial ; for, admitting the fact, it
would not follow that the testator was bound
always to keep them united; and the land hav-
ing been used and improved for many years as
two distinct farms, the praseology of the devise
is adapted to such a state of things, and shows-
thai the testator intended to limit it to what he
himself was then in possession of. Had the
devise been of all his farm in Watervliet, it
would have presented a different question ; it
might have required some explanation as to
what was his farm ; but when it is qualified
and restricted to the farm then in his posses-
sion, it can require or admit of no possible
explanation, except showing his actual posse's-
sion, which was not a point in question.
It is, undoubtedly, a correct rule in the con-
struction of wills, to look at the whole will,
for the purpose of ascertaining the intention
of the testator, in any particular part, where
such part is ambiguous. But where the in-
tention is clear and certain, and no repugnancy
appears between the different parts of the will,
no such aid is necessary or proper. It was
urged, on the argument, that the testator, in
another clause in his will, devises to his wife
the lands he obtained from Stephen Van Heus-
selaer, adjoining his said farm ; and that the
land obtained from S. Van Hensselaer, accord-
ing to the testimony offered on the trial, did
adioin the premises in question. It is a suf-
ficient answer to this argument, to say that the
same testimony showed likewise, tiiat that laud
did adjoin the farm in the actual occupation
of the testator. This, therefore, would not
falsify the description in the other devise,
or be repugnant thereto, and description
is never rejected when it is true in point
of fact, and consistent with the thing
devised. But transpose this clause, and
connect it with the other, it would then
read thus: "I give and devise to my wife, &c..
the farm I now occupy, adjoining the land I
purchased of Stephen Van Kensselaer." No
JOHNS. REP., 11.
part of this description need then be rejected;
for by applying the devise to the laud in the
actual occupation of the testator, there would
be perfect harmony and consistency between
the thing or subject, and everj part" of the de-
scription. *The incongruity would be [*JJ 1 7
created by applying the devise to the premises
in question (which were in the possession of
Salisbury). In that case some part of the de-
scription must be rejected ; for the land, al-
though adjoining that obtained of Stephen
Van Kensselaer, was not occupied by the tes-
tator. Part of the description would, there-
fore, be false ; so that the transposition, in-
stead of throwing any light on the subject,
would involve it in still greater obscurity. No
aid can, therefore, be derived from any other
part of the will, and, indeed, no aid is want-
ing ; for the devise is, of itself, as clear, certain
and definite as words could make it.
I have attentively examined most of the cases
cited on the argument, but cannot find any
principles recognized in them to bear out the
claim on the part of the defendants. I shall
proceed, however, to notice those which were
deemed most important, and as being very
analogous to the present case. But a little at-
tention to them will, I think, show that the
analogy does not hold. In the case of Good-
title v. Paul, 2 Burr., 1089, the devise was in
these words: "I give and devise to my wife, my
farm at Bovington, in the tenure of John
Smith, subject to her disposal in as full and
absolute a manner as I could dispose of the
same, if living." The farm at Bovington had
been leased by one Hammon to William and
John Smith, and in the lease was this exception :
" Except, and always reserved out of the said
demise, all and all manner of wood, wood
ground, hedge rows, timber and trees whatever,
<xc., with liberty of ingress and egress, to cut
and carry away the same." The testator after-
wards purchased the farm subject to this lease,
and kept in his own hands, until his death, the
excepted premises, which consisted of hedge
rows, and of chalk dells, where wood had
grown up after the chalk was taken away, en-
tirely surrounded by the land in the tenure of
the tenant, and also one entire wood of six
acres ; and the question was, whether these
excepted premises, so held by the testator,
passed under the devise. Lord Mansfield, in
giving his opinion, lays considerable stress
upon the obvious intention of the testator,
throughout his will, to give to his wife all his
estate ; that he puts into his will all possible
words that can give everything to her ; and
His Lordship says, the words "in the tenure of
John Smith " are only additional description,
which will not vitiate anything sutliciently de-
scribed before ; *that these words can- [*2 18
not be understood as a restriction, but only as
a further description of a thing sutliciently
described before. Lord M. adds: "The hedge
rows and chalk dulls themselves were actually
in the tenure of .lohn Smith ; and as to the six
acres of woodland, the soil, as well as the trees,
are excepted out of the lease. But Dr. Paul
gives to his wife a power to dispose of the
farm, in as full and absolute a manner a.s he
himself could dispose of the same if living,
and he himself might certainly have disposed
of the soil of the six acres." Do the facts
218
SUPREME COURT, STATE OP NEW YORK.
1814
in that case at all compare with the one before
us ? There the premises in dispute were a few
hedge rows and some wood ground, part of
which was in the tenure of John Smith, and
the whole of which had always passed with
the farm as one entire thing ; but in this case
the premises in question have every quality of
a distinct farm, of ninety acres of land, with
the usual and necessary buildings thereon for
the purposes of farming.
The rule alluded to by Lord Mansfield, that
falsa demonstratio non nocet,oras it is expressed
in Lord Bacon's Maxims, Reg. , 25, veritas nomi-
nis toilet errorem deinonstrationis, cannot be ap-
plied to this case. This rule is applicable only
to cases where the object of the devise or the
thing devised are sufficiently certain, without
the demonstration or description ; and it was
in this sense that Lord Mansfield applied the
rule ; for he says the words "in the tenure of
John Smith" are only additional description to
what was sufficiently described before. In such
case the false description ought,undoubtedly,to
be rejected, the certainty of the thing devised
not being affected by such rejection. But in
the devise before us, if the words " which I
now occupy" are considered as additional de-
scription, and are stricken out, what becomes
of the certainty of the thing devised? The
devise will then stand thus : " I devise and
bequeath unto my said wife, during her wid-
owhood, the farm." This would be senseless
and unintelligible. Had the devise been of my
farm at Watervliet, which I now occupy, there
would have been some color for the applica-
tion of the rule ; for then, by striking out
what is called the false description, there
would be still some certainty left ; but as the
devise now stands, the words "which I now
occupy," are an essential and indispensable
part of the designation of the thing devised,
and without them the devise would be void.
So, also, in the case of WroieaUy v. Adams,
Plowden, 191, the words "in the tenure and
219*] occupation of Roger Wilcox" *were
held unneccessary, because the description of
the premises in the lease was sufficiently cer-
tain without them, the lease being of all their
farm in Brosley, which, say the court, con-
tains certainty in itself. In the case of Good-
right v. Pears, 11 East, 57, the will, and the
surrender of the copyhold premises, which
had been made by the testator to the use of
his will, being contemporaneous acts, were
considered as one instrument, and the surren-
der was of " all his copyhold cottage, with a
croft adjoining ;" which croft was the prem-
ises in dispute. There, then, was certainty in
the thing devised, and the additional descrip-
tion, "then in his own possession," was reject-
ed as false demonstration. The case of Thom-
as v. Thomas, 6 Term Rep., 671, recognizes
the rule that extrinsic evidence may be re-
ceived to remove a latent ambiguity ; but it
was held that under this rule, parol evidence
of declarations made by the testator, previous
to making his will, relative to his intentions,
were not admissible. Justice Lawrence said
he thought a will could not be construed by
any declarations of the testator made before
the making of the will, but that his intention
must be collected from the words of the will,
or from what passed at the time of making it.
126
To what extent this latter expression was in-
tended to be carried, I am at a loss to conceive.
If to admit evidence of what passed, showing
an intention contrary to the plain and obvious
interpretation of the written language, I can-
not give my assent to the rule. Mr. Justice
Lawrence, upon the trial of that cause, re-
ceived evidence, subject to the opinion of the
court on its admissibility, showing a mistake
in the name inserted in the will ; but the jury
having found that no mistake was made, this
point did not come in review before the court.
The same judge, however, in his opinion at
bar, seemed to think the testimony was
properly admitted, and refers to cases which
he said warranted the admission. (8 Vin., 312;
2 Ver., 216.) But those will be found to be
cases in chancery, and other cases might be
cited (3 Ves., Jr., 362 ; 3 Brown, C. C., 446),
which seem to recognize such a power in a
court of chancery. Those cases, however, are
principally confined to the correction of mis-
takes in names, and even in such cases, the
power may be questionable. Lord Hardwicke,
in the case of Goodinge v. Goodinge, 1 Ves. ,232,
says parol evidence cannot be read to prove
instructions of the testator, after the will is re-
duced into writing, or declarations whom he
meant by the written words of the will. But
I *know of no case where it has been [*22O
solemnly decided that a court of law has the
power to correct mistakes in any written in-
struments, and I conclude that no such power
exists. I admit the rules in their fullest ex-
tent, that a latent ambiguity may be explained
by extrinsic evidence, ana that if there is a
certain description of the person or thing de-
vised, and a further description is added, it is
immaterial whether the superadcled descrip-
tion be true or false. But I think I have suf-
ficiently shown that neither of these rules,
within the sense and meaning of the author-
ities, can have any application to the present
case, because there is no ambiguity in the de-
vise, and because, by rejecting the words "I
now occupy," which have been called a false
description, there is no certainty left as to the
thing devised,
I feel the force, and subscribe to the sound-
ness, of the principle which governed Lord
Talbot in the case of Brown v. Selwyn, Cas.
temp. Talb., 240. Although, looking out of
the will, my private opinion is, that it was the
intention of the testator to give to his nephew,
J. L. Sill, the premises in question, yet I do
not feel myself at liberty to yield to the parol
evidence, and make a construction against the
plain words of the will. It is better to pre-
serve consistency in legal principles, although
it may not always suit the equity of the indi-
vidual case, than to make those principles
bend to what may be thought the substantial
justice of each particular case.
We are, accordingly, of opinion that the tes-
timony offered was properly overruled, and
that the motion for a new trial must be denied.
PLATT, J., not having heard the argument
of the cause, gave no opinion.
New trial refused.
Cited in— 13 Johns., 533 ; 14 Johns., 12, 45 ; 17 Johns.,
JOHNS. REP., 11.
1814
BAILEY v. FREEMAN.
220
435: 1 Wend., 560: 4 Wend. .65; 8 N. Y.,213; 4 Lans., ;
490 ; 9 Barb.. 535 ; 10 Barb., 16 : 11 Barb., 18B ; 13 Barb..
122 ; 25 Barb.. 213 ; 2 Bradf .. 422 ; 30 N. J. L.. 488 ; 45
Wis., 197.
22 1 •] *BAILEY & BOGERT,
t.
FREEMAN.
Guaranty not within the Statute of Fraud* —
Consideration may be shown by P«r«/.
B. signed an agreement 'n writing to deliver to A.
a quantity of chocolate in six months, at a stipu-
lated price, and all costs on an execution issued by
A. against B. being paid, the execution was to be
returned nulln IHIIM. At the bottom of this agree-
ment, F. signed a written "guaranty, viz: "I guar-
anty the performance of the above agreement, and
every part thereof on the part of B. to be per-
formed," \ « •. In an action on this guaranty agiiinst
F.. it was held to be an original collateral agree-
ment, and not a promise to pay a previously su twist-
ing debt of B., and so a valid agreement within the
statute of frauds-* The agreement of B. and the
guaranty of F. formed an entire contract, includ-
ing the consideration stated in the agreement, to
which the guaranty referred ; and if no considera-
tion had been expressed in the principal agreement
it might be shown by parol.
Citations— 8 Johns., 29; 5 Mass., SW ; 5 East, 10.
THIS was an action of oMumpnit on a special
agreement, tried before Mr. Juttict Van
Ness, at the New York .sittings in November,
1813. (See S. C. on Demurrer, Vol. IV, 280.)
The plaintiffs recovered a verdict against
Noel Blanche, in 1808, on which &Ji. fa. was
issued and levied on the goods of Blanche,
who applied to the plaintiffs for time, and of-
fered to pay the costs and inve security for
the debt, payable in six months, in chocolate,
at a stipulated price, if the plaintiffs would
cause the execution to be returned nulla bona,
and forbear all further proceedings under the
judgment for six months ; and the defendant
was then named as the person who was to be
security for the performance of the stipulation
of Blanche. The attorney of the plaintiffs
then drew up the following memorandum,
which was signed by Blanche :
" I do hereby agree to deliver Messrs. Bailey
& Bogert, within six months from the date
hereof, fresh and good chocolate, equal in
quality to CaldweU's of Albany, at a discount
of five per cent, from the wholesale price at
which Caldwell's chocolate of the same quality
may be selling at the time of delivery, and to
the amount of $892.71, with interest from the
5th of May last ; and further, that all the costs,
expenses, fees and poundage on the execution
issued by Messrs. Bailey & Bogert against me,
being paid by me, their attorneys shall direct
the said execution to be returned mi tin bona.
New York, llth of July, 1808. N. Blanche."
Blanche then went with a clerk of the plaint-
iff's attorney to the counting-house of the de-
fendant, who signed the following guaranty :
" I do hereby guaranty the performance of
the above agreement, and every part thereof,
on the part of Noel Blanche, to be performed
at the time and to the amount therein men-
tioned ; provided the said Noel Blanche shall,
•flee Nelson v. Dubols, 13 Johns.. 175; Myers
v. Morae. 15 Ibitl., 425 ; Chase v. Day, 17 Johns..
114. note.
JOHNS. REP., 11.
when the same ought to be performed, be then
in life, but not otherwise. New York, llth
July, 1808. Phineas Freeman."
•The counsel for the defendant ob- [*222
jected to the admission of this agreement and
guaranty in evidence, 1. Because they were
evidence of an agreement and guaranty differ-
ent from those set forth in the declaration. 2.
Because they contained no consideration for
any promise by the defendant, and no parol
evidence of any such consideration was admis-
sible, nor can any parol evidence be admitted
to show a different agreement from the writ-
ing produced ; nor could the plaintiffs give
evidence of any verbal communication between
the original parties previous to the written
memorandum ; or if the plaintiffs could, in
any case, give evidence of any agreement not
contained in the writing, they must show that
the defendant was acquainted with it, and a
party to it at the time of signing his guaranty.
The judge admitted the evidence, reserving
the points raised by the defendant's counsel.
It appeared that on the 12th of January,
1809, the plaintiffs informed the defendant that
Blanche had not performed his agreement, and
required the defendant to perform his guaran-
ty ; that Blanche was, and still is, living, and
that no proceedings had been had under the
judgment, subsequent to the agreement.
Blanche paid the costs of suit on the 26th
of July, 1808, and the sheriff shortly after re-
turned the execution nulla bona. There was
no evidence of any communications between
the plaintiffs and defendant, except what ap-
peared from the execution of the agreement.
A verdict was taken for the plaintiffs, subject
to the opinion of the court on a case containing
the facts above stated. It was agreed that if
the court should be of opinion Jhat the evidence
was properly admitted, the verdict was to stand;
that if any evidence had been improperly ad-
mitted, without which the plaintiffs could not
have been entitled to a verdict, a new trial
was to be granted ; and if the court should be
of opinion that the plaintiffs were not entitled
to recover at all, a judgment of nonsuit was to
be entered.
Mr. Baldwin, for the plaintiff, relied on the
case of Leonard v. Vredenburgh, 8 Johns.,
29, as conclusive. He contended that here
were concurrent acts. It was all one transac-
tion, and the consideration in the original
agreement embraced the guaranty of the de-
fendant. The consideration on the part of
Blanche was sufficient. The execution was
returned nulla bona, and *there was [*223
also a forbearance for six months. There was,
then, a valid and binding agreement on the
part of Blanche, and that, according to the
opinion of the court in Leonard v. Vredenburgh,
wa* sufficient to bind the defendant.
Mr. SloMon, contra, insisted that the defend-
ant was not bound by this agreement. He
admitted that a sufficient consideration was
stated in the plaintiffs' declaration, but the
paper produced did not support the declaration.
The defendant could never bring an action on
this memorandum against the plaintiffs. It
did not contain a single stipulation on their
part. There was no mutuality in the agree-
ment. It is a contract on one side only. It is
not under seal, nor is it signed by the plaintiffs.
127
223
SUPREME COURT, STATE OP NEW YORK.
1814
The defendant could not hold the plaintiffs
responsible on this writing ; neither could
Blanche be made liable. If Blanche was not
bound by the original agreement, the defend-
ant clearly could not be held responsible on
his guaranty.
Parol proof was not admissible to supply the
defect of a consideration. Every fact which
it would have been necessary, before the statute
of frauds, to prove by parol, in order to sus-
tain the action, must now be shown to be in
writing.
PLATT, J., delivered the opinion of the court:
The guaranty on the part of the defendant,
in this case, was an original collateral agree-
ment, and not a promise to pay a previously
subsisting debt of Blanche.
It was part of an entire contract, consisting
of the agreement signed by Blanche, and the
guaranty signed by the defendant. The credit
was originally given to the defendant as surety;
and it was, therefore, unnecessary to show a
separate consideration for the promise of the
defendant. The principal contract and guar
anty were simultaneous, and the consideration
of the former supports the latter. (Leonard v.
Vredenburgh, 8 Johns., 29; Hunt v. Adams,
5 Mass. Rep.. 358.)
I think there is a sufficient " note or memo-
randum" of the whole agreement, including the
consideration, stated in the written agreement
to which the guaranty refers ; but if no con-
sideration had been expressed in the written
agreement, it might be shown by parol proof,
because it is only necessary here to prove a
consideration for the principal agreement. In
the case of Wain v. Warlters, 5 East, 10, it was
224*] held that the consideration *as well as
the promise, must be in writing, in order to
charge one man with the debt of another. But
that was upon a promise to pay an independent
previously existing debt of another person, and
is plainly distinguishable from this case.'
New trial refused.
Cited in— 13 Johns., 177 ; 10 Wend., 250 ; 13 Wend.,
122 ; 5 Hill, 486 ; 4 Denio, 562 ; 3 N. Y., 212 ; 21 N. Y.,
317, 421 ; 2 Lans., 293 ; 11 Barb., 585 ; 37 How. Pr., 319;
6 Abb. N. S., 314 ; 1 Hall, 208 ; 2 Hall, 150 ; 1 Sand.,
565; 1 Sweeney, 340; 1 Peters, 502.
JENKS v. STEBBINS.
Pleading — Discharge under Insolvent Act — Facts
showing Juristiction Necessary — Domicil.
Where a defendant pleaded the general issue with
notice, and g-ave in evidence his discharge as an in-
solvent debtor, under the Act of the 3d April, 1811,
sec. 34, ch. 123, by a comniissioner, and the discharge
recited, among other things, that the defendant was
an inhabitant of Jefferson County, for the space of
three months, at least, immediately preceding the
presenting his petition, in which said county he was
then imprisoned, and that he delivered a true ac-
count 01 all the suits in which he was imprisoned or
impleaded, &c. It was held that the discharge was
sufficient evidence, in itself, either of the imprison-
ment of the insolvent, or of his inhabitancy, and his
being prosecuted on the civil process, agreeably to
the Act, so as to give the commissioner jurisdiction,
without any proof, allunde, of those facts.
Citations— 10 Johns., 161 ; Act April 3d, 1811 ; 7
Johns , 75 ; 1 Johns., 91 ; 2 Johns., 98.
was an action of assumpsit on a prom-
- issory note made to the defendant, dated
128
October the 28th, 1805, payable to the plaintiff
three years after date. At the trial of the
cause, the defendant, under a notice annexed
to his plea of non assumpsit gave in evidence a
discharge under the Insolvent Act of the 3d
of April, 1811, under the hand and seal of a
commissioner, dated the 15th of April, 1812.
The discharge stated that the defendant, "of
the town of Brownville, in the County of Jef-
ferson, an insolvent debtor, who was an inhab-
itant of said County, for the space of three
months, at least, next immediately preceding
the presenting his petition, or in which said
County he was then imprisoned, did, at a day
now past, present a petition," &c., and at the
time, &c., " caused to be delivered to me a true
account of the suits in which he then was im-
prisoned or impleaded, the names of the several
plaintiffs in such suits," &c., and the accounts
due, &c., and also " a full, just and true ac-
count and list of all his creditors, and of the
moneys due," &c., and also " an inventory and
account of all the estate," &c., and that the
commissioner having administered the oaths
required by the Act, ordered and directed
notice to be personally served on the prose-
cuting creditors, &c. , and notice to be published
in the gazettes, &c., for six weeks, &c., requir-
ing such prosecuting creditor or creditors, and
all the creditors of the insolvent, to appear
before him, the commissioner, on the 15th of
April then next, at, &c., and that no sufficient
cause being shown on that day, why the prayer
of the petition should not be granted, &c., and
being satisfied that the petitioner had duly
caused notice, *&c., and had conformed [*225
to the matters required of him by the Act, and
that there had been no collusion between the
petitioning creditor and his prosecuting cred-
itor, or any of them, &c. ; he directed an as-
signment of all the estate of the petitioner, &c.,
and he having produced a certificate of the
due execution of such assignment, he, the
commissioner, thereupon, by virtue, &c., did
discharge the petitioner from all his debts,
&c.
The plaintiff's counsel objected to the suf-
ficiency of the proof of the defendant's dis-
charge, because it did not appear that the
commissioner had any jurisdiction or authority
to grant the discharge ; but the judge before
whom the cause was tried, being of opinion
that proof of the defendant's imprisonment or
residence in the county, as prescribed in the
Act, was not necessary, overruled the objection,
and the jury, under his direction, found a ver-
dict for the defendant.
A motion was made to set aside the verdict,
and for a new trial.
Mr. R. Sedgwick. for the plaintiff. The
defendant ought to have shown that the com-
missioner had jurisdiction ; for, until that fact
appears, there can be no discharge. It is not
enough to plead or give in evidence the dis-
charge only, but it must also be shown that
the officer had jurisdiction. (Seaman v. Her-
mance 1 Johns. , 91 ; Frary v. Dakin, 7 Johns. ,
75 ; Morgan v. Dyer, 10 Johns., 161 ; Lad-
broke v. James, Willes' Rep., 199.) The dis-
charge itself is not evidence of the requisites
to give the commissioner cognizance.
But admitting even that the discharge is
conclusive evidence of the fact stated, yet it is
JOHNS. REP., 11.
1814
WATERMAN v. RASKIN.
225
not there .stated that the defendant was impris-
oned on a civil process, &c., or that he was
prosecuted for debt, &c., according to the Act.
<8esH. 84, ch. 223. sec. 1.)
Allowing the recital in the discharge to be
equivalent to averments in a plea, there is not
a sufficient averment to give the commissioner
jurisdiction. (Chitty's PI., 817 ; 1 Str, 594.)
It states that the defendant, an insolvent debtor,
of B., AT., who was an "inhabitant of said
o unity for the space of three months, at least,
next immediately preceding the presenting his
petition, in which said county he was then
imprisoned, did," &c. It should have stated
not only that he was an inhabitant, &c. , but that
he was impleaded, &c.
Mr. Slonwn, contra, contended that the plaint-
iff's counsel confounded the rules of evidence
with the rules of pleading. It was enough, in
the present case, if sufficient evidence was
given to the jury to justify their finding the
226*] fact that the commissioner *had juris-
diction. In pleading, the fact must be directly
and explicitly averred. A.° to evidence, it is
enough if such circumstances are shown as
will authorize the jury to infer the fact. The
Act has made the discharge conclusive evidence
of all the facts contained in it. Here the dis-
charge states facts sufficient to justify the
inference that he was, beside being an inhabi-
tant, &c., prosecuted on some civil process.
A _r:iin. where acts of an officer are offered in
evidence, the law will presume that he acted
within his jurisdiction.
SPENCER, J., delivered the opinion of the
court :
The case of Morgan v. Dyer, 10 Johns.,
161, and several antecedent cases, decide that
in pleading a discharge under the Insolvent
Act, it is requisite to set forth facts giving the
judge or officer jurisdiction in the case. To
give that jurisdiction under the Act of the 8d
of April, 1811, it is necessary that the insolvent
should have been an inhabitant for three
months next preceding the presenting his
petition, of the city or county in which it is
presented, and that he be prosecuted in some
court within and under the jurisdiction of this
State, on civil process for debt, or on contract
express or implied ; or that the insolvent is, or
actually has been imprisoned, in the county
wherein he applies, on civil process, out of a
court of this State, for debt, or on contract
express or implied.
The fourth section of this Act enacts that
the discharge shall be conclusive evidence, in
all courts of this State, of the facts therein
contained. The same section authorizes the
pleading the general issue, and giving the
special matter in evidence, under a notice to
Accompany the plea.
In the case of Frary v. Dakin, 7 Johns.,
75, is the leading case in this court on the
subject. The court held that there were three
modes in which the insolvent could avail
himself of his discharge, 1. Under the general
issui- ; 2. By setting forth so much of the pro-
«T<lings as would give the officer jurisdiction
with a taliter procetaum fuit ; and 3. By setting
forth the whole proceedings. The rules of
pleading laid down in that case were in refer-
ence to a special plea in bar, and are inapplica-
JOHNS. REP., 11. N. Y. R., 5.
ble to the present case, except so far as re-
gards the essential requisites to authorize a dis-
charge of the insolvent. It has been justly
observed by the counsel for the defendant,
that the fallacy of the argument on the other
side consists in blending *the rules of [*227
evidence with the rules of pleading. When
the plea is special, and the matter of it referred
to the decision of the court, the facts
themselves must be pleaded, and not the
evidence of the facts. This rule, how-
ever, must be understood with the qualifica-
tion laid down in Frary v. Dakin. and in
Service v. Hermance, 1 Johns., 91 ; 2 Johns.,
96. The defendant has here pleaded the
general issue, with notice, and it was incum-
bent on him to prove that the commissioner
had jurisdiction of his case under the Act
of the 3d of April, 1811. This he might
have done by parol, or by relying on the
facts set forth in his discharge, for those
facts were proof by virtue of the Act. The
discharge sets forth two facts disjunctively
that the defendant was an inhabitant of the
County of Jefferson for the space of three
months, at least, next immediately preceding
the presenting his petition, or in which said
county he was then imprisoned. We must
consider one of these facts as true ; if the lat-
ter, the commissioner had jurfsdiction with-
out regard to the period of residence ; and if
the former, it would still be necessary to show
that the defendant had been prosecuted on
some civil process. The discharge states, ad-
ditionally, that the defendant, at the time of
presenting his petition, caused to be delivered
to the commissioner a true account of the
suits in which he then was imprisoned or im-
pleaded, the names of the several plaintiffs, in
such suits, and their places of residence re-
spectively, &c. The discharge also states
that the commissioner was satisfied that there
was no collusion between the defendant and
his prosecuting creditors, &c.
These facts, thus recited, would, undoubtedly
be sufficient evidence to the jury that the de
fendant was an inhabitant of Jefferson County
for three months next immediately preceding
the presenting his petition, and that he had
been prosecuted on civil process, agreeably to
the Act, or that he was actually imprisoned in
the County of Jefferson ; and in either case
the commissioner had jurisdiction. It was,
therefore, correctly ruled at the Circuit, that
the discharge was sufficient evidence in itself,
and that it was not necessary to prove, aliande,
the defendant's imprisonment or residence.
The motion for a new trial must be denied.
New trial refuted.
Cited ln-12 Wend., 108: 3 Denio, 242: 1 N. Y.,
807 ; 8 N. Y., 58 ; 12 N. Y., 578 ; 28 N. Y., 653 ; 58 N.
Y.. 388:6 Hun. 344; 8 Barb., 810, 625; 11 Barb.,
458; 19 Barb., 188; 28 Barb., 394; 28 Barb., 419; 1
Abb. N. 8.. 57 ; 1 Bob.. 231 : " Leg. Obe.. 8.
* WATERMAN v. HASKIN. [*228
HALSTEAD v. HASKIN.
Pniftiff — Judgment* againtt name Defendant
Entered on tame Day — Neither hat Prefer-
ence— Priority given to First Execution Issued .
9 129
SUPREME COURT, STATE OF NEW YORK.
1814
Where two judgments in favor of different plaint-
iffs, against the same defendant, are filed and dock-
eted the same day, neither has the preference as a
lien ; but if one of the creditors first take out an
execution and deliver it to the sheriff before the
other creditor issues his execution, and the lands of
the debtor are taken and sold, a priority will be
grained by the vigilant creditor, and his execution
must be first satisfied.
Citations-Act March 31. 1801 ; 8 Johns., 347.
TUDGMENTS in each of the above causes
tl were recovered in May Term, 1811. The
rolls were filed in the office of the clerk of the
court, in the City of New York, and the judg-
ments docketed on the 10th of May, 1811. In
the docket of the judgments, the one in favor
of Waterman was first entered, and one other
judgment was entered between that and the
judgment in favor of Halstead. Where sev-
eral judgment rolls are filed on the same day,
the clerk makes no note or memorandum which
of them was first filed ; and all the rolls filed
on the same day are afterwards indiscriminate-
ly entered and docketed by him. Waterman,
on the same day that his judgment was dock-
eted, issued &fi. fa, to the sheriff of New
York, which was levied on the personal prop-
erty of Haskin, and part of the money due on
the judgment was thereby paid. In the vaca-
tion after May Term, Halstead issued a test,
fi. fa. to the sheriff of Westchester, who, by
virtue of that execution, and of two other exe-
cutions, issued on judgments entered on a
day subsequent to the above judgments, seized
a farm of the defendant's and advertised it for
sale, and a few days afterwards, Waterman
issued a test. fi. fa. to the same sheriff of West-
Chester for the residue of the money due on
his judgment. There having been some mis-
take of the printer as to the first advertisement,
the property was advertised for sale by the
sheriff a second time, and was accordingly sold
by virtue of the several executions, and the
money retained in the hands of the sheriff.
Neither of the advertisements of sale specified
the executions, and no levy was made by the
sheriff after the first.
The question submitted to the consideration
of the court was, on which of the executions,
on the above entitled judgments, the sheriff
was first to apply the money levied by him on
the sale of the property.
Mr. Anthon, for the plaintiff Waterman,
contended that his execution ought to be
first satisfied, because his judgment was
229*] first *docketed, and because he had
shown the greater vigilance, by first suing out
a fi. fa. to the sheriff of New York on the
very day on which the judgment was docket-
ed. In such cases the vigilant creditor is
always preferred. (Adams v. Dyer, 8 Johns.,
347.)
Mr. Slosson, contra (for Halstead). Though
both judgments are docketed on the same day
and that of Waterman stands first in the clerk's
docket, yet it does not appear which of the
1. — By the late Revised Act concerning Judg-
ments and Executions (sess. 36, ch. 50, sec. 1 ; 1 N.
R. L.. 500), it is provided that no judgment hereto-
fore rendered shall be or remain a lien on any real
estate, or in any manner incumber the same
against hona fide purchasers, or subsequent incum-
brances, &c., for any longer time than ten years
from and after the 9th of April, 1811, and that all
judgments hereafter to be rendered shall cease to
130
judgment rolls was first delivered to the clerk.
It is the filing of the roll that gives priority
to judgments as to real • property. (Sess. 24,
ch. 105, sec. 2.) The mere docketing gives
no priority of lien.1 It is made the duty of
die clerk to docket the judgments alphabetic-
ally during the term, or within six days there-
after. It is impossible to decide which of the
judgment rolls was first filed, both being
marked with the same day and year.
In Lord Porcliester 's case, Tr., 23, Geo. III.,
B. R., cited in Pugh v. Robinson, 1 Term Rep.,
116, 117, where two judgments referred to the
same day, the court would not say which had
the precedence ; they held that the priority of
one over the other could not be averred, for it
was matter of record, or a judicial proceeding,
In regard to the delivery of process, a priority
may be averred and shown. This court, in
Adams v. Qyer, has gone no further than to
say, the two parties, being in other respects
equal, the one which takes the first step, or
shows the most diligence, shall be preferred.
Now, in regard to the property in question,
Halstead first issued his test. fi. fa. to the sheriff
of Westchester, and it was not until after the
land of the defendant was seized and adver-
tised for sale, that Waterman's execution was
issued.
PLATT, J. , delivered the opinion of the
court :
By the second section of the " Act concern-
ing Judgments and Executions," *pass-[*23O
ed the 31st of March, 1801, a judgment lien
attaches upon land from the time of filing the
record of judgment.
By the third section of that Act, the clerk is
directed to docket all judgments during the
term, or within six days after the term of which
such judgments are rendered ; and no judg-
ment, not docketed "as aforesaid," shall affect
any lands or tenements as to purchasers," &c.
In this case, both judgments were filed on
the same day, and were docketed on the same
day that they were filed.
The priority of docketing, therefore, seems
to be immaterial, as between these judgments ;
and the case admits it to be altogether uncer-
tain which judgment roll was first filed.
We must consider the judgments equal as to
the date of the lien, and as Halstead first sued out
his execution, and the sheriff began to execute
in before the./z. fa. issued on the judgment of
Waterman, Halstead thereby turned the scale
of equal right, and gained a priority by his
vigilance.
The case of Adams v. Dyer, and Conklin
v. Dyer, 8 Johns., 347, accords with this
opinion.
Let the money be applied on the execution
in favor of Halstead.8
Cited in-1 Cow., 593 ; 1 Hill, 641 ; 15 How. (U. S.)
195 ; 4 McLean, 558 ; 38 Mo., 106.
be a lien or incumbrance on any real estate as
against hona fide purchasers, &c., from and after
ten years from the time the same shall be docketed,
but the time during which a party is restrained
from issuing execution on such judgment, by in-
junction out of the Court of Chancery, is not to be
deemed as part of the ten years.
2.— Lemon v. Staats, 1 Cow. Rep., 592.
JOHNS. REP., 11.
1814
IRELAND ET AL. v. KIP.
231
231 *J 'IRELAND ET AL. B. KIP.
Negotiable Paper — Parties Betiding in same
City — Notice of Duhonor miut be Personal —
When by Mail.
When- the- parties to a bill or note reside in the
same city or place, notice of dishonor of the bill or
note must be personal, or tantamount thereto, or by
IfUviiiK it, if the party la absent, at his dwelling-
house or place of business.
Where the indorser of a note resided at Kip's Bay,
three and a half miles from the postoffice in the
City of New York, and gave directions to the letter
carriers, who call every day at the postofflce to take
out letters, to leave all letters received by them,
for him. at a house in Frankfort Street, and at
which house the indorser himself called or sent
every day for his letters, and a letter containing: a
notice from the holder of the note to the indorscr
of its non-payment, was put into the postoffice,
directed to the defendant, on the next day after the
note became due ; this was held not to be sufficient
evidence of notice.
If the party to be affected by a notice resides in a
different city or place from the holder, the notice
may be sent through the postoffice to the postoffice
nearest to the party entitled to such notice.
Citation-1 Campb., 24».
was an action of atsumpsit brought by
I the plaintiffs against the defendant as in-
dorser of a promissory note made by Samuel
Kip in favor of the defendant, aud by him in-
dorsed to the plaintiffs, and was tried in the
City of New York, on the first day of Decem-
ber, 1813. (See S. C., Vol. X.. p. 490.)
The plaintiffs offered to prove that on the
day after the day on which the note became
due, a notice in the ordinary form of the non-
payment of the note by the maker, was put
into the postoffice in the City of New York,
directed to the defendant. That the defend-
ant at that time resided at Kip's Bay, about
three and a half miles from the City Hall of the
City of New York. That the defendant had
given directioas to the letter carriers of the
postoffice to leave all letters that came to the
postofflce for him, at a house in Frankfort
Street in the City of New York ; that the said
letter carriers called at the postofflce three of
four times every day, and took out and deliv-
ered all letters left there ; that the defendant
usually called or sent every day for his letters
at the house in Frankfort Street. Upon this
evidence, the plaintiffs insisted that the jury
had u right to presume that the notice in ques-
tion had been duly received by the defendant.
The plaintiffs further offered to prove that the
maker of the note had failed before the note
became due, and that he had conveyed his
property in trust to secure and indemnify the
defendant against the indorsement of the note
in question, and that the trust fund was amply
sufficient to indemnify him. The Chief Justice
overruled the whole of the evidence offered by
the plaintiffs, and directed a nonsuit to be
entered.
NOTE.— ffeofttiahle paper— Notice.
When partic* reside in thetame place, notice must
be personal or tantamount thereto. Where they
reside in different places, notice by mail Is suffi-
cient. See Smedes v. Bank of Utica, 30 Johns.. 372,
note.
As to due diligence, see Stewart v. Eden, 2 Cai.,
121. note.
AH to content* of notice, sec Reedy v. Selxas, 2
Johns, ('as.. 337, note.
As to what crruxe* notice, see Tunno v. Lajrue, 2
Johns. Gas., 1, note.
JOHNS. REP., 11.
Mr. Baldwin, for the plaintiffs. He cited
Taylor v. Bryden, 8 Johns., 177: 1 Camp. N.
P. Rep., 248; 2 H. BL, 509 ; 6 East, 14, and
note*.
Mr. 8. Jones, Jr., contra, cited 1 Johns
121, 122; Bayley *on Bills, 76 ; Chitty [*2.'{ii
on Bills, 173 ; Doug., 497 ; 1 Term Rep., 168
SPENCER, «/., delivered the opinion of the
court :
Thin case comes before the court under a new
j aspect. Admitting that a service of notice of the
; non-payment of the note by the maker, at the
j house in Frankfort Street, would have been good
and equivalent to a service at the defendant's
dwelling or compting-house, still we are of
I opinion that the delivery^ of such notice at the
I postoffice, unaccompanied with proof that it
was actually delivered at the house, is not
notice.
In the case of Scott etal.v .Lifford, 1 Campb. ,
249, the Court of King's Bench held that when
the parties resided in London, or in the near
neighborhood of it, the party sending a notice
may avail himself of the convenience of the
two-penny post, and was not obliged to dis-
patch a special messenger. Decisions in other
countries on such points are entitled to little
consideration. The great extent and popula-
tion of London and its neighborhood might
well admit of a rule as to notices like the one
in the case cited, whilst here such a rule would
be inapplicable and improper.
The invariable rule with us is, that when the
parties reside in the same city or place, notice
of the dishonor of bills or notes must be per-
sonal, or something tantamount, such as leav-
ing it at the dwelling-house or place of busi-
ness of the party, if absent. If the party to be
served by a notice resides in a different place
or city, then the notice may be sent through
the postoffice to the postoffice nearest the party
entitled to notice.
It would be extremely embarrassing to suffer
the rule to fluctuate, by making exceptions
which would lead to uncertainty. It is of the
utmost importance in mercantile transactions
to have a certain and stable rule in relation to
notices. As it does not appear in this case that
the notice was left at the defendant's place of
business in Frankfort Street, and it appeared
that he resided in the City, the nonsuit was
correct, and the motion to set it aside is denied,
with costs.
Motion denied.
8. C., 10 Johns., 490.
Questioned-* Peters, 104, 188, 184 : 2 Cranch C. C.,
.>!.;
Cited ln-:lfl Johns., 221 ; 4 Wend.. 401 ; 2 Hill. 5flO ;
SDenio, 335; 9 How. Pr., 224; 4 Bos., 637; 0 Duer,
*THE COLUMBIAN INSURANCE
COMPANY.
LYNCH.
Marine Insurance — Double Insurance — Mvst
be on same. Subject, for same Person and on
same Entire Risk— Prior Insurance.
A policy of insurance was effected in Philadel-
phia. the 27th September. 1811, on (roods " from
Bayonne to New York," to the amount of $7,000 ;
233
SUPREME COURT, STATE OP NEW YORK.
1814
and on the 5th of October, 1811, another policy on
the same goods was underwritten at New York, on
a voyage 7l at and from Bayonne, to the first port
the vessel might make in the United States, at
$30,000. The vessel arrived at New York in safety ;
it was held that the risk on the second policy was
not divisible, and that the insured were not entitled
to a return of premium from the underwriters at
New York, on the amount covered by the prior in-
surance in Philadelphia.
To constitute a double insurance, it seems that
the two insurances must not only be for the benefit
of the same person, and on the same subject, but
for the same entire risk.
Citations— 1 Burr., 489; 4 Dall., 348; 1 Marsh., 115;
Doug., 75.
TPHIS was an action of assumpsiton a promis-
J. sory note given by the defendant to the
plaintiffs, for a premium of insurance. The
cause was tried at the New York sittings, in
June, 1813, before Mr. Justice Van Ness, when a
verdict was taken for the plaintiffs, subject to
the opinion of the court on the following
case :
The plaintiffs, by an open policy of insur-
ance on the 5th of October, 1811, insured for
the defendant the sum of $20,000, on goods
laden or to be laden on board the American
ship Ann, for a voyage, "at and from Bay-
onne, to the first port she might make in the
United States." The premium was fifty per
cent. , and the policy contained the following
written clause relative to prior insurance :
" Provided always, and it is hereby further
agreed, that if the said assured shall have
made any other insurance on the premises
aforesaid, prior in date to this policy, then the
said Columbian Insurance Company shall be
answerable only for so much as the amount of
such prior insurance may be deficient towards
fully covering the premises hereby insured ;
and the said Columbian Insurance Company
shall return the premium upon so much of the
sum by them insured as they shall be by such
prior insurance exonerated from. And in case
of any insurance upon the said premises, subse-
quent in date to this policy, the said Columbian
Insurance Company shall, nevertheless, be
answerable for the full extent of the sum by
them subscribed hereto, without right to claim
contribution from such subsequent assurers ;
and shall, accordingly, be entitled to retain the
premium by them received, in the same man-
ner as if no such subsequent assurance had
been made." In September, 1811, goods, con-
sisting of wine, brandy, and 17 bales of furni-
ture, were shipped on board the Ann at Bor-
deaux, for the account and risk of the defend-
ant, the invoice price of which, deducting an
interest of Lewis Barry, was $9,512. The ship
arrived in safety at New York on the 15th of
December, 1811. with the wine, brandy and
furniture, which were duly delivered to the
defendant. One case of the furniture, which
had been damaged on the voyage, was sur-
1334*] veyed by the wardens *of the port,
and sold at auction, the net proceeds of which
was $468.05. The invoice cost of the case of
furniture was $1,094, but with premium and
charges, amounted to $2,173.46,
The note, on which this action was brought,
was given for the premium of the insurance
effected by the above mentioned policy. The
defendant claimed from the plaintiffs a pro-
portionate part of this partial loss ; but the
plaintiffs objected that it ought to be borne by
132
the other insurers, as far as their policy cov-
ered the premises, in the first instance, and
that the plaintiffs were liable no further than
for their proportion of the invoice, beyond the
Philadelphia policy, which was an open policy,
dated the 27th of September, 1811, made by
the Philadelphia Insurance Company, on the
same wines, brandy and furniture of the de-
fendant, on board the same ship Ann, on a
voyage " from Bayonne to New York," to the
amount of $7,060, for a premium of 40 per
cent.
The defendant offered to show that the pre-
mium for the risk at Bayonne would not ex-
ceed 5 per cent., which was objected to by the
counsel for the plaintiffs, but admitted by the
judge. The defendant insisted that he was
entitled to a return of premium upon the
amount of the Philadelphia policy, allowing
the plaintiffs a reasonable premium for the
risk at Bayonne, on that amount. It was
agreed that if the court should be of opinion
that the defendant was entitled to any return
of premium on the policy underwritten by the
plaintiffs, then the amount of such return pre-
mium to which the defendant should be
deemed entitled, should be deducted from the
amount of the verdict, and judgment entered
for the residue ; but if the court should be of
opinion that the defendant was not entitled to
any return of premium, a judgment was to
be given for the plaintiffs on the verdict as it
stood ; both parties to be at liberty to refer to
the policies on the argument.
Mr. 8. Jones, Jr., for the plaintiffs. The
plaintiffs are entitled to recover, without any
deduction for a return of premium.
This is not a case of prior insurance. The
Philadelphia policy is only from Bayonne to
New York. The policy here is at and from
Bayonne to a port in the United States, so that
it attaches on a prior and different risk. There
is nothing in the Philadelphia *policy f*235
which shows a prior insurance, but its date. To
constitute a prior insurance, the second policy
must be on precisely the same risks, or prem-
ises. The plaintiffs were for a time, that is, at
Bayonne, exclusively on the whole risk, and
are, therefore, entitled to the whole premium.
Where the risk is entire, and has once com-
menced, it is the general rule that there shall
be no return of premium. (Doug., 751 ; Ser-
mon v. Woodbridge, Marsh, on Ins., 661, 662.)
The risk in the present case was not divisible,
but entire. (Marsh., 658.) It is for the de-
fendant's counsel to show that this case does
not come within the general principle.
Messrs. D.B. Ogden and T. A. Emmet, contra.
The object of the clause in the policy was to
prevent any questions about contribution be-
tween different underwriters in cases of double
insurance ; and if this is a case in which one
of the sets of underwriters, paying the loss,
might call on the other for a ratable contribu-
tion, it is precisely the case for which the clause
in question was intended to provide. "Double
insurance," says Park (Park on Ins., 373), " is
where the same man is to receive two sums in-
stead of one, or the same sum twice over, for the
same loss, by reason of his making two insur-
ances on the same goods, or the same ship;" or,
as Marshall (Marsh, on Ins. , 146) expresses it,
' ' when the insured makes two insurances on
JOHNS. REP., 11.
1814
COLUMBIAN INSURANCE Co. v. LYNCH.
235
the same risk, and for the same interest" — "with
a view of receiving a double satisfaction in case
of loss." In cases of double insurance, the in-
surer may recover his loss against which of
the underwriters he pleases, but he can recover
only the real amount of the loss ; and the
underwriters who pay the loss may call upon
the others to contribute. The English rule on
this subject was adopted by the Supreme Court
of the United States, in 1800, in the case of
Thurston, v. Koch, 4 DM., 848.
So far as the voyage is from Bayonne to New
York, the two policies are precisely on the
same risk ; but it is not necessary that the
termini should be, in every respect the same.
In Rogen v. Dans. Marsh., 147, 148; Beawe's
Lex Mer., 342 : Park, 374, 875, the action was
on a policy on a voyage from Newfoundland
to Dominica, and from thence to the port of
discharge in the West Indies; the plaintiff had
before insured, at Liverpool, by another policy,
on a voyage " from Newfoundland to Barda-
does, and the Leeward Islands, with an excep-
tion of American captures ; and the plaintiff
recovered the full amount, with leave to the
defendant to bring an action against the Liver-
iJttO*] pool 'underwriters, if he thought fit.
The defendant, afterwards, brought an action
for money had and received against an under-
writer on the Liverpool policy, and under the
direction of Lord Mansfield, who was of opin-
ion that it was a double insurance, the plaintiff
recovered. In neither of those cases was the
fact of the difference between the voyages
described in the two policies, regarded as
( material.
To make a double insurance, it is only neces-
sary that the different insurances should be
for the benefit of the same person, on the same
subject, and for the same risk, in whole or
part.
In Oodin v. The London Assurance Co., 1
Burr.. 489 ; 1 Bl. Rep., 103, S. C., there were
three different policies, one on the ship and
goods ' ' at and from London to St. Peters-
burgh, and at and from thence back to Lon-
don' — one on goods only "at and from St.
Pelershurgh to London, ' and the other on
goods only "at and from the Sound to Lon-
don ; " and as they were different persons, hav-
ing different interests in the same subject, the
plaintiff was held entitled to recover the whole
on his policy ; but it was admitted, by Lord
Mansfield, as clear law, thnt if all the policies
had been for the benefit of the same person, it
would have been a case of double insurance.
These cases show, conclusively, that the
present case, if the clause in question had not
been in the policy, would have been that of a
double insurance. This clause is 'not to be
found in the European policies, and is peculiar
to policies here, having been introduced, as
has already been stated, solely for the purpose
of preventing the effect of the doctrine of
double insurance. If so, then this is clearly a
case of prior insurance, within that clause.
Indeed, it appears that, in regard to the claim
for the partial loss on the case of furniture
damaged, the insurers defended themselves on
the ground of there being a prior insurance.
It", then, the different underwriters would
have been liable to contribute in this case, on
the doctrine as to double insurance, they must,
JOHNS. REP., 11.
on principles of justice, be obliged to return a
; portion of the premium, to the amount of the
I risks taken by others. The introduction of
! the clause as to prior insurance has not altered
, the law as to a return of premium. We admit
! that the general rule is, that where the insur-
\ ance is "at and from " a place, the risk is not
! divisible. But we say that, in this peculiar
j case, it must be considered as divisible, by the
agreement of the parties. Where the parties
, do an act which prevents the application of
! *the general rule, and produces a neces- [*237
shy of deviating from it, and dividing the risk,
it shall be done. Here the parties have, by
their own contract, created a state of circum-
stances which renders it impossible to do jus-
tice without dividing the risk. It is a neces-
sity growing out of the stipulation of the par-
ties, and ought to have the same effect as an
express stipulation. In all cases where it is
laid down that the risk is indivisible, a right
to contribute exists, so that equity is done.
Then, when the parties stipulate 'that there
shall be no contribution, must not the court,
of necessity, make the risk divisible, in order
to dispense the same equity, and make the con-
tract what it is, and ought to be — a contract of
indemnity only, and no more ?
The apportion is for the benefit of the as-
surers, and they ought to furnish the evidence
and the data for calculating the amount of
premium to be returned. There is really no
such difficulty as is pretended, in estimating
the different risks at and from a place. It is
only to deduct the value of the risk from
Bayonne, which is easily known, from the
value of the risk at and from Bayonne to New
York, and the residue is the value of the risk
at Bayonne.
The words " premises aforesaid " mean the
property insured, not the exact voyage. The
property insured in this case being covered
by a prior insurance, the ca»u« faederut has hap-
pened ; so that on this contract, whether the
risk is divisible or not, there must be a return
of premium on the amount covered by the
prior insurance. The extent to which the
plaintiffs would have been exonerated by the
prior insurance, measures the extent of the re-
turn of premium. The insured are not bound to
pay more than one premium; and the underwrit-
ers can claim but one premium, and that for
the risk run by them. If there had been a
total loss in this case, the plaintiffs would have
said : " You must first resort to the under-
writers on the Philadelphia policy for the
amount insured there ; we will pay you only
for what you are not covered by that policy."
On what principle of justice or equity, then,
can the plaintiffs retain the whole premium ?
The Philadelphia policy being prior in date,
the underwriters there "cannot be called on to
return any part of the premium, for, in case of
loss, they must have paid the sum subscribed
by them.
'// Jones, in reply, said that it was an es-
tablished principle that where the risk is entire,
and has commenced, there can be no return of
premium, unless the parties, by their contract,
have *flxedthe amount of premium to [*238
be returned. All the writers on the subject of
insurance expressly give their opinions against
apportionment and return of premium, on ac-
tat
SUPREME COURT, STATE OF NEW YORK.
1814
count of the great and almost insuperable dif-
ficulty of ascertaining the value of the risk run,
and the amount of premium to be returned.
Estimates of risks vary in different places, and
with the varying opinions of different under-
writers. Not a case is to be found of a return
of premium where the iters insured in the two
policies were different. It is true, that where
the loss happens in an tier common to both
policies, a case exists in which one set of un-
derwriters, paying the whole loss, would have a
right to call on the others for contribution. But
where no loss has occurred, how is it possible
to determine in which of the two iters it would
have happened ? Suppose the loss to have hap-
pened at Bordeaux, the plaintiff s would then
have been obliged to pay the whole, without
any right to call on the Philadelphia insurers
to "contribute a ratable proportion.
Again, suppose, instead of insurances for
different parts of the same voyage, policies on
different risks, and that the Philadelphia pol-
icy was against sea risks only, and the New
York policy against capture in port only,
would there be any return of premium in such
a case ?
The notion of apportionment of risks, in
cases where no rule of apportionment has been
agreed upon by the parties, is an over refine-
ment in the law of insurance, and, like its twin
sistar pro rata freight, owes its birth to the in-
genuity of Lord Mansfield. (Marsh., 656 ; 3
Burr., 1237.)
YATES, J., delivered the opinion of the
court:
The important and leading question is,
whether there ought to be a return premium
of forty-five per cent, on seven thousand dol-
lars, covered by the Philadelphia policy. The
policy underwritten by the plaintiffs contained
the usual printed clause, relative to prior as-
surances.
The definition of a double insurance given by
Lord Mansfield, in the case of Godin et al. v.
The London Assurance Co., 1 Burr., 489. will
not aid the construction of the printed clause,
as contended for by the defendants' counsel.
His Lordship says : " It is when the same man
is to recover two sums instead of one, or the
same sum twice over, for the same loss, by rea-
son of his having made two insurances on the
same goods, or the same ship." His Lordship
239*] could never have intended that *two
insurances on the same ship, not for the same
entire risk, was a double insurance: and, if not,
the case before us cannot be deemed one of that
description. The case of Thurston v. Koch. 4
4 Dallas, 348 ; 1 Marsh., 115, supports the
principle that the risk must also be the same.
It must be admitted that the greatest part
of the risk contained in the policy of the Col-
umbian Insurance Company, according to the
manner this voyage has been performed, is
comprehended in the Philadelphia policy, and
being prior in date, they were exclusively liable
for the part assured by them. If, then, the
terms contained in the proviso of the New
York policy will warrant a return of premium,
for the proportion of risk which that Company
could not be made liable to pay, it would, per-
haps, be desirable that it should take place.
In order, therefore, to come to a correct decis-
134
ion, the question of apportionment or divisi-
bility of risks must be inquired into
The policy underwritten by the plaintiffs, is
at and from Bayonne to the first port the ship
might make in the United States. The one
prior in date, and subscribed by the Philadel-
phia Company, is "from Bayonne to New
York," leaving an opening for incidents which
might have happened, making the plaintiffs
liable for a total loss ; this would have been
the consequence of a disaster while the vessel
was lying at Bayonne, and for which risk the
Philadelphia Company were not on the policy.
There is also a variance in the policies as to the
port of destination ; the one prior in date is
from Bayonne to New York ; the second is
from Bayonne tb the first port the ship might
make in the United States ; " so that, if the
destination of the ship had been to any port in
the United States, except New York, an ex-
clusive responsibility might have been incurr-
ed by the plaintiffs for the whole amount in-
sured. It is, in fact, a risk for an entire voy-
age, both at and from Bayonne, and the sum
paid is in gross. There is no part of the policy
which will authorize a different construction.
The difficulty as to apportioning the premium,
therefore, appears to me, to be insurmountable.
It is impossible to ascertain the degree of risk,
without traveling out of the contract ; or how
much of the premium shall be apportioned to
each different part — what amount for the risk
at Bayonne, and how much as to the other part
of the voyage.
I cannot discover how the plaintiffs can be
deemed to have estimated the difference of risk,
by their own act. They certainly had no
agency in the first insurance, nor, "for aught
*that appears, had they any knowledge [*24O
of it when they subscribed their own policy.
They, consequently, cannot be bound by the
act of others, any further than their own con-
tract recognizes that act, which contract must
govern this case. The policy, therefore, can
only be resorted to, and no part of it warrants
the construction, that the parties, in any
event, contemplated a division of the risk. It
must, therefore, be viewed as one entire con-
tract ; and on such a contract the rule is in-
flexible, that if the loss happens any time after
the commencement of the risk, there can be no
return of premium. In this instance the risk
commenced at Bayonne ; no return of premi
um, consequently, can be awarded.
The decision in the case of Sermon v.
Woodbridge, Doug., 75, goes to establish this
principle. The policy there was on the ship and
cargo, at and from Honfleur to the coast of
Angola, during her stay and trade there, at and
from thence to her port or ports of discharge
in St. Domingo, back to Honfleur. The vessel
was captured before she reached St. Domingo :
it was contended that the voyage insured
ought to be considered as composed of three
distinct parts, or voyages: 1. From Honfleur
to Angola. 2. From Angola to St. Domingo.
3. From St. Domingo to Honfleur ; and that,
as the voyage from St. Domingo had never
taken place, no risk had commenced, and the
premium ought, on this account, to be appor-
tioned, and a return made of that part which
was paid to insure the risk from St. Domingo
to Honfleur. Lord Mansfield, in giving the
JOHNS. REP., 11.
1814
LAWRENCE v. OCEAN INS. Co.
340
opinion of the court on the question of divisi-
bility, -a\ - it is an entire contract, and if the
loss happen at any time after the commence-
ment of the risk, there shall be no return of
premium. Without, therefore, violating this
established rule in the law of insurance, it
cannot be done in the present case.
It is, perhaps, to be regretted that the parties
did not provide for it in making the contract,
by expressly excepting prior insurances for the
whole or any part of the voyage, and stating
the amount of the risk at, and what it should
be from, or establishing some rule of appor-
tionment, so that the part covered by the prior
assurance might be distinctly known and sepa-
rated ; but as this has not been done, the pro-
viso in the policy does not authorize the sepa-
ration of the risk ; and, consequently, no re-
turn of any part of the premium. Judgment
must, therefore, be entered for the plaintiffs.
Judgment for the plaintiffs.
Cited in- 14 Wend., 460 ; .6 Ben., 161 ; 90 111., 124.
24 1*]*LA WHENCE, Survivor of WHITNEY,
v.
THE OCEAN INSURANCE COMPANY.
Marine Insurance. 1. Deviation — Where In-
tended Merely, Insurer Liable — Reasonable
Delay — Different Voyage Distinguished from
Deviation. 2. Evidence — Proof of Loss — Pro-
duction of Papers — Whole Taken Together.
3. Convoy.
Goods were insured " from New York to Gotten-
burgh, and at and from thence to one port in the
Baltic or North Sea. not south of the River Eyder."
"The rick to continue until the goods should be
safely landed at Gottenburgb and one other port."
The ship sailed from New York the 29th of May,
1810, and arrived at Gottenburgh in the month of
July following-, where she remained until the 8th of
October. being detained by adverse winds. The
master, according to instructions from the super-
cargo, sailed from Gottenburgh to St. Petersburgh.
to which place he intended to proceed, but meeting
with accidents, was compelled, from necessity, to
put into Carlsham, as the nearest port, for repairs,
where he arrived about the 10th or November, and
was detained by adverse winds until the season was
too far advanced to attempt the navigation of the
Gulf of Finland; and he accordingly wintered at
Carlsham, intending to pursue the voyage to St. Pe-
teraburgh, as soon as the: navigation was open.
About the 7th of April. 1811, the supercargo deter-
mined to send the ship to Stockholm instead of St.
Petersburg!! ; and as soon as the navigation was
free, which was about the same time for both those
pjaeea, the ship, about the 2d of May, in the after-
noon, sailed from Carlsham for Stockholm, and
early the next morning, off the west end of the
Island of Ouland, whilein the direct route, either to
Stockholm or St. Petersburgh, and before she had
come to the dividing point, she was captured by a
French privateer and carried into Dantzlc. and was
afterwards condemned by the Council of Prizes at
Paris. It was held that there was an intended devi-
ation only, and the loss having happened before the
vessel arrived at the dividing point, the insurers
were liable for a total loss.
NOT«. — Marine Insurance — Deviation* — What
comtitutfM — W hat exeiwr*— Delay— Temporary— In-
trntinn merely- -Visitinu port* in irrontf order. See
Gilfert v. Hallctt, 2 John*, (iw., 298. note.
Definition of deviation— Delay— Mere intent— De-
trntitm to nave life and property— Because of fttocfc
ode, or to amid enemy* uutom. Bee Patrick v.
Ludlow, 3 Johns, ('as.. 11, note; Liotard v. U raves,
3 Cal., 2», note ; Henshaw v. Marine Ins. Co., S Cai.,
274, note.
JOHNS. REP., 11.
The assured exhibited to the insurers the usual
documents and proof of interest, and also a copy of
a letter from merchants at Hamburgh, to the
owners of the ship, mentioning her capture and
condemnation, which was the only proof of loss in
the |M)ooctiglon of the assured ; tins was held to be
suitirii-nt preliminary proof of interest and loss
within the clause in the policy.
Where, by an order of the court, the assured were
directed to produce, under oath, to the assurers, all
letters and papers in their possession, or under their
control, relative to the matters in issue ; it was held
that the insurers were entitled to read the whole
correspondence and papers produced pursuant to
such order, it being analogous to an answer to a bill
of discovery, in chancery, the whole of which the
party is entitled lo read.
If a vessel is insured from N. to G. and one other
port, she may stay at G. a reasonable time after her
arrival. to make the necessary inquiries as toa mar-
ket. \c.. without its being considered a deviation :
and what is a reasonable delay, in such case, is a
proper question for the jury to decide.
Where an American vessel sailed from Gotten-
burgh, bound to St. Petersburgh, the next day after
a British convoy, and came up with the convoy the
day after, and kept company with it through the
Belt, but without receiving or exchanging any sig-
nals, or receiving any assistance from the convoy,
and without altering its course, or retarding its
voyage on account of the convoy, this was not con-
sidered as sailing under a British convoy, so as to
affect the right of the insured, to recover for a
total loss, in consequence of a capture by the
French, though the ground of the condemnation
was stated to be, her having sailed under British
convoy.
Citations— 2 Johns.. 136 ; 8 Johns., 317 ; Peake's
Ev., 35-37; 2 Esp.. 5. P., 21 ; 3 Com. Dig., 614; 1
Johns. Cas., 184 ; 2 Cai., 274; 3 Cranch, 384 ; 2 H. Bl.,
343; Park, 361; Marsh., 230; Doug., 16: 3 Oanch,
388 ; 1 Johns. Cas., 184 ; 2 Cai., 274 ; 2 D. & E., 32 ;
Park. 226, 227; 1 Campb., N. P., 454; 3 Mass., 408;
Marsh.. 201. Amer. Ed.
THIS was an action on a policy of insur-
ance, dated the 24th of May, 1810, on
goods laden or to be laden on board of the
American ship Atlantic, Jayne master, " at
and from New York to Gottenburgh, and at
and from thence to one port in the Baltic or
North Sea, not south of the River Eyder."
The risk to continue until the goods should be
safely landed " at Gottenburgh, and one other
port."
The premium was 1H per cent., to return 8^
per cent, if the risk ended safely at Gotten-
burgh. Warranted free from seizure in port,
except in Swedish or Russian ports. The
plaintiff claimed a total loss by French capture.
On the 6th of November, 1811, the plaintiffs
gave information to the defendants of the capt-
ure of the ship by a French privateer, and
abandoned to them the cargo, to the amount
insured thereon, as for a total loss, and at the
same time delivered to them the proof of in-
terest and loss. The defendants objected to the
sufficiency of the preliminary proof, because
the proof *of loss was only a copy of [*242
a letter from Messrs. Parish & Co. , merchants
at Hamburgh, dated the 20th of September,
1811, to Messrs. Hoyt & Tom, the owners of
the ship, inclosing a letter, dated at Paris, llth
September, 1811, from Captain Jayne to
Messrs. Parish & Co., informing them of the
condemnation of the Atlantic by the Court of
Prizes ; and stating the reason given for the
condemnation to be, that the ship had been
under English convoy, which the court con-
sidered as a denationalization. The objection
to this proof was overruled by the judge.
The master (Jayne) testified that he sailed
from New York in the ship Atlantic, on the
185
242
SUPREME COURT, STATE OF NEW YORK.
1814
voyage insured, the 29th of May, 1810, and on
or about the 17th of July following, arrived at
the quarantine ground in Wingo Sound, which
is between 10 and 20 miles below the harbor of
Gottenburgh. After a quarantine of 4 days,
the Atlantic went into safe harbor about the
25th of July. Soon after the expiration of the
quarantine, he received sailing instructions
from the supercargo, to proceed with the At-
lantic from Gottenburgh to St. Petersburgh in
Russia. The ship remained at Gotteaburgh
until the 8th of October following, bekig de-
tained from about the 26th or 28th of July,
until that time, by adverse winds. Several
hundred vessels, which put into Gottenburgh
during that time, were also detained by ad-
verse winds. The master was instructed by the
supercargo not to take convoy. A convoy with
a great number of vessels, which had been de-
tained at Gottenburgh by adverse winds, got
under weigh and sailed from that place on the
7th of October. The Atlantic sailed on the 8th
day of that month, bound to St. Petersburgh
in Russia, and on the next day came up with
the convoy. Two or three American vessels
sailed from Gottenburgh before the Atlantic,
but the master testified that it was by beating
against a head wind ; and that the Atlantic,
with the cargo she had on board, did not beat
well ; and that from the 26th or 27th of July,
until she left Gottenburgh, the wind was
never, in his opinion, such as could permit him
to sail with safety or prudence.
After the Atlantic left Gottenburgh, on the
9th of October, she encountered continued ad-
verse winds, for 20 days, and had frequently
to come to anchor, in making her passage
through the Great Belt, and while at anchor,
was run foul of by a galliot, by which the jib
243*] boom and main yard were *carried
away, and the windlass had become strained
and weakened. The Atlantic entered the
Baltic about the 1st November, but in conse-
quence of the damage she had received, it was
necessary to make the first port to repair ; and
after consultation, it was determined to put
into Carlsham for that purpose, that being the
nearest port, where they arrived between the
1st and 10th of November. Having repaired
the damage, the Atlantic sailed from Carlsham
for St. Petersburgh about the 10th of Novem-
ber, but meeting with violent adverse winds,
the ship returned to Carlsham the next day ;
and the wind continued so adverse as to pre-
vent any attempt, for 10 or 15 days, to pursue
their voyage to St. Petersburgh. The master
then thought the season too far advanced to
attempt to navigate the Gulf of Finland, and
dismantled the ship, intending to winter at
Carisham, and to pursue the voyage to St. Pe-
tersburgh, when the navigation should be open
the ensuing spring.
A month or two after the Atlantic was laid
up at Carlsham, war was declared between
England and Sweden, and the Atlantic, as
well as other foreign vessels at Carlsham, were
seized by order of the Swedish government,
and her papers sent to Stockholm, and the
master went to Stockholm and obtained her
liberation.
About the 2d of May, 1811, the navigation
of Carlsham opened, and the Atlantic, about
that time, sailed from thence, being then des-
136
lined for Stockholm, the voyage to St. Peters-
burgh having been given up. A number of
other vessels bound up the Baltic had also
wintered at Carlsham ; but the Atlantic was
among the first that was ready for sea, and
sailed from Carlsham in the afternoon of the
2d of May ; and early the next morning, off
the southwest end of the island of Ouland,
distant three leagues, was boarded by a French
privateer, and carried into Dantzic. The ship's
papers were sent to Paris, where the master
went, and the ship and cargo were condemned
by the Court of Prizes, at Paris, about the 10th
of September, 1811. The copy of the sentence
of condemnation, which was produced and
verified by the witness, contained the follow-
ing sentence : " The Council decides the prize
made by the French privateer Le Petit iHable,
of the ship Atlantic under the American flag,
carried into Dantzic, good and valid ; conse-
quently adjudges to the owners and crew of
the said privateer all the said vessel, &c., as
well as the merchandise of her cargo : the
whole to be sold *at vendue, according [*244
to the forms, and in the manner prescribed by
the laws and regulations made concerning
prizes."
The master further testified that when the
Atlantic was taken, she was on the direct route
either to Stockholm or St. Petersburgh ; that,
had she been going to either of those places,
her course, after she left Gottenburgh, and till
she was taken, would not have been different.
On his cross examination, the master said
that he was under the directions of the super-
cargo for the voyage ; that 4 or 5 days after
the arrival of the ship in Wingo Sound, the
supercargo went to Gottenburgh ; and on his
return to the ship, he said he should wait at
Gottenburgh for letters from Hamburgh and
Copenhagen, and that, in his letters from Co-
penhagen, he expected to receive a Danish
Sound pass, which was an essential document
in order to pass through the Belt.
The master said he sailed from Carlsham as
soon as possible after the navigation was open,
which happens about the same time to Stock-
holm and St. Petersburgh. When he went to
Carlsham, he had no intention of going to
Stockholm, but he intended to pursue the
voyage to St. Petersburgh as soon as the nec-
essary repairs were made. Whether it wa&
his intention to go to Stockholm or St. Peters-
burgh, he must, in either case, have stopped
at Carlsham. If he had intended to have gone
to Stockholm, he could not, after the deten-
tion at Carlsham, having reached Stockholm
that autumn, on account of the lateness of the
season. He said it was his intention, when
he left Gottenburgh, to keep company with
the convoy ; but not, if by doing so, he should
be obliged to go out of his way, or in any re-
spect alter the course of or retard his voyage ;
that he came to anchor only on account of ad-
verse winds, and only where he should have
done' so had his ship been alone ; that he made
frequent attempts to get ahead of the convoy,
but always fell astern, and was often so far
behind as to be entirely out of their protection.
The convoy paid no attention to the Atlantic,
and made no signal to her, nor did the Atlan-
tic make any signal to the convoy. When the
Atlantic was injured by being run foul of, a
JOHNS. REP., 11.
1814
LAWRENCE v. OCEAN IMS. Co.
244
boat from another vessel came to offer assist-
ance, which was declined, lest it might be con-
sidered as connecting the Atlantic with the
coavoy. The convoy was understood to be
British.
The defendants' counsel, after giving some
evidence, which, it is not necessary to state
24S*] here, as to the seaworthiness of *the
-hip. in not having sufficient cables when she
left Gottenburgh, «xc., offered to read sundry
letters from the supercargo to the owners of
the Atlantic, relative to the stay of the Atlan-
tic at Gottenburgh ; which letters, with vari-
ous others, concerning different events of the
voyage, to and from various persons, had been
furnished to the plaintiffs, pursuant to a rule
of the court, in the cause.1
The plaintiff's counsel objected to the read-
ing of the letters offered, unless all the letters
2*O*] and documents which had been *fur-
nished pursuant to the rule of the court, were
also to be considered in evidence, so far as the
plaintiff was entitled to read any of them. The
defendants' counsel, insisted that reading from
the correspondence, as to a particular point,
would not authorize the plaintiff's counsel to
read what related to other matters wholly dis-
tinct. The judge overruled the objection of
the defendants' counsel, and decided that any
of the letters might be read by either party.
In a letter from the supercargo to the own-
ers of the ship and the plaintiff, dated July
21st, 1810, at Gottenburgh, he states that Got-
tenburgh afforded no market, and that he had
written to inquire the state of the ports in
Holstein, Prussia, and Swedish Pomerania ;
that the risk of proceeding to another port was
great, "as the Danes captured everything;
the only alternative seemed to be, 'to take
British convoy, and instead of going through
the Sound, to pass through the Belt," &c.
That he should rather remain where he was,
than risk the property in any way that might
affect the insurance.' In another letter from
the supercargo to the plaintiff, dated Gotten-
burgh, the 10th of August, 1810, speaking of
the necessity of proceeding to another port for
a market, and that other vessels had been or-
dered to a port in Holstein, he adds, "which
would hardly have been done if there was dan-
ger of capture in port ; and if captured previ-
ous to arrival, the owners were protected by
the insurance." The plaintiff's counsel then
read several passages from the correspondence.
In a letter from the supercargo to the owners,
dated September 26, 1810, in which he speaks
of the long detention at Gottenburgh by con-
tinued adverse winds, he states that the best
of the season was past, and that there was
! great hazard of being obliged to winter in the
I Baltic ; and that if the wind continued many
more days unfavorable, he should be obliged
to abandon the Baltic expedition, or go up
with the certainty of wintering there ; that
several American ships had received instruc-
tions from the British commander, and formed
part of hisconvoy to the *Baltic ; that, [*247
in case of capture by the Danes, they would
be condemned for sailing with such convoy,
and it might be the cause of difficulty with
the underwriters ; and that he had instructed
Captain Jayne not to receive instructions of
1.— LAWRENCE. Survivor of WHITNEY,
THE OCEAN INSURANCE COMPANY.
In causes on policies of insurance, the court will
make an order for the assured to produce to the in-
surers, upon affidavit, all papers, or true copies
thereof, relative to the matters in issue between the
parties.
MR. S. JONES, JR.. for the defendants, moved
for a rule that the plaintiff in this cause produce,
on affidavit, to the defendants, or their attornev,
within such reasonable time as the court should di-
rect, all the written correspondence or letters, in
the possession of the plaintiff, or under his control,
or In the possession of. or under the control of,
Ooold Hoyt, trading under the firm of Hoyt & Tom,
at any time heretofore carried on, or interchanged
between the master or supercargo of the ship At-
lantic, mentioned in the plaintiff's declaration, and
any and all persons in the United States, or in for-
eign carts, relating to the said ship, her cargo, or
the voyage mentioned in the declaration of the
plaintiff; and also nil letters of instructions to the
captain or supercargo, and each of them, from any
person or persons whatever, relating to tin- said
ship, cargo or voyage, or otherwise concerning this
cause ; and that the plaintiff allow the defendants,
or their attorney, to inspect the same, and take
enpieH thereof, or that the plaintiff deliver to the
'li-t'eiidanta. or their attorney, true copies thereof at
large; and that, in the meantime, and until 00 days
after the production of such correspondence, let-
ters and ptipers, &e., all proceedings on the part of
the plain; ill t» • stayed, or for such other or further
relief as the court may think flt und reasonable.
Mr. HVH*, also, argued in 9upjH>rt of the motion.
They cited Uoldschmtdt v. Marryat, 1 Campb. N. P.
< uses, .V>'.i, ,V£>, ami Millnnl \. T.nlor. 1 Tamil.. li.7.
Mr. Colden, contra.
It appeared from the affidavits read, that the de-
fendants had made a demand of the plaintiff of the
letters and papers, or copies thereof, which were
the object of this motion, and that he referred them
to Goold Hoyt. who was concerned In the cargo,
and had a similar claim against the defendants, and
JOHNS. REP., 11.
said that he would consent to whatever Hoyt would
do in the business ; that application was then made
to Hoyt, who refused to produce or deliver the
original correspondence, &c., to the defendants or
their counsel, but said that the President of the
Company.Jand two or three of the Directors, might,
in his room and in his presence, read and examine
the papers, but without their counsel being present.
The affidavit of the President of the Company was
also read, stating that such letters, papers and doc-
uments were in the possession of the plaintiff, or
under his control, ana that the defendants, as they
were advised by counsel, could not safely proceed
to trial without them, or true copies thereof.
The Court granted the following Order :
Supreme Court, January 21, 1813. It appearing to
the court, in this cause, that the action is on a pol-
icv of insurance, and that the defense made there-
to Is, that the assured used belligerent convoy ;
that there has been a deviation from the voyage
insured, or a substitution of another voyage in-
stead thereof, and upon due notice and motion for
that purpose by the defendant's counsel, and upon
hearing counsel on both sides, ordered, that the
plaintiff produce upon affidavit, to the defendants,
or to their attorney, the written correspondence
or letters, or copies thereof, in the possession of
the plaintiff, or under his control, heretofore car-
ried on or interchanged between the master or su-
percargo of the ship Atlantic, mentioned in the
declaration, and each of them, and any other per-
son or persons, or such parts thereof as relate to. or
concern, the said ship or her cargo, in respect to the
voyage, in the said declaration mentioned : and
also nil the letters lit' in-t met inns In the xiiil eap-
tain or supercargo, relative to the said ship and
cargo, in respect to the voyage aforesaid : and that
in the meantime, and for 10 days atter the produc-
tion of the suid papers, the proceedings in this
cause, on the part or the plaintiff, be stayed ; pro-
viilcd. however, that the said papers shall be only
used in sup|H>rt of the said defense, and not ot any
other."
Cited ln-19 Johns., 899: 4 Cow., 401 : 9 Wend.,
4GO; UN. Y.,581; 26 How. Pr., 688 : 1 Rob., 686.
18?
247
SUPREME COURT, STATE OF NEW YORK.
1814
such convoy, but that there would be no im-
propriety in sailing with the first fair wind,
even if he passed through the Belt at the same
time with the convoy.
In a letter from the supercargo to the own-
ers, dated at Carlsham, the 31st of October,
1810, he mentions that his destination, on leav-
ing Gottenburgh, was -to St. Petersburgh ; but
having been obliged, in consequence of inju-
ries sustained, to make the first port to repair,
he had put in there, and expected to sail in two
days for St. Petersburgh, but should the
weather set in severe, he should go into Revel.
In another letter from the supercargo, dated
the 14th of November, 1810, he mentions the
detention of the ship at Carlsham by adverse
winds, but that, notwithstanding the lateness
of the season, he had made an attempt to pro-
ceed to St. Petersburgh or Revel, but was
driven back to Carlsham by adverse winds,
and that it was necessary to winter there, &c.
That "as soon as the navigation opened in the
spring, the ship would leave Carlsham for St.
Petersburgh ; that in the meantime he should
order 80 tons of iron, and 230 tons of hemp to
be ready for her at Cronstadt, that, on her arri-
val, as soon as her cargo was landed, she
might be immediately despatched." In an-
other letter, dated at 'Carlsham, the 17th of
November, 1810, he recommends insurance on
ship and cargo, from St. Petersburgh home.
In a letter from the supercargo to Captain
Jayne, dated Carlsham, 17th of February,
1811, he says, "As the destination of the At-
lantic, as soon as she can leave this port, is
fixed for Russia, I now, as supercargo, and in
virtue of the authority vested in me by the
owners, give you the following instructions,
relative to your destination and proceedings,
on your arrival at St. Petersburgh," &c. In
a letter, dated St. Petersburgh, the 10th of
March, 1811, from merchants there to the
supercargo, they state that the documents rel-
ative to the cargo of the Atlantic, communi-
cated to them, were very full, and would for-
merly have entitled it to admission in the
Russian ports (as they did not have the least
doubt of its neutrality), but that the orders of
the government being positive that any cargo
from America, &c., must have a certificate of
origin of a Russian Consul, the admission of
248*] the Atlantic's cargo, being deficient *in
that document, would wholly depend on the
grace of the government.
In another letter, dated the 17th of March,
1811, from the same merchants at St. Peters-
burgh, to the supercargo, they say: "You
will consider, from the regulation being posi-
tive, that every cargo or parcel of goods im-
ported hereafter into this country, must be
accompanied with the Russian Consul's certif-
icate, whether it may be worth your while to
venture on the voyage to Cronstadt."
On the 7th of April, 1811, the supercargo
wrote from Carlsham to his owners, inclosing
the letters from his correspondents at St.
Petersburgh, saying: "They confirm me in
the opinion, that it is most for your interest to
land the Atlantic's cargo at Stockholm, and I
now inform you, that in the course of 10 days
she will proceed to that port."
In a letter from Captain Jayne to the own-
ers, dated Dantzic, the 6th of May, 1811, he
138
informs them of the capture of the Atlantic by
a French privateer, in twelve hours after her
departure from Carlsham, and of her being
sent into Dantzic, &c.
The Russian Consul at New York testified
that at the time of his appointment, which
was the 16th of March, 1810,. he was directed
by the Russian Consul-General to give public
notice that the cargoes of American vessels,
bound to Russia, must be furnished with the
Russian Consul's certificate or origin; and that
he was accordingly applied to for such certifi-
cates, and from the 31st of March to the 29th
of May, 1810, issued 31 such certificates to
American vessels bound to Russia.
On the 19th of July, 1811, the plaintiff ad-
dressed a letter to the defendants, informing
them of the arrival of the Atlantic at Carlsham,
and her situation, and that the supercargo
had written, on the 28th of April, that he was
only waiting for a fair wind to leave the place
for Stockholm, and that, as a question might
arise, in case of accident, whether the ship
had not deviated, and that us they were not
willing to have so large an amount of prop-
erty at risk, by which any doubt might arise,
as to a recovery in case of loss, they requested
the defendants to say on what terms they
would give liberty to proceed to Stockholm.
The judge left the point of seaworthiness to
the jury, as a question of fact, intimating, how-
ever, his opinion that the weight of evidence
was against the sufficiency of the cable when
the vessel left New York. That as it appeared
that the *vessel had sailed from Got- f*249
tenburgh with an intention to proceed to St.
Petersburgh, and had, after she had been
obliged to put into Carlsham in distress, and
before she sailed from that port, at the opening
of the navigation, in the spring of 1811, deter-
mined to change her destinatio.n, and proceed
to Stockholm, instead of St. Petersburgh, and
having sailed from Carlsham, with the inten-
tion to go to Stockholm, and that intention
not having been changed when she was capt-
ured, it became a question whether the policy
was not discharged ; but this question was, by
the consent of the parties, reserved for the
opinion of the court.
That, after disposing of the question as to
the seaworthiness, the next question for the
consideration of the jury was, whether there
had been an actual delay at Gottenburgh.
That, under the policy, he was of opinion that
the vessel was not confined to a mere right to
touch at Gottenburgh, but had a right to re-
main there a reasonable time, to make inquir-
ies respecting the markets, of for any other
purpose ; that a delay for eight or ten days did
not appear to him unreasonable, even if the
winds had been fair for her departure during
that time. But if, after that time, the Atlantic
had voluntarily remained at Gottenburgh,
waiting for a convoy, or from any other cause
than necessity, it would be deviation, and dis-
charge the insurers. That the weight of testi-
mony, in his opinion, was strongly in favor of
the fact that there had been no such voluntary
detention.
That another question for the consideration
of the jury was, whether the Atlantic had
sailed from Gottenburgh under convoy. -If
she waited for convoy, or retarded her voyage
JOHNS. REP., 11.
1814
LAWRENCE v. OCEAN INS. Co.
349
for the sake of the protection of convoy, it
would discharge the defendants ; but a mere
sailing in company with convoy would not, in
his opinion, vitiate the insurance, and it ap-
peared from the evidence that the Atlantic had
done no more. That if the jury believed the
vessel to be seaworthy, and agreed with him
on the points submitted to them, they would
find a verdict for the plaintiffs, subject to the
opinion of the court on the point reserved ; the
amount to be recovered to be settled by persons
to be appointed by the court, at the time judg-
ment should be given.
The jury found a verdict for the plaintiffs,
subject to the opinion of the court on the ques-
tion reserved.
The following points were raised by the
plaintiff's counsel for the consideration of the
court :
1. The preliminary proofs were sufficient.
25O*] *2. The plaintiffs had a right to read
any part of the correspondence, under the rule
of court.
8. The question raised as to the seaworthi-
ness of the vessel was submitted to the jury,
and their verdict is not against evidence.
4. The delay at Gotten burgh was reasonable
and justifiable, and the charge of the judge on
that point was correct.
5. The vessel did not sail under convoy ;
and her sailing in company with convoy was
no breach of the warranty in the policy.
8. The vessel was not obliged to elect her
second port before she left Gottenburgh, but
might proceed from thence to any other port,
provided she was never, after she left Gotten-
burgh. on the route to more than one port.
7. While at Gottenburgh, she did elect St.
Petersburg!!, though she afterwards intended
to jro to Stockholm ; yet having been captured
while she was on the route to St. Petersburgh,
there was merely an intended, and not an
actual deviation.
Mr. Golden, for the plaintiffs, said he should
argue only the last two points, being those re-
served, leaving the other points for the decision
of the court, on the authorities which might
be cited.
The vessel was not bound to elect her second
port, before she left Gottenburgh, but might
proceed from thence to any other port, so that
she was never on the route to more than one
port, and never put the insurers to more than
one risk.
The object of this species of insurance is to
give to the assured the advantage of all infor-
mation which may be obtained abroad, when
the vessel is going to look for a market ; and
she may avail herself of the information ob-
tained after she leaves her first port, as well as
of that previously received, provided, however,
and the argument is to be understood with
that qualification throughout, that the insurers
are never subjected to more than one risk. If
she advances one foot on a second or different
route from the one she set out upon, no doubt
the policy would be at an end.
Suppose an insurance from New York to a
port in Europe, and the vessel sails for London,
and while she is in the route to London, but
before she is at the dividing point, she hears
2rtl*] of a *war with England, may sho not
change her destination and go to Cadiz ?
JOHNS. REP., \\.
Insurances to a port and to a market are very
frequent . but it has never been xinderstood
that the vessel is bound to elect her market
before she left the first port, nor that she is
obliged, at all events, to adhere to that election.
Adother form of insurance, also very com-
mon, is to a particular port, and from thence
to a port of discharge ; but it has never been
supposed that the port of discharge must be
elected at the first port.
Indeed, to give the construction to the policy
which will be contended for by the defendant s
counsel, would be to add words to the policy,
and substitute another contract between the
parties. It would make the language of the
policy, instead of the words used, to be, that
the insured shall make his election at the first
port, and when made, that the vessel should
go to the elected port, and no other.
There is no reason why the insured should
be bound to make an election at the first port,
if, by not doing so, he puts the assurer to no
additional risk.' The assured is under the
same necessity of showing that the vessel was
never in two routes, as he would be of show-
ing there was no deviation, if the second port
had been specified in the policy. Admitting
even that this kind of insurance may subject
the insurers to additional hazard, or the chance
of imposition, yet these chances must, or ought
to have been, taken into consideration at the
time the insurance was made, and if so, it is to
be presumed that a premium was taken pro-
portioned to the risk.
2. If the vessel was obliged to elect her sec-
ond port at Gottenburgh, she did in fact elect
St. Petersburg, and though she afterwards
intended to go to Stockholm, yet, having been
captured while she was in the route to St.
Petersburgh, and before she came to the divid-
ing point, it was only an intended, not nn actual
deviation.
The difference between an abandonment of
a voyage and an intended deviation is well
settled. An abandonment of the voyage is
where the destination is changed before the
voyage commences. An intended deviation is
where there is an intention, formed after the
commencement of the voyage, to go to a port
different from the one permitted by the policy.
(Marsh, on Ins., 184.)
Admit, then, that St. Petersburgh was
elected, it may be considered *as if [*252
actually inserfed in the policy, and the voyage
would be from New York to Gottenburgh, and
thence to St. Petersburgh. Considering, then,
New York or Gottenburgh as the terminus a
qua, there was no intention to deviate, until
the voyage commenced ; for the vessel left
Qottcnburgh on her ulterior voyage, with the
sole intention of going to St. Pe'tersburgh, the
voyage insured. It Is not, and cannot be,
pretended, that there was any deviation in go-
ing to, or remaining at, Carlsham, since it is
proved that she went and remained there from
I necessity ; and it was not until a very short
time before the vessel sailed from Carlsham
that the intention to go to St. Petersburgh was
changed ; and it is proved that the Atlantic
i sailed from Carlsham at the same time, and pur-
sued the same course, until her capture, that
she would have done had shebeen bound either
to Stockholm or St. Petersburgh. While at
SUPREME COURT, STATE OF NEW YORK.
1814
Carlsham she was as much on her voyage to
S<;. Petersburg!!, as if she had been on the open
sea. Suppose that after she left Gottenburgh,
and while on the open sea, in her route to St.
Petersburgh, the captain or supercargo had
determined to go to Stockholm instead of St.
Petersburgh, and had pursued that intention,
this would not have amounted to a deviation,
so as to avoid the policy, if the vessel had been
lost before she came to the dividing point, and
while she was in the direct route to her proper
port.
The intention of going to Stockholm was
formed by the supercargo, on receiving, while
at Carlsham, information, no matter whether
well founded or not, that, on account of cer-
tain decrees of the Russian government, the
vessel would not be admitted into a Russian
port, without certain certificates, with which
she was not furnished. Now if, after she
sailed from Carlsham, with intent to go to
Stockholm, but before she came to the divid-
ing point, she had been met at sea, and this
information had been contradicted ; or sup-
pose she had heard that Stockholm was shut,
and St. Petersburgh open, and had gone di-
rect to St. Petersburgh, would the intention of
going to Stockholm have vacated the policy,
so that the assured could not have recovered,
if the vessel had been lost before she arrived
at St. Petersburgh, though she never had
been, for a moment, out of the route to that
port?
A mere intention to deviate has no effect
on the contract of insurance ; there is always
a locus penitentice, and, until the intention is in
part executed, it is to be presumed that the
2o3*] party *will avail himself of it ; and
there was ample room for him to do so in the
present case, for the vessel was captured imme-
diately after leaving Carlsham, and at a great
distance from the dividing point.
Again, it will be contended by the defend-
ants that the information which induced the
intention to go to Stockholm was unfounded,
and that the Russian decrees did not apply to
the cargo of the Atlantic. If so, might she
not have learned the truth before she arrived
at the dividing point, and thereby have been in-
duced to pursue, without deviation, the voyage
to St. Petersburgh ?
The terms, abandonment of voyage, or
dereliction of voyage, are not applicable to
this case. Wherever there is an abandonment
of a voyage, there must be a return of prem-
ium. Suppose the voyage to be described in
the policy, from New York to Gottenburgh,
and from thence to St. Petersburgh. If the
voyage to St. Petersburgh had been aban-
doned, the insured would be entitled to a re-
turn of premium, pro fanto. But as the ves-
sel was on the route to St. Petersburgh, and
it was not abandoned before capture, there
could be no claim for a return of premium in
this case.
The cases decided in our courts, on the sub-
ject of deviation, are those of Siha v. Low,
1 Johns. Cases, 184 ; Henshaw v. The Marine
Ins. Co., 2 Caines' Rep., 274; Forbes v.
Church, 3 Johns. Cases, 154 ; and Tucker v.
Marine Ins. Co. of Alexandria, 3 Cranch's
Rep., 357. The case of Henshaw v. The Ma-
rine Ins. Co. is a very strong case to show that
140
a mere intention to deviate can have no effect
on the contract of insurance.
The English cases, as to deviation, and
which are to be found in Marshall (Marsh, on
Ins., 202, 203), and Park (Park, Ins., 112, 436),
are Foster v. Wilmer, 2 Str., 1249 ; Kewley v.
Ryan, 2 H. Bl., 343; Thelluson v. Ferguson,
Doug., 61 ; Lavabre v. Wilson, -Doug., 284.
As to the sufficiency of the preliminary
proof, the counsel cited Talcot v. Marine Ins.
Co., 2 Johns., 130 ; Craig v. United Ins. Co., 6-
Johns., 226 ; Barker v. Phanix Ins. Co., &
Johns., 307.
As to the second point, he cited, 1 Peake's
Law of Ev.,' 35 ; Bull, N. P., 237 ; Vin. Abr.,
tit. Ev., Ab., sec. 16, p. 94; 2 Bac. Abr., 621,
tit. Ev., F ; 2 Bos. <fe Pull., 548.
To show that the sailing in company with
British convoy could not affect the policy, and
that even if the vessel had availed herself of
it, to avoid imminent danger, it would not
have avoided the *policy, he cited [*254
Wilson v. Marine Ins. Co., 3 Cranch, 187 ; and
Post & Minium v. The Phcenix Ins. Co., 101
Johns.
Messrs. Griffin and Wells, contra. 1. The
insured was bound to make his election, as to
the ulterior port, at Gottenburgh, otherwise,
on her sailing from Gottenburgh, there would
have been no terminus ad quern — no voyage.
It is the termini that constitute the voyage,
and it is essential that the voyage insured
should be certain. (Mar. Ins. Co. v. Wood, 6
Cranch, 29, 47.)
But it is enough that the insured did, in
fact, before the departure of the vessel from
Gottenburgh, elect St. Petersburgh as the
ulterior port ; and that election, once made,
must be final and irrevocable. This is the
settled rule of common law. (3 Com. Dig.,
414, Elect., C. 2 ; 9 Vin. Abr., 362, Elect., E ;
3 Co., 26 b.) The same rule prevails in chan-
cery (Anstr., 229; 2 Str., 1248, Dick v. Bar-
rett), and is adopted by the martime law ; as if
an insurance be made on goods on board of
"any ship," the insured, having once elected
a ship and in which he has put the goods and
commenced the voyage, cannot afterwards
put them on board of another ship, except in
a case of necessity.
So the insured in this case, having elected
St. Petersburgh, it is the same, in effect, as if
that place had been inserted in the policy as
the port of ulterior destination. The right of
election was spent and gone, and could not be
again exercised.
2. Nothing occurred afterwards to author-
ize the substitution of Stockholm as the place
of destination, or the consequent change of
voyage.
[Mr. Emmet. We do not pretend that any-
'thing occurred to render a change of the port
necessary, nor do we offer any excuse for the
change ; we contend that we had right to do
so, as a matter of mercantile speculation.]
3. But the case is not varied in the result,
by the fact of the loss having happened while
the vessel was in the common iter to St.
Petersburgh and Stockholm. Though much
might be said, if the question was entirely
open, on what has been laid down by Lord
Mansfield (Wooldridge v. Bordell, Doug. Rep.,
16), yet it must be admitted that a mere in-
JOHNB. REP., 11.
1814
LAWRENCE v. OCEAN INS. Co.
254
trillion to deviate does no vacate a policy, if
the loss happens before the vessel arrives at
the dividing point. But the present case may
be distinguished from that of an intended
deviation, in two particulars : first, a mere in-
25ft*] tention to deviate does not affect *the
identity of the voyage. The component parts
of a voyage, and those on which its identity
depends, are the terminus a quo, the ittr, and
the t> rut in ii.t ad quern. A mere intention to
deviate deranges neither of these component
parts of the voyage. But if either of them is
varied, the identity of the voyage is gone, and
the policy is vacated. Hence, if the terminus
•a v/" is varied, the policy will not avail,
though the loss does not occur until after the
TOMnl has reached the common track. So, if
the it' r is changed, as in a case of actual devi-
ation ; and the rule must be the same if the
terminus ad quern be changed.
This variation of the voyage vitiates the
policy, because it is a substitution of a new
contract, and enables the insurer to say, Non
in hacfadera vent. (Marshall, 185 ; Park,
887.) The degree of risk, so far as it depends
on the important peril of capture, depends
much on the port or country to which the ves-
sel is bound, and this risk* is very materially
varied by a change of the terminus ad quern of
the voyage.
Second, a mere intention to deviate does
not influence the locality of the vessel. But
the substitution of Stockholm as the ulterior
K>rt of destination did produce that effect,
ad the voyage to St. Petersburgh been only
in view, it is probable that the vessel would
not have proceeded from Carlsham, but would
have unloaded there. At any rate, it is not to be
supposed, if the expedition to Stockholm had
not been adopted, that the vessel would have
sailed at the very time, and have reached the
precise place she was in at the time of her
capture.
The substitution of voyage, therefore, in-
stead of being like a mere dormant and unexe-
cuted intention to deviate, is the very thing
which has led the vessel to the place of jeop-
ardr, and occasioned her loss.
1*he opposite doctrine is, that if, after the
inception of the risk, the vessel is in the prop-
er if> r. at the time of loss, it is no matter quo
•iiiini'i she came there. Suppose, however,
the Atlantic, being furnished with letters of
marque, bad left Carlsham in quest of a prize,
and had been lost, would the fact, in that
rase, that she was in the common it, r. at the
time of loss, have prevented the policy from
being void ?
4. The present case does not differ in prin-
ciple from that of a change of voyage before
the vessel has sailed from her original port of
departure. The substitution of a different
2ftO*] terminus ad *qn*m, in that stage of the
voyage, it is admitted, clearly vitiates the
policy. (Doug.. 16; 2 Term Rep., 30; Silva
v. Lou, 1 Johns. Cases, 184 ; ffensnaie v. Mar.
Ins. Co., 2 Caines, 274.) This is sometimes
said to proceed on the principle of a non-incep-
tion of the voyage. This language may be
correct when the insurance is from a place,
but not where, as in this case, the insurance is
at and from ; more especially, where the
terminus ad quern, mentioned in the policy, is,
JOHNS. REP., 11.
in fact, the one originally intended, but a dif-
ferent one has been substituted before the ves-
sel sails. That the risk has its inception in the
latter case, appears from the fact that the pre-
mium cannot be recovered back. (Stetnbaeh v.
Col. Ins. Co., 2 Caines, 130, per Livingston. J. ;
Hogg v. Horner, Park, 421 ; Mar. Ins. Co. v.
| Tucker, 8 Cranch, 185. per Johnson, J.)
Lord Mansfield, the author of the distinction
j between an intended deviation and a substitu-
tion of a vovage, states the reason of the dis-
tinction in \Vooldridge v. Roydeli. He says that
"in the case of an intended deviation, the
, terminus a quo and the terminus ad quern re-
! main the same." But speaking of a substi-
tution of vovage, he says "that was never
the voyage intended, and, consequently, is
not what the underwriters meant to insure."
Hence it appears, that the only reason why
a substitution of a different terminus ad quern,
: at the port of departure, vitiates the policy, is,
1 that it destroys the identity of the voyage ; and
the same principle equally applies to a subse-
quent change of the terminus ad quern.
5. The result, from a view of the whole sub-
ject, is, that if a vessel at any period, abandons
the voyage insured, and proceeds on a new
enterprise, the protection of the policy is lost,
and the assurers are not liable for a subsequent
loss, though happening before the ship had
departed from the common Her.
Marshall on Ins.. 202, note, after citing Roc-
cus (see Ingersoll's Trans, of Roccus, 95, note,
xx.;, and Emerigon1 quotes a passage from
Casaregis, who observes : "The voyage is said
to be changed when the master of the ship no
longer pursues his first principal destination ;
as when the ship, with her cargo and first
freight, no longer intends to go, nor actuallv
goes to the destined *port ;" and this, [*25^
Marshall adds, is understood to be the law of
England.
Emerigon, torn. 2, p. 56, ch. 18. sec. 14, in
the passage cited, treats of a voyage changed;
and in the llth section he speaks of a voyage
altered or broken up before the departure of
the vessel, and in section 15. he discusses the
doctrine of deviation (changement de route).
In the 14th section he must intend to speak of
a change of a voyage after the vessel's depart-
ure. He says : "If the vessel sets sail for a
different destination than that of the voyage
insured, or if arrived off, or in sight of, the
port of destination, she proceeds to another
place, or if, when departing from the lawful
route into which she baa entered, the ship
abandons her original destination, in order to
proceed elsewhere, in all these cases the voy
1.— Tom. 2, p. 56, ch. 18, sec. 14, voyage changt.
Marshall evidently cites the forelKn writers from
KmcriKon ; the whole passage in Koccus, n. 30, is as
follows, and should be read In connection with
note 52 : " Et Hi nmH* in camt prcedicto mutaverit
Her, vel eeperit secundum riaoium, vel convenerit
nsjmrtare alias merces In olium Jorum, ivj alia* asse-
curatiiines fecerit pro dicta secundo vtagio, tune in
cnxilnu prmtirtix asMCuratnre*, pro primo riagin,
amiAiug non tenentur, ita pmltat Rot. Gen. Decis.,
i").\i-. A'am cum nari* diit.rterit ad ejrtraneoux actus
dtfitur mutasse ittr, et /Jura rtagia /ecte^e, et prim urn
'la-it in mutatum; et ampliat ll»t<i. hoc prncederc rti-
amsi fuit cirpitum second urn riorum licet non com-
jtUturn ; nam cum fuerit tlerentiiin ad actum pmri-
rnurn. <lf#tinati» nalietur profecta ; cum pnvtentia
)tmpin<iua actui habeatur pro actu; limita tamen si
inutetur CJT jiuta cauwi, ut infra not. 52."
HI
257
SUPRKME COURT, STATE OF NEW YORK.
1814
age is changed." He expresses his dissent from
the opinion of Roccus, that a letting of the
ship to freight for another place would be a
change of voyage ; he then cites the opinion
of Casaregis,1 approved by Marshall, and he
tests the identity of the voyage by reasoning a
contrario, that the voyage is always the same,
when the captain, without losing sight of his
first destination, departs from it only in the
accessories, by touching at different places in
the course of the route'; in support of which
he also cites the opinion of Ca-saregis.2
In the 27th article of the ordinance of Louis
XIV., it is declared, that " if the, changing of
the course of the voyage or ship happens by
the order of the insured, without the consent
of the insurers, they shall be discharged from
the risk." (2 Peters' Adm. Dec. App., 14.)
In Driscoll v. Passmore, 1 Bos. & Pull., 200,
and Bovill v. Passmore, 1 Bos. & Pull., 313;
and especially in the latter case, the question
was made to depend, not so much on the pro-
priety of the deviation, as on the inquiry
whether the insured had abandoned the voy-
age ; and it seemed to be taken for granted
that if such was the case, it would be fatal.
In Normlle v. St. Barbe, 5 Boss. & Pull., 434,
it is stated by the counsel for the assurer, and
not denied by the other side, that when the
258*] terminus *ad quern is at at any time
abandoned, the policy is thereby forfeited, and
that there is a distinction between such a case
and that of an intended deviation.
In Blackenhagen v. London Assurance Co. , 1
Campb. N. P., 454, and Park, 226, Lord Ellen-
borough nonsuited the plaintiff, not because the
vessel had departed from what, under the cir-
custances, might have been the allowed tier,
had she kept the port of original destination in
view, but because the voyage insured had been
abandoned. The plaintiff afterwards brought
his action in the Court of Common Pleas, and
Sis James Mansfield submitted the cause to the
jury upon the point whether or not the plaint-
iff had abandoned the voyage insured. (1
Campb. N. P., 564.)
In Stacker et al. v. Harris, 3 Mass. Rep., 409,
the insurance was from Boston to the Canaries,
and at and from thence to any port or ports in
Spanish America, and at and from thence to her
port of discharge in the United States, under
whatever papers &c. The vessel went to the
Canaries, and there obtained Spanish papers,
and sailed for Vera Cruz, where she arrived,
and landed her outward cargo ; from thence
she sailed for the Havana, and in her passage
to that port, but before she left the track she
must have taken if coming to the United States,
she was lost. It was held that the outward
voyage terminated at Vera Cruz, and the sail-
ing for the Havana was a new and distinct
enterprise, not protected by the policy, and a
deviation from the voyage insured.
Mr. T. A. Emmet, in reply, said this was a
1. — " M atari viagium tune dicitur, quando primam
principaltm dentinationem magister navios nonse-
quitur ; utpote quod navis cum onero et cum primis
vecturis, ad locum destinatum amplius non intendat
ire, nee eat. Disc. 67 n. 34."
2.—" Cum capitaneus, retento semper primo propo-
sito et destinatione, in accessorite totaliter illam non
sequitur, mutando viam de recta in indirectam, vel
plures scalas, plures portas attingendo : animo tamen
et intentione prosequendi viagium ad metam destina-
tum."
U2
floating policy. It was not a case of an election.
The object was to leave the terminus ad
quern undefined and uncertain until the last
moment, for the benefit of the assured, pro-
vided he did not subject the insurers to a sec-
ond risk. Mere intention to change or deviate
does not subject the insurer to any new or
second risk. Change of voyage is where the
policy never attache 3, but a deviation is after
the risk has attached.
Roccus, De Assec., n. 20, 52, most certainly
considers a change of voyage, after the risk
has commenced, as a deviation. The defini-
tion of a deviation, laid down by the defend-
ants' counsel, is too narrow. Park, 6th ed.,
387, defines a deviation to be "a voluntary de-
parture, without necessity, or any reasonable
cause, from the regular and usual course of the
voyage insured;" and he is supported by Roccus
*and the authority of Lord Mansfield^ [*259
in Lavabre v. Walter. Doug., 288. The substi-
tution of another voyage, after the risk has
commenced, is a deviation, because the insurer
is nbt to incur a second risk. So long as he
continues exposed to the same risk, he is bound,
and no longer. After the voyage commences,
the insured has a locus penitentue, and a mere
intention to deviate will not conclude him.
The positions cited from Casaregis, Roccus
and Emerigon are not the law at this time in
England nor here.
The case of Thellusson v. Ferguson, Doug. ,
361 , is remarkably analogous, and is conclu-
sive on the point, that here was a mere inten-
tion to deviate, and the vessel having been lost
before she came to the dividing point, the
policy is not vacated.
Until some act is done to put the insurer on
a different risk, it is no more than an intended
deviation, and the true mode of testing the
matter is, to inquire whether there has been
any alteration or change of risk. If there has
not, and the risk was the same, what ground is
there for objection or complaint on the part of
the insurer ?
THOMPSON, Ch. J., delivered the opinion of
the court :
The insurance in this case is upon the cargo
of the ship Atlantic, on a voyage as described
in the policy, at and from New York to Got-
ten burgh, and at and from thence to one
port in the Baltic. On the arrival at Got-
tenburgh, the assured elected St. Petersburgh as
the ultimate port of destination, and sailed
for the same; but meeting with adverse winds,
was obliged to put into Carlsham, where
the vessel was compelled to winter ; and be-
fore leaving that place it was determined by
the supercargo to go to Stockholm instead of
Petersb'urgh ; and the principal question in
the cause is, whether this was a substitution
of a new voyage so as to discharge the under-
writers.
There were, however, several questions
raised in the course of the trial, which may
require some notice.
The objection to the sufficiency of the pre-
liminary proofs was properly overruled. The
usual and customary documents accompanied
with an affidavit, showing the interest of the
assured, were exhibited to the underwriters,
together with a copy of a letter from the mas-
JOHNS. REP., 11.
1814
LAWRENCE v. OCEAN IKS. Co.
250
ter of the Atlantic, received from Messrs.
Parish & Co., aud which was the only evi-
dence of loss in their possession ; and this was
•60*1 all that could be required. *The
clause in the policy making preliminary proof
necessary before payment of the loss can
be demanded, requires only reasonable in-
formation to be given to the underwriters,
so that they may be able to form some
estimate of their rights and duties before
they are obliged to pay; this clause has always
been liberally expounded, and is construed to
require only the best evidence of the fact
which the party possesses at that time. Such
has been the uniform construction put upon it
bv this court. (2 Johns., 186; 8 Johns., 317.)
T*he question of seaworthiness was properly
submitted to the jury, and the verdict does
not appear to be so much against evidence
M to justify the setting it aside on that ground.
The objection to the reading certain letters
from the correspondence produced by the
plaintiff was properly overruled. These letters
were drawn out from the plaintiff under a rule
of court obtained on the application of the de-
fendants, and which required the plaintiff to
produce, under oath, all letters in his posses-
sion, or under his control, which related to or
concerned the ship, or in respect to the voyage
in the declaration mentioned. This was anal-
ogous to an answer in chancery; and it is an
invariable rule, that where an answer is given
in evidence in a court of law, the party is en-
titled to have the whole of his answer read.
It is to be received as prima facie evidence of
the facts stated in it ; open, however, to be re-
butted by the opposite party. (Peake's Ev.,
35-37; 2 Esp. iV. P., 21.)
Whether there was an unnecessary delay at
Gottenburgh,1 and whether ihe Atlantic sailed
from thence under the protection of a British
convoy, were questions properly submitted to
the jury, and their verdict is fully warranted
by the evidence in the case.
These are all the questions made upon the
argument, except that which relates to the
change of voyage, which I am now to notice.
JJO 1*J *It is necessary, in order to arrive at
a correct conclusion on this question, to ascer-
tain in the first place, what is the voyage de-
scribed in the policy. It is a voyage from
New York to Gottenburgh, and at and from
thence to one port in the Baltic. Tin- /</•//«///'/.•<
ad '/>!' ni is left open and to be filled up at the
election of the assured. The assured were cer-
tainly not bound to make thin election before
leaving New York. The Atlantic, therefore,
sailed on the yoyage insured and was under
the policy, at all events, until her arrival at
Carlsham. It is unnecessary to say at what
time the assured were bound to make this elec-
tion of the ultimate port of destination. The
1.— In Kucker • ' nl., v. A II nut, 15 East. 278, it was
decided that, under a policy on goods at and from
I ,. in, |, in to any port or ports, place or places, in the
Italtic. backwards and forwards, Sec., with leave to
touch and stay at any ports and places t«r all pur-
poses whatsoever, the insured may wait at any port
or place whatsoever for information as to what port
in the Hal tii- the ship might safely proceed to dis-
charge, her cargo, such being the object and pecul-
iar nature of the adventure ; though in an ordinary
policy upon a definite voyage, those general words
would not authorize a stay To procure information
as to the ulterior destination of the ship.
JOHNS. REP., 11.
! election in fact, was made at Gottenburgh and
the assured were bound by that election. (8
Com. Dig., 614.) We must, therefore, con-
sider the policy as if St. Petersburg!! had been
inserted ; and it is to be regarded one entire
j voyage, commencing at New York and termi-
I nating at at such port in the Baltic as the as-
I >u red should elect. There is nothing in the
case to warrant us in considering the policV as
upon two distinct voyages ; the one from New
\ork to Gottenburgh, and the other from
thence to a port of discharge. There is one
entire risk for one entire premium ; but the
result in the case would be the same whether
the voyage is considered in the one light or the
other.
Assuming, then, the voyage desciibedin the
policy to be from New York to St. Peters-
burgh, how or where has the voyage been
changed, or another substituted, and on which
the Atlantic was in fact sailing ? In all the
cases on this subject which have fallen under
my observation, the termini of the voyage have
been described in the policy; and, generally,
the question has been as to the effect of an in-
tention to go to some intermediate port out of
the usual course of the voyage, intending, how-
ever, ultimately to go to the terminus ad quern
mentioned in the policy. The rule seems
to be well settled, both in England and
this court, that where the termini of the
voyage described in the policy, and of the
intended voyage remain the same, that any
designed deviation, whether formed before or
after the commencement of the voyage, would
not vitiate the policy. (1 Johns. Cas., 184; 2
Caines' Rep., 274 ; 3 Cranch, 384 ; 2 H. Bl.,
343 ; Park, 316.)
The rule laid down by Millar, 389, is, that
if the alteration of the voyage takes places
before the risk commences, it becomes a dif-
ferent voyage ; but if after, it is only a devia-
tion. When *there is a substitution of [*2<5i£
a different voyage the policy never attaches,
and the assured is, of course, entitled to a
return of premium. Did the risk in this case
commence ? Of this there can be no doubt.
The vessel was, unquestionably, on the voyage
insured until she arrived at Gottenburgh . the
policy, therefore, attached. There was an in-
ception of the risk insured against, and there
could be no return of premium. (Marsh.,
230.) •
Had the policy in this case been originally
filled up with St. Petersburgh as the port of de-
livery, or had that port been elected as the
d n/titnixitil quern, before the Atlantic left New
York and afterwards, but previous to her
sailing, the assured had changed the voyage
to Stockholm instead of St. Petersburgh, this
would have been substituting a new voyage .
the risk would never have commenced, and
there must have been a return of premium.
It would then have been like the case of
Wboldridgev. BoydeU, Doug., 16.
The insurance there was from Maryland to
Cadiz, but the whole evidence in the case
showed that the voyage was for Falmouth and
that there was no intention whatever of going
to Cadiz. The voyage described in the policy
was, therefore, never commenced. Lord Mans-
field told the jury that if they thought the
voyage intended was for Cadiz, they must find
14ft
262
SUPREME COURT, STATE OF NEW YORK.
1814
for the plaintiff ; but if they should think there
was no design of going to Cadiz, they must
find for the defendant.
There is, I am persuaded, no case to be found
where a change of voyage, after the commence-
ment of the one described in the policy, and
after the policy has attached, has been held to
be a substitution of a new voyage. If, in such
case, the alteration actually takes place, it is a
deviation which discharges the underwriter ;
and if not, it is only an intended deviation
which does not affect the policy.
I have thus far considered the case on the
ground that the voyage insured is to be viewed
as one entire voyage from New York to some
one port in the Baltic, 'at the election of the
assured ; and this, I think, is the true ground
upon which it ought to be placed. But, as I
have before said, the result will be the same if
the voyages be considered distinct.
Suppose the policy had taken up the vessel
at Gottenburgh, and described the voyage
from thence to Petersburg!], the policy would
have attached, and the risk commenced.
263*] *The sailing from Gottenburgh was
with an intention of going to St. Petersburgh,
and it was not until after her arrival at Carl-
sham that there was any change of intention,
or a determination to go to Stockholm. The
vessel was then on her direct course to St.
Petersburgh, and continued on such course
until her capture. There was, therefore, only
an intended deviation in consequence of in-
formation received by the supercargo after
leaving Gottenburgh.
The election of St. Petersburgh as the port
of discharge was made at Gottenburgh, and
had the ship left Gottenburgh with a deter-
mination to go to Stockholm instead of St. Pe-
tersburgh, it might have been a change of
voyage ; the policy would not in such case
have attached, or the risk commenced. The
terminus ad quern would have been altered be-
fore the commencement of the voyage, and
the vessel would not have entered upon the
voyage described in the policy.
It is, I believe, a position not to be contro-
verted, that the legal effect of an alteration
of the voyage upon the policy is, that it never
attaches. (3 Cranch, 388.) It would seem to
follow, as a necessary conclusion, that when
the policy does attach, any subsequent altera-
tion of the voyage »must be either a deviation
or an intended deviation ; and I think I have
sufficiently shown, that in the case before us
the policy did attach. The cargo was clearly
at the risk of the underwriters from New York
to Gottenburgh, and from thence to Carlsharn.
I therefore entertain a strong and decided
opinion, that the determination formed at
Carlsham to go to Stockholm, instead of St.
Petersburgh, was only an intended deviation,
and that the loss having happened before the
arrival of the vessel at the dividing point, the
underwriters are responsible. The plaintiff is
accordingly, entitled to judgment.
VAN NESS, J. I cannot assent to the opinion
of my brethren. We all agree that the assured
having elected, at Gottenburgh, to proceed
to St. Petersburgh, he was not at liberty after-
wards to change the final destination of the
ship. This is the only point in the case upon
144
which I have doubted ; but I am satisfied that
the weight of argument is on the side of the
assured, and I shall proceed to consider this
as an insurance on a voyage from New York
to Gottenburgh, and from thence to St. Pe-
tersburg. The question is, whether the set-
ting sail from Carlsham for Stockholm,
*and not for St. Petersburgh, was [*264
merely an intention to deviate, or whether it
was an alteration of the original plan of the
voyage, or a different voyage from that de-
scribed in the policy ; if the former, the as-
sured are entitled to recover; if the latter, they
are not.
The facts, in relation to this part of the case,
are, that after this vessel had wintered at Carls-
ham, it was determined to abandon the voyage
to St. Petersburgh, and go to Stockholm, for
which latter place she actually sailed. The tes-
timony of the captain on this point, is clear and
decisive. "About the 3d of May, 1811, the nav-
igation at Carlsham opened, and about that
time the vessel sailed for Stockholm, the voy-
age to St. Petersburgh having been given up.
It appears, also, that when the vessel "sailed
in the spring for Stockholm, a clearance for
that place had been obtained at Carlsham."
Considering the voyage insured, then, as
being from New York to Gottenburgh, and
thence to St. Petersburgh, I had supposed,
after the pause which had been made at Carl-
sham, in the prosecution of it (though for a
justifiable cause) after the determination there
formed of abandoning the port of destination
and substituting a different port, and after
procuring a clearance for such substituted
port, and actually sailing from Carlsham, in
pursuance of such determination, that the un-
derwriters could never be called upon to pay
for any subsequent loss. That this was not a
mere unexecuted intention to deviate from the
voyage insured will, I think, appear from a
brief review of some of the cases in which this
branch of the law of insurance has been con-
sidered. In the case of Woold)*idge v. Boydell,
Doug., 16, Lord Mansfield says: "A deviation
merely intended, but never carried into effect,
is as no deviation. In all the cases of that
sort, the terminus a quo and ad quern are certain
and the same." In the case of Kewky v. Ryan,
2 H. Bl., 343, it is held that "where the termini
of the intended voyage were really the same as
those described in the policy, it was to be con-
sidered as the same voyage, and a design to
deviate, not affected, would not vitiate the
policy." In Sylvav. Low, 1 Johns. Cases, 184,
the late Chief Justice of this court observed
that "the courts have gone a considerable
length towards giving us a precise and definite
criterion by which we can test the identity of
a voyage. While the terminus a quo and the
terminus ad quern are the same *with [*265
the termini of the voyage described in the pol-
icy, the voyage intended and the voyage in-
sured are the same, notwithstanding any pro-
posed deviation, or touching at any interme-
diate port", out of the usual and direct course
of the voyage. " The opinions of Lewis Ch. J. ,
and Radcliff, J., are to the same effect. The
same language is held by the court, in the
case of Henshaw v. Marine Ins. Co., 2 Caines'
Rep., 274. "The previous intention to touch
at Halifax did not make it a different voyage,
JOHNS. REP., 11.
1814
LAWRENCE v. OCEAN INS. Co.
265
as the termini, as well as the substantial object
of the voyage described, were the same." The
like doctrine is laid down, with great force
and precision, by three of the judges of the
Supreme Court of the United States, in the
case of the Marine IM. Co. of Alexandria v.
Tucker, 3 Cranch, 384, Washington J. , says :
"If the ship sail from the port mentioned in
the policy, with an intention to go to the port
or ports also described in the policy, a deter-
mination to call at an intermediate port, either
with a view to land a cargo, for orders, or the
like, is not such a change of the voyage as to
prevent the policy from attaching, but is merely
a case of deviation, if the intention be carried
into execution, or be persisted in after the ves-
sel has arrived at the dividing point."
From these cases, to which many more
might be added, the following principles may
be deduced :
1. That where the termini of the voyage
are preserved, an unexecuted intention to de-
viate does not destroy the policy.
2. That when the termini are abandoned,
And a new or independent voyage is deter-
mined upon and commenced, from that mo-
ment the protection afforded by the policy
ceases, and the underwriter is discharged.
3. That there is no such thing as a devia-
tion in any case where the identity of the voy-
age is not preserved, because there cannot be a
deviation from a voyage which the assured
does not intend to perform.
The application of these principles to the
present case will show, decisively, that the
plaintiff cannot recover. The termini were
not preserved ; the port of delivery was totally
abandoned, and a new port substituted, for
which the ship actually sailed. It would be a
departure from all correct rules ofr expression
to say, here was an intention to deviate from
the voyage to St. Petersburg!!, when all inten-
tion to perform such a voyage was uncondi-
2OO*] tionally *renounced. It is supposed,
however, that if a determination to abandon
the terminus ad quern, and to end the voyage
«t another port, be made after the vessel has
sailed upon the voyage insured, and a loss
happens before she arrives at the point of di-
vergency, this is not a change of voyage, but
a mere intention to deviate ; and I am aware
that, in some cases, expressions may be found
which countenance such an idea. It is neces-
sary, therefore, to consider this part,of the case
a little more at large.
A deviation is a departure from the usual
course of the voyage insured, without neces-
sity. Where the identity of the voyage in-
sured is preserved, and the assured, either be-
fore or after the ship sails, intends to perform
it circuitously, by going out of the common
Her, if a loss happen before the arrival at the
point of separation, this is a mere intention to
deviate ; and for this plain and obvious rea-
son, the identity of the voyage insured is not
deranged ; neither the beginning, nor end, nor
route, are altered ; it is a mere act of the mind,
a bare intent to proceed to the terminu» ad
quern, but, in some stage of the voyage, to de-
part from the ordinary route. In every case,
however (and I affirm it without exception),
where such an unexecuted intention has been
held not to vitiate the policy, it will be found
JOHNS. REP., 11. N. Y. R., 5.
1 that the terminu* ad quern, mentioned in the
j policy, was not abandoned, but that the vessel
! intended, ultimately, to proceed to it. In case
| a determination is formed to deviate, no
matter whether before or after the voyage is
commenced, provided the voyage insured is
intended to be performed, the ship may be
said to be upon her voyage, though not in the
customary route ; but with what propriety or
reason can it be said, if the tenninu* ad quern
is completely abandoned, a different port of
destination adopted, and the vessel proceed*,
in pursuance of such a change of plan and de-
sign, that she is pursuing the voyage insured?
It so happens, in this case (at least so is the
evidence), that the Atlantic was in the com-
mon route to St. Petersburgh and Stockholm
when she was taken. But, I would ask, was
she on a voyage to St. Petersburgh or Stock-
holm ? Most certainly she was not prosecut-
ing a voyage to both ports. I do not mean
that she was not on a route common to l>oth
St. Petersburg^ and Stockholm, as far as she
had proceeded, but. I ask, on what voyage
was she sailing ? She determined, while at
Carlsham, not~*to go to St. Peters- [*267
burgh ; she set sail from that place with the
intention of going to Stockholm, and took a
new clearance for that port; nor was it until
many hours after she had been upon her new
voyage that she was captured.
VV hether the voyage insured has been aban-
doned is always a question of fact, and so it
has often been" decided. The fact that it was
abandoned being once established, there is an
end of the liability of the assured. Can there
be a difference, in principle, at what time, in
relation to the local position of the ship, this
abandonment takes place ? In the case of
Wooldridge v. Boydett, the insurance was at and
from Maryland to Cadiz. It was clear the voyage
was never intended for Cadiz. The determina-
tion not to go to Cadiz was probably formed
before the vessel sailed ; she was taken, how-
ever, before she reached the dividing point.
It was held that the underwriters on the policy
were not liable, and that it was not a case of
mere intended deviation, but that the voyage
intended was different from the voyage in-
sured. Buller. J., observes : " This is a ques-
tion of fact ; there cannot be a deviation from
what never existed. The weight of evidence
is, that the voyage was never designed for
Cadiz." The inquiry was not when or where
was the voyage insured given up ; but was it,
in fact, given up. That being shown, the
underwriters were discharged. This is clear,
not only from the case itself, as reported, but
also from what fell from Mr. Justice Buller, in
the case of Way v. Modigliani, 2 D. & E., 83.
In speaking of the case of Wooldridge v. Boy-
dell, he remarks, that it was there decided
" that if a ship insured for one voyage, sail
upon another, although upon the same track
part of the way, and she lie taken before she
reach the dividing point of the two voyages,
the policy is discharged." That was a stronger
case than the present, for there the very in-
tention of sailing upon a different voyage than
the one insured vacates the policy. There,
as in the case before us, it might have been
urged, with equal force and plausibility, that
the master might have changed his mind be-
10 145
267
SUPREME COURT, STATE OF NEW YORK.
1814
fore he came to the dividing point. There
was still left a locus penitentice, that he might
have received new instructions before an actual
deviation had taken place, not to go to Fal-
mouth, but to Cadiz ; or he might himself
have come to such a resolution. The ship was
taken in the Chesapeake, in the common track,
both to Falmouth and Cadiz. Her going to
Falmouth, or Boston, rested solely on naked,
2tJ8*] unexecuted *intention, and yet the
underwriters were held not to be chargeable
with the loss.
Let us take a closer view of this subject.
What ground is there for a distinction in the
plan formed for going to a port, different from
the one insured, whether it be before or after
the voyage is commenced ? If before, the ship
is said never to have sailed upon the voyage
intended to be insured, and, therefore, the as-
sured are not liable ; if after, then, from the
moment the new voyage is entered upon, the
ship is no more upon the voyage insured than
in the former case.
It may be true in this, and in many other
cases, that the ship, for a few hours, perhaps
a few days, may be on a route common both
to the original and new port of destination ;
sometimes by design, sometimes by accident.
But is not the voyage insured as effectually
changed as if the vessel had proceeded on a
totally different route ?
When the voyage, upon which the ship
sailed from the port of departure, is different
from that described in the policy, if it were
an insurance " from " only, there would, of
course, be a return of premium, because she
never was at the risk of the assurer. But
when such a change takes place after the risk
has attached, there will be no return of pre-
mium : and this, in my opinion, is the only
difference in the change of voyage, before or
after it has been commenced. A return of
premium would depend, however, upon the
form of the insurance, even where the 'deter-
mination to change the voyage described in
the policy, is formed before the ship sails. In
the case of Wooldridge v. Boydell, for instance,
there was no return of premium, because, as
the insurance was at and from Maryland, the
policy had attached as much as if the vessel
had actually sailed upon the voyage insured.
The case of Bla,ckenhagen v. London Ins. Co.,
Park, 226, 227 ; 1 Campb. N. P. , 454, appears
to me to support the opinion I have expressed,
That was an insurance from London to Revel.
The ship sailed for the Sound, and arrived
there on the 27th of October. On the llth of
November she proceeded towards Revel, and
two days after, while on the voyage thither,
information was received that an embargo was
laid on all British ships in the ports of Russia,
in consequence of which the ship returned to
Copenhagen, and, some days after, sailed for
269*] *England, and was lost. The return,
under the circumstances of this case, was jus-
tifiable, but it appearing that the voyage to
Revel was never intended to be performed, it
was held by Lord Ellen borough that there was
no color for charging the underwriters, subse-
quently to her setting sail from England ; that
this was a contract for a voyage out, and al-
though a ship from necessity might be allowed
to take a circuitous route, yet the ultimate
point of destination must ever be the same ;
that such necessity might, perhaps, even jus-
tify a return to England, if it could be proved,
satisfactorily, that it was the intention of the
parties to seize the first favorable opportunity
of returning to Revel. This cause was after-
wards tried before Chief Justice Mansfield, who
left it as a matter of fact to the jury whether
the ship had abandoned the voyage or not.
Here, then, is a case, where the voyage in-
sured was abandoned, after it had been com-
menced, and a great part of it actually per-
formed.
Let us suppose, for a moment, that in this
last case the master, instead of determining to
return to England, had relinquished the voy-
age to Revel, with a view to go with his ves-
sel and cargo to Stockholm, and there to ter-
minate the voyage; and that, after proceeding
for several days, in pursuance of such deter-
mination, but happening, at the same time,
also, to be on the route to Revel, he had been
captured, would this have been considered as
a mere intention to deviate, or as an actual
change of voyage ? The principles upon
which this case was put by the judges before
whom it was tried, leave little or no doubt-
that it would have been held to be a change
of voyage. They put it expressly upon the
fact, not whether there had been an actual
deviation, but whether the ship did intend to
go to Revel, the port to which she was origi-
nally bound, and if this was not her intention,
they then considered the voyage as abandoned,
and the underwriters discharged. The case
of Stacker v. Harm, 3 Mass. Rep., 409, appears
to me to support the same doctrine. (See, also,
note in Marsh., 201, Amer. Ed.)
In further illustration and support of the
principles »nd reasons upon which my opinion
is founded, let it be supposed that a ship is in-
sured on a voyage from New York to the Cape
of Good Hope, and that she sets sail accord-
ingly ; that when she arrives at the Narrows
she is overtaken by a boat, dispatched by her
*owners, with new instructions from [*27O
them to the master, directing him to proceed
to Canton, and not to go to the Cape of Good
Hope, accompanied with a new clearance and
such other documents as are usually procured
for an East India voyage, and that, being de-
layed by some injury to his ship, for a week
or two, he again sets sail upon the voyage to
Canton; let it be supposed, further, that, within
a few days' sail of the Cape of Good Hope,
and in the common route to both ports, the
ship is lost, can it be possible that the under-
writers would be liable for the loss ? I think
not ; and if they could not in the case I have
put, most certainly they are not in the case
before us, unless it is meant to go the length
of saying that there can be no such thing as a
change of voyage, as distinguished from an
intent to deviate, after the ship has sailed.
Whether the risk in this case was increased
by the change of voyage, is immaterial. It is
worthy of remark, however, that the degree of
risk, so far as it respects the peril by capture,
depends, not unfrequently, upon the country
to which a vessel is bound. Sweden and Rus-
sia have, alternately, been the allies and ene-
mies of both France and Great Britain, and
the danger of capture may have been essen-
JOHNS. REP., 1U
1814
MAKTIN v. BUCK.
270
tially increased in this instance, by the sub-
stitution of Stockholm as the flnal port of des-
tination.
Again; whether this vessel would have
sailed at the moment she did. in case the voy-
age to St. Petersburg!* had not been aban-
doned, it is impossible to say. If she had not,
who can say that she might not have escaped
capture ? All the preparatory measures of the
master, before he left Carlsham, and his whole
conduct, were founded on the plan of a voy-
age to Stockholm, and not to St. Petersburg!!.
How far these circumstances may have af-
fected the sailing of the vessel, it is impossible
to determine. For aught that is known to the
contrary, the risk of the underwriters may
have been essentially enhanced.
After as attentive a consideration of this case
as I am capable of giving it, I think it a clear
one for the defendants.
PLATT, J., not having heard the argument
in the cause, gave no opinion.
Judgment for the plaintiff.
Affirmed— 14 Johns., 46.
Deviation, what te— Intention nrt carried out, is riot.
Disapproved--^ Allen, 250.
Cited in— 30 Johns., 429 ; 48 Barb., 453.
Proof of lo**. Cited in— 7 Cow., 649 ; 23 Wend.,
527; 12 N. V., 93; 32 N. Y., 442: 1 Hun, 462; 3 T. &
C.. 488 ; 4 Bos., 13; 1 Hall, 631 ; 3 Sand., 41.
/ /. iten .!•,-"• / II"',.,;, of. mn.-t h
considered . Cited in— 17 Wend., 391 ; 26 Hun, 90 ; 6
Diu- r, 134.
Election conclusive. Cited in-57 N. Y., 580; 66 N.
Y., 514.
27 1*] "MARTIN, HOPE & THORNLY
t.
BUCK& HUNTINGTO*.
Parties — Partly Joint and Partly Separate In-
terest* in same Transaction — Liability not
Joint as to Separate Interests.
B. & H., merchants in New York, addressed a let-
ter to M.\ T., merchants in Liverpool, informing
them of their being about to ship to them a cargo
of flaxsecd, and instructing them to make insur-
ance. &c., and added : " The shipment is for our
Joint account ; the proceeds, after deducting insur-
ance and other charges accruing thereon, you will
place to the credit of each of us, individually, one
half." M. & T., in their answer to this letter, ac-
knowledged ttmt the net proceeds were to be placed
to the credit of B. & H. respectively, in equal pro-
portions. B. & H., after the shipment, Individually,
drew separate bills, for £500 sterling each, on M. &
T., which were accepted and paid by them. M. &
T. afterwards brought an action against B. & H. to
recover the balance of an account accruing on this
transaction, in which they had charged the amount
of the two bills of exchange paid by them to the
joint account of B. & H. It was held that the de-
fendants were not jointly answerable for the
amount paid on these bills, they being accepted and
paid, either on the personal and individual credit
of the drawers, or on the credit of the fund to arise
from the proceeds of the shipment; and if on the
latter, it was on a divided and not a Joint fund,
though they were jointly responsible for all dis-
bursements and expenses by M. ft T. in the man-
agement of the property, until the net proceeds
came into their hands.
THIS was an action of as*umprit. The cause
was tried at the New \ ork sittings, in
June, 1818, before Mr. Justice Van Ness, when
a verdict was taken for the plaintiffs, subject
to the opinion of the court on a case contain-
ing the following facts :
JOHNS. REP., 11.
On the 25th November, 1809, the defendants,
who are merchants residing in New York, ad-
dressed a letter to the plaintiffs, a commercial
house at Liverpool, informing them that the
defendants had engaged to ship on board the
brig Shepherdess, of Wiscasset, bound to
Fayal, which was to sail in about 15 days, 400
casks of flaxseed, which would be directed to
the care of Thomas Hazard «& Co., who would
reship the flaxseed to Liverpool, addressed to
the plaintiffs, and would draw on them for the
freight to and charges at Fayal ; but that Haz-
ard & Co. would be instructed to ship it to such
port in Ireland as the plaintiffs might direct,
provided the plaintiffs should think it for the
interest of the defendants to alter the destina-
tion, and the advice of the plaintiffs reach
Fayal before the shipment. That the defend-
ants had annexed to their letter an estimate of
the cost of the seed and charges payable at
Fayal. amounting to $8,517.06, and requested
the plaintiffs to make insurance, for the ac-
count of the defendants, to cover the amount
of the cost of the seed, being $5,675, with the
premium, to Fayal, and also from Fayal to a
port in England or Ireland, the defendants ex-
pressing their wish to be fully insured, and
that the whole might be done in one policy, if
the plaintiffs thought it best. The defendants
added : " We have had some conversations
with your Mr. Thornly, regarding this ship-
ment' who, with us, apprehending a decline
on bills, expressed a willingness that we should
draw for about the amount of invoice, which
we may avail ourselves of, and shall rely on
your best exertions for our interest in the busi-
ness. The shipment determined on, as before
mentioned, is for our joint account ; the
'proceeds, after deducting insurance [*1271i
and other charges accruing thereon, you will
place to the credit of each of us, individually,
one half. Further advice will be seasonably
given." This letter was signed by both de-
fendants.
On the 30th December, 1809, the defendants
wrote to the plaintiffs, informing them that, as
the Shepherdess could take only 344 casks, they
had shipped the remaining 56 casks on board
the ship Honestus, and inclosed the bills of
lading and invoice of the whole.
On the 7th September, 1810, the defendants
wrote to the plaintiffs, and after mentioning
their unfortunate shipment, as having been a
very perplexing business, they add, and " we
intend to put the thing right, so far as relates
to us, when we get your accounts." This let-
ter was also signed ny each of the defendants.
These letters were received by the plaintiffs,
who, in one of their answers, say : " We ob
serve that the net proceeds are to be placed to
your credit respectively, in equal portions."
The flaxseed shipped by the Shepherdess ar-
rived at Fayal in January, 1810, and that by
the Honestus some time afterwards.
Buck, one of the defendant1*, drew his sep-
arate bill on the plaintiff, for £500 sterling,
which was duly accepted by them, and paid
on the 4th of May, 1810. Huntington, the
other defendant, also drew his separate bill on
the plaintiffs for £500 sterling, which was also
accepted and paid by them on the 7th of May,
1810.
The plaintiffs procured insurance to the
147
SUPREME COURT, STATE OK NEW YORK.
1814
amount of £1,200 sterling on the flaxseed, per
ship or ships from New York to the Azores,
and thence to Liverpool or Ireland.
The plaintiffs claimed of the defendants a
balance of account of £888 5s. 5d. sterling ;
they charged the two bills of £500 sterling
each, the premiums of insurance paid by them,
and credited the net proceeds of the sales of
the flaxseed by the Honestus, and the amount
of an average loss recovered from the insurers
on the flaxseed by the Shepherdess, deducting
the subscription of one of the underwriters,
who had become a bankrupt.
By an indorsement of the adjustment made
on the policies of insurance at Liverpool, it ap-
peared that the 56 casks shipped in the Hones-
tus arrived at Liverpool in the same vessel ;
that 243 casks, transshipped from the Shep-
2 7 3*] herd ess to the Dryad, also arrived *safe
at Liverpool, and that 73 casks, transshipped
from the Shepherdess on board the Rachael,
were lost off Fayal.
The defendants contended, 1. They they
were not liable jointly for the two bills of ex-
change. 2. That the premium on the sub-
scription of the insurer, who became bankrupt,
ought not to be charged, there being no evi-
dence that it was paid to him. 3. That the
plaintiffs ought not to have settled the loss on
the policies as for 73 casks lost, but as for 100
casks.
The case was argued by Messrs. D. B. Og-
den and S. Jones, Jr., for the defendants, and
Mr. T. A. Emmet for the plaintiffs.
THOMPSON, Ch. J. The principal items in
the plaintiffs' account, upon which this action
is founded, are the advances upon the two
bills of £500 each, drawn by the defendants
separately upon the plaintiffs, and paid by
them ; and the question arising upon this part
of the account is, whether the defendants are
jointly liable for the repayment of the money
thus advanced. There can be no doubt but
the shipment of the flaxseed, the proceeds of
which were to come into the hands of the
plaintiffs, was on the joint account of the
defendants. They so expressly declare in their
letter of the 25th of November, 1809 ; but
in the same letter they direct the proceeds,
after deducting insurance, and other charges
accruing thereon, to be placed to their in-
dividual credit, each one half. This was the
letter of instructions under which the plaintiffs
acted.
When these bills were drawn and paid, it
was undoubtedly supposed by all parties that
the proceeds of the flaxseed would be suffi-
cient to answer them. The flaxseed, until
sold, might be considered a joint concern ; but
it is evident that the proceeds were not to be
so considered and treated. They were to be
divided, and placed to the individual credit of
the defendants, thereby making their inter-
est therein separate and distinct. Suppose the
defendants had not drawn until after the pro-
ceeds had come into the hands of the plaint-
iffs— one of them could not have drawn for
the whole, nor would the plaintiffs have been
justifiable in paying the whole to the individ-
ual draft of either. Such payment would have
been without authority, and directly in the
face of their instructions.
148
Admitting the bills to have been drawn
upon the credit of *these proceeds will [*274
not alter the case. The drafts were adapted to
the situation of the funds. They were drawn
by the defendants individually, for the pur-
pose of corresponding with their individual
interest in the proceeds, and if the bills were
paid upon the credit of those proceeds, it was
upon their credit as a divided and individual
fund ; for such only was the situation and con-
dition on which they were to be held by the
plaintiffs. That this was perfectly understood
by the plaintiffs, is evident from the whole
course of the transaction. The letter of in-
structions to them is plain and explicit on this
point, and the acceptance and payment of the
bills, drawn by the defendants separately, was
a full recognition of the individual interest of
the defendants in the proceeds of the flaxseed.
The plaintiffs, in their letter of the 1st of Jan-
uary, 1810, say: "We observe that the net
proceeds are to be placed to your credit sep-
arately, in equal proportions." This was be-
fore the bills were accepted and paid, and if
they were accepted and paid upon the credit
of these proceeds, it must have been upon their
credit as a divided, and not as a joint fund ;
and so far as the personal credit of the defend-
ants was the inducement or ground upon
which the bills were accepted and paid, it
must have been their individual and not their
joint responsibility. This follows, as matter
of course, from the manner in which the bills
were drawn ; so that, in whatever point of light
the question is considered, it is evident that
the defendants cannot be made jointly respon-
sible for these bills.
With respect to the other part of the account
they are jointly chargeable. It consists of ad-
vances maffe for their joint benefit, and of
expenses incurred in the management of the
property whilst they continued jointly inter-
ested in it ; for such was their situation until
the proceeds should come into the hands of
the plaintiffs. The defendants say, in their
letter of the 25th of November, the shipment
is for our joint account ; insurance is to be
made for our account ; and the adventure is
treated as a joint concern throughout, except
as to the disposition of the proceeds.
This part of the account is sufficiently
proved. The principal item is the premium
of insurance, and the case furnishes abundant
evidence from which to infer payment of it by
the plaintiffs. The defendants direct insur-
ance to be made, and insurance was, [*275
in fact, made. This is not only proved by the
insurance broker, but the policies are annexed
to the commission ; and the broker swears that
the plain tiffs paid him the charges for effecting
the insurance, and which, as contained in the
account, are the usual and customary charges.
If the plaintiffs have sufficiently proved their
account, and the defendants were not satisfied
with the credit given for the proceeds of the
flaxseed, it was incumbent on them to furnish
proof of the mistake, or to show that more had
been received than was credited. This was
proof to be made out on their part.
But the proceeds of the flaxseed are more
than sufficient to pay the account, exclusive of
the bills. The plaintiffs must, therefore, be
nonsuited in this action, and the proceeds of the
JOHNS. REP., 11.
1814
MARTIN v. BUCK.
275
flaxseed, after deducting that part of the ac-
count that is chargeable to the defendants
jointly, must be carried to their credit separ-
ately,* each one half.
SPENCER and YATES, JJ. , were of the same
opinion.
VAN NEBS, «/. The letter of the 25th of
November, 1809, and which is the foundation
of the plaintiffs' agency in this adventure,
shows, expressly, that this shipment was on
the joint account of the defendants, who must,
in this transaction, be considered as partner.
From the same letter, it appears also that the
defendants contemplated to anticipate part of
the proceeds of the flaxseed, by drawing upon
the plaintiffs to an amount therein stated.
The defendants' letter of the 30th of December,
1800, also speaks of this as a shipment on their
joint account. The contract, as originally en-
tered into and understood by the parties, was
that the plaintiffs were to manage the advent-
ure in Liverpool. They were to advance the
premiums of insurance, to pay the freight to
and charges at Fayal, and to accept and pay
the defendants' bills to about the amount of
the invoice price of the flaxseed ; and for this
they were to receive the customaiy commis-
sions. Unless this contract has been subse-
quently varied or altered, by mutual consent,
it follows that the defendants are jointly re-
sponsible for all advances made pursuant to
it. That they are jointlv liable for most of
the charges contained in the plaintiffs' account,
except the money paid upon the bills of ex-
change, is conceded. Now the acceptance and
27O*] 'payment of the bills formed as much
a part of the agreement as the payjnent of the
other sums, and I am unable to discover why
the defendants are to be considered as jointly
held for the repayment of the one and not of
the other. The whole was one entire concern,
undertaken and conducted throughout under
one and the same contract, and all the advances
were made by the plaintiffs to facilitate and
promote the same object.
The idea thrown out.on the argument, that the
direction to place the net proceeds of the ship-
ment to the separate credit of the defendants,
rendered them severally, and not jointly, liable
for the amount of the bills, would, if well
founded, equally prove that they were sever-
ally and not jointly liable for the money ad-
vanced for the freight and insurance, and yet
the latter is not pretended.
But it is said that the bills drawn by the de-
fendants being separate, the plaintiffs have
varied or consented to an alteration of the con-
tract as first entered into. Can this t>e true ?
If the letters referred to had been silent on the
subject of the defendants' drawing, and the
plaintiffs' accepting bills upon them, there
would be some plausibility in this argument;
but when this is expressly provided for, and
the joint personal securfty of the defendants,
as well as the whole shipment, thereby became
pledged to the plaintiffs for their re-imburse-
mcnt, it would be an act of the highest injustice
to permit the defendants to avail themselves
of the defense now set up.
The payment of these bills in the form in
which they were drawn, can affect the joint re-
JOHNB. REP., 11.
sponsibility of the defendants, if at all, in two
ways only ; either because of the evidence
which it affords that the contract was origin-
ally understood to secure to the plaintiffs their
separate and not their joint responsibility ; or,
as amounting, by implication, to an alteration
of the first contract, by substituting their
several for their joint liability. For the first
there is not a pretense, as I havealready shown,
and the second is equally destitute of founda-
tion. A change of the original contract could be
made only with the concurrence of both parties.
In no part of the case is there any evidence
that the plaintiffs assented to, or contemplated
any such change. Why should they ? It was
clearly not their interest to do so. and shall
their security be diminished one half by mere
implication ? As to all the other advances
(with some trifling exceptions), it is not dis-
puted that *the original agreement is [*1277
in full force. What foundation is there, then,
for considering the contract changed, as to part,
and remaining unaltered as to the residue? The
case abounds with evidence to show that both
parties considered the contract as unaltered
from the beginning to the end of the trans-
action. The letters already referred to, and
another, dated the 4th of September, 1810,
prove this. The latter, which is from the de-
fendants jointly, was written after the bills in
question had been accepted, and after it was
ascertained that this would turn out to be a
losing adventure. In that letter they say,
among other things : " We have received sev-
eral communications from you relative to our
unfortunate shipment of seed, and expect you
to pay attention to winding up the same. The
business has been a very perplexing one, and
we intend to put the thing right, so far as it
relates to us, when we get your accounts. "
Again, in another part they say : " We wish
you not to force the sale, but give us an esti-
mate of the probable result, that we may put
you on a fair footing. "
No man, who reads this letter, can doubt
that the defendants, at that time, considered
! themselves jointlv liable for all the moneys
j which the plaintiffs had advanced. The latter,
i indisputably, had no idea that, as to the money
1 paid upon the bills, they were dealing with the
defendants severally, and as to the residue of
the transactions jointly ; that for one part of
their advances under the same contract, they
were to look to them separately, and for the
remainder jointly. This splitting and divid-
ing of this concern, which in its nature and
object was, as it were, indivisible, never en-
tered into their imaginations. This is evident
from the manner in which they kept their
books, from which the account annexed to the
case was proved to be a transcript. The truth
is, that with the manner in which the defend-
ants were to avail themselves of the privilege
of drawing upon the plaintiffs, the latter had
nothing to do. The defendants were at liberty
to adopt such mode in procuring the stipulated
amount to be remitted to them, as their interest
or convenience dictated. The payment of
the bills, in the form in which they were
drawn, was purely for their accommodation,
and was perfectly consistent with the terms
of the original agreement. The plaintiffs'
right of recovery i*» not founded upon the pay-
149
278
SUPREME COURT. STATE OP NEW YORK.
1814
278*] ment of *the bill as a separate, inde-
pendent transaction, but upon the antecedent,
original agreement between the parties, as de-
fined by the letters which passed between them.
It has been urged that the direction con-
tained in the defendants' letter of the 25th of
November, 1809, to place the proceeds of the
shipment to their separate account, supports
their defense. I think, on»the contrary, that
it operates decidedly against them. After the
whole concern had been concluded, and "after
deducting insurance, and other charges ac-
cruing thereon," then, and not till theu, were
the net proceeds to be placed to their separate
credit. It appears to me that the fair and ob-
vious deduction from this is, that for the ad-
vances made by the plaintiffs, during the
whole of the intermediate stages of the trans-
action, the defendants intended they should
be jointly liable. I think, therefore, that the
plaintiffs are entitled to recover the amount
for which the verdict was taken. Some of the
items in their account have been disputed on
other grounds, but all my brethren, I believe,
think that the objections made are unfounded.
PLATT, J. , was of the same opinion.
Judgment of nonsuit.
279*| *ICARD «. GOOLD.
Marine Insurance — On Freight — Seaman's
Wages cannot be Insured.
If freight is totally lost by disaster, peril or force,
without fraud or misconduct of the master or
owners, the seamen lose their wages.
Insurance of freight is for the indemnity of the
owners only, and does not inure to the benefit of
the seamen's wages, which cannot be insured
directly, nor indirectly.*
Citations— 2 Peters' Adm.Decis., 276; Abb. Ship.,
part 4, ch. 3, sec. 1.
IN ERROR, on certio-rari from the Justice's
Court of the City of New York. Goold
sued Icard in the court below for seaman's
wages.
It appeared, by the return, that on the 23d
of November, 1807, Goold shipped as a seaman
on board the ship Cados, of which Icard was
owner, and Obed Buncker master, on a voyage
from New York to Marseilles, and back to
New York, at $18 per month, and received
one month's pay in advance. On the 28th of
November, 1807. the ship proceeded on her
voyage, and while pursuing it, she was spoken,
in the Gut of Gibraltar, by a gunboat tinder
English colors, which, from the evidence, was
probably a Spanish vessel. Afterwards, just
off the harbor of Marseilles, she was again
spoken by an English frigate, who examined
her papers, and permitted her to proceed.
Very shortly after she was captured by a
French armed vessel, while entering the harbor
of Marseilles, and carried into that port, where
she arrived on the 7th of February, 1808, and
was put under sequestration. Two Frenchmen,
with the crew of the ship, remained on board
of her, living on the provisions of the ship,
until the 13th of August, 1808, when the crew,
*Van Beuren v. Wilson, 9 Cow., 158.
150
including the plaintiff below, were taken from
the Cados by a French government boat, and
carried on board a French frigate in that
harbor, where they were kept on half allow-
ance of provisions for several days, and then
permitted to go on shore. Previous to their
being taken out of the Cados, her cargo was
discharged, under the direction of the custom-
house officers at Marseilles, and put into the
public storehouse of that place. The crew of
the Cados assisted in discharging the cargo,
which was landed in the month of June, 1808.
Captain Buncker gave directions to the crew
to be particular in taking care of the cargo at
the time of its being unloaded, and superin-
tended the same.
On the 6th of June, 1808, the Cados and her
cargo were condemned as lawful prize by the
Imperial Court of Prizes at Paris, under the
imperial decree of the 17th of December, 1807,
on the ground that "she could no more re-
claim the privilege of *her flag, which [*28O
she had permitted to be violated by the visit of
an English man-of-war," as appeared by the
decree of condemnation, which was registered
on the 1st of August, 1808.
The cargo was insured, and after notice of
the capture and abandonment by the assured,
a compromise took place, on which the under-
writers paid one third of the loss, and relin-
quished their claim to the cargo which had
been abandoned.
The ship and freight were not insured, and
have been lost to the owners.
The jury allowed wages until the cargo was
unladed, and judgment for the plaintiff was
rendered on the verdict below for $123.
PLATT, J., delivered the opinion of the
court (after mentioning the facts in the case,
as above stated):
These facts, in regard to the insurance, are
mentioned because they were relied on at the
trial below, not because they are deemed essen-
tial in the case; for the law is well settled, that
insurance on freight is for the indemnity of
the owners only, and does not inure to the
benefit of seamen's wages, which cannot be in-
sured, either directly or indirectly. (M' Quirk
et al. v. Ship Penelope, 2 Peters' Adm. Decis-
ions, 276.)
The maxim that freight is the mother of
wages contains the rule which governs this
case.
This maxim implies that if the freight be
totally lost, by disaster, peril or force, without
fraud or misconduct of the master or owners,
the seamen lose their wages. This has been
adopted as a rule of policy to secure the fidelity
and stimulate the exertions of the crew, and
all seamen are presumed to know this rule,
and to contract with reference to it. (See Ab-
bott on Ships, &c.,part4, ch. 3, sec. 1.)
Here was no fraud or improper conduct in
the master or owners. It was a lawful trade,
and the voyage was directly pursued, in good
faith ; but the vessel and cargo were captured
and condemned under a French decree of the
17th of December, 1807, made while the ship
was on her passage, and of which the master
was entirely ignorant.
No freight was earned, and like the case of
total loss by piracy, the seaman and owners
JOHNS. REP., 11.
1814
M'Ci i< iii-.s \
•jsu
must be deemed common sufferers. Wages
cannot be exacted by the unfortunate seamen
from the still more unfortunate owners.
The judgment below ought to be reversed.
Judgment reverted.
Cited In— » Cow.. 1«5: 1 Hilt., 8. 13: 2 Paine, 100.
1281*] •M'CUTCHEN c. M'GAIIAY.
Jlusbtmd aiul Wife — When Hunband not LuMe
for Neeewttiriui of Wife.
If a wife )•! ipi-s from her husband, though not in
an adulterous manner, the hustiand is not liable for
any of her contracts, though the person who g-iVi-s
credit to htT for necessaries, had no notice of
the elopement ; but if she offers to n mm, and the
husband n- fuses to receive her, his liability upon
her contracts for necessaries is revived, from that
time, in >r wit li-inmliiitr a >rviii-ral notice not to trust
her. If a husband turns away his wife, he gives her
a credit wherever she goes, and must pay for neces-
saries furnished her.
Citationa-2 Ld. Raym., 1006 ; 12 Mod., 144 ; Ld.
Rai in.. 444 ; 2 Str., 875 ; 2 Str., 1214 ; « Johns., 72.
IN ERROR, on certioruri from a justice's
court. M'Cutcheu brought an action of
<i*x'uii/>xif against M'Gahay, for board and
lodging furnished by the plaintiff to Ellen, the
wife of the defendant.
The plaintiff, who is the father of the de-
fendant's wife, furnished her with meat, drink
and lodging, in his family, during which time
she was in ill health. M'Gahay was married
to Ellen about the year 1801. The following
advertisement was inserted in a newspaper,
printed in Orange County: " Whereas, my
wife, Ellen M'Gahay, has left my bed and
board without any provocation, this is to fore-
warn all persons crediting her on my account,
as I am determined to pay no debts of her con-
tracting. 4th of May, 1801. Owen M'Gahay."
In the summer of 1813, the defendant's wife
applied to an overseer of the poor of New-
burgh for support, and the overseer called on
the defendant to support her, and the defend-
ant answered " that she left him twelve years
ago, &c. , and that he would have nothing to
do with her." About the same time she
directed a person to go to the defendant,
and endeavored to effect a reconciliation be-
tween her and her husband ; but though re-
quested to go with the person to her husband,
for that purjxjse, she refused. The defendant
refused to listen to the request to take back
his wife. The person who applied to him did
not state that he was authorized or requested
by the wife to make the application.
The defendant proved that about ten years
ago, without any misconduct on his part, his
wife refused to live with him any longer, and,
accordingly, left him, without his consent,
and contrary to his entreaties . that she left
with the defendant a child of the age of six
months, which he has ever since taken care of,
and that she had never since returned to live
with her husband.
The jury, before whom the cause was tried,
found a verdict for the defendant, on which
the court below gave judgment.
PLATT, ./., delivered the opinion of the
court :
JOHNS. UEP., 11.
Cohabitation *is evidence of the hus- [*28!2
band's assent to contracts made by his wife,
for necessaries, and it can be repelled only by
express notice of previous dissent, or notice
not to trust her. If the husband turns away
his wife, he gives her credit wherever she
goes, and must pay for necessaries for her ;
but if she runs away from him, though not
with an adulterer, he is not liable for any of
her contracts. (Herrington v. Perrot, 2 *Ld.
Kaym., 1006, per Holt, Ch. J.)
In I A ng worth v. Hockiiurre, 12 Mod., 144; 1
Ixl. Kavm.. 444, Lord Holt decided that if the
wife elopes, though the tradesman has no
notice of the elopement, if he gives credit to
the wife, even for necessaries, the husband is
not liable ; but if the wife elopes without an
adulterer, and afterwards offers to return, and
the husband refuses to receive her, his liability
for her contracts for necessaries is revived,
from that time, notwithstanding a general
notice not to trust her. (Child v. Hardliner, 2
Str., 875. See, also, Bolton v. I*rentice, 2 Str.,
1214, 3d ed., by Nolan, and the note of the
editor.)
In the case of Baker v. Barney. 6 Johns.,
72. the husband and wife parted by consent,
and the husband promised a separate main-
tenance, but failed to fulfill that promise, and
the court held him liable on her contract for
necessaries.
In the present case, the wife eloped without
an adulterer, but she did not offer to return to
her husband. Her proposition was made to
the witness, and never communicated to her
husband ; and when requested by the witness,
she refused to go with him to her husband in
order to effect a reconciliation. The plaintiff,
therefore, is not entitled to recover.
To sustain such an action would encourage
disobedience and infidelity in the wife. The
duties of the wife, while cohabiting with her
husband, form the consideration of his liability
for her necessaries. He is bound to provide
for her, in his family ; and while he is guility
of no cruelty towards her, and is willing to
provide her a home, and all necessaries there,
he is not bound to furnish them elsewhere. All
persons supplying the necessities of a married
woman, separate from her husband, are bound
to make inquiries as to the cause and circum-
stances of the separation, or they give credit
at their peril. The judgment below must be
affirmed.
Judgment affirmed.
Cited in-12 Johns., 250. 296: 8 Wend., »B, 545 : 11
\\Vnd.. ar> : 4 Denlo, 49 ; 74 N. Y., 325 ; 8 Dab*. 546 : 7
W. Di«r., 325.
•VINCENT t>. B. & J. GERMOND. [*283
Sale*— Petite ry — Statute of Fraud*.
\Vhore, on a sale of cattle, no earnest money was
paid, nor any memorandum in writing made, and
the cattle were to remain in the possession of the
vendor, at the risk of the vendi>e, until he called
for them, and the vendee afterwards came and
t<x)k away the cattle, without sayintr anything to
the vendor; this was held to IK? a sufficient delivery,
within the statute of frauds.
Citations— 1 Bast, 192: 1 Taunt., 457.
was an action of a&umpgit for cattle.
&c., sold and delivered, and was tried at
151
283
SUPREME COURT, STATE OP NEW YORK.
1814
the Dutchess Circuit, in November, 1813, be-
fore Mr. Justice Spencer.
It was proved at the trial that in June, 1812,
B. Germond, one of the defendants, came to
the plaintiff, and asked him if he had any cat-
tle to sell, and the plaintiff replying in the
affirmative, they went together into the field
to look at them. B. Germond offered $280
for the cattle, four in number, which, after
some hesitation, the plaintiff agreed to accept,
if they were at B. G.'s risk, observing that he
had had one or two cattle injured by the
clover, in the field where the cattle were feed-
ing. B. Germond replied that he took them
at his own risk, and the cattle must remain
where they were ; that he would call and take
them away as soon as he had completed his
drove. After the bargain was concluded, the
cattle so purchased continued in the same field
with the other cattle of the plaintiff ; in a few
days one of them died, being injured by the
clover. On the 4th of July following, James
Germond, the other defendant, came along
to the field and took away the three remain-
ing cattle, without saying anything to the
plaintiff.
The defendant gave some evidence of a ten-
der to the plaintiff, in June, 1813, of the price
of the three cattle left. It was agreed that $231
was a sufficient compensation for the three
cattle.
The defendants' counsel objected to the
parol evidence of the contract, which was ad-
mitted by the judge, reserving the question,
and a verdict was taken for the plaintiff for
$311,03, being the price of the four cattle, with
interest.
The case was submitted to the court with-
out argument.
Per Curiam. No earnest money having been
paid, nor any writing made between the par-
ties relative to the contract, the question is,
whether there was such a delivery of the cat-
Ue as to take the case out of the statute of
284*] frauds. It was not made a *question
whether the defendants were partners, so as
to be bound by the acts of each other. It
may be questioned whether what took place
between B. Germond and the plaintiff, if
standing alone, would amount to a delivery ;
but the subsequent conduct of the other de-
fendant, in taking away the three oxen, with-
out any new contract, affords sufficient ground
to infer a delivery. This was the exercise of
an act of ownership over the property, in con-
firmation of the bargain. The defendants
dealt with the oxen as their own, and as if in
their actual possession, without asking any
permission from the plaintiff for so doing.
This must have been done in virtue of the
right acquired by the original contract and
transfer of the property. Such exercise of
ownership; by selling part of the property,
was, in the case of Chaplin v. Rogers, 1 East,
192, held a sufficient delivery to take the case
out of the statute. Aud the case of Elmore
v. Stone, 1 Taunt., 457, is much stronger on
this point. It was there held that an agree-
ment between the parties, that the vendor
should keep the horses sold, for the vendee,
at livery, was sufficient to vest the property
in the buyer, without any written contract or
152
earnest paid. The opinion of the court, upon
this point, renders it unncesssary to notice the
other question made in the case. The plaint-
iff must, accordingly, have judgment upon
the verdict for $311,03.
Judgment for the plaintiff.
Cited in— 12 Johns., 250 ; 7 Cow., 282 ; 6 Wend., 401 ;:
20 Wend., 64 : 5 N. Y., 543 ; 5 Lans., 181 ; 61 Barb.,.
560 ; 2 Sand., 243; 118 Mass., 334.
*THORP ». BURLING ET AL. [*285
Parties — Trover Maintained by Owner for Goods
Taken from Agent — Cartman Liable for Cart-
ing Goods Away.
Where a person having a general property in
goods, delivers them to "his agent to keep for him,
and the goods are taken out of the possession of
the agent by third persons, the person having the
general property may maintain trespass or trover
for the goods against such person.
Where A, a cartman, at the request of B, went
with him to the stable of C, and took goods there-
deposited, and put them on his cart, and carried
them away, under circumstances sufficient to put
hirn on his guard, as to the legality of the taking
of the goods, it was held that the cartman was
equally liable with B, to an action of trover for the
goods, at the suit of the owner.
Citations— 1 Chit. PI., 167 ; 7 T. R., 12.
THIS was an action of trover for two boxe&
of platillas, tried before Mr. Justice Yates
at the New York sittings, in April last.
The plaintiff, who is a merchant tailor in
the City of New York, and to whom the prop-
erty in question belonged, employed a cart-
man to carry the two boxes of platillas to his
shop ; but not being able, on account of the
size of the boxes, to get them in through the
door of his shop or house, he requested the
cartman, who was his nephew, to carry them
to his own house, and keep them until the
next day, when he would break up the boxes.
The cartman, without the knowledge or direc-
tion of the plaintiff, put them in his stable,
where he locked them up.
A clerk of Adamson, one of the defendants,
with Burling, Duncan and Roberts, three oth-
ers of the defendants, applied to the police
office for a warrant to take the goods, as hav-
ing been wrongfully taken from Adamson,
but the warrant was refused. Two of the po-
lice officers, however, went with Burling,
Duncan and Roberts, and the clerk of Adam-
son, to the stable where the goods were de-
posited, and one of the police officers, at the
request of one of the defendants, went for a
cartman to take away the goods and brought
Woodruff, one of the defendants, a cartman,
who took the goods on his cart and carried
them to the store of Adamson, and delivered
them there. Burling, Duncan and Roberts,
the other defendants, were present all the
time, and countenanced the proceedings.
The plaintiff demanded the goods of Rob-
erts, who said he knew nothing about them.
No demand was made of Woodruff, or of the
other defendants. It appeared, however, that
when Woodruff went to take away the goods
from the stable, there was a large assemblage
of people there, and Roberts told a person,
JOHNS. REP., 11.
1814
BLACK v. MARINE INS. Co.
280
who was a witness in the cause, that he was
present, and went with Burling and Duncan
to seize the goods ; and the witness strongly
believed that Duncan told him the same thing.
The judge was of opinion that the goods be-
ing at a stable, a place where they would not,
in the ordinary course of business, be found,
and a large collection of people assembled
28(1*] there, * Woodruff, the cartman, ought
to have been on his guard, as to taking the
goods, and that it was a tortious taking in him,
and a conversion in itself, and that no demand
was necessary to be proved.
Adamson and Duncan being dead, a ver-
dict for the plaintiff was found by the jury
against Roberts, Burling and Woodruff.
A motion was made to set aside the verdict
and for a new trial, and the case was submit-
ted to the court without argument.
SPENCER, /., delivered the opinion of the
court :
There can be no doubt of the plaintiff's
right to maintain trover in this case, so far as
respects his title. Indeed, he could have
brought trespass, for he had the general prop-
erty in the goods, and gave only a bare au-
thority to the first can inaii to carry the goods
to his own house, to keep until the next day.
The first cartman had no interest or claim to
hold the goods, coupled with his possession ;
and then the rule of law applies, that the gen-
eral property draws after it the possession.
The plaintiff was entitled to immediate pos-
session when the trespass was committed. (1
Chitty's PI., 167 ; 7 Term, 12.)
The only point worthy of consideration re-
lates to the defendant Woodruff, and the
question is, whether he is answerable in this
action. I consider him as much a trespasser
as the other defendants ; he was one of the
persons who removed the plaintiff's goods
from the place where they had been deposited
by the plaintiff's agent. It is true he 'did this
at the request of other persons, but he was by
no means bound to obey their orders, or yield
to their request. He was a voluntary agent,
and an actor in an unlawful transaction. He
could not but perceive that it was a hazardous
enterprise, from the large assemblage of peo-
ple at the spot.
I know of no protection afforded by the
law to the defendant, as a cartman, on account
of his public employment ; he cannot claim
the exemption of a ministerial officer, who has
a warrant to do a lawful act from a magistrate,
or court having jurisdiction to grant such war-
rant, in which case the officer would be bound
to obey, and the law would protect him ; here
the defendant was not bound to obey, and
he, consequently, acted at his peril. Had
the other defendants actually reduced the
287*] *goods to their possession, and had
Woodruff then received the goods from them
to carry, he would not have oeen liable. As
the case stands, I think he certainly is respon-
sible with the other defendants.
Motion for a new trial denied.
Cited ln-2 Wend., 479 ; 1 Hill, 808, 8H ; 4 N. Y.,
.-",': >"'V Y . H7: 75 N. V. Mi '-•'. ll.,rl... W| »"
Barb., 404; 8 W. Dlg.,9C*.
JOHNS. REP.. 11.
BLACK AND BURKE
v.
THE MARINE INSURANCE COMPANY.
Marine Insurance — Construction of Policy —
" Capture only" Include* " Seizure."
Insurance from New York to Bremen, or a port
• if (liM-liarif.- in the North Sea or Baltic, "against
capture only." Warranted " fre« from seizure in
any river, port or place under the jurisdiction of
Napoleon, or under the jurisdiction of any power
under his control, or in alliance with him. The
vessel intendiiiK to put into Amsterdam, arrived
within the first buoy, or within a marine leairue
from the Dutch coast, and at the distance of about
11 mili-a from the entrance into the Toxul Roads,
where she was captured by two French privateers*,
and earn. •' I into Amsterdam, as prize of war. and
the ship's papers were transmitted by the French
consul to the Imperial Court of Prizes at Paris,
where thu captors proceeded against the vessel, as
prize of war. and the court condemned her as good
prize of war.
The cause of condemnation was a violation of the
Berlin and Milan decrees, in not having a certificate
of origin. It was held to be a seizure within the
warranty.
THIS was an action upon a policy of insur-
ance, on the brig Resort, dated 1st Sep-
tember, 1809. on a voyage from New York to
Bremen, or a port of discharge in the North
Sea or Baltic. At the foot of the policy there
was the following written clause : "This in-
surance is against capture only ; warranted by
the assured American property (proof whereof
to be required here only), and not to abandon
in case of capture or detention, until six
months after advice thereof is received at this
office, or until after condemnation, and not to
abandon in consequence of blockade, but the
assured to have permission to proceed to
another port not blockaded. Also free from
seizure in any river , port or place under the
jurisdiction of Napoleon, or under the juris-
diction of any power under his control, or in
alliance with him."
The vessel sailed on the voyage insured, on
the24lh of June, 1809, and, on the 2d of August
following, arrived off the coast of Holland,
with intent to put into Amsterdam, which
port was open ; and having arrived within the
first buoy, and within a marine league from
the Dutch coast, and at the distance of about
eleven miles from the entrance into the Texel
Roads, she was, while sailing along the coast,
towards the Texel, captured bv two French
privateers, the Hebe and the Tilsit, and car-
ried into the port of Amsterdam, as a prize of
war. The captors carried the ship's papers to
the French consul at Amsterdam, who trans-
mitted them, together with certain proceedings
had lii-furr him, in relation to the capture, to
the Imperial Council of Prizes at Paris,
where the captors proceeded against the ves-
sel as prize of war. A claim was put in by
the captain, among other things, *de- [*288
nying the jurisdiction of the court, which,
however, was rejected, and the court proceed-
ed to entertain jurisdiction ; and on the 28th
of February, 1810, condemned the vessel as
good prize of war to the captors. The vessel
was taken within the first buoy, and between
NOTE.— Marine insurance— Construction of policy.
80* New York Ins. Co. v. Thomas, 3 Johns. Cas., I,
note : Bakewell v. United Ins. Co., 2 Johns. Cas.,
246, note.
tss
SUPREME COURT, STATE OP NEW YOKK.
1814
thai and tLt> secoiiu buoy, and in the track
usually pursued by vessels entering the Texel.
It was agreed that the jury should find
whether Holland, at that time, was in alliance
with, or under the jurisdiction or control of
Napoleon, and whether the capture was with-
in the jurisdiction of Holland ; and that, if
they should find for the defendants, the ques-
tion whether the capture was a seizure within
the meaning of the written clause of the pol-
icy, was reserved for the opinion of the Su-
preme Court. The jury found for the defend-
ants on the points submitted to them ; and if
the court, on the point reserved, should be of
opinion for the plaintiffs, then the verdict to be
entered in their favor for such sum as shall be
ascertained to be due to them, on a reference
for that purpose to persons named, to whom
the adjustment of the amount was, in such
case, agreed to be referred ; and if the court
should be of opinion for the defendants, then
the present verdict was to stand.
Mr. Slosson, for the plaintiffs. The question
is whether there was a capture of the vessel,
or a seizure, within the meaning of the clause
in the policy. She was captured in the open
sea, about eleven miles from the Texel Roads,
but within the maritime jurisdiction of Hol-
land, according to the law of nations. The
place of capture was not a port or river, though
a place within the jurisdiction or under the
control of Napoleon.
Capture and seizure are not always convert-
ible terms, but one has a different meaning
from the other. Capture is a word of known
technical signification, and is understood to be
a taking of property jure belli, by an enemy in
open war, or by way of reprisal, with intent
to deprive the owner of it. (Marshall on Ins.,
485, B, 1, ch. 12, sec. 4 ; 2 Azuni's Mar. Law,
221, p. 2, ch. 4 a, 1 ; 1 Emerig. sur Assu ,
440, ch. 12, sec. 18.) It is an act done with a
hostile intention. A seizure, arrest or, deten-
tion is not a hostile act ; it is not done with
any view to deprive the owner of his property.
It is not an act of war. (2 Valin, 120, 121,
Consult, de M. Emerig.) In Mathie and Potts,
3 Bos. & Pull., 23, this distinction is adopted
and made the ground of decision by the
court.
It may, perhaps, be said that by the word
" seizure," the insurers meant "capture."
It is true that the intent and meaning of the
289*] parties to the instrument *is to be
looked to, and the written clause is to control
the printed words. But there is nothing in
the written clause here which can control or
vary the printed words. The language shows
that the insurers understood the distinction
for which we contend. The insurance is
against capture only ; warranted not to aban-
don in case of capture or detention, until after
six months, nor in consequence of blockade.
Then what is the meaning of the latter part of
the clause, "free from seizure in any river,
port or place," &c. ? It is, no doubt, meant to
exempt the insurers from land risks ; it was
intended to guard against a seizure by land,
or by the governing power of the country to
which the vessel was bound. The seizure in-
tended is an act by a power set in motion from
the land, or by the ruling power of the coun-
try.
In Jermanv. Coape, 13 East, 394, the insurance
was " free of capture or seizure in the port or
ports of discharge ;" and the court held the
clear intention to be, to exempt the insurers
from land risks.
In Baring v. Vaux, 2 Campb. N. P., Cases,
541, a ship was warranted free from capture
in port, and it was held that it did not protect
the underwriters from any loss happening by
capture in a place not within the limits of
a port. So in Brown v. Tierney, \ Taunt.,
517, where the ship was warranted free of
capture in port, a capture while lying in an
open road, outside of a harbor, was held not
to be within the warranty.
Should it be said that the capture was not le-
gal, because within the jurisdiction of a neu-
tral power, it may be answered that the insur-
ance is against illegal as well as legal captures.
Besides the capture, as it respects the party
taken within the neutral jurisdiction, is legal,
unless the neutral government complains. The
objection as to the legality of the capture is to
be made by the neutral only whose jurisdic-
tion has been violated. (3 Rob. Adm. Rep.,
162, Twee Oebroeders.)
Mr. Golden, contra. The capture in this
case was clearly within the maritime jurisdic-
tion of Holland. (2 Cranch, 187-220, Church
v. Hubbard.) It is found, by the verdict of
the jury, that the capture was within the
jurisdiction of Holland, and that Holland
was under the control of Bonaparte. We
admit the distinction laid down between capt-
ure and seizure or arrest, and we insist that
this was not a capture jure belli, or because it
was enemy's property, or because it belonged
*to a neutral violating the law of na- [*J29O
tions. The cause of seizure, as stated in the
proceedings of the French court, is that the
vessel was sailing to a French port, without
having a certificate of origin, in violation of
the Berlin and Milan decrees. Those decrees
were municipial regulations. They form no
part of the law of nations.
The seizure was within the jurisdiction of
the country, and by virtue of municipal regu-
lations enforced in the country. That it was
made by a vessel of war can make no differ-
ence, for vessels of war are authorized to seize
for a violation of the revenue laws.
In Jerman v. Coape, and Baring v. Vaux,
the insurers were held not to be liable for
seizures in a port or ports. Here the words
are far more extensive. The intention was to
exempt from capture in certain places or sit-
uations. It is an exception of a part of the
risk before assumed, or from the general words
"capture only." It has reference to place,
that is, the insurance is against capture only,
except in any river, port or place, &c,
There is no occasion to resort to any dis-
tinction as to the rules of construction between
printed and written clauses, for here the gen
eral clause and the exception are both written,
and the rule of construction must be precisely
the same as that of any written contract.
Mr. T. A. Emmet, in reply, said the two
clauses were distinct. The exception is put
in for the benefit of the insurers, and, if there
is any inconsistency, they must take the con-
sequences of it. In construing such occasion-
al clauses, it is usual to inquire by whom they
JOHNS. REP., 11.
1814
BLACK v. MARINK INS. Co.
290
were introduced ; and if the party introducing i Holland was, at the time, in alliance with, or
them might have explained himself clearly ana I under the control or jurisdiction of Napoleon:
explicitly, his not doing so ought not to afford and the question for the court is, as to the
him an occasion to impose restrictions upon meaning of the exception " free from seizure,"
the other party, which he has not distinctly j &c.
expressed. (Marsh, on Ins., 80o, B, 1, ch. 8, The exception was intended for the benefit
sec. 8.) of the underwriters, and, in order to give it
We insist that this is a capture jure belli, as I any effect, must be so construed a* to restrict
prize of war. The proceedings were in the ' the risk assumed by the general words of the
Imperial Council of Prizes at Paris. The policy. The insurance being against capture
condemnation in that court was as prize of j only, any exception out of that risk must have
war. The captors were French privateers ; | been Intended to extend to some peril which
the court was a prize court ; the cause of con- would have fallen under the denomination of
demnation was a violation of the Berlin and capture ; otherwise the exception is senseless.
291*] *Milan decrees, which declare a vessel, \ The underwriters did not assume the risk of
in such a situation, denationalized, as having ( seizure for breach of any municipal regulations,
lost her original national character, and as It would, therefore, be giving no effect to the
being British or enemy's property. It was not ; exception to limit it to such risk. It is, no
a condemnation for a violation of a mere doubt, a sound rule of construction, that terms
municipal regulation, otherwise the proceed- made use of in contracts are to be understood
ings and condemnation would have been jn their plain ordinary and popular sense, un
in Holland. If any municipal law or ordi- i less the context evidently requires, in order to
nance was violated.it was that of Holland, j effectuate the intention o'f the parties, that they
and there would be the place of condemna- 1 should be understood in some other special
tion. ' and peculiar sense. Seizure may, in general.
It was, emphatically, against illegal captures be applicable to a taking or detention for the
that this insurance wa> made. At that time, | violation of some municipal regulation ; but
in 1809, no power on earth could legally capt-
ure American property ; and it was to pro-
tect themselves against illegal captures and
seizures, not warranted by the law of nations,
where such meaning cannot be given to it,
consistent with the obvious sense and under-
standing of the parties, it is no violation of any
settled rule or principle of law to give it some
that the plaintiffs caused this policy to be other interpretation, better comporting with
effected. the fair intention of the parties. The under-
The clause being introduced for the benefit
of the insurers, they cannot take advantage of
any inconsistency or contradiction between
it and the other parts of the policy so as
to vary the meaning of the words used.
They cannot make it a trap or drag-net for the
insured.
The last written clause has no more reference
to the first written clause, than it has to any of
the printed parts of the policy.
Though '.he jury may have found the capt-
ure to have been within the jurisdiction of the
country, in one sense, it is for this court to de-
cide whether the place of capture was within
the jurisdiction of Holland, in the sense and
meaning of the policy.
Though the Supreme Court of the United
States muy has adopted a marine league from
the shore, as the extent of territorial jurisdic-
tion, yet no court, in any country in Europe,
has adopted the same rule.
writers did not mean to assume any risk ex-
cept that of capture, and not even that, if made
in anv river, port or place, under the jurisdic-
tion of Napoleon, or under the jurisdiction of
any power under his control, or in alliance
with him.
It is no strained interpretation of the term
" seizure " to consider it as synonymous with
"capture," and then the underwriter-', al-
though they assume the risk of capture gener-
ally, exempt themselves even from that risk,
if the capture is made under any of the cir-
cumstances mentioned in the warranty. In
no other way can any rational interpretation
be given to the clause ; and the jury having
found that the seizure or capture was, in* fact,
within the exception as to place, the under-
writers cannot be made responsible for the
*loss. Judgment must, accordingly,
be for the defendants.
Judgment for the defendant*.*
THOMPSON, Ch. J., delivered the opinion of
the court :
This is an insurance on the brig llesort, on a
voyage from New York to Bremen, or a port
of discharge in the North Sea or Baltic, against
capture only. The |x>licy, among other war
ranties, contained the following: "Also free I ,mrt ,,f their cargoes in"t<» lighter*; in order t..
from seizure in any port or place under the over the bar into .the inner harbor, where the re-
1.— Tn Dajrlelsh et ol. v. Brooke, 15 East, 294.
the jroods were warranted " free from capture or
seizure in the ship's port or port* of di-ehaive."
The ship arrived in the outer Road of Pillau. which
is a bar harbor, where largv ships like- the one
"."' ' ",'"" i mentioned in the policy, are obliged to dischanre
Also tree imrt of their cargoes into lighters, in
mainder is dlscharjfed : and the captain havinir
anchored two mil*-* ami a quarter farther on I than
jurisdiction of Napoleon, or under the juris-
,. .. • , . . . • HMI-III 111-11 i *vii inner* nun it iimtriiT uuiiifi »'ui i iinn
diction of any power under his control or m ; 8hi,,9 ,,8ua||v lie for that purpose, which difference
alliance with him. " The brig was taken on the
coast of Holland, by two French privateers.
and carried into the port <>f Amsterdam, and 8om,. Prussian soldiers and „ piM, who took pos-
i2 J>li *) *was afterwards condemned bv the | session <>i the shipami earj/o. which WHS afterward
Imperial Council of Prizes at Paris as pri/.e "t
war. The jury found that the capture was
within the jurisdiction of Holland, and that
JOHNS. HKP.. 11.
waa di-cided by the jury to IM- immaterial, he wont
on shore to obtain iK'rmission to dlsi-harg-e his carjro,
ami returned in flvo or six da vs. in company wit
i-onflsoated : this was held to be an arrival at the
insurers from the low.
155
293
SUPREME COURT, STATE OF NEW YORK.
1814
FONTAINE
v.
THE PHCENIX INSURANCE COMPANY
OF NEW YORK
Marine Insurance — Forfeiture of Vessel under
Non-Intercourse Law, Deprives Owner of
Insurable Interest — " Return Cargo."
A vessel was Insured from New York to St. Bar-
tholomew, and at and from thence back to New
York, with liberty to touch and trade at Martin-
ique.
The vessel discharged her outward cargo at Mar-
tinique, and was taking in a return cargo, having
thirty-five hogsheads of molasses on board, when a
storm arose, which drove her ashore, and so much
damaged her that, on a survey, she was pronounced
not capable of being repaired unless at an expense
exceeding half her value, and the voyage was aban-
doned and the vessel sold. It was held, that if the
cargo she was taking jn at Martinique was in-
tended for the United States, it was a breach of the
non-intercourse law of the United States, passed
the 1st of March, 1809, by which the vessel would be
forfeited, and the property be immediately vested
in the United States, so that the owners would have
no insurable interest. The evidence, however of
such intent ought to be satisfactory and conclusive,
and it is a fact for a jury to decide. By "return
cargo" is meant a cargo for the home port, unless
otherwise explained.*
It seems that the value of a vessel, to be taken,
in estimating whether she can be repaired for one
half, is not the valuation in the policy, but her
value at the place where the accident happened.
Though a survey is not conclusive, as to the state
of the vessel, yet if honestly made, it is very strong
evidence; and if a vessel, after being stranded,
should be deemed a wreck, or her situation desper-
ate, it will justify an abandonment, though she
should afterwards be got off by others, and re-
paired for a less sum than was estimated.
Citations,— Act March 1, 1809, Sec. 4 ; 5 T. »., 112 ;
3 Cranch. 337.
THIS was an action on a policy of insurance
on the schooner Phoenix, valued at $6,-
000, " at and from New York to St. Bartholo-
mew, and at and from thence back to New
York, with liberty to touch and trade at Mar-
tinique." The cause was tried before the
Chief Justice, at the New York sittings, in
November, 1813.
The vessel sailed from New York the 10th
of May 1811, on the voyage insured, and
arrived at Martinique, with a cargo of flour,
rice, «fec., on the 14th June following. The
cargo was discharged at St. Pierre, which is
an open roadstead in the island of Martinique,
as soon as circumstances would permit, and the
vessel was taking in a return cargo, and had on
board thirty-five hogsheads of molasses, when,
on the 7th of July, a violent gale of wind arose,
by which the vessel was driven against the
294*J rocks opposite *the town ; and after
beating against them, was driven so high on
shore, that when the gale subsided, and the
sea became calm, there was only two or three
feet of water on the outside of her. The super-
cargo, master and mate, whose depositions
were read in evidence at the trial, said it would
have cost more than the vessel was worth to
get her off. The supercargo stated that the
harbor master informed the surveyors that it
would cost about $1,300 to get the vessel off,
exclusive of cables and other materials neces-
sary for that purpose; but all the witnesses
*Center v. Am. Ins. Co. of N. Y., 7 Cow., 564;
Buchanan v. Ocean Ins. Co., 6 Ibid., 318.
15G
expressed their opinion that it would cost more
than the vessel was worth to get her off.
On the 8th July the master presented a pe-
tition to the Governor fora survey of the vessel
and cargo, and an order of survey was accord-
ingly granted on the next day ; and on the
llth of July a survey was made by the harbor
master, two carpenters, and two sea captains.
The harbor master and carpenters were of
opinion that the vessel ought to be condemned ;
the ship masters at first doubted, but they all
afterwards signed the report for her condem-
nation. The carpenters said they would not
undertake to get her off and repair her bottom
for less than $2,500 or $2,600, and they all
were of opinion that it would cost more to get
the vessel off and repair her than she would be
worth in the United States. The ship masters
were of opinion that it would cost $5,500
completely to refit the vessel, and that she
would not be worth in the United States more
than $4,000. The surveyors examined the
vessel on the side next to the shore, from stem
to stern, without wetting their feet The
vessel was sold at auction for $285 besides her
sails and rigging, which were sold separately.
Three other vessels, which were driven
ashore at the same time, were surveyed, con-
demned and sold as wrecks. Attempts were
made to get the Phrenix off, by floating her
with casks and spars, which did not succeed.
The person who purchased her at auction,
after several fruitless attempts to get her off,
sold her to two American captains for $500.
They testified that they tried, for several days,
various means, with the assistance of forty or
fifty persons, to get her off, without success.
They afterwards bargained with a person to
give him $100, if he would get her off, and after
trying two days, he succeeded by means of a
large lighter. Her bottom was repaired by a
carpenter for $40, but not so as to enable her
*to carry a cargo. The sails and rig- [*295
ging were purchased for her, and she arrived at
Salem, in ballast, but leaked very badly during
the passage. The whole expense of "repairs,
and bringing the vessel to Salem, was about
$2,200, including $112 for seaman's wages.
The whole expense of getting off the vessel
was about $500. After her arrival in Salem
she was sold for $2,150. The purchasers at
St. Pierre were of opinion that she might, with
the repairs they put on her, have gone to St.
Bartholomew in ballast ; and that after she
was got off she might have been repaired for
$100, so as to have carried a cargo to St. Bar-
tholomew, and thence to New York. They
purchased her with a view to bring her home
and sell her, as it was not in their power to
bring home a cargo, on account of the non-
intercourse law. Sails and rigging cost three
times as much in St. Pierre as in the United
States.
The Chief Justice charged the jury that if
the captain of the Phoenix took in a cargo at
Martinique for the United States, the vessel
was forfeited by the non-intercourse law, and
the plaintiff had no interest in her at the time
of the loss. She was engaged in an illicit
trade ; but she might, however, lawfully take
in a cargo at Martinique for St. Bartholomew^
that the plaintiff's counsel stated that they
were surprised by this objection; and thatpos-
JOHNS. REP., 11.
1814
FONTAINE v. PIIOZNIX IKS. Co.
295
aibly they might have shown that the cargo
was intended for St. Bartholomew, and if the
jury were of that opinion, the remaining ques
lion would be whether there had been a par
tial or total loss. That the vessel was driven
ashore by a lempest, and the surveyor certi-
fied that she ought to be sold ; that such cer-
tificate was not conclusive, but if made bona
jute, it was strong evidence. Presuming it to
be an honest survey, it stated that the vessel
could not be got off and repaired for half her
value ; and if that was so, the loss was total,
and the insurers liable. That the value to be
taken, in estimating whether she could be got
off and repaired for one half, was not the
value specified in the policy, but the value at
Martinique, where the injury happened. It
was immaterial whether she was, in fact, got
off for $100. or for nothing. The case, at the
time of the survey, appeared desperate, and
the good fortune of the subsequent purchasers
could not destroy the right of the plaintiff.
That there appeared to be good cause for the
certificate of the surveyors, and if the trans-
action was honest, and a sound discretion was
iiOO*] 'exercised in selling the vessel, the de-
fendants were liable for a total loss, and he
was inclined to that opinion ; but if the jury
thought the vessel was not injured to half her
value, they must find a verdict for a partial
loss, or the amount of actual damage sus-
tained.
The jury found a verdict for the plaintiff
for a total loss. A motion was made to set
aside the verdict, and for a new trial.
Mr. T. A. Emmet, for the defendants.
1. At the time of the loss the plaintiff had not
an insurable interest in the vessel, she having
become forfeited to the United States for a vio-
lation of the non-intercourse law. There was
no illegality in the voyage insured ; but, as act-
ually carried on, it was illegal, and a breach
of the law of the United States. By the Act
(10 Cong., seas. 2, ch. 91, sees. 4, 5, 6, Vol.
IX., Laws, 243), it is declared to be unlawful
to import into the United States any goods,
wares or merchandise whatever, from any
port or place situated in Great Britain or
France, or in any of their colonies or depend-
encies ; and the goods, as well as the ships or
vessels on board of which they are laden, are
declared to be forfeited.
Where, by statute, a forfeiture of goods is
created, the property, by the forfeiture, is de-
vested out of the owner, without any proceed-
ing on the part of the State, and becomes vest-
ed in the government. (Co. Lit., 128; 12
Mod., 92; Salk., 228; 5 Mod., 195; Comb., 8.
C., 861 ; WtiUnt v. Despard. 5 Term, 112.)
This principle was recognized by the Su-
preme Court of the United States in the case
of the United State* v. Grundy et al., 8 Cranch,
887, and note 856, the opinion of Winchester,
c/. The lading on board, therefore, of the thir-
ty-five hogsheads of molasses at Martinique,
b*efore the accident, with intent to bring them
to the United States, was an act of forfeiture.
All the witnesses agreed that after discharg-
ing her outward cargo, she proceeded to take
in her return cargo, that is, a cargo home to
the United States. It can make no difference,
in relation to the operation and effect of the
law of the United States, whether the cargo
JOHNS. REP., 11.
was to be imported into the United States di-
rect from Martinique, or circuitously, by the
way of St. Bartholomew.
It is stated in the case that the plaintiff's
counsel were suprised by this objection at the
trial, and the judge in 'his charge so states it,
and that the plaintiff might possibly have
proved that the goods taken on board were in-
tended to be delivered at St. Bartholomew ;
and on this bare hypothesis, without any proof
whatever. His Honor left it to the jury to find
that fact, *if they believed it. But the[*297
Act of Congress says, putting the goods on
board with intent to bring them into the
United States, forfeits both vessel and cargo.
There should have been some evidence of an
intention to deliver tht cargo at St. Bartholo-
mew. But if it was intended to go to St. Bar-
tholomew, merely as a more secure mode of
conveying the property, circuitously, to the
United States, it would not vary the case. It
must be shown that it was intended to land the
goods at St. Bartholomew, and to sell them
there, and not to rtship them to the United
States.
2. There was not such a technical total loss
in this case as would justify an abandonment.
The circumstances excite a strong suspicion
that advantage was taken of the accident to
make the insurers pay for the vessel, rather
than expose her to seizure by bringing her
back to the United States. The hull only of
the vessel was injured by striking on the
beach, which was caused by the violent swell-
ing of the sea. Not a spar, nor any part of
her rigging, was damaged. The expense of
getting the vessel off was estimated by the har-
bor master at about $1,200; the actual ex-
pense of all the unsuccessful efforts for that
purpose was $500, and an offer was finally
made to get her off for $100, which succeeded.
The right to abandon must be grounded on
the fact that it would cost more than half the
value of the vessel to repair her, not on the
opinion of men. Opinion, at most, is but evi-
dence of the fact ; yet the judge charged the
jury that it appeared to be a desperate case.
The survey is very loose and unsatisfactory.
It contains no estimate of the cost of repairs ;
the nature and extent of the damage are not
stated. There are no facts on which we can
reason, or form a correct opinion. The sur-
veyors merely gave their own broad opinion,
without stating facts by which we might test,
the accuracy of their judgment. If the esti-
mates of the witnesses, and the actual ex-
penses as mentioned by them, are examined,
the whole amount of the cost of getting the
vessel off and repairing her cannot be made to
amount to more than $1,200. Then, taking
the valuation of the vessel in the policy, which
I contend is the true mode, it is not possible,
by any process of calculation, to make out a
case for abandonment. The valuation in the
policy is $6,000 ; *but it may be said [*2»8
we must take the value of the vessel at the
place where the accident happened. In an
open policy the valuation is to be taken at the
home port. In a valued policy the valuation
•med on must be taken. In -Smith v. Ml et
at., 2 Caines' Cases, 153, 157, Lansing, Ch. J.,
says: "The difficulty is much increased by
the estimate necessarily required of the value
157
298
SUPREME COURT, STATE OP NEW YORK.
1814
of the old (materials) at the home port, and of
the new at the port of repair." He seems to
take it for granted that the rule is, except in
regard to new materials, that the value at the
home port is to be taken. The object is to
bring the vessel home, and her value here is
the proper measure. She may have twenty
different valuations in as many foreign ports.
It might be that the vessel would be worth
$20,000 at Martinique, and then there could
be no case for abandonment.
Mr. Golden, contra. 1. If the plaintiff had
an interest which he could transfer, then he
had an insurable interest. It was held, in the
case of the Anthony Mangin, 3 Cranch, 337,
that though, as between the party guilty of
the breach of the law and the government, the
forfeiture related back so as to devest the in-
dividual, and vest the government with the
pioperty, yet that the rule did not apply to a
bonafide purchaser. By the abandonment, in
this case, the property was transferred to the
insurers, who would, as bona fide purchasers,
hold her against the United States.
But we deny the fact of an illegal trading.
The witnesses speak of the lading of a return
cargo, as distinguished from the cargo carried
out. They do not say it was a return cargo to
New York, or to the "United States.
Stranding, followed by shipwreck, justifies
an abandonment, without regard to expenses
of salvage or repairs. (1 Emerig., 403, ch. 12,
sees. 12, 13.) Here the vessel was driven on
shore, and beat over a ledge of rocks, where
she remained high and dry. Various experi-
ments were made to get her off, without suc-
cess, when it was concluded to abandon any
further attempt. Is not this a clear case of
shipwreck ?
Again, the vessel having been regularly sur-
veyed and condemned, as incapable of being
repaired for less than half her value, there was
just cause for an abandonment of the voyage.
Subsequent events cannot affect the plaintiff's
right to recover. The rule as to half the value is
taken from the French law. There the freight
enters into the valuation of the vessel, in the
299*J *policy, and to this is added the outfits
and premium, all which may far exceed the
value of the vessel itself. The value in the
policy may be, and often is, much too high.
In regard to the cargo, the value in the policy
does not govern. In order to ascertain the
degree of damage to the cargo, the sound and
damaged articles are sold. The policy is re-
garded as open for this purpose. In the case
of Smith v. Bell it does not appear whether it
was a valued policy or not.
It is the valuation at the port of necessity
that must be taken as the ground of estimate,
and the charge of the judge, in that respect,
was correct.
Mr. Emmet, in reply, said if the underwrit-
ers in this case were to be considered as pur-
chasers, they were not bomif.de purchasers, for
they had notice of all the facts, and must have
known the illegality of the shipment.
It is is true that stranding, followed by ship-
wreck, is a ground for an abandonment ; but
what is shipwreck ?' It is such an injury to a
1. — Emerigon torn. 1,400, says there are two kinds
of shipwrecks— one where the vessel is sunk, with-
out any vestige of her remaining above the surface
158
ship as incapacitates her from proceeding on
the voyage, unless repaired at an expense ex-
ceeding half her value. (Marsh, 488.)
YATES, J., delivered the opinion of the court:
The first question presented in this cause is,
whether the plaintiff, at the time of the loss,
had an insurable interest in her.
By the 4th section of the Act to Interdict the
Commercial Intercourse between the United
States and Great Britain and France, and their
dependencies.and for other purposes, passed the
1st of March, 1809, the importation of any goods,
wares and merchandises whatever, from Great
Britain or Ireland, or any of the colonies or
dependencies of Great Britain, is prohibited ;
and the 6th section of the same law declares
that if any article or articles, the importation
of which is prohibited by that Act, shall, after
the 20th of May, be put on board of any ship or
vessel, boat, raft or carriage, with intention to
import the same into the United States or the
territories thereof, contrary to the true intent
and meaning of the Act, and with the knowl-
edge of the owner or master of such ship or
vessel, boat, raft *or carriage, such [*J3OO
ship or vessel, boat, raft or carriage, shall be
forfeited, &c.
If the master of this vessel intended the
lading she had taken in at St. Pierre, on the
7th of July, 1811, for the port of New York,
it would, unquestionably, be a direct violation
of the statute, and a forfeiture must ensue, by
which the property of the vessel would imme-
diately vest in the United States.
In the case of Wilkins et al v. Despard, 5
Term, 112, it is decided that if a ship be
seized as forfeited under the Navigation Act,
the owner cannot maintain trespass against the
party seizing, although the latter does not pro-
ceed to condemnation ; for, by the forfeiture,
the property is devested out of the owner.
The case of The United Stntes v. Orundy et
al., 3 Cranch, 337, cited by the plaintiff's
counsel, rather supports this doctrine. At all
events, I cannot find in the report of the case
anything opposed to it. It is there decided
that under the Act of Congress of December,
1792, which declares that if a false oath be taken,
in order to procure a register for a vessel, the
vessel or its value shall be forfeited ; that the
United States had an election to proceed against
the vessel as forfeited, or against the person
who took the false oath, for its value ; and
that, until the election was made, the property
of the vessel did not vest in the United States ;
that an action could not be maintained for
money had and received against the assignees
of the person who took the path, and who had
become a bankrupt, the assignees having sold
the vessel, and received the purchase money
before seizure.
The Act of 1792 gives two remedies — the for-
feiture of the vessel, or the value, to be recov-
ered from the person who took the false oath;
consequently the remedy is at the election of
the United States. The property, therefore,
could not vest until the seizure. The Act, in
relation to the case before us, affords but one
remedy, and that is, the forfeiture of the vessel,
of the water; the other, where the vessel is stranded,
and such an opening is made, that her hold is filled
with water, without her wholly disappearing.
JOHNS. REP., 11.
1814
MURRAY v. COLUMBIAN INS. Co.
so that the seizure is not necessary to change
the property ; the owner loses his right to it
immediately after the commission of the act
producing the forfeiture. It must be granted
that the evidence in support of such an allega-
tion ought to be conclusive, as the effect of it
goes to destroy the right of action altogether ;
for, by the forfeiture of the vessel to the United
States, the insurable interest of the plaintiff
was at an end.
30 1*J *Tue testimony of the supercargo in
the case before us is, that the vessel had pro-
ceeded to take on board a return cargo, and
continued so to do until the ?th of July, when
the gale commenced. In this the captain and
the mate concur ; and they also state that she
actually had thirty five ca>ks of molasses on
board at the time of the disaster ; no further
explanation of their intentions a- to the dispo-
sition of the return cargo, is given.
It will not admit of a moment's doubt, that,
by return cargo, the goods for the home port
were intended ; and if the policy had been con-
fined to one foreign port, no room would be
left for any other explanation on the subject ;
but the vessel was destined for St. Bartholo-
mew, with liberty to touch and trade at Mar-
tinique, the place where those articles were
taken on board ; it is, therefore, possible that
an explanation might be given that the return
cargo was intended for St. Bartholomew. No
such explanation, however, appears in the case
before us. It was left to the jury by the judge,
without any further evidence, accompanied
with an observation that the plaintiff's counsel
stated that he was surprised by the objection
taken on the part of the defendants; and that,
possibly, if he had not been, he might have
shown that the cargo was intended for St.
Bartholomew. This was not shown ; and
without it the jury had no ground to infer that
it could be so intended; for, until explained,
the evidence will admit of no interpretation
other than that the goods so laden were intended
for the port of New York. Although, on the
other points, I am inclined to think the cause
is witii the plaintiffs, yet the objection made
to the defendants' counsel, on the ground of
forfeiture, being insurmountable, it cannot
change the result ; a new trial must, therefore,
be granted, with costs to abide the event.
New trial granted.
Marine Insurance— Forfeiture allowed to beset up
bv third person. Criticised-19 N. Y., 187.
Cltedln-14 Johns., 131.
What goods lUdiie to forfeiture. Cited In— 15 Johns.,
33; !>S«nd., «W: 9 Daly. 185; 10 Leg. Obe., 149: 11
Wall ; :t«M ; Hlatehf & EL, 61.
When property decested. Disapproved— 1 Story,
135.
Cited In— 14 Wall.. 57; 2 Cliff., 68.
Whrn niiiiiiiiiiiiiiifiit fur total (IMK ml i'l. Cited In—
5 Duor, 362 ; 3 Mason. 42, 58, 61, 72 ; 46 Mo., 215.
Surrey, trimmer on intention of conduct of matter.
in K Bos.. 51. 8U ; Blatchf. & H..472, 476.
Af<Krf<rt« right to sell. Cited ln-2 Wood. & M.. 338,
5 Mason, 476.
3O2«] »MURRAY AND OODEN
v.
THE COLUMBIAN INSURANCE
COMPANY.
JOHNS. REP., 11.
THE SAME t. THE SAME.
Marine Insurance. — Pleading — General Arer-
ment of Interest in Entire Thing Insured. Ite-
eovery for l^exs Interest — This applies to both
Open and Valued Pblicie*.
Insurance at and from CagliarltoSt. Petersburgh
or Archangel, with liberty to touch and trade at
lirrKfii, Ac., upon all klndsof goods, \<-.. '* laden or
to be laden on board the good American ship Kolla,
&c.. beptonlnf the adventure, Ae..from and immedi-
ately following the loading thereof on board," &c.
The vessel sailed from New York with a cargo. and
arrived at Palermo, where she discharged cart of
her carx'", and from thence went to Messina, and
there unloaded and sold a further part of her cargo.
and took on board other goods, and proceeded to
< 'a>rliari. where all her cargo was taken out and put
on deck, in order to take in a quantity of suit, and
the cargo was examined and restowed in |>erfeet
order. The vessel sailed from Cagliari, ttotind for
Ut-rxvii. on the 21st of April, having on board a car-
go consist Ing partly of goods which she carried out
from New York, and the residue of goods laden on
board at Messina, except 500 salmsof salt, taken on
I x m r<l at Cagliari, and, on the 25th of April was capt-
ured by a French privateer. It was held that the
policy attached only upon the salt, which was actu-
ally laden on board at Cagliari.
Under a general averment of interest in the entire
thing insured, the insured may recover in propor-
tion to the quantum of interest he proves at the trial.
M. purchased the whole of a cargo, in which L.
was to be interested one third, and which was
charged to him by M.. and the invoice and bill of
lading made out in their joint names, fkmie months
after. L. directed his correspondent to place the pro-
ceeds of the cargo to the credit of M. It was hel\j
that M. had not such a lien on the one third be-
longing to L. as amounted to an insurable inter-
est; nor could M., who had insured the whole, and
had averred an interest in the whole cargo, recover
for more than two thirds.
M. and L., being joint owners of a ship, in equal
proportions, M. effected an insurance on the whole
ship in his own name : the policy contained a valua-
tion of the ship at $16,000, which was her full value,
and M. averred the interest to be in him solely. A
loss having occurred, it was held that M. could re-
cover for a moiety only of the sum at which the
vessel was valu«!d, or according to the </tuintum of
his interest proved ; but that lie was entitled to a
return of one half of the premium paid on the
whole sum.
Citations— 2 Cai., 399 ; 3 Johns.. 307 ; 4 Johns., 443;
4 East. 130 : Mursh on Ins.. 274 ; 1 Win. 111.. 463; Marsh
on Ins., 680,710, 730; 1 Cai.. 276,203; 10 Johns.. 79.
were two several actions on two poli-
JL cies of insurance, one on the cargo and
the other on the ship. The policy on the cargo
was dated the 13th of November, 1810. and
effected in the name of John Murray & Sons,
the plaintiffs, on account of " themselves, at
and from Cagliari to St. Petersburgh or Arch-
angel, with liberty to touch and trade at Bergen,
in Norway, upon all kinds of goods and mer-
chandises, laden or to be laden on board the
good American ship called the Rolla, beginning
the adventure upon the said goods and mer-
chandises from and immediately following the
loading thereof on board the said vessel at
Cagliari." The goods were not valued. The
NOTB.— Marine insurance— InsuraHe- interest.
Insured must have an interest, and anyone having
an Interest may procure insurance. Kenny v.
ri;irk«m. 1 Johns., 385, note ; Smith v. Williams, 2
Cai., 110, n»tr : Robertson v. United Ins., Co., t
Johns. Cas., 250, note; Lawrence v. Van Home. 1
Cai.. 276, note.
A part •linn- 1- can only (future his own Interest.
Recovery Is limited to interest of party ituntreti.
Lawrence v. Van Home, 1 Cai., 276, note.
Wager policies are intalM. Clendining v. Church,
3 Cai., 141, note.
Pm.nts and freight may be insured Itu one haring
an i ni f 1 1. -i. Abbott v. Sebor, 3 Johns. Cas., 39, note
lit
302
SUPREME COURT, STATE OF NEW YORK.
1814
premium was 16| per cent., to return 5 per
cent, if the risk ended safely at Bergen. In
case of loss, the same to be paid in thirty days
after proof of loss and interest in the plaintiffs.
The declaration averred a loss by French
capture, and that the insurance was made for
the proper account, use and benefit of the
plaintiffs, and that they were the sole owners
of the property insured.
The cause was tried at the New York sit-
tings, in November 1813, before the Chief Jus-
tice. It was admitted that the plaintiffs had
duly abandoned for a total loss, and had exhib-
ited, as proof of interest and loss, an invoice,
3O3V] bill of lading, affidavit *of Murray,
one of the plaintiffs; a letter from the captain,
dated Cagliari, 21st of April, 1810, to Messrs.
Justin & Elias Lyman; a letter from J. & E.
Lyman to Philip Sansom & Son, of London,
dated New York, 18th of October, 1810; a
copy of the protest of the master and several
of his crew, made at Tunis, the 8th of May,
1810; a copy of a letter from the American
consul at Tunis to the American consul at
Gibraltar, and the deposition of the chief mate
of the Rolla. These documents were pro-
duced and read at the trial, and a question
was made as to the sufficiency of the prelim-
inary proofs, but the point was not insisted
on, in the argument of the case.
The invoice of the goods, dated at Cagliari,
the 21st of April, 1810, signed by Simeon Ly-
man, as master and supercargo, stated the
shipment to be for account and risk of Messrs.
John Murray & Sons, and Messrs. Justin &
Elias Lyman ; and the bill of landing, dated at
Cagliari, the 16th of April, 1810, specified the
goods shipped to be the property of Messrs.
John Murray & Sons, and Messrs. Justin &
Elias Lyman, and shipped for their sole ac-
count and risk.
Murray, in his affidavit, deposed that John
Murray & Sons were owners of two thirds of
the cargo, and were interested in the other one
third ; Messrs. Justin & Elias Lyman having
agreed, before the insurance was made, that
the proceeds of the said one third should be
remitted to Phillip Sansom & Sons, of London,
and passed by them to the credit of John Mur-
ray & Sons, in consideration of advances made
by them for the purchase of the said one third
of the cargo.
The letter of Messrs. J. & E. Lyman to
Philip Sansom & Sons requested them to pass
to the credit of Messrs. Murray & Sons the
amount of all remittances which might be
made to them, on account of the owners of the
ship Rolla, S. Lyman master ; Messrs. J. Mur-
ray & Sons and themselves, J. & E. Lyman,
being the only owners.
The Rolla sailed from New York the 9th of
May 1809. The chief mate deposed that they
arrived at Palermo in July, 1809, where they
disposed of part of the outward cargo. The
ship left Palermo in February, 1810, and
reached Messina in three or four days, where
the residue of the outward cargo was disposed
of, except 36 hogsheads of tobacco, 30 hogs-
heads of fine sugar, and 1,050 pieces of log-
wood, which were reshipped at Messina, where
3O4*] *a new additional cargo was taken on
board, consisting of 50 pipes of olive oil, 20
pipes of lemon juice, 150 boxes of lemons,
160
and 8 quintals of corkwood. The ship, with
such new cargo, and the remainder of the out-
ward cargo above mentioned, sailed from
Messina the 24th of March, 1810, and arrived at
Cagliari the 1st of April following. At Cag-
liari all the cargo brought from Messina, ex-
cept the logwood, was hoisted out upon deck,
in order to take in 500 salms of salt, which
was the only part of the cargo put on board at
that place. The salt was put at the bottom, as
ballast, the ballast which was in the vessel on her
arrival at Cagliari having been previously taken
out for that purpose, and the logwood was shift-
ed from forward and aft, and replaced midship,
to serve as dunnage for the salt. After the
salt was taken on board,- the rest of the cargo
was stowed away, so that the whole cargo was
restowed at Cagliari. While the cargo was
shifting it was examined, and appeared to
have received no damage, but was in the same
state as when put on board at Messina; and no
accident had happened while the vessel was
at Messina, or during her passage to Cagliari,
that would be likely to occasion any damage.
Cagliari is an open bay, in which vessels load
and unload ; and instead of landing the cargo
brought from Messina, it was put on deck, in
order to take in the salt.
The cargo specified in the invoice and bill
of lading, as shipped at Cagliari, consisted
of the articles above mentioned, brought from
Messina, and the 500 salms of salt, taken on
board at Cagliari. The tobacco was, by mis-
take, omitted in the bill of lading.
The vessel sailed from Cagliari on the 21st
of April, 1810, for Bergen, and on the 25th of
April was captured by a French privateer,
and carried into Tabarca in the Regency of
Tunis.
It was proved by William Swan, a clerk of
the plaintiffs, that they were to advance the
whole of the outfit of the voyage, and that
Messrs. J. & E. Lyman were to be interested
in one third of the proceeds, if paid for, when
the voyage ended; and, pursuant to this agree-
ment, the invoice and bill of lading of the
cargo from New York were in the joint names
of the plaintiffs and Messrs J. & E. Lyman.
The Messrs. Lyman owned one half of the
ship. The agreement as to the cargo was not
in writing, but J. & E. L. were charged in the
plaintiffs' books . with their proportion of the
outward cargo. No notes *wef e given [*3O5
by the Messrs. Lyman at the time ; but about
two years after, application was made for pay-
ment, and notes were then given by them to
the plaintiffs.
The counsel for the defendants moved for a
nonsuit, on two grounds : 1. That the plaint-
iffs had shown an interest only in two thirds
of the cargo instead of the whole, as averred
in the declaration. 2. That the plaintiffs could
not recover for any part of the cargo which
was not actually shipped at Cagliari; and, as
the salt was the only article taken on board at
that place, the recovery could only be for two
thirds of the value of that article.
The judge expressed an opinion that the
plaintiffs had shown an insurable interest in
the whole cargo specified in the invoice ; but
reserved all the points ; and a verdict was
taken for the plaintiffs for a total loss, subject
to the opinion of the court on the points re-
JOHNS. REP., 11.
1814
MURRAY v. COLUMBIAN INS. Co.
HI
served; and to an adjustment lobe made by ! ship. In Otiver v. Green, 8 Mass., 183, de-
persons to be appointed by the court, at the i cided in the Supreme Court of Massachu-
time of rendering judgment on the case. j setts,. a part owner of a vessel had hired the
In the action on the policy on the ship, the j remaining part, and was to pay the value in
declaration averred a loss by capture, and that j case of her loss, and the court held that he
• - ' ' "-"* I had an insurable interest in the whole vessel.
[THOMPSON, Ch. J. But should not the in-
surers be informed of the nature of the inter-
est, or should it not be insured specially as a
lien ?]
We may insure generally, and show at the
the interest was in the plaintiffs.
There was a valuation in the policy, but the
sum was not stated in the case ; it was ad-
mitted that the value, at the time of the in-
surance, was not more than $16,000.
At the trial, the proofs were the same as in
the other action, except that the preliminary tf/j *£™^™ and amount of our interest.
Pur00l.°f Jnte^L,K°f 18^ic The averment of interest in the declaration
the ship, dated 28th April, 1809 which was in ^ ^ Qr ja, and under the
the names of Justin Lyman. «M Lymaii ., j erftf ave?mcnt lhe £iaintiff niay give in6evi.
.John R Murray and William Ogden : and deQCe interejjt £ « £%£
one of the plaintiffs (Murray) made oath that 8u|.t insured But if he aver a
the plaintiffs were interested in the ship to the tereJ be mugt e ., M 8tated
full amount insured by the policy, and con- '
tinued so interested until the time of loss.
The defendants' counsel insisted, 1. That
the plaintiffs were not entitle to recove any-
3O7
thing, inasmuch as they had not proved such
an interest as they had averred. 2. That, at
all events, they could recover only to the ex-
tent of one half of thesuin insured ; and these
were reserved by the judge, and a verdict
taken for the plai'ntiffs, for a total loss, subject
to the opinion of the court, &c.
Mr. Golden, for the plaintiffs. 1. The plaint-
~ iffs had a lien on the *cargo for their
advances, and that was an insurable interest.
A qualified, as well as an absolute interest,
may be insured. (Marshall on Ins., 105, B, 1,
•ch. 4, sec. 1 ; 1 Burr., 489 ; Hibbert v. Carter,
1 Term, 475; Le Cras v. Hughes, Marsh.,
108: HiU v. Secretan, 1 Bos. & Pull., 315;
Park, 574 ; Wolfv. Horncastle, 1 Bos. & Pull.,
316 ; 8 Burr., 1894.) Almost any qualified
property in the thing insured, or any reason-
able expectation of profit or advantage to arise
therefrom, may be insured, if it amount to a
legal or equitable title.
3. Next as to the extent of the interest, or
whether the policy covers the goods not
actually put on board at Cagliari. [The coun-
sel here stated the facts in the case, and insist-
ed that not only within the terms, but within
the sense and spirit of the contract, the goods
were laden on board at Cagliara.] In the case
of Grates cfe Scriba v. Marine Ins. Co. , 2 Caines,
•817, which may be cited on the other side,
the original cargo had been carried to a
great distance, and was not examined and re-
stowed, and the court held the party to the
strict terms of the policy ; but fn Vredenburgh
v. Grade, 4 Johns., in note, where the in-
surance was from the loading of the goods
on board in the West Indies, and the vessel,
while
carri
Mole to St. Mark's, was captured, the court
decided that the insured were entitled to re-
cover.
As to the ship, the first question is as to the
interest of the plaintiffs. The cases cited in
relation to the interest in the cargo are appli-
cable here, for the plaintiffs made advances
on account of the other part owners, and had
their lien on the ship. It is true the register
was in the joint names of the plaintiffs and
Messrs. Lytnan ; but a documentary title need
not be shown in order to prove a lien on a
Latcrence v. Vanhvrne, 1 Caines, 276,
Radcliff. J.)
, this is a valued policy, and the val-
applies to the interest of the insured,
tofc Aliuii;^, .ni'i «MV »v»^n-i,
ile proceeding with the same cargo she had
ried out from New York, from Nichola
whatever it may be, and it is enough if he
shows an interest to the amount insured. (Post
el al., v. Phoenix In». Co., 10 Johns., 79.)
The defendants, moreover, have received a
premium on the whole sum insured, no part
of which can be recovered back, uorcan there
be any averment of short interest.
Messrs. C. 1. Bogert and S. Jones, Jr., contra.
1. The goods which were on board at Cag-
liari, except the salt and a few articles at Mes-
sina, were actually laden on board at New
York eleven mouths before. The vovage in-
sured was to commence from the lading on
board at Cagliari. The voyage must be truly
and explicitly defined, and the policy is to be
understood according to the plain and un-
equivocal language of the instrument. There
is no usage of trade to explain the meaning of
the parties ; nor can any parol agreement or
understanding of the parties be received.
(Koines v. Knightly, Skin.. 454 ; Marsh., 706 ;
Mumford v. Uallett, 1 Johns., 438.) In Vre-
denburgh v. Grade the case was decided only
by Lansing, Ch. J., and Lewis, J., and they
went on the ground that the insurers were
informed, at the time, of the situation of
the vessel, and they intended to insure her on
a trading voyage ; and Livingston, J., when
noticing that case, in (irate* & Scriba v.
Marine Ins. Co., says, with all the explana-
| tions given, Hamilton and himself were of
opinion that the plaintiffs could not succeed,
without applying to the Court of Chancery to
amend the policy. In Richards v. Marine
Ins. Co., 3 Johns., 808, Mr. Justice Spencer,
who delivered the opinion of the court, con -
sidered the question as completely at rest,
since the decision in Grates & Sci iba v. Marine
Ins. Co.
[THOMPSON, Ch, J. The court are so much
inclined to that opinion, that you need not
argue the point further.]
We shall only add one case, that of Spitta
v. Woodman, 2 Taunt., 416, decided in the
Court of C. B., in England, which is pre-
cisely to the same point.
2. The plaintiffs had an insurable interest
in two thirds only of the salt laden on board
at Cagliari. If any lien was intended, or any
legal interest existed in the plaintiffs, why
JOHNS. REP. 11.
N. Y. R. 5.
11
161
307
SUPREME COURT, STATE OP NEW YORK.
1814
were the invoice and bill of lading in the
3O8*] names of the Lymans jointly *with the
plaintiffs ? One of the Lymans was actually
on board of the vessel, and had, therefore, not
only the legal title, but the legal possession of
their interest.
Again ; the lien, if any, was on the goods
shipped from New York, not on the salt pur-
chased for joint account of the defendants and
Messrs. Lyman, at Cagliari. (Marsh , 105,
312; 2 Mass. Rep., 365.)
3. As to the ship, the only proof of interest
is the register, and it does not accord with the
averment in the declaration. No person can
have a legal or equitable title to a ship, unless
he is named in the register. In Camden v.
Anderson, 5 Term, 709 ; Marsh, on Ins., 115,
116, where four persons purchased a ship,
which was registered in the names of two of
them, it was held that the four had not insur-
able interest. An averment of interest in
two, will not be supported by showing an in-
terest in four.
In Riley v. Delafleld; 7 Johns. , 522; 2 Johns.,
346; Dall., 421, 463, where the plaintiff
had sold the ship, but the purchaser agreed
that he should have the whole freight for
the voyage, for which she had been pre
viously cliartered, and which was the voy-
age insured, it was held that the plaintiff had
not an insurable interest, as freight, and could
not recover, unless the precise nature of his
interest was disclosed to the insurers, and spe-
cially insured by him.
The case of Post el at., v. The Phoenix In*.
Co. is not applicable. There one fourth of
the ship was insured, and the valuation ap-
plied to the interest insured, not to the
whole ship. Here the insurance is on the
ship generally, without mentioning any part ;
and it was so intended by the plaintiffs, for
they supposed they had an iusurable interest
in the whole. The plaintiffs having proved
an interest in a moiety only of the ship, that
must be the extent of the recovery.
Mr. T. A. Emmet, in reply, insisted that the
plaintiffs had an interest in the whole cargo,
in two thirds absolutely, and in one third as a
lien for their advances. Where one person
has an absolute, and another a qualified inter-
est in the same subject, each may insure
(Marsh., 150), and may recover the whole. In
the case of Hill el al., v. Secrelan, the con-
signor shipped goods, part of which were to
be held for the plaintiffs, who were creditors
of the consignors, and they were held to have
an insurable interest.
It is said a qualified interest should be spe-
cifically insured. The cases decided as to bot-
tomry and respondentia are not applicable to
3OJ)*] *all qualified interests. The rule, in
regard to bottomry and respondentia, is a mere
rule of practice adopted in Europe. They are,
in themselves, a specjes of insurance. Lord
Mansfield, in Glover v. Black, 3 Burr., 1394;
Marsh., 317, states the ground of their decision
to be, that bottomry and respondentia, by the
" custom of merchants," is insured specially ;
but he strongly intimates that, under an in-
surance on goods generally, a mortgage, or
other special lien, might be given in evidence.
In Wolf v. Horncastle., 1 Bosf& Pull., 316, Bul-
ler, J., says that " a debt which arises in con-
1G2
sequence of the article insured, and which
would have given a lien on it. gives an insur-
able interest." which is the present case. In
Runnel v. The Union Ins. (Jo., 4 Dall., 424,
it was alleged that there was a fraudulent
concealment of the interest, which is not pre-
tended in this case. Washington, J., observes
that " it is clear that a person having a lien
on the cargo, may cover it by an insurance on
goods." It is true that the assured should
communicate to the underwriters the nature of
his interest in the subject insured, though it
need not be specified in the policy;" and a
question of fact was, " whether the insurance
of the special interest and not of the principal
ownership, made a material difference in the
risk, or would have altered the premium ; and
if the fact was not sufficiently disclosed to the
defendants," he said, "the omission would
vacate the policy."
It is contended that the goods, except the
salt, are not covered by the policy, because not
within its terms. Suppose that it had been
necessary to repair the ship at Cagliari, and
for that purpose to have landed the whole
cargo, or to have put it on board of lighters,
and after the repairs were completed, it should
be again " laden on board at Cagliari." would
not this come within the terms of the policy,
and would not the policy attach on the whole
cargo ? The distinction between such a case,
and the one before the court, must be extreme-
ly nice indeed.
As to the ship, if the plaintiffs had a lien,
as we contend, on the other half, for their
advances, the case of Oliver v. Green is in
point.
In Rising v. Burnett, Marsh, on Ins., 730, it
was held that one of several part owners
might insure freight generally, without men-
tioning what share he had in the ship, and
might declare generally, and recover for an
aliquot part, or according to his interest.
*The premium aids in determining [*31O
the intention of the parties. It being paid on
the whole sum affords the strongest inference
that the defendants meant to insure the in-
terest of the plaintiffs to that amount.
VAN NESS, J., delivered the opinion of the
court :
The first question made in this cause is,
whether the policy attached upon any other
part of the cargo than the salt. The policy is
at and from Cagliari to St. Petersburgh, upon
all kinds of goods and merchandises laden or to
be laden on board the Rolla ; beginning the
adventure "from and immediately following
the loading on board the said vessel at Cag-
liari." The plaintiff's right to recover for any
other part of the cargo than the salt depends
upon the fact, whether it was shipped at Cag-
liari or not ; it. having been solemnly deter
mined, on different occasions by this court, as
well as the courts in England,1 that in polices
like the present, the insurance attaches only
on the cargo taken on board at the port where
the adventure is to begin. (Graves & Scriba v.
Mar. Ins. Co., 2 Caines, 399; Richards v. Mar.
1.— By the decision of the Court of K. B. in Hor-
neyer v. Lushington, 15 East, 46, this question
which was again brought before the court, was
finally settled.
JOHNS. REP., 11.
1*14
MURRAY v. COLUMBIAN INS. Co.
310
Int. Co., 3 Johns., 307; Murray v. Col. Ins.
Co.. 4 Johns., 443; Robertson el al. v. French,
4 East, 130; Grant v. Paxton, Marsh, on
Ins., 274; Hodgson v. Richardson, 1 Wra. Bl.,
463.)
The evidence in this case does not support
the allegation on the part of the plaintiffs, that
the whole cargo was shipped on board at Cag-
liari. Except the salt, it consisted of the re-
mains of the outward cargo, and of merchan-
dise purchased and put on board the Rollu at
Messina. The hoisting the cargo out of the
hold of the ship, and resuming It at Cagliari.
does not amount to loading it on board the
ship at that place, either according to the
words, the reason or the spirit of the contract.
This part of the case is too clear to require any
further comment. The policy attached, there-
fore, only upon the salt; and the next question
is, whether the plaintiffs are to recover for the
loss of the whole of this article, or for any, or
for what proportion of it.
For the plaintiffs, it is contended that they
had an incurable interest in the whole of the
cargo, as having a lien upon one third, sold to
the Lvmuns to secure the amount of the pur-
3 1 1*] chase money, *and as being themselves
the owners of the residue. The evidence does
not establish that any such lien existed.
The sale made to the Lymans was an abso-
lute one. They were, in the first place,
charged with the amount in the plaintiffs'
books, and afterwards gave their notes for the
payment of the same. The invoices and bills
of lading were made out jointly in the names
of the plaintiffs and the Lymans ; not only
ihose relating to the outward cargo, but also
• those made out at Cagliari. It is true that
Swan says the Lymans were to be interested
in one third of the proceeds if paid for when
the voyage ended, and that such was the agree-
ment of the parties. So far is this statement
by the witness from being any evidence of a
lien that, if it be true, the purchase was not
consummated ; it was- a mere agreement to sell
on condition that, at the end of the voyage,
the purchaser should pay. It is a relation al-
together at variance with the allegation that
there had been a sale and that the plaintiffs
had a lien upon the goods for the considera-
tion. But the whole of this part of Swan's tes-
timony is utterly inconsistent with the other,
and particularly the written evidence in the
case, all of which most satisfactorily shows
that the plaintiffs, at the time of the safe, trust-
ed to the personal responsibility of the Ly-
muns. It is remarkable, also, that it was not
until several months after the insurance had
been effected that the letter to Messrs. Sansom
& Son was written by the plaintiffs directing
them to pass to their (the plaintiffs') credit any
remittances made on account of the owners of
the Rolla. The plaintiffs having paid for the
whole of the outward cargo, it is jx>ssible they
may have intended to preserve a lien for their
advances upon that portion of it which was
sold to the Lyraans ; but judging from the
proofs before us, as we are bound to do, they
have omitted to frame their contract in such a
manner as to effectuate that intention. The
plaintiff-*, however, were the owners of two
thirds of the salt, and the value of that they
arc entitled to recover.
JOHNS. REP., 11.
It is supposed by the defendants' counsel that
under this insurance of the whole cargo, and
the pleadings in the cause, the plaintiffs were
bound to show that they had an insurable in-
terest in the whole. But it is not necessary
for the assured to have the precise interest, or
proportion of interest, he intends to insure in-
serted in the policy. If he has an insurable
interest in the entirety of the cargo, he may
cause it to be separately insured; *and [*31&
under a general averment of interest in the en-
tire thing insured, he shall recover for the lose-
in proportion to the quantum of interest he
proves upon the trial. (Marsh, on Ins.. 682,
710; Rising v. Burnett, Jb., 730; Lawrence v.
Van Horn & C'larkson, 1 Caines, 276; Law-
rence v. Sebor, 2 Caines, 208.)
It is not, I believe, claimed by the plaintiffs
that under this insurance and the averment
in the declaration, they can recover for that
part of the cargo belonging to the Lymans.
The insurance is for their own account, and
there was no intention to cover the interest of
any other person. The declaration, moreover,
expressly avers that the insurance was really
and truly made for the proper account, use
and benefit of the plaintiffs themselves. The
result is, that the plaintiffs are entitled to re-
cover the value of the two thirds of five hun-
dred salms of salt, laden on board the Atlantic
at Cagliari, and for no other part of the cargo.
The other suit between the same parties is
upon the policy on the ship, which is a valued
one, that on the cargo being open. The insur-
ance is upon the whole ship — the plaintiffs,
probably, supposing at the time, they had an
insurable interest in the whole. Like the cargo
policy, the insurance is solely of their own
account ; and the declaration avers the interest
to be in them solely. The ship is valued at
$16,000, and it is "admitted that the real value
of the whole vessel, at the. time of the insur-
ance, was not more than $16,000."
It appearing upon the trial that the plaint-
iffs owned only a moiety of the ship (ana there
is not a shadow of proof of any greater in-
terest of any kind), it was objected that they
were not entitled, under the pleadings, to re-
cover for any part. This objection has already
been considered and answered in deciding on
the policy on the cargo. There is no doubt
that the plaintiffs mav recover accordingto the
interest proved ; and the only remaining ques-
tion is, whether they shall recover the value
mentioned in the policy, or half that sum
only.
I have not found any case where this very
point has been determined, and it must, there-
fore, rest upon general principles. The
ground of decision in the cases that have been
referred to in the argument on the case on the
cargo policy, is, that although the insurance be
general upon a ship or cargo, and *the[*313
declaration avers a general interest in the
plaintiffs, yet the recovery shall be according
to the interest and loss proved upon the trial.
The contract of insurance is purely a contract
of indemnity, and it is equally so* whether it
be an open or valued policy. Hence, it fol-
lows that the plaintiffs ought not to recover
more than half the sum at which the whole
ship is valued : for as they owned but one
half they ought not to recover more than they
163
313
SUPREME COURT, STATE OF NEW YORK.
1814
have lost. In an open policy, in cases of this
kind, the amount of the recovery is deter-
mined and ascertained by recurring to the
prime cost in the usual manner. When the
policy is a valued one, and the assured on the
trial shows an interest only in a part of the
subject insured, as, for example, an eighth, a
fourth or a half, he will recover an eighth, a
fourth or a half of the valuation in the policy,
and a greater or smaller proportion of such val-
uation according to the quantum of interest
proved. It is supposed that in the case of Post
et al. v. Tlie Phoenix Ins. Co., 10 Johns., 79,
a different rule was adopted ; but on an ex-
amination of that case it will, I think, be found
fully to support the principle which I have at-
tempted to establish. There one fourth only
of the ship was insured, and the court held
that the valuation applied to the interest
insured (namely, one fourth part), and not to
the whole of the ship. If it had appeared in
this case that the valuation had been applied
to such part of the vessel only as the plaintiffs
owned, being a moiety, another question would
have been presented which it is not necessary
here to examine. But there cannot be a doubt
that the valuation applied to the whole ship,
and for the same reason that the recovery in
the case last mentioned was for the whole value
in the policy, it can, in this case, be only for a
moiety. The case of Rising v. Burnett, before
cited for another purpose, seems also to bear
upon this point. It was this: the plaintiff was
one of four part owners of a ship, and each
insured the freight without mentioning that it
was only a share of the freight that he was in-
terested in ; it was objected on the part of the
defendant that the plaintiff should have al-
leged his interest according to the truth, and
not in that general form ; that the register of
the ship, which was produced, was conclusive
evidence as to the persons who were owners,
and of their respective shares, and the register
showed that the plaintiff was only owner of the
314*] fourth part. Mr. Justice Buller, *who
tried the cause, held, that this being an open
policy, the plaintiff might recover according
to his interest ; and he had a verdict accord-
ingly. Marshall, in a note to this case, ob-
serves that if it had been a valued policy it
would have made no difference, for the in-
surer may dispute the amount of the interest
of the insured, if it be overvalued, as well in
an action upon a valued policy as upon an
open one. The reason he gives why there
would not have been a difference when applied
to a case of an overvaluation, is, undoubtedly,
a sound one ; but, in a case like the present,
where the insurance and the valuation (which
is a fair one) are upon the whole ship, this
reason would not hold, because here is no over-
valuation. And the true reason why there can
be no difference between an open policy and a
valued one in cases circumstanced like the
present will, I think, be found in the remarks
which have already been made.
As the defendants, however, have received
the premium upon the whole amount of the
sum mentioned in the policy, it follows there
must be a return of one half, which, in the
adjustment hereafter to be made, according to
the stipulation in the case, must be allowed
the plaintiffs.
Judgment for the plaintiffs accordingly.
Cited in— 1 Wend., 576; 8 Wend., 1ST; 12 Wend., 513;
7 How. Pr., 347 ; 132 Mass., 588.
*DUNHAM AND BOOL [*315
v.
THE COMMERCIAL INSURANCE COM-
PANY OF NEW YORK.
Marine Insurance — General Average — After
Cargo is Delivered and Freight Earned, Wages
and Provisions not General Average Losses,
nor Chargeable to Insurance of the Vessel.
A ship was insured " at and from New York to
Liverpool, and at and from thence back to New
York." On her outward voyage she sustained so
much damage by tempests, &c., that on her arrival
at L.. she was obliged to go into dock to be repaired,
which detained her from the 1st of December, 1810,
to the 24th of March, 1811. The cargo having been
delivered, and freight earned before the 1st of De-
cember, it wns held that the wages of the master
and crew and provisions on board were not general
average, nor were the underwriters on the ship
liable for them.
In estimating the amount of loss in case of re-
pairs, the insured are entitled to a deduction of one
third new for old, without any distinction as to the
age of the vessel, or whether she was new and on
her first voyage or not.
Citation— 1 Cai., 573; 2 Cal., 263; 1 T. R., 132.
THIS was an action on a policy of insurance
on the ship Orbit, valued at $25,000, sub-
scribed by the defendants for $12,500, "at
and from New York to Liverpool, and at and
from thence back to a port of discharge in the
United States." The cause was tried at the
New York sittings, in June, 1813, before Mr.
Justice Van Ness, when a verdict was taken
for the plaintiffs, by consent, for $4,000, sub-
ject to the opinion of the court on the follow-
ing case :
The Orbit sailed from New York for Liver-
pool the 23d of September, 1810, and during
her voyage met with very severe gales of wind
and heavy seas, which occasioned considerable
damage ; and on the 31st of October she ex-
perienced a violent storm, which she attempted
to ride out at anchor, but it became necessary
to cut her cables and run her ashore in Hoy-
lake ; she was afterwards lightened and got up
to Liverpool on the 7th of November. On the
12th of the same month, she began to dis-
charge her cargo; and on the 25th of Novem-
ber, completed its discharge, excepting 380
barrels of turpentine, which, with the leave of
the owners, was retained on board as ballast,
until the vessel should go into dry dork ; but
all the turpentine was landed by the 1st of
NOTE.— General Average Losses.
A loss to go into general average, must be volun-
tary, Intended to save remaining property, and
successful in doing so. This rule excludes all losses
occurring after the determination of the voyage.
Bradhurst v. Columbian Ins. Co., 9 Johns., 9, note ;
Penny v. New York Ins. Co., 3 Cai., 155, note;
Wightman v. Mac Adam, 2 Brev., 230.
Wages and provisions, while the vessel is kept from
her course by necessity, or goi ng to a port for repairs,
may be general average losses. Walden v. Le Roy,
2 Cai., 263, note ; Henshaw v. Marine Ins. Co., 2 Cai.,
274, note.
Also, where vessel is captured during detention.
Leavenworth v. Delafleld, 1 Cai., 573. But see Pen-
ny v. New York Ins. Co., 3 Cai,, 155
JOHNS. REP., 11.
1814
DUNHAM v. COMMERCIAL INS. Co.
315
December, having been sold and demanded by
the owners. The only places for repairing
vessels at Liverpool are in dry docks, and it'
they are previously occupied, vessels wanting
repairs must wait until there is a vacancy, and
the regular turn of the ship arrives. When
the Orbit arrived at Liverpool, on the 7th of
November, all the dry docks were occupied by
other vessels, and there was no opportunity to
go into dock to be repaired until the 20th of
February. 1811, when she was put in dock,
and her "repairs completed by the 24th March
following. The Orbit was a new ship when
she left New York, the voyage insured being
her first voyage, and never having before
earned freight.
The ship was coppered while in dock, which
took up about three days, but she was not de-
tained in dock on that account, as, by reason
of the tides, she could not have got out sooner
3 1O*] *than she did. While she was in Liver-
pool, and repairing, her crew were employed
on board of her, in repairing the rigging, and
in pumping her, to keep her free of water,
whenever required by the dock master, which
was very frequently.
The crew did not eat on board while the
ship was repairing, it being contrary to the
law at Liverpool to have a fire on board of any
vessel in port. By an agreement between the
muster and owners, he was to be allowed one
dollar per day. in addition to his wages, while
in a foreign port. It appeared to be the in-
variable practice in New York, in adjusting
losses arising from repairs, to deduct one third
new for old, without reference to the circum-
stance of the vessel being new, or the voyage
in which the loss happened being her first
vovage.
The plaintiffs read in evidence the deposi-
tions of several insurance brokers in Liverpool,
who stated it to be the established law and
usage in England, in making up the amount
of a partial loss on vessels, in cases of repairs,
to deduct one third new for old ; except in
cases where the vessel is new and the vessel
is on her first voyage, at the time the injury is
received, in which case no such deduction was
made ; and that a vessel is not considered as
having completed her voyage before she enters
the docks at Liverpool ; and that it was not
the custom of merchants in Liverpool to charge
to the underwriters the wages and provisions
of the master and crew, while the ship is wait-
ing to go into dock to repair, or during the
time she is repairing.
The plaintiffs also exhibited in evidence the
accounts of expenses and disbursements from
the time the accident happened until the vessel
left Liverpool, on her return home ; and also
an account of the wages of the master and
crew from the 24th of November, 1810, when
the cargo was discharged, to the 24th of March,
1811, when the repairs were completed, and
she came out of dock.
The counsel for the defendants admitted the
correctness of the items in the accounts, as
claimed, except the following, which he ob-
jected to, as not properly chargeable to the
defendants, viz. :
1. Board of master and crew from
December I, 1810, to the 24th
March, 1811, - - $451 22
JOHNS. REP.. 11.
2. Wages of master, mates, and crew,
for the same time. - $444 25
8. Compensation of one dollar per day
allowed the master, 57 00
*4. And they claimed a deduction of [*3 1 7
$776.68, being one third new for old, on the
amount of repairs.
Mr. Golden, for the plaintiffs. 1. The wages
and provisions of the master and crew are
general average where a vessel, from neces-
sitv, puts into an intermediate port for repairs.
(Walden v. Le Roy, 2 Caines, 268.) I can
see no reason why the insurers should not be
equally liable where the vessel happens to be
in the port of delivery, as long as she is cov-
ered by the policy. There can be no general
average in this case, because the expense did
not contribute to the safety of the cargo or
freight, the cargo having been delivered and
the frieght earned. It must, therefore, be a
particular average or partial loss on the ship.
It is true Lord Mansfield, in Fletcher v. Poole,
Park on Ins. . 70, said that wages and provis-
ions expended while a ship was detained for
repairs, could never be allowed as a charge
against the insurer on the ship ; but in Late-
ward v. Curling, Park, 174, His Lordship
qualifies his general expression, and says there
may be cases where exceptions to the general
rule are allowable, as where the expense is ab-
solutely necessary, and such as could not be
avoided, owing to some of the perils stated in
the policy. This doctrine is laid down by
Beawes (Lex Merc., 150), and was recognized
by Buller, J., in Deeosta v. Newnham, 2 Term,
407, in which the whole court were of opin-
ion that wages and provisions of workmen,
hired for such repairs, were general average.
2. The allowance of one third new for old
has been permitted as a general rule, so that the
insured may recover his indemnity, and no
more ; but where the vessel is perfectly new,
and on her first voyage, to apply the rule would
be manifestly unjust, for the insured would
not be indemnified. The established usage in
England, on this subject, is equitable and fair,
and ought to be adopted here.
Mr. WeU»,contr&. 1. We admit the usage in
England to be as proved ; but we answer that
a different usage has been established here.
No such distinction is made as to the vessel
being new, and on her first voyage. Why is
usage resorted to ? Because the usage of the
place where the contract is made is supposed
to have entered into the consideration of the
parties at the time. Why resort to the usage
of a foreign country, when *we have a f*318
usage here, where the contract was made, and
where it is to be carried into effect ?
Suppose the vessel had gone into a foreign
port where no such allowance at all was made
in any case, would that be permitted to govern
here instead of our own usage ? [Here he was
stopped by the court, on this point.]
2. It has been well settled in England, that
on a policy of the ship, wages and provisions,
during an embargo or detention, are not
chargeable against the underwriters. (Robert-
son v. Eieer, 1 Term, 127.) Though they
are a consequence of the peril insured against,
they are not the direct and necessary conse-
quence, but are incidental. Adverse winds,
storms and tempests are perils insured against
165
318
SUPREME COURT, STATE OP NEW YORK.
1814
in the policy ; but though the ship may be de-
tained, or her voyage retarded by such perils,
yet the insurers are not answerable for the
additional expenses of wages and provisions
for the crew. The court looks at the subject
of the insurance, which is the ship, not the
wages and provisions. The insurance is on the
body of the ship, tackle and furniture, not on
the voyage or crew.1 The same doctrine is
laid down by Lord Mansfield, in Fletcher v.
Poole, Park, 70, and Eden v. Poole. Park, 71.
In Lateward v. Curling Lord Mansfield clearly
alludes to the case of general average, as that
in which the exception he states is applicable.
Park so understands him, and the passage he
cites from Beawes, to support Lord Mansfield's
doctrine, confirms that idea. In Decosta v.
Newnham Buller, J., alludes to the case of
Lateward v. Curling, and the observation of
Lord Mansfield, as referring to the case of
general average. The doctrine of Beawes,
however, seems to have been explicitly adopt-
ed by the English courts. Marshall (Marsh,
on Ins., 538, 540) disapproves of it, as contrary
to the opinions of the most respectable writers
on the subject ; and it may be, when the ques-
tion shall again come fully before the courts
in England, that the doctrine, even as to gen-
eral average, will not be established as law.
But.in the present case, the plaintiffs attempt
to go a step further, and to make wages and
provisions, in a case of detention for repairs, a
particular average, or special loss on the ship.
Similar attempts have been made in England,
but always without success. "It shall never
be permitted to an owner of a ship," says Park,
"who insures the ship merely, to demand sat-
319*] isf action *for the loss of merchandise
laden therein, or to ask from the insurers ex-
traordinary wages paid to the seamen, or the
value of provisions consumed, by reason of the
detention of the ship at any port longer than
was expected. " ' ' Such attempts have, indeed,
been made, but they have always been resisted;
for to admit of such demands would introduce
an infinite variety of frauds, and be repugnant
to the most settled maxims of insurance law,
and to the constant practice and usage of trade.'
It is true that this court, in Leavenworth v.
Delafleld, 1 Caines, 573, and Walden v. Le
Roy, 2 Caines, 262, have adopted the doc-
trine from Beawes,2 making wages and pro-
visions, at a port of necessity, general aver-
age, but that is the utmost length to which
the court have gone. The detention here is
not at a port of necessity, but in the port of
destination or delivery. If commercial usage
is resorted to, it is directly against the allow-
ance of such a claim in England.
In Watson v. The Marine Ins. Co. , 7 Johns. ,
58, an allowance per diem to the captain,
by agreement, while in port, beyond his wages,
was not permitted to be brought into the ac-
count of general average.
Mr. Emmet, in reply, said the usage in En-
gland, not to deduct one third new for old,
when the ship was new, and on her first voy-
1.— But see Brough y. Whitmore, 4 Term, 205;
Park, 73, 74, 77.
2.— See, also, Barker v. The Phoenix Ins. Co., 8
Johns., 307: Sharp Gladstone, 7 East, 24; Emerig..
torn. 1 p. 624, 625, 631; Newnham v. Cazalet, Park, 566
note ; Abbott on Ships, 335, 336. part 3, ch. 5, sees. 8,
9. 10 ; Ricard, Negoce d' Amsterdam, p. 279, 280.
166
age, was fully proved. Wesket (Wesket on
Ins., Repairs, 456) speaks of the usage as if it
was established. "One third," he says, "is
deducted from the repairs of a ship, if she has
met with any accident, only in her second
voyage, when it is a great deal too much ; and,
therefore, it must be adhered to at other times,
when it is too little." There can be no doubt
of the usage in England. Ought, then, a local
usage in this State, introduced we know not
how, and never adjudicated upon by any
court, prevail against the established commer-
cial usage of England, whose laws we have
adopted? Especially when that usage is
founded on principles of acknowledged equity
and justice. If the usage set up here was
sanctioned by superior equity, it might justify
a departure from the English rule ; but it is
obviously inequitable. Indeed, *in the [*32O
case of a new vessel, it would be more just to
add one third than to deduct it. Wesket con-
siders the deduction of one third, even in the
second voyage, as a great deal too much.
3. Liverpool was not the final port of de-
livery. The insurance was at and from New
York to Liverpool, and at and from Liverpool
back to New York. The port of destination
or delivery is New York, where the voyage
was to end. Liverpool was an intermediate
port, and in consequence of the perils insured
against, the repairs were absolutely necessary
to enable the ship to prosecute the voyage in-
sured to its termination. Accident made Liv-
erpool a port of necessity, for the ship was
necessarily detained there, in her iter or voy-
age. While the cargo was unlading, it was a
port of delivery, but in the intermediate time
it was a port of necessity. Had there been
other subjects to contribute, it would have
been a clear case of general average ; but as
there was no cargo, and the freight was earned,
the whole expense of repairs must necessarily
fall on the ship. It is not a particular aver-
age or loss on the ship, but a general average,
which, by peculiar circumstances, is necessa-
rily to be paid wholly by the ship, as the only
existing subject which can contribute. But
even as a particular average, the expenses
ought to be borne by the ship ; the repairs
were for her benefit and essentially necessary.
Again, these charges are not properly wages
and provisions for seamen, doing duty as sea-
men, but of seamen doing duty as workmen
and laborers.
In Brough v. Whitmore, 4 Term, 206, pro-
visions were deemed part of the ship's furni-
ture ; and Marshall (Marsh, on Ins., 725, and
note) criticises the cases of Robertson v. Ewer,
Fletcher v. Poole, and Eden v. Poole, to show
that they were not reconciliable with that
case.
THOMPSON, Ch. J., delivered the opinion of
the court;
This was an insurance upon the ship Orbit,
at and from New York to Liverpool, and at
and from thence to a port of discharge in the
United States. On the outward voyage the
ship sustained considerable injury, so that,
after having arrived and discharged her cargo
at Liverpool, she was obliged to go into dock
to repair, and was detained for that purpose
from the 1st December, 1810, to the 24th of
JOHNS. REP., 11.
1814
STRONG v. NEW YORK FIREMEN INS. Co.
320
March, 1811 ; and the questions which arise in
the case are, whether the underwriters are
chargeable with the wages and provisions of the
3Ui*J master and crew, during this *lime.
and, also, whether the underwriters are entitled
to a deduction of one third new for old on the
repairs of the ship, this being her first voyage.
In the case of Learsenworih v. Dclafitid,
1 Caines, 578, wages and provisions, dur-
ing the detention of a vessel captured and car-
ried in for adjudication, were considered
proper expenses to be brought into the general
average ; and in the case ol Walden v. Le Roy.
2 Caines, 268, the principle was extended
to expenses incurred for wages and provis-
ions during the detention of the vessel for
repairs. But in these cases the expenses were
incurred before the vessel had arrived at her
port of discharge, and were neceseary for the
prosecution of the voyage ; they were, there-
fore, incurred as well For the benefit of the
•cargo and freight, as for the vessel ; and ex-
penses only of this description can properly be
Drought into a general average. Each subject
is bound to contribute, because it derives a
benefit from the expenditure. A loss which
•does not conduce to the preservation of ship
nnd cargo, is not a proper ground for an aver-
age contribution, according to the rule as laid
•down by Marshall, 560, 562. and which is rec-
ognized and sanctioned by all the cases on the
subject. According to this rule, it is clear that
the expenses for wages and provisions, during
the time the ship was detained at Liverpool,
cannot be brought into general average. They
were not incurred for the benefit of cargo or
freight. The cargo had arrived at its port of
discharge, and hau been delivered and freight
earned, before the expenses in question were
incurred ; and if these expenses cannot be
brought into general average, I do not see
how the underwriters on the ship are to be made
liable for them. No case was cited on the ar-
gument, nor is there any, I believe, to be
found in the books to warrant such a charge,
The insurance is upon the ship, tackle and fur-
niture : and the wages and provisions of the
•crew are no part of the thing insured. The
•court only look to the thing itself, which is the
.subject of insurance. (I Term, 132.)
The underwriters are entitled to a deduction
•of one third new for old. We have never rec-
ognized any rule making a distinction as to
tin- age of the vessel ; and admitting such a
•custom to exist at Liverpool, it cannot be pre-
•°Jli— * j sumed to have *been in the contempla-
tion of the parties when they entered into this
•contract, for it could not have been known
that any repairs would be necessary. The
proof of a custom is admissible for the purpose
of explaining the probable intention of the
parties, and it is more reasonable to suppose
the parties had in view our own rule on this
subject, than that of any other place. The
rule ought to be general and uniform. Tin-
repairs might have been in a port where a dif-
ferent custom prevailed. If. therefore, we
were to be governed by the custom of a for-
eign port where the repairs are made, the rule
might be continually fluctuating. It is in this,
AS in many other cases, of more importance to
have a settled rule on the subject, than what
the rule itself may be.
JOHNS. HKP.. 11.
The account, therefore, between the parties
must be settled on the principles here laid
down ; rejecting the claim for wages and pro-
visions at Liverpool, between the 1st of De-
cember, 1810, and the 24th of March follow-
ing, and allowing to the underwriters a deduc-
tion of one third new for old on the repairs.
Judgment for the plaintiff » accordingly.
Cited in— 4 Wend., 55; 8 Bo«., 59; 5 Duer, 315; 33
Mo., 161.
•STRONG AND HAVENS [*323
THE NEW YORK FIREMEN
ANCE COMPANY.
INSUR-
Marine Insurance — General Average — Foreign
Settlement of— Recovery of Amount Paid
Under, by Insured.
Where a general average is fairly settled in a
foreign port, and the insured is obliged to pay his
proportion of it there, he may recover the amount
so paid by him from the insurer, though such gen-
eral average may have been settled differently
abroad, from what it would have been in the home
port.
Citations-3 Johns. Cas., 178; ICai., 573: 1 Johns..
249 ; 8 Johns., 337 ; Malyn's Lex. Merc.. 113 ; Mar-
shall, 544 : Abb. Ship., 296. 292 ; 2 Mag., 59, HO, 69.
173; Molloy, ch. «. sec. 15; Mar. Ord. Fr., tit. 8,
sees. 6, 21 ; Laws of Oler., Art. 8 ; Laws of Wis-
bury, Art. 22; Appendix to Pet Ad. Disc.; Ord of
Antwerp, 2 Magens, 16; Ord. 9 Amsterdam, lb.,
141. sec. 35; Ord. of Konigsberg, lh., 207. 208, sec.
37, 38, Ord. of Bilboa, 405, sec. 35 ; Abbott. 293.
THIS was an action on a policy of insurance
on the cargo of the ship Masxasoit, Whit-
ten master, on a voyage from Philadelphia to
Lisbon, on rice, flour and peas.
The defendants gave a reltcta. &c. , for $3,409,
subject to the opinion of the court on the fol-
lowing case: The policy, bearing date the 29th
of October, 1812. was for $30,000, which fully
covered the property insured, at a premium
of 44 per cent. The cargo consisted of 265
tierces of rice, 1,689 barrels of superfine flour.
500 barrels of rye flour, and 54 bags of peas.
The invoice price of the cargo at Philadelphia,
where it was purchased and shipped, was
$28.935.35.
The vessel arrived in safety at Lisbon, where
she was moored. Soon after, and while the
principal part of the cargo was on board, a
violent storm arose, on the 19th of December,
1812. and for the preservation of the cargo, as
well as the vessel, it became necessary to cut
away most of her rigging and spars, which
damages were made the subject of general
average at Lisbon.
At the time of the disaster there had been
safely delivered 377 barrels of superfine flour,
and 385 barrels of rye flour, and the general
average was stated on the residue of the cargo
remaining on board at the time of the disaster,
on 17 barrels of Indian meal, the private ad-
venture of the captain, also on board, and upon
the vessel and one half of the freight, deduct-
NOTE.— Marine tmwrance— Foreign Adjustment.
Afnrtiqn adjustment (H generally hlmling on the
nartle*. Bee imtr Lenox v. UniU-d Ins. Co., 3 Johns.
Cas.. 178. Some conflict ot authority is there indi-
cated.
167
323
SUPREME COURT, STATE OP NEW YORK.
1814
ing the freight of that part of the cargo which
had been delivered before the accident hap-
pened.
It was admitted that the adjustment of the
general average at Lisbon was made fairly and
bona fide ; and that, as between the mediate
parties thereto, it was correct.
After the accident happened the captain re-
fused to deliver to the supercargo the residue
of the cargo remaining on board, until satis-
factory security was given for the due pay-
ment of the proportion of the general average
to be assessed on that part of the cargo at
Lisbon. Security was accordingly given, and
324*] as *soon as the average was adjusted
and ascertained, the supercargo paid over to
the captain the sum assessed as the proportion
to be contributed to the general average, by
the cargo on board.
The total value of the cargo on board,
brought into the average at Lisbon, was esti-
mated at $32,875. The invoice price of the
same was $22,313.49. The value of the vessel
was ascertained by a survey of her at Lisbon,
after the damages occasioned by the accident
had been repaired, deducting one third new
for old; and was taken, accordingly, at $8,750.
The half of the freight was estimated $2,500.
the total amount of freight on the whole
cargo being $6,981.33. The rate of contribu-
tion, thus settled at Lisbon, was $10.436 per
cent.
[If the cargo had been valued at the invoice
price, and the vessel and freight as at Lisbon,
the rate of contribution would have been
$13.0528 per cent.
If the general average had been adjusted
here, taking the contributory values, accord-
ing to the rule of this court laid down in
Leavenworth v. Delafield, 1 Caines, 573, that
is, the invoice price of the cargo, 4-5ths of
the vessel and half of the freight, the rate of
contribution would have been $14.0271 per
cent.]
The point in controversy was, whether the
defendants were liable to pay the whole
amount of the proportion .of general average,
assessed on the cargo, according to the adjust-
ment at Lisbon, or only according to the rule
adopted in New York. The defendants in-
sisted that they were not bound by the adjust-
ment at Lisbon ; and were liable only for the
proportion of general average to be settled
according to the rule adopted here.
It was agreed that if the court should decide
that the plaintiffs were entitled to recover the
whole amount of the proportion of general
average, as adjusted and paid at Lisbon, then
judgment was to be entered for the damages,
as in the relicta, &c. ; otherwise, the amount
was to be reduced to such sum as the court
should decide to be due to the plaintiffs ; and
either party was to be at liberty to turn the
case into a special verdict.
Mr. G. W. Strong, for the plaintiffs. 1.
The assured must, at all events, be liable for
the proportion of general average assessed
325*] *on the cargo, valuing it at the invoice
price according to the case of Leavenworth v.
Delafield.
By this valuation, the rate per cent, of loss
must correspond with the difference between
the valuations ; for when a given sum is to be
168
raised, by a contribution at a rate per cent, as
the principal is diminished, the percentage
must be increased.
Confining the assessment to the cargo alone,
it makes no difference which valuation is
adopted.
It will be objected that there is a difference
where different subjects are brought into the
estimate, because the same rate per cent, is to
be applied to all the subjects. But this objec-
tion proceeds on the supposition that a part of
the assessment on the cargo ought to have been
laid on the vessel and freight. Had the sacri-
fice been of the cargo, and not of the vessel,
the plaintiffs, in the first instance, could call
on the defendants to pay the whole loss.
(Macjgrath v. Church, 1 Caines, 196 ; Watson
v. Mar. Ins. Co., 7 Johns., 57.) And there is-
no difference, in this case, in principle,
whether the loss happened to the cargo-
or vessel, for the cargo, by the lien, was
equally implicated in the loss ; and this
loss comes directly within the clause in the
policy authorizing the insured to sue labor.
&c.
Again, it may be argued, that the rate per
cent, of contribution, adjusted in Lisbon, is
right, and the liability of the defendants is to-
be measured by that rate per cent, applied to
the invoice price of the cargo. But as the rate
per cent, must vary according to the amount
of the valuation, it is preposterous to contend
that the former is right and the latter wrong.
2. A general average, fairly adjusted and
compulsorily paid, abroad, is binding on the
insurers here, though it be not adjusted in
exact conformity to the rules established here,
where the contract of insurance was made.
The insurers are bound to indemnify the in
sured for all losses necessarily arising from the
perils insured against by the policy. On this
principle, the court, in Mumford v. The Com-
mercial Ins. Co., 5 Johns., 263, decided that
the insurer was liable to pay an additional
or increased freight, it being an expense
necessarily incurred in consequence of the
capture; and Kent, Ch. J., in delivering the
opinion of the court, adopts the observation of
Pothier, Trait, d' Ass., n. 52, as a just princi-
ple, that "although the loss which contribu-
tion causes to the assured, be a loss which he
does not suffer in the goods insured, yet, as
he suffers it in relation to those goods, and in
consequence of the perils of the sea. the
*insurer ought to bear the loss and [*32t>
indemnify the insured." Should it be said
that the invoice price gives that indemnity, we
answer, in the words of Chief Justice Kent, in
the case of Grade v. The ^New York Ins. Co.,
8 Johns., 237, 248. "Nor is the assured in
this case to be limited to the prime cost of
the subject. That only is resorted to when it
becomes necessary to ascertain the value of the
subject insured, or, what is the same thing,
the amount of the loss. It is a rule of com-
putation which ceases when the parties have
fixed the value, or it can be ascertained (as ii>
this case) by another and more obvious rule,
viz : the sum actually paid. The latter is, in
this case, the just and certain test of the
amwunt of the loss, &c. I do not known of
any decision or principle which forbids us to
resort to it."
JOHNS. REP.. 1U
1814
STRONO v. NEW YORK FIREMEN INS. Co.
826
Again ; suppose the goods had arrived at a
falling market, and where they would not sell
for the invoice price. The insurer, in that case,
would not be liable to pay the invoice price.
The rule, to be just, must be mutual.. The
sacrifice, which gives rise to a contribution,
inures principally to the benefit of the insurer.
In Wulpole v. Ewer, Park on Ins., 565, Lord
Kenyon said that the insurers in England
were liable to pay the amount of contribution
settled and paid in Denmark, according to the
law of that country, which was different from
the law of England. And in Newman v.
Cazalet, Park, 566, >wte, where the insured had
been compelled to pay a proportion of general
average, settled at Leghorn, according to the
sentence of the Commercial Court of Pisa, and
which was more than he would have been
obliged to pay, by the law of England, had the
general average been adjusted there, it was
held that the insured were entitled to recover
the amount so paid by them, of the insurer,
It is true that in that case there was proof that
such foreign settlements of averages had been
frequently paid by insurers in England ;
and Judqe Buller, before whom the cause was
tried, seems to place his decision upon the
proof of an established usage ; yet both Park
and Marshall, Marshall on Ins., 762, 763,
notes ; Beawe's Lex. Merc. 849, cite the cases
of Walpole v. Ewer, and Newman v<i CazaUt,
with approbation.
I am aware of the case of Lenox v. Tlie
United Insurance Co., 8 Johns. Cas.. 178. The
insurance in that case was on the cargo on deck
which was thrown overboard, and was put into
general average at Lisbon. The point raised
here was not discussed in that case. There
the payment of the contribution was voluntary.
Ji27*]*Here it was compulsory. The decision
in that case, also, turned on the ground of the
lex loci contractus, which is said to be where
the contract of insurance is made. But must
not the parties have in view, also, the laws of
the different places mentioned in the policy as
the iter of the voyage, and of all other places
into which the vessel may be forced to enter,
by necessity, from the perils insured against ?
In Scftmidl v. T/ie United Ins. Co. . 1 Johns. ,
249, the jury, under the direction of the
judge, found a verdict for the plaintiff for a
total loss, and also for the amount of a general
average, settled and paid at Embden ; and
though the majority of the court rejected the
item of general average, it was on the ground
that the Insured could not recover for a total
loss and a general average at the same time ;
the sum paid for the general average not com-
ing within the special clause, authorizing the
insured to sue for, labor, &c.
Again, try the rule by that adopted in the
adjustment of partial loss. * There the rule is
to take the difference between the sound and
damaged articles at the port of deliverv.
(Leiri* & liucker, 2 Burr.. 1167 ; Johnst. "A
Sheddon, 2 East. 581; Iftirry v. R. E. Ass. Co.,
8 Boss. & Pull., 808; iMirreiice v. N. Y. In*.
Co., 8 Johns. Cases, 217.)
8. A practice formerly prevailed in England
as to the mode of contribution in case of gen-
eral average, to take the invoice or prime cost,
if the loss happened before half the voyage
was performed; but if it happened afterwards
.1 1 ii INS. REP., 11.
then to value the goods at the clear price which
they would have fetched at the place of des-
tination. But Abbott says : " The last valu-
ation is now adopted in all cases where the
average is adjusted after the ship's arrival at
the place of destination, and appears best to
agree with the nature of the subject." (Abbott
on Ships, 847, Part 8, ch. 8, sec. 15; Park.,
177 ; 2 Magens, 100. 285, 389 ; Molloy, B, 2,
ch. 6, sec. 15; Malyne, P. 1, ch. 26, p.
118.)
So the ordinance of Wisbuv, Laws of Wis-
buy, art. 89, declares that the merchandise
thrown overboard shall be valued in the aver-
age, at the price the rest was sold for, freight
only being deducted. And the same rule is to
be found in the laws of Oleron. (Laws of
Oleron, art. 8.) In Leatenworth v. DelafieUl,
1 Caines, 578, 579, Livingston. J., observes
> that he cannot see much force in the reason
assigned by Abbott for his rule; that if all the
goods, those which arrive, as well as those
which have been cast into the sea, were to b«»
estimated at the foreign value, the result will
be nearly the same, provided there be an equal
advance in all, as if the first cost be resorted
to as the standard of worth." That was a case
of capture, and the adjustment was made in
New York.
In Bell v. The Columbian Ins. Co., 2 Johns.,
98, it was decided *that where a vessel [*328
becomes so much injured by the perils of
the sea, as to render it necessary to sell her
in a foreign port, the rule laid down in Learen-
icorth v. Delnjield does not apply ; but her real
value being ascertained by the sale, that should
be taken, in calculating the general average.
By the Commercial Code of France, Code de
Commerce, art. 402, in relation to general aver-
age, it is declared that " the price of goods is.
established by their value at the place of dis-
charge."
4. Park (Park on Ins., 178; Rocc-us de Asset.,
62; Marshall, 54(5; 1 Magens, 69) lays down the
principle from Roccus, that the insurers are
liable to pay the assured for all expenses aris-
ing from general average, in proportion to the
sums they have underwritten. " The opinion
of this learned civilian," says Park. " is
agreeable to the laws of all the trading powers
on the continent of Europe, as well as those of
England, where the insurer, by his contract,
engages to indemnify against all losses arising
from general average."
Me##ra. Well* and S. Jones, Jr., contra. We
do not question the principles laid down by
the authorities cited by the counsel for the
plaintiffs. It is the application of them to this
case that is denied. The only question is,
whether the insurers are to pay the whole
amount according to the value at Lisbon, or
according to the invoice price at Now York?
The rule contended for by the plaintiffs would
involve the insurer in the fluctuation of the
market, contrary to the very position laid
down in all the authorities, and admitted by
the plaintiff's counsel.
W e do not dispute the adjustment of the
general average made at Lisbon ; but we insist
that we are bound to pay only in proportion
to the sum we have insured: that is, the in-
voice price, and on which we have received a
premium. If the goods had all been thrown
SUPREME COURT, STATE OF NEW YORK.
1814
overboard, the plaintiffs could have received
the invoice price only: not what they would
have sold for, had the'y arrived at Lisbon. We
do not ask for a new adjustment of the aver-
age. We only say that the rate per cent, of
contribution must be on the invoice price of
the goods, or prime cost; not on the cost and
profits also. As between the parties at Lisbon,
the owners of the different subjects, the mar-
ket price or value there, was the fair mode
of estimation. But as between the insurer and
insured, we contend that the rule is different.
On what just principle can the insurers be
329*] *calledon to pay not only a proportion
of the general average, on the cost of the
goods, which they have insured, but on the
profits also, which they have not insured? The
profits might have been separately insured by
other underwriters; and where the insurance
is profits, you may recover an average, as well
as a total loss. (Hodgson v. Glover, 6 East,
316.) The plaintiffs in this case must be con-
sidered as in the place of the insurers on the
profits, and must bear that proportion of loss.
The underwriters on the goods have received
no premium for an insurance of the profits.
This case does not come within the clause in
the policy, authorizing the insured to sue for,
labor, &c. Though the policy is valued, yet,
in case of a partial loss, it is opened, and the
invoice price, or prime cost, is resorted to as
the value; that is, when the article insured is
not specifically valued in the policy. By the
rule for which we contend, justice is done to
all parties. The insurers engage to indemni-
fy, in case of loss. Now, what is lost? The
invoice price or cost of the goods. If the in-
sured are paid the cost, they loose nothing.
The plaintiffs ask for more than an indemnity;
they seek to recover profits also. But if the
insurers, in case of a total loss, are not liable
for profits, unless insured, eo nomine, why
ought they to be liable for profits in case of a
partial loss?
The distinction for which we contend, as to
the rule between the owners of the different
subjects, and that between the owner of one
of those subjects and the insurers, is expressly
recognized by Abbott (Abbott 347), in the para-
graph referred to by the plaintiff's counsel.
He says: "As between the proprietor and
insurer of goods, the prime cost is the only
value, the contract of insurance in that case
being a contract of indemnity against loss, and
not a contract for the security of gain."
In the case of Clark v. The United Fire and
Marine Ins. Co. of Portland, 7 Mass., 365, in
the Supreme Court of the State of Massa-
chusetts, the precise question raised here was
discussed and decided according to the rule,
and upon the same distinction for which we
contend.
As to the observation, that the value of the
goods at the port of delivery might be less than
the invoice price, it may be" answered, that the
insurer must, nevertheless, pay according to
the invoice price, for that is the contract.
33O*] *Mr. T. A. Emmet, in reply. In Eu-
rope the rule as to value is the value at the
port of discharge. The rule laid down by this
court in the case of Leavenworth v. Delajield is
peculiar to this country. The counsel for the
defendants take part of the rule at Lisbon, and
170
part of the rule here. They ought to adopt
the entire rule in one place or the other. If
they acquiesce in the correctness of the valua-
tion of the ship and freight at Lisbon, they
ought not to object to the valuation of the car-
go there. The general average is paid in con-
sequence of a loss occasioned by the perils of
the sea, and the insurers undertake to indem-
nify the insured to the amount of the sum in-
sured, for all the insured are bound to pay in
consequence of the perils insured against. On
what other principle could this court, in Grade
v. Tlie New York Ins. Co., have decided that
the insurers were bound to indemnify the
plaintiff for the amount of the bond given on
the appeal from the decree of the Council of
Prizes, which he had been compelled to pay,
though the subject was carried to its place of
destination, and sold to a profit?
In the case of Clark v. Tlie United Marine
and Fire Ins. Co. , the value of the vessel at
Dublin, where the general average was ad-
justed, was greater than at Kennebunk, the
place of departure. If the different subjects
are increased in value in equal proportions,
the rate per cent, must be precisely the same.
The court in Massachusetts proceeded on a
supposition totally inadmissible, that profits
were included in the adjustment, as a distinct
subject. They took the English rule as to ad-
justing general average, not the rule of this
court, as laid down in Leatenworih v. Delafield;
and yet, in face of the English rule, acted
upon for more than 200 years, they decided
on this new principle as to profits. If this is
to be sanctioned, then the insured, in all cases
where there is a profit, must be bound to con-
tribute to the amount of the profits, even to
100 per cent.
Sewell, ./., who delivered the opinion of the
court in Massachusetts, says: "Cargoes are
shipped to foreign markets, in expectation of
an additional value, to accrue to them on their
arrival. When this reasonable expectation,
operating in the course of trade, is fulfilled,
the shipper has acquired a new property,
which may, in fact, and ought to be, distinct-
ly valued and estimated in a contribution cal-
culated at the port of discharge." But I ven-
ture to say. that since the introduction of the
law of insurance, not a dictum or a usage is to
be found to justify the *assertion that [*331
profits are to contribute to general average.
If profits .are to contribute as a distinct and sep-
arate interest, why not the commission of the
supercargo, or bottomry, or rexpondentia, all
of which are insurable interests? Yet, who
ever heard of those interests being brought to
contribute to general average? When Sewell.
/. , observes that the question before him had
not been settled by any judicial decision, the
answer is obvious. The rule, that the value
at the port of discharge was to be taken, had
been so clearly settled by usage, and acted upon
for 200 years, that no judicial decision was
necessary. If a judicial decision is required in
every question of mercantile usage, some of
the clearest and most established rules of com-
mercial law may be brought into question.
It never was heard of until the case in Massa-
chusetts, that the value of the subject at the
home port was to be taken in estimating an
average loss. This is a sufficient reason for
JOHNS REP.. 11.
1814
STRONG v. NEW YORK FIREMEN INB. Co.
831
disregarding that decision. In the settlement
of a general average, the underwriters must
always be involved in the fluctuations of the
market. It is an exception to the general rule,
an exception as clear and uniform as the gene-
ral rule itself. The meaning of that rule is,
^hat the insurer is not to be involved in the
speculations of the merchant, so as to make a
• partial loss where none would otherwise have
existed, or so as to turn a partial into a total
loss.
In the case of Lenox v. The United Int. Co. ,
the court says nothing as to the valuation of
the subjects at Lisbon, but only decides that
goods on deck, not embraced in the contract
of insurance, ought uot to be brought into
general average, so as to charge the insurer.
That case, however, went on an erroneous
principle; for where, in the route of a voyage.
a loss is occasioned by the perils insured
against, which is made a general average, and
settled, as it must be, in the foreign port (for
the master can compel the adjustment), the in-
sured has a right to call on the insurer to re-
imburse what he has thus been obliged to pay.
The whole adjustment in the foreign port must
be taken, or none. Another observation to be j
made on that case is, that there the average
was voluntarily settled and paid. Judge Se-
well, in the case in Massachusetts, seems to
reserve himself on the point where the payment
of the general average abroad has been com-
pulsorily paid; though he appears to be
332*] 'inclined to the opinion that the sum,
thus necessarily and unavoidably paid, might
be recovered from the underwiiter.
If the underwriter can get rid of the foreign
adjustment, he must abide by the law of his
own country; he cannot take half of the rule
abroad and half of the rule at home, as was
done in the case of Clark v. The United Marine
and Ftrt ln». Go.
[The counsel here produced to the court a
calculation to show the erroneous principles
on which the court in Massachusetts pro-
ceeded in the decision of that case. By this it
appeared that if the different subjects had been
valued at the prices at Kennebunk, the pro-
portion of general average on ship and cargo,
the subjects insured, would have been
$1,044.76; that the general average settled at
Dublin was $28.07 and 5 mills per cent., or
$961, whereas the court decided that the in-
surers were to pay only $575.]
VAN NESS, J., delivered the opinion of the
court :
The single question which arises in this
case, viz.: whether the assurers are bound to
refund the sum paid by the plaintiffs for gen-
eral average, according to the adjustment
made at Lisbon, does not appear to have been
settled by any decision of this court. One
thing, however, is certain, that the underwrit-
ers must be held liable, either for the amount
thus paid, or according to the rule laid down
by this court in a case that will be presently
noticed — the rule contended for, in behalf of
the defendants, being totally inadmissible.
The first time, I believe, the effect of a foreign
adjustment came before the court was in the
ONM of Ijenni v. The United ln». to., 8 Johns.
< ;IM-S, i;s Tin- i|iii'-tii>ii thru- u:i^, \vlicilit-r
JOHNS. REI*.. II.
the plaintiff should recover a partial loss only,
or the amount paid on the adjustment of a
general average at Lisbon; and it was decided
that he should recover a partial loss only, on
the ground that, according to our law, the
staves on the deck of the vessel, thrown over-
board in a storm, to lighten her, could not be
brought into a general average. What would
have been the effect of this adjustment if the
jettison had, according to the laws of this
country, formed a proper item in making it
up, is feft undetermined.
The next case is Learenvtorth v. Delafidd, 1
Caines, 578, in which the adjustment took
place at New York, the port of lading, upon
the return of the ship. The rule laid down
in *that case does not. therefore. [*333
apply here, nor is it at all intended, by any-
thing now about to be decided, to question or
impugn the authority of that decision. There
is another case in which this point was touched
by three of the judges, but nothing was
decided. I mean Schmidt v. TJie United In*.
Co., 1 Johns., 249. A general average had
been settled at Embden, which was disregard-
ed, one of the judges supposing that its must
already have been paid out of a fund belong-
ing to the underwriters ; by another, because
the charges and expenses brought into the
account, were not covered by the policy, and,
therefore, not recoverable against the assurers:
and the third did not assign his reasons. We
must, therefore, endeavor to ascertain wlmt
the rule is in that country from which we
have derived most of this branch of our law.
The usages and practice of England, before
the Revolution, as well in cases of this kind as
in others, are binding upon this court, as part
of the common law: and it is only where the
common law is silent that we are at liberty to
seek for other guides, or to establish a rule for
ourselves.
In the researches which I have made I have
not been able to find a single case where a dif-
ferent rule has been adopted, as between the
owners of the ship and cargo, and as between
the assurer and assured. The general average
once being made, and the amount of contribu-
tion between the owners of the ship, freight
and cargo ascertained, it appears, at least
nothing appears to the contrary, that the un-
derwriters have been held liable for such
amount. In Leaeenirorth v. Delnfeld, Mr.
Justice Livingston, who delivered the opinion
of the court, after stating what would be just
and proper, as between the owners, concludes
by observing : "The same course of adjust-
ment must be pursued between the under-
writers." Indeed, it seems to me that this
view of the subject would be conclusive to
show that a bona fide adjustment and payment
of a general average ought to be the measure
of damages, as between the merchant and in-
sured; otherwise an insurance would cease to
be what it has always been contemplated — a
contract of indemnity. In this case "it is
distinctly admitted that, as it respects the
owners of the cargo and the owners of the
vessel, the average was correctly stated and
rightfully paid in Lisbon." That this is a lass
for which the assurers are liable is not dis-
puted, and there is no 'principle more [*334
firmly established than that they are bound to
171
334
StTPKEME COURT, STATE OF NEW YORK.
1814
return the money which the assured has been
obliged to advance in consequence of any peril
within the policy, provided it be .fairly and
honestly paid, and does not exceed the amount
of the subscription. This was the doctrine of
this court, in the case of Grade v. The New
York Ins. Co., 8 Johns., 337, where the effect
and consequence of the cargo's arriving at
a losing or falling market, as it respected
the underwriters, is very fully discussed, and
need not here be repeated. Many of the prin-
ciples decided in that case apply with full
force to the view I am now taking of the ease
under consideration. The sum paid by the
plaintiff in that case was compulsory ; it, in
fact, amounted to a total loss ; but having
been paid to extricate the cargo from a situa-
tion in which it became placed by an act for
which the underwriters were answerable, they
were held bound to refund it. The payment
in the present case was also compulsory. It
was the master's duty, on his arrival at Lisbon,
to settle the contribution, and to detain the
cargo on board until it was paid : for the
owners of the ship have a lien on the goods on
board, not only for the freight, but also to
answer all averages and contributions that
may be due. (Malyn's Lex Merc., 113; Molloy,
ch 6, sees. 8, 15; Marshall, 544 ; Abbott on
Shipping, 296.) The master, in this case, pro-
cured the average to be adjusted, and refused
to deliver the cargo until the amount of the
contribution charged upon it was paid or se-
cured. What was the consignee to do in such
a case ? As between the owners, the sum de-
manded was just. The captain's right and
duty to detain the cargo till it should be paid,
was undisputed. The only proper course was
pursued, and the underwriters are bound by
their contract to make a complete indemnity.
I proceed to show that the settled usage and
practice in England, for upwards of a century,
has been in conformity with the principles* I
have stated. Adjudged cases, except' of mod-
ern date, are not to be met with ; the rea-
son of which, no doubt, is, because the law
and practice, in that country, have been gen-
erally considered as settled and established.
Marshall. 545, 546, says: " The mode of ascer-
taining the amount of each person's contribu-
tion is not very correctly defined in our laws ;
it is usually done upon the ship's arrival at
335*] the port of *discharge, by ascertaining
the net value of the ship, freight and cargo, as
if nothing had been lost ; these are to be valued
at the price they would fetch at the port of
discharge, and the net amount, after deduct-
ing all charges, is the sum which is subject to
the contribution." In case of jettison, it was
formerly the custom to value the goods at
prime cost, if the loss happened before half of
the voyage was performed ; but if after, then
at the price they would have borne at the port
of delivery. This distinction is now exploded,
and it has become the settled practice to esti-
mate the goods lost, as well as those saved, at
the price they would have fetched at the port
of discharge on the ship's arrival there, freight
being deducted. The opinion of Abbott,
always deserving very great respect, is to the
same effect. After alluding to the ancient
custom, just mentioned, he observes: "But
here the last valuation (that is, the price the
172
goods would have fetched at the port of des-
tination) is adopted in all cases where the
average is adjusted after the ship's arrival at
the place of destination, and appears best to
agree with the nature of the subjects." (Ab-
bott on Ships, 292.) It is supposed that he
confines the rule to the settlement of the con-
tribution between the owners ; and this is in-
ferred from the following passage: "For,«
although, as between the merchant and the
insurer, the prime cost is the only value, the
contract of insurance, being a contract of
indemnity against loss and not a contract
of security of gain ; yet in this case,
equity requires that the person, " &c.
Taking this in connection with what
precedes and follows it, the writer, I
think, means to be understood thus : As a
general rule between the merchant and the
insurer, that prime cast is the only value ; yet,
in case of a jettison, where the average is ad-
justed at the port of discharge, the practice i&
otherwise. The first he lays down as the gen-
eral rule, the last as the exception ; and so Mr. •
Justice Livingston understood this passage in
Leavenworth v. Delafield. It is true the ele-
mentary writers on this subject, in laying
down the English rule, speak of an average
arising from jettison ; but there certainly is no-
ground for a distinction, whether it arise from
that cause, or from a sacrifice of part of the
ship, or her apparel and tackle, for the com-
mon benefit and safety. Park fully agrees
with both these writers, and after giving the
opinion of Roccus on this subject, who ap
pears to hold the same doctrine, he observes :
"The opinion of this learned civilian is
*agreeable to the laws of all the trad- [*336
ing powers on the continent of Europe, as well
as those of England, where the insurer en-
gages to indemnify against all losses arising
from a general average." Here I cannot avoid
again adverting to what I have before noticed, as
affording the most satisfactory proof that the
law and practice in England are such as I
have supposed, namely: that it is the duty of
the master to cause an adjustment to be made
xipon his arrival at the port of destination, and
that he has a lien upon the cargo to enforce
the payment of the contribution. (See, also. 2
Mag., 59, 60, 69, 173 ; Molloy, ch. 6, sec. 15;
Mar. Ord. France, tit. 8, sees. 6, 21 ; Laws of
Oler. , art. 8 ; Laws of Wisbuy , art. 21 ; Ap-
pendix to 2 Pet. Ad. Disc., Ord. of Antwerp,
2 Magens, 16; Ord. of Amsterdam, lb., 141,
sec. 35 ; Ord. of Konigsberg, lb., 207, 208,
sees. 37, 38 ; Ord. of Bilboa, 405, sec. 35.)
In conformity to what I have said, the two
modern cases of Newman v. Cazelet, and Wai-
pole v. Ewer, seem to have been decided. The
former was a suit to recover from the under-
writer the amount of a general average adjusted
by the Commercial Court of Pisa, in which
several items were charged, which, according
to the English usage, would not have been al-
lowed. It was proved by several brokers that
in repeatedinstances they had adjusted averages
under similar sentences in the Court of Pisa,
and the underwriters, though with reluc-
tance, had always paid them. Buller, «/"., be-
fore whom the cause was tried, says "that on
the general law the plaintiffs would fail, -but,
in all matters of trade, usage is a sacred thing. I
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. STAAT*.
do not like the.se foreign settlements of average,
which make underwriters liable for more than
the standard of English law." The cause wag
left to the jury upon the point of usage, and
the plaintiff recovered. The usage here proved
I consider to be evidence that this was the
usage of all England, and part of the common
law of that country. Indeed I know of no
"standard of English law" contrary to it, un-
less the learned judge meant that when an ad-
justment of an average takes place, upon the
return of the ship to an English port, imme-
diately after a disaster, the prime cost is the
value, because the price at the port of destina-
tion is in such case unknown. (Abbott, 293.)
The other case was an action on a policy upon
a respondentia bond on ship and goods. The ship
was Danish, and an average loss was sustained
337*] upon the *goods, of £6 15*. per cent.,
and the plaintiff, as the holder of a respondentia
bond, was called on to contribute, and then
brought his action against the English under-
writers for the amount of that contribution.
Lord Kenyon held the underwriters liable,
notwithstanding that, by the laws of England,
a lender upon re»pomlentui is not liable to
average losses. (Park, 565. 566.) In both
these cases the amount paid by the assured
was the measure of damages against the un-
derwriters. Whether the English law and
usage are the best that can be devised, is not
the question. We must take the rule as we
find it, and leave any amelioration of which it
may admit to another department of the gov-
ernment. I cannot doubt, that at this day the
underwriters in England are uniformly held
responsible for the amount fairly paid under a
foreign adjustment of an average loss.
Judgment for the plaintiff*.
Cited ln-5 Cow., 67; 8 Bos.'. 70; 1 Hall, 446: 2
Sand., 59 ; 19 How. (U. 8.), 169 ; 1 Story, 471 ; 3 Sum..
«8; Olcott. 97.
JACKSON, ex dem. A. J. STAATS,
v.
I. AND A. STAATS.
Wills — Executory Devi»c in Real and Pertonal
Estate — "Children" Doe* Not Include "Grand-
children. "
A devised to his wife bis farm, orchards, &c.. dur-
ing her widowhood ; to four of his sons, 400 acres of
land, Ac. ; to his five* daughters, «o acres of wood-
land, each ; to S. and J., two of his sons, and their
heire. after the death or marriage of his wife, his
dwelling-house, orchards, &c., and all his lands, ex-
cept what he had before given to his sons and
daughters, provided that the said S. and J. should
maintain their brother A. and their unmarried *is-
I«TH, Jkc., and he then devised, as follows: "I give
and bequeath to Catharine and Sarah each, the
sum of £12, out of my personal estate, and
the remainder to be equally divided among my
eleven children ; and it any one or more happens
to die without heire. then his or their parts or shares
>lmll be equally divided among the rust of the
children : and also the money of my father-in-
law, J. W., belongs to my wife;" and then ap-
pointed his executors, Ac. It was held that the de-
TJf» over applied to both the real and |>er8onal
•estate, and was good by way of executory devise.
That the devise over was in fee. and that though J.,
the last surviving child, died without issue, the
NOTK.— WtUs — Executory Dcvtte* — "Children."
See Moffatt v. Strong, 10 Johns., 13, note.
JOHNS. REP., 11.
grandchildren of the testator could not take the
estate. Though there, is no one to take under an
executory devise, the estate does not, therefore,
revert to the right heirs of the testator. A deed
from A to B hahendum, to A for life, and after his
death to B, his heire and assigns, forever, is a valid
conveyance under the statute of uses, as a coven-
ant by the grantor to stand seised to his own use,
during life, and after his death to the use of the
grantee and his heirs.
Cltatlons-10 Johns.. 13: 5 East, 501 ; 1 Johns., 444:
0 Johns., 185; Ambler, 555, 681 : 2 Vernon, 101; 9
Br., 320; T. Haym.. 411 ; Cro. Eliz..35H; 10 Mod., 376;
Owen, 88 ; Ventris, 229, 230 ; 2 Wils., 22, 75 ; 4 Mass..
13«;.l Johns. Cas-TlT^
/ . «
THIS was an action of ejectment, for an un-
divided share of land in possession of the
defendants, in Kinderhook, tried before Mr.
Justice Van Ness, at the Columbia Circuit, in
September, 1813, when a verdict was taken
for the plaintiff, subject to the opinion of the
court on the following case :
Abraham Staats, the second, on the 24th
September, 1781, made his last will and testa-
ment, and soon after died, seised in fee of the
premises in question. By this will the testa-
tor devised to his wife, during her widowhood,
all his farm, orchards, barns, lands, &c., and
all his goods, &c. To his eldest son, Abraham,
his heir-at-law, he bequeathed twelve shillings;
and devised to his four sons Abraham, Johan-
nis, Isaac and Jacob, *the four hun- [*338
dred acres of land conveyed to his father by
Thomas Duncan, on the 4th of November,
1685. To each of his five daughters, Maria,
Catharine, Sarah, Elisabeth and Elsie, he gave
sixty acres of woodland, in fee. The testator
gare to his two other sons, Samuel and Joa-
chim, and other heirs, after his wife's decease
or marriage, his dwelling house, barns, or-
chards, &c., and all his lands, &c., except
what he had already given to his sons and
daughters, provided the said Samuel and
Joachim should be bound to keep and main-
tain their said brother Abraham, until the
Lord should give him a perfect mind and
memory ; and also keep and maintain their
unmarried brothers and sisters; provided they
assist them in their labor. The testator also
gave all his lands on the flats, after his wife's
death or marriage, to his six sons, by name,
share and share alike : and directed all his
debts, &c., to be paid out of his personal es-
tate. The testator further devised as follow*:
"I give and bequeath to Catharine and Sarah
Staats the sum £12 of each, out of my per-
sonal estate, and the remainder to be equal-
ly divided among my eleven children ; and
if any one or more happens to die with-
out heirs, then his or their parts, or shares,
shall be equally divided among the rest of the
children ; and 'also the money of mv father-in-
law, J. Wendell, belongs to my wife."
The premises in question were included in
that clause of the testator's will, by which he
devised to his two sons, Samuel and Joachim,
"his dwelling-house, barns, orchards, and all
his lands, except what he had already given to
his sons and daughters." Joachim died with-
out issue, in the year 1795, on the premises in
3uestion, which he had posseMsea since the
eath of his father, in common with the rep-
resentatives of Samuel. Jacob and Elizabeth
died without issue in the lifetime of their
father. Elsie died after her father, leaving
179
338
SUPREME COURT, STATE OF NEW YORK.
1814
two children. Hendrick and Catharine, the
former of whom died without issue ; the lat-
ter died leaving issue, who diefl without
issue. Johannis was the grandfather of the
defendants, and Isaac the father of the lessor
of the plaintiff. Isaac died before Johannis,
in 1784, and left one son, the lessor of the
plaintiff, and three daughters, and, by his last
will, devised to his son, the lessor, as follows :
"All my movable estate, orchards, barns,
houses, outhtmses, together with all my lands
that I now have in possession, or in anywise
• 33O*] *claim. or hereafter may claim or own,
be it where it may be found."
It was proved by the defendants, that the
lands in the old patent, southwest of the house,
had been in possession of the defendants and
their father above forty years, and had been
actually cleared. Abraham, the eldest son of
the testator, died long before the old French
war; and Maria died before the late Revolu-
tionary War, intestate and without issue — Jo-
hannis and Isaac, the surviving devisees of the
new patent, retaining possession thereof. The
defendants gave in evidence a deed from
Elsie and her husband, dated the 25th of
March, 1790, to Abraham Staats, the father of
the defendant, conveying all the lands she
acquired under the will of her father, and
which have since been uninterruptedly held
under that conveyance. Sarah died before the
Revolutionary War, without issue.
The defendants also gave in evidence a re-
lease from Samuel Staats to Joa'chim Staats,
dated the 16th of January, 1749, of one undi-
vided moiety of the lands devised to them by
the will of their father ; and a like release of
the same date, from Joachim to Samuel, and
which were witnessed by Isaac, the father of
the lessor of the plaintiff.
The defendants also produced a deed from
Joachim Staats to his cousin, S. G. Van
Schaick, dated the 5th of July, 1755, ,for the
consideration of natural love and affection,
and also £50, of all the lands in the first pat-
ent to hold to Joachim for life, and after his
death to the said S.G.Van Schaick, in fee. The
defendants also gave in evidence the last will
of S. G. Van Schaick, dated the 6th of June,
1772, devising the premises last mentioned to
his two sons, Gosen and Myndert.
Mr. Van Buren, for the plaintiff, stated the
points raised by him on the case, and the au-
thorities by which they were supported.
1. The devise over applies to the real as well
as the personal estate.
In Doe v. Stopford, 5 East, 501, the testator
directed that if any of his children died un-
der age, and without lawful issue, the share
of him or her deceased should go equally
among the survivors. It was held that the
word "share" comprised the leasehold as well
as the personal estate.
In Hardacre v. Nash, 5 Term, 716; 1 Burr.,
268. Hope v. Taylor, it was held that the
word "legacy" might be applied to the real
estate, if the context or will showed that such
34O*] *was the the testator's intention. The
intention of the testator is the polar star to
guide in the construction of wills.
All the provisions in the will in question,
and its language throughout, clearly demon-
strate that it was the intention of the testator
174
to comprise his real as well as his personal
estate. It is the last clause, and was intended
to make a complete disposition of the whole
estate of the testator. The case of The Execu-
tors of Moffat v. Strong, 10 Johns., 12, in this
court, is perfectly analogous.
The devise over, then, being of the real, as well
as of the personal estate, it took effect on the
death of the first taker, and is good by way of
executory devise.
In Pells v. Brown, Cro. James, 590, decided
in the 18 James I., there was a devise to
Thomas and his heirs forever, paying to his
brother Richard £20, at the age of 21 years ;
and if Thomas died without issue, living Will-
iam, then William should have those lands to
him and his heirs forever, paying the said sum
Thomas should have paid. This was held to
be a good limitation of the fee to William, on
the contingency, by way of executory devise.
[The counsel cited, also, Thurstout v. Denny,
1 Wils., 270 ; 1 Eq. Cases Abr., 188 ; Sheffield
v. Orrery, 3 Atk., 282 ; Hughes v. Sayer, 1 P.
Wms., 534; Pinbury v. Elkin, 1 P. Wins.,
563 ; Atkinson v. Hutchinson, 3 P. Wms., 258 ;
Goodtitle v. Pegden, 2 Term, 720; Wilkinson v.
South, 1 Term, 555; Roe v. Jeffrey et al, 7
Term, 589 ; Fosdick v. Cornell, 1 Johns., 439;
Jackson v. Blanshan, 3 Johns., 292 ; see S. C.,
6 Johns., 54 ; Richardson v. Noyes, 3 Mass.,
56.]
2. All the children of the testator being dead
at the death of Joachim, and he dying without
issue, the grandchildren took under the will of
the first testator, and the lessor, as one, is enti-
tled to the one fourth of a third. A provision
for children extends to grandchildren. (Wythe
v. Thurleton, Ambl., 555 ; Gale v. Bennet
Amb., 681.)
3. Isaac, at his .death, had an executory in-
terest, which he could devise (Jones v. Roe,
3 Term, 88; 1 Bl. Rep., 225; Gas. temp.
Talbot, 117), and by his will that interest
passed to the lessor, and gives him one third.
4. If Joachim took an estate tail, then his
deed to his cousin, S. G. Van Schaick, in 1755,
was void, and he continued tenant in tail,
until 1782, when his estate tail was converted,
by the statute abolishing entails, into a fee
simple, of which he died seised, and the lessor
is entitled to recover as one of his heirs at law.
(Cro. Eliz., 280, 895 ; 2 Co., 60 ; 2 Ld. Raym.,
778.) But even if the deed to Van Schaick
should not be deemed inoperate, still the statute
abolishing entails would *not destroy [*341
the devise over, but the same would be good
by way of executory devise. (Fosdick v. Cor-
nell, 1 Johns., 489.)
The court will make a construction in favor
of an executory devise, to support the inten-
tion of the testator, if it can be done without
violating the established rules at law. (Hop-
kins v. Hopkins, Gas. temp. Talbot, 43.)
5. If the devise over does not apply to the
real estate, then Joachim had a fee simple, his
deed to Van Schaick was void, as creating a
freehold to commence infuturo, and the lessor
is entitled to recover as his heir at law. (Hogg
v. Cross, Cro. Eliz., 254; 5 Co. Rep., 94; 2
Bl. Com., 165 ; T. Raym., 140, 151.)
Messrs. Vanderpool and Henry, contra. 1.
The last clause of the will, which is the only
one which admits of dispute, we contend ap-
JOHNS REP.. 11.
1814
JACKSON, EX DEM., v. STAATS.
241
plies only to the personal estate. It has not,
by any grammatical construction, any refer-
ence whatever to the reality. It speaks solely
of the personal estate. The testator first gives
£13 to each of his two daughters, to In- paid
out of his personal estate, ana then adds : im-
mediately thereafter, the remainder to be
divided equally among my eleven children .
and if any one or more of them happens to
die, «fcc. The word " remainder" applies to
the last antecedent, which is personal estate.
(Vin. Abr., Devise, 226, pi. 22, 225, pi. 19 ; 9
EMt, 267.)
But if it is to be inferred from the whole
scope of the will that this clause refers to the
real estate, yet it cannot refer to the premises
in question. By giving to each of his daugh-
ters sixty acres of woodland in fee, the testator
clearly shows his intention that they should
have no more of his real estate. The premises
in question are included in the joint estate
given to his two sous, Samuel and Joachim ,
and on the construction contended for by the
plaintiffs, this joint estate would be destroyed,
and his daughters would come in for their
shares. This clause could never have been
intended to defeat the joint estate of the two
sons. It begins and concludes with the dis-
position of the personal property. The will
was made in 1731, and since that time the
parties have acted in conformity with this con-
struction.
2. But if this clause applies to the real estate,
then we contend Joachim took an estate tail ;
or if he did not take an estate tail, that then
the contingency of dyinjj without heirs meant
an indefinite failure of issue, and the devise
over could not be good by way of executory
devise.
In Tyte v. Willis, Talbot's Cases. 1, where
342*] A. devised to J., for life, then to *his
son G. and his heirs, and if he died without
heirs, then to his two daughters ; it was held
that G. took only an estate tail. The same
doctrine is laid down in Nottingham v. Jen-
ning», 1 P. Wms., 28; Tutterham v. Robert*,
Cro. Jac., 22; King v. Rnmball, Cro. Jac.,
448: Wehb v. Heavey, Cro. Jac., 415; Soulle
v. Gerard, Cro. Eliz., 525 ; Brown v. Jerce»,
Cro. Jac. , 290 ; Dulton v. Eryrarn, Cro.
Jac., 427; Briee v. Smith, Willes, 1 ; Preston
v. Fennel, Willes, 164 ; and in many other
case-.
Though a devise to a man and his heirs
gives him an estate in fee simple, yet if
the word " heirs" is qualified by any subse-
quent words which show the intention of the
testator to restrain them to the heirs of
the body of the devisee, the devise creates only
an estate tail. (6 Cruise's Dig., 270 ; tit. 8W ;
ch. 12. sees. 4,5.) Here, then, was a contingent
remainder, and not an executory devise. In
Fotdick v. Cornell, and the executors of Moffat
v. Strong, this court recognize the principle
that the words "dying without issue" mean an
" indefinite failure of issue," and the term
"survivors" was considered as taking those
OW68 out of the general rule, and giving a
different construction. The case of the execu-
tors of Moffat v. Strong applies, however, only
to the personal estate, in regard to which there
cannot be such a thing as an estate tail.
But grant, for the sake of argument, that
JOHNS. REP., 11.
the remainder over was good by way of ex-
ecutory devise. In 1749, Samuel and Joachim,
by mutual deeds of release, conveyed to each
other, in fee, and since that time the property
has been uninterruptedly held by each, under
that estate ; and by our statutes for abolishing
entail, passed the 12th of July, 1782, 6 sess~
ch. 2, and the Act of the 26lh of February,
1786, 1 Green leaf, ed. Laws, 205. 9 set*., ch.
12, every species of estate tail, by devise, gift,
grant, or oilier conveyance, without any ex-
ception or qualification, is abolished ; and by
the second section of the Act, the same effect
is given to devises or conveyances by tenants
in tail, as if thev were, at the time, tenants in
fee simple. We do not deny the common
law, as to an executory devise, that it cannot
be defeated or prevented from taking effect,
by an act of the devisee ; but have not the
Legislature, by their Act, so far altered the
the common law, and abolished estates tail
created by way of executory devise, as well as
by grant, or in strict remainder ? The reason
or policy of the Act is, that such estates or
perpetuities are contrary to the genius of our
republican institutions.
8. Again; the devise over was only of an
estate for life, and on the death of Isaac it
failed. Where words of limitation are added
to a devise, and there are no other words from
which it *cau be inferred that the £*343
testator intended to give an estate of inherit-
ance, the devisee will take only an estate for
life. (6 Cruise's Dig., tit. 88, ch. 13, sees. 10,
16, 17.)
In Woodward v. Glassbrook, 2 Vernon, 888 ;
Cook v. C'ook, 2 Vernon, 545, a person devised
to his own two sons, I. and T. and the heirs of
their bodies, in equal moieties, and added, that
if any of his said chUdren should die before
twenty one, or unmarried, the part or share of
him so dying should go over to the survivor.
It was held that the devise over was only of an
estate for life. So in Pettywood v. Cook, t ?ro.
Eliz., 82 ; 2 Leon., 129 ; 3 Leon., 180, where
H. being seised in fee of three houses, devised
them to his wife for life ; remainder of one to
his son H. and his heirs ; remainder of another
to C. his daughter, and her heirs ; and the re-
mainder of the third to his daughter S. and
her heirs ; and added, that if any of them died
without issue, then the survivors should enjoy
totum tilam partem, to be equally divided be-
tween them ; it was held that the survivor
took only an estate for life.
4. But should it be insisted that the devise
over was of an estate in fee, it may be said
farther, that the devise over is to " the rest of
the children," and so grandchildren cannot
take. (Broun v. Peyg, Cro. Eliz., 857 ; Sir T.
Haym., 411 ; Ventris. 229, 5>80 ; 10 Mod., 870
to 376 ; 2 Vernon, 50 ; Jackwn v. Blanxhan, 3
Johns., 292, S. C ; 6 Johns., 54 ; Doe v. Provott,
4 Johns., 61.)
All the sons were dead in 1795; all the
children died. Joachim dying after Isaac,
and after the death of all his co-devisees, the
executory devise on his death was spent. The
dengnatio pernonarum failed. The estate would
then descend to the eldest son and heir at law
of Abraham, the eldest son of the testator,
and who died, intestate, before the French
war. It then vested in Joachim, the elder
175
343
SUPREME COURT, STATE OF NEW YORK.
1814
brother of Abraham, and who left issue,
which are now living. The issue of Isaac, a
younger brother, cannot take by descent.
Again, Joachim having, by operation of the
statute abolishing entails, an estate in fee sim-
ple, he alienated this estate, by an operative
deed, to S. G. Van Shaick, dated the 5th July,
1755. It is objected that the deed is void, as
creating a freehold to commence in futuro.
But the estate here was, by operation of the
statute of uses, in I. for life, and a vested re-
mainder was created. The proviso in the deed
must be deemed void ; and though the last
limitation over is void, it does not avoid the
first remainder created by the deed.
Again, it is objected that Joachim being a
a tenant in tail, he could not alienate, and so
his deed to Van Shaick was void. But the
344*] *cases cited are all those of covenants
to stand seised to uses ; and the doctrine of
those cases has no application to a bargain and
sale made by a tenant in tail, which operates
by way of transmutation of possession. If a
tenant in tail bargains and sells to one and his
heirs, the bargainee has a base fee, which is
not determined by the death of the tenant in
tail, but descends to the bargainee and his
heirs, until the estate is avoided by the entry
of the issue in tail (Comyn's Rep., 119, 121; 1
Saund., 260, 261 ; 3 Burr., 170, 3); and if the
tenant in tail, after such bargain and sale,
levies a fine to a stranger, such fine avails to
make the estate of the bargainee good to him
and his heirs ; and if the tenant in tail, by
bargain and sale, conveys to one and his heirs,
to the use of himself for life, remainder to
another, the remainder is good, by reason of
the transmutation of possession. (Comyn's
Rep., 121.) But it is otherwise, where he cove-
nants to stand seised to.the use of himself for
life, with remainder to another.
Mr. Van Buren, in reply, insisted that this
was a devise to Joachim in fee, with remain-
der over, which was good, by way of execu-
tory devise ; that the last clause overrides the
whole will, and extends to all the estate, real
as well as personal, so that Isaac and his heirs
come in for their share of the estate. Had the
devise over been intended to apply merely to
the personal estate, it would have been ex-
pressed part or share, and not parts or shares.
Doe v. Stopford, 5 East, 501, where the word
"share" was held to extend to the whole es-
tate, is a case strongly in support of the con-
struction for which we contend ; and so are
the cases of Hardacre v. Nash, Hope \. Taylor,
and TJie Executors of Moffat v. Strong, already
cited.
Since the case of Pell v. Brown, decided in
1619, there are not three cases to be found to
support the technical rule, that "dying with-
out issue " means an indefinite failure of is-
sue. Courts have resorted to the slightest cir-
cumstances to prevent the operation of such a
rule, which goes to defeat the intention of the
testator. They rather say that the plain sense
and intent of the testator ought to prevail.
Then, although the existence of such a tech-
nical rule should be admitted in the construc-
tion of wills, courts will not presume that such
was the intention of the testator, unless it
shonld appear that he was acquainted with the
technical rules of law on the subject. [Here
176
the counsel particularly examined all the au-
thorities cited in the opening of the argument.]
*In Fosdick v. Cornell, the decisions [*345
of the English courts are recognized, and the
court assented to the opinion of Lord Kenyon
in Porter v. Bradley, that the words "dying
without issue," or leaving no issue behind him,
did not mean an indefinite failure of issue, but
only of issue living at the time of the death of
the first taker, and that there was no reason
for any distinction in the rule of construction,
as applied to the real or personal estate.
The case of Richardson v. Noyes, 2 Mass. ,
56, is an authority to show that where the
same words are used as to real and personal
estate, the same rule of construction is to be
applied. But if the estate over is an estate
for life only, as has been contended, then there
is an end to the position as to the indefinite
failure of issue.
If this is an estate tail, it can only be one by
implication ; and it is true that words in a will
have been so construed as to give such an es-
tate by implication. They may be so con-
strued : but if there are other words in the
will to show that the testator did not intend
an estate tail, the court will not create one by
implication.
Admitting it to be an estate tail, the statute
abolishing estates tail never intended to destroy
all estates over by way of executory devise.
The operation of the statute is not to be extend-
ed by construction. As far as it fairly goes,
it sufficiently interferes with vested rights.
The reason of the doctrine as to executory
devises was, that estates over might be sup-
ported, which could not exist as contingent re-
mainders, for want of a particular estate to
support them. And where a freehold, capa-
ble of supporting a contingent remainder, is
by subsequent accident rendered incapable of
taking effect at all, it has been held to inure
as an executory devise, rather than the limit-
ation should fail for want of a freehold to
support it. (Cas. temp. Talb., 44; 1 Ves.,
268; 1 Atk., 581.)
Again; the deed from Joachim to Van Shaick
was inoperative and void. If a tenant in tail
executes a deed or conveyance in order to de-
feat the estate, it is inoperative, and the estate
remains in the tenant in tail (cases cited ante,
and see Yel., 51 ; Moore, 883 ; 1 Anders., 291);
and that the cases cited are those of covenant
to stand seised to uses can make no difference.
The reason is the same. Joachim sets down
to convey away after his death, that is. after
his estate has ceased, the estate given to the
heirs of his body, in tail. At common law the
deed would be void, because there could be
no livery of seisin. *The statute of [!*84O
uses was intended to supply a livery of seisin,
but not in cases where there is no livery of
seisin at common law. There is no use to
which the possession could be transferred by
the statute.
But we are told that the devise over was for
life. In Fosdick v. Cornell, where the lan-
guage of the will was similar, the court held
that the devise over was in fee. In the pre-
amble the testator expresses his intention to
dispose of his whole estate ; and the same es-
tate, that is, an estate in fee, before given to
the devisee, goes over by the subsequent
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. STAATS.
•M
clause. (Jacluon v. Merrill, 6 Johns., 185.)
In Wythe v. Thurgton, Ambl., 555, the word
"children" was held by Lord Hardwicke to
extend to grandchildren and great-grandchil-
dren; and in Oale v. Bennet, Ambl.. 081, Lord
Oamden expressed himself to be clearly of the
same opinion.
It is said that this is a remainder, and not an
executory devise ; but it is not a vested re-
mainder, and it cannot be a contingent remain-
der, for there is no particular estate to support
it.
SPENCER, J., delivered the opinion of the
court after stating the facts in the cane :
It is to be inferred, though this case does
not expressly state it, that all the children of
Abraham Staats the second are dead ; it is left
uncertain from the case which of the children
of the testator, Abraham Staats the second,
survived the others. Joachim and Johannis
appear to have survived all their brothers and
sisters ; but the fact does not appear which of
them survived the other, and this may be a
very material consideration. It is stated in one
of the points made by the counsel that Joa-
chim survived all his brothers and sisters, and
that fact will be taken for granted.
1. Does the devise over apply to the real and
personal estate, or to the latter only?
2. Does the devise over create an estate tail,
or does it operate as an executory devise?
8. If the devise was good as an executory
one, would the grandchildren of the testator
take under it, as the last holder (Joachim) died
without issue?
4. If the devise over created an estate tail,
was Joachim's deed, in 1755, sufficient to pass
his interest?
1. We are bound to construe this will so as
to carry into effect the intention of the testator,
unless we are restrained by fixed and estab-
lishes rules of construction. In the present
3-47*1 *case there are no such rules to fetter
us, ana we are to look at the whole will to find
out whether the testator meant to devise over
his personal estate only, or both personal and
real. After several specific bequests of real
and personal estate to his sons and daughters,
and in fact, after exhausting his real and per-
sonal estate by devises and legacies, he uses
these expressions: "And if any one or more
happens to die without heics, his or their parts
or shares shall be divided among the rest of
the children." The only reason for confining
this devise over to the personal estate is, that
it immediately succeeds the devise of the re-
mainder of the testator's personal estate to his
eleyen children. I know of no adjudged case,
nor have I met with even a dictum, that a will
is to be construed grammatically, or that an
expression of the testator's will which reason,
propriety and his evident intention would ex-
tend to all the antecedent subjects, shall be
confined to the one immediately preceding.
It is impossible to conjecture why the testator
should devise over such parts of his personal
estate as any of his eleven children should die
possessed of, without leaving an heir ; and
that with regard to his real estate, which, we
must presume was much more valuable, he
should have no such intention.
The plain and natural intention of the testa-
JOHNS. REP., 11.
tor was, that such parts of his estate as he had
specifically devised, both real and personal,
should go over to his surviving children on
the contingency stated in the will. In the case
of T/te Executor* of Moffat v. Strong, 10
Johns., 13, Moffat gave by his will certain
specific parts of his real and personal estate to
each of his sons, and directed the remainder
of his movable estate to be divided among his
heirs, and then added : "And if any of my
sons should die without lawful issue, then let
his or their part or parts be divided equally
among the survivors," «fec.
In that case it was made a question whether
the limitation applied to the retulutim of the
movable estate, or whether it extended to all
the previous devises to the son or sons
who should so die. It was held that the pro-
vision being general in its language and object,
the words did not, by any easy or natural con-
struction, confine the limitation ever to that
part of the will. The two cases are perfectly
alike in this respect, and must receive the
same construction.
*The case of Doe, ex dem. Stopford, [*348
v. Stopford, 5 East. 501, is very much in
point also ; there the testator made specific
devises to his sons in severaltv, provision for
his daughter and widow, and then gave the
residue of his worldly effects to be divided
amongst his three sons, and lastly, "if any of
his said children died under age, and without
issue, the share of him or her deceased should
go equally amongst his surviving sons." Lord
Ellenborough and all the judges held that the
word "share" in the last clause could mean only
the entire fortune or portion before given. There
are several other cases which might be added ;
but the intention of the testator, and the cur-
rent of decisions, are too strong to require it.
The limitation over must be applied to both
the real and personal property devised.
2. The point, whether the limitation over
operates as an excutory devise, or to create an
estate tail, admits of very little difficulty. The
case of fbsdiek v. Cornell, 1 Johns, 444, is in
point, that this is a good executory devise.
There the words were, "that if any of my
said sons, William, Jacob, Thomas and John,
or my daughter Mary, shall happen to die
without heirs male of their own bodies, that
then the lands shall return to the survivors, to
be equally divided between them." The cir-
cumstances in the two cases are very parallel ;
and what weighed much with the court in
that case exists here ; the devise over was to
the surviving devises in his will, among whom
were his daughters, to whom he had devised
no part of his real estate. I believe none of
us have ever doubted the correctness of the
decision in Fotdifk v. Cornell, and it would be
a waste of time to review the authorities there
cited.
8. It has been objected that the devise over
is not in fee, and that charging the devisees,
Samuel and Joachim, with the keeping and
maintaining their brother Abraham, would
confer a fee under the first devise. The case
of Jatkton, ex. dem. Decker, v. Merrill, 6 Johns,
185, settles these questions. It was there de-
cided, that charging the estate with payment
of monev in the hands of the devisees did not
prevent Us limitation over by way of executory
N. Y. R., 5.
12
177
348
SUPREME COURT, STATE OP NEW YORK.
1814
devise ; and the devise over of their parts,
which in the hands of the first devisees was
considered in fee, necessarily referred to the
estate or interest before devised ; and that the
ulterior devise was clearly intended to be as
extensive as the antecedent one.
-*4!)*] *I cannot but think the case im
perfect as to some facts. I infer, however,
from the course the argument has taken, not
only that Joachim survived all his brothers
and sisters, but that the plaintiff seeks to re-
cover the part of land either devised to him.
or of which he became possessed as such sur-
vivor ; and then, under the words of the limi-
tation, it becomes a question, whether, as the
survivor, he had not a fee in the lands, which
accrued to him as such ; and, also, whether
the word "children" shall be deemed to extend
to grandchildren.
In White v. Thurston, Ambler, 555, by deed,
an estate was directed to be sold, on failure of
issue male of A., and the money to be equally
divided among four persons, or the respective
issue of their bodies ; but if any one of them
be dead at that time (the failure of issue male
of A), to be equally divided among the sur-
vivors of them and their respective children,
in case any of them be dead, having issue of
their body. They all four died before the con-
tingency happened — one without issue ; one
had a son living ; one had grandchildren, but
no children ; and the fourth had children,
grandchildren and great-grandchildren living.
Lord Hardwicke held that the word "issue"
carried it to all descendants, and that the word
"children," in that case, which may admit of a
more restrained signification, should be ex-
tended to the children, grandchildren and
great-grandchildren ; and they took per stirpes,
and not per capita,. In the case cited it is mani-
fest Lord Hardwicke determined it on the
clear intention of the testator, that in case of
a failure of issue male of A, the money, was to
be divided among the four persons, or the re-
spective issue of their bodies, in case any of
them were dead on the happening of the con-
tingency ; and he considered the word "chil-
dren" as used synonymously with the words
"issue of their bodies." This is not an authority
for saying that the word "children," used as
it was by the testator, meant grandchildren.
The next case relied on is Gale v. Bennet,
Ambler, 681. That case was governed by the
case of White v. Thurleton ; and grandchildren
were admitted to inherit, because the testator
meant to let in the grandchildren, by using
the word "issue" as synonymous with "chil-
dren."
The next case is Crooke v. Brooking, 2 Ver-
non, 106. R. Mallock gave to trustees £1,500,
35O*] for *such uses as he had declared to
them, and by them not to be disclosed. One
of them, by letter to the other, mentioned the
trust, which was, that they, out of the profits,
should allow Anne Crew a maintenance during
her husband's lifetime, and if he died before
her, then she was to have the money ; but if
her husband survived, the money to go
amongst her sister's children, as she should
advise. Anne Crew died in her husband's
lifetime, leaving only one sister, Grace, but
gave no directions or advice relative to the
.£1,500. Grace had only one child (the plaint-
178
iff) living at the death of Anne Crew, but had
five children living at the death of the testator,
Mallock, some of whom had children, who
were parties to the suit ; and the question*
were whether the plaintiff, being the only
child living of Grace, at Anne Crew's death,
should have the whole £1,500 ; or whether the
administrators of the dead children, or the
grandchildren, the children of the deceased
children, should have a share.
Chancellor Jeffries decreed the money to be
divided between the child living at the death
of Anne Crew, and the children's children
living at the death of Anne Crew.
Upon a rehearing before the Lords Commis-
sioners, they decreed for the plaintiff, and
were " clear of opinion that where the devise
is to children, the grandchildren cannot come
in to take with the children ; " but all admit-
ted that if there had been no child the grand-
children might have taken by the devise to the
children.
The next case is that of Clarke v. Blake, 2
Br. Rep., 820. The testator devised the prem-
ises in question " to the use of such child or
children of his brother H. C., whether male
or female, as should be living at the time of
his said brother's death, as tenants in com-
mon." The question was, whether Bridget,
one of the children, being unborn, but in ven-
ire sa mere, at the time of the testator's death,
should take a share, or be excluded. Lord
Kenyon, then Master of the Rolls, held that
the child, in venire sa mere, could not take
under a bequest to children, living at the time
of the testator's brother's death. The Lord
Chancellor Thurlow expressed an inclination
the other way, but made no decision.
The case of Crooke v. Brooking concludes
with an observation of the reporter, which, if
correct and authoritative, as it is not, does not
*apply to this case ; ' ' but all admitted [*35 1
that if there had been no child, the grandchil-
dren might have taken by the devise to his
children." Sir Thomas Reynolds, in deliver-
ing his opinion in Stead v. Burner, T. Raym.,
411, says the word "son" is never taken for
"grandson," no more than "child" is taken
for " grandchild ; " and in Brown v. Peyx, Cro.
Eliz., 358, all the court resolved that where
the devise was to one of Richard Forster's
children, his child's child should not have it,
for that it was out of the words. To the same
purpose, also, are 10 Mod., 376 ; Owen, 88 ;
Ventris, 229, 230.
The testator, in making the limitation over,
never contemplated the case which has oc-
curred ; and when he says, " If any one or
more happens to die without heirs, his or their
parts or shares shall be equally divided among
the rest of the children," he, undoubtedly, by
the rest of the children refers to his own chil-
dren, whom he had before named in his will.
He died, not once thinking of his grandchil-
dren, and it would be doing violence to his in-
tention to say he did.
If this be so, then the last surviving child,
whether he had issue or not, would retain, not
only his share in the first devise, but also the
shares which had accrued to him ; for the es-
tate devised to him was vested by the devise,
and if no one could take under the executory
devise, it would become inoperative, and could
JOHNS. REP., 11.
1814
GRAHAM ET AL. v. COMMERCIAL INS. Co.
351
not devest him of what he had gained by the
direct devise. It is, therefore, incorrect to
suppose that if there was no one to take under
the executory devise, the estate would revert
to the right heirs of the testator.
It is contended that the deed from Joachim
Staatt to 8. G. Van Schaick, was void, as it
was to take effect infutvro, and that the les-
sor is one of the heirs of Joachim.
This is a very mistaken idea ; and the cases
of Doe, ex dem. Wiibournr et ux., v. Simpson,
and of Roe v. Freeman et al., 2 Wils., 22 and
75, are directly in point, that this deed is good
as a covenant to stand seised. The same point
was adjudged in Massachusetts (4 Tyng's
Mass. Rep., 186), and expressly in Jackson, ex
Ann. Trowbndge, v. Dunsbagh, 1 Johns. Cases,
91.) We are of opinion that the defendants
must have judgment.
VAN NESS, J., concurred in the opinion that
the defendants were entitled to judgment, on
352*] *the third point stated by M r. Justice
Spencer, and declined giving any opinion on
the other points in the cause.
PLATT. J.. not having heard the argument
of the cause, gave no opinion.
Judgment for the defendants.
Limitation over, when roid. Distinguished — 1
Barb.. 572.
Cited in— 16 Johns., 432: 2 Cow.. 394; 4 Wend.,
282; 19 N. Y.. 356: 3 Barb., 887: 4 Barb., 437; 15
Iiart>.. 625: 19 Barb.. 500; 33 Barb.. SB; 41 liarb.,
532; 20 How. Pr., 45; 12 Wheat., 165: 1 Mason, 235.
Erecvtnru sale— Validity— Consideration. Cited
ln-20 Johns., 87; 3 Wend., 235; 22 Wend., 144; 1
Sand. el... -'-.: : 13 Barb., l-~' ;
lni> xti.'ii* of testator — Surviving Children who
are. Cited in-8 Cow., 180 ; 11 Wend., 392 ; 36 N. Y.,
271 ; 26 Barb.. 117 ; 25 How. Pr., 199.
Construction of iriH. Cited in— 2 Hedf., 399 ; 40 N.
J.L..44.
Al»o cited in— 2 Tran8..App., 155.
J. GRAHAM ET AL.
THE COMMERCIAL INSURANCE COM-
PANY.
Marine Insurance — Deviation — Necessity less Ex-
cutes — Master Must act Bona Fide — Usage.
Insurance on cargro " at and from Carlsham to St.
Petereburgh " The vowel sailed from Carlsham the
9th of November, 1813, and meeting with adverse
winds, dcu., attempted to get into Revel as a place
of safety ; but finding1 it impracticable, she put into
Port Baltic, on the 22d November. Being informed
that it would be impossible to reach Cronstadt, on
account of the ice, and t li«- wind and weather be-
coming fa vora -le, she sailed from Port Baltic on
the 23d November, intending to go to Revel ; but
the wind soon after suddenly changed, and the
weather became thick ; and while endeavoriiiK to
gut Into the Bay of Revel, the ship struck on a
shoal, and was lost. It was held that the captain,
having acted txma i<*r. and according to his best
judgment, his going into Port Baltic, and after-
wards attempting to get into Revel, was justitlable
and not a deviation.
THIS was an action on a policy of insurance
on cargo on board of the American brig
NOTE.— AfarJw Insurance— Deviation— HTiat con-
ftittitr* anil irh<tt crctuen. For full discussions, see
Cilfert v. Hallet, 2 Johns. Ca«., 298, nnte; Patrick
v. Ludlow, 3 Johns. Caa., 10, notr ; Llotard v. Graves.
3 Cai., 226, mite : Henshaw v. Marine Ins. Co.. 2 Cal..
274. note : Suydain v. Marine Ins. Co., 1 Johns., 181.
note.
JOHNS. REP., 11.
1 African, " at and from Carlsham to St. Peters-
i burgh." The plaintiff claimed a total loss,
| which was averred to have happened by the
perils of the sea, while the vessel was in the
due prosecution of her voyage to St. Peters-
burgh. The cause was tried at the New York
sittings, in November, 1818, before the Chief
Justice.
The plaintiffs' counsel having read the de-
positions of the master and supercargo, the
defendants' counsel stated their defense to be,
that the African ought to have wintered at
Port Baltic ; and that the voyage from thence
to Revel, in which she was lost, was a devia-
tion.
The master deposed that he sailed from
Carlsham, in Sweden, on the 9th November,
1810, in the African, bound to St. Petersburgh.
When he sailed from Carlsham he took on
board a pilot for St. Petersburgh. The ship
encountered adverse winds, frequent falls of
snow, snd heavy squalls, until the 20th No-
vember ; the next day he made the Dangarot,
and afterwards the lights on Odesholm, and at
midnight the light on Surp ; but the weather
becoming so cold, and the sails and rigging so
much covered with ice, and the wind growing
unfavorable, that it was thought prudent to
make a port for shelter, and several tacks were
accordingly made, to get into the Bay of
Revel ; but finding it impossible to get in be-
fore night, it was thought most prudent to
bear away for Port Baltic, distant at>out ten
miles, *off which they came to anchor [*353
on the 22d November. The supercargo went
on shore, and learning, on inquiry, that it
would be impossible to get to Cronstadt, on
account of the obstruction of the ice, it was
determined to proceed to Revel, which is about
twenty-five miles from Port Baltic, and in the
route to Cronstadt. On the 28d of November,
there being a moderate breeze from the sooth-
west, and fine weather.the ship got under way
and stood out to sea. In the afternoon of the
next day, the wind began to blow fresh, so as
to oblige them to close reef their topsails, and
increased till four the next morning, with hard
squalls, attended with snow and sleet. The
gale continued to increase, and about seven A.
M., by the direction of the pilot, thev wore the
ship and stood in for Revel Bay. "Being de-
ceived, by the thickness of the weather, as to
the distances, the ship got aground on a shoal
running off Surp Point. Exertions were made
to sret off the ship ; but the gale increasing,
with heavy seas, she filled with water, and the
crew, with some difficulty, left her in the boat.
The master deposed that the sole reason for
proceeding to Revel was l>ecause the super-
| cargo had ascertained that she could not get to
Cronstadt that season, on account of the ice ;
and had not that been the case, it WAS the in-
tention of the supercargo to proceed direct
from Port Baltic to Cronstadt. That when
the ship left Port Baltic, it was determined to
go to Revel, and there deliver the cargo, that
ft might be transported from thence to St.
Petersburgh ; but if there had been no ob-
structions to the navigation by the ice. the ves-
sel would not have landed the carco at Revel,
but have proceeded to Cronstadt. That there is
no port or place of delivery for St. Petersburgh
enarer to Cronstadt than Revel ; and that is
SUPUEME COURT, STATE OP NEW YORK.
1814
very common for vessels bound to St. Peters-
burgh to deliver their cargoes there when the
navigation of the Gulf of Finland is obstructed
by ice. That at the time the African was
there six American vessels, bound to St. Peters-
burgh, put into Revel, and discharged their
cargoes. That when the African arrived at
Revel the Gulf of Finland was closed by the
ice, so as entirely to interrupt the navigation
as far down as the eastern part of the island
of Narjou, which forms the boundary of the
Bay of Revel. There is a good anchorage at
Port Baltic, which is used as a King's port,
and vessels occasionally winter there, but
never when they can get into Revel, which is
354*] a port of entry, and the usual place *of
landing cargoes. The little settlement bear-
ing the name of Port Baltic contains no
more than ten or twelve small houses, but
no stores or warehouses ; nor is it a place of
delivery.
The deposition of the supercargo was sub-
stantially the same as that of the master.
The defendants' counsel read in evidence the
depositions of two masters of vessels, who had
been in the Baltic and Gulf of Finland, who
said, that at the time the African entered Port
Baltic, had they gone there on account of the
ice, they should have wintered there. One of
them said a vessel proceeding from Port Bal-
tic for Cronstadt would not stand in for Revel,
and that if she did she would be entirely out
of the track for CronsUdt, and that the place
where the African went aground was out of
the usual track ; that Revel is a dangerous
port to enter, but when entered is the best port
in the Gulf of Finland.
The Chief Justice charged the jury that if
they believed that the captain acted in good
faith in leaving Port Baltic for Revel, he was
justifiable in doing so ; and then the passage
thither, on which the vessel was lost, would
not, under the circumstances of the ,case,
amount to a deviation ; and the jury, there-
upon, found a verdict for the plaintiffs for a
total loss.
A motion was made to set aside the verdict,
and for a new trial.
Mr. Wells, for the defendants. The only
question is whether there was a deviation.
Revel was not a port mentioned in the policy,
nor a port of necessity. In order to justify
stopping at an intermediate port, there must
be either a necessity for doing so, or a usage
of trade. When the vessel arrived at Port
Baltic, which we admit was a port of neces-
sity, it was ascertained that it was impracti-
cable to reach Cronstadt, the port of delivery,
and the cargo might then have been landed at
Port Baltic, and sent on to St. Petersburgh, or
the vessel, after wintering at Port Baltic,
might have proceeded in the spring, when the
navigation was safe, to St. Petersburgh, her
port of destination. The cause or necessity
which forced the African to seek safety in
Port Baltic continued, and she ought not to
have left it merely to seek another port of ne-
cessity. If this should be allowed, a vessel
might, without any justifiable cause, encoun-
ter the same perils a second or third time, and,
under the pretext of a port of necessity, go in
355*] search of a market. Revel *was not a
port or place in the voyage insured, and there
180
was no reason for going there, unless for the
sake of disposing of the cargo.
In Parkin v. Tunno, 11 East, 22, the vessel
was insured at and from Bristol to Monte-
video, and any other port or ports in the River
Plata in possession of the English. On ar-
riving in the Plata, all the places there, except
Maldonado, were in possession of the enemy,
and the English commander, on account of the
situation of the English, ordered the vessel
immediately away, and being short of water,
and wanting repairs, she bore away for Rio
Janeiro, as the nearest friendly port of safety,
and in going there was lost ; the Court of K.
B. held that the policy could not be extended,
by implication, to cover the ship in her voy-
age to Rio Janeiro, though it was necessary to
go there.
So here, the specific voyage insured is from
Carlsham to St. Petersburgh, and the ship can-
not be allowed to coast along the Gulf of Fin-
land, from port to port. If she is allowed to
go to Revel, because it is near to St. Peters-
burgh, she might afterwards go, for the same
reason, to Narva ; and thus, instead of a di-
rect voyage to St. Petersburgh, she might go
from port to port along the coast of the Gulf
of Finland, and thereby greatly enhance the
risks of the voyage. This loss has arisen, not
on the voyage insured, but on a voyage from
Port Baltic to Revel.
Suppose a vessel insured from Charleston to
Philadelphia, and, on arriving at the mouth of
the Delaware, should find the river so stopped
with ice as to render it impracticable to reach
her port of destination, and should put into
New York, would she be covered by the pol-
icy in afterwards going from New York to
New London or Baltimore ?
Mr. Golden, contra. Port Baltic is a small
place, and not a port of entry or delivery ;
there are no warehouses there to receive car-
goes. Revel is the best port in the Baltic,
though somewhat difficult to enter. It is the
nearest port to St. Petersburgh, and in case a
vessel cannot get to St. Petersburgh, she may
deliver her cargo there. If driven by a storm
into Port Baltic, and the winds and weather
afterwards became favorable to proceed on
her voyage to St. Petersburgh, she would be
justified in leaving Port Baltic for that pur-
pose.
*If the African had remained at [*356
Port Baltic until spring, and afterwards had
been lost in going to St. Petersburgh, the de-
fendants would then have objected that there
was a deviation, by reason of the delay, and
that she ought to have gone to Revel, and
there delivered her cargo. She did, in fact,
attempt to reach Revel first, but was com-
pelled to go into Port Baltic. The captain
acted with good faith, and had he reached
Revel, in the first instance, would it have been
pretended that it was a deviation ?
Again, the situation of Revel, and the usage
of the trade, in regard to that port, as well as
Port Baltic, justifies the conduct of the mas-
ter. (Oddy on Commerce. 102, 166.)
The case of Parkin v. Tunno is very differ-
ent from the present. The vessel, in that case,
did arrive at Maldonado, a port in the Plata,
and she afterwards attempted to prolong her
voyage by going to a place entirely out of its
JOHNS. REP., 11.
1814
DICKEY v. UNITED INS. Co.
route. But here Revel is in the usual route to
St. Petersburg!!.
Take the case put by the defendant*' coun-
sel, and suppose a vessel bound to Philadel-
phia, stopped by the ice, should go to Wil-
mington, as a place of necessity, and finding
afterwards that she could go on to a place
much nearer to Philadelphia, should leave
Wilmington to go to Newcastle, and should be
lost, would not the insured be entitled to re-
cover ?
Mr. Wettt, in reply, said that if a map or
chart of the Gulf of Finland was examined it
would be found that a vessel going into Revel
is as much out of the direct and proper route
to St. Petersburgh as a vessel bound from
Charleston to Boston would be if she put into
New York or New London.
There is a difference between a port of entry
and a port of delivery, and the insured might
have entered the vessel at Revel, while at Port
Baltic, and obtained a permit to land her car-
go at the latter place. But the defendants did
not insure the entry or delivery of the cargo.
THOMPSON, Ch. J., delivered the opinion of
the court :
The going to Revel was no deviation. It
was a port of necessity, and the course of con-
duct pursued by the master was justified by
the state of the weather and the obstruction of
the navigation in the Gulf of Finland by the
357*] ice. It is no deviation to go *out of
the way to avoid danger, or when compelled
by necessity. It is, therefore, laid down as a
general principle, which runs through all the
cases on this point, that if the captain, in de-
parting from the usual course of the voyage,
acts fairly and bonafide, and according to his
best judgment, to avoid the threatened danger,
and thereby promote the benefit of all parties
concerned, and has no other view but to con-
duct the ship and cargo to the port of destina-
tion, the policy still continues. His having
put into Port Baltic as a port of necessity did
not oblige him to remain there during the
winter. And although the supercargo re
ceived such information there as to induce
him to believe that they should not be able to
reach Cronstadt or St. Petersburgh, the port
of destination, yet both he and the captain
swear it was their intention to go on, if not
prevented by the ice. And it was not until
they arrived off the bay of Revel that they as-
certained with certainty that they could not
proceed to Cronstadt by reason of the ice. It
was prudent and discreet in the captain to go
on to Revel. It was only about twenty-five
miles from Port Baltic. The weather was
fine and the wind fair, and there was every
reasonable prospect of a speedy and safe ar-
rival ; and if he found it impracticable to go
on, Revel was a much more safe and secure
place to winter in than Port Baltic, the latter
having no storehouses for storing the cargo in
case it should become necessary to unload the
vessel, nor is it a port of entry or delivery.
The jury have found that the captain acted
in good fa'ith, and that the necessity and cir-
cumstances of the case justified his going to
Revel ; and this finding is fully warranted by
the evidence. Although there is good anchor-
age in Port Baltic, and vessels occasionally
JOHNS. REP., 11.
winter there, yet, from the testimony, it ap-
pears that they do not when they can get into
Revel. Besides, the case furnishes very strong
evidence of a usage or custom for" vessels
bound to St. Petersburgh to put into Revel,
and deliver their cargoes there, when the navi-
gation of the Gulf of Finland is interrupted
by ice. A number of American vessels had,
at that time, put in there for that purpose.
From the lateness of the season when this voy-
age was undertaken, it was reasonable to pre-
sume the navigation would be obstructed by
ice, and underwriters must have calculated
that the usual course of the voyage would, in
such case, be pursued. Under these circum-
stances, it*would be carrying the doc- [*IJ5H
trine of deviation to an extravagant length to
apply it to a case like the present.
The motion for a new trial must, accord-
ingly, be denied.
VAN NESS, J. If this case had been left to
the jury, to say whether, by the usage of the
trade. the master had not a right to eo to Revel,
and they had found for the plaintiff, I should
have been better satisfied. It was not put to
the jury on that ground ; and I think it very
doubtful whether any such usage exists, not-
withstanding the evidence stated in the case.
I do not, however, mean to be considered as
dissenting from the opinion of my brethren ;
though, at the same time, I am not perfectly
clear as to the right of the plaintiff to recover.
Judgment for the plaintiffs.
DICKEY
THE UNITED INSURANCE COMPANY.
Marine Insurance. 1. Warranty as to Entry,
held to mean Custom-house Entry. 2. Voyage
Ends at Inner Harbor. 3. Slates.
Insurance on vessel and cargo, " at and from St.
Bartholomew's to Havana."
The insurers were informed that the vessel would
have some negroes on board bound to the Havana,
and that the cargo consisted of soap, wine, &c., and
the policy contained a warranty " free from loss if
not permitted to entry, in consequence of having
negroes on board."
The vessel arrived on the 23d of October, in the
evening.at Havana.and came to anchor off the Moro
Castle, the place where all vessels must stop to be
visited, ana where vessels having negroes on board
must, after being examined, land their negroes,
before they are permitted to come up to the dock,
in the inner harbor, which is the usual place for
landing cargoes, other than negroes, and about
three quarters of a mile from the Castle, wbere the
vessel anchored. The consignee had presented the
papers, and a petition, to the cu8toin-nous»e officer,
in the usual form; but during all the24th of October
there was so violent a storm as prevented all com-
munication with the vessel ; and on the next day
the storm increased to a hurricane, and the vessel,
though moored with three anchors, was run foul
of by another, and driven ashore, and wholly lost,
with her cargo.
It was held that the vessel, at the time of the loss,
had not been " moored twenty-four hours in good
safety," in her destined |x>rt. and was still covered
by the policy ; that the meaning of the warranty
was to guard agiiinst the consequence of not being
permitted to an entrv at the custom-house only,
and which not having been refused, the event
provided against by the warranty had not occured,
and the Insured were entitled to recover for a total
Cttatlon-2 8tr., 1244.
181
358
SUPREME COURT, STATE OF NEW YORK.
1814
was an action on two policies of insur-
JL ance, one on the schooner Minerva, and
the other on the the cargo on board of the same
vessel, " at and from St. Bartholomew's to
Havana." In the order for the insurance, the
defendants were informed that the cargo con-
sisted of soap, wine, &c., and that the schooner
would have on board some negroes, bound to
Havana. The policy contained a written war-
ranty, " free from loss, if not permitted to
entry, in consequence of having negroes on
board."
359*] *The cause was tried at the New York
sittings, in November, 1813, before the late
Chief Justice, when a verdict was taken for the
plaintiff for $7,000, subject to the opinion of
the court on a case made, the amount of the
verdict to be reduced as the court might
direct.
The Minerva sailed from St. Bartholomew's
on the voyage insured the 10th of October,
1810, having on board forty-five African ne-
groes, beside a cargo of soap, wine, &c. From
the 19th to the 23d she experienced violent
winds, and on the evening of that day
anchored near theMoro Castle, at the entrance
of the port of Havana, which was the
usual place for vessels having negroes on
board to come to. Vessels loaded in whole
or part with slaves are not permitted, by the
laws of Havana, to come to the usual places
for landing other cargoes, until they have been
visited, and the slaves are landed. On the
24th of October the usual petition was pre-
sented bjr the consignees, in behalf of the Min-
erva, to the proper officers, praying that she
might be visited and examined, according to
the direction of the law, previous to landing
the slaves. The weather, on the 24th of Oc-
tober, was exceedingly tempestuous, and the
Minerva was secured, as well as possible, with
three anchors. On the 25th of October a
violent hurricane prevailed, which prevented
all communication with the shore, and ren-
dered it impossible to remove her to a place of
safety. During the gale she was run against
by another vessel, and was driven ashore
among the rocks, and was wrecked, with
many other vessels. The vessel and cargo
were sunk, and wholly lost, except the slaves,
who escaped with the crew, one of the negroes
only being lost.
From the time of her arrival until she was
lost, it was impossible to complete the exam-
ination and entry of the Minerva, and have her
removed to a place of safety, agreeably to the
laws and regulations of the port. The place
the Minerva anchored, though the usual place
for landing negroes, and convenient for that
purpose, was not a safe or usual place for land-
ing cargoes of goods. The Minerva was lost
within the harbor of Havana, that is, within the
Moro Castle. All vessels are obliged to come
toon arriving opposite the Moro Castle, until
visited by the health and custom-house officers;
but vessels are not considered as in safety until
36O*J moored at the *dock,at the City, which
is three fourths of a mile from the Castle, and
where cargoes, except negroes, are usually
landed.
Mr. Wells, for the plaintiff. The Minerva,
though she arrived at Havana, was not moored
"twenty-four hours in good safety," before
182
the storm arose which occasioned her loss.
She was, therefore, protected by the policy at
the time of the accident. She must not only
be anchored or moored, but she must be in a
situation to enable her to discharge her cargo.
Where a vessel arrives at her destined port,
and is immediately ordered to quarantine,
during which she cannot deliver her cargo,
she is considered as covered by the policy.
(Waples v. Eames, 2 S*r., 1243; Minet v. Ander-
son, Peake, 211 ; Park, 45.)
The laws and regulations of the port of
Havana required all vessels to come to anchor
off the Moro Castle, precisely where the Min-
erva anchored, in order that they may be
visited before landing their cargoes. She could
not, without a breach of those laws, have gone
up to the City or wharf.
In Parmetcr v. Cousins, 2 Campbell N. P.
235, tried before Lord Ellenborough, the ship
met with tempestuous weather on her outward
voyage, and when she arrived at St. Michael's
she was so leaky as to be unable to take in a
cargo, and there being no habor in the island,
she was in danger from the storm, which con-
tinued, and after being at anchor twenty-four
hours was driven to sea and lost. The insur-
ance being at and from St. Michael's, it was
held that the policy on the homeward voyage
did not attach, as she had not been at St.
Michael's in good safety. She must, therefore,
have been considered as si ill covered by the
policy on the outward voyage to St. Michaels.
The principle of that case is applicable to the
present.
In regard to the policy on the cargo, it will
be said that the Minerva having stopped short
of the place at which cargoes are usually
landed at Havana, there was a deviation. But
the insurer knew that negroes were on board,
and stopping to land them at the usual place
does not amount to a deviation, it being ac-
cording to the usage of trade, which insurers
are bound to know. (Doug., 492.)
Again, it will be said that the loss arose in
consequence of having the negroes on board;
but the defendants underwrote the policy with
full knowledge of the fact, and calculated the
premium accordingly. All the consequences,
therefore, which might follow from that fact,
were risks within the policy.
*2. Are the defendants protected by [*36 1
the special warranty of " free from loss if not
permitted to entry, in consequence of having
negroes on board ?" The plain and obvious
meaning of this clause is, that if. by a total
prohibition of entry on that account any loss
should occur, the defendants were not to be
answerable. It has no reference to a tempora-
ry suspension of the entry until the vessel had
conformed to the rules and regulations of the
port She was not refused an entry ; on the
contrary, she would have been permitted to
enter had not she been lost by the storm which
arose immediately on her arrival.
Messrs D. B. Ogden and Hoffman, contra.
The vessel was not lost, in fact, until forty-
eight hours after her arrival. The evidence
in the case shows that the Minerva came to
anchor off the Moro Castle for the sole pur-
pose of having the negroes examined and
landed; and that, for every other purpose, she
might have gone up to the wharf, or usual
JOHNS. REP.. 11.
1814
DICKEY v. UNITED INS. Co.
361
place of landing the cargo, the necessary |
papers having l>een presented to the proper ;
officer by the consignee for that purpose. The
loss must, therefore, be regarded as the direct ;
consequence of her having negroes on board.
This is a peril against which the defendants
did not insure.
No perils of the sea are within a policy, after
the vessel has been moored twenty-fours in
safety, unless she is under arrest or detention
immediately on her arrival. Suppose a vessel
arrives at New York, and after being moored
twenty-four hours, some difficulty arises with !
the custom-house officer, and she is not allowed
to enter, and a storm arises in which she is
lost, can it be supposed that the underwriter
would be liable f In the case of Wnple* v.
Rune* the vessel was ordered back to quaran-
tine before she had been moored twenty-four
hours.
In Anne*tein v. Bell, Park, 45. 46, tried be-
fore Lord Kenyon, the vessel arrived at the
wharf where she intended to unload, but was
placed outside a tier of vessels, where, after
remaining anchored in that situation for -t-v
«ral days, she was forced adrift by the ice and
lost; and it was held that she had been moored
twenty-four hours in good safety, before the
accident happened, and the plaintiff was non-
suited.
As soon as a vessel easts anchor in her des-
tined port, the twenty-four hours commences,
liUtS*] though she may be delayed, by •diffi-
culties at the* custom-house, from entering and
discharging her cargo.
If a vessel is insured for six months, and she
survives that time, though she received her
death wound before, the underwriters are not
liable. Suppose the vessel has been twenty-
three hours in good safety before she is admit-
ted to an entry, will she be covered by the pol-
icy for twenty-four hours longer ?
The question in the case of Parmeter v.
Cousin* was between the outward and home-
ward policies, or when the homeward policy
attached.
Again, as to the policy on the cargo ; the in-
sured were bound to proceed with all due dili-
gence, not only to the port of destination, but
to the usual and safe place for landing the
cargo ; and had she not been detained, in con-
sequence of having negroes on board, she
might have gone up to the City, a place of per-
fect safety, in which case the loss would not
have happened.
Again, as to the warranty ; the clause, like
«very other, must be construed according to
the intent of the parties. Now, all the facts in
the case plainly show that it was the intention
of the warranty to protect the insurers from
any loss arising from the fact of having ne-
groes on board. The warranty had no refer-
•ence to an entry at the custom-house, but only
to a right of going into the port of Havana,
without regardto the custom-house.
Mr. T. A. Kmmft, in reply. The word
"entry " has a positive and established mean-
ing among merchants, and is alwavs used in
reference to the custom-house. The clause
was, most probably, introduced in conse-
quence of what was said by Mr. Jttttite Liv-
ingston, in the case of Suydam A Wycknff
v. The Marine Int. (Jo., 1 Johns., 181-190,
JOHNS. RKP., 11.
who, though he thought, after much reflec-
tion, and many doubts, that a denial of entry
at the port of destination was not a risk within
the policy, yet the point was not expressly de-
cided in that case, nor has it been put at rest
by any subsequent decision. This warranty
was intended to prevent all questions, on a
doubtful point, by an express stipulation on
the subject. Now there was no denial of an
entry at the custom-house in the case.
*The accident might have happened [*3<J3
in any part of the port of Havana, for the Mi-
nerva was run foul of by another vessel, in a
most violent hurricane, and driven from her
moorings ; and many other ships were lost at
the same time.
PLATT. J., delivered the opinion of the court:
It appears that the port of Havana consists
of an outer harbor or quarantine ground, near
the Moro Castle, used for the purpose of visit
and search, and for the lauding of slaves,
which is an exposed and dangerous station ;
and of an inner harbor at the City, where ves-
sels having cargoes, other than slaves, usually
anchor and discharge, after having been visit-
ed at the Castle ; and which inner harbor is a
place of safety.
In this case, the vessel arrived at the outer
harbor, moored at the usual place for being
visited, and for landing that part of her cargo
which consisted of slaves, and without any
unreasonable delay, in that dangerous situa-
tion, was wrecked by storm, before she could
have proceeded to the place of safety, in the
inner harbor, without violating the laws of the
port.
As it regards the vessel and that part of the
cargo insured by these policies, I am of opin-
ion that the voyage insured was to end at the
inner harbor ; and, of course, that the Miner-
va was not " moored twenty four hours in
good safety " at that port, or* the usual place
for unloading cargoes. (2 Sir., 1244.)
The peculiar hazard and exposure of the
outer harbor, during the necessary detention
there, must be considered one of the principal
perils insured against ; for in no part of the
voyage, probably, was the vessel exposed to
equal danger.
The underwriters were expressly informed
by the assured, before they signed the policy,
that the schooner would have on board some
negroes bound for the Havana. They must be
presumed to know the usages of the destined
port, and every other fact material in calculat-
ing such a risk.
It is very questionable, from the evidence in
the case, whether any delay was occasioned by
the having negroes on board, for the violence
of the storm was so great from her first arriv-
al until her loss, that the necessary visitation,
required by the regulations of the port, could
not be made ; and the risk could not be said to
be ended, as long as the delay was occasioned
by one of the perils insured against.
*The defendants seek protection [*JiO4
under the special clause in Ihe policy, viz.:
" Warranted free of loss if not permitted to
entry in consequence of having negroes on
board ; " and the only remaining question is,
whether the vessel failed to complete her voy-
age in safety, by reason of " not being permit
I6S
364
SUPREME COURT, STATE OF NEW YORK.
1814
ted to entry in consequence of having negroes
on board."
I think the cause of loss intended to he
guarded against, and excepted hy these poli-
cies, did not occur in this case. The terms
"not permitted to entry," mean custom-house
entry. The parties had in view the possibility
that the entry of vessels with negroes on board
might be interdicted by the laws of that port ;
not that the Minerva should be exempt from a
compliance with the customary port regula-
tions, as to the mode and place of discharging
such a cargo.
There was no such interdiction in this case.
By the laws of Havana, vessels having negroes
on board were "permitted to entry;" and
while going through the forms necessary and
usual for that purpose, the vessel and cargo in-
sured were destroyed by the tempest, before
they arrived at the end of their voyage. The
plaintiff is entitled to recover.
Judgment for the plaintiff.*
Cited in— 104 Mass., 514.
365*] * JACKSON, ex dem. LIVINGSTON ET
AL.,
v.
DE LANCET AND RU8SEL.
1 . Mortgage — Forfeiture — Judgment — Revivor —
Entry — Presumption of Payment. 2. Wills —
Devise of Estate Passes Real and Personal
Estate — Words of General Description Suffi-
cient— Debt and Mortgage may Pass by General
Words.
A, in 1770, being indebted to B by three several
bonds, in order to secure the payment of the same,
executed to B a mortgage on all his lands within
the Province of New York, part of which lands
were referred to by name, and part, comprising the
premises in question, passing under a general
clause, and covenanted that on default the mortga-
gee, his heirs, &c., might enter. B died, having di-
rected by her will all her estate in certain patents
and elsewhere, wheresoever and whatsoever, to be
turned into money by her executors, and to be
equally divided among her five children, who were
to be tenants in common in fee of the realty, until
such sale and distribution.
In 1771, before the death of B, the mortgage had
become forfeited, and a judgment had also been re-
covered by B against A, which was revived in 1775,
and in 1788 was again revived by the executors of B
against the heirs and terre-tenants of A, and execu-
tion issued thereon, and the premises in question
sold and conveyed to C, who had married one of the
daughters and devisees of B, the validity of which
conveyance, however, was questionable, and was
not regarded as part of the defendants' title. Two
other of the devisees of B conveyed their share of
the premises, thus purchased, to C, and in 1790 he
took possession, and the tenants attorned to him.
In an action of ejectment, by persons claiming
under A, it was held that the debt and mortgage
passed by the general words in the will of B ; that C
must be deemed to have taken possession on behalf
of the devisees, for the forfeiture of the mortgage,
and that the attornment was valid.
That, alt hough the mortgage was forfeited as long
ago as 1771, it was still outstanding, the presump-
tion of payment being rebutted by the proceedings
1.— See Horneyer v. Lushington, 15 East, 46, and
Bell v. Bell, 2 Camp., N. P., 475.
NOTE.— Mortgage— Presumed satisfied, when.
In absence of entry by mortgagee, foreclosure or
payment of interest for twenty years, the mort-
gage is presumed satisfied. Jackson v. Pratt. 10
Johns., 381, note.
184
had to revive the judgment (which judgment bad
been recovered on two of the bonds recited in the
mortgage), and the sale under the execution, not-
withstanding these proceedings and that sale might
have been defective; and that from 1771 to 1790,
when C took possession, after deducting the period
of the Revolutionary War, there had not been suffi-
cient time on which to found a presumption, and
that, consequently, the mortgage was a good out-
standing title, and sufficient to protect the defend-
ants' possession, independent of the sheriff's deed.
Words of general description, in a deed or mort-
gage of land, are sufficient to pass the grantor's es-
tate ; thus, a grant of lands in the patent of B, and
of all other lands belonging to the grantor, in the
Province of New York, will pass the residue of his
lands in New York.
But it seems that in a sheriff's deed the land must
be defined.
A devise of the testator's estate generally passes
both real and personal estate, and may include a
debt and mortgage.
Citations— 6 Cruise, 231, sec. 113; 1 Atk., 605, in
note ; 2 P. Wms., 198 ; 8 T. R., 118 ; 8 Ves., Jr., 417 ; 5
Ves., Jr., 339 ; 4 T. R., 682.
THIS was an action of ejectment for lands in
the town of Plattekill, in Ulster County,
tried before Mr. Justice Van Ness, at the Ulster
Circuit, in November, 1812.
The plaintiff's counsel, in support of the title
of the lessor, gave in evidence a lease of the
premises in question, for twenty-one years,
from Nathan Miller to Andrew Gee, dated the
1st of March, 1785; a lease from Nathan Miller
to Cornelius Gee and James Owen, dated the
1st of April, 1802. In the last-mentioned lease,
the premises are described as the "certain farms
or tracts of land whereon the said Cornelius
Gee and James Owen now live and occupy in
the precinct of Marlborough, being the prop-
erty of William Alexander, Earl of Stirling,
but now in the care and possession of the said
Nathan Miller."
It was proved, by parol, that Nathan Miller
always declared and admitted the tract of
land, about 1,000 acres, in his possession, of
which the premises in question were a part, to
be the property of Lord Stirling. It was also-
proved that Catharine Neilson, the wife of
William Neilson, who were also lessors, was
the daughter of Lord Stirling, and during th&
Revolutionary *War married William [*3OO
Duer, Esq., who died in the spring of the year
1799.
The defendants then gave in evidence as fol-
lows :
1. An exemplification of a judgment in
favor of Anne Waddell, against William Al-
exander, Earl of Stirling, for £7,774, signed
the 28th of March, 1771.
2. An exemplification of a judgment reviv-
ing the former judgment, in favor of the exec-
utors of Anne Waddell, against Lord Stirling,
signed the 23d of August, 1775.
3. An exemplification of a judgment, reviv-
ing the same judgment, in favor of the execu-
tors of Anne Waddell, against the heirs and
terre-tenants of Lord Stirling, signed the 7th of
May, 1788, and a scire facias, directed to the
sheriff of New York.
4. An exemplification of a test. fi. fa. on the
last-mentioned judgment, directed to the sheriff
of Ulster County, tested the 30th of April,
1788, with the sheriff's return indorsed
thereon, that he had levied and sold the land
and tenements of William Alexander, Earl of
Stirling, deceased, in his bailiwick, to the
amount of £100.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. DE LANCET.
5. A deed for the same lands dated the
10th of June, 1788. from the sheriff of Ulster
to John Taylor. This deed recited the tt*t. fi.
fa., sale at auction, &c., and conveyed to Tay-
lor, as the highest bidder, a tract of land near
the Wallkill, particularly described, contain-
ing 3,000 acres of land, and the equal moiety
of several lots, particularly described in the
Hardenbergh patent, the whole containing by
estimation, about 20,262 acres.
The premises in question are not particular-
ly described, but are supposed to pass under
the general description which follows the de-
scription of the tracts mentioned in the deed,
as follows : "And, also, other the lands, ten-
ements and hereditaments whereof the said
William, Earl of Stirling, was seised on the
said 26th of June, 1771, or at any time after-
wards, within the County of Ulster, whether
held in severally, or in common with others,
and all the estate, right, title, &c. , of the said
William, Earl of Stirling, of, in or to the
same."
Anne Waddell left five children — William,
Henry, Mary, Anne and Sarah. Mary, the
eldest daughter, married John Taylor; Anne
married Eleazer Miller, and after his death,
John Tavlor; and Sarah married Joseph Tay-
3O7*] lor. John Taylor died in 1803 *or
1804. and left six children, of whom Anne De
Lancey, one of the defendants, is one. Will-
iam Waddell, the eldest son of Anne Waddell,
is still living, and resides in England.
6. The defendants then gave in evidence a
mortgage from Lord Stirling to Anne Wad-
dell. dated the 2d of December. 1770, reciting
several debts due to her, to wit : by a bond
executed by Lord Stirling and Philip Living-
ston, in 1763 ; a bond executed by Lord Stir-
ling himself, in 1766, which was secured by a
mortgage on a house, &c. , dated the 2d of De-
cember, 1766; and also, a bond bearing even date
with the present mortgage, the whole amount
of which debts were £5.043. 16*., for further
securing the -payment of which, with the in-
terest, Tie mortgaged "all and every those
shares, lots and parcels of land, and all other,
the lands, tenements and hereditaments and
estate or estates whatsoever of the said Will-
iam, Earl of Stirling, whereof he is seised in
common, or separately and alone, in those sev-
eral tracts of land called the patent of Cheese-
cocks, in Orange County ; Hichbell's patent in
the County of Westchester, in Provoost's pat-
ent, and Mini-ink patent, in the County of
Ulster ; and in Hardenbergh patent, in the
Counties of Albany and Ulster ; and all other
the lands, tenements and hereditaments be-
longing to the said William, Earl of Stirling,
within the Province of New York." By the pro-
viso or condition, the mortgage was to be void
on the payment of the sum of £5.043, 16*., on
or before the 2d of December, then next, with
interest, &c., and the mortgagor covenanted
to pay the money, &c. , and that the mort-
gagee and her heirs, &c., might at all times,
after default made in the proviso, peaceably
and quietly enter into, have, hold, occupy,
possess and enjoy the premises, without any
let, &c. It was admitted that the premises in
question were not included in any of the pat-
ents particularly mentioned in the mortgage ;
but Lord Stirling being seised of the premises
JOHNS. REP., 11.
in question, at the date of the mortgage, they
were supposed to pass under the general clau.se
contained therein.
7. A probate of the will of Anne Waddell,
dated the 29th of March, 1773, in which she
directs her executors "to collect with all con-
venient speed, the one third part of the estate
left her by her husband, and all the interest
money since accrued. Arc., and all outstanding
debts of every kind; and this, with all the rest
of my estate in Hardenbergh patent, and else-
where, 'whatsoever and wheresoever, [*U<}8
shall be turned into money by my executors,
and be equally distributed among my five chil-
dren, share and share alike, who are to be ten-
ants in common in fee of the realty, until such
sale and distribution shall be made ;" and the
testatrix gives to each of her executors £75 for
his trouble.
8. A deed from Henrv Waddell to John
Taylor, dated the 2d of 'February, 1788. A
deed from Eleazer Miller and wife to John
Taylor, dated the 21st of February, 1789.
9. A power of attorney, dated the 12th of
February, 1789, to Ichabod Williams, execut-
ed by Samuel Brunson, as the attorney and
agent of John Taylor, authorizing him to take
possession of the tract of land of 1,000 acres,
of which the premises in question are part, for
John Taylor. And it was proved by a wit-
ness, who lived near the premises in question,
that at the time the above-mentioned power of
attorney was executed, Russel, one of the de-
fendants, was in possession ; that Brunson,
Nathan Miller, Russel, and several more of
the tenants on the same tract were also there.
Brunson acted as the agent of Taylor, and
Miller, after some difficulty, agreed to give up
the possession of the whole tract to Brunson ;
and all the tenants present, including Russel,
the defendant, came in under Taylor, and have
held under him ever since.
The defendants gave in evidence an agree-
ment, dated 7th of June, 1791, and executed
by the tenants, under their hands and seals, by
which they acknowledge themselves to hold
possession under John Taylor ; and it was ad-
mitted on the part of the plaintiff that from
the date of that agreement the lauds have been
held under John Taylor and his heirs.
The counsel for the plaintiff then produced
and proved the last will and testament of Will-
iam, Earl of Stirling, dated the 29th of Janu-
ary, 1780, by which he gave all his real and
personal estate to his wife Sarah, to her. her
executors, administrators and assigns, and in
case of her death, without giving, devising or
bequeathing by will, or otherwise selling or as-
signing the same, &c. ; then he devised to his
daughter, Lady Catherine Duer, all such es-
tate, and all such parts thereof, as shall remain
undevised or un bequeathed by his wife.
At the request of the defendants' counsel,
the plaintiff also produced the will of Sarah A 1
under, widow of Lord Stirling, dated the 27th
of November, 1804, by which, after giving
some 'legacies, she devised all theresi- [*ttOf>
due of her estate, real and personal, whatso-
ever, to Brockholst Livingston and Mathew
Clarkson, as trustees of the several trusts ex-
pressed in the will.
A verdict was taken for the plaintiff, by
consent, subject to the opinion of the court on
Is.",
3G9
SUPREME COURT, STATE OF NEW YORK.
1814
the above case ; the written documents to be
referred to on the argument.
The following points were raised by the
counsel for the plaintiff •
1. That the proceedings to revive the judg-
ment against the heirs and terre-tenants of Lord
Stirling were void.
2. That the premises in question did not
pass by the sheriff's deed to John Taylor,
3. That the attornment of Miller and Rus-
sell to John Taylor was void.
4. That the lessors are not barred by ad-
verse possession.
5. That the mortgage by Lord Stirling to
Anne Waddell cannot be set up as an out-
standing title.
As the opinion of the court is chiefly con-
fined to the validity of .the title under the
mortgage, it is not necessary to state particu-
larly the arguments of the counsel on the other
points.
Mr, T. A. Emmet (Mr. J. Duer, same side),
for the plaintiff. The mortgage was payable
one year after its date, the 3d of December,
1771. From the lapse of time, therefore, the
presumption is that the debt was paid. It may,
perhaps, be said that the judgment was on the
bond, for the security of which the mortgage
was given, and which judgment has been re-
vived ; but the judgment and mortgage are
for different sums ; and there is a difference
also in the parties, one of the bonds being giv-
en by Lord Stirling, jointly with Philip Liv-
ingston. The revival, .therefore, of the judg-
ment does not repel the presumption that the
mortgage has been paid.
Again; the mortgaged premises did not pass
by the will of Anne Waddell. It is settled
that by the general words "lands, tenements
and hereditaments" in a devise, a mortgage in
fee, though forfeited, will not pass, if the tes-
tator has other property to which those words
will apply. (Vernon, 621 ; 1 Vernon, 4 ; 1
Atk., 605 ; 2 Ch. Gas., 51 ; 1 Bro., P: C., 228;
Powell on Mortg., 683,694, 698; 2Equ. Cas.
Abr., 595 ; Free, in Ch., 11 ; 6 Cruise's Dig.,
211 , tit, 38, ch. 10, sees. 113, 115.) A mort-
gage, though in name and appearance it would
seem real estate, is, in reality, a mere pledge,
and passes as personal property. On princi-
ple, a mortgage, where the mortgagee is out of
possession, ought never to pass as real prop-
erty. If it was a mere pledge there was no
37O*] ^possession under it. The children of
Mrs. Waddell had no right to enter as devisees;
nor can their conveyance of the property be
operative.
Again; the testatrix directs that all the chil-
dren shall hold as tenants in fee until a sale by
the executors. (1 Ch. Cas., 51 ; 2 Ch. Cas.,
29, 50 ; Powell on Mortg., 684 and 1047.) Now
William Waddell, her eldest son, never joined
in the conveyance ; the lessors, therefore, must
recover one fifth part.
By the statute (1 N. R. L., 443, sess. 36, ch.
63, sec. 28), all attornments by tenants to
strangers are declared void, unless made pur-
suant to some judgment at law or decree in
equity, or with the privity or consent of the
landlord or lessor, or to a mortgagee after the
mortgage is forfeited. The attornment, then,
should have been to the mortgagee, or to the
legal representative of the mortgagee. Now
186
William Waddell was the heir at law of the
mortgagee.
Nor was the attornment made with the con-
sent of the landlord. Nathan Miller was not
the landlord ; he was himself the tenant of
Lord Stirling. He was not the owner of the
reversion or lord of the fee. The recital in the
deed of attornment shows that he did not pre-
tend to be landlord It would be in fraud of
of the statute to allow a tenant to surrender a
lease to a stranger, and then attorn to another
and take a new lease. The statute is remedial,
and should be liberally construed.
Unless the possession can be connected with
the legal title under the mortgagee, there can
be no adverse possession. The possession here
commenced in tenancy or in fraud. Should it
be said that it is enough if the party in posses-
sion claims title, though the title may be bad
(9 Johns., 174), yet, still, the possession must
be adverse from the beginning ; but a title
commencing in tenancy cannot become ad-
verse.
Again, here was a lease and possession under
it, and Lord Stirling, or his heirs, had no title
to the possession until after the lease expired.
It is true the lease would be forfeited by the
attornment, yet the lessor is not bound to take
advantage of a forfeiture. (7 East, 321 .)
Again, Lady Stirling had a particular estate
for life (4 Term, 448 ; 5 Mass., 500 ; 10 Johns.,
19) in the premises, and, until the determina-
tion of that estate, there can be no adverse
possession. (Jackson v. Schoonmaker, 4 Johns.,
390.)
It will, perhaps, he said that the defendants
have shown a title out of the lessor of the
plaintiff, and that is enough. But if the at-
tornments to John Taylor were void, the title
of the *defendants is derived from the [*37 1
tenants, and they can take no other or better
title than such tenants possessed.
Though the case of Bartow v. Pegge, 1 Term,
758-760, note, has since been overruled (2
Term, 684), yet the principle there laid down
by Buller, J,, has never been disturbed. He
lays it down as clear law that a tenant can-
not set up the title of a mortgagee against
the mortgagor, because he holds under the
mortgage, and has admitted his title. This
principle was recognized by this court, in
Hitchcock v. Harrington, 6 Johns., 200, and
Collins v. Torry, 7 Johns., 278. In the last
case the court went even further, and would
not allow a stranger to defend his posses-
sion by showing a subsisting mortgage by the
lessor.
Messrs. I. Emott and 8. Jones, Jr., contra.
We do not think it necessary, at present, to
draw into discussion the validity of the pro-
ceedings under the judgment, or of the sheriff's
sale ; nor to inquire as to the precise nature of
the estates derived by Mrs. Alexander, or Mrs.
Duer, under the will of Lord Stirling.
The strong, and, as we contend, unanswer-
able objection to the plaintiff's right of recov-
ery is, that there is a subsisting and outstanding
forfeited mortgage by Lord Stirling, and which
is held by the defendants, which must be a
complete shield and defense to them, until the
lessors of the plaintiff come in and redeem the
mortgage.
There were three bonds of Lord Stirling, one
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. DE LANCET.
371
of which was already secured by a previous '
mortgage, and the mortgage in question was
a security for the two others, as well as the '
tir-i. The judgment was, no doubt, for the
amount of those two bonds. The premises in
question are not included in the parcels of I
land particularly described, but passed under
tin- sreneral words. Such general description j
has been held good in England. If a man
bargains and sells all his lands in !>.. all his
houses, woods, &c., will pass. (4 Co., 876 ;
Cro. Eliz., 476, 477; 2 Roll. Abr.. 49. 57 ; j
Owen, 75 ; Noy, 49 ; Cro. Eliz., 805 ; Perkins,
B, 114.)
Here is a mortgage in fee, forfeited and out- 1
standing, which may be used by the tenant in
-sion (though he cannot connect himself
with the mortgagee), to defend that DOOMS
sion. (2 Term, 684 ; 7 Term. 43-48 ; 5 East,
188.)
But John Taylor, and the defendants under
him are, in fact, connected with the mortgagee.
The mortgagee died leaving five children.
Henry Waddell, one of the heirs, conveyed to
.lohn'Taylor the 2d of February, 1788. The
:*72*] sheriff's deed *was dated the 10th of
June, 1788. Taylor entered under the title
derived from the mortgage, not under the
.-hcriff's deed. The deed recites the mortgage,
and conveys all the right, title and interest of
the grantor under it. Similar deeds were exe-
cuted by two other children, so that Taylor,
beside the right of his wife, held the rights of
three of the heirs of the mortgagee.
If Mrs. Waddell had died without a will, her
«ldest son (William) would, as her heir at law
have taken all her estate, but as trustee to the
executors, or persons entitled to the personal
estate, who are all the children. If there had
been no will nor debts, and the personal repre-
sentatives had taken possession of the mort-
gaged premises, could the mortgagor turn them
out of possession, merely because the heir at
law had the legal estate ?
But there is, in fact, a will, which establishes
a connection between the defendants and the
mortgagee. The word " estate" is used by the
devisor in its most extensive sense. She devises
all her estate to her five children. This included
the debt and mortgage of Lord Stirling. It
was rtie manifest intention of Mrs. W. that her
property should go to all her children equally,
and not to the heir at law. A mortgage is an
interest or estate, capable of being devised ;
and if sufficient words of description are used,
the land or subject pledged, as well as the
money secured by it, will pass. (Powell on
Mortg.. 438 ; 2 P. Wms., 198 ; Co. Lit., 2086,
and note 96.)
Though the legal estate may have been in
the heir at law, yet the children, being in
[,,,s^.^j,,n. .-mil h:ivillLr II l»-!U-|ii-i:i! illt.Tr-t.
they may protect themselves by the mortgage.
It makes no difference whether the interest is
that of a devisee, or centui que tru*t.
It is said the court will presume that the
mortgage has lieen satisfied by the payment of
the debt ; but there is no such presumption,
and no proof of payment has been shown or
pretended. In regard to judgment debts, there
can be no presumption of payment from lapse
of time. The judgments are legal debts to this
day.
JOHNS. REP., 11.
Again, the leases of Miller were subsequent
to the mortgage, and are, therefore, in regard
to the mortgage, void. (Doug. 21 ; Powell on
Mortg., 226.) It is unnecessary, therefore, to
discuss the doctrine of attornment. for the
persons in possession became tenants to the
mortgagee, *and to the defendants [*373
claiming under her. But. in truth, the attora-
ments were legal and valid.
Again, twenty-three years elapsed from the
time Taylor took possession to the commence-
ment of this suit. It is enough that he entered
under color of or claiming title, for though it
were a bad title, still the possession is adverse.
He entered, not under Lord Stirling, but a*
owner, and on the faith of his having a good
title he took the attornment of the tenants. It
is said that the limitation will not run, because
Mrs. AlexanckT.under the will of Lord Stirling,
had a particular estate for life in the premises.
But we contend that under that will the wife
of Lord Stirling took an estate in fee. (9 Johns.,
222; 10 Johns., 19)
Mr. T. A. Eminet, 1n reply, said the pre-
sumption against its being an unsatisfied mort-
gage, arising from the lapse of time, was
strong, and the evidence to repel that presump-
tion ought to be clear and satisfactory. The
defendants cannot cover themselves with this
mortgage. The heir at law is not a tnistee to
the children, but to the executors and admin-
istrators of the testatrix, who directs the whole
of her estate to be sold and converted into
money. This shows, most clearly, that she
did not intend that her children should have
any concern with the real estate, but merely to
recover their shares of the proceeds in money.
The general words of the will will not pass an
estate out of the possession of the devisor.
The mortgage was intended to go as personal
property to the executors, and to be collected
by them among the debts.
YATES, J., delivered the opinion of the
court :
I do not think it necessary to examine into
the correctness or legality of the proceedings
to revive the judgment against the heirs and
terre-tenants 01 Lord Stirling; nor whether the
premises passed by the sheriff's deed under
that judgment, because the counsel for the de-
fendants, on the argument, disavowed to claim
under it.
The question, then, is as to the validity of
the title under the mortgage given by Lord
Stirling to Anne Waddell.
The general description in this mortgage is
liable to no objection ; a party connusant of his
rights may sell or mortgage, by general de
scription. though an officer must define what
he sells.
*It was stated on the argument that [*II74-
the proof of the will of Anne Waddall was in
sufficient, and ought not to have been re-
ceived as evidence of its title ; it was read on
the trial an a link in the defendant's title,
without objection, which might otherwise
have been obviated. It is now too late to
make it. The will, therefore, for the purposes
of this argument, must be considered as duly
proved.
By this will. Anne Waddell directs her ex-
ecutors to collect, with all convenient speed,
18?
374
SUPREME COXJUT, STATE OF NEW YORK.
1814
the one third part of the estate left her by her
husband, and the interest money since accrued
and due to her or to grojv due, and all out-
standing debts of every kind, and this, with
all the rest of her estate in the Hardenbergh
patent, and elsewhere, whatsoever and where-
soever, to be turned into money by them, and
be equally distributed among her five chil-
dren, share and share alike, who are to be ten-
ants in common in fee of the severally until
such sale and distribution be made. The tes-
tatrix then gives £75 to each executor for his
trouble, Sec.
The words, as used, are not particularly ap-
propriated to the conveyance of real estate,
but are applicable to both personal and real ;
it is all her estate whatsoever. (6 Cruise, 231,
sec. 113; 1 Atk., 605, in note ; 2 P. Wms.,
198; 8 Term, 118; 8 Ves., Jr., 417; 5 Ves.,
Jr.. 339.)
The term "estate" evidently applies to all
kinds of an estate ; the debt and mortgage,
consequently, passed by this devise ; and as to
her real estate, the fee was intended to be
vested in all her children, as tenants in com-
mon, until distribution made between them;
so that it clearly appears never to have been
the intention of the testatrix that William
Waddell should hold as trustee. If this is the
true interpretation of the will, to whom ought
the tenants to have attorned but to the chil-
dren of Anne Wad dell, whose legal represent-
ative, John Taylor, was, as appears by the re-
spective conveyances in evidence, at least
sufficiently so, to give force and validity to
the transaction ? But admitting that the le-
gal estate, created by the forfeiture of the
mortgage, did not pass by the will, and that
it descended to her eldest son William, as heir
at law, who in such case could hold it only as
trustee for the executors, and, if no debts ex-
ist (which, for aught that appears, is the fact
in this instance), for the other children. It
then might well be questioned whether the
possession has not been long enough to presume
375*] a deed from William, who has *slept on
his rights since 1791 ; and the case of England,
ex dem. Syburn, v. Slade, 4 Term, 682, will
support this doctrine ; but without enforcing
this principle, there can be no doubt that
John Taylor entered as well under the mort-
gage as under the judgments upon all or
come of the debts due by Lord Stirling to Mrs.
Waddell, also secured by the mortgage. If,
then, an attornment, after the mortgage be-
came forfeited, is authorized by statute to a
mortgagee, it is equally valid in this case, as
the possession by John Taylor must be deemed
to have been taken for all the heirs, who can-
not be treated by the mortgagor as strangers,
and be turned out of a possession, obtained
under a mortgage thus held for their benefit,
forfeited before such possession was taken,
and evidently unsatisfied.
That possession was taken several years
subsequent to the forfeiture cannot be dejried.
It was, in fact, forfeited previous to the Rev-
olutionary War, long before the date of Anne
Waddell's will ; and the possession was taken
subsequent to her death. To show that this is
an outstanding mortgage, it is only necessary
to advert to the documents and evidence be-
fore us ; and although the proceedings to re-
188
vive the judgments may be deemed insuffi-
cient in law, to support the sale under them,
by the sheriff of Ulster County, yet they are
evidence to show the conduct and under-
standing of the party, in relation to the debt,
in order to rebut the presumption of payment,
by lapse of time and acquiescence.
That such presumption cannot exist, in this
case, is evident. The judgment obtained in
March, 1771, must prevent it. But it is said
that this judgment is not for the same debt,
and, therefore, disconnected with the mort-
gage. This cannot be the case ; the contrary
inference is irresistible. The circumstances
in evidence will not admit of a doubt that the
judgment is on two of the bonds recited in the
mortgage, and that the debt is in fact the
same. This alone ought, perhaps, to be
deemed sufficient to repel the presumption of
payment ; but it also appears that proceedings
were had in 1775 and in 1788, to revive this
judgment, and that, in 1790 John Taylor took
possession of the premises, and the tenants at-
torned to him ; so that, instead of acquies-
cence until this period, the greatest attention
and vigilance are evinced. But without no-
ticing the proceedings to revive the judgments,
the lapse of time from the 2d of December,1771,
the period when the mortgage became due, to
the 7th of April, *1790, the time John [*376
Taylor took possession, is not long enough to
presume payment; and deducting the period
of the war, from the 14th of October, 1775, to
the 21st of March, 1785, which ought to be
done as being conformable to the rule adopted
in the statute of limitations, it is wholly in-
sufficient. Subsequent to 1790 Mr. Taylor, as
the claimant under the representatives of
Anne Waddell, supposed himself secure in
the possession of the property, if not on the
ground of title under the sheriff's deeds, at all
events under the mortgage, until it should be
paid off, and he ought not now to be disturbed
in it.
It might, perhaps, be insisted that the entry
on the premises by Mr. Taylor, while in pos-
session of the sheriff's deed, in 1790, was un-
der color of title ; and that such entry was
made by him as owner of the land, under a
belief that the deed extinguished the equity of
redemption ; and that the premises having
been thus adversely held by him and his heirs
for upwards of twenty years the remedy in
this action is lost. To determine the character
of this possession involves a question as to the
extent of the devise to Lady Stirling, con-
tained in the will of Lord Stirling whether it
gave an estate for life or fee simple. Although
in my view, there can be little doubt as to the
true construction of that devise; and conse-
quently, of the nature of the defendant's pos-
session, the inquiry, in this instance, is ren-
dered unnecessary by the conclusive evidence
that the mortgage, under which they held the
premises in question, is outstanding, and, of
course, sufficient to protect them in this action.
Without, therefore, giving an opinion as to
the right of the lessors to redeem, which can-
not be made a question here, we are of opin-
ion that the defendants are entitled to judg-
ment.
Judgment far the defendants.
JOHNS. REP., 11
1814
VAN BHCNT ET AL. v. SCHENCK.
376
Afflnned— 13 Johns., 536.
UiatinKuished-44 Super., 92.
Cited in 1-' Wend., ^41 ; 22 Wend., 139; 1 Sand..
uTI: 2 Abb. Pr., 314; 3 Lug. Obs.. 209; 70
Mo., 38.
:*77*]*VAN BRUNT ETAL. t>. SCHENCK.
1. Seizure of Vessel, by Customs Officers, under
•' of Congress— Discharge. 2. Trespass
doe* not Lie for Chattel* Held iMwfully—
Customs Officers not Liable for Each Other's
Act*— Cannot be Maintained by one who has
not Actual or Constructite Poiuesxion.
The vessel of A was seized by B, an officer of the
:ns, under the revenue laws of the United
States: who reported the seizure to the collector
of the customs, who directed him to detain the
vessel. While the vessel was thus under seizure,
Mini in the custody of B, s, who was a surveyor of
tin- |>ort, and Interested with tho other officers of
th.- rii-tmns, in all seizures, with consent of B
use of the vessel In transporting bis own
goods, for two days, and then returned her again
into the custody of B at the i>l:i.-c from whence
gh<* wit -i taken.
Tin- vessel being libeled in the Instance Court,
wmssold by order of the court ; and on bearing af-
.'•'K, was acquitted, and the proceeds of the
sale ordered to be paid over to A, who, however,
declined to receive them.
Tin- judgment of the court was accompanied with
a oerlineafc' of probable cause of seizure, agree-
ably to the Act of Congress of the 2d of February,
1807. (Laws of the United States, Vol. VIII., p.
m.
\ brought an action of trespass against S. It
was held that S, not being implicated in the first
taking, either as an actor, or standing in such re-
lation to B as would make him a party in the act
of seizure, could not be made a trespasser ab initio.
That A had not, after the seizure, and at the time
that S. made use of the vessel, the possession of
her, ora right to reduce her to his actual posses-
sion, which was essential to maintain an action of
trespass. It seems that the leave given to S by B
to take the vessel, and use her, would not make B
a trespasser al> initio, so as '.thereby to re-inveat A
with his right of property, or right to reduce the
Teasel into his possession.
Citations— Kiel, 3, ch. 20: Viner, 4flO, 2 p. 1; 1 Chit.
PI.. 173; 8 Johns., 432: 4 T. R., 483; 7 T. R., 11 ; Com.
I >ix.. Trespass, D. :««; Br. Tres.. 358; 30 Vin., 4«2,
K, 3, p. 1 : 3 fai.. 261 ; 3 Cai., 250; 4 Johns., 511 ; 3
Johns.. 483; 2 Saunders, 47, note ; 1 T. K., 475; 7 T.
R.. 9; 4T. R., 489; 8 Rep., 145; 10 Johns., 369; Cro.
Bliz., K24 ; 3 Day's Rep., 277. 498; 2 Campb. Cas., 464;
Cro. Eliz., 329; 1 Siderfin, 438, note.
THIS was an action of trespass, tried before
the late Chief Justice, at the New York
.sitting, on the 2d of December, 1818.
The declaration stated that the defendant,
on the 6th of October, with force and arms,
Ac., at the City of New York, seized, took
and carried away a certain schooner, or vessel
called the Nancy, &c., belonging to the plaint-
tiffs, of the value of«$2,500, and converted and
disposed of the same to his own use, &c.
The defendant pleaded the general issue.
It was proven at the trial that the schooner
\imcy. owned by the plaintiffs, was seized by
the officers of the government of the United
States: that on the 27lh of October, 1809,
while the schooner was so under seizure, and
in possession of the officers of the United
States, he took the vessel, or directed his
agent to take her, from the place where she
lay, at Coenties Slip, in the City of New York,
to go with her to Homes' Hook, about eight
miles from the City, and bring some furniture
from the country seat of the defendant to the
JOHNS. Use., 11.
City. That the vessel was accordingly taken,
on the 27th of October, and was not returned
to the place from whence -In- was taken until
the 29th of the same month. It was proved
that the defendant afterwards acknowledged
that the vessel was taken by his direction, for
the purpose of bringing his furniture from the
country , and that he offered to pay the
plaintiffs for the use of the vessel, on that
occasion, which the plaintiffs declined to re-
ceive, but referred the defendant to their at-
torney. The vessel, at the time of her seizure,
was worth about $600. The defendant, at the
time of her seizure, was one of the officers of
the customs, at the City of New York.
On this evidence being given the defendant
moved for a nonsuit, which was refused by the
Chief Justice.
*The defendant then offered to prove [*378
that William Van Beuren seized the vessel with-
out orders from the defendant, and reported
to the collector of the customs, Mr. Gelston,
what he had done, who directed Van Beuren to
detain the vessel ; that the defendant made use
of the vessel as above stated, with the permis-
sion of Van Beuren, and with the knowledge
that she was so seized. That the vessel was
afterwards libeled and sold by order of the
District Court of the United States, and was
afterwards acquitted, and the proceeds of the
sale ordered to be paid to the plaintiffs. The de-
fendant offered to show these facts, by the
judgment and decree of the District Court ;
and also, that a certificate of probable cause
had been given.
The Chief Justice rejected the whole of the
evidence offered by the defendant as inadmis-
sible, either in justification or in mitigation of
damages, and ruled that the improper use of the
vessel by the defendant while she was under seiz-
ure and in the custody of the officers of the
government of the United States, rendered the
defendant liable as a trespasser ab initio, and
that he was answerable to the plaintiffs for the
value of the vessel at the time of the seizure ;
which opinion was excepted to by the defend-
ant's counsel.
The only evidence admitted by the Chief
Justice being as to the value of the vessel, the
point was submitted to the jury under his
charge, and the jury found a verdict for the
plaintiffs for $600.
A motion was made to set aside the verdict,
and for a new trial, on the ground of the mis-
direction of the judge.
Mr. C. Baldwin, for the defendants. It was
not proved at the trial that the defendant made
the seizure by himself, or his agents, directly
or indirectly. On the contrary, the defendant
offered to prove that Van Buren made the
seizure without any direction or authority
whatever from the defendant ; and having
made report to his superior officer the collector,
he confirmed the seizure and ordered the vessel
to be retained. The collector then, not the de-
fendant was the person against whom the plaint-
iffs should have brought their action. Because
the defendant is an officer of the custom-house
of the United States, it does not follow that the
seizure was made by him or his agent.
*To maintain trespass the plaintiff [*37O
must show that he had the actual or construct-
ive possession of the thing at the time the tres-
189
379
SUPREME COURT, STATE OF NEW YORK.
1814
pass complained of was committed. (Putnam
v. Wyley, 8 Johns., 432.) Now, at the time
of the alleged trespass, the vessel was under
seizure by order of the collector, and was
in the custody of the law as forfeited. The
plaintiffs had neither the actual nor the con-
structive possession of the vessel, nor any right
of possession capable of being reduced into an
actual possession. .
But it will be said that the act of the defend-
ant, being unlawful, has relation back to the
time of the original seizure, and that by such
relation the plaintiffs were constructively in
possession of the vessel. This doctrine of re-
lation, so as to make a party a trespasser ab
initio, applies only in cases of taking cattle
damage feasant or abusing a distress, in which
case the property is held as a pledge merely,
and the title of the owner or tenant is not de-
vested. But in a case like the present, of a
seizure for forfeiture under the revenue laws,
the title of the owner is immediately devested
and wholly gone from him until a decree of
restitution. The title of the government, or
of its officer, arising from the forfeiture and
seizure, is not affected by any abuse of the
property in the intermediate time. So that the
doctrine as to trespassers ab initio does not
apply.
If a decree of restitution is made, the orig-
inal owner may have his action against the
person who made the seizure for any injury
done to the property seized. If, however, the
decree of restitution is accompanied with a
certificate of probable cause of seizure, the
officer cannot be made liable in an action of
trespass though, perhaps, an action on the case
might lie against him for any abuse of the
thing while under seizure.
By the eighty-ninth section of the law of the
United States for the collection of duties,
passed the 2d of March, 1799 (Laws U. S. , Vol.
IV., p. 279), it is declared that when any prose-
cution shall be commenced on account of the
seizure of any ship or vessel, &c., and judg-
ment shall be given for the claimant or claim-
ants, if it shall appear to the court before
whom such prosecution shall be tried that there
was a probable cause of seizure, the court shall
cause a proper certificate or entry thereof to
be made; and in such case, the claimant shall
not be entitled to costs, nor shall the person
who made the seizure, nor the prosecutor, be
liable to any action on account of such seizure
or prosecution ; provided the ship, &c.,
be, after such judgment, forthwith returned
38O*] to the ^claimant or his agent. A gen-
eral clause, to the same effect, relative to all
seizures under the authority of the United
States, is contained in the Act of the 2d of
February, 1807. (Laws of U. S., Vol. VIII.,
p. 255.)
Messrs. Brinkerhoff and Wells, contra. It is
a notorious fact that the defendant, who is in-
spector of the customs, is the seizing officer of
the government in this port, and it was so
stated in the libel filed in the District Court.
If he is not to be made liable in this case what
is to become of all the doctrine as to trespass-
sers ab initio, and that in trespass all are prin-
cipals ? It is conceded by the defendant's
counsel that if Van Buren had abused the thing
seized by him, he would have been a trespasser.
190
Now where is the difference whether the thing
is abused by him or, under his permission, by
the defendant, with full knowledge of the
seizure and of all the circumstances ? The de-
fendant, acting with all that knowledge, must
be deemed in the place of the person making
the original seizure.
The general principle of law on this subject
is, that whatever a person, who first acts with
property under an authority or license given
by law, afterwards. abuses that authority or
license, he becomes a trespasser ab initio. (The
Six Carpenters' case, 8 Co., 146; Oxley v. Watts,
1 Term., 12 ; Read v. Harrison, 2 Bl., 1218 ;
Phillips v. Bacon, 9 East, 298, 303.)
Though an abuse of an authority in fact
does not make the party a tespasser ab initio,
yet in the case of an abuse of an authority
given by law in order to save persons who are
the object of it from abuse, the law makes
everything done by him void, and leaves him
in the same situation as if he acted wholly
without authority. (6 Bac. Abr., 559, Tres-
pass, B.) This is a salutary and just princi-
ple, founded on the maxim that the law
wrongs no man ; Actus legis nemini faciat inju-
riam.
In the cases cited, the tortious act of the
bailiff did not affect the rights of the lord, nor
the acts of the sheriff the rights of the creditor.
The government of the United States might
have gone on to have the vessel condemned for
having violated the law; but this would not af-
fect the rights of the plaintiffs against an officer
who has abused the authority given by law,
and is, therefore, liable as if he had no au-
thority.
If, then, the defendant was a trespasser ab
initio, he is answerable for the value of the
thing at the time of its seizure. ( Woodham v.
Gelston, 1 Johns., 134; Attersol v. Stevens, 1
Taunt., 183.)
The defendant, if he pleases, may take the
proceeds in the Admiralty Court to his own
use. By the recovery of the value of the
*vessel against him here, the property [*38 1
will be transferred, and he will have a right
to the proceeds. (6 Johns., 168.)
The certificate of probable cause was prop-
erly rejected by the judge, because it ought to
have been pleaded. Where a party claims the
benefit of an Act, he ought to show that he
has complied with its provisions. The defend-
ant should have shown that the proceeds in this
case had been paid to the plaintiffs.
Mr. Baldinin, in reply, said it was true that
the abuse of the thing taken might make the
party a trespasser ab initio, but that doctrine
did not apply to the case of»a seizure for a for-
feiture by an officer of the government. For,
by the forfeiture, the original owner being de-
vested of the property, the government might
maintain an action for it, and if the plaintiffs
might also bring their action, the defendant
would be subject to two suits for the same act,
which could not be.
The defer-dant did not make the seizure ;
the action, if any can be maintained, should
have been against Van Beuren, for his negli-
gence in suffering the defendant to make use
of the vessel while under seizure.
We admit that the defendant is the surveyor
of the port, and the seizing officer, and that
JOHNS. RFP., 11
1814
VAN BRUKT ET AI.. v. SCHENCK.
381
he was interested in the seizure, but he is,
in all things, subject to his superior, the
collector.
\V«- insist that the defendant, as well as
Van Beuren, are protected from any action of
m-pass by the certificate of probable cause,
th.iii-li they may be liable to an action on the
case for the abuse of the thing.
Under the general issue, anything may be
given in evidence in mitigation of damages.
SPENCER, J. Being of opinion that an ac-
tion of trespass cannot be maintained under
the circumstances of this case, I shall confine
myself exclusively to the consideration of that
question.
The schooner was seized by Van Beuren for
a violation of law, ami the defendant offered
to show that he gave no orders for that pur-
pose, but that Van Beuren, after he had seized
her, reported to the collector what he had
done, who directed him to detain her. Whilst
tin- vessel was lying under this seizure, and in
the custody of the officers of the government,
JJSli*] the defendant, *who was one of the
•in-house officers, with the leave of Van
Beuren, and with the knowledge that she was
thus seized, took her, made use of her for two
days and then returned her to the place from
whence she was taken. It was ruled at the
trial that the improper use of the vessel, while
under seizure, and in the custody of the of-
ficers of the government, rendered the defend-
ant liable for the original seizure, and made
him a trespasser ab initio, and subjected him
to damages, to the value of the vessel at the
time of her seizure.
There are no facts implicating the defend-
ant as an actor in the seizure of the vessel, or
which show the least co-operation by him in
that act any further than the general fact that
he was one of the custom-house officers.
It cannot be pretended that the custom-
house officers are liable for the acts of each
other. Between them the relation even of
master and servant does not exist ; and if it
did, and the defendant was the superior,
which he clearly was not, the acts of Van
Beuren, without his knowledge or assent,
either before or after the act, would not make
him a trespasser. "If my servant, without
my notice, puts my beasts into another's land,
my servant is the trespasser, and not I."
(Kiel.. 8. ch. 20 ; Viner, 460, 2. p. 1.)
Hut it is insisted that the schooner, being in
the custody of the law, the use or abuse of her
by the defendant, though with the license of
the officer who took her, rendered the defend-
ant, and all concerned, trespassers ab initio,
and that, therefore, the plaintiffs can main-
tain trespass against the defendant.
This point is not defensible, unless the de-
fendant is implicated in the first taking, and
thai he is not the facts plainly show. In ev-
ery case to be met with in the'books the court,
in considering who shall be deemed a tres-
passer ab initio for the abuse of a legal trust,
confine the action for such an act to those who
are either the actors in the first taking, or to
such as, by the relation they stood in to the
first takers, made themselves parties by their
assent before or after the act. It would be
palpably absurd to say that a man totally un-
REP., 11.
concerned with the original caption of goods
shall, for an after act to those goods, be
deemed to have originally taken them. Such
absurdity and bad logic is not chargeable to
our law. On a point so clear I have not
thought it necessary to refer to the numerous
cases and elementary writers on the action of
trespass. (1 Chilly's PI., 173.)
•Still, however, it is contended that [*38»
Van Beuren. having no right to use the vessel,
could impart none ; and the plaintiffs having
the general property, possession followed it,
and thi.t both uniting, fhey could maintain
trespass against the defendant, and more es-
pecially, as the defendant knew the vessel was
under seizure.
It is, undoubtedly, a well-setlled rule, that
to enable a party to maintain trespass, whether
upon lands or on goods, he musl have either
the actual or constructive possession at the
very lime of Ihe commission of the injury.
This point came under full consideration in
Putnam v. Wyley, 8 Johns., 432. We there
approved of the decision in Ward v. Mar.au-
lf.V, 4 Term, 483, and said "that case was
no more than a recognition of the setlled
principle that a plaintiff cannot bring tres-
pass for taking a chattel unless he has the
actual or constructive possession at the time.
He must have such a right as to be entitled to
reduce the goods to actual possession when he
pleases."
In Ihe case of Ward v. Macaulty, Lord Ken-
yon said that the distinction between trespass
and trover was well settled. The former is
founded on possession, the latter on property;
and he held that as the plaintiff had no pos-
session of the chattels when the supposed tres-
pass was done, his remedy was by action of
trover, founded on his property in the goods ;
and in Gordon v. Harper, 7 Term, 11, he
retracts that part of his opinion, that trover
would lie under the circumstances of the case,
but confirms his former opinion in every other
respect.
When the defendant took the vessel the
plaintiffs were clearly dispossessed of her ;
nor had Ihey Ihen a right to reduce her to
actual possession, for she had been seized
under the authority of the law, and was then
in the custody of the law, adversely to the
plaintiff's claim of property. Still, however,
it is urged that Van Beuren was, at all events,
a trespa-*ser ab initio, by his licensing the de-
fendant to use the vessel, and that this act
re-invested the plaintiffs with their first right
of property, and also the right to reduce the
vessel to their immediate possession ; and it is,
consequently, contended that the rule laid
down in Putnam v. Wylry is not infringed by
sustaining this aclion. It seems to have been
forgotten by the counsel who urged this argu-
ment that \ an Beuren's giving leave to the de-
fendant to take the vessel is not an act which
would even render him a trespasser *oA [*U84r
iiiitf". It was the act of taking her and using
her which alone could produce that effect, ana
not until after the commission of that act
would Van Beuren have violated the authority
I given him by law to seize and hold the vessel.
| The act of taking and using the vessel is indi-
| visible ; when the defendant first entered on
it, it must be admitted the plaintiffs had neith-
1*1
384
SUPREME COURT, STATE OF NEW YORK.
1814
er the possession nor the right to reduce the
vessel to their possession, and, therefore, at
that time, they had no right to bring trespass.
To maintain that trespass would lie against
the defendant, the counsel must be driven to
the necessity of splitting up the defendant's
act, and making him a trespasser, not for en-
tering on board the vessel and casting off her
fasts, but for sailing in her. This mode of
considering and treating the action may well
be pronounced an anomaly in the -law of
trespass, without precedent, and without
authority. The true and only test is, to con-
sider whether, when the first act was done,
which consists of a series of acts, the defend
ant was guilty of trespass towards the plaint-
iffs. If he was not, then he cannot, in this
«ase, be so afterwards. It is not necessary
to consider how far the defendant might be a
trespasser, if he had afterwards willfully de-
stroyed the vessel. That is not this case.
I might stop here, resting on the decision of
this court in Putnam v. Wyley ; but as the
counsel argued this cause with a zeal which
I by no means disapprove, I will see whether,
in deciding that this action is not maintainable
against this defendant, we do not decide in
strict conformity with general and well-set-
tled principles.
"Trespass does not lie for goods which a
man has lawfully, though the possession of
him from whom he had them was wrongful :
as if A takes the horse of another, and sells it
to B, trespass does not lie against B." (Com.
Dig., Trespass, D, 396.) " If a man takes my
horse by force and gives it to S, or if S takes
it from him with force, in this I shall not have
trespass against the second offender, for the
first offender had gained property by the
tort ;" per Brian and his companions. (Br.
Tres., 358 ; 20 Vin., 462, R, 3, p. 1.)
In Case v. Goes, 3 Caines, 261, the plaintiff
sued the defendant for cutting and carrying
away logs, after notice of title, and after
being forbidden. The defendant justified un-
der a license from one Bull, who, at the
time of the trespass, was in posssession, un-
der a writ of restitution, awarded on an in-
385*] dictment *ag!*inst the plaintiff for a
forcible entry, which was afterwards quashed
for irregularity, and re-restitution awarded.
The point was, whether the defendant was an-
swerable to the plaintiff in trespass for an act
done whilst he was out of possession, notwith-
standing the defendant had full notice of the
plaintiff's title, and was forbidden. The court
unanimously held that trespass would not lie.
Bull was considered a trespasser by relation,
and answerable for the damages ; and with re-
spect to the doctrine of relation, it was held
that it should not- extend to strangers, but ap-
plied only to the same parties, and annulling
an act, ab initio, to advance a right ; that the
defendant's being warned could not affect the
question, and it was enough that Bull was in
possession.
This case fully shows that the doctrine of
relation is not to be extended to the defend-
ants ; and it bears strongly on the point that
the plaintiff cannot maintain trespass for an
act done whilst he was dispossessed of his ves-
sel, by legal authority, and with the leave of
the person holding possession. It may be ob-
192
jected that it is inapplicable to trespass de bonis
asportatis. But I perceive no difference, in
principle, between the two actions, as to the
point now under consideration. In the case
of personal property, if the general owner
parts with the possession, and the bailee has a
right to use the thing, the general owner can-
not maintain trespass for an injnry done by a
stranger — the right of possession being a re-
version.
So as to lands ; the lessor or party out of
possession, if the lands be held adversely, can-
not maintain trespass, because, in the one case
his right is. reversionary, and in the other it is
suspended. We have carried the principle, as
to real property, further than has been done in
England ; and we allow the owner to maintain
trespass without actual entry, on the principle
that the possession follows the ownership, un-
less there be an adverse possession.
In whatever light, therefore, this case may
be considered, the plaintiff cannot maintain
the action ; and there must be a new trial,
with costs to abide the event of the suit.
THOMPSON, Ch. J., and YATES, J., were of
the same opinion.
VAN NESS, J. Whether this suit can be
maintained strictly on the principle that the
defendant is a trespasser by relation, *it [*386
is not material to inquire, because I think he
is liable, in this form of action, on another
ground.
It has long been well settled that actual pos-
session is not necessary to enable the owner to
maintain trespass or trover, as it respects per-
sonal property. It is otherwise where the suit
is brought for trespass upon real property.
There the gist of the action is the injury to the
possession, and unless the plaintiff was in act-
ual possession at the lime the injury was com-
mitted, trespass cannot be supported.
This rule has been rigidly adhered to, even
in cases where it might have been dispensed
with, without interfering with the reason upon
which it was founded . as in the case of
Bennett v. Ward, 3 Caines, 259 ; Campbell v.
Arnold, 1 Johns., 511 ; Tobey v. Webster, 3
Johns., 468. But for an injury done to a per-
sonal chattel, the person who has the general
property, provided he is entitled to immediate
possession, may support this action, although
he has never had actual possession. The gen-
eral property draws to it the possession so as
to enable the owner to maintain trespass. And
this rule holds even by relation, as in cases of
executors and administrators, who may main-
tain trespass for an injury done to the goods
of their testator or intestate, after his death,
and before probate or administration. So may
a legatee, after the executor has assented to
the legacy, for ;l trespass committed before
such assent.
The law creates a constructive possession in
the owner, in all these instances, sufficient to
maintain the action. The only exception is,
when the general owner parts with his posses-
sion in such a manner as to give the bailee a
right to use the thing, and where the right of
possession rests in reversion only. (2 Saund-
ers, 47, in note, and cases there cited ; Smith et
al. v. Miller, I Term, 475 ; Gordon v. Harper,
7 Term, 9.)
JOHNS. REP.. 11.
1814
VAN BRUNT KT AL. v. SCHENCK
3W6
In the case of Ward v. Maeauley, 4 Term,
489, I/ord Kenyon expressed an opinion
t hut there was a distinction between the ac-
tions of trespass and trover; that the former
founded on possession, and the latter
upon property ; but in Gordon v. Ifarper, a
\i-u-s after, he retracted this opinion, to
which he acknowledged, upon further consid-
:i, he could not subscribe.
;tH7*l *The plaintiffs, in this case, were
tiic undisputed owners of the schooner until
slu- was unlawfully seized by Van Beuren. I
uilawfully, because, as she was acquitted
ia'the District Court, were it not for the cer-
ti tit-ate of probable cause, Van Beuren might
have been prosecuted as a trespasser for the
original taking. This certificate, however,
•can, in no way, protect either Van Beuren or
tin- defendant against an action for their ille-
gal use of the vessel after the seizure. That
Van Beuren became a trespasser, from that
moment, ab iiuti->, is not questioned. The
cases cited on the argument are decisive on
th:it point. The certificate of probable cause
would afford him no protection against an ac-
tion of trespass founded upon the abuse of his
authority. "When the law has given an au-
thority or license, it seems reasonable that the
siiine law should, in order to secure the per-
sons who, without their direct assent, are made
tin- objects thereof, from all positive abuse of
such authority or license, make the same void
from the beginning, and leave the abuser
thereof in the same situation as if he had acted
without any authority or license." (6 Bac.
Abr., tit. Trespass, B.) I cite this book, be-
cause in no other is the law on this subject laid
down with equal precision and accuracy.
From the moment, therefore, Van Beuren
lent this vessel to the defendant, his official
character was lost, and he is to be treated like
any other private individual, who wantonly
and illegally wrests from another his property.
The law will adjudge, by the subsequent tor-
tious act, quoanimo the first taking was made;
for, •!'•(•( exteriora indicant intertora secreta.
\Six Carpenters' case, 8 Co. Rep., 145.)
This being the situation in which the law
has placed Van Beuren, let us see how the de-
fendant stands, who is also a custom-house of-
ficer. He had, it appears, a country seat,
about eight miles from the City of New York,
from which he was desirous to remove the
furniture to his town house ; and for this pur-
pose he applied to Van Beuren for the use of
the plaintiff's schooner, who consented that
he might take her. The defendant, accord-
ingly, brought his furniture in the vessel,
from his country seat to the City, and em-
ployed her, in plying between the two stations,
for about two days ; well knowing that Van
Beuren had no other right to the vessel than
what he derived from the original seizure, and
;{KH*J knowing also (for every *man is pre-
sumed i" know the law) that he was guilty of
a wrong to the plaintiffs, when he made use of
their property for his own private purposes
and accommodation, without their consent.
The vessel ceased to be in the custody of the
law after Van Bcuren had parted with her to
the defendant, for a purpose utterly repugnant
t<> his duty, as a public officer, and by which
he, confessedly, became as much a trespasser
JOHNS. REP., 11. N. Y. R.. 5. 13
as if he had acted without any authority or
license from the beginning.
While this vessel was in the employment of
the defendant, he held her by wrong, and the
plaintiffs had a clear and incontestable right to
resume the possession of her, if they were dis-
posed to exert it, wherever they found her.
This right results as a direct and necessary
consequence of that principle of law by which
Van Beuren is deemed to be a trespasser ab
in it i<i. lie stands " in the same situation as if
he had acted without any authority." Like
every other trespasser, his possession was tor-
tious ; and the owner might, at his election,
either have affirmed the possession and prop-
erty in him, by bringing an action of trespass,
or he might have brought replevin, to have
the thing taken restored to him, and recover
his damages for the first taking. This was so
decided in the case of Hopkins v. Uopkins,
10 Johns., 369, and the same doctrine will
be found in Bishop v. Montague. Cro. Eliz.,
824.
A moment's consideration will show that if
the plaintiffs were entited to the possession as
between them and Van Beuren, they are equal-
ly so as between them and the defendant.
What right had he to the possession of the ves-
sel ? If the plaintiffs could have taken her
from Van Beuren after he became a'trespasser,
does it not follow that they had the same
power after she came into the hands of the de-
fendant, in consequence of an act flagrantly
illegal, to which both he and Van Beuren
were parties ?
It seems to be admitted that the defendant is
bound, in some form of action, to compensate
the plaintiffs for the use of the vessel. Does
not this demonstrate his possession of her to
have been tortious and illegal ? And here it
is material to observe, that if a person is once
liable as a trespasser for an illegal taking of
the goods of another, he shall answer for
their full value, unless they are restored to the
owner ; in which case *the restoration [*38l>
may be given in evidence, in mitigation, but
not in bar of the suit. I can see no reason,
therefore, why the defendant, as well as Van
Beuren, is not liable, in this form of action,
for his illegal and unjustifiable use and em-
ployment of the vessel, as a distinct and inde-
pendent trespass.
That she was not in the possession of the
plaintiffs when the defendant took her, forms
no objection to the established principles which
I have before stated. In support and illustra-
tion of those principles, in addition to the cases
already cited. I refer to Bird et al. v. Clark,
3 Day, 276 ; Williams v. Lewis, Ib., 498 ; Lotan
v. Cross. 2 Camp., 464 ; Chapman v. T/iumblt-
thorp, Cro. Eliz., 329, and note to Wilbraliain
v. Snoui, 1 Sidcrfin, 438.
If the principles upon which I have placed
this cause arc well founded, it follows that the
judgment of the District Court, and the cer-
tificate of probable causes, were both properly
excluded.
With the order to pay the trifling sum which
remained in that court the plaintiffs have no con-
cern. A recovery in this suit, if the vessel had
not been sold, would have vested the title to
her in the defendant ; and as the money, in
consequence of the sale, stands in the place of
193
SUPREME COURT, STATE OP NEW YORK.
1814
the vessel, the defendant, probably, would
have a right to the proceeds.
The certificate, as I have before observed,
protects the seizing officer from an action for
the original taking only, and this protection is
personal to him. It is no defense to this action,
nor could even Van Beuren shelter himself
under it, if the suit had been against him, he
having, by his misconduct, put himself out of
the provision of theAct of Congress. I acknowl-
edge that this is a cause not devoid of difficulty,
yet I think the better opinion is, that trespass
can be maintained against this defendant, and
that, therefore, the verdict ought not to be dis-
turbed.
PLATT, «/., was of the same opinion.
New trial granted.
Reversing:— Anth. N. P., 217.
Distinguished— S. C., 13 Johns., 415.
Cited in— 8 Wend., 593 ; 3 Hill, 350; 4 Wash., 387.
39O*j *BREWSTER v. GELSTON.
1. Forfeiture under Tariff Act of Congress —
What Entitles Officer to Share. 2. Evidence —
Settlement of Collector's Accounts at Treasury
of United States — Prima Facie Correct.
Under the 91st section of the Act of Congress,
passed March 2d, 1799, for the collection of duties,
to entitle an officer of a revenue cutter to a share
of the forfeiture, the information given by him
in us! be of such a nature as to conduce essentially,
although not independently of other evidence, to
a condemnation.
The mere naked seizure of a vessel by the officers
of a revenue cutter does not give any right to a
share of the forfeiture.
The settlement of the collector's accounts, re-
specting' the proceeds and distribution of forfeit-
ures, and the expenses attending condemnation, at
the Treasury of the United States, is to be received
as prima facie evidence of the fairness and correct-
ness of such settlement.
Citation— Act March 2. 1799.
THIS was an action of assumpsit, brought to
recover the plaintiff's share, as informer
and seizer of the ship Magistrate and of the
ship Liberty and their cargoes, and of the
schooner Hiram and her cargo. The declara-
tion contained the common money counts, and
the plaintiff's bill of particulars stated the dif-
ferent sums demanded. The defendant is the
collector of customs of the port of New York,
and the plaintiff commanded the revenue cut-
ter Active, employed by the custom house.
The cause was tried at the New York sit-
tings, in July, 1812, before His Honor, the late
Chief Justice.
As to the schooner Hiram, Lemuel Ferris,
master of the Eglantine, on the part of the
plaintiff, testified that coming through the
Sound he observed the schooner Hiram, and
passed her near Byram Point ; that, in the
morning of the day after his arrival in New
York (about the first of December, 1808), the
plaintiff came on board, and he informed the
plaintiff that he had seen a schooner in the
Sound, and suspected her to be a smuggler ;
that in the evening of that day he was sent for
by the plaintiff to look at a schooner lying at
the Old Slip, supposed to be the same which
he had seen in the Sound, and which he
m
thought was the same ; but that he heard An-
drew Mead say (as was confirmed bv Lock-
wood, the next witness) that it was not the ves-
sel they were searching for, and that he heard
Peter A. Schenck, the surveyor of the port of
New York, say that they had seized the wrong
vessel ; that the vessel they were looking for
was the Phoebe ; that about noon of the day
after his arrival he saw Luke Mead arrive, and
that he saw the suspected vessel arrive in New
York about the noon of the same day. Whether
the day after his arrival was Friday or Satur-
day the witness did not know.
Epenetus Lockwood, who was on board of
the Eglantine with Ferris, when he observed
the Hiram, confirmed Ferris' statement as to
the conversation between him and the plaintiff.
William Isaacs, also on the part of the plaint-
iff, testified that the revenue cutter Active, of
which the plaintiff was master, *lay- [*391
ing off the Old Slip, the plaintiff took Andrew
Mead on board of his boat ; that the plaintiff
told Mead that he was going to look for a
schooner that had come through the Sound ;
that they found the schooner Hiram that even-
ing, which was Saturday, and that, con-
sequently, they did not examine the vessel be-
fore Monday ; that when they seized the ves-
sel, Andrew Mead said that it was not the ves-
sel he was looking for ; that on searching the
vessel the plaintiff discovered (as was also
testified by Andrew Mead) a quantity of dry
goods in a cask, lashed on the quarter deck of
the vessel as a water cask, and he also dis-
covered some goods concealed in the after-run
of the vessel.
Luke Mead, on the part of the defendant,
testified that he saw the Hiram come to at
Byram Point in the evening, and land goods
in a boat ; that he arrived in New York the
next day, on or about the 1st of December,
1808, he thinks it was on Friday, about noon ;
that shortly after his arrival he met with a Mr.
Scudder, a custom house officer, who took him
to the custom house, and introduced him to the
defendant and Peter A. Schenck (which Scud-
der, on being examined, confirmed), where he
related what he had seen, and was directed to
go and look for the vessel, and was told that
he would be considered as an informer ; that
he went to the dock, and there met with An-
drew Mead ; that they both went to the
custom house, and were again directed to
search for the vessel ; that Andrew Mead went
in search of her, and witness went about some
other business ; that he did not mention the
name of the vessel at the custom house, but
believed he said it was the Phoebe, which he
supposed to be her name. That some time
after the seizure, the plaintiff, in a conversa-
tion with the witness, observed that the wit-
ness would receive something handsome, a.s in-
former, and that when he received his money
he ought to make a present to Ferris and Lock-
wood for their assistance ; that the plaintiff
did not pretend that he had -any claim as in-
former, which conversation was confirmed by
the next witness.
Andrew Mead, on the part of the defendant,
testified that when he went with Luke Mead
to the custom house, he was directed to go and
search for the schooner and the plaintiff, and
to direct him to seize her. That he saw. the
JOHNS. REP., 11.
1814
BREWSTER v. GELOTON.
391
plaintiff near night, on Friday, and told him
tin- order of Mr. Schenck ; that the plaintiff
asked the witness her name, which he sug-
.'Ji>-*l irested to IK- the *Ph<L'be; that he went
in a boat with the plaintiff Lockwood and
others, and rowed along the docks, looking
for the schooner ; that they found her in the
evening and seized her ; that the plaintiff was,
at first, doubtful, but the next morning said
to the witness that they had got the right ves-
sel ; that the plaintiff did not pretend to any
knowledge of the vessel having been smug-
gling previous to the witness' communication.
Peter A. Schenck, on the part of the de-
fendant, confirmed Luke Mead's statement as
to what passed at the custom house between
him and Luke and Andrew Mead, which was
on Friday, the 2d of December, 1808. He
testified that he did not remember that he had
ever said that they had seized the wrong ves-
sel, or that the vessel they ought to have seized
was the Phoebe ; that he could not have said so
M her name was not mentioned to him. That
the vessel was seized on Friday night, and was
examined on Saturday. That on Sunday he
received information from the defendant that
there were some pieces of linen concealed in
the ceiling of the cabin ; that he went on
board on Sunday, made the search, and found
the linen in the place described by the defend-
ant.
'Jeremiah Mead declared that he had heard
the plaintiff say that the first information he
had of the Hiram was from the orders of Mr.
Schenck, through Andrew Mead, but that he
said the orders were not in writing, and he
was not bound to obey them.
As to the ship Magistrate, it was proved, on
the part of the plaintiff, that Squires, the first
lieutenant of the cutler Active, went with the
cutter's boat after the Magistrate, which they
overtook in the bay, and stopped her; that
they went into the cabin with the captain, and
the captain, with his papers, came on
shore and went with Squires to the custom
house. That the Magistrate was taken charge
of, for some days, by the men of the Active,
and her sails were unbent ; and, as one witness
testified, put into the public store by the men
of the Active, which, however, was denied by
Peter A. Schenck, who stated that they were
not put into the public store, but were, as he
believed, stolen, or taken away by some of the
Magistrate's crew.
Peter A. Schenck, for the defendant, testi-
fied that he and the defendant observed the
Magistrate going from Powles Hook down
:$!);**] *the bay ; that shortly after they saw
her Squires came to the custom house, and the
defendant ordered him to go and examine her
papers, and if he found anything wrong to
stop her . that a few minutes after Squires left
the custom house he directed Sickles to go and
tell him to stop her at all events, which mes-
Mge Sickles testified that he delivered : that
shortly after Squires and the captain of the
Magistrate came to the custom house ; and on
inquiry of the captain, it was discovered that
he had not given to the collector of Amboy
the bond required by the Act which had just
then been passed, called the Enforcing Act ;
that there was some conversation and negotia-
tion about giving the bond to the defendant ;
JOHNS. REP., 11.
that in the course of the negotiation the cap-
tain of the Magistrate, who was also the
owner, admitted that he was a foreigner by
birth, but said that he had been naturalized ;
and on being requested to produce his certifi-
cate of naturalization, which he professed to
have in his power, he either could not. or did
not produce it. Tue witness said that Squires
and Gilpin, the other lieutenant of the Active,
never pretended to have any right, and fre-
quently disowned to have any claim to the
Magistrate or to the Liberty.
As to the Liberty, it was proved by several
witnesses that the defendant, having suspicion
that the captain and crew of the Liberty in-
tended to run away with her, had her watched
by the officers of "the customs, and that the
crew of the Active assisted in watching her
and in unbending her sails, which were taken
on shore. One witness stated that on Sunday
evening, in a violent snow storm, Sehenck told
the custom house officers that they need not
watch her that night, as no vessel would at-
tempt to stir in such a storm ; but it was
proved that on that night the captain and
crew of the Liberty cut her fasts, and went off
with her. It was proved by Peter A. Schenck,
and another witness on the part of the defend-
ant, and not denied, but rather confirmed on
the part of the plaintiff, that Schenck, having
been informed that the Liberty had gone, went
to the Active and gave Gilpin the information,
and requested him to go after her ; that he
seemed very unwilling to go, and made many
objections, but that Schenck told him he must
go, and that if he wanted any additional hands
they should be procured, and he procured five
or six additional hands and put them on board ;
that Gilpin still objected to going, until he
could see Squires and the defendant, or one
of them, and that he went on shore for the pro-
fessed *purpose of consulting one or [*31>4
both of them. Schenck also stated that shortly
after, he went to the house of the defendant,
and that as he was going in he met Gilpin com-
ine out, and that having staid there a few min-
utes, the witness returned to the cutter and
found them in the act of going off. It was
further proved that the cutter Active went
after the Liberty that night, and came to
anchor under one of the islands in the bay ;
that they did not see the Liberty that night,
but as they were returning to Ne'w York, she
was seen ashore at Governor's Island, but they
did not then go to her.
Jonathan L. Brewster, a witness for the
plaintiff, and who was on board of the Active,
testified that as they approached the dock, on
their return, they saw Squires on the dock ;
that he hailed the cutter, and *»ked whether
the ship on Governor's Island was the Liberty,
and they answered that it was ; that he then
ordered them to get the boat out to go on
board of her, but while they were getting the
boat ready, William Van Beam, the master
of the cutter Protector, invited Squires to go
with him In his boat as'she was ready; but
this statement was denied by a witness for the
defendant, who was also on board the Active ;
that Squires went with Van Beuren ; that
Squires procured lighters; and it was stated by
several witnesses for the plaintiff that Squires
took charge of the Liberty, and that she was
195
394
SUPREME COURT, STATE OF NEW YORK.
1S14
unloaded by the Active's crew, who were set
to work by Squires.
Two of the crew of the Active testified that
they went, by order of Squires, in the Protect-
or's boat with him. Van Beuren. and two of
the Protector's crew, and assisted in rowing
her. One of these witnesses testified that he
was on board of the Protector when the Active
returned in the morning ; that Squires was on
board of the Protector first, and before he saw
Van Beureu, directed the witness to go into the
boat, to go on board of the Liberty.
William Van Beuren, for the defendant, tes-
tified that early in the morning after the Lib-
erty escaped he observed a ship, which he
supposed to be the Liberty, on shore on Gov-
ernor's Island ; that he immediately ordered
his boat to be manned ; that, just before he
sailed, he saw Squires, and invited him to go
along ; that they went on board, took posses-
sion of her, and left one of his men in charge
of her ; the witness could not tell whether the
Active had come up before his boat went off,
395*] but denied his *hailing her, and did
not think that any one hailed her. The wit-
ness stated that he had determined to go off
before he saw Squires, but that he went for
him and saw him on some dock.
Nathaniel Shultz, a witness on the part of
the defendant, testified that he was the clerk
of the defendant, as collector, and kept his
books. The witness produced an account, as
an extract from those books, by which it ap-
peared that the sum of $2,755.35 had been paid
by the defendant, as the expenses incurred in
and about the Liberty and her cargo. He tes-
tified that the account had been allowed and
settled at the Treasury of the United States ;
he produced duplicates of all the items of the
account, except for about $800, of which he
stated that no duplicate had been received, and
the original vouchers were filed at Washing-
ton. The witness testified that the defendant
paid into the Treasury, or to the Manhattan
Bank, to the credit of the Treasurer of the
United States, all the money in his hands be-
longing to the United States every three
months ; that one moiety of the sums received
from the marshal, as the proceeds of the Lib-
erty and Magistrate, and their cargoes, had,
after deducting the said sum of $2,755.35, from
the sum received, as the proceeds of the Lib-
erty and cargo, and after deducting a small
sum for the expenses chargeable on the pro-
ceeds of the Magistrate and cargo, been paid
to the credit of the United States, and two
thirds of the remainder had been paid to the
naval officer and surveyor of the district of
New York.
The Chief Justice, in his charge to the jury,
remarked that the plaintiff's claim, if at all,
must be supported under the 91st section of
the Duty Act, and that the law ought to be
construed benignly in his favor. He decided,
and charged the jury, that the plaintiff was
not bound by the allowance and settlement of
the defendant's accouhts by the officer of the
Treasury ; and that he had a right to object to
the deductions claimed by the defendant, on
account of the expenses, notwithstanding such
allowance and settlement ; and the jury found
a verdict for the plaintiff accordingly.
A motion was made to set aside the verdict,
196
and for a new trial : 1. Because the verdict
was against evidence. 2. Because of the mis- •
direction of the judge.
* Messrs. Baldwin and Wells for the [*396
defendant.
Mr. T. A. Emmet, contra.
VAN NESS, J. , delivered the opinion of the
court :
By the 91st section of the Act of Congress
for the Collection of Duties, passed the 2d of
March, 1799, it is enacted that " all fines, pen-
alties and forfeitures, recovered by virtue of
this Act (and not otherwise appropriated),
shall, after deducting all proper costs and
charges, be disposed of as follows: One moiety
shall be for the use of the United States, and
be paid into the Treasury thereof by the col-
lector receiving the same ; the other moiety
shall be divided between, and paid in equal
proportions, to the collector and naval officer
of the district and surveyor of the port where-
in the same shall have been incurred, or to
such of the said officers as there may be in the
said district ; and in districts where only one
of the aforesaid officers shall have been estab-
lished, the said moiety shall be given to such
officer ; provided, nevertheless, that in all
cases where such penalties, fines and forfeit-
ures shall be recovered in pursuance of infor-
mation given to such collectors, by any person
other than the naval officer or surveyor of the
district, the one half of such moiety shall be
given to such informer, and the remainder
thereof shall be disposed of between the col-
lector, naval officer and surveyor or surveyors,
in manner aforesaid : provided also, that
where any fines, forfeitures and penalties, in-
curred by virtue of this Act, are recovered in
consequence of any information given by any
officer of a revenue cutter, they shall, after de-
ducting all proper costs and charges, be dis-
posed of as follows : one fourth part shall be
for the use of the United States, and paid into
the Treasury thereof, in manner as before
directed ; one fourth part for the officers of
the customs, to be distributed as hereinbefore
set forth, and the remainder thereof to the
officers of the cutter, to be divided among
them agreeably to their pay."
The present claim, I presume, is founded
upon the last proviso. Whether the same in-
formation is not contemplated by both these
provisos is uncertain ; neither is it very ma-
terial to the decision of this cause, in the view
I have taken of it.
The information to be given by an officer of
a revenue cutter must be of such a nature as to
conduce to a final condemnation. *It [*397
must be such as, in the first instance, to lead
to, and, perhaps, justify a seizure, and the
commencement of a suit ; and if such suit
eventuates in a condemnation, the officers are
entitled to their share. I do not apprehend
that it is required that this information must
consist of such facts or circumstances as, inde-
pendently of all other evidence, would be suf-
ficient to produce a condemnation, though it
ought to be such as essentially to contribute
thereto.
With these general principles for our guide,
let us see whether the verdict of the jury, in
the three different cases of forfeitures, is
JOHNS. REP., 11.
1814
BREWSTER v. GELSTOX.
against the weight of evidence or not ; and I
• will consider them in the order they were pre-
Hented by the counsel for the defendant.
First, as to the Hiram r
The plaintiff, in the morning of the same
day, early in December, received information
which let! him to suspect that this vessel was a
smuggler, as appears by the uncontradicted
iiMiiiiony of Ferris and 'Lockwood ; and this
information was communicated to him before
Luke Mead's arrival at theCityof New York;
upon this the plaintiff went in search of this
vessel in his boat, accompanied, among others,
by Andrew Mead, and in the evening, having
found the Hiram, he seized her, and on
search, goods were found concealed on board
of her, in such a manner as to leave no doubt
that she was engaged in some unlawful trade
or business. Upon what ground, or upon
whose testimony she was condemned, does not
appear in the case. Laying Luke Mead's com-
munication to the Collector out of the case,
there can be no doubt that she was finally for-
feited to the United States, in consequence of
the information given by the plaintiff. In op-
position to this it appe'ars that the first infor-
mation given to the Collector was by Luke
Mead, who. together with Andrew Mead, went
in search of her. They, however, supposed
the offending vessel to be the Phoebe, Merrit
master; and not the Hiram, Seely master.
Luke Mead appears soon to have gone off on
other business, leaving Andrew Mead to prose-
cute the search. Andrew Mead's presence,
when the vessel was seized, cannot, in any
way. prejudice the rights of the plaintiff, nor
admit him to participate in the forfeiture, par-
ticularly, as he declared, when the plaintiff
discovered the Hiram, that she was not the
vessel he was in search of. There is some
further testimony in support of Luke Mead's
claim, all of which was submitted to the jury.
:{!)X*] The question is, whether the *jury
were not justified in concluding that the con-
demnation was had in consequence of the in-
formation given by the plaintiff, rather than
that given by Luke Mead. This was a ques-
tion of fact, and though I am unable to say on
which side the weight of evidence lies, the
jury have found in favor of the plaintiff ; and
this is not a case where it would be proper for
the court to interfere.
If the information communicated by Mead
had been followed up by a seizure of the ves-
sel, and a condemnation had ensued, he would
have had a right to a share of the forfeiture.
The only fact which he disclosed to the Col-
lector, after all, was that he had seen this
venel land goods at Byram Point. This, of
itaelf, would not have been enoagh, perhaps,
even to authorize a seizure. It amounts to
more, but not a great deal more, than the in-
formation given by Ferris to the plaintiff.
Both Mead and the plaintiff proceeded upon
suspicion ; and the plaintiff having seized the
vessel, and then possessed himself of informa-
tion more unequivocally showing that the
Hiram was a smuggler, by the detection of the
concealed goods, I ihink/upon the whole, his
right to participate in the proceeds of this for-
feiture is entitled to a preference over that of
Knd
Next, as to the Magistrate :
JOHNS. RKP., 11.
After a careful examination of the testi-
mony, I cannot discover that the plaintiff has
a cofor of right to any portion of the proceeds
of this vessel and her cargo. That he gave
any information, in consequence of which this
vessel was either seized or condemned, cannot
be pretended. It has been said that it may be
inferred from the circumstances that some
such information was acquired while Squires
was on board of her, but there is no founda-
tion for any such inference. After Squires
boarded the ship, he went down into the cabin,
and soon after he and the captain, with the
ship's papers, went ashore and repaired to the
custom house, where, according to the testi-
mony of Schenck, the information was ob-
tained which led to the final condemnation of
the ship and cargo. The only thing which
affords even a pretext for this claim is, that the
officers and crew seized this vessel. But the
mere naked seizure of a vessel, by the officers
of a revenue cutter, does not give any right to
a share of the forfeiture.
•The 9?th, 98th and 99th sections [*39J>
of the Duty Act show for what purposes rev-
enue cutters are provided, and prescribes the
duties which their officers are to perform.
The objects for which they are provided (97th
sec.) are stated to be " for the better securing
the collection of the duties imposed on goods,
&c., and to be employed for the protection of
the revenue, &c., &c. The officers (99th sec.)
are declared to be officers of the customs, and
to be subject to the directions of the collectors,
&c. Their duties, in the same section, are,
among others, declared to be that they shall
"go on board all ships and vessels, &c., and
search and examine the same, and every part
thereof," &c.
From the testimony of Schenck and Sickles,
it appears that the Active went in pursuit of
the Magistrate, by order of the defendant, who
had a right to send her on this service, and
whose directions it was the duty of the officers
to obey. As one of the custom house officers,
and by direction of his superior, he found this
vessel, and stopped her ; and for this he is not,
by the Act of Congress, entitled to any part of
the forfeiture. The officers of the Active did
nothing but what was in pursuance of their
ordinary and appropriate duty, for which they
receive a compensation from the government.
Lastly, as to the Liberty :
The circumstances which led to the seizure
of this vessel are shortly these. The defend-
ant, entertaining suspicions that her crew in-
tended to run away with her, ordered her to
be watched for some time. Their suspicions
increasing, he ordered Squires to unbend her
sails and carry them ashore, which was ac-
cordingly done. On a Sunday night, during a
violent snow storm, her fasts were cut, and she
went off, and run upon Governor's Island in
thecourseof the night, and bilged. Thus far the
plaintiff had no concern in this transaction. Not
long after the ship left the wharf, some person
informed Schenck, the surveyor of the port, of
it. who immediately, as it was proper he
should do, took measures to stop and bringher
back. For this purpose he went on board the
Active, and applied to Gilpin, the only officer
on board, who refused to stir, until" he had
seen either Squires, the first lieutenant, or tlie
Iff
399
SUPREME COURT, STATE OF NEW YORK.
1814
defendant, and went ashore avowedly for the
purpose of consulting with those gentlemen.
4OO*] * While he was gone the surveyor
went to the defendant's house, where he met
Gil pin as he was coming out of it. Whether
the officers of the revenue cutter were bound
to obey Schenck is immaterial ; for there is
every reason to believe that the defendant
himself directed the Active to pursue the ship
in question. Gilpin set out, but saw nothing
of the Liberty that night ; but in the morning,
on returning to the City, she was seen aground
upon Governor's Island ; and soon after
Squires, with two men from the Active, and
two from Van Beuren's cutter, the Protector,
and in company with Van Beuren, went on
board of her, and seized her.
According to Van Beuren's testimony, he
was prepared to go on board the Liberty be-
fore he saw Squires ; and it is very question-
able whether he ought not, in fact, to be con-
sidered the seizing officer, or at least as much
so as Squires. On what ground this vessel
was condemned does not appear.
The mere seizure of the ship, much less as-
sisting in bringing her cargo ashore, confers
no right to a portion of the forfeiture. These,
as has already been remarked, are the usual
and proper duties of the officers of the revenue
cutters. In all the testimony, too, we look in
vain for any information given by the officers
of the Active, in "consequence of which this
forfeiture was recovered." Not a single fact
was known or discovered by them leading to
such a result, directly or indirectly. Indeed,
it appears to me, that the verdict in both the
last two causes is wholly unsupported by the
evidence.
The defendant appears, in both cases, to
have received "information" from other per-
sons, which led to the seizure and final con-
demnation of the ships and their cargoes, and
those persons only are entitled to share the
proceeds with the United States.
The result is, that there must be a new trial;
and as it may be material that another point,
made by the defendant's counsel, should be
put at rest by the court, I proceed briefly to
consider it. I allude to the effect of the settle-
ment of this transaction by the defendant with
the Treasury Department. These vessels and
their cargoes were all condemned in the Dis-
trict Court of New York, and sold by the
marshal.
The 90th sec. of the Duty Act, after direct-
ing that all ships, &c., condemned, &c. , shall
be sold at public auction by the marshal, pro-
4O1*] vides *that the marshal shall pay the
amount of such sales, deducting all proper
charges, to the clerk of the court directing
such sale, to be by him (after deducting the
charges allowed by the court) paid to the col-
lector of the district. By th« 89th sec. it is
made the duty of the collector to cause suits
to be brought for all infractions of the Act,
and prosecuted to effect; and he is "author-
ized to receive from the court, within which
such trial is had, or from the proper officers
thereof, the sum or sums so recovered, after
deducting all proper charges to be allowed by
the said court ; " and on receipt thereof, the
collector shall pay and distribute the same,
without delay, according to law, and transmit,
198
quarter-yearly, to the Treasury, an account of
all moneys received by him for fines, penalties
and forfeitures, during such quarter. From
these provisions of the Act of Congress, it will
be seen that the collector received the net pro-
ceeds of these vessels and cargoes, all the costs
and charges having been allowed and taxed by
the court ; that he is made the agent for all
parties who have an interest in the forfeiture,
and is to pay and distribute the money when
received, and that he is to account at the
Treasury, quarter-yearly, for all the money re-
ceived for fines. I am persuaded that it is
enough to state the case, to show that the set-
tlement made at the Treasury ought to have
been received as a prima facie evidence, at
least, of its fairness and correctness. This,
however, would not form a ground for a new
trial, as the plaintiff offers to remit the sum
which ought to have been deducted, the
amount being stated in the case.
There must be a new trial, with costs to abide
the event of the suit.
New trial granted.
*M'INROY v. BENEDICT. [*4O2
Referees — All must meet — Report is then Valid.
All the referees in a cause must meet and hear
the allegations and proofs of the parties ; and a re-
port by two of them, in that case, is valid : but where
all are duly notified, and one of them does not at-
tend, and the other two proceed to hear the parties,
and make a report, it is erroneous, and will be set
aside. If one of the parties, after being duly noti-
fied of the time and place of the meeting of the
referees, does not attend, the referees may proceed
to hear the proofs in the case, in his absence, ex-
parte.
A MOTION was made to set aside the re-
port of referees in this cause. The report
was made by two only of the three referees
appointed by the rule of court. The other
referee was duly notified of the time and place
of meeting, but did rot attend ; and the other
two referees, in the absence of the plaintiff,
proceeded, ex-parte, in the examination, and
reported in favor of the defendant. Several
other exceptions were taken to the report, of
which the court did not take notice.
Per Curiam. The only objection made to
the report of the referees, which we think
necessary to notice, is, that it was made by two
only, in the absence of the third, who had not
attended, or heard the proofs. As due notice
of the time and place of meeting had been
given by the plaintiff, his absence would have
formed no objection to the proceedings, had
all the referees Attended. But this we think a
fatal objection. It is necessary that all should
meet, and hear the proofs ; and then the re-
port of any two is valid. This appears, neces-
sarily, to result from the phraseology of the
Act, which, after directing the manner in
which the referees are to be appointed, or
agreed upon, declares that the referees finally
fixed on shall hear and examine the matters in
controversy, &c. This appears to be impera-
tive upon all to meet, and hear the proofs; and
such has been the intrepretation uniformly
given to the statute. The report must, -ac-
JOHNS. REP., 11.
1814
TILTON'S ADX'BS v. WILLIAMS.
402
cordingly, be set aside, and other referees ap-
pointed.
Motion granted.
Cited ln-7 Cow.. 530; 29 N. Y.. 296; 17 How. Pr.,
370: 10 Abb. U.S.. 285.
4O3*] *APMINISTRATORS OF TILTON
WILLIAMS.
Pleading and Practice — Trover — Cost*.
Imin action of trover brought by administrators,
tin- declaration contained several counts, some
rliarifiiitr tlit! trover mid conversion to have been in
th.- lifetime of the intestate, and some after his
.li-Htli. Mini after letters of administration were
grunted; the jury found a verdict for the defend-
ant, ami the judge before whom the cause was tried
oTtitii'd that the evidence on the part of the plaint-
iff applied to the latter counts ; it was held that the
<lrf' nditnt was entitled to costs.
The exception in the Act Relative to Costs (1 N.
K. I... 343, sesH. 3(5, ch. 96, sec. 2) of Executors and
Administrators, applies only to cases where they
necessarily sue in their representative character.
Citations— 4 T. K., 277 ; 10 East, 293 ; 23 Hen. VIII.,
ch. 15.
rpHIS was an action of trover. The declara-
JL tion contained several counts. In some of
them the trover and conversion were laid in
tin- lifetime of the intestate, and in others
they were laid after his death, and after letters
of administration were granted. The jury
found a verdict for the defendant ; and the
judge, before whom the cause was tried, certi-
fied that the evidence offered on the part of
the plaintiffs applied to the count charging the
trover and conversion to have been after the
death of the intestate, and after letters of ad-
ministration were granted to the plaintiffs.
* Mr. Hamilton, for the defendant, now moved
for costs. He cited 10 East, 293.
1/r. T. Sedgifiek, contra. He cited 4 Term,
477 ; 7 Term, 358 ; 2 Bos. & Pull., 253 ; 2
Chitty's PL, 326.
Per Curium. The decisions in the English
courts on this subject appear to be very con-
tradictory. (4 Term, 277 ; 10 East, 293.) It
is, however, well settled, that when the dec-
laration contains only one count, stating the
trover and conversion to have been in the life-
time of the intestate, the plaintiff, although he
fails in his action, is not subjected to the pay-
ment of costs. And it is equally well settled,
that when the trover and conversion are laid
to have been after the death of the intestate,
and after letters of administration granted, if
the plaintiff fails, he must pay costs ; because
there was no necessity for his suing in his
representative character. If, therefore, the
mode of declaring, which has been adopted in
this case, be allowed, and which seems to be
sanctioned by the authorities and precedents,
it becomes necessary to inquire to which count
in the declaration the proof applied, in order
to prevent the defendant from being prejudiced
by the mere form of declaring, ann no objec
tion can arise to the receiving the certificate of
the judge as evidence of that fact.
Our Act, which exempts executors and ad-
ministrators from the payment of costs, when
JOHNS. RKP., 11.
prosecuting in the right of their *testa- [*4O4
lor or intestate, can apply only to cases where
it is necessary for them to prosecute in their
representative character. It must, therefore,
receive the same construction as the English
statute (23 Hen. VIII., ch. 15), although that
contains no such express exception.
We are, accordingly, of opinion tliat the de-
fendant w entitled to recover co»t* against the,
plaintiffs.
Cited in— 5 Cow., 288; 5 Wend., K; 9 Wend., 490;
1 Denio, 027 ; 1 Lans., 308; 5 Hun, 54 ; 14 How. Pr.,
486.
CRANE «. COMSTOCK.
Practice — Trespa** — Costs under Statute.
In an action of trespass quare clamnim freait, un-
less the plaintiff recover above the sum of $50, or
unless the freehold or title to the land comes in
question, the plaintiff cannot recover costs,, but
must pay costs to the defendant. The newly Re-
vised Act ConeerninR Costs (1 N. R. L., 343) does not
authorize a certificate of thejulge, before whom
the cause was tried, that the trespass was willful
and malicious, so as to entitle the plaintiff to costs.
Citation-1 N. K. L., 343, seas. 36, ch. 96.
was an action of trespass quare clau-
L mm frts/ii. The jury found a verdict for
the plaintiff, for $40 damages, and the
judge before whom the case was tried, cer-
tified the trespass to have been willful and
malicious. The question was, whether the
plaintiff was entitled to recover costs, or must
pay costs to the defendant.
Per Curium. The Act Concerning Costs,
as it now stands (1 N. R. L., 343, sess. 36, ch.
96), does not authorize a certificate that the
trespass was willful and malicious.' The
plaintiff, to entitle himself to costs, must recov-
er above the sum of $50, unless the freehold,
or title to the land, comes in question. The
recovery, therefore, being under $50, the de-
fendant is entitled to costs.
•JACKSON v. RANDALL. [*4O5
Practice — Trespass for Mesne Profits — Title —
Co*t» under Statute.
If the plaintiff, in an action of trespass, does not
recover above $50. he must pay costs to the de-
fendant, unless the freehold or title to land conies
in question
In an action of t n-spuss for menne profits, after a
recovery in ejectment, the title, ordinarily, cannot
comes in question.
If the plaintiff claims damages for the occupation
prior to the time laid In the demise, the defendant
may dispute the title prior to that time; but where
the plaintiff seeks only to recover from the time of
the demise laid in the declaration.thc- right to meme
profits follows as a necessary consequence to the
recovery in ejectment, and the defendant cannot set
up any title or bar.
The cer'lflcate of the judge before whom the
cause was tried, is the proper evidence of the fact,
whether the title did come in question or not.
Citations— Seas. 34, ch. 170, sec. 6; 1 N. R. L., 248,
aen. 36, oh. 98, sec. 4 ; 2 Johns., 871 ; 2 Cai., 220.
THIS was an action of trespass for mcsne
profits. The amount of the recovery being
1.— The eighth section of the former Act (seas. 84,
ch. 170) la omitted in the Revised Act.
199
405
SHEKWOOD v. TREMPER.
1814
only $49, the defendant claimed a right to re
cover costs; and Mr. Campbell, for the defend-
ant, now applied to have them set off against
the damages recovered.
Mr. Cody, contra.
Per Curiam. Under the Act Concerning
Costs, as it stood previous to the last revision
of the laws, if the plaintiffs, in an action of
trespass, recovered above $5, he recovered
costs. (K. & R, ed.( Vol. I., 530, sess. 24,
ch. 170, sec. 6.) But now, unless the re-
covery is above $50, the plaintiff must pay
costs, unless the freehold or title to the land
comes in question. (1 N. R. L., 243, sess.
36, ch. 96, sec, 4.) It does not necessarily
follow, from the form of the pleadings, or the
nature of the inquiry, upon the trial of an ac-
tion for mesne profits, that the title or freehold
did come in question. Ordinarily, it is a mere
question of damages. If the plaintiff claims
damages for the occupation previous to the
time laid in the demise, the defendant may
dispute the title anterior to that time ; and
should such a case arise, it would, undoubted-
ly, entitle the plaintiff to recover costs. But
when the plaintiff only seeks to recover from
the time of the demise laid in the declaration,
the right to mesne profits follows as a necessary
consequence of the recovery in ejectment, and
the defendant cannot set up a title in bar,
even though he may clearly have a better
one than the plaintiff. (2 Johns., 371.) If
the plaintiff's title cannot be disputed, it can-
not be said that the title comes in question,
within the sense of the term, as used in the
Statute, which must mean that it was contro-
verted or denied by the defendant. This case
must, therefore, fall under the general rule ap-
plicable to actions or trespass. The Statute
does not put out the mode in which it is to be
ascertained, whether the title did come in
question. But it has been decided by this
court, that the certificate of the judge who
tried the cause, was the proper evidence on
4O6*] *that subject. (2 Caines, 220.) No
such certificate having been given in this
case, the defendant is entitled to costs, .and his
right to have them set off against the damages
recovered follows as matter of course.
Motion granted.
Cited in— 6 Wend., 557 ; 10 How. Pr.. 409 ; 1 Wheel.
323 ; 2 Sawy., 602.
SHERWOOD v. TREMPER.
Practice — Referees.
Where a cause is referred, the referees are to be
taken from the county in which the venue is laid.
Citation— Sess. 36, ch. 56, sec. 2.
ON motion for a reference of this cause,
THOMPSON, Ch. J., said, that though the
Statute (1 N. R. L., 516, sess. 36, ch. 56, sec. 2)
did not require the referees to be taken from
the county in which the venue was laid, yet,
the court were of opinion that the practice
was proper ; and for the same reasons, in
200
many respect, as that the cause must be tried
before a jury of the county in which the venue
is laid.
Cited in— 9 How. Pr., 44.
BEARDSLEY'S EXECUTORS «. ROOT.
Practice — Verdict by Consent.
Where a verdict is taken by consent, subject to
the opinion of the court on a case to be made, the
party is not limited by the sixth rule of January
Term, 1799, as to the time for preparing the case,
&c.
rpHE COURT said that the sixth rule of
-L January Term, 1799, relative to making
cases did not apply where a verdict was taken
by consent, subject to the opinion of the court,
on a case to be made by the parties ; and that
the party was not, therefore, confined to the
time limited by that rule for preparing his
case, &c.
*M'CARTHY «. MTHERSON. [*4O7
Practice — Justice Court — Discontinuance.
Where the justice did not open his court for more
than two hours after the time appointed in the
summons, and then adjourned the cause to another
day, when he heard the cause ex-parte ; it was held
that this delay amounted to a discontinuance of the
suit.
Citation— 8 Johns,. 391.
IN ERROR, on certiorari from a justice's
court. The summons was made returnable
before the justice at two o'clock, P. M. The
justice appeared at the place appointed in the
summons, at half past four o-'clock, P. M.,
and opened his court ; and, the defendant not
appearing, made inquiry whether the defend-
ant had been there, and being informed that
he had not, the justice adjourned the cause to-
another day, and proceeded to hear the evi-
dence on the part of the plaintiff, for whom he
gave judgment.
Mr. Sherwood for the plaintiff in error.
Mr. Boot, contra.
Per Curiam. The delay on the part of the
justice to open his court for more than two
hours after the time appointed in the summons,
and his subsequent adjournment of the cause,
amounted to a discontinuance of the suit.
(Proudfit v. Henman, 8 Johns., 391.)
Judgment reversed.
Cited in— 7 Wend., 202.
JACKSON, ex dem.-
STILES, PHILLIPS, Tenant.
A mortgagee in possession may be let in to de-
!end, in an action of ejectment.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. STILES.
40?
0
N motion for a rule to let in a mortgagee to
defend in this suit.
Per Guriam. It appears that that the mortgage
is forfeited, and there has been a foreclosure,
and the mortgagee has taken possession. As
the mortgagee is in possession, we think there
is such a privity that he ought to be allowed to
come in and defend ; but we give no opinion
whether a mortgagee, out of possession, may
be let in to defend in ejectment.
JOHNS. REP., 11.
•GENERAL RULE. [*4O8
14th May, 1814.
ORDERED, that in all notices for argument,
and in all special verdicts, demurrers, cases,
and other papers, on which arguments are to
be had. or motions made or resisted, before
the court, the names of the attorneys on record,
for the plaintiffs and defendants, shall be in-
serted or written thereon.
201
[END OP AUGUST TERM, 1814.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK,
IN
OCTOBER TERM, IN THE THIRTY-NINTH YEAR OF OUR INDEPENDENCE.
WHITBECK v. VAN NESS.
Negotiable Paper — Note of Third Party Taken
by Vendor at Time of Sale is Deemed Pay-
ment Unless Contrary Clearly Appears.
A. offered to give B. $90 for a horse, if he would
take D.'s note for that sum, payable in six months ;
B. took the note of D., payable to himself, and de-
livered the horse. The note was not paid, and in
an action brought by B. against A., to recover the
price of the horse sold, it was held that the note was
payment, and that B. could not recover on the
original contract of sale.
If a vendor of goods receive from the purchaser
the note of a third person (such note not being
forged, and there being no fraud or misrepresenta-
tion on the part of the purchaser, as to the no_te, or
the solvency of the maker), such note will be
deemed to have been accepted by the vendor in
payment and satisfaction, unless the contrary be
expressly proved.
Citations.— 9 Johns., 310 ; 1 Salk., 124 ; 12 Mod., 203 ;
1 Ld. Raym., 442 ; 12 Mod., 241 ; 3 Atk., 50 ; 2 Ld.
Raym., 928; 12 Mod., 408, 517: 1 Esp. Cas., 448; 15
East, 12 ; 7 T. R., 66 ; 3 Johns. Cas., 72, 929, 930 ; 6
Cranch, 264; 2Cai., 120; 3 Johns. Cas., 72;, 5 Johns.,
68 ; 6 Johns., 110 ; 2 Johns., 459.
THIS was an action of amimpsit. Beside
the general counts for goods sold, &c.,
and the common money counts, the declara-
tion contained a count for the sale of a horse
by the plaintiff to the defendant, for a note
made by Daniel S. Deane, for $90, dated
August 3d, 1808, payable six months after date,
with interest, which note the defendant rep-
resented to the plaintiff as good, and the
maker as responsible, when he, the defendant,
knew that Deane was not, and that, in con-
sideration of the premises, the defendant as-
sumed and promised to pay for the horse the
amount of the note. There was, also, a count
for a horse sold and delivered for $90.
In July some conversation passed between
the plaintiff and defendant, relative to the pur-
chase of the plaintiff's horse, at Johnstown,
where the plaintiff lived. Afterwards, the de-
fendant, who lived at, Rhinebeck, desired a
person, who was a witness in *the [*41O
cause, to inform the plaintiff that the defend-
ant would give him $90 for the horse, if he
would take the note of Daniel S. Deane, pay-
able in six months, with interest. The plaintiff
told the person that the defendant had said
Deane was perfectly good, and that he would
indorse the note. The witness replied that he
had no instructions further than to make the
offer he had done for the defendant. A few
days afterwards, the plaintiff agreed to accept
the offer, and the defendant sent the note of
Deane for $90, dated the 3d of August, 1808,
payable in six months, with interest. The note,
except the signature, was in the handwriting
of the defendant. The plaintiff, on receiving
the note, delivered the horse to the witness,
who sent it to the defendant, agreeably to his
directions. Nothing was said at the time of
the delivery as to the solvency of Deane, or at
whose risk the note was to be taken.
It appeared that Deane, at the time the note
was given, and since, was not a person of good
credit or responsibility. Though it appeared
he was sometimes trusted, yet his notes re-
mained unpaid in the banks at Hudson, and
he was frequently sued ; and one of the wit-
nesses said Deane's note would not have sold
for $35. Another witness did not think it
would sell for $50.
The Chief Justice charged the jury that the
plaintiff was entitled to recover for the horse,
unless he had expressly agreed to take the note
at his own risk, of which, in his opinion, there
was no evidence. The jury found a verdict
for the plaintiff for $118.
The defendant moved to set aside the ver-
dict, and for a new trial.
NOTE.— Negotiable Paper— Payment by note.
Delivery of note is not generally payment of prece-
dent debt, unless circumstances show that such was
the intention of the parties. Murray v. Gouvern-
eur, 2 Johns. Cas., 438, note ; Herring v. ganger, 3
Johns. Cas., 71, note.
Where goods sold for a note, delivery of the note in
payment. Ferdon v. Jones, 2 E. D. Smith, 106.
Where goods are sold for a note of a third party,
unindorsed, the transaction being bona fide, the
note is full payment unless the contrary clearly
202
appears- See above case of Whitbeck v. Van Ness ;
Breed v. Cook, 15 Johns., 241 ; Rew v. Barber, 3
Cow., 272 ; Tobey v. Barber, 5 Johns.. 68 ; Noel v.
Murray, 1 Duer, 388 ; Porter v. Talcott, 1 Cow.. 381 ;
Torrey v. Hadley, 27 Barb., 196 : Gibson v. Tobey,
53 Barb., 195; Gordon v. Price, 10 Ired., 388; Bank
of Eng. v. Newman. 1 Ld. Raym., '442; Ex-part*
Blackburne, 10 Ves., 204 ; Fydell v. Clark, 1 Esp.,
447.
On the general subject, see Dan. Neg, Inst., ch. 39,
sec. 1.
JOHNS. REP., 11.
1814
WHITBECK v. VAN NESS.
410
Mr. Van Beuren, for the defendant. It has
been a long-settled principle, that where a note
is taken for an antecedent debt it is no pay
mt-nt, unless the party receiving it agrees to
take it at his own risk. A note given for a
chattel purchased stands on a different ground
and the law presumes that the vendor of the
< iiiittel received the note in payment. The
purchaser of the chattel, there being no war-
ranty, runs the risk of soundness ; and the
-dlcr. who receives the note, runs the risk of
the solvency of the maker ; for this is con-
Milrred as part of the original contract. It was
so decided by Lord Holt, in Ward v. Evans.
ill*] *(2 Ld. Raym., 928, 980 ; 12 Mod., 203,
241.408; 3 Salk.,68. 124; 1 Ld. Raym., 442;
1 K<p. Cases, 106, 447.) He says : " Taking
a note for goods sold is payment, because it
was a part of the original contract ; but paper
i> in) payment where there is a precedent debt ;
fur when such note is given in payment, it is
always intended to be taken under this con-
dition, to be payment if the money be paid
thereon in convenient time.
In Johnson v. Weed, 9 Johns., 310, the fact
was left to the jury, whether the plaintiff
had agreed to receive the note in payment ;
but it appeared that the agreement was that
the defendant should indorse the note, and
when it was objected to him that the note was
not indorsed, he said that should make no dif-
ference. The case of Afarkle v. Hatfeld, 2
Johns., 455, will not aid the plaintiff ; for
the note was a forgery, and. therefore, a per-
fect nullity. In Roget v. Merrit & Clapp, 2
Caines, 117, the goods were not delivered,
though a contract for the sale of them had
been made.
Mr. K. Williams, contra, relied on the case
of Johnson v. Weed as conclusive on the ques-
tion. In that case all the authorities were ex-
amined, and the point settled. In Tobey v.
Barber, 5 Johns., 68, it was said to be a
well-settled rule that taking a note either of the
debtor or a third person, for a pre-existing
debt, is no payment, unless it is expressly so
agreed. And in Wilson v. Foree, 6 Johns.,
1 10, it was decided that though the vendor of
goods takes the note of a third person, payable
at a future day. in payment, expressly at his
own risk, yet if there was any fraudulent mis-
representation on the part of the vendee as to
the note, or the solvency of the maker, the ven-
dor may resort to the original contract.1
In the present case there was sufficient evi-
dence of unfairness or fraud in the representa-
tion made by the defendant as to the solvency
of Deane.
SPENCER, J., delivered the opinion of the
court :
The single point for our determination in
this case is, whether the note of a third person,
agreed to be taken in payment for goons sold
at the same time, is taken at the risk of the
vendor of the goods, or of the vendee. I put
out of consideration the allegation of fraud,
for it was not proved : and I also lay aside the
plaintiff's allegations, that the defendant had
1.— See also, Chltty on Hills. 2d edit., 108. 108 ; Kyd
on Bill*. 3d edit., 171, 172; Puckford v. Maxwell, 6
Term, 58.
JOHNS. REP.. 11.
promised to indorse the note, as there was no
proof of that fact.
*The plaintiff relies on the decision [*412
of this court, in Johnson v. Weed et al., 9
Johns., 310. I am compelled to say, that al-
though I assented to that decision, and yet be-
lieve it to be correct, the reasoning of the
judge* who gave the opinion went further
than I intended ; and as I understand those of
my brethren who assented to the decision,
further than they meant to go. In that case
there was a contrariety in the evidence. The
defendants' proof went^to show that it was
part of the bargain that Townsend's note
should be taken in payment for the goods,
whilst the evidence of the plaintiff showed that
they were to be paid for in cash ; and that
when Townsend's note, made payable to the
plaintiff, was produced, the plaintiff observed it
ought to have been made payable to and in-
dorsed by the defendants ; to which one of
the defendants replied, "it was late in the eve-
ning, and his vessel was ready to go to Albany,
and that it would make no difference." A
new trial was properly refused in that case,
because it was evident that the plaintiff did
not intend to take Townsend's note at liis own
risk ; nor could such have been the intention
of the defendants, unless, indeed, they had a
fraudulent design, which we were not author-
ized to suppose.
Here the facts are entirely different ; and
nothing can be more manifest, than that both
parties perfectly understood that the plaintiff
should take Deane's note at his own hazard.
The case of Johnson v. Weed renders it neces-
sary to review the various cases in the English
courts, and in our own, that we may be per-
fectly understood.
In Clark v. Munaell, 1 Salk., 124. and 12
Mod., 203. Lord Holt held that if A sells goods
to B, and B is to give a bill in satisfaction, B
is discharged, though the bill is never paid,
for the bill is payment ; but otherwise, a bill
should never discharge a precedent debt or
contract. In Bank of England v. Newman, 1
Ld. Raym., 442, and 12 Mod.. 241, Lord Holt
ruled "that if a man has a bill payable to him,
or bearer, and he delivers it over for money
received, without indorsement, this is a plain
sale of the bill ; and he who sells it does not
become a new security ;" otherwise, if he had
indorsed it. This decision *of Lord [*413
Holt is cited by Chief Justice Lee. in Hartop
v. Hoare, 8 Atk.. 50, with approbation. In
Ward v. Evans, 2 I*xi. Raym., 928, Lord Holt
reiterates the doctrine, that taking a bill for
goods sold is a payment, because it was part
of the original contract ; but that paper is no
payment, where there is a precedent debt. In
12 Mod., 408 and 517, he again asserts the
same doctrine. In IfydeUv. Clark, 1 Esp. Cases,
448, Lord Kenyon held that if a man. in the
discount of notes, takes bills without indorse-
ment, he must be considered as having taken
the risk of payment on himself ; that by not
indorsing them, the defendant refused to
2.— Tt may he proper to observe, that throughout
thege Reports (except In a few instance*), where the
opinion of the court in stated ;<rr mriatn, it to
always taken from the notes of the judsre who de-
livers the opinion of the court, and with which the
reporter is obligingly furnished.
203
413
SUPREME COURT, STATE OP NEW YORK.
1814
pledge their credit and the persons receiving
the bills took them on their own credit only.
The Statute of Anne 5, 7, has interposed to
regulate and fix the result of taking bills fora
pre-existing debt. It provides that the accept-
ance of bills for a former debt shall be a com-
plete payment, unless due diligence is used to
obtain payment, and the bill be protested. In
the very recent case of Emly v. Lye, 15 East,
12, Bayley, J., observes ; "If a person buy
goods of another, who agrees to receive a cer-
tain bill in payment, the buyer's name not be-
ing upon it, and th^t bill be afterwards dis-
honored, the person who took it cannot re-
cover the price of his goods from the buyer,
for the bill is considered as a satisfaction. "
It has been supposed that the cases in 2 Ld.
Raym.,929, 930; 1 Salk., 124; 7 Term, 66;
3 Johns. Cases, 72, and 6 Cranch, 264, con-
tain contrary principles. The cases from
Ld. Raym. and Salk. have already been com-
mented on. The case from 7 Term, Chcen-
wn v. Morse, on examination, will be found
to turn on the right to. stop goods in trans-
itu. Owenson purchased from* Morse some
plate, apd paid for it in the notes of a third
person. Morse retained the plate, to have
Owenson's arms engraved, at Morse's ex-
Eense. In the interim the maker of the notes
tiled ; and on refusal to deliver the plate,
Owenson brought trover, and failed ; the
court holding, that the bargain was not so
perfected but that the seller might stop the
foods in transitu. In Roget v. Merrit & Cbipp,
Caines, 120, we adopted the same principle,
that in an executory contract, the considera-
tion having failed, the vender had a right to
withhold a delivery of the goods. The case in
3 Johns. Cases, 72, turn entirely upon the ef-
414*] feet of accepting a note *for a pre-
cedent debt, and was decided in strict con-
formity to Lord Holt's distinction. The case
of Slieehy v. Mandeville, 6 Cranch, 264, pro-
ceeds wholly on the effect of a creditor's
taking a note from one of two joint debtors,
and prosecuting it to judgment ; and on his
right, afterwards, to maintain a suit against
both, notwithstanding his judgment against
one. That case contains no principle applica-
ble to the one before us.
In Tobey v. Barber, 5 Johns. , 68, the prin-
ciple that taking a third person's note for
a pre-existing debt is not payment, unless so
expressly agreed, is again recognized and en-
forced. In Wilson v. Force, 6 Johns.. 110,
a horse and chair was sold for a third per-
son's note, and it was received in full satis-
faction ; but it appearing that the defendant
knew that the third person was insolvent, but
had represented him to the plaintiff as a man
of property, we held, that as the basis of every
contract was good faith, taking the note under a
fraudulent misrepresentation was no payment.
In the case of Markle v. Hatfield, 2 Johns.,
459, a counterfeit bank bill was taken in pay-
ment ; and we held that the payee did not
assume upon himself the risk of forgery, the
forged note being received upon the faith of
its being genuine ; but it is not to be doubted
that had the bill been good, and had the bank
failed, and the parties been equally ignorant
of the fact, that the decision would have been
different.
204
These are all the cases referred to, which
are supposed to countenance the opinion that
the defendant is liable for the price of the
horse sold to him ; and it appears to me that
they are perfectly reconcilable with the vari-
ous decisions of Lord Holt.
The intrinsic circumstances of this case
plainly show that the plaintiff considered him-
self as taking Deane's note at his own risk. It
was made payable to the plaintiff himself, and
the defendant, by not indorsing it, or guaran-
teeing the payment, clearly declined pledging
his own responsibility. The offer was made by
the defendant's agent of Deane's note for the
horse ; the plaintiff took time to consider
whether it was advisable to take Deane's note,
after deliberation, and, we must presume, too,
after inquiry, agreed to sell the horse for the
note. It appears to me we should be pervert-
ing the manifest agreement of the parties if
we were to pronounce that *the plaint- [*4 1 5
iff did not take the note at his own hazard.
To my mind, the nature and proof of this
transaction furnish, as decisive proof, that the
plaintiff was to take the note at his own peril,
as if it had been stipulated in express terms.
There must be a new trial, with costs to-
abide the event of the suit.
New trial granted.
Cited in-15 Johns., 242; 16 Johns., 278 : 17 Johns.,
295 : 1 Cow., 381 ; 3 Cow., 280 ; 11 Wend., 17 : 21 Wend.,
452: 2 Edw., 493: 13 N. Y., 169; 46 N. Y., 640: 6ft
N. Y., 354; 10 Barb., 575; 12 Barb., 55 : 53 Barb., 195;
36 How. Pr., 523 ; 2 T. & C., 343 ; 1 Sand., 86 ; 39
Super., 505; 44 Super., 339; 3 E. D. Smith, 57; 1 Cliff .v
422.
GELSTON v. RUSSELL ET AL.
Slave — Lhild of, Follows Condition of Mother.
L., in the Revolutionary War, left his oroperty
and family in this State, and went to Canada, where
he resided until his death, about the year 1801.
Among the property of L., left with his family,
was a female slave, who had a son born, named P.;
and J., the eldest son of L., had the management of
his father's estate, after he went away. In 1798, the
sheriff, under an execution against the goods of J.,
sold all the right and title of J. to P. at public auc-
tion, to G., the purchaser, who took possession of
P., and claimed his services as a slave. It was held
that P., following the condition of his mother, was
the slave of L., and continued his property (L., not
having been attainted), and on his death, passed to
his executors, or administrators, so that J., his son,
had no property in him which could be sold under
an execution.
Citations— Laws of N. Y., sess. 9, ch. 58, sec. 29 ;
sess. 11, ch. 40, sec. 2.
THIS was an action of assumpsit, tried be-
fore the late Chief Justice, at the Colum-
bia Circuit, in October, 1813.
The plaintiff demanded of the defendants
$300, being the amount of the wages of Peter
Latham, a black man, as a seaman on board
of the vessel of the defendants, and who was
the slave of the plaintiff.
It was proved that in 1798 Peter lived with
the plaintiff. The sheriff having an execution
against James Latham, sold all his right and
title to Peter, at auction, and the plaintiff be-
came the purchaser under the sheriff's sale.
Peter lived with him some time before, and
some time after the sale. The father of
James Latham owned a female slave) the
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. DECKER.
415
mother of Peter, who was born in the family,
as a slave, during the Revolutionary War; and
before Peter was born the father of James
Latham went into Canada, leaving all his
property here wjth his wife and children ; and
he died in Canada about twelve years ago,
and subsequent to the sale of Peter to the
plaintiff. One of his sons (James Latham)
took the management of his father's estate
after he went to Canada, and has ever since
acted as the owner of it. There was no other
proof of the property of the plaintiff in Peter.
The Chief Justice asked the plaintiff's coun-
sel if he expected to prove any actual privity
between the plaintiff and defendants as to the
services of Peter, by which he recognized him
as the slave of the plaintiff ; and was answered
416*1 that the plaintiff *would prove that
after the services were performed by Peter,
and before the money due for his wages was
paid over, he gave notice to the defendants
that he claimed Peter as his slave, aud forbade
the defendants paying the money to him.
ilis Honor thereupon directed the plaintiff
to be nonsuited, for want of sufflcie'nt evidence
of his being the slave of the plaintiff.
A motion was made to set aside the nonsuit,
and for a new trial.
Mr. James Strong, for the plaintiff. By the
law of this State slaves are regarded as goods
and chattels. (Sable v. Hitchcock, 2 Johns.
Cases. 79, 85, 87 ; Walden v. Payne, 2 Wash.,
7.) Property in a slave may be acquired
by a bona fide purchase, without deed.
< 1 Dallas, 160.) A written transfer is not
requisite. It appears that Peter was in the
possession of the plaintiff ; that he bought
him of the sheriff, who sold him as the prop-
erty of James Latham. The plaintiff was a
bona fide purchaser ; and such a purchaser at
a sheriff's sale may hold the property pur-
chased against all the world, unless it was
stolen. (Wilhraham v. Snow, 2 Saund., 47.)
The plaintiff proved that Peter was born a
slave; that he purchased him at a sheriff's sale;
that he was in his possession, which amounts,
at least, to prima facie evidence of property,
and is sufficient against the defendants, until
they show that Peter was a freeman.
The proof was sufficient to be left to the jury
as evidence of title.
Mr. E. William* , contra. The only question
is, whether the plaintiff was the owner of this
person or slave, so as to entitle him to claim
the compensation for his services. Peter first
lived with the plaintiff, confessedly, not as a
slave. The sheriff then sold all the right and
title of James Latham to this man, and the
plaintiff became the purchaser. But what evi-
dence is there that Peter ever was the property
of James Latham? If he ever was a slave be
belonged to James Latham's father, who died
in Canada subsequent to the sheriff's sale.
James Latham was not the executor or admin-
istrator of his father's estate; and how does it
appear that he ever acquired any property in
the slave? The circumstance that his father
abandoned his property, and went to Canada,
might, perhaps, be regarded as a virtual man-
umission of the mother of Peter; but James
417*] * Latham could have no claim to him.
except as an executor or administrator of his
father.
JOHNS. REP., 11.
YATES, «/., delivered the opinion of the
court:
The question in this case is, whether the evi-
dence is sufficient to establish the plaintiff's
property in the slave.
The mother of Peter was the slave of the
father of James Latham. By the Statute (sess.
11, ch. 40, sec. 2), he followed, from his birth,
the state and condition of his mother; and
consequently, he was the slave of Latham, the
father of James; unless, after going to Canada
during the Revolution, the master has been
attainted of adhering to the enemies of the
country, which would operate as a lawful ma-
numission of the slave. (Laws of New York,
sess. 9, ch. 58, sec. 29.) But such attainder
and conviction,' if any, has not been shown.
In 1798, the time when Peter was sold by the
deputy-sheriff, it appears Latham, the father
of James, was living and resided in Canada;
and he then continued to be the owner. The
abandonment of his family and property could
not devcst him of his right to the slave; and
the mere possession could not create such an
interest in James Latham, his son, as to sub-
ject the slave to be seized and sold for the pay-
ment of his debts. The plaintiff Gelston, hav-
ing only purchased the right and title of James
Latham from the deputy-sheriff, he cannot
now, under that sale, establish his claim to
him as his slave, who, if not a freeman alto-
gether, must be considered as part of the estate
of Latham, the owner of the slave's mother,
and subject to the disposition and control of
his executors and administrators, in the same
manner as the other personal property of the
deceased, unless otherwise directed by will.
The plaintiff having no claim to the services
of Peter, the nonsuit was properly gran ted by
the judge, and the motion to set it aside must
be denied.
Motion denied.
•JACKSON, ex dem. JOHNSTON [*4 1 8
ET AL.,
t.
DECKER.
Ejectment — Alien Enemy, Resident in Enemy"*
Country, Claiming Land* under Statute — Hit
Remedy Sutpended During War — Pleading.
An alien enemy resident in the enemy's country,
cannot, during the war, make a valid demise, so as
to maintain an action of ejectment for lands, the
NOTE.— Alien enemies— Right* of during war.
An alien cnemu, resident in the enemy's country,
cannot, during the war, maintain an action in our
court*. Bell v. Chapman. 10 Johns., 183 ; Bailey v.
Juckson, 16 Johns., 210; Sanderson v. Morgan, 25
How. Pr., 144; :>".> N. Y., 231: Mumford v. Mumford.
1 (Jail., 886: The Emulous. 1 Gall., 663; Johnson v.
Goods, 2 Paine, Sffl ; Crawford v. The William Pvnn.
Pet. C. C-. 106 ; Wilcoz v. Henry, 1 Dall., fl».
The duKihilitu is merely temporary, and when war
is over the objection is disregarded. Hamergley v.
Lambert, 2 Johns. Ch., 606.
Aln n* rr»iilcnt here at the breaking out of war
I', i a;, it their own country and the united States,
under an express or implied pormifvion. may sue
and be sued, as in times of peace. Clarke v. M«rey,
10 Johns.. 69; Brad well v. Weeks, 13 Johns., 1.
Where the plaintiff becomes an alien enemv after
judgment, the court will not stay or set aside the
execution. Buckley v. Lyttle, 10 Johns., 117.
205
418
SUPREME COURT, STATE OP NEW YORK.
1814
title to which had been acquired under a statute of
this State (2d of April, 1798, sess. 22, cb. 72).
The Statute merelv secures to aliens the title to
lands, and does not re'late to the remedy.*
The object of the Statute was to destroy the plea
of alienage, which might work a forfeiture of the
title, and not a plea which merely suspends a right
of action during a war between the two countries.
Alienage may be pleaded In bar or abatement,
and may be given in evidence under the general
issue.
Citations— Act, sess. 21, ch. 72; Vattel, bk. 3, ch. 5,
sec. 76; 10 Johns., 183; Sellon, Vol. II., p. 110, ch. 2.
rpHIS was an action of ejectment, for lot No.
JL 44, in the township of Junius, in the
County of Seneca, tried at the Seneca Circuit,
the 26th May, 1814, before Mr. Justice Platt.
The declaration contained a demise from
Justus B. Smith, on the 1st January, 1797,
and several demises from other lessors, laid on
the 1st January, 1812. There was also a joint
demise from all the lessors on the same day.
The lessors gave in evidence a patent, to
John Decker, for the lot in question, dated
13th September, 1790; and an exemplification
of a deed from Hendrick Decker to Peter B.
Ten Brook, dated the 14th of March, 1792,
duly proved and recorded, describing the grant-
or as the heir at law of "John Decker, late a
Erivate in the First Regiment of the line of the
tate of New York, in the Army of the United
States;" also sundry mesne conveyances from
Peter B. Ten Brook, to Sir William Pulteney,
the deed to whom was dated the 13th Decem-
ber, 1800. It was proved that Sir William
Pulteney died in May, 1805, leaving one child,
Henrietta Laura Pulteney, Countess of Bath,
who died in July, 1808, without issue, leav-
ing Sir John Lowther Johnston, his heir at
law, who was the only child of George Johns-
ton, the eldest brother of Sir William Pulte-
ney, and who died before Lady Bath. Sir
John Lowther Johnston died in 1811, leaving
Frederick George Johnston, Charlotte Marga-
ret Johnston, and Anne Elizabeth Johnston,
who are the other lessors of the plaintiff, his
only children and heirs at law, and who are
aliens and native subjects to the King of Great
Britain, and now reside in England.
Compensation had been duly tendered to the
defendant, for improvements, agreeable to the
Act (1 N. R. L. 304, sess. 36, ch. 80), before the
commencement of the suit.
The defendant's counsel read in evidence the
Act of the 14th of March, 1797, "to Settle Dis-
putes Concerning the Titles to Lands in the
County of Onondaga" (sess. 20, ch. 51), and
the Act of the 12th of February, 1798, to
419*] Amend the former Act; *and offered to
read in evidence, from the printed journals of
the house of Assembly, the report of the com-
missioners appointed .by the first-mentioned
Act, and which stated, among other things,
that lot No. 44, in Junius, was granted to John
Decker, of the Fourth New York Regiment;
which evidence was objected to, and overruled
by the judge.
The defendant then produced witnesses as
to the identity of the patentee, one of whom
knew a John Decker in the Fourth Regiment
of New York, and another, a soldier of that
name in the Second New York Regiment.
*See Bradwell v. Weeks, 1 Johns. Ch., 208; 13 Johns.,
1; Fairfax's Lessee v. Hunter's Lessee, 7 Cranch, 603,
619; 3 Wheat., 363, 594, 599; 4 Wheat., 453, 460.
20<>
It was admitted that the defendant was in
possession under color of title, and as a bona
fide purchaser.
It was, also, objected on the part of the de-
fendant, that the ancestors of the lessors, at
their death, and the lessors themselves, were
aliens, subjects of Great Britain, and residing
in Great Britain at the commencement of the
suit, and now resident there. This objection
was overruled by the judge ; and the jury
found a verdict for the plaintiff, subject to the
opinion of the court on a case containing the
facts above stated.
Mr. Henry, for the plaintiffs. There can be
no doubt as to the identity of the original pa-
tentee; the person under whom the lessors de-
rive title was shown to be the deceased soldier,
to whom the land was granted.
As to the other objection, the printed jour-
nals of the Assembly are not evidence, with-
out proof of their having been compared with
the originals.
The principal question is as to the alienage
of the lessors. We admit the general principle
that alien enemies, resident in the country of
the enemy, cannot maintain an action in our
courts. This objection is not, however, fa-
vored, and ought to be pleaded strictly. Where
the disability arises after suit brought, it must
be pleaded puts darrein continuance, and can-
not be given in evidence under the general is-
sue. But this objection does not apply to the
present case. By the Act of the Legislature,
passed the 2d of April, 17981, sess. 21, ch. 72,
all conveyances to aliens, not being the sub-
jects of any power, at the time of the convey-
ance, at war with the United States, are de-
clared to be valid, to vest the estate in such
aliens, and they *are to hold the same, [*42O
notwithstanding any plea of alienism. The
only exception is, that the party must not be
an alien enemy at the time of the purchase;
and the only restriction on the rights thus
granted is, that the grantee cannot lease or
grant the estate, reserving rent or creating a
tenancy. In every other respect, as perfect
right was vested by- this Statute in grantees of
land, who were aliens, as if they had been na-
tural-born citizens of this State. The perfect
faith of the State was pledged by the grant.
If, then, a perfect right was granted- it car-
ries with it a pefect remedy. The subsequent
intervening war cannot take away or impair
the right or the remedy. So far as regards
the lands, so allowed to beheld by aliens, they
are regarded as citizens. (Vattel's Law of Na-
tions, bk. 2, ch. 8, sec. 114, bk. 3, ch. 5, sec.
76.)
The Act of 1798 is analogous to special let-
ters of denization, by which an alien is ena-
bled to sue. (Co. Litt., 129 a.)
Again, by the 9th article of the Treaty of
Amity, Commerce and Navigation, made with
Great Britain the 19th of November, 1794, it
is agreed that British subjects, holding lands
in the United States, shall continue to hold
them, and may grant and dispose of them as
if they were native citizens ; and that neither
they nor their heirs or assigns should, as re-
gards such lands, and the legal remedies inci-
dent thereto, be regarded as aliens.
1.— This Act was limited in its ^duration to three
years.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. DECKER.
420
If the lessors are within the scope of this
Treaty, the objection of alienage cannot be
made.
Supposing even a right in the government
to confiscate or sequester the property of an
alien enemy, no individual could claim the
benefit of such a right. It belongs to the gen-
eral government, having the power to declare
war and peace. But this is a subject which
need not be discussed here.
Mr. KeUogg, contra. 1. The journals of
ihe Assembly ought to have been received in
evidence. The votes of Assembly, and the
minutes of Council, have been admitted in
evidence in Pennsylvania. (1 Dall., 9.) So
the resolutions of Congress were allowed to
be received in evidence in the case of Bing-
ham v. Cabot, 3 Dall., 19, 89, in the Supreme
Court of the United States.
A parish register, a register of the Navy of-
fice books in the herald's office, doomsday-
book, prison-books, the log-book of a man-of-
war, &c.. have been received in evidence.
(Bull. N. P., 248. 349 ; 3 Bos. & Pull., 188 ;
1 Esp. Cases, 427.)
2. Alienage may be pleaded in bar or
abatement. (Bell v. Chapman. 10 Johns.,
183.) If it may be pleaded in bar, it may be
421*] given in evidence under the 'general
issue. And in ejectment, by the consent rule,
the defendant is bound to plead the general
issue, and can put in no other plea. Lnder a
plea of it-Hi (uxumpnt, the defendant may give
in evidence that the plaintiff is an alien enemy.
(Chitty on PI., 479 ; Doug,, 649, n. 407, 410.)
All matters which go in l)ar of the plaintiff's
action may be given in evidence under the gen-
eral issue. In ejectment no special pleas can
be pleaded, unless in abatement, of a matter
which has arisen subsequent to the issue.
By an Act of the 2d of April. 1798, no
greater right in lands was granted to aliens
than they possessed, or might possess, by the
municipal law. or law of nations. Now, it is
well settled that the rights of an alien enemy
to personal property, though not taken away,
are suspended during the war. (Clark v. Jforey,
10 Johns., 69.) He cannot sue or bring any
action to recover his property until peace
is restored. In England it is held that an un-
derwriter on French property, in time of peace,
is not liable for a loss occasioned by capture
by British ships, during hostilities commenced
between France and Great Britain, subsequent
to the policy being effected, and terminated
before bringing the suit. (Kellrier v. Me*urier,
4 East, 896, 407.)
An alien enemy, even in regard to personal
property, can acquire no right during the war.
(Doug.. 649, ». 182; I* Bret v. Papillon, 4
East, 502 ; Furtado v. Roger*, 8 Bos. & Pull.,
191.)
Mr. Van VerJUen, in reply, said that without
the Act of April, 1798. aliens could not hold
lands, and it was competent to the Legislature
to grant the right to i hum. The lands held by
aliens are subject to taxation, and to contrib-
ute to the expenses of maintaining the war.
The lessors, in the piesent case, hold under an
express legislative grant. The rights of aliens
in regard lo personal property, rest on princi-
ples of general law. The lessors, having a
JOHNS. REP., 11.
perfect legal title, must on the faith of the
State, have a right to protect that title from
the invasion of third persons.
SPENCER, «/., delivered the opinion of the
court:
It appears, by the case, that the title to re-
cover exists in those of the lessors who were
alien enemies at the commencement of this
suit, resident within the Kingdom of Great
Britain ; and the questions submitted to us are
whether, under the circumstances of this case,
such alienage is u bar to the suit, and whether
the objection can be taken under the general
issue.
*The plaintiff's counsel have urged [*422
that the Act of the Legislature (sess.21.ch. 72),
and the 9th article of the Treaty of Amity .Com-
merce and Navigation, concluded the 19th of
November, 1794, between Great Britain and
the United States, preclude the defendant
from setting up the alienage of the lessors, as
a bar to their recovery. The Act of April,
1798, declares valid conveyances thereafter to
be made to any alien not being the subject of
some power which, at the time of the convey-
ance, is at war with the United States of
America, for the purpose of vesting the estate
thereby granted, in such alien ; and it provides
that it shall be lawful to and for such alien or
alieas to have and to hold the same to his, her.
or their heirs or assigns forever, any plea of
alienism to the contrary notwithstanding.
The Treaty provides that British subjects.who
then held lands in the territories of the United
States, should continue to hold them accord-
ing to the nature and tenure of their respect-
ive estates and titles therein, and might grant,
sell or devise the same to whom they pleased,
in like manner as if they were natives ; and
that neither they, nor their heirs or assigns,
should, so far as might respect the said lands,
and the legal remedies incident thereto, be re-
garded as aliens.
The Treaty, manifestly, has no application.
Sir William Pulteney and the lessors of the
plaintiff, though British subjects, neither held
nor owned the lot in question, until long after
the Treaty ; and it relates only to lands then
held by British subjects, and not to any after-
acquired lands.
The Statute has reference meffcly to the title;
it neither professes to regulate, nor does it at
all relate to anv remedy for the recovery of
land purchased" and held under its provisions.
The plea of alienage, interposed to suspend a
recovery during a war between the two gov-
ernments, is very different from the plea of
alienage which the Statute meant to guard
against and obviate. Without the protection
of the Statute, the lands purchased by Sir Will-
iam Pulteney would have been liable to es-
cheat. To do away any plea of alienage,
working a forfeiture and devesting the estate,
was the sole object of the Statute. It neither
contemplated nor provided for the present
case, which is a mere temporary suspension of
the remedy.
Vattel, in speaking of lands or immovable
goods, possessed by the subjects of an enemy
(book 8. ch. 5, sec. 76), observes : " In per-
mitting *them to purchase and possess T*423
these goods, he has, in this respect, admitted
207
423
SUPREME COURT, STATE OP NEW YORK.
1814
them into the number of his subjects, but the
income may be sequestered, for hindering the
remittance of it to the enemy's country ;" evi-
dently alluding to an alien enemy commorant
in the country.
The laws of all commercial nations allow
debts to be contracted in time of peace, be-
tween aliens and its subjects or citizens ; and
yet, when war intervenes, it forbids an alien
enemy, commorant in the enemy's country,
from maintaining a suit for the recovery of
such debts pending the war. As well might
the alien enemy, residing in the territory of
his sovereign, complain that as he was suffered
to acquire a debt in time of peace, he ought
not to be hindered in time of war from collect-
ing it. Such complaint would be in strict
analogy with that of the plaintiff in the pres-
ent case. The answer in both would be the
same : "Your debt, contracted with the per-
mission of the government, is saved to you,
and your lands, purchased under the sanctity
of our laws, is saved to you ; but neither of
you can sue whilst you remain commorant in
the enemy's country. The safety of the State
requires that you should not get possession of
your funds, during the war", lest they afford
you the means of making remittances to the
enemy's country."
The general issue of not guilty in ejectment,
puts in issue the right of the lessors to make a
demise for the purpose of maintaining an
ejectment. If alien enemies, resident in the
country of the enemy, cannot maintain the
action during hostilities, as it is clear they can-
not, they are incapable of making a valid de-
mise for that purpose. The case of Bell v.
Chapman 10 Johns., 183, shows that the alien-
age of the plaintiff may be pleaded in bar, or
abatement ; and whatever may be pleaded in
bar may, in ejectment, be given in evidence
under the general issue, provided the matter
existed at the commencement of the suit. Sel-
lon, Vol. II., p. 110, ch. 2, speaking of the de-
fense in ejectment, says that pleas in bar, or
abatement, are now seldom pleaded ; for the
defendant is bound, by the consent rule, to
plead not guilty.
It is rendered unnecessary to notice the
other points in the case. With respect to
them, I will only say that they do not stand at
all in the way of the plaintiff's recovery. The
title of the lessors was already made out, and
the evidence offered was properly rejected.1
Judgment for ifte defendant.
Cited in— 1 Wend., 512 ; 6 How. Pr., 76.
424*] *JACKSON, ex dem. SMITH and
JOHNSTON,
v.
M'CONNEL.
JSjectment — Alien Enemy — Pleading.
Where issue was joined in an action of ejectment,
on the demise of an alien, resident in England,
claiming: to hold land, under the Act of the 2d of
April, 1798, sess. 21, ch. 72, before the declaration of
the war ; it was held that the objection that the les-
1.— See Jackson v. Britton, 4 Wendell, 507.
208
sor of the plaintiff is an alien enemy, could not be
made under the general issue; but should have
been pleaded puis darrein continuance.
Where a party brings an action of ejectment, be-
fore he has offered to have the improvements val-
ued, and to pay for them, pursuant to the Act (N.
R. L., Vol. I., p. 304), he cannot recover costs, nor
be put into possession, until the improvements are
valued and paid for.*
rPHE facts in this case, which was argued to-
JL gether with that of Jackson, ex dem. John-
ston, etal., v. Decker, last reported, are the same,
except that the suit, having been commenced
before the death of John Lowther Johnston,
the demise was laid from him, instead of his
heirs , and the issue was joined before the
commencement of the war. It was also tried
at the Seneca Circuit, on the 27th of May,
1814. The defendant's counsel also insisted,
at the trial, that John Lowther Johnston was
not the heir at law of Lady Bath ; but the
judge overruled the objection, and decided
that the lessor was entitled to recover as heir
at common law.
It was also objected, on the argument, that
the plaintiff was not entitled to recover costs,
in this cause, because he had not offered to the
defendant to have the value of the improve-
ments appraised, pursuant to the Act. (Sess.
36, ch. 80, sec. 4.)
Messrs. Henry and Van Vechten for the
plaintiff.
Mr. Kettogg contra.
SPENCER, J., delivered the opinion of the
court :
The only difference between the case just
now decided and the present is, that the issue
in this suit was joined before the dclaration of
war. In this case, then, a new defense had
arisen ; and when the demise was made, the
lessors of the plaintiff could well make it.
The defendant should have disclosed his new
defense, by a plea puts darrein continuance,
and could not take the objection under the
general issue. The plaintiff is, therefore, en-
titled to possession, whenever the improve-
ments have been valued according to the Stat-
ute, and paid for ; but the plaintiff is not en-
titled to costs, as he did not offer to have the
improvements valued, and to pay for them,
before he brought the suit.
Judgment for the plaintiff accordingly.
Cited in— 3 Cow.. 79; 36 N. Y., 617 ; 41 Super.. 379.
*UNDERWOOD«. MORGAN. [*425
Assignment of Judgments — Construction of the
Contract.
A, for the sum of $200, agreed to assign over to B
certain judgments, obtained by A against G., in
Vermont, 'so as to enable B to obtain judgment
against G., and, when obtained, the judgment was
to be collected at the risk and expense of B." Suits
having been brought in this State by B, in the name
of A, against G., on the judgments in Vermont, in
which he failed to recover, he brought an action
against A to recover back the money he had paid ;
and it was held the agreement did not stipulate that
a judgment should be recovered in this State on the
judgments in Vermont; nor was there any implied
warranty on the part of A, and it not appearing
*Jackson v. M'Call 3 Cow., 75 ; Jackson v. Decker,
ante, p. 418.
JOHNS. REP., 11.
1814
I NPKKWOOD v. MORGAN.
425
but that the judgments in Vermont were valid
and might be recovered there, though not in this
State, there was no breach of the agreement, or
failure of consideration, so aa to entitle the plaint-
iff to recover.
THIS was an action of euwmpsit. The dec-
laration contained, besides the usual
money counts, a special count on the following
written agreement :
" Received, Lansingburgh, 21st of August,
1809. of John Underwood, $50 in cash, and his
bond for $150, which, when paid, is to be in full
of three judgments, in mv favor, against Sam-
uel Garhck, formerly of New Haven, in the
State of Vermont, an absconding debtor, and
S<-t!i Garlick, ax trustee to the said Samuel,
for the sum of $271.22, with interest; which
said judgments are to be assigned over te the
said Underwood, by my attorney, Daniel Chip-
m:ui. of Vermont, in a* legal manner, so as to
•enable him to obtain judgments against the
said Seth. as trustee to the said Samuel, and
win -n obtained, said judgment is to be collect-
ed at the risk and expense of the said Under-
wood. Jonas Morgan." The defendant plead-
ed the general issue. The cause was tried at
the Albany Circuit, in April last, before Mr.
Justice Spencer.
Suits were brought in this State by the plaint-
iff, in the name of the defendant, on the judg-
ments obtained by the defendant in Vermont,
•as mentioned in the above agreement ; but as
those actions could not be maintained in the
courts of this State, the plaintiff failed in the
suits.
The defendant had received payment of the
bond, and of the whole sum of $200, men-
tioned in his agreement.
At the trial, the plaintiff produced the rec-
ords of the judgment obtained in Vermont,
•and also, exemplifications of the judgments
in the actions brought thereon in this State in
the name of the defendant ; and it appeared
that the ground on which the court in this
•State gave judgment for the defendant Garlick
was. that the notice on which the suits in Ver-
mont proceeded, and judgments were obtained,
was served on Garlick in this State. (See Fen-
ton v. Garlick, 8 Johns., 194.)
The plaintiff and defendant both resided in
this State at the time the written agreement
was made.
4li(l*] *The judge nonsuited the plaintiff;
and a motion was made to set aside the non-
suit, and for a new trial.
Mr. H. lileecker, for the plaintiff. The princi-
pal question is, what is the true construction
of the agreement made by the defendant. We
contend that the defendant undertook, by that
agreement, that the plaintiff should be enabled
to recover judgment against Garlick, the
trustee, in this State, and that after such
judgment was obtained here, then the ability
-of Garlick to pay was to be at the risk of the
plaintiff. The agreement is not to be restricted
to a mere assignment of the judgments in Ver-
mont. The stipulation is that the assignment |
shall be so effectual that the assignee shall be
able to recover judgment. It was not that the
defendant should assign a mere right to sue in
In- name. The manner of the assignment is
of no consequence ; nor is it any objection
that the plaintiff paid less than the amount of
-JOHNS. RlCP., 11.
the judgments to be assigned, for he was to be
put to expense and trouble in prosecuting the
suit to a recovery. The only question is,
whether the judgments have been assigned
with the effect to enable the plaintiff to recover
a judgment in this State.
Again, is not the defendant bound to refund
to the plaintiff the money be has received ?
Where a person assigns a chose in action, on
which the assignee is not able to recover the
money, is he not bound to refund the consider-
ation money ?
The essence of the contract is, that the as-
signor transfers the sum of money, of which
the bond, or note, or contract, is the evidence.
There is an implied contract, on the part of
the assignor, that the assignee shall receive
the sura of money so assigned, and that the
debt or sum of money is really due and owing.
On this principle, where a person sells goods,
and receives the note of a third person in pay-
ment, if the note is not paid, the consideration
fails and the vendor may resort to the original
contract of sale, and recover the amount.
Wherever the consideration fails, the person
who receives my money is bound, ex equo et
bono, to refund it.
If the assignor has, in truth, no interest in
the money or thing assigned, or it has been paid
by the debtor to the agent of the assignor, with-
out his knowledge, the assignee may recover
back the money he has paid. In all sales of per-
sonal property there is an implied warranty as
to the title of the vendor. An *assignee [*427
does not purchase a mere piece of paper, of no
intrinsic value, but a debt or sum of money,
of which that paper is the evidence.
As between the indorser and indorsee of a
promissory note, at common law, it is the bare
assignment of a chose in action. Before the
statute of Anne, the action was not founded
on the note itself, but on the contract arising
from the transfer of the note. And where a
note is sold and transferred by delivery, with-
out indorsement, the vendor is liable to refund
the money, in case the note is not paid. (1 Ld.
Kaym. 443; Kyd on Bills, 90, 169.)
Mr. WaUbridge, contra. It is not expressed
in the agreement that the judgments are to be
so assigned that the plaintiff could recover
judgments thereon in this State. Could he
not recover judgment against Samuel Garlick
in Vermont ? ft is a matter of inference only
that the plaintiff was to be able to recover his
money here. There is nothing of the kind in
the contract itself. The plaintiff may go into
Vermont and recover his money there. The
words " when obtained " refer to the assign-
ment to be made to the plaintiff, npt to the
judgment to be obtained by him afterwards.
The true construction of the agreement is, that
the judgment is to be obtained at the risk and
expense of the plaintiff.
Again ; if the plaintiff is to recover back
the money he has paid, it must be on the
ground that the consideration has failed.
There is no evidence of that fact. The judg-
ments in Vermont were the things assigned.
Those judgments are in full force and virtue
in the State of Vermont. It is not pretended
that the debtor has' paid the amount to the de-
fendant or his agent; no fraud or deceit is al-
leged. How, then, can it be said there is a
N. Y. R., 5.
14
209
427
SUPREME COURT, STATE OP NEW YORK.
1814
failure of consideration, as long as the judg-
ments in Vermont remain valid and unsatisfied.
[He was stopped by the court.]
Mr. Bleecker, in reply, said the fact that all
the parties resided in this State clearly showed
that they must have intended that the plaintiff
was to recover a judgment here on the judg-
ments in Vermont, which the defendant was
to assign to him.
If the judgments were of that nature that
they could not sustain an action here, the de-
fendant must have known it, and he ought to
have informed the plaintiff of the nature of
the judgments assigned.
428*] *THOMPSON, Ch. J., delivered the
opinion of the court :
The motion to set aside the nonsuit in this
case must be denied. There has been no viola-
tion of the special agreement upon which the
action is brought, when construed according
to its true import, and its legal effect and
operation. It was proved by the plaintiff that
the judgments assigned by the defendant
to him were obtained in the State of Ver-
mont. Although the judgments were void
in this State, so that no action could be main-
tained upon them here, that was no breach of
the stipulation in the assignment. Nothing
appears showing that the judgments were not
good in the State of Vermont, or that the
plaintiff could not maintain an action upon
them there ; and no part of the assignment
will warrant the conclusion that the defendant
stipulated that an action could be sustained
upon the judgments in this State.
There is certainly no express warranty of
these judgments, and any implied warranty is
rebutted by the very terms of the assignment ;
for the plaintiff took them at his own risk.
This was obviously the intention of the parties,
as appears both by the terms of the assignment,
and the consideration paid, which was much
less than the face of the judgment. If the
defendant, by the assignment, had stipulated
that the plaintiff should be enabled to obtain
judgment in this State upon the Vermont
judgments, there would then have been weight
in the argument of the plaintiff's counsel. But
this stipulation is not to be found in the as-
signment, nor does the case furnish any facts
warranting the conclusion that such was the
intention of the parties, admitting it would
have been competent evidence.
Motion denied.
429*] »*H. LIVINGSTON, by his next
Friend, M. LIVINGSTON,
v.
HAYWOOD.
Waste — Action by Remainderman Under Statute.
The statute (1 N. K. L., 527, sess.36, ch. 56, sec. 33)
giving the reversioner or remainderman an action
of waste or trespass, for any injury dune to the in-
horitimce, notwithstanding1 an intervening estate
for life or fur years ; gives the person in reversion
or remainder, an action of waste only against the
tenant; but he can bring1 an action of trespass
aviii ust a stranger only.
Citations— 1 N. R. L., 527; 1 Cruise, 70, sec. 40.
THIS was an action of trespass, tried at the
Columbia Circuit, before the late Chief
Justice, in October 1813. The premises on
which the trespasses were committed were
in the town of Grainger, and were lands leased
by Henry W. Livingston, now deceased, the
father of the plaintiff. Part of the premises
were leased to Moses Bixby, on the 1st of Oc-
tober, 1799, for the lives "of Bixby and his
wife. The other part was leased on the first
of May, 1805, to Henry Pitcher, for the lives
of himself and his wife. The leases contained
covenants on the part of the lessees, their heirs
and assigns, against cutting down, taking, or
carrying away, any more wood or timber ^han
should be actually used on the premises, and
against committing or suffering any waste or de-
struction thereof. Thelessor.HenryW. Livings-
ton, devised the premises to Mary Livingston, 1m
wife, for life, and after her death, to the plaint-
iff, his heirs and assigns forever. After the
death of the lessor, the defendant sold, and
permitted to be cut and carried away from the
premises, at one time, fifty loads of wood.
The defendant was in posession as assignee of
the lessees.
The defendant's counsel moved for a non-
suit, on the ground that the statute under
which the suit was brought, which gives an
action of waste, or trespass, to the reversioner,
for any injury done to the inheritance, did
not apply to this case ; but was intended to-
give the action of trespass against stranger*
only ; and the Chief Justice being of that
opinion, the plaintiff was nonsuited.
Mr. E. Williams, for the plaintiff. By the
Act (1 N. R. L., Vol. I., p. 527, sess. 36, 56,
sec. 33) it is declared " that it shall and
may be lawful for any person or persons,
seised of an estate in remainder or reversion,
to maintain an action of waste or trespass for
any injury done to the inheritance, notwith-
standing an}7 intervening estate for life or for
years."
The reason of this statute was, that as no
person was entitled to an action of waste
against a tenant for life but he who had the
immediate estate of inheritance, ex- [*43O
pedant on the determination of the estate for
life, if between the estate of the tenant for life,
who had committed waste, and the subse-
quent estate of inheritance, there was inter-
posed an estate of freehold to any person in
esse, the action of waste was, during the con-
tinuance of such interposed estate, suspended;
and if the tenant for life died during the con-
tinuance of such intervening estate, the action
was gone forever. (1 Inst., 540 ; 2 Inst., 303 ;
1 Cruise's Dig., 70.)
The statute gives the action of waste or
trespass, and the plaintiff has elected to bring
trespass. The judge was, therefore, incorrect
in nonsuiting the plaintiff.
That covenant lies also in this case, is no-
objection to this action. (2 Saund., 252; 2
Bl., 111.)
Mr. Van Beuren, contra. By a fair con-
struction of the statute, it was intended to give
the reversioner, or remainderman, an action of
waste only against the tenant, and an action
of trespass against a stranger. It is not pre-
tended that there was any injury done to the
freehold. If the judge was not correct in his
JOHNS. REP., 11.
1814
HAYWOOD v. WHEELER.
480
construction of the Statute, it would be most
unjust, and ought to be repealed.
THOMPSON, Ch. «/., delivered the opinion of
the court:
This is an action of trespass against the de-
fendant, who holds the locus in quo, as assignee
of the tenant for life, under a lease given bv
the ancestor of the plaintiff. The plaintiff
claims as devisee in remainder, under the will
of his father, in which the locus in quo is de-
vised to his wife Mary, during her life, and
after her death to the plaintiff, Henry Living-
ston, his heirs and assigns forever.
The question is, whether an action of tres-
pass will lie, by the devisee in remainder, dur-
ing the continuance of the life estate. The
Statute (1 N. R. L., 527), which is supposed
to authorize the action, is in these words :
" That it shall and may be lawful for any per-
son or persons, seised of an estate in remainder
or reversion, to maintain an action of waste
or trespass for any injury done to the inherit-
ance, notwithstanding any intervening estate
for life or years." This Statute creates a new
remedy. The action of waste could not be
maintained against a tenant for life, except by
him who had the immediate estate of inherit-
ance expectant on the determination of the
4:51*] *estate for life. So that, if between
the estate of the tenant for life, who com-
mits waste, and the subsequent estate of in-
heritance, there was interposed an estate of
freehold, to any person in esse, during the
continuance of such interposed estate, the
action of waste was suspended. (1 Cruise, 70,
sec. 40.)
The plaintiff (Henry Livingston) stood in
that situation; and during the continuance of
the life estate of his mother, could not, with-
out the aid of the Statute, maintain the action
of waste. But the action of waste lies only
against the tenant, or his assignee or heirs, and
cannot be maintained against a stranger. Nor
could any person, unless he was in the actual
possession of the land, maintain trespass for
an injury done to the inheritance. The Statute
rnu>t have been intended to provide for these
two cases — to give the action of waste to the
reversioner or remainderman against the ten-
ant, notwithstanding any intervening estate for
lifr or years ; ana the action of trespass
against a stranger, notwithstanding he had not
the actual possession. No other rational con-
struction can be given to the Statute. It can-
not be pretended that it gives an action of
waste against a strangei ; and yet, from the
words of the Statute, this might be urged with
the same propriety as that it gives trespass
against the tenant. It must be understood as
giving to the remainderman, or reversioner,
an action of waste, where waste is the ap-
propriate remedy, and trespass, where tres-
pass is the appropriate remedy, notwithstand-
ing anv intervening estate for life or years.
According to this construction, the plaintiff
cannot maintain the action of trespass, and
the motion to set aside the nonsuit must be
denied.
Motion denied.
Cltwl ln-13 Johns.. 363; 12 Wend., 73; 29 N. Y.,
» : 70 X. Y., 151 ; 3 T. & C., fll.
JOHNS. RBP., 11.
*H AY WOOD t. WHEELER. [*432
Penalty under Statute for Refuting Public Of-
fice— Can be Recovered but Once.
Where a person has been appointed an overseer
of the highway, under the Act <st*s. 3tt, eh. 35 ; 2 \.
R, L., p. 125), and ni-jf lects or refuses to serve, where-
by he Incurs the pcnaltv imposed by the Act (2 N.R.
L., 270, SOBS. 3«, en. 33), ne cannot be appointed an
overseer, or be made liable for a second penalty for
the second refusal to act.
Citations-2 N. R. L., 125, seas. 36, ch. 35 ; 2 N. R.
L., 270, seas. 36, ch. 33.
IX ERROR, on certiorari from a justice's
court. Wheeler declared, in the justice's
court, in debt, for that Haywood had been
duly appointed one of the overseers of high-
ways, in and for the town of Grainger, by the
commissioners of highways, agreeably to the
Act, &c. ; and that after being so appointed
he neglected and refused to serve, by reason
whereof he had incurred the penalty of $12.50.
The defendant pleaded not guilty.
It was proved by the commissioners that
they had appointed Haywood as one of the
overseers of highways for that town ; and that,
when so appointed, he resided in the district ;
and that they made out a list of the persons in
the district, with the number of days they were
assessed to work, with their warrant, requir-
ing him to cause the number of days to be
worked, and delivered the same to him, and
that he neglected and refused to accept the
appointment.
It was proved by Haywood that he had been
elected overseer of the district, to which he
was appointed, at the preceding town meet-
ing ; that he had refused to accept the office,
and had been sued by one of the commission-
ers for the neglect, and the penalty recovered
against him : and that the vacancy to which
he had been appointed had been occasioned by
his refusal as aforesaid.
There was a verdict and judgment for the
plaintiff below for $12.50.
SPENCER, J., delivered the opinion of the
court:
By the 1st section of the Act relative to the
Duties and Privileges of Towns (2 N. R. L.,
125, sess. 36, ch. 35), overseers of highways
are to be annually chosen ; and the 9th section
of the Act imposes a fine of $12.50 for neglect-
ing or refusing to take the office. The 14th
section of the Act Regulating Highways (2 N.
R. L., 270. sess. 86, ch. 83), provides that if
any vacancy in the office of overseer of high-
ways shall happen by death, or otherwise, the
commissioners of the town shall appoint
"other or others in his or their stead." who
*are rendered liable to the same penal- [*4-!itt
ties as overseers chosen are liable to. The
commissioners exceeded their powers in ap-
pointing the same person, who had been
elected, and refused to qualify to the same of-
fice. They were confined, by the terms of the
Act, to the appointment of some person other
than the person refusing. The Legislature
considered the penalty as an equivalent for the
service, and if the construction be tolerated
which the court below have adopted, the per-
son refusing to accept the office, for which he
might have very urgent reasons, would be
subjected to endless litigation, if not ruin.
211
433
SUPREME COURT, STATE OP NEW YORK
1814
Whether, therefore, there was legal proof of
the recovery of the former penalty or not,
Haywood stood exposed to be sued for the
penalty, and was not liable to be appointed to
the office.
Judgment reversed.
RAY ET AL. «. HOGEBOOM.
Escape — Privilege from Arrest, a Good Defense
to Action for.
Where a soldier, privileged from arrest, was taken
in execution by a constable, who suffered him to go
at large, it was held, that though the constable was
not bound to take notice of the privi|ege of the
party, yet it was a good defense, in action, for the
escape ; as the plaintiff, having no right to arrest,
had suffered no injury or wrong.
IN ERROR, on certiorari from a justice's
court. Hogeboom sued Ray, who was a
constable, and .the other defendants, who were
his sureties, for the escape of one Traver, on
an execution. It appeared that Ray took
Traver on an execution, at the suit of Hoge-
boom, and delivered him over to another con-
stable to convey to jail ; but neglected to de-
liver over the execution, whereby Traver was
discharged. It was admitted, or proved, that
when Traver was taken he was a soldier in the
Army of the United States, and that the execu-
tion was under $20. Hogeboom obtained
judgment before the justice for the amount
of the execution.
SPENCER, J., delivered the opinion of the
court:
The judgment must be reversed. The con-
stable was not bound to notice the fact that
Traver was protected from arrest ; but if he
chooses to notice it, or neglects to take a per-
son privileged from arrest, and can show that
he is so privileged, it is a good defense in an
action against him. No wrong or injury has
434*] been *done to Hogeboom. He had no
right to arrest the body of Traver ; and having
no right to do so, he cannot found any action
on the neglect to execute his writ.
Judgment reversed.
Cited in-13 Wend., 69 ; 21 Wend., 353 ; 40 N. Y.,
134 ; 1 Keyes, 519, 525 ; 4 Abb. App. Dec., 600 ; 1 Abb.
Pr., 435.
JACKSON, ex dem. WOOD,
v.
HARROW, Survivor of MORSE.
1. Evidence — Contents of Certificate of Proof of
Deed — Copies of Affidavits. 2. Tenant's Pos-
session is Possession of Landlord.
In a certificate of the proof of the execution of a
deed before a master in chancery, or other officer,
it is not necessary to state that the officer personally
knew the subscribing witness ; and when the objec-
tion was that it did not appear that the master knew
the witness who made the proof ; the court, on a
motion for a new trial, intended that the certificate
of the master stated that he had satisfactory evi-
dence of the person being the subscribing witness.
Where the landlord unites 'with the tenant in de-
fending a suit in ejectment, it is sufficient to prove
the tenant to have been in possession at the com-
mencement of the suit, and his possession is deemed
to be the possession of the landlord.
212
Where a defendant serves copies of affidavits on
a plaintiff, the originals of which are on file, he can-
not afterwards object to reading the copies in evi-
dence, but they are to be considered as equivalent
to office copies.
Citation— 1 N. R. L., 369, 445.
was an action of ejectment, tried at
JL the last Cortlandt Circuit, before Mr, Jus-
tice Spencer.
At the trial, the plaintiff produced a deed in
fee, dated the 12th of February, 1808, from
Thomas Burk, for the premises in question.
The defendant objected to the admission of the
deed in evidence, upon the proof thereof be-
fore the master in chancery, "as it did not
appear that the master knew the witness who
made proof before him of the identity of the
grantor." But the objection was overruled by
the judge, and the deed admitted.
In July, 1808, the lessor of the plaintiff
made some improvement on the lot in ques-
tion ; and one Porter erected a log house ou
the lot, under the lessor ; and one Bennet,
afterwards occupied it under the lessor ; and
when he left it Morse, against whom this ac-
tion was brought, entered and took possession
of the house and improvements, and held the
same until his death, which was since the
cause was at issue, and before the trial.
There was no evidence that Harrow, the
other defendant, was in possession at the com-
mencement of the suit, or at any other time,
and the defendant objected that the plaintiff
could not recover without showing him to
have been in possession when the suit was
commenced.
The lessor then gave in evidence a certified
copy of a rule of the court, of the 14th of May,
1813, by which the default *and eject- [*435
ment against -the casual ejector, and subse-
quent proceedings, were ordered to be set
aside, and Joseph Harrow be admitted a de-
fendant with Morse, the tenant ; and that
Joathan Armstrong, and the joint devise in
which he was named, should be struck out of
the declaration. It appeared that the defend-
ant's attorney had served the plaintiff's attorney
with a notice of the motion to set aside the de-
fault, &c. , and to have Harrow made defend-
ant with Morse, and with a copy of the affi-
davits of Harrow and Morse, on which the
motion was founded. Harrow, in his affidavit,
stated that Morse held the premises in qustion
under a lease from him, and that Morse was
unable to make him satisfaction for his neglect,
in not giving him notice of the commencement
of the suit ; and Morse also swore that he held
the premises under a lease from Harrow. The
plea and consent rule were also produced, and
in which both Harrow and Morse appeared as
defendants. Morse afterwards died, and his
death was suggested on the record. The
plaintiff contended that the affidavits showed
that Harrow defended as landlord. The de-
fendant objected to the admissibility of the
affidavits in evidence, and that it did not ap-
pear, by the rule of court, that Harrow was
admitted otherwise than as a joint defendant
with Morse. The judge overruled the objec-
tion, and under his direction, the jury found
a verdict for the plaintiff.
A motion was made to set aside the verdict,
and for a new trial, on which the case was
submitted the court without argument.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. CRIB.
435
SPENCER, J., delivered the opinion of the
court :
The objection to reading the deed in evidence
The plaintiff gave in evidence a deed from
Gideon Allen. Jr., to John Richardson, for the
whole lot. subject to a mortgage given by
was, that the master in chancery had not Allen to the people of the State of New York,
stated, in his certificate of proof, that he knew for the payment of $1.475.62, in the year 1805,
the witness making the proof to be the sub- with interest, and dated December 20th, 1796.
scribing witness to the deed. The Act re- 1 Exemplifications of a judgment recovered by
quires (1 N. R. L., 369) that the officer taking Watson against John Richardson, which was
the proof of a deed, must know the person
making the proof, or have satisfactory evi-
dence that be is a subscribing witness to the
docketed March 29th, 1797, and of a test.Ji.fa.
issued thereon, and a sheriff's deed to Watson
of the premises, dated April 14th. 1801, were
deed. In this case the master did not know \ produced ; and it was proved that the defend-
the witness, but we are to intend that the cer- ant was in possession when the declaration
tificate states that he had satisfactory evidence j was served on him ; and confessed at the time
that he was the subscribing witness. The ob-
jection at the trial, that no deed could be
proved, unless the officer taking the proof per-
sonally knew the subscribing witness, is clearly
unfounded.
4.' JO*] *Harrow had been admitted a co-de-
fendant with Morse, upon his own application,
and by order of the court ; and this is one of
the methods pointed out by the Statute for the
landlord to adopt. He may join with the
tenant in the defense ; or in case the tenant
refuses to appear and defend, judgment may
be entered against the casual ejector, and the
landlord win be permitted to enter into the
consent rule, and a stay of execution be ordered
on the judgment, until the title be tried. (1
N. R. L., 445.) When the landlord unites with
the tenant in the defense, it is sufficient to
prove the tenant to have been in possession at
the time of the commencement of the eject
of service, that he held under and derived title
from Gideon Allen, Jr.
The defendant produced a deed, with cove-
nants of warranty, dated June 5th, 1806. from
William Richardson and wife, to him, for the
premises, subject to a mortgage by Allen, be-
fore mentioned ; and then proved that William
Richardson went into possession in 1795, and
held as owner until 1806, when the defendant
took possession; and that Richardson was the
first who had taken possession after the land
was abandoned by the Indians.
The defendant offered to prove that before
the Cayuga Reservation was purchased of the
State, in 1796, John Richardson told his
mother that he had conveyed the premises in
question to his father, William Richardson ;
which evidence being overruled, the defendant
offered to prove the loss of the deed, by prov-
ing that he could not find it on search ; that he
ment, and his possession is to be deemed the ] called on William Richardson, who, on search,
possession of the landlord. j said that he could not find it and had given it
The rule of court, authenticated by the | to the defendant, with th.e other evidences of
1 title ; and that William Richardson was old,
and could not conveniently be produced ; and
that before Watson's judgment against J.
Richardson, and before the contract on which
on file, and the copies offered in evidence, as ! that judgment was founded, a parol exchange
between Harrow and the plaintiff, wereauthen- had been made between J. and W. Richardson,
clerk, was unobjectionable evidence to prove the
fact that Harrow had been admitted a co-de-
fendant. I perceive no objection to the ad-
of the affidavits. The originals were
. ticated by Harrow himself. He served possession taken *accordingly, and the [*
them as true copies on the plaintiff's attorney, [ premises recognized by J. Richardson to be the
and cannot be listened to, in saying they are ' property of W. Richardson. All this evidence
not true copies of the affidavits on which the
motion was made, and the rule granted ; they
were equivalent to office copies.
Motion denied.
Cited In-1 Wend.. 412; 2 Hill, 382; 10JN. Y., 543;
tf Barb., 130.
437*] *JACKSON, ex dem. WATSON,
t>.
CRI8.
ntnt — Eridence — Zxww of Deed — Parol Evi-
dence not Adtntoible — Satisfied Mortgage not
ft Bar.
In ejectment, when? the defendant derived his
ritli- from A. who derlv«-d from B, it was held that
he i-i MI Id not jflve In evidence the declarations of A
and I) aa to the loss of the deed from B to A ; nor
i <.ii! 1 IP- prove a parol exchange between A and B.
A satisfied inortKiiw, though paid off by the de-
fendant, is not a bar In ejectment.
THIS was an action of ejectment, brought to
recover part of lot No. 85, in the Cayuga
Reservation, and was tried at the Cayuga Cir-
cuit in May, 1814, before Mr. Justice Platt.
JOHNS. REP., 11.
was also overruled.
The defendant then offered to give in evi-
dence Allen's mortgage to the State by which,
in case of failure of payment, he agreed to be
absolutely barred of all" equity of redemption,
after the expiration of one year from the time
of failure ; and offered to prove that the mort-
gage had been forfeited for non-payment of in-
terest before the sheriff's sale to the plaintiff's
lessor; but it appearing by the records of the
County of Cayuga, which were produced, that
the mortgage had been paid by the defendant
and had been duly canceled, the judge over-
ruled this evidence; and by his direction, the
jurv found a verdict for the plaintiff.
The case was submitted to the court without
argument.
TAXES, J., delivered the opinion of the
court :
The evidence was properly overruled. There
can be no question that the confessions and
i declarations of John Richardson, and the parol
exchange between him and William Richard-
son, could not be received as evidence of title.
There was no evidence of the existence of a
deed, and the declarations of the defendant
fit
438
SUPREME COUKT, STATE OF NEW YOKK.
1814
and William Richardson of ineffectual searches
for it, could not avail in support of the de-
fendant's claim. What the effect of an out-
standing and forfeited mortgage,with an agree-
ment on the part of the mortgagor stated in it.
like the one offered in evidence would be, can-
not now come in question. The claim under
the mortgage was extinguished. It had been
paid off and cancelled, and its operation was
thereby effectually destroyed. That the pay-
ment was made by the defendant does not
vary the law on the subject.
Judgment for the plaintiff.
439*] *RAMSAY «. GARDNER.
Principal and Agent — Damages — Recovery of
by Agent.
A applied to B for his advice how to draw a sum
of money from Scotland ; and according to B's ad-
vice, drew a bill of exchange in favor of B, who
indorsed and negotiated it : and the bill being re-
turned protested. B had to pay the 20 per cent, dam-
ages, and charges of protest.
It was held that B, having acted as the agent of A
and in good faith, without any view to his own
benefit, was entitled to recover of A the damages
and expenses so paid by him, as so much money
paid for the use of A.
THIS was an action of assumpsit, tried at the
Schenectady Circuit in September, 1813.
The plaintiff's demand consisted of money paid
for postages, protests, &c., of a bill of ex-
change, and also £20 sterling, or $88.88 dam-
ages paid thereon, with interest.
The defendant objected to the charges of
damages and expenses on the bill of exchange
as being inadmissible under the plaintiff's dec-
laration, which contained only the money
counts ; but the judge overruled the objection.
The defendant, being in want of money, ap-
plied to the plaintiff to inform him, how he
should draw £100 from a relation in Scotland.
The plaintiff advised him to draw a bill of ex-
change in favor of the plaintiff, for that
amount, on the person in Scotland, and send
the same to him and he would forward it; and
as soon as advice was received of the payment
of the bill, the plaintiff would pay him the
money. The defendant, accordingly, drew the
bill, which the plaintiff indorsed and nego-
tiated. The bill being returned protested, on
the 1st of October, 1806, for non-payment, the
plaintiff, as indorser, had to pay 20 per cent,
damages, with the charges of protest.
On the 28th of March, 1808, the defendant,
who resided at Charleston, wrote the plaintiff
at Albany, saying: " Your's coming to hand
last week, it troubles me much that, at present,
it is out of my power to advance money. I
am doing everything in my power to satisfy
all demands against me, and I hope I shall
soon have it in my power so to do."
It was also proved that the defendant had
admitted that he applied to the plaintiff to ne-
gotiate the bill for him, and that it came back
protested, of which he had due notice, and
that the plaintiff had paid the 20 per cent,
damages, and the expenses on the protest ; but
he objected to paying the 20 per cent,
damages.
2U
The defendant insisted that the plaintiff was
not entitled to recover: 1. Because it did not
appear that the plaintiff was authorized to sell
the bill in market ; and that if he did so, and
*thereby became liable to pay the [*44O
damages on its being protested, it was his own
fault, and he ought to bear the loss ; nor was
the bill given in payment of any pre-existing
debt.
2. That the damages could not be recovered
in this action on the money counts only, but
the plaintiff should have brought a special ac-
tion on the case.
A verdict was taken for the plaintiff for the
amount of his demand, subject to the opinion
of the court on a case containing the above
facts.
The case was submitted to the court without
argument.
THOMPSON. Ch. J., delivered the opinion of
the court
It is evident,
from the facts stated in the
case, that the plaintiff in the negotiation of the
bill of exchange, acted as the mere agen', of
the defendant, without any expected benefit to
himself ; and it was an agency, too, of the
most unlimited discretion. Application was
made by the defendant to him for advice and
direction how the money should be drawn for,
and the mode adopted was that suggested by
the plaintiff. Nothing particularly appears to
have passed between the parties as to the man-
ner in which the bill was to be disposed of —
whether to be sold here by the plaintiff or not.
But it appears to be admitted that the plaintiff
acted in good faith, and without any view to
his own benefit, and his having made himself
responsible for the damages on the bill by
reason of his indorsement, was solely for the
accommodation of the defendant ; it would be
most unreasonable and unjust that he should
not have a remedy over against the defendant
for the damages so paid upon the bill, and the
defendant's letter of the 28th of March, 1808,
would seem to be a recognition of the justice
of this claim, and a ratification of the plaint-
iff's conduct in relation to the bill. The letter
does not expressly refer to this demand, but
that is fairly to be intended, as it does not ap-
pear that the plaintiff had any other claim
upon him.
If the defendant is at all liable, it must be on
the ground that the plaintiff acted as agent in
this business, and has paid these damages upon
this returned bill, in his character as agent. If
so, it was money paid for his principal ; and
this is the light in which the transaction must
be viewed. No objection, therefore, can be
*made to the form of the action. The [*441
plaintiff must have judgment for $134.42.
Judgment for the plaintiff.
Cited in— 19 Johns., 387; U N. Y., 333 ; 67 N. Y., 146.
GARY AND GARY «. HULL.
Agreement as to Payment of Judgment —
Waiver of.
G. agreed with H. to accept payment for a judg-
ment against H. in tanner's bark, and H. accord-
ingly delivered to G. six loads of bark, but not
agreeing as to the price, G. immediately issued an
JOHNS. REP., 11.
1814
BKKKMAN v. WRIGHT.
441
the judgment against H., who then
brought an action for HO much bark sold and de-
livered; and It was held that ho was entitled to re-
<-ovr: the rig ht of applying the bark In payment
of the judgment having been waived by the act of
O., and the agreement rescinded.
IN EHROH, on e«rtiorari from a justice's
court. Hull brought an action against
JoM-ph and John Gary, before the justice, for
:i quantity of tanner's bark sold and delivered.
I'li-n, the general issue.
The defendants below Ijad sold a wagon to
Hull and his brother for $45, to be paid for in
bark. Five dollars only were paid on that
contract ; and when the time had expired,
Hull confessed two judgments before a justice
for the balance, being $40. It was then
agreed that Hull might yet make payment
in '> trk, to be applied on the judgments.
The plaintiff, accordingly, delivered six
loads of bark to the defendants below ; but
the parties not agreeing as to the price, the de-
f rti« hints issued executions for the whole
amount of their judgments, which executions
were in the constable's hands at the commence-
ment of this suit.
The justice gave judgment for the plaintiff
below for the value of the bark so delivered.
/' r Curiam. This is a clear case for the
plaintiff below. The defendants had waived
the benefit of applying the bark on their judg-
ment against Hull by issuing their executions
for the whole amount of tho«e judgments.
The agreement, therefore, for making such
application, appears to have been rescinded by
mutual consent : and there remained no objec-
tion to Hull's claim for the bark.
The judgment must be affirmed.
Judgment affirmed.
Cited in-7 Cow.. 94 : 5 Wend.. 307 ; 2 Hill, 488; 26
Barb., 467 ; 43 Barb., 317.
442*] *BEEKMAN v. WRIGHT.
Practice — Jnttice Court — Defendant Entitled to
Second Adjournment — Costs.
After issue joined, a cause in a justice's court was
adjourned at the request of the defendant, for more
than :W >l iy-. upon giving security, &c. At the day
fixed by the adjournment the parties appeared, and
the defendant showed due diligence in subpoenaing
his witnesses, and made oath that a material witness,
who had been subpcenaed, did not attend, and
prayed a second adjournment, which was refused
by the justice unless the defendant would pay the
i costs, which not being done, the cause was
heard cx-ixirtt, and decided. It was held that the
defendant, having given security, and shown
'In-- diligence in procuring the attendance of his
witnesses. Sec., was entitled to a second adjourn-
ment. Whether a justice has power, in any case, to
exact costs, on granting a favor to a party in a
cause.
Cltations-2 Johns.. 383 ; 9 Johns. 133, 384 ; 2 Cai.,
4J78; 8 Johns, 437.
IN ERROR, on certiorari from a justice's
court. Wright sued Bcekman by summons;
and after joining issue, on the 80th of March,
1812, the trial was adjourned, on application
•of the defendant below, until the 2d of May,
1812, upon giving security, &c.
The parties appeared again on the 2d of
May. and upon proving due diligence in sub-
-!<>iiN8. RKP.. 11.
pcenaing his witnesses, and making oath that
a material witness, who had been subpojnaed,
did not attend, the defend»nt moved for a
second adjournment. No objection wus made
to the affidavit, nor was any negligence im-
puted to the defendant ; but the justice refused
to grant the adjournment, unless the defend-
ant would pay all the extra costs, which he
refused to do, and left the court. The trial
proceeded ef-jxirlf, and judgment was given
for the plaintiff for $25 and the costs.
The return also stated that " the jury went
out, and afterwards returned a verdict,*' with-
out showing that a constable was sworn to at-
tend them.
Per Curiam. According to the decisions
in Eatton v. Coe, 2 Johns., 388; Power* v.
Loekirood, 9 Johns., 183; and Ilemttract v.
Youngs, 9 Johns., 864, it appears that upon
giving security, and showing due diligence,
and special cause, a defendant may be en-
titled to a second adjournment. The justice
in this case denied the adjournment, merely
on the around that the defendant refused to
pay costs.
Whether a justice's court has a right, in any
case, to exact costs, upon granting a favor to
a party, it is not now necessary to decide ;
but, under the circumstances of this case, the
justice had no right to annex such a condition,
because the defendant, on good grounds,
claimed it as a right.
According to the cases of Van Doren v.
Walker, 2 Caines, 373, and Fink v. Hall, 8
Johns., 437, there is a fatal error, in that it
does not appear, by the return, that a consta-
ble was sworn to attend the jury.
Further, it does not appear upon the merits,
that the plaintiff below had a legal ground of
action. The judgment ought to be reversed.
Judgment reversed.
Cited ln-2 Cow., 425 ; 8 Wend., 64.
•OSWALD v. GILFERT. f*443
I^eame — Covenant to — Taxes Embrace Aitsessnient
for Altering Street.
Where a lease of a lot in the City of New York
contained a covenant that the lessee should pay all
taxes and assessments of every kind whatsoever,
which should be imposed on the premises, he was
held liable for an assessment imposed by the cor-
poration for altering a street.
Citation-10 Johns., 98.
rPHE declaration contained two counts, sub-
1 stantiallv the same, for a breach of cove-
nant, contained in a lease, given by the plaint-
iff to the defendant, during her natural life,
for lot No. 13, in Maiden Lane, in the City of
New York, at an annual rent of $750, payable
quarterly. The defendant covenanted and
agreed that he, his executors, administrators or
assigns, would pay "all taxes and assessments
of every kind whatsoever, which should be
laid or imposed on the premises during the
said term." The declaration further stated
that on the 7th of October, 1811, an ordinance
was made by the Corporation of the City of
ftli
443
SUPREME COURT, STATE OF NEW YORK.
1814'
New York, for altering, &c., the said street,
and, according to the statute, an estimate of
the expenses of such alteration was made, and
also an assessment on the lots &c., which was
done, and was ratified by the corporation ;
that the lot in question was assessed, and
charged with $568.50, which the defendant
refused and the plaintiff was obliged to pay.
To this declaration there was a demurrer and
joinder, which was submitted to the court
without argument.
YATES, J., delivered the opinion of the
court :
The defendant is clearly liable to pay the
amount of the assessment ; the covenant will
admit of no other interpretation. It cannot
be distinguished from the case of the Corpora-
tion of the City of New York v. Cashman, 10
Johns., 96. The reasons are more cogent
in this case. The lease there was for a term
of years ; the one before us is on a demise
during the natural life of the plaintiff ; and
the terms of the covenant here, if there is a
difference, are more comprehensive. The de-
fendant covenants to pay all taxes and assess-
ments of every kind whatsoever, &c. ; the de-
mand, consequently, falls within the plain and
evident meaning of the contract between the
parties.
Judgment f 01- the plaintiff.
Cited in^i Rob., 11 ; 1 Sand, 109.
444*] *CURRY v. PRINGLE.
Jurisdiction — Arrest Without — False Imprison-
ment.
A party who extends the power of a court of
special jurisdiction to a case to which it cannot
lawfully be extended, is a trespasser. Where a
warrant is issued from a justice's court against a
person having a family, at the instance of the
plaintiff, without the proof required by the Act, it
is at the peril of the party ; and if the defendant has
been arrested, he may have an action of false im-
prisonment against the plaintiff.
THIS was an action for false imprisonment,
and was tried at the Otsego Circuit, in 1814,
before Mr. Justice Van Ness.
The plaintiff was a man having a family,
residing in the County of Otsego, where he had
lived for eight or ten years, and was arrested
in August, 1813, on a warrant issued from a
justice's court in that county, without oath,
and was detained for about ha'lf an hour. The
plaintiff lived in Milford, and the defendant in
Richfield, distant twenty-six miles from each
other ; and the plaintiff had, in April, 1812, in
the town of Richfield, declared that he was not
a man with a family. After his arrest the
plaintiff said that he was a man with a family;
upon which the defendant, to avoid the dan-
ger of being nonsuited in the court below,
provided the plaintiff's declaration was true,
discharged him from the arrest.
The judge directed the jury to find a ver-
dict for the plaintiff for nominal damages,
subject to the opinion of the court, on the
facts above stated ; if the court should be of
opinion that the defendant was not liable, a
nonsuit was to be entered ; but if he was
liable, the verdict was to stand.
The case was submitted to the court without
argument.
YATES, J., delivered the opinion of the-
court :
It appears that the plaintiff was an inhabit-
ant of the town of Milford, in the County of
Otsego, the same county in which the justice
and the defendant resided. The imprison-
ment, in this case, was illegal, and the party
is entitled to remuneration for the injury sus-
tained. To authorize the issuing of a warrant
in the first instance, the defendant ought to
have proved, to the satisfaction of the justice,
that the plaintiff was about to depart from the
county, or that he was in danger of losing his
debt. This was not done, and the justice pro-
ceeded against the plaintiff as an inhabitant
haying no family. From the facts in the case,
it is evident that those proceedings were had
on the suggestion and at the instance of the
defendant, in whose favor the process issued,
which must be deemed to have been done at
his peril. He ought, therefore, to be respon-
sible. It might, perhaps, have *been [*445
otherwise, if the justice, as the agent of the
defendant, had voluntarily and officiously is-
sued the warrant, without any direct author-
ity for that purpose. This would not have
implicated the defendant; and the justice, in
such case, might be considered as having as-
sumed the responsibility of the measure adopt-
ed by him, and, of course, ought to be held
liable for the consequences. But the officer
who executed the warrant declared that he
took the plaintiff at the instance of the de-
fendant. He, therefore, was not only ac-
quainted with the issuing of the warrant, but
directed the service of it in the manner stated,,
so that the remedy for the injury sustained
is properly sought from him. The rule is
strict, that in a court of special and limited
jurisdiction, the party becomes a trespasser
who extends the power of the court to a case
to which it cannot lawfully be extended. (2
Johns. Cas., 51. and in the cases there cited.)
It might, perhaps, be questioned whether,
on the merits, the plaintiff ought to recover
anything. In April, 1812, in the town of
Richfield, and at a distance of twenty-six miles,
from his residence in Milford, he declared that
he was not an inhabitant having a family,,
when, in truth, it was otherwise. This evi-
dence tended to show (and it is not unreason-
able from it to infer) that his motive in making
the false representation was to mislead the de-
fendant with a view of future advantage, and
if it cannot wholly exonerate him, it certainly
warranted the verdict for nominal damages.
The verdict, according to the terms staled in
the case, depends altogether on the liability of
the defendant, and that, according to the
principles before stated, must be determined
in favor of the plaintiff, and judgment must
be entered accordingly.
Judgment for the plaintiff.
Cited in— 7 Cow., 252 ; 6 Wend., 601 ; 10 Wend.,
362 ; 5 Lans., 259 ; 38 Barb., 347 ; 17 Abb. Pr., .247 ;
106 Mass.. 504.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. WOOLSEY.
446
446*]*JACKSON, ex dem.GiLLESPY ET AL. ,
WOOLSEY.
1. Evidence — Deed Lost or in Potaemion of Ad-
wr»e Party, may be Proted by Paroi — Notice to
Produce — Communoner's Deed Proted by
Parol without Proof by /XAM — Presumption.
2. Infanta — Partition — Purchate by Guard-
ian ad I .it cm .
Where it party ha* given notice to produce a deed
which there was a strong presumption had either
been destroyed, or was in the possession of the
opposite party, be was allowed to give parol evi-
dence df its contents.
The existence and execution of a deed from com-
misoioners appointed under the statute to make
partition, was, without any proof of loss, allowed
to be proved by the testimony of one of the com-
missioners, and of the counsel who drew the deed.
In such i -;i-.-. it may be presumed that the com-
missioners had executed a deed, pursuant to the
<>r<l'-rof the court.
Where one of the parties, applying to make a par-
tition under the Act of 1785, sec. 15, is an adult, the
proceedings are valid, though the others are in-
fants.
A guardian ad Mem in partition, may be a pur-
chaser at a sale, made by the commissioners, pur-
suant to an order of the court.
CitaUons-3 T. K.. 151 ; 1 Esp.. 337 ; Act March 16,
1786; 4 T. R-. 682.
THIS was an action of ejectment, tried at
the Orange Circuit, in 1813. The lessors
of the plaintiff claimed, as heirs of James
Neely, deceased, four fifths of a farm former-
ly belonging to him. The defendant claimed
under a deed, since lost or destroyed, by
Jamas Neely to his daughter, Jane Gillespy;
the operation of which deed was resisted, on
the part of the plaintiff, by attempting to
prove that it was delivered as an escrow ; oy a
sale under a judgment in partition between the
heirs of Jane Gillespy ; and a deed by the
commissioners, who were appointed to make
partition, to the purchaser, since lost or des-
troyed ; from whom, by sundry me*ne con-
veyances, the defendant derived his title. The
evidence, excepting such part of it as is detailed
in the opinion of the court, was as follows: •
It was proved, on the part of the plaintiff,
that James Neely lived on the farm in ques-
tion, until a few years before his death, which
was in 1791, at the age of about 90 ; that Will-
iam Gillespy, who married Jane, a daughter of
Neely, lived at the same time upon the farm,
and worked it, and maintained Neely and his
wife, which he acknowledged to one witness,
he was bound to do ; and after Neely and his
wife left the farm, that Gillespv paid their
board until their death; and that it was under-
stood that, after their death, the farm was to
go to Jane Gillespy.
Jonathan Fislc, counsel for the plaintiff,
stated, from notes which he had taken, the
testimony of Ann Hunter, now deceased
(another daughter of Neely's) given at a former
trial of this cause, which corroborated the
statement as above made by other witnesses.
On the part of the defendant, to prove, in the
tir-t place, the existence of the deed from Neely
to his daughter Jane, James Hunter testified
that in 1771 he was at James Neely's house,
who produced a deed of lease and release,
which he said he wished to execute. Matthew
(Jiilcspy, who was then married to Jane, and
William Gillespy, his brother, were present;
JOHNS. REP., 11.
•that William Gillespy said that he [*447
understood this was a sham deed; upon which
James Neely observed that it was as good a deed
as George Clinton could write, and asked the
witness to read the deed, which he did aloud ;
upon which William Gillespy was satisfied
that it was a good deed ; that the deed was
then executed, in the usual manner, by James
Neely and his wife, and that he and W.
Gillespy witnessed it ; that at the same time
two bonds were executed in like manner, by
Matthew Gillespy and his wife to James
Neely ; one conditioned to pay the other
branches of the family £100 ; the other, under
a penalty of £60, to pay some debts of James
Neely, which bonds he and W. Gillespy like-
wise witnessed ; that the deed was to Jane
Gillespy in fee ; that a consideration was
specified therein, and a receipt for the same in-
dorsed; that the deed was for the farm in con-
troversy, and that be understood that, in ad-
dition to the consideration therein contained,
Gillespy and his wife were to maintain Neely
and his wife during their lives ; that after this
was done, Jane Neely took the bonds and deed
by her father's request, and put them back
into the chest from which Neely had taken
them ; and that the witness understood this
arrangement to be complete and ended ; and
that nothing was said of the deed's being
delivered as an escrow; that, about five years
after this transaction, the witness found this
deed among his father's papers, who was then
dead, and who was the husband of Ann
Hunter, the witness* stepmother, and one of
the daughters of James Neely ; and that he
kept the deed from that time until 1791, when
Matthew Gillespy came to his house and re-
quested it from him. to have it recorded, and
he gave it to him ; but the witness' step
mother was not present when the deed was
delivered. Jane Gillespy died in 1788.
Catharine Gillespy, the widow (having been
the second wife), and administratrix of the be-
fore-mentioned Matthew Gillespy, who died in
1797, testified that she had the custody of her
husband's papers, and had never seen this deed
among them (but it appeared on her cross-ex-
amination that she could neither read nor
write) ; that James Gillespy, a son of one of
the plaintiff's lessors, had access to these papers
before she administered ; that one William
Cummings, at her request, assisted her in the
administration of the estate ; that she did not
know that the *deed was ever found [*448
by him, and that he never took it away as she
knew of.
The defendant produced the proceedings in
partition in the Lister Common Pleas (under
the Act of the 10th of March, 1785), the parties
to which were John Neelv and Barbara, his
wife, a daughter of Jane Gillespy; and John,
James, Matthew, Jane, Ann, and Mary Gil-
lespy, other children of Jane Gillespy, and
lessors of the plaintiff, infants, by their father,
William Gillespy, guardian; under which the
land was sold to Matthew Gillespy, as the
highest bidder, for £«00. The p'roceedings
were set forth at length in the case.
In the next place, to prove the existence and
loss of the deed from the commissioners to
Matthew Gillespy, Charles Clinton, one of the
commissioners, testified that the farm was sold
44-3
SUPREME COURT, STATE OF NEW YORK.
1814
to Gillespy ; that he had not a positive recol-
lection of executing a deed, but had not the
least doubt that he and Denniston, another
commissioner, since dead, gave the deed, and
was certain that a deed must have been exe-
cuted, though he had now no remembrance of
the fact. Gillespy had made a contract to sell
the farm to Vankeuren before the deed was
executed ; that Gillespy not being able to pay
for the farm, the giving the deed was delayed
for some time ; that he thought, but was not
certain, that the deed was executed within a
year after the sale, and before M. Gillespy
conveyed to Vankeuren, who agreed to secure
the money for the farm on the purchase to
Gillespy, as guardian ; and that no part of the
money was ever received by the commis-
sioners. On being afterwards examined a
second time, the witness said that he now
thought the commissioners' deed was executed
soon after the sale, as soon as Vankeuren had
secured the payment, until when the deed was
kept back from Gillespy.
James W. Wilkin testified that he conducted
the partition, as attorney ; that he wrote a deed
to be signed by the commissioners to Gillespy,
and the draft of which he had ; and that
he was certain that he never should have drawn
the deed from' Gillespy to Vankeuren (which
was shown to him, and which he acknowl-
«dged to be in his handwriting) with the re-
citals in it, if the commissioners had not
previously conveyed to Gillespy, as he was
employed by the parties to conduct the whole
of the business.
449*] *The defendant also deduced a
paper title to himself from Matthew Gillespy.
The plaintiff then proved that the defendant
had notice of the claim of the plaintiff's lessors
before he made the purchase.
The plaintiff next read the whole of the
before-mentioned testimony of Ann Hunter,
given at the former trial, as follows : That
her husband had in his possession, the year
after it was executed, the deed from Neely to
Jane, and she understood that he had it to keep
till the death of her father and mother, when it
was to be delivered to Gillespy, who, in the
meantime, was to occupy the farm, and main-
tain her father and mother out of the premises
of which, during his life, her father was to be
the master ; and that she had frequently
understood this from all the parties; that when
she heard that James Hunter had delivered the
deed to Gillespy, she told him that he had done
wrong, and that it was not to be delivered till
after the death of her father and mother.
A verdict was taken for the plaintiff, subject
to the opinion of the court on a case to be made,
with liberty for either party to turn it into a
special verdict.
Mr. Fink, for the plaintiff. 1. The deed
from James Neely to Jane Neely, who married
Matthew Gillespy, was never so executed and
delivered as to vest the estate in her or her
heirs. It was not intended that Matthew Gil-
lespy should ever have any control over the
property. The deed was never delivered to
him, but was retained by old Mr. Neely in his
possession ; it not being the intention that it
should be delivered during the life of him and
his wife, whose support and maintenance was
to be provided for.
218
2. If, however, the deed was executed and
delivered, it was not produced ; and its non-
production was not sufficiently accounted for,
at the trial, to entitle the defendant to give
parol evidence of its contents. The grantor
himself was produced as a witness, and this
court, in Willoughby v. Carleton, 9 Johns., 136,
have decided that he cannot be a witness.
In Read v. Brookman, 3 Term, 151, the
court decided only that a deed might be plead-
ed as lost by time and accident, without a pro-
fert. In Livingston v. Rogers* 2 Johns. Cas.,
488, also, the non-production of the instru-
ment was satisfactorily accounted for, before
paroj evidence *was admitted to its [*45O
contents. So, in Jackson v. Neely, 10 Johns.,
374, the existence of the power of attorney,
and its probable destruction by fire, was shown
before parol evidence was received.
3. The proceedings in partition were fraud-
ulent and void ; so that Gillespy acquired no
title. The Court of Common Pleas cannot ap-
point a guardian, except for the purpose of
partition.
4. The application for partition was made by
infants, who are not authorized by the statute
to make partition. The Act was intended only
to enable the tenants in common to sell, and to
enjoy their estates in severally. The law does
not presume that infants can be under any
necessity for selling their lands ; and a parti-
tion of them, during their infancy, cannot be
requisite.
5. The sale by the commissioners was made
without any consideration received by them.
It was, therefore, void. The payment of the
consideration money is essential to give valid-
ity to the conveyance. A bargain and sale,
without money being paid, is void. (Willes,
677; Cro. Elk, 394; 3 Term, 474.) The
statute requires that the sale should be at
public auction, and contemplates a real sale
for money. The directions of the statute must
be strictly complied with, otherwise the pro-
ceedings are void ; the sale is inoperative., and
the party is not devested of his estate, and may
enter.
6. The purchase by a guardian, trustee or
agent is illegal and void. (9 Ves,, Jr., 234,
240; 10 Ves., 281, 394.)
Messrs. J. Duer and Heni-y, contra. 1.
Whether the deed was delivered by the elder
Neely to his daughter, absolutely or as an es-
crow, was submitted to the jury ; and this
court, on a former argument of this cause, on
a motion for a new trial, considered it as hav-
ing been delivered absolutely ; or if upon
condition, that such condition had been per-
formed by the maintainance of Neely and his
wife.
2. We contend it was not necessary to pro-
duce the deed at all. The verdict was taken,
subject to the opinion of the court on the
whole case, and the court is authorized to
draw any inferences which the jury might
have done. We do not pretend that the proof
is full and clear ; but if a jury might have
inferred the existence and loss of the deed,
that was all that was necessary to entitle the
party to go into parol evidence of its con-
tents.
Again ; as there was a conveyance, with
warranty, the grantor was entitled to the cus-
JOIINS. REP., 11.
1814
JACKSON, EX DKM., v. WOOLSEY.
4.JO
tody pf the title deeds, and the law presumes
4£» 1*] *that they were left in his possession.
(1 Co., 1, 2, Co. Lilt., 6 a, 5 Co., 75 ; 8
Term Kep.. 151.) It may, perhaps, be said
this doctrine applies only to feoffments at
common law ; but the reason of the rule ap
plic-t equally to conveyances under the statute
of uses; for the grantor, or bargainor, who
conveys with warranty, is bound to maintain
and defend the title.
8. The proceedings in partition, in this cas?
were under the Act of the 16th of March,1785, 8
sess., ch. 39 ; see 1 Greenleaf's ed, Laws, p.
165, the provisions of which are different from
the present Act. The commissioners are em-
powered, where any part of the property held
in common cannot be divided without preju-
dice to the owners, to sell the same at public
v.-ndue. and execute good and sufficient con-
veyances to the purchasers. (Sec. 15.) There
was, also, an order of the Court of Common
Pleas for that purpose; and the commissioners
reported their proceedings, and that "they
had. in all things respecting the same, follow-
ed the directions of the statute." This report
was ordered by the court to be filed and con
firmed, and that the commissioners should pass
their deed to Matthew Gillespy, &c.
We were not bound to produce the deed,
but its existence ought to be presumed, under
the circumstances of the case. There is shown
a concurrence of all those circumstances which
are requisite to raise the presumption of the
existence of a deed. (2 Caines, 372 ; 1 Caines
Cas., 70; 4 Term, 682.)
4. The objections made to the proceedings
in partition are for mere irregularities, and the
Court of C. P. having confirmed them, and
jjiven judgment of partition, it is conclusive.
The 16th section of the Partition Act of 1785
authorizes the Court of C. P. to appoint, not
merely a guardian ad litem, but a guardian
with general powers, for all minors of the age
of fourteen years.who shall choose such guard-
ians.
If the guardians, therefore, were duly chosen
and appointed under the Act, it is an answer
to any objections as to the infants applying
for partition. But the statute authorizes any
owners of lands to petition for partition ; and,
besides, Barbara, one of the children of Jane
Gillespy, was an adult at the time of present-
iiiLT the petition ; and adults, conjointly with
infants, may, most undoubtedly, petition; and
a guardian, by the statute, may do every act
relative tothe partition, &c., which is declared j
to be as valid and binding on the infant, as if ;
it had been done by him after arriving at full !
age.
5. In regard to the sale by the commission- |
4*>i2*] ers, the court will *intend, after such
a lapse of time, that the purchase was bona \
Me. It is enough that there was a regular
sale under the statute, and by order of the i
court. The purchaser will not be affected by
any misconduct of the commissioners. Again, !
no evidence can be admitted to contradict the
fact, that the consideration money was paid,
against the report under the hands and seals i
or the commissioners, which was confirmed
by the court. Besides, the objection is merely
formal ; for it would have been an idle cere-
mony for M. Gillespy, as guardian, to receive
JOHNS. REP., 11.
with one hand, money paid by the other, as
purchaser.
But it is said that a guardian cannot pur-
chase at all. This rule does not apply to ju-
dicial sales. A mortgagee may purchase,
under a sale made in pursuance of the power
contained in the mortgage, or under the de-
cree of the court. It may be greatly for the
interest of the infant that'the guardian should
have the power to purchase, in a case like the
present.
Mr. Burr, in reply, said that M. Gillespy,
being a trustee, could not be a purchaser.
Though it was once held that a trustee might
purchase, where the sale was not at public
auction, or before a master ; yet it was now
settled that the trustee could not be a purchas-
er, although at public auction, or before a
master, under a decree of sale. (Sugden's Law
of Vendors, 838, 395; 8 Bro. P. C., 42; 8
Vesey, Jr., 678 ; 8 Vesey, Jr., 837 ; 10 Vesey,
Jr., 379.) This is conclusive in the cause.
The burden of proof lies on the defendants,
and they ought to make out a clear and satis-
factory case.
As to the position that the grantor, having
conveyed with warranty, is to be presumed to
have the custody of the title deeds ; though
such may be the rule in England, yet it does
not prevail in this State, where deeds are re-
corded, and the records are open to the inspec-
tion of all parties. The purchaser here takes
the title deeds. In this case, the defendants
allege that they had the possession of the
deed, and that the lessors of the plaintiff stole
them. Having once had them in their pos-
session, they ought to give some satisfactory
account of them.
The statute allows adults, who are tenants
in common with infants,, to coerce a partition,
but infants are not authorized to become actors
for the purpose of partition. They are alto
getheron the defensive ; and their guardians are
equally passive. But admitting that the statute
authorizes infants to act, have the proceedings
in this case been regular and legal ? The law
requires *the guardian to give security ; f*4£»3
but it does not appear that such security has
been given. The words of the condition of
the bond taken are merely that " if the guard-
ian shall render a just and true account of his
guardianship aforesaid, to the court aforesaid,
when he shall thereuntobe required, then," &c.
Again; no money was paid for the purchase;
no deed was executed, for Mr. Clinton remem-
bers only that a deed was drawn. This court
ought to protect the rights of infants, in cases
of partition: and these proceedings, if exam-
ined, will be found to be a fraud on the in-
fants.
YATES, J., delivered the opinion of the
court.
The first question presented in this cause is,
whether it was competent for the defendant
to give parol evidence of the contents of the
deed from James Neely to Matthew Gillespy
and wife: and of the deed from Charles
Clinton and George Deniston, commissioners
appointed by the Court of Common Pleas
of Ulster County, to make partition of the
premises in quesiion to Matthew Gillespy.
It is evident, from the testimony in this
453
SUPREME COUKT, STATE OF NEW YORK.
1814
cause, that those deeds were never in the pos-
session or control of the defendant. The
S 'cruises in question were conveyed to him by
atthew Gillespy, who was answerable to him
on failure of the title; and being liable over in
value, as warrantor, he unquestionably re-
tained them in his hands, which he had an
undoubted right to do, as a protection against
claims for the recovery of the property which
might afterwards be attempted. If, however,
by intendment of the law, they are not, in
strictness, to be deemed in the possession of
the opposite party, it appears that Matthew
Gillespy is the father of one of the lessors, and
his son had access to his papers, after his de-
cease, and before the granting of administra-
tion to the widow. These additional facts
furnish, at least, strong presumptive evidence
that those deeds are either destroyed or in the
possession of the opposite party. It is evident
that they have never been in the possession of
the defendant, so that their non-production
at the trial cannot be attributed to laches on
his part, especially as notice, with a view of
having them produced, has been duly served
on the opposite party, which was the only
course the defendant could take to avail him-
self of the legal benefit now claimed by him.
454*] *A rigid adherence to the ancient
rule of law on this subject has, by .experience,
been found, not unfrequently, to be attended
with manifest injustice. A relaxation of this
rule has, therefore, been introduced, depend-
ing in some measure upon the particular cir-
cumstances of the case ; for it is, sometimes,
impossible, when the destruction of an instru-
ment has taken place, to obtain positive proof
of the fact. To show the extent of this re-
laxation, the case of Read v. Brookman was
cited (3 Term, 151^. It was there deter-
mined that a deed might be pleaded, as lost by
time and accident, without profert. In Beck-
ford v. Jackson, 1 Esp. Rep., 337, the plaintiff
declared on a deed; and to avoid prof ert,
stated that it was lost by time and accident.
The defendant pleaded first, non est faclum,
and second, that the deed was not lost" or
mislaid, on both of which pleas issue was
joined. On the trial, Lord Kenyon said that
to prove the issue as to the loss of the deed, it
was necessary to give evidence of a search
where it probably might be found.
It appears in the case before us, that an in-
effectual search had been made for those deeds
among the papers of Matthew Gillespy, in the
trunk where his papers were kept, the place
in which it was most probable to find them.
This, then, ought to be deemed sufficient
proof of loss, or that they are in the possession
of the opposite party. In either case, evi-
dence of their contents would be admissible ;
and, on that subject, as to the deed of James
Neely to Matthew Gillespy and wife, as well
as the manner of executing it, one of the sub-
scribing witnesses, James Hunter, is explicit.
He says the deed was read aloud, at the re-
quest of old Mr. Neely, who declared it was
as good a deed as George Clinton, the counsel
employed to draw it, could write ; that he ex-
ecuted it in the usual form, and that not one
word was said respecting a conditional deliv-
ery. The circumstance of his daughter Jane
returning the deeds and other papers into the
220
chest from whence they were taken, does not
prove that the deed was delivered as an es-
crow. This chest was without a lock, and
appears to have been in the use and occupa-
tion of the family, generally, and must have
been accessible to every member of it. The
deed was not delivered to a third person, nor
were any conditions stated at the time. The
executing of the bonds shows what was the
consideration of the deed. He thought proper
to cause Matthew Gillespy to execute them,
to *secure the performance of the con- [*455-
tract between them, which was the real con-
sideration in the deed ; and if those obliga-
tions did not secure a maintenance for him
and his wife, it can only be attributed to hi*
own folly or negligence. They were, how-
ever, maintained by him as long'as they lived.
As far, therefore, as equitable considerations
can influence the decision of the court, on this
point, it appears to be just and right that the
heirs of Jane Gillespy should enjoy the avails
of this property. Ann Hunter, who had given
her testimony on a former trial of this cause
(the evidence of which was now correctly ad-
mitted), it appears, was not present at the
time those papers were executed. Her evi-
dence, therefore, as to her subsequent under-
standing and conversations, cannot destroy the
explicit and direct testimony of a subscribing
witness who swears to the due execution of
the deed, which passed the property in ques-
tion to Jane Neely and her heirs.
The next inquiry will be as to the proceed-
ings in partition, to the regularity and validity
of which several objections are raised, as well
as to the competency of the proof, in relation
to the execution and contents of the deed
alleged to have been given by the commission-
ers appointed by the court. I shall examine
them in their order.
The answer given to the objection that the
application for partition was by infants, and
not authorized by the statute, is, in iny mind,
conclusive. Barbara, one of the daughters of
Jane Gillespy, and wife of John Neely (as ap-
pears by the proceedings), was an adult, and
she joined with her husband in the application
for partition ; and by the 15th section of the
Act of 1785, under which those proceedings
were had, it may be done at the instance of
one or more of the parties interested in the
lands to be divided. This puts that objection
at rest. The guardian, having purchased the
premises, does not affect the proceedings ; nor
can they, on that account, be deemed fraudu-
lent. It was a public sale to the highest bidder,
authorized by statute, and under the sanction
and inspection of a court. Without circum-
stances of direct fraud, therefore, to support
such an allegation, the deed is valid in law.
But, in this case, no collusion appears ; an
adequate consideration has been received by
the guardian for the use and benefit of the
infants, and his not paying the money into the
hands of the commissioners can be no objection.
It appears they delayed giving the deed to
*him until the consideration was satis- [*45O
factorily secured, and it is not improbable that
Vankeuren.who purchased the property, would
not have done it without receiving a convey-
ance direct from him, subjecting the title to his
personal responsibility.
JOHNS. REP., 11.
1814
HESS v. BKEKMAN.
456
The doctrine laid down in Sugden's Law of
Vendors, 388 to 395, cited in the argument by
the plaintiff's counsel, does not reach the
present case. The sale here was not only pub-
lic and to the highest bidder, but made by the
commissioners, according to the order 01 the
court.
The circumstances of this case would war-
rant a jury to presume that the deed alleged to
have been given by the commissioners bad been
duly executed by them, in pursuance of the
order of the Court of Common Pleas ; and if
so, this court are bound to presume it. The
objection slated in the argument that ttie period
of possession is insufficient to authorize such a
presumption, cannot prevent it. It is correct
here to presume that they did their duty.
In the case of England, ex dem. Syburn, v.
fifcwfe, 4Tenn K.,682, the court determined, that
in the case of a plain trust, where the trustees
were directed to convey to a devisee on his
Attaining twenty-one years, the jury might be
directed to presume a conveyance at any time
afterwards, though considerably less than twen-
ty years. Lord Kenyon, in giving his opinion,
to which the other judges assented, says :
" There is no reason why the jury should not
have presumed a conveyance from the trustees
to him, upon his attaining the age of twenty-one,
in pursuance of their trust." But without this
presumption, I am inclined to think, from the
reasons before stated, that the evidence of its
execution and contents was properly admitted,
and is sufficient to satisfy a jury of the facts.
Charles Clinton, one of the commissioners, says
he thinks the deed was executed by them, soon
after the sale, and before the last rule of court
on the subject. His impression is that it was
kept back from Qillespy until the sale to Van-
keuren, who (as the witness understood) had
secured the consideration money to him as
guardian. He also recollects that James Wil-
Kin was to draw the deod ; and Wilkin, who
was also examined as a witness, declares that
the deed from Matthew Qillespy to Benjamin
Vankeuren. for the premises, was in his hand-
writing. He was the counsel who conducted
the proceedings in partition, and well remem-
4«">7*] bers that *he wrote a deed to be signed
I iy the commissioners, to Gillespy, the draft of
which was in his possession ; and he was cer-
tain he never should have drawn the deed from
•Gillespy to Vankeuren, if the commissioners
had not previously conveyed to Gillespy.
By the testimony of those two witnesses.then,
the execution and contents of the conveyance
were sufficiently substantiated. Admitting
the objection, however, to the competency of
this evidence, I think it has been satisfactorily
shown that the execution of the deed by the
commissioners ought to be presumed '
On all the points, therefore, raised by the
plaintiff's counsel, we are of opinion that the
cause is with the defendant, and that judgment
ought to be entered accordingly.
Judgment for the defendant.
Criticised— 8 Cow., 8«9. 379.
Cited ln-13 Johns.. 233 ; 4 Cow., 898 ; 6 Cow., 753 ;
12 Wend., 175: i Sand. Ch., 509 ; Clarke, 468 ; 2 Hilt,
'
1. Schaubcr v. Jackson, 2 Wend., 14 ; Jackson v.
Cole, 4 Cow., 537.
JOHNS. REP., 11.
HESS t. BEEKMAN.
Practice injustice Court — When Plaintiff may
take Nonsuit.
Whore there is a trial of a cause before a Justice,
without a jury, the plaintiff may elect to become
nonsuit any time before it is finally submitted for
the Judgment of the court : but not after the cause
is under advisement, though before four days have
elapsed.
Citations— 5 Johns., 346 ; 2 Johns, 181, 191.
IN ERROR on certiorari from a justice's
court. Berk man brought an action against
Hess, before the justice, on account of services
performed. The defendant below pleaded "a
former suit before the same justice, between
the same parties for the same cause of action,
in which the merits of the plaintiff's demand
had been fairly entered into, and investigated,
and finally submitted to the said justice, who
took four days for consideration, to give judg-
ment ; and that the said justice did, within
that time, enter judgment, or ought so to have
done."
To which the plaintiff below, admitting the
facts in the said plea, as above stated, to be
true, replied thereto, " that he did, within the
four days, withdraw his former suit, and suf-
fered judgment to be entered against himself
for the costs."
It appeared, also, that the costs of the for-
mer suit had not been paid ; and the defendant
also objected to the recovery in the latter suit
on that ground.
The justice overruled the plea and objection,
and gave judgment against the defendant be-
low for $16 damages and costs.
*Per Curiam. The statute directs [*458
that when the parties are properly before him,
the " justice shall proceed to hear and examine
the allegations and proofs of the parties ; and,
within four days thereafter, give judgment
thereon, with costs."
It is settled that a plaintiff may elect to be-
cottie nonsuit in a justice's court, after a trial
by jury, and before verdict, as in the higher
courts. (Platt v. Storer, 5 Johns., 346.)
It is also settled that the justice is bound to
give judgment according to the verdict ; and
that a plea of a verdict in a former suit for the
same cause, is a good defense, although no
judgment was made on it. (Fleliter v. MuUiner,
2 Johns., 181 ; Young v. Oceracker, 2 Johns.,
191.
In this case there was no jury on the former
trial, but " the merits were fairly entered into
and investigated, and finally submitted to the
justice."
It best comports with the spirit and policy of
the statute, to hold the plaintiff below conclud-
ed in the former trial.
Where there is a trial without a jury, the
plaintiff may elect to become nonsuit at any
time before the cause is finally submitted to the
justice : but after it is so submitted, the statute
is imperative, that after hearing and examining
the proofs and allegations, the justice, within
four days, "shall give judgment thereon."
During the four days, while the cause is under
advisement, the justice ought to hold no com-
munication with either of the parties. They
221
458
SUPREME COURT, STATE OF NEW YORK.
1814
are not in court for any purpose but to receive
judgment. The maxim, nemo bis debet vexari
pro eadem causa, is applicable here.
Judgment reversed.
Explained— 5 Hill, 62 ; 41 How. Pr., 30.
Cited in— 8 Cow., 173 ; 10 Wend., 521 ; 20 Wend., 621 :
3 Hill, 238; 5 Hill, 62; 27 N. Y., 221; 4 Barb., 418; 41
How. Pr., 33 ; 8 Abb., N. S., 15; 3 E. D. Smith, 116,
128 ; 4 E. D. Smith, 240 ; 3 Daly, 47, 442, 448.
459*] *WILDE v. DUNN, qui tarn.
Practice in Justice Court — Nonsuit — Delay —
Discontinuance.
Where, after issue, on a plea of abatement, a de-
fendant appears at the time appointed, by the ad-
journment of a cause, in the justice's court, and
the plaintiff does not appear, but the justice is in-
formed that he is near at hand, and delays calling
and nonsuiting him, on the motion of the defend-
ant, who soon after leaves court ; and the plaintiff,
in about an hour, appears, and the justice proceeds
to hear and decide the cause ; this is not such an
unreasonable delay as will work a discontinuance
of the cause.
IN ERROR, on cerliorari from a justice's
court. The plaintiff in error, who was the
defendant below, by attorney, pleaded a
misnomer in abatement, upon which issue was
joined. Dunn, the plaintiff below, then re-
quested an adjournment, which was granted
until the 12th day of November, at two o'clock,
P. M.
About three o'clock, or a little after, of the
day to which the cause was adjourned, Mrs.
Wilde appeared, with her attorney, and moved
for a nonsuit, because the plaintiff did not ap-
pear ; upon which the justice was informed by
a witness for the plaintiff, that the plaintiff
was near at hand, on his way to court. The
justice waived a decision on the motion for a
nonsuit. In a few minutes after, the motion
was renewed ; the justice told the defendant
she must wait a little longer, and she then went
out of court, but remained near at hand. Her
attorney continued with the justice, and about
a quarter before four o'clock, the plaintiff
(Dunn) arrived. The parties were then called;
the attorney for the defendant refused to ap-
pear, and the cause was tried ex-parte — that is,
the plea in abatement was considered as aban-
doned ; and the plaintiff claimed a penalty for
selling spirituous liquors without a license,
which fact being proved, the justice gave judg-
ment against the defendant for $25.
Per Curiam. There is ground to presume
that the defendant below had no bonaf.de in-
tentio%n of defending the suit ; and the delay
after she appeared was not, under all circum-
stances, so unreasonable as to work a discon-
tinuance ; besides, her attorney was present
during the trial. The judgment ought to be
affirmed.
Judgment affirmed.
4<5O*] *DEWITT v. POST.
Practice — Forms of— Judgment — Correction of
Judgment.
On a writ of error coram vohte, only the proceed-
ings complained of as erroneous are reversed, and
222
all prior proceedings remain unimpeached, from
whence the plaintiff may, after reversal, continue
the original action, without being obliged to com-
mence it de mrva.
The judgment in case of reversal for error in fact,
is that the judgment below be recalled ; but for
error in law, that it be reversed.
Citations— Bac. Abr., Roll. Abr., 805 ; Tidd's Prac.
Forms, 304 ; Burr., 2490.
THE plaintiff had obtained a verdict at the
Ulster Circuit, in November, 1812, in this
action, which was for debauching the plaint-
iff's daughter ; special bail had been put in.
At the time of the plea pleaded the defendant
was an infant, but had appeared by attorney;
which, on a writ of error coram wbis, he as-
signed for error, |and the judgment was re-
versed.
The sole question now presented for the
opinion of the court was, whether the plaintiff
might proceed in continuance of the former
suit, commencing with the declaration filed
therein, and if the defendant did not plead
thereto, might enter his default, and execute a
writ of inquiry in the original suit ; or should
be put to commence his action de nova.
The case was submitted to the court without
argument.
PLATT, J., delivered the opinion of the
court :
This court, on writ of error coram wbis, gave
judgment, if correctly entered, that its former
judgment, in this cause, be "revoked, an-
nulled, and altogether held for nothing," for
an error in fact, viz. : that the defendant, being
an infant, appeared by attorney. It seems
judgment of reversal for error in fact is re-
wcetur ; for error in law, reversetur. (Bac.
Abr., tit. Error, M, sec. 2 ; Roll. Abr., 805.)
In this case the first judgment is recalled,
for error dehors the record ; but, according to
the forms of entries, in such cases, the " pro-
ceedings" are not reversed and annulled.
(Tidd's Practical Forms, 304, &c.)
In the case of Cuming v. Sibley, Burr., 2490,
Lord Mansfield says : " Where the defendant
below brings a writ of error, we only reverse
such wrong part of the judgment as he com-
plains of."
In this case we correct our own judgment.
The record has never been out of this court ;
and I see no reason for compelling the plaint-
iff, who no doubt made an innocent mistake,
to commence his suit de nova.
Let a new rule to plead be entered.
Cited in- 14 Johns., 425; 15 Johns., 535; 10 Wend.,
58 ; 13 Wend., 577 ; 16 Wend., 50 ; 2 Hill, 396 ; 3 Denio,
181 ; 4 N. Y., 297 ; 3 Barb., 494 ; 60 Barb., 122 ; 3 How.
Pr., 260; 41 How. Pr., 46; 9 Abb N. 8., 321 ; 7 Rob.,
547 ; 18 Wall.. 196 ; Hemp., 63.
*HILL v. DOWNER. [*4G1
Practice in Justice Court — Confession of Judg-
ment— Waiver of Irregularity.
Where a defendant prayed an adjournment of a;
cause, before a justice, and which was refused, and
then voluntarily confessed judgment ; this was
held as a waiver by the defendant of all previous
irregularity.
IN ERROR, on certiorari from a justice's
court. In a suit by Downer against Hill,
JOHNS. REP., 11.
I
1814
LANOENDVCK ET ux. v. BURHANB.
461
before the justice, Hill, requested an adjourn-
ment before issue joined, aud offered to make
uHidavit, and give security. The justice in-
quired about his defense ; and a desultory
conversation ensued between the parties and
the justice, at the close of which the justice
told the defendant Hill that what he set up as
a defense could not avail him. if proved, and
therefore, refused the adjournment; upon
which Hill confessed judgment for $0.51, and
judgment was entered accordingly.
Per C'uriam. There does not appear to have
been any unfair advantage taken of the de-
fendant below ; and by voluntarily confessing
judgment, he has waived all previous irregu-
larity, if any.
Judgment in tint be affirmed.
L.YNGEXDYCK KT ox. e. BURHANS.
Ejectment — Tenant* in Common — May enter
into Content Rule — Mesne Prvjitu — Stipula-
tion to Confer Ouster — Judgment by Default.
In an action of ejectment by one tenant in com-
mon, who tut* nut been ousted, against his co-
tenant, tbe latter may enter into the consent rule,
where he does not dispute the title, as to part of the
premises only ; and tin- plaintiff may take judgment
as to the residue, by default, and recover the mctine
profits thereof from his co tenant.
It seems that in such case where the title is not
denied, tbe tenant need not stipulate to confess
ouster.
No defense can be set up in an action for the mcune
profits of land recovered under a regular judgment
by defalt, in ejectment.
Citations-7 Mod., 39 ; 3 Burr., 1895, 1897 ; 2 Sellon,
104, 106; 1 Cainpb., 173 : 4 Johns., 312; 3 Johns., 481.
was an action of trespass for the menne
L profits of two undivided thirds of one un-
divided fourth of a farm in Catskill, in the
County of Greene. The cause was tried at the
Greene Circuit, in September, 1813, before the
late Chief Justice. A judgment in ejectment,
recovered by James Jackson, on the demise of
the plaintiffs in this suit, by default, against
John Stiles, for two undivided thirds of oue
undivided fourth of the above-mentioned prem-
ises, an haberefacuupviae&ionem issued thereon,
and the sheriff's return thereto, that he had
4O2*J *caused the plaintiff to have possession
of his term, within mentioned, yet to come,
&c., and a taxed bill of costs in the ejectment
suit were produced, and, together with the
annual value of the laud, proved by the
plaintiffs on the trial. One action of eject-
ment only had been brought on the demise of
tin- pluimiffs, and on the service of the dec-
laration therein, the present defeudant ap-
peared, and entered into the consent rule
specially ; that is, to defend as to three uu-
divided fourth parts of one undivided third
part of the premises in question ; aud on the
trial to confess lease, entry and ouster, &c.
On the trial of the ejectment suit, the plain: ill"
recovered one third of one fourth of the prem-
ised, for the meiine protits of which a distinct
action had been brought, aud had judgment
by default for the other two thirds of one
fourth ; to recover the metne protits of which
tbe present suit was brought. The defendant
proved that previously to bringing the action
JOHNS. Ki;i-., 11.
of ejectment, the defendant told Langendyck,
one of the plaintiffs, that he was willing to
divide with him, and did not dispute his hav-
ing a certain right in the premises ; but what
that precise right was, the witness could not
recollect.
A verdict was taken for the plaintiffs, sub-
ject to the opinion of the court, whether the
present action was maintainable for the //»«/«
profits of that part of the premises which was
recovered by default. If it were not, a non-
suit was to be entered ; otherwise judgment
was to be rendered for the plaintiffs.
The case was submitted to the court without
argument.
SPENCER. «/., delivered the opinion of the
court :
The defendant has misconceived his defense.
If a tenant in common, who has not ousted his
co-tenant, is sued in ejectment, all the cases
agree that he may enter into the consent rule
specially, when he does not dispute the title.
(7 Mod., 39; 3 Burr., 1897.)
It is well settled that where the appearance
is for part, the plaintiff may sign judgment
against the casual ejector for the residue. (2
Sellon, 104. 10«.) Here the defendant de-
fended only for the three fourths and one
third of a fourth of the premises ; consequent-
ly, for two thirds of one fourth there was no
defense, aud the plaintiff had a right to take
judgment therefor. Though I have not met
with a precedent of the special consent rule
*eucered into by a tenant in common, [*463
who admits the plaintiff's right to a part, yet
I am persuaded it should not stipulate to con-
fess an ouster, with respect to those parts of
the premises claimed, and of right belonging
to the plaintiff. The consequence would be,
that the plaintiff would be bound to prove an
ouster, and failing in that, he would be non-
suited. (1 Campb., 173.)
It is perfectly well settled that a tenant in
common is not bound to prove lease, entry
| and ouster, if the consent rule confesses it ;
and in all cases but that of an ejectment
brought to avoid a fine, the confession of
lease, entry and ouster is sufficient to bar a
nonsuit for want of proof of ouster (3 Burr.,
1895); and particularly in un ejectment by oue
tenant in common against another. (4 Johns.,
312.)
The plaintiff has regularly taken a judg-
ment by default against a casual ejector for
the parts not defended, and, according to the
decision of this court, in Ikiron v. Abeel, 3
Johns., 481. no defense could be set up against
the action for the mesne protits consequent on
the judgment by default.
Judgment for the plaintiff*.
Cited in-18 Johns., 400 ; 4 Hill. 117.
•MURRAY o. HOUSE. [*4O4
Attorney — Authority of.
A verbal authority to an attorney, to appear in a
case, la not sutlicient to enable him to release the
interest of a wiiness.
IN ERROR, on certiorari from a justice's
court. House sued Murray before the
22;;
464
SUPREME COURT, STATE OF NEW YORK.
1814
justice. C. H. was offered as a witness for the
plaintiff below, and objected to by the defend-
ant, as interested.
The defendant proved the interest to the
satisfaction of the justice. The plaintiff's at-
torney (who, the justice said, appeared by a
verbal power from the plaintiff) then released
the interest of the witness, and the justice
then decided that he was competent, and, upon
his testimony alone, gave judgment against
Murray for $20 damages, with costs.
Per Curiam. A parol request to the at-
torney to appear for the party in a suit, is no
authority to release the interest of a witness,
and the judgment ought to be reversed.
Judgment reversed.
Cited in— 36 How. Pr., 381 ; 11 Abb. Pr., 12 ; 5 Abb.
N. S.. 284 ; 7 Hob., 541 ; 3 E. D. Smith, 208 ; 38 Mich.,
58; 25 Mich., 136.
BEARDSLEY ET AL., Executors of BEARDS-
LEY,
«.
ROOT, Gent.
General Authority of Attorney under Execution
cannot Purchase Land in Trust for Client —
Money need not necessarily be Received to sup-
port Action for Money — Negotiable Paper when
Equivalent to Money.
A plaintiff's attorney, by his general authority as
attorney, cannot purchase land sold under exe-
cution issued in the cause, for the benefit of and
as trustee for his client.
An action for money had and received cannot, in
general, be supported, unless the defendant has, in
fact, received money.
But where an attorney or agent, has discharged
a debt due to his principal, and applied that debt to
the payment of a debt which he himself owed to
his principal debtor, the amount of the debt which
he has so discharged may be recovered in this form
of action.
So where an attorney issued execution on a judg-
ment recovered by his client, and became himself
the purchaser of the land sold under the execution,
and paid for the same, by discharging the judg-
ment against the defendant, it was held that his
client might maintain this action against him.
But if the attorney had been authorized by his
client to purchase the land in trust for him, and
the attorney having made the purchase refused to
execute the trust, it seems that an action for
money had and received would not lie against him.
It seems that taking negotiable paper is equiva-
lent to the receipt of money, so as to authorize the
maintaining of this action.
Citations— 8 Johns., 206 ; Willes, 400 ; 2 Ld. Raym.,
028 ; 3 Mass., 403 ; 9 Johns., 96 ; Doug., 136 ; 5 Burr.,
.2589.
THIS was an action for money had and re-
ceived, brought to recover money collected
by the defendant, as attorney for the plaintiffs'
465*] *testator> in an action in which their
testator was the plaintiff, against one Elijah
Beardsley. The cause was tried at the Dela-
ware Circuit, in June, 1814, before Mr. Justice
Spencer.
The defendant became the purchaser, for
$1,027, of a farm in Delhi, in Delaware Coun-
ty, owned and possessed by Elijah Beardsley,
and sold under several executions, and,
among others, an execution issued by Phine-
has Beardsley, the plaintiffs' testator, on a
judgment for $1,200 debt, and $14.43 costs.
224
(To recover from the defendant the amount
due on that judgment, this was action
brought.) The sheriff executed a deed to the
defendant, who paid to the sheriff the amount
of the prior executions. The defendant's bid
exceeded the amount of all the executions ;
and thereupon Elijah Beardsley gave the de-
fendant a receipt for the overplus of his bid.
The defendant discharged the executions
against E. Beardsley, and gave him a receipt
in full, but the defendant received no money
thereon. Another person had, before the
farm was struck off to the defendant, bid $1,-
026.
Phineas Beardsley, the testator, lived in
Connecticut, and did not attend the sale. The
defendant, both before and after the sale, had
declared (though not publicly) that he bid for
the benefit of his client. One witness, how-
ever, on the part of the plaintiffs, testified that
the defendant, on his being interrogated by
Elijah Beardsley, whether, if the creditors
would join and pay Hasbrouck, the assignee
of the older executions, he would give up the
farm, said that he would not, and that some-
body else might as well have the speculation
as the creditors. Soon after the sale, the
testator came to Delhi, and the defendant
offered that he should take the plaintiffs' deed,
but he said that he was embarrassed on ac-
count of Elijah Beardsley, and had rather the
defendant should sell the farm, and would try
to send some person to buy it, and spoke of
the farm as worth more than the amount of
the judgment and all the incumbrances. The
testator had, likewise, advertised in a public
paper, for a long time, to sell the farm at less
than its real value ; and one of the plaintiffs,
since the testator's death, had told the de-
fendant that he would endeavor to send some
one to him to buy it.
A verdict was taken for the plaintiffs, for
the amount levied upon the testator's judg-
ment ($754), with interest, subject *to [*466
the opinion of the court ; and that a nonsuit
be entered if the court should be of opinion
that the plaintiffs were not entitled to recover.
Mr. Sherwood, for the plaintiffs. The de-
fendant had only a general authority, as at-
torney for the testator. There is no evidence
of any special authority to make the purchase
for the benefit of his client.
As between the defendant and his client,
this must be considered as a money trans-
action. Whatever is accepted as money is
money, and this form of action lies wherever
money is received for the use of another. In
Barclay v. Gooch, 2 Esp. N. P. Cases, 571,
where a person gave a promissory note for
the debt another, which the creditor accepted
in payment, Lord Kenyon held it to be a pay-
ment of so much money to the use of the
party, for which assumpsit would lie.
In N&rris v. Napper, 2 Ld. Raym., 1007,
Lord Holt said, that though the defendant did
not actually receive the money, yet he re-
ceived a satisfaction which was money's
worth. And in Ward v. Evans, 2 Ld. Raym.,
928; 6 Mod., 36, S. C., where a creditor de-
sired his debtor to pay part of the debt to a
third person, to whom the creditor was in-
debted, and indorse it on a note from him to
his creditor, and the debtor made the indorse-
JOHNS. REP., 11.
1814
BEARDSLEY ET AL. v. ROOT.
4045
ment, but without paying the money, it was
held that the third person might maintain an
action against the debtor, for so much money
had and received to the use of the plaintiff.
So, in Surtax v. Hubbard, 4 Esp. -V. P. Cases,
:jn:{, Lord Kenyon held that where one, in-
debted to another, consents to pay over the
money to a third person, the latter may main-
tain an action of awtumjMt for it.
Mr. Woodworth, contra. The evidence in
the case will warrant the inference that the
defendant acted as the agent of his client.
After the sale, there was not the least disap-
probation expressed by the plaintiffs' testator
of the conduct of the defendant. It was
therefore, a matter of fact, which the jury
might well infer from the evidence, that.the de-
fendant acted as agent. If so, then he is
clearly not liable to an action.
If, however, the plaintiffs have any remedy,
it must be a special action on the case, calling
•on the defendant to account. The present
form of action cannot be sustained without
showing that the money had come into his
hands.
4O7*1 *In Nightingal v. Deviwne, 5 Burr.,
2589, Lord Mansfield held that this action
would not lie for East India stock, for it was
not money ; that it would not lie where no
money was received. In Longcfiamp v. Ken-
ny, Doug., 137, there was a fair presumption
that the defendant had actually sold the ticket
and received the money. Lord Mansfield said,
that though great benefit might arise from the
liberal extension of this form of action, yet it
ought not to be carried beyond its proper
limits. Thiscourt, in Tuttle v. Mayo, 7 Johns.,
132, he'd, that though in all cases it was
not necessary to have positive proof of the
money being received by the defendant, yet
the facts proved must afford a fair presump-
tion of the defendant having received the
plaintiff's money.
VAN NESS, «/"., delivered the opinion of the
court:
It may be true that the defendant intended
to purchase the farm mentioned in the case
for his client, though, judging from the facts
before us, it would rather seem that he
bought it on his own account. The fact of
taking the deed directly to himself, and not
to his client, affords a more clear indication
of his real intention at the time of the sale,
Jliaii his declarations made before and after.
But admitting that he meant to make the
purchase in behalf of his principal, still, hav-
ing no authority from him for that purpose,
he cannot compel him, or his representatives,
to accept of it. It is not pretended that his
employer gave him any express authority or
direction to make the purchase for him, and
no such authority was derived from his re-
tainer to collect the debt due from Elijah
Beardsley.
Admitting, however, for a moment, that an
attorney may be justified in making a pur-
chase in behalf of his client, when such a
measute is indispensably necessary to save or
secure his debt, yet this is not even a case of that
description. On the sale of the farm, Hasbrouck
offered to give within one dollar of the sum
for which it was struck off to the defendant ;
JOHNS. REP., 11.
and it is admitted by the case that the price
for which the farm was sold exceeded^ the
amount of all the executions in the sheriff's
hands ; so that there was not the least neces-
sity for the defendant to become the pur-
chaser, in order to secure his client's demand.
If the defendant was authorized to make
this purchase on account of his principal, then
the latter was bound to accept it, arcording to
the terms upon which it was made. By these
*terms, the defendant stipulated to [*4<$8
pay the amount due to Ilasbrouck upon his
judgment, which he has actually done ; and
Phinehas Beardsley, consequently, became
liable to re-imburse the defendant the money
thus paid. To permit an attorney in this way
to make his client his debtor might frequently
lead to the most injurious consequences.
Many clients, instead of recovering and re-
ceiving their money according to the ordinary
course of proceedings, would, unexpectedly,
find themselves involved in intricate and ex-
travagant speculations, to the management of
which they might be totally incompetent, and
which, in the end, might prove ruinous.
The defendant could not make himself a
trustee for his principal, against his will, and
throw upon his hands a purchase which his
interest did not require him to make. Suppose
the farm had turned out to be worth one half
the sum which the defendant gave for it,
would Phiuehas Beardsley have been obliged
to take it ? If Phinehas Beardsley had rati-
fied the purchase by some positive, unequivo-
cal act — such as re-imbursing the defendant
the money paid to Hasbrouck, or agreeing to
do so — he would have been bound to abide by
it, however disadvantageous it might have
proved. But so far from assenting to the pur-
chase, it appears from the defendant's own
testimony, that soon after the sale, when the
defendant offered him the sheriff's deed, he
declined to accept it ; and, at the same time,
told the defendant he was already embar-
rassed, on account of Elijah Beardsley, and
preferred he should sell the farm.
It follows, from what I have said, that the
defendant is to be considered as a purchaser in
his own right, and for his own benefit, and
not as trustee for Phinehas Beardsley ; and if
this be true, the remaining question in this
case may be easily disposed of.
The general rule indisputably is that the ac-
tion for money had and received cannot be
supported unless the defendant .has actually
received money. It has, however, been held
in the English courts that taking negotiable
paper is equivalent to the receipt of money ;
and although we have never sanctioned that
doctrine by an express decision, yet, in the
case of Gumming v. Hackley, 8 Johns., 206,
the court seem to intimate their approba-
tion of it. But the present case stands upon
different grounds. Here the attorney or agent
has discharged *a debt due to his prin- | *4($J)
cipal, and applied that debt to the payment
and satisfaction of his own debt, foi the
amount of which he is liable to the plaintiff in
this form of action ; and so it has frequently
been decided.
In the case of Soott et al. v. Surman etal.,
Willes' Rep., 400, the plaintiffs consigned to
the bankrupt, as their factor, a quantity of
N. Y. R., 5.
15
469
SUPKEMK COUKT, STATE OP NEW YORK.
1814
tar, which he sold before his bankruptcy, and
it was agreed that the tar should be paid for
in promissory notes, payable in four months
after the delivery of the tar, and that a debt
of £31, due from the factor to the vendees,
on his own account, should be deducted. The
suit was brought to recover this sum of £81,
as well as other moneys in the hands of the
defendant. The court held that this £31
stood just on the same footing as if the factor
had received that sum in money, before his
bankruptcy, from the vendees ; and that the
Elaintiffs must come in as1 creditors under the
ictor's commission. The same principle was
adopted by the court in deciding one of the
points in the case of Ward v. &cans, 2 Ld.
Raym., 928. But the case of Floyd v. Day, 3
Mass., 403, is, perhaps, more fully in point,
and I will, therefore, state it a little more at
large. Floyd, the plaintiff, having a demand
upon one Pilsbury, appointed the defendant,
Day, her agent, to recover for her a sum of
money, in satisfaction of her demand. The
defendant commenced a suit against Pilsbury,
and the matter was then compromised by
Pilsbury's agreeing to give $300 for a dis-
charge from the plaintiff's demand in full.
For this sum, the defendant, instead of money,
took Pilsbury's note, payable to himself, and
discharged Pilsbury, as he was authorized
to do by the plaintiff ; so that she had no
remedy, except against the defendant. Upon
this state of facts, the court decided that
the plaintiff could not maintain trover for
the note ; but that the defendant having, in-
stead of money, received the note of Pils-
bury, and discharged him, the property of
the note was in the defendant, and he became
immediately answerable to the plaintiff for the
amount, as for "so much money received by
him for her use ; and an action of assumpsit
was her proper remedy. For although the
defendant received no money, yet by his
transaction he discharged Pilsbury from the
plaintiff's demand on him for money, and he
must, be considered as having made himself
47O*] answerable to *her for the money he
ought to have received of Pilsbury." To
these cases may be added that of Denton
et al. v. Livingston, 9 Johns., 96, which was
decided in conformity with the doctrine laid
down in the preceding cases ; and the reasons
assigned by the court, in the decision of the
first point, to which I particularly refer, will
be found strictly applicable to this cause.
If the sheriff had demanded and received
the money for which the land was sold from
the defendant, on the execution of the deed to
him, there is no question he would have been
perfectly justifiable in immediately paying it
back again to him ; and, in that case, it is not
disputed that this suit might have been sup-
ported. The sheriff, however, instead of go-
ing through the useless ceremony of first re-
ceiving the money from the defendant with
one hand and paying it back with the other,
at once accomplished the same thing by taking
from him a receipt in full satisfaction of the
execution. This negotiation was the same as
money to the defendant. He paid his own
debt with his client's judgment, and he can-
not be allowed to say that no money came into
his hands.
226
If the defendant had been duly authorized
by his principal to purchase the land in trust
for him, and had, when required, refused to
execute the trust, I agree that the action for
money had and received could not be main-
tained. The fact that the purchase was not
thus made distinguishes this case from those
cited by the defendant's counsel, in which it
has been held that this action would not lie.
In consequence of the discharge given to the
sheriff, the plaintiff can never again resort to-
his judgment against Elijah Beardsley to ob-
tain satisfaction of his demand. The defend-
ant has had the benefit of that judgment as
effectually as if he had received the money
upon it, and then made use of it in the pay-
ment of any other debt he may have con-
tracted. Suppose Hasbrouck had, in fact,
become the purchaser, for the sum he offered
for the farm (which, it appears, was enough
to pay his own judgment, as well as that of
Phinehas Beardsley), and the defendant, in-
stead of receiving the money from him, and
due to his client, had consented that Has-
brouck should set off a debt which he hap-
pened to hold against him for an equal amount,
surely in that case the defendant would not
have been permitted to say that no money had.
come into his hands.
*I do not mean to question the au- [*471
thority of the cases relied upon by the defend-
ant's counsel. The present case depends upon
different principles, and is distingiiishable in
many respects, as will be seen by a summary
consideration of some of them. Let us take,
for instance, the case of Longchamp v. Kenny,.
Doug., 136, and suppose the plaintiff, instead,
of the evidence he gave in that case, had
shown that he delivered the masquerade ticket
to Kenny, the defendant, to sell, and to pay
over the money to the plaintiff, and that
Kenny had sold the ticket to some person to-
whom he was indebted in a sum equal to the
value of the ticket, and instead of receiving
the money, had paid his debt with it, and
taken a receipt in full. I think, upon such a
state of facts (which would make that and the
present case analogous), the plaintiff's right to
recover upon the count for money had and re-
ceived would have been perfectly clear.
Again: take the case of Rightinyal et al., as-
signets, &c., v. Devisme, 5 Burr., 2589, and
suppose the defendant Devisme, on the same
day he received the stock, had paid a debt he
owed with it, and taken a discharge of the
debt (which would also have made that case
like the present), I think there would have
been no question but the action for money had
and received would have been sustained.
While the ticket, in the first case (putting out.
of view the facts from which the court pre-
sumed that Kenny actually received the
money for the ticket), and the stock, in the-
other, remained in the hands of the respective
defendants, they were properly held not to be
liable as for money had and received ; but add
to these cases the facts which I have stated,
and the result, no doubt, would have been en-
tirely different. We are of opinion, therefore,,
that the plaintiffs are entitled to judgment.
SPENCER, J., not having heard the argu-
ment of the cause, gave no opinion.
JOHNS. HEP., 11..
1814
BROWN v. VAN DUZEN.
471
Judgment for the pUiintifft.
Cited in-4 Cow.. 737; 6 Cow., 470; 1 Wend.. 430; 3
Wend., Ki; 7 \VYnd., 3H2: 8 Wend., 644; 10 Wend.,
601: 15 Wend., 30.> ; 3 Hill. 3*4 : 2M. Y.. 10B; 34 N.
Y., l&i ; 44 \. V.. 2« ; :. liarl... l.%t ; 21 llurt>., 24 ; 51
Hurl.., «2 ; 11 Abb. Pr., 72 ; 41 Super.. 270 ; 6 Bess., 42 ;
27 Mich., 247.
472*] *BHOWN t>. VAN DUZEN.
Practice in Justice Court — Action of Debt on
Itecognizance — Evidence.
In an action of debt, on a recognizance, taken in
a justice's court, on a plea of title, it is incumbent
on tin- phtiiitiff to prove the recognizance, and com-
mencement of a suit, before the next term of the
Common Pleas.
And the defendant may enter into any evidence
t<> show that the writ was not issued with a ftona
Jule intent to have it served, and that the com-
mencement of the suit was collusive.
Whether a mere delivery of the writ to the sheriff
is a commencement of a suit; and whether the re-
cognizance ought not to be taken in the name of the
people. Quaere.
IN ERROR, from the Court of Common
Pleas of Orange County. This was an ac-
tion of debt on a recognizance for $50, taken
before a justice of the peace, upon a plea of
title, pursuant to the 10th section of the
Twenty-five Dollar Act, brought by Brown
against Van Duzen, who was impleaded with
Reynolds. In the action before the justice,
Brown was plaintiff and Reynolds defendant,
and Van Duzen entered into the recognizance
as surety for Reynolds. The breach aligned
by the plaintiff in his declaration was, that
Reynolds did not appear and put in bail, at the
next Court of Common Pleas, to a suit com-
menced against him by the plaintiff, according
to the condition of the recognizance. The de-
fendant pleaded nil debet, and gave notice of
evidence that the plaintiff had discharged the
recognizance.
The plaintiff produced and proved the re-
cognizance, and that he issued a writ in tres-
pass, in the Orange County Common Pleas,
returnable at the next term after the recogniz-
ance was taken, which, in consequence of the
death of the deputy -sheriff shortly after it was
delivered to him, was lost, and the defendant
therein had never been arrested. An entry
was made on the roll of the issuing of this writ.
The plaintiff attempted to prove that the
deputy-sheriff endeavored to serve the writ,
and that Reynolds eluded him, and kept him-
self armed to prevent an arrest.
The defendant (Van Duzen) went into evi-
dence to show that the issuing the writ against
Reynolds was a feigned proceeding, and dec-
larations and acknowledgments by the plaint-
iff were proved to that effect: " that it was in
his power to have taken Reynolds, if he wished,
lnit that it had not been his intention to do so,
and that he had some other person in view to
charge." . To this evidence the plaintiff ob
jecteu, and on his objection being overruled,
the bill of exceptions was taken. The jury
below gave a verdict for the defendant.
473*] *Jf>. FMc, for the plaintiff in error.
The only question is, whether improper evidence
was not admitted by the court below. It was
not competent to give in evidence the confes-
sions or declarations of Brown. This recogni-
zance could not be discharged by an accord
and satisfaction. It can only be discharged by
JOHNS. RKP., 11.
matter of as high a nature ; nor is accord and
satisfaction a plea to an action of debt on a
bond, conditioned to do a collateral thing (1
Comyn's Dig.. 181 ; Accord, A, 2 ; 2Cro., 99.)
nor where a less sum is paid. (5 Johns., 891.
J/r. C. Ruggle*, contra. Xil debet was a
proper plea, and the only Question is, whether
the evidence offered was admissible. A surety
may set up in his defense a neglect of the prin-
cipal, in prosecuting for a default. (People v.
Jan»on, 7 Johns., 832.) Here was a fraud-
ulent collusion between the obligee and prin-
cipal to charge the surety. Where A be-
comes surety to B for the good conduct of
C, in the service of B, and B conceals from the
surety the acts of misconduct of C, it will dis-
charge the surety. (Peel v. Tatiock, 1 Bos. &
Pull., 419.)
PLATT, «/., delivered the opinion of the court:
It was incumbent on the plaintiff to prove,
1. The recognizance ; and, 2. That he com-
menced a suit for the trespass, before the next
term of the Common Pleas.
Whether merely issuing the writ and deliver-
ing it to the sheriff to be served, without actual
service and without an alia* and pluries capias,
can be deemed a commencement of the suit in
the sense of this recognizance : and whether the
recognizance ought not to be taken to the peo
pie, -are questions which need not be decided
in this case.
It was indispensably necessary for the plaint-
iff to prove at least the delivery of the writ to
the proper officer, with a bona fide intention
of having it served ; and if the defendant could
show that it was a feigned proceeding, with-
out intention on the part of the plaintiff to
have it served, or could show ground to pre-
sume that the plaintiff had instructed the of-
ficer not to serve the writ, it was pertinent evi-
dence ; because it went to disprove " the com-
mencement of the suit," in the largest sense of
the phrase.
If the plaintiff could have succeeded in prov-
ing the suit commenced, he would have re-
covered $50 of the surety, *without f*474
encountering the plea of . title set up by
Reynolds. Hence the materiality of that evi-
dence.
The counsel have argued the case as though
the evidence offered by the defendant was in-
tended to operate as a direct release or discharge
of the recognizance; whereas, it goes to con-
tradict an essential averment in the declaration,
to wit : the commencement of the suit against
Reynolds. In the latter view it was proper
evidence, and the judgment below ought to be
affirmed.
Judgment affirmed.
Cited in-10 Wend., 670 ; 8 Hill, 001 ; 33 N. J. L., 112.
MINTON, qui tarn, &c.
r.
WOODWORTH AND FERRIS.
Pleading of Deed in Action of Debt— Discharge
of Judgment or Prisoner — Escape.
In debt, where a deed is inducement to, and mat-
ter of fact, the foundation of the action, nil debet
may be pleaded.
227
474
SUPREME COURT, STATE OF NEW YORK.
1814
Aliter, where the deed is the foundation of the
action.
In debt for an escape from the jail liberties, nU
debet is a good plea.
In a popular action, the plaintiff cannot discharge
the judgment as to the people's moiety, without
payment. And if, in such action, the defendant,
naving been taken in execution, is discharged by
the plaintiff without satisfaction, such discharge is
no bar to an action for an escape.
Citations-1 Chit. PI., 476, 477 ; 2Saund., 287 a, n. 2 ;
8 Johns., 82 ; 9 Johns., 118 ; 10 Johns., 18 ; 1 Bos. & P.,
18.
was an action of debt, brought by the
-L plaintiff, who sued as well, &c. , as assignee
of the late sheriff of Cayuga, on a bond for the
jail liberties, executed by Woodworth, and
Ferris, as his security.
The declaration stated that the plaintiff had,
in a qui tarn action, in the Supreme Court, re-
covered a judgment against the defendant
Woodworth, for $250 ; that in August, 1811,
he issued a ca. sa., on which the defendant
was taken, and that he and the defendant Fer-
ris executed a bond to the sheriff for the liber-
ties of the jail ; that on the 1st of September,
1812, Woodworth escaped; and that on the
18th of September, in the same year, the bond
was duly assigned to the plaintiff, who brought
the present action, as well on behalf of the peo-
ple, &c. , as of himself.
The defendants, after oyerof the condition of
the bond, pleaded five pleas :
1. NU debet.
2. That the plaintiff, on the 23d of Decem-
ber. 1811, discharged Woodworth from his
imprisonment, and suffered and permitted him
to go at large without the limits, &c.
3. After stating and admitting the allega-
tions contained in the declaration, as to the
judgment, ca. sa., and execution of the bond
of the sheriff, that while Woodworth re-
475*] mained a true *aud faithful prisoner,
on the 23d of December, 1811, the plaintiff
discharged Woodworth, and suffered and per-
mitted him to go at large without the limits,
«&c. , which is the same escape, &c.
4. That Woodworth did commit the escape,
and go at large without the limits, by the leave
and license to the plaintiff, on the 23d of De-
cember, 1811.
5. That after executing the bond to the
sheriff, on the 23d of December, 1811, the de-
fendant Woodworth paid to the plaintiff the
sum of $250, being the full amount of the debt
recovered by the judgment.
To the first four pleas the plaintiff demurred,
and the defendant joined in demurrer ; to the
5th plea the plaintiff replied, and tendered an
issue.
Mr. Richardson, in support of the demurrer.
1. Nil debet is not a good plea where the action
is founded on a record or specialty, as in an
action by the assignee of the sheriff, upon a
bail-bond. (1 Saund., 38, n. 3 ; 2 Ld. Raym.,
1503 ; 2 Str., 780 ; 5 Burr., 258, 6.)
2. The other pleas are also bad ; for a plaint-
iff in a qui tarn, or popular action, cannot com-
pound with, or discharge the defendant, with-
out the order or consent of the court. (Brad-
way v. Leworthy, 9 Johns., 251; 1 N. R. L.,
101, sess. 11, ch. 9, sec. 8 : Caswell v. Allen,
10 Johns., 118); and after verdict, the court
will not give leave to compound, unless
228
under very special circumstances. (1 Bos. &
Pull., 18 ; 5 Term, 258 ; 1 Wils., 79.)
Mr. Sedgwick, contra. 1. Where the bond or
specialty is not of the essence of the action, but
only inducement to it, there nil debet is a good
plea. Now, here the escape is the foundation of
the action, and the bond taken is only induce-
ment. (1 Chitty's PL, 447 ; 1 Ld. Raym., 1500 ;
1 Saund., 176, n. 1, 2.)
2. This is not a popular action. The plaintiff
is not a common informer. The statute, there-
fore, does not apply to this case. In the case
of Crowder v. Wagstaff, 1 Bos. & Pull., 18,
there was a verdict. But compounding of an
action can only be before verdict.
THOMPSON, Ch. J., delivered the opinion of
the court :
2. This case comes before the court on a gen-
eral demurrer to the first four pleas. The ac-
tion is debt upon a bond for the jail liberties,
for the defendant Woodworth. The first plea
is nil debet, and the following three pleas, which
are substantially alike, allege *that [*476
the plaintiff discharged the prisoner, and that
the escape was by his consent, order or direc-
tion.
The demurrer to the first plea is not well
taken. The general rule is, that where, in
debt on a specialty, the deed is only induce-
ment to the action, and matter of fact the
foundation, nil debet may be pleaded. But
where the deed is the foundation of the action,
although extrinsic facts are mixed with it, nil
debet is not a good plea. (1 Chitty's Plead.,
476, 477 ; 2 Saund., 287 a, n. 2.) The present
action falls within the first class of cases. The
specialty is but inducement, and the escape is
the foundation of the action. (8 Johns., 82.)
But the next three pleas cannot be supported
according to the decisions of this court, in
the cases of Bradway, qui tarn, v. Leworthy
9 Johns., 251, and Caswell, qui tarn, v. Atten,
10 Johns., 118. In these popular actions
the plaintiff has no right to discharge the judg-
ment, or compound with the defendant, with
put the leave of the court, or without receiv-
ing payment of the judgment. The defendant
being in custody upon a ca. sa., the discharge
by the plaintiff, as set forth in the pleas, was
equivalent to a release or discharge of the
judgment ; and in a mere private action,
would be a complete exoneration of the defend-
ant from the debt. But in actions of this de-
scription, such discharge, so far as it relates to
the moiety of the penalty belonging to the
Eeople, is void, and cannot excuse the escape,
a the case of Crowder v. Wagstaff, 1 Bos. &
Pull., 18, on motion to compound a qui tarn,
action, after verdict, it was stated to the court
that the plaintiff consented to the compound-
ing. But the court said we cannot pay any
attention to the consent of the plaintiff, after
verdict. So, in this case, the consent of the
plaintiff to the escape was void, and can avail
nothing. There must, accordingly, be judgment
for the defendant upon the demurrer to the
first plea, and for the plaintiff on the demurrer
to the other three pleas.
Judgment accordingly.
Cited in-7 Cow., 276 ; 3 Wend., 186 ; 2 Hill, 234 ; 6
How. Pr., 76 ; 3 Leg. Obs., 38 ; 31 N. J. L., 187.
JOHNS. REP., 11.
1814
.Ir I.I AM) V. BURGOTT.
477
477*] MULIAND
v.
BURGOTT AND BURGOTT.
And for Security from Incumbraneet — Not a
Covenant for Quiet Enjoyment — Recovery
without Showing Eviction.
Where the condition of a bond wa«, that the obli-
gor should secure the obligee from all inciimbrances
of certain lands, and it was agreed that the obligor
should wo th<- luiuLi free from all ineutnbranees by
i IK- 20th of February : it was held that it did not
amount to a covenant for quiet enjoyment ; and
that if the land was not freed from all incum-
brances by the 30th of February, there was a breach
of the condition, and the obligee might recover on
the bond, without showing any eviction.
Citation-8 Johns., 188.
rr H I > was an action of debt on a bond, dated
1 December 8, 1811. The bond recited a
sale and conveyance of certain lands by the de-
fendant Peter Burgott, to one Van Vliet, and
a sale and conveyance of the same land by
Van Vliet to the plaintiff, bv deed, bearing
even date with the bond. The condition of
the bond was, that if the defendants, their
heirs and assigns, should secure the plaintiff,
his heirs and assigns, free from all legal incum-
brances, either by deed, mortgage or other
wine, now in existence, and binding on the
premises, the obligation should be void. The
condition further stated that it was agreed be-
tween the parties that the defendants should
see the lands free from all incumbrances, as
above mentioned, by the 20th day of Febru-
ary, 1812. The plaintiff, in his declaration,
averred that Peter Burgott, in 1806. mortgaged
the lands to secure the payment of a sum of
money, payable in 1809, which mortgage was
registered, and remained unsatisfied at the date
of the bond, and that the defendants did not,
by the 20th day of February, see the premises
freed from all incumbrances, &c., which were
in existence and binding, at the execution of
the bond, as they were bound to do according
to the tenor of the condition thereof. To this
declaration, after oyer prayed, the defendant
demurred specially, assigning for cause of de-
murrer, that it was not stated that the plaintiff
had been evicted by legal process under the
mortgage, or any other incumbrance. The
plaintiff joined in the demurrer. (See 8. C.,
ante, p. 6.)
Mr. Uajtp, in support of the demurrer. The
plaintiff, in his declaration, avers an existing
mortgage, remaining as an incumbrance on the
land. We contend that the agreement amounts
to a covenant for quiet enjoyment. &c. ; and
it was incumbent on the plaintiff to have
averred and shown an eviction under that
mortgage. The case is perfectly analogous to
that of Van Slyck v. Kimball, 8 Johns., 198.
There was a covenant to indemnify and save
harmless from all demands, <fcc., by reason of'
a certain mortgage ; and the court held it to be
a covenant for quiet enjoyment.
478*] *Mr. Vanderly'n, contra. The ques-
tion now raised was, in truth, argued when
this cause was decided on the former demurrer.
(See 8. C., ante, p. 6.) The only objection
then, was that the plaintiff had not specified a
particular outstanding mortgage. In the pres-
ent declaration the plaintiff has done so. This
JOHNS. Km-., 11.
is merely a covenant to free the land from all
incumbrances by a certain day. Where there
is a covenant of indemnity only, there is no
breach until the party shows he is damnified ;
but where the covenant or condition is to do a
certain thing by a certain day, there the party
must show a performance ; and the plaintiff is
entitled to his action for the non-performance.
YATES, J.. delivered the opinion of the
court :
This bond is not tantamount to a covenant
for quiet enjoyment. It is given for the per-
formance of an act by a certain day, particu-
larly stated in the condition, and for the non-
performance of which the plaintiff is entitled
to his action. The words in the condition are :
"And it Is expressly understood and agreed be-
tween the parties to these presents, that the
said Peter and Garrit are to see the lands freed
from all incumbrances by the 20th dav of Feb-
ruary, 1812."
The plaintiff states in his declaration a mort-
gage duly registered, the parties to it, the
amount secured by it, that it existed when
the bond was executed, and that it re-
mained unsatisfied on the 20th of February.
This is sufficient, without showing an eviction.
No molestation in the possession of the prem-
ises was essential to the remedy ; nor was it
necessary lhat proceedings should be had on
the mortgage, by foreclosure, or otherwise.
The injury to the plaintiff exists without it. It
is enough that the incumbrance had not been
removed at the time stipulated by the defend-
ants.
The case of Van Slyck v. Kimball. 8 Johns. ,
198, cited bv the defendants, cannot affect this
decision. There the defendant had sold to the
plaintiff a piece of land, and covenanted with
aim to indemnify, and save him harmless,
from all demands, dues and damages whatso-
ever, which might happen or arise to him from
a certain mortgage on the same land. The
court decided that this was tantamount to a
covenant for quiet enjoyment, against the
mortgage, and that the plaintiff could not
maintain an action for a breach of the cove-
nant, without showing an eviction under the
mortgage, because it was the very essence
*of the covenant that he should show [*47O
liimself damnified by being disturbed in the
?njoyment of the property, by due course of
law, before he could sustain bis action on the
covenant, and which could only be shown by
an eviction ; but it is not so in the case before
us. The covenant is that all incumbrances
should be removed by the defendants on a giv-
en day. which has not been done. The de-
fendants, therefore, are in default, and the
declaration sets forth the whole with proper
averments ; the plaintiff, consequently, is en-
titled to judgment.
Judgment for the plaintiff.
Cited in-78 N. Y., 801 : 12 Hun. 164 ; 13 Hun, MR:
4 Hun. 189.
CHURCH AND DEMILT t>. MUMFORD.
Joinder of Countt in Tort or Assumpsit.
Where a declaration contained several counts, in
i'li of which the crmiyimen stated was a tortious
breach of the defendant's duty as an attorney, as
229
479
SUPREME COURT, STATE OF NEW YORK.
1814
— » —
well as of the implied promise arising from an em-
ployment for him ; it was held that as each count
contained allegations sufficient to support it, either
in tort or assumpsU., they were not incompatible,
and might be joined in the same declaration.
Citations-2 Saund;, 117 b, n. 1 : Chit. PL, 199.
THIS was an action against an attorney, for
negligence, whereby the plaintiffs lost
their debt. The declaration contained three
counts :
1. That the defendant, in consideration that
the plaintiffs had retained him as their attor-
ney, to commence and prosecute a suit in the
Supreme Court, against Burt ;and Babcock,
for a large sum- of money due the plaintiffs,
for certain reasonable fees and reward, to be
to be paid him, undertook to commence and
prosecute the said suit to judgment, in a skill-
ful and diligent manner ; but that, not regard-
ing his said promise, but contriving, &c. , he
did not commence, &c. , but on the contrary,
neglected to commence the said suit, and to
prosecute the said suit to judgment, for a long
time after his said promise, and until the said
Burt and Babcock became insolvent ; whereby
the plaintiffs not only lost their demand, but
were obliged to pay, and had paid, a large
sum of money for the costs and expenses of
prosecuting the said demand.
2. The second count stated the retainer, as
in the first, varying only in the amount of the
demand against Burt and Babcock ; that the
defendant, not regarding, &c., but on the
contrary, neglected his duty, as an attorney,
in the prosecution of the said suit, in not caus-
48O*] ing the judgment to be signed and *filed
until December, 1809, when it might and
ought to have been done in May, 1808; whereby
the plaintiffs lost their debt, and were obliged
to pay, &c.
3. That the defendant, in consideration that
the plaintiffs had retained him as their attorney
and agent, to secure and render certain the
payment of a certain demand against Burt and
Babcock, for certain reasonable fees' and re-
ward, undertook and promised the plaintiffs
to secure and render certain the payment of
the said demand, in a prudent, skillful and ju-
dicious manner ; and that the said Burt and
Babcock offered to the defendant, as the attor-
ney and agent of the plaintiffs, good, am-
ple and sufficient security; which, although
it was the defendant's duty to have re-
ceived, he, not regarding, &c., did not, nor
would accept of, nor receive security, to ren-
der certain the payment of the said demand,
&c.
To this declaration there was a general de-
murrer and joinder.
Mr. E. Williams, in support of the demur-
rer, contended that the declaration was bad
for duplicity. The first and second counts
were in assumpsil, and the third in tort ; and
counts on contract and on tort cannot be
joined in the same declaration.
Mr. Vanderlyn, contra, insisted that all the
counts were substantially alike. The third
count, like the other two, is in assumpsit. It
is for a breach of duty, arising from the de-
fendant's promise as attorney or agent. There
is no agency, nor any liability, on the part of
the defendant, but what arises from a promise
or undertaking, express or implied.
230
THOMPSON, 67t. J., delivered the opinion of
the court :
It is, no doubt, a well-settled rule, that
causes of action, founded on tort, and upon
contract, cannot be joined in the same decla-
ration (2 Saund., 117 b, n. 1 ; Chitty's Plead.,
199); and if the counts in the declaration of the
plaintiffs are to be so considered, the demurrer
is well taken. But that does not appear to be
the case. The counts are all substantially the
same, whether they are regarded as founded on
tort or in aasumpsit. The gravamen alleged is
a breach of duty, arising out of an employ-
ment for hire ; and the" same circumstances
which show a breach of duty, amounting to a
tortious negligence, show *also a [*481
breach of promise implied from the considera-
tion of hire. A party may generally declare
in either way. Eaoh count in this declaration
contains allegations sufficient to support it,
either in tort or assumpsit. The first two
counts set forth the employment of the de-
fendant as an attorney, the consideration and
the promise or engagement on his part, and
charges him not only with a breach of his un-
dertaking, but with a neglect of duty as an
attorney, in not commencing and prosecuting
a suit against Burt and Babcock, whereby the
plaintiffs lost their demand. The third count
varies a little the cause of action, and alleges
that the defendant as attorney or agent, un-
dertook to secure and render certain the pay-
ment of the plaintiffs' demand against Burt
and Babcock, and a breach of such undertak-
ing. But it also avers that Burt and Babcock
offered the defendant good, ample and suffi-
cient security for the payment of the demand ;
but that the defendant, fraudulently intending
to deceive and defraud the plaintiffs, did not
and would not accept of or receive the secur-
ity. Whether the defendant is here to be
considered as charged in the character of an
attorney, or in that of an ordinary agent, can-
not materially vary the nature of the charge.
The facts set forth, if true, clearly show gross
negligence, amounting to a tortious act on the
part of the defendant. The material allega-
tions in all the counts are substantially the
same. The plaintiffs must, accordingly, have
judgment upon the demurrer.
Judgment for the plaintiffs.
Cited in— 21 Wend., 30 ; 4 Allen, 506.
*GELSTON v. BURR. [*482
Pleading and Practice — Breach of Covenant —
Demurrer to Defective Pleading Overruled,
when.
In covenant for a breach of the covenants of sei-
sin, &c., the defendant pleaded that the plaintiff be-
came seised of the premises, and might have held
the same without molestation, but that he did, by
deed, defeat and bar his said estate, &c. A replica-
tion to this plea, denying that the plaintiff did de-
feat and bar his estate, without confessing or trav-
ersing that the plaintiff was previously seised, is
bad.
But, as the plea did not show the nature of the
instrument, whereby the plaintiff defeated his es-
tate, and the parties to it (although he was not
bound to give oyer of it), the plea was held bad.
In covenant for a breach of the covenants of sei-
sin, the defendant had sold the land in questio'n to
JOHNS. RKP., 11.
1814
GELSTON v. Brim.
4S2
A, who. to secure tin- consideration money, mort- j
inured it to the defendant, and tin- defendant after-
wai-dd sold and conveyed the same land to tin-
plaintiff : tin- plaintiff assigned the seisin of A us a
in-each of the covenant; the defendant pleaded that
th«- Miorttfatfe from A to him had become forfeited,
whi-reiip-iri he cnter»-d and became seised of the
land. and. Iteinirdo seised, conveyed to the plaintifT:
it was held that the plea wits bad in not stating that
iiiity of n-demption had IK-I-H barred.
\Vhere a party demure to a defective pleading, if
the previous pi' M' liny, to which the pleading <le-
innrred to is an answer, b'j also defective, judgment ,
will be given against the demurrer.
THIS was an action of covenant against the
defendant, one of the attorneys of tliis
court.
The declaration stated that the defendant,
on the 1st of November. 1803, executed a deed |
to the plaintiff, which deed was set forth, and '
in which it was recited, that the defendant, on
the 22d of October, 1802, conveyed to one
Timothy Green twenty lots of land in the City
of Xew York ; and that the said Green, for
securing $4,000, part of the purchase money,
to be paid in four equal annual installments,
with interest, did. on the said 22d of October,
mortgage to the defendant the said twenty lots
which said mortgage has been assigned by the !
defendant to the Manhattan Company ; and
that whereas, afterwards, the said Green re- j
le:i-cd the said lots to the defendant, subject '
to the said mortgage; and whereas the first of I
tli«- said installment has been paid by the de-
fendant; and that, whereas the defendant has
bargained and sold the said lots to the plaint-
iff, in consideration of the sum of $5,300 ; the
deed then stated that the said defendant, in
consideration of the said sum. bargained and
sold unto the plaintiff the said lots in fee, sub-
ject to the said mortgage; that the defendant
covenanted that he was lawfully seised, and
had good right to convey; that the plaintiff
should peaceably and quietly enjoy the same, (
without molestation of the defendant, or any!
person claiming under him ; and that the same I
were clear of all former gifts, grants, &c., and i
incumbrances, except the said mortgage. The j
plaintiff then averred that the defendant had j
not lawful authority to convey the said prem-
and that the plaintiff did n.it peaceably
and quietly enjoy the same ; because the said
-Green, by virtue* of the said conveyance to him
from Burr, the defendant, was seised of the
premises, and did lawfully claim the same,
and had never released and reconvcyed the
same to the defendant, in manner and form as
in the recital of the deed from the defendant
to the plaintiff is mentioned ; and that the
483*]* premises were not free from incum-
brances, save as to the said mortgage, but that
the .same were incumbered by the conveyance
from the defendant to Green ; and so the said
defendant his covenant has not kept, &c.
To this declaration the defendant pleaded:
1. That after the execution of the deed from
the defendant to the plaintiff, on the 1-t of
November, 1803. the plaintiff became sci-e 1 of
I he premises in fee, and might have held and
enjoyed the same without molestation, but
lliat'onthe 18th of April, 1808, he did, by
deed dated on that day. defeat and bar the said
•estate, RO conveyed to him by the defendant,
\\licrebv it became ended and determined.
2. After stating the mortgage from Green to I
-JOHNS. RHP.. 11.
the defendant, which came afterwards into
the hands of the plaintiff, and still remains in
his possession, and was, on the llth of Novem-
ber, 1M>2, duly registered, and that Green did
not pay the MM $4,000. and the interest, but,
nevertheless, that the plaintiff, on the 18th of
April, 1808, voluntarily, and without the
knowledge and consent of the defendant, did,
by a certificate in writing signed by him, the
plaintiff, acknowledge the said mortgage to be
satisfied; and thereupon caused the said record
and mortgage to be canceled, whereby the es-
tate of the said plaintiff was defeated, and be-
came revested in Green.
Sand 4. The defendant, in his 3d and 4th
pleas, negatived the breaches assigned in the
plaintiff's declaration on the first and second
covenants respectively, and tendered issues
thereon to the country.
5. As to the breach of the third covenant ;
that on the said 1st of November, 1803, the
plaintiff entered and was seised, and might
have remained in quiet enjoyment ; traversing
that Green was seised at the time.
6. As to the breach of the fourth covenant ;
that the premises were, on the said 1st of No-
vember, free of all incumbrances, save as to
the said mortgage ; traversing that they were
incumbered by the conveyance from the de-
fendant to Green.
7. For further plea, as to so much of the
breaches thirdly assigned in the plaintiff's dec-
laration as alleges, that at the time of the con-
veyance from the defendant to the plaintiff,
Green was seised of the premises, and did law-
fully claim the same, and had never released
and conveyed the same ; and as to so
*much of the breaches fourthly as- [*484
signed, as alleges that the premises were in-
cumbered by the conveyance from the de-
fendant to Green ; that (after stating the mort-
gage, as in the 2d plea) Green did hot pay any
of the installments, at the time limited by the
mortgage, or at at any other time, whereby
the estate of the defendant became absolute in
the premises; whereupon he entered on the
same, and became seised thereof in fee, and,
licinir M> seized, conveyed to the said plaintiff.
8. For further plea,* as to so much of the 3d
and 4th breaches as are answered in the 7th
plea : that between the said 22d of Octo-
ber, 1802, and the said 1st of NovemlM-r. 1803,
Green released the said twenty lots of land to
the defendant by deed, which deed has been
since lost or destroyed by time or accident, and
cannot be brought into court, nor can the date
thereof be more particularly set forth.
The plaintiff replied as follows:
1. To the first plea : that the defendant did
not defeat and bar his estate in the said twenty
lots of lands in manner and form, &c.
2. A general denial of the allegation in the
second plea.
8. As to the fifth plea : that Green was seised
and possessed of the premises, and did law-
fully claim the same ; pursuing the words of
the declaration.
4. As to the seventh plea : that the defend-
ant did not become seised of the premises in
fee, and was not seised thereof in manner and
form, &c.
5. As to the eighth plea : that Green did not
rcconvey to the defendant.
231
484
SUPREME COURT, STATE OF NEW YORK.
1814
Issues were tendered by each of these repli-
cations.
To the replications to the first and seventh
pleas, the defendant demurred, and the plaint-
iff joined in demurrer.
Mr. Bun; in support of the demurrer.
Mr. Henry, contra.
Per Cwiam. The replication to the first
plea does not traverse the facts as stated. It
neither affirms nor denies that after the execu-
tion of the deed from the defendant to the
plaintiff, the plaintiff was seised in his demesne
as of fee of and in the lots mentioned. It only
485*] tenders an issue on the *fact whether
the plaintiff did defeat or bar his estate by
deed under his hand and seal. The plea, how-
ever, is deficient ; the deed, by which it is al-
leged that the plaintiff defeated his title, is in-
sufficiently set forth ; although it is not incum-
bent on the defendant to give oyer of this deed,
yet it ought to have been so pleaded as to show
the nature of the instrument, and the parties
to it, whereby its extent and operation might
fully appear, and the intent and meaning of
the plea be plainly understood, so as to enable
the defendant to reply to it with precision.
An omission so essential renders it bad, for
want of sufficient certainty ; and the first fault
having been committed by the defendant, ac-
cording to the rules of pleading, the plaintiff
is entitled to judgment.
The facts disclosed by the seventh plea (ad-
mitting them to be true) do not show that the
defendant was seised of and in the twenty lots
according to the covenant contained in the
conveyance from the defendant to the plaintiff.
It is stated that the premises had been mort-
gaged to the defendant by one Timothy Green,
to secure the payment of $4,000 in four equal
annual installments,with interest.at 6 per cent,
per annum, to be paid annually on the said sum,
or such part thereof as should remain unpaid;
that default had been made by T. Green in
those payments, whereby the estate of the de-
fendant became absolute in the premises, &c.
The forfeiture of this mortgage, and re-entry
of the defendant, did not make it an absolute
conveyance of the premises to him. The equity
of redemption still remained in Green. This
plea, consequently, is wholly defective by not
showing a performance of the covenant on the
part of the defendant. It is, therefore, unnec-
essary to examine the replication to which the
defendant has demurred, because, consonant
to the rules of pleading before mentioned, the
plaintiff is entitled to judgment.
Judgment for the plaintiff.
Cited in— 1 Wood & M., 383.
486*] *PHILLIPS v. TRULL.
Action for Assault — False Imprisonment — Jus-
tification.
In an action for an assault and false imprison-
ment, it is no justification that the plaintiff, being
engaged in an affray, was taken into custody, until
he could be brought before a justice, without stat-
ing1 that the defendant was an officer, or acted un-
der a warrant.
232
Citations— 3 Hawk. P. C., 157, Arrest, sec. 1 ; 2"
Inst., 52 ; Burns' Justice, 93 ; 3 Hawk.,174, b. 2, sec. 20.
THIS was an action for an assault and bat-
tery and false imprisonment. The declar-
ation contained three counts ; in the 1st and
3d counts an assault and battery, and an im-
prisonment for six days, were charged ; in the
3d, an assault and battery merely.
The defendant pleaded, 1. Not guilty. 2.
As to the assaulting, &c., and imprisoning the
plaintiff, and detaining him in prison for the-
space of ten hours, part of the time in the first
count of the declaration mentioned, that the
plaintiff and three other persons, being in a
house occupied by one Elisha Fitch, in Manlius,
made a great noise, affray, disturbance and
riot in the said house, in breach of the peace.and
because the defendant, being a laborer and
lodger in the said house, at the request of the
said Fitch, in attempting to keep the peace
and stop the noise, &c., was assaulted by the
plaintiff, he gave charge of the said plaintiff
to one Curtis to take him into his custody, and
keep him until he could be carried before a
justice of the peace, to answer for the said
breaches of the peace ; and that, at the request
and by the order of the defendant, the said
Curtis gently laid his hands on the said plaint-
iff and took him into custody for the pur-
poses aforesaid ; but because it was midnight,
and the plaintiff could not be immediately car-
ried before a justice, he was necessarily de-
tained in the custody of Curtis until the next
day, and that he was, as soon as he conven-
iently could be, carried before a justice ; and
the defendant avers that, by means of the
premises, the plaintiff was necessarily impris-
oned for the space of ten hours, part of the
said time ; which is the same, &c.
To this second plea the plaintiff demurred
specially ; because, 1. It does not answer the-
first count of the declaration. 2. That it is
no justification or bar to the action. 3. That
it is double and argumentative, and in other
respects uncertain, informal and insufficient.
Mr. Sill, in support of the demurrer. The
plea is founded on the supposition that a pri-
vate person may not only arrest another
*who is breaking the peace, but may [*487
lawfully command a third person to arrest the-
disturber. This is not the law.
Again, the plea only justifies a part, and is,
therefore, bad. (1 Bac. Abr., 246, Assault, C,
1 Ld. Raym., 229.) It ought to have traversed
the force and arms.
Mr. Wendell, contra. The defendant may
justify an assault in laying hands on another
who is breaking the peace. (Burns' Justice,
161 ; 5 Com. Dig. Plead., 3, M, 22.) Similar
pleas to the present are to be found in the
books of precedents. (9 Went. PI., 97, 344,
345, 346.) The alleging of the continuance of
tjie trespass for six days, is only a matter of
aggravation or inducement, and need not he-
alleged with certainty. (2 Str., 1095.) And
the plea need not answer matter of aggrava-
tion or inducement, but only what is material.
(3 Term R., 297; 1 Sauud. 28, n. 3.) An
answer to what goes to the gist of the action
covers the whole declaration.
Where a justification is of the same trespass,
the plea is good without a traverse. (2 Saund. ,.
5, n. 3.)
JOHNS. REP., 11.
1814
RAYMOND v. JOHNSON.
48T
PLATT, «/., delivered the opinion of the
court.
AH persons whatever, who are present when
a felony is committed, or a dangerous wound is
given, are bound to apprehend the offenders.
(3 Hawk. P. C.. 157, Arrest, sec. 1.) So any
•ii whatever, if an affray be made, to the
breach of the peace, may without a warrant
from a magistrate, restrain any of the offend-
in order to preserve the peace ; but after
there is an. end of the affray, they cannot be
arrested without a warrant. (2 Inst., 52;
Hums' Justice, 92.)
Hawkins (3 Hawk. P. C., 174, bk. 2, sec. 20)
says: "It seems clear that, regularly, no pri-
vate {>erson can, of his own authority, arrest
another for a bare breach of the peace, after
it i^ over."
We are of opinion that the special plea of
justification is bad ; and the plaintiff, there-
fore, is entitled to judgment on the demurrer.
Judgment for the plaintiff.
Cited tn-3 Park, 254 ; 9 Bos.. 36; 41 Super., 112.
488*] 'RAYMOND r. JOHNSON,
1. Parties — Assignee under Insolvent Law of an-
other State — Must stie in Insolvent's Name. 2.
Effect of Assignment on pending suit.
Although the court will recognize and protect the
right of an assignee.underthe insolvent law of an-
otner state; yet an action brought in this State
must I » • in the name of the insolvent.
Where a suit :has been commenced by an insolv-
ent before assignment of his estate, the suit will
not abate by his discharge, but will continue in the
insolvent's name, for the benefit of his assignees.
Where an action is brought in the name of an as-
signor, by the assignee or person beneficially inter-
ested, the defendant cannot avail himself of the
plaintiff 's want of interest, or that some other per-
son than the one for whose benefit the suit is
brought, is the party beneficially interested.
Cltations-2 Johns., 344; 1 Chit. PL, 14;3T. R.,
438 ; 10 Johns., 400.
THIS was an action of assumpnt. Pica, the
general issue. It was originally com-
menced in the Mayor's Court of the City of New
York, in the vacation before February Term,
1812, of that court; and was removed into
tliU court by habeas corpus. The cause was
tried at the New York sittings, in April, 1814,
where a verdict was taken for the plaintiff, for
$411.76, subject to the opinion of the court on
the following case :
On the 8d of August. 1807, the plaintiff
made a promissory note for $487.83, at ninety
days, payable to one Lloyd, and indorsed by
Lloyd to one Bruce, but was retained by the
plaintiff in his possession. A few davs after
tin- plaintiff borrowed of the defendant the
Mini of $'200. for which he gave the defendant
liis due bill, and at the same time delivered
him the promissory note as collateral security,
under an agreement that, on the payment of
the said sum with interest, the defendant
should return the said note to the plaintiff. In
October. 1807, in the same year, Bruce, the
second indorser on the note, sY>ld and delivered
to the defendant a quantity of bread, for which
he promised to pav Bruce, who was then ig-
norant that the defendant held the note in-
JOHNS. REP., 11.
dorsed by him, the sum of $500 in thirty days.
The plaintiff having neglected to pay the de-
fendant the money oorrowed of him, and the
note, which was delivered as collateral secur-
ity, not having been paid, it was protested for
non-payment, and notice given to the indorsers;
and when, at the expiration of the thirty days,
Bruce called on the defendent for payment of
the bread sold him, the defendant tendered
Bruce, in payment, the said note, and the bal-
ance in cosh, which Bruce, who knew himself
to be fixed as indorser. but was unacquainted
with the agreement between the plaintiff and
the defendant, accepted in satisfaction, and
discharged the debt. In the latter part of
1811, the plaintiff took up the note, by giving-
Bruce other notes, which he had drawn, and
which were indorsed by one Childs, which
notes have been since paid. About the same
time, but before the commencement of the suit
in the Mayor's Court, aad before the plaintiff's
discharge as an insolvent, but after he bad ad-
vertised *his intention to take the bene- [*4SJ>
fit of the Act, in consideration that Childs had
advanced money to maintain the plaintiff's fam-
ily, and intended to make further advances
for the plaintiff, delivered the note to Childs,
and verbally assigned him his interest therein,
and empowered him to bring an action in his
name. The plaintiff, in April 1811, was dis-
charged, and his estate assigned under the In-
solvent Act of 1811 ; and he had previously, in
January, 1810, been discharged in the State of
New Jersey, and all his estate, real and per-
sonal, was there assigned in trust for the ben-
efit of his creditors, to one Abraham Allen.
Mr. Champlin, for the plaintiff, contended
that the suit, having been commenced in the
court below before the plaintiff was discharged
as an insolvent, or had assigned his estste un-
der the Act of April, 1811. the assignment
could not affect the plaintiff's right to recover,
notwithstanding the subsequent removal of
the cause into this court ; that the proof of
the assignment by the plaintiff to Childs, and
of the consideration of such assignment, wa»
sufficient. That the assignment made by the
plaintiff on the 8th of January, 1810, in New
Jersey, was not admissible in evidence under
the general issue, without notice thereof ; but
the same ought to have been pleaded ; that
even if it were admissible as legal evidence,
the demand for which this suit was brought
did not pass by that assignment. He cited
Bird v. Caritat, 2 Johns., 842; 1 Chittv'a
Plead.. 14 ; 3 Term. R., 488 ; 2 Wils., 872.
Mr. Henry, contra, contended that the
plaintiff's right of action became vested and
perfect in 1807, when Bruce paid the note
to Johnson, for the excess of Johnson's de-
mand, and immediately became a debt due to
the plaintiff. That the plaintiff having, under
tfce insolvent law of New Jersey, assigned the
debt to Allen, he alone was entitled to sue for
and recover it. That it was true that a chose
in action must be sued for in the name of the
assignee ; that a suit commenced before the
plaintiff's discharge, may be carried on, in his
name, for the benefit of his assignees ; and
that this court will protect the rights of nbona
fide assignee ; but here the assignment to Childs
was in fraud of the first assignment. It was
an attempt on the part of Childs to gain an
238
490
SUPREME COURT, STATE OK NEW YORK.
1814
49O*] undue preference. It was not a *ques-
tion between different classes of creditors, but
whether a particular assignee should hold
against every class of creditors. In the distri-
bution of the estates of insolvents and bank-
rupts, equality is to be observed.
In an action of asmmpsit, everything may
be given in evidence under the general issue,
which shows that the plaintiff is not entitled
to recover, except certain statute bars. (Bul-
ler's N. P., 152, 153 ; 2 Burr., 1010.)
Childs had no right to use the plaintiff's
name. A recovery in this suit could not be
pleaded in bar to another action by Allen,
Brought in the plaintiff's name, any more than
H payment by the defendant to the plaintiff,
after notice of the first assignment, would be
good.
THOMPSON, Ch. J., delivered the opinion of
the court:
The question which arises in this case is,
whether the present action can be carried on in
the name of Peter Raymond ; he, at present,
having no interest in the claim or demand for
which the suit is brought. No objection, upon
the trial, appears to have been made to the
admission in evidence of the discharge of the
plaintiff, under the insolvent law in New Jer-
sey, in the year 1810, and the assignment of
his property to Abraham Allen. If the present
cause of action passed under that assignment,
the suit, when prosecuted in this State, is prop-
erly brought in the name of the insolvent.
The foreign assignee would not be allowed to
prosecute him in his own name (2 Johns., 344),
though the court will recognize and protect
the right of the assignee. Nor can the dis-
charge of the plaintiff under the insolvent law
of this State affect the suit. It is a settled
rule in England, that when an action is com-
menced in the name of the bankrupt, before
his act of bankruptcy, it does not abate ; 'but
the assignee may proceed in the name of the
bankrupt. (1 Ch'itty's Plead., 14; 3 TermR.,
438.) The same reason exists for applying the
rule to cases arising under our insolvent law,
and the suit will be continued for the benefit
of the asssignee.
Admitting Childs to have become equitably
entitled to the benefit of this suit, before ac-
tion commenced, it cannot defeat the action.
There was no such assignment or transfer
made, as to enable him to maintain a suit in
his own name. It is not pretended by the de-
fendant that he has paid or satisfied the de-
mand ; and whoever may be entitled to the
49 1*] avails of the suit, *the action is proper-
ly brought and carried on in the name of the
present plaintiff.
Whether the money is to be recovered for
the benefit of Childs, or the assignee in New
Jersey, or the assignee here, is immaterial to
the defendant. He has no concern with tha"t
question according to the doctrine of this
court in the case of Alsop v. Caines, 10 Johns.,
400. Judgment must, accordingly, be ren-
dered for the plaintiff, upon the verdict as it
stands.
Judgment for t/ie plaintiff.
Cited in— 5 Cow., 733; 4 Wend,. 231 ; 11 Wend., 237;
23 Wend., 65, 90 ; 9 How. Pr., 200.
234
HINES v. BALLARD.
Pleading and Practice — Discharge under Insolv-
ent Act — Notice imist stale Discharge, Commis-
sioner's Name, and Date of Discharge.
In pleading1 a discharge under an Insolvent Ant,
it is sufficient for the defendant to state the dis-
charge, and such circumstances as are necessary to
give the judge or commissioner jurisdiction.
The notice subjoined to the general issue of a dis-
charge under the Insolvent Act of 1811, need not
state the proceedings previous to the discharge,
that the defendant was imprisoned, or impleaded,
and a resident, &c., but those facts, although not
stated in the notice, may be be proved by the pro-
ceedings on file.
It is sufficient if the notice states that the de-
fendant had been discharged, the commissioner's
name, and the date of the discharge.
Citations— 1 Johns., 91 : 7 Johns., 75 ; Insolvent Act,
1811.
THIS was an action on several promissory
notes, for the delivery of gin or whisky,
at certain successive periods. The defendant
pleaded the general issue, and gave notice
therewith that he should give in evidence his
discharge under the Insolvent Act of 1811,
setting it forth verbatim. The cause was tried
at the Oneida Circuit in June, 1814, before Mr.
Justice Van Ness.
It is unnecessary to state the evidence on the
part of the plaintiff. The defendant gave in
evidence his discharge, granted by Nathan
Williams, Esq., Commissioner, in the County
of Oneida, under the Act, and dated March
19th, 1812. To this the plaintiff objected that
it did not appear by the discharge that the de-
fendant was imprisoned or impleaded, or resi-
dent three months within the County of
Oneida (in which his discharge was obtained),
so as to give the commissioner jurisdiction over
the same. The defendant thereupon produced
the original proceedings under the Act, on file
in the clerk's office in Oneida County, a capias
ad respondendum, in an action by the plaintiff
against the defendant, returnable in Septem-
ber, 1181, and returned served — the petition
having been presented on the 28th of Septem-
ber, and the oath required by the Act admin-
istered on the same day ; and the defendant
proved, by parol, that he had been an actual
resident of *the County of Oneida [*492
before he presented his petition, and also that
he made due proof thereof, and of his having
been impleaded, to the commissioner. All
which evidence was objected to, but was ad-
mitted by the judge, subject, however, to the
opinion of the court as to its competency.
The jury found a verdict for the plaintiff,
subject to the opinion of the court on a case
to be made.
Mr. Sill, for the plaintiff. The defendant
having pleaded the general issue, and given
notice of the discharge only, it was not compe-
tent to him to give in evidence other matters,
or the proceedings before the commissioners,
to help out the discharge.
The residence of the defendant in the county
for three months immediately preceding his
discharge and his imprisonment or prosecu-
tion, are material and traversable facts, and
ought to have been pleaded, or notice thereof
given under the general issue ; for had the
plaintiff received notice of their being intended
to be given in evidence, he might have been
JOHNS. REP.. 11.
1814
WATTS v. COKFIN.
492
prepared to disprove them, and to show that
the commissioner had no jurisdiction.
Now, if this evidence is rejected, it does not
appear that the commissioner had anv juris-
diction, which it is essential for the defendant
to show. (Service v. liter inance, 1 Johns., 91 ;
/•V.fry v. Dakin, 7 Johns., 75 ; Morgan v. Dyer,
10 Johns.. 161.)
The commissioner was admitted as a witness,
hut he could not be allowed to give evidence
to -upport his own jurisdiction. Nothing ex-
trinsic to the proceedings is admissible. By
ili. -,>2d section of the Act (sess. 84. ch. 123),
after the final hearing and decision, all the
documents, «fec., relative to the proceedings,
are required to be filed in the office of the
clerk of the court, there to remain of record.
Mr. Slorrs, contra. The Statute says the in-
solvent may plead the general issue, and give
the special matter iu evidence, under a notice,
in which he is requested to state that he has
been discharged under the Act; the recorder
or commissioner who signed the discharge,
and the date thereof. This was intended to
prevent the trouble and expense of setting out
all the proceedings. Independently, however,
of the Statute, the discharge implies everything
requisite.
The rule on the subject is, that it must ap-
pear on the face of the whole proceedings, that
the commissioner or judgt; had jurisdiction ;
4-JKJ*] *not that it should appear in every
paper, or in any particular part of the proceed-
flgn Now. it appears from the petition on
file, that the defendant was resident in the
county, &c., and had been prosecuted. It can-
not be objected here that the commissioner did
not receive sufficient or proper evidence of
those facts. It is enough if they appear on
the face of the proceedings.
If the defendant had pleaded specially that
he was a resident of the County of Oneida for
three mouths immediately preceding his pe-
tition, that he had been prosecuted, that he
presented his petition to the commissioner,
and that such proceedings were thereupon had
that he was discharged, setting forth the dis-
charge, it would have been a good plea. Now
he has shown as much, under the general
issue, in this case.
YATES. J., delivered the opinion of the court:
The question in this cause is, whether, under
tlir notice annexed to the pleas, containing the
• li-rlmrge only, it was competent to prove the
prosecution and residence of the insolvent, by
tin- proceedings on file in the clerk's office in
Oneida County.
The principle is well established, and has
been frequently recognized by this court, that
a discharge under the Insolvent Act might be
pleaded in the same manner as the proceedings
of an inferior court were allowed to be pleaded
and that it was sufficient to state enough to give
i In- magistrate jurisdiction. &c. (Service v.
Ifeermance, 1 Johns., 91 ; Frary v. Dakin; 7
Johns., 75.)
By the Insolvent Act of 1811, two things are
necessary to give the commissioner jurisdic-
tion ; imprisonment or prosecution of the
debtor, and a residence in the county for three
months immediately preceding the time of
presenting his petition. The same Act, to se-
JOHNS. REP.. 11.
cure to the insolvent the benefit of his dis
charge, authorizes him, if sued, prosecuted,
impleaded, arrested or imprisoned, to plead the
general issue, and give the special matter in
evidence upon and under a notice given with
such plea, in which notice he is required to
state that he has been discharged under that
Act, the recorder or commissioner who signed
the discharge, of the city and county in which
said discharge was obtained, and the date
thereof.
The notice annexed to the general issue is in
the nature of a special plea, and although the
same strictness is not required *as in l*-!^)-^
pleading specially, yet, to prevent surprise,
the party cannot be allowed to give evidence
of matter not contained in the notice. That,
however, cannot be alleged in relation to the
evidence now in question. The recognition
of the discharge in this notice was strictly con-
sonant to the directions of the Statute: and the
proceedings of the commissioner, filed in the
clerk's office, under the same Statute, must be
deemed a public record of the facts on which
the discharge was founded. Due notice of
this discharge necessarily involves an inquiry
into those proceedings, sufficient to prevent
surprise to the opposite party ; they are a part
of the discharge itself, and notice of it was
also notice of the official act of the commiss-
ioner upon which it was founded. The pro-
ceedings on file in the office were properly re-
ceived in evidence ; and they go to show that
the insolvent had been prosecuted, and that he
resided in the County of Oneida, for three
months preceding the time of presenting his
petition, by which the jurisdiction of the com-
missioner is fully established ; so that the de-
fendant was entitled to the effect of his dis-
charge, which, of course, is a sufficient and
valid defense in this action. The defendant,
consequently, is entitled to judgment.
Judgment for the defendant.
Cited ln-2 Leg. Obs., 297.
*WATTS f . COFFIN. [*495
Contract* — Corenant — Breach of, does not Excuse
Payment of Rent — Enction Excuses — Grant-
or's Approving no Defense.
A breach of a covenant on the part of the lessor
does not excuse from payment of rent ; but to pro-
dnce a suspension or apportionment of the rent,
there should be an eviction of the, whole, or a part
of the thing: demised. Lund was leased in fee ; the
grantee covenanted to |<ay rent : and the grantor
covenanted that the grantee should have common
of estovers and pasture, out <>f other lands of the
grantor : the grantee approved those lands: whereby
the grantee was prevented from enjoying the com-
mon. In an action by the assignee of the grantor
to recover the runt, it was held that the* covenant
that the imintee should have common, did not OJNT-
ate as a grant, but as a covenant; and that the com-
mon made no part of the premises granted, and on
whii-h rent wa"» reserved: consequently, that the
grantor's approving did not furnish a defense in an
art ion for the rent.
The grantor's remedy. In such case, is by action
on the covenant. If, in any case, the rvnt becomes
Hiis|M>iidcd by the grantor's approving. Qurcre.
THIS was an action of covenant for the non-
payment of rent reserved on a lease, in
fee. of certain lands in the City of Hudson,
from John Van Kensselacr, deceased, to Jacob
SSi
495
SUPREME COURT, STATE OF NEW YORK.
1814
Herder, deceased, dated the 18th of December,
1773. The cause was tried before the late
Chief Justice, at the Columbia Circuit, in
October, 1813.
The grantor had covenanted in the lease, for
himself, his heirs and assigns, with the grantor,
his heirs, executors, administrators and assigns,
to pay as a yearly rent, for the said granted
lands and premises, the yearly tenth part of
all the produce thereof, to the grantor, his
heirs, &c., on the 1st of February, every year,
during the continuance of the grant ; the same
to be delivered to the grantor, &c. ; as also
four fat hens yearly during the continuance of
the grant. The lease also contained a covenant
by the grantor, for himself, his heirs and as-
sfgns, with the grantee, his heirs and assigns,
that the latter should, " during the continu-
ance of the grant, have reasonable estovers out
of the woods of that part of the manor of
Rensselaerwick called Claverack, for build-
ing, fencing and fuel, to be employed to and
for the use of the aforesaid granted laud and
premises, and the reparation thereof, and not
otherwise. And that the grantee, &c. . should,
during the continuance of the grant, have
common of pasture, in that part of the manor
of Rensselaerwick called Claverack, for all
beasts commonable, and not otherwise."
The plaintiff was the assignee, by virtue of
several mesiw conveyances of the original grant-
or ; and the defendant was assignee, by virtue of
sundry mesiie assignments, of about one third
part of the premises contained in the lease, and
had occupied the same for a number of years
previous to the bringing of the suit : and the
rent for the same, for several years, was due
and unpaid The defendant proved that at
the time of bringing the .suit and for a long
time before, and during the life of the original
grantee, all the lands in the patent of Rens-
selaer had been leased out by the landlord, and
that there was no common of estovers or past-
ure in the manor of Rensselaerwick.
496*] *A verdict was taken for the plaint-
iff generally, subject to the opinion of the
court, with liberty to either party to turn the
case into a special verdict ; and in case judg
ment should be given for the plaintiff, the
damages were to be assessed by a jury of
inquiry.
Mr. E. Williams, for the plaintiff. The
only question is, whether the defendant can
avail himself of the covenant of the original
lessor, as to common of estovers and pasture,
in bar of the action for rent. If a stranger
enter on the commons, the lessee may bring
trespass against him. If the lessor enters or
destroys the whole, the whole rent is suspend-
ed ; but if on a part only, the rent is appor-
tioned. Or if all the commons which are ap-
pjurtenant are taken away, the tenant may have
a remedy by abatement'; but if the right of
common is merely abridged, the tenant may
have an action on the case, or an assize. The
common of which a tenant may be deprived
may, in value, bear no proportion to the
amount of the rent ; and the doctrine of a sus-
pension, or an extinguishment of the whole
rent, does not apply to this case. The distinc-
tions on the subject are well understood in
England, and laid down in the books. (6 Bac.
Abr., 49, 6th ed ; M. Woodf all's Tenant's Law,
286
3d ed., 302, 303; 6 Term R., 478, 484, 585;
Willes, 157 ; 1 Bac. Abr., 616 ; Common, C. D ;
1 N. R. L., 80.)
Besides, this is merely a covenant, and not
a grant of any estate or interest out of which
rent can issue.
Mr. Van Beuren, contra. The tenant having
been deprived of his commonage, he may set
it up in defense as a suspension of the rent.
If the court should be of opinion that we have
a different remedy, we shall be satisfied to
take it.
This covenant as to common of estovers and
pasture runs with the land, and binds the as-
signees, though not named. (5 Co., 16 ; Spen-
cer's case, Cro. Car., 137, 503; Co. Litt., 865
a • 2 P. N. B., 181 ; 3 Wils., 25.)
It is laid down in Bacon (6 Bac. Abr., 6th ed..
40, Rent, M, 1), that though there had been a
variety of opinions, whether, if the lessor
leases, or enters wrongfully into part, the entire
rent should be suspended during such lease or
tortious entry, yet. the better opinion was, and so
was the settled law at that day, that the tenant
is discharged from the whole rent, until he is
restored to the whole possession, that no man
may be encourged to injure or disturb his ten-
ant. (Co. Litt., 148 b; Vent., 277.) Though
the landlord may resort to common of pasture
to distrain, yet he cannot distrain common of
estovers. (Co. Litt., 27 a; Ib., 142 a.)
*Common is part of the premises for [*497
which the rent is reserved ; if, therefore, the ten-
ant is deprived of his common, the remedy af-
forded him is a suspension of the rent, until
restored.
In Rex v. Fox, 1 Salk., 169, it is laid down
that common appendant is incident to and part
of the farm, and passes by a grant of the farm.
So in Groyder v. Foakes, 1 Term R., 164, 651,
Grose, J. , says he considered the right of com-
mon as part of the land to which it is appur-
tenant, and, as necessarily implied under the
word "farm," and it was held, in that case,
that by a grant of all tithes arising put of, or
in respect of farms, lands, &c., the tithes aris-
ing out of, or in respect of rights of common
appurtenant to such farms or lands, would
pass.
In The King v. Dersingham, 7 Term R.,
671, it was held that a right of common in
gross was a tenement.
Rent may be reserved and issue out of an
incorporeal hereditament, and it may be re-
served out of tithes, and rent goes with the re-
version, and the assignee of the lessee is bound
to pay it. (1 Ld. Raym., 77 ; Cro. Jac., Ill ;
Cro. Car., 137; 2 Saund., 304, n. 12.)
The tenant pays his rent for the incorporeal
as well as the corporeal hereditaments, and the
deprivation of the one, as well as of the other,
by the act of the landlord, ought equally to sus-
pend the rent. The principle is the same.
It is no answer to say that this is a covenant
for the right of common ; it most clearly
amounts to a grant, and must have all the
operation and effect of a grant.
VAN NESS, J., delivered the opinion of the
court :
Several points have been raised and discussed
in the argument, upon which it is unnecessary
to express any opinion. Whether the covenant
JOHNS. REP., 11.
1814
S MI.I.Y v. SMITH.
497
relating to the common of estovers and pasture
run- with the land, and binds the assignee of
the rent ; whether if the landlord approves, or
incloses a part of the whole of the commons,
the rent thereby becomes suspended ; whether
a rent, strictly speaking, can be reserved upon
a demise of an incorporeal hereditament, are
all questions which it is not requisite to decide
in this case. The right of common, of which
the defendant complains she has been deprived,
forms no part of the premises granted to Har-
der, under whom she claims ; neither is the
rent reserved upon the right of common, but is,
on the contrary, expressly upon "the lands
granted," being the yearly tenth part of all
the produce " thereof."
4J)8*] 'Considering the nature of the rent
reserved by this conveyance, it may well be
questioned whether the covenant, in relation
to the right of commons, had any effect upon
the amount agreed to be paid. In all the books
in which it is said that an eviction by the land-
lord operates either a suspension or apportion-
ment of the rent (according to the nature and
extent of the eviction), it will be found that
the eviction was of a part, or the whole of the
premises demised ; and I take occasion here to
observe that I must not be understood as ad-
mitting that any of the cases refered to by the
defendant's counsel are applicable to this case.
The estate here granted being an estate in fee,
the common of estovers and of pasture, men-
tioned in this covenant, are of that species
which are denominated "appurtenant, "and not
"appendant," between which there are many
essential differences. The former does not arise
from any connection of tenure, and may be
created by grant, or claimed by prescription ;
whereas the latter can only arise from prescrip-
tion. The question then," is, whether the right
of common, in this case, is to be considered
as part of the thing granted by the deed to
Harder, by virtue of which it is claimed, or
a- resting merely in covenant. Although the
proper technical words of a grant are dedi et
concetti, yet it is not to be disputed that other
words, manifesting that a grant was intended
by the parties, will have the same effect, and
this intention is to be collected from a can-nil
consideration of the entire deed.
Whether, according to the fair construction
of the covenant in question, the grantee ac
quired a right of common, after there should
be no more waste and unappropriated land in
the tract called Claverack, in consequence of
the settlement and improvement of the coun-
try, is a point which I do not intend to exam-
ine or decide ; but I think it quite clear, look-
Ing at all the provisions in this conveyance,
that the right of common constitutes no part
of the premises granted by it. The words of
the grant, the Kabendum'the reservation of,
and the covenant to pay the rent, all refer to
the lands described in and granted by the con-
veyance. From this it is evident that when the
parties intended, the one to make, and the other
to receive a grant, they adopted the apt and
technical words to accomplish that purpose,
according to their established and legal signifi-
cation and effect. After these parts of the con-
veyance, comes the stipulation relative to the
41)J>*] right of common, which in its terms *is
not a grant, but strictly a covenant. The words
JOHNS. REP.. 11.
here made use of, unlike those by which the
lands are conveyed, are words of promise and
agreement only, as distinguished from words
of grant. (Juotie* in vcrbis nuUa est ambiffttitas.
tin nvlla expositto contra terba expnssa fitnda
ett. The language of the deed, where a grant
is intended, is, "grant, bargain and sell ; but
when the grantor intends to bind himself by a
covenant only, he uses words clearly evincing
such intention.
If this covenant has been broken, the only
remedy is by an action upon it against such per-
sons as may) in judgment of law, be considered
responsible for the consequences of a non -per-
formance ; but a- long as the tenant continues
in the unmolested enjoyment of land granted,
a violation of the covenant is no defense
against an action for the recovery of the rent.
The cases cited by the counsel for the defend-
ant, in relation to this branch of the case (and
my researches have led me to the examination
of several more), all proceed upon the ground
that an eviction to produce suspension or ap-
portionment of the rent, must be of a part,
or of the whole of the thing demised, and
upon which the rent is reserved ; and as in
this case, the right of common is not to be con-
sidered as part of the grant, according to the
legal import of that term, this defense cannot
be sustained.
Judgment for the plaintiff.
Cited in— I Wend.. 428, 507 : 28 Wend.. 185 ; 7 Hill,
54; 4 Johns. Ch.,292; 19 N. Y., 85; 24 Barb.. 43, IN) ;
32 liarb., 458 ; 46 Barb., 452 ; 14 How Pr., 158 ; 6 Peters.
740.
*SAILLY v. SMITH. [*5OO
Trespass — Will not Lie Against Collector of Cus-
toms for Seizing Goods — Imported Contrary to
Non-intercourse Act — Seizure — Where Made.
In trespass de bonis curpftrtatis, against a collector
of the customs, it is a good justification that the
goods were imported contrary to the Non-inter-
course Act, whereby they became forfeited to the
United States. Or that the defendant, suspecting1
them to have been imported contrary to that Act,
seized them, and that they were condemed in the
District Court.
Whether a collector might, under that Act, have
entered and searched a dwelling house without the
warrant of a magistrate. Qtuere. But he might
take goods standing under a horseshed, at a public
inn, without warrant.
Citation -Act, March 2, 1811.
THIS was an action of trespass, de bonis a»-
portatis. The defendant was collector of
the customs for the District of Champlain,
and the action was brought to recover dam-
ages for the seizure of certain d*y goods speci-
fied in the declaration.
The defendant pleaded :
1. Not guilty.
2. That the defendant, as collector of the
District of Champlain, seized the goods as for-
feited ; that they were, after the 2d of March,
1811, to wit : on the 1st of March, 1812, im-
ported into the United States from Lower
Canada, contrary to the Statute of the United
States, in such case made and provided,
whereby they became forfeited to the United
States, whereupon he seized the same, which
is the same trespass, &c.
8. That the defendant seized the goods (as
287
500
SUPKEME COURT, STATE OP NEW YORK.
1814
in the 2d plea), and detained the same for
trial. ' . . {
4. That the defendant, suspecting that the
said goods had, since the 3d of March, 1811,
been imported into the United States from a
territory of Great Britain, did, on the 26th
of March, 1812, at the District of Champlain,
seize the same for trial ; and that the same
were, on the 3lst of August, 1812, at a special
District Court, held at the City of New York,
by a decree of that court, condemned as for-
feited, which decree still remains unreversed,
&c.
5. That the defendant seized the goods as
forfeited, and secured the same for trial ;
and setting forth the proceedings which were
had in the District Court from the filing of
the libel, to the decree of condemnation.
6. That a libel was tiled in the District Court
against certain goods ; that such proceedings
were thereupon had, that! the same were, on
the 1st of August, 1812, condemned as for-
feited, which decree remains unreversed ; and
that the goods mentioned in the plaintiff's dec-
laration are part of the goods specified in the
libel ; the defendant then stated the seizure on
the 18th of March, 1812, traversing that he
was guilty of the trespass at any other time,
before that day, &c.
5O1*] *7. A similar plea, in answer to an-
other count in the declaration.
8 and 9. Similar pleas, omitting the trav-
erse.
To these pleas the plaintiff replied :
1. As to the 2d plea. That (admitting that
the defendant was collector at the time when,
and that as collector he seized the said goods,
but protesting that the same were not for-
feited or imported from Lower Canada) the
defendant unlawfully seized the said goods
from a certain sleigh of him, the said plaint-
iff, in which the said goods were standing,
under and within a shed, in the night time,
and without a warrant from a justice of the
peace, in pursuance of the statute of the
United States, in such case made and provided.
2. The like replication to the third plea.
3. As to the 4th plea. Admitting that the
defendant was collector, and made the seizure,
and that the said goods were condemned as
forfeited, but protesting, &c., as in the repli-
cation to the 2d plea.
4. 5, 6, 7, and 8. Replications to the 5th, 6th,
7th, 8th and 9th pleas respectively, in which
the plaintiff admitted the proceedings in the
District Court, as stated by the defendant,
but protesting, &c., as in the replication to
the 2d plea.
The defendant rejoined :
1. To the replication to the third plea. That
at the time when the trespass is alleged to
have been committed, one Stephen Thorn
was one of the inspectors of the customs for
the District of Champlain, and that, being
such inspector, he took and carried away the
said goods from a certain sleigh, in which they
were standing under a shed, in the night time,
and without a warrant ; and that on the same
day he carried and delivered the same to the
defendant, who then seized the same and de-
tained them for trial ; traversing that he had
taken the same in manner and form as the
plaintiff alleged in his replication.
238
2. To the replication to the fourth plea.
That the shed under which the said goods
were standing was a common, public horse-
shed, standing by and open to the public
highway, belonging and appertaining to a
certain public inn, or tavern, under which
shed all persons driving, traveling or passing
on or along the said public highway, were in
the practice of putting, and were, by the per-
mission of the owner of the shed and inn, per-
mitted to put their horses, sleighs and teams,
and *to pass and repass into and [*5O2
through the same, at pleasure ; and that the
said goods were in the said sleigh, in open
sight, under the said shed, open to and ad-
joining the said public highway, and that the
plaintiff had stopped under the shed to feed
and rest his horses ; wherefore the defendant
seized and detained the said goods for trial,
and such proceedings were thereupon had, as
in his fourth plea is alleged.
8, 4, 5 and 6. Rejoinders to the replications
to the 6th, 7th, 8th and 9th pleas : putting the
matter of those replications at issue.
To the replication to the 2d and 5th pleas,
the defendant demurred, and the plaintiff
joined in demurrer.
To the rejoinder to the replication to the 4th
plea, the plaintiff demurred and the defendant
joined in demurrer.
To the rejoinder to the replication to the
third plea, the defendant surrejoined, putting
the same at issue.
The demurrers were submitted to the court
without argument.
YATES, J., delivered the opinion of the
court.
The powers delegated by law to the defend-
ant, as Collector of the Customs for the Dis-
trict of Champlain, are sufficient to authorize
the seizure of the goods.
By the 8th section of "the Act to Interdict
the Commercial Intercourse between the Unit-
ed States and Great Britain and France, and
their Dependencies, and for other Purposes,"
"the collector, naval officer, surveyor, and
other officer of the customs, shall have the like
power and authority to seize goods, wares and
merchandises, imported contrary to the intent
and meaning »f that Act ; to keep the same
in custody, until it shall have been ascertained
whether the same have been forfeited or not ;
and to enter any ship or vessel, dwelling-
house, store, building, or other place, for the
purpose of searching for and seizing any such
goods, wares and merchandises, which he or
they may have by law, in relation to goods,
wares and merchandises subject to duty."
This section is continued in force by a sup-
plementary Act passed the second day of
March, 1811.
From the facts disclosed by the pleadings in
this case, it is not necessary to decide whether
the collector, by law, is, at all times, author-
ized to enter and search a dwelling-house,
without *first obtaining a warrant from [*5O3
a magistrate. This would be an extensive and
highly important authority; and if it does ex-
ist, ought to be used with great prudence and
sound discretion, because it is liable to be
abused; yet, public convenience, in many in-
stances, may require that it should be exercised.
JOHNS. REP., 11.
1814
Tin. PEOPLE v. LEONARD.
Canes, however.may occur when the officer may j
act unwarantably, by proceeding without prob-
able cause, to break open a dwelHng home.
Hi- conduct, in such a case, would make him
liable, notwithstanding the law, to remuner-
ate in damages to the owner of the house.
When, therefore, such suspicions exist, it
would be a rnoie correct course for him to ap- 1
ply to a magistrate, whose warrant would ef- 1
fectually protect him, and prevent the neces- j
>ity of showing probable cause, afterwards, !
by other testimony.
In the case before us, no such precaution
was requisite. The goods were taken out of
a sleigh standing under an open shed. The
collector, therefore, had a right by law to
make the seizure, and to retain the ^oods in
lii> custody, until it could be ascertained by
due course of law, whether they were forfeited
or not. Admitting, then, that the facts stated
in the replication to the second plea are true,
and that the seizure was in the manner therein
set forth, the law of the United States author-
ized it, and is a sufficient protection to the de-
fendant in this cause.
The same reasons apply to the replication to
the fifth plea, by which it appears the goods
were condemned by a competent and proper
tribunal, in fact, rendering the justification
pleaded by the defendant still more conclusive.
The rejoinder to the replication to the fourth
plea explains the facts stated in the replica-
tion, which, as before mentioned, is wholly
deficient, and contains no fact by which the
defendant could be implicated; and the plaint-
iff having committed the first fault, in plead-
ing, so that no issue material to the controversy
could be tendered, yet there must be judg-
ment for the defendant on all the demurrers,
Judgment for the defendant.
5O4*] *THE PEOPLE v. LEONARD.
Practice — Forcible Entry and Detainer — Does
not Involve Title — Peaceable Possession is Evi-
dence of Seisin — Defendant cannot set up Title
in Bar. \
On an Indictment for a forcible entry and detain-
• • r, tin- lit |i- to the premises does \\<>i come in ques-
tion, but it is sufficient for the complainant to re-
• -..vcr, if he shows himself to have been in peace-
able possession before the defendants entry.
1'eacvable possession is evidence of seisin, to sup-
port the ulli-vat ion in the indictment, that the coin-
plalnunt was wised.
If the lessor in ejectment show himself to have
tx-,-11 in peaceable possession, and that hu was forci-
bly dispossessed, it will be sufficient to entitle him
to recover, and the defendant cannot set up title
in bar.
Citations— 2 Johns., 96; 8 Johns., 468 ; 10 Johns., 306 ;
Bac. A I .r.. tit. Eject.. E.
'PHIS was an indictment for a forcible entry
L and detainer of a dwelling house, and
other premises, in the town of Hamilton, in
M.idi-i.n County. The indictment alleged the
complainant, Salisbury, to have been seised in
fi-e. on the 19th of March, 1808, and to have
so continued, until the defendant, on the 10th
• •I December, 1811. forcibly entered and ex-
pelled him. The indictment was found before
a justice of the peace of Madison County, and.
on being removed by certiorari into this court,
.I-'IIN-. Hi-. I'.. 11.
was brought to trial at the Madison Circuit,
in June, 1814, before Mr. Justice Platt.
The counsel for the people, in opening the
cause, proposed to confine his proof to the pos-
session only; but the judge ruled that the title
to the premises was in question, and that he
should require the counsel for the people to
give the like evidence of title, as if it were an
action of ejectment.
The plaintiffs proved the nature of the de-
fendant's claim to the premises and then the
defendant gave in evidence an execution
against Salisbury, the complainant, under
which the premises were sold and conveyed
to one Foot, in April, 1811, and by Foot con-
veyed to Pomroy, and by Pomroy to the de-
fendant, in September, 1811. The counsel for
the i>eople then offered to prove a peaceable
possession in the complainant, from 1808, un-
til the defendant's entry; that in pursuance of
an agreement between Foot, the purchaser at
the sheriff's sale, and the complainant, for the
redemption of the land by the latter, Foot con-
veyed the premises to Pomroy, who took as
trustee for the complainant; but that, in viola-
tion of that trust, he conveyed to the defend-
ant, who had notice of the agreement between
the complainant and Foot; all which evidence
the judge overruled, and the jury, by his di-
rection, found a verdict for the defendant.
A motion was made to set aside the verdict,
and for a new trial.
Mr. Sill, for the plaintiff. The object and
policy of the statute to prevent forcible entries
and detainers, is the preservation of the public
peace. It was not intended to confer rights,
or to decide *upon them; but merely [*5Of>
to prevent parties from asserting their rights
or claims by force and violence.
In case of an indictment for a forcible en-
try and detainer, the public offense or force,
is the principal, and restitution of possession
the incidental object. The clause in our stat-
ute is taken from that of 8 Hen. VI., ch. 9.
In Rex\. Faucet, Yelv., 99; Cro. Jac., 149,
which was an indictment on that statute, the
court say that where the King is the party,
"the force, which is the offense against the
Crown, is the principal, and the restitution is
but accessory, and depends upon that, and
that when the King has pardoned the force,
the strength of the indictment is gone."
In an Anonymus case, in 3 Salk., 169, the
distinction is taken between an indictment
and a civil action to recover treble damages
and costs, under the statute 8 Hen. VI., ch. 9.
To the civil action the defendant may plead
not guilty, or any special matter, and traverse
the force ; and the plaintiff, in his replication,
must answer the special matter, and not the
traverse, for there shall be no inquiry of the
force, if the special matter is found for the
defendant. The plaintiff cannot recover un-
less he maintains his writ, and shows that the
defendant expelled and disseised him ; and
therefore, he must have some estate of free-
hold, at least, upon which the defendant could
not lawfully enter. But where there is an in
dictment, though the party has a good right
to enter, yet. if he does enter manit forti, he
will be indicted and restitution awarded, for
his right of entry cannot avail him.
This distinction will explain numerous tlirtu
289
505
SUPREME COURT, STATE OF NEW YORK.
1814
in the books, as that "in an action, if the title
be found for the defendant, he shall be dis-
missed as to the force." (Co. Litt., 257, and
notes; 13 Via. Abr., 385; Fore. En. and Det.,
F, 2; F. N. B.. 249.) So, "if a man, having
title and right of entry, enter and put out the
tenant, he is liable to an indictment and resti-
tution." (18 Vin., 383, E, note; F. N. B., 248.)
So, restitution was awarded, though the com-
plainant's title had expired since conviction.
<1 Str., 474.) Thus Hawkins (1 Hawk. P. C.,
288, sec. 47) says, if a disseissee obtain peace-
able possession and detain by force, he shall
be removed, and thedisseisor be restored; and
this in regard to the peace of the community,
which is the object of the statutes. The law
has been thus careful to prevent any assertion
of private right by force.
The 4th section of our Act (1 N. R. L., 96,
sess. 11, ch. 6) exempts from its operation per-
sons indicted, who or whose ancestors have had
the occupation, or been in quiet possession,
for three years before the finding of the indict-
ment. This affords a strong argument against
5O6*] the ^principle laid down at the trial;
as, under this section, the title alone, without
three years' quiet possession, is no protection.
Indeed, so much has the possession been re-
garded, and so little the title, that it has been
held under this clause, that it is sufficient for
the defendant to show three years' possession,
without showing any title whatever. (IHawk.,
290, sec. 56.)
It may, perhaps, be objected that as the in-
dictment states a seisin, the prosecutor ought
to show a technical seisin. Here the parties
claim under the same title, and the defendant
is estopped to deny the title of the complain
ant. The possession of the complainant was
prima facie evidence of seisin, and that is suf-
ficient. The proof offered was that the com-
plainant had been in possession several years
before the sheriff's sale. And a mere sale un-
der an execution does not operate- as a dis-
seisin.
Again ; here was unquestionably a public of-
fense ; for, at common law, the party was lia-
ble to a fine for the breach of the peace (3
Burr., 1732); the defendant ought, therefore,
to have been convicted for the offense.
Mr. N. Williams, contra. The indictment
is founded on the second and third sections of
the statute. (1 N. R. L., 96, sess. 11, ch. 6.)
Our statute comprehends several of the En-
glish statutes on the subject, passed at different
periods. (5 Rich. II., ch. 8 ; 15 Rich. II., ch.
2; 31 Eliz., ch. 11; 8 Hen. VI., ch. 9 ; 2
Hawk., 30.) The first section contains the
provisions of the statutes of 5 Rich. II., ch. 8,
and 15 Rich. II., ch. 2. It provides merely a
punishment for a forcible entry, and awards
no restitution to the party injured. By the
second section, which is taken from 8 Hen.
VI., ch. 9, a new remedy is provided, and the
justice is to cause the party forcibly put out
of possession, to be reseised of his land, &c.
The fourth and fifth sections, taken from 31
Eliz., ch. 11, gives the plea of three years' pos-
session, &c. ; and the sixth section, like that
of 11 James I., gives the like remedy to ten-
ants for years and guardians, as to such as
have estates of freehold.
The several statutes in England were passed,
240
from time to time, to provide new remedies,
unknown to the common law, as new evils
arose. They were received with a jealous eye,
and construed with great strictness. When
restitution, thereforefis given by the statute
of 8 Hen. VI., ch. 9, the word "reseised" is
used ; and Hawkins (2 Hawk., 33, sec. 15), ob-
serves that it was a great question, whether a
lessee for years, or a copyholder, being ousted,
could have restitution within that statute, be-
cause to be reseised, *he must have [*5O7
been ousted of an estate of which it might be
said he was seised, which must be a freehold
at least. And the statute of 21 James I. was
passed to extend the remedy to tenants for
years, &c.
The indictment being founded on the second
and third sections of our Act, taken from 8
Hen. VI., ch. 9, the court, in their construc-
tion of it, will be governed by the decisions in
the English courts on that statute. There ap-
pears to be some obscurity, if not inconsisten-
cy, in the decisions of the English courts on
the subject ; but if the cases are carefully ex-
amined, in reference to the different statutes
passed on the subject, this obscurity will be
dissipated, though it is not always easy to dis-
cover on which statute the proceedings, in
each case, were founded. Wherever the cases
speak of the punishment of offenders under
these statutes, and that possession alone is suf-
ficient to warrant the proceeding, it will be
found that restitution is not asked or awarded;
but when restitution is the object of the pro-
ceeding, as it always is under the statute of 8
Hen. VI., ch. 9, it will be found that seisin,
or a tenancy for years at least, was necessary
to be stated and proved.
So Hawkins (2 Hawk., 40, sec. 38) lays it
down, that an indictment on 5 or 15 Rich. II.,.
need not show who had the freehold at the
time of the force, though it should show that
the entry was made on the possession of some
person having some estate. " But an indict-
ment on 8 Hen. VI., ch. 9, must show that
the place wherein the force was committed,
was the freehold of the party aggrieved, at
the time of such force." " And according to
the general opinion, an indictment on that
statute cannot warrant an award of restitution,
unless it find that the party was seised at the
time." (7 Mod., 123; 11 Mod., 279: 8 Term
R., 360 ; 3Bac. Abr., 215, 6th ed ; Fore. Ent.
& Det., E.)
The decision of this court, in The People \.
Shaw, 1 Caines, 125, and The People v. King,
2 Caines, 98, sanction the same doctrine.
In the last case the proceedings were
quashed because the indictment did not
allege that the complainant was seised. So in
the case of The People v. Ruckel, 8 Johns. , 464,
it was held necessary that the indictment
should show the seisin of the trustees of the
church. In the case of The People v. Anthony,
4 Johns., 198, Kent, Ch. J., took the same view
of the English statutes, though for a different
purpose. He considered these statutes, passed
at different times, as affording totally distinct
and separate remedies ; that the third section
of our Act, copied from 8 Hen. VI., ch. 9, con-
tained a distinct *and more specific [*5O8
remedy than those of the 5 and 15 Rich. II.,
contained in the first and second sections.
JOHNS. REP., 11.
1814
DORCHESTER v. COVENTRY.
30*
Before the statute of 8 Hen. VI., ch. 9, there
was ample remedy, by way of punishment ;
for besides being indictable at common law
for a breach of the peace, the party might,
under the statutes of 5 and 15 Rich. II., be
punished by the justice, on a view, or by in-
dictment. (3 Burr., 1772; 8 Term R.,857;
10 Johns., 804.)
The stat. of 8 Hen. VI., ch. 9, was passed
for the sole purpose of giving restitution, it
being a more speedy remedy than could be af-
forded by an action of ejectment ; but then
tin- party seeking this remedy must show that
he had 'an estate in fee, or, at least, for a term
of years. It would be useless to require the
complainant to state in the indictment that he
was seised, if it were not necessary to prove a
seisin. And why should restitution be award-
ed, in this speedy manner, to a person who
really has no title?
If a person, having a title in fee or for years,
could be ousted in this way, by one who has
no title, a well-settled principle of the common
law would be infringed. A person having
right may peaceably enter, and no one can call
him to account. If he enters forcibly, though
he may be punished for a breach of the peace,
yet his possession being joined to his right,
only, but the judge ruled that the complain-
ant must prove in himself an estate in fee, or
an estate for years at least ; that the title was
in question, and that the complainant must
give the like evidence of title, as was required
in ejectment. Admitting the complainant
must give the like evidence of title, as was re-
quired in ejectment, he offered to show what
would have entitled him to recover in ejectment.
If the lessor shows himself in the peaceable
possession of land, and that he was forcibly
dispossessed, it will be sufficient to entitle him
to recover possession, and the defendant will
not be permitted to set up title to defeat it.
He must restore the party to bis possession,
wrongfully taken from him, in the first place.
But, I apprehend, there was a mistake in say-
ing the title was in question. In the case of
The People v. King, 2 Johns., 98, on a motion
to quash a conviction, and for restitution,
Kent, Ch.J., says we cannot decide on the
title or rights of the parties. The complain-
ant has nothing to do with that. He must give
up the possession irregularly obtained, put the
defendant in statu quo, and then proceed legally
to the question of title. In the case of The
People \. Rutkel, 8 Johns., 488, Spencer, J.,
says the court cannot, on this indictment, in
that possession cannot be disturbed. There is j quire into the title. Right or title to the pro-
no civil remedy against a person who enters \ perty is no excuse. The statute was made to
forcibly, having right. (7 Term R., 430.) prevent persons from doing themselves right
And the cases which allow liberum tenementum
to be pleaded in trespass, establish this right
of entry at common law (7 Term R., 354; 8
Johns., 403), by one having no title.
The remedy given by the statute, under the
iy£
i, is
third section, is a civil remedy merely, by
which a person unlawfully dispossessed, may
be speedily restored ; but, to entitle himself to
this summary remedy, he must show that he
has a freehold, or term of years. Though, in
the abridgments, it is frequently said, in gen-
eral terms, that this right of entry, since the
statutes, could not be exerted by force, yet the
writers must be understood as meaning only
that the forcible entry might be punished ;
none of them say that restitution must follow,
unless the party claiming it has title.
Mr. Silt, in reply, observed that though the
technical word " seisin" was used in the in-
dictment, yet prima facie evidence of sri-in
ffO9*l *was sufficient : and the complainant
offered to show a deed and a possession of sev-
en years, which was enough in the first in-
stance. A disseisin is the actual turning out
of possession. (6 Johns., 197.)
The Anonymous case in 3 Sulk.. 169, was
under the statute of 8 Hen. VI., ch. 9, and it
was expressly decided that it was not necessary
to show a seisin. The mere One of £5, im-
posed by a justice on a view, is not. an ade-
quate remedy. Restitution alone is a proper
remedy. The policy of the statute is to pre-
vent persons from taking the law into their
own hands, and to compel them to assert their
rights, by action, in a peaceable manner and
not by force.
THOMPSON, Ch. J., delivered the opinion of
the court ?
This was a trial for a forcible entry and de-
tainer. The complainant, on opening his case,
proposed to confine his proof to his possession
JOHNS. RKP., 11. N. Y. R, 5.
by force ; and the court, in *giving its [*5 1O
opinion, seems to assume that possession is
enough for the complainant to show.
Although the indictment alleges that the
complainant was seised, yet this seisin may be
shown by necessary implication, and peaceable
possession is evidence of seisin. (Bac., tit.
Eject., E.) In the matter of Sforfwetf, 10 Johns.,
306, the court say we cannot investigate the
title upon affidavits. The only inquiry is as
to the force, and the regularity and equity of
the proceedings. A new trial must, therefore,
be granted.
New trial granted.
Cited in— 13 Johns., 343 ; 9 Wend., 303; 15 Wend ,
176 ; 4 Sand. Ch., 743; 43 N. Y., 157 : 10 Barb., 458 ; 52
Barb., 210; 60 How. Pr., 441; 1 Daly, 46 ; 14 Mich., 471 ;
61 I ml., 313 ; 38 Mich., 731.
MARIA DORCHESTER
COVENTRY AND HASBROUCK.
Dower — Land Alienated during Coverture —
Measure of Damage* on Recovery of.
In an action of dower out of lands which the bus-
band had alienated during coverture, the demand-
ant can only recover according to the value of the
lands at the time of alienation.
Citations- 2 Johns., 484; 1 X. R. L., 760; 4 Johns.. 1.
was an action of dower, unde nihil,
JL &c. The defendant pleaded,
1. Ne unques »cint .
2. That the demandant's husband conveyed,
in his lifetime, to one Broadhead. and that
Broadhead and the tenants had made valuable
improvements on the premises ; and that the
16 241
510
SUPREME COUHT, STATE OF NEW YOUK.
1814
tenants always have been, and still are, ready
to set off to the demandant one third of the
tenements, according to. their true value at the
time of the death of the demandant's husband.
The cause was tried at the Oneida Circuit,
in June, 1814, before Mr. Justice Van Ness.
The demandant's husband was seised in fee
of the premises, during coverture, and in 1804
conveyed the same to Broadhead, under whom
the tenants claim, and died in 1813.
The value of the land at the time of aliena-
tion, as found by the jury, was $500, and its
value at the time of trial, exclusive of buildings
erected since the alienation, $1,750. And the
question raised for the opinion of the court was,
according to which valuation judgment was to
rendered.
Mr. H.R. Starrs, for the demandant. The
demandant is entitled to recover her dower,
according to the value of the land at the
5 1 1*] *time of the verdict. In Humphreys v.
Phinney, 2 Johns., 484, it did not appear that
the land had risen in value. In that case the
Chief Justice does not state the language of
the Act correctly. The Act (1 N. R. L., 60) does
not say that the widow shall have her dower,
according to the value at the time of aliena-
tion ; but the words are, " according to the
value, exclusive of the improvements made
since the sale." The improvements intended
are those made by the grantee.
If the common law was otherwise, the stat-
ute has so far altered it as to give the widow
the benefit of the rise in the value of land. It
was not intended that the widow should have
the benefit of the labor and money of the
grantee, applied to the improvement of the
land; but the rise in value from other extrinsic
causes, is clearly within the reason of the stat-
ute, as well as the common law. The reason
given by Sir Matthew Hale appears not to be
sound. Suppose the husband, during cover-
ture, aliens land worth $1,000, for $5, is the
widow to have the third of $5 only, because the
grantee can recover only that sum, being the
consideration, in his deed, from the heir or
executor ?
There is no injustice in giving the widow
her third of the increased value of the land ;
the residue has equally risen in value, and it
was the folly of the grantee to take the deed
without a release of dower.
In Gore v. Brazier, Tyng's Mass., 523, 544,
Parsons, Ch. J., admits that the rule, founded
on feudal principles, has been supported in
Massachusetts, from principles of pubilc
policy, not to discourage purchasers from
improving their lands; that the widow shall
not be entitled to the benefit of the im-
provements made by the puchaser ; but he
adds, if the lands have greatly risen in value,
not from any improvements on them, but from
extrinsic causes, as the increase of commerce
and population, it may be a question whether,
on the extendi ad valentiam, the lands to be re-
covered in recompense would not be valued
at the increased price.
Mr. Johnson, contra. 1. As the husband
did not die seised, the widow is not entitled to
damages for the detention ; the demandant not
having replied a request. (6 Com. Dig., 342,
Damages, C ; 2 Johns.. 119.
2. The case of Humphrey v. Phinney, 2
242
Johns.. 484, is perfectly analogous to this case,,
and conclusive, that the widow can recover
only *the value of the land at the time [*512
of the alienation. The whole subject is dis-
cussed, and the principle clearly settled, by
Kent, Ch. J. And for the same reasons, the-
same principle has been Applied in actions to-
recover damages on a breach of the covenant
of warranty. (Pitcher v. Livingston, 4 Johns.,
1; Staats v. Ten Eyck, 3 Caines, 111; see, also,.
4 Dallas, 445.)
THOMPSON, Ch. J., delivered the opinion of
the court :
This case cannot be distinguished from that
of Humphrey v. Phinney, 2 Johns., 484. The
plea there was precisely like the present, to-
which there was a demurrer. What the repli-
cation in the case now before the court was,
does not appear. The principle, however,,
which governed the case of Humphrey v.
Phinney was, that the widow was entitled
only to one third of the premises in value as
at the time of the conveyance thereof by her
husband. The language of the Chief Justice-
is plain and explicit, that the widow is not en-
titled to dower according to the improved
value, and all the cases referred to as analo-
gous, go to establish this point.
The statute (IN. R. L., 60) cannot admit
of any other reasonable interpretation. It de-
clares that the dower of any land sold by the-
husband shall be according to the value of the
land exclusive of improvements made since
the sale. And it cannot be presumed that the-
Legislature intended to make a distinction
between improvements and the increased value
of the land. The same principle applies to-
both. The same reasoning which was adopted
by the court, in Pitcher v. Livingston, 4 Johns. ,
1, against allowing a recovery of damages, in
an action of covenant for the increased value-
of land, may he applied to the present case.
The demandant must, accordingly, have
judgment according to the value of the land at.
the time of the alienation.
Judgment for the demandant.
Disapproved— 3 Mason. 373.
Cited in— 13 Johns., 180 ; 15 Johns., 23 ; 17 Johns...
125 ; 9 Wend., 53 ; 10 Wend., 484 ; 17 Wend., 81 : 4
Barb., 23 ; 53 Barb., 435 ; 36 How. Pr., 343 ; 4 Bradf.,.
18.
*JACKSON, ex dem. STEKNBERG [*513
ET AL.,
V.
SHAFFER.
Ejectment — Judgment Revived — Terre-tenants
Joined when Original Defendant is Dead —
New Security Does not Extinguish Prior Debt
— Bond and Warrant of Attorney — Land
Sold by Sheriff.
Where a judgment is revived by »ci. fa. against
the original defendant, it is not necessary to make
the terre-tenants parties.
It is only necessary to join the terre-tenants
where the original defendant is dead.
A new security of an equal or inferior degree is-
not an extinguishment of a prior debt.
A bond and warrant of attorney, on which judg-
JOHNS. REP.. 11.
1814
JACKSON, EX DEM., v. SHAF-KEK.
513
ment ia entered, are not an extinguishment of a
pri-vious Judgment ujoilnat the saint- defendant.
Where land is sold under a A. fa., and a deed exe-
cuted by the sheriff, the court may, under the cir-
cumstances of the case, presume that it had been
levied upon.
Cltations-Tidd's Pr., 10B1. 1023: 2 Saund.. 7, n.
4 : CYo. Eliz., 718, 727 : 8 Co., 44 : 8 Johns., 54.
THIS was an action of ejectment, brought to
recover a piece of land in lot No. 27, in
tin- patent granted to Abraham Van Home
and others ; and another piece of six acres ail-
joining, in lot No. II, in the same patent, in
the town of Minden. The cause was tried at
the Montgomery Circuit, in September, 1818,
before Mr. Justice Yates.
The plaintiff, at the trial, gave in evidence
a judgment in the Montgomery Court of C. P.,
in favor of John C. Ehle against Peter Borst,
Jr., for $320. 50, docketed February 1st, 1803,
an execution thereon, and a deed from the
>ln-riff, under a sale on the execution, dated
June 23d, 1802, to Isaac Ellwood, for the con-
sideration of $182 ; the premises described as
situated in Minden, bounded, ^.."contain-
ing 50 acres more or less ;" also a deed from
Isaac Ellwood to the defendant, dated June
1st, 1803, for the consideration of $687.50,
which conveyed six acres of land, part of lot-
No. 11, above mentioned, by metes and
bounds, described to be in two pieces, one of
5J acres, and the other of 1} acres, and al.so
the piece of 50 acres, part of lot No. 57, de-
scribed, &c., said to contain 50 acres of land,
more or less. By this deed the grantor cove-
nanted, as to the'six acres, to be in possession
in fee simple, &c., and, as to the parcel of 50
acres, he covenanted for the peaceable and
quiet possession thereof to the defendant for-
ever, he yielding and paying to Abraham Van
Vechten the rent reserved in the lease thereof,
and observing the covenants contained in the
lease thereof given to Jeremiah Van Alstyne
by the said Abraham Van Vechten, &c.
The plaintiff also gave in evidence a judg-
ment in the Supreme Court, in favor of A.
Rush, against the defendant, dated the 15th
of September, 1809. and an execution thereon,
tested the 19th of August, 1809, returnable
the second Monday of November, and a sale
by virtue thereof of the defendant's lauds and
tenements, to Peter Sternberg. one of the les-
sors of the plaintiff, and Jacob Smith, and a
deed to them from the sheriff dated March
:il-t. 1810, of all that farm &c., in lot No. 27,
514*] in Van * Home's patent, and part of
lot No. 11, «fcc., in posession of the defendant,
Ac.; also a deed from Jacob Smith, conveying
to Sternberg an equal moiety of the premises
so conveyed by the sheriff's deed.
The defendant gave in evidence a judgment
of this court, docketed the 30th of October,
1798, in favor of James and Archibald Kane,
against Peter Euders, Johannis Euders, and
Peter Borst, Jr., for $9,000 debt, and $15.84
costs, which was revived by tcire facia* on the
26th of December, 1803. and a writ of fi. fa.
issued to the sheriff of Schoharie, tested the
2Mth of November, 1803, on which was in-
dorsed a direction to the sheriff to levy $93.69
of the property of Peter Borst, Jr., with pound-
age ; and a return of the sheriff was also in-
dorsed, that he had levied $28 of the lands and
tenements of Peter Borst, Jr. , and nulla bona
JOHNS. REP., 11.
as to the residue. A writ of fi. fa. was also
issued on the same judgment, directed to the
sheriff of Montgomery, tested the 6tb of Feb-
ruary, 1804, on which was indorsed a direc-
tion to the sheriff to levy of the property of
Peter Borst, Jr., $58.69," with poundage; to
which the sheriff of Montgomery returned
that he had made of the lands and tenements
of Peter Borst $50, and nulla bona as to the
residue. The defendant also gave in evidence
a deed from the sheriff of Montgomery to
Archibald Kane, dated the 18lhof June, 1*804,
for two pieces of land, one of which, being
100 acres of woodland, sold for $30, and the
other, being a piece of land now or late in
possession of Jacob Shaffer, containing about
50 acres, sold for $20, the last piece of land
being the premises in question.
It further appeared that a judgment was ob-
tained in this court, in an action of ejectment
brought by James and Archibald Kane,
against the casual ejector, by default, and
docketed, the 7th November, 1812. The prem-
ises, described in the demise of the lessors,
were fifty acres of arable land, fifty acres of
wood, «fec., in Minden, &c., and in which ac-
tion, Peter Sternberg and Jacob Smith were
the tenants, and entered into the consent rule.
An hab. fac. po*. on that judgment, dated the
31st October, 1812, was returned by the sher-
iff, that he had caused possession to be deliv-
ered, &c. ; and it was proved that by direction
of the lessors, possession was delivered to the
defendant, of the lot of *about fifty [*515
acres, and the defendant also requested the
possession of the piece of six acres, which was
accordingly delivered, though Sternberg ob-
jected, that the defendant had no right to be
put in possession of the six acres, as the re
covery in the ejectment was onljn for the fifty
acres.
It appeared that the judgment above men-
tioned, in favor of J. and A. Kane against
Peter Euder, Johannis Euder and Peter Borst,
Jr., was for a debt of £1,800; one third part
of which was to be paid by each of the defend-
ants ; that on the 4th of October, 1799, P. and
J. Euder paid their proportions of their judg-
ment, and took the following receipt, signed
by James and Archibald Kane: "Received
of Peter and Johannis Euder, at sundry times,
£1,200, being in full of principal and interest
for their part of a bond and judgment, given
by them and Peter Borst. Jr., the 24th of Oc-
tober, 1798, and we do hereby acknowledge
the discharge thereon for the same Peter and
Johannis Euder, and their heirs, executors
and administrators."
It was proved that Borst had paid $1,400 on
the same judgment, and that afterwards,
about the 29th February, 1802, judgments
were entered on two bonds, with warrants of
attorney, in favor of James and Archibald
Kane against Peter Borst, and which were
given on a settlement of accounts between him
and J. and A. Kane, in which was included
the balance due to them from Borst in the for-
mer bond and judgment against P. and J.
Euder and Borst.
The judge being related to one of the per-
sons incidentally interested in the cause, de-
clined giving any opinion on the evidence, or
points arising in the cause ; and a verdict was
243
515
SUPKEME COUKT, STATE OP NEW YORK.
1814
taken for the plaintiffs, subject to the opinion
of the court on a case as above stated.
Mr. A. Van Vechten, for the plaintiff. He
cited Bac. Abr., Obligation, D; Tidd's Pr.,
1048.
Mr. Cody, contra.
VAN NESS, J. , delivered the opinion of the
court:
The plaintiff having, in the first place,
shown a sufficient title to the six acres, and
fifty acres, described in the case, he is entitled
516*] *to recover both, unless the Kanes,
under whom the defendant now holds, ac-
quired a paramount title, in virtue of the sale
made under their judgment, against the
Euders and Borst ; and this is the only ques-
tion in the cause.
The lot of six acres was never subject to be
sold under that judgment, because it never be-
longed to Borst ; nor is it even included in the
deed from the sheriff to the Kanes, so that the
taking possession of it, under the hob. fac. pos.
was wholly irregular and unjustifiable. The
plaintiff is, therefore, entitled to recover the
six acres.
His right to recover the fifty acres depends
upon the regularity of the proceedings to re-
vive Kane's judgment. The exceptions taken
to these proceedings is, that the terre-tenants,
and the original defendants, ought to have
been made parties ; and that, therefore, as
against the former, they are irregular and
void. This is not well founded. It was not
necessary to make the terre-tenants parties.
If the execution in favor of the Kanes had
been issued within the year and a day, any
lands purchased and possessed by third per-
sons, after the docketing of the judgment,
might have been sold. Here, the plaintiff
having lain by, for more than a year and a
day, after he had obtained judgment, it
became necessary to revive it against the orig-
inal defendants, which, when revived, >was of
the same force and effect, and, of course, lia-
ble to be proceeded upon in the same manner,
as if the time within which an execution
might legally have been issued had not been
suffered to elapse. It is in the case of the
death of the original defendant that the terre-
tenants are to be made parties, and not where
the original defendant is living. (Tidd's Prac.,
1021, 1023; 2 Saund., 7, n. 4.) Admitting,
however, that the defendant could now be al-
lowed to avail himself of any facts in his de-
fense, which the terre-tenants might have plead-
ed in bar, provided they had been made parties
to the sci.fa., it would not alter the result.
It was argued that the bonds and warrants
of attorney taken by the Kanes against Borst,
and upon which judgment was entered in Feb-
ruary, 1802, were to be considered either as a
satisfaction, or an extinguishment of the judg-
ment under which the Kanes sold. That they
517*] were taken and accepted as payment *is
not true in point of fact ; and that they did
not operate as an extinguishment of the prior
judgment is abundantly clear. The bond and
warrants of attorney, and the judgment en-
tered thereon, were not a security of a higher
nature than the former judgment ; and where
a creditor takes a new security, of an equal or
inferior degree, it is not an extinguishment of
the original debt. (Manhood v. Erick, Cro.
Eliz., 718; S. C., entitled Norwood v. Grype,
Id., 727 ; 6 Co. R., 44, Higgins' case ; Philips,
Adm., &c., v. Johnson, 8 Johns., 54.)
Another point was made in behalf of the
defendant, which it is necessary briefly to no-
tice, namely, that the sale under the judgment
in favor of Ehle, which is the foundation of
the plaintiff's title, is void, because it is not
shown there had been a previous levy by the
sheriff. It nowhere appears that there had not
been a levy ; and if it were necessary, the
court, under the circumstances of this case,
would presume it to have been made. The re-
sult is, that the plaintiff is entitled to recover
the six acres, and no more.
Judgment for the plaintiff accordingly.
New security or judgment, of equal or inferior de-
gree no extinguishment of old. Cited in— 5 Wend., 131 ;
9 Wend., 54 ; 7 Paige, 8fi ; 11 Paige, 562 ; 3 Barb., 641 ;
10 Peters, 568 ; 2 Paine. 197 : 1 Blatchf ., 327.
Levy presumed in support of sheriff's sale. Cited in—
19Johns.,347: 16 Wend., 445; 23Wend.,498; 13N. Y.,
516 ; 45 N. Y., 376 ; 2 Hun, 56 ; 21 Hun, 128; 9 Barb.,
277 ; 4 T. & C., 283 ; 68 Mo., 431 : 32 N. J. L., 458.
Also cited in— 5 Cranch C. C., 12 ; 19 Wis., 316.
*WITHERBY D. MANN AND MANN. [*5 1 8
Negotiable Paper — When Extinguishment of Debt
— Surety may Recover from Principal.
Where a negotiable note has been received, ex-
pressly in satisfaction of a judgment, it is an extin-
guishment of the judgment debt.
And where the defendant, who gave such note,
entered into the contract on which the judgment
was recovered, as surety, he may maintain an action
against his principal, although there has been no
satisfaction entered of record, and the note still re-
mains unpaid.
Citations— 8 Johns., 202 ; 3 East. 251 ; 5 Johns., 68 ; 9
Johns., 310.
THIS was an action of assumpsit on a
special agreement to indemnify, and on
the money counts. It was tried at" the Che-
nango Circuit, in June, 1814, before Mr. Jus-
tice Spencer.
The plaintiff had, on the 30th of July, 1812,
joined with the defendants, as their surety, in
a promissory note to H. Vanderlyn for $89.53,
payable in three different installments. The
defendants, on the same day, entered into a
written agreement with the plaintiff to keep
him harmless from all costs, trouble and dam-
ages, by reason of his signing the note.
Judgments were recovered by Vanderlyn on
each of the three installments.
Vanderlyn, who was produced as a witness,
testified that he had received from the plaintiff
$20 on the judgment on the second install-
ment ; and that, upon the judgment on the
last installment, he had received from the
plaintiff his promissory negotiable note for
$52.17, being the amount of that judgment,
NOTE.— Payment by negotiable paper— Rights of
surety. See Whitbeck v. Nan Vess, ante, 409, note ;
Murray v. Governeur, 2 Johns. Cas., 438, note ; Her-
ring v. Sanger, 3 Johns. Cas., 71, note.
A surety, having to pay debt of principal, may re-
cover it from the latter. See Hunt v. Amidon, 4
Hill, 345, note.
JOHNS. REP., 11.
1814
WITHERBY v. MANX.
518
which note remained unpaid, and was received
by him in full satisfaction of the judgment,
and for which he gave a receipt as for so much
money, being the amount of the judgment. It
was also proved that the plaintiff had been put
to some trouble and expense in consequence of
the proceedings against him as surety.
The judge charged the jury that the evi-
dence amounted to proof of a satisfaction of
tin- judgment on the last installment, and that
the plaintiff was entitled to recover the
amount of the same, as well as the $20 which
he had paid, besides damages for his necessary
trouble aud expense. The jurv, accordingly,
found a verdict for the plaintiff for $86.43. It
was agreed that if the opinion of the court
shoula be that the plaintiff was not entitled to
recover the amount of the judgment on the
last installment, judgment of nonsuit should
be entered.
A motion was made to set aside the verdict,
and for a new trial.
519*] *Sfr. Van Ruren, for the defendants,
contended that the giving the promissory note
was not a satisfaction of the judgment ; and if
it were, it was not, under the circumstances of
the case, a payment, so as to give the plaintiff
a right of action against the defendants,
without showing that the judgments were sat-
isfied and discharged of record.
Again, the third count alleges that the plaint-
iff paid the $52 for the defendants. To sup-
port his action on this count, the plaintiff
must show that he actually paid the money.
Giving a note or bond is not such a payment as
will maintain the action. (8 Johns., 202.)
\fr. Vanderlyn, contra, insisted that a nego-
tiable note, like bank paper, when received in
payment, is equivalent to so much money. It
was so decided by Lord Kenyon, in Barclay v.
Qoneh, 2 Esp. N. P. Cases, 571, and which was
recognized by this court in the case of Cam-
ming v. Hacicley, 8 Johns., 202. In Drake v.
Mitchell, 8 East, 251. it was admitted that if it
bad been averred and shown that the note had
been accepted in satisfaction of the debt, it
would have been a sufficient bar.
In Sheehy v. Mandenlle, 6 Cranch. 253, 264,
mil, Ch. J., considered it as a principle
well settled that the note of one of the parties,
or of a third person, may, by agreement, be
received in payment. The same principle is
laid down by this court in Tobey v. Barber, 5
Johns., 68, and in Johnton v. Weed, 9 Johns.,
318.
In the civil law, by a novation or substitu-
tion of a new debt for an old, the old debt is
extinguished by the new one contracted in its
stead ; and though, by the English law, a mere
agreement to substitute one contract in the
l>! ire of another, does not operate as an extin-
guishment, yet if the new contract is executed
or accepted in satisfaction, it operates as an
extinguishment, and mav be pleaded in bar of
the original debt. (Pothier by Evans. 381, 390,
and /i "tm. part 3, ch. 2.)
Hy the civil law, to entitle the surety to
I'rintr hi- action against his principal, for the
debt of the principal discharged by the surety,
it makes no difference whether such payment
lia^ l>een made in money, or by a compensation
or novation. (1 Pothier by Evans. 277, part 2,
ch. 6, sec. 7.)
JOHNS. REP., 11.
This action is brought on the special count
in the declaration, and it is that on which
the plaintiff relies ; not on the money
counts.
There is but one point for the consideration
of the court, that is, whether the note given to
H. Vanderlyn was a payment and satisfaction
of the original debt or not.
*YATES, J., delivered the opinion [*52O
of the court:
The question is, whether the note given for
the payment of $52.17 is such an extinguish-
ment of the debt due on the judgment, for the
last installment, as to authorize this action
either on the special agreement or the money
counts.
The mere giving a bond for the debt of
another is no payment ; and an action for
money paid, laid out and expended for the use
of the person for whose debt the obligation is
given, will not lie. The money must actually
be advanced, to sustain the action. (Cummings
v. Hackley, 8 Johns., 202.) But this principle
has not been extended to all kinds of securi-
ties thus given. There are cases in which
negotiable paper has been held equivalent to
the payment of money, to which it is in some
measure analagous, as when the note has been
negotiated, and is in the hands of an innocent
indorsee. He. of course, would be protected ;
and unless it was considered as a payment of
the original debt, the drawer might be made
to pay twice. So when the note lias been ac-
cepted and paid in satisfaction of the debt.
The note, in this case, has not been negotiated,
but has been accepted and received by the
party in whose favor the judgment was ob-
tained in satisfaction of the debt, which is
sufficient to authorize this recovery. The de-
cisions cited against this, apply only to cases
where the note or bill has not been accepted in
satisfaction for the debt.
In Drake v. Mitchell, 3 East, 251, the dis-
tinction is stated. There one of three joint
covenantors gave a bill of exchange for part
of a debt secured by the covenant, on which
bill judgment was recovered ; the court said
that such judgment was no bar to the action
against the three ; because the bill does not
appear to have been received in satisfaction of
the debt.
In Tobey v. Barber, 5 Johns., 68, this court
decided that a note is not a payment of a pre-
cedent debt, unless there is an express agree-
ment to accept it in payment ; and the same
principle is laid'down in Johnton v. Weed etal.,
9 Johns., 310.
The conclusive evidence in this case, as to
the acceptance of the note by the holder of the
judgment, entitle- the plaintiff to retain this
verdict. It was not necessary that satisfaction
of the 'judgment should be entered to[*5121
consummate his right to recover. The note
having been given and accepted in extinguish-
ment of the debt, is sufficient for the purposes
of this action. The defendant has received the
full benefit ; the debt has l>een satisfied ; and
as to him, it is the same as if so much money
had been paid for him. It was proper evidence
to support the count in the declaration, for so
much money paid, laid out and expended, and
which the plaintiff ought to recover. The
245
521
SUPREME COURT, STATE OF NEW YORK.
1814
verdict must, therefore, stand, and the plaint-
iff is entitled to judgment,
Judgment for tlw plaintiff.
Cited in— 12 Johns., 411 ; 6 Cow., 470 ; 1 Wend., 430;
3 Wend., 83 : 7 Wend., 262; 10 Wend., 501 ; 3 Denio,
414 ; 37 N. Y., 299 : 4 Trans. App., 251 ; 13 Hun, 662 ; 5
Barb., 410; 12 Barb., 470; 3 Sand., 652; Bald., 272 ; 1
Wood. & M., 439.
HYDE, qui tarn, v. MELVIN.
Militia, — Not to be Ordered out within Ten Days
of Election — Orders of Superior Officer no
Defense — Warrant of Corporal — Ignorance of
Law.
Under the 25th section of the Act to Regulate
Elections (seas. 36, ch. 41), no officer can order out
any part of the militia during any election, or ten
days previous thereto, even lor the purpose of en-
rolling- or organizing them, and not to exercise.
A defendant sued under that section cannot jus-
tify that he acted in pursuance of the orders of his
superior officer.
The defendant cannot object that the corporal,
who warned the men to appear, had not received
his warrant, and, therefore, was not legally author-
ized to execute his order.
It is no defense that the defendant was ignorant
of the existence of the Act.
was an action of debt, to recover the
J. penalty given by the 25th section of the
Act Regulating Elections (sess. 36, ch. 41), by
which it is enacted " that no officer, or other
person, shall .call out, or order, any of the
militia of this State to appear or exercise on
any day, during any election to be held by
virtue of this Act, or within ten days previous
thereto, except in cases of invasion or insur-
rection, in pain of forfeiting the sum of $500,"
&c. The cause was tried before Mr. Justice
Platt, at the Cayuga Circuit, in June. 1814.
E. Ward, a witness for the plaintiff, .testified
that several days previous to the 24th of April,
1813, he received from the defendant an ap-
pointment of corporal, and an order, signed by
the defendant, as captain, directing the wit-
ness to warn a number of persons, belonging
to the defendant's company, to meet on the
24th of April, in the town of Wolcott, for
military duty ; that the witness, before that
day, did warn the plaintiff and others, and
that he returned the order to the defendant,
together with the names of those whom he had
summoned. A notice had been given to pro-
duce the order, which the defendant refused,
and here the plaintiff rested the cause.
The defendant then offered to prove that he
522*J made out the order *to call out his com-
pany, for the purpose of enrolling or organiz-
ing them only, in pursuance of an order which
he had received from his colonel ; by which
order the beats of the defendant, and another
captain in the same regiment, were assigned,
and they were directed " to enrol, or cause to
be enrolled, all the men liable to do military
duty in their respective beats, and to have
their respective companies organized, fit for
NOTE.— Officer*— Military— Personal liability of.
Inferior officers, when acting unlawfully, by or-
ders of superiors. See Ruan v. Perry, 3 Cai., 120,
note.
246
duty ; " and, by the same orders, certain per-
sons, among whom was Ward, the plaintiff's
witness, were appointed non-commissioned
officers. The defendant further offered to
prove that he had no intention to call on any
persons to appear, on the day specified in the
order, for any other purpose than to organize
and enrol them, in consequence of the order
from his colonel ; that the persons named as
non-commissioned officers in the defendant's
company had never received warrants ; that
Ward was appointed a corporal only, by the
defendant, and for the sole purpose of calling
out the men to be enrolled and organized ;
that the Act on which the suit was brought
was passed on the 29th of March, 1813 ; that
the defendant had no knowledge of the exist-
ence of that Act, or of any similar law, until
the time of meeting, when a few men having
appeared, as warned, the Act was shown to
the defendant ; on seeing which he immediate-
ly informed the men of it, and told them that
they were at liberty to separate ; and that the
defendant, on the spot, destroyed the order
which he had given to Ward.
This testimony being objected to by the
plaintiff, was overruled by the judge, and a
verdict was taken by consent, for the plaintiff,
for the penalty of $500, subject to the opinion
of the court on the above case.
Mr. S. A. Foot, for the plaintiff. The only
point is, whether the evidence offered by the
defendant was properly rejected. The only
question for the jury to decide was, whether the
defendant had violated the statute, in order-
ing out his company. It was perfectly im-
material what were the views or intentions of
the defendant ; besides, his written orders to
the corporal were to appear for military duty.
It is no excuse for a violation of the express
provision of a law that the defendant acted by
the command of another ; nor can he be al-
lowed to plead ignorance of the law.
*Mr. Sill, contra. Though an act [*523
may be within the letter of a statute, yet if it
does not embrace those circumstances which
it was the object of the Legislature to prevent,
it is not within the statute. (6 Bac. Abr. Stat.,
5, 6, 7.) The intention of the makers of the
statute is more to be regarded than the words.
And this liberal rule of construction is equally
applicable to penal statutes. (Cro. Car., 71 ;
8 Mod., 65.)
The object of the provisions of the militia
law was to prevent the electors from being
overawed or influenced by military force or
power ; or the corruption, by means of mili-
tary authority, of such soldiers as are electors.
In the present case nothing of this kind was
intended or can be supposed. There is not
the slightest evidence of any evil intention on
the part of the defendant. On the contrary,
when informed of the law, he instantly dis-
charged the men who had assembled by his
order. Though the word ''intention " is not
in the statute, yet it is the evident meaning of
its provisions, that the act must be done with
an intention to overawe, influence or corrupt
the electors, or for some illegal purpose. It
would be extremely hard to subject the defend-
ant, under these circumstances, to so heavy a
penalty. Besides, the subaltern officer acted
without any warrant of authority.
JOHNS. REP., 11.
1814
JUDSON v. WAM.
VAK NESS. J., delivered the opinion of the
-court :
Several objections are made to the plaintiff's |
rU'lit of recovery in this case :
First, that the defendant intended to order out ;
his company merely for the purpose of enrolling !
it. The words of the Act are : "That no officer, j
•or other person, shall call out or order any of the
militia of this State to appear or exercise, on
-any day," &c., so that, if it were even compe-
tent to the defendant to set up his private
views or object in calling out his company, in
•opposition to his written directions to Ward,
this case still comes within the Statute. No
officer is permitted to order any of the militia
•even to appear, during any election, or within
ten days previous thereto.
Second: It is objected that the defendant
.acted by command of his colonel. This is no
•excuse, even if the fact were as alleged, for it
would only prove the colonel to be equally cul-
pable. But the order from the colonel does
not afford the defendant the least apology. It
does not direct him to call out or order his
•company to appear or exercise ; and even if,
524*] through "ignorance, the defendant
might so have understood it, il contained no
directions as to time.
Third: It is said that Ward had not re-
vived his warrant as a corporal and was not,
therefore, legally authorized to execute the de-
fendant's order. Whether Ward was a non-
•commissioned officer who had duly received
his warrant is perfectly immaterial. None of
the non-commissioned officers in the defend-
.ant's company had received their warrants,
though they had all been regularly appointed.
Ward was appointed a corporal; and in pursu-
ance of a written order from the defendant,
warned the plaintiff to appear, equipped ac-
•cordiug to law, to perform military duty; and
the defendant cannot be allowed to set up his
not having a regular warrant.
Lastly: it is urged that the defendant was
ignorant of the Statute and that he has, there-
fore, not incurred the penalty imposed for a
violation of what most certainly is a wise aud
salutary provision in the election law. I
notice this objection only because it is made.
Every officer is bound arfd presumed to know
the duties appertaining to his station, and the
penalties to which he is exposed. To show,
however.that this is probably a mere pretense, I
would observe that the Soil/section of the pres-
ent election la w (upon which this suit is brought)
is an exact copy of the 18th section of the for-
mer election law passed in 1801, so that the law
•on this subject had, for thirteen years, been
just as it was when this transgression was com-
mitted. The plaintiff is entitled to judgment.
Judgment for the plaintiff.
525*]
MUDSON P. WASS.
•Contract to Convey — Assumpsit — If Vendor can
not Von fey a Good Title, Vendee may Recoct r
Conndet ation Monty — Deed, Bond and Mort-
gage given tame Day are SimulUinetnu Act*.
Land wan wld at auction to the defendant, who
»ul)8cribed the terms of sale, which wort- that a cer-
tain part of the purchase money should be paid
JOHNS. RKP.. 11.
within seventy-five hours ; that a deed should be
given by the vendor, with warranty of title except
as to the quitrents in such lots as should be desig-
nated ; that the purchaser should execute a bond
and mortgage for the residue of the purchase
money ; and that the deed, bond and mortgage
should bear date on the day of the stilt-. At t In- time
of stile the premises were raort gaged, and the mort-
gage hud buen previously registered. and was still
unsatisfied.
In an action of a**ump*it by the vendor, against
the purchaser, for a breach of the conditions of
sale. It wu- held that giving the deed, bond
and mortgage, were to be simultaneous acts-:
that, as the plaintiff was not in a situation to con-
vey a title, the defendant was not bound to per-
form the agreement on his part ; that the meaning
of the agreement was not merely that the plaintiff
should give a deed with warranty, hut that he was
able to convey an indefeasible title: and that al-
though the mortgage was registered, and the de-
fendant. therefore, had notice of its existence, vet
that circumstance was immaterial ; for according
to the true construction of the terms of sale, the
quitrents were the only incumbrance on the land.
If the vendee has, according to the terms of
sale, paid part of the consideration money, and the
vendor is unable to convey a good title, the vendoe
may disaffirm the contract, and recover back the
money which he has paid.
Cltation-2 Johns.. 613.
was an action of a&ntmpsit, brought to
- recover damages for breach of an agree-
ment for the purchase of land. The agreement
was contained in certain terms, or conditions
of sale at public auction, which had been sub-
scribed by the defendant and subject to which
he had bid for and purchased the land in ques-
tion. The terms of sale were as as follows :
1st. Within seventy-five hours after the sale,
each purchaser to pay one fifth of the purchase
money, or give an approved note payable in
ninety days with interest.
2d. After such payment made, or note given,
Nathaniel Judson (the plaintiff), and his wife,
shall execute and acknowledge a deed with
warranty of title, to the purchasers, except as
to the quitrents on such lots as shall be desig-
nated at the time and place of sale.
3d. The purchaser shall give a mortgage and
bond, to be drawn at their expense, for the re-
mainder of the consideration money, payable
in fo.ur annual installments, with interest on
the whole which said mortgage shall be exe-
cuted by, and acknowledged by the purchaser
and wife, if he has one.
4th. In case of non-compliance by the pur-
chasers with the above conditions, they shall,
at the option of Mr. Judsou. either pay $100,
or in case of resale to pay the deficiency, to-
gether with the expense of the second sale, and
of the conveyance and bonds necessary to
effect the same.
5th. The deeds, notes, bonds and mortgages
to bear date the day of the sale.
The declaration stated that the defendant
purchased at the sale lots Nos. 1, 2 and 27,
for $405, $400 and $510 respectively, of which
lots Nos. 1 and 2 were subject to the annual
quitrent of $1 ; that the said quitrent.s were
designated at the time of sale, and that,
although the plaintiff had been always ready,
&c.. the defendant did not. *within [*52O
seventy-five hours, nor since, pay one fifth of
the purchase money, or execute a bond and
mortgage for the residue.
The defendant pleaded the general issue,
with notice that he would, at the trial, give in
! evidence that the plaintiff, during the time the
247
536
SUPREME COURT, STATE OF NEW YORK.
1814
first installment was to be paid by the defend-
ant, had no clear, valid and operative title to
the lots sold to the defendant, nor had he since
acquired one ; and that the plaintiff did not,
within the time tender a deed, &c.
At the trial, it was proved that no deed had
been tendered to the defendant within seventy-
five hours, and did it not appear that it had at
anv time been tendered to the defendant, al-
though a person, on behalf of the plaintiff, had
called at the defendant's house for that pur-
pese ; but the defendant had, after the lapse of
the seventy -five hours, declared, in conversa-
tion, that had the deed been tendered he would
not have accepted it, because Douw Fonda had
a mortgage on the land. At the time of sale, no
mention was made by the plaintiff of any in-
cumbrance on the land, beside the quitrents.
The mortgage of Fonda, dated prior to the
sale, was produced, which was for $9,000, the
first installment of which was not payable
until January, 1815. This mortgage was reg-
istered in the clerk's office of Albany County,
the dav after it was executed.
[It did not appear from the case when, where
or before whom the cause was tried ; for
which party a verdict, if any, was given, or
whether the cause came before the court on a
case reserved at the trial, or on motion to set
aside the verdict.]
Mr. A. Van Vechten, for the defendant, con-
tended that the contract or covenant, in this
case, was dependent ; and the paying of the
money, giving the note, deed, bond and mort-
gage, were all simultaneous acts. This con-
struction he supported by the cases of Green
v. Reynolds, 2 Johns., 207; West v. Emmons,
5 Johns., 179; Van Benthuyscn v. Crapser, 8
Johns., 257, 260; and Jones v. Gardner, 10
Johns., 266.
The plaintiff, in his declaration, has averred
a tender of the deed. This was a material
averment which he was bound to prove, and
having failed to do so. he has not supported
his declaration. The true construction 'of such
covenants or agreements is, and such is the
one established by the court in the cases which
have been cited, that where a person agrees to
527*1 *convey, he undertakes that he has
authority to convey. The plaintiff undertook
to give a deed with warranty, except as to the
quitrents on a part. Now, the property was,
at the time, incumbered by a mortgage for
$9,000, a sum four times greater than what it
was sold for. The defendant was not bound
to accept a deed for a part.
Mr. A. Towwend, contra, contended that the
covenants were independent. (2 Johns., 272,
287; 6 Term R., 570 ; 1 Saund., 320, n. 4.)
But supposing they were dependent, the money
was to be paid in seventy -five hours, and after
that the deed was to be executed, but no par-
ticular time was mentioned. The defendant
was first to perform his agreement, and there is
no proof of any tender of payment on his part.
Still, if the first step was to be taken by the
plaintiff, he was shown that he did tender
a deed with covenants of warranty, &c.
In Jones v. Gardner, though the court said
the covenants were dependent, yet they decid-
ed in favor of the defendant, because the
plaintiff had not shown a performance of his
covenant.
248
Again; the mortgage was on record, and all
persons were bound to take notice of it. The
defendant cannot, therefore, object a want of
notice of the incumbrance, nor refuse a literal
compliance with the terms of sale.
VAN NESS, J., delivered the opinion of the
court :
There can be no question that the giving of
the note, deed, bond and mortgage were all to-
be simultaneous acts. This is the fair construc-
tion of the conditions of sale, taking them all
together ; and many of the cases that have-
been cited fully support this construction.
Even if it were otherwise, as the plaintiff was
not in a situation to convey a title, according
to the terms of the sale, the defendant was not
bound to carry into effect any of the stipula-
tions on his part. It is now well settled that
where, by the conditions of the sale, the ven-
dee is required to deposit part of the purchase-
money, and the vendor is unable to convey a
good title, pursuant to the articles, the vendee
may disaffirm the contract, and recover back
his deposit. In every sale like the present,
there is a condition that the purchaser shall
not be bound to part with his money, unless-
the seller is able to give him a title according
to the terms of the sale. The reason and policy
upon which this doctrine is *founded [*528
are too well known to need repetition ; and an
inflexible adherence to it affords the only effect-
ual protection against fraud and imposition
upon purchasers at public auction.
By the conditions of sale in this case, the .
plaintiff stipulated to execute a deed with cov-
enant of warranty, subject to the quitrents on
such of the lots as should be designated at the
time of the sale. This means, not merely that
he will execute a deed containing such a cove-
nant, but that he has the power to give a deed
which would carry withitan indefeasible title
to the lots, subject to no other incumbrance
or charge than that specified in the conditions.
((Jlute v. .Robison, 2 Johns., 613.) Such a deed
the plaintiff was not able to give. The prop-
erty, at the time of the sale, and even down
to the time of trial, was under a mortgage to-
Fonda, for a large sum of money. It is said
that this mortgage, betng registered, the plaint-
iff must have purchased with full notice of its
existence. The question is not whether he-
knew of the mortgage, but whether, by the
terms of the sale, he is bound to pay for the
lots with this incumbrance upon them. If it
were possible to entertain a doubt on this
question, it would be removed by the consid-
eration that the conditions specify the quit-
rents as the only incumbrance to which the
property was subject. I say the only incum-
brance, because the very mention of the quit-
rents excludes the idea that there was any
other. In every view of this case it is clearly
against the plaintiff ; and there must be judg-
ment for the defendant.
Judgment for the defendant.
DistinKuisbed— 20 Johns., 19.
Cited in— 12 Johns., 192; 14 Johns., 456; 20 Johns.,
132: 3 Cow., 520; 9 Cow., 51 : 17 Wend., 247,379: 5-
Hill, 115; 4 N. Y., 401 : 9 N. Y., 544: 14 Barb., 422: 15
Barb., 364 ; 1« Barb., 643 ; 21 Barb., 320 ; 23 Barb., 381 ;
31 Barb., 398 ; 62 Barb., 591 ; 7 Rob., 119 ; 7 Daly, -534-
JOHNS. REP., 11.
1814
SCHERMERIIORN V. VAN VOLKENBURGH.
529*] *8CHERMERHORN
VAN VOLKENBURGH.
Trover — Defendant may »how Title in Stranger
— Purchaser under Execution.
Where A. having an execution against I), levies
on In- if'""!* and becomes UDMOU t IK- purchaser at
the stile, though it may tx* questionable whether In-
could himself become a purchaser, yet he has. by
virtiii- of thf levy and possession, such a special
property in the goods that he may maintain trover
for them.
In trover the defendant may show a paramount
title in a stranirer.
IN ERROR, on certiorari from a justice's
court. Van Volkenburgh sued Schermer-
horn before the justice, ana declared against
him in trover, for leather and harness. The
return, which was very obscure, stated sub-
stantially that the grounds of the plaintiff's
claim was that he had an execution against
ono Seabring, and that he levied on and sold
the property in question, and purchased it
himself, ami then left it in possession of Sen-
bring, or his wife, in his absence ; that Sen-
bring delivered it to Mason nnd Parish, on
their indemnifying him. A demand and re-
fusal were also proved. The defendant of-
fered to prove that one Mason, a deputy-sher-
iff, had an execution out of the Supreme Court
against Seabring, and that he levied on the
property before Van Volkenburgh levied, or
liad a right to levy; that the deputy-sheriff
took the property out of Senbring's possession
under thnt execution, and sold it to Parish.
The defendant also offered to produce the ex-
ecution. This testimony was objected to and
excluded, and a judgment given for the plaint-
for $25 and the costs.
Per Ouriam. From the proofs and admis-
sions of the parties, it is necessarily to be in-
ferred that the property in question did once
belong to Senbring, and that the plaintiff be-
low having levied upon it by an execution,
and sold it, althought it may be questionable
whether he could himself become the pur-
chaser, yet the levy and possession taken, gave
liini such a speciaf property in the chattels as
would support the action, had not the defend-
ant offered to show a paramount title in Par-
ish. There is no doubt that a defendant, in
an action of trover, may show a title in a third
person ; and if the testimony offered had been
admitted, it would have shown such a title; for
the execution under which the deputy-sheriff
sold the property to Parish appears to have
been the oldest, nnd the levy first made under
it. This testimony was improperly overruled,
and on this ground, therefore, the judgment
must be reversed.
Judgment reverted.
Cited in— 13 Johns., 284 : 1 Wend., 489: 12 Wend.,
38 ; 18 Wend.. «M. 143 ; 9 N. Y., 174 ; 6 Bos., 161 : 7
K"t'.. 178; 17 Wis., 561.
53O*] *PLATNER t>. BEST.
Mi*Uike in Judgment — Cannot be Corrected by
New Action.
An action cannot be maintained to recover a sum
omitted, by mistake, on the trial of another cause,
JOHNS. REP., 11.
in which a judgment was given for the plaintiff,
but not for the amount due to him.
IN ERROR, on certiorari from a justice's
court. Best brought an action on the case
against Plainer, and declared against him, in
substance, that he, B.. had sued P. on a form-
er suit, and that one of the items of his de-
mand, amounting to $ 7, was confessed by the
defendant, and the other disputed ; and that
the justice, by mistake in giving his judgment,
omitted to allow the $7. The suit below was
to recover that item, but what it was is not
stated in the return. The defendant pleaded
the general issue and a set-off. Upon the trial,
the plaintiff proved his declaration by the jus-
tice who tried the former cause. The defend-
ant did not prove any set-off, but objected to
the plaintiff's recovery, on the ground of the
former trial. The objection was overruled,
and a verdict was found for the plaintiff be-
low, on which the justice gave judgment.
Per Curiam. The substantial justice of this
case would appear to be with the judgment.
But it cannot be supported, without a viola-
tion of a settled rule of law. This cause of ac-
tion has once been tried, and it would be a
dangerous principle to allow a judgment to be
opened and the cause of action again tried, by
another justice, on the ground of a mistake in
the former trial. If such mistake was made,
it cannot be corrected in this way. The judg-
ment must, accordingly, be revei>rd.
Judgment reversed.
Cited in-3 Denio.381 ; 6 Barb., 32; 31 Barb., 384.
*S. DRAKE [*531
v.
E. DRAKE, an Infant, by G. DUBOIS, his
Guardian or next Friend.
1. Certiorari to Justice — Mistake in — Waiver of
2. Evidence — Payment under Non Assumpsit
— Set-off.
Where a justice returned that there was no such
cause before him as the one entitled in the certiora-
ri, but went on to state the proceedings in a cause
before him according to its true title, and on this
return there was an assignment of errors and join-
der ; it was held to be too late to object to the cause
iH'ing entitled wrong in the <•< rtiorari. Under the
issue of mm OMUmtxitt, payment may be riven in
evidence ; but if it is intended as matter of set-off,
it must be pleaded, or notice thereof given with the
plea of the general issue.
IN ERROR, on cerfiorari from a justice's,
court. The eerlwmri. in tins case, stated
the title of the cause to be Shadrack Drake
ads. Gidfon Dtibow. without naming him as
guardian. The Justin- returned Mint there wa&
no such cause before him as that mentioned in
the certitn-ari ; but he returned the proceeding*
in a cause entitled as above ; and by which
it appeared that C. Drake sued S. Drake, for
the use and occupation of the infant's land.
On the return of the summons, the defendant
s called upon to disclose his defense, if he
had any special matter. He declined to do so;
ami the return docs not state that he pleaded
at all ; but it would seem that the justice and
the parties considered the cause as at issue,
upon the plea of nonaaumjMtit. Upon the trial,
24 !>
531
SUPREME COURT, STATE OP NEW YORK.
1814
the plaintiff proved his demand substantially ;
the defendant then offered to prove payment ;
this was objected to and overruled.
A verdict was found for the plaintiff for
$25 dollars, on which the justice gave judg-
ment.
Per Curiam. The justice having made re-
turn of the cause that was in fact tried before
him, and error having been assigned, and
issue joined thereon, no objection can now
be made to the cause being entitled wrong in
the certiorari. The evidence of payment offered
by the defendant ought to have been re-
ceived. It was an action of assumpsit, and a
direct payment of the demand was admissible
under the general issue. Had the payment set
up been by matter of set-off, it should have
Iteen pleaded, or notice thereof given at the
time of joining issue. But if the defense set
up was admissible under the general issue, the
defendant was not bound to disclose it until
the trial. The judgment must be reversed.
Judgment reversed.
532*] *COUGHNET ET AL.
EASTENBROOK.
Certiorari — Imperfect Returns.
If a return to a certoirnri state that the cause was
tried bef ore a jury, and that the jury retired to con-
sider of their verdict, without stating also that a
constable was sworn to attend them, the omission
will be fatal, for it cannot be supplied by intend-
ment.
Citations-2 Cai., 373 ; 1 N. B. L., 397.
IN ERROR, on certiorari from a justice's
court. Eastenbrook sued Coughnet and
others, before the justice, and declared upon a
note or agreement to pay him a certain sum per
month, for his services as a soldier, &c. One
of the defendants (Coughnet) only was taken.
The return was very short, and stated that the
•cause was tried by jury : that it was submitted
to them, and after having . retired, the jury
returned with a verdict in favor of the plaintiff,
for $14 and costs, upon which a judgment was
•entered. Nothing was mentioned of any con-
stable attending the jury, nor anything from
which it could be inferred that such was the
fact. Several other objections were also made.
Per Curiam. The return is very imperfect,
and injustice may, perhaps, be done for want
of a more perfect statement of the proceedings
below. The case of Van Doren v. Wilcox, 2
Caines, 373, is in point, to show that if
it appear from the return that the jury retired,
and nothing is said .about a constable's being
sworn to attend them, it is a fatal omission, not
to be supplied by intendment. This objection
cannot be surmounted ; it grows out of the
positive direction of the statute, that a con-
stable shall be sworn to attend the jury. This
is not an omission or misrecital of an oath
merely, so as to bring the case within the pro-
viso to the 17th section of the Act. (1 N. R.
L., 397.
Judgment reversed.
Cited in— 7 Wend., 427 ; 14 Barb., 382.
250
*DELAMATER v. RIDER. [*533
Contracts — Money Had and Received — Consid-
eration.
A, being indebted to B, on a judgment, delivered
to him a horse, as security. B afterwards took out
execution on the judgment, and sold the horse at
auction, and became the purchaser at the sale for
$8, and he promised to allow A or pay him whatever
the horse should sell for, over and above the $8 : and
he afterwards sold the horse for $25. It was held
that A was entitled to recover of B $17, in an notion
of assumpsit, the judgment having been satisfied;
that there was a sutficient consideration for the
promise of B, the sale of the horse on the execution
being a violation of his trust ; but that, at any rate,
the promise was a waiver of all right under that
sale; and the horse must be deemed to have remained
on the terms of the original agreement ; itnd that A,
by bringing his action to recover the $17, ratified
the subsequent sale.
IN ERROR on certiorari from a justice's
court. Rider brought an action of assump-
sit, for money had and received to his use,
against Delamater, who pleaded iionassumpsit.
At the trial the plaintiff proved, that being
indebted to the defendant on a certain judg-
ment, and also on a book account, he delivered
to the defendant, as security for the same, a
certain horse ; that afterwards the defendant
took out an execution upon the judgment, and
sold the horse at auction, and purchased him
in himself, for $8 ; that he afterwards promised
to allow the plaintiff, or pay him whatever he,
the defendant, sold the horse for more than
the $8 ; that the defendant below proceeded
to collect of the plaintiff the residue of his
judgment. It was proved that the defendant
had sold the horse for $25. The justice gave
judgment for the plaintiff for $17 and the costs.
Per Curiam. The judgment in the court
below is clearly according to the justice of the
case, and no rule of law appears to have been
violated. The want of consideration to sup-
port the promise of the defendant below is the
only possible ground of objection, and this is
not well founded. The defendant received
and held the horse as security only ; and the
sale and purchase under the execution might
very well be considered as a violation of his
trust. But at all events his subsequent prom-
ise must be deemed a waiver of his claim to any
right by virtue of that sale, and the horse
deemed to be held as security according to the
original terms upon which he was delivered to
the defendant ; and the subsequent conduct of
the defendant in selling him was ratified by
the claim of the money received on such sale ;
and the defendant having only credited the
plaintiff $8 on the sale of the horse, $17, the resi-
due of the $25, for which he sold, was money
received to the plaintiff's use. The judgment,
therefore, must be affirmed.
Judgment affirmed.
*RUNYAN v. MERSEREAU, JR. [*534
1. Mortgage — Tit a Security — Mortgagee has
Chattel Interest — Freehold Remains in Mort-
gagor. 2. Mortgagor, Purchaser, or Assignee
of Equity of Redemption may Maintain Tres-
pass against Mortgagee. 3. Assignment.
4. Pleading.
At law as in equity, a mortgage is merely a secur-
ity, and the mortgagee has but a chattel interest.
JOHNS. REP., 11.
1814
Hr.sYAN v. MKKSKKKU .
534
The freehold Is In the mortgagor.
And the mortgagor, or the purchaser, or assignee
<>t the equity of redemption, may maintain trespass
HK-iUrnt the mortgagee, or a person acting under
his license.
A mortgage may be assigned, by mere delivery.
without writing.
In an action of trespass, by a mortgagor against
a mortgagee, if the defendant plead W*rum
tenementum, the plaintiff may reply that the free-
bold is In himself.
Citations— Doug., 610 ; 3 Johns. Gas.. 329 ; 1 Johns.,
590 : 4 Johns.. 48.
was an action of trespass, qunre clau-
L gum fregit, to which the defendant, be-
sides the general issue, pleaded specially:
1. Freehold in the assignees of Joshua Mer-
sereau, under the Insolvent Act of 1811, and
license from them to cut timber.
2. Freehold in himself.
8. Freehold in Joshua Mersereau, and license
from him to cut timber.
To each of these pleas the plaintiff replied
that the freehold was in himself, traversing
that it was in the assignees, «&c., and issues
were taken thereon.
The plaintiff, at the trial, produced in evi-
dence a deed from Joshua Mersereau to one
Leonard, for the premises in question, dated
July 15th, 1809 ; a judgment, in favor of J. j
• •reau against Leonard, docketed inth !
January, 1810 ; &fi. fa. issued thereon, and a j
• leeii from the sheriff of Chenango, of the j
premises in question (whereby Leonard's equity
of redemption was sold), to the plaintiff, dated
4th September, 1810, under which the plaintiff
took posession. The plaintiff proved that the
defendant had cut trees on the premises.
The defendant then produced in evidence
an exemplification of a mortgage, from Leonard
to J. Mersereau, dated the same day as the
deed from J. Mersereau to Leonard, for $386,
payable according to the condition of a bond,
viz.: $80 in hand, $50 on the 1st May then
next, and the residue in annual installments of
$50 each, with interest, annually. The re-
covery, by the judgment given in evidence by
the plaintiff, was for the first installment of
$50. payable May 1st, 1810, and the annual
interest on $800.
It was next proved, on the part of the plaint-
iff. that J. Mersereau delivered over to the
plaintiff, in August or September, 1809, to
secure certain debts due from the said Merse-
reau to different persons, the bond and mort-
gage. and that the plaintiff was to have the
absolute control of them until the debts were
paid, but that there was no written assignment
It did not appear that the debts were paid.
The plaintiff produced the mortgage and
53ft*] *bond, which had been in his posses-
won ever since their delivery.
The plaintiff produced the proceedings and
discharge of J. Mersereau, under the Insolvent
\ct. in June 4th, 1812. By his inventory.
which was given in evidence, it appeared that
there was due from Leonard about $350 on
the bond and mortgage ; and that it was the
plaintiff who put the bond in suit, as above
mentioned, and bought in the premises him-
•alt
The jury found a verdict for the plaintiff
for $10, subject to the opinion of the court on
a cave, as above stated.
Mr. ff. Bleccker, for the plaintiff. 1. In
JOHNS. Hi-. iv. 11.
equity, in regard to mortgages, the real intent
of the parties, without regard to the form of
the transaction, is regarded ; and of late years,
courts of law have followed the court of equi-
ty, in this respect, and look at the essence and
substance of the contract. The interest of a
mortgagee it regarded as a mere chattel, which
goes to his executors, and it cannot be taken
in execution. But the interest of the mort-
gagor has all the qualities of real estate, or an
estate in fee. It may be conveyed or devised ;
it will pass to the heirs at law ; it may be sold
on an execution against his lands ; it goes to
pay debts. A mortgage is a mere pledge or
security for the payment of the debt. Ought,
then, the mortgagee to be allowed to enter and
commit waste with impunity ? If he may, he
may destroy the houses, timber, &c.. anil the
mortgagor will be without any remedy at law.
It is laid down that though a mortgagee in.
fee, in posession has a right, at law, to commit
waste, because he is considered the absolute
owner of the inheritance, yet equity will re-
strain him, and decree an account to be taken
of the trees cut down, and apply the amount,
first towards the interest, and then in sinking
the principal of the debt. (Cruise's Dig.,
Mortg., ch. 2, sec. 27 ; 2 Vern., 392 ; 3 Atk.,
723; Cro. Jac., 172.) Hence, it may be in-
ferred, that a mortgagee out of possession can-
not commit waste.
A mortgagee cannot enter, as Lord Mans-
field expresses it in Eaton v. Jaque*, Doug.,
460, via fatli, but must resort to an ac-
tion of ejectment. That was a case after
a legal forfeiture and foreclosure. Until
after a foreclosure, the mortgagee has only
a 'chattel (Powell on Mortg , 246); and in
the case of The King v. St. MMiaeFf,
Doug., 630, 632, Lord Mansfield said it
was an affront to common sense to say
that the mortgagor was not the real owner.
A mortgagee has no right to the possession
until he brings ejectment. The right of posses-
sion cannot be *in both mortgagor and [*5JJO
mortgagee ; and if the mortgagor has the right
of possession, however small, he may main-
tain trespass. A mortgagor, who continues in
possession, must be presumed to hold with the
consent of the mortgagee, and is considered
as bis lessee ; and a lessee may maintain tres-
pass against his lessor. (1 In.st., 46; 3
Woodes., 251.)
2. Again, the bond and mortgage were de-
livered by the mortgagee to the plaintiff as a
pledge, and something more, as a security for
certain debts . and those debts not having been
paid, all the rights of the mortgagee arc gone.
What security has a creditor who takes such
a pledge, if he cannot protect it against the
mortgagee ? The law protects a pledge in the
hands of a pawnee. But this was more than
a mere pledge ; the bond and mortgage were
put under the absolute control of the plaint-
iff, until the debts were paid. He had authority
to collect the money on the bond and mortgage,
ard to pay the debts. He had the absolute power
over the Jx>nd and mortgage, and might sue for
and recover the money. The equity of redemp-
tion being sold under the judgment, the plaintiff
became the purchaser, and has the title.
That the assignment of the bond and mort-
gage was not in writing is no objection, for
Ml
536
SUPREME COURT, STATE OP NEW YORK.
1814
it may be by parol. A mere delivery is a
sufficient assignment. (3 Johns. Cas., 328; 1
Johns., 580; Rob. on Frauds, 275, 276, 282,
283.) The rule at law and in equity is the
same. Courts of law take notice of the nature
of the transaction. The bond is the principal,
and the mortgage is the incident, and when
the debt is paid, there is an end of the mort-
gage. (2 Burr., 978; Runa. on Eject., 343.)
Mr. Vander Lyn, contra. The freehold of
Leonard was conveyed to Mersereau, the
mortgagee, under whom the defendant
showed a license to enter and cut timber. The
question is, whether the freehold is now in
the mortgagee, or in a purchaser, under a judg-
ment on the bond of the mortgagor. As be-
tween the mortgagor and mortgagee, the free-
hold must be considered to be in the latter.
In Jackson, ex. dem. Ireland, v. Hull, 10
Johns., 481, this court held, that where the
mortgaged premises had been sold under a
judgment obtained on the bond, that the mort-
gagee might, notwithstanding, recover the pos-
session, in an action of ejectment — the sale
under the judgment being only of the equity
of redemption.
The notion that mortgages are not within
the Statute of Frauds, is derived altogether
537*] from a court of equity ; and that *the
assignment of the debt transfers the interest in
land, grows out of the peculiar doctrine of the
court of equity, which considers it as a trust
by operation of law, and, therefore, within
the express exception of the statute. (Rob.
on Frauds, 271, 278.) On the same principle,
all equitable liens and deposits, which create
implied trusts, are held not to be within the
statute.
But at law a mortgage is a conditional sale
of lands ; and, since the Statute of Frauds, no
interest in lands, for more than three years,
can be transferred, without a formal convey-
ance in writing. In Johnson v. Hart, 3 Johns.
Cas., 326, Radcliff J., though he admits the
doctrine of the court of equity, that the debt is
the principal, and the mortgage the incident,
and that a transfer of the note or bond would
draw after it the mortgage, yet he regards this
as an equitable right only ; and that the trans-
fer of the note or bond could not convey the
legal estate existing in the mortgagee ; that,
until there was a formal conveyance or assign-
ment of the mortgage, the fee remained in the
mortgagee ; and that a contrary doctrine
would confound all distinction between legal
and equitable estates.
Mr. H. Bleecker, in reply, said that the rule
that the debt was the principal and the mort-
gage the incident, and that the transfer of
the debt drew after it the mortgage, was as
well established in courts of law as in equity.
In Jackson, ex dem. Norton, v. Wittard, 4
Johns., 41, the court held that lands mort-
gaged could not be sold on an execution
against the mortgagee, though the debt be due,
and the estate of the mortgagee has become
absolute. Kent, Ch. J., in delivering the
opinion of the court, says that the real nature
of a mortgage, in the equity sense of it, has
been repeatedly recognized in the courts of
law since the time of Lord Hardwicke. That
"until forclosure, or, at least, until possession
taken, the mortgage remains in the light of a
252
chose in action. It is but an incident attached
to the debt; and in reason and propriety, it
cannot and ought not to be detached from its
principal. The mortgage interest, as distinct
from the debt, is not the fit subject of assign-
ment ; it has no determinate value. If as-
signed, the assignee must hold the interest at
the will and disposal of the creditor who holds
the bond." Nothing can be more full, clear
and explicit than the doctrine laid down in
this case, and it leaves no room for doubt on
the subject. The court, to be consistent,
*must say that the mortgagee, until he [*53H
gets possession of the land, or until foreclosure,
has no interest in the premises, except as a se-
curity for the debt.
Per Curiam. This was an action of trespass
quare clausum fregit. The plaintiff proved
himself in possession of the locus in quo, and
showed a title derived under a judgment
against one James Leonard, who, it appeared,
had mortgaged the land to Joshua Mersereau.
By the pleadings, the question presented to
the court is, whether the freehold was in the
plaintiff, who had purchased the equity of re-
demption,under the judgment against the mort-
gagor, or in Joshua Mersereau.lhe mortgagee.
Courts of law, both here and in England,
have gone very far towards, if not the full
length of considering mortgages, at law, as
in equity, mere securities for money ; and the
mortgagee as having only a chattel interest.
Lord Mansfield (Doug., 610) says a mortgagee,
notwithstanding the form, has but a chattel,
and the mortgage is only a security ; that it
is an affront to common .sense to say the mort-
gagor is not the real owner. Mortgages are
not considered as conveyances of land within
the Statute of Frauds; and the forgiving the
debt, with the delivery of the security, is
holden to be an extinguishment of the mort-
gage. Mortgages will pass by a will not made
with the solemnities of the Statute of Frauds.
The assignment of the debt, or forgiving it,
even by parol, draws the land after it, as a
consequence. The debt is considered the
principal, and the land as an incident only.
The interest of the mortgagee cannot be
sold under execution. It is unnecessary to go
into an examination of the cases on this sub-
ject ; they have been repeatedly reviewed by
this court. (3 Johns. Cas., 329, 1 Johns., 590
4 Johns., 42.) The light in which mortgages ;
have been considered, in order to be consistent,
necessarily leads to the conclusion that the
freehold must be considered in the plaintiff,
and he, of course, is entitled to judgment.
Judgment for the plaintiff.
The freehold is in the mortgagor. Explained— 13
Peters, 299.
Cited in— 16 Johns., 256; 19 Johns., 326 ; 2 Cow.,
231; 6 Cow., 149 ; 7 Cow., 78; 1 Wend., 437; 5 Wend.,
285, 615; 14 Wend., 06 : 21 Wend., 485; 2<5 Wend., 559 ;
3 Denio. 219; 2 Barb. Ch., 135; 10 N. Y., 547; 17 N.Y.,
295; 21 N. Y., 364; 23 N. Y., 531; 28 N. Y., 234 ; 40 N.
Y., 485 ; 53 N. Y., 227; 54 N. Y., 604 ; 25 Hun, 421: 3
Barb., 312; 6 Barb., 76; 9 Barb.. 286; 12 Barb., 540; 42
How. Pr.. 37: 11 Abb. N. S., 152; 2 Bos., 529; 9 Bos..
330 ; 3 Rob., 200: 23 Super., 77, 95: 3 Mason, 531; 13
Mich., 894; 44Wis.,514.
Mortgage may be assigned hy parnl. Cited in— 16
Johns., 54 ; 19 Johns., 96; 1 Denio, 522 ; 4 N. Y., 409,
507 ; 63 N. Y., 276 ; 14 Hun, 325 ; 10 Bos.. 365 ; 2 E. D.
Smith, 309; 21 Ohio St., 581 ; 129 Mass., 430.
JOHNS. REP., 11.
1814
JACKSON, EX DEM., v. CAKPENTER.
539
539*1 MACKSON, ex dem., WALLACE
KT A I...
9.
CARPENTER
THE SAME ex - dem. THE 8AME,
e.
WEAVER
Infancy — Deed given by Infant may be Avoided
without Entry, in COM of Uncultivated Land*.
An entry ia not, in all cases, requisite by a
trruntor, to avoid a deed executed by him during
hi- infancy.
When* an infant, in 1784. conveyed lands in the
military tract, and afterwards, in 1791, having ar-
rived to full age, conveyed the same lands to
another person, and such conveyance was regis-
I-T.-.I. it was held that the lands being waste and
uncultivated, he was not concluded by the lapse of
tinif, nnd that an entry was not necessary to avoid
the former deed, which (not being a feoffment)
might be avoided by a deed of the same nature and
equal notoriety.
Citations— Bac. Abr., Infancy, 136; 3 Bac. Abr.,
145, n. 8 ; Str., 94.
TUIESE were actions of ejectment, tried at
J- the last Cavuga Circuit, brought for the
recovery of lot No. 2, in the township of Dry-
den, in the military tract. Verdicts were
taken*for the plaintiff, by consent, subject to
the opinion of the court on the following
case : One William Adams, a soldier in the
Fir<t New York Regiment, in the Revolution-
ary War, was entitled to, and drew the lot in
question. On the 23d of February, 1784, he
conveyed the said lot to George Bartholomew
and John Fisher, in fee, by an assignment on
the back of his discharge, which was filed on
the 1st of September. 1794, and duly recorded.
Adams, at the time of executing the convey-
ance, was an infant, being the age of 19. On
the 24th of August, 1796, Adams conveyed
the premises to the lessors of the plaintiff, be-
iu^ then aged 81, by deed of bargain and sale,
which was registered in the clerk's office of
Cayuga County, on the 17th of September,
1796. The defendants were in possession of
the premises at the commencement of these
actions, and claimed under the assignment to
Bartholomew and Fisher.
Mr. Lush, for the plaintiff. If the ancient
mode of conveyances by livery of seisin was
Mill in use, perhaps a re-entry might be neces-
sary to avoid a previous conveyance made
during infancy. But since the Statue of Uses,
a deed of bargain and sale is tantamount to a
livery of seisin, and a subsequent deed must
be considered as equivalent to a re-entry, if it
were necessary. But we contend, that even
at common law, a re-entrv was not necessary
in any case, except to avoid a fine. This was
»o held by Lord Mansfield, in Goodrightv.
Color, Doug., 277. 285; [Mtle v. Heaten, Lord
Kaym . 7r>0; 1 Sulk.. 259; 8. C., 8 Burr., 1897,
who said he had looked into all the cases for
200 years back, and that it was so settled by
all the judges, upon deliberation, in 1703, and
.such had been the the practice ever since.
Though a feoffment by an infant is voidable,
yet grants, release, surrenders, &c., are void
o-tO*] ab initio, of which all persons *may
take advantage (Thompson v. Leach, Carth.,
486 ; 8 Mod., 801 ; 8 Co., 42 b), and if an in-
JOHN8. REP., 11.
fant, seised in fee, make a feoffment and die,
his heir may enter. (8 Co., 42 b.)
This precise question wan raised and argued
in theca.se ofJafluon, ex dem. Dunbar, v. Todd,
4 Johns., 2o7. but the court did not think it
necessary to decide it then.
But admitting even that, by the law of En-
gland, the entry of the infant is necessary to
avoid his deed, would this court apply that
rule to the wild and unsettled lands in this
State ? How was the patentee in this case to
find the lot ? It had not been surveyed. Even
the Surveyor-General could not find it. In
SaltoMtaM v. White, 1 Johns. Cas., 221. the
court said the rules as to the proceedings in
cases of vacant possession, in England, were
not to be applied to the wild lands of this
county.
Mr. A. Van Vechten, contra. The instru-
ment under which the lessor claims was void-
able merely. The acts of an infant, which do
not touch his interest, and which he is bound
by law, or compellable to perform, are binding;
but acts which concern his interest are void-
able. (Zouch v. Parson*, 8 Burr., 1802.)
Admitting that an entry was not necessary,
after arriving at full age, yet a second deed
cannot be regarded as tantamount to such en-
try. After the bargain and sale, the infant
had nothing but a bare right of entry remain-
ing ; and a mere right of entry is not the sub-
ject of a conveyance.
The question is, whether the deed is void,
or voidable only ; and whether it is voidable
depends on the solemnity of the instrument,
or upon the semblance of benefit to the infant,
on the face i. f the deed. It is laid down that
such grants or deeds of an infant as do not
take effect by delivery of his hand, are void ;
and deeds and grants, made by matter of deed,
or in writing, which take effect by delivery of
his hands, are voidable by himself and his
heirs. (Perk, sec. 12 ; 3 Burr., 1804, Zouchv.
Parson*.)
The deed here was for a pecuniary consid-
eration, and took effect by delivery of his
hand, and passed all the right and title of the
infant, together with the possession, by virtue
of the Statute of Uses, subject only to be
avoided, afterwards, by him or those claim-
ing under him. Now the mere execution of
another deed cannot avoid a prior solemn
deed delivered, and which transferred both the
right and the possession. Surely the court
will require something more solemn ; if not
by entry, at least by pleading, X>r bringing an
action of ejectment". An estate depending on
*a condition is good, until the condi- *[o4 1
tion is performed by which it is to be defeated.
(Shep. Touch., 182.)
Though an infant, after coming of age, may
avoid a deed given during infancy, yet this
may not be done at any time afterwards, but
must be done in a reasonable time. Here, the
second deed was given twelve years after the
first, and ten years after the grantor came of
age; this certainly cannot be deemed a reasona-
ble time. (Cro. Jac.. 820; 8 Bac. Abr., 145, n.
8; 8 Burr., 1719; 2 Vent., 203.) If the infant
does not, within a reasonable time after arriv-
ing at full age, avoid his deed, his silence is
construed into an acquiesence, or tacit con-
sent to, a d confirmation of the bargain and
2,3
541
SUPREME COURT, STATE OF NEW YORK.
1814
sale. The privilege given by law to infants, is
intended as a shield for their protection, and
is not to be used as a sword, to the injury and
annoyance of others.
YATES, J., delivered the opinion of the
court :
The question presented for the considera-
tion of the court is, whether the first deed ex-
ecuted by Ad.-ims during his minority can be
avoided by the second deed, executed after full
age, without an actual entry.
I am inclined to think that an entry is not
necessary, and that the deed given by him
while an infant may be avoided in various
ways, without such entry, at any time, unless
barred by the statute of limitations. He
might plead infancy, and there is nothing to
prevent his proceeding by an action of eject-
ment, in which he could avail himself of it by
proof. To say that the mere form of an entry
would be indispensable to secure his right of
action, it appears to me, would be insisting on
an act entirely useless, and by which no possi-
ble benefit could be extended to the party
claiming under the conveyance executed by
the infant.
This court have said that the rules, as to
proceedings in ejectment for a vacant posses-
sion in England, do not apply to the new or
unsettled lands of this country ; it might per-
haps, with equal propriety be said that the
doctrine of actual entry, to avoid a deed given
by an infant for new and unsettled lands, is
equally inapplicable, and ought to be insisted
on only so far as it comports with the princi-
ples which gave rise to its introduction.
The doctrine, requiring an actual entry to
avoid a feoff ment and livery made by an in
fant, does not apply to a bargain and sale. It
is true the one has been substituted for the
542*] other, to promote Convenience, yet
both are not attended with the same solemni-
ties. In Bac. Abr., tit. Infancy, 136 (and
which is recognized in the books as the law
on the subject), it is stated that where an infant
makes a feoffment and livery in person, he
shall have no assize, &c. , but must avoid it by
entry ; for it is to be presumed, in favor of
such solemnity, that the assembly of the pats,
then present, would have prevented it, if they
had perceived his nonage ; and, therefore, the
feoffment shall continue until defeated by
entry, which is an act of equal notoriety.
The conveyance given by the infant, in this
instance, was not attended with all the solemni-
ties of a feoffment and livery, and, according
to this principle, is subjected to be defeated by
an act, after he arrives of full age, of the same
description, and of equal notoriety with the
conveyance. This was done by giving the
second deed, followed by circumstances of
greater publicity, and whereby more effectual
notice was given to the opposite party than a
mere entry could possibly have afforded to
him. The second conveyance was made the
24th of August, 1796, and was recorded the
17th of September, in the same year, or within
one month after its date ; and, if notice is
necessary, this record ought to be deemed
sufficient. Its operation was general, and was,
in fact, notice to all the world, being a public
record, open to the inspection of every one ; so
254
that, in contemplation of law, the adverse
party had better and more effectual informa-
tion than probably would have been given by
an entry on vacant and uncultivated land ; for
it is a fact well known that the military tract
at that time was a wilderness. The court,
therefore, will not view the performance of an
act, perfectly useless, as indispensable on the
part of the infant, after full age, to avoid his
deed ; nor does the law enforce or require it.
It is objected that here has been an acqui-
escence for so long a time after the infant ar-
rived at full age that it amounted to a con-
firmation of the first conveyance, before the
second was executed.
The cases cited by the defendant's counsel,
to this point, do not support it to the extent
contended for. In all of them it appears that
some act of the infant, after he is twenty-one
years of age, is required to evince his assent ;
they are only instances of purchases made, or
teases given, rendering a rent by which either
the continuance in possession, or receipt of the
rent reserved, *shows his assent after- [*543
wards. Bacon (3 Bac. Abr., 145, n. 8), also
cited by the defendant's counsel, states that
the privilege the law allows infants is entirely
for their benefit ; hence, at their full age they
are allowed to ratify and confirm their con-
tracts, or to rescind and break through^hem,
as it shall seem most for their advantage ; and
therefore, the purchase of an infant is only
voidable, and vests the freehold in him till he
disagrees thereto, and his continuing in pos-
session after he comes of age is a tacit consent
and confirmation thereof, since it is to turn to
his advantage. In the present case no act of
the infant appears since he arrived of full age,
by which this assent could be inferred, except
mere omission. He has possessed no property,
nor has he received rent. The confirmation of
this sale.consequently, can, in no point of view,
turn out to his advantage, nor can his neglect
to do anything from 1784 until 1796 destroy
his title. It would be contrary to the benign
principles of the law by which the imbecility
and indiscretion of infants are protected from
injury to their property, that a mere acquies-
cence, without any intermediate or continued
benefit, showing his assent, should operate as.
an extinguishment of his title.
In Frost v. Wolverton, 1 Strange, 94, an
infant covenanted to levy a fine by a certain
time to certain uses ; and before he came of
age he levied the fine, and by another deed,
made at full age, he declared it to be to other
uses ; the court held that the last deed should
be the one to lead the uses.
I cannot discover that the distinction taken
between the operation of a void or voidable
deed will affect the plaintiff's title. Admitting
that the first deed was merely voidable, and
that the possession and the right during its.
operation were separated, if the reasoning, as
to the effect of the second deed, is correct, this
separation ceased to exist the instant that the
deed was executed, in the same manner as it
would have been terminated by an actual entry;
for the execution of this conveyance is as
strong an expression of the intention as an
entry would be on lands in a state of nature ;
the second deed, consequently, evinced the in-
tention, and passed the estate to the lessors at
JOHNS. REP.. 11.
1814
DOTY v. BATES.
:>4:J
one and the same time, and who, according to I
the demises laid in the declaration, are entitled
to recover.
Judgment for the plaintiff.
Cited in-14 Johns.. 136; 7 Cow.. 181 ; 17 Wend.. 131 ;
1 Edw.,:W8; 89 N. Y.. 557; 7 Hun. 494 : 30 How Pr..
106; 3 llob.. 431; 10 Peters. 73, 76; 56 Mo.. 210; 40
Ind., 157 : 41 Ind.. 54».
544*] *DOTY v. BATES AND HANDY.
Partnership— Note made by Partner, in Firm
Name, bind* frYnn— Presumed to be made in
Course of Partnership Dealings.
A note made by one partner, in which he says,
•• I promise to pay," Ac., but subscribes the part-
nership name. '' A B & Co.," is binding: on the firm.
and not on the partner alone, who executed it.
A note made by one partner in the name of the
firm, will be intended to have been made in the
course of partneiship dealings: and that it was
jmvii for the individual debt of one of the partners,
ia matter of defense, which must be proved by the
party taking advantage of it.
citations— 2 Calnes. 246 ; 2 Johns., 300 ; 4 Johns., 251.
was an action of as#ump«tt upon three
JL promissory notes, made by the defendants,
who carried on the business of tanning, curry-
ing and shoemakimr, under the firm of Samuel
H:mdy & Co.. payable to the plaintiff, and was
tried at the Ontario Circuit, in 1814.
The declaration averred the defendants to
have been partner* in the business of tanning,
&c.. and that the said Samuel Handy, for him-
self and the defendant Bates, made and signed.
by the name and description of Samuel Handy
«fc Co., a certain note in writing, and thereby,
for himself and his said partner, for value re-
ceived, promised to pay the said plaintiff, &c.
In all the notes, the promise was stated in the
first person singular, "I promise to pay," &c.,
bu* they were subscribed with the name of the
firm, Samuel Handy & Co.. and were proved
to have been signed by Handy, who was the
acting partner in the business of the firm.
'I'll-- defendant's counsel, at the trial, objected
to the notes being read in evidence, because,
on the face of them, they purported to have
been made by Handy, in his individual ca-
pacity, which beipg overruled, he moved for
a nonsuit, on the ground that the plaintiff hav-
ing averred a special and limited partnership,
he was bound to prove that the notes were
given in the course of the partnership business;
but the judge refused the nonsuit.
The defendant produced a witness to prove
that one of the notes had been given for money
lent by the plaintiff to Handy ; but the witness
knew nothing of the loan, except from the
conversation of the parties, in which conversa-
tion nothing was said respecting the partner-
ship, and the plaintiff had never dealt in any
article appertaining to the business of the part-
nership ; but the witness was busy at the time
of the conversation, and did not pay particular
attention to it, and was in a different part of
the room. The defendant proved that there
was no entry in the books of the firm of any
transaction with the plaintiff, and it was stated
JOHNS. REP.. 11
by a witness, who had been in the employ of
the firm, and was in a situation to know .the
fact, that *he did not believe that the [*545
firm had received any consideration from the
plaintiff. The witness stated that in one in-
stance Handy purchased beef without the
knowledge of Bates, who disapproved of it as
soon as he heard it ; and that, in the summer
of 1818, about the time when the notes were
given, the defendants were very much in want
of money.
The plaintiff produced a witness, who u--ti
fied that be, the witness, bad sold two yoke of
oxen to Handy on the copartnership account,
and took a note from Handy in the name of
the firm ; which note was paid, part by
Handy, and the residue by Bates; but Bates, at
the time of paying his part, told the witness
that he had taken one yoke of the cattle from
Handy, for himself, for which he was willing
to pay, but for no more.
Handy absconded before the suit was com-
menced, and Bates alone was arrested. The
plaintiff had not given any notice to Bates of
the existence of the notes, before the com-
mencement of the action.
The jury found a verdict for the plaintiff,
for the amount of the notes, with interest.
The defendants moved to set aside the verdict
on the ground of misdirection, and that it was
contrary to evidence.
Mr. 1. Hamilton, for the defendants. There
was a special and limited partnership between
the defendants, and that fact was known to
the plaintiff. The note begins in the singular
number, and is signed by one, though \gilh the
name of the firm. The legal presumption,
however, is, that it was given for the indi-
vidual debt of the partner who made the note.
It is true that in Marsh v. Ward, Peake's N.
P. Cases, 130, where a note began in the same
manner, but was signed by two persons, the
court held it to be a joint and several note ;
but that decision is not applicable to a case of
partnership.
Where a bill is drawn on two Joint traders,
and is accepted by one of them, it binds both,
if it concerns the joint trade, but not other-
wise. (1 Salk., 125; 1 Ld. Raym., 175, 1484.)
The defendants have shown, prima facie, and
as far as they could, that the money never was
applied to, nor came to the use of the part-
nership.
Mr. II. Bleecker, contra. If the position of
the defendants' counsel, that because this was
a limited partnership, the plaintiff *is [*!>4<i
bound to show that the note was given for a
copartnership concern, or that the money
came to the use of the copartnership, is the
law, then this burden of proof would lie upon
the plaintiff in eveiy action against a partner-
ship ; for there is no partnership, however
general, but has some limitation. Nopartner-
ship concerns all sorts of business. The rule
is, that where a note is signed with the part-
nership name or firm, the law intends it was
given for the use of the partnership. The
plaintiff need only prove a partnership, and
the making of the note, in order to support his
declaration ; and it lies on the defendant to
show that it was, in fact, given for the private
purpose of one of the partners, and not for the
i copartnership business.
IU
546
SUPREME COURT, STATE OF NEW YORK.
1814
All inference arising from the note being in
the. singular number, is repelled by the fact
that it is signed with the name of the firm.
In all the cases in which it has been held that the
partnership was not liable, some knowledge by
the creditor of its being for the use of the in-
dividual partner, or some circumstance of
fraud, has been shown by the defendants.
Unless that is done, the note, given in the
name of the firm, is prima facie, binding on
the partnership. (4 Johns., 251, 271, 272 ; 2
Esp. N. P. Cases, 525 ; 7 East, 210 ; 13 East,
175.)
PLATT, J., delivered the opinion of the
court :
The only points in this case are : 1. Whether
the declaration set forth the notes according
to their legal import and effect.
2. Whether, under such a partnership, it was
incumbent on the plaintiff to prove the par-
ticular consideration of the notes.
I think the law is clearly against the defend-
ants, on both points.
1. A note made by Handy, wherein he says
" I promise," &c., and signs the copartnership
name, means, I, one of the partners, promise,
on behalf of the firm, &c.
2. The partnership being admitted, the pre-
sumption of law is, that a note made by one
partner in the name of the firm, was given in
the regular course of partnership dealings,
until the contrary is shown on the part of the
defendants.
There is no question as to the rule, " that if
a persqn takes a partnership security from one
of the partners, for what is known, at the
time, to be a particular debt of the partner
who gives such security, the partnership is
not holden" (Livingston v. Hastie, 2 Caines,
346 ; Lansing v. Gaine & Ten Eyck, 2
547*] * Johns., 300; Livingston v. Roosevelt,
4 Johns., 251) ; but this is matter of defense,
and must be proved by the party who wishes
to take advantage of it. The motion for a new
trial must be denied.
Motion denied.
Cited in— 1 Wend., '530 ; 14 Wend., 138 ; 16 Wend.,
511 ; 31 Mich., 378.
RUNYAN v. NICHOLS.
Pleading and Practice — Attorney and Client —
Negligence of Attorney must be Pleaded.
Whether, in an action by an attorney against his
client, to recover his fees, the defendant can set up
the plaintiff's negligence in conducting the suit as
a bar. Oucere.
Such defense, however, must be pleaded, or no-
tice given that it was intended to insist upon it,
and the defendant cannot give it in evidence under
the general issue.
IN ERROR, from the Court of Common
Pleas of Chenango County. This was an
action of assumpsit, brought by the plaintiff,
an attorney of this court, in the Chenango
Common Pleas, to recover his costs for prose-
cuting two suits in the Supreme Court, in
which the present defendant was plaintiff, as
his attorney. The defendant pleaded non as-
sumpsit, and gave notice of a set-off.
At the trial, the plaintiff proved his retainer,
256
and the due service of copies of the bills of
costs, more than eight days before the com-
mencement of this suit. The defendant pro-
duced a witness to prove that the plaintiff had
conducted one of the suits negligently, and
without skill and care. This testimony was
objected to by the plaintiff, but the court
overruled the objection, and the plaintiff ex-
cepted to their opinion. A verdict was found
for the defendant, and the plaintiff tendered
a bill of exceptions.
The sole point for the consideration of the
court was, whether tne defendant could give
the plaintiff's negligence in conducting his
business, as his attorney, in evidence, under
the general issue.
Mr. Vanderlyn, for the plaintiff in error,
was stopped by the court.
Mr. Van Buren, contra. The evidence of-
fered was admissible. In all other cases,
whether the plaintiff proceeds on a quantum
meruit, for work and labor, or services per-
formed, as a carpenter, *&c., the de- [*548
fendant may set up in his defense that the
work has not been done in a proper and work-
manlike manner, so as to entitle the plaintiff
to the compensation claimed by him ; and
this defense may be given in evidence under
the , general issue, without notice. (7 East,
479; 1 Campb., 38, 190; Peake's Csftes,
103, 59, and see King v. Boston, 7 East,
481, note.) Where a party comes into a court
to claim the worth of his services, he cannot
be surprised by such a defense ; for he must
be prepared to show the value of his services,
and the extent of the compensation claimed by
him. If this evidence is not allowed, the de-
fendant may be driven to his cross action, and
courts lean against the multiplicity of actions.
Mr. Vanderlyn, in reply, said that in Temp-
kr v. M'Lachlin, 5 Bos. & Pull., 136 ; 2 Comyn
on Contracts, 384, the judges ruled it to be
perfeatly clear law, that negligence in the
conduct of a cause could not be set up as a de-
fense to an action on an attorney's bill. That
decision is conclusive on this question.
VAN NESS, J., delivered the opinion of the
court:
On the opening of this case, I was very
strongly inclined to think that the evidence of
the defense admitted in the court below ought
to have been rejected, under any circum-
stances ; but I now have my doubts. In
cases, in many respects analogous, such as
suits for work and labor by builders, a defense
like the present certainly has been allowed.
Without, however, expressing any opinion on
this point, I think the judgment "in the court
below ought to be reversed, on another ground.
The defendant neither pleaded nor gave no-
tice of this defense, and it must have been a
complete surprise upon the plaintiff, as he
cannot be presumed to have come prepared to
meet it at the trial.
In a case of this description, it is peculiarly
fit and proper that the plaintiff should be ap-
prised that such a defense as this was intend-
ed to be insisted upon. If it be substantiated,
it fixes upon the plaintiff the imputation of
gross ignorance or negligence and, perhaps,
even of moral turpitude. An investigation of
this kind, therefore, is of vital importance to
JOHNS. REP., 11.
1814
THE PEOPLE v. LYNCH ET AL.
548
the reputation of an attorney, in which this
court, in common with the community, and
the party himself, has a deep interest ; and to
allow it to be assailed by a defense involving
such serious consequences, without any previ-
549*] ous notice, would, I think, be 'unreas-
onably and unnecessarily harsh and rigorous.
On this ground, therefore, I am of opinion
that the judgment below is erroneous.1
Judgment reverted.
Doubted-75 N. Y., 166.
Cited ID— 13 Johns., 303 ; 15 Johns., 231 : 8 Cow., 34.;
« Cow.. SO ; 2 N. Y ., 158 ; 18 Barb.. 32 ; 0 How. (D. 8.).
230.
THE PEOPLE
«. •
MARK LYNCH, A8PINWALL CORNELL
AND JOHN HAQERMAN.
Treason — Against the United States not against
the State of New York—Not Cognizable in
State Courts — May be Committed against a
State.
The offense of adhering and Riving1 aid and com-
fort t<> the public enemies of the Lnited States is
not treason against the people of the State of New
York.
And an indictment charging the offense to have
IH • n committed against the people of the State of
New York will be quashed.
Treason may bo committed against the State, as
by opposing the laws or forcibly attempting to
overturn or usurp the government. &c.
Treason against the United States is not cogniza-
ble in the State courts.
Citations— I N. R. L., 145 ; 1 G. Ed. Laws, 316; Sees.
1 Cong., cb. 30 sec. 11.
rp HE defendants, who were now brought up
-L on habeas corpus, were indicted at the
General Sessions of the Peace, in the City of
New York, in August last, for treason against
the State. The indictment and proceedings hav-
ing been removed into this court, by certiorari,
Mr. Colden moved that the prisoners should
be discharged. He read the commitment and
55O*] indictment,* and contended "that there
was no crime charged against this State; that
the indictment did not even state any crime
cognizable by the laws of the United States.
But if the facts stated amounted to treason
against the United States, it would not be a
crime against this State. It might, perhaps,
be said, 'that this was a case in which the
court* of this State have a concurrent jurisdic-
tion with those of the United Suites. If so, it
would follow, either that the United States
would be ousted of its jurisdiction, or that the
l.-8e« M'Alllster v. Reab. 4 Wend., 483.
8.— The indictment contained three counts:
1. The first count stated that on the 18th of June,
IN):!, the State ot N<-w York wa.s aii<l i-\ >T --im--- IKI*
<•<•!!( iiim-it to be, and yet is, one of the State* com-
posing the confederation of the United States, and
a party to the Constitution established by the
I'riitcci States; that, by the Constitution, the power
of declaring war is vested in Congress, and that
Congress declared war against the King of Great
Britain, and his subjects, on the 18th of June. 1812.
ami that the said war has continued, without inter-
mission, openly and publicly, from the wild IHth of
.luii.-. 1*1:.', to the day of making this presentment :
by means whereof, and the operation of the said
Constitution, the United States were, on the said
18th of June, and ever since have been, and yet are,
engaged in war with the said King of Great Britain,
JOHNS. REP., 11. N. Y. R., 5.
i party might be twice tried for the same
' offense ; for either the courts of this State have
! a right to try the defendants, in exclusion of
the United States, or they must be liable to be
twice put in jeopardy for the same offense. It
is not denied that there may be treason against
this State, as in case of insurrection or rebel-
lion against the particular laws of this State.
The indictment here states that the subjects of
Great Britain became enemies of this State, in
consequence of the war declared by the United
States, and being enemies, &c. [He was here
stopped by the court, who desired to hear the
district attorney.]
Mr. Hawkins (acting for the District Attor-
ney), contra. The indictment is founded on
the first section of the Act Relative to Treason
(sess. 24, ch. 29 ; 1 N. R. L., 145), which de-
clares " that if any person do levy war against
the people of this State, within this State, or
be adherent to the enemies of the people of
this State, giving them aid and comfort ib this
State or elsewhere, and be thereof attainted of
open deed, such offenses, and no other, shall
be adjudged treason against the people of this
State."
The first objection which may be made is,
that the offense *ought first to have [*55 1
been inquired into by this court, the 6th sec-
tion of the Statute declaring that all offenses,
declared to be treason, committed upon land
out of this State, or on the sea. shall be in-
quired of, heard and determined in the Su-
preme Court, by good and lawful men of the
same county where the said court shall sit, in
like manner as if the treason had been com-
mitted within the same county. But it was
not intended by this section of the Act that
this court should make the first inquiry as to
the fact, but that they should finally inquire
and determine, by a jury, and give judgment
thereon. It does not prevent a grand jury of
the General Sessions of the Peace from inquir-
ing into the fact, and finding a bill of indict-
ment against the party, which may, then, be
removed into this court for trial and judgment.
An indictment is only an accusation. (4 Bl.
I Com., 402 ; 2 Hale P. C., 154, 158.)
It is sufficient, in an indictment, that the
charge of high treason be reduced to a reason-
able certainty, so that the defendant may be
apprised of the nature of it. and be prepared
to answer it. (Foster's C. L. , 294.) In a case
of so enormous a crime, the court will not
quash an indictment. Courts do not quash
indictments, on formal objections, in case of
treason or murder. (3 Com. Dig., 509; 2
Hawk. P. C.. 866 ; 3 East, 162.)
and his subjects ; and the said King of Great Britain,
and his subjects, on the said 18th of June, were, and
ever since havo been, and vet are enemies of the
l»-o|)le of the State of New York: and that the de-
fendants (stating their names in full, with their
PI-OIMT additions), " b.-in>r citizens of the said State
of New York, and of the mid United Stafo'S of Amer-
ica, well knowing the premises, and not having the
fear of God in their hearts, nor weighing the duty
of their allegiance, but being moved. Ac., as false
traitors against the peopleof the said State of New
York, and contriving, and with all their strength
intending the peace and tranquillity of the said
Stat<- of New York to disquiet, molest and disturb,
and the government thereof to change, subvert and
alter, and the people of the said State of New York,
j of and from their honor, power, independence, f ree-
! dom and government to depose and deprive, and to
17 257
551
SUPRKME COURT, STATE OF NEW YORK.
1814
As to the jurisdiction of the courts of the
State to try this offense, there is nothing ex-
pressed in the Constitution of the United States
against it. The second section of the 4th arti-
cle declares that persons charged in any state
with treason or felony, or other crime, who
shall flee from justice, and be found in another
state, shall, on demand of the executive au-
thority of the State, be delivered up to be re-
moved to the State having jurisdiction of the
crime.
There is no law of Congress inhibiting the
interference of the State courts. On the con-
trary, the second section of the Act of April
30th. 1790, authorizes the magistrates of the
different states to receive informations of
treason.
The Judiciary Act (section 11) declares that
the circuit courts of the United States shall have
exclusive cognizance of all crimes or offenses
cognizable under the authority of the United
States, except where the laws of the United
States shall otherwise direct. The State courts
have concurrent power with those of the
United States in numerous cases which might
be stated. (Livingston v. Van Ingen, 9 Johns.,
507, 564, 572 ; 4 Binney, 487 ; 5 Binney, 512.)
In the exercise of the concurrent power, the
552*] State courts *must act in subordination
to the United States. In case the State courts
acted against the power of the United States,
the courts of the United Stales might issue a
prohibition to them. Until, however, the col-
lision between the courts of the two govern-
ments exists, the State courts may act.
The individual states are sovereign and in-
dependent, except in matters ceded to the
general government of the United States.
Under the old confederation, the powers of
the states were the same. Persons \vere in-
dicted and tried in the courts of Pennsyl-
vania in 1778 and 1781, for high treason in
adhering to the enemies of the State and of
the United States. (1 Dall., 33,89; 2 Dall.,
86, 87.)
The laws of most of the different states, in
relation to treason, declare it to consist in tak-
ing commissions under the enemies of the State
or United States, or aiding or assisting the
enemies of the State and of the United States
(Laws of Penn., Vol. I., p. 435; Stat. Conn.,
654; Stat. Mass., Vol. III.; Laws of Vt.,
Vol. I., p. 332; Laws of Del., 38; Laws of
N. J., 208), &c., which shows that the courts
of those states take cognizance of high treas-
ons committed by aiding the public enemies
of the United States.
bring the said State of New York, and the people
and faithful citizens thereof to destruction, and
to put and bring the people and faithful
citizens of the said State of New York into
subjection and servitude to the said King of the
said United Kingdom of Great Britain and Ire-
land, they, the said Mark Lynch, &c., on the 16th
day of May, in the year of our Lord, 1814, in the 38th
year of the independence of the said State of New
York, and on divers other days and times, as well
before as after that day, with force and arms upon
the high seas, falsely, wickedly, and traitorously
did adhere to, and jrive, and minister aid and com-
fort to the subjects of the said King, &c., by then
and there furnishing1, supplying and delivering
fifty ban-els of beef, fifty barrels of pork, fifty
hams, one hundred pounds' weight of butter, and
thirty cheeses, to divers subjects of the said King,
&c., in and on board a public ship of war belonging
to the said King, &c., then and there lying, and
258
Per Curiam. The grounds relied upon for
the discharge of the prisoners are: 1st. That
the facts charged in the indictment do not
amount to the crime of treason against the-
State of New York ; and, 2d. That the State
covirts have no jurisdiction of treason against
the United States.
The indictment containing several counts
which are substantially alike, after setting out
a state of war between the United States and
Great Britain, declared and carried on under
the authority of the United States, alleges that
the prisoners, being citizens of the State of New
York, and of the United States of America, as
traitors against the people of the State or New
York, did adhere to, and give aid and com-
fort to the enemy, by supplying them with
provisions of various kinds, on board a public
ship of war, upon the high seas. It has been
attempted, on the part of the prosecution, to-
support this indictment under the statute of
this State (1 N. R. L., 145), which declares
treason against the people of this State to con-
sist in levying war against the people of this
State, within the State, or adhering to the
enemies of the people of this State, giving to
them aid and comfort in this State, or else-
where. And it has been said that this Act i&
nugatory, unless it applies to cases like the-
present ; but this by no means follows, for
there can be no doubt but such a state of things
might exist, as that treason against the people
*of this State might be committed. [*553
This might be, by an opened and armed op-
position to the laws of the State.or a combina-
tion and forcible attempt to overturn or usurp
the government. And, indeed, the State, in
its political capacity, may, under certain,
special circumstances, pointed out by the Con-
stitution of the United States, be engaged in
war with a foreign enemy. But no such cir-
cumstances are stated in this indictment.
Great Britain cannot be said to be at war with;
the State of New York, in its aggregate and
political capacity, as an independent govern-
ment, and therefore, not an enemy of the
State, within the sense and meaning of the
statute. The people of this State, as citizens
of the United States, are at war with Great
Britain, in consequence of the declaration of
war by Congress. The State, in its politicial
capacity, is not at war. The subjects of Great
Britain are the enemies of the United States of
America, and the citizens thereof, as .members
of the Union, and not of the State of New
York, is laid in the indictment.
The alteration in our statute, since the
being called the Bulwark : the said King, &c., and
his subjects, then, and yet being at war with, and
enemies of the said State of New York, against the
duty of the allegiance of the said Mark Lynch &c.,
and against the form of the statute, &c.
2. The second count charged the offense in furn-
ishing, supplying and delivering divers quantities-
of beef, pork, hams, butter and cheese to divers of
the subjects of the said King, &c., the said King and
his subjects then and -yet being at war, &c.
3. The third count stated that "an open and pub-
lic war, on the 16th of May, 1814, and long before,
and ever since, hitherto, by sea and land, was and
yet is carried on, and prosecuted by the King of the
United Kingdom of Great Britain. &c., against the
people, &c., of the State of New York, and that the
said Mark Lynch, &c., being citizens of the said
State of New York, well knowing the premises,"'
&c.. as in the first count, to the end.
JOHNS. REP., 11.
1814
THE PEOPLE v. LYNCH ET AL.
553
adoption of the Constitution of the United
States, plainly shows the sense of the Legis-
lature on this subject. By the Act, as it stood
in the year 1787 (1 O. ed. Laws, 816), it was
made treason to adhere to, or give :iid and
comfort to the enemies of the people of the
State of New York, or of the United States of
America. But in the several revisions of the
law, since the adoption of the Constitution,
the latter words have been omitted, as un-
necessary and inapplicable to the situation of
the State, as a member of the Union. Under
the old confederation, there was no judicial
power organized and clothed with authority
for the trial and punishment of treason against
the United States of America. It became
necessary, therefore, to provide for it under
the judicial powers of the several states ; no
such necessity, however, exists under our
present system. According to this view of the
subject it would seem unnecessary to notice
the question of jurisdiction ; for, admitting
the lacts charged against the prisoners to
amount to treason against the United States,
they do not constitute the offense of treason
against the people of the State of New York,
as charged in the indictment. The offense
not being charged as treason against the United
JOHNS. REP., 11.
States, the present indictment cannot besup-
ported. even admitting this court to have juris-
diction. We would barely observe, however,
that we think the jurisdiction of the State
courts does not extend to the offense of treason
against the *United States. The judi- [*554
cial power of the United States extends to all
cases arising under the Constitution and laws
of the United States. The declaration of war
was by a law of Congress ; and, In conse-
quence of which, it became criminal in the
prisoners to afford aid and comfort to the
enemy. And the Act establishing the judicial
courts of the United States gives to the circuit
courts cognizance, exclusive of the courts of
the several states, of all crimes and offenses,
cognizable under the authority of the United
States, except where the laws of the United
States shall otherwise direct. (1 Sess.,1 Cong.,
ch. 20, sec. 11.) In whatever point of view,
therefore, the case is considered, we are satis-
fled that the present indictment cannot be sup-
ported. The prisoners must, accordingly, be
discharged.1
1. — But the court remanded the defendants, until
information was given to the judge of the Supreme
Court of the United States, so that they might be
proceeded against in the Circuit Court or the United
States, if it was thought proper.
259
[END OF OCTOBEK TERM, 1814.]
CASES ARGUED AND DETERMINED
IN THE
Court for the Trial of Impeachments
AND THE
CORRECTION OF ERRORS :^ V:
OF THE
STATE OF NEW YORK.
IN MARCH, 1814.
JOHN R. LIVINGSTON, Appellant.
v.
WILLIAM BYRNE, Respondent.
Trustees — Promise by, to Release to Purchaser
under Execution — Waiver of Prior Claim
by — Specific Performance.
A, on the 1st December, 1803, conveyed certain
lands, in trust, to the defendant, to make partition,
and to sell the same, and pay a debt due from A
to the United States, &c.; and afterwards, on the
24th of the same month, A executed a deed, in trust
to B, C and the defendant, to sell, and out of the
proceeds, in the first place, to pay the said debt to
the United States, &c. On the 27th of the same
month, a judgment was rendered in the District
Court, at the suit of the United States, against A;
and in 1805, execution was issued thereon, and the
said lands advertised for sale by the marshal, in
which advertisement was incorporated a notice
from B, C and the defendant, that they would re-
lease to the purchaser their interest under the deed
of the 24th December, which notice was read public-
ly at the sale, in the presence of the defendant, who
gave no intimation of his claim under the deed of
the 1st December and the premises were sold to the
complainant, who had no notice of the defendant's
claim. B and C executed a release to the com-
plainant, but the defendant refused to execute it
without a proviso, saving his right under the prior
deed. The Chancellor decreed that the defendant
should execute an unconditional release, and pay
the complainant's costs ; which decree was affirmed,
on appeal.
It seems that had the fact of notice been brought
home to the purchaser, it would not have counter-
vailed the public notice given by the trustees ; such
public notice, in which the defendant joined, being
a waiver of his prior claim. Itseems that the sub-
sequent deed, being substantially f9r the same
trusts, and having been acted upon whilst the prior
one had lain dormant, was an extinguishment of
the prior deed. Quaere, how far the terms of a sale
at auction may be contradicted by parol declara-
tions. A sale at auction, under process of law,
cannot be invalidated for mere inadequacy of price.
Costs may be decreed against a trustee unreason-
ably refusing a conveyance.
Citations— 7 Ves. Jr., 34 ; 10 Ves. Jr., 474.
THIS cause came before this court, on ap-
peal from the Court of Chancery. The
following facts appeared from the pleadings
and depositions in the cause.
On the 1st December, 1803, Edward Living-
ston was seised in common, with the heirs of
E. C. Goodrich, of 800 lots of land, in the
260
town of Esperanza, now Athens, in the
County of Greene ; and on the same day, exe-
cuted to the defendant, in the court below, the
now appellant, a deed thereof, in trust, to
procure *partition to be made with [*556
the other tenants in common; and after parti-
tion, to sell the same, and apply the proceeds
to the payment of any balance that might be
found due from Edward Livingston to the
United States on a settlement of his account,
and apply the overplus, if any, to Edward
Livingston, or his heirs. On the 24th of the
same month Edward Livingston executed to
Samuel Osgood, David Gelston and the de-
fendant, a deed of divers tracts of land,
of which the lots above mentioned were
a part, in trust, to sell, and apply the pro-
ceeds, 1st, to pay the balance due to the United
States ; 3d, to pay the debts due to the other
creditors of Edward Livingston ; and, lastly,
to refund to him the overplus, if any.
On the 27th of the same month a judgment
was rendered in the District Court of the
United States, at the suit of the United States,
against Edward Livingston, for $100,000 debt
and $14.89 cents damages. In July, 1805, the
attorney of the United States being about to
issue an execution on the said judgment, and
the trustees under the last-mentioned deed be-
ing apprehensive that that deed might injure
the sale of the premises, under the execution,
published an advertisement in the public
papers, giving notice that they, "assignees of
the estate of Edward Livingston, under an as-
signment bearing date the 24th day of Decem-
ber, 1803, would execute a release to every
person who should become a purchaser of any
of Livingston's property, at the marshal's sale,
of all their right, title and interest in the prop-
erty so purchased, if it should be required to
be done." On the 6th August, a fi. fa. was
issued on the said judgment to John Swart-
wput the then marshal of the New York dis-
trict, who advertised the lands of Livingston
for sale, in which advertisement was inserted
the above-mentioned notice from the trustees.
On the 27th December, 1805, the premises in
question were sold at auction to one Goodman,
JOHNS. REP., 11.
1814
LIVINGSTON v. BYRNE.
5.V,
an agent for the complainant, the now respond-
ent, oeing the highest bidder, for $11. The
appellant was present at the sale, and the above
notice was, at the time of the sale, openly and
publicly read by the auctioneer ; and the mar-
shal, on the same day, executed a deed to the
respondent. After the sale, the respondent
drew a general release of all the right of the
trustees, or either of them, to the premises,
containing a covenant, that they had done no
act to iucumber, impeach or impair the title.
ft57*] This "release was executed by Osgood
and Gelston ; but the appellant refused to
execute it. The respondent filed his bill to
obtain a specific performance of the appellant's
undertaking, contained in the notice, to exe-
cute a release.
The appellant, in his answer, insisted that
the last deed was void ; and stated that when
he discovered that the lands in question were
advertised for sale, he called on the district
attorney and the marshal, showed him the
deed to himself, and remonstrated against the
sale ; and that, at the sale, he did, openly and
in the hearing of the purchaser, as well as
others, when the lots were put up, publicly
proclaim his having a deed of trust therefor
anterior to the judgment ; that the lots were
not bound by the judgment, and that the pur-
chaser would lose his money. He stated, also,
that he declined executing the release, on the
ground that it would destroy his title under
the first deed ; but that he has always been,
and is, ready to execute any instrument, as a
joint trustee, with a proper proviso, or saving
<>f his interest under the first deed.
The appellant, likewise, insisted on the in-
adequacy of the price, many of the lots being
worth from $100 to $250 each, or upwards.
The statement of the appellant, as to his
declarations at the time of sale, was repelled
by the testimony of the marshal, the auc-
tioneer, Goodman, the complainant's agent,
and three other witnesses, who denied their
recollection of the circumstance ; and the auc-
tioneer and Goodman positively denied that
any such declaration had been made. It was
supported by one witness only, whose charac-
ter and cred'it were impeached by witnesses on
the part of the respondent.
Goodman deposed that several weeks before
the sale he called on the appellant, and told
him that his object was to become a purchaser
under the execution, and wished information
ri'spfcting the property; that the appellant
Allowed him a map of the lots, and spoke of
their advantages, and said nothing to deter
him from becoming a purchaser. That the
appellant did not, at any time during the con-
venation, say that the marshal could not give
a good title, or that the appellant, after the
-air, would have any right or title to the lots.
That, during the conversation, the appellant
gave him to understand, or expressly said,
Hint he had a deed in trust from Edward Liv-
iiii^ton, of the lots aforesaid, for the purpose
of enabling him to make partition with the
R58*] *heirs of Goodrich ; and that the said
trust was held for the use of the United
States.
The cause having been heard before His
Honor, the Chancellor, he decreed, on the 15th
September, 1812, that the appellant should exe
JOHNS. REP., 11.
cute a release to the respondent, of all his
right, title and interest in the property pur-
chased by the respondent ; and also that the
appellant should pay the respondent his costs,
to be taxed.
Mr. D. B. Ogden, for the appellant, con-
tended : 1. That this court, or a court of
chancery, will never interfere and compel a
specific performance, where there is a gross
inadequacy of price. (1 Bro. C. C., 179; 1
Ves,. Jr., 278.) The great inadequacy of the
price paid by the respondent, in the present
case, was too palpable to require any comment.
The power of the court to decree a specific
performance is discretionary, and is not exer-
cised in all cases. (1 Ves., Jr., 565; 4 Bro.
C. C., 80.) To be enforced, the contract must
be certain, fair in all its parts, without fraud,
and for an adequate consideration. (1 Ves.,
12, 279; 7 Ves., Jr., 30.) If there is any-
thing doubtful or unreasonable in the con-
tract, or any fraud, it will not be enforced.
(Free. Ch., 538.) There is a distinction be-
tween an interposition of a court of equity to
set aside a contract, or conveyance executed,
and lending its aid to enforce a specific execu-
tion. In the former case, the court, by acting
at all, deprives the party of his legal remedies;
in the latter, by refusing to act, it leaves the
party in full possession of his rights at law.
Moreover, the appellant, at the sale, gave
notice to the respondent, of his claim to the
property. Indeed, the case shows that the re-
spondent had full and seasonable notice. His
agent called on the appellant to inquire as to
the state of the property, and received infor-
mation sufficient to put the respondent on his
guard. (1 Atk.,490; Amb.,313.) The small -
ness of the sum bid by the respondent is proof
that he acted under the influence of such no-
tice.
2. A specific performance ought not to have
been decreed, because it would compel the
trustee to commit a breach of trust. The
trusts contained in the deed of the 1st of De-
cember, 1808, are unexecuted, and if the de-
cree of the Court of Chancery is confirmed, it
will be impossible for the appellant to execute
them.
3. The respondent purchased with full
knowledge of the deed of the 1st of December,
1803, and is thereby affected *with no- [*55»
tice of the prior trusts. It would be mani-
festly inequitable to permit him now to claim
in opposition to them.
4. The judgment of the United States
against £. Livingston was docketed the 27th
of December, 1808, and the conveyance in
trust to the appellant was on the 1st of De-
cember, so that the legal estate was vested in
the appellant, prior to the judgment. The
trust, requiring a sale of the property, was
not, either in law or equity, liable to execu-
tion, nor was any lien on it created by the
judgment. There was nothing, therefore, on
which the marshal could levy. Nothing could
pass by the sale.
5. Further, the notice of advertisement of
Livingston, Gelston and Osgood was, that
they would release their title, under the grant
to them jointly, of the 24th of December. It
contained no suggestion that the appellant
would release his separate claim on the prior
Ml
559
COURT OF ERRORS, STATE OF NEW YORK.
1814
deed of trust. There was also, other property
of Edward Livingston, to which the execution
might be applied. And the conversation be-
tween the appellant and Goodman shows that
the appellant did not intend, or expect, that
the Esperanza lots were to be included in the
advertisement, or sold ; and the court will not
compel a performance contrary to the intention
of a party. (1 P. Wms., 302.)
6. Again, it is impossible to suppose that the
appellant would have permitted property of so
great value to be struck off for $11. It would
have been a most flagrant breach of his trust ;
and there must have been some misapprehen-
sion or mistake ; and on this ground alone, a
.court of equity ought to relieve him from the
performance of the agreement. (2 Atk., 203.)
7. The appellant was a mere trustee, and
bound to defend the interest of his cestui que
trust ; costs ought not, therefore, to have been
decreed against him.
Messrs. Henry and T. A. Emmet, contra.
The ground of the appellant's defense is the
deed of trust to him of the 1st of December.
The trusts in that deed were for partition, &c.,
and were of a secondary nature ; and if they
were done away by the subsequent deed of the
24th of December, the ground of the appel-
lant's defense must fail him. Now, the last
deeds to which the appellant is a party,includes
not only the Esperanza lots, but all Edward
Livingston's property. Both deeds cannot
stand separately, and the last must prevail ; for
56O*] it is a joint *irust including the first trust
and controlling it, and extinguishing the deed of
the 1st of December, so far as it conveyed the
lien to the appellant separately. The second
deed contains all that is to be found in the first,
and every trust under the first is provided for
in the second deed, and may be executed un-
der it.
The notice or advertisement of the marshal's
sale, signed by G-elston, Osgood and the appel-
lant, expresses it to be of every part and parcel
of Edward Livingston's property which was,
or could be, subject to execution, and mentions
particularly the properly in question, in Espe-
ranza. The sale was postponed, and the notice
continued under the same names, and no coun-
ter notice, or any qualification or exception of
it, was ever made or published by the appel-
lant. The only reason he assigns for not exe-
cuting the release, according to the terms of
the notice, is inadequacy of price.
Admitting the deed of the 1st of December,
1803, to be operative, there was such a con-
cealment of it, as must, after the marshal's
sale, render it nugatory. In regard to the
notice, good faith required that if any person
signing that notice had a separate and subsist-
ing lien, which he meant to preserve or assert,
that he should have mentioned or explained it,
in the same notice. As this was not done, the
conclusion was natural, that nothing was re
served by any of the persons whose names ap-
peared to the notice. That the appellant for-
bade the sale, rests on the testimony of a single
witness, Haskin, whose credit was impeached
by several respectable witnesses.
Where a party lets his title sleep, or does not
forbid a sale, he is forever concluded. Neither
infancy nor coverture is admitted as an excuse.
(1 Fonbl., 161, bk. 1, ch. 3, sec. 4 ; 1 Vern.,
262
136 ; 2 Vern., 160 ; 10 Ves., Jr., 475.) After
such a public notice, to allow the defendant to
set up a title under the deed of December 1st,
would be sanctioning a most glaring fraud.
As to the pretended verbal notice given at the
time of sale, it could be of no avail against the
written or printed notice. (Sugden's Law of
Vendors, 21, 22; 1 H. Bl., 80; 6 Ves., Jr.,
830.)
Again ; compelling the appellant to perform
this agreement would not oblige him to commit
a breach of his trust. The trusts which he
wishes to execute are the same in botB deeds,
and the first trusts are merged in the last deed.
The trusts being thus created in favor of the
United States, the marshal might act as agent
for all the cestuis que trust. His sale extin-
guished all the rights under the first deed. The
respondents is invested with all the interests of
the cestuis que tmst, who do *not com- [*56 1
plain in this case. It is only the appellant, a
trustee, who is dissatisfied. A trustee must
conform to all the dispositions made of the in-
terest of the cestui que trust, agreeably to the
trust created. (2 Fonb. Equ., 190, bk. 2, ch.
8, sec. 2, notes; 21 Vin., 515 ; Trust, X, Prec.
Ch., 415; Gilb. Equ. Rep., 100.)
The sheriff's sale bars the trust. A trust
estate is equitable assets, and may be sold un-
der an execution. Our Statute, in regard to
the sale of lands under execution, goes further
than the English Statutes. (1 N. R. L., 74,
sess. 10, ch. 37, sec. 4, Waters v. Stewart; 1
Caines' Cases, 70 ; 2 Vern., 248 ; 10 Vin. Abr.,
544, pi. 6, note; Foote v. Colvin, 3 Johns., 222,
Spencer, J.) The purchaser under the mar-
shal's sale acquired all the right, title and in-
terest of both the cestui que trusts. Having,
therefore, the interests of all the parties to the
deed of trust, he might waive the partition.
Mere inadequacy of price, alone, is not a
sufficient ground to set aside the sale, or to
afford relief in this case. (7 Ves., Jr., 30-34 ;
Sugden, 167 ; Newland on Contracts, 68 ; 10
Ves., Jr., 68.)
Besides, the appellant claims as a mere
trustee. He has no interest at all. The United
States and E; Livingston are the only parties
who could apply to a court of equity for relief
on this ground. This case is much stronger
than those to be found in the books, in which
a court of equity has refused to interfere, on
the ground of inadequacy of price. Here is a
judicial sale.on final process, at public auction,
and under a statute,
As to costs ; if the appellant has violated his
agreement, even when acting as a trustee, and
has thereby compelled the respondent to resort
to a court of equity, he ought to pay costs.
But, in fact, the appellant is not defending
the rights of a cestui que trust. The respond-
ent, as purchaser, stands in the same relation
to the appellant as the cestui que trust, and he,
in effect, is acting against biscestuique trust.
Mr. Van Vechten, Attorney-General, in reply,
contended that the appellant was aggrieved by
the decree of the Court of Chancery, because
he had been required to perform what he never
had agreed to do. He is required to relinquish
his separate rights under a former deed, be-
cause he had engaged to release rights acquired
jointly with two others, under a subsequent
deed. It is only this joint interest that is spec-
JOHNS. REP., 11.
1814
LIVINGSTON v. BYRNE.
in the notice or advertisement ; and the
.appellant ought not to be obliged specifically
to perform what he never specifically promisea.
The argument that, as the appellant joined in
the notice to sell under the second deed of
£»O2*] trust, he cannot set up the firstdeed, *is
of no weight, for if the appellant can, by a
general release, be made to convey more than
Is included in the. second deed, such release
would be more than he had promised to do ;
but if it contained no more than what was
stated in the notice, it would be useless.
There is no ground for the pretense of a
•concealment of the firstdeed, for the appellant
told Goodman that he had an earlier separate
-deed.
As to the notice given at the sale ; though
the general character of Haskin, the witness
to the fact, is impeached, yet his testimony as
to this particular fact is not invalidated, but
is rather corroborated by Davis, and other
witnesses. It is incredible that the appellant
would have suffered property of so great
value to be struck off for $1 1, if he had not re-
lied on the sufficiency of the notice given to
the purchaser, and that his rights would not
-be devested by the sale.
Again, there is no consideration to support
the agreement contained in the notice or ad-
vertisement, so far as regards the first deed.
The inducement to. or consideration of the
promise, arises wholly from the second deed,
which is expressly mentioned in the notice.
In equity there can never be a decree of a
specific performance, where there is not a good
and sufficient consideration. The appellant
was willing to release as much as his co-trust-
-ees; that is, this joint interest with them ; and
it is unjust and unreasonable to compel him,
under the terms of that notice, to release more.
Again; the appellant stands here as a trust -
•ee, and asks for aid in the faithful perform-
ance of his trust. The trust relative to a par-
tition was important and essential, as it facili-
tated a division of the property, and thereby
enhanced its value to purchasers. To compel
the appellant to release, therefore, his interest
.as to this trust, would work a violation of his
trntt. A court of equity will even interfere
to prevent the execution of a bargain that is
•contrary to the declaration of trust. (10 Vea.,
Jr.. 320; Amb., 495.)
It is said the ce#tui» que trust do not com-
plain, or a*k the protection of the court, but
ill'- appellant stands here in their place, so as
t<> ifiider it unnecessary for them to apply to
the court. The respondent does not stand in
the place of the ce*tui* que trust. If he did,
it would be idle to apply to a court of equity
to enforce the performance of what, it is said,
tin- law has already done.
.-,<•,:$*] *But we deny that the rights of the
appellant, under the first deed, are or can be
made subject to sale under an execution. His
trust is purely technical ; and the observa-
tions of Chuf Justice Kent, in Wnter* v.
•Stewart, are not applicable to such a trust.
If the trust in the first deed were merged in
tin- second deed, and the first deed was, there-
fore, inoperative, why is the appellant called
upon to release his interest under that deed ?
There is a difference in the trusts vested in
tin' two deeds. The first was to pay the United
JOHNS. RKP., 11.
States the debt due to Ahem, and the residue,
if any, was to be paid to E. Livingston. But
the second deed was in trust to pay the United
States, and then to pay the other creditors of
E. Livingston; and the surplus, if any, to go
to E. Livingston. Thus, the second deed con-
firms the first deed, only creating further
trusts.
The respondent seeks to produce a violation
of trusts, which he admits are unexecuted.
The doctrine as to judicial sales is applicable
only where the sale is regular, and there is no
doubt or uncertainty as to the proceedings.
YATES, J. The leading question in this
cause is as to the effect of the notice published
byGelston, Osgood and the appellant ; whether
the promise to release, contained in it, was in-
tended to embrace the right (if any exists; of
the appellant under the deed of 'the 1st of
December, 1808, as well as the right of the
three trustees under the deed subsequently
executed.
The existence of the first deed was probably
not known to two of the trustees at the time
the last was executed, and must have been a
transaction solely between the appellant and
E. Livingston, to whom all knowledge of it
had been confined, and, of course, at the date
of the last deed it was not viewed by them as
an obstacle sufficient to prevent its operation,
the first deed never having been acted upon.
This is the most reasonable inference to be
drawn from the conduct o/ the appellant in
causing the last deed only to be recorded, be-
fore this controversy commenced, and remain-
ing silent as to the first deed, until after the
marshal's sale. The testimony of those who
attended that *sale conclusively sup- [*5O4r
ports the fact, as but one out o*f nine persons
who were present knew of even a suggestion
by the appellant that he claimed a right to the
premises under it; and the testimony of that
witness stands so directly impeached as to de-
stroy his credit altogether. The conversation
with the appellant, stated by Goodman to have
taken place several weeks before the sale, may
have alluded to the first deed of trust, but was
evidently never intended as an assertion of
right under it, and was accompanied with con-
duct and declarations on the part of the appel-
lant, repelling the idea of such an intention ;
and on the contrary, rather indicating a de-
sire to induce a purchase, than prevent a sale,
and is too indistinct and uncertain to establish
the fact of notice. It cannot be supposed that
he would exhibit maps and speak of the
peculiar advantages of those lots, with any
other object that to forward the sale. The
same witness also states that nothing was said
which was calculated to prevent his becoming
a purchaser. Had he intended to purchase,
he ought not to have relied on this loose con-
versation as proof of a parol notice.
Without, therefore, adverting to the objec-
tion that such notice is not in issue in this
cause, its sufficiency to destroy or invalidate
the printed notice might well be questioned.
Sugden, in his treatise of vendors and pur-
chasers of estates, in remarking on sales by
auction (page 21), says great care should be
taken to make the particulars and conditions
accurate, for the auctioneer cannot contradict
564
COURT OP ERRORS, STATE OF NEW YORK.
1814
them at the time of sale, such verbal declara-
tion being inadmissible as evidence. I do not
cite this to show that the rule on this subject
is inflexible. It may, perhaps, be correctly
departed from, in some cases, where the par-
ticular condition is equivocal, or where it is
undeniably proved that the purchaser had, in
the most explicit manner, particular personal
information given him of the incumbrance
previous to the day of sale. Such notice,
however, has not been satisfactorily brought
home to the respondent in this case. It was
incumbent on the appellant, in that conversa-
tion, explicitly to have asserted his claim ; and
the written notice published by him with the
other trustees, ought to have contained an
explanation, and an avowal of his pretensions
under first deed, without which his present
claim gives a fraudulent operation to the
565*] *notice, by misleading innocent pur-
chasers; and therefore, ought not to be toler-
ated even in a trustee.
I do not, however, believe that the appel-
lant intended fraudulently to conceal the first
deed at the time the notice was published. I
am rather inclined to think, as before stated,
that he considered it as an abandoned and in-
operative instrument.
Edward Livingston, the same grantor, ex-
ecuted this second deed for the same premises,
and the appellant accepted the trust with Os-
good and Gelston, with perfect knowledge
that no act had been done to prevent the
operation of it. He knew that the first deed
had lain dormant, and did not hesitate to join
in the publication of the notice ; no doubt, at
that time, with a bona fide intention of re
leasing to the purchasers any claim he might
have on the premises. His present claim, as
trustee, under the first deed, appears to be un
after-thought ; aad may, perhaps, have arisen
from the small amount for which the lots were
sold.
The conduct of the appellant and Edward
Livingston, having thus operated as a conceal-
ment of the deed of the 1st December, 1803,
and the trustees in the deed of the 24th De-
cember, 1803, having accepted the trust and
acted under it, so far as to publish the notice
promising to release the purchasers, at the
marshal's sale, on which the respondent must
have relied at the time, and the trusts in both
being substantially the same, the last deed
ought to operate as an extinguishment or sur-
render .of the trusts under the first deed ; at
least, so far as to prevent the appellant, in the
release required of him, to reserve any right
under it, contrary to the true interpretation of
the notice ; and, in the view I have taken,
contrary to his intention at the time of the
publication of it.
But it is said that if the appellant is obliged
to perform, he will be guilty of a breach of
trust. That is not so ; the notice published
by the assignees, promising to release to pur-
chasers, and inserted in the advertisement un-
der the fi. fa. became thereby a condition, in-
corporated in the sale, and cannot be a viola-
tion of the trust, but rather in furtherance of
the execution of it. It was, in fact, adopting
the marshall's contemplated, sale as their own
act ; for they might him their agent to sell
the property, a fact which this court are war-
264
ranted to presume, from the notice itself. His.
selling was in pursuance of the powers given
the trustees by the grantor ; which concur-
rence *in the sale, as their agent, was [*566
was not inconsistent with his duty as a mar-
shal, under the fi,fa., and the avails of the
sale being for the benefit of the cestuis que trust
it ought to be deemed an execution of the
trusts contained in both deeds. The making of
partition was only secondary.and subservient to>
the interest of the cestuis que trust; and being
under their control, it was competent to the re-
spondent to waive that. Having thus obtained
the right of those entitled to the beneficial inter-
est a consummation of the sale, according to the
conditions published by the trustees, cannot
be withheld, on the ground, that calling on
the appellant to release would be obliging him
to do an act in violation of his trust.
A sale made at auction, and under process
of law, ought not to be invalidated for mere
inadequacy of price, without additional cir-
cumstances to justify it. This principle is
stated by Lord Eldon, on the rehearing of the
case of WJiite \. Damon, 7 Ves., Jr., 34" and in
the case of Burrows v. Locke, 10 Ves., Jr., 474.
It is necessary to secure proper confidence on the
part of purchasers at sales of this description
and to render titles, if fairly obtained, certain,
and not liable to be impeached by the various
opinions as to its value. In the case now be-
fore us, no allegation of fraud appears. There
is no part of the respondent's conduct which
will warrant the suspicion of unfairness. He
was the highest bidder, in the presence and
hearing of the appellant himself, and of a num-
ber of other citizens, who might have enhanced
the price upon him, if they had been so dis-
posed. The respondent having thus correctly
obtained the marshal's deed for the premises,
with the knowledge of the trustees, and pur-
chased under their promise to release to him,
the appellant ought, in good faith, to execute
such release, without any proviso or condition,
which could not have subjected him to any re-
sponsibilities ; and this, according to the view
I have taken of the subject, it was his duty to
do as trustee. He, therefore, ought not to-
have refused to execute the release when ten-
dered to him, by which improper and unnec-
essary refusal he has made himself liable for
costs. My opinion, accordingly, is, that the
decree of His Honor, the Chancellor, be af-
firmed in all its parts.
VAN NESS, «/., was of the same opinion, ex-
cept as to the decree *being affirmed [*5<>7
with costs, which he thought ought not to be
allowed.
SPENCER, J., concurred in the opinion of
Mr. Justice Yates, that the decree ought to be
affirmed with costs.
THOMPSON, Ch. J., not having heard the ar-
gument of the cause gave no opinion.
SANFORD, Senator. My opinion is that the
decree of the Court of Chancery ought to be
affirmed. Without attempting to discuss the
cause at large, or to answer the various objec-
tions which have been made to the decree, I
will, with as much brevity as possible, state
the principal grounds of my opinion.
JOHNS. REP., 11.
1814
DUNHAM v. STCYVESANT.
567
If the deed of the 1st of December, 1808,
was ever valid at all, it appears to have been
waived, or relinquished, by the appellint, by
the public notice of the 12th of July, 1805,
subscribed by himself, Gelston & Osgood.
That notice was an engagement that the sub-
scribers would release alltheir right, title and
interest in the property, which was about to be
sold by the marshal, if it should be required
by the purchasers. It was also by fair con-
struction, an assurance that the assignees, sub-
scribing the notice, had no title or claim in
themselves, incompatible with that which they
engaged to release. It would not be supposed*,
by those who might read this notice, that
either Qelston, Osgood or the appellant had a
latent title, which would defeat not only the
marshal's title, but also their own joint title.
Such a supposition would be totally repugnant
to the tenor and nature of their engagement,
and would imply that they intended to prac-
tice a deception. It is too much to be sup-
posed that they promised one thing, in terms,
and at the same time made a silent reservation
of another, which would render the promise
ineffectual and useless. The notice clearly
implies that the assignees had no title adverse
to that which they promised to convey. If
either of these assignees had any separate
claim, or latent title, which he desired to re-
tain, it was his duty to reserve or except it ex-
pressly, in the written notice. It would be
against all equity and justice, that one of them
should now set up a claim not disclosed in the
notice, though then existing, and totally de-
f»<J8*] structive of the title *which he en-
gaged to convey. I, therefore, regard this
public notice as a declaration by the assignees,
that they, or either of them, had no claim to
the lands of Edward Livingston, inconsistent
with their own title as assignees. The appel-
lant must be bound by this act; and cannot,
afterwards, set up a latent title, which he did
not then assert.
The objection of inadequacy of price is not
applicable to this case.
The court being unanimously of opinion
that the decree of the court below ought to be
affirmed, it was, thereupon, ordered, adjudged
and decreed that the decree of the Court of
Chancery be, in all things, affirmed ; and that
the appellant pay to the respondent $100,
for his costs and charges in and about his
defense in this court, and that the record be
remitted, &c.
Judgment of affirmance.
Distinguished— 1 Johns. Cb., 515.
( IUtlin-3 Johns. Ch.. 292; 10 Paige, 488 ; 10N.Y.,
407 ; 82 Barb., 289 ; 3 How. Pr., 207 ; 39 Super.. 532.
569*] *DAVID DUNHAM AND DANIEL
D. TOMPKINS Plaintiff* in Error,
PETER G. STUYVE8ANT, Defendant in
Error.
Pouettion — Parol Admurion* and Declarations
not Sufficient to Change Pot»e*sion — /* Neeet-
tary in Order to Maintain Tretpatt — Bounda-
riet.
The land* of A and B were separated by a crooked
fence, and A showed to B the two extreme points
JOHNS. REP., 11.
of a division line, and declared that the boundary
line between them was straight, and consented to
its being so run. B caused a straight line to be run
between the two points showed to him by A, and
erected another f<-tu-i- thereon, which included some
luiul which bad been in the possession of A, and bis
ancestors, for more than 25 years. While the sur-
veyor wtcs rimninK the straight line, A made no ob-
jection to it; but before the fence was erected upon
it. he gave notice to B to desist, and forbade the
erection of it ; and after it was put up. A caused it
to be pulled down : on which B brought an action
of trespass against him ; and it was held that the
parol declarations or admissions of A were in >t suf-
ficient to change the possession, and that B could
not, therefore, maintain trespass.
THIS cause came before this court on a writ
of error from the Supreme Court. For
the facts in the case, and the judgment of the
court below, see Vol. IX., p. 61.
Mr. T. A. Emmet, for the plaintiffs in error,
contended that if the possession of the defend-
ant was not adverse, it was a mere tenancy at
sufferance, which was put an end to by the en-
try of the plaintiffs. But a possession like
that of the defendant, gained by mere inad-
vertence, for the mere convenience of erecting
fences, or, perhaps, by the understanding of
both parties, could not be deemed adverse. To
constitute a bar to the plaintiffs' right of re-
covery, the possession must be adverse at its
commencement, and continue so uninterrupt-
edly for twenty-five years. (1 Johns., 186.)
The crooked fence, in the present case, was
never put up as a boundary between the par-
ties, or to mark the limits of their respective
titles ; but was erected merely to keep out cat-
tle. The defendant's willingness to have a
straight line or fence run between him and
the plaintiffs shows that his possession was
never intended to be adverse.
Where an adverse possession is relied on,
there must be evidence of an actual ouster. (2
Esp. Dig., Eject., 9 Cowp., 217.) Now, here
never was any ouster, or possession held
against the will of the defendant.
Again ; the parol admissions of the defend-
ant were not admitted in evidence to change
the possession, but merely to show what the de-
fendant considered the extent of the true title.
The consent of the defendant that a straight
line should be run, and the plaintiffs putting
up the fence accordingly, fixed the right of the
plaintiffs to the locus in quo, so that they might
bring trespass.
*The confession of a party, as to [*57O
boundary lines, does not relate to the title it-
self, but merely to the extent of such title.
The admission of such evidence does not inter-
fere with the statute of frauds, nor render titles
insecure. There was written or documentary
evidence of the title. The confessions, or
parol evidence, related solely to the boundary
line.
The lufiix penitentia is not piven to a party,
in regard to his admissions or confessions ;
but exists only as to contracts or under-
takings.
The notice given bv the defendant to the
Elnintiffs, or his forbidding them to put up the
?nce, was nugatory, unless he had a title to
the land beyond the fence. He admitted the
true line to be a straight one, and consented to
its being so run. He was, then, only a tenant
at sufferance ; and that tenancy was deter-
mined, by the plaintiffs' erecting the fence ac-
•M
570
COURT OP ERRORS, STATE OF NEW YORK.
1814
cording to the line run by the consent of the
defendant.
Mr. D. B. Ogden, contra. This was not an
action of ejectment, but trespass quare clausum
Jregit; and it was necessary for the plaintiffs
to show an actual possession at the time. It is
expressly stated in the case that the defendant
was in the actual possession and occupancy of
the locus in quo, or land, on which the sup-
posed trespass was committed. Though parol
•evidence, as to confessions or declarations rela-
tive to boundary, is sometimes admitted in
actions of ejectment, yet it is never received in
actions of trespass,
It is admitted by the counsel for the plaint-
iffs'that parol declarations or confessions can-
not be received to change a possession, but that
the putting up of the fence did change it.
Yet the defendant forbade the erection of the
fence. Such an act, therefore, never can be
allowed to change the possession.
Mr. Emmet, in reply, insisted that a posses-
sion by the plaintiffs, anterior to the act com-
plained of, was sufficient. Until the fence was
•erected, the defendant, being a tenant at suf-
ferance, was in actual possession; but that ten-
ancy was to put an end to by the plaintiffs,
and that with the consent of the defendant;
and they took possession and erected their
fence. "So the plaintiffs only were in actual
possession at the time of the trespass.
A tenant at sufferance has no right to forbid
571*] his landlord to *make alterations or
improvements. The consent of such tenant is
not necessary or material.
P. W. RADCLIFF, Senator. Concurring in
the opinion of the Supreme Court, and the
reasons assigned for it, I shall merely add,
that, however proper the facts relied on by the
plaintiffs, and the arguments deduced from
them, might be in an action of ejectment to
recover the possession, or on a writ of right to
try the title, it is impossible that they should
avail them here. It is expressly stated in the
bill of exceptions, not merely as a fact set
up and attempted to be proved on the trial,
tut as actually proved and.eetablished, that, at
the' time the alleged trespass was committed,
the defendant was "in the actual possession" of
the place in question. Now, it is settled law,
and admitted by the plaintiffs' counsel on the
argument, that to maintain trespass the plaint-
iffs must be in possession. The fact here is
precisely the reverse.
Nor can it be allowed to the plaintiffs to get
rid of the effect of this fact, by saying that
the bill of exceptions was taken by the defend-
ant, and that they had no agency in preparing
it. Whether reduced to form on the trial or
not, they had equally an opportunity to be
Leard before it was sealed ; and it can make no
difference which of the parties prepared it for
the approbation of the judge. But be that as it
may, the bill contains a statement of facts for
the court to pronounce upon ; and upon those
facts, the Supreme Court were clearly right in
reversing the judgment of the court below.
YATES, Senator, was of the same opinion
SANFORD, Senator. The defendant's pos-
session, according to an actual boundary, had
been long clear and adverse. If his declara-
tions are viewed as an absolute acknowledg-
ment that the fence, or existing line, was
erroneous, and that the line of division ought
to be straight, still they cannot be considered
as a relinquishment of the possession held ac-
cording to the existing line. To consider
what was said by the defendant as amounting
to an abandonment of his possession, or to an
admission that he held as the tenant of others,
would be to give to his declarations an exposi-
tion quite beyond their obvious meaning.
*The defendant's declarations and con- [*572
duct, however they might affect his title, do
not import any admission that he held under
any other title than his own, or any relinquish-
ment of his ancient possession. That posses-
sion, therefore, continued, and he was not lia-
ble to an action of trespass. I am, accord-
ingly, of opinion that the judgment of the Su-
preme Court ought to be affirmed.
ROOT, Senator, was of opinion that the judg-
ment of the Supreme Court ought to be re-
versed.
ELMENDORF, Senator, was of opinion that
the judgment of the Supreme Court ought to
be affirmed.
VAN BUREN, Senator, said that there was a
question deserving of consideration, whether
there was a tenancy at sufference by the de-
fendant ; that, in his opinion, the relation of
landlord and tenant never existed, at any time,
between the parties ; and that the judgment of
the court below ought to be affirmed.
This being the opinion of the other mem-
bers of the court, it was thereupon ordered
and adjudged that the judgment of the Su-
preme Court be, in all things, affirmed, &c.
Judgment of affirmance.
Affirming— 9 Johns., 61.
Cited in— 15 Wend., 645 ; 46 Super, 286.
* AMBROSE SPENCER, Plaintiff in [*573
Error,
SOLOMON SOUTH WICK, Defendant in
Eii-or.
Libel — Pleading — Departure — Demurrer — Goes
back to First Defective Pleading.
To a declaration for a libel, charging that by
hypocritical cants, &c., the plaintiff and his asso-
ciates effected the incorporation of the Manhattan
Bank, in which the plaintiff's share of the profits
was several thousand dollars, and that the plaintiff,
as a member of the Senate, advocated the bill, en-
titled " An Act for Supplying the City of New York
with Pure and Wholesome Water," knowing- that it
contained a clause authorizing the Company to
carry on banking- business, and when he knew that
the other members of the Legislature were ignor-
ant of that fact, &c., the defendant pleaded in justi-
fication that the plaintiff was a Senator, &c., on the
2d of April, 1798, that such a law was passed, and
averred that, at the time of passing the said law,
to wit : the 1st of April, 1798, the plaintiff, as Sena-
tor, advocated and supported the bill, knowing at
the time that it contained such clause, &c., and that
a large majority of the other members of the Legis-
lature were ignorant of that fact, &c., and that at the
time and place first above mentioned, the plaintiff
held and was owner of a large portion of the stock
JOHNS. REP., 11.
1814
SPENCER v. SODTHWICK.
573
created by the said law, to wit : $5,000, *c., all which I
acts of the plaintiff were hypocritical and decent- >
Ive, and contrary to his duty as Senator, Ac. The •
plaintiff replied that at the time he advocated the
said law, as a Senator, he did not hold, and was not ;
owner of any stock created by it, nor had he any in- i
terest whatever in the stock, &c. To this replica- ,
tii in the defendant demurred, and judgment was i
jrivi-ii in the Supreme Court in favor of the demur- |
n-r, and on a writ of error being1 brought into this
i-'Mirt, it was held that the plea was bad, as not be- |
Ing mi answer to the declaration, and that the first
fiiult in pleading ha\ inir been committed by thede- i
t'-iL'l.mr. tin- plaintiff was consequently entitled to
Judirment.
rpHIS cause was brought before this court on
-L a writ of error from the Supreme Court.
It was an action for a libel, and judgment
was given in the court below, on a demurrer
to the replication.
For a statement of the pleadings, and the
j i i.luine nt of the court below, see Vol. X., p. |
259, of these Reports, and also the same case
on a demurrer to the plea, Vol. IX., p. 814.
Mr. Woodworth, for the plaintiff in error, |
contended that the libel set forth contained
three distinct charges of matter libelous, but j
that the plea answered one only:
1. That the plaintiff effected the incorpora- i
tion of the Manhattan Bank, l>y hypocritical
•cants and deceptive practices.
•J. That, at the time, the plaintiff had an ex-
isting interest in the incorporation.
3. That the plaintiff attempted to deceive
the public bv hypocritical cants, &c., in the
prospectus of Brown's newspaper, of which
the plaintiff was alleged to be the author.
1. The libel does not charge the plaintiff
with omission of his duty, as is set forth in the ;
plea, but with committing acts of deception, '•
in effecting the incorporation of the Bank ; i
ami to establish this charge, the libel sets forth
the plaintiff's alleged pretense of religion, in
order to effect his objects, as in the preamble i
to the Act of Incorporation, and the defendant
adds, " the deception succeeded." He proceeds
further to say that the same deception may
succed in the circulation of a newspaper, j
most clearly showing that the defendant meant
• 574*] to charge the 'plaintiff with actively i
practicing deception, and not merely with an i
omission to give information to the Senate. !
An omission of a duty can never justify a •
charge of an act of commission or of practicing
deception or fraud.
•2. The bare reading of the libel manifestly i
< »ii veys the idea that the plaintiff held some!
interest in the Bank at the time of effecting its ;
incorporation; the fact of interest in the Bank,
and deception in promoting its incorporation,
are stated as concurrent in point of time. The
mention of profits, also, shows further the
charge of an existing interest, without which
there could be no profits. To say that the de-
fendant did not charge or mean to charge the
plaintiff as having an existing interest in the
!'• ink, is to say that he acted basely, but dis-
interestedly, or without motive. But further.
this meaning is illustrated by the defendant's
Kiilixequent remark in his libel, that this
deception (that is. in the prospectus to the
newspaper) will not put so much money in the
j mice's pocket as in the case of the Bank.
Here the charge is clear and explicit, that
money was the motive of the plaintiff for vot-
ing for and advocating the incorporation of
JOHNS. REP.. 11.
the Bank. Such seems to have been the un-
derstanding of the charge by the court below,
when the cause first came before them on a
demurrer to the plea, for the Chief Justice
states this to be the gist of the libel.
8. There is a distinct charge in the libel,
which is not taken notice of nor answered by
the plea, that is, the assertion of deception in
the prospectus to Brown's newspaper, of which
the plaintiff is held up as the author. This
was clearly libelous, as being contumelious,
and calculated to bring the plaintiff into con-
tempt. (8 Wife., 403; 1 Bos. & Pull., 831 ; 9
Johns., 215.) This the defendant, in his
plea, has not attempted to answer. If a plea,
professing to answer the whole declaration,
answers only to part, it is bad on demurrer.
(Cro. Eliz., 174 ; 1 Chitty's PI.. 510.) If, then,
there be more than one libelous charge, there
ought to have been judgment for the plaintiff
on the demurrer, for it is an established rule
that, on demurrer, judgment must be given
against the party who commits the first fault
in pleading.
There is no answer in the plea to the second
and third charges, which have been distinctly
stated. The plea only answers, by saying the
plaintiff omitted to inform the Senate "of what
he knew the Senate 'were ignorant, and that he
owned stock in the Bank. The court below
considered this an answer to the first charge
of hypocritical cants, «fcc., in the preamble to
the Act. *It is a neglect of duty for [*575
a member of the Senate not to rise and dis-
cuss a measure proposed ; but it is quite dif-
ferent from committing positive acts of decep-
tion, as charged in the libel ; and proof of a
mere negtect of duty can never justify a charge
of a positive commission of an improper act.
There is nothing material in the plea except
the charge of having an interest in the stock at
the time. This was all, if proved, that could
justify the libel, and on this point the plaint-
iff was willing to join issue. The defendant
then takes the new ground of an interest ex-
isting subsequently, in April, and the plaintiff
then tendered an issue on this only remaining
fact, and the defendant demurred.
The court below on considering this demur-
rer, assume this new position, and do not un-
derstand the plea as importing an existing in-
terest at the time the plaintiff advocated the
Act of Incorporation, and decide that the plea
does not necessarily put the point in issue.
A replication must not be multifarious, but
must tender an issue upon a distinct and ma-
terial fact. (1 Saund., 838 ; 1 Burr., 317 ; I
Wife., 889; 8 Caines, 160.) This the plaint-
iff has done. He tendered an issue on the
only material fact in the defendant's plea,
unless the day or time in April is material.
The essence of the plea being, that the defend-
ant had an interest at the time of passing the
Act, the day in April, mentioned in the plea,
was not material. If time or place, when not
material, arc traversed, the opposite party may
demur. (1 Chitty's PI., 587; 1 Johns., 457";
2 Snund., 818, ». 6.)
If the day in April was material, then ad-
vocating the incorporation of the Bank could
not be criminal, or justify the libclous charges ;
and if the day is immaterial, then the replica-
tion is good. * A
575
COURT OP ERRORS, STATE OF NEW YORK.
1814
Mr. Foot, contra, contended that the third
charge, stated by the counsel for the plaintiff as
contained in the libel, was not a subject for
the consideration of this court, for the court
below took no notice of any such charge. The
plaintiff complained only of being libeled as a
Senator, and in regard to his conduct, in rela-
tion to the incorporation of the Manhattan
Bank. Still, if this third charge could be ex-
amined here, it is impossible to make out
that the defendant has charged the plaintiff
with being the author of the prospectus. It is
only that, from the similarity of the cants used,
in getting the Bank incorporated, and in es-
576*] tablishing *the newspaper, that the de-
fendant says the plaintiff may be considered as
the author. Where a charge is made with
reference to the ground of the charge, if the
ground stated con tains no libelous matter, then
the charge, by reference or relation to it, can-
not be libelous.
The only charge, then, made by the defend-
ant against the plaintiff, is that of hypocrisy
and deception, and speculation or receiving
profits from such deception. The very pre-
amble to the extraordinary bill incorporating
the Manhattan Company, and the short and
unusual clause, whereby a banking power is
given, sufficiently show the hypocrisy and de-
ception practiced. The words in the pleading,
that the plaintiff had no actual or existing in-
terest in the Bank until the day named in
April, and not denying his having knowledge
of the effect of the banking clause, or of his
having shares when the Bank went into opera-
tion, clearly admits that a prospective interest
existed.
By existing interest is not meant profits, or a
benefit received at the time the plaintiff was
endeavoring to effect the object and secure the
profits ; but that profits or benefits had accrued
to the plaintiff some time before the charge ;
that the plaintiff had received profits or bene-
fit, in consequence of his management, in re-
gard to this incorporation.
The plea contained two propositions : 1.
That the plaintiff had good reason to believe
that his fellow Senators did not know of the
banking power contained in the bill ; and, 2.
That the plaintiff well knew their ignorance.
The plaintiff had an opportunity of traversing
both these facts, but he thought proper to de-
mur.
The replication sets forth that, at the time
of advocating the bill, the plaintiff did not
own any stock created by that bill — a fact
which no person ever imagined, and which
was impossible. If the replication had stated
that the plaintiff had no interest or expectation
of interest, in regard to stock to be created by
the bill, it would then have presented a proper
issue. As it stands, the defendant was obliged
to demur to it.
Mr. T. A. Emmet, in reply, insisted that,
from the tenor of the whole libel, it plainly
conveyed the idea that there was, at the time
the plaintiff advocated the bill, some interest,
whether stock or any other thing made no dif-
ference, which became fixed and certain, by
the very act of passing the bill, and from
577*] which the *profits were, by that act,
to be realized. What the defendant charged,
in respect to the prospectu*of Brown's paper,
268
independent of the other parts of the publica-
tion, was, of itself, a gross libel ; and the
charge of hypocritical cants was clearly a
libel. (Hick's case, Hob., 215.) To the decla-
ration the defendant has put in no general is-
sue, though his plea purports to be an answer
to the whole. It takes no notice of the charge
as to the prospectus of Brown's paper, or that
of "hypocritcal cants."
Again, the plea does not set forth that the
plaintiff, or that he and his associates, did ef-
fect the incorporation of the Bank. Nor is it
pretended in the plea that the plaintiff was, in
any way, concerned in framing the preamble,
in which only, it is alleged, the hypocritical
cants are to be found. There is, then, a justi-
fication on the ground of concealment, when
there is no such concealment mentioned in the
libel complained of.
Again, the plea contains a negative preg-
nant ; as it is averred that the plaintiff did not
publicly make the banking power in the bill ;
thereby leaving it to be inferred that he did it
privately, or to some of his friends ; which
would not justify the charge of hypocritical
cants or concealment of the powers contained
in the bill.
Forbearing to proclaim, or make known
publicly, all the powers and effects of a bill,
does by no means imply neglect of duty, much
less misconduct. It may often be not only
proper, but commendable, to forbear mention-
ing all that a person knows or believes with
respect to a proposed measure.
The averment in the plea is not susceptible
of a reply. That the plaintiff "had good rea-
son to believe, that he well knew that a large
majority," &c., is so loose and uncertain, that
no issue could be joined on it.
But the principal point is the charge of in-
terest : and that the interest imputed in the
libel was existing at the time, is the opinion of
the court below. (10 Johns., 259.) Nay, the
perusal of the libel suggests an interest, either
existing in fact, or in expectation or promise,
at the time ; and this is the cause of the action
brought by the plaintiff. But the plea has •
fixed the interest as existing at the time. It
avers no expectation, or any interest in pros-
pect ; and no issue could be taken on that
averment. This course of pleading clearly
fixes the meaning of the libel to be a charge
of an existing interest, at the time of advocut-
ing the bill ; for it must have meant one kind
of interest, *or the other. Besides, if [*578
no interest was charged in the libel, no crim-
inality could be implied.
On the demurrer to the plea (9 Johns., 316),
the opinion of the Supreme Court was, that
the charge in the libel was of an existing inte-
rest at the time. On the demurrer to the rep-
lication, afterwards (10 Johns., 259), the court
decided that such interest was not necessarily
to be inferred from the libel. This was un-
fortunate for the plaintiff, who, having pur-
sued the decision of the court on the first de-
murrer, was met by a contrary opinion on the
second. This difference of opinion was found-
ed on the difference between the 1st and 2d
days of April. That was immaterial. The
fact was laid under a videlicet ; and the time
was not traversable ; no issue could arise on
the day. If the point or material matter is
JOHNS. REP., 11.
1814
SPENCER v. SOUTHWICK.
578
pleaded directly and clearly, it is good, with-
out days or particular times. The mention of
the time of passing the law is certainty to a
common intent, which is sufficient. The
words "when the law was passed," "at the
time of passing the law," must mean the same
thing as to the time.
As to the impossibility of the plaintiff's hav-
ing an interest in the stock created by a law
not yet passed, there is nothing so very absurd
in the idea. It is proper and usual for the ap-
plicants for such a bill to say that they have
an interest in the stock to be created by it,
whether the bill succeeds or not ; and those
who advocate the bill might have the same in-
tcrc-t.
In any event, however, the plaintiff in error
must succeed ; for, if the averment be as he
conceives it, the demurrer to the replication is
not well taken ; and if it be as the defendant
supposes it, then the plea is bad, and the
plaintiff must have judgment.
Tin. CHANCELLOR (Kent)1 said, that as this
cause must be decided on tbb grounds dis-
cussed in the Supreme Court, when he pre-
sided in that court, he should decline giving
any opinion here ; nor should he give any
opinion in any cause decided before him in
that court.
LKWIS, Senator, was of opinion that the
judgment of the Supreme Court ought to be
reversed.
579*] *SANFORD, Senator. The allegations
of the parties having terminated in a demur-
rer, the sufficiency of each one of the plead-
ings is drawn in question. The pleadings
must, therefore, be examined ; and the first of
them which shall be found to be insufficient,
must determine the cause against the party
whose allegation it is.
The action is for printing and publishing a
libel, which is set forth in the declaration.
The first step, in the consideration of the
cause, will be to fix, as clearly as may be, the
true sense and meaning of the libel.
The libel appears to me to contain two ac-
cusations against the plaintiff. One is, that
while he was a member of the Senate, he, with
others, deceptively effected the incorporation
of the Manhattan Bank, by which he made a
pecuniary profit to himself. The other is,
that the plaintiff was the father or author of a
certain public prospectus, which contained an
assurance that a considerable portion of a
newspaper, therein mentioned, should be de-
voted to the support of religion, and that this
: ;ince was hypocritical and deceptive. In
fewer words, one is a charge of corrupt con-
duct in the plaintiff, as a Senator, and the oth-
<-r U !i charge that he attempted to deceive the
I'uhlic, in respect to a certain newspaper. For
tin- purpose or reference, I will denominate the
former the first, and the latter the second
charge.
How far are these charges connected, and
how far are they distinct ?
It is said that the charge that the plaintiff
was the author of the deceptive prospectus, is
1.— He was appointed Chancellor the 26th of Feb-
ruary, 1814.
JOHNS. REP., 11.
stated merely as an inference, resulting from
facts which are alleged ; and hence, that the
second charge is absorbed or embraced in the
first. This construction is not the sense of the
libel. The obvious meaning of the writer is
to declare that the plaintiff was the author of
the prospectus. It is true that this charge is
not expressed in such terms as might be used
in stating the fact in an indictment ; but it is
clear that by various expressions, and by the
tenor of the whole paragraph, the plaintiff is
charged to have been the author, writer or
father of the prospectus. It is not necessary
to inquire whether this charge might be ex-
pressed in terms stronger, or more precise. If
the meaning of the writer be clear and intelli-
gible, it is enough. It is the duty of courts of
'justice to understand libels as they [*58O
are understood by the rest of mankind. I can-
not read this paragraph without understanding
the writer to mean that the plaintiff was the
author of the deceptive prospectus. Indeed,
the main object of the paragraph appears to
be to declare that he was the author. It is
true that the plaintiff's conduct, in respect
to the Manhattan Company, is represented as
an argument in support of the writer's asser-
tion concerning the prospectus. This argu-
ment, considered as a deduction from premises,
does not appear to be at all a necessary infer-
ence, since a man may practice hypocrisy and
deception in one instance, and not in another.
But the second charge is not stated simply as
an inference resulting from the first. It is
clearly stated, as a fact, that the plaintiff, as
the father of the prospectus, had, in that re-
spect, practiced hypocrisy, and attempted de-
ception!
The conduct of the plaintiff, as a Senator,
is stated as a fact, which had happened long
before his deceptive prospectus. The incor-
poration of the Manhattan Bank, and the acts
of the plaintiff, in respect to that Company,
are facts which have no connection with his
attempt to deceive the public, on the subject
of the newspaper. It is charged, indeed, that
hypocrisy and deception had effected the incor-
poration of the Manhattan Company, and that
they were again employed to effect another
object. But the occasions upon which hypoc-
risy and deception are alleged to have been
practiced, and the purposes for which they are
charged to have been used, are totally uncon-
nected and distinct. The transactions alleged
to have taken place are distinct in their own
natures, and are separated by' time. The two
charges appear to be brought together by the
writer, for the purpose of illustration, but this
conjunction cannot alter the nature of the facts
stated. In such a position, the two charges
may give shade and coloring to each other, but
each nas its own body and substance. Such
a connection may aggravate, but it cannot
diminish the libelous force of each separate
charge.
It may be said that the imputation against
the plaintiff is that of hypocrisy and deception,
under pretense of religion. This general state-
ment of the charge would fall far short of the
libel. The libel states two particular instances
in which hypocrisy and deception, under the
pretense of religion, were practiced *by [*58 1
the plaintiff. The sting of the libel lies in these
581
COURT OF ERRORS, STATE OF NEW YORK.
1814
specifications. A general charge of hypocrisy
and deception would make very little impres-
sion. But when specific instances of imposture
are distinctly alleged) the world listens with
attention, and form their opinion, not upon
general terms of opprobrium, which may
attend the specification, but upon the particular
facts to which their attention is drawn. It is,
perhaps, indifferent to the object of this inquiry,
whether the particular facts alleged are con-
sidered as specifications of a general charge, or
the general charge is considered as a deduc-
tion from the particular facts. In either view,
it is evident that the libel consists mainly and
essentially in the particular facts stated.
The object of the deceptive prospectus was
to give currency to a newspaper ; but the par-
ticular object to be attained by the newspaper
is not stated; and it is stated that it was yet to
be determined how far the deceptive attempt
would succeed. Hence, the second charge
falls far short of the first in the turpitude
which it imports.
The second charge is, still, clearly a libel.
Hypocrisy and deception, always odious, be-
come so, in the extreme, when religion is
made the pretense. An attempt to deceive the
public, for any purpose whatever, either by
matter published in a newspaper, or by a pros-
pectus, issued from the press, is highly flagi-
tious ; and it is still more so, when the author
of the attempt adds impiety to fraud, by
assuming the pretense of religion. Though
the two charges against the plaintiff differ in
the degrees of scandal which they import, they
are both scandalous, and each of them amounts
to a libel, or a libelous accusation.
In every view, therefore, which I can take of
this paragraph, it appears to me to contain two
distinct charges against the plaintiff, each of
which is scandalous and libelous.
I perceive that what I have denominated the
first charge in the libel embraces several topics,
and may, perhaps, be considered as constituting
more charges than one. The view which I
take of the cause, in its present state, renders
it unnecessary to propose or to discuss any
such discriminations. The ground upon which
I shall place my opinion is, that the second
charge is plainly distinct from the other matter
of the libel, and equally so, whether the other
matter is considered as constituting one accu-
582*] sation *or several. My object has been
to define the second charge, and to describe it
as distinct from, the other matter of the libel.
Such appearing to-be the sense of the libel, I
proceed to the pleadings. It will be most con-
venient to examine them in the order in which
they took place.
The plaintiff, in his declaration, complains
of the whole libel. The libel is recited in the
declaration at large, and without selection or
discrimination of any particular part ; and the
plaintiff alleges, that by reason of the printing
and publishing of that libel he has sustained
injury. The declaration, therefore, demands
redress for everything contained in it which
may amount to a libel.
The declaration, indeed, appears to put for-
ward the first charge as the^principal ground
of complaint. It does not, however, state the
first charge as the sole ground of complaint.
Everything constituting the second charge is
270
sufficiently alleged ; and there is nothing in
the declaration which relinquishes the second
charge, or confines the plaintiff's demand to
the first. Indeed, there is nothing in the declar-
ation which confines the plaintiff's claim to
redress to any particular part of the libel. On
the contrary, he complains of the whole libel
as it is ; and in the concluding part of the
declaration, in which it is usual to state, briefly,
the injury resulting from the preceding facts,
he expressly alleges that his grievance, in this
case, arises from the libel, and libelous matter
before stated, comprehending the whole.
The innuendoes, or averments of meaning,
cannot vary this view of the declaration. The
proper object of an innuendo'^ to give certainty
to something uncertain in the libel ; but an
innuendo cannot be used to vary the meaning
of the libel, or to give it a construction, where
the meaning is clear upon the libel itself. In
this case, averments of meaning are applied to
the libelous matters, constituting the second
charge, as well as to those constituting the first.
These averments of the plaintiff are inserted in
his declaration5? or the purpose of giving to the
libel formal precision and legal certainty.
They are not used or intended to restrict the
cause of action ; nor can they be construed to
remit or relinquish anything plainly actionable
in the libel. The innuendoes applicable to the
first charge cannot, therefore, be considered as
limiting or remitting the right *of ac- [*583
tion resulting from the second charge ; es-
pecially when the second charge is, itself,
attended with other innuendoes, and all which
are necessary to give it certainty, and applica-
tion to the plaintiff.
No objection was made to the declaration at
the hearing of the cause. It appears to be in
the form usual in such cases, and I consider it
sufficient.
The declaration must be answered by a suf-
ficient plea. As it contains two libelou&
charges, both must be answered.
The plea, in this case, contains no matter
whatever which can be considered an answer
to the second charge. The matters stated in
the plea relate altogether to the Manhattan
Company, and the plaintiff's conduct and in-
terest in that affair. There is no answer
whatever to the charge that the plaintiff was
the father of the deceptive prospectus concern-
the newspaper.and that he practiced hypocrisy,
and attempted to deceive in that respect. The
plea contains no answer, direct or indirect, to
this charge, and does not even attempt to an-
swer it. The libelous matter constituting the
second charge is.therefore, totally unanswered,
and the plea is. for that reason, "insufficient in
substance. .
This objection to the plea being fatal, it is
unnecessary to consider the plea as an answer
to the first charge, or to examine the replica-
tion. My opinion is that the judgment of the
Supreme Court ought to be reversed, and the
cause remanded for further proceedings.
P. W. RADCLIFF, Senator. Although the
parties were at issue in the court below, upon
a demurrer to the plaintiff's replication, yet
the rule in such case being that judgment must
be given against him who committed the first
error, it is necessary to examine the previous
JOHNS. REP., 11.
1814
SPENCER v. SOUTHWICK.
58$
pleadings, in order to determine where the first
error lies.
The libel on which the action is founded
charges, among other things, in substance,
that the plaintiff was guilty of hypocrisy and
deception in the performance of his trust as a
Senator ; and that, whilst such Senator, he, in
conjunction with others, his associates, by
means of hypocritical cants and pretenses, ef-
fected the incorporation of the Manhattan
Hank No question is made as to the charac-
f>84*] ter of these charges, or *the construc-
tion put upon them by the plaintiff. They
are clearly libelous, and they are correctly set
forth and interpreted in the declaration.
The defendant undertakes, by his plea, to
justify the whole ; and having done so, he is
bound to answer every part that is material,
or the omission is fatal. In order to determine
whether he has thus answered, in respect to
these particular charges, let us ascertain the
facts and averments contained in the plea, and
relied on for justification. Stripped of such
words as, for this purpose, are superfluous,
they are simply these ; that, at the time in
question, and while the plaintiff was a mem-
ber of the Senate, a certain law was passed,
the preamble and first section of which are set
forth at length ; that such law contained a
clause authorizing the Company thereby in-
corporated to establish a Bank; that the plaint-
iff, well knowing that it contained a clause of
that nature, advocated and supported it ; that
not more than ten members of the Legislature
. were aware of its conferring any such author-
ity ; that the plaintiff well knew that a large
majority of the members were totally ignorant
of it, and that he did not, " in a public manner,
publish and make known to the members of
the Senate all the powers granted by the said
law, as it was his bounden duty, as a Senator,
to do."
Which* of these facts or averments can be
considered as justifying the charges above
stated? The only one which has any bearing
upon the question is that with which the plea
concludes, ami to which all the other matter it
contains is merely inducement — the omission
to disclose to the Senate the import of the law
referred to. The charges in question, it will
be observed, however, are not confined to
mere omission or neglect of duty. They con-
vey the imputation of positive misconduct,
and require, to satisfy them, something more
than simply abstaining from the performance
of duty. The neglect or omission of duty
may, undoubtedly, under circumstances, be
quite as culpable, and involve as much moral
turpitude as the commission of crime. But
still, the offenses are different. To effect an
object, as is alleged to have been done in this
:nstance, by hypocritical cants and deception.
in surely a very different thing from omitting
to do what duty or propriety may require.
The one implies actual affirmative agency, the
A8A*] other supposes mere inaction ; *the one
imputes positive fraud, the other culpable neg-
lect ; and differing as they do in their na-
ture and import, it is impossible that the alle-
gation of one can be supported or justified by
proof of the other. Whether, therefore, it
was or was not the plaintiff's duty, under the
circumstances stated in the plea, to disclose to
JOHNS. RKP., 11.
the Senate the fact alleged to have been with-
held, a question upon which there would pro-
bably be no diversity of opinion, the omission
to make such disclosure affords no justifica-
tion for the allegations which have been made.
It has been argued that the preamble to the
bill contained the "hypocritical cant," and
that, in supporting it with that preamble and
the banking clause, consisted the deception.
The answer is: 1. That the preamble was
itself a part of the bill, the whole of which
(as well the preamble as the rest) the plaintiff
is alleged, in the manner ascribed to him, to
have aided in carrying through. This cant
and deception, therefore, even if the plaintiff
had an agency in forming the bill (which is
not averred), must necessarily have been en-
tirely debtors the bill, and have'consisted in lan-
guage and conduct wholly distinct from, and
unconnected with, the preamble ; and, 2. The
plea docs not put the defense on any such
ground. It merely states the passing of the
bill, containing, among other things, the pre-
amble and banking clause, the plaintiff's sup-
porting it, with knowledge of its contents, •
the ignorance of other members of the Legis-
lature, and the neglect of the plaintiff to in-
form them of what he ought : putting the
whole defense, so far as the charges of hypoc-
risy and deception are concerned, upon the
neglect of duty in not informing. Neither
can the defendant's averment, at the conclu-
sion of the plea, "that all these actings and
doings of the plaintiff were hypocritical and
deceptive, and contrary to his duty as a Sena-
tor," remedy the defect, this being merely an
inference from the facts previously stated (of
which the court must judge), and not a sub-
stantive allegation of any further fact in justi-
fication of the libel. On this ground, there-
fore, the omission to justify a material part of
the libelous matter complained of, the plea is
bad, and the plaintiff entitled to judgment.
But, passing by this ground, and admitting
for the moment that concealment, or omission
of duty, would, if properly pleaded, be a suf-
ficient justification of the charges in question,
there *is still a defect in the plea, which [*58O
in my opinion, is equally fatal- It is nowhere
averred that the plaintiff did conceal, or omit
to disclose the fact, that the obnoxious power
alluded to was contained in the bill. It is
merely alleged, that he did not publish and
make known "all the powers granted to the
Company by the aforesaid law." Now he may,
for aught that appears in the plea, without
publishing all the powers granted to the Com-
pany, have still disclosed and made known the
very fact in question ; and thus the plaintiff
may, in this respect, have been perfectly
blameless, and the defendant's plea literally
true. And again: the averment above men-
tioned does not even negative the fact of a full
and fair disclosure of ail the powers granted
to the Company ; it merely alleges that the
plaintiff did not, "in a public manner, pub-
lish and make them known to the Senate ;"
thus, not only leaving room for the possibility
that he might, in some other manner, have
made the disclosure, but even, by a negative
pregnant, plainly importing that he actually
did so.
The plea being, for these reasons, bad in
271
586
COURT OP ERRORS, STATE OF NEW YORK.
1814
substance, it is unnecessary to examine the rep-
lication.
TJie judgment must, therefore, be reversed, and
the cause remanded for further proceedings.
ROOT and HUBBARD, Senators, concurred.
VAN BUREN, Senator. This is an action
for the publication of a libel, brought against
the defendant in the Supreme Court. The
declaration is in the usual form, stating the
libel, preceding it by appropriate recitals, and
accompanying it with the innuendoes neces-
sary to its application ; to which the defend-
ant pleaded specially, averring certain facts,
and relying on them, when proved, as a justi-
fication of the libel. To this plea the plaintiff
demurred, on the ground that it did not an-
swer the charge in the declaration, but avoided
it ; and in October Term, 1812, the Supreme
Court gave a construction to the libel, and de-
cided that the plea was a sufficient answer to
it, as they then construed it ; upon which the
plaintiff, by the permission of that court,
• withdrew his demurrer, and replied to the
facts set forth in the special plea, according to
the construction put upon it by the court be
low ; and as he alleges, in the only manner
which, by the decision of that court, was left
to him. To this replication the defendant de-
murred, relying on the ground of its being no
answer to the plea, and a departure from the
587*] declaration. *The Supreme Court, in
August Term, 1813, gave a second construc-
tion" to the libel, and gave judgment for the
defendant. Upon which judgment a writ of
error has been brought, and the cause removed
into this court.
To induce the reversal of the judgment, the
plaintiff in error contends :
1. That the replication to the defendant's
plea was good in substance ; and, therefore,
judgment ought to have been rendered for him
on the general demurrer thereto.
2. That if it was bad, still judgment ought
to have been given for the plaintiff, on the
ground of the insufficiency of the defendant's
plea.
And to induce an affirmance of the judg-
ment of the court below, the defendant con-
tends :
1st. That the facts contained in the special
glea are a full answer to, and justify the
bel.
2d. That the replication did not answer
these facts but evaded them, and is, therefore,
bad.
The general rules of pleading, that a plea
which professes to answer the whole declara-
tion must be a full and substantial answer to
it ; that the same principle is applicable to
replications ; and that judgment must be ren-
dered against the party who commits the first
error in pleading, are not denied, and the de-
cision of the cause must depend on.
1st. The construction of the libel and the
manner it is charged in the declaration.
2d. The nature and operation of the facts
set forth in the plea, considered as an answer
to the libel, and set forth in the declaration.
3d. If necessary, the nature and effect of the
allegations in the replication.
These questions, tested by the rules above
272
stated, cannot fail to lead to a correct con-
clusion. .
I have considered the whole case with the
attention which is due to its importance, and
the high interest which the parties take in it.
I have examined the reasons given by the Su-
preme Court for their respective decisions,
with a predisposition to believe them sound,
and with a caution and circumspection due to
the distinguished respectability of the source
from whence they have proceeded. The result
has been an entire conviction *that the [*588
two decisions of the Supreme Court, in this
cause, were erroneous.
The libel complained of is as follows : In
commenting on a certain prospectus issued by
one Brown, to a paper about to be published by
him, the defendant uses the following words :
" His assurance that a considerable portion of
his paper shall be devoted to the support of re-
ligion, &c., excites, in my mind, strong suspi-
cions. I beg it may be remembered that, by
hypocritical cants of this description, Judge
Spencer and his associates, effected the incor-
poration of the Manhattan Bank, of which the
judge's share of the profits were several thou-
sand dollars. With this knowledge of the
policy of the judge, I cannot but believe that
this assurance is calculated to deceive and im-
pose upon mankind. It is a fact of public no-
toriety, that when the Manhattan Bill passed
the Senate, Judge Spencer claimed to be a
distinguished member of that body ; the pre-
amble of the bill stated, that ' Whereas, by the
blessing of God, the introduction of pure and
wholesome water into the City of New York,'
&c. The deception succeeded, and not more
than ten members of the Legislature knew
that the bill contained a clause that would au-
thorize the Company to carry on banking busi-
ness. It is not a little extraordinary that a
similar hypocritical pretense should be resort-
ed to for the purpose of giving currency to a
newspaper. It is to my mind conclusive evi-
dence that this artfully deceptive prospectus
has a clear right to claim Judge Spencer for its
legitimate father. Whether this attempt at de-
ception will succeed as well as that in relation
to the Manhattan Bank remains yet to be de-
termined. Of one thing I am certain, it will
not put as much money in the judge's pocket.
Thus much for the prospectus."
The declaration sets forth the whole libel,
and concludes in these words: "Meaning
to insinuate and be understood that, by hypo-
critical cants and practices, the said Ambrose
and his associates effected the incorporation
of the Manhattan Company of New York, in
which his, the said Ambrose, share of the
profits was several thousand dollars, while he
was one of the Senators of the State of New
York, contrary to his duty," &c.
The construction put on the libel by the
plaintiff is, that it charges him with a viola-
tion of official duty as a Senator, and corrup-
tion and great depravity as a man, in associat-
ing with *others to effect, and in avail- [*589
ing himself of his official situation in effecting
the incorporation of a bank, by hypocritcal
cants and base deception, and that he not only
effected the incorporation of the Bank by those
unworthy means, but that he was induced to
do so by mercenary considerations, and did it
JOHNS. REP., 11.
1814
SPENCER v. SOUHHWICK.
589
with a view to his immediate personal aggran-
dizement.
When this cause first came before the Su-
preme Court, they deemed it necessary to and
-did give a definition of the libel in the follow-
ing words : " The gist of the libel consists in
charging the plaintiff with hypocrisy and want
•of fidelity in his trust as a Senator, in effecting
the incorporation of the Manhattan Company,
in which he was largejy and profitably inter-
•ested. The plea, in justification of the charge,
states that the plaintiff \^is a Senator at the
time of the passage of the bill, that he advo-
cated and supported it and was. at the time,
largely interested in its stock, in which he
made a great profit. That he knew that the
bill contained a clause, giving power to insti-
tute a bank, and that only a very small pro-
portion of the Legislature, not exceeding ten
members, knew of that fact, and that the
plaintiff had good reason to believe that he
well knew that a large majority of both houses
were totally ignorant of that fact, and he did
not disclose and make it known to the Senate."
And in speaking of the plea in this sense, they
say : " We cannot perceive any charge in the
libel, to which the plea is not a substantial an-
swer, provided the plaintiff's knowledge that
the Legislature were ignorant of a banking
power lurking in the bill, be sufficiently
averred."
This construction is in no sense equivocal ;
it purports to be the deliberate opinion of the
court necessarily and appropriately expressed.
They say that, as Senator, he effected the pas-
sage of the bill, he advocated and supported
it, and was at the time, largely interested.
No arrangement of the words, at the time, can
be made ; no sense put upon them save that of
its being at the time he so effected the incor-
poration, he so advocated and supported it ;
and it is in this sense only that the idea of de-
pravity can be attributed to his conduct, for it
certainly could not have been supposed by the
court below, or believed by any one, that the
single circumstance of his being a Senator at
the time of the passage of the bill, and not op-
posing it, could render him culpable, provided
he took no part in its passage, directly or in-
directly. Now, it is, and must be, for his con-
S9O*J duct *while acting, and he is charged
with acting, that he is to be held responsible ;
when he so effected the incorporation ; when
he so advocated and supported the bill; and it
is that time that his conduct and views are im-
pugned by the libel, and the Supreme Court
say that implication is justified by the facts
set forth in the plea.
In consequence of this decision the plaintiff
replied : "That, at the time he advocated and
supported the said law, he did not hold, and was
not the owner of any of the stock created by the
said law, nor had he any interest whatever in
the same." To which, as I have before stated,
the defendant demurred, and in deciding upon
and in favor of that demurrer, the Supreme
Court, speaking of the construction of the libel,
say: "The libel consists in charging the
plaintiff with concealing from the Senate his
knowledge of the fact that the bill contained
a power to institute a bank while he, at the
time, knew that the Senate was ignorant of that
fact ; by which means they were led to pass
the bill under false impressions and under a
concealment of the necessary truth. This is
the charge which we consider to be actionable
and intwhich the substance of the libel con-
sists, and which is justified by the plea ; but
neither the one nor the other do, by any neces-
sary construction, convey the charge assumed
by the replication, viz. : that the plaintiff's con-
duct was induced by interested motives."
Sensible that whatever may have been the
intention of that court, their decision on the
question of construction in terms, and in sub-
stance, was essentially different on the second
occasion that this cause came before them,
from what it was on the first ; .they say that
" the few preliminary remarks with which the
previous opinion was introduced may not have
been clothed in language the most precise ;
they were, however, never meant to convey a
different opinion as to the sense or meaning of
the libel."
Which of the two constructions thus given
to this libel by the court, is correct, may be a
subject of discussion ; but that there has been
error in one, at least — that they cannot both be
right — is self evident.
The construction of the libel which was
adopted by the Supreme Court, in the first
instance, is most obviously the true one. That
the libel charges the plaintiff with aiding in
effecting the incorporation ; that it charges
him with practicing hypocrisy *to ob- [*50 1
tain the passage of the Act, and that it charges
him with doing so, in pursuance of an as-
sociation previously formed for that purpose,
are all admitted. But whether the plaintiff
did all this from a sense of duty, from inter-
ested motives, from an expectation of interest,
or from mere wantonness, say the Supreme
Court, was left by the libel to the inference
of the reader. What are the words? " I beg
it may be remembered, that by hypocritical
cants of this description, Judge Spencer, and
his associates effected the incorporation of the
Manhattan Bank, of which the judge's share
of the profits was several thousand dollars."
Now, what is the plain, obvious meaning of
these words? 'and it is that plain obvious mean-
ing that a court of justice should adopt ; why,
that the plaintiff had practiced a deception to
effect the passage of a bill for profit ; that he
had succeeded, and that he had made several
thousand dollars by it. That his share of the
profits were several thousand dollars — his
share of the profits of what ? of a contract he
made for this stock after the Bank went into
operation ? Of stock that was either given or
sold to him after the bill passed beyond his
power? Not so. If.by either of these means, he
had made a profit, it would have been a profit
resulting not from the success of the deception
which he practiced, but from such subsequent
gift or purchase. But that is the very infer-
ence the writer of the libel wishes to avoid ;
he sets out with a determination to impeach
the conduct of the plaintiff, and that con-
struction would not effect his object. To leave
no doubt of the charge intended, he concludes
the libel in these emphatic words: " Whether
the attempt at deception will succeed as well
as that in relation to the Manhattan Bank, re-
mains yet to be determined ; of one thing I
am certain, it will not put as much money in
JOHNS. REP.. 11.
N. Y. R., 5.
18
278
591
COURT OF ERRORS, STATE OF NEW YORK.
1814
the judge's pocket." What put money in the
judge's pocket ? A contract or arrangement
which he made, after he practiced the deception
which was neither settled, nor in contempla-
tion at the time he so practiced the deception
and which might or might not exist? No. It
was the success of the deception, which, it is
alleged, put the money in his pocket, by giv-
ing him either a present right or a valid future
claim to a share of the profits.
The objections which are made to this con-
struction, by the Supreme Court, are, 1st. That,
this would " be straining the libel into the
most odious sense."
592*] *2d. That it would be alleging a
fact which could not exist, as there could be
no stock before the bill passed ; and
3d. That, " whether the deception was
practiced by the plaintiff, by reason of any
then existing interest in the bill or stock to be
created by it, or from the expectation of some
future interest to be procured when the bill
should become a law. or without the influence
of either of these motives, was left by the
libel to the inference of the teader."
I will briefly consider the validity of the
reasons thus assigned. The construction
which it behooves a court of justice to put on
a publication which is alleged to be libelous, is
to be derived as well from the expressions
used, as from the whole scope and apparent
object of the writer. Now, what was that in
this case? The writer imputes the authorship
of a certain publication, which professes to
have for its object, among other things, the
maintenance and support of religion, to the
plaintiff. He calls public attention, and seeks
to enlist public prejudice against him, as
practicing hypocrisy in that respect, for sinis-
ter purposes ; a species of hypocrisy of all
others the most odious and detestable ; and,
by way of insuring public odium and settling
public opinion, it is admitted that he charges
the plaintiff with a prostitution of "hypocrisy
and deception," in effecting the passage of an
important bill through a branch of the Legis-
lature, of which he was a member, sworn to
a faithful discharge of the duties attached to
his station. In construing such a publication,
it does not seem to me that the purposes of
justice would be best effected by testing it by
the rules of grammatical accuracy, or weigh-
ing it with scrupulous precision ; nor can I
consider the construction I adopt as at all
" straining the libel " to a sense in any other
degree odious than the author has made it ; but
on the contrary, I am well satisfied that it is
consistent with the spirit and object of the
publication.
Nor is the second ground more tenable. It
is true that, technically speaking, there could
be no bank stock until the Bank was incor-
porated ; still we all know, or at least have
heard, how these things are usually managed,
and we are not at liberty to shut our eyes
against this knowledge, to give a technical
meaning to a publication confessedly libelous.
These publications are addressed as well to the
understanding as the passions of mankind ;
and it Is the manner in which they will most
probably be understood, which renders them
593*] injurious or *othervvise. That appli-
cations to the Legislature, of that description,
274
are always made by persons whose interests
are well defined and properly secured, either
by the provisions of the bill, or arrangements
beside it, it is well understood ; 'and that an
association had been formed, and a subscrip-
tion made, of which the plaintiff was both a
subscriber and associate, is alleged in the pre- '
amble set- forth in the defendant's plea, and
which he charges to be the plaintiff's act.
Whether that interest was a legal vested inter-
est in the stock to be Created by the law, or
whether it was a benefit or interest dependent
on the passage of tne bill, and in expectancy
at the time the plaintiff advocated it, was im-
material. Suffice it to say, it might be an in-
terest which it would be corrupt in the plaint-
iff to promote, by the violation of his official
duty, and for the promotion of which, his
conduct might, as I have shown it has been,
be impeached by the publication in question.
The third objection is already answered, by
showing that the motive which actuated the
plaintiff is distinctly attributed to him by the
libel, and not as the Supreme Court suppose,
left to inference.
I cannot, however, suffer the (in my judg-
ment) exceptionable and alarming tendency of
the doctrine contained in this objection to
pass without observation. The libel, say the
Supreme Court, charges the plaintiff with the
deepest moral depravity in conduct ; it sets
forth the circumstances of that depravity, but
that they are not authorized to say that it
charges him with a corrupt design. Why ?
Because the libel does not expressly so charge
it, but only " leaves it to the inference of the
reader." The least reflection must satisfy
every intelligent mind that no one doctrine
could be maintained, and no one legal notion
indulged in, which would be productive of
more mischief, in relation to libels, than the
one contained in this dictum of the Supreme
Court. It is saying nothing more nor less than
this : you may so state your case before the
public, that the guilt of the party accused may
follow as a matter of necessary implication ;.
as, for instance, A B, in his official capacity,
supported a measure flagrantly destructive of
the public interest; he used the vilest hypocrisy
to effect its success; he had an interest in, and
made money by the act ; but whether his in-
ducements were mercenary or otherwise ;
whether it was *owing to a defect of [*594
understanding, or depravity of heart, 1 do not
undertake to say ; and for such a publication,
so seriously and necessarily implicating the
conduct of the party accused, he would, ac-
cording to this doctrine, be without adequate
remedy, because, forsooth, he did not express-
ly charge him with the corruption, but left it
to the inference of the reader. Such a doctrine,
added to the acknowledged licentiousness of
the press, would form a rampart, from behind
which the blackest scurrility and the most
odious criminations might be hurled on private
character with impunity, and would, indeed,
render the press both a public and private
curse, instead of a public blessing.
In whatever point of view, therefore, this,
libel is considered, the construction put upon
it by the plaintiff is the correct one, and arriv-
ing at this conclusion, there is an end of the
cause. For, whatever may have been the
JOHNS. REP., 11.
1814
SPENCER v. SOUTHWICK.
594
opinion of the Supreme Court in their first
decision, in their second they expressly admit
that the plea answers the charge of deception
and hypocrisy, and that only; that it does not,
as is self-evident from the slighest inspection
of it, in any respect, answer the charge of
imputing to the plaintiff corrupt motives, in
supporting the bill arising from either an ex-
isting interest, or an expectation of individual
interest, at the time he so supported it. Ad-
mitting, therefore, what may, with great pro-
priety, be denied, that the facta set forth in
the plea would justify the charge of deception
and hypocrisy, as much as it confessedly does
not answer that part of the charge, which is in
itsdf the most odious ; which serves to set
off to the greatest disadvantage the others, and
which stamps the whole transaction with guilt,
it must, on the conceded and irrefutable
principle that a plea which professes to answer
the whole declaration, and does not, is bad,
be held defective. Nor do the facts set forth
in the plea, in my judgment, support the
charge of hyposcrisy and deception. The
libel charges the plaintiff with practicing,
himself practicing, an imposition on the Leg-
islature, not with suffering others to practice
one ; and there is no fact set forth in the
plea which goes to support that charge, even
viewed in the light it is by the court below.
But let us view the charges on the ground of
being sins of omission, and being as well in
form as in substance, if sins at all, tantamount
to sins of commission. The plaintiff, say
they, knew that the bill contained a banking
clause ; the rest *of his fellow Senators[*59t>
had the same means of knowing it that he had;
he suffered them to pass the bill without in-
forming them of it; and by doing so, he is
guilty of base deception of an act so reproach-
ful, that to charge him with it publicly, is
libelous. Was his conduct ever so disinterested,
ever so free from selfish consideration. the duties
of his station imposed upon him the obliga-
tion of not only seeing, thinking and speaking
for himself, but of observing, reflecting ana
acting for his fellow Senators; and if he failed
in his discharge of his duty, he was guilty of
deception and hyprocrisy.
Let me illustrate the flagrant injustice of
this doctrine. A proposition is made in the
Senate, the success of which, I believe, will
redound to the public benefit, and on that
account I wish it success, and feel it my duty
to give it my ardent support ; I observe that,
although the extent of the proposition is
obvious to me, it is not so generally under-
stood, and I learn that if it was so understood
it would be opposed and defeated. What,
under such circumstances, am I to do? If I
undertake to instruct those whose duty it is
s. RKP.. 11.
to know, I defeat a measure with which I be-
lieve the public interest to be deeply connected.
If I omit to do it, I am guilty of hypocrisy, of
deception. Can such a proposition be con-
sidered equitable or legal, just or politic ? No;
the true rule on this subject is as simple as it is
true. If a Senator suffers a bill which, in his
conscience.he thinks injurious to the public,to
pass, under a mistaken impression on the part
of hi- brother Senators, his conduct is culpa-
ble, for be violates his duty, in the first
instance, by not resisting the passage of the
bill; and that violation taint- everything he
does to promote it, and stamps suspicion on
anything he omits to do.
If a Senator promotes, in bis seat, the pass-
age of a bill, for his own private emolument,
and obtains its passage in the manner in which
the plea avers was done in this case, he is
deeply culpable, for his individual interest
contaminates his whole conduct. But in either
case, to render such conduct criminal, it is
essentially and indispensably necessary that
the person accused should act against his judg-
ment or duty, or for the unworthy purpose
of persona] aggrandizement, neither of which
are now pretended in this case.
This view which I have taken of the sub-
ject renders it unnecessary to examine
the other points which have been raised
by the counsel. On the ground, therefore,
that the defendant's *plea was bad, I [*olMJ
am of opinion that the judgment below ought
to be reversed.
Ki MKNDOKK, Hetuitor, was of the same
opinion.
This being the unanimous opinion of the
court, it was, therefore, "ordered, adjudged
and decreed that the judgment of the Supreme
Court be reversed, and that the plaintiff re-
cover against the defendant his damages by
him sustained, by reason of the publication of
the libel in the said record contained ; and
further, that the plaintiff recover against the
defendant his costs to be taxed in and about
the prosecution of this writ of error, in this
behalf; and that the transcript of the record be
remitted to the Supreme Court, to the end that
a writ of inquiry of damages be awarded; and
that the said Supreme Court proceed to give
final judgment therein."
Judgment of revertal.
Rev'gr— 10 Johns., 2».
Cited in- 18 Johns.. 988; 7 Cow., 628; 2 Wend.,
5*4: 6 Wend., 171; 1 Oenio, 358: 7 Abb. Pr., 387: 2
Bos., 700.
•**The remainder of the cases in Error, decided In
1814, will appear in the next volume.
275
[END OP CASKS IN ERKOK.J
REPORTS OF CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE,
AND IN THE
COURT FOR THE TRIAL OF IMPEACHMENTS
AND
THE CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK.
BY
J"OEC3SI SOUST,
COUNSELOR AT LAW.
VOL. XII.
JUDGES
OP THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK,
DURING THE TIME OP
THE TWELFTH VOLUME OF THESE REPORTS.
SMITH THOMPSON, Esq., Chief Justice.
AMBROSE SPENCER, Esq., Associate Justice.
WILLIAM W. VAN NESS, Esq., Associate Justice.
JOSEPH C. YATES, Esq., Associate Justice.
JONAS PLATT, Esq., Associate Justice.
MARTIN VAN BUREN, Esq., Attorney-General.
CASES ARGUED AND DETERMINED
IN THE
Court for the Trial of Impeachments
AND
CORRECTION OF ERRORS
IN THE
JOHN W. YATES. Plaintiff in Error,
v.
EBENEZER FOOT, Defendant in Error.
Wager— On Event of Election, Void — No Action
Lift against Stakeholder after Event ha» Hap-
pened.
Where money is deposited with a stakeholder, on
the event of a wager, by a person who acts as agent
for several others, but the stakeholder is ignorant
of the principals, on whose account the money is
deposited, actions to recover back the deposit are
properly brought in the name of the principals
(each of whom separately may sue for his respect-
ive proportion), and not of the airent.
where money is deposited with a stakeholder on
an illegal wager (as a wager on the event of an
election), no action lies after the event has hap-
pened, and the bet has been lost and won, by the
loser against the stakeholder, to recover back his
deposit, which still remains in the hands of the
stakeholder, and which he has had notice not to pay
over to tho winner.
cause came before this court on a writ
of error-front the Supreme Court. It was
oue of five causes depending on the same facts
and principles, and decided, at the same time,
in that court. See Vischer v. Fate* (Vol. XL,
page 23) for the facts and the judgment of the
•court below.
Mr. Henry, the plaintiff in error, contended
that the judgment below .was erroneous, on
two grounds :
1. That the suit was brought by one of the
principles for his undivided proportion of the
money in the hands of the stakeholder.
*2. That the contract was malum in se, [*2
and void, and no action could be maintained
upon it, either to affirm or disaffirm the con-
tract.
1. The law abhors multiplicity of suits.
Persons holding in common should sue jointly.
(Co. Litt., 198 a.) If there had been a hun-
dred deposits, by as many different persons
betting on the same matter, would it be tolei-
ated that each should bring his separate action
against the stakeholder ?
2 All contracts, illegal in themselves, or
made so by express prohibition, are void, and
incapable of being enforced, where the parties
are in pan delicto. It is a rule both of law and
equity, that ex turpi causa actio non oritur. (1
Fonb. Equ., 216, note y, b, 1 ch. 4. sec. 4.)
In relation to such contracts, the true prin-
ciple is, ex mnlefcio non oritur contractut, et in
part delicto potior est conditio defendentis. The
principle is laid down, and the distinction
properly made, in the case of Clark v. Shee A
Johnson. (Cowp., 190, 197, and see Smith v.
Bromley, in Doug., 670, 696, note.) In regard
to prohibitions by positive law, there are two
kinds ; 1st, where the prohibition is made to
protect men from fraud, extortion or oppres-
sion; and, 2d, where the prohibition is founded
on principles of public policy. In the first,
the rule in part delicto, &c., does not apply,
and an action will lie ; but in the second, both
parties are equally guilty, and the maxim ap-
plies, that in pari delicto, potior est condito de-
fendentu. Where the transaction is illegal, no
NOT«— Wager— On event nf an election— Recovery
from stakeholder.
A wager on the event of an election it void a* agaiitxt
pvMfejMHM Bunn v. Kiker, 4 Johns.,426: Ijuisfng
v. Lansing, 8 Johns., 4M ; Vischer v. Yates, 11 Johns.,
1:1 ; Itusb v. Gott. 9 Cow., 109: Brush v. Keeh-r, 5
\Vi-nd., £30; Dcnnlston v. Took, 12 Johns., 376;
M Alh-t.-r v. Huffman, 16 Scrg. & K.. 147; Smyth v.
M' Masters, 2 Browne. 182; Stoddard v. Martin, 1 K.
L. 1: Wroth v. Johnson, 4 Har. & M. II.. 284;
David v. Ransom, 1 Greene, 3H3; Davis v. Holbronk,
1 La. Ann.. 176; Tarlton v. Baker. 18 Vt., A; Com-
monwealth v. Posh. 9 Dana, 31 ; Foreman v. Hard-
wick, 10 Ala., 316: Wheeler v Spencer, 15 Conn.. *:
HickcrHon v. B<>nson, 8 Mo., 8 ; Russell v. Pyland.2
Humph., 131 ; Ball v. Gilbert, 12 Met., 397 ; Allen v.
JOHNS. REP.. 12.
1 1 .-am. 1 T. R . 66.
The parties cannot recover money paid on a wager
from each other, or to compel payment of wager by
loser. See above ease of Yates v. Foot : Ruckinan
I v. Pitcher, 1 N. Y., 392.
I Nor can the lo*er recover from the stakeholder, after
thr event is determined. Above case of Yates v.
I Foot, reversing Vischer v. Yates, 11 Johns., 23.
I 'nilii- xtatntc in New York, however, the stake-
I holder is liable to (he loser, even though he has paid
it over to the winner.
Under the common taw. wager contracts are not
illegal »ix xiich. They are illegal only when forbidden
, by statute or contrary to sound public policy. See
statutes in many of the states; also note to Bunn v.
i Riker, 4 Johns.. 426.
COURT OF ERRORS, STATE OP NEW YORK.
1814
action will lie. The illegal contract can neither
be affirmed (3 Term R., 266 ; 8 Term R., 575 ;
3 East, 222 ; Doug., 470) nor disaffirmed, so as
to allow the party to recover back his money.
The rule and the distinction are enforced and
illustrated by Lord Mansfield, in Smith v.
Bromley, and Jones v. Barkley. (Doug., 696,
697.)
The genius and spirit of the laws against
gaming are in favor of this doctrine.
So, if a contract be in breach of faith, or of
a trust, or for fraud, it is void. A deed to
defraud creditors is void against creditors ; but
it may be enforced against the parties, who
will never be relieved. (Cro. Jac., 271 ; 2 Free-
man, 182; Gary's Ch. Rep.. 13.) The parties
are left remediless, to take away all motive or
temptation to engage in such transactions.
The parties in the present case, betters,
agents, stakeholders, and all, are in pan delicto.
Not that there is an equal degree of guilt, for
that is not the meaning of the rule ; but they
are all involved in the like guilt or turpitude,
and are all concerned, more or less, in the same
or like act.
3*] *ln Bunn v. Riker, 4 Johns., 426, the
court were of opinion, not only that the wager
was illegal, but corrupt ; and Mr. Justice
Spencer was also of that opinion, provided the
bet was made before the poll was opened.
Such a contract is in violation of the funda-
mental principles of the law and Constitution ;
and the parties ought to be left where they
are found, without remedy or relief.
The case of Wilkinson v. Ketchie, 1 Ld.
Raym., 89, cited by Buller(Bull. N. P., 132), is
repugnant to the genius of the law, and the
whole of the decisions (1 Falk., 22; Doug.,
698 ; Cowp., 792), both before and since ; and
being also a mere decision at Nisi Prim, it can-
not be regarded as any authority.
The case of Lacaussade v. White, 7 Term R.,
535, in which a distinction is raised by the
counsel between contracts executed, and not
executed, seems to be shaken by the observa-
tion of Lord Kenyon himself, in Howson v.
Hancock, 8 Term, 575, who states a distinction
between the two cases, which does not appear
to exist.
In the case of Cotton v. Thurland, 5 Term R. ,
405, the grounds of the decision are not easily
understood, as the judges appear to have had
different views of the opinion of Wilson, J.,.
in the case of Cain v. Alder, which it seems to
be the intention of the decision to contradict.
Tenant v. Elliott, 1 Bos. & P., 3, is a case
of malum prohitritum only. There was no moral
turpitude in the transaction. It is on that dis-
tinction the decision was founded. Eyre, Ch.
J. , said the defendant was not like a stake-
holder. In Partner v. Russell et al.,l Bos. &
P., 296, which was an action against com-
mon carriers, who had carried a parcel which
contained counterfeit halfpence, to Ports-
mouth, and delivered them there, and received
money for the plaintiff, for which assumpsit
was brought; Rooke, J., before whom the
cause was tried, told the jury ..that if the half-
pence were sent with a view to impose on the
public, the contract was illegal, and no action
could arise out of it, and a verdict was found
for the defendants. Though a new trial was
granted, on the ground that the defendants
280
might have known the fact of the boxes con-
taining counterfeit money ; yet Rooke, J.,
thought the knowledge or ignorance of the de-
fendants made no difference. That the plaint-
iff ought not to be heard to make a claim in a
court of justice, founded on a transaction for
which he ought to be indicted. That he
ought not to have the assistance of the law to
recover the profits of his offense. That *if [*4
he employed an agent in such a transaction,
he must rely on the honesty of such agent; but
the law ought not to assist him.
Here the stakeholder is not, in fact, innocent,
but a particeps critninis. Suppose an action
were brought to recover money held by a third
person, subject to be paid in case of a pro-
posed assassination; is it possible that any court
would listen for a moment to such a claim, to
recover the money from the stakeholder ? In
all such transactions, arising ex turpi causa,
there is not, nor can there be, any locus peni-
tenticB, of which the party can avail himself.
Mr. J. Russell, contra. 1. The rule as to ac-
tions by tenants in common does not apply to>
this case. There was no community of inter-
est among the different plaintiffs, each of"
whom deposited his own money. Where two
joint assignees each advanced money for a
third, it was held that they could not bring a
joint action, but must sue separately. (3 Bos.
& P., 225; 5 East, 224; 1 Saund., 153; 5
Terra R., 246.) One tenant in common may dis-
train for his share of the rent.
2. We do not deny the rule, that where both
parties are in pari delicto, courts will not afford
their assistance; but this rule is applicable only
to a transaction malum in se, or where an
illegal contract is sought to be affirmed. In
cases of moral turpitude or fraud, it is not ex-
pected that courts of justice are to lend their
aid to enforce the contract. But it is a distinct
case, where a party who has paid his money,
seeks to recover it back, on the ground that
the contract is incapable of being enforced.
Comyn, in his treatise on contracts, after lay-
ing down the general rule (1 Comyn on Con-
tracts, 30, 46), states in what cases money paid
on illegal contracts may be recovered back. (2
Comyn on Contracts, 109.) He thus lays down
the general rule, and the distinction for which
we contend, asdeduced from the cases decided:
"When money has been paid upon an illegal
contract, it is a general rule, that if the contract
be executed, and both parties in pari delicto,
neither of them can recover from the other the
money so paid ; but if the contract continues
executory, and the party paying the money is
desirous of rescinding it, he may do so, and
recover back his deposit. (Doug., 470; Co'wp.,
199, 200, 792.) And this distinction is taken
in the books : namely, where the action is in
affirmance of an illegal contract, the object of
which is to enforce the performance of an
engagement prohibited by law; such an action
can in no case be maintained ; but where the
action proceeds in disaffirmance of such a con-
tract, and instead of endeavoring *to [*5
enforce it, presumes it to be void, and seeks to-
prevent the defendant from retaining the
benefit which he derived from an unlawful act,
there it is consonant to the spirit and policy of
the law that the plaintiff should recover-" (H.
Bl., 67.) There are some cases, however, not-
JOIINS. REP., 12..
1814
YATES v. FOOT.
withstanding the contract is executed, in which I
the party who has paid the money will be al-
lowed to receive it back on principles of public
policy, in order to prevent a repetition of
•crimes, or the evasion of a statute.
The case of Clark v. Shee & JoA/won-was
decided in 1774. The ground on which the
plaintiff's right of recovery was placed, was,
that he was not particep* criminu ; and Lord
Mansfield was, at first, of opinion that he was
a party to the illegal proceeding ; but he after-
wards thought otherwise. In Browning v.
Morrit, Cowp., 790, he gave a different con-
struction to the Lottery Act. on the authority
of the cases of Jnque* v. Oolightly, Wm. Bl. ,
1073, which doe* not afford the ground of
decision assumed by His Lordship; but the per
son who got the tickets insured, was held not
to be pnrticep* crimini*. All the cases subse-
quent are in favor of recovering back money
paid, where the contract is void, as against
public policy, or against a statute, if such con-
tract has not been executed, and the plaintiff
seeks to disaffirm the contract.
It is true the evils produced by betting on
elections may be great, but greater'evils would
be produced by adopting the rule contended
for by the plaintiff in error. Bets of this kind
originate in party zeal, and the impulse of
passion ; but if the parties, on cool reflection,
are desirous to retract, ought this to be dis-
couraged, by saying the stakeholder shall not
be obliged to return the money?
In Jaquet v. Goliglttly, and Ttippenden v.
Randall, 2 Bos. & P.. 467, the illegal contracts
were disaffirmed, and the party, allowed to re-
cover back his money. The case of Tenant v.
KUiolt, and Farmer v. RutneU, 1 Bos. & P.. 3,
296, go further than the present case; the third
party was not a party in interest, though the
others were highly criminal. The rule that in
pari delicto, &c., does not apply to the deposi-
taries, &c., but only to the- contracting par-
ties.
In Lcnory v. Bourdieu, the court denied aid
to the plaintiff, solely on the ground that the
contract was executed ; and in Whttrton v.
Delaire, Park on Ins., 6th ed., 513, tried be-
fore Lord Mansfield, in 1782, though the con-
tract was illegal and void, he admitted that
6*] the *plaintiff might recover back his
money, because the contract was executory.
There is so much contradiction in the En-
glish decisions as to the return of premium, in
cases of illegal insurances (11 East, 427; 12
East, 225). that the Supreme Court, in Mount
et al. v. Waite, 7 Johns., 434. thought them-
selves at liberty to lay down a rule for them-
selves, and they held that the insured was not
in pari deliclo, and might recover back the pre-
mium he had paid. On the same principle,
that court held that the stakeholder should
not hold the money in defiance of both parties.
So long as the money is in his hands, he shall
not be allowed to set up in his defense that the
contract is illegal.
The case of Lacawuade v. White, from the
declaration as stated in Espinasse (Esp. Cases
N. P., 629 ; sec, also, 1 East, 96) and 7 Term
K . would lead to the opinion that it was an
action brought by the winner of a bet against
the loser ; but Lord Kenyon, in llowtnn v.
Hancock, said it was an action t< > recover the
JOHNS. RKP., 12.
money deposited with a stakeholder, before it
was paid over, which distinguished it from
that case, where the money had actually been
paid over.
The contract, in the present case, was not
executed. The result on which the bet de-
pended was not ascertained ; for it was not
whether Gov. Tompkins was to have the
greatest number of votes, but whether he
would be declared, by the certificate of the
canvassers, duly elected. Though the votes
were returned, the defendant did not know
how the can vaRsers -would declare the result.
Again : the contract could not be considered
as executed, if the other party could have an
action to compel its execution. If Yates had
refused to pay the money to the winner, no
doubt he might have brought his action to en-
force the performance of the contract.
There was not, in the present case, anything
like fraud, or criminality, or collusion. We
insist that there was not, in the transaction,
any of that moral turpitude that would make
the act iiKilnin in ite. Similar cases are to be
found in the books, but none of them have
been considered in that light. They have re-
garded them merely as contract against pub-
lic policy, or as mala prohibita. So, in Burn
v. Riker, the court do not consider the wager
as corrupt, but such as, in England, is regard-
ed as illegal, as being against sound policy.
*Mr. T. A. Emmet, in reply. 1. The [*7
persons or principals who deposited their
money were partners in the gaip or loss. The
deposit was of an entire or joint fund. It
does not appear how much was owned by
either. The .stakeholder received a mixed and
undivided fund, and he must return it to
Alexander, the agent, entire and undivided.
2. Two positions have been taken, in regard
to this action ; first, that while the illegal con-
tract remains unexecuted and undetermined,
the principal may recover his money out of
the hands of the stakeholder; and second,
that after the risk has been run, it may be re-
covered back either from the winner or stake-
holder.
We admit the first position in part, or wiih
the exception of the cases where the contract
is illegal, as against a statute, or where it is il-
legal on account of its evil and immoral ten-
dency, or is malum in «e. (Doug., 471.) The
distinction taken by Heath, ./. , in Tappenden
v. Randall, 2 Bos. & P., 467, 471, between
contracts immoral and such as are grossly
criminal rests on his dictum only.
Money paid on a contract for murder, se-
duction, bribery, perjury, corruption, or any
immoral act, can never be recovered back by
the aid of a court of justice. It can never de-
pend on the degree of moral turpitude. Such
contracts are not illegal and void, localise they
are grossly dishonest and immoral, but because
they are dishonest and immoral, and contra
bono* more*.
In Edgar v. Fowler, 3 East. 222, Lord Ellen-
borough says, in general terms, that the court
would not assist an illegal transaction, in any
respect ; he does not put this case on the dis-
tinction between malum in tie, or malum pro-
hibitnm. While the money was in transitu to
the person who was entitled to receive it. it
might be stopped ; but if the party applies to
281
COURT OF ERRORS, STATE OP NEW YORK.
1814
the court, they will leave the matter as they
find it.
Bunn v. Riker, and the authorities there
cited, clearly show that a contract like the
present is immoral.
The distinction that the immorality which
avoids the contract is the commission of the
act, and not, in regard to a wager, that the act
will be committed, can never be listened to in
a court of justice. If a person lays a wager
that he can seduce a married woman, the con-
tract is void, and no court would ever aid the
party to affirm or disaffirm the contract. The
contract, on account of its necessary evil ten-
8*] dency, is immoral in itself, and *void.
The certainty of the- rule, in thisTespect, is
important ; and its certainty depends on such
contracts being void for their immorality and
bad tendency, not on account of the degree of
the immorality.
The case of Cotton v. Thurland, 5 Term R. ,
405, it is said, has not been contradicted by
any subsequent decision. That case has been
.so variously stated and understood that it can
be no guide to a court (see 1 Salk., 22; Skin-
ner, 412; Doug., 697, note; Cowp.. 792, con-
tra; 1 Ld. Raym., 89; 2 Evan's Pothier, 7; 2
Com. on Cont., 127; 3 Esp. Rep., 253), nor is
it to be regarded as an authority in point ; nor
is the case of Lacaussade v. W Mte, 7 Term,
535, any better authority. It is a case so im-
perfectly reported, and so variously stated and
understood, as to be entitled to no weight. It
was, no doubt, a case of a winner seeking to
recover money won by a bet, in no respect
immoral, but merely against public policy.
Jaques v. GoligJMy was of the same nature.
So that this case, so much relied on by the
counsel on the other side, has no more appli-
cation to the present case than if it had been
an action of ejectment.
It is admitted that the plaintiff below could
not recover back his money from the winner,
or the other principal ; but it is contended that
the defendant, not being in pari delicto, the
maxim does not apply to him. The true
meaning of the rule is, that where both parties
are, in any manner, in delicto, or concerned in
the same act, the possessor has the best right
to the money.
If two persons, as in the present case, will
bet on an election, where there are great in-
ducements to bribery and corruption, it would
be better that the money should be cast into
the sea than that it should be recovered by
either party. If it is once known by the par-
ties to these illegal contracts that in no stage
of the transaction courts will aid them in re-
covering their money, it will deter them from
entering into such agreements ; for, unless the
stakeholder voluntarily returns the money, it
must be absolutely lost to the parties. It is in
this way courts of justice will promote the
cause of morality and honesty, by checking
such immoral practices, not by technical no-
tions of illegality.
The certificate, however, shows that Yates
is, in fact, a party to the contract. He is par-
ticeps criminis. Lord Kenyon, in Howson v.
Hancock, says there is no case to be found
where money has been paid by one of two
parties to the other, both being participw crim-
inis, that an action has laid to recover it back
282
again. And Lord Mansfield, in Smith v.
Bromley, said *that where both parties are [*&
equally criminal against the general laws of
public policy, the rule is potior e»t conditio dt
fendentis.
The distinction between the stakeholder and
the principal is fanciful, without any rational
foundation or moral principle to support it.
It originated in a dictum of Lord Kenyon, in
Cotton v. Thurland, a case so much mistaken
and misunderstood, and has been adopted as a
rule of law by subsequent compilers, who
faithfully copy such mistakes.
The distinction between contracts executed
and executory, can make no difference except
in regard to contracts void as being against
public policy or a statute. It does not apply
where the contract is, in itself, immoral. The
honesty or dishonesty of the contract is not to
be ascertained by the event, or by the risk
being run.
The agreement was that Yates was to pay
the money to Parker "in case Tompkins was
elected Governor." The Governor is elected
by the votes, not by the canvassers of those
votes. And after all the votes were taken,
and the polls closed, the risk was run, and the
plaintiff, on the 31st of May, before the date
of the certificate of the canvassers, knew, by
the returns of the votes, that Tompkius had a
majority. The event of the decision of the
canvassers, at the time the plaintiff demanded
his money back, can have no effect on the
honesty of the retraction.
SANFORD, Senator. It is urged that an ac-
tion to recover this demand ought to be in the
name of the agent who paid the money to the
stakeholder; or, if not, that it should be a
joint suit by the principals.
The money was advanced by the plaintiff,
and was paid to the depositary, by a person
who was the mere agent of the plaintiff. In
such cases, the principal, adopting the act of
his agent, may institute an action, and pur-
sue the remedy in his own name.
The principals were not partners, and were
not connected with each other, in interest or
by any contract; nor does it appear that they
were at all known to each other. Each person
advanced his own money, and they all em-
ployed the same agent for the same purpose.
This does not appear to constitute a joint in-
terest in the principals, or to create any con-
tract *or obligation between them. [*1O
Their interests being distinct, their suits con-
cerning those interests should be separate.
These objections, therefore, appear to be
destitute of any just force.
In contracts of wager upon the event of an
election, the courts will not entertain an action
to enable the winner to recover the wager from
the loser; but if the loser has voluntarily paid
the wager, they will not entertain an action to
compel the winner to repay the money to the
loser.
These two principles appear to have been
long and clearly established, by decisions of
the courts.
Bv the first, the courts defeat wagers of this
kind, where the loser has not performed his
contract.
By the second, the courts give effect to wa-
JOHNS. REP.. 12.
1814
YATES v. FOOT.
10
eers of this kind, where the loser has per-
formed his contract.
I will briefly inquire into the foundation and
reasons of this distinction.
When the courts are asked to compel the
. loser to pay to the winner, they answer that
the contract is against public policy, and for
that reason ought not to be enforced.
When the loser has paid the wager, and the
court are applied to, to compel the winner to
pay it, they answer, that the contract has been
executed, and ought not to be disturbed.
Thus the courts refuse to entertain any ac-
tion on the subject, cither by the winner
uirainst the loser, or by the loser against the
winner.
It also appears, that whatever may be the
weight of the consideration of public policy,
it is not sufficient to induce the courts to com-
pel the restitution of a wager, voluntarily paid.
If, however, legal decisions can repress con-
tracts of this kind, that effect would be best
produced, by compelling the winner to make
n-t it nt i< m to the loser, though the loser had
voluntarily paid. In other words, the object
of public policy would be most effectually at-
tained, by reversing the performance of the
executed contract.
Yet this the courts have never done, and
have never attempted to do.
The same distinction is made in a multitude
of other cases. There are contracts, rights
and obligations, which the law does not en-
force. It would be against the policy of the
law to enforce them. Yet, where the party,
11*] bound to such a contract *or obligation,
voluntarily performs what he had promised to
•do, the courts ratify his acts, and will not
suffer him to retract. When a man pays a
debt which he was not legally bound to pay,
or performs his contract, though it was void
in law, he cannot afterwards recede and annul
what he has done. The courts will not com-
pel a man to pay a debt of honor; but if he
will voluntarily pay it, they will not permit
him to reclaim the money. In all these cases,
though the courts will not compel the execu-
tion of the contract, yet they recognize the
execution of the same contract, as justice,
when it is freely administered by one party to
the other. The maxim applied to such cases
is, fieri non debet, *edfattum taUt.-
The essential reason of this distinction ap-
pears to be, that the performance of the con-
tract by the party who promised is a volun-
tary act. He had an option to perform or not:
he has voluntarily performed, and he shall,
therefore, not be allowed to retract that volun-
tary act.
In this case, the payment to the depositary
was voluntary. The money remained a vol-
untary deposit in his hands, until after the
hazard had ceased, and the event was known.
The losing party then reclaimed the money
which be had advanced, and he now seeks to
recover it in this action.
This contract, then, appears to be partly
executed, and partly unexecuted. The deposit
of the money with the stakeholder was the first
step in the execution of the contract. It was,
indeed, intended by the principals to be the
execution of the contract against themselves.
The unexecuted residue of the contract was to
JOHNS. RKP., 12.
be completed by the occurence of the contingent
event, and the payment of the money by the
stakeholder, according to the event. The par-
ties acquiesced in the contract and the deposit,
until the contingency happened, and a month
afterwards, und until the result of the election
was known. The payment of the money to
the stakeholder, the occurrence of the event
which was to give it to one party or the other,
and the acquiescence of both "parties in the
contract and the deposit, constitute a partial
execution of the contract. Shall this partial
execution of the contract be vacated? The doc-
trine of the courts in other cases, is, that what
the parties have done shall stand, and what
they have not done shall be left unexecuted.
The application of that doctrine in this case
seems to be, that so far as the contract has
been performed by the parties, their perform-
ance *shall stand; and so far as it has [* 1 -
not been performed, it shall be left without
legal aid to enforce it. As to the winner, the
contract, indeed, is not fully executed, since
he has not received the deposit. As to the loser,
and against him, the contract is totally exe-
cuted; since no further apt is necessary, or- can
take place, on his part, to give it effect, or
carry it into execution. His execution, there-
fore, of the contract, is valid against himself,
and cannot be retracted.
In contracts of hazard, the condition of the
parties, after the uncertain event has hap-
pened, is extremely different from their situa-
tion before. Before the event has happened.
and while it is uncertain who will be the win-
ner, or the loser, neither is much injured, and
perhaps not at all. by declaring the contract
void. The parties are treated alike; neither of
them can complain; and if it be necessary for
the public good, that the contract should not
proceed further, the decision is made without
any sacrifice of justice between the parties.
Not so if the hazard has ceased, and the wa-
ger has been lost or won, according to the con-
tract. A very different relation between the
parties then takes place. If the losing party
may vacate his contract, after the event has
happened, and is known, he is allowed to prac-
tice a fraud upon the adverse party. To allow
the loser to retract his contract, because he is
the loser, would give sanction to the grossest
perfidy and injustice. If this party wins, he
profits bv the contract, and takes the fruit of
it; if he loses, he abjures the contract and ex-
onerates himself from its obligation; if he wins,
he holds the wager by the laws of honor; if he
loses, he refuses payment, or reclaims the wa-
ger, if paid, by the laws of the land. Accord-
ing to the result, he avails himself, either of
the laws of honor, or of the laws of the land.
While the event is uncertain, and unknown,
he stands upon the laws of honor. When it
has happened and is against him, he retires
to the laws of the land. When he contracts
upon the basis of hazard, he incurs no risk.
While hi* is himself wrapped in impenetrable
armor, he contends with a naked adversary.
When he talks of contingency and hazard, he
means certainty. When he promises, he de-
ceives; and while he pledges his faith, he be-
trays. It does not help such treachery to give
it the name of repentance. There Is no in-
stance of such a repentance by the winner.
28S
12
COURT OF ERRORS, STATE OF NEW YORK.
1814
It is only the loser who repents. However bit-
ter and sincere his repentance may be, it is not
13*] that he has offended against public *pol-
icy, but that he has lost his money. To prove
the sincerity of his repentance, and as an atone-
ment for his sin against public policy, he pro-
poses to cheat his adversary, and take back
his own money after it had been lost.
This is intolerable, and has never been tol-
erated. It never will be tolerated, while com-
mon sense and common honesty hold their
proper dominion among mankind.
It has, accordingly, become a rule, in those
cases in which the parties are allowed to re-
scind the contract, that it can only be rescinded
before the contingent event happens. The
happening of the event is the crisis in the con-
tract, which terminates all election, opinion,
or repentance. Before, the parties stood on
the ground of uncertainty, and either might
recede. Now, they stand on the ground of
certainty, and neither can retract what he has
done. This is law, clearly established by ad-
judged cases.
In this case, the attempt to retract was not
made until the result of the election was
known, and a month after the event has taken
place. The attempt therefore cannot prevail.
By allowing this action, the losing party
would be allowed, after the hazard had ceased,
and the event is known, to retract what he had
done before. Such a decision would be incon-
sistent with the principle that a voluntary per-
formance shall not be retracted ; and incon-
sistent with the principle that there can be no
election to vacate the contract, after the uncer-
tain event has happened, and the fact is known.
These principles, just in themselves, and fully
established as law, appear to me to be directly
applicable to this case, and to determine it.
A. stakeholder was here employed ; and this
action is against him. Whether the action of
the loser, is against the winner or the stake-
holder, the loser in either case, equally seeks
to retract his own acts. To allow the action
against the stakeholder, after the hazard has
ceased, and the event is known, would have
the same effect as to allow it against ,the win-
ner, in the same circumstances. When the
uncertain event takes place, all election or
option to treat the contract as void ceases, for
reasons which have been stated. Those rea-
sons exist with as much force, where a stake-
holder is employed, as in any other case. The
just regard to probity and good faith, and the
necessity of preventing fraud, which forbid
the parties to retract after the event, forbid it
as strongly in one case as in another. The
1 4*] *fact that the money is in the hands of
a third person, cannot give the loser a right to
retract after the event. "The election to rescind
the contract depends altogether upon the time
when it is made. The circumstance of em-
ploying a stakeholder cannot determine at
what time the election may be made ; and it
has no influence upon that question.
It is said that the depositary has no right to
hold the money advanced by the loser against
him. Has he not as good a right to hold it as
the loser has to claim it ? If the depositary
cannot hold the money with conscience, can
the loser reclaim it with conscience ? If con-
science will repel the defense, will it not repel
284
the action ? This is an action for money re-
ceived by the defendant, for the use of the
plaintiff, in which, we are told, the plaintiff is
to recover according to equity and good con-
science. What ma^ be the merit or demerit of
the defense, is immaterial, if the claim, which
is the foundation of the action, be itself des-
titute of merit. What is the plaintiff's right ?
It is said that the contract, upon which the
money was paid, was illegal ; and that, conse-
quently, the money is held, without any obli-
gation arising from the contract. Admitting
this, where is the obligation to refund it ? The
answer is, that, as the money was not paid to
the depositary for his own use, and as he is
not bound to apply it according to the con-
tract, it must revert. In other words the ille-
gality of the contract defeats the intention of
the parties, and deprives them of rights which
they intended to confer, and therefore gives
them rights which they had no intention to
create. This does not appear to be a neces-
sary conclusion. If the contract be illegal
and void, the sound conclusion would seem to
be that no right whatever could result from
it, and, consequently, that he who has paid
his money upon a void contract would have
no remedy to recover it. But in this case the
contract, however illegal or voidable it may
once have been, was capable of being affirmed
by the acts of the parties, and by their acquies-
cence in it, until it was too late to retract. It
was so affirmed by them, and no right which
might result from a disaffirmance, can accrue
to either of them.
We are told that public policy requires that
this action should be. allowed. I recollect no
instance in which an executed contract of
hazard has been frustrated on the ground of
public policy, excepting the particular cases,
in which certain statutes authorized the loser
to reclaim what he has paid. These *are [*!£»
the statutes concerning gaming and horse-
racing. By the express provisions of those
statutes, the loser having paid, may recover
back the money, by an action of debt. Con-
tracts of gaming, and concerning horse-racing,
are the only two classes of hazardous con-
tracts, which have been deemed of sufficient
importance to deserve the interference of the
Legislature. The object of the statute is to
repress and prevent those two species of con-
tracts, and evidently on grounds of public pol-
icy. All their provisions are either in addi-
tion to the law, as it was before, or in altera-
tion of the former law. The provision that
the loser, who has paid his wager, may re-
claim it, a rule unknown to the common law,
was evidently introduced in those statutes to
give a right which did not exist before. Even
in these Ceases, therefore, which the Legisla-
ture considered of such importance as to re-
quire very penal provisions for the attain-
ment of their object, and the only cases ia
which they have interposed, they deemed it
necessary to authorize the loser to reclaim hi*
wager, after it has been paid, as an alteration
of the common law. Before these statutes,
these cases stood on the same ground as other
contracts of hazard. If the loser had paid his
money, it was lost to him. Such was the un-
doubted doctrine of the common law in these
cases ; and yet the public policy of suppress-
JOHNS. REP.. 12.
1814
v. DASH.
15
ing mere games of chance, seems to be far
stroneer and more urgent than any public rea-
sons for suppressing other hazardous contracts.
The courts, however, did not compel or at-
tempt to compel, restitution to the loser, on
the ground of the public policy of such a de-
cision. These statutes are, therefore, to be re-
garded, as they are, alterations of the common
law, in this respect. They show what the com-
mon law was ; they confine the alteration to
particular cases, and they show that it is the pro-
vince of the Legislature, and not of the courts,
to alter the existing law on this subject, to ac-
commodate it to the exigencies of public pol-
icy.
The mischiefs, which may result from wag-
ers upon elections, have bee'n placed before us
in glowing colors. If it be said, or meant,
that such mischiefs have occurred in this
State, I deny the assertion. Whatever may be
the tendency of such wagers to induce the par-
ties to vote according to their interests, or to
obtain the votes of others, we have not yet
seen any corrupt or pernicious influence upon
16*J our elections, arising from such a *cause.
The mischief apprehended does not yet exist.
The virtue of the people has secured us from
the evil. If the mischief has not already oc-
curred, we may safely conclude that the ap-
prehension of danger in future is, in some
measure, imaginary. But if, in the progress
of society, the mischief should be seen and
felt, a proper corrective must be applied. In
the future days of the Republic, it may be-
come necessary. The Legislature are, and
ought to be the judges of the disease, and the
remedy. It is their province to observe the
evil when it occurs ; to watch its progress,
und estimate its magnitude, and provide an
adequate remedy, ft belongs to the Legisla-
ture and not to the courts of law. to provide
for the exigencies of new times and circum-
stances, and to lay down new rules for the
suppression of new vices. The consideration
of public policy, which has been so much
pressed, should be addressed to the Legisla-
ture, and not to the courts. If the law appli-
cable to this case has been settled by estab-
lished principles, the courts cannot now alter
it, because a different rule would, in their
opinion, better comport with public policy.
My opinion, therefore, is, that this action
cannot be maintained, and that the judgment
of the Supreme Court ought to be reversed.
LEWIS, WILKIN, BLOOM, HUBBAKD, BLOOD-
GOOD. STRANHAN, ROOT, and ELMENDOKK,
and six others, Senators, were also of opinion
that the judgment of the Supreme Court ought
to be reversed.
P. W. RADCLIFK, YATES, WENDALL, AT-
WATER, STEWART, and TOWNSEND, 'Senators,
were of opinion that the judgment ought to be
aflirmed.1
It was ordered and adjudged that the judg-
ment of the Supreme Court be reversed, &c.,
and that the said J. W. Yates be restored to
all things, &c. ; and further, that judgment
be entered for the said J. W. Yates, on the
special verdict, together with his costs about
his defense sustained in the Supreme Court ;
and further, that the said J. W. Yates recover
against the said Ebenezer Foot his costs of
prosecuting the writ of error in this cause,
*to be taxed by one of the members of [*17
this court ; and that the plaintiff in error have
execution therefor ; and that the record be re-
mitted, &c.
Judgment of reversal.*
Rev'g— 11 Johns.. S3.
DMfafnMMd— fl Johns., 377.
Cited In— 3 Wend.. 496 : 12 Wend., 417 : 1 Denio.
60); 12 N. Y.. 38 : 14 N. V.. 141 ; 4 liarb., 528; 9 Barb.,
816 ; 1 Hall, 304 ; 7 Leg. Obe., 13.
JOHN BOONEN GRAVES, Plaintiff in
Error,
v.
JOHN B. DASH, Defendant in Error.
Negotiable Paper — Bills of Exchange — Protest
and Notice — Recovery with Exchange — Dam-
ages and Interest.
The holder of a bill of exchange, drawn in New
York on England, and returned protested, is en-
titled to recover the contents of the bill, at the rate
of exchange, or price of bills on England, at the
time of the return of the dishonored bill, and notice
thereof to the drawer, together with 30 per cent.
damages and interest.
DASH brought an action of assumpsit in the
Supreme Court, as first indorsee of a bill
of exchange, against Graves, as first indorser.
The bill was drawn at New York, the 18th of
January, 1811, on Worrall & Williamson, at
Liverpool, in England, for £787 18*. 2d. ster-
ling, payable sixty days after sight, and was
duly protested' for non-acceptance and non-
payment.
The cause was tried at the New York sit-
tings in November, 1813, before the Chief Jus-
tice. The only question at the trial was as to
the amount of damages which the plaintiff be-
low was entitled to recover. He claimed the
amount of the bill, in the current money of
the United States, at the rate of $4.44 for a
pound sterling, together with 20 per cent,
damages, and interest from the time notice of
protest of non-payment was given to the de-
fendant. The counsel for the defendant be-
low objected, and offered to prove that, at the
time the bill was drawn, bills of exchange
drawn at New York on London and Liverpool
were below par ; and that the bill in question
was purchased by the plaintiff below par ; that
on the return of the bill and protest, and at
the time notice thereof was given to the de-
fendant, the rate of exchange, on England,
current in New York on bills of exchange pur
chased and remitted to England, was 15 per
cent, below par, and that they were as much
below par at the time issue was joined in the
cause ; that on the return of the bill and notice
to the defendant, he offered to pay to the
plaintiff the amount of the bill, at the then
current rate of exchange *on England, [*18
or price of bills at that time in New York, with
20 per cent, damages, and all charges ; or to
pay the 20 per cent, damages and charges at
the par of exchange, and to furnish a new and
1 — For reversing, 15 ; for affirming, 6, April lot, 2.— The like judgment was given In Yates v. Vto-
1814. cher, and in the three other causes.
JOHNS. REP., 12.
is.-,
18
COURT OF ERBORS, STATE OF NEW YORK.
1814
approved bill of exchange on London, for the
amount of the return bill ; or to deliver to the
plaintiff another and approved bill, payable in
London, in lieu of the said bill, at the rate of
£120 sterling for £100 mentioned in the pro-
tested bill; and to pay all the charges oh the
said bill. The defendant further offered to
prove, that it was the usage and custom of
merchants in the Cities of New York and Phil-
adelphia, from time immemorial, to settle and
?iy protested bills of exchange-, drawn in New
ork or Philadelphia on England, at the cur-
rent rate of exchange; or of the price of bills
at the time of the return, with 20 per cent,
damages, or to furnish a new and approved
bill oil the same principles. The evidence so
offered was objected to on the part of the
plaintiff, and rejected by the Chief Justice, as
inadmissible, and a bill of exceptions was ten-
dered to his opinion. Under the charge of the
Chief Justice, which was also excepted to; the
jury found a verdict for $4,928.56, being the
amount of the bill at the rate of $4.44 for a
pound sterling, with 20 per cent, damages,
and the interest.
The bill of exceptions, having been sealed,
was returned to the Supreme Court, pursuant
to the statute ; and the court below, on the
grounds of their former decision on the same
question, in Hendricks v. Fi-anklin, 4 Johns.,
119 ; see, also, 4 Johns., 124, gave judgment
for the plaintiff on the verdict ; on which
judgment a writ of error was brought to this
court.
The cause was argued by Messrs. D. B. Ogden
and T. A. Emmet for the plaintiff in error, and
by Messrs. G. D. Golden and 8. Jones, Jr. , for
the defendant in error.
For the plaintiff in error, it was contended
that, by the common law, the party who is in-
jured by the breach of a contract, or failure to
perform it, can recover only the damages he
has actually sustained by such breach or neg-
lect. He can claim no more than to be put
in the same situation in which he would have
been had the contract been performed. The
20 per cent, damages, on protest of such bills,
is the settled and adjudged damages for all
breaches of such contracts, and the party can
19*] *recover no more, unless he waives the
benefit of the general rule, and goes into proof
of the actual damages he has sustained.
Whether the bills were above or below par,
the holder of the dishonored bill might, with
the money he received, or the value of the re-
turned bill, and the 20 per cent, damages, go
into the market and purchase another bill, and
place himself in as good a situation as if the
first bill had been paid. Should it be said that
the rules of common law do not apply to bills
of exchange, which are creatures of mercantile
custom and usage, then it is contended that
the evidence of the mercantile usage ought to
have been admitted.
The original object of bills of exchange
was to pay debts abroad — to place funds there
or to transfer funds from a foreign to the
party's own country. The right of redrawing
exists only in the case where the holder of the
bill dishonored in the foreign country, is the
bonafide owner of it ; and in that case he has
his election either to seek satisfaction in the
country where the drawer resides, or to redraw
286
on him. If he elect the former, he is to re-
ceive redress according to the established rule*
and practice of mercantile men in the country
of the drawer. And the practice of the mer-
cantile world is to redeem dishonored bills at
the rate of exchange.
Re-exchange is explained by Chitty (Chitty
on Bills, 2d edit., 298), and it is the* law and
practice of all commercial countries, unless-
that of our own be an exception, that where a
bill of exchange is dishonored, it is to be ad-
justed and paid at the rate of the exchange at
the time. The dishonor of bills results from
losses or circumstances not under the control
of the drawer. The return of the bill shows
that he has or must sustain loss ; and if the
rate of exchange should be such that the
drawer can save anything by redrawing or
purchasing a new bill, justice and policy de-
mand that he should be permitted to do so,
since the holder of the protested bill will be
indemnified, and the loss of the drawer be
mitigated. Such is the law and practice of
Europe. In Mellish v. Simeon, 2 H. Bl., 378,
there was nothing said about the par of ex-
change. Payment was made by a circuitous
draft through Amsterdam and Hamburgh,
whereby the drawer had to pay something
more than was expressed on the face of the
original bill, but not one fourth of what the
par of exchange would have amounted to.
*The principle of the universal law [*2O
merchant on this subject is, that the drawer
undertakes that the bill shall be paid ; and
that, if it is not, he will indemnify the holder
for the failure or breach of contract. The
only exception to the rule is that which has
arisen between Great Britain and her colonies.
A certain sum was allowed on all bills drawn
in the colonies on the mother country, in ad-
dition to what the holder would be entitled to
receive under the general law merctiant. This
additional sum was different in different colo-
nies. In Pennsylvania and in New York, it
was 20 per cent.; in Rhode Island 10 per
cent. ; in India ten shillings the pagoda.
The law of Pennsylvania, which is said to
be the foundation of the rule here, was a colo-
nial law, and ceased to be of any force when
the colonies became independent states. It is
true the Act of Pennsylvania speaks of bills
returned from other parts of Europe, but the
truth is, that all payments were made through
English merchants ; it was a law made for the
benefit of the merchants in England. The
amount was to be paid in the same specie as
was paid for the original bill; and if not, the
value of that kind of coin or money was to be
paid ; and it is the relative abundance or
scarcity of specie in different countries, which
forms the course of exchange ; and exchange
is the fixing the actual value of the specie at
the time. (Montesq. Sp. Laws, bk. 22, ch. 10.}
It is not true that the 20 per cent, was given
by this colonial law as an indemnity for all
loss, risk, and damages ; it was superadded to
the difference of exchange. This was the
burden and badge of colonists, which in no
way affects the general law merchant. It was
the immemorial usage of redeeming dishon-
ored bills, practiced upon long before this colo-
nial law was passed, that the defendant below
offered to prove.
JOHNS. REP., 12-
1*14
GRAVES v. DASH.
20
The law of the United States, fixing the
value of foreign gold and silver coins has re-
lation only to the revenue, or to transactions
between the government and its own citizens. '
As between them, what is called the par of ex- i
change is, no doubt the proper rule ; but as I
between our own merchants and those of for- 1
eign countries, the rate of exchange is the only
reasonable and just rule. The reason of the
law of the mint is, that the pound sterling
would always be immutable and invariable in
its value. This is fallacious, for a guinea and
a pound sterling arc now much below their
former value. It is true courts do not take
tlii~ depreciation into view ; but merchants,
21*] and the "mercantile law, invariably cal-
culate on this fluctuation of value.
The evidence offered was not to control the
law merchant, but to show that the rule
adopted by the court below was founded on a
misconception of that law ; and that the old
colonial statute of Pennsylvania was not suf-
ficient evidence of the custom of merchants.
The chance for improper speculation in
bills is much greater, if the rule as to the par
of exchange is established, than if they were
to be adjusted at the current rate of exchange.
The drawer can never know nor foresee what
it will cost him to indemnify the holder, in
in the latter case ; and can, therefore, have no
temptation to draw on mere speculation ; but
in the former case, he can make his calcula-
tions with perfect certainty.
It is unreasonable that a dishonored bill
should be redeemed at a fixed value, or at the
par of exchange, while the buyer of bills pur-
chases at a fluctuating value, according to the
current rate of exchange. Bills of exchange
are objects of purchase and sale, or a species of
merchandise. It would be thought an extra-
ordinary rule, that a person buying goods at
their current value, should, on failure or de-
fect in the goods, be compensated, not in the
current value, at the time of such failure, but
by some ancient or different value at some
former period. The party damnified is to
receive what, at the time when he is entitled
to an indemnity, the article, in its perfect
state, would be worth.
For the defendant in error, it was contended
that it never could be reasonable or just to tell
the holder of a dishonored bill that, instead
of receiving the $100 which he had paid for
it. he should receive $80 only, which is the re-
sult of the rule contended for by the other
side. The contract is, that if the drawee does
not pay the pounds sterling mentioned in the
bill, the drawer, on notice thereof, will pay
the same. The only question is, what is the
value of a pound sterling? If its value is fixed
by the law of the land, no evidence can be
necessary on the subject. Now the Acts of
Con^rr^s relative to Duties, and i<> tin- .Mint,
have fixed this value at $4.44 the pound ster-
2 2* J ling. He-exchange, *as defined by Po-
thfer. Du Change, n. 64. 65. 68 ; Chitty (Chitty
on Bills, 298, 299), and other writers, shows
the reasons on which the rule as to 20 per
cent, damages has been founded.
The notion of redrawing is not applicable
to the case. If it were, the principle on which
it proceeds is not that the holder is to have a
new bill from the drawer : but the holder of
JOHNS. UKI-.. 12.
the dishonored bill, in the foreign country,
redraws on the drawer. Otherwise, the con-
venience of traveling, or purchasing goods
abroad, which is the principal object of ex-
change and re-exchange, would be wholly lost.
And the very rule of allowing 20. 15, or 10
per cent, damages, on protested bills from
abroad, shows that the dishonored bill was
not to be paid by drawing a new bill ; for it
would very seldom happen that the holder
would want his money in England or the West
Indies.
In Virginia (Slacum v. Pomtroy, 6 Cranch.
221) 15 percent, damages is allowed by statute,
and there is no doubt that the rule of allowing-
20 per cent, damages in this State hus been
adopted, in mercantile practice, from neighbor-
ing states. The case of Francis v. Rucker,
Ambler, 672, clearly shows' that, by the law of
Pennsylvania, the 20 per cent, was given in
lieu of all consequential damages, whether ex-
change, re-exchange or disappointment, in re-
gard to the funds. And the general rule of giv-
ing the holder the amount of the bill, at the par
of exchange, with the 20 per cent. , dispenses as
equal justice as it is posssible to obtain, in
such « variable transaction.
Suppose the holder redraws on the drawer
of the dishonored bill, and thereby gets the
exact sum at the place where he wished to have
it, can he, afterwards, return to this country
and demand the 20 per cent, damages, because
the original bill was dishonored ? Certainly
not. This shows, conclusively, that the 20
per cent, is liquidated damages, for all the dif-
ference of exchange, and every other damage
or inconvenience resulting from the protest. It
is admitted that the holder is entitled to the
20 per cent, in all cases ; but suppose, at the
time of the return, bills are 40 percent, below
par, what would become of his 20 per cent. ?
Again, if the drawee sold the bill at 20 per
cent, above par, and on its being returned dis-
honored, bills should be 20 per cent, below
par, he would make a profitable speculation.
To say that the holder shall be obliged to ac-
cept a new bill, instead of money, would be to
compel him to keep his money abroad, for an
•indefinite period, unless he should [*2IJ
agree to accept one half the mdney, perhaps,
which he paia for the original bill.
The evidence offered by the defendant below
was properly rejected by the Chief Justice, be-
cause usage or custom can never be admitted
to show that a less sum shall be a satisfaction
of a debt, when positive law has fixed it at a
larger sum. Usage is admissible, only, to show
the nature of a contract, not to extend or alter
its effects.
LEWIS, Senator, was of opinion that the
judgment of the Supreme Court ought to be
reversed, and delivered his reasons at length,
but which the reporter regrets he is unable to
state.
WILKTN, Senator, declared himself to be of
the same opinion.
SANFORD, Senator. After the fullest delib-
eration which I have been able to bestow on
this cause, I am of opinion that the judgment
of the Supreme Court was right. It is highly
287
23
COURT OF ERRORS, STATE OP NEW YORK.
1814
expedient that the amount to be recovered on
dishonored bills of exchange should be deter-
mined by a certain and uniform rule; and such
is the rule adopted, and settled by the Su-
preme Court, They have rightly determined,
that, in this, as in other cases of contracts, the
rule by which the amount or extent of redress
should be ascertained, is a question of law. I
forbear to discuss the several rules which have
been proposed, or to comment on the argu-
ments which have been urged in support of
them. I mean, merely, to state my own con-
clusion, and to express' my approbation of the
rule adopted by the Supreme Court. My
opinion, therefore, is, that the judgment below
ought to be affirmed.
P. W. RADCLIFF, Senator, declared himself
of the same opinion,
YATES, Senator, concurred.
VAN BUREN, Senator, declared himself to
be of the same opinion. He thought it safest
to affirm the judgment of the Supreme
24*] *Court ; and if the rule adopted by that
court was found to be really inconvenient or
wrong, the Legislature ought to regulate the
mode of settling protested bills, by statute.
WENDELL, BISHOP, HAGER, STEWART,
TOWNSEND, and VANBRYCK, Senators, con-
curred.
ELMENDORF, Senator, was of opinion that
the judgment of the Supreme Court ought to
be reversed.
HUBBARD, BLOODGOOD, ATWATER, BLOOM,
CLARKE, KEYES, TABOR, and ROUSE, Senators,
were also of the same opinion.
A majority1 of the members of the court
being of that opinion, it was, therefore, or-
dered and adjudged that the judgment of the
Supreme Court be feversed, &c.; and that the
said John B. Graves recover his costs, &c.,
and the record be remitted, &c.
Judgment of reversal,.
Cited in— 5 Cow., 161 ; 14 Barb., 156 ; 18 Abb. Pr.,
44; 6 Rob., 117.
25*1 *WILLIAM OGDEN AND JOHN R.
MURRAY, Plaintiffs in Error,
THE NEW YORK FIREMEN INSURANCE
COMPANY, Defendants in Error.
Marine Insurance — Abandonment — Embargo
Sufficient Cause for — Total Loss — Insured
cannot Purchase without Waiving Abandon-
ment.
If- A detention of a vessel, by an embargo, is a justi-
fiable cause of abandonment, on a policy of insur-
ance.
After an abandonment for a total loss, though not
accepted, the insured cannot purchase the property
at a sale, without its being a waiver of the abandon-
ment ; though he has given notice to the insurer of
the time and place of sale. See S. C. Vol. X., p. 177.
THIS cause came before this court on a writ
of error from the Supreme Court. For
1. April 1st, 1814. For affirming 10 : for revers-
ing 11.
288
the facts and judgment of the court below, see
S. C., Vol. X., pp. 177-180.
The cause was argued by Messrs. Golden
and T. A. Emmet for the plaintiffs in error,
and by Messrs. S. Jones, Jr., and D. B. Ogden
for the defendants in error.
Arguments for the plaintiffs in error. As to
the right to abandon in this case, there can be
no question. (5 Johns., 299. 310; Marshall
on Ins. 508; Park on Ins., 109.) The only
point in controversy is, whether the sale and
purchase in this case was a waiver of the
abandonment. If another person, other than
the plaintiffs, had purchased, though for the
benefit of the insured, it is not contended that
it would amount to a waiver of the abandon-
ment. The declaration of war does not de-
stroy the contract, but puts an end to the voy-
age, so as to entitle the insured to recover for
a total loss. The war intervened after the
abandonment, which was not accepted by the
insurers, as it ought to have been. All the
difficulties which arose afterwards were the
consequence of the improper conduct of the
insurers.
We deny that the abandonment, in this case,
vested the property in the insurers, so that the
insured had no right to interfere with it. The
insured has a right to sell the property, after
an abandonment, which the insurer has re-
fused or neglected to accept, and to pay the
loss. (Abbot v. Broome, 1 Caines, 295 ; Hamil-
ton arguendo ; Walden \. Phoenix Ins. Co., 5
Johns., 310.)
If the insured has no lien after a rightful
abandonment, yet he has the legal possession,
and has a right to sell and keep the proceeds,
in part payment of the loss. If the insurers
refuse to accept the abandonment, and pay the
loss, the insured may refuse to give up the
property until paid. It is, qua a mortgage ;
*and the insured is not bound to look to [*26
the insurers for more than the residue remain-
ing unpaid, after the sale.
The insured cannot be properly considered
as a trustee, but is rather a mortgagee, with
the additional circumstance, that the conduct
of the insurer has forced him into that situa-
tion. In Robinson &Harts1wrne v. United Ins.
Co., 1 Johns., 592, it is true the insured were
trustees, and plainly because the assurers had
accepted the abandonment, and paid the loss ;
and during the time the insurer has to make
his acceptance, or to refuse the offer of aban-'
donment, the insured is a trustee. But where
an abandonment has been rightfully made,
and wrongfully refused, and the property is
left in the hands of the insured, he is not, in
that case, a trustee. The law will not impose
on him, against his will, so responsible a char-
acter as that of trustee. If it be said that the
insurers have not had their interest duly pro-
moted, we answer, that if they had done their
duty, they would have accepted the abandon-
ment, and taken care of the property them-
selves. In all the cases which may be cited,
it will be found, either that there has not been
time for the insurer to accept, or there has been
a refusal of the abandonment.
In this case, the plaintiffs ought to be placed
in the condition of a mortgagee, or rather, in
a better situation, because the situation has
been forced upon them, against their wish or
JOHNS. REP., 12.
1814
OODEN v FIREMEN INS. Co.
consent, by the insurer*. It would be very [Ins., 581 ; 1 Esp., 287; 8 Mass.. 87; Marsh,
inequitable, to allow the insurer to derive a ! on Ins., ed. by Condy, 582; 2 Mass., 565.)
privilege or advantage from his own miscon- 2. Whenever, after an abandonment has
duct, and to throw a disability or disadvant-
age on the insured, against his will, and in
consequence of his acting ex nefemitate.
been rightfully made, on an existing technical
total loss, the insured does* a voluntary act
which removes the technical total loss, and
Hut even if the insured is considered a trust- enables the properly 'insured to proceed [*28
ee, it cannot vary the case. Notice was given j on the voyage insured, such voluntary act shall
to the insurers that it was necessary, for the ! be a waiver of the abandonment,
interest of all parties concerned, to sell. This Where the act is done bv the captain, super-
was sufficient to put them on their guard, and cargo or agent, and it is aherwards ratified or
they should have seen whether the trustee was adopted by the insured, it must be deemed, in
IK tin-' for their interest, or have given him in- 1 its legal operation, as if done by the insured
structions. As they did not .see fit to say any-
thing on the subject, the trustee had a right to
purchase. A mortgagee may sell, and yet be-
•come a purchaser. lithe insured had a right
to buy, he certainly had a right to use and em-
ploy the vessel. It is true the insured could
not prosecute the original voyage, or the one
insured, on their own account. They did
27*] *not attempt this, but sent the vessel on
a new and different voyage.
The case of Abbot v. Broome, 2 Caines' Cas.,
263, is not analogous to the one before the
court ; for here was a notice of sale, and it was
clearly for the interest of the insurers, that
Murray attended the sale, and bought in the
vessel. If he had not done so, she would have
sold for a less price, and the loss of the insur-
•ers have been much greater. It may be said,
perhaps, that the insured, in attending the sale,
was actuated more by a view to his own in-
terest than that of the insurers ; but the notice
given by him to the insurers was sufficient to
•counteract any such intention ; for the insurers
might have sent an agent to attend and bid, so
.as to compel the insured to purchase at the
highest price. The case of Abbot v. Sebor, 3
Johns. Cas., 89, is contrary to that of Abbot v.
Broome, though the circumstances are the
same. There was an employment of the
vessel by the insured, after the purchase,
in both cases; and such also was the case
of Saidler dk Oraig v. Church, 1 Caines, 297,
. in note.
Again; if a trustee wishes to purchase the
property of the cestui que trust, equity will
discharge him from his trusteeship, so far
-as .to enable him to do so ; but in a case like
the present, equity could not relieve ; nor
does law or equity ever recognize a party
standing in such a situation, by necessity, as a
trustee.
Even if the doctrine of trusteeship were ap-
plicable, it would only enable the insurers to
• consider the property as purchased for them,
if he preferred to do so ; and in the present
• case, they have not chosen so to consider it,
which clearly shows that the property has not
been sacrificed, as is pretended. This doctrine
• of trusteeship does not make a repurchase a
waiver of abandonment. The doctrine that a
.repurchase is a waiver of an abandonment,
stands on different principles.
It may be comprehended in twn positions :
1. Whenever, before an abandonment is made,
.a technical loss exists, the insured voluntarily
does an act which enables him, at a loss less
than half the value, to pursue the voyage in-
sured; this voluntary act turns the previous
technical total loss into a partial loss, and de-
stroys the right of abandonment. (Marsh, on
himself, at the time it was, in fact, done
by such agent. And the case of Saidler A
Craiff v. Church would have fallen under the
first position, if it had occurred after the de-
cision of the Court of Errors, in Church v. Be-
dient, 1 Caines' Cas., 21 (in 1804); but it was
at that time, held that an abandonment made
in ignorance of the total loss having ceased,
was valid. 1 Johns. Cas., 147, 154, (in 1799.)
Bul.considering the abandonment as rightfully
made, the case of Saidler & Craig v. Church,
and that of Abbot v. Sebor, if it be law, must be
classed under the second position.
From these two positions, and
from the second, may be deduced this coro
lary :
8. Where, on a technical total loss, an aban-
donment has been duly made, no rightful act
of the insured, which does not do away the
technical total loss, and enable the property to
proceed on the voyage insured, shall be con-
strued as a waiver of the abandonment. And
this corollary is entirely applicable to, and
ought to govern the decision of the case now
before the court. These positions secure to
the insured an indemnity, and no more.
Arguments for the defendant* in error. The
decision of the court below was founded on
clear and well-settled principles of law. An
act of abandonment transfers the whole prop-
erty to the insurer, and gives him the posses-
sion, and as complete control of it as if there
hud been a regular bill of sale and delivery,
and the insured have nothing more to do with
the property. His remedy is on his special
contract, and if well advised, he will not inter-
meddle with what he has once renounced and
abandoned. He agrees, by the policy, that if
he takes any siep in regard to the property
abandoned, that he will act as agent of the in-
surer. Any intermeddling, therefore, with
the property, after an abandonment, is in con-
tradiction to the act of abandonment, and a
waiver of it. It is only in consequence of the
absolute renunciation of all right, possession
and use of the property, that the insured are
entitled to recover for a total loss ; and when-
ever the insured has subsequently intermeddled
*with or used the property, and there [*2J>
has been a recovery for a total loss, there has
been an assent or acquiescence on the part of
the insurer. (8 Johns. Cas., 89; 1 Johns.,
613.)
There is no such repugnancy or contradiction
between the cases of Abbot v. Broome and Abbot
v. Sebor as has been suggested. In the one
case there was an affirmance of the acts of the
assured by the assurers, and in the other there
was not, but the contrary. The right of the
insurer to affirm the acts of the insured, or his
JOHNS. REP., 12.
N. Y. R., 5.
19
29
COURT OF ERRORS, STATE OP NEW YORK.
1814
agents abroad, is settled in the case of Robert-
son & Hartshorne v. The United Ins. Co.,
which case accords with the principles for
which we contend.
The insured, by the present case, have exer-
cised the highest act of ownership over the
property, by a sale of it. The case of Walden
v. The P/tcentx Ins. Co., 5 Johns., 310, decides
that the insured cannot buy the property. The
principles of the law of insurance are well set-
tled, that in all cases of abandonment, the
assured and their agents, captain, supercargo,
(fee., thenceforward, ex necessitate, become the
agents of the insurer : they tx&gwuibfa agents,
of course, without further ceremony ; and this,
even where the abandonment takes place at a
port where both parties and all their agents re-
side and are present. If, however, the insured
or his agent do an act beyond what the neces-
sity of the case requires, such act may be
affirmed or not by the insurer. If the insured
buys in the property, the insurer may sanction
the purchase, and the abandonment remain
good, and the insured must account to the in-
surer as his principal ; but if he does not assent
or affirm the purchase, the abandonment is
waived and annulled.
Considering the insured as trustees, the case
of the respondents becomes still stronger. A
cestui que trust can never be devested of
his property, unless under a sale by his own
directions, under a judgment of law ; or unless
made to a stranger without notice. It is to be
observed, that the ship's papers remained in
the name of the appellants, after the sale, pre-
cisely the same as they were before the aban-
donment. The appellants clearly exceeded
their powers as agents or trustees • and having
acted for themselves, as owners, they must be
considered as waiving the abandonment.
It is a settled rule in equity, that a trustee
shall never purchase trust property unless he
3O*] has some interest therein, as well *as the
cestui que trust, or purchases of and from the
cestui que trust. (Monroe v. Allaire, 2 Caines'
Cas., 183-191, per Benson, J.; 8 Ves., Jr.,
345, 346 ; 13 Ves., Jr., 600 ; 2 Bro. Ch. Cas.,
400 ; 9 Ves., Jr., 217.) This doctrine applies
with great force to cases of insurance. By-
standers will seldom bid at sales of property
in that situation, where they see the original
owner is himself bidding, with a view, as they
may suppose, to save something from the
wreck. The assent of the cestui que trust
ought to be understandingly given, otherwise
the purchase by the trustee is void. The cestui
que trust may, if he chooses, affirm the pur-
chase ; and the cases cited on the other side
are those in which the purchases were so
affirmed. The rights of the insurer can never
be affected by any acts of the insured, without
his consent ; it is the purchase by a trustee, not
the sale, that is forbidden by law.
The subsequent employment of the vessel
shows in what character the appellants acted,
and whether they purchased as the agents and
trustees of the respondents. For they must
have acted without any instructions from the
respondents, and indeed, without their knowl-
edge.
The notice given to the respondents cannot
affect the decision of this cause. They had
every reason to suppose, from that notice, that
21)0
the sale would be regular, and according to the
rules of law ; and therefore, that the insured
could not buy in the property. The insurers,
it is true, might have attended the sale, but thir
omission to do so cannot prejudice their rights
or vary their situation. The case of a mort-
gagee is different from that of a trustee. The
mortgagee does not sell the property. It is a
judicial sale, or sale by operation of law. Be-
sides, the mortgagee is a party in interest.
The case, therefore, of a mortgagee, is not an-
alogous to the present.
The case of Storer v. Gray, 2 Mass., 565,
in the Supreme Court of Massachusetts, was
overruled in that of Oliver v. Newburyport
Marine Ins. Co., 3 Mass,. 37, and in which
they sanction the principles laid down in
Abbot v. Broome, Saidler & Craiff v. Church,
and Robertson & Hartshorne v. The United Ins.
Co.
LEWIS, RADCLIFF, and SANFORD, Senators,
expressed themselves to be entirely satisfied
with the decision of the Supreme Court, that
it was founded on sound and just principles ;
and that, assenting to the judgment and the
reasons given by the court below, they did not
think it necessary to state their reasons at
*length, but contented themselves with[*31
declaring their opinion, that the judgment of
the Supreme Court ought to be affirmed.
This being the unanimous opinion of the
court, it was therefore ordered and adjudged
that the judgment of the Supreme Court be.
in all things, affirmed, &c.
Judgment affirmed.
Affirming— 10 Johns., 177.
Cited in— I Wend., 574; 1 Mason, 344.
ISAAC CLASON, Plaintiff in Error,
v.
GILBERT SHOTWELL, Defendant in Error.
Practice — Jurisdiction of Court of Errors — Every
Final Sentence or Decision of the Supreme
Court deemed a Judgment — Certiorari, where
Death of Justice Prevents Return — Investigated
by Supreme Court on Affidavits — Court of
Errors may Review on Writ of Error.
Every final or definitive sentence or decision of
the Supreme Court, by which the merits of a cause
are settled or determined, although such sentence
is not, technically, a judgment, or the proceedings
are not capable of being enrolled, so as'to consti-
tute what is technically called a record, is a judg-
ment within the meaning of the Constitution of this
State, and is subject to the appellate jurisdiction of
the Court of Errors. Aliter, as to interlocutory or-
ders of the Supreme Court. Where, on an indict-
ment for a forcible entry and detainer, no return
could be obtained to a certiorari, by reason of the
death of the justice, before the proceedings were
had, the Supreme Court investigated the cause on
affidavits, and awarded a re-restitution ; it was held
that the Court of Errors might, on writ of error,
review the proceedings, on the evidence presented
to the court below.
Citations— Jenk. Cent., 216, pi. 59 : 2 Hawk., b, 2,
ch. 24, sec. 44; 1 Sid., 156; 1 Keb., 572, 585; 1 Lev.,
113 ; Com. Dig., tit. Forcible Entry and Detainer,
D.; Str.,794; 1 Ld. Raym.,454; 1 Sid., 287; 3 Salk.,
287 ; Viner, tit. Forcible Entry and Detainer, O., 2 ;
Bacon, h, t, G. ; Hawkins, h, t, bk. 1, ch. 64, sec. 63;
JOHNS. REP., 12.
1814
CLASON v. SHOTWELL.
SI
»Dy., 122 h, pi. 24; Cro. Ella., 915; Yelv.,32; Yelv..
99: Cro. Jac., 151 : T. Itaym.. 85; 1 Keb.,343; Comb,
327- Salk.,587; Cas. temp. Hanlw., ItU; Dulton. Jus-
tice., ch. 134. p. 319; 1 Cai., 125; 2 Cai., 179 : 3 HI. Coin.,
55 : 2 Bro. P. C.. 554, 179 ; 3 Bro., ITS ; 2 IJinn., «0, 91 ;
6 Crunch. 20tt; 2 Blacks., 892; Barnes, 178; 2 Salk.,
588; Colics, Bro. P. C. Str.. 615 ; 1 Johns. Cas., 523.
cause came before this court on a writ
J. of error from the Supreme Court. For
the facts in the case, and the judgment of the
court below, see. Vol. X., p. 304.
The following was the form of the record
and entry of judgment in the Supreme Court :
in which the cause was thus entitled : "In the
matter of Gilbert ShotuxU."
After the plttcita, in the usual form, the rec-
ord proceeded as follows :
" Westchester, «.
Be it remembered, that, heretofore, to wit :
in May Term, in the year one thousand eight
hundred and thirteen, to wit : on the 6th day
of May, in the same year, before the justices
of the people of the State of New York, of the
Supreme Court of Judicature of the same peo-
ple, at the City Hall of the City of New York,
came Gilbert Shotwell, by William Slosson,
his attorney, and Ihen and there, before the
312*] said justices, *prayed to be restored to
the possession of a certain house and farm,
with the appurtenances, situate in Yonkers, in
the County of Westchester, from which he
and Samuel Briggs, or one of them, were ex-
pelled, as he says, on the 5th day of February,
now last past, and then and there, in support
of his said prayer, did produce to the said
Court certain affidavits, which he prayed
' might be read by the said Court, and the same
were accordingly read by the said Court, and
the same are in the words and figures follow-
ing, to wit :"
Then followed, in hoc verba, the affidavits
produced on the part of Shotwell.
" And the said Gilbert Shotwell, by his said
attorney, then and there prayed the said Court,
that upon the said affidavits, so produced and
read to the said Court, he and Samuel Briggs
might be restored to the possession of the
dwelling house and farm, with the appurten-
ances, situate in the town of Yonkers, in the
said County of Westchester, and that a writ of
restitution might be awarded accordingly.
Whereupon the said court did, then and there,
order, that Isaac Clason, George De Peyster,
and William A. Thompson, show cause, before
the said Court, at the City of New York, on
Friday, the 14th day of May, then instant, at the
opening of the court, or as soon thereafter as
counsel could be heard, why the said Gilbert
Shotwell and Samuel Briggs, or one of them,
should not be restored to the possession of the
said house and farm, according to the prayer
of the said Gilbert, or for such other or further
order and relief as the court should then and
there grant ; and that copies of the* aforesaid
affidavits be served on the said Isaac Clason.
George De Peyster, and ^yilliam A. Thomp-
son, respectively ; at which day and place
came the parties aforesaid, and the said Isaac
Clason produced certain affidavits in opposi-
tion to the prayer of the said Gilbert Shotwell.
which he prayed might be read by the said
Court, and they are read and filed by the said
Court, in the words and figures following; that
is to say."
JOHNS. REP., 12.
Here followed the affidavits on the part of
Clason. in hoc terba :
*"And the said Isaac Clason, there- [*33
upon, prayed to be dismissed the court, with-
out day, of and concerning the prayer of the
said Gilbert Shotwell, and that the prayer of
the said Gilbert might be denied, with costs,
A.T. But because the said justices are not yet
advised what judgment to give of and con-
cerning the premises, day is, therefore, given
to the parties aforesaid, to appear before the
said justices, at the Capitol in the City of Al-
bany, on the first Monday of August next, to
hear their judgment of and concerning the
premises, because the said justices are not yet
advised, &c., at which day and place come the
parties aforesaid, and all and singular the
premises being seen, and by the court now here
more fully understood, and mature delibera-
tion being thereupon had.
It is considered that the said Gilbert Shot-
well and Samuel Briggs be restored to the pos-
session of the house and farm in Yonkers, in
Westchester County, from which they, or one
of them, were expelled, on the 5th day of Feb-
ruary, one thousand eight hundred and thir-
teen, and that a writ of re-restitution be award-
ed accordingly."
A preliminary question was raised for the
consideration of this court, to wit : whether a
writ of error would lie in this case. But this
question, by consent of the counsel of both
parties, ana with the advice of the court, was
agreed to be argued at the same time with the
points arising on the merits of the cause, as de-
cided on by the Supreme Court.
The counsel for the plaintiff in error stated
the following points :
1. That the judgment of the Supreme Court,
and the award of re-restitution, in this case,
are proper to be reviewed in this court by writ
of error.
2. The Supreme Court have no original
jurisdiction, by affidavit alone, without writ or
process.
3. Even if the want of a writ of certiorari,
or other process, could be supplied by affidavit,
yet there was no judicial proceeding before
the justice, nor any award of restitution made
by him.
4. Admitting that there was a judicial pro-
ceedine by the justice, yet the equivocal and
temporary possession acquired by the defend-
ant in error, was by force or fraud ; and the
Supreme *Court ought, therefore, in the [*34
exercise of a sound legal discretion, to have re-
fused to restore him again to that possession,
against the lawful owner or possessor.
Mr. J. V. N. Yates, for the plaintiff in error.
1. A writ of error lies in this case. A cer-
tiorari is the subject of pleading. (2 Caines,
179,188. 3 Johns. Cas., 107.) The conviction
before the justice is a record, and although the
general and common mode of bringing the
matter in review before the Supreme Court is
by certiorari, yet a writ of error will lie. (1 N.
R. L., 96 ; 2 R. S., 510 ; Fortesc., 173.) In the
case of The Queen v. Layton, 11 Mod., 236, the
words of the conviction were, " therefore it is
considered," &c., and the decision of the
court that the conviction be affirmed, shows
that it was in the nature of a judgment. (1
Keble, 563, 572 ; 8 Johns., 44 ; 2 Burns' Just..
34
COURT OF ERRORS, STATE OF NEW YORK.
1814
179, 180 ; 3 Ld. Raym., 360 ; 1 Lev., 113 ; 1
Sid., 56.) In King v.. Chaloner, 2 Salk., 450,
the Court of K. B. said the record of force
might be quashed without a writ of error, if it
was insufficient, plainly showing that a writ
of error lies. And so in the case of The Queen
v. Layton, as reported in Salkeld, 1 Salk., 263,
144 ; 3. C., 3 Salk., 148, the court say, if a tine
be set, the conviction cannot be quashed on
motion, but the defendant must bring a writ
of error.
In Groenvelt v. Burwett, Ld. Raym., 213, 254,
454, Holt, Ch. J., held that whenever a new
jurisdiction is erected by Act of Parliament,
and the court or judge that exercises this juris-
diction, acts as a court or judge of record, ac-
cording to the course of the common law, a
writ of error lies on their judgments; but where
they act in a summary method, or in a new
course, different from the common law, then
a writ of error does not lie, but a certiorari.
And in The Queen v. Layton, as it appears in
1 Salk., 106, and in The Queen v. Foxby, 1
Salk., 266, it was held that where the record
of conviction was removed by certiorari, a writ
of error lies coram vobis, &c., which was held
to be the proper course ; though, in the latter
case, the Chief Justice said the court was well
possessed of the cause by a writ of error on the
conviction, without a certtorari.
" A judgment," saysBlackstone, 3 Bl. Com.,
396, " is the determination and sentence of the
law. It is the conclusion that naturally and
regularly follows from the premises of law
and fact ; " and it is expressed by the words,
" therefore, it is considered by the court." If
the justice's proceeding and conviction was in
the nature of a judgment, the decision of the
Supreme Court is a judgment thereon.
Spencer, J., in the case of Yates, 6 Johns.,
402, gives a correct definition of a judgment,
35*] or judicial proceeding, on which *a writ
of error will lie. Whenever a decision takes
place in the Supreme Court, which is final,
and of which a record can be made, and which
shall decide the rights of property or personal
liberty, in such case the statute gives jurisdic-
tion to this court. Coke, Co. Litt., 288 6, says,
a writ of error lies when a man is grieved by
any error in the foundation, proceeding, judg-
ment or execution. But without a judgment,
or award in the nature of a judgment, no writ
of error lies ; and in Metcalfs case, 11 Co., 38-
41, he states the exceptions to the general rule,
that error does not lie, but on a judgment, &c.,
and which will comprehend the present case.
So a man may have a writ of error before all
parts of the cause are decided, as on demur-
rer, before a writ of inquiry of damages is ex-
ecuted (1 Roll. Abr.., 751 ; 11 Co., 41) ; or in
quo warrants, where judgment is given for
part of the liberties claimed, and the court
take time to consider as to the other part.
(Palmer, 1, 2.)
In Ascue v. Fulijambe, Cro. Eliz. , 236, it was
held that a writ of error would lie on an award
of execution on the statute merchant, though
no writ of error would lie on an erroneous ac-
knowledgment of the statute, but an audita
querela. So, a writ of error lies on a fine and
recovery, though the word "judgment," or
anything in the form of a judgment, is not to
be found in the writ or proceedings. (1 Roll.
292
Abr., 747 ; Ball v. Cork, Lilly's Entries, 280 ;
1 Roll. Abr., 778, 789.)
Where bail brought a writ of error, as well
for error in rendering the judgment, as award-
ing the execution on the scire facias, though
the writ of error was quashed as to the judg-
ment against the principal, yet it was allowed
to stand good as to the judgment against the
bail on the scire facias. (Burr v. Atwood, \ Ld.
Raym., 328 ; S. C., Garth., 447.) So, where a
writ of error was brought as well for the ren-
dering of judgment against the testator, as
awarding execution against the executors
(Strange, 1055), it was held good as to the
award of execution.
Whatever judgment the court below may
have given on the proceedings certified by the
justice, whether to quash, affirm or reverse
them, it is such a judgment that error will lie
thereon. •
If the Supreme Court had jurisdiction of
the cause on the affidavits, then all the pur-
poses which could have been effected by a
certiorari are as well effected by the affidavits.
The court has the same view of the proceed-
ings before the justice. Having elected to
bring the matter before the Supreme Court by
affidavit, the opposite party cannot thereby be
deprived of his right to have the decision
of that court reviewed. The Supreme
*Court might have ordered a joinder in [*36
error, and considered the return, of which a
memorandum was made by Mr. Munro, as a
return to the writ.
The common law (2 Salk., 504), as well as
the Statute (sess. 24, ch. 25 ; 1 N. R. L.. 143),
encourages writs of error, declaring them to
be writs of right, and grantable ex debito justi-
tice, and not as matter of grace or favor.
2. As to the merits : first, we contend that
the Supreme Court had no jurisdiction in the
case, by mere affidavits alone, without writ or
process.
The cases cited in the court below do not
support the position that the court could pro-
ceed without writ. King\. Ohaloner, 1 Sid.,
156 ; 1 Lev., 113, came up on habeas corpus,
and The Queen v. Layton, 1 Salk., 106 ; S. C.,
2 Salk., 450, on certiorari.
No case can be found of the Court of K. B.
exercising its superintending power over infe-
rior courts or jurisdictions, without writ or
process. In Rex v. Elwell, 2 Str. , 794, where
there was no fine set by the justice, the party
was brought up on habeas coi-pus, and the re-
turn stated the cause of his commitment to be
on a conviction of forcible entry and detainer ;
and the court refused to consider the excep-
tions, until the conviction was regularly
brought before them, by certiorari. This cause
was decided long subsequent to the others, and
settles the rule on the subject. As to the sup-
posed necessity of proceeding on affidavits, in
consequence of the death of the justice, it is
enough to say that his death cannot alter the
rule of law ; and there is a remedy for the
case, for the certiorari might be directed to the
executor or administrator of the justice. (1
Bac. Abr., Ceftio., C, 568 ; 2 Hawk. P. C., ch.
27. sec. 41 ; 1 Dyer, 163 ; Dalton, 6, 134.)
In Ramsay v. Crary, 3 Caines, 126. where a
justice left the State without making a return
to a certiorari, the court did not think it a suf-
JOHNS. REP., 12
1814
CLASON v. SIIOTWELL.
86
>n for substituting anything else for
of the justice. In Bruufi v. Tag
licit-lit reason
the return of the justice.
garl, 7 Johns., 19, the Supreme Court would
uot allow parol evidence to be given of the
contents of a eertiorari. The writ itself, or an
office copy of it. must be produced, or satis-
factory evidence must be given of its being
lost. There was no evidence, in this case, of
the loss of the writ. The language of Haw-
kins, Hawk., P. C. bk. 1, ch. 54, sec. 63, 64.
where he speaks of the proceedings being re
moved, shows that there must be a writ.
(Sayer. 17V ; Saville. 68 ; Cro. Eliz., 31 ; Noy,
119; Yelv.,99; Cro. Jac.. 148.) TheSuprcme
Court ought to have required a return to the
ctrtiorari, or have issued another writ. (1 Bac.
Abr., Cert.. K, 574; 2Keb.. 1142.) The record
37*] made bv the justice *on view, ought to
be made a judgment, and certified into the Su-
perior Court. (3 Bac. Abr., Fore. Ent. and
bet., E. 255 ; Palmer, 277 ; Dalton, 44.)
3. The draught of a return to the eertiorari
prepared for the justice, makes no mention of
re-restitution ; and, indeed, such a mode of
preparing the returns of justices is not sanc-
tioned or approved by the Supreme Court. (7
Johns., 548.) Whatever the justice did, which
is not contained in the record of his acts, is
not to be considered as donecotoreofficii. If the
affidavits are attentively examined, nothing
will be found to show that there had been le-
gally a change of possession. Parol evidence
is not admissible as to the contents of the writ
of eertiorari, the justice's return, or any of his
proceedings ; for his return is not traversable.
(8 Johns., 48.)
4. The Supreme Court ought not to award
re-restitution, where the rteht of possession
has not been established. (Hawk. PI. Cr., bk.
1, ch. 65; Comber, 828; Cro. Eliz., 576; 2
Salk., 587; Dyer. 123 pi. 24 ; 1 Keb., 343.)
And, even if Shotwell had the possession, the
court below ought not, under the circumstances
of the case, to have awarded re-restitution.
Though the plaintiff in error might have been
indicted, and fined, for a breach of the peace,
yet, having regained the possession of his own
land, the posession ought not to be again given
to the other party. (4 Johns., 158, per Spen-
cer, «/.; 1 Johns., 44.)
Me»»r$. T. Sedgwick and Henry, contra, con-
tended :
1. That no writ of error would lie in this
csise. The Supreme Court had jurisdiction.
The issuing and delivery of the writ of
eertiorari gave jurisdiction instantly, so that
there could be no further proceeding whatever
before the justice. (1 Bac. Abr., Certio., G,
570, 571 ; 2 Hawk. P. C., ch. 27, sec. 64 ; Ld.
Kaym., 835, 1305.) It is true that parol evi-
dence of the contents of the writ or return is
not admissible ; but this rule does not apply in
summary proceedings, in the same court from
which tfie writ issued. The writ supersedes all
proceedings in the court to which it is sent or
delivered. (Yelv., 82; Hal. P. C., 215.) When
the justice received the writ, his jurisdiction
ceased. His power of proceeding was at an
end. And it would be monstrous if no court
had jurisdiction of the matter. The Supreme
Court had power to enforce a return to the
writ, by an attachment. Where a court pro-
ceeds summarily, so that an issue in law or in
JOHNS. RBP.. 13.
fact is precluded, no writ of error can lie.
Here is no fact confessed, or found, and
without such fact, no *judgment of law, [*38
according to the definition of Blackstone, 3
Bl. Com., 896, 897, which was not fully stated
by the other side, can be ^iven. There is no
precedent for such a record, as the papers
before the court are improperly called. The
form of the judgment stated in this pretended
record, is not justified by the proceedings
below. The words " therefore it is considered "
are never used by the court in deciding on mo-
tions. The record is not a judgment roll,
though signed by the clerk ; it has been made
up by the attorney of the plaintiff in error. In
the cases relative to statutes merchant and a
fine, there is a judgment of law, on which an
execution may issue. There are many decisions
and determinations of the Supreme Court
which are final, and which affect the person
and property, but on which no writ of error
can lie ; as in amerciaments, granting new
trials, relieving bail who are fixed, mandnmv».
prohibition, and in numerous other cases which
might be mentioned. If the party complains
that he is aggrieved by the Supreme Court
grantiug an execution erroneously, is it possi-
ble that a writ of error lies to this court ?
Again ; this court having only an appellate
jurisdiction, cannot decide on facts. The Act
(N. R. L., 181, 132 ; 2 R. S., 166) organizing
this court, from the generality of the express-
ion, might, perhaps, lead to a different con-
clusion. But in construing that Act, we
ought to look to the English statute, from
which its provisions were taken. The Stat.
27 Eliz., ch. 8 (See Bac. Abr.. Error, I, sec.
2, 480), has the same general words. The writ
of error is to go to the Chief Justice, to cause
" the record and all things concerning the
same," &c., to be brought before the judges
of the Exchequer Chamber. Our Statute did
not intend to confer larger powers on this
court than is conferred by the English stat-
ute on the Court of the Exchequer Chamber ;
and it has been decided that the Statute of 27
Eliz., ch. 8, does not extend to errors in fact.
(2 Bac. Abr., Error, I, sec. 6; 2 Lev., 38,
Vent., 207 ; Cro. Jac., 5.) If this court, then,
from the nature of its organization, cannot de-
cide on factn, the present cause is not legally
before the court. If there had been a return
to the eertiorari, there would then have been
a record of the Supreme Court, which, in it-
self, would be absolute verity, and preclude
all inquiry as to facts. No rule or decision of
the Supreme Court, on motion, is final, but is
open to revision in that court, and is often re-
viewed* and the rule before granted is vacated,
modified, or enlarged, in the discretion of the
court. There *can be no occasion, there- [*3O
fore, for a writ of error to this court.
Where the proceedings are summary, no
writ of error lies. (Vin. Abr., Certio., D; lb.,
Error. G; 2 Tidd. Pr.,1078, 1079.) There is
no judgment of the Supreme Court, legally
and technically speaking, in this case. The
writ of eertiorari was not returned, and there
is nothing brought up here by the writ of
error ; for there could not. and ought not. to
be a record in the case. It is inconsistent to
allege that the affidavits are to stand in place
of a return to (he writ, and are the subject of
293
39
COURT OF ERROKS, STATE OP NEW YORK.
1814
a record ; for the dispute is about the facts set
forth in the several affidavits.
2. A discretionary power, in cases like the
present, is necessarily and properly reposed in
the Supreme Court ; nor can it be taken away,
unless by an express Act of the Legislature.
Again ; the Supreme Court may travel out
of the record, in order to do justice. The
force may be traversed, and if the justice re-
fuse to receive such traverse, the Supreme
Court may hear affidavits of the facts, and
order re-restitution. (Roy v.Stacey, 1 Sid. ,287.)
The cases cited to show that a certiorari
might issue to the executor or administrator of
the justice, can apply only to cases where a
person has the record in his custody. But the
executor could no more make up a record, or
return to the cortiorari, than the deceased jus-
tice himself. No person can make the return
when the justice is dead. The Supreme Court
having a general and supervisory power over
all inferior jurisdictions, must, necessarily
have jurisdiction in such a case, on motion,
without writ, since there was no other way of
exercising their power. A careful examina-
tion of the cases cited in the court below, in
support of this point, will show that they bear
no other construction than that put upon them
by the Supreme Court.
"3. The justice clearly acted officially, in
awarding restitution ; and he left a sufficient
memorandum to show his proceedings. He
acted in virtue of his office, and on the stat-
ute, and it was so considered by all the parties
present.
4. On quashing a conviction, an award of
re-restitution is matter of course (1 Caines,
126; 2 Caines, 99; Cro. Eliz., 31; 1 Str.,
474) ; if it is not, still it is a matter resting in
the sound discretion of the court, and they
have exercised that discretion in this case. It
appears that the justice made Shotwell give
up the keys ; this put him out of possession,
and a re-restitution was then proper.
4O*] *Again ; this writ of error is brought
by Clason. But the party complaining below
was De Peyster, the person put out of posses-
sion by Shotwell. Clason must allege a priv-
ity of estate ; but that can be no reason for
substituting himself as prosecutor, in the place
of De Peyster. . If Clason, with others, were
compelled to appear in the court below, they
should all have been made parties in the writ
of error, or have been summoned and severed.
Mr. Burr, in reply, contended that the doc-
trine of summons and severance could not ap-
ply to a case of this kind, so entirely new, and
without precedent. Besides, it is too late now
to make the objection, as the non- joinder of
others can only be urged in abatement. That
a writ of error lies in this case, is to be shown
from analogy, rather than from direct prece-
dent : there may be such an in jury in this new
proceeding of the court below, as, in every
view of the subject, ought to be revised. The
powers and jurisdiction of this court are suf-
ficiently ample, wherever the decision of the
court below is final, and there can be a rec-
ord. (6 Johns., 602.) Now here is a record
before the court ; though without precedent,
yet having form and fact.
It is said that the proceeding of the Supreme
Court was summary. It is that of which we
294
complain. The statute has prescribed the
mode of proceeding in cases of forcible entry
and detainer ; and if the statute had been fol-
lowed in this case, there would have been a
record, according to old precedents, on
which it is admitted, a writ of error might be
brought.
On an order of the Court of Chancery, in
any stage of the suit, an appeal may be in-
stantly made to this court ; and we have never
heard of the inconvenience arising from such
a course. It is difficult to perceive why great-
er danger or inconvenience would result from
allowing writs of error to be brought on the
orders or decisions of the Supreme Court.
The court below assumed the ground that
there had been a judicial proceeding before
the justice, or that he acted officially, under
the statute. But if the affidavits are examined,
it will be seen that, really, there was nothing
judicial or official in his proceedings. The
party had himself taken his remedy, with his
own hands, before the justice arrived. And
where a party, having right, takes the posses-
sion himself, that possession is *good, [*4 1
and will not be disturbed. All the party can
be liable to, is punishment for a breach of the
peace. As to the complaint said to have been
made to the justice, it nowhere appears that
the justice went to the spot, in consequence of
such complaint. The proceeding, as stated in
the affidavit of Briggs, negatives all idea of
the justice having acted officially, or as a jus-
tice of the peace, in a criminal proceeding. He
merely advised the parties as to what ought to
be done. The justice never acted on the com-
plaint of De Peyster. All that he did was at
the request of Briggs, and in order to protect
him. The justice made no record of his pro-
ceeding ; and it is not to be supposed that he
would have proceeded legally and solemnly,
under the statute, and have wholly neglected
to make any official note or record of his pro-
ceedings. The shred of a return, so called,
collected by Shotwell, Briggs, and the attorney
for the plaintiff in the certiorari, ought not to
be regarded. The Supreme Court have cen-
sured an attorney for interfering to make a
return for a justice.
Again ; the provision of the statute relative
to attornments, shows that Clason was, all the
time virtually in possession ; and that a re-
restitution was impossible.
The powers and jurisdiction of the Supreme
Court are to be found in those of the Courts of
C. P., K. B., and Exchequer, in England, and
in our statutes. No such proceeding as that
of the court below can be found ever to have
taken place in either of the three English
courts mentioned. The case cited from Sider-
fin is the same as that of The King v. Chaloner,
and came up on habeas carpus. There is no
mode of commencing or introducing a suit to
the Supreme Court, upon motion, except what
the ingenuity of counsel may discover.
No doubt, the jurisdiction of the justice
ceased on the writ of certwrari being delivered
to him ; but the Supreme Court did not, there-
fore, acquire jurisdiction of the cause. That
court had jurisdiction over the justice, and
might constrain him to make a return to the
certiorari; but until the writ was returned
into the clerk's office, the Supreme Court had
JOHNS. REP., 12.
1814
CLABON v. SHOTWELL.
41
no jurisdiction of the cause. These proceed-
ings, therefore, vrerecoram nonjudic*. Is this
court prepared to say that suits may hereafter
42*] he commenced, *without writ, on affida-
vits ? The consequences of such a doctrine
ought well to be considered. A wide door
would be opened to perjury. But the greater
evils would be, that facts would be determined
without the intervention of juries ; and par-
ties would be deprived of the right of appeal,
•or of obtaining a review of the decision of the
Supreme Court, however erroneous their judg-
ment might be.
THE CHANCELLOR. The preliminary ques-
tion in this case is, whether a writ of error will
lie upon the matter before us.
Assuming the writ to have been properly
brought, the question on the merits, though
extremely simple, is, comparatively, of little
moment ; and was there no other point for dis-
cussion, I should have been silent, not from
any doubt of my constitutional right, as
Chancellor, to speak and decide on the case,
but from motives of delicacy, as I wish not to
sit in review of decisions assented to or pro-
nounced by me, as Chief Justice, in the court
below.
But the point now under examination did
not, and could not, arise in the Supreme Court;
and for the more full and complete view of it,
I shall be obliged to touch on the whole matter
of the case, and shall submit the reasons and
authorities by which I am convinced, to the
candid and intelligent consideration of the
court.
The leading facts are few. On the 5th of
February, 1818, George De Peyster went to
Elijah Williams, a justice of the peace in
Westchester County, and entered a complaint
of a forcible entry and detainer of his mes-
suage and dwelling-house, by Gilbert Shot-
well. Upon this complaint, the justice imme-
diately repaired to the premises, and found
the family of Samuel Briggs in pos-
session ; and he also found that De Peyster,
with Thompson, his attorney, and several other
persons, had arrived there before him, and
were occupied in emptying the house of its
furniture. Briggs refused to surrender the
possession of the house, and the justice di-
rected him to be taken into custody, which
was done accordingly ; and in the presence,
and with the sanction of the justice, the house
was completely cleared of Briggs' family and
effects.
This is the substance of the case, as taken
from an unfinished record or return, which the
justice had prepared to the certiorari issued
and delivered to him, and as taken from the
43*J justice "himself, while in extremis, and
lying on his death bed. It is, therefore, to be
considered as equal to an official statement
under the magistrate's oath, for the return
must have been drafted under the impression
of that sanction : and dying declarations are
generally uttered and received as of equal
solemnity.
But this imperfect return of the justice was
aided and supported by a number of affidavits
to the same effect, and so far from setting up
a want of jurisdiction in the Supreme Court
to take cognizance of the case, the record
JOHNS. REP.. 12.
shows that Isaac Clason and George De Peys-
ter, when called upon to answer, produced a
number of counter affidavits, and submitted
the case, upon the conclusions to be drawn
from the affidavits on the one side as well as on
the other.
The Supreme Court made no further de-
cision in the case than to restore Shotwell or
Briggs, as his tenant, to the possession of the
house and farm from which he had l>een so ir-
regularly expelled. The justice stated that
Briggs was convicted, under the statute, of a
forcible detainer, but the Supreme Court did
not touch that conviction. The record shows
that they -did nothing more than award re-
restitution to Shotwell, and that nothing
more was prayed for on his part ; and this
fact becomes very material ; for, as I shall
show hereafter, re-restitution is a matter rest-
ing in the sound discretion of the court, and
no writ of error lies upon a matter resting in
discretion. If the Supreme Court had intermed-
dled with the conviction of the force, by either
affirming or quashing it, error would have lain
upon that decision ; but in this case the court
did no such thing, nor does the record allege
an_v act of the court but the single act of or-
dering re-restitution to Briggs. The justice
was authorized by the statute, under which
the complaint was made, to fine and imprison
upon his own view and conviction of the force.
Such a conviction would have been legal ; but
possession cannot be changed without the in-
tervention of a jury ; and if the justice takes
that step, on his own view, he does an unau-
thorized act. He did such an act in this case,
and it was that grievance, and that only, that
the Supreme Court redressed. They confined
their interference (I speak from the record be-
fore us) to the unlawful change of the posses-
sion ; and upon affidavits, as applicable to
that fact, they awarded restitution to Briggs.
We have, then, at present, nothing to do with
the conviction or the 'evidence of it. [*44
This is not the point before us, nor was it the
ground of application to the Supreme Court.
The whole prayer in that court was, to be put
back into possession; and the whole complaint
here is, that the Supreme Court, upon facts
disclosed by affidavit, thought proper to restore
Briggs to his possession.
I am prepared to show that this proceeding
by affidavit was usual and regular.
Even if the cause below had been placed on
the legality of the conviction of the force,
and not on the legality of the ouster of posses-
sion, the court had sufficient matter before
them to give them cognizance of the case. A
cfrtwrari had been sued out and served, and
the justice made an imperfect return; but be-
fore he completed it, he died. The court, in
such a case, was bound to be indulgent, and
to accept of the imperfect return, aided, as it
was, by the death bed declarations of the jus-
tice. Such a course is essential to the due
preservation of private right, and is dictated
by common sense as well as by justice and hu-
manity. It is the maxim of law, that the
visitation of Providence works no injury.
The law is not so technically nice as to sacri-
fice substance to shadow. It is a more reason-
able system. It is, indeed, a collection of
written reason, and is never assailed by ridi-
m
44
COURT OF ERRORS, STATE OF NEW YORK.
IS 14
cule, except by those who either do not
understand, or who mean to pervert it. If a
judge at the Circuit happened to die after
taking the verdict, and before the return of
the postea, the ancient law allowed the verdict
to be returned by the clerk, though if the
judge had been living he was to make the re-
turn. (Jenk. Cent.. 216, pi. 59.) So, if a jus-
tice takes an inquisition, or records a riot, he
may deliver the record into the K. B. with his
own hand, without a certiorari. (2 Hawk.,
bk. 2, ch. 27, sec. 44.) Those who cultivate
the law as a science, know that it is a collection
of principles, and if the case furnishes a prin-
ciple, it then furnishes a rule for decision.
But all I need show, at present, is, that if
the question be on the regularity of the pos-
session gained (as it was here), it always may,
and often must depend upon matter of fact to
be disclosed by affidavit. For this we have the
case of The King v. Chalontr, K. B., 15 Charles
II., 1 Sid., 156 ; 1 Keb., 572, 585 ; 1 Lev., 113 :
Com. Dig., tit. Forcible Entry and Detainer,
D, which affords a precedent, complete and
45*] full to the very *point. In that case
the K. B. , as early as the year 1663, awarded
a re-restitution, founded upon affidavits. The
case was shortly this ; the defendants (being
father and son) were convicted of a forcible
detainer, upon the view of two justices of the
peace, and fined and committed to jail and
possession of their farm given to one Smith.
These defendants were brought into the K. B.,
upon habeas corpus, and offered to submit to
their fine; but to the end that the court might
award restitution, it was shown by several
affidavits that one of the defendants (the
father) had been in possession for thirteen
years, and that Smith, pretending title, had
procured the two justices to go with him to
the premises, and had used this contrivance to
gain possession, for which conduct the court
directed a prosecution against Smith and the
two justices, and after several motions, the
court awarded re- restitution to the two defend-
ants, and held that the possession given to
Smith was illegal, for that the justices, upon
their own view, intermeddled with the posses-
sion. It was then moved that the conviction
before the justices be quashed, and it was
much debated whether that could be done on
motion, without the conviction being duly re-
moved into the K. B. by error. With this last
point we have, at present, no concern. It may
or may not have been correctly decided. The
case of The King v. Elwell, Str., 794, contains
a different rule. But the case of The King v.
Chaloner is strikingly analogous, and is a di-
rect and unshaken authority on the principal
point, viz. : that the party who had been dis-
possessed of his farm, by two justices, upon
their own view, without a jury, and at the
instance of a third person, who pretended
title, was re-instated in his possession by the
K. B., upon motion and affidavits. In all the
books in which this case is reported or refer-
red to, there is no disagreement on this point.
It stands as good authority, and it completely
vindicates the jurisdiction and course of pro-
ceeding exercised in this case by the Supreme
Court. The present affords, indeed, the
stronger reason; for in the case from Siderfin,
the two justices were living, and a regular and
296
formal return of their proceedings could have
been demanded and enforced. Here the in-
jured party was deprived of that resource by
the act of God, and could hope for nothing
but the heads and fragments of a return. It
is scarcely necessary to observe, that the bring-
ing up of the body of the party into the K.
B., upon habeas corpus, was not a removal of
*the record of conviction. These are [*4G
totally distinct operations. The party may be
discharged on habeas corpus, and yet the con-
viction below remain undisturbed. (Holt, Ch.
J., in Groenvelt v. Burwell, I Ld. Raym., 454.)
So, quashing a conviction, and awarding re-
restitution, are very distinct acts, without any
necessary connection. The conviction of the
force may be legal, and yet the ouster of the
possession lawless.
There are many other cases to be found, in
which the question of re-restitution has de-
pended entirely upon facts disclosed by affi-
davit. Thus, in the case of The Kingv. Stacey
etal., \ Sid., 287; and again, in the case of
The King v. Bengough, 3 Salk. , 287, the in-
quisition of a forcible entry and detainer be-
ing removed into the K. B., re-restitution was
awarded upon affidavit that the defendant was
not permitted to traverse the force. In such
cases, the question of re-restitution must de-
pend upon matter aliunde. The record some-
times will, and at other times will not, dis-
close sufficient for the court to determine
whether the possession was lawfully changed,
or, indeed, whether there was any change of
the possession. In the last cases cited, the re-
fusal to receive a traverse of the force did not
appear by the record, and the court were
obliged, in order to prevent manifest injustice,
to receive proof of the fact by affidavit ; and
if they are to receive affidavit on one side, they
are bound to admit counter affidavits on the
other, and the question of a legal or illegal
ouster of possession must depend upon the
credit due to the affidavits, of which credit the
Supreme Court, and that court only, can be
the judge.
I have thus shown, and, as I trust, to the
satisfaction of every one, that the proceeding
in the Supreme Court, upon the question of
the restitution of Briggs, was regular, and sup-
ported by established usage. It is next to be
shown that the application for re-restitution
was an application to the sound discretion of
the court ; as much so as an application to
hold to bail, or to relieve special bail, or to set
aside a default, or to change the venue, or to
award a new trial ; and if I establish this
point, it will follow, of course, that error can-
not lie.
The general rule laid down in all the
abridgments and elementary works, is this :
that the K. B. has a discretionary power over
the point of re- restitution, and that this power
flows from an equitable construction of the
statutes concerning forcible *entry and [*47
detainer. If, then, it shall appear, that resti-
tution was illegally awarded by the justice, or
was illegally executed under his order, the K.
B. may set it aside, and grant re-restitution, if,
upon the whole view of the case, they should
deem it just and equitable ; but the defendant
cannot demand this summary interference, as
of strict right (ex rigore juri*), for it rests upon
JOHNS. REP.. 12 _
1814
CLASON v. SHOTWRLL.
47
the equity of the court. (Viner, tit. Forcible
Entry and Detainer, O, 2 ; Bacon, h. t, G ;
Hawks., h, t, bk. 1, ch. 64., sec. 63.) This
doctrine, as I have stated it, is to be found in
all the books which treat on this subject. It
has existed for time immemorial, and has never
been questioned, in a single instance, from the
earliest periods of the English law down to
this day. It was expressly conceded in this
case by the opening counsel for the plaintiff.
I will, notwithstanding, in order to make such
"assurance doubly sure," cast my eye over the
leading cases ; for this point being once well
established, and it being also apparent, from
the record itself, that this was the only point
in the court below, and the only point before
us, the argument against the legality of the
writ must force itself upon the mind with all
the weight and certainty of a mathematical
demonstration.
The general rule first appears in Dyer (2 Dy. ,
122 b, pi. 24) as early as the 2 and 8 Ph. &
Mary, that the K. IV. notwithstanding the
tender of a traverse to an indictment under
the statute to prevent forcible entries and
detainers, might grant or stay restitution at
at their discretion. In Fttz. William's case, 45
Eliz., K. B.; Cro. Eliz., 915; Yelv., 32, there
is a practical illustration of the principle.
That was an indictment under the statutes at
the Quarter Sessions, and restitution was
awarded to the party, after a certiorari had
been delivered from the K. B. It was accord-
ingly held to be irregular, as the delivery of
the certiorari was a nupersedeas to the power
of the justices ; but the court said the award-
ing of re-restitution was but matter in the dis-
cretion of the court, and as they conceived
here had been an abuse, re-restitution was
awarded. Again, in the case of The King v.
Ford, 4. J. I.; Yelv., 99; Cro. Jac., 151, there
was a conviction and restitution made by jus-
tices of the peace. The record being removed
by certiorari to the K. B., the indictment was
held ill ; but on the question of re-restitution,
there were only three judges, out of five, for
granting it, as it was a matter resting in their
discretion, and there was a difference of
48*] "opinion as to the equity of the case. In
the case of The King v. Burgee, 15 Ch. II., K.
B.; T. Raym.. a1}; 1 Keb., 343, and which was
sixty years subsequent to the former case, we
find Justice* Twisden und Kelyng laying down
the same rule, that restitution was of duty; but
that re-restitution (meaning the summary inter-
position of the K. B.) was of grace and discre-
tion. In the following age, during the time
of Lord Holt, we find it stated by him in St.
Ijeger v. Pope, 7 VVm. III., Comb., 327, to be
usual when an inquisition of a forcible entrv or
detainer was quashed to grant re-restitution,
but that the court were not bound to do it, ex
mtritojutticue; and, therefore, in liex v. TMfo,
10 Wm. III., K. B.; Salk., 587. we meet with
an instance of an inquisition of forcible entry
being quashed, but re-restitution denied.
I will cite but one case more from the KM
glish t>ooks ; the cases of TheKiiifl v. Marrow,
9 Geo. II.. K. B.; Cas. temp. Hardw.. 104,
decided while Lord Hardwicke was Chief
Justice of the K. B. . and in which the rule is
laid down with great certainty and precision.
It was the case of an indictment, of a forcible
JOHNS. REP., 12.
entry, removed by certiorari to the K. B., and
on motion for re-festitution, Lord Hardwicke,
cited and adopted the observations in Dalton,
Justice, ch. 134, p. 319, that restitution was a
thing in the discretion of the court, and that
they could grant or deny it, as the justice and
reason of the case should require.
We have a case to the same point, decided
in the Supreme Court, in August Term, 1803.
I allude to the case of The People v. Shaw, 1
Caines, 125, and I cite it with the more satis-
faction, because the opinion was delivered by
a judge who is now a member of the Senate,
(Lewis, formerly (.'h. J.), and who must be
able to appreciate and render full justice to
the accuracy of my illustration of this rule of
law. In that case, there was an indictment
for a forcible entry and detainer, a confiction
thereon, a delivery of possession to the com-
plainant, and a subsequent removal of the
record into the Supreme Court. The court held
the indictment erroneous, and set aside the
proceedings, and awarded re-restitution ; but
Lewis, Ch. J., in delivering the opinion of the
court, observed: "That from the general dis-
cretionary power which the court had in these
cases, they might set a restitution aside, and
award re-restitution, whenever it should ap-
pear that restitution had been illegally award-
ed *either for insufficiency or defect in [*41>
the indictment or other cause."
I presume I have now produced cases suffi-
cient to satisfy the most skeptical mind, that
the Supreme Court had a discretion in this
case, to determine whether it was fit and ex-
pedient to re-instate Shotwell, or Briggs, as
his tenant, in the possession of the house and
farm which he had been so violently ejected.
And the importance of this power to the pub-
lic welfare may be expressed in the words of
Mr. Justice Spencer, when delivering the
opinion of the court in Lawton v. The Crmmi»-
sioner of Highways, 2 Caines, 179. "The ne-
cessity," he observes, "of a superintending
power, to restrain and correct partialities and
irregularities which may be committed by in-
ferior officers, is so obvious and indispensable,
that the court ought, by no means, to deny
themselves a jurisdiction of such salutary in-
fluence." Being a matter resting in the sound
discretion of the court, the exercise of that
discretion is not the subject of review on a
writ of error. This is another point which I
will now undertake to illustrate.
There seems to be no position more uni-
formly admitted, than that error will not lie on
a matter resting in discretion. It is upon this
ground that applications for new trials ; or for
setting aside defaults and judgments : or for
changing the venue ; or for time to plead, pr
to withdraw, or amend a plea ; or to hold to
special bail ; or to relieve or mitigate bail ; or
to award or deny a imindainu* or a procedendo;
ami applications on numl>erless other points
arising in the progress of the suit, or in the
ordinary details o? the administration of jus-
tice, cannot be reviewed by a writ of error.
There is this difference, as stated in the Com-
mentaries of Blackstone( Vol. III., 55), between
appeals from a court of equity, and writs of
of error from a court of law : that the former
matter,
a defini-
2»7
i i i < 'i iiiriji a VWAI wi ia« . 1 11. 11 IIM
iy be brought upon any interlocutory i
u the latter upon nothing but only a
49
COURT OP ERRORS, STATE OF NEW YORK.
1814
live judgment. It may not be amiss, however,
to fortify this general doctrine by a few ad-
judged cases. It might, indeed, be left to rest
upon the fact, that there is no precedent in the
books of a writ of error, in any such case, and
this affords a strong presumption, in law, that
no such writ will lie. It is inconceivable that
there should not be one instance to be found,
of error brought upon any of the numerous
5O*] acts of discretion almost *daily exer-
cised by the courts, if it had been understood
that error could have been sustained. The
silence of the law on this point is eloquence
itself.
But the books speak also in affirmative lan-
guage. It is well known that an application
for a mandamus is an application to the dis-
cretiofi of the court, who will grant or refuse
it, as justice and equity shall require ; and yet
it has been held in the House of Lords, in the
case of The King v. The Dean and Chapter of
Trinity Chapel, Dublin, 2 Bro. P. C., 554;
and again, in the case of Fender v. Heale, 3
Bro. P. C., 178, that a writ of error would not
lie upon the determination of the K. B., to
grant or to refuse a mandamus. So, on appeal
from an order in chancery, appointing a guard-
ian on the ground that the selection was not
well made, the House of Lords dismissed the
appeal, because the Chancellor had a discre-
tionary power in the selection of a guardian.
{Preston v. Ferrand, 2 Bro. P. C., 179.) This
doctrine is explicitly acknowledged in the iuris-
prudence of this country. Thus, in the case
of Surd v. Lessee ofDamdak, 2 Binney, 80, the
Supreme Court of Pennsylvania decided, in a
case of error from an inferior court, that on
the refusal to grant a new trial, error did not
lie, though the reasons of the court were re-
duced to writing, and entered on record ; for
they observed that motions for new trials were
often founded upon equitable circumstances,
in which much is left to the discretion of the
judge. The High Court of Errors and Appeals
in Pennsylvania settled a principle governing
this very case, as they are stated (2 Binney, 91)
to have decided that a writ of error did not lie
on a decision of their Supreme Court on a
motion unconnected with the trial of a cause.
So it was decided in the Supreme Court of the
United States, in the case of the Marine Ins.
Co. v. Hodgson, 6 Cranch, 206, that the refusal
of an inferior court to allow a plea to be amend-
ed, or a new plea to be filed, or the refusal
to grant a new trial, or to continue a cause,
were matters which could not be assigned for
error. "These matters," said Mr. Justice
Livingston, in delivering the opinion of the
court, " depended so much on the discretion
of the court below, which must be regulated
more by the particular circumstances of every
case, than by any precise and known rule of
law, and of which the superior court can never
become fully possessed, that there would be
more danger in revising matters of this kind,
51*] than what might result, *now and then,
from an arbitrary and improper exercise of
this discretion."
Here we have a series of decisions in the
highest tribunals to which we can resort for
precedent, or for which we can inculcate a
veneration. These decisions establish these two
points : 1. That the award of re-restitution,
29S
under the statute of forcible entry and detainer,
is not ex debitojustitia, but rests in sound dis-
cretion ; and, 2. That error will not lie on a
decision depending on discretion. The argu-
ment then, on the ground of authority, is
conclusive. There is no escape from this con-
clusion. We must quash the writ of error; or
we must, by a mere stretch of power, deter-
mine to make new law for the case.
But this rule is not only the positive law of
the land, and as such demanding our assent
and obedience, but it is a rule founded on just
and wise foundations of public policy; and it
can be recommended to the good sense and to
the good will of this court.
In the first place, such applications to the
discretion of the court are always supported
by affidavits, and the court are called to weigh
the credit of testimony, and to determine mat-
ters of fact. This court can never review
such cases, without reviewing and judging
upon the same testimony, which would be as-
suming a jurisdiction never confided to it by
the Constitution. The appellate jurisdiction of
the English House of Lords was the model in
the erection of this court, and it was intended
only to review the final judgments of the Su-
preme Court upon matter of law. Every court
of original and competent jurisdiction must be
clothed with summary and discretionary pow-
ers over a vast field of undefined matter, con-
stantly arising, and necessarily incident to the
due administration of justice. This will be
the case particularly with the highest court of
common law, in which the deposit of great
confidence, as well as of great power, becomes
indispensable to the public safety.
Another reason why error cannot lie upon
these cases of discretion is, that it lies only
upon a decision that gives or concludes the
right of the party; and such decisions, like the
one now complained of, do neither. The
question of re-restitution does not depend,
necessarily, either on the legality or illegality
of the conviction of a forcible entry or detainer.
We have seen that the conviction may be good,
and yet the mode of obtaining possession ir-
regular ; we have seen that the conviction may
*be bad, and yet re-restitution, under [*52
the circumstances of the case, be denied. The
question of re-restitution need not meddle with
the question on the conviction. The one must
appear by record, the other may appear by
affidavit. When the court award re-restitution,
they do not determine the right of possession.
They decide only on the irregularity of taking
possession under the statute, in the given in-
stance, and they leave the party to go on im-
mediately, and pursue the possession in a more
regular way. The court may even permit the
party to renew the question of restitution by
new affidavits. The decision, therefore, does
not touch or prejudice the right of possession,
nor is it definitive in the case. It is not a res
judicata, which could be pleaded in bar of a
fresh application. Here was no judgment, in
any technical sense of the term. Here were
no facts, either found by a jury, or admitted
by the party. We might as well consider the
decision of the court upon affidavits to hold to
bail, or to change the venue, or to set aside
a default or an execution, as a judgment
upon which error would lie. The return at-
JOHNS. REP., 12.
1814
CLASOH v. SHOTWELL.
52
tached to the writ of error contains only a par-
cel of affidavits, made to support or to resist a
special motion in the Supreme Court. Every
lawyer of the least technical learning must
know and feel the absurdity of calling the
paper book before us a record or judgment
containing the conclusions of law. How is it
possible for this court to sit as jurors to deter-
mine on the credit due to these contradictory
affidavits? And yet, how could we otherwise
know whether the writ of re- restitution was or
was not discreetly awarded? Was such a writ
of . rror ever bet'ore heard of in the annals of
any appellate jurisdiction? We have seen that
the statutes, of which so much has been said,
and that this power, exercised by the Supreme
Court, were in existence and activity as far
back as the reign of Elizabeth ; and these stat-
utes have been re-enacted here, when the
power in question, as grafted upon these stat-
utes, was as well known and settled as any
branch of the law. No alteration, no amend-
ment, was made by the Legislature. In short,
the very bringing of a writ of error in this case,
will be thought by many to be a reflection on
this court. It implies that its character abroad
is a character of infirmity. It looks like an
experiment to see to what extreme depths of
degradation we might be conducted. But I
have no apprehension of such results. The
community are bound to place higher confi-
dence in the talents and learning of the pro-
53*] fessional, *and in the understanding and
firmness of the unprofessional part of this
court. When a case arises which strikes at
first principles — which touches the deep foun-
dation of the law — I presume that all will
zealously unite in protecting the fair fabric of
our jurisprudence.
But we are told that the power exercised by
the Supreme Court is dangerous to public lib-
erty, and must now, for the first time, be con-
trolled, even by the assumption of an unprec-
edented power in this court. The language
ought, at least, to have been supported by
some strong case of oppression. Hard cases,
I know, do sometimes make bad precedents.
The imagination is inflamed with the passions,
and the heart seduces the judgment. But here
there wan nothing done which a good man
ought to wish undone. Let us look, for one
moment, into the merits of the case, and
I am persuaded we shall find nothing in
the decision which ought to awaken the
sensibility or disturb the moderation of the
court.
Samuel Briggs, of the County of Westches-
ter, happened, on the 5th of February, 1813,
to be tenant to Gilbert Shotwell ; and he was.
on that day, with his family and goods, sud-
denly and violently turned out of his house
into the street. The prosecutor, at whose in-
stance this act was performed, was, ostensibly,
George De Peyster, but, really, Isaac Clason.
a merchant of the City of New York. And
how was this ejection of Briirgsand his family
effected. If we do not applaud the end, we
cannot but admire the means. In the evening
of the preceding day, De Peyster, in company
with \\ illiam A. Thompson, his attorney, came
to the house of the deputy -sheriff, and deliv-
ered him a writ against Briggs, and requested
him to serve it, on the next day, at Briggs'
JOHNS. REP.. 12.
house. Let us mark this fact ; it is disclosed
by the deputy himself. In the afternoon of
the next day* or the 5th of February, Briggs
was arrested at his house, at the suit of De
Peyster. in the sum of $3,000; and to procure
bail he was taken to his father's residence, a
distance of three and a half miles. While he
was in this manner detached from home, the
complicated plot was unfolded. De Peyster,
in company with Elijah Williams, a justice,
and William A. Thompson, the attorney, came
to his house while absent, and began to turn
his family and furniture out of doors. On his
return, before they had finished the work, be
remonstrated ; but'the justice and the attorney
said it *was done according to law, and [*£»4
the justice ordered him into custody, because
he would not give his consent ; and m was
taken by the collar and led into the street.
This I oelieve to be the plain, unvarnished
state of the case ; and the Supreme Court,
deeming this proceeding altogether lawless,
thought it their duty, in the exercise of a
sound discretion, to reinstate Briggs in his
possession. This is the act now complained
of. The court held it to be a clear point that
no change of possession can take place, under
the statute, until the justice has summoned a
jury of twelve men to determine, upon their
oaths, the existence of the force. By dispens-
ing with this admirable security of private
right, the whole proceeding was irregular. If
Clasou had unduly lost the possession in the
October proceeding, as was suggested, he
should have called upon the aid of the law to
regain that possession. It formed no apology
for this oppressive and violent proceeding.
The law has a tender regard for the asylum of
a private dwelling ; debet mta cuique domus
ewe perfugium tutittsimum. The court were
not to travel back to former transactions
They could only look to the character of the
case before them ; and it really appears to me
that no man. whose moral sense is not pervert-
ed, can think of it, or can speak of it, without
indignation. It is in vain to pretend that this
was a mere private trespass, for which the in-
jured party had his private action. The case
wears a graver aspect. Here was a justice of
the peace, who appeared clothed in the author-
ity of a magistrate, and professing to act upon
a complaint made to him under the statute
against forcible entry and detainer. This was
avowed by him at the time. It was avowed
by him in the record he had drafted. It was
avowed by him with his latest breath. Here
was, also, ah attorney, who was reading from
a book, and declaring the same thing. The
poor, affrighted victim would have made re-
sistance to a mere private trespass. But he
was overawed by the sounding titles of law
and magistrate and attorney ; and those sym-
bols of right to which a good citizen is dis-
posed to pay respect and obedience, were
shamefullv prostituted in this unworthy trans-
action. Was it not then, the bounden duty
of the Supreme Court to restore Briggs to his
possession, and thus to exercise the discretion-
ary power with which they were clothed,
and which had been sanctioned by the
experience of ages ? Were they to sit still
and suffer *the forms of law to be so [*5ft
grossly abused ? Is there anything, at least,
COUIIT OF ERRORS, STATE OF NEW YORK.
1814
in the act of the Supreme Court, so extraordi-
nary, as to warrant this court, in its anxiety to
redress it, to usurp a jurisdiction which the
Constitution never intended, and which is un-
known to the law ?
But this court is advised to construe, with
great liberality, its powers of review' ; and it is
even asserted that its capacity to sustain writs
of error is greater than that of the English
House of Lords. As I consider such doctrines
to be alarming heresies, and dangerous to our
constitutional rights, I must beg the patience
of the court while I bestow a few thoughts on
their merit and tendency. •
My position is, that a writ of error will not
lie here, except upon a final judgment of the
Supreme Court upon a question of law, and
that d%r Constitution and statute intended to
go to the extent of the British usage on this
point, and no further. This is evident, from
the language of the Constitution and the
statute, and from the whole scope and structure
of our judicial system. No other construction
can preserve its value, its safety, its symmetry
and proportion. It appears to me also to be
the dictate of sound policy, and for reasons
which cannot but be felt by every member, that
this court should not exercise appellate pow-
ers but in cases of clear and undoubted juris-
diction. If writs of error ought to be more
extensively applied than they now can be
under the existing rules and usages of law, we
have a Legislature always ready and able to
afford every requisite remedy ; and this, I
presume, will be admitted to be the legitimate
mode, if any there be, of enlarging the powers
of this court, so as to embrace cases depending
on discretion. But if we had the right, we
ought to weigh well the mischief of creating
the precedent of Vrits of error upon mere col-
lateral and discretionary proceedings in the
Supreme Court. If an execution in ejectment
be irregularly issued, the court will set it
aside, and restore the possession. This is a
very ordinary case of jurisdiction (Dacres v.
Doe, 2 Bl. Rep., 892; Goodright v. Noright,
Barnes, 178 ; Anon., 2 Salk., 588), and yet,
upon the new doctrine, a writ of error would
lie even • for setting aside an execution. It
must equally lie in every stage of a cause, and
upon all those numberless acts and decisions
to which I have alluded, and which spring up
almost spontaneously in the progress of a suit.
5O*] The bounds of the *Supreme Court
would equally be enlarged, and that tribunal
would be oppressed with the writs of error
from the collateral decisions in each of the nu-
merous courts of common pleas ; for they all
have a like discretion, so far as may be inci-
dent to the cognizance of causes. If every
order, in every such case, founded upon affi-
davits, be a judgment on which error may
be brought, it must lie as well from a county
court to the Supreme Court as from the Su-
preme Court to this. And what a harvest
would then arise for the activity of the profes-
sion ? No considerate man can contemplate,
without terror, the abuses of such an innova-
tion. A wise lawyer will, no doubt, provide
competent organs, through which all private
rights may be pursued, and all private injuries
redressed, but he will never open, too widely
and too freely, the door of the never-ceasing
300
spirit of litigation. If he does, lawsuits will
become a public grievance. Justice will be
strangled by the very means devised for her
protection. The delay, vexation and expense
of suits will become intolerable. We ar^ all,
no doubt, apprised of the heavy tax to suitors
which appeals to this court produce, not only
by the sum in which the losing party is
amerced, but by the heavy extra fees which
each party is obliged to pay to their learned
counsel. If we become, therefore, too loud
and seductive in our calls for business, and if
we open to the sharp-sightedness of avarice
new avenues to litigation, we shall, most as-
suredly, perplex and agitate the whole current
of justice. The love of gain, and the obsti-
nacy of contention, are active as well as deep-
rooted principles in the human breast. No-
man who can well afford it will desist from
contending with his antagonist on every point,
and on every motion capable of doubt, until*
he has taken his chance of a final decision in
this court. The lover of quiet will hate such
endless contention. The man of moderate
means will become faint in the contest. Small
claims will be relinquished as not worth the
expense. The diffident suitor will yield to the
presumptuous, and the rights of the poor will
frequently be crushed under the overbearing
oppression of the rich.
Nor must we indulge the hope that this can
be only an imaginary picture. I know better.
The business of the Supreme Court depending
upon affidavits, and not involving any final
decision on the merits, is almost inconceivable.
The average number of cases must certainly
exceed five hundred, and probably *may [*57
a thousand, which are annually brought before
that court upon special motion, and decided
upon affidavits. Each of those cases are ap-
plications to the sound discretion of the court,
and writs of error will lie on all those cases,
and bring up all those enormous piles of affi-
davits, with just the same propriety that it
will lie in this case. And can there be any
member of this court who can even think of
such an enterprise, without feeling the whole
head sick and the whole heart faint? Can
this court, for a moment, wish, and much less
meditate, departing from the precedents set us
by the wise men who have gone before us,
and opening the door of review to such a
flood of extraneous matter, depending upon
the sound discretion of the courts of law? It
would require our whole time for the whole
year. Even then we should fail ; for we could
neither sustain the labor, nor command the at-
tention. The attempt would terminate in pub-
lic misery, and in our own confusion and dis-
grace. I speak, as to wise men, the truth in*
soberness, and, I hope, without offense. This
court was never organized for such purposes.
It is too numerous to consult together. It is
pressed with other and higher duties. It can-
not be familiar with the practice of the courts.
It is not their art and science. It has not been
their education and discipline. This tribunal,
is not competent to fulfill the judicial func-
tion, unless it follows the letter and spirit of
the Constitution, and confines its jurisdiction
to "questions of law" arising on final "judg-
ments." Such cases almost always present
single, dryr elementary points, and are, in some
JOHNS. REP., 12.
1814
CLASOX v. SIIOTWELL.
57
sort, appeals to the moral sense and the com-
mon reason of mankind.
The spirit of litigation requires checks rather
than excitements. We may all recollect the
impediments which the Legislature, a few
years ago, very wisely threw in the way of the
prosecution of one species of writs of error; I
mean certiorari* to justices' courts. The statute
required the Supreme Court to disregard all
defects of form in matter of law, ana to de-
cide on the very right of the case ; and it lim-
ited the plaintiffs costs, if successful, to $25,
but subjected him to full costs if he failed.
Yet there are, annually, upwards of two hun-
dred certiorari* brought to a hearing before
the Supreme Court, and many of them not of $5
in value, and scarcely one of them that will de-
fray the expense of the suit. It is probable
£>8*] that there are hundreds *beside which
are never brought to a hearing, but the parties
are coerced into an accommodation, for fear
of the expense. We have, also, at this very
session, had eight cases brought up on writs
of error from the Supreme Court, and argued ;
and there were several more ready for argu-
ment, if the court could have afforded the time.
I mention these facts to shew that the facility
of suing out writs of error, and the extent of
the right, is already amply sufficient. There
is also one other fact which I beg to bring to
the attention of the court. The new revised
laws of the last session have g^iven an encour-
agement to writs of error, which is not known
in England, and was never before known here,
and which I did not discover until I saw the
rule as drawn up the other day, in the case of
Spencer v. Southwitk. I confess the discovery
struck me with astonishment and concern. I
allude to the Revised Act passed the 12th of
last April, granting to the plaintiff in error his
costs in error, at the discretion of the court,
on reversal of the judgment below. This is
making an unfortunate defendant in error pay,
not for his vexatious or false clamor, but for
the mistake of the court below on a point of
law ; and in .England, and in this country un-
til now, it has always been thought unjust.
The, common law gave no costs upon any writ
of error ; and the statutes of 8 H. VII., anti 8
and 9 Wm. III. (which were adopted here
without alteration in the former revision of
our laws), extended only to cases of affirmance
of judgments, and that very reasonably, said
the Court of K. B., in Wyril v. Stapleton, Str.,
615; and that very reasonably, also, said this
court, in the case of Le Ouen v. Gotertieur &
Kemble, in the year 1800 (1 Johns. Cas.,523),
when they unanimously concurred in opinion
that, on reversing the judgment or decree be-
low, there were no costs in error ; for the
court said, "it would be unreasonable to com-
pel a person, in case of a reversal, to pay costs
for the error of the court below." It has, how-
ever, in the .newly Revised Statute, been or-
dained otherwise : but I hope and trust that
this court, in its wisdom, will at last bar the
door against writs of error in untried cases,
where we have neither guide nor landmark.
There is also another fact on this subject of
costs, which renders the sought for innovation
the more dreadful. I allude now to the new
fee bill, passed last April, which has advanced
the costs in litigated cases, in all the courts
JOHNS. REP., 12.
below, 25 per cent., and *in this court, [*5O
in all cases, more than 100 per cent., and that
by force of these additional words : "and
other necessary entries or proceedings in a
cause." The added words I mean are "or
proceedings." They are, apparently, very in-
nocent and harmless, but the losing party will
find that they are pregnant with power. I
know the latent energy of those words. I have
witnessed it in taxation. They make the party
who fails pay for all the voluminous cases dis-
tributed, at the rate of one shilling for every
seventy-two words. In this very case, loaded
as it is with affidavits (and if error lies, they
were all necessary), I make the costs of the
thirty-three error books amount to upwards of
$800 ;' and all thisan innocent party is to pay
and for what ? For the error of the court Below.
Under all these alterations as to costs, would
not this novel invention of bringing writs of
error upon affidavits, become the source of the
most tremendous oppression? And when I
said that 1 could recommend the old estab-
lished law to the good sense and the good will
of this court, I ask now have I not succeeded?
They are extremely moderate and guarded
in England, on the subject of writs of error.
I will give to the court, on this point, an in-
teresting fact. According to Colic's and
Brown's Parliamentary Reports (and which
have collected all the cases to be found), there
were from the year 1697 to the year 1778 (a pe-
riod of eighty years, and that, too, the most
happy and flourishing in the English history),
only sixty four cases in error brought to a
hearing in the House of Lords. We must
conclude from this fact, that writs of error
are there confined within very legitimate
bounds, and that the suitor never presumes to
speculate in new paths, nor to make large de-
mands upon the credulity of the court.
Indeed, when we take into consideration the
cautious and temperate spirit which pervades
the English administration of justice, and the
diffidence with which their learned judge* ex-
ercise the power of review, it is no longer a
matter of wonder that their system of law
should be as renowned for its staoility as for its
wisdom. And, since Providence has permit-
ted that system to be established here, in all
its maturity and perfection, it ought to be the
just pride, as it is the bounden duty, of this
*court to transmit it unimpaired to pos- [*OO
terity, and especially to preserve the reputation
which is due to the judicial character of this
State.
I have now finished the question which I
undertook to examine, and the following propo-
sitions appear to me to be true : ,
1. That it was the usual and proper course
for the Supreme Court to examine, upon affi-
davits, the regularity of the ouster of Briggs.
2. That it rested in their sound discretion,
under all the circumstances of the case, whether
or not they would order the re-restitution of
Briggs.
3. That such an order is not the subject of a
writ of error ; and,
4. That in justice and good policy, it ought
not to be subject to one.
1— The rusts of the plaintiff in error, in this case,
were actually taxed by the clerk at $846 !
301
CO
COURT OF ERRORS, STATE OF NEW YORK.
1814
I am, accordingly, of opinion that the writ
of error ought to be quashed.
LEWIS, Senator, was of opinion that a writ
of error was properly brought in this case, and
that the decision of the Supreme Court ought
to be reversed.
WILKIN, Senator, was of the same opinion.
P. W. RADCLIFF, Senator, declared his con-
currence in the opinion delivered by His Honor,
the Chancellor ; and that on the merits, if it
were proper to consider them, he was of opin-
ion that the judgment of the Supreme Court
ought to be affirmed.
YATES, Senator, concurred in the opinion of
Senator.
SANDFORD, Senator. Our first duty will be
to inquire and determine whether this court
has jurisdiction in this case. If we have no
jurisdiction, we cannot proceed to examine the
merits of the cause, but must simply dismiss
the writ of error, for want of jurisdiction.
It is said that the decision of the Supreme
Court was not a judgment.
In the books and language of the common
law, the term "judgment" is applied inalimit-
ed.'.technical sense, to certain determinations of
61*] *the courts which are enrolled in certain
established forms and phrases. No other
decision or sentence, however important or
final it may be, is denominated a judgment.
It is equally true, that in pure English, and in
the ordinary sense of the term, it is applied to
any determination of the cause by a court of
justice. The judgment of a court is the
final sentence or decree of the court. The ex-
pressions, " errors, correction of errors, judg-
ments in the Supreme Court, and questions of
law," which occur in the Constitution, are not
there used as terms of art. They are used in
the ordinary and general sense of those ex-
pressions. The Constitution ought not to be
construed, in this or any other part, with tech-
nical strictness and severity. It is not the act of
a bench of judges, or a bar of lawyers. It is the
public act of a numerous body, in which the
representatives of the people speak in the lan-
guage of the people, and address themselves
to all mankind. Their language should,
therefore, be understood according to the or-
dinary and usual sense of the terms which
they employ.
The jurisdiction of this court is derived
from the Constitution, and the right of ap-
pealing to it is given by the Constitution.
The court and its jurisdiction, and the right
of appealing to it, are unknown to the com-
mon law. • They owe their origin and ex-
istence to the Constitution ; and the Constitu-
tion is entirely an innovation upon the com-
mon law. Hence, the jurisdiction of this
court is to be determined by the Constitution
itself, and not by expositions or definitions
derived from the common law.
I also reject, from this view of the question,
the statute concerning this court. The statute
organizes the court according to the Constitu-
tion, with such jurisdiction as the Constitution
had prescribed. The nature and extent of its
jurisdiction are to be sought and found in the
Constitution itself. The powers of this court
302
are as much to be found in the Constitution,
as the powers of the Governor, the Council of
Revision, or any authority created by the Con-
stitution.
The Constitution appears to me to provide,
that the supreme judicial power of the State
shall be vested in this court ; that it shall have
appellate jurisdiction only ; and that it shall
hear and finally determine all causes which
have been determined in the other courts, and
may be removed to this court for revision.
These are not, indeed, the expressions of the
Constitution, but *I use them as perfect- [*O2
ly equivalent in sense and meaning to those
used in the Constitution. The authors of the
Constitution obviously meant.that one supreme
tribunal should be erected, to which all courts
then existing, or which might afterwards be
created, should be subordinate ; and that the
administration of justice in those courts should
not be final, but should be subject to the re-
vision of this supreme tribunal. The Supreme
Court and the Court of Chancery existed be-
fore ; and all their decisions, of every kind
and name, were final. The object of those
who formed the Constitution evidently was,
that those courts should no longer possess that
final jurisdiction. They, therefore, erected
this court with an appellate jurisdiction, as
broad and ample as the jurisdiction of all
other courts. They left the Supreme Court
its name, but they deprived it of that suprem-
acy from which its name was originally de-
rived.
The Constitution, indeed, does not alter the
forms of proceeding, or the modes of adminis-
tering justice, which were before in use. But
if any form of proceeding, or mode of ad-
ministering justice, which have before ex-
cluded the right of appeal, then that form or
mode is now so far altered by the Constitution,
that an appeal must be allowed. The right of
appeal, given by the Constitution, cannot be
abridged by the common law, for so much of
that law as interferes with the right of appeal,
is abrogated by the Constitution itself.
All judgments of the Supreme Court, by
which I mean, in the sense of the Constitution,
all final determinations of causes in that court,
are, then, subject to an appeal and revision in
this court.
But it is said that if we depart from the
technical definition of a judgment by the com-
mon law, every decision or order of the Su-
preme Court will be subject to appeal. This
will not be the consequence. Orders merely
interlocutory or auxiliary to the prosecution of
a suit, are not determinations of a cause. No
appeal can take place until the cause has ter-
minated in the Supreme Court. This was the
common law respecting writs of error. A writ
of error did not remove the cause until final
judgment had been rendered. This was not
altered by the Constitution, because it was not
necessary to the right of appeal that it should
be altered. The party against whom the Su-
preme Court may decide has the benefit of
the constitutional provisions, if he is allowed
to remove the cause after the determination of
*that court. The rule of the common [*<>3
law, that a cause cannot be removed by writ
of error, until after it has been determined in
the inferior court, therefore, remains unal-
JOHNS. REP., 12.
1814
CLABON v. SUOTWKLL.
63
lered. This is an answer to all that has been
said concerning orders in the progress of a
cause, rules upon parties and officers, and or-
ders incidental to the main purpose of an ac-
tion.
The proceedings of the Supreme Court, in
Urn cause, were judicial proceedings, com-
menced, conducted and terminated before
them. One of the parlies was called into court
to answer the complaint of the other ; and the
court, having heard them both, decreed that
the party who was in possession should be
put out, and that the other should be put in.
What may be the technical or most proper name
for such proceedings, it is not here necessary
to inquire or determine. It is enough that
these proceedings have all the essential charac-
teristics of a suit or action, and that the court
have closed the litigation by a definitive decision
between the parties. Whether the decision is
denominated a judgment, an order, an award,
a decree, or a sentence, is very immaterial.
They would all be but different names lor the
same thing, and, perhaps, any of them may
be applied to this decision without violence.
By whatever terms these proceedings may be
described, they were, in substance and essence,
a suit by one party to recover the possession of
lands from another. By whatever name the
decision may be called, it is, in effect, a final
judgment by which the suit is terminated, and
the subject in controversy is awarded to one
party against the other. The party who has
been adjudged to lose his possession, may be
aggrieved by this determination ; and as it is
the final determination of a cause in the Su-
preme Court, he has a constitutional right to
bring the cause to this court for a final decision.
It is said that this is not a record. I believe
it to be true that no record like this can be
found in the books of the common law. But
if a record be a history of the proceedings in a
cause, then this is a record. It is the only rec-
ord that can be made where proceedings like
these take place. The constitutional right of
the party to his appeal does not depend upon
any English definition of a record. It depends
upon the fact that his cause has been deter-
mined against him.
This question is, therefore, not to be deter-
mined by technical definitions and verbal
criticism, or by the termsand phrases in which
64*] judgments have been, or may be ex-
pressed. The true inquiry is, whether the
judicial proceeding constitutes a cause by it-
self, and has received its final decision in the
Supreme Court. If so, the case contemplated
by the Constitution exists, and the cause may
be brought to this court for revision.
It is truly said that the proceedings of the
Supreme Court in this case were summary.
This cannot affect the right of appeal. Whether
the proceedings were summary or plenary, that
right equally exists. If the proceedings be an
action, or have the effect of an action, the
appeal must be allowed. Whatever may be
the mode of proceeding adopted by the
Supreme Court, whether formal and usual, or
extraordinary and summary, it can make no
determination of the cause which will not be
subject to the constitutional revision of this
court. Whether the mode of proceeding has
the sanction of antiquity, or is altogether new.
JOHNS. REP.. 12.
the right of appeal exists in the party and the ap-
pellate jurisdiction exists in this court. If the
mode of proceeding, adopted by the Supreme
Court, be summary or illegal, that mode of
proceeding may be the very grievance of which
the party condemned has to complain. All
causes determined in the Supreme Court, what-
ever may be the course or mode of proceeding
by which they may be conducted or determined,
are subject to the appellate jurisdiction of this
court.
It is also said that if this appeal be allowed,
this court may be drawn into the trial of facts.
The answer to this objection will be found in
j the principles already stated. If the Supreme
I Court entertain a cause in which they try and
determine facts, it does not follow that their
I decision is final. The right of appeal still
' exists, and it is made the duty of this court to
hear and decide the cause upon nn appeal. If
the Supreme Court should try an issue of fact,
without a jury, in an action of trespass or debt,
it would be the duty of this court to entertain
the cause upon an appeal, and either to decide
i that such a mode of trying the fact is illegal,
or if it be legal, then to try the fact upon the
same evidence on which the Supreme Court
judged and decided.
It is said that the Supreme Court has a super-
intending authority over all the courts of law
inferior to itself. This is true, and it ought to
i be so. The superintending authority, as it is
j called, is, in other words, an appellate juris
diction over all inferior jurisdictions. It is
exerted when a party, aggrieved *by a F*O£>
determination, or some proceeding of the infer-
ior court, complains to the Supreme Court, and
brings the cause before them for their decision.
By whatever form or mode of proceeding this
is done, it is, in substance and effect, an appeal
from one court to the other. The Supreme
Court has no original jurisdiction in cases of
forcible entries or detainers. The original
jurisdiction in those cases is vested in the
justices of the peace ; but their proceedings
may be removed to the Supreme Court. In
this case, the Supreme Court held that no
accident could deprive them of their superin-
tending authority, or appellate jurisdiction.
An accident, like the death of the justice,
might defeat the ordinary modes of proceeding,
or render them ineffectual ; but the party ag-
grieved was not, for that reason, to lose the
redress which the Supreme Court might give
him, upon au appeal to them. Their appellate
jurisdiction must be exercised, because the
exercise of it was required from them by the
party. They therefore held, that if the writ
of certiorari would not bring the cause to them,
the cause must come in some otherwav. I do
not now inquire whether they adopted a legal
or proper mode of proceeding. They also held,
that whether the judical proceedings of the
justice were recorded or not, thev must still
exert their superintending or appellate author-
ity. Whether there was a technical record or
a technical judgment, before the justice or not,
were questions which the Supreme Court
thought had no concern with the right of the
party to his appeal, or their right to entertain
the appeal, and revise the cause. When they
speak of their own interference upon affida-
vits, they say it is a matter of necessity. If it
303
•65
COURT OF ERRORS, STATE OF NEW YORK.
1814
was a matter of necessity, it was so because
the right of appeal from the justice to the
Supreme Court could not be frustrated by any
cause whatever. The Supreme Court, indeea,
appear to have held that nothing whatever
could prevent the right of appeal, or the exer-
cise of their own appellate authority. In all
this, the Supreme Court took a just view of
the nature of appellate jurisdiction ; and they
rightly concluded, that any particular or extra-
ordinary mode of proceeding in the inferior
court could not deprive the Superior Court of
its appellate jurisdiction.
<56*] *If these views of the question between
the justice's court and the Supreme Court
were correct, they are fully applicable to the
question between the Supreme Court and this
court. The appellate jurisdiction of this court
is as ample as the appellate jurisdiction, or
superintending authority of the Supreme Court
over the inferior courts. If necessity will
authorize a summary mode of proceeding in
the Supreme Court, to enable them to exercise
their jurisdiction, it must be a strange neces-
sity, if it should, at the same time, make that
jurisdiction final. It would be a necessity
that there should be one appeal, and no more
than one. It would be, at once, a necessity to
give jurisdiction to the Supreme Court, and a
necessity to take away jurisdiction from this
court. The Constitution ordains that there
shall be no such necessity in this State. If it
be necessary that the Supreme Court should
exercise its jurisdiction over such proceedings,
and in this manner, the necessary consequence
is, that this court must exercise its jurisdiction
in the same case. I say, the necessary conse-
quence, because the necessity or obligation to
entertain the cause in this court is of the high-
est kind ; since it is derived from the supreme
law, the Constitution itself.
It will be understood that I have, throughout,
used the word "appeal" in the general sense
of the term. The technical distinctions be-
tween the different modes of appeal, whether
by writ of error, writ of certiorari, or other-
wise, are foreign to the purpose of the present
iuquiry.
I am clearly of opinion that this court has
jurisdiction in this case, and that the cause is
now properly before this court for its determi-
nation.
The judgment of the justice seems to have
been a conviction of Briggs, and nothing more.
The strict duty of the Supreme Court was to
reverse or affirm the judgment of the justice.
If they reversed or quashed the judgment or
conviction of the justice, it was not a necessary
consequence that the possession should be
restored. The party prosecuting before the
Supreme Court could not demand restitution
as his right. The court might grant it or not,
as a matter of discretion. The title is not here
in question. The object of the law, in such
cases, is to protect persons who are in quiet
possession from violence. It appears that there
had been some struggle between these parties,
in which they wrested, or attempted to wrest,
67*] the possession *from each other, at differ-
ent times. In deciding which of them shall
have the possession, it seems proper, in such
circumstances, to look back to the commence-
ment of the contest, and to give preference to
304
— — r^»-
the party who had the first peaceable posses-
sion. The first quiet possession was in Clason
and his tenants ; and it appears that Shotwell's
possession was gained surreptitiously.
As it does not appear that the possession was
changed by any judical proceeding of the jus-
tice ; as the first peaceable possession was in
Clason ; and as the case is, in many respects,
involved in obscurity and contradiction, I am
of opinion that the possession should not have
been adjudged to Shotwell. To award the
possession of land from one party to another,
is a sentence highly important to both. The
advantage of possession to either party may be
great. It is redress which, I think, ought not
to have been given to Shotwell, as an act of
discretion.
Entertaining this opinion upon the merits of
the case, I do not find it necessary to consider
or express an opinion, whether the mode
adopted by the Supreme Court, in hearing and
deciding the cause upon the affidavits of the
parties and their witnesses, was proper or not.
My voice will, accordingly, be, that the judg-
ment of the Supreme Court, awarding the
possession to Shotwell, ought to be reversed.
ELMENDORF, BLOODGOOD, and VAN BUREN,
concurred with LEWIS and SANDFORD, Sena-
tors, that a writ of error lies in this case, and
that the judgment of the Supreme Court ought
to be reversed.
COCHRAN, WENDELL, and STEWART, Sena-
tors, were of opinion that the writ of error
ought to be quashed ; and that, if it would lie,
they were of opinion that the judgment of the
Supreme Court ought to be affirmed.
BISHOP, BLOOM, CLARK, DAYTON, ROUSE,
SMITH, STRANAHAN, SWIFT, TABOR, and VAN
BRYCK, Senators,1 were of opinion that the
writ of error was well brought, and that the
judgment of the Supreme Court ought to be
reversed.
*It was thereupon ordered and ad- [*€>8
judged that as well the judgment of the Su-
preme Court in this matter, as the award of
re-restitution thereupon made, be reversed, an-
nulled, &c. ; and that Isaac Clason be restored
to the possession of the premises; whereof re-
restitution was awarded as aforesaid, and to
all things he hath lost by occasion of the judg-
ment aforesaid, and the said award thereupon
made; and, further, that the said Isaac Clason
recover against the said Gilbert Shotwell, as
well his costs and charges by him sustained
and expended in and about his defense in the
said Supreme Court, as his costs and charges
by reason of the prosecution of the writ of
error in this court, to be taxed by the clerk of
this court ; and that the record be remitted,
&c.
Judgment of reversal.
Reversing— 10 Johns., 304.
Cited in— 2 Cow., 54 ; 4 Cow., 490 ; 5 Cow., 596 ; 2
Wend.. 233 : 10 Wend., 44 ; 16 Wend., 380 ; 8 Barb.,
84 ; 53 Barb., 409 ; 6 How. Pr., 177 ; 11 How. Pr., 573;
35 How, Pr., 196 : 2 Daly, 205 ; 2 Co. R., 124 ; 6 Peters,
657.
1.— For reversing, 17 ; for affirming, 5.
JOHNS. REP., 12.
1814
WILBUR v. GRACE.
68
SOLOMON WILBUR, JR., Plaintiff in Error,
v.
LAWRENCE GRACE, JR., Defendant in
Error.
Infancy— Desertion by Infant Volunteer — No
Defeme.
If a person under the age of eighteen years, who
is nor liable to military duty, voluntarily enters the
service. MS a soldier, and being In actual military
service, deserts, he may be lawfully arrested as a
deserter, and a person arresting him in not liable to
an action.
fpIIIS cause came before this court on a writ
JL of error from the Supreme Court. For
the facts ami the judgment of the Supreme
Court in the case, see Vol. X. , pp. 453-455.
Mr. J. HttiuftU, for the plaintiff in error, con-
tended that persons under the •age of eighteen
vears might be enrolled in the militia, and un-
less they applied for relief, and to be dis.
charged, according to the statute, they would
be subject to the orders of their commander.
The 8th section of this Statute (sess. 32. ch.
165, Webster's ed. Laws, Vol. V., p. 535). to
organize the militia, passed the 29th March,
1809, declares that the age and ability of any
person to l>ear arms, shall be determined by
the captain or commanding officer of the com-
pany, with the right of appeal to the comman-
dant of the regiment. If a person thus enrolled
is not discharged, and can be compelled to do
military duty, he must be equally liable to
•ft£*] 'military service, when he enters volun-
tarily. Though the enrollment be erroneous,
yet the officer acting under competent legal
authority, cannot be liable to an action. This
principle is laid down in Wilkin* v. Devpard.
5 Term, 112. and was recognized by Kent, J.,
in the case of Henderson v. Brown, 1 Caines,
102.
In the present case, there was a jurisdiction
over the subject matter, and a right of appeal
to the party aggrieved.
Again ; the defendant having voluntarily
joined the militia in the service of the United
States, he was, in fact, a soldier of the United
Slates, and the law of Congress on the subject
applied to him. He was employed in the ser-
vice of the United States, and entitled to pay,
and subject to the rules and articles of war.
The acts of infants are not, in all cases void.
(3 Burr., 1717, 1802.)
Me#*r*. Foot, and Paine, contra, insisted that
the officers of the militia had no jurisdiction
or authority whatever over persons under the
age of eighteen years, or over forty-five years.
If the defendant in error was not within the
laws of this State, or of the United States,
relative to the militia, the argument on the
other side wholly failed. These laws say only
that all white male citizens, above eighteen,
and under forty-five years of age, shall be en-
rolled. &c. There is no proof, in this case,
that the defendant in error ever was enrolled.
How, then, can he be deemed a militiaman ?
If persons not within the ages defined by the
statute, beinj* enrolled, may be subjected to
military service, as well may females, who
should be enrolled, or who should volunteer,
Again ; the order of the Governor was to
Captain Lyon's Company, &c. It did not or-
der out any infants or substitutes. The de-
fendant in error did not belong to Captain
Lyon's Company. Bennet was the person or-
dered into service.
On the ground of contract, the defendant
cannot be bound at all, except for necessaries.
The law is clear and settled on this subject.
(Crp. Jac., 494 ; 3 Caines, 333.) The moment
an infant dissents from his contract, he cannot
be compelled to a performance. The consent
of the father or mother does not alter the case;
nor can it give any force or validity to the
agreement. Nor did the laws or government
of the United Stales authorize such an agree-
ment.
*J/r. Ru**ett, in replv. The statute, [*7O
it is Irue, directs all male persons, above eight-
een and under forty-five years of age, to be
enrolled ; but the commanding officer is con-
stituted the judge of the age and ability of
such persons,
ly directory.
The term "enrolling" is mere-
Such as voluntarily enter the
companies of light infantry, &c., belong to
the companies, as much as if they had been
first enrolled.
The 69th section of the Militia Act author-
izes the commandants of companies, when
there is an order for a draft from the militia,
lo accept substitutes in place of the persons
drafted. There is no reason for any distinc-
tion, in this respect, in case the whole company
is ordered into service, withoul any draft be-
ing^ nuide.
That Colonel Vosburgh had jurisdiction in
this case is clear, from the principle established
in the case of Henderson v. Brown, and which
is well laid down by Thompson, J. Here was
a legal and proper warrant from the com-
mandant of the regiment, and the plaintiff in
error was acting under it, by request of Cap-
tain Lyon, ministerially. A ministerial officer
is always protected, unless the insufficiency of
his authority appears in the warrant or order
under which he acts. It does not appear that
the plaintiff in error knew, or had any inti-
mation, that the defendant in error was under
eighteen years of age. Captain Lyon, who is
entitled to credit, denied any such notice.
P. W. RADCLIFF, Senator. The real ques-
tion in this cause is, not whether an infant
under the age of eighteen years, enrolled in
the militia, and neglecting to avail himself of
liis right to appeal to the commandant of his
regiment, is or is not, until such appeal, liable
to mililary service. It does not appear by the
case, nor was it alleged on the argument, that
the defendant ever resided within the bounds
of Captain Lyon's Company, or was even en-
rolled, or liable to be enrolled, therein. On
the conlrary, it does distinctly appear, that
another person belonging to that company,
when it was about to march on a tour of duly
to the frontiers, applied to this defendant; and
for a reward stipulated between them, induced
him to agree, with the consent of the captain,
expressly obtained for that purpose, to take
his place in the ranks, as a substitute for the
unless they were discharged, or appealed lo j former. This was Ihe first moment at which
the commanding officer, be made subject to i he appears to have had any connection, what-
military duty. I ever *with the company. The question, [*7 1
JOHNS. REP.. 12. N. Y. R.. 5. 20 805
COURT OF ERRORS, STATE OF NEW YORK.
1814
therefore, is, whether an infant under the age
of twenty-one years (no matter whether under
eighteen or not) is bound by his contract to
serve as a substitute in a company of militia,
ordered out upon public duty.
The general doctrine, with respect to the
liability of infants upon contracts, is perfectly
well settled, and universally understood. It
is, that no such contract is binding, unless
made for necessaries, or authorized by statute.
If, indeed, the infant choose to carry it into
effect, he shall be permitted to do so. for his
own advantage ; and while he continues in
the execution of it, it shall be deemed a valid
performance. But the moment he chooses to
recede from it, and acts upon a determination
to do so, its obligation ceases, and he is wholly
absolved. These principles are applicable here,
and are perfectly decisive of the question be-
fore the court.
The defendant having voluntarily marched
with the company to the place designated in
the orders, the officers, under whose command
he acted, would, undoubtedly, beheld justified
for any restraint imposed, or discipline inflicted
upon him while he continued in service. But
the moment he chose to avail himself of his
right to withdraw from that service, their right
to control him ceased, and there was an end to
the contract. It follows that the plaintiff,
acting under the advertisement of the colonel,
could have no right to take him as a deserter,
and, consequently, that the decision of the
court below was, in all respects, correct.
It has been argued that the contract was
made with the consent and approbation of the
father, who even received a part of the consid-
eration for it, and that it is, therefore, to be
held obligatory. But this was not an enlist-
ment under the laws of Congress, allowing, in
certain cases, the enlistment of minors with the
consent of their parents, masters, or guardians.
It cannot, therefore, be supported on that
ground. Nor can the father's consent, in any
view of the case, give it validity, or in any way
affect the question. It was still the contract of
an infant, and void, because relating to a sub-
ject on which he was incapable of binding
300
himself. And even if it could be regarded a*
a contract of the father, it would be equally
void, as *against the son, and, therefore, [*72
equally unavailing here — a parent having
clearly no right to bind his son to military
service.
The judgment of the court below ought, in
my opinion, to be affirmed.
COCHRAN, JONES, WENDELL, and STEWART,
Senators, were of the same opinion.
SANDFORD, Senator. A person, not liable to
military duty, voluntarily enters the service,
as a soldier, and being actually in military ser-
vice, deserts. Can he be apprehended as a de-
serter ? This is the sole question in the cause.
The question is not whether the contract i&
valid or void : nor is it whether the soldier is
entitled to be discharged from the service or
not. The contract may be void, and he may
be entitled to his discharge ; but it does not
follow that he is to be his own judge, and to
discharge himself by desertion. Any person,
detained by military authority, or military
force, may obtain his discharge, if he is entitled
to it, by application to the proper civil author-
ities.1 But a soldier, in actual service, cannot
be allowed to desert at pleasure. The right to
detain him and to arrest him, if he deserts,
results directly and necessarily from the laws
of the United States and of this State, concern-
ing the militia and military service. The ap-
prehension of this deserter was, therefore,
lawful, and the action cannot be maintained.
The judgment of the Supreme Court ought
to be reversed.
The majority of the court2 being of the same
opinion, it was, thereupon, ordered and ad-
judged that the judgment of the Supreme
Court be reversed, &c.
Judgment of reversal.
Rev'ff— 10 Johns., 453.
Cited in— 6 Park, 325.
1.— See Matter of Carlton, 7 Cowen, 471.
2.— April 7, 1814. For reversing-, 17: for affirm-
ing, 5.
JOHNS. REP., 12.
[END OF THE CASES IN ERROR, 1814.]
CASES ARGUED AND DETERMINED
IK THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF :NEW YORK
IN
JANUARY TERM, 1815, IN THE THIRTY-NINTH YEAR OF OUR INDEPENDENCE.
73*] "JACKSON, ex dem. GOUCH,
«.
WOOD.
Real Property — Conveyance of in Fee must be
by Writing under Seal.
A conveyance of a freehold, or estate in fee. must
be by deed, or writing under seal.
Citations— Co. Litt., 49 b, 48 b: 2 Bl. Com., 818;
SUit.. X Hen. VIII.; 2 Bl. Com., 343, 339; 29 Car. II.,
ch.3; 5 Burr .,2827; 7 Johns., 211; 2 Bl. Coin ..309, 310,
287, 312.
THIS was an action of ejectment for lot No.
7, in the town of Locke, in the County
of Onondaga, and was tried before Mr. Justice
Thompson, at the Cayuga Circuit, in June,
1818.
The lessors of the plaintiff gave in evidence
the exemplification of a patent, dated the 13th
of June. 1791, to John Day, for the lot in ques-
tion. He then proved that Moses Gouch was
the identical person who served, and was
known in the New York line of the Army by
the name of John Day, and that he was the
same person to whom the patent was granted
by that name. It was also proved that Moses
Gouch, alut* dictu* John Day, was dead, and
that the lessors of the plaintiff were his heirs
at law.
The defendant gave in evidence an i nstrument
in writing, indorsed on the original patent,
dated the 19th of November, 1792, signed
"John (his f mark) Day," but without any
seal, by which he. John Day, for the consid-
eration of £10, paid to him by Benjamin Pres-
cott, bargained, sold, remised, released, and
quitclaimed to the said Benjamin Prescott, his
heirs and assigns, all *his right, title, [*74
claim, and interest, of, in, and to, the' prem
ises granted and described in the patent, to have
and hold the same to the said Benjamin Pres-
cott, and to his heirs and assigns, to his and
their only proper use and benefit forever ; and
to this instrument the names of two witnesses
were subscribed.
There never having been any seal to the
writing thus indorsed on the patent, it was ob-
jected, on the part of the plaintiff, that it
amounted to no more than a parol contract,
and was not sufficient to pass the land. This
point was reserved bv the judge, and the de-
fendant gave in evidence sundry mesne con-
veyances from Benjamin Prescott to himself,
all of which had been duly recorded ; he also
showed a possession for seven or eight years.
A verdict was taken for the plaintiff, subject
to the opinion of the court on a case, as above
stated.
Mr. Seely for the plaintiff.
Mr. Van Buren, contra.
PLATT, J., delivered the opinion of the
court :
The single question in this case is, whether
an estate in fee can be conveyed otherwise than
by deed ; that is to say, whether a seal is essen-
tial to such conveyance.
The earliest mode of transferring a freehold
estate, known in the English common law,
was by livery of seisin only. (Co. Litt., 48*,
49 b.) But when the art of writing became
common among our rude ancestors, the deed
of feoffment was introduced, in order to ascer-
tain with more precision the nature and extent
of the estate granted, with the various condi-
NOTE.— Deed*— Seal necessary.
A aeal in nccewaru ti> the validity of a deed, pur-
portlnir to convey a freehold interest. In addition
to above case or Jackson v. Wood, see Jackson v.
uvndrii. 1 2 Johns., 355; People v. Gill is, 24 w.-nd..
801 ; Ooodvear v. Vosbunrh, 57 Barb., 243; 39 How.
Pr.. 377; Underwood v. Campbell. 14 N. H., 893;
MoCabe v. Hunter, 7 Mo., 355; Clinc v. Black, 4
MH-,.rd. 431; Pllev. McBratney. 15 I11..314; Barker
v. Hobos, 07 111.. 592. Blackw. Tax Titles. 432. But
see. Sbelton v. Armor, 13 Ala., 047 : Pierson v. Arm-
strong, 1 Clarke (Iowa) 293; Simpson v. Mundee, 3
Kims., 172 ; and statutes in Ky.. Ala., and La.
Coiling it a deed, delivering it as sui-h, or intending
JOHNS. REP., 12.
, is of no avail unless it be sealed. Wads-
worth v. Wendell, 5 Johns. Ch., 224; Warren v.
Lynch, 5 Johns., 239; Taylor v. (Jlaaer, 2 Serg. &
H.. 502; Davis v. Brandon, 1 How. (Miss.). 154; Den-
ning v. BulHtt. 1 Hluekf.. 241 ; Davis v. Judd,6 Wis..
H.-. ; Alexander v. Polk, 3» Miss., 787. See, also. Mill
Dam Foundry v. Hovey, 21 Pick .,417: Taylor v.
fJhiser, 2 Serf?. & R., 502; Bradford v. Randall. 5
Pick., 496; State v. Peek. 53 Me., 21W; Atlantic Dock
Co. v. Leavett, 54 N. Y., 35 ; Mackay v. Bloodjfood.
9 Johns., 285.
On the tfcneral subject, see Washb. Real Prop.,
Vol. III., pp. 289-275 ; Warren v. Lynch, 5 Johns., 230,
note.
307
74
SUPREME COURT, STATE OP NEW YORK,
1815
tions and limitations. This deed, however,
was of no validity, unless accompanied by the
old ceremony of livery and seisin. (2 Bl.
Com., 318.)
The Statute of Uses (27 Hen. VIII.) gave rise
to the deed of bargain and sale ; and, soon
afterwards, the conveyance by lease and re-
lease was introduced, in order to avoid the
necessity of enrolment, required by the statute
of 27 Hen. VIII. , 2 Bl. Com., 343. By virtue
of the Statute of Uses, which we have adopted
(without the proviso in the English statute re-
quiring the enrolment of deeds), the deed of
bargain and sale, now in use here, is equivalent
75*] to the deed of feoffment *with livery of
seisin (2 Bl. Com., 339, 343), and has, in prac-
tice, superseded the lease and release.
By the common law, estates less than a free-
hold might be created or assigned, either by
deed, by writing without seal, or by parol
merely.
By the 29 Car. II., ch. 3 (9th and 10th sec-
tions of our "Act for the Prevention of
Frauds "), it was enacted, "that all leases,
estates, interest of freehold, or terms of years,
or any uncertain interests in lands, &c., made
or executed by livery and seisin only, or by
parol, and not in writing, and signed by the
parties so making and creating the same, shall
have the force and effect of leases or estates at
will only ; excepting leases for three years and
less," &c.; and, "that no leases, estates, or
interests, either of freehold, or terms of years,"
&c., "in any lands," &c., "shall, at any time
hereafter, be assigned, granted, or surrendered
unless it be by deed or note in writing signed
by the party so assigning, granting, or sur-
rendering the same," &c.
Now. it is contended on the part of the de-
fendant that the common law mode of convey-
ancing has been so modified by this statute, as
to destroy the distinction between an estate of
freehold, and an estate less than a freehold, as
it regards the mode of alienation ; and that
either may now be conveyed by " note in
writing" without seal, as well as by deed.
No direct decision appears to have been
made on this point ; but in the case of Fry v.
Philips, 5 Burr. , 2827, and in the case of Hol-
liday v. Marshall, 7 Johns., 211, it was decided
that a written assignment of a lease for ninety-
nine years was valid, though not sealed; upon
the express ground that it was the sale of a
chattel-real, for which the Statute of Frauds
requires only a "note in writing;" plainly
recognizing the distinction between a term for
years, and a freehold estate, as to the mode of
conveyance.
According to Sir William Blackstone, 2 Bl.
Com., 309, &c., sealing was not in general use
among our Saxon ancestors. Their custom
was, for such as could write to sign their
names, and to affix the sign of the cross ; and
those who could not write made their mark in
the sign of the cross, as is still continued to
this day. The Normans used the practice of
sealing only, without writing their names; and
at the conquest they introduced into England
waxen seals, instead of the former English
76*] *mode of writing their names and affix-
ing the sign of the cross, it being then usual
for every freeman to have his distinct and
particular seal. The neglect of signing, and
308
resting upon the authenticity of seals alone,
continued for several ages, during which time
it was held, by all the English courts, that seal-
ing alone was sufficient. But in the process
of time, the practice of using particular and ap-
propriate seals was, in a great measure, dis-
used ; and Sir William Blackstone, 3 Bl.
Com., 310, seems to consider the statute or 29
Car. II., ch. 3 (of which the 9th and 10th sec-
tions of our Statute of Frauds are a copy), as
reviving the ancient Saxon custom of signing,
without dispensing with the seal, as then in use,
under the custom derived from the Normans.
We have the authority of that learned com-
mentator, unequivocally in favor of the
opinion, that a seal is indispensable, in order
to convey an estate in fee simple, fee tail, or
for life. (2 Bl. Com., 297, 312.)
Such seems to have been the practical con-
struc"tion, ever since the statute of Car. II., in
England, and under our Statute of Frauds in
this State ; and to decide now that a seal is
unnecessary to pass a fee, would be to intro-
duce a new rule of conveyancing, contrary to
the received opinion, and almost universal
practice in our community, and dangerous in
it retrospective operation. Construing this
statute with reference to the pre-existing com-
mon law, and the particular evil intended to
be remedied, I think the Legislature did not
intend to dispense with a seal, where it was be-
fore required, as in a conveyance of a free-
hold estate ; but the object was to require
such deeds to be signed also, which the courts
had decided to be unnecessary.
I construe this statute as though the form of
expression had been thus : " No estate of free-
hold shall be granted, unless it be by deed
signed by the party granting ; and no estate
less than a freehold (excepting leasesf or th ree
years, &c.) shall be granted or surrendered,
unless by deed, or note in writing, signed by
the grantor."
This venerable custom of sealing is a relic
of ancient wisdom, and is not without its real
use at this day. There is yet some degree of
solemnity in this form of conveyance. A seal
attracts attention, and excites caution in illit-
erate persons, and thereby operates as a secur-
ity against fraud.
*If a man's freehold might be conveyed [*77
by a mere note in writing, he might more easily
be imposed on, by procuring his signature to
such a conveyance, when he really supposed
he was signing a receipt, a promissory note, or
a mere letter.
The plaintiff is entitled to judgment.
Judgment for the plaintiff.1
Cited in— 12 Johns., a56 : 19 Johns, 239 ; 20 Johns..
662 ; 2 Cow., 659; 4 Wend., 483; 2 Barb., 618 ; 7 Barb.,
639.
JACKSON, ex dem. HOUSEMAN, v. HART.
Patent for Land —Avoided only by Scire Facias
or Proceeding/or tliat Purpose in Chancery —
Parol Evidence to Contradict, not Admissible —
Latent Ambiguity.
A patent not void, but which has been issued by
mistake, or on an insufficient suggestion, can only
1.— See Warren v. Lynch, 5 Johns., 239, as to the
origin, nature and use of seals.
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. HART.
77
be avoided by aci. fa., or other proceeding, for that
purpose. In chancery.
It cannot be impeached In a collateral action ; aa
by showing that the patentee intended, was a dif-
ferent person, and of different name from the one
mentioned in the patent.
Where a grant has been made to A B, but A C was
the grantee intended, this is not such a latent am-
biguity as will authorize the admission of parol
evldenoe.
Citations— 10 Johns.. 133 ; Cro. Bliz., 328: 10 Johns.,
23. 130 : 5 Johns., HI ; Co. Litt., 3 a; 15 Vln., tit. Mis-
nomer, cb.5, 6,413.
THIS was an action of ejectment, for lot No.
20, in the township of Camillas, in the
County of Onondaga.
The cause was tried before Mr. Justice Platt
at the Onondaga Circuit, in June, 1814.
The plaintiff gave in evidence letters patent
for the lot in question dated the 13th of Sep-
tember, 1790, to George Houseman, one of the
lessors.
The defendant offered in evidence an extract
from the "Balloting Book" filed by the Com-
missioners of the Land Office, in the office of
the Secretary of State, concerning military
bounty lands in the County of Onondaga, in
these words : " The dead of the several regi-
ments."
1
1
1
jj
•
f
•3
I
t
i.
|
I
£
I
i
kuMtnin, George.
Pint
Wendell's, i S
H
H
September 13, 1790.
A witness was also offered to prove the ex-
tract to be a true copy from the balloting book,
as compared by himself.
The defendants further offered to prove, by
parol, that no such man as George Houseman
ever enlisted or served in Wendell's Company,
in the First New York Regiment, in the Revo-
lutionary War ; and also, that a man by the
name of George Hosmer did enlist in Wendell's
Company, in the First Regiment of the New
York Line, during the war, and served in that
78*1 *company until his death, which hap-
pened before the termination of the war ; and
that the patent was issued in the name of
George Houseman, by mistake, and that
George Hosmer was the soldier entitled to the
patent, and was intended thereby, and that
no other military lot had been balloted for, or
granted to, or in the name of George House-
man or George Hosmer ; and that George
Hosmer, at his decease, left lawful issue,
under whom the defendant derived title to the
premises in question.
It wan admitted that Camillus was the fifth
military township; and the defendant's counsel
admitted that there was a man who served as
a soldier, in the New York levies, by the name
of George Houseman. The counsel for the
plaintiff objected to the evidence thus offered
on the part of the defendant, and it was over-
ruled by the judge.
The defendant then offered the extract from
the balloting book, and the parol evidence that
it was a true extract, as evidence that George
Houseman, the patentee, died in service ; and
insisted that if this evidence was admitted, the
plaintiff, as the demise in the declaration was
JOHNS. REP., 12.
laid in 1810, ought to show a title in some
other of the lessors.
This evidence was also objected to by the
plaintiff's counsel, and overruled by the judge,
under whose direction the jury found a ver-
dict for the plaintiff.
A motion was made on the part of the de-
fendant, to set aside the verdict, and for a new
trial.
Mr. Heni-y, for the defendant, contended
that it was competent to the defendant to show
a mistake in the patent, or that no person, of
the name of the patentee, ever was in existence
capable to take; and that, therefore, the grant
was void. (See Jackson, ex dem. Dickton, v.
Stanley, 10 Johns., 188.)
The evidence offered at the trial could not
have been rejected on the ground of its being
an extract from the ballot book of the Com-
missioners, for it was necessary for the Com-
misioners of the Land Office, pursuant to the
Act of the 6th of April, 1790 (2 Greenleaf's ed.
Laws, 832, 18 sess., ch. 59, sec. 6), to decide on
the person entitled to the bounty land ; and
this book is the evidence of their decision on
that point. It is true, nothing is said in the
statute about a ballot book, but this book is a
collection of the decisions of the Commis-
sioners, as to the persons entitled to the lands.
*It is no answer to say that there was [*7J>
a George Houseman in "the New York levies
(1 Greenleaf's ed. Laws, 40, 48), for the levies
were not entitled to bounty lands, under the
Act. They were to be rewarded for their
services in a different way. Soldiers in the
line of this State, serving in the Army of the
United States, alone were entitled to the
military bounty lands.
Again ; if George Houseman is dead, the
plaintiff cannot maintain this action, unless
he can show a title under the heirs and legal
representatives of the deceased soldier : but
they are not made lessors. And whether the
patentee was dead or not, was a matter of fact
for the jury to decide.
Mr. Sitt, contra, insisted that the patent was
conclusive in this case, and no parol evidence
could be received against it. There is an ap-
parent contradiction between the case of
Jackson v. Stanley, and the decision of the
court in case of Jnckon, ex dem. Manciw, v.
Lawton, 10 Johns., 23, which contains the
true doctrine on this subject, that the only
way of avoiding a patent is by noire facias, or
process in chancery. In the former case,
Kent, Ch. J., to show that the difference in
the Christian name of the patentee being a
latent ambiguity, extrinsic evidence might be
resorted to, to explain the mistake, relies on
casesdecided in regard to wills or devises. With-
out adverting to the difference between a will
and a patent, we contend that the cases cited
would not authorize an alteration in a will,
like the one contended for in the present case,
and are, therefore, "hot applicable. They are
two classes of cases :
1. Where there are two persons of the same
name ; and,
2. Where, for greater certainty, the de-
scription of the person controls, and the name
is rejected,
In class the first, are the cases in 5 Co., 68 ;
2 Atk., 878, 289; and 3 Atk., 258. In the
•M
SUPREME COURT, STATE OF NEW YORK.
1815
second class of cases, are to be found 6 Term.
R., 671 ; 2 Vesey, 216 ; 2Equ. Cas. Abr., 245 ;
Ambler, 175.
There is another class of cases, where a
person has a nickname, or name by reputation,
where the party may plead that he is as well
known by that as by his true name. (1 Ves.,
231. 266.) The two classes of cases are per-
fectly reconcilable with the Statute of Frauds.
They do not contradict the will. The attempt,
in the present case, is not to explain or to
8O*] render the description of *the person
certain, but to substitute a new and a different
name.
Great latitude has been allowed as to letting
in evidence, in regard to wills, so as to effectu-
ate the intent of the testator. But in regard
to patents, it is presumed that th^ court would
hardly go the same length, especially when
the impolicy and dangerous tendency of ad-
mitting parol evidence to explain written in-
struments is generally acknowledged.
As to the admissibility of the books of
the Commissioners of the Land Office, no
doubt that the death of a person may be
proved in a court by hearsay testimony,
or by registers kept by persons appointed
to record births and deaths. But where
hearsay evidence is given, the other party
has a right to cross-examine. The Com-
missioners of the Land Office were not a
court, nor were they directed or authorized to
keep such books, which cannot, therefore, be
evidence of themselves. The Commissioners
had no power to decide on the fact of the
death of the soldier, nor did they pretend to
exercise any such powers ; for they granted
patents indiscriminately to all whom they
supposed entitled to lands, without inquiry
into the fact of their being alive or dead.
These ballot books are extremely loose and in-
accurate, and not entitled to the distinction
of being received as evidence.
Again; it is said that Houseman could not
take the land granted, because he was not a
soldier in the line of the Army. But if the
patent is conclusive as to the name or person
of the patentee, it is equally so as to this point.
Besides, this is a question which cannot be
examined in this action. If the Legislature,
who are the sole dispensers of their own
bounty, have thought proper to grant land to
any person, his title under the patent cannot
be'disturbed as long as the patent remains in
force. If his title is to be impeached, the
patent must be avoided by a scire facias, or a
suit in equity.
Mr. Henry, in reply. We do not mean to
contend that it is competent to show, by
parol, that the name of the patentee is mis-
taken. The question is. whether the patent
is not void, on the ground that there was no
such person as the one named in the patent, in
existence, at the time, capable of taking; or
in other words, that the patentee is a nonentity ;
for how is a scire facias to issue to, or a bilHn
chancery be filed against a nonentity ? We
81*] *had only to prove the fact of non-
existence. We offered to show that there
never was a person of the name of George
Houseman in the line of the Army, or any
person in existence to whom the patent in
question could issue.
310
Though the acts of the Commissioners were
not judicial, they were of that nature as ren-
dered them, of necessity, evidence. Though a
person was a soldier in the line of the Army,
it did not follow, of course, that he was en-
titled to the bounty land, for he may have
been a deserter. The Commissioners having
power to determine or designate the per-
sons entitled to these bounty lands, must
necessarily have the power to decide on the
identity of the person. The description or
designation of the person entitled, was the
substratum of the gra.nt ; for without such a
designation of the person, no patent could
issue. Suppose there had been two persons of
the name of George Houseman, one alive and
the other dead, the Commissioners must have
described the persons of each, and the par-
ticular lot of land to which each was en-
titled. And this description or designation
of the person would, necessarily, be evidence,
otherwise, it could not be known to which of
the two lots they were respectively entitled.
No doubt, that where a patent can be re-
pealed, the proper course is to issue a scire
facias for the purpose. But where a patent
has issued to a person not in being, it is ipso
facto, null and void. There is no need of any
process to repeal it.
PLATT, J. It is a first principle in the law
of tenures, that the state is the only original
scource of titles ; and that the state possesses
a sovereign right to grant land to whom it
pleases, with or without consideration.
These grants may be made either by statute
or by patent, under the great seal, or by any
public functionary, designated by law for
that purpose.
In this case, the public agents, who were
intrusted with the great seal for that purpose,
have made a grant, of record, in the most
solemn form, to George Houseman, a real
person, capable of accepting the grant.
On the part of the defendant, it is attempted
to defeat the patent, by showing that the
bounty of the State was misapplied in making
the grant to George Houseman, who served
only as a *soldier in the levies, whereas [*82
it ought to have been made to George Hosmer,
who was a soldier in the line of this State,
during the war.
It is admitted that here are two distinct
names, and two real persons corresponding
with them.
I think it is not the province of this court to
inquire into the cause or motive which induced
the State to make this grant ; the terms of the
patent being general, without any considera-
tion expressed, and containing no reference to
military services. We have no more right to
make this inquiry in the case of a patent, than
in case of a grant by express and positive
statute.
It is true that the state may be deceived, or
a grant may be made through mistake ; but
the plain remedy is to vacate such grant by
scire facias. There is no obstacle to such a
proceeding in this case, as the counsel for the
defendant seemed to imagine. George House
man is admitted to have been a real person,
and, therefore, could be summoned on scire
facia*; or if he be dead, as is pretended, he
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. HART.
83
has heirs; or if no heirs, then the lands have
escheated.
But if the State have made an improvident
or mistaken grant, the State only can take
advantage of it. * If the State waive- its riirlit
to vacate the patent, it seems to me altogether
inadmissible that an individual who happens
to be in possession of the land, can exercise
the sovereign power of the government, in
questioning the validity of this patent, for his
own private benefit.
In the case of Jaelaon, «x dem. Dicluon et al. ,
v. Stanley, 10 Johns., 183, this court decided
that it was competent for the plaintiff to prove
by parol evidence and the ballot book, that a
patent to David Hungerford was intended for
Daniel Hungerford. The ground of that de-
cision seems to be that the "omission or mistake
of the Christian name of the grantee rendered
the grant void." (Humble v. Uloter, Cro. Eliz.,
488.) And that patent being void, it was com-
petent for the Legislature, in that case, by
statute, to grant the same land to Daniel Hun-
gerford.
This case is distinguishable from that above
cited in two features : 1. The alleged mistake
here is in the surname and not merely in the
Christian name of the grantee. 2. The State
has not, in this case, interfered to assert its
right by a new legislative grant to tne opposite
cluimant.
8Ii*] *I think the old remedy of summon-
ing the patentee before a judicial tribunal for
the direct and express purpose of showing
cause why the grant should not be vacated, on
the ground of fraud or mistake, is wisest and
safest, if not the only constitutional mode of
vacating such a grant. But whether the Leg-
islature can dispense with all the forms of
judicial proceedings, and arbitrarily, upon an
ex-parte application, defeat a patent by a Legis-
lative Act, need not to be considered in this case,
because the Legislature has not attempted to
assert the right of the State in that mode. If,
however, this case is not distinguishable in its
essential features from the case of Jackson v.
Stanley, 10 Johns., 133, I repose myself with
entire satisfaction on the unanimous decision
of this court, in the cose of Jackaon, ex dem.
\f' i ifi '/.•<, v. Laioton, 10 Johns., 23, and the au-
thorities there cited. In that case the plaintiff
claimed under a patent to George Mancius for
lot No. 128, in the East Cayuga Reservation,
dated the 28th of October, 1811. The defend-
ant Lawton offered to give in evidence a patent
to Stephen Allen for the same lot, bearing
date the 5th of March, 1812, and also offered
to prove that Allen was the occupant of the
land, having by law the pre-emptive right ;
that he had paid the appraised value of the
land, with interest, to the State ; and that the
first patent (to Mancius) was issued by mistake;
which evidence was overruled at the trial and
this court sanctioned that decision. Chief
./•/«/<>*• Kent, in delivering the opinion of the
court in that case, says : " The patent granted
to the lessors of the plaintiff being the elder
patent is the highest evidence of title. As long
as it remains in force it is conclusive as against
a junior patent." " Nor can the court take
notice of any equitable claim upon the govern-
ment which a third person might have had in
respect to the lands in question." "If the
JOHNS. REP., 12.
elder patent was issued by mistake, or upon
false suggestions, it is voidable only ; and un-
less letters patent are absolutely void on the
face of them, or the issuing them was with-
out authority or was prohibited by statute,
they can only be avoided in a regular course
of pleading in which the fraud, irregularity,
or mistake is directly put in issue. "The
regular tribunal for this purpose is chancery,
founded on a proceeding by teire jacinx, or by
bill or information. It would !><• against prec-
edent and of dangerous consequences to titles,
to permit letters patent (which *are [*84
solemn grants of record) to be impeached col-
laterally, by parol proof, in this action."
The rule is indisputable that parol evidence
cannot be received* to contradict or vary a
written instrument of clear, certain and une-
quivocal import. A latent ambiguity may be
explained by parol proof, in order to elucidate
and explain written words of doubtful sense ;
as if a grant be made to John Smith, and there
be several persons of that name, parol evidence
is admissible, to explain which of the persons
bearing the same name was intended. So,
parol evidence would be admissible to prove
that George Houseman and George Hosmer are
the same person. But certainly it is not ex-
plaining a latent ambiguity to prove that a
grant to George Houseman, a real person, was
intended for another person of the name of
George Hosmer. Such an extension of the
rule would destroy the security of written con-
veyances. If a different person may be sub-
stituted by parol proof for the person certainly
described as grantee in a deed, there is no
other essential part of the deed which might
not be altered in the same way. Such a relax-
ation in the established rules of evidence would
defeat the spirit and policy of the Statute of
Frauds which requires conveyances of land to
be in writing. And cut bonof It is not con-
tended that this patent inures to the benefit of
George Hosmer. The defendant is confessedly
without any title to the land in question. To
impeach a public grant of record, in this col-
lateral manner, operates as an unfair surprise
upon the patentee ; it would supersede and
abolish the safe and easy remedy by teire
facin*. which is sanctioned by the w'isdom and
experience of ages; and in my judgment, it
would be a dangerous innovation.
I am, therefore, of opinion that the plaintiff
is entitled to judgment.
YATES, and VAN NESS, JJ., were of the
same opinion.
SPENCER, «/., not having heard the argument
in the cause, gave no opinion.
THOMPSON, Ch. J. The defendant is in pos-
session under a title derived from George Hos-
mer. and is not. therefore, to be *con- [*85
sidered as standing on the footing of a mere
naked occupant. And if the evidence on his
part was admissible, it would show, conclus-
sively. not only that George Houseman, who
claims to be the patentee, was not the person
intended but that George Hosmer was the real
patentee. It is not necessary to establish the
latter branch of the alternative ; for the de-
fendant may rest his defense upon showing a
311
85
SUPREME COURT, STATE OP NEW YORK.
1815
title out of the lessor of the plaintiff; and if he
can show that the patent was void, or that the
person who claims to be the patentee was not
the person intended, it will be sufficient.
The evidence offered was not for the purpose
of contradicting the patent, but to explain a
latent ambiguity and identifying the patentee.
It is admitted that the premises are a part of
the land set apart as bounty lands for the two
regiments belonging to this State ; and it was
not pretended in the argument that George
Houseman came within this description of per-
sons. Had the patent described the patentee
as a soldier in Captain Wendell's Company, in
the First Regiment, it would have been neces-
sary for Houseman to hav^e proved that he an-
swered that description, although it would
have been extrinsic evidence. And when the
patent is silent as to description of the patentee,
I can see no ejection to the admission of ex-
trinsic evidence to identify the patentee, any
more than there would be to testimony to iden-
tify and locate the land granted. This is not
evidence repugnant to or contradicting the
patent. Nor is it, in fact, evidence which is
necessarily to make void the patent, but only
shows that he who sets himself up as a patentee
is an imposter. Can it be that any man has a
right to go to the Secretary's office, and if he
can find a patent issued to a person of the same
name which he bears that he can avail himself
of such patent, and that his identity is not to
to be questioned ? It is perfectly immaterial
whether the opposition to his claim comes
from one of the same name with the patentee,
or from any other person who has a right to
dispute his title ; and that the defendant in
ejectment has a right to show that the plaintiff
has no title, cannot be denied.
Suppose it could have been shown that
George Houseman, who claims the benefit of
this patent, was a British soldier during the
whole Revolutionary War, might not this have
been done ? That may be said to be an ex-
8O*J treme case. But if the *principle be
sound upon which the testimony offered was
rejected, it would apply to the case I have put.
For it would be nothing more than inquiring
whether the lessor of the plaintiff was, in fact
and in truth, the patentee, or person he pre-
tended to be.
From the best consideration which I have
been able to give this case, I cannot take it out
of the principles which governed the decision
in Jackson v. Stanley, 10 Johns., 136. The de-
fendant there claimed title under David
Hungerford, being the name of the patentee.
But upon the trial, evidence was admitted to
show that it was not David Hungerford who
was intended as the patentee ; and the compe-
tency of such evidence was sanctioned by the
opinion of the whole court. Indeed, the very
same evidence, to wit : the balloting book,
which was decided in that case to be good evi-
dence, has been here rejected. This evidence
was admitted in that case for the express pur-
pose of showing that the patent was void, be-
cause there was no such person as David Hung-
erford who was entitled to military lands, but
that Daniel Hungerford was the person really
intended. If this was not the principle which
governed that case, I know not upon what
ground the plaintiff could recover. If, under
312
the patent, the title was vested in David Hung-
eiford, it was not, nor could be, pretended
that the Legislature could devest him of his
title, and give it to Daniel Hungerford, the
person really intended as the patentee. The
patent to David must first be got rid of, before
the Act of the Legislature could take effect,
and so it was considered by the court. Not-
withstanding there was a person of the same
name with the patentee, who claimed title to
the land, the court said the patent was void,
because he was not the .person intended, and
that it was competent to show this by parol
evidence ; and if such evidence is admissible,
that which was offered in the case now before
us was conclusive to show that George House-
man was not the person intended as patentee.
We must, at all events, for the purposes of
the present motion, assume that the proof
would have established that fact.
I am pursuaded that no solid distinction
can, in principle, be made between this case
and that of Jackson v. Stanley. The great
question, in both cases, is, whether parol evi-
dence is admissible to show that the person
claiming to be the patentee *was not the [*87
person intended. If there be any substantial
difference in the two cases, it is much in favor
of the defendant in this case ; because the mis-
take there was in the Christian name, and it
was admitted, on all hands, that Daniel Hung-
erford, who was the person really intended,
could not take under that patent. But in the
present case, the mistake is in the surname,
and it may well be questioned whether George
Hosmer may not hold the title under this
patent. The law knows only of one Christian
name, but a person may have divers surnames,
and it would have been competent for the de-
fendant to have shown that George Hosmer
was also known by the name of George House-
man. (5 Johns., 84 ; Co. Litt,, 3 a ; 15 Vin.,
tit. Misnomer, C, 5, 6, 413.) And it is express-
ly laid down as a rule on this subject, that in
grants and obligations the mistake of the sur-
name doth not vitiate, because there is no re-
pugnancy that a person should have two sur-
names. It is, however, unnecessary to say that
the title vested in George Hosmer ; it is suffi-
cient for the defendant to show that it did not
vest in George Houseman ; and that the testi-
mony offered to establish that fact was ad-
missible, is, in my opinion, settled in the case
of Jackson v. Stanley. I am, accordingly, of
opinion that a new trial ought to be granted.
Judgment far the plaintiff.
Distinguished— 13 Johns., 521.
Cited in— 9 Cow., 148 ; 5 Demo, 398 ; 9 N. Y., 320,.
359; 8 Barb., 278; 25 Barb., 210; 1 Abb. N. S., 102; 1
Rob., 445.
*LEAL v. WIGRAM AND PHELPS. [*88
Sheriff — Bond to, for Jail Liberties — Liability of
Sureties — Personal Privilege of Sheriff —
Waiver of.
Where a bond is given to the sheriff for the jail
liberties, and the debtor escapes, but is afterwards-
retaken in custody, and a new bond with new sure-
ties is given to the sheriff, this does not take away
the sheriff's right of action against the surety on the
first bond, in consequence of the sheriff's being sued
for the escape.
JOHNS. REP., 12.
1815
PIERCE v. CRAFTS.
88=
The privilege of a sheriff from arrest, in the Court
of C. P. of D., by the rules of that court, is per-
sonal to him. and may be waived, and his waiver of
it, as a defense against a suit brought against him
for an escape, will not affect his right of action
against a surety on the bond for the Jail liberties.
THIS was an action of debt, brought by the
plaintiff , on a bond.dated the 4th of Septem-
ber, 1818, given to him. a» sheriff of Delaware
County, by the defendant, for the jail liber-
ties, granted to Wigram, who was in custody,
at the suit of St. John & ScotHeld. The defend-
ant pleaded mm estfaetum, with notice of /<"/<
damiiificatut. and other special matter.
The cause was tried at the Delaware Circuit,
in June. 1814. before Mr. Justice Spencer. The
plaintiff proved the bond, and the escape of
Wigram from the limits of the liberties of the
jail.
The defendant offered to prove that on the
5th of November, 1818, Phelps, one of the de-
fendants, delivered to the sheriff's deputy a
notice, directed to the plaintiff, requesting him
to retake Wigram and keep him in close
custody, as he wished to be discharged as his
bail, and the deputy retook Wigram and
brought him again within the liberties. This
evidence was objected to on the part of the
plaintiff, but the objection was overruled. It
did not appear, from the testimony given, that
the police had ever been served on the plaint-
iff, or that he knew anything of it.
The defendant then produced in evidence a
new bond given by Wigram and one Isaac
Becker, as his bail* for the limits, dated the
6th of November. The sheriff was not present
when the bond was executed, nor was there
any formal surrender of Wigram by the de-
fendant.
It appeared that a writ had been issued out
of the Delaware Court of Common Pleas, in
the name of St. John & Scoffleld, against the
plaintiff, which was a common capias, in tres-
pass, without any ac etiam clause, directed to
one or other of the coroners of the county,
on which the plaintiff indorsed his appearance,
the 17th of September, 1813, and the coroner
returned on tiie writ cepicorpun. The defend-
ant then produced the rules of the Court of
Common Pleas of Delaware, by which it is
ordered that no attorney, nor the clerk, sheriff,
nor a judge of the court, should be arrested,
but the proceeding should be by filing a bill
against them, unless they are sued with others.
89*] *It appears that an application was
made to the Court of Common Pleas, in
November Term, to discharge the sheriff from
the arrest in the suit against him, which was
opposed by the plaintiff's attorney, who pro-
duced a written agreement, signed by the
plaintiff, by which he waived any advantage
which might be taken of the arrest being by
writ, instead of a bill being filed against him,
according to the rules of the court, and the
court refused the application.
Mr. Snericood, for the plaintiff, contended
that there was a valid suit commenced against
the sheriff ; for though, by the rules of the
Court of Common Pleas, he was privileged
from arrest, yet it was competent to him to
waive that privilege.
The new bond could not take away the right
of action for a breach of the first.
JOHNS. REP., 12.
Mr. Root, contra, insisted that before the
sheriff could be damnified, everything had
been done that could be required ; the debtor
was surrendered into custody.
As the sheriff could not be arrested, he bad
a good defense against that action ; and if he
might have used his privilege to defeat the ac-
tion, he was not damnified. If he thought
proper to waive his ground of defense, he
ought to take the consequences on himself. It
was a voluntary abandonment of his right ;
and he ought not, therefore, to be allowed
to bring an action against the surety on the
bond given for his indemnity.
Per Curiam. One question made upon the
argument of this case was, whether an action
could be maintained by the sheriff upon his
bond, until he had been sued for the escape,
and judgment obtained against him. This ob-
jection can arise only on the supposition that
the judgment which has been recovered against
the sheriff was void, which we do not think
was the case. If that judgment had been ob-
tained by fraud, or collusion with the sheriff,
or if he had waived any defense which went
to the merits of the action, and which wo*uld
have defeated the recovery against him.it might
have been a good objection by the bail; but no
such matter was waived. The right of being
sued by bill, instead of by writ, which he
waived, was a' mere personal privilege. This
did not touch the merits *of the cause, nor [*OO
can it be deemed to have injured any other
person. All the evidence given in relation to
the other bond was irrelevant. The escape re-
lied on was proved to have been made before
the second bond was given, and the recovery
against the sheriff was for that escape. The
new bond was prospective, and could not re-
lease the surety on the former bond for the
previous escape ; and the plaintiff is, accord-
ingly, entitled to judgment in this case, to in-
demnify him against the recovery for that
escape.
Judgment for the plaintiff.
PIERCE v. CRAFTS.
Practice — Indebitatus Assumpsit — Prothis»ory
Nnte* a» Evidence under General Countt for
Money Lent.
Indebitatus OMtumpsit lies by the holder of a note
payable to A B. or bearer, or by the indorsee of a
note, against the maker.
Citations— 2 Ld. Raym., 755 : 2 Str.. 719; 3 Burr.,
1516; 2 Johns.. 235: 8 Johns.. 81 ; Tidd's Prac.. 534 ; 1
Campb., 175; 3 D. &. E., 174; 3 Johns. Cas., 5.
IN ERROR, from the Court of Common
Pleas of Otsego County. Crafts brought
an action of awumpsit against Pierce, in the
court below. The declaration was on the
counts, for money lent, money paid, and for
money had and received to the use of the plaint-
iff. Tjlie defendant pleaded non a*sump*it. At
the trial, in his support of his declaration, Hie
plaintiff offered in evidence two notes. The
first was as follows: "For value received, due
William Douglass, or bearer, fourteen dollars t
and fifty cents, with interest, payable the 1st*
March next. Springfield, 8th November, 1811.
lit
SUPREME COURT, STATE OP NEW YORK.
1815
James Pierce." The second note was dated
December 26, 181 1 , and the defendant prom-
ised, for value received, to pay William Doug-
lass, or bearer, the sum of $18, with interest,
<fcc. The execution of the notes by the defend-
ant below was admitted; but his counsel in-
sisted that they could not, without further evi-
dence, be admitted in support of the plaintiff's
declaration. The court below, however,
overruled the objection, and directed the jury,
that the notes were admissible in evidence in
support of the plaintiff's auction, and the jury
found a verdict for the plaintiff for $25.55.
A bill of exceptions was tendered by the plaint-
91*] iff's counsel to the opinion *of the Court
of C. P., on which a writ of error was brought
to this court.
Mr. Seely, for the plaintiff in error. Indebi-
tatus asxump&it will not lie in any case, except
where debt .lies. (Hard's case, 1 Sulk., 23;
Hardres, 485; 1 Ld. Raym., 69.) Now, debt
lies only between the immediate parties to the
contract. It will not lie against the acceptor
of a bill of exchange (2 Selwyn's N. P., 469);
nor by an indorsee against the maker of a note;
nor. where there is not some privity between
the plaintiff and the defendant. (Chitty on
Bills, 263, 265; 1 East, 98; 3 Bos. &
Pull., 559; 3 East, 177; 1 Ch. PI., 94; 1 Cranch,
290.)
In Wayman v. Bend, 1 Campb. Rep., 175,
where a note was payable to L. T. , or bearer,
Lord Ellenborough held that the plaintiff
could not recover under the money counts, as
he was not an original party to the bill.
Mr. Warner, contra. The Act (1 N. R. L.,
151, sess. 24, ch. 44) concerning Promissory
Notes, taken from the English Statute of 3 and
4 Anne, ch. 9, sec. 1, declares that all notes
in writing made, &c., whereby such person
shall promise to pay any other person, &c. , his or
their order, or unto bearer, any sum of money
therein expressed, shall be taken to be due
and payable as therein expressed, and shall
have the same effect, and be negotiated in like
manner, as inland bills of exchange, according
to the custom of merchants; and that the payees
or indorsees of every such note, &c. , shall and
may maintain their action, &c., against the
makers and indorsers of the same respectively,
in like manner as in cases of inland bills of ex-
change, and not otherwise.
A note is, prima facie, evidence of money lent
by the payee, to the maker, and, consequently,
of money had and received by the maker to
the use of the holder, and of money paid by
the holder to the use of the maker. (Bayley on
Bills, 95; Chitty on Bills, 267.) In Grant v.
Vaughan, 3 Burr, 1516, Lord Mansfield says:
"I do not find it anywhere disputed, that an
action upon an indebitatus assumpsit, generally,
for money lent, might be brought on a note
payable to one, or order." (Ld. Raym., 758,
930.) Great force arises from the Act of Par-
liament of 3 and 4 Anne, putting notes merely
on the footing of inland bills of exchange, and
particularly specifying "notes payable to bear-
er." And he adds, "but on the second count,"
which was indebitatus assumptdt for money had
and received to the use of the plaintiff, "the
present case is quite clear, beyond all dispute.
For, undoubtedly, an action for money had
and received to the plaintiff's use, may be
514
brought by the bona fide bearer of *a [*92
note payable to 'bearer. There is no case to
the contrary. It was certainly money received
for the use of the original advancer of it; and
if so, it is for the use of the person who has
the note, as bearer."
In Tallock v. Harris, 3 Term R., 174; S. P.,
Vere v. Lewis. lb., 182, this doctrine was fully
recognized by Lord Kenyon.
It is true Lord Holt would not allow an ac-
tion of indebitatus assumpsit on the note, and
he was pertinacious on this head (6 Mod., 29;
1 Salk., 129); but he allowed the note to be
given in evidence under the general count. It
was, no doubt, in consequence of the opinion
of Lord Holt, that the Statute of 3 and 4 Anne
was passed. To support the count for money
had and received, it is not necessary, in all
cases, to give positive evidence that the de-
fendant has received money belonging to the
plaintiff. It is enough if the facts proved af-
ford a fair presumption that money has been
received to the use of the plaintiff. (Tuttle v.
Mayo, 7.Tohns., 132; Doug., 137.)
\nDimsdalev. Lanchester, 4Esp. N: P. Cas.,
201. Lord Ellenborough held that an action
for money had and received by the indorsee
of a note against the maker, was maintainable;
that a person who puts his name to a promis-
sory note, thereby acknowledges that he has
in his hands money of the payee of the note,
and undertakes to pay it to whoever is legally
entitled to receive it. A note payable to J. S.
or bearer, is payable to the bearer. J. S. is a
mere cipher, and the note passes by delivery,
without indorsement. The person named
ceases to be a party to it. (Bayley on Bills, 12,
31 ; Lord Raym. ,442, 724, 929, 930); and notes in-
dorsed in blank pass by delivery. Possession
is, in such case, evidence of title. (Doug., 611.
683; 2 Dallas, 146; Chitty on Bills, 90, 93.)
Want of privity is no objection to an action
of indebitatus assumpsit, for money had and
received. There are numerous cases in which
the action has been maintained, without show-
ing a privity between the parties. (1 Cranch,
440, 443, and cases cited.)
Mr. Seely, in reply. The case of Grant v.
Vaughan was decided on a point different from
the one raised in the case. In Tatlock v. Har-
ris, the note was payable to a fictitious person,
and the court considered it as equivalent to a
bill payable to bearer. In the case of Gibson
v. Minet, 1 H. Bl., 568-802, decided in the
House of Lords, all the cases are examined
and reviewed, and, so far as they are contrary
to the doctrine for which we contend, are
overruled.
*PLATT, J., delivered the opinion of [*93
the court:
This was an action of indebitatus assumpsit
for money had and received, money lent, &c.,;
and the chief question is, whether the promis-
sory notes in the hands of the plaintiff below,
as bearer, were properly admitted in evidence
under such a count.
It is clear, that as well before as since the
statute making notes negotiable, the person
named as payee might give such note in evi-
dence, under the general counts for money
lent, or money had and received, &c., (Clerke
v. Martin, 2 Lord Raym., 755; Story v. Atkins,
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. BELKNAP.
93
2 Sir., 719; Grant v. Vaughan, 3 Burr., 1516;
Smith v. Smith, 2 Johns., 235; Arnold v. Crane,
8 Johns., 81.)
The •Statute of Annegiive an additional rem-
edy, but did not take away the old one.
That statute, as we have adopted it, enacts,
"that all notes in writing, made and signed by
any person, &c. , whereby such person, «fec.,
shall promise to pay to any other person, &c.,
his or their order, or unto bearer, any sum of
money therein mentioned, shall, by virtue there-
of, be taken and construed to be due and pay-
able as therein expressed; and shall have the
same effect, and be negotiable in like manner,
as inland bills of exchange," &c.
The effect of this statute is twofold: first, in
making a promissory note evidence, per se, of
money due; so that it may be declared on like
a specialty; and, second, in making it nego-
tiable.
If, as all agree, such a note, before the stat-
ute, wa$ evidence of money due from the
maker to the payee, so as to support a count
for money had and received. I can see no good
reason why an assignee by indorsement or de-
livery, ought not to have the same remedy. It
was the object of the statute to place the as-
signee in the same relation to the maker, as
the payee stood in before ; and the legal opera-
tion of the transfer is, that the money which,
by virtue of the note, was due to the payee
from the maker, is now due from the maker to
the assignee.
Then notes were payable "to William
Douglass, or bearer," like the form used in
bank notes. " Bearer" is descriptio person® of
the real payee. It may be that William Doug-
lass had no knowledge of the note, or is a fic-
titious person. The note, however, is trans-
ferable by delivery merely, and possession was
evidence of property in* the plaintiff below,
prima facie.
94*] *It is objected by the counsel for the
defendant, that here is no privity of contract
between these parties ; and several authorities
were cited to show that indebitntu,* assumpnt
will not lie, except between privies.
To this objection there are two answers : 1.
There is a legal privity of contract between
the maker of a negotiable note and the as-
signee or bearer in this case. It is a contract
to pay the money to whoever may become en-
titled to it by transfer, as bearer ; and such
privity commences as soon as the bearer be-
comes so entitled. 2. It is not true that the
action for money had and received can only
be grounded on privity of contract. It lies
against the finder of money lost. It is the prop-
er action to recover money obtained by fraud
or deceit. If a man, without my authority,
receive money due to me, I may recover it of
him in this form of action ; and certainly in
these cases there is no privity of contract.
Another objection is, that "this general form
of action subjects the defendant to unfair
surprise. This objection is too large. It
would apply with eaual force to all the
cases above stated, ana to many others in
which this action is confessedly appropriate.
And besides, the defendant may always pro-
tect himself against surprise, by demanding a
bill of particulars. (Tidd's Prac., 534.)
In the cane of Waymnn v. Hend, 1 Campb.
JOHNS. REP.. 12.
JV. P.. 175, precisely like the present case,
Lord Ellenborough decided that the right of
giving a promissory note in evidence under
the general money counts, is confined to the
original party to whom it was made payable.
But this was a Nisi Priua opinion ; and as tin-
plaintiff in that case recovered on another
count, as indorsee of the same note, it never
became material to revise that decision.
That opinion of Lord Ellenborough contra-
dicts the decisions of several of his illustrious
predecessors.
In the case of Tatloek v. <Uarri», 8 D. & E.,
174, it was decided that an indorsee of a bill of
exchange may recover against the acceptor,
under a count for money had and received ;
and Lord Kenyon there says: "In making
this decision we do not mean to infringe a
rule of law, which is very properly settled,
that a chose in action cannot be transferred :
but we consider it as an agreement between
all the parties to appropriate *so much [*J><>
property to be carried to the account of the
holder of the bill."
In the case of Grant v. Vaughan, 3 Burr. ,
1516, it was decided that indebitatus atwtmpta't,
for money had and received, was a proper ac-
tion to recover the value of a bill of exchange,
by the bearer against the drawer ; and Lord
Mansfield there says: " Undoubtedly, an ac-
tion for money had and received to the plaint-
iff's use, may be brought by the bona fide
bearer of a note, and made payable to bearer.
There is no case to the contrary." The case
of Cruger v. Armstrong et al. , 3 Johns. Cas. , 5,
supports the same doctrine.
Another exception to the record in this case
is, that the judgment purports to be rendered
upon a verdict for $27.55, whereas it appears
by the bill of exceptions that the verdict was
for $25.55 only.
To this I think it a sufficient answer, that it
is not strictly the office of a bill of exceptions
to ascertain the amount of the verdict. The
clerk received and enrolled the verdict under
the direction of the court, and we must pre-
sume the record to be made up according to
the official entry of the clerk, which is the
best evidence in the case.
The court are of opinion that the judgment
below ought to be affirmed.
Judgment affirmed.
Denied— 2 Whart., 349.
Cited in- It, Johns., 266: 20 Johns.. 371; 6 Cow.,
4fl3: 8 Cow., Ki; f> Wend.. 4!C> ; 7 Wend.. 175, :J12 ; 10
Wend., :M:I; 17 Wend.. 207: 19 Wend., 114: 3 Hill. 55:
6 N. Y.. 30; 8 N. Y., 348; 41 N. Y.. 482; B2 N. Y.. 447;
2Keyes, 200: 3Lans.,312: 1 Abb. App. Dec., 337: 8
Hurt).. 222; 10 Burn., 182; 1 Sand., 67 ; 35 Mich., 63;
31 N. J. L., ltt» : 36 Ohio St., 497 ; 29 Wis., 617 : 6 How.
(U. 8.), 37 ; 2 McLean, 237 ; Hemp., 171.
•JACKSON, ex dem. WICKHAM. [*»«
t.
BELKNAP.
Ejectment— Deed of Surveyor- General Executed
under Act of LegMature — Prima Facie Evi-
dence of Title — Recognition of Title.
Where by the Act of the Legislature, passed 6th
April. 1792, th»' Surveyor-Oetiernl was authorized to
sell such lands of W. as C. should discover to have
in
SUPREME COURT, STATE OP NEW YORK.
1815-
become forfeited by the attainder of W., under the
Act of October, 1799, and pay the moneys arising
from such sale to the Treasurer, &c., out of which
the Treasurer was to pay the demand of C. against
W.; and the Surveyor-General sold all the estate of
W". in a certain lot of land. In an action of eject-
ment, by a person claiming under the deed of the
Surveyor-General, it was held that the Act of the
Legislature, and the deed of the Surveyor-Gene-
ral, were prima facie evidence of title sufficient to
enable the plaintiff to recover.
Citation— Act April 6, 1792.
was an action of ejectment for land in
the town of Lumberland, in the County of
Sullivan, tried before Mr. Justice Yates, at the
Sullivan Circuit, in September, 1814, when a
verdict was taken for the plaintiff, subject to
the opinion of the court on the following
case :
The plaintiff gave in evidence an Act of the
Legislature, entitled, "An Act to Authorize
the Treasurer of this State to pay to Sundry
Persons the Several Sums of Money therein
mentioned," passed the 6th of April, 1792.
This Act, after reciting that William Cock-
burn, pursuant to the Act of the 9th of March,
1790, had his accounts and demands against
John Weatherhead, whose estate, by his at-
tainder, had been forfeited to the pepple of
this State, liquidated and certified : but that
all the moneys arising from the estate, which
had come into the hands of the Treasurer, had
been paid out to other creditors, &c., enacted
" that if the said William Cockburn shall dis-
cover any estate, forfeited by the attainder of
the said John Weatherhead, to the Surveyor-
General, and not before disposed of, it shall
and may be lawful for the Surveyor-General to
sell the lands so discovered at public vendue,
to give a conveyance of the same to the pur-
chaser or purchasers thereof, without war-
ranty, and to pay the moneys arising from
such sales into the Treasury; and the Treas-
urer shall, out of such moneys, pay the de-
mands of the said William Cockburn," &c.
The plaintiff also gave in evidence a deed
from Simeon Dewitt. the Surveyor-General,
to the lessor of the plaintiff, for lot No. 4, in
the seventh division of the Minisink patent,
the premises in question, of a moiety of which
the defendant was in possession. This deed
was dated the 22d of February, 1810.
The plaintiff next gave in evidence the will
of Catharine Dodge, of the City of New York,
dated the 6th of October, 1774, by which she
devised to John Weatherhead a lot of ground
in the said City, and also her messuages,
lands, tenements, and hereditaments, situate,
&c., in the Minisink patent, which was pur-
chased by her grandfather, Cornelius Dodge,
97*] of *John Cholwell, and it was admitted
that on the division of the Minisink patent,
the lot in question fell to John Cholwell, one
of the original patentees.
The premises were vacant until about the
year 1792 or 1798, when one Burton entered
and built a log house and a saw-mill, but with-
out pretending to claim any title to the land.
After being in possession some time, he leased
his improvements to two persons, who re-
mained in possession, as his tenants, for sev-
eral years, and then abandoned the lot. The
premises remained vacant for three or four
years, when Burton again entered, with his
818
son-in-law, Huickman, and took possession of
his former improvements ; but neither Bur-
ton nor Huickman ever claimed anything
more than the mere naked possession of the
land.
In 1807 Burton sold his possession to Alli-
son Buckbec, who transferred it to the lessor
of the plaintiff.
About three years before the trial, Huick-
man sold his possession to the defendant.
After the lessor had obtained the deed from
the Surveyor-General, Huickman said he
thought the lessor had treated him ill, in re-
fusing to admit him as a partner in the pur-
chase of the lot, according to the promise
which he alleged, the lessor had made tc-
him.
The case was argued by Messrs. J. Duer and
Sudam for the plaintiff, and by Messrs. P. Bug-
gies and 8. Jones, Jr. , for the defendant.
Per Curiam. The lessor of the plaintiff
claims title to the premises in question under a
deed from the Surveyor-General, bearing date
the 22d day of February, 1810, and which was
given under, and pursuant to, the provisions
of an Act of the Legislature of the 6th of April,
1792, which, after reciting a claim which Will-
iam Cockburn had against John Weatherhead,
authorized the Surveyor-General to sell such
lands of Weatherhead as Cockburn should
discover to have became forfeited by the attain-
der of Weatherhead, and which should not have
been before discovered. .This Act, and the
deed from the Surveyor-General, were, prima
fade, enough to entitle the plaintiff to recover ;
and nothing was shown on the part of the
defendant, in any manner, to rebut this evi-
dence of title. The *Surveyor-General [*98
was a public officer, executing a special trust
reposed in him by the Act referred to. He
was only authorized to sell such lands as Cock-
burn should discover to him to have become
forfeited by the attainder of Weatherhead. It
is to be presumed, therefore, that due inquiry
was made by him, whether the premises in
question were such lands ; and although this
inquiry was ex-parte, it was made under the
authority of the statute, and the title given in
pursuance thereof is to be received, in the first
instance, as given conformably to the requisites
of the Act. Neither the possession taken by
Burton in the year 1792, or by him and Huick-
man in the year 1802, were under claim or pre-
tense of title. They were mere naked posses-
sions, and must be deemed to have been held
subservient to the title of the real owner ; and
whatever right Burton had was purchased by
the lessor of the plaintiff in the year 1807.
The only claim set up by the defendant is the
possession purchased of Huickman, about
three years before the trial. After the lessor
of the plaintiff had obtained his deed from the
Surveyor-General, Huickman complained that
he had treated him ill, in not admitting him a
partner in the purchase, according to his prom-
ise. This amounted to a recognition of the
plaintiff's title. The time is not stated, with
precision, when these com plaints or confessions
were made ; but it must be presumed it was
before Huickman sold to the defendant. No
objection was made to the evidence ; and if
the confessions were made after he had parted
JOHNS. REP.. 12.
1815
WALSH v. DURKIS ET AL.
M
with his interest, whatever it was, the testimony
would have been inadmissible. The plaintiff
i> entitled to judgment.
Judgment for the plaintiff.
Cited In— t Cow., 594 ; 38 Mich.. 332.
W>*1 *WALSH AND GALLAGHER
v.
DURKIN KT AL.
Practice — Suit Pending in U. S. Court — No Bar
to Suit here.
That another action between the same parties, for
.in- cause, is pending in the Circuit Court of
the U. S. for the Virginia district, cannot be pleaded
in abatement of a suit in a court of this State.
Citations— 9 Johns.. 221 ; 2 East, 453.
THIS was an action of a*sump*il. The declar-
ation contained, beside the usual money
counts, a special count for work and labor,
and services done as agents of the defendants,
«kc. The defendants pleaded, in abatement,
another action brought by the plaintiffs against
the defendants, pending in the Court of the
I'nited States for the fifth circuit and Virginia
district, upon the same promises and under-
takings as are set forth in the declaration in
this suit. To this plea there was a demurrer,
and joinder in demurrer.
Mr. P. W. Raddiff, in support of the de-
murrer.
In the case of Bowne & Seymour v. Joy, 9
Johns., 221, this court decided that the pend-
ency of a suit in a foreign court, or a court of
another state, between the same parties, for
the same cause of action, was no stay or bar to
a suit in the courts of this State. Debt does
not lie on a judgment in the court of another
state. Such judgment is merely prima facie
• eeidence. So that, notwithstanding the judg-
ment in a foreign court, the party may be sued
here. It may be a question, whether this mat-
ter should be pleaded in bar or in abatement.
Mr. Ant/ion, contra. Another action pend-
ing for the same cause may be pleaded in
abatement. (Comyn's Dig., Abat., II ; 25 Bac.
Abr., Abat.. M.)
The case of Imlay v. EUesfen, 2 East. 453,
in the Court of K. B. in England, is directly
contrary to the decision of this court in Bovine
<t Seymour v. Joy.
The rule as to foreign courts or foreign states
is not applicable in this case. The govern-
ment of the United States extends over the
whole country, and embraces the whole people.
It cannot, as to any particular state, be regard-
ed as a foreign government ; nor are its courts
foreign tribunals.
Mr. Raddiff, in reply. The case of Imlay v.
Elltxfen arose on a motion to discharge the
defendant on common bail, a matter wholly in
*the discretion of the court. Here [MOO
there is a demurrer to the plea, which goes to
the right of action.
Any of the courts of the United States out
of the State of New York, are, as it respects
the courts of this State, foreign. Why are the
courts in Ireland and Scotland regarded as
foreign ? It is not because they are transma-
rine, out because they are out of the jurisdic-
tion of England. There is no relation between
the jurisdiction of any court in this State, and
the Circuit Court of the United States in the
Virginia district. They are totally distinct
and independent tribunals, in distinct and in-
dependent jurisdictions. That court is bound
to conform to the laws of the United States
and of Virginia, not to the laws of New York.
YATES, J., delivered the opinion of the
court :
To say that the proceedings of a court under
the government of the United States could, in
any respect, be received and treated like those
of a foreign tribunal, by a court of one of these
states, would seem to involve an absurdity.
The present, however, is such a case, and, at
the same time, it is perfectly reasonable that
jurisdiction should be retained, to avoid the
embarrassments which would inevitably ensue,
if proceedings in the Circuit Court of the
United States could arrest the progress of a suit
brought in this court.
From the peculiar organization of the gov-
ernment of the United States, composed of
several independent sovereignties, associated
for purposes specified in the general compact,
it is not at all surprising that in exercising
concurrent powers, questions should be pre-
sented perfectly new, and, of course, not
susceptible of elucidation by cases in the books,
exactly analogous.
For a correct decision of those questions,
therefore, principles in some measure applica-
ble to each particular case, must be resorted
to.
The rule in the English courts is. that the
pendency of a suit in a foreign court, by the
same plaintiff against the same defendant, for
the same cause of action, is no stay or bar to a
suit instituted in one of their courts. It is the
definitive judgment on the merits only, which is
by them considered conclusive ; and we have
frequently declared so, as to suits instituted in
NOTB.— Abatement— Pendency nfxuit between name
parties in atvtther territorial jurMlctitm.
The mere pendency of a *uU hfttreen the name par-
tie*, for the mimecaune of action, in another territo-
rial juriMlirlinn, is not a ground of abatement.
Browne v. Jay, 9 Johns., 221 ; Williams v. Avniult,
31 Barb., 3tt4 ; Bradley v. Bosley, 1 Barb. Ch., 125 :
Burrows v. Millar \ Miller. .'> Mow. I'r., 51 ; Cook v.
Litchtled, 5 Sandf., 330 : Allen v. Watt, 89 III., «55;
Railroad Co. v. Hunt, 20 Ind.. 457; Humphries v.
Dawson, 3ft Ala., 19U : McJilton v. Love, 13 III., 486 ;
Davis v. Morton, 4 Bush, 442 : Velverton v. Conant,
18 N. H.. 123 : Drake v. Bninder, 8 Tex., 351 : Newell
v. Newton, 10 Pick., 470; Sloan v. McDowell, 76 N.
C., 29; Smith v. Lathrop, 44 Pa. St., 32«; Hogg v.
• Charlton, 25 Pa. St., 200 : Kr-jwrte Balcb, 3 McLean.
JOHNS. REP., 12.
221 : l.y man v. Brown, 2 Curt., 559 ; Loring v. Marsh,
2 Cliff., 322; White v. Whitman. 1 Curt., 494; Hatch
v. SpofTord. 22 Conn., 497; Salmon v. Wotten, 9
Duna, 422 ; Wood v. Lake, 13 Wis.,91 ; Colt v. Part-
ridge, 7 Met., 572; Maule v. Murray, 7 T. K., 466;
Imlay v. Kllelsen, 2 East, 457 : Cox v. Mitchell. 7 C.
B. (N. 8.), 65 ; Stanton v. Embrey. 93 U. S.. 548. But
i see, Embree v. Collins, 5 Johns., 101 ; Mitchell v.
Munch. 2 Paige, flUrt; Lawrence v. Remington, 6
Biss.,44.
I'll' pendency of another twit between the name
imttiix. in another court, n-itltin the name territorial
jniixitiction, will abate the suit. Thus, the pendency
of such suit in the federal courts within the same
district will abate the suit in the State court. Smith
v. Atlantic Mutual Ins. Co.. 22 N. H.. 21.
317
101
SUPREME COURT, STATE OF NEW YORK.
1815
1O1*] *the courts of our sister states. The
reasons assigned by this court in the case of
Bowne & Seymour v. Joy, 9 Johns, 221, appear
to me to be perfectly satisfactory. Those reas-
ons are, that the judgment, at least, if not a
recovery in one suit, might be pleaded puis
darrein continuance to the other suit ; and if
the two suits should even proceed, part passu,
to judgment and execution, a satisfaction
of either judgment might be shown upon
audita querela, or otherwise, in discharge of
the other.
This court has no greater connection or in-
terference with the Court of the United States
for the fifth circuit and Virginia district,
than it has with any of the other state courts.
The same principles, consequently, are appli-
cable, and may be urged, with equal propriety,
in favor of retaining jurisdiction here. They
are tribunals, in this respect, as independ-
ent of each other as they are of foreign
courts.
The case of Imlay v. Ellen fen, 2 East, 453,
relied on by the defendant's counsel, does not
interfere with this doctrine, nor is it applicable
to the present case. That was an application
to the discretion of the court ; the defendant,
by leave of a judge at his chambers, was holden
to special bail on an affidavit made, and in sup-
port of a rule to discharge the defendant on
common bail, a counter affidavit was received
to show that he had before been holden to bail
in Norway. The rule was refused ; and Lord
Ellenborough, in giving the opinion of the
court, says : "The question here is, whether
we have presented to us, with sufficient dis-
tinctness, that the defendant stands in the
situation of having been holden to bail in Nor-
way, so that the plaintiff has the same security
for his demand, and might have all the benefit
of prosecuting his suit there, which he has
here." The Court of K. B., not knowing what
the laws of Norway were, in that respect, did
not feel themselves warranted to take from the
plaintiff the benefit he was entitled to from
their laws.
There is a manifest distinction between an
application to be discharged on common bail,
which (if granted) would not arrest further
proceedings in the cause, or a plea like the
present, going to destroy the remedy in this
court altogether, or, at least, during the pend-
ency of another action in a foreign court. The
former is a decision resting in the discretion of
the court, who might, with propriety, advert
1O2*J to equitable circumstances in their de-
termination. But a question, like the present,
not resting in discretion, and involving the
jurisdiction of the court, the law appears to
me to be too explicit to be misunderstood.
Nor can I perceive that the principles laid
down by Lord Ellenborough, on a motion for
a discharge on common bail, are at all appli-
cable.
The plea, in this instance, is bad, and there
must be judgment of respondeas ouster.
Cited in— 50 N. Y., 203 ; 6 Hun, 78 ; 19 How. Pr., 566:
57 How. Pr.. 14; 31 Barb., 367 : 61 Barb., 57 ; 11 Abb.
Pr., 228 ; 10 Leg. Obs., 339 ; 5 Sand., 342 : 40 N. J. L.,
291 : 1 Curt., 496 ; 3 Blatchf ., 243 ; 2 Cliff., 322; Abb.
Adm., 293.
318
MERRITT AND MERRITT v. CLASON.
Contracts — Assumpsit — Statute of Frauds. 1.
Memorandum in Lead Pencil is Good. 2.
Broker — Agent of both Parties — Authority of,
need not be in Writing.
A memorandum of a contract for the purchase of
rye, written by the broker employed to make the
purchase, with a lead pencil, in his book, in the
presence of the vendor, the names of the vendor and
vendee, and the terms of the purchase, being in the
body of the memorandum, but not subscribed by
the parties ; it was held to be a sufficient memoran-
dum in writing within the Statute of Frauds. (Sess.
10, ch. 44, sec. 15.)
The authority of the agent need not be in writing.
A broker is the agent of both parties ; and the neg-
lect of the agent to give a copy of the memorandum
of the contract to the vendee will not affect the
rights of the vendor.
Citations-2 Bos. & P., 237 ; 1 Esp., 199 ; 1 P. Wms.,
770, 710(6 1.
was an action of assumpxit, tried at the
-L New York sittings, in April last, before
Mr. Justice Yates.
John Towusend, a witness for the plaintiffs,
testified that he was a broker, and was em-
ployed by the defendant to purchase rye. On
the 18th of February, 1812, he applied to Isaac
Wright & Son, the agents of the plaintiffs in
New York, and agreed to purchase of them
10,000 bushels of rye, at one dollar per bushel,
and they authorized him to sell the same to
the defendant, on the terms agreed on ; the
witness informed the defendant, of the terms
of sale, and was directed by him to make the
purchase accordingly. The witness then went
to Wright & Son and closed the bargain with
them, as agents of the plaintiffs, and in their
presence wrote in his memorandum book, with
a lead pencil, as follows: "February 18th,
bought of Daniel & Isaac Merritt (the plaint-
iffs), by Isaac Wright & Son, 10,000 bushels of
good merchantable rye, at one dollar per
bushel, deliverable in the last ten or twelve
days of April next, alongside any vessel or
wharf the purchaser may direct, for Isaac Cla-
son, of New York, payable on delivery." All
the other memoranda in the same book were
written with a lead pencil. Soon after the
purchase was thus completed, the witness in-
formed the defendant of it, but did not give
him a copy of the memorandum.
The plaintiff repeatedly tendered the rye to
the defendant, *according to the terms [* 1 03
of the agreement, particularly on the 14th and
30th days of April, and the defendant refused
to accept and pay for it. On the 1st of
May the plaintiffs addressed a letter to the de-
fendant, giving him notice, that unless he re-
ceived and paid them for the rye, according to
the contract, they should, on Tuesday, the 4th
of May, at noon, cause the same to be sold at
public auction, at the Tontine coffee house,
and hold him accountable for the deficiency,
if it should sell for less than the price men-
NOTE.— Statute of Frauds.
The writing may be in pencil. See above case of
Merritt v. Clason, affirmed, 14 Johns., 484 ; Draper v.
Pattina, 2 Spear, 292; McDowell v. Chambers, 1
Strob. Eq., 347 ; Geary v. Physic, 5 Barn. & C., 234 ; 3
Pars. Cont., 9.
As to what is a sufficient signing, see 3 Pars. Cont.,
4-7, and authorities there cited.
JOHNS. REP., 12.
1815
MEKKITT v. CLASON.
103
tioned in the contract, and the expenses. The
defendant continuing to refuse to receive the
rye, or to pay for it, it was, according to the
notice, Hold at public auction, and the present
guit was brought to recover the difference be-
tween the net proceeds of such sale and the
contract price.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on a case con-
taining the facts above stated, and which either
party was to be at liberty to turn intoa special
verdict.
Mr. WeU», for the plaintiffs. The points in
this cause have been repeatedly discussed and
nettled. Townsend, the broker, acted as the
agent of both parties ; as such agent he was
competent to make a contract obligatory on
both. It is distinctly stated that he* was
an agent for both parties ; besides, he
was a broker, and, as such, is the agent of
both.
To make the contract valid, within the Stat-
ute of Frauds (sess. 10, ch. 44, sec. 15 ; 29
Car. II., ch. 8, sec. 17), it is not necessary that
the writing should lie actually signed by the
party or his agent. Signing does not, ex it
termini, mean thai the name of the party should
be subscribed. It is enough if the contract be
in writing, authenticated by him. The name
may be at the top, or in any part of the con-
tract or instrument: (2 Bos. &P., 238 ; 3 Lev,
1 ; 7 Ves., 265 ; 9 Ves., 249 ; 1 Esp. Cas., 19U ;
1 P. Wras., 770, n. ; 7 East. 558; 3 Burr.,
1921 ; 1 Esp., 105 ; 5 Esp., 256 ; 1 Ves., 82 ;
Bailey <t Booertv. Ogden, 8 Johns., 399.) In
Wright v. Dannah, 2 Campb., 203; 15 East,
103, the distinction is made between a memo-
randum made by one of the parties, and as-
sented to by the other, and a memorandum
made by a third person. The written memo-
randum, in this case, contained everything that
was necessary to show the contract between
the parties. No parol evidence was requisite
to explain their intention, or the terms of the
agreement. This is the true test of the valid-
ity of a contract, under the Statute of Frauds.
The authority of the agent need not be in
writing. (5 Vin. Abr., 524 ; Contract. &c.. H.
pi., 45 ; 9 Ves. Jr., 251 ; 1 Sch. & Lef., 31 ; 1
BSD.. 105.)
1O-4*] *Mr. Baldmn, contra. How a per-
son can be the agent of both parties is not easy
to comprehend. An auctioneer is no further
the agent of the purchaser than to put down
his bid. A broker, if he is agent for the ven-
dor, is bound to sell for the highest price ; if
he is agent for the buyer, it is his duty to pur-
chase at tin- lowest price that can be obtained.
He is, in such case, acting in two distinct char-
aaters, having distinct duties to perform, in
direct opposition to each other. The English
courts have proceeded on erroneous principles
in regard to this subject.
Again, as to bought and sold notes, as they
are called, the mere memorandum in the
broker's book is not enough. He must give a
copy of the note to the buyer, and another to
the neller. Besides, the place of delivery is
not mentioned in the contract.
In champion v. Humor, 4 Bos. & P., 1 N.
8., 252. it was held that a memorandum signed
by the seller only was not sufficient. The
plaintiffs, in this case, were not bound ; and if
JOHNS. REP.. 12.
they were not, neither can the defendant be
bound.
In Cooper v. Smith, 15 East, 108, there was
no signature of either party ; and the court
held that the reading over the memorandum
to the purchaser, and his assenting to it, was
not sufficient to bind him.
Again ; the memorandum, in this case, was
written with a lead pencil. Is this such a writ-
ing as was intended by the Statute of Frauds?
If it is, then a writing on a slate, or with chalk,
on a door or wall, would be a good memoran-
dum within the statute. It may be completely
effaced, in a moment, with a piece of India
rubber, and another contract written in its
place without the possibility of detecting the
fraud. This would not be the case it it were
written with ink. Such a writing, in pencil,
cannot satisfy the object of this statute. It is
no better than tracing characters in the sand.
It is said that the signature of the party is
not requisite. But where are the cases in
which such a' doctrine is to be found ? In the
cases relative to wills the devise was written
by the testator, though not subscribed by him.
If an instrument or memorandum is not writ-
ten by a party, its not being signed or subscri-
bed by him is evidence that he does not intend
it to be regarded as his contract. It would be
extremely injurious to *give authority [*1O5
to brokers to bind parties, by such loose memo-
randa of a contract.
Mr. D. B. Ogden, on the same side. I do
not deny that, according to the cases decided,
n broker is to be considered as the agent of
both parties, and that his authority need not
be in writing. But to make a valid agree-
ment within the Statute of Frauds, the writing
must be signed by the party himself who is to
be charged, or by his authorized agent. If the
contract is made by the principal, it must be
signed by him : if by his agent, it must be
signed by the agent. I do not say it must be
subscribed, but it must be signed in some part
of the contract. In Clinan v. Cook, 1 Sch. &
Lef., 22, the agreement was signed by the
agent, and it being shown that he was an
agent, his principal was held to be bound.
In all the ca«ie.s cited, where the agreements
were held binding, it will be found that they
were signed by the agent, who delivered a
note of the bargain and sale. The point raised
here was not discussed or decided in Bailey v.
Ogden.
Again ; it is worthy of consideration what
sort of writing was intended by the statute ,
which was made to prevent frauds that might
arise from trusting to the memory of witnesses,
by requiring a permanent and unchangeable
evidence of the contract. A writing in ink is
indelible, or if effaced and altered, the eras-
ure or alteration may be easily detected, which
would not be the case of a writing with a lead
pencil.
Mr. S. Jonf-*, Jr., in reply. The object of
the Statute of Frauds was, that the terms of the
contract should be precise and certain, and
properly authenticated. If these essential
points are obtained, the statute pays little re-
gard to form. Isaac Clason, the purchaser,
by Townsend, his agent, is mentioned in the
memorandum, and that is a sufficient signing.
It is not necessary that the agent should sign
•It
105
SUPREME COURT, STATE OP NEW YORK.
1815
as agent, when he puts down the name of his
principal. Besides, the agent informed Clason
of the contract.and he made no objection to it.
The broker is the go-between of the parlies.
He goes to the vendor and inquires his price ;
he then goes to the vendee, to know if he will
give the price demanded ; and if he assents, he
concludes the bargain with the vendor. Here
1O6*] is no conflict of *duties. His agency
for both parties is clear and simple. He is
the means of communication between them.
They speak and act through him. He stands
indifferent between them. The case of Cooper
v. Smith turned on the sufficiency of the
memorandum, not on the signing of the party
or his agent.
Either party may demand a copy of the
memorandum from the broker. As to the
danger of fraud, from memorandum being
written with a lead pencil, the same danger
would exist, if it wei e written in ink. If the
broker were disposed to be fraudulent, he
might easily contrive to alter the agreement,
or substitute another in its place. But this
danger wholly ceases, where each party has a
•copy of the note or memorandum made by the
Itroker. And it is a rule of convenience in
England, but not an indispensable requisite,
that copies of the memorandum should be de-
livered to the parties.
PLATT, J., delivered the opinion of the
court :
The only point is, whether the memorandum,
made by John Townsend, was a sufficient
memorandum of the contract, within the Stat-
ute of Frauds, to bind the defendant.
It is objected by the defendant's counsel :
1. That the memorandum is not "in writ-
ing," being made with a lead pencil only.
2. That is not "signed" by the defendant,
nor by his agent.
3. That it is not binding on the defendant,
because his agent did not furnish him with a
copy of it.
I have no doubt that the memorandum re-
quired by the statute, may as well be written
with a lead pencil as with a pen and ink ; and
it is observable that in most of the reported
cases on this head, the memoranda were writ-
ten with a lead pencil, and no counsel, until
now, has ever raised that objection.
I think it clear, also, from the authorities,
that this memorandum was signed according
to the statute.
It is not disputed that the authorization of
the agent, for such purpose, need not be in
writing. In the body of this memorandum
the name of Isaac Clason, the defendant, is
written by his agent, whom he had expressly
authorized to make this contract. The mem-
orandum, therefore, is equally binding on the
defendant as if he had written it with his
1O7*] own hand ; *and if he had used his
own hand, instead of the hand of his agent,
the law is well settled, that it is immaterial, in
such a case, whether the name is written at
the top, or in the body, or at the bottom of
the memorandum. It is equally a signing
within the statute. (Saunderson v. Jackson
et al., 2 Bos. & P., 237; 1 Esp., 199; 1 P. Wms.,
770, note. 1.)
The third objection is absurd. If the defend-
320
ant's agent neglected his duty in not furnish-
ing his employer with a copy of this memo-
randum, it certainly cannot affect the rights of
the plaintiffs, under that agreement.
The memorandum states, with reasonable
certainty, every essential part of the agree-
ment. The court are of opinion that the
plaintiffs are entitled to judgment.
Judgment for the plaintiffs.
Affirmed— 14 Johns.. 484.
Cited in— 16 Wend., 31 ; 18 Wend., 447; 22 Wend.,
174 ; 24 Wend., 328; 26 Wend.. 354 ; 6 N. Y., 11 ; 42 N.
Y., 505 : 8 Barb., 345: 30 How. Pr., 432; 37 How. P.,
41; 42 How. Pr., 457; 1 Hall, 345; 2 Rob., 346; 1
Sweeny, 588 ; 84 Pa., 513.
SALTUS ET AL. v. THE OCEAN INSUR-
ANCE COMPANY.
Marine Insurance — Policy on Freight — Disabil-
ity of Vessel — Master should Procure another
in Port of Distress 01- Contiguous Port, if
Possible — Exception when Cargo is not Fit to
Re-ship — Deduction — Evidence.
It is the duty of a master when the ship becomes
disabled during1 the voyage, to procure another
vessel, if in his power, to carry on the cargo to the
destined port ; but he is not bound to seek another
vessel out of the port of distress.or out of a port im-
mediately contiguous thereto* and if part only of
the cargo is sent to its port of destination, in an-
other vessel, the insurer on freight is not entitled to
a deduction or allowance for the freight earned on
that part ; unless he shows that the goods were de-
livered to the insured at the port of destination, or
that they had notice of their arrival and situation.
It seems that if the cargo is of such a nature that
it is impracticable to resnip and transport it to its
place of destination, without an expense equal to
its value or nearly so, or without manifest detri-
ment to the owners, it may be sold at the port of
distress, and need not be sent on in another vessel.
Insurance on freight from Riga to New York.
The bulk of the cargo consisted of hemp, and the
residue of manufactured goods and iron. The ves-
sel sprung a leak, and put into Kinsale iu distress,
where, after a survey, she was found incapable of
prosecuting her voyage, unless repaired at an ex-
pense equal to her value ; and the master, with the
advice of the merchants and others at Kinsale, sold
the hernp at Kinsale, and shipped the residue of the
cargo in another vessel to New York, which, how-
ever, was not capable of taking more than one
third of the hemp, as there was no machinery to
pack and stow it in the Russian mode. It was held
that the insured were entitled to recover for a total
loss of the freight, it not appearing that the goods
reshipped for New York had reached there, or that
any freight had been earned.
Citation— 9 Johns., 21.
THIS was an action on a policy of insurance,
dated the 5th of December, 1810, upon
the freight of the ship Hudson, at and from
Riga to New York. The policy was valued
and underwritten for $7,000. The cause was
tried at the last April sittings in New York.
The abandonment was duly made *on [*1O8
the 21st August, 1811, and the usual prelimin-
ary proof of interest and loss given.
The cargo of the Hudson, for the voyage
insured, consisted of 15 tons of manufactured
goods, 80 tons of iron, and 171 bundles, con-
taining about 126 tons of hemp, shipped on
account of the plaintiffs, who were also
owners of the vessel.
The master testified that the Hudson sailed
from Riga, in Russia, on the 9th of October,
1810, bound to New York. In the North Sea
JOHNS. REP., 12.
1815
SALTUS ET AL. v. OCEAN INS. Co.
108
she experienced boisterous weather, and be- ! the Friendship, in addition to the other goods,
gan to leak; and when off the coast of Ireland, ; could not have taken more than thirty tons of
her leak had so much increased, that it was the hemp. There were only two other Amer-
thought necessary to put into Kinsale to re- i ican vessels at Kinsale, neither of which was
pair, and she arrived at that place on the 12th . bound to the United States, and they had ear-
of November. She was there surveyed and ! goes. There were twelve or more American
repaired, without unlading her cargo. On | vessels at Cork, which is sixteen miles from
the 28th day of December, she set sail again ; Kinsale. The master made no attempt to pro-
for New YoVk, and after being at sea about j cure any of them to bring home the hemp,
three days, and having proceeded about five ' which he supposed they would have done on
hundred miles on her course, she encountered a freight. The hemp was landed and sold at
a very heavy gale of wind, and received a very j auction at Kinsale. principally to Cork mer-
heavy stroke of the sea, which, as the master j chants, and the average price, as appeared by
supposed, started a plank near her keel, as ! the account of sales, of Harvey, Deaves & liar-
she immediately began to leak very fast, so j vey. the merchants under whose direction it
that she could not be kept free with both \ was sold, was £61 sterling per ton. It ap-
pumps ; and the gale and force of the sea was i peared that the hemp is packed and stowed in
so great, as would, in the opinion of the mas- 1 Russia by the means of machinery and screws,
ter, have endangered any vessel in the same j and that there were no such machinery or
situation. It became necessary to seek a port screws at Kinsale, so that it could not be ship-
to refit, and the commander of an English | ped in the usual manner ; and if stowed loose
frigate, who spoke the Hudson, sent his car- ! it would not pay a freight. The master acted
penter on board to examine her. and advised j by the advice and opinion of Harvey, Deaves
the master to abandon her, as the leak was so . & Harvey, the merchants, and he also consulted
bad. The master, however, bore away for ', the two American captains there. He said the
Kinsale, which he again reached, on the 12th j uempcouldnot have been sufficiently compress-
of January. 1811, where he run the ship into ed by jack-screws, about which he made no in-
the mud, to prevent her sinking. Another I quiry. It would have required two *or [1 1O
survey of the vessel was then made, and it
was judged, that from her state, and the high
price of labor and materials at Kinsale, she
could not be repaired for less than her value,
which was also the opinion of the master, as it
would be necessary to take off the sheathing.
three vessels, of the size of the Hudson, to
bring home the hemp, without its being pack-
ed and stowed in the Russian manner.
The Hudson, on her arrival at Kinsale, had
performed about one third of her voyage.
The goods on board the Friendship, on her ar-
The cargo was landed, and the vessel sold ut . rival at New York, were seized by the Col
auction, which was judged best for the in-
terest of the concerned.
On the survey last mentioned, they took off,
under the mizzen chains, on the larboard side,
a plank about twelve feet in length, and found
three or four rotten timbers, from which it
was concluded that there were other timbers
rotten. But if the timbers had not been rot-
ten she could not have been repaired but at
an enormous expense, owing to the high price
1OJ>*] of materials *and labor. The master
further stated that bad he known the state of
the vessel at Riga, he would not have sailed
from that place, at that season, without hav-
ing her thoroughly repaired, which might
have been done at Riga for half the expense
which the repairs would have cost at Kinsale;
lector of the Customs.
Several witnesses for the defendants, ac-
quainted with the Russia and Irish trade,
stated their opinion, that the hemp might have
been packed with jack-screws ; that in conse-
quence of the non-intercourse law, it might
have been reshipped to this country for a
fourth or an eigth of the usual freight ; and
that four tenths of the voyage was performed,
from Riga to Kinsale, as to the distance.
It appeared, from the testimony of the car-
penter who repaired the ship, in 1810, just be-
fore she sailed for Russia, that her timbers
were sound ; and that, in his opinion, she was
not i m ly seaworthy, but a remarkably strong,
well-built vessel ; that the rotten timbers, in
the place described by the master, could not
render the vessel unseaworthy.
It was agreed that the amount of general
but he had no doubt that in ordinary weather,
the vessel would have performed the voyage
in safety without repairs ; and that any other j average, if any was claimable, should be ad-
vessel, however sound, could hardly have with- 1 justed by persons to be appointed by the
stood the storms the Hudson experienced. I court.
From his subsequent knowledge of the vessel, ! The judge charged the jury that if they
he was led to believe, that when she left Riga found the vessel seaworthy, and if, in their
she was insufficient for the voyage, though she ' opinion, the hemp could not be reshipped in a
might have been competent for a summer I merchantable condition, or the expenses of
voyage ; and at the time of her departure, her
sails and rigging were in good order, and were
so when she was sold at Kinsale.
reshipraent and transportation to New York,
in another vessel, would have increased
the freight to more than a moiety of the freight
The master hired a Baltimore vessel called as valued in the policy, they ought to find a
the Friendship, for £200 sterling, at Kinsale. ' verdict for the plaintiffs for the amount in-
to bring home the manufactured goods and sured, as for a total loss, deducting a pro rata
iron, composing part of the Hudson's cargo, freight from Riga to Kinsale.being four tenths
This vessel was not one fourth loaded, but the of the voyage insured; and that the defendants
hemp could not have been taken out of the were not entitled to any allowance or deduc-
Hudson in bales ; and the rebinding and stow- : tion on account of the iron and manufactured
ing it, in another ship, would have been equal : goods which were transported to New York
to its value ; and in the state in which it was, in another vessel.
JOHNS. REP., 12. N. Y. R.. 5. 21 321
110
SUPREME COURT, STATE OP NEW YORK.
1815-
The jury found a verdict for the plaintiffs
for a total loss, or $4,935.30, after deducting a
pro rata freight of four tenths, equal to $3,-
291.19 ; and they also found a general average
of $274.67, to be adjusted by the direction of
the court.
Ill*] *A motion was made to set aside
the verdict and for a new trial.
Mr. Griffin, for the defendants, contended :
1. That the vessel was not seaworthy when
the policy attached.
2. That the assured ought to have sent home
the whole cargo, by another vessel. (Abbot,
195; Schieffelin v. Columbian Ins. Co., 9 Johns.,
21.)
3. If the assured were unable to bring home
the whole cargo in another vessel or vessels,
their inability to do so arose from the peculiar
nature of the cargo, which circumstance ought
not to affect the insurers. (3 Johns. Cas., 93 ;
3 Johns., 321 ; 1 Johns. Cas., 293.)
4. That the defendants were entitled to an
allowance or deduction for that part of the
cargo which arrived at New York, its port of
destination. (Abbot, 244 ; Park, 70, 71 ; 2
Johns. Cas., 233.)
Mesw-s. Hoffman and T. A. Emmet, contra,
insisted, 1. That the plaintiffs were entitled to
recover as for a total loss, without any deduc-
tion for pro rata freight ; and 2. That the jury
having found a total loss, and, also, found the
pro rata deduction, that the judgment ought
to be for the whole amount, being $8,326.39,
together with the general average.
YATES, J., delivered the opinion of the
court :
There can be no reasonable doubt of the
seaworthiness of the vessel when the policy at-
tached. The captain does not declare satis-
factorily, what her situation really was when
she left Riga ; but is explicit as to her ability
to perform the voyage had he experienced or-
dinary weather ; and he says that a perfectly
sound vessel would hardly have withstood the
storm he experienced, yet, if he had known
her situation, he would not have gone in her.
This opinion, however, appears to be formed
altogether on the discovery of the decayed tim-
bers in her at Kinsale. The carpenter states that
the rottenness of those timbers, in the part of
the vessel described by the master, could not
make her unseaworthy, as little or no stress
could come on the place where they were
found. The weight of evidence appears de-
cidedly in favor of her seaworthiness, and of
course, warranted the verdict of the jury, and
they having passed upon it, their decision
ought to be conclusive.
Il5i*] *The policy being on freight, it is
urged that the master ought to have sent home
the whole cargo by another vessel or vessels.
That the master has a right to hire another
vessel and carry on the cargo, so as to entitle
him to his freight, has at all times been al-
lowed ; and the decision of this court, in
Schieffelin v. New York Ins. Co., 9 Johns., 21,
establishes the principle, that it is his duty to
find another vessel by which to carry the goods
to the place of destination, if it is in his power
to do so. It never was intended by this de-
cision to make it incumbent on the master to
procure a vessel elsewhere, out of the port of
1.22
distress, or out of a port immediately contigu-
ous ; and such limitation is perfectly correct,,
because the extension of this rule, as contend-
ed for, would be attended with insurmounta
ble difficulties and embarrassments to masters.
In the present case, he would have been obliged
to travel sixteen miles, the distance between
Kinsale and Cork, and what his conduct ought
to be, if the distance had been greater, could
not be ascertained. It would be requiring an
act, as a duty, the extent of which the master-
could not at all times know or understand. A
due regard, therefore, to the protection of mas-
ters of vessels, as well as the interest of the
assured, renders some limitation indispensa-
ble ; and that must necessarily be by confining
the inquiry or search for another vessel, to the
same port, and no other, unless it be a port
contiguous and at hand. In this case, no ves-
sel could be obtained at Kinsale ; he was^
therefore, under no obligation to procure one
at Cork ; and such being the true and correct
definition of the master's duty, it was not nec-
essary for the plaintiff to show that the attempt
had been made to procure a vessel at Cork.
Admitting, however, that it would be the
captain's duty, with an ordinary cargo, to pro-
cure a vessel at Cork to send it on, no such ob-
ligation could possibly exist in this case, as.
the situation of the cargo rendered a reship-
ment improper.
It appears evident that the master, through-
out the whole business, acted in good faith.
He consulted one of the most respectable mer-
cantile houses at Cork, as well as two Ameri-
can captains, who were there at the same time,
and who saw the situation of the cargo. They
all concurred in advising the sale of the hemp,
no doubt from a conviction that to carry it to
the place of destination would be detrimental
to the owners. *It appears that it [*1 13
would have required three or four vessels of
the Hudson's size to take it, in consequence of
its elasticity ; and that the Friendship could
have carried but thirty tons of it. The cap-
tain could not, therefore, be chargeable with
negligence for not separating the article, and
shipping so small a part of it loose, and at an
extra expense, when obliged to dispose of the
residue. It would have been a measure mani-
festly against the interest of the owners; for all
the witnesses agree, that a reshipment of the
hemp, in a merchantable condition, would
have increased the expenses, enormously ; and
some of them declare, that to stow it in a ves-
sel, as it had before been in the Hudson, would
have made the expense equal to its value, for
the want of proper machinery for the purpose
at Kinsale ; and such must have been the opin-
ion of the jury, under the directions given
them, and expressed by their verdict, that
those expenses would have amounted to a sum
so extravagant as to forbid a reshipment with
such a cargo. It is, therefore, to say the least,
extremely questionable whether the master,
who acted in good faith, was not perfectly
justifiable. Having, however, before shown
that the inquiry ought to be confined to the
same port, or one contiguous to it, it is not
necessary to decide this cause on any other
ground.
It is contended that the underwriters ought
to be allowed the amount expended on account
JOHNS. REP., 12.
1815
oTapartof the cargo which reached its port
of destination.
They are certainly not entitled, upon any
principle, to a deduction beyond a proportion-
ate allowance for freight actually earned ; and
to authorize such deduction, it was incumbent
on the defendant* to show that those articles
had been delivered to the plaintiffs, at the port
of destination, or to bring home to them notice
of their arrival and seizure; but no delivery or
notice to them appeared on the trial. They,
therefore, cannot claim a compensation in this
instance.
Judgment for Ike plaintiffs.
8. C., M Johns., 138.
OODKN v. NEW YORK FIREMEN IN*. Co.
113
4 Wend., 54 ; 44 N. Y., 221, 441 ;
114*] *OGDEN
THE NEW YORK FIREMEN INSURANCE
COMPANY.
Marine Imura.nct— Voyage Divisible— Return
of Premium.
Insurance on a vessel "at and from Malta to St.
Petersburg!!, with liberty to touch at Cagliari,
Algiers, Tangiersund Wingo Sound" (Gottenburgh),
Ac., for a premium at and after the rate of 40 per
cent, to return 15 per cent, if the vessel passed the
Out of Gibraltar on or before the 20th of June, and
the risk ends without loss, or " 15 per cent, if the
risk ends In safety at Gottenburgb." The vessel
suik-d on the voyage insured, and passed the Gut of
Gibraltar on the 9th of July, 1812, and on the 17th of
July, on account of adverse winds, was obliged to
come to anchor in the Downs for safety ; and'there
hearing of the advance of the French arms and
staU' of ports in the north, the master concluded
to abandon the prosecution of the voyage, and go
to London, where the vessel and cargo were^eized.
on hearing of the war between the United States
and Great Britain.
It was held that the risk was divisible, and that the
underwriters being discharged, by the act of the
insured, from all risk from Gottenburgh to St.
Petersburgh, were bound to return the 15 per cent.,
the stipulated premium for such risk.
THIS was an action of a*iump*it, brought to
recover back part of the premium paid by
the plaintiff to the defendants on two policies
of insurance, on vessel and freight, dated the
12th of August, 1812. The voyage described
in the policies was "at and from Malta
to St. Petersburgh, with liberty to touch
at Cagliari. Algiers, Tangier*, and Wingo
Sound, and to seek, wait for, join and leave
convoy, at any time during the voyage."
The premium was declared to be "at and
after the rate of 40 per cent., to return
15 per cent, if the vessel passes the Gut of
Gibraltar on or before the 20th of June last,
and the risk ends without loss; or 15 per cent,
if the risk ends in safety at Gottenburgh."
Wingo Sound is the outer road or harbor of
Gottenburgh.
The vessel sailed on the voyage insured the
4th of July, 1812, and passed the Gut of Gib
raltar on the 9lh of July ; on the 17th of July,
being in the English Channel, she met with
violent adverse winds, in consequence of
which she came to anchor in the Downs for
safety. The supercargo wrote to the corres-
pondent of the assured at London, for infor-
JOHNS. REP., 12.
million as to the political situation of the
northern ports, and as to the advance of the
French armies towards St. Petersburgh. The
following day, and during the continuance of
the same gale, the supercargo received an an.
swer to his letter, informing him of the- ad-
vance of the French armies, and their prob-
able success, and advising him to come
to London. The supercargo concluded to
do so, and accordingly proceeded to Lon-
don, but before the arrival of the vessel at
that place, accounts were received of the
declaration of war by the United States against
Great Britain, and the vessel and cargo were
seized by the port admiral, and were after-
wards condemned as droits of admiralty.
*At the New York sittings, in May [*1 1J>
last, a verdict was taken for the plaintiff for
$3,194, being the amount of premium to be re-
turned, subject to the opinion of the court, on
a case, as above stated, with liberty to either
party to turn the same into a special verdict.
Mr. D. B. Ogden, for the plaintiff. The de-
fendants having, by the voluntary act of the
master, been released from the risk of the
voyage beyond Gottenburgh, and the risk
having ended safely, the plaintiff is entitled to
the stipulated return of premium for that por-
tion of the voyage. (Marsh, on Ins., 669, 670,
676.)
It will be said, perhaps, that the policy is to
be construed strictly according to its terms,
and that, as the vessel never went to Gotten-
burgh, the risk did not end in safety there.
But the rule is, that the policy is to he con-
strued according to the evident intention of
the parties, and not according to the words.
(Audley v. Duff, 2 Boss. & P., Ill ; Marsh.,
676.) The discharge of the underwriter from
all the risk is equivalent to arriving in safety.
By the act of the insured, in this case, the
enterprise was voluntarily abandoned ; the
risk from Gottenburgh to St. Petersburgh was
never run, and the insurers were wholly dis-
charged from it. They ought, therefore, to
return the 15 per cent., the estimated premium
for that risk. In Dagl(i*h v. Brooke, 15 East,
295, Le Blanc, «/., says, •• the term ' safe arri-
val ' is with reference to the responsibility of
the underwriters ; " and as the ship and goods,
in that case, had both arrived at a spot which
released the underwriters from all responsibil-
ity, it was to the benefit of the underwriters to
construe it as an arrival at the port of dis-
charge, se as to release them from any furl her
risk, and that entitled the insured to a return
of premium.
A person ought not to be paid for a risk he
has never incurred, and, therefore, where
there are two distinct points of time, or distinct
voyages, either in the contemplation of the
parties, or by the usage of trade, only one of
which is performed, the premium ought to be
returned in the other, though both are con-
tained in one policy. (Park on Ins., 516, and
cases cited.)
Me*»r*. Wett» and S. Jone«, Jr., contra. We
do not pretend that the insured are not entitled
to a return of premium where no risk has been
run. But we must look at the terms of the
contract between the parties in this case. The
15 per cent, is to be 'returned, " if the [*1 Itt
risk ends in safety at Gottenburgh. ' The
116
SUPREME COTJKT, STATE OF NEW YORK.
1815
words "in safety" are important, and must
have some meaning and effect ; but, on the
reasoning of the plaintiff's counsel, they must
be struck out of the policy.
This is not an insurance at and from Malta
to Gottenburgh, for 25 per cent., and if the
vessel proceeds thence to St. Petersburg!!, then
15 per cent, more to be paid ; but it is on a
voyage from Malta to St. Petersburg!!, for a
premium of 40 per cent. The return of the
15 per cent, depended on the double contin-
gency of the vessel arriving at Gottenburgh,
and arriving there in safety. It was not to be
returned if the vessel arrived at that place after
being shattered by a storm, so as to subject
the underwriters to a loss. Where the risk is
entire, and has once commenced, though the
time of its continuance be ever so short, there
can be no return of premium. This subject
was fully discussed in the case of Hendricks v.
Commercial Ins. Co., 8 Johns., 1, which was
decided on that principle. The risk com-
menced on the vessel's leaving Malta, and if
she had been lost the next day after her de-
parture, the insured could not have claimed a
return of any part of the premium. But it is
argued that the deviation in this case was equiva-
lent to a safe arrival at Gottenburgh. On this
principle, every deviation which discharges
the underwriters from their responsibility,
would entitle the insured to a return of pre-
mium.
In the case of Audley v. Duff, the vessel
sailed with convoy, and the fleet being dis-
persed, she run to Portsmouth, and arrived,
and the only question was, whether this was
sailing with convoy.
In Slyer v. Oregson, Park, 527, the vessel
was warranted to sail on or before the 1st of
August, to return eight guineas of the pre-
mium, if she sailed with convoy. The vessel
did not sail until September, and the under-
writers were wholly discharged from the pol-
icy, and whether she sailed with convoy or
not could make no difference. The premium
was voluntarily paid into court. The question
as to the return of premium was not before
the court. The only point decided -was, that
where the risk is entire, and has once com-
menced, there can be no return of premium.
Marshall, though he refers to this case, states
the proposition broader than the case will war-
rant ; but Park, in referring to the same case,
lays down no such proposition, but merely states
the general rule, which no person will dispute.
117*] *Mr. T. A. Emmet, in reply. There
is no adjudged case precisely like the one be-
fore the court, and the only point is as to the
application of general principles. It is a
sound principle, that contracts are to be con-
strued and understood according to the clear
intent of the parties.
In this case, as it regards the underwriters,
the risk ended in safety before reaching Got-
tenburgh. What reason can there be why the
premium should not be returned in this case,
as well as in the case of her safe arrival at that
place ? The defendants can show DO possible
injury from the breaking up of the voyage
without going to Gottenburgh; on the con-
trary, they are saved from the risk of loss,
which would have existed had she proceeded
until her arrival at that port.
324
The meaning of the clause, as to the return
of the 15 per cent., is that if no loss happens
before the vessel reaches Gottenburgh, and
she does not go beyond that port, then so
much of the premium is to be returned. The
argument that this is an entire risk from Malta
to St. Petersburgh, and, therefore, it having
commenced, the entire premium is to be re-
tained, would apply to every case of an appor-
tionment and return of premium. For certain
purposes, for the benefit of the underwriters,
the contract is considered entire ; but for other
purposes, it is, also, considered as divisible.
This is like a voyage at and from New York
to Lisbon, and at and from Lisbon back to
New York, and if the voyage ends in safety at
Lisbon, so much of the premium is to be re-
turned.
The principle is correctly laid down by Park
(Park Ins., 6th ed., 516), which is supported
by the case of StepJienson v. Snow, Burr., 1237;
S. C., Bl. Rep., 318. In case of a deviation,
though a return of premium cannot be de-
manded for the risk which has begun to run,
yet it may be demanded for such part of the
risk as has not commenced. Marshall (Marsh.
Ins., 676) says, "if it be stipulated that there
shall be a return of part of the premium for
sailing with convoy and arrival, and in conse-
quence of a breach of warranty, or the non-
performance of some stipulation, or of a devia-
tion, the underwriters be discharged before
the ship can sail with convoy, the insured
shall be entitled to the stipulated return of
premium, because the discharge of the under-
writers is, to them, equivalent to a sailing with
convoy and arrival." If we generalize this
position (and, to be a principle of law, it must
be generalized), itis *this: that wherev- [*1 18
er the commencement of a risk, for which a
premhim has been received, has been prevent-
ed, by any cause whatever, the insured is en-
titled to a return of premium.
It is said that Marshall is not supported in
his position by the case he cites ; but he is
clearly supported by the case of Stevenson v.
Snow, and Marshall himself is no weak au-
thority.
Again, in Tyrie v. Fletcher, Cowp., 519;
Park, 519, 520, Lord Mansfield says, "That
the underwriter receives the premium for run-
ning the risk of indemnifying the insured, and
to whatever cause it be owing, if he does not
run the risk, the consideration for which the
premium was paid fails, and he, therefore,
ought to return it." The present is an admit-
ted case of deviation, which wholly discharged
the underwriters from the risk ; and though
no case precisely similar, as to the facts, is to
be found, yet the general principle which is to
govern the decision is clear, and perfectly ap-
plicable.
THOMPSON, Ch. J. , delivered the opinion of
the court :
This is an action to recover back part of the
premium paid on two policies of insurance on
a voyage from Malta to St. Petersburgh. The
policy contains several special stipulations, as
to touching and staying at intermediate ports.
The clause relating to the premium is as fol-
lows : "At and after the rate of 40 per cent.,
to return 15 per cent, if the vessel passes the
JOHNS. REP., 12.
1*1.-,
TAPPEN v. KAIN ET AL.
118
Gut of Gibraltar on or before the 20th of June
last, and the risk ends without loss ; or 15 per
<-»-!it. if the risk ends in safety at Gotten-
burgh." And it is for the return of the 15 per
cent, last mentioned that this action is
brought.
While on the voyage, and in the English
Channel, the supercargo received such infor-
mation as to induce him to abandon the voy-
10 St. Petersburg!!, and go to London.
The argument urged on the part of the defend-
ants against the return of the premium is that
the arrival in safety at Gottenburgh was the
condition on which the premium was to be
rriurned: and the vessel not having arrived
tin-re at all. the condition has not been per-
formed. This does not appear to me to be a
fair interpretation of this provision in the
policy. It would be too rigid a construction,
and obviously against the intention of the par-
ties. The premium is paid for the risk as-
sumed and run by the underwriters. And,
although the policy covers the whole voyage
from Malta to St. Petersburg!!, if the assured
1 1$)*] should *choose to end it at the latter
place, yet the stipulation as to the return of
premium manifestly shows that in the con-
templation of the parties circumstances might
occur which would render it advisable to end
the voyage at Gottenburgh. The voyage must,
therefore, be considered divisible, and the
premium follows such divisibility. The risk
from Gottenburgh to St. Petersburg!! was cal-
culated at 15 per cent., for that sum was to be
returned, in case the risk on that part of the
voyage was not run. The risk is the consid-
eration for the premium, and it was matter
of perfect indifference to the underwriters
whether the vessel arrived at Gottenburgh or
not. The assured had the election of termi-
nating the voyage there ; and if it was broken
off before, the vessel was never on the voyage
from Gottenburgh to St. Petersburg!!, and the
policy never attached, so far as it relates to
that part of the voyage. The arrival in safety
at Gottenburgh cannot be presumed to be the
contingency upon which the 15 per cent, was
to be returned. It was the exoneration of the
underwriters from all risk beyond Gotten-
burgh which entitled the assured to a return
of premium, according to the fair and reason-
able interpretation of the policy. The plaint-
iff is, accordingly, entitled to judgment.
SPENCER, J., not having heard the argu-
ment, gave no opinion.
.Judgment for the plaintiff.
I cuted a deed to A., who reconveyod the estate t.»
the executors, who afterwards sold the same for
fcJ.iiUO, but no sale money was paid Into the office of
i the surrogate.
K. recovered a judgment against the executors
! of R., for $129.17, who pleaded iilexe adminintravlt.
It appeared that, at the time of the judgment, the
executors hud administered assets to the amount of
$2,(KJO, and that the inventory amounted to fasl.UT.
! On a Hcire facias to revive the judgment against the
I executors of R., the above facts being admitted, it
was held that though the executors were liable for
; the whole proceeds of the estate sold, being $2,500.
j yet, that under the Act (1 N. R. L-, 452, sess. 32, wh.
I 79, WO. 28). they were not responsible immediately
, to the creditors of the testator, but to the surro-
i gate, as trustees commissioned by him to sell ; and
that when the whole real estate is sold by order of
[ the surrogate, the money paid Into his office be-
comes equitable assets, and in to be distributed pari
> IHIXXU, and not according to the rule of common
law.
The truth or falsehood of the plea of plfne ad-
minMravU is to be determined by reference to the
inventory only.
Citation-1 N. R. I ... 463.
1 2O*]
*TAPPEN
KAIN KT AL., Executors of RHEA.
and Administrators — Where Whole
Estate u Ordered Sold, Proceeds must be
lirouaht into Probate Court — Distributed
Pari Passu — Plea of Plene Administravit —
Inventory.
Pursuant to an order of the surrogate, for that
purpose, the whole re,al estate of R. was sold by his
executors ; and at the auction A. bid off the estate,
for the executors, at $25; and the executors exe-
JOIINS. REP.. 12.
was a scire facuu on a judgment, ob-
tained in 1809, by the plainlilT, against
the defendants, on a report of referees in the
cause, for $129.17. The defendants pleaded
plene adminittracit. At the last Ulster Circuit,
a verdict was taken for the plaintiff, subject to
the opinion of the court on the following
case :
The whole real estate of David Rhea, the
testator, was sold by his executors, pursuant
to an order of the surrogate. Robert Rhea, a
brother of Stephen Rhea, one of the executors,
bid off the estate, at the sale, for the execu-
tors, at $25. The sale, under the order of the
surrogate, was admitted to be regular. The
executors gave a deed to Robert Rhea, and he
reconve}"ed to them. The executors, after-
wards,, sold the same premises for $2,500. No
money arising from the sale was ever brought
into the office of the surrogate. The whole
amount of assets administered by the execu-
tors, at the time of the report of the referees
above mentioned, was admitted, pro hoe rice,
to be $2,000. The amount of the inventory
was $381.37.
It was agreed that if the plaintiff was en-
tilled to judgment, the court should deter
mine the amount of such judgment. But if
the court should be of opinion that the defend-
ants were not liable, or had maintained their
plea, then a nonsuit was to be entered.
The case was submitted to the court without
argument.
PLATT, J., delivered the opinion of the
court :
There cap be no doubt but that the executors
are responsible for the whole avails of the
lands sold by them, to wit : $2,500 ; but by
the 22d section of the " Act relative to the
Court of Probates," &c. (1 K. & R.. 804 ; 1
N. R. L., 452), *it is enacted, "that [*121
the avails of such sale, where the order is to
sell 'part of the real eslale only,' shall be con-
sidered assets in the hands of the executors or.
adminstrators for the payment of debls." "But
where the whole real estate is ordered to be
sold, the moneys arising therefrom shall be
brought into the Court of Probates.or office of
surrogate," &c. ; and 1 here distribution, after
public notice, is to be made according to the
rule of equitable assets ; that is, among all the
32.*
SUPREME COURT, STATE OP NEW YORK.
1815
creditors. -pan passu, without regard to grades,
&c.
It appears to me that, under this statute, the
executors are not responsible, at law, imme-
diately to the creditors, where the whole real
estate is sold ; and the truth or falsity of the
plea of plene administravit must be deter-
mined upon reference to the amount of the in-
ventory only. That was $381.37 ; and it is
admitted that the executors have duly paid
debts to the amount of $2,000 ; and therefore
the plea is true. Qua executors, they have
fully administered. Under the statute, they
are trustees, immediately responsible to the
surrogate, who commissioned them to sell the
real estate ; and when the avails are paid to
the surrogate, a different rule of distribution
prevails from that which governs executors
and administrators at common law.
For aught that appears, the executors in this
case may have sold the lands on credit, as they
are authorized to do by statute, and therefore
have not paid over the avails to the surrogate.
Judgment of nonsuit must be entered.
Judgment of nonsuit.
Overruled— 2 Wend., 610.
Cited in— 2 Wend., 471.
122*]*THE MAYOR, ALDERMEN, AND
COMMONALTY OF THE CITY OF NEW
YORK v
ORDRENAN.
Municipal Corporations — Power of — To Declare
Forfeiture — To 'Impose Penalties Under Stat-
ute.
In an action of debt to recover penalties to the
amount of §3,000, brought by the Mayor, Aldermen
and Commonalty of the City of New York, under a
by-law or ordinance of the Corporation, declaring
it unlawful for any person within certain limits, in
the City, to keep gunpowder, in a greater quantity
than twenty-eight pounds at any one time, or in any
one Rlace, and that in a certain manner prescribed ;
and that the person offending, &c., should forfeit
the gunpowder so unlawfully kept, and also the
sum of $125 for every one hundred pounds' weight
of gunpowder so kept, and in that proportion for a
greater or less quantity, &c., and which -ordinance
was passed by virtue of the authority given by an
Act of the Legislature (sess. 29, ch. 126, sec. 15),
passed 2d April, 1806, for the better government of
the City of New York, &c., authorizing the Corpor-
ation to make ordinances, &c., to regulate the keep-
ing, &c., of gunpowder, &c.. and to provide for the
forfeiture thereof, if kept contrary to such by-law
or ordinance ; and further (sec. 16) empowering the
Corporation penalties.in all cases not otherwise pro-
vided for in the Act, for the non-observance of
such by-laws and ordinances, not exceeding 8250; it
was held that the plaintiffs could not exact, as pen-
alties for any one offense, or for the violation of the
by-laws, in any one transaction, a greater sum than
$250.
And whether, under the powers vested in the Cor-
poration by the Act of the 2d April, 1806, the Cor-
poration could impose any penalty beyond the for-
feiture of the gunpowder so unlawfully kept.
Qucere.
But. at any rate, the Corporation, in passing the
• by-law in question, exceeded the power given by
the Act of the Legislature. Whether, under the
general powers conferred by the charters of the
Corporation, they had authority to pass such a
by-law, and the action can be supported on that
authority alone. Quaere. But the Act of the Leg-
islature, on the subject matter of the by-law, hav-
Injr been passed at the instance of the Corporation,
it so far operates as a limitation of the general and
undefined powers in the charters.
Citations— Cow., 640: Act of 1808.
836
THIS was an action of debt for $3,000, for
certain penalties. The declaration con-
tained three counts. The first count stated,
that by an Act of the Legislature, passed the 2d
of April, 1806, entitled, " An Act for the Bet-
ter Government of the City of New York, and
to Grant Certain Additional Powers and Rights
to the Mayor, Aldermen, and Commonalty
thereof," &c. (sess. 29, ch. 126, sec. 13), the
plaintiffs were empowered to pass, and to pro-
vide for the due execution of ordinances, as
they may deem proper, for the prevention of
fires, &c.; "and also to regulate the keeping,
carting, conveying, or transporting of gun-
powder, or any other combustible, &c., within
the bounds of the said City, and to provide for
the forfeiture thereof ,\f the same shall be kept
contrary to such law," &c. "And for the
more effectual and perfect execution of the
laws and ordinances of the Mayor, Aldermen,
and Commonalty," it was, by the 16th section
of the same Act, declared, "that in all cases,
not otherwise provided for in this Act, it shall
and may be lawful for the said Mayor, &c.,
from time to time, to impose penalties for the
non-observance of the same, not exceeding
$250," &c. That in pursuance of the said
Act, the plaintiffs, on the 2d March, 1812,
made a by-law or ordinance, by which, among
other things, it was ordained, that it should
not be lawful for any person to have or keep
any quantity of gunpowder, at one time, ex-
ceeding twenty-eight pounds' weight, in any
one place, &c., within certain boundaries there-
in Specified ; and that the said quan- [*123
tity of twenty-eight pounds should be separ-
ated into four parcels, and be kept in four
different stone or tin vessels, &c. And
that if any person should keep a greater
quantity of gunpowder, at one time, than
twenty-eight pounds, in any one place, &c.,
or if the said twenty-eight pounds should not
be kept in the manner directed, that such per-
son should forfeit all the gunpowder so kept
contrary to the ordinance, and should also for-
feit the sum of $125 for every hundred weight
of gunpowder, and in that proportion for a
greater or less quantity, to be recovered, with
costs of suit, in any court having cognizance
thereof.
That after passing the Act and ordinance
aforesaid, to wit: on the 2d of June, 1813,
the defendant did keep a greater quantity of
gunpowder than twenty-eight pounds, to wit :
the quantity of two hundred pounds, at one
time, &c., in one place, &c., whereby an action
has accrued, &c., to demand and have from
the defendant the sum of $250, &c.
The second count was grounded on the by-
law or ordinance of the Corporation only,
made in pursuance of the authority vested in
them by their charters, and by a law of the 2d
March, 1812, &c., and a breach of the ordi-
nance by the defendant, in keeping, 1,100
pounds of gunpowder, at one time, in one
place, by which an action accrued to the plaint-
iffs, to demand and have of the defendant the
sum of $1,375, parcel of the $3,000 above
demanded.
The third count, like the first, was grounded
on the Act of the Legislature of the 2d April,
1806, granting certain additional powers and
rights to the Corporation of New York, and
JOHNS. REP., 12.
1815
GCTHRIE V. PUGBLEY.
123
the by law or ordinance of the corporation in
pursuance thereof, as above mentioned, and
Mating a breach of the ordinance by the de-
fendant.in keeping 1,100 pounds of gunpowder
.at one time, in one place, &c., contrary. «fec.,
by which an action had accrued to the plaint-
iffs, to demand and have of the defendant,
other $1.875. &c.
To this declaration the defendant demurred,
and the plaintiffs joined in the demurrer, and
the same was submitted to the court without
.argument.
SPENCER, J., delivered the opinion of the
•court :
In deciding on this demurrer, the court con-
fines itself to the manner of executing the
power conferred by the Statute, and to the
124*] 'consideration of the general powers
•of the Corporation, under their charters. We
•do not, at present, intend to express any opin-
ion, whether, under the Act of 1806, the Cor-
poration could impose a penalty beyond the
forfeiture of the powder ; for, admitting that
they could both forfeit the powder, and im-
pose a pecuniary penalty, we are of opinion that
the power conferred by the Act has not been
well or properly executed.
The Act, in authorizing the imposition of
penalties for the non-observance of by-laws to
be passed, and in restraining the penalty to
41350, clearly manifested an intention, on the
part of the law-makers, thnt no more than that
sum should be exacted as a penalty for anyone
offense, or for the violation of the by-laws in
«ny one transaction.
Should a different construction prevail, the
limitation in the amount of the penalty would
be nugatory, and a penalty to the amount of
$ '250 might be repeated, not upon the offense
itself but upon the quantity of the offense.
The by-law imposes a penalty of $125 for every
hundred weight of gunpowder kept contrary
to its provisions, and this very case is an illus-
tration of the excess of the power granted ; for
in the third count $1,375 are claimed for one
single offensc.and eleven forfeitures are insist -
•ed on, where there has been but one offense.
There is no limit to the principle set up in the
by-law. With the same propriety, the penalty
-ot $125 might have been imposed on every
pound of gunpowder, or even on every grain,
kept contrary to the by-law.
The case of Crups v. Burden, Cow., 640,
is not unlike the pretensions set up by the
plaintiffs here : Crups was convicted in four
convictions for exercising the trade of a baker,
on the Lord's day, and for selling hot loaves
contrary to the statute. Lord Mansfield said,
on the construction of the Act of Parliament,
"The offense is, exercising his ordinary trade
on the Lord's day, and that without any frac-
tions of the day, hours, or minutes ; it is but
one entire offense, whether longer or shorter
in point of duration, or whether it consist of
one or a number of particular acts ; that there
was no idea conveyed by the Act, that if a
•tailor sews on the Lord's day, every stitch he
takes is a separate offense, and (lie adds) there
can be but ohe entire offense on one and the
same dav ; killing a single hare is an offense,
but the killing ten more the same day will not
JOHNS. REP., 12.
multiply the offense, or the penalty imposed
for killing one."
*In the present case, it is impossible [*125
to believe that the Legislature meant to confer
a power at variance with, and subversive of,
the very limitation coupled with the power
grunted*. The offense of keeping gunpowder
contrary to such by-laws as the safety of the
City of New York might require, was the
mischief intended to be prevented ; and the
Legislature considered a penalty, not exceed-
ing $250, a sufficient mulct to remedy that
mischief. The by-law is a plain and manifest
excess of power, in inflicting a penalty, and in
applying it, not to the offense itself, but to the
quantity of the offense, and thus transcending
the limitation of the penalty by the Legisla-
ture.
Though the Act of 1806 contains no recitals,
stating that it was passed on the application of
the Corporation of New York, yet we must
presume that it was so passed, it being almost
the invariable course of proceeding for the
Legislature not to interfere in the internal con-
cerns of a corporation, without its consent,
signified under its common seal. If it be con-
ceded, that the by-laws in question were au-
thorized by the general powers conferred by
the charters, upon which we express no opin-
ion, the application by the Corporation to the
Legislature, and the latter having, in several
instances, legislated on the subject matter of
the by-law, operates as a limitation to any gen-
eral and undefined powers in the charters. For
this reason, we are of opinion that the second
count cannot be supported, if it rests solely on
the charters ; and if it is intended to be ground-
ed on the Act of 1806, the reason already ap-
plied to the other counts extends to that.
Judgment for the defendant.
Cited in— 1 Wend., 261 ; 9 Wend., 606 ; 14 Wend., 89.
*GUTHRIE t. D. AND J. PUGSLEY. [*126
Will*— Breach of Covenant — Life Estate —
Mesne Profit* — Interest — Partial Failure of
Title — Da mages.
In an action for a breach of covenant, on the
covenant of seisin In a deed, it nmared thttt the
title of the defendants was derived from the will of
their father, who devised to them as follows: "I
{five and bequeath unto my two sons, D. and J., all
hind I may die possessed of in the town of N.,"
which included the premises conveyed by D. and J.
to the plaintiff. It WHS held that by this devise, D.
and J. took only a life estate ; but that as they were
entitled, as heirs at law, to two sixths of the lands
conveyed by them, their covenant of seisin was
broken «nly In part : and the plaintiff would be en-
titled to recover dMDHMI onlv in proportion to the
value of the part for which the title hud failed, that
is, four sixths of the consideration money, with m-
. but as the life estate of the defendants in
the four sixths passed to the plaintiff, by their deed,
tlie value of such life estate must l>e deducted: nor
wan interest to !*• allowed during the lives of the
defendants, asdurinK that time the plaintiff could
not be called on for me*ne profits: and under the
siM'cial circumstances of the case, the court awarded
a venire to a Ju ry to assess the damages of the plaint-
iff on those principles.
Citation— 5 Johns., 40.
THIS was an action of covenant for a breach
of the covenant of seisin in a deed. The
defendants, by their deed, dated llth Novem-
327
126
SUPREME COURT, STATE OP NEW YORK.
1815
ber, 1807, conveyed to the plaintiff, in fee, a
lot of land in the town of Norwich, in the
County of Chenango. The deed contained the
usual full covenants of seisin, power to sell,
&c., and warranty.
The title of the defendants to the premises
so conveyed, was claimed under the will of
their father, who died in July, 1804, soon after
making his will, which was dated 21st July,
1804. He left two sons, the defendants, and
four daughters. The devise to his sons was as
follows : " I give and bequeath unto my two
sons, David and John, all land I may die pos-
sessed of in the town of Stanford, and county
aforesaid ; likewise, all land I may die pos-
sessed of in the town of Norwich, County of
Chenango, and State aforesaid." The prem-
ises conveyed by the defendants were admitted
to be part of the land included in this devise.
The cause was noticed for trial at the Dutch-
ess Circuit, in August, 1814, when a case was
agreed on, containing the facts above stated.
And it was agreed that if the court should be
of opinion that the plaintiff was entitled to re-
cover, a judgment should be entered, as upon
a verdict, for such sums as the court should
award ; but that if the court should be of opin-
ion that the plaintiff was not entitled to re-
cover, then judgment should be entered for
the defendant, as upon a verdict.
The case was submitted to the court without
argument.
THOMPSON, C h. J., delivered the opinion of
the court :
There is no other part of the will that can
be called in aid of this devise, and explanatory
of the intention of the testator. It is, there-
fore, very clear, that the devisees took only an
estate for life. They had not, consequently,
an estate of inheritance, in fee simple, accord-
ing to the covenant in their deed. The coven-
127*] ant *has, therefore, been broken. But
the defendants, as appears by the case, are en-
titled, as heirs at law, to two sixths of the land
conveyed by them. Their covenant is, there-
fore, only broken in part ; and the question is,
what shall be the measure of damages where
there is a part failure of title only. The rule
of damages, as settled by this court in the case
of Morns v. Phelps, 5 Johns., 49, is, to recover
damages in proportion to the value of the part
for which the title has failed, which in this
case would be four sixths of the consideration
money, and the interest, was it not for another
circumstance which attends this case, which
is, that the defendants, under the will of their
father, took a life estate in the whole of the
land, and this estate will pass to the plaintiff
under their deed. He, therefore, has a title
in fee to two sixths of the land, and an estate
for the lives of the defendants in the whole ;
so that no rule adopted in any of the cases on
this subject, heretofore decided by this court,
will reach the present case. Nor is there any
settled rule of law by which the damages are
to be ascertained, without having recourse to
a jury to assess them, as they must depend,
principally, upon the value of the estate dur-
ing the lives of the defendants, which must
be deducted from the four sixths of the con-
sideration money. Nor ought interest to be
allowed during these lives ; for no one, during
328
that time, will have a right to turn the plaintiff
out of possession, or call upon him for the
mesne profits, which is the reason why interest
is allowed to be recovered.
A venire must, tJierefore, be awarded, for a,
jury, to assets tJie damages, under tlie special cir-
cumstances of thit case.
Cited in— 1 Wend., 554 ; 55 N. Y., 598 ; 32 Barb., 249;
39 Barb., 64 ; 46 How. Pr., 19 ; 1 Duer, 336, 351 ; 52
Wis., 696.
*WALDEN AND WALDEN [*128
».
THE NEW YORK FIREMEN INSURANCE
COMPANY.
Marine Insurance — Insured not bound to show
Seaworthiness — Captain must be Competent
and of Good General Character — Barratry —
Warranty — Risk.
The insured is not bound to disclose to the insur-
er any circumstances relating to risks which the
latter does not assume, and which are excluded by
a warranty either express or implied.
So, the insured, unsolicited, is not bound to dis-
close circumstances relative to the seaworthiness of
the ship, or facts showinjr carelessness and want of
economy in the master, provided they do not tend
to impeach his honesty.
To constitute barratry, there must be a fraudulent
intent.
The insured must employ a captain of competent
nautical skill, and of good general character; but
facts or information as to his carelessness, extrav-
agance, and want of economy, are not material to
the risk of barratry, and need not be disclosed.
Citations— 4 East, 590; Park, 300; 1 Marsh., 475,
476, 473, 71. 75, by Condy ; 2 Marsh., 518 ; 7 T. R., 508 ;
8 East, 126 ; Park, 121.
was an action on a policy of insurance,
JL on the ship Suffolk, Carlwright master,.
from Belfast to Lisbon, and thence to New
York. The cause was tried at the New York
sittings, in April last, when a bill of excep-
tions was taken by the defendants to the evi-
dence admitted by the judge, and to his charge
to the jury.
The Suffolk sailed from New Orleans in
September, 1810, for Belfast, but on the way
ihither was compelled to put into the Havana,
in the island of Cuba, for a supply of water.
While in the Havana, the master of the ship
drew a bill on the plaintiffs, for about $800. in
favor of a mercantile house in that place,
which bill was never accepted or paid by the
plaintiffs, for these reasons : that they had had
information from the captain that the vessel
put into the Havana merely for water; and
that the bill was unaccompanied with any ac-
count or information of repairs or supplies
furnished the vessel there. The vessel, after
a short stay in the Havana, resumed her voy-
age for Belfast ; but by reason of damage aris-
ing from tempestuous weather, she was com-
NOTE.— Marine Insurance — Barratry — Conceal-
ment.
Far a full discussion of barratry, see Cook v. Com.
Ins. Co., 11 Johns., 40, note.
On the general subject of concealment, see Living^
ston v. Delaflald, 3 Cai., 49, note ; Lawrence v. Van
Home, 1 Cai., 276, note ; Barnwall v. Church, 1 Cai.,
217, note ; Seaton v. Low, 1 Johns. Cas., 1, note ; Le
Roy v. United Ins. Co., 7 Johns., 343. See, also, the
above case of Walden v. N. Y. Firemen Ins. Co.*
post, 513.
JOHNS. REP., 12_
1815
WALDEN v. NEW YORK FIKEMEN INS. Co.
pelled to put into Cork, in Ireland, where she
arrived on the 18th of January. 1811 ; and hav-
ing undergone thorough repairs, left there on
the 29th of April, and arrived in Belfast on the
3d of May.
The vessel and cargo had been placed by the
plaintiffs under the general direction and con-
trol of Cropper & Co., of Liverpool, and
while at Cork, Harvey & Co. acted as agents
for the ship. On the 19th of March, 1811,
Harvey & Co. wrote a letter to Cropper & Co.,
stating that "a vessel hud got foul of the
Suffolk, and carried away her bowsprit ; that
they feared that Captain Cartwright was care-
less of his business, and that his amount of
repairs and expenses would astonish them all ;
that thev had no control further than to rec-
ommend, as he was his own master ; that his
delention had been very great, yet he seemed
rery easy under it." A copy of thistatterwas
transmitted by Cropper & Co., in a letter of
the 23d of March. 1811, to the plaintiffs, in
which they say: "This day we shall write
IliO*] *again (to Cartwright) pointedly , and
urge that necessity of economy and dispatch
which we early enjoined him to observe. All
that in us lies shall be done to get the Suffolk
on to Belfast, and to guard your interest ; but
if a master of a ship will not do his best, an
agent is placed in ungrateful circumstances.
The accident to his bowsprit will cause some
further (but we hope not much) delay to pur-
suing her voyage.'
The above fetters were received by the plaint-
iffs before insurance was effected, but they
were not communicated to the insurers, nor
was the circumstance of the bill drawn by
Cartwright at the Havana, on the plaintiffs,
nor the letters immediately following from the
plaintiffs to Cropper & Co.
In answer to the above-mentioned letter
from Cropper & Co., the plaintiffs, on the 10th
of May, 1811, write : " That they had received
their letters of the 19th and 25th of March,
which confirm their apprehensions as to Cap-
tain Cartwright's conduct ; that if he is still
under their control, they wish them to dis-
charge him, if they can procure another mas-
ter well qualified ; and not to pay him any-
thing, but leave it to them to settle with him
in New York ; and to transmit to them their
accounts of advances to him, with necessary
vouchers." In a subsequent letter of the 18th
of May, to the same persons, the plaintiffs say :
" Annexed is a copy of our last, to which we
refer ; and we confirm our instructions then
given as to the dismissal of Captain Cartwright
from the command of our ship Suffolk, if you
should think it necessary to our interest."
The above letters were, at the trial, given in
evidence on the part of the defendants ; the
plaintiffs, likewise, afterwards, offered in evi-
dence the letter of the 13th of May, above
mentioned, and which had previously been
read on the part of the defendants, which was
objected to, but was admitted by the judge,
and his opinion excepted toby the defendants.
The ship left Belfast on the 3d of July, with
instructions to proceed to Lisbon, and from
thence to New \ ork. She arrived at Lisbon
on the 14th of July, and, having taken in
eighty moys of salt, 'for which the master gave
a bill of lading to deliver the same in New
JOHNS. REP., 12.
York, she left Lisbon on the 19th of August,
after being cleared out for New York, with
verbal directions from the consignees at Lis-
bon to proceed to New York. Two weeks be-
fore the ship left Lisbon, the master expressed
to his mate an 'intention of going to [*i;$O
New Orleans; but on being questioned by one
of the consignees at Lisbon, who had heard a
report of his having given such an intimation,
he denied it, and declared his intention to pro-
ceed to New York.
The vessel, notwithstanding, proceeded U>
New Orleans, and. as was stated in the deposi-
tion of the mate, the master, instead of pursu-
ing what he, the deponent, understood to be
the usual course from Lisbon to New Orleans,
for vessels drawing no more water than the
Suffolk, steered for Antigua, and passed just
to the north of it ; thence between St. Bar
tholomews and Barbuda ; thence to the north-
ward of the Virgin Islands, Porto Rico, and
Hispaniola, and thence through the Old
Straits. While passing through the Straits,
the ship came to an anchor, and her cables were
parted ; whereupon, by the direction of the
captain, the cables were cut close to the ves-
sel, for which the mate, as he stated in his de-
position, believed there was no necessity.
After this, the ship proceeded for Matanzas, in
the island of Cuba, where she arrived on the
7th of October, and the captain went to the
Havana to obtain a new cable and anchor,
which were brought on board the ship about
the 18th of October ; she was, notwithstanding,
unnecessarily detained by the master until the
29th of November.
While at Matauzas, the captain hypothecated
the ship to one Francis Drake, for $1,563 ; but
how the debts which were thus secured had
arisen, or how the money raised by the bot-
tomry had been appropriated, did not appear.
He likewise gave a bill of lading, on account
of some advances made to him, of the salt on
board his ship, to one Madan, a merchant of
Matanzas, to be delivered to one Morgan, at
New Orleans.
The vessel arrived at New Orleans in De-
cember, 1811. The agent for the plaintiffs at
New Orleans, by the direction of the plaintiffs,
demanded of the captain to deliver up the ship
to them, which, on his refusing to do, he pro-
ceeded; in the District Court, to dispossess the
master, and, during the pendency of such pro-
ceedings, the ship was libeled in the Parish
Court of New Orleans, on the bottomry bond
to Drake, and was, by the order of the court,
sold for the benefit of all parties. The salt on
board of the Suffolk was claimed by Morgan,
by virtue of the bcf ore-mentioned bill of lad-
ing to Madan : and on the plaintiffs' agent op-
posing the delivery of it to him, an attachment
was, at the instance of Morgan, issued out of
the Parish Courl *of New Orleans [*131
aguinst the salt, and also the ship ; and by
order of the court, the salt was appraised, and
bonded by the plaintiffs' agent.
The judge charged the jury, that the evi-
dence of barratry was conclusive, and that the
insured were not bound to communicate to the
insurers, at the time of making insurance, any
of the letters above mentioned which were in
their possession, nor any of the circumstances
within their knowledge respecting the master
131
SUPREME COURT, STATE OF NEW YORK.
1815
of the ship. The jury found a verdict for the
plaintiffs, and the defendants excepted to the
opinion of the judge: and the bill of excep-
tions, according to the directions of the statute,
was returned to this court : on which a motion
was made to set aside the verdict, and for a
new trial.
Mr. 8. Jones Jr., for the defendants. The
conduct of the master did not amount to bar-
ratry ; but we shall not discuss that question.
The principal objection is, that there was a
material concealment on the part of the plaint-
iffs. The letters and other matters relative to
the conduct, and character of the master, in
their knowledge, at the time the insurance was
effected, ought to have been disclosed to the
defendants.
It is a general and well-settled rule, that
every fact and circumstance which could in-
fluence the mind of a prudent and intelligent
insurer, in determining whether he will under-
write the policy or not, is material, and ought
to be communicated to him. (Marsh, on Ins.,
464, 465 ; 3 Burr., 1909 ; 1 Bl. Rep., 594.) So,
a suppression of circumstances, a knowledge
of which might have induced the insurer to
demand a higher premium, will vitiate the
policy. (3 Dallas, 491 ; 1 Johns., 522 ; 4 Bos. &
P., 1 N. S., 151 ; Littkdalev.-Dixon, 1 Esp.,
373.) Even doubtful rumors respecting the
safety of a ship have been held material, and
the concealment of them will avoid the policy.
(2 P. Wms., 170; 2 Str., 11«3 ; Marsh.,
471^76 ; Park, 249, 250, 300.)
The safety and success of the voyage insured
materially depend on the character and con-
duct of the master. It is of the greatest im-
portance to the insurer to know whether the
master be prudent, vigilant and discreet ; or
improvident, careless and extravagant, in the
management of the business and property in-
trusted to his charge. The barratry of the
master is one of the perils insured against ;
and the insurer is, therefore, interested in
being informed of those habits of extrava-
gance and carelessness, which naturally lead
persons, in that situation, to the commission of
barratry. That the master had a fair character
132*] *when he sailed from New York, is an
additional reason for requiring from the in-
sured a communication of the facts relative to
his subsequent bad conduct, as the defendants,
relying on that previous fair character, would
be more easily induced to take upon them-
selves the risks of the policy. It is the moral
conduct of the master, in relation to his trust,
in which the insurers are interested, for it is
against his fraudulent conduct that they have
insured. Whatever may be his character or
conduct in this respect, his nautical skill may
be the same. The bad character of the master,
therefore, cannot be said to come within any
implied warrranty as to seaworthiness.
Messrs Griffin and T. A. Emmet, contra. In
case of a warranty, express or implied, no
communication is required on the part of the
insured. Seaworthiness is an implied war-
ranty. It is a part of this implied condition
that the ship should have everything neces-
sary to her safe navigation, such as a sufficient
crew, and a captain of competent nautical
skill. (7 T. R, 100.) The nautical skill of
the master is at the risk of the insured. It
330
is a matter for which they undertake. So far
as any other quality entering into his general
character goes to his fitness for the employ-
ment, it also enters into his nautical character
and competency. It is, therefore, a part of the
implied warranty of the assured, that the mas-
ter shall have ordinary integrity, or a good
general character, at the place from whence
the vessel sails, or when the risk commences.
The extravagance of the master in repairs,
is nothing ; for if he expends more than he
ought, the owners, not the insurers, must pay
the excess. A bad captain for the owners may
be a very good one for the insurers.
Again; the letters, the concealment of which
is complained of, contained only hints and
suspicions ; and the real objection is, that the
insured did not communicate these suspicions
and apprehensions, which might have injured,
very unjustly, the character of the master. It
is facts, not suspicions, which the insured is
bound to disclose. It is not everything which
increases the risk, the concealment of which
will vacate the policy. (Toulmin v. Inylis, 1
Comp. Cases, 421.) In the case of Hay wood v.
Rodgers, 4 East, 590, 596, which was an insur-
ance at and from Trinidad, the insured had re- ,
ceived a letter from the captain, informing
him, that he had been obliged *to have [*133
a survey on the ship,, at Trinidad, on account
of her bad character ; but as the survey which
accompanied the letter gave the ship a good
character, it was held that the non-disclosure
of the letter and survey to the insurers, did
not vacate the policy ; though, if they had
been communicated, it would have enhanced
the premium. To constitute such a conceal-
ment as will vitiate the policy, it must be of
something palpably material to the risk, and
about which there can be no doubt.
Again ; the insured could not certainly
know, at the time the policy was underwrit-
ten, who was the captain, for they had previ-
ously written to their correspondents, Cropper
& Co., authorizing them, in their discretion, to
discharge Cartwright, and appoint another
captain.
Mr. Wells, in reply. The assured had re-
ceived such information of the conduct of
Captain Cartwright as had destroyed all their
confidence in his integrity. It was not a matter
of mere suspicion or rumor. It was believed by
them to be true, and they acted on that belief,
as to the fact of his misconduct. In Sperry v.
The Delaicare Ins. Co., Marsh. Ins., Condy's
ed., 473 a, n. 75, Washington, J., held, that
even if the materiality of the communication
was doubtful, it ought not to be withheld, for
it is the duty of the insured to give the other
contracting party an opportunity of judging,
equally with himself.
The moral character of the captain is not
included in the implied warranty of seaworth-
iness, which extends only to the nautical skill
of the captain and crew. Yet this moral
character may be very essential to be known
by the insurers, in regard to the risk of barra-
try assumed by them. If, under the implied
warranty of seaworthiness, the insured were to
be considered as warranting the moral charac-
ter of the master, that warranty would extend
also to the crew, which will hardly be pre-
tended. Such a doctrine would put an end to
JOHNS. REP., 12.
1815
WALDEN v. NEW YORK FIREMEN INB. Co.
133
the business of insurance. All that we contend
for is, that the insured shall not employ a mas-
ter or agent whom they know to l>e destitute
of integrity, or incompetent. As regards the
implied warranty of seaworthiness, the
knowledge or ignorance of the insured as to
the fact, makes no difference.
It is said to be a part of the implied war-
ranty that the master had a good general char-
acter at the place of departure. Now the fact
is, that the master, in this case, had lost all
134*] character *before he arrived at Belfast.
If so, then, on the doctrine of the plaintiffs,
there has been a breach of the warranty,
which puts an end to the contract. But how is
the warranty, as to the moral character of the
master, to be reconciled with the undertaking
of the assured to indemnify against the barra-
try or fraudulent conduct of the master ?
The whole doctrine, as to concealment, rests
on this principle, that it is not the duty of the
insurer to inquire, but that of the insured to
disclose.
PLATT, J., delivered the opinion of the
court :
This case is presented in the form of a bill
of exceptions, and the counsel for the defend-
ants move to set aside the verdict on the fol-
lowing grounds, viz. :
1. That improper evidence was admitted.
2. That the judge misdirected the jury.
3. That the verdict is against law and evi-
dence.
The question of undue concealment in this
case presents two aspects.
• First, in regard to seaworthiness, which im-
plies a warranty on the part of the assured,
that the ship shall be in a fit condition for the
voyage, with all her equipments ; and also,
that she shall have a competent master and
crew.
Second, the express warranty in the policy
against barratry.
With respect* to the first, it is not necessary
that there should be anv representation ;
because the seaworthiness of the ship is an im-
plied condition of the contract of insurance.
The rule is, that there should be a represen-
tation of every fact within the knowledge of
the assured, which is material to the risk in-
curred by the underwriter ; except it be cov-
ered by a warranty on the part of the assured.
(Shoolbred v Nutt, Park, 300.) Both parties,
therefore, as to the facts which constitute sea-
worthiness, have a right to remain silent at the
time«of making the contract ; and then, if, in
fact, the ship iw not in all respects seaworthy
at the time when the risk was to commence,
the policy is void.
Unseaworthiness, under this policy (which is
in the common form), is at the ri«k of the as-
sured ; and, therefore, they are not bound to
disclose anything, unsoliciied, on that subject.
135*] *lf we suppose a policy wherein the
xinderwriter expressly warrants "the ship to be
seaworthy, then, indeed, the duty of making
disclosures would apply with full force against
the assured. If the underwriter, however
(upon the ordinary policy), chooses to make
inquiries, the assured is" bound to answer
truly. (Iliyieood v. Rodger*, 4 East. 590.)
The practice of omitting to make inquiries
JOHNS. HEP., 12.
as to seaworthiness, arises, I presume, from
this prudent consideration, that every material
di .closure on that subject would lessen the ob-
ligation of the implied warranty on the part of
the assured ; and the underwriter, wishing to
leave that obligation unimpaired and unquali-
fied, generally chooses to receive no communi-
cations as to the condition of the ship or the
character of the master ; for, so far as the rep-
resentation extends, according to the truth of
facts, the implied warranty of seaworthiness
ceases on the part of the assured.
The case of S/toolbred v. Nutt, Park, 300 ; 1
Marsh. , 475, was an insurance upon a ship from
Madeira to Charleston. The ship sailed from
London to Madeira. The plaintiff procured
insurance, without communicating to the un-
derwriters two letters which he had received
from his captain the day before he effected the
insurance, stating "that the ship had arrived
at Madeira, but was very leaky; and that the
pipes of wine on board of her had been half
covered with water." But it was proved, at
the trial, that the leak had been completely
stopped before she sailed from Madeira. Lord
Mansfield decided that it was enough that the
ship actually sailed in good condition when
the risk commenced, and that the assured were
not bound to disclose the information con-
tained in the letters.
The case of Hayicood v. Rodger*, 4 East,
590; 1 Marsh., 476. was an insurance upon a
ship from Trinidad to London. The assured
had received a letter from his captain, inform-
ing him " that he had been obliged to have a
surwey on the ship at Trinidad, on account of
her bad character." But the survey which
accompanied the letter gave the ship a good
character ; and it was held that the non-dis-
closure of the letter and survey to the under-
writers did not vacate the policy, although it
appeared in evidence that f uch circumstance,
if known, would have enhanced the premium.
In all the numerous cases cited by the coun-
sel for the defendants, to exemplify the rule
that the assured is bound to disclose
*every material fact within his knowl-[*13O
edge, the risks to which the concealments re-
lated were directly assumed by the under-
writers.
If the letters charged to have been concealed
in this case related merely to the risk of un-
seaworthiness, it is a sufficient answer, that the
assured never sought indemnity against that
risk ; on the contrary, it was an essential part
of this contract, that the assured should war-
rant every ingredient of seaworthiness.
The rule applicable to this subject is ex-
pressed with great precision and accuracy by
Washington, J., in the case of Kohne v. Inn.
Co. of North America, 1 Marsh.. 473, note 75,
by Condy, viz: " The underwriter takes
upon himself the risk which the assured is
not willing to bear, always under the implied
condition, that he shall, as to all facts within
the private knowledge of the assured, be
equally informed as himself."
In this view of the case, therefore, it ap-
pears to me that the judge very properly
charged the jury, that the assured were not
bound to disclose the letters and other facts in
regard to the character and conduct of the
captain.
Ml
1)6
SUPREME COURT, STATE OF NEW YORK.
1815
I am also satisfied, that upon the question
of seaworthiness, embracing the character of
the captain, the verdict is not against the
weight of evidence.
In examining this case in the second point of
view proposed, that is, as an insurance against
barratry, it presents a contract of a compli-
cated .and extraordinary kind, "making the
underwriter (as Lord Mansfield expresses it)
become insurer of the conduct of the captain,
whom he does not appoint, and cannot dis-
miss, to the owners, who can do either." It
is here worthy of remark, that the qualities
and condition of the ship and her apparel may
be certainly known by survey and inspection ;
but the heart of man, and his moral structure,
are in a great measure unsearchable by human
discernment. To seek indemnification, there-
fore, against human frailties, by insurance
against barratry, is a legitimate object, and
favorable to commerce.
I consider the contract to be essentially this:
that the assured shall, in good faith, employ
a captain of competent nautical skill and gen-
eral good character ; and if he do so, then,
aud not otherwise, the insurer is liable for
barratry.
137*] *Here it is important to ascertain,
with precision, the true definition of "barra-
try."
According to Valin, Pothier, Emerigon and
Le Guidon, "Barratry comprehends every
fault of the master by which a loss is occa-
sioned, whether arising from fraud, negli-
gence, unskillfulness, or mere imprudence."
But in the English law it has a more limited
signification. No fault of the master amounts
to barratry, unless it proceed from a fraudu-
lent purpose (2 Marsh., 518); or, in the lan-
guage of Ch. J. Lee (cited and recognized as
law in Pliin v. Royal Exchange Assurance
Co., 7 T. R., 508), "Barratry must be some
breach of trust in the master, ex maleficio;" or,
as defined by Lord Ellenborough^cwZv. Row-
croft, 8 East, 126; Park, 121), "there must
be fraud or crime to constitute barratry,"
According, then, to the established mean-
ing of the term " barratry," in the English
law, the underwriters, in this case, insured
against the acts of the captain which might be
fraudulent or criminal, and his breaches of
trust, ex maleficio. Now, the question prop-
erly occurs, did the assured conceal from the
underwriters any information material to that
risk?
The facts here charged to have been unduly
concealed, are :
First, that the captain, on his outward voy-
age, several months before this policy was
signed, touched at the Havana for water, and
there drew a bill on his owners, the assured,
for about $800, which they refused to pay ;
alleging, as a reason for such refusal, that the
bill was not accompanied by a letter of advice
from the captain.
Second, the written correspondence between
Harvey, Deaves & Harvey, of Cork, Cropper,
Benson & Co., of Liverpool, and the assured
of New York.
The inference attempted to be drawn from
the transaction of the protested bill, seems to
me so remote and equivocal as to deserve little
consideration.
832
The letters of Harvey, Deaves & Harvey,
and Cropper, Benson & Co., strongly imply a
charge against Captain Cartwright, of negli-
gence and want of economy in the repairs of
the ship, then at Cork. They say: "We
fear he is careless of his business, and that
his amount of repairs and expenses will as-
tonish us all." " His detention has been very
great, yet he seems very easy *under [138
it." But there is no charge nor surmise in
these letters, which goes to impeach the hon-
esty of the captain. They do not even inti-
timate that he was addicted to any practices
that would naturally lead him to commit a
breach of trust, ex maleficio; and although the'
assured, by their letters of the 10th and 13th
of May, 1811, seem to have yielded to the sug-
gestions against the captain, and directed their
agents to discharge him, and to employ another
in his stead, if their agents should think it-
necessary for their interest ; yet it is fair to
conclude that the assured were thus actuated
merely from the considerations stated in the
letters of Harvey, Deaves & Harvey, and
Cropper, Benson & Co.
For aught that appears, therefore, the only
ground of dissatisfaction in the minds of the
assured or their agents, was the careless delay
and want of economy in the captain, which
are characteristic of seamen, and which are
so frequently united with strict honor and
fidelity in that class of men.
My conclusion, therefore, is, that although
the contents of those letters might seriously
affect the interest of the owners, who were
solely responsible for the port charges referred
to in those letters, yet they did not relate •
to the risk of barratry assumed by the under-
writers in this policy ; and that the opinion of
the judge at the trial was correct, in stating
that the assured were not bound to communi-
cate them.
The letters of the 10th and 13th of May,
1811, were written by the assured in New
York, to their agents, Cropper, Benson & Co.,
of Liverpool. The policy was signed at New
York, on the 12th of August, 1811, the ship
Suffolk being then at Belfast ; and although
Captain Cartwright was named as master in
the policy, that could only have been intended
to identify the ship. The question here is the
same as if the policy had been blank as to the
master.
The absolute right of the owners to change
the master at any time, without the knowledge
or consent of the underwriters, is unquestion-
able. The instructions which the assured. had
given to their agents in Liverpool, in regard to
the master, were prudent and discreet.
Considering that the ship was in a foreign
port ; that the assured were under a general
and unqualified obligation to provide a suitable
master, and that neither the law nor usage re-
quired that they should consult with the un-
derwriters as to *the selection of a [*13O
master, it was sufficient, in this case, if the
assured and their agents acted discreetly, and
bona fide, in retaining Captain Cartwright.
It would be unreasonably severe, and would
defeat almost every policy of insurance against
barratry, if the assured were held strictly
bound to disclose every immoral act imputable
to the master, and every unfavorable report
JOHNS. REP., 12.
1815
HEATH ET AL. v. Hoes.
189
respecting him, which had reached the ear of
the assured previous to signing the policy.
Such a rigorous application of the rule in the
varied fortunes and vicissitudes of a seaman's
life, would be impolitic and unjust.
There must be some limits to this duty of
making disclosures in such cases. It cannot
be necessary that the assured should give to
the underwViter a minute history of every-
thing which they have known or heard of,
touching the moral character of the intended
master.
If his general character be good, and the as-
sured have no knowledge or information of
any fact impeaching the honesty of the mas-
ter, the charge of undue concealment has no
legal foundation.
In this case the unfavorable opinions ex-
pressed in the letters of Harvey, Deaves& Har-
vey, and of Cropper, Benson & Co., respect-
ing Captain Cartwright, were repelled by the
evidence of his good character as a sailing
master in New York, where he had been long
known.
I cannot entertain a doubt of the propriety
of allowing the plaintiffs to give in evidence
their letters of the 13th of May, 1811, because
it formed part of the contents of a paper, an
extract of which had been read in evidence by.
the defendants. It was, altogether, one entire
communication, though composed of an orig-
inal letter, and a copy of another letter ; and
neither party had a right to read part without
the whole.
It was fully proved (and admitted on the
argument) that the captain did commit bar-
ratry.
Upon the whole case, therefore, I am of
opinion that the plaintiffs are entitled to judg-
ment.
Judgment for the plaintiffs.
Reversed— 13 Johns., 513.
14O*] *HEATH ETAL. v. ROSS.
Patent for Land — Doctrine of Relation — Not
Admitted to Prejudice of Third Parties —
Trover.
, A patent for land, dated the 4th of December,
but which does not pass the Great Seal until the
28th of December, relates back, as between the par-
ties, so as to vest the title in the patentee from the
daU* ; and the* patentee may maintain trover for
timlx-i-i-ut and carried away from the land.between
the 4th and 28th of December, by persona having no
tit It- or claim to ic. But the doctrine of relation,
li'-inir ii lli-tii Hi of law, is not admitted to the preju-
dice of third persons, not parties or privies, hav-
ing: any right.
Citations— 1 Johns. Cas., 85; Vin. Abr., tit. Rela-
tion, 2HH-289.
THIS was an action of trover, for a quantity
of timber, tried at the Essex Circuit, in
June last, before His Honor, the Chief Justice.
The plaintiffs produce*! a patent to them for
a lot of land, comprehending the premises on
which the timber was cut, dated December 4,
1810, and which passed the Secretary's office
the 28th December, 1810.
A witness testified that he begun to cut pine
timber on the land the last of November. 1810,
JOHNS. REP., 12.
and continued to cut until the January follow-
ing ; that he contracted to deliver 10,000 feet of
timber to the defendant, on the shore of the
lake ; that both be and the defendant supposed
that the lot belonged to the people of the State;
and that in January or February, 1811, the de-
fendant went to Albany, to purchase the lot for
the witness, but found that it had been con-
veyed to the plaintiffs. The witness cut 11,-
000 feet, of which, 8,000 feet were delivered
on the shore. The whole quantity, except
about 4,000 feet, was cut ana drawn out, be-
fore the 28th of December, 1810. The defend-
ant, before he took away the timber, had no-
tice from the plaintiffs that it was their prop-
erty.
The jury found a verdict for the plaintiffs
for $570, subject to the opinion of tin-court on
a case containing the above facts ; and it was
agreed that if the court should be of opinion
that the title to the lot was in the plaintiffs on
the 4th of December, 1810, and they were en-
titled to the timber on the shore, that then the
verdict was to stand ; but if the court should
be of opinion that the title was not vested in
the plaintiffs until the 28th of December, 1810,
that then the amount of the verdict should be
reduced to $215, &c.
The case was submitted to the court without
argument.
Per Curiam. This is an action of trover, to
recover the value of a quantity of timber ;
and the principal question, for the purpose of
ascertaining the amount of damages, is to deter-
mine when the title to the land, upon which
the timber was cut, became vested in the plaint-
iffs. The patent granted to them bears date
*the 4th day of December, 1810, and[*141
passed the Secretary's office on the 28th day of
the same month ; and the principal part of the
timber was cut between these two periods.
According to the usage and practice at the
Secretary s office, the patent is dated at the
time when the grant was ordered by the Com-
missioners of the Land Office, and this must
be taken to be the time when the contract for
the land was made. As between the parties
to the grant, when the title is consummated by
all the necessary forms, it will relate back to
the date ; but this relation, which is a fiction
of law, is never to be adopted when third per-
sons who are not patents or privies will be
prejudiced thereby. But the application of
this Action to the case before us will produce
no such result ; for the defendant, and the per-
son from whom he purchased the timber, knew
that neither of them had any title to the lot, or
right to cut the timber. They both supposed
it belonged to the people of this State, and
afterwards made application to purchase it,
which was a full recognition of their title ;
and the plaintiffs having obtained this title by
a grant, which, as between them and the peo-
ple, would relate back to a time before which
any of the timber was cut, must draw after it
a right to the timber also. The people can
have no claim upon the defendant for this
timber, and the injury is without redress.unlcss
the plaintiffs' claim can be supported. The
doctrine of relation, as understood and recog-
nized, both in our own and in the English
courts, is applicable to this case, and makes
833
141
SUPREME COURT, STATE OF NEW YORK.
1815
the plaintiffs' title relate back to the date of the
patent. (1 Johns. Gas., 85; Vin. Abr., tit.
Relation, 288.) The plaintiffs, are, accord-
ingly, entitled to judgment for $570.
Judgment for the plaintiffs.
Examined— 2 Doug., 188.
Cited in-20 JoluH., 551 ; 3 Cow., 80; 4 Cow., 725; 5
Cow , 461 ; 62 N. Y., 370 ; 21 Barb., 592 ; 35 Barb., 360 ;
22 How. Pr., 398 : 3 T. & C., 268 ; 47 Mich., 69 ; 10 How.
(U. S.), 328 ; 13 Wall., 102.
142*] *HICKS v. BROWN.
1. Negotiable Paper — Bills of Exchange — Non-
Acceptance. 2. Insolvency — Discharge Operates
According to Lex Loci.
A, residing at New Orleans, drew a bill of ex-
change in favor of <~, an inhabitant of Terinessee,
on B, of Pennsylvania, which was protested for
non-acceptance, due notice of which was given to
A, at New Orleans, who, afterwards, obtained a
discharge from all his debts, under the insolvent
laws of that state. In an action brought in this
court by C against A, it was held that A's discharge
was a valid defense. The discharge of a bankrupt
or insolvent, operates according to the lex loci, on
the contract where it was made, or is to be executed.
Citation— 2 Johns., 242.
THIS was an action of assumpsit against the
drawer of a bill of exchange. The bill
was drawn at New Orleans, on the 23d July,
1807, for $1,365. payable to the plaintiff or or-
der, sixty days after sight, on James Brown &
Co., of Philadelphia. The plaintiff was an in-
habitant of the State of Tennessee. The bill
was protested for non-acceptance, and due no-
tice thereof given to the defendant, who re-
sided at New Orleans, where he had lived for
several years before, and continued to reside,
until he obtained his discharge as an insolvent
debtor, under the laws of that place. The
discharge was after the defendant had
received notice of the dishonor of the bill,
and by the laws of New Orleans, such dis-
charge exonerates the debtor from all debts
previously contracted ; and in all the courts
there, such certificate of discharge would
certainly exonerate the defendant from any
suit or responsibility on account of the said
bill, or any previous debt or demand. The
defendant pleaded non assumpsit, and his dis-
charge under the Insolvent Act of New Or-
leans. To the second plea, there was a general
demurrer and joinder.
Mr. S. Jones, Jr., in support of the de-
murrer.
Mr. J. D. Fay, contra. He cited Robinson
v. Bland, 1 Bl. Rep., 25; Smith v. Smith, 2
Johns., 242; Emery v. Oreenouqh, 3 Dallas
369.
Per Curiam. The question is, whether the
defendant can avail himself of his discharge
here. It seems to be well settled, both in our
own and in the English courts, that the dis-
charge is to operate according to the lex loci,
upon the contract where it was made or to be
executed. The contract, in this case, origi-
nated in New Orleans; and had it not been for
the circumstance of the bill's being drawn
upon a person in another state, there could be
no doubt but that the discharge would reach
this contract ; and this circumstance can make
no difference as the demand is against the de-
fendant as drawer of the bill, in consequence of
*the non-acceptance. The whole con- [* 143
tract or responsi bility of the drawer was en tered
into and incurred in New Orleans. By the
act of drawing the bill, he became, condition-
ally, liable for the payment, and this condition
was receiving due notice of the dishonor of
the bill, and this notice was given to him in
New Orleans where the bill was drawn, and
where the defendant lived. The liability of
the defendant was not complete upon the bare
non-acceptance. It was consummated by the
notice ; so that the essential transactions upon
which the defendant became bound to pay
the bill took place in New Orleans ; and as it
respects him the contract was wholly made
there, which brings it within the principle of
the case of Smith v. Smith, 2, Johns., 242. The
defendant is, accordingly, entitled to judg-
ment.
Judgment for the defendant.
Distinguished— 2 Cow., 633.
Cited in— 12 Wend., 443 : 4 Bos., 465 ; 35 N. J., L..
288, 289 ; 4 How. (U. S.), 278 ; 4 Bin., 201 ; 3 McLean,
162 ; 2 Mason, 162 ; 1 Wood. & M., 127.
NOTE.— Constitutional law— Insolvency— State laws.
For a full discussion, see note to Van Raugh v. Van
Arsdaln, 3 Cai., 154.
In the above case of Hicks v. Brown, unless the
plaintiff made himself a party to the proceedings
leading to the discharge of the defendant under the
La. statute, the decision cannot be sustained.
A discharge granted under a state law is not a bar
to an action brought by a citizen of another state in
the courts of the United States, or any other state,
unless it appears that the plaintiff was a party to
the proceedings leading to such discharge. State
insolvent laws have no extraterritorial operation,
and affect only such citizens of other states as
voluntarily became parties to proceedings under
them. Van Raugh v. Van Arsdaln, 3 Cai., 154, note ;
Gilmam v. Loekwood, 4 Wall., 409 ; Baldwin v. Hale,
1 Wall., 223; Baldwin v. Bank of Newbury, 1 Wall.,
234 ; Ogden v. Sanders, 12 Wheat., 213 ; Suydam v.
Broadnax, 14 Pet., 75.
These decisions are conclusive of the point in ques-
tion. Citizenship, not lex loci contractus, controls
in this particular. See, also, Anderson v. Wheeler,
25 Conn., 607 ; Easterly v. Goodwin, *5 Conn., 279 ;
Felch v. Bugbee, 48 Me., 9 ; Crow v. Coons, 27 Mo.,
512 ; Whitney v. Whitney, 35 N. H., 457 ; De Poe v.
Duck, 5 Md., 1 ; Hawley v. Hunt, 27 Iowa, 303 :
Woodhull v. Wagner, Bald. C. C., 300 ; Demerrit v.
834
Exchange Bank, 10 Law Rep. (N. S.), 606 ; Donnelly
v. Corbett,3 Seid., 500.
State laws can only discharge such contracts made
within the state as are ma<le between citizens of the
state. Story, J., in Springer v. Foster, 2 Story C.
C., 387 ; Boyle v. Zacharie, 6 Pet., 348.
In general. State enactments on insolvency, only af-
fect debts contracted after their passage, within the
State, between citizens of the State. See authorities-
above cited ; also, Soule v. Chase, 39 N. Y., 342 ;
Smith v. Parsons, 1 Ohio, 236; Hernpstead v. Reed,
6 Conn., 480 ; 1 Kent Com., 12th ed., 422, notes ; 2 Id.,
393, note ; 3 Story Const., 15, 256 : Van Raugh v. Van
Arsdaln, 3 Cai., 154, note ; Sturges v. Crowninshield,
4 Wheat, 122, note in Law. ed.
The discharge does not bar a suit, in the State where
granted, brought by a citizen of another state. Soule
v. Chase, 39 N. Y., 342 ; Kelly v. Drurv. 9 Allen, 27 ;
Easterly v. Goodwin, 35 Conn., 279 ; Worthington v.
Jerome, 5 Blachf ., 279. But see, Stoddard v. Har-
rington, 100 Mass., 87.
In support of the above case of Hicks v. Brown, see
Sherill v. Hopkins, 1 Cow., 103 ; Smith v. Smith, 2
Johns., 242 ; Blanchard v. Russell, 13 Mass., 1 ; Har-
rison v. Edwards, 12 Vt., 648 ; Le Roy v. Crownin-
shield, 2 Mason, 151 ; Van Reimsdyk v. Kane, 1 Gall.,
371 : Green v. Sarmiento, Pet. C. C., 74.
JOHNS. REP., 12.
1815
OODEN V. OttK.
143
OGDEN v. ORR.
Marine Law — Seaman Discharged by IK» own
ConaetU — Not Entitled to Extra wages.
No action can be maintained by a seaman dis-
charged uy bis own consent, in a foreign country,
uinitT the Act of Congress (7th Cong.. Zdsess., ch.Ki,
sec. 3). ajriiitist the owner of the vessel, to recover
two thirds of the three months' wages, directed by
that Act to be paid by the master of the vessel to
the American Consul over aiicl above the wages
due to such seamen at the time of such discharge.
Citation— 2d Seas., 7 Cong., ch. 62, sec. 3.
IN ERROR on certiorari from the Justices'
Court of the City of New York. Orr
brought an action of as*ump*it against Ogden,
in the court below for wages as a seaman, and
also for a breach of the shipping articles, on a
voyage from New Orleans to Lisbon, and back
to a port in the United States. The plaintitT
shipped on board the Paragon at New Orleans,
on the 30th of April, 1813, at $35 per month.
One of the seamen, a witness, testified that on
the outer voyage the crew were put on a short
allowance of provisions, which continued until
their arrival and while they remained at Lis-
bon, where the wages of seamen were from
$12 to $18 per month. The crew, being all
called up at 8 o'clock in the morning without
occasion, conceived themselves treated ill,
there being no duty to be performed until sun-
rise. They complained to the captain and mate;
and being called up as before, they, after some
time, complained again to the captain, and de-
144*] sired *him to pay their wages and dis-
charge them. The captain replied : " You
know I cannot discharge you ; but I will give
you your wages and you may go to h — 1."
The captain then paid off the whole crew who
went ashore. A few days after a new crew were
shipped at $12 per month. Orr was sent home
by the American consul as a destitute seaman.
He was discharged the 8th of July, 1813, and
arrived at Newporton the 4th of September.
On his cross-examination the witness said that
a few days after the crew were discharged the
captain met him (the witness) and attempted
to arrest him, but he escaped.
The captain, who was admitted as a witness
by consent, testified that the crew were not
put on short allowance, but that the provisions
were distributed to them daily, in the manner
usual on board of merchant vessels. The crew
complained only of the mate, and said they
would not return in the vessel with him. He
denied that he discharged the crew, but paid
them off at their request, at $35, and hired a
new crew at $12 per month. After being some
time OD shore, the crew applied to the consul
for assistance, who told them they were too
late, as the captain had taken away all his pa
pers. It appeared that at Lisbon vessels were
usually unloaded by lighters, which ply at cer-
tain hours, and frequently at night. The log
book was offered in evidence, and the hand-
writing of the mate, who was out of the State,
was offered to be proved in order to show the
desertion of the plaintiff, but the court below
rejected the evidence ; and being of opinion
that the plaintiff had not deserted but had
been discharged by the captain, gave judg-
ment for the plaintiff for $70, being two
months' wages, to which the court were of
opinion he was entitled, under the "Act sup-
JOHNS. REP., 12.
plementary to the Act concerning Consuls and
Vice-Consuls, and for the further protection of
American Seamen, passed February 28th, 1803.
(7lh Cong., 2d se-ss., ch. 62.)
Per C"wriaw»} The court below have found-
ed their opinion of the plaintiff's right to re-
cover altogether upon the Act of Congress
(M MM., 7 Cong., ch. 62, sec. 8), and if the
action is at all to be sustained, it must be under
that Statute; for the facts in the case lead irre
sistibly to the conclusion that the plaintiff
below left the vessel voluntarily, and with the
consent of the *master. He received [*145
his wages up to the time of his discharge, and
the evidence will not fairly warrant the infer-
ence that he was driven away by harsh and
cruel treatment. Although the great disparity
between the wages of the plaintiff and those
given to the new crew affords pretty good
reason to conclude that the master was very
willing to part with his old Crew, yet, the con-
conclusion drawn from the facts in this part of
the case by the court below, against the plaint-
iff's claim, ought not to be disturbed.
But we think the court below have erred in
the construction given to the Act of Congress.
This Act provides that when a seaman or mar-
iner, being a citizen of the United States, shall,
with his own consent, be discharged in a for-
eign country, it shall be the duty of the master
to exhibit to the consul or certain other officers,
the list of his ship's company, and to pay to
the officer for every seaman or mariner so dis-
charged three months' pay over and above his
wages then due ; two thirds of which is to be
paid by the consul to the seaman discharged,
and the other third to be retained by him for
the purpose of creating a fund for the benefit
of destitute American seamen, and for which
sum the consul is to account with the Treas-
urer of the United States. Assuming that the
plaintiff below was discharged with his own
consent, the question is whether he can main-
tain an action for the two thirds of the three
months' wages required in such cases to be
paid by the master. The Act directs it to be
paid to the consul ; it creates no obligation on
the master to pay it to the seamen ; and the
policy of the law seems to have been, that the
money should pass through the hands of the
consul, who is made, in some measure, the
guardian of American seamen in foreign parts
for the purpose of protecting their rights and
relieving their wants. This three months' pay
was intended as a kind of penalty upon mas-
ters of vessels to prevent their discharging
American seamen in foreign countries ; and to
allow the seamen to call upon and receive from
the master his proportion of the penalty, would
not only be against the policy of the Act, but
would be depriving the fund, intended to lie
created for the benevolent purpose of relieving
distressed seamen, of its share. It is, likewise,
taking from the consul the commission to
which, by the Act, he is entitled. Besides,
*this is a suit against the owner and [*14O
not against the master of the vessel. In what-
ever point of light, therefore, it is viewed, the
judgment cannot be supported.
Judgment retemed.
Questioned— Rlatchf. & H., 845.
Cited in— 9 Cow., 160 ; Oilp.. 201.
146
SUPREME COURT, STATE OF NEW YORK.
1815
GARLICK v. JAMES.
Pledge— Collateral Security— Special Properly in
Pledgee — Promissory Note — Pledgee cannot
Compromise with Maker — Pledgor should be
called on to redeem— Absence of Pledger.
Where the promissory note of a third person is
deposited by a debtor with his creditor, as collateral
security, for a debt, such note is a pledge, in which
the pawnee has merely a special property, the gen-
eral ownership remaining in the pawnor.
The pawnee s authority extends no further than
to receive the amount of the note from the maker,
and not to compromise with him for a less sum than
appears on the face of the note, or to dispose of it
in any other manner, until after the pawnor's de-
fault in redeeming.
Where the pledge is for an indefinite period, the
pawnor should be called on to redeem, before the
pawnee can dispose of the property ; and if he is
absent, or cannot be found, judicial proceedings
should be had, to bar his right of redemption,
Citation— 2 Cai. Gas., 201.
was an action on the case. The dec
J- laration contained six counts. The third
count, on which the plaintiff chiefly relied,
stated, in substance, that the plaintiff, Samuel
Garlick. and one Murphy, on the 28th of
January, 1803, being indebted to James (the
defendant) and M'Cabe, in the sum of $300,
the plaintiff pledged, pawned, and delivered
to the defendant, a note of Seth Garlick, for
the sum of $600, belonging to the plaintiff, to
secure the debt due to James & M'Cabe ; that
the defendant afterwards, in 1810, gave up the
said note belonging to the plaintiff, to Seth
Garlick, the maker, for $400, when, in fact,
Garlick was able to pay the whole amount of
the note. The defendant pleaded the general
issue, and the Statute of Limitations.
The cause was tried at the Chenango Cir-
cuit, in June, 1814, before Mr. Justice Spencer.
It appeared, from a written memorandum,
proved to be in the handwriting of the de-
fendant, that the note of Seth Garlick was left
with James & M'Cabe, for a debt due them by
Murphy, and Garlick, the plaintiff.
Seth Garlick, who was a witness for the
plaintiff, produced the note for $600, dated the
1st November, 1802, payable to the plaintiff on
the 1st November, 1807 ; and he testified that
it belonged solely to the plaintiff. That the
witness, in 1810, agreed with the defendant to
give him a note, signed by James Birdsall, as
security for the $300. and take up his own
note and the note against Murphy and Gar-
147*] lick, which was, accordingly, *done,
and the defendant gave up to the witness his
note for the $600. The note of Birdsall had
since been paid to the defendant. The witness
further testified that at the time he took up
the note of $600, he was, and still is, abund-
antly able to pay the whole amount ; and that
he knew, at the time he made this arrange-
ment, of the terms on which the note had been
left with James & M'Cabe.
There was evidence of many other facts
stated in the case, relative to points not urged
on the argument, nor decided by the court.
It was admitted on the part of the plaintiff
NOTE.— Pledge— Demand.
Pledgee cannot sett the pledge until after demand,
and must serve notice on pledgor of the time and
place of sale. See Cortelyou v. Lansing, 2 Cai., 200,
note.
that the defendant acted in good faith, in the
arrangement he made with Seth Garlick, and
obtained as much for the note as the defend-
ant believed he could get, under existing cir-
cumstances.
A verdict was taken for the plaintiff, by
consent, subject to the opinion of the court on
a case made.
Mr. H. Bleecker, for the plaintiff. The note
of Seth Garlick was left with the defendant as
a pledge, and he had no right to dispose of it.
A pledge is a deposit of goods to be redeemed
on certain terms. (5 Johns., 258-261.) It is
not like a mortgage, which is to become an
absolute interest, if not redeemed in a certain
time. (8 Johns., 96-98.) The case of M'Lean
v. Walker, 10 Johns., 471, is in point. The
note was held to be a deposit or piedge, and
that the property in it did not pass by the de-
livery, as in case of a mortgage ; and the dis-
tinction laid down in Cortelyou v. Lansing, 2
Caines' Gas. in Error, 200, by Kent, J., be-
tween a pledge cr pawn and a mortgage, and
as to the pawnor's right of redemption, are
fully recognized. That case, too, was of a
note delivered as security for a debt ; and the
learned judge, whose opinion is reported, lays
it down as clear law, that where there is no
specified time of redemption, the pawnee has
no right to sell the pledge. The only power
he has, is to receive the whole money from the
maker of the note. If the pawnee sell the
goods, trover lies. (1 Com. Dig., Action on
the Case for Trover, D.; 2 Salk., 441 ; Cro.
Jac., 245.) The defendant was not obliged to
take any measures to collect the note. Where
notes are deposited as collateral security mere-
ly, the law imposes no obligation on the hold-
er to collect the money. An executor, though
standing in a more intimate relation to his tes-
tator, has no power to release or compound a
debt, for a less sum. (1 Com. Dig. Adm., I,
Assets. C.) Neither caw an assignee of a
bankrupt or insolvent, without the consent of
the creditors. Nor can an attorney compound
*or release a debt for a less sum, with- [*148
out an authority, express or implied, from his
client.
This is the case of a simple pledge or pawn,
and the pawnee had no right to sell or dispose
of the note, if at all for less than the whole
sum due on it ; and the defendant is answer-
able for the difference.
Mr. Henry, contra. Where a pledge is of a
dead chattel, it must be returned in specie.
Where it is of a thing, in itself, of no value,
but a mere evidence of debt, there the debt or
money is to be returned ; otherwise, the
pawnee of a note could not receive the money
of the maker.
There is a distinction between a strict pledge
and a mortgage, or an assignment of a debt.
In the latter case, if the money is not paid at
the day, the mortgagee may sell the pledge.
The note was left with the defendant as col-
lateral security. It was, therefore, mortgaged
or assigned. If so. the defendant had a
right to receive the money due to him, and to
give up the note.
The first, second, fifth and sixth counts in
the declaration, proceed on the ground of a
property in the note, and that the defendant
was bound to return it in specie. Those
JOHNS. REP., 12.
1815
OGDEN v. OKR.
148
•counts, clearly, cannot be maintained. The : property therein ; and if so, he has clearly ex-
other two count* are founded on the miscon- ceeded his authority, in disposing of it as he
•duct of the defendant as a bailee or pawnee, has done.
They state the note to bedue and unpaid when j In the very able and learned examination of
it was delivered, in 1803 ; but it appears from * the rights and duties of a pawnee, in the case
the note produced, that it was notpayable un- 1 of Corttlyou v. Uinsing, 2Caines' Cas. in Error,
til the 1st of November, 1807. There is, go ! 201, most of the law on the subject of pled -res
far, a variance between the allegation in those has been collected. And I believe it may be
counts and the proof.
The defendant, having acted with good
faith, ought not to be made liable ; nor should
the court, under the circumstances of the case,
be inclined to favor the plaintiff.
safely *attirmed, that no case is to be
found, where the deposit was for an indefinite
time, as it was in the case before us, that the
sale or disposition of the pledge by the
pawnee, without first calling upon the pawnor
In Salkeld (3 Salk., 207, sec. 2) it is laid ! to redeem, has been held "good. It maybe
•down, that where the goods are pawned, re- j said here, as was said in that case, that it is
•deemable at a certain day, the pawnee, in case unnecessary to decide in what manner this call
-of failure of payment at the day, may sell , is to be made.or how the pledge is to be disposed
them. And in Jucktrv. Wibon, I P. Wins., j of In case of the pawnor's fault to redeem ; for
261, where exchequer annuities were pledged j in this case the pawnor was not called upon,
for debt, it was held that they might be sold in any manner whatever, to redeem. It was
after notice, without any decree of foreclosure urged, on the argument, that this could not
of redemption. be done, because the plaintiff had absconded.
An assignment of a chose in action need If notice to redeem could not have been given
not be by deed. (ll<nceU v. M'ltxn, 4 T. K.. ' personally to the plaintiff, the disposition of
•690.) If there was a parol assignment or i the pledge should have been authorized and
mortgage of the note in this case, the property sanctioned by judicial proceedings.
The authority of the defendant, with respect
to the note, could extend no further than to
receiving the money due upon it, without first
culling upon the plaintiff, in some way, to re-
deem. The money, when received, would be
passed, and no action lies on the counts
1 4JJ*]*f ounded on the property of the plaint-
iff in the note. And if any action would lie
Against the defendant as an agent, there are no
•counts in the declaration on that ground. An
assignee of a bond or note has complete power
a substitute for the note, and to be held upon
•over it, and may cancel it or deliver it to the the same terms, and subject to the same rights
maker.
In Cortelyou \. Lansing, the thing pledged
was a certificate of public stock, for which no
action could be maintained.
Jfr. BUecktr, in reply, said that the case was
made subject to the opinion of the court. No
•objection was made to the evidence, nor was
any variance insisted on at the trial.
It is said this is a mortgage. But in case
of a mortgage, the property is transferred, sub-
ject to the right of redemption, which is not
the case here.
If a pawnee wishes to sell the thing pledged,
lie must call on the pawnor to redeem, in a
reasonable time ; and if he does not, then he
may sell : or perhaps, if there was a time
specified, within which the pawnor was to re-
deem, and he did not, the pawnee might sell.
THOMPSON, Ch. J., delivered the opinion of
the court:
The plaintiff and one Murphy, l>eing in-
debted to James & M'Cabe, on a balance of
account for merchandise, the plaintiff left
with the defendant, as collateral security, a
note drawn by Seth Garlick to him, for $600,
dated the 1st of November, 1802. Some time
in the year 1810, the defendant gave up the
note to Seth Garlick for $300 ; and this suit is
brought to recover the difference between the
amount of the note, and balance of accounts
due to James & M'Cahe.
That the note thus deposited with the de-
fendant is to be considered and treated as a
pledge, cannot admit of a doubt. It was de-
livered, with a right to detain it as collateral
security, for the balance due James & M'Cabe.
But the legal property did not pass. The gen-
eral ownership remained with the plaintiff,
and the defendant only acquired a special i Edm.,*l5u"o8'lU.', '
JOHNS. RKF., 12. N. Y. R. 5. 22
and duties as the note. And if the defendant
undertook to compromise with the drawer of
the note, and received a less sum than was
due. he did it at his peril, as he acted without
authority.
Although it is admitted, in the case, that the
defendant acted in good faith, it is difficult to
discover the reason of his making the sacrifice
he did, in accepting of less than one half the
sum due upon the note ; for it is in proof, that
the settlement was made with Setb Garlick,
personally, and that he was, at the time, abun-
dantly able to pay the full amount of the
note. It was urged, on the part of the de-
fendant, that the plaintiff might still call upon
Seth Garlick for the balance due upon the
note, as the payment made by him being for a
less sum than was due, it would not operate
as a discharge of the note. Admitting this
to be correct, it will not exonerate the de-
fendant, if he has so disposed of the pledge as
to make himself responsible. A party may
have two remedies for an injury, and may
elect which to pursue.
In whatever light, therefore, the case is
viewed, the plaintiff is entitled to recover, and
must have judgment for $525, being the dif-
ference between the amount of the note and
*the balance of account due from Mur- [*1 5 1
phy and Garlick to James & M'Cabe, accord-
ing to the stipulation of the parties. Several
other questions would appear to arise out of
the case as presented to the court, but they
were abandoned on the argument.
Judgment for the plaintiff.
Cited in— 4 Donlo, 230 ; 2 Snnd. Ch., 145 ; 46 N. T..
780: lliarb.. 10; 4 Barb., 4KJ; 1 Abb. N. 8.. 73 ; 10
H..-.. :t>; ', I )u,-r. 38,506: 6 I)u«-r, 587 ; 1 Hob., 172,
230; I Sand.. 357: 39 Super., 308 ; 47 Super., 418 ;
887
151
SUPREME COURT, STATE OF NEW YORK.
1815-
OOTHOUT v. ROOTH.
Practice — Interlocutory Judgment — Notice —
Costs — Surplusage.
A notice of executing a writ of inquiry at a cer-
tain day, "provided an interlocutory Judgment
shall have then been obtained in the cause," is Rood.
The words of the proviso may be rejected as sur-
plusage. If no interlocutory judgment should, in
fact, be obtained, and the notice be not counter-
manded.the party giving such notice must pay the
costs.
MR. PARKER moved to set aside the writ
of inquiry, and all subsequent proceed-
ings in this cause.
Mr. I. Hamilton, contra.
It appeared that the notice of executing the
writ of inquiry was for a certain day, &c.,
"provided an interlocutory judgment shall
then have been obtained in this cause."
Per Guriam. The proviso is unusual in
notices, but is implied in every notice of this
kind. If it should happen that no interlocu-
tory judgment should be obtained, and no no-
tice of the fact should be given, the party who
gave such notice would be liable to costs. The
words in the notice might be rejected as sur-
plusage. We do not think it a sufficient
ground for setting aside the proceedings.
Motion denied.
Cited in-2 Wend., 242.
152*]
*BELL 0. HALL.
Practice — Libel — Bail on Removal by Habeas
Corpus.
Where a defendant is held to bail in an action for
a libel in a court of common pleas, and he removes
the cause to the Supreme Court, by habeas corpus,
he must put in bail in the Supreme Court ; though,
if the cause had been originally commenced in the
Supreme Court, he might not have been held to bail.
rpHIS was an action for a libel, originally com-
-L menced in the Mayor's Court of the City
of New York, where the defendant was held
to bail, according to the course and practice of
that court, in the sum of $5,000. The cause
having been removed into this court, by habeas
corpus, Mr. T. Sedgwick now moved that the
defendant be discharged, on tiling common
bail. He contended that, as the defendant
could not have been held to bail in this court,
except under a special order for that purpose,
grantable at the discretion of the court, the
cause, when it is removed here by habeas cor-
pus, must be governed by the same rules ; and
the court would exercise the same discretion,
as to bail. In Lumley v. Quarry, 1 Salk., 101 ;
S. C., Lord Raym., 767, Holt, Ch. J., said,
that on the removal of a cause on habeas cor-
pus, the K. B. would inquire into the cause of
action. The rule mentioned by Sellon (2 Sell.
Pr. , 877), is one of the old rules of the Court
of K. B.
Mr. Henry, contra, insisted that the settled
rule of practice was, that where the plaintiff
was, by law, entitled to bail, the defendant
could not, by removing the cause from the in-
ferior court, get rid of the bail. This is the
established practice of the Court of K. B. in
England (1 Salk., 98), and in all cases not pro-
338
vided for by the rules of our own courts, and
where the practice is unsettled, this court fol-
lows the practice of the K. B.
Per Curiam. It is the right of the plaintiff
to commence his action, if he thinks proper,
in the inferior court ; and being entitled to bail
in this action, in that court, he ought not to be
deprived of it, by the act of the defendant, in
removing the cause into this court. And it is
the settled practice of the K. B., in England,
that where the defendant is held to bail in the
court below, he must, or removing the cause,,
put in bail on the habeas coi-pus.
Motion denied. »
Cited in— 7 Cow., 151.
•*REDMOND [*15»
v.
C. RUSSELL, Impleaded with others.
Practice — Removal of Causes — Special Bail —
Time to File Petition — Notice.
To entitle a defendant to remove a cause from
the Supreme Court of this State, into the Circuit
Court of the United States, pursuant to the Act of
Congress (1 Cong., 1 sess., eh. 20, sec. 12), he must
file his petition in this court, at the time of putting
in special bail ; giving notice of presenting the pe-
tition, at the next term, and then filing it, is not
sufficient.
Citation— 1 Laws U. S., p. 66, sec. 12.
was an action of attxumpsit on an inland
-L bill of exchange for $500, against the de-
fendants, as drawers, one of whom only had
been taken. The declaration was filed the 23d
Aujrust, 1814 : and special bail put in the 3d
of September. On the 6th of September the-
defendants' attorney gave notice to the plaint-
iffs' attorney, that he should petition this
court to have the cause removed into the Cir-
cuit Court of the United States, and served
him with a copy of the petition. The petition
was not filed in the clerk's office of this court.
At the last term, the petition was presented to
the court, and filed, and a motion made thereon
for the removal of the cause, which, by con-
sent, was postponed to this term. The peti-
tion stated that the action was for a sum ex-
ceeding $500, exclusive of costs ; and that the
defendants were citizens of, and residing in
the State of Massachusetts, &c.
The motion was opposed, on the ground
that the petition was not tiled in the clerk's
office at the time of putting in special bail, on
the 3d of September, in the words of the Act
of Congress (1 Cong., 1 sess., ch, 20, sec. 12 ;
Laws U. S. Vol. I., p. 56); and that it was too
late, afterwards, to tile his petition, at the next
term.
SPENCER, J. To entitle the citizen of an-
other state, sued here by a citizen of this State,
to a removal of the cause to the Circuit Court
of the United States, the Act of Congress (1
Vol., p. 66, sec. 12) requires that the defend-
ant shall, at the time of entering his appearance
in the state court, file a petition for the removal
of the cause for trial into the next circuit
court, &c., &c. In this case the defendant
filed special bail on the 3d of September last,
JOHNS. REP., 12_
1H15
RANK v. SMITH KT AL.
158
and on the 6th of that month gave notice to
the plaintiff of his intention to apply for the
removal of the cause, and subsequently ob-
tained an order to stay proceedings, until the
application could be made; and in the last
term of this court, he moved for the removal
of the cause ; then, for the first time, tiling
his petition.
134*] *This is not a case in which the
comity of the court is to be exercised ; if the
defendant is not strictly entitled to have his
cnu^e removed, we are bound to maintain our
jurisdiction. The plaintiff has as strong a
claim to have his cause retained here, as the
defendant can have to remove it. The whole
question turns upon the point, when did the
defendant enter his appearance. Upon a cnpin»,
or other process against the person, the only
mode in which the defendant is said to appear,
is by put tin'; in common or special bail ; and
this appearance is necessary in all cases ; for
the defendant must be in court before his at-
torney can plead, or take any steps in his be-
hulf ; nor can the plaintiff proceed against a
defendant, except by declaring conditionally.
until he has appeared by filing common or
special bail.
The manner of a defendant's appearing in
the courts of the several states, is undoubted-
ly variant ; but whenever that act is done,
which, according to the practice and rules of
the state courts, respectively, amounts to en-
tering an appearance in the court where the
suit is brought : then, and at the time of en-
tering such appearance, the petition for the
removal of the cause must be filed. The en-
tering an appearance, and filing the petition,
are to be simultaneous acts ; and the Act of
Congress does not contemplate that the court
shall be then in session ; we cannot suppose
that Congress were not aware that these min
isterial acts might be done in the vacation out
of term.
The requirement that the petition for the
removal of a cause should be filed at the time
of entering the appearance, was intended, not
only to put the defendant to a prompt election
of his tribunal, but to give the opposite party
early notice of his intention.
Believing that there can be no doubt, ac-
cording to the practice and course of this
court, that filing the special bail, in this cause,
on the 3d of September, was entering the de-
fendant's appearance. I am bound to say he
has lost his right to a removal of the cause, by
neglecting then to file his petition, according
to the Act of Congress ; and that consequent-
ly, we cannot now allow the cause to be re-
moved.
YATES and PLATT, JJ., concurred.
153*] ^HOMPSON.C'A. J. I cannot concur in
the construction which has been given to the
Act of Congress. If tlm was to be considered a
mero question of practice, and to hi- applied
prospectivelv, it would be matter of no great
importance Low it was settled. But to apply
this construction to the present case, is. I con-
ceive, against the former practice of the court,
and depriving the defendant of a right given by
the statute. The appearance, which the Statute
speaks of, on the entering of which the peti-
tion for the removal of the cause is to be filed,
JOHNS. HEP., 12.
must be an appearance in open court, and not
the mere entering of bail ; for it is to be ac-
companied with other acts, which cannot be
done in vacation, but must be done by the
court. He is to file a petition, and offer good
and sufficient security for entering his cause
in the Circuit Court, and then appearing and
entering special bail, if special bail was origin-
ally requisite therein, of the sufficiency of
which surety the court must judge. These
are all considered by the statute as simultane-
ous acts, and, of course, to be done in open
court. The mere act of filing a petition in the
clerk's office, could avail nothing. It would
not stop proceedings in the state court, nor
would the plaintiff be bound to take notice of
it ; and the statute does not require notice to
be given. Under the construction now given
to the statute, when the defendant indorses
his appearance on the writ, or the plaintiff
files common bail for him, he cannot know
when to file his petition ; for his appearance is
entered by his adversary, and he may, by sur
prise, lie precluded from removing his cause.
In my opinion, therefore, the motion ought to
be granted.
VAN NESS, J., was of the same opinion.
Motion denied.
Cited in-4 Denio, 247 : 1 Hun. 708 : 12 How. Pr..
184 ; 17 How. Hr., 389 : 34 How. Pr., 142 ; 14 Abb. N.
S., 85 ; 5 Park, 582 : 3 T. & C., 789 ; 4 T. & C.. 201 ; 3
Duer, 087 ; 5 Duer, 610.
*KANE AND KANE
SMITH 'ET AL.
[*156
Marine Insurance — Recovery by Agent of Pre-
miums Act u /illy Paul — Balance of Account* —
Interest Chargeable on, only after Notice of
Deficiency.
Where, by an agreement between A and B, A is
to furnish cargoes for a partirulur adventure, for
which he is to be re-imbursed by B, and is to be
allowed to make insurance thereon, and charjre the
stimc to It, he can only charge the premiums of in-
surance actuu lly paid, and not for premiums on
advi-ntures which had never been insured.
Interest is chargeable on a balance of accounts,
only from the time that the party against whom the
charge is made, has notice of the deficiency on his
part.
cause had been referred, by consent ;
- and the report of the referees, wilh the ac-
count furnished by them, as containing the
statement on which their report was founded,
was submitted to the court, to strike out such
items as they should deem erroneous, and to
confirm the report as to the residue, and to
modify and amend it as they should judge
proper.
The facts of the case, and the agreement on
which the action was founded, are so fully
stated in the opinion of the court, that it will
be unnecessary to repeat them in this place.
The objections made by the defendant to
the report, were :
1. That the referees had admitted charges
for premiums of insurance on adventures,
NOTE.— IntfsrcHt— VThtn allovxd itn account*. See
Newell v. Griswold. 6 Johns.. 45, note.
38!>
156
SUPREME COURT, STATE OK NEW YORK.
1815
which the plaintiffs had not, in fact, caused to
be insured.
2. That they had allowed for interest pre-
vious to a settlement of accounts, and a balance
struck between the parties.
Messrs. Griffin and T. A. Emmet for the
plaintiffs.
Messrs. T. L. Ogden and D. B. Ogden for the
defendants.
THOMPSON, Ch. J., delivered the opinion of
the court :
The objections to the report of the referees
relate to the charges for premiums of insurance
made by the plaintiffs against the defendants,
and to the interest account. It is necessary,
for the purpose of correctly judging of the
propriety of these charges, to ascertain the
agreement between the parties relative to the
adventure. This is to be collected from the
proposals made by the plaintiffs, and the de-
fendants' answers thereto, and which would
seem to be, substantially, as follows:
The plaintiffs, being merchants in New
York, and the defendants, merchants in Ma-
deira, the former were to send out a vessel to
Madeira, to take to the East Indies a cargo of
wine, to be furnished by the latter. The
plaintiffs were to advance, by cargoes to be
sent to Madeira, the amount of two thirds of
the invoice price of the wines, part of which
were to be sent out by the vessel that was to
157*] take the wines to the East *Indies,
and the residue to be sent as ordered by the
defendant. The defendants were to pay all
charges and expenses on the shipments from
America to Madeira, and £3 sterling per pipe
as freight on the wine from Madeira to the
East Indies, the plaintiffs to be allowed to
make insurance on the wines, and charge the
same to the defendants ; a commission to be
allowed the plaintiffs on sales of wines in
India, they to be reimbursed out of the net
proceeds of the wines for their advances, and
for the surplus of such proceeds to furnish
other cargoes to the defendants, or bills on
London, allowing interest from the time of
the sale in India, on the overplus ; and should
the wines not net sufficient to pay the ad-
vances, the defendants were to make up the
deficiency. It is obvious, however, from the
whole tenor of the agreement, that the parties
calculated that the wines would not net more
than the advances to be made by the plaintiffs.
Under this agreement, the plaintiffs sent
out to Madeira, by the ship True American, a
cargo to the amount of $29.577.43 ; and after-
wards, by the Phoebe, to the amount of $7,-
579.50. The net proceeds of the wines sent
out by the defendants, on board the True
American, amounted only to about $33,000,
which, contrary to the expectation of the
parties, was not sufficient to re imburse the
plaintiffs for their advances.
The principles upon which the report of
the referees appears to have been made, seem
to me not fully warranted by the agreement,
in relation to this adventure, according to a
fair and reasonable interpretation. Although
the agreement attached to the case, authorizes
the court to modify the report, in case we
should consider it incorrect, we shall only lay
down the principles upon which the items ob-
340
jected to are to be settled, and leave the calcu-
lation to be made by the parties.
1. The first objection relates to the premi-
ums of insurance ; with respect to which, we
think that the defendants are chargeable with
all premiums actually paid by the plaintiffs,
and no more. It is unnecessary to say, in this
case, in whom the right of property in the
cargoes was vested, on the voyage from New
York to Madeira. It is, at all events, clearly
to be collected from the agreement, that if the
cargoes arrived safe at Madeira, the plaintiffs
were to be re-imbursed for all advances made
therefor, and to have a commission upon the
purchases. *The cargoes did arrive [*158
safe, and whatever was actually paid as premi-
ums of insurance is a fair charge against the
defendants. They have received the cargoes,
and had the benefit of them, and they cannot
expect to have the goods without paying the
insurance, which is a fair and usual mercantile
charge. With respect to the premiums of in-
surance upon the wines from Madeira to the
East Indies, there can be no doubt but that
the defendants are bound to pay them. They
fall expressly within the agreement. It was
stated by the defendants' counsel on the argu-
ment, that several thousand dollars had been
allowed by the referees for advances as premi-
ums, which had never been made. If this
be so, the report is. thus far, incorrect. No
more is to be allowed than was actually paid.
The plaintiffs are not authorized to consider
themselves insurers, and charge the premiums,
unless insurance was actually made. This
would not be a fair interpretation of the agree-
ment. The adventure, or speculation, held
out advantages to both parties ; the profits,
however, were, in some measure, uncertain.
The defendants received, in advance, two
thirds of the amount of the prime cost of
their wines. The plaintiffs were to have
freight for their vessels both to Madeira and
out to the East Indies, and were to have the
proceeds of the wines in the East Indies, to
invest in such return cargo as they thought
proper. Under these circumstances, the agree-
ment ought to receive a liberal interpretation.
2. With respect to the interest, we think it
ought to be calculated upon the balance of
accounts only, from the time the deficiency
was ascertained and notified to the defendants ;
and there is no evidence to show that the de-
fendants were ever apprised of any deficiency,
until the year 1810, when an agent was sent
to Madeira to settle the accounts. The wines
went out in the plaintiffs' vessel, under the
charge of a supercargo in their employ. It
was they alone who could ascertain the net
proceeds of the wines, and it was their duty
to furnish the defendants with accounts of
sales, and show the balance due. The agree-
ment provides that, in case the wines should
not net sufficient to pay the advances, the de-
fendants were to make up the deficiency.
This, however, is stated in the agreement to
be an unexpected event ; and it could not,
therefore, have been within the contemplation
of the parties that interest was to be calcu-
lated at all ; and the defendants could not be
deemed *in default until the balance [*15O
was ascertained and notified to them. The
advances made by the plaintiffs did not
JOHNS. REP., 12.
1815
HERRICK v. CARMAN.
159
amount to two thirds of the invoice price of
the wine, by a large amount. The defendants
could not, under these circumstances, be
deemed in default, for not paying the balance
until demanded.
We are, accordingly, of opinion that the
report must be so modified, as to charge
tli.' defendants with all premiums actually
paid, and no more ; and interest to be calcu-
lated on the balance only from the time the
account of sales of wine was presented to the
defendants, and the balance demanded, which
appears to have been some time in the year
1810.
Cited in— 8 Cow.. 423 ; 5 Cow., 699 ; 1 Bradf ., 234.
HERRICK v. J. V. CARMAN.
Negotiable Paper— Prior Indomer cannot Ordi-
narily Maintain Action again»t Subsequent
one — Indorsement of a Blank Note it a Letter
of Credit.
R., for value received, delivered to C. a note
made by R.. payable to C., and Indorsed by H. In
blank, as security, and C. afterwards sold and In-
dorsed the note to B., for a less sum, who took it at
hi* own risk, and with knowledge of the manner of
making and indorsing the note. In an action
brought by B., as indorsee, against H.. the Indorser,
it was hem that as C., the original payee, could not
maintain an action, directly or Indirectly, against
H.. as indorser, neither could B. recover against
him.
Where a prior indorser cannot maintain an. action
Hgninst a subsequent indorser, no person deriving
title under the prior indorser, with knowledge of
all the facts, can recover against such subsequent
indorser.
Citations— Doug.. 514 ; 3 Mass., 274 ; 4 T. R.. 470 ; 10
Johns.. 224.
IN ERROR, from the Court of Commpn*
Pleas of Dutchess County. Carman, as in-
dorsee, brought an action, in the court below,
against llerrick, at* indorser of a promissory
note, dated the 25th of February, 1811. made
by John Ryan to Lawrence Carman & Co.. or
order, for $188.38, payable thirty days after
date. A demand of payment of Ryan, on the
30th of March, 1811, and refusal, and notice
thereof to llerrick, was proved.
Ryan applied to Lawrence Carman & Co.,
for the purchase of goods, which they refused
to sell him. without security for the payment.
Ryan, afterwards, presented them the note in
question, indorsed by the defendant, which
they accepted, and delivered the goods to the
amount of the note. Ryan, soon after, be-
came bankrupt, and Lawrence Carman & Co.
were informed that, to render the defendant
liable to them, as an indorser. it was necessary
that they, the payees, should previously in-
dorse the note. They, accordingly, indorsed
the note, and sold it to the plaintiff for $100,
to whom they, at the time, communicated all
the circumstances attending the note, as to
NOTB.— Negotiable papei — Lialtditu of
In connection with above case of Herrlek v. Car-
man. see ('iimpt>ell v. Butler. 14 Johns. 349; Nelson
v- Dubols, 13 Johns., 175; Seabury v: Hungerford. 2
Hill, 84 : Hall v. Newcomb, 3 Hill, 233 : 7 Hill. 416 ;
Ootterell v. Conklin. 4 Duer, 4ft: Ellis v. Brown. 8
llarh., 3H2; Waterbury v. Sinclair, 26 Barb., 455;
Hi. l|>s v. Vischer.SON. Y.,89; Dan. Neg. Inst.,8eca.
713-713 e.
JOHNS. REP.. 12.
*the consideration, making, and in- [*16O
dorsing thereof ; and the defendant agreed to
take the note at his own risk.
The suit was brought solely for the benefit
of the plaintiff, who never made any demand
on Lawrence Carman & Co., nor gave them
any notice of the non-payment by Ryan. The
jury, under the direction of the court below,
found a verdict for the plaintiff, for the
amount of the note, with interest. The opin-
ion of the court below was excepted to, and a
bill of exceptions tendered nnd signed, on
which the writ of error was brought to this
court.
Mr. P. Ruggle»t for the plaintiff in error,
contended that the plaintiff below, being in-
formed of all the circumstances, as to the
making and indorsement of the note, must
stand precisely on the same ground as Law-
rence Carman & Co., the payees, would have
stood, if the suit had been brought in their
names ; and he insisted that they could not
recover on the note, in a suit brought by them.
(Herrick v. Carman, 10 Johns., 224 ; White v.
Kibby. 11 Johns., 128; 4 T. R., 470; Beck
v. Ilobley. 1 H. Bl., 89. note.)
Mr. J. Tallmadge, contra, insisted that
where an indorsee of a negotiable note takes
it, bona fide, for a full consideration, his
knowledge that the original party paid no con-
sideration for it cannot affect his right to re-
cover. The doctrine contended for by the
other side would put an end to all accommo-
dation notes, as they are called.
Where a person indorses a blank note, it
will bind him for any sum and time which the
indorsee chooses to insert in it. It operates as
a letter of credit for an indefinite sum. (Hits-
sett v. Langstaff, Doug., 514.)
SPENCER, J., delivered the opinion of the
court :
The defendant in error purchased the note
at a discount, and with full knowledge of all
the facts in the case ; his right, therefore, to
recover, cannot be superior or better than that
of L. Carman & Co., from whom he derived
whatever title he had. It does not appear that
the plaintiff in error indorsed the note for the
purpose of giving Ryan credit with L. Carman
& Co.. or that he was in anywise informed of
the use to which Ryan meant to apply the
note. In the absence of any proof to the con-
trary, we must intend that Herrick meant only
to become the second indorser, with all the
rights incident to that situation. The fact of
his indorsing iir>t, in point of time, can have
no influence, *f or he must have known, [*!<$!
and we are to presume he acted upon that
knowledge, that though the first to indorse,
his indorsement would be nugatory, unless
preceded by that of the payees of the note.
Since the case of Riiseellv. Isingttaff, Doug.,
514, it is not to be doubted that the indorse-
ment of a blank note is a letter of credit for
an indefinite sum ; but the present is not that
case. There can be no doubt, here, but that
the note was filled up when it was indorsed by
the plaintiff in error. Had it appeared that
the plaintiff indorsed the note for the purpose
of giving Ryan credit with Lawrence Carman
& Co., then I should have considered him
liable to them, or any subsequent indorser,
341
161
SUPREME COURT, STATE OF NEW YORK.
1815
and the plaintiff's indorsement might have
been converted into a guaranty to pay the
note, if Ryan did not, according to the decision
of the Supreme Judicial Court in Massachu-
setts (3 Mass., 274). Under such a state of
facts, there would be no objection to the
right of the defendant in error to recover as
the indorser of Herrick. In Bisfiop v. Hayward,
4 T R., 470, Lord Kenyou impliedly admits
that there may be circumstances under which
a prior indorser may recover against a subse-
quent one.
We have already decided that the payees of
this note could not, directly or indirectly, re-
cover on it (10 Johns., 224), and that decision
is supported by the case of Bishop v. Hayward.
The defendant in error, having purchased
this note at a discount, and with full knowl-
edge of the facts, has virtually agreed not to
resort to Lawrence Carman & Co. in any
event ; and yet, if he can sustain this suit, he
will, in effect, violate the agreement under
which he became the purchaser of the note ;
because, upon this evidence, Herrick, if
obliged to pay, would have his remedy over
against Lawrence Carman & Co.
The defendant does not stand before the
court with the title or character of a fair, bona
fide indorsee of a note, in the usual course of
trade ; but rather in the light of a speculator,
attempting, under the specious character of an
indorsee, to recover a sum of money, to which
those from whom he derives his title had, with
his full knowledge, no right. It may be
162*] *regarded as .a general rule that when
an indorser cannot recover against a subse-
quent indorser, no person acquiring a title
under such prior indorser, and acquainted
with all the facts, shall be allowed to recover.
Judgment reversed.
S. C.-10 Johns, 224.
Disapproved— 3 Hill, 234 ; 7 Hill, 420.
Cited in— 13 Johns., 177; 17 Johns., 329; 5 Wend.,
22; 8 Wend., 422; 10 Wend.. 518: 17 Wend., 218; 22
Wend., £57 ; 1 Hill, 93 ; 2 Hill, 84 ; 19 N. Y., 229 ; 37
N. Y., 616 ; 50 N. Y., 72 ; 51 N. Y., 325 ; 59 N. Y., 481 ;
1 Keyes, 582 ; 1 Hun, 634 ; 4 Abb. App. Dec., 52 ; 5
Trans. App., 212 ; 3 Barb.. 638 ; 6 Barb., 288 ; 7 Barb.,
206; 10 Barb., 404; 11 Barb., 585; 23 Barb., 542: 26
Barb., 459; 39 Barb., 618; 16 How. Pr.. 335:17 How.
Pr., 388; 2 Abb. Pr., &53; 6 Abb. Pr., 29; 7 Abb, Pr.,
401 ; 2 Abb. N. C., 80 ; 3 Sand., 649 : 4 T. & C., 210 ; 4
E. D. Smith, 667 ; 31 Mich., 154 ; 85 Pa. St., 102.
SANDFORD v. ROOSA.
Sheriff Liable for Proceeds of Sate — Also to
Judgment Creditor for Sale under Execution
on Junior Judgment — Estopped by Deed —
Validity of Sale.
A has four judgments against C, and B has one
judgment against C; two of A's judgments are
older, and two younger than that of B; A issues
executions on all his judgments, under which the
lands of C are seized and advertised for sale, and B
then issues an execution on his judgment ; the land
is sold under the executions of A and purchased by
B, and it is expressly stated in the sheriff's deed tha't
the land was sold under A's executions. The sheriff
paid part of the purchase money to A on account of
his executions, and retained the residue to satisfy
B's execution ; in an action by A against the sheriff,
to recover the residue, it was held that the defend-
ant was precluded, by his deed, from denying that
the sale had been made under the plaintiff's execu-
tions; and that the plaintiff was, under the circum-
342
stances of the case, entitled to recover the balance
of the purchase money.
But it seems that a sale, even of land, on an exe-
cution issued on a junior judgment, would be valid,
and the sheriff thereby renders himself liable to the
party whose execution is postponed.
So, a sale of chattels on a junior execution is
valid, and the only remedy of the party whose exe-
cution was first delivered, is by an action against
the sheriff.
Citations-Garth., 419, 420: 1 Salk., 320 ; 1 Ld.
Raym., 251 ; Stat. 29 Car. II., ch. 3, p. 16.
THIS was an action of assumpsit, brought
against the deputy-sheriff of the County of
Sullivan, to recover certain money which had
been levied by him under an execution issued
by the plaintiff against one Burr.
The cause was tried at the Sullivan Circuit,
in September, 1814, before Mr. Justice Yates,
and a verdict found for the plaintiff, subject to
the opinion of the court on the following case:
The plaintiff had recovered four judgments
against Burr — two in the Court of Common
Pleas of Sullivan County, one for $318.(55, and
the other for $99.24, which were both docket-
ed on the 9th of August, 1813 ; and two in
this court, one for $833.87, docketed on the
2d of September, 1813, and the other for
$491.15, docketed on the 6th of September,
1813 : and one Couch had also obtained a
judgment against Burr, in this court, for $424
debt, and $9 damages, which was docketed on
the 27th of August, 1813.
Writs of fieri facias, in favor of the plaintiff,
on the above judgments, were delivered to the
under-sheriff on the 12th of November, 1813,
who, thereupon, advertised a farm of Burr to
be sold on the 6th of January, 1814, by virtue
of sundry executions. On the same 6th of
January, and before the sale, &fi. fa. issued on
Couch's judgment, and was delivered to the
*under-siieriff . The land was sold for *[ 1 63
$1,275, and purchased by Couch, and a deed lor
the same was executed by the under-sheriff, in
the name of the defendant, in which all the
plaintiff's executions were recited, and stating
that the land had been sold under them, but
taking no notice of Couch's execution. The
amount of the sale was received by the defend-
ant, who paid to the plaintiff's attorney the
amount of the three oldest executions in full,
and $217.63 on the fourth ; and retained in his
hands the balance of the purchase money,
being (beside his fees) $245.77 on account of
Couch's execution, which he refused to pay to
the plaintiff, but paid it to Couch.
Couch was present at the sale, and insisted
that the under-sheriff should sell by virtue of
his execution as well as the others ; but the
under-sheriff said that as he had seized and ad-
vertised the land under the plaintiff's execu-
tions, he could sell only under them, and de-
clared that he should and did sell by virtue of
them only ; and mentioned to the people
present before, and at the time of the sale,
that he had received an execution from Couch
on a judgment older than two of the plaintiff's
judgments, and younger than the other two,
and that he conceived that Couch's judgment
would be a lien or incumbrance on the land
after the sale.
Messrs. P. Rvggles and J. Duer for the
plaintiffs.
Mr. Sudam, contra.
JOHNS. RKP., 12.
1815
M'.MILLAN v. VANDERLFP.
163
SPENCER, «/., delivered the opinion of the
oourt:
The deed executed by the defendant's depu-
ty, and which is as binding upon him as if
executed by himself, conclusively shows that
tin- -ale was made under the plafntiff's execu-
tion-;, and not under Couch's execution. The
deed, then, is an admission of the most solemn
nature, that the defendant raised the money
on the sale of the debtor's land, upon the
plaintiff's executions, and he is concluded from
-controverting that point.
If A and B have two several judgments
against C, and they take out write of fi. fa.,
which are both delivered the same day, and
the sheriff executes that which was last deliv-
ered, by making sale of the debtor's goods.
vifli sale shall stand good ; and the only reme-
dy the one whose execution was first delivered
i<94*] *has, is by action against the sheriff.
This was so held in the case of SinaUcotnb v.
CroM <fe Buckingham, Carth., 419, 420 ; 1 Salk.,
320, and 1 Lord Haym., 251. and this, too,
since the Statute of "29 Car. II.. ch. 8, p. 16.
which enacted that no writ of fi. fa. should
bind the property of goods but from thn time
of the delivery "thereof to the sheriff. That
statute was passed to obviate the injustice, as
respected bvna fide purchasers, of executions
Grinding the property from the texte day of the
writs, and it has always, since, been held that
the goods were bound* from the delivery of the
-execution to the sheriff The case cited, there-
fore, applies ; for if the sheriff, as regards
goods, can make a valid sale on a junior exe-
cution, notwithstanding the precedency of the
senior execution, so he can sell lands which
are bound from the docketing of the judgment
upon an execution issued on a junior judgment,
and render himself liable to the party whose
execution is postponed. It is not, however;
necessary, in this case, to go so far. The
judgment creditor, who had two judgments
•older than two of the plaintiff's, purchased
under all the plaintiff's executions. He agreed
to give for the property $1,275, to be applied
to the plaintiff's executions. This is evident,
not only from the deed itself, but from the
parol proof. The sale did not, in fact, proceed
at all on Couch's execution. To permit the
sheriff to apply part of the money bid to sat-
isfy Couch's execution, would render the situ-
ation of the judgment creditors extremely un-
equal ; for, whilst the plaintiff reposed "him-
self on the fact that the property was selling
•exclusively on his executions, and would,
therefore, have no peculiar inducement to bid
beyond the amount of his own executions,
•Couch mav have, probably, purchased the only
property from which the plaintiff could expect
to have his judgments satisfied, and Couch
may have not only all Burr's property at an
under value, but his execution paid out of the
moneys, really and in fact, bid on the plaintiff's
executions.
In any point of view in which the case can
be placed, I am satisfied that the plaintiff ought
to have judgment.
Judgment for the plaintiff.
Cltod in-18 Johns., 367 : 4 Cow., 4«8 : 21 Wend., 877;
5 liurb., Ml.
JOHNS. KI.IV. 12.
*M'MILLAN AND M'MILLAN [*165
v.
VANDERLIP.
Contrast* — Real Intention of Partie* to be Deter-
mined— Entire Contract — Condition Prece-
dent.
Where A agreed to work for B ten and one half
months, and -pin yarn at three cent* per run ; and
afterwards left the wrvice of B: and brought an
action against him for spinning >HT> runs of yarn, at
three cents |N>r run ; it was held that the contract
of A was entire, and must be performed as a con-
dition precedent, before he could bring1 an actiun
against B, for the price of his labor.
Citations- 1 Suind., 320, note 4 ; 5 Bos. & P., t N.
8.. 61; 2Sauml.,3ii, n.; 1 Roll. Abr., 2», 1. 38; 1 Com.
Dig., Action, F.
IN ERROR, on certiorari from a justice's
court. Vanderlip sued .1. and A. M'Millan,
by summons, before a justice, in an action on
the case. He declared, stating his demand,
September 26, 1812. to be for " spinning 846
runs of yarn, at three pence per run ; for dam-
age for not finding a sizable jenny. $10 ; for
damage for not finding a sufficient instructor,
$10 ; for damage for spinning bad roving, $10;
for damage for time lost, for want of roving,
$5."
The defendant pleaded the general issue, and
there was a trial by jury.
The plaintiff proved that he had worked for
the defendants below eleven or thirteen weeks;
and the witness stated that the plaintiff said he
was to work one year, to spin at three cents
per run ; but should not make wages, the rov-
ing was so bad. Another witness said he un-
derstood from the defendants, that the plaintiff
had agreed to work with the defendants ten
and one half months, at three cents per run ;
and an account was produced, dated Septem-
ber 1, 1812. in which the defendants charged
the plaintiff $3, paid to him ; and credited him
with spinning 845 runs of yarn. One of the
witnesses said he was to have five cents a run,
and his board : and he said he understood,
from all parties, that Vanderlip was to have
three cents per run. and work ten and one half
months. In an additional return, it was stated
by the justice that it was understood by him, .
and he believed by the jury, that the plaintiff
l>elow left the service of the defendants below,
at the date of the account ; though he did not
recollect that it was either proved or ad milted.
The jury found a verdict for the plaintiff be-
low for $22.35, on which the justice gave
judgment.
Jar. Wendell for the plaintiff in error.
Mr. Crary, contra.
SPENCER, J., delivered the opinion [*1OO
of the court :
The question is whether the contract of the
defendant in error isan entire contract, operat-
ing as a condition precedent : and as such,
necessary to be performed before the plaintiffs
NOTE.— Entire contracts,
JfTirre the contract in entire, full performance it
a condition jirecedent in a rerorerj/, Jennings v.
Camp. 13 Johns., »4 : Kotchum v. Everts* >n, 13
Johns.. 359: Thorpe v. White, 13 Johns., S3: Stephens,
v. Board. 4 Wend., «04 ; Langtry v. Parks, 8 Cow.,
«3 ; Champlln v. Rowley. 18 Wend-, 187 ; Marsh v.
Itullson, 1 Wend.. 514 ; Paige v. Utt, 5 Den., 408 ;
343
166
SUPREME COURT, STATE OF NEW YORK.
1815-
in error were liable ; or whether we are to con-
sider the agreement to pay three cents per run
as a distinct agreement, on the one side, and
the promise to work for ten and one half
months, as independent and unconnected with
the rate at which the defendant in error was
to spin the yarn. It has been well observed
by Sergeant Williams, in a note to Pordaye
and Cole, 1 Saund., 320, note 4, that the old
cases proceeded on very subtle and nice dis-
tinctions ; and it might have been added that
some of them were carried to a length that
worked great injustice, and defeated the in-
tentions and understandings of men not versed
in nice and technical rules. To show to what
unreasonable results the courts arrived, I will
barely mention two cases. A agreed to serve
B a year, and B agreed to pay him £10 ; and
it was held A might maintain an action against
B for the money, before any service. Again,
A covenanted with B to marry his daughter ;
and B covenanted to convey an estate to A and
the daughter, in special tail ; though A marry
another woman, or the daughter marries an-
other man, A may maintain an action against
B on the covenant.
The good sense of modern times has ex-
ploded these subtle notions ; and contracts are
now expounded according to the real intention
of the parties ; thus, in Waddington v. Oliver,
5 Bos, & P., 2 N. S., 61, the plaintiff sold the
defendant one hundred bags of hops, at fifty-
six shillings per hundred, to be delivered on or
before 1st January, 1805, as might be agree-
able to the plaintiff. On the 12th of Decem
ber, twelve bags were delivered, and payment
was immediately demanded ; and on refusal
to pay, a suit was brought. The court were
clearly of opinion that the contract was entire,
and could not be spttt, and that the plaintiff
had no right to bring an action until the whole
quantity was delivered, or until the time for
delivery of the whole had arrived. The 3d
note of Sergeant Williams to 2d Saund., 352,
furnishes a variety of cases, showing the
grounds on which the latter cases have placed
the dependency or independency of contracts.
There are many distinctions, not necessary
167*] now to be noticed ; but the *object of
them is to promote substantial justice, by as-
certaining the intention of the parties, and
carrying them into effect, without a literal
adherence to words, or the order of sentences.
It is evident to my mind that the parties be-
fore us intended that Vanderlip should serve
the M'Millans for ten and one half months,
and that he should be paid three cents for each
run of yarn spun by him ; and that they in-
tended this as one entire contract. The
M'Millans could not mean to have paid by the
run ; and to subject themselves to a suit, tottes-
quoties. We have a right to infer from the
plaintiff's declaration in the court below, as
well as from the fact that one of the witnesses
was to have five cents a run, that Vanderlip-
was a novitiate in spinning ; and consequent-
ly, that he would be more profitable to his
employers in the latter part of the term. If
the contract was entire, and looked as well to-
the price per run, as to the time of service, it.
necessarily formed a condition precedent ; and
then, Vanderlip could not sue until he had per-
formed his contract of service, or until the
period within which it was to be performed
had elapsed.
The latter qualification is drawn from the
case of Waddington v. Oliver, though, I con-
fess, I do not perceive the grounds on which
it rests. It appears to me that the construc-
tion I have put on this contract is not only
warranted by the agreement itself, but that it
is a very useful and salutary one. The general
practice, in hiring laborers or artisans, is, for
six or twelve months, at so much per month ;
the farmer hires a man for six or twelve
months, at monthly wages ; and he takes his
chance of the good, with the bad months. It
is well known that the labor of a man, during
the summer months, is worth double the labor
of the same man in winter ; but upon the prinr
ciples contended for by the defendant's coun-
sel, if the farmer hires in the autumn, for
twelve months, at monthly wages, the laborer
may quit his employ on the 1st of May, and
sue for his wages, and recover them ; leaving
the farmer the poor resort of a suit for dam-
ages. The rule contended for holds out temp-
tations to men to violate their contracts. The
stipulation of monthly pay, or, in this case,
pay by the run, does not disjoin the contract ::
it is adopted as the means only of ascertaining
the compensation, and does not render it less-
entire. The case from 1 Roll. Abr., 29, 1, 36,
is a very bald case ; and the case *de- [*168-
cided by Hale, at Norfolk, in 1662 (1 Com.
Dig. Action. F), is a very unreasonable decis-
ion. The contract wns to deliver so much corn
before Michaelmas, for so much the coomb ;.
and a part only was delivered ; and he ruled
that assumpsit lay for so much, after Michael-
mas ; for though the agreement was entire,
the several delivery makes several contracts.
When part of the corn was delivered, towards
the fulfillment of an entire contract, and for
the convenience of the party delivering, it is
extraordinary that such delivery should have
annulled the contract ; but it did not ; for the
case adds : "and the defendant has a remedy
for the residue." This could not be, unless
the.contract remained unaffected by the several
McKnight v. Dunlop, 4 Barb., 36 ; Pratt v. Gulick,
13 Barb., 297 ; Sickles v. Patterson, 14 Wend., 257 ;
White v. Hewit, 1 E. D. Smith, 395 : Baker v. Hig-
srina,21 N. Y., 397 : Cunningham v. Jones, 20 N. Y.,
486 ; Smith v. Brady, 17 N. Y., 173 ; Bonesteel v. The
Mayor, &c., of N. Y., 22 N. Y., 162; Tompkins v.
Dudley, 25 N. Y., 272: Reab v. Moor. 19 Johns., 337 ;
Kettle v. Harvey, 21 Vt., 301 , Whitley v. Murray, 34
Ala., 155 ; Angle v. Hanna., 22 III., 429 ; Olmstead v.
Beale, 19 Pick., 528; Aaron v. Moore, 34 Mo., 79;
Miner v. Bradley, 22 Pick., 457.
Where the part to be performed con#i.s£s of several
distinct partx, and the amount to be paid for each is
fixed, in general, the contract is held severable. and
an entire performance is not a condition precedent
844
to a recovery for one or more parts. 'Sickles v.
Patterson, 14 Wend., 257; McKnight v. Dunlop, 4
Barb., 36 : Snook v. Fries, 19 Barn., 313 ; Robinson v.
Snyder, 25 Pa. St., 203 : Mayor v. Payne, 3 Bing.,
285 ; Withers v. Reynolds, 2 Barn. & Aid., 882 : John-
son v. Johnson, 3 B. & P., 162; Perkins v. Hart, 11
Wheat., 237.
Wliere one is employed for a certain time, for a cer-
tain amount for the whole time, and is wrongfully
discharged, he may recover the whole amount..
Costigan v. M. & H. Ry. Co., 2 Den., 60!) ; King v.
Steiren, 44 Pa. St., 99 ; Wnlworth v. Pool, 9 Ark.,
394 ; Webster v. Wade, 19Cal.,291 ; Sherman v. Cham-
plain Trans. Co., 31 Vt., 162; See generally, 2 Pars-
Cont., 517, 34.
JOHNS. REP., 12_
1915
M'MILLAN v. VANDERMP.
168
delivery. These are cases decided before the
courts adopted the true method of considering
contracts, in relation to their dependency or
independency.
The entry in the plaintiff's books proves
nothing ; for, certainly, they were to keep an
account of the quantity spun ; and if, for the
defendant's accommodation, they were willing
to advance cash to him, that did not vary the
contract, or show that they considered them-
JOHNS. REP.. 12.
selves liable to pay before the end of the term.
Judgment reverted.
Dtetinguiflbed— Abb. A. 1m.. 183.
Cited in— 13 Johns., 63, 96, 382 ; 19 Johns., 343; »
Cow.. 63; 4 Wend., 806: 13 Wrnd.. 2flO ; IB \VYnd.. 638;
5 Dcnio, 408 : 3 Johns. Ch., 179 ; 4 Paige. 566 ; 10 N.
Y.. 297 ; 17 N. V., 185 ; 30 N. Y., 300, 43». 4*7 : 3 Keyos,
653; 2 Abb. App. Doc., 444: 4 Rurb.. 44 : 24 Rarb.. 175;
41 Harb.. 545; 37 How. Pr.. 467; 4 Abb., 434; 2 Sweeny.
271 ; 2 E. L>. Smith. 192. U7:»: 3 E. D. Smith, 656; Abb.
Adm., 178, 182 ; Olcott, 390.
345
[END OF JANUARY TERM, 1815.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF' JUDICATURE
STATE OF NEW YORK,
IN
MAY TERM, 1815, IN THE THIRTY-NINTH YEAR OF OUR INDEPENDENCE,
1O9*] *JACKSON, ex dera. HICKS ET ux.,
VAN ZANDT.
Ejectment. 1. Fee Simple and Fee Absolute,
Synonymous. 2. Statute of' 1782 to Abolish
Entails, Operated Prospectively — Where Stat-
utes are Obscure, Intention of Legislature to be
Resorted to. 3. Escheat.
The Act of the Legislature of the 12th July, 1782,
seas, 6, ch, 2, to Abolish Entails, &c., operated pro-
*peetively, and where H., who died in 1784, devised
his estate to M. and the heirs of her body lawfully
begotten, and for default of such heirs, to S. and
the heirs of his body, &c., for want of such heirs, to
P. and the heirs of his body, &c.; it was held that the
estate tail so devised to M. was, by that Statute con-
verted into an estate in fee simple ; and she being
illegitimate, and d3ring without issue, the estate es-
cheated to the people.
Citations— 2 Cranch, 386 : 6 Bac. Abr., 384 ; Act
July 12, 1782; Act February 23, 1786; Act April 21,
1787.
was an action of ejectment for a farm
JL in Flushing, Queen's County. The cause
was tried at the Circuit in Queens, before Mr.
Justice Van Ness, the 15th June, 1814 ; and a
verdict was taken for the plaintiff, subject to
the opinion of the court on a case, with
liberty to either party to turn the same into a
special verdict.
Thomas Hicks, of Flushing, being seised of
the premises in question, on the 19th June,
1782, made his will, by which he devised all
his lands and real estate, including the prem-
ises in question, to his sister, Mary Hicks, and
to the heirs of her body, lawfully begotten, or
to be begotten; and for want or default of such
issue, then he gave and devised all his said
lands and real estate to Stephen Hicks, and to
the heirs of his body lawfully to be begotten ;
and for want or default of such issue, then he
gave and devised the same lands and real estate
to Richard Penn Hicks, son of his cousin, Will-
17O*] iam Hicks, of *Pennsylvania, and the
heirs of his body, lawfully begotten ; and for
want or in default of such issue, he devised the
-same estate to the right heirs of the said Rich-
ard Penn Hicks. Stephen Hicks was the hus-
band of Mary Hicks, the testator's sister. The
testator died seised, the 1st January, 1774. On
his death, Mary Hicks, his sister, who was an
346
illegitimate child, entered on the premises
under the will, and took possession, and on
the 22d of March, 1784, died without issue, in-
testate, and without having made any convey-
ance or disposition of the premises. Upon her
death, her husband, Stephen Hicks, took pos-
session of the premises, and continued
possessed thereof until his death. He died the
2d December, 1786, without issue, having on
the 12th of November, 1786, made his will,
and devised all his real estate, &c., to his niece
Mary Hicks, who was born the 24th October,
1784, and afterwards married Jeffry Hicks;
and she and her husband are the lessors of the
plaintiff.
On the 12th July, 1782, the Legislature passed
an Act (sess. 6, ch. 2), entitled " An Act to
Abolish Entails, to Confirm Conveyances by
Tenants in Tail, to Distribute Estates Real of
Intestates, to Remedy Defective Conveyances
to Joint Tenants, and directing the Mode of
such Conveyances in future ;" by which it
was enacted : "that in all cases wherein any
person or persons would, if this law had not
been made, have been seised in fee tail of any
lands, tenements, or hereditaments, such per-
son or persons shall, in future, be deemed to
be seised of the same in fee simple ; and fur
ther, that where any lands, tenements, or her-
editaments shall heretofore have been devised,
granted, or otherwise conveyed by a tenant in
tail, and the person to whom such devise,
grant, or other conveyance shall have been
made, his, her or their heirs or assigns shall,
from the time such grant or other conveyance
was made to the day of the passing this Act, have
been in in the uninterrupted possession of such
lands, tenements or hereditaments, and claim-
ing and holding the same under devise, grant
or other conveyance, shall be deemed as good,
legal and effectual, to all intents and purposes,
as if such tenant in tail had, at the time of
making such devise, grant or other Convey-
ance, been seised of such lands, tenements, or
hereditaments, in fee simple ; any law to the
contrary hereof notwithstanding."
On the 23d February, 1786, s'ess. 9, ch. 12 ; 1
Gr. L. N. Y., 205, an Act was passed, entitled
" An Act to Abolish Entails, to Confirm Con-
veyances by Tenants in Tail, *to regu- [*1 7 1
late Descents, and to Direct the Mode of Con-
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. VAN ZANDT.
171
veyance to Joint Tenants ;" by which it was
enacted as follows : " That all estates tail shall
be and are hereby abolished ; and that in all
cases where any person or persons now is, or
are, or if the Act hereinafter mentioned and
repealed had not been passed, would now be
seised in tail, of any lands, &c., shall bedeemed
seised in fee simple absolute ;" and " that in
all cases where any person or persons would,
if the said Act and this present Act had not
been passed, or at any time hereafter shall be-
come seised in fee tail, of any lands, «fcc., by
virtue of any devise, &c., heretofore made, or
hen-after to be made. &c., such person or
persons, instead of becoming seised thereof in
fee tail, shall be deemed and adjudged to be
•etood thereof in fee simple absolute ;" and by
the seventh section of this Act, the former Act
of July 12, 1782, is repealed ; but all descents,
Ac., since the passing the Act repealed, are to
take effect according to the Act so repealed.
On the 21st April. 1787, the Legislature
passed an Act, entitled " An Act to Vest all
ihe Right and Claim of the People of this
State to the Lands and Tenements whereof
Thomas Hicks died seised, in the persons
therein named." The preamble to the Act.
aifter reciting the seisin of the testator, and
his will, stated ; " that whereas, it was repre-
sented to the Legislature, that, on the death
of Thomas Hicks, the said Mary Hicks be-
came seised of the lands and tenements of the
testator by virtue of the said devise, but died
without issue ; that upon her death the said
Stephen Hicks entered upon the saiftc, and
also died without issue ; by means whereof,
according to the will and intention of the tes-
tator, the lands, &c., would have vested in the
said Richard Penn Hicks, in fee tail general,
but by the operation of the late laws of this
State for abolishing entails, the estate in fee
tail general devised to the said Mary Hicks
was converted into a fee simple, and that she
having been born out of lawful wedlock, can
have no heirs, whereby the said lauds, &c. ,
might escheat to the people of the State. And
it being further represented that the said Rich-
ard Penn Hicks is an orphan, and destitute of
Any support but what is so provided by the
said testator, and the Legislature conceiving
it just and reasonable that the estate vested in
the people of this State, by the means afore-
said, should descend according to his intention
expressed in the said will, as far as is consist-
ent with the above-mentioned laws; it is there-
17 2*] fore, enacted, «fec.: " That it shall *and
may be lawful for the said Richard Penn
Hicks, his heirs and assigns, to enter into,
have, hold and enjoy, for his and their own
proper use, in fee simple, forever, all and sing-
ular the said lands," &c., "not withstanding any
right or claimwhich the people of this State may
or can have or make to the same by reason o'f
the escheat thereof, and although no office has
been found respecting the same," «fec. ; " pro-
vided that nothing in this Act contained shall
be construed toaffect or injure any right, title,
interest, or intestate, in and to the said lands,
•&C., which any person or persons whomsoever
would or might have claim, challenge or de-
mand, if this Act had not been passed •. but
such estate only as the people of this State
might lawfully claim, by the means aforesaid,
JOHNS. RKP., 12.
; shall vest immediately in the persons, &c. Im-
! mediately after the passing of this Act, Rieh-
i ard Penn Hicks entered into possession of the
; premises, and continued in possession until his
death, having, on the 14th January, 1791, a
short time before his decease, devised the
' premises in question to Jacob Johnson Hicks,
! his brother, in fee simple ; who entered into
I possession thereof; and in 1792. by his will,
i empowered his executor to sol I his real estate,
who, in 1796, after the death of the said J. J.
I Hicks, sold the lands. &c., for $8.000 : and
i the same premises, by sundry me*ne convey-
j ances, were conveyed to the defendant for
| $25,000.
J/r. Antfton, for the plaintiff, contended that
I Mary Hicks, the first devisee, took either a
j fee simple absolute, or a conditional fee, by
| virtue of the Statute of 1782; and that in eithe'r
| case the title was in the lessors of the plaintiff.
The Statute of 1782 (Sess. 6. ch. 2) converted
all estates tail into estates in fee simple: and
the Act of 23d February, 1786. sess. 9, ch. 12; 1
Gr. L. N. Y., 205, declares that all persons
seised in fee tail shall lie adjudged to l>ecome
seised "in fee simple absolute." The first stat-
ute abolishing estates tail restored estates as
they existed before the English Statute tit do-
nix cnnditionalibua (West., 2; ISEdw. I., ch. 1);
and such estates became conditional fees, al
the common law; if Mary Hicks, the first de-
I visee, had had issue, the estate would have
l become a fee simple absolute, but as she died
; without issue, the land became vested in Stc
phen Hicks, the next devisee, as a fee condi-
tional at common law; and while he was pos-
sessed of such conditional fee, the Act of the
23d of February, 1786, converted it into a fee
simple absolute, and while seised of such es-
tate, he devised it to Mary, the wife of the
lessor.
*The question is, what was the op- [* 173
eration and effect of the Statute of 1782 on
estates tail. We say it convened them into
conditional fees; and that was the reason why,
in the Act of 1786, the word "absolute" was
added to the words "fee simple." If this con-
struction of that Act is correct, than the land
never escheated to the people, and the private
Act of 1787 could have no effect on the title of
the lessors of the plaintiff. The Act of 1 TN'J
operated only on estates then in existence, and
not prospectively; but the Act of 1786 is diff-
erent. It declares that all persons who are,
or, if the Act of 1782 had not Iwen passed,
would be, seised in fee tail, shall be deemed
to be seised in fee simple absolute. If, after
1782, Stephen Hicks was seised of a fee simple
absolute, the Act of 1786 prevented any es-
cheat, and the claim of the defendant must
fail.
Mtwrrs. Sbuwtn. and Hoffman, contra. The
special Act of 1787 was manifestlv passed witli
a view to vest the estate in Richard Penn Hicks,
according to the intent of the devisor; and so
far as principles of equity are to have influ-
ence, the court will be disposed to carry the
Act of the Legislature into effect, as accord-
ing with the intent of the devisor.
While the Act of 1782 was in force, Thomas
Hicks, the devisor died; and it is snid, that
as that Act was not prospective, and he died
after it was passed, Marv, the first devisee.
847
173
SUPREME COURT, STATE OF NEW YORK.
1815
took an estate tail, which, by the Act of 1786,
was converted into a fee simple absolute. In
construing statutes, the court will endeavor
to give every part effect, according to the in-
tent of the Legislature. Verba i(a sunt inteUi-
genda ut res magis rxilent quam pereat. The
words of the Act are all prospective, and ap-
ply to all cases which should thereafter
arise.
The intent of the Legislature is. as expressed
in the title of the Act, to abolish estates tail;
and if there were any doubt of that intent, the
title of the Act might be taken in aid of the
construction. It would be a very rigid con-
struction to say that the Act was not prospect-
ive. The court will feel more disposed to con-
sider it as wholly prospective, rather than retro-
spective, or as taking any existing rights.
But it is said that the expression of the Act
of 1786, fee simple absolute, is different from
the Act of 1782, from which it is inferred that
the estates tail were, after the Act of 1782,
considered as fees conditional. It is true that
1 74*] before the Statute de *donis, where
there was a conveyance or devise to a man and
the heirs of his body, if he had heirs, the
condition was performed, and the estate be-
came absolute, or if he had. no heirs, it re-
verted to the donor.
The Act of 1782 uses the words "fee sim-
ple." Coke (Co. Litt., 1) says a fee simple is
where a man has lands, &c., to hold to him
and his heirs forever. The word "fee" denotes
an estate of inheritance, and the word "simp-
le" added to it denotes it to be an estate abso-
lute and general, and as contradistinguished
from a fee conditional, or fee tail. The words
in both acts mean precisely the same thing.
Then Mary, the first devisee, being, by ef-
fect of the Act of 1782, seised of a fee simple,
or fee simple absolute and dying without
heirs, the estate escheated. Where a person
dies without heirs, the estate, on the principle
of the feudal law, reverts to the sovereign or
people, as the ultimus fuere*. The estate, in
such case, becomes vested in the people, with-
out an inquest of office. (People v. Brown, 1
Caines, 416-424; Jackson v. Stanley, 10 Johns.,
133-138.)
There were other and sufficient reasons for
repealing the Act of 1782 besides the one
which has been mentioned. By the 7th sec-
tion of the Act 1786, repealing the former Act,
it is provided "that all descents and convey-
ances, which have happened or been made since
the passing of the said Act, thereby repealed,
shall take effect according to the said Act."
So that the Legislature clearly intended to pre-
serve entire the effect and operation of the Act
of 1782. The devise of Thomas Hicks, which
took effect subsequent to the passing of the
Act of 1782, was a conveyance. Every trans-
fer of property, by the Act of the party, is a
conveyance, or purchase. On the death of
Hicks, the Statute of 1782 operated on the es-
tate tail; converted it into an estate in fee sim-
ple; and by the law of escheat, that estate was
vested in or conveyed to the people for want
of heirs.
It is not to be presumed that the Legislature,
by the Act of 1786, meant to part with any
right or estate in them. That is not to be taken
by implication or inference. There must
318
be clear and express words to warrant such a
conclusion.
Mr. T. A. Emmet, in reply. By the Act of
1787, the Legislature expressly guard against,
any imposition, and convey only such right
as may have vested in the State by escheat, re-
serving all rights existing in others. The Act
of 1786 was not passed to alter *or [*17S
amend that of 1782, but to repeal it. The law
maxim, as to the construction of statutes, is
not applicable to a repealed Act, for it was no
doubt repealed for its imperfection and insuffi-
ciency. There is an obvious difference in the
language of the two Statutes. The one acts
only on existing estates tail, and the other
operates prospectively on all future estates. It
was because the Act of 1782 did not act pros-
pectively, that the Act of 1786 was passed.
We admit that the Legislature may have in-
tended, by the Act of 1782, to abolish all es-
tates tail, future as well as present; but not
having used proper language to show that in-
tent, it became necessary to pass another Act
for the purpose. The last Act seems to have
been passed to meet the very case of the devis-
or; for if the law of 1782 had not been passed,
he would have been seised in fee tail.
The 7th section of the Act of 1786, repealing
that of 1782. provides that "all descents and
conveyances which have happened, or been
made, since the passing of the said Act, here-
by repealed, shall take effect according to the
said Act." It does not say all escheats shall
take effect. The rights of the citizens are saved
and pftserved, but the rights of the people, a^
to escheats, are not saved.
THOMPSON, Ch. J., delivered the opinion of
the court (SPENCER, J., dissenting):
The grounds upon which the plaintiff's coun-
sel rested their argument, to show that the
Act of 1782 did not reach their case, were:
1st. That the Act did not operate prospect-
ively.
2d. That it did not give to the tenant in
tail a fee simple absolute, but only operated
as a repeal to the Statute de doriis, leaving the
estate a conditional fee, as at common law.
With respect to the first objection; it is true
that the Act is not drawn with skill and accur-
acy; and according to strict grammatical
construction, may be liable to the criticism
made by the plaintiff's counsel. But the sense
and meaning of the Act, and the intention of
the Legislature, cannot be mistaken. It is a
well established principle in the exposition of
statutes, that every part is to be considered,
and the intention of the Legislature to be ex-
tracted from the whole; and when great incon-
venience will result from a particular construc-
tion, that construction is to be avoided, unless
the meaning of the Legislature be plain. (2
Cranch, 386.)
*It is a first principle in legislation [*17<>
that all laws are to operate prospectively.
And it appears to me that it would be doing
great violence to the intention of the Legislature
to limit this Act to estates tail then existing.
This would be. comparatively, doing nothing.
It would be obviously against the general
scope and object of the Statute, which was to
abolish entails. It is a settled rule of con-
struction, that when the words of a statute are
JOHNS. REP., 12.
1815
VAN VETCHEN v. PADDOCK.
176
obscure or doubtful, the intention of the
Legislature is to be resorted to in order to find
out the meaning of the words. This intention
is sometimes to be collected from the cause or
necessity of making the Statute. And when-
ever the intention can be discovered, it ought to
be followed, with reason and discretion, in the
construction, although it seems contrary to the
letter of the Statute. (0 Bac. Abr., 884.) If
this be a sound rule of interpretation, and of
which there can be no doubt, it must apply
with great force to the case before us. And.
indeed, the intention of the Legislature is so
obvious that it was not pretended to be denied
by the plaintiff's counsel in the argument.
The Act of 1787, by which the premises in
question are given to Richard Penn Hicks, is a
strong legislative construction of the Act of
1782. For it was obviously made for the ex-
press purpose of carrying into effect the will
of Thomas Hicks, according to the intention
of the testator. It alleges, by way of recital,
that, were it not for the late Acts abolishing
entails, Richard Penn Hicks would have be-
come seised in fee tail general of the premises
in question. But by such law the estate in fee
tail general, devised to Mary Hicks, was con-
verted into a fee simple, and she, having been
born out of lawful wedlock, could have no
heirs, by means whereof the lands escheated
to the people. It is no answer to this argu-
ment that this is a private Act, and the sug-
gestion made by the party. This is true where
the suggestions are matters of fact, but that is
not the case here. There was an allegdl con-
struction of a public act, and which the Legis-
lature were bound to look to and adopt or re-
ject, as, in their judgment, the Act would
warrant. And if the Act of 1782 did not ex-
tend to this case, most certainly the Act of
1787 ought not to have been passed. In my
opinion, therefore, the Act of 1782 must have
a prospective operation, and apply to the will
in question.
Nor is the other ground of argument, in my
judgment, better founded. This seems to
1 77*] have been suggested by the 'difference
in the phraseology between the Acts of 1782
and 1786. By the former, the estate in fee
tail is converted into a fee simple, and by the
latter, into a fee simple absolute. This dif-
ference, however, does not extend throughout
the Act, for, in the second section of the Act
of 1786 the term fee simple is used in the same
sense with fee simple absolute in the first sec-
tion. But if it were not so, it would make no
difference in the construction of the two i
statutes. The terms "fee simple" and "fee
simple absolute " have one and the same mean-
ing. Littleton (sec. 1) says a tenant in fee
simple is he who hath lands or tenements to
hold to him and his heirs forever ; and it is
called fee simple, or feoilum simplex, because
it signifies a lawful and pure inheritace. Coke,
in his Commentary, adopts the same definition,
and says, that "simple" is added to" "fee"
for the purpose of showing that it is descend-
ible to the heirs generally, without restraint to
the heirs of the body, or the like. And he uses
the terms "simple "and "absolute" assynony-
mous, when subjoined to fee. Thus, says he,
the more apt division of a fee is into fee simple
or absolute, conditional, and qualified or base.
)'»HN>. REP., 12.
For the word "simple" properly excludeth
both conditions and limitations that defeat or
abridge the fee. It would be a very strained
construction of the Act of 1782. to say it only
converted fee tails into conditional fees, as at
common law. The result of the opinion of
the court accordingly is. that the Act of 1782
operated prospectively, and of course extended
to the will of Thomas Hicks ; that the fee tail
general, devised to his sister, Mary Hicks,
was by the Statute converted into an estate in
fee simple. And if so, it is not denied but
that the defendant has shown a good title to
the premises in question, and is entitled to
judgment.
SPENCER. «/., dissented.
Judgment for the defendant.
Cited ln-2Denio, 24; 57N.Y., 437, 477; 1 Barb..
575: 58 How. Pr.. 228.
*J. VAN VECHTEN
e.
PADDOCK, Sheriff, &c.
[*178
1. Proces* — Not to Issue or be Served on Sun
day — Escape of Prisoner — Voluntary Return.
2. Commencement of nuit.
Process can neither be executed nor issued on a
Sunday. And where a prisoner on execution, ad-
mitted to the liberties or the jail, went beyond the
liberties on a Sunday, and the plaintiff, before he
returned, on the same day, filled up a capias against
the sheriff for the escape, and delivered it to the
coroner, this was held not to be such a commence-
ment or a suit against the sheriff as would pre-
vent his pleading: a voluntary return before suit
brought. .
Citations— 2 N. R. L.. 194 a: 9 Coke, 68; Stat, 29
Car. I.; W. Jones, 126 : 3 Burr, 1600 ; 3 East, 156 ; 3
Johns. Cas., 146; 1 Cai., 71.
TIKIS was an action of debt, for the escape
1 of Isaac Rathbun, from the jail of liber-
ties of the County of Jefferson, of which the
defendant was sheriff. The declaration was
in the usual form. The defendant pleaded
ni1 debet, and subjoined to his plea a notice
that he should give in evidence, at the trial, in
bar of the action, a voluntary return of the
prisoner within the liberties and custody of
the sheriff, before the suit was brought, which
notice was verified by an affidavit of the truth
of the facts stated in it. It appeared that
Ratbbun escaped and went beyond the liberties
on Sunday, the 19th of September, 1812, and
went to Sac kett's Harbor, and on the same day,
while Rathbun was at that place, and without
the liberties, a capias was made out and de-
livered to a coroner of the county, to be served,
before he returned into the liberties, which he,
afterwards, did on the same day, before the
capias was actually served on the defendant,
and before midnight.
It was agreed that if the court should be of
opinion that the plaintiff was entitled to re-
cover, a judgment should be entered for
$939.28, with a stay of execution for the usual
time, for the defendant to collect the amount
from t In- >i1n-t it-. ; but if the court should be
NOTE.— Commencement of guit— Time of— For a
dill discussion, see note to Lowery v. Lawrence, 1
Cai., 69.
349
178
SUPREME COURT, STATE OF NEW YORK.
1815
of the opinion that the plaintiff was not en-
titled to recover, then a judgment of nonsuit
should be entered.
Mr. A. Van Vechten, for the plaintiff. Was
the delivery of the writ to the coroner on Sun-
day a valid commencement of a suit against the
defendant, so as to make him liable for the
escape ? The prohibition of judicial proceed-
ings on a Sunday is adopted from the canon
law, from which it was adopted by the English
Parliament. Anciently, or before the canon,
all days, for the administration of justice,
were regarded alike. (3 Burr., 1598, 1601 ; 3
Bl. Com., 275-278; Spelman, Orig. of Terms.)
But ihe prohibition extends to judicial acts
only ; not to such as are purely ministerial.
Lord Coke makes this distinction, and gives
the reason, in Mackally's case, 9 Coke, 66,
"that no judicial act ought to be done
on Sunday, but ministerial acts may be
17i>*J lawfully *executed on Sunday ; for
otherwise, peradventure, they can never be
executed ; and God permits things of necessity
to be done on that day." This doctrine is also
recognized in Wait v. The Hundred of Stoke,
Cro. Car., 496. Until the Statute of the 29 Car.
II., ch., 7, sec. 6, arrests on a Sunday were
valid. In regard to process, the issuing the
writ is the only judicial act ; and that has re-
lation to the teste of the writ, which is a day
in term. (Becloe v. Alpe, Sir Win. Jones, 156.)
The Act for Suppressing Immorality (sess.
36, ch. 24, sec, 5; 2 N. R. L., 195) prohibits
only the serving of process on Sunday. It is
silent as to the delivery of it to the ministerial
officers.
If the court do not allow the issuing the
writ or commencement of the action on Sun-
day, in such cases, then these bonds, and the
law, as to escapes, will be suspended on Sun-
days, and debtors may freely go and return
from prison or the liberties on those days.
There is no justice or reason in the objec-
tion. The party says : " It is true I have vio-
lated my legal, moral and religious obliga-
tions ; but, as you delivered your writ on
Suuday, you are without remedy, and I shall
escape with impunity."
Messrs. Sterling, and N. Williams, contra. It
is true that the issuing the writ is the com-
mencement of the action. (3 Johns., 42.) The
texte of a writ on Sunday is void ; and the act
of tilling it up and delivering it to the coroner
must be equally void. The 5th section of the
Act for Suppressing Immorality declares ' ' that
no person, upon Sunday, shall serve or execute,
or cause to be served or executed, any writ,
process, warrant, order, &c., except in cases of
treason, felony, and breach of the peace ; but
that the service thereof is void." This is taken
from the 6th section of the 29 Car. II., ch. 7,
and, in the construction of that Act, it has been
hoiden, that not only the arrest, but the whole
proceeding is void, so as to subject the party
arresting, to an action for false imprisonment.
(I Salk., 73 ; 3 East, 155.) The Act ought to
have a liberal construction, to effectuate the
intent of the Legislature. Process means pro-
ceeding ; and in Taylor's case, 12 Mod., 667,
it was held that a declaration in *eJectment
could not be served on Sunday; for it is a proc-
ess, though not a judicial one. So, service of
a notice of a plea filed on Sunday, was held to
350
be void ; and Lord Ellen borough said : " All
notices on which rules are made are process,
*in respect to the subject matter, [*18O
though not with respect to the writ." (Ifob-
erts v. Monkhouse, 8 East, 547.)
Again, the issuing of process on Sunday is
void by the common law. Sunday is no day
in law. Dies dominicus non est juridicus. (Noy's
Maxims, 1, 2 ; 1 Inst., 136 ; 2 Inst., 264.) In
Hoyle y. C'ornwallis (1 Str., 387), the distinction
taken in Mackally's case, between judicial and
ministerial acts, was overruled.
A coroner is not obliged to receive a writ on
a Sunday. It would be inconsistent to say that
a writ may be issued on Sunday, when the
clerk is not bound to issue nor the officer to
receive it on that day. It would be against all
the principles on which the Act of the Legis-
lature is founded, to suppose the office of the
clerk to be open on Sunday, for issuing of
writs, and the sheriff's office open for receiving
them.
Mr. Van Vechten. in reply. The issuing of
the writ, being a judicial act, must have refer-
ence to its teste, which is a day in term. The
filling it up is an act of the clerk. The case of
Hoyle v. Cormcallis is not analogous. The
time of serving a declaration is immaterial. It
may as well be on one day as another, and the
party is not prejudiced by a delay ; and its
service is tantamount to the service of a writ.
In the present case, the delivery of the process
to the coroner on a Sunday is a necessary act ;
for if it is not delivered on that day, it would,
in effect, be useless and inoperative. To say
that the coroner is not bound to receive a writ
on a Sunday, is begging the question.
THOMPSON, Ch. </.. delivered the opinion of
the court :
The only question in this case is, whether
this suit was duly and legally commenced, so
as to preclude the sheriff from pleading a vol-
untary return. The Statute (2 N. R. L., 194),
prohibiting the service of process on Sunday,
does not, literally extend to this case. Nor
was it necessary that it should ; for, according
to my understanding of the law on the subject,
no process can be legally issued on Sunday.
The same principles of policy, as well as of
religion and morality, would interdict the issu-
ing as well as the service of process on Sunday.
And had not the common law made it illegal,
it is most likely that the Statute would have
also extended to this ease. It is a maxim of
the law that Sunday is dies non juridicus. And
usage, *and the history of the law, show [*181
that courts cannot sit on Sunday. In Mackally's
case, 9 Coke, 68, a distinction was taken be-
tween judicial and ministerial acts. The
former, it was said, could not, though the
latter might be performed on Sunday. This
case, however, was decided before the Statute
29 Car. I., which made void the service of
process on Sunday. In Becloe v. Alpe, Sir
William Jones, 126, it was said by the court
that Sunday was not a dies juridicus for the
awarding of any judicial process, nor for
entering any judgment of record. And the
awarding of process, and the giving of judg-
ment, are judicial acts, and therefore cannot
be supposed to be done but whilst the court is
actually sitting. (3 Burr., 1600.) Hence it is
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. McLEOD.
181
that a writ tested on Sunday is considered void.
In the case of Taylor & Philip*, 3 East, 15tt,
Lord Ellenborough said the Statute 29 Car. I.,
was founded on public policy, and the regu-
larity or irregularity of the proceedings con-
trary to it, could not depend on the assent of
the party, or be waived by him. And if
considerations of policy are to be taken into
view, they will apply with equal force to the
issuing of process. For this may, and, indeed,
in judgment of law must necessarily impose
upon the officers of the court the duty of keep-
ing their offices open on Sunday. The clerk,
if called upon, would be bound to issue the
process, and the coroner bound to receive it.
For if it is the right of the party to issue pro-
cess, it Is the duty of the officers of the court
to lend him their aid, if necessary. If it de-
pends on the will and pleasureof these officers
whether they will lend theiraid or not, parties
may not be placed on the same footing with
respect to their remedy against a sheriff in
cases like this. Although it has been repeat-
edlv said by this court that the issuing of the
writ is, to every material purpose, the com-
mencement of a suit (3 Johns. Cas. , 146 ; 1
Caines, 71), yet this must be understood as ap-
plicable to cases where the writ might In-
executed, or some efficient act done under it,
which could not have been done here, as it is
not pretended that it could have been served on
Sunday. The court, are, therefore, of opinion
that there was not such a commencement of a
suit against the sheriff as to deprive him of the
defense set up of a voluntary returff of the
prisoner.
A judgment of nonsuit must be entered, accord-
tug to the stipulation in the case.
Cited Jn-17 Johns,, 86 : 8 Cow., 28 ; 1 Wend., 43 ; 1
Denio, 200.
182*] *JACKSON. ex dem. ANDERSON
ET Al...
t».
McLEOD.
landlord and Tenant — Holding over — Notice to
Quit Unnecessary — Tenant cannot Question
Landlord's Title.
Where A agrees to hire a lot of land of B for a year,
for $100, and he enU'rs and holds over the year, he
is a tenant at sufferance, and not entitled to notice
to quit. And In an action of ejectment against him,
be will not be allowed to question the title of It. or
to act up that of another.
THIS was an action of ejectment for a lot of
land in Newburgh, and was tried at the
Orange Circuit, in August, 1814. The prem-
ises were purchased by the lessors, at a sheriff's
sale, and the deed of the sheriff to them, dated
the 1st of January, 1810, was produced, as well
as the execution, under which the sale was
made. A witness testified that on the 1st of
.May, 1810, Anderson and the defendant in-
formed him that the defendant had hired the
premises in question from A. for one year for
the sum of $100. The defendant desired secur-
es OTK.— Landlord ami Tenant.
The tenant cannot uuaiMon hit lessor's title.
Brandter v. Marshall. 1 Cui., 3W, note.
JOHNS. KEP.. 12.
See
ity from A. that he should not suffer, in case
he should be compelled to pay the rent to any
other person than the plaintiff, and the witness
became security for that purpose. And the
defendant, on the same day, or the day after,
took possession. No written agreement was
shown. The plaintiff having rested his cause
on this evidence, the defendant objected that
he had not produced sufficient evidence to
show that the defendant had acknowledged A.
for his landlord, so as to entitle the plaintiff to
recover ; and that, at all events, the defendant
could only be considered as a tenant at will,
and therefore was entitled to a notice to quit,
which had not been given. The judge over-
ruled the objection. The defendant then offered
to prove that, after the agreement above men-
tioned with A., he entered on the premie-
under a lease from Robert Roberts, who
claimed title to the premises, and with the
knowledge of the lessors ; and that at the time
of the sale by the sheriff the premises were in
possession of one Denniston, who held adverse-
ly to Johnson, against whom the execution is-
sued. But the judge overruled the evidence,
and under his direction, the jury found a ver-
dict for the plaintiff.
A motion was made to set aside the verdict,
and for a new trial. The case was submitted
to the court without argument.
Per Curtain. The motion for a new trial in
this cause must be denied. The defendant en-
tered into the possession as tenant to the les-
sors of the plaintiff, under an agreement for
the premises for one year, at $100 rent. The
agreement is fully established, and it is neces-
sarily to be inferred that the *defend- [*183
ant entered under this agreement, for it was
on the same day, or the day after it was made,
that he took possession. This was in the
spring of the year 1810 ; and he has continued
in possession ever since. No notice to quit
was necessary : there is no evidence of any
payment of any rent, nor of any act done by
the lessors of the plaintiff after the expiration
of the year, recognizing the defendant as their
tenant, so as to make him a tenant from year
to year. But having held over after the expi-
ration of his term, he is a tenant at sufferance,
and not entitled to notice to quit. The testi-
mony offered on the part of the defendant was
properly overruled. For the defendant hav-
ing taken a lease under the lessors of the plaint-
iff, he was thereby estopped from setting up
a title under any other person. He was bound
tirst to restore the possession to his landlords,
and then the rights and claims of others to the
premises can be tried.
Motion denied.
Cited ln-18 Johns., 535 ; 3 Barb. Ch., 587 ; 14 N. Y..
06; BLuns., 183: 12 Barb. ,4X4; 3 Rob., 138; 4K Super..
226.
WICKHAM v. FREEMAN.
Trespass — Plaintiff must hate Actual Possession ,
or the Remainder or Reversion — Must show
if Premises are Vacant.
Evidence that the plaintiff let the locus in q\ui to
A for one year, and thai A entered under the lease
and held over, and then quitted the ponetwion, and
ft]
183
SUPREME COURT, STATE OF NEW YORK.
1815
the plaintiff afterward re-entered, is not sufficient
to enable the plaintiff to. maintain an action of
trespass quare ciau.-um fregit against B for cutting
and carrying away corn, &c., during the time A
held over, or between the time of his quitting the
possession, and the time of the plaintiff's re-entry.
To maintain the action, the plaintiff must show
an actual possession of the premises : or that he is
•entitled in remainder or reversion, or in case the
premises are vacant, that he has the legal title
-which draws it to the possession.
Citations— 1 Johns., 513: IN. R. L., 527; 3 Cai.,
262 ; 2 Roll. Abr., 553 ; 6 Bac. Abr., 566.
THIS was an action of trespass quare clamum
fregit, &c., in the town of Spafford, for
cutting and carrying away hay and corn, &c.,
and for cutting and destroying apple trees,
&c. The defendant pleaded the general issue.
At the trial, before Mr. Justice Platt, at the
•Onondaga Circuit, in June, 1814, the plaintiff
offered to prove that in 1812 he leased the
premises, by parol, to Abel Amraiden, for one
year, to the 1st of April, 1813 ; that the lessee
entered into possession, by virtue of the agree-
ment, as his tenant, and held over until Sep-
tember, 1813 ; and whilst he so held over, the
defendant committed the trespass, &c. This
evidence was objected to by the defendant,
and overruled by the judge.
The plaintiff then offered to prove that soon
after Amtniden quitted the possession the
plaintiff re-entered, and that between
184*] *the time when Ammiden so quitted
the premises, and the time of the re-entry of
the plaintiff, the defendant committed the
trespass,&c. This evidence was also objected to
by the defendant's counsel and overruled by
the judge. The plaintiff was, thereupon, non-
suited, with liberty to move the court to set
aside the nonsuit, and for a new trial.
The case was submitted to the court without
argument.
Per Curiam. The motion to set aside the
nonsuit must be denied. In the case of Camp-
Mi v. Arnold, 1 Johns., 512, the court say, the
rule appears to have been long and well set-
tled that there must be a possession in fact of
the real property to which the injury was
done, in order to entitle a party to maintain an
action of trespass quare clausum fregit'. The
plaintiff does not bring himself within the
provisions of the Act, giving the action of
trespass to a remainderman or reversioner, not-
withstanding any intervening estate for life or
years. (1 N. It. L., 527.) He showed no title
whatever, except a bare possession of his ten-
ant for one year. He could not, by this, be
said to be seised of an estate in remainder or
reversion. For aught that appears, his inter-
est in the land commenced and ended with
this one year's possession, until after the tres-
pass for cutting and carrying away the corn was
committed ; and if so, he had no estate either
in remainder or reversion ; and it was incum-
bent on the plaintiff to show that he had an
estate of one or the other description, to bring
himself within the Act ; and besides, the in-
tervening estate had ended before the trespass
was committed. Under these circumstances,
he could not maintain trespass for cutting and
carrying away the corn. Nor is hi^ right
to maintain the action for cutting down
the fruit trees better supported. At the
time that was done, the locus in quo was
352
vacant, and in the actual possession of no
person. And the plaintiff did not show, in
himself, any title which would, in judgment
of law, draw after it the possession. For any-
thing that appears, he entered without title,
after the possession was abandoned by his ten-
ant. The plaintiff could not be said to be dis-
seised by his tenant ; and even if he was, his
re-entry would not relate back so as to give
him an action of trespass against a stranger :
for it is a general rule, with respect to the doc-
trine of relation, that it shall not do wrong to
strangers. (3 Caines, 262.) And it is express-
ly laid down in Rolle (2 Roll. Abr., 553;
*6Bac. Abr., 566), that the disseisee of [*185
land cannot maintain trespass quare claumim
fregit, for an injury done thereto, betwixt the
time of his disseisin and his re-entry, for he does
not, until a re-entry be made, regain the pos-
session in fact of the land.
Motion denied.
Cited in— 4 Cow., 338; 19 Wend., 509; 6 Hill., 331,
539; 53 N. Y., 434; 74 N. Y., 245; 18 Barb., 497; 36
Barb., 613 ; 51 Barb., 333 ; 7 W. Dig., 327 ; 54 Wis.,634.
JACKSON, ex dem. ROMAN ET AL.,
v.
SIDNEY.
Pleading and Practice — Ejectment — Declaration
— Separate Demises Laid in — Evidence.
In ejectment, separate demises from several les-
sors may be laid in the declaration, and the plaint-
iff at the trial may give in evidence the separate
titles of the several lessors to separate parts of the
premises in question, and recover accordingly.
was an action of ejectment, tried be-
JL fore Mr. Justice Yates, at the Schoharie
Circuit, in 1813..
The declaration contained separate demises
to each of the four lessors ; and, at the trial,
the plaintiff offered to show a title in each of
the lessors to four separate lots in the subdi-
vision of great lot No. 137. This evidence
was objected to by the defendant, on the
ground that the lessors of the plaintiff could
not recover on their separate titles ; and the
plaintiff was called on by the judge to elect
which of the lessor's rights he would rely on ;
and the plaintiff accordingly elected 10 proceed
for lot No.2,owned by Knox.one of the lessors.
Evidence was then given on both sides, and a
verdict was taken for the plaintiff, subject to the
opinion of the court on a case, which was sub-
mitted without argument.
Per Curiam. The declaration contains sep-
arate demises from each lessor ; and upon the
trial it was offered, on the part of the plaintiff,
to show a separate title in each lessor to a dis-
tinct part of the premises in question ; and
this was objected to and overruled by the
judge, and the plaintiff compelled to elect, and
proceed upon one count only. Had the les-
sors been tenants in common of the premises,
there could be no doubt but that they would
have had a right to recover the whole, if they
could have shown a title to the same. And
there can be no good reason against their show-
ing a separate title in each to a distinct part. It
JOHNS. REP., 12.
1815
PALMEK v. WEST.
185
cannot subject the defendant to any inconven-
ience, or operate as a surprise upon him ; and
the costs to which he may be made liable, on a
18O*j recovery against him, will *be much
It--- than if four separate actions were brought.
It i- a course, therefore, that ought to be en-
couraged, a8 it prevents multiplicity of suits.
A new trial must, therefore, be awarded, with
costs to abide the event of the suit.
New trial granted.
Cited in 4 Cow.. 4tti ; 3 Wend., 154 ; 62 N. Y., 480.
PALMER r. WEST.
Bailment — Negligence — Estray.
Where A hired a mare of H. which strayed away
f rom'the possession of A, and came into the posses-
sion of C. by delivery from D, who had taken her up
(C, claiming her as the property of a third person,
who had lost a inare,which he had been requested to
search for), and A brought an action on the case
aguinst C for not complying with the requisites of
the Act Concerning Strays ; it was held that admit-
ting that C came within the Art, which was very
questionable, the plaintiff having sustained no inju-
ry by his negligence, could not support the action,
aud that as his special property bad ceased before
the mare came into the possession of C, the action,
if sustainable at all, could only be bought by B, the
owner of the mare.
Citation— 2 N. H?. L.. 231.
IN ERROR, on certiorari from a justice's
court. West brought a special action ou
the case, in the court below, against Palmer,
and declared that he, West, about the 1st of
October, 1818. hired a certain mare of one
James Latson, aud that the mare strayed from
his possession, and came into the possession of
one Newby, and that while in his possession,
Palmer claimed and took the said mare, as
the property of some other person, and sold
her, whereby he, the plaintiff, was put to
great expense in searching for the mare, and
had to pay for her $22.50. Palmer pleaded
not guilty as to the selling the mare, and a
justification as to the other mutters ; and the
cause was tried by a jury. From the testi-
mony it appeared that West hired the mare
from LaLson for a few days ; that she strayed
away from his possession, and was taken up
by Newby, ana remained in the possession
of Newby for three weeks ; and that while in
iu his possession, Palmer, who had been re
guested by one Deyo to look out for a stray
rnure which he had lost, claimed the mare iu
question, as answering the description given
by Deyo, but on further inquiry he found that
it was not his, and he then advertised her. and
let one Ver Valen have her to keep ; aud
some time after Lataon came aud took her
away. It appeared also, that all the expenses
incurred by West iu searching for the mare
accrued while she was in the possession of
Newby. and before Palmer had taken her.
There was a good deal of contradictory evi-
dence, whether Palmer sold the mare or not .
several witnesses swore that he had confessed
to them that he had sold her to Ver Valen,
but Ver Valen swore that he never had ; and
it appeared that she was delivered up to Lat-
son immediately on his claiming her. It ap-
-Joiius. RBP. 12. N. Y. R., 5.
peared that West paid *Latson $22.50, [*1 87
and was at some other expense in searching
for the mare. It is, however, to be inferred
from the evidence that the right of property
still remained in Lalson, for the mare was
proved to be worth $50, and Latson, came and
took her away from Ver Valen. The jury
gave a verdict for the plaintiff for $25, on
which the justice gave judgment.
Per Ouriam. This suit was not attempted
to be supported as an action of trover, but as
a special action on the cases for negligence in
not complying with the requisites of the Act
Concerning Strays. (2 N. K. L., 281.) It was
necessary, therefore, for tin- plaintiff to show,
both the negligence aud the injury sustained
by him in consequence thereof. It may very
well be questioned whether the defendant
could be considered as coming within the Act.
The mare did not come into his possession as
a stray ; he claimed and received her as the
property of Deyo; but admitting that after he
discovered that she was not, he was bound to
treat her as a stray, and that he did not comply
with the requisites of the .Statute, the plaint
iff has sustained no injury in consequence of it
All the trouble and expense incurred by him
was whilst she was in the possession of New-
by, and his claim, if any he has, must be
against him. The special property or right of
possession in West did not. according to the
proofs, exceed five or six days ; and this
time expired long before the mare came into
the- possession of Palmer ; and if he is answer-
able to any person for negligence in not com-
pjying with the requisites of the Statute, it
must oe to Latson, who was the owner of the
property ; the recovery, therefore, in this
action, cannot be sustained, and the judgment
must be reversed.
Judgment reversed.
*COOK v. SARAH HUSTED. [*188
1. Gifts — Delivery Necessary. 2. Implied Prom-
ise. 8. Evidence— Proof of Grantor's Hand-
writing w/ien Witnesses are No n- Residents.
Whether a mother promised to give to her son.
the child, not then born, of a slave, and after the
birth of the child, it continued with aud was under
the control of the mother, but? was called in the
family the slave of the son ; this was held not to be
a valid gift, there being no delivery of possession.
Where one person employs the slave of another,
the law implies a promise to pay the master for the
services of the slave.
Where, iu a justice 's court, it appears that the sub-
scribing witnesses to a deed reside neither in the
county in which the cause is tried, nor in the ad-
joining counties, it will be sufficient to prove the
handwriting of the grantor.
Where the defendant gives In evidence a conver-
sation between the plaintiff and a witness, in which
the plaintiff declares that the subscribing witnesses
to a deed reside in another county, this is sulUcient
evidence of the fact of the non-residence of the
witnesses in the county in which the cans.* is tried,
to authorize the justice to admit other evidence or
the execution of the deed.
IN ERROR, on certiorari from a justice's
court in the County of Dutchess. Sarah
Husted, the plaintiff below, sued Cook, and
NOTB.— Gifts— Delivery Necessary. See Pink T.
Cox, 18 Johns., 145, tutte. »
« 353
188
SUPREME COURT, STATE OP NEW YORK.
1815-
declared against him for work, labor, and ser-
vices performed by a negro girl, alleged to be
her property. The defendant below pleaded
non assumpsit.
It was proved, on the part of the plaintiff,
that the girl was born the slave of Mary Pugs-
ley, of whom the plaintiff, two or three years
before the trial, had purchased her, and that
Mary Pugsley, until the time of such sale, had
the entire and exclusive control of the slave ;
and it appearing, from the confession of the
plaintiff in a conversation with the witness,
that a bill, of sale had been given, the defend-
ant called upon the plaintiff to produce it,
which was accordingly done. The defendant
then contended that it must be proved by one
of the subscribing witnesses ; but, on its being
proved, by the witness to the above-mentioned
conversation, that the plaintiff had told him
that the subscribing witnesses resided in West-
chester County, and the witness also stating
that he had been informed, from other sources,
that they lived there, and that he knew no
such person in Dutchess or the adjoining
county, the bill of( sale, although objected to,
was admitted to be read in evidence, after the
handwriting of Mary Pugsley had been
proved. The defendant below claimed to
have purchased the slave from Israel Pugsley,
a son of Mary; and Israel Pugsley being called
as a witness, swore that when he was about
fourteen years old his mother told him that if
he would procure the women to assist at the
birth of the child, she would give him the
child, but whether he did so or not did not
appear ; that the child was always called his
in the family; though his mother had the con-
trol over it. It was proved by other witnesses
that the child was called Israel's in the family.
It appeared that the slave was in the defend-
ant's service about a year and a half, and some
evidence was given to show that her service
was not worth more than her living. The
justice gave judgment for the plaintiff for $10.
1 89*] * Per Curiam. Whether the allowance
for the services of the negro girl was not more
than she earned, is an inquiry which we do
not enter into. That was a matter proper to
be determined by the court below, and of
which the magistrate was the fit and proper
judge. If the slaVe was' the property of the
plaintiff, the law will raise an implied promise
on the part of the defendant to compensate
her for the services of such slave. Both par-
ties claim under Mary Pugsley, as once being
the owner of this slave ; and there is no suffi-
cient evidence appearing on the return to
show that she ever parted with her right to
Israel Pugsley, under whom the defendant
claimed. He could not be considered as a pur-
chaser, no consideration whatever having been
given by him, and he acquired no right to the
slave as a gift. A delivery of possession was
essential to change the property, and this
rever took place ; for it appears, from the tes-
timony on both sides, that Mary Pugsley con-
tinued to have the entire and absolute control
of the slave, until she sold her to the plaintiff;
and the only question, then, is, whether the
plaintiff gave sufficient evidence of her right
and title to the slave.
• It is unnecessary here to say whether the
plaintiff was bound to give any evidence what-
ever of the execution of the bill of sale, it hav-
ing been produced in consequence of being
called for by the defendant ; because, admitting
it to be necessary, it was sufficiently proved.
The absence of the subscribing witnesses, be-
yond the control of a subpoena from the jus-
tice, was sufficiently shown. The declaration
of the plaintiff, as to their place of residence,
when forming a part of the conversation in-
quired after by the opposite party, was com-
petent evidence ; but the witness went further,
and proved the residence of the witnesses in
Westchester County, by the information and
report from other sources. The absence of the
witnesses beyond the jurisdiction of the court,
and the handwriting of Mrs. Pugsley being
proved, was sufficient to authorize the reading
of the bill of sale in evidence, which, accord-
ing to the return, vested the title to the slave
in the plaintiff. The judgment must, there-
fore, be affirmed.
Judgment affirmed.
Distinguished— 5 Cow., 533.
Cited in— 4 Barb., 455; 25 Barb., 512; 41 Barb., 647;
62 Barb., 658 ; 65 Barb., 263 ; 43 How. Pr., 292 ; 2 E. D.
Smith. 311.
*TUCKER «. WOODS. [*19O
Contracts — Proposition — Mutual Promises must
be Concurrent — Contract to Sell — Vendee may
Rescind wJien Vendor cannot give Perfect Title.
Where A signs a writing, by which he declares
he w ill sell to B his house, &c., at a certain price,
&c.; this is a mere proposition, and not a contract.
Where the promise of one party is the considera-
tion of the promise of the other, the promises must
be concurrent and obligatory on both parties at the
same time.
If at the time of a contract for the sale of land,
there is a lease outstanding, which was unknown
to the vendee, the vendee is not bound, but may re-
scind the contract, the vendor not being in a situa-
tion to give a perfect title.
Citations— 3 T. R.,653; 1 Chit., 297; 1 Cai., 594; 11
Johns., 525.
was an action of a*sumpsit, tried at the
J- Oneida Circuit, in June, 1814, before
Mr. Justice Van Ness.
The plaintiff gave in evidence the following
memorandum: "I will sell my dwelling-
house, tan-works, and all the buildings be-
longing thereto, for $5,000, payable as fol-
lows: $1,000 on taking possession, and $1,000
annually thereafter, until the whole is paid ;
secured by bond and mortgage, or other good
security, until the whole is paid ; and will give
possession of the house and part of the tan-
works on the 1st of October next ; or, I will
take of Mr. David Tucker, of Whiteborough,
all his landed property, consisting of nine acres
of land, lying on both sides of the road, near
Whitman's Mills in Whiteborough, with all
the buildings, and appendages in good order,
for $4,500, towards my said works, and have
the possession of his, when he takes possession
NOTE.— 1. Mutual promises. 2. Contract for sale
of land— Rescission.
Mutual promises must he concurrent. See Living-
ston v. Rogers, 1 Cai., 283, note.
Where the vendor is unable or unwilling to perform
the contract to sell, the vendee may rescind, Gillet
v. Maynard, 5. Johns., 85, note.
JOHNS REP.. 12.
1815
JACKSON, EX DEM., v. HASBUOTTCK.
190
of mine, and pays me. or secures it on interest
for one year, the $500 for odds. This proposi-
tion shall be binding on me until the first day
of January next. Greenbush, October 13,
1807. John W. Woods."
The plaintiff proved by a witness that in
December, 1807. he went to Grceubush and
informed the defendant that he had come to ]
fulfill the agreement on his part, and was then
rrmly to convey the land at Whiteborough,
and to secure the $500 for the difference, ac-
cording to the terms of the contract ; and de-
manded a performance of the defendant on
his part ; but the plaintiff did not tender or
offer a deed for his land, nor say that he had
a deed ready ; nor did he tender any sum of i
money for the $500. The defendant said he |
had changed his mind, and refused to do any-
thing in the business, and said that the plaint-
iff must seek his remedy. The defendant made
no objection to any incumbrance being on the
plaintiff's land, but absolutely refused to per-
form the agreement.
The defendant's counsel moved for a non-
suit, on the ground that the writing produced
was not a contract, but a mere proposition,
without consideration or reciprocity, which
might be rescinded by either party, at his op-
tion ; but the judge overruled the motion. The
19 1 *] defendant then proved that, at the *time
of the proposition or contract, there was a
tenant on the property of the plaintiff, under
a lease, and that about two years of the term
was unexpired ; and that the tenant was in
possession in December, 1807, when the
plaintiff offered to convey, and demanded a
performance of the contract on the part of the
defendant.
The judge charged the jury that if there was
an outstanding lease on the plaintiff's property,
which would have prevented his giving pos-
session, in case the defendant had been willing
to carry the contract into execution, the plaint-
iff was not in a situation to convey ; and if
they should be of that opinion, they ought to
find for the defendant. And the jury found
a verdict accordingly for the defendant.
Mr. Kirkland, for the plaintiff, contended
that the memorandum contained every requi-
site of a contract, or agreement. The terms
were explicit, it was reciprocal, and there was
a consideration. He cited 2 Ves.. Jr., 440; 2
Caines, 117; 3 Johns. Cas.. 62 ; 3 Johns., 210 ;
7 Ves., Jr.. 265 ; 9 Ves., Jr., 357 ; 5 Vin. Abr.,
527.
Mr. N. Williams, contra. In the case of
Tagl/rr v. Stibbert, 2 Ves., Jr., 437^40, the
purchaser knew of the lease at the time. The
leant was an incumbrance, and the vendee was
not bound to accept a deed, until all incum-
brances were removed. (10 Johns., 209; 2
Comyn on Contracts, 52, 58, 59 ; Sugden, L.
of V., 5, 6, 150.) But here was no contract.
It was a mere naked proposition, without any
consideration. And the plaintiff had an op-
tion as to performance. The defendant was
not bound : the plaintiff, therefore, could not
be held liable. There were not mutual prom-
ises, nor any consideration to support a con-
tract. Both promises must be concurrent, and
equally obligatory. (3 Term R., 658; 1 Caines.
584; 5 East, 16; 1 Chitty's PI., 297; Peake's
Cas., 227.)
JOIINS. REP., 12.
Per Ouriam. It might well I»e questioned,
whether the memorandum, which is set up as
the contract between these parties, and upon
which this action is founded, is not void for
want of consideration. It would seem to be a
mere proposition on the part of the defendant,
and without mutuality. Nothing was to be
done by the plaintiff; it was optional with
him whether he would comply or not, on hi>
part, and the defendant derived no benefit or
advantage whatever from the proposition. The
case of Cook v. Of ley, 8 Term R., 658, is very
much in point *to show the contract [*1J)£
void. In contracts, where the promise of the
one party is the consideration for the promise
of the other, promises must be concurrent and
obligatory upon both at the same time. (1
Chitty, 297 ; 1 Caines, 594.) But the ground
upon which the judge, at the trial, put the
cause, is perfectly conclusive. For, admitting
there was a consideration, and that the plaint-
iff was bound on his part, yet it appearing by
the evidence that he was not in a situation to
perform, the contract might be rescinded by
the other side. (2 Com. Con., 52, 58, 59.)
The proof in the case shows conclusively that
the property to be conveyed by the plaintiff to
the defendant was under lease, and that the
term would not expire until long after the
bargain between these parties was to have
been consummated ; and this brings it within
the principle decided by this court, in the case
of Jackson v. Wats, 11 Johns., 525.
The motion for a new trial must, therefore, be
denied.
Consideration, mutual promises— Must be concur-
rent. Distinguished— 20 Johns., 20.
Cited in— 12 Johns., 400; 19 Johns., 212: 12 Barb.,
505: 7 Daly, 534; 2 Hilt., 51.
to perform contract of sale through defect
in title. Cited in-9 Cow.. 51 ; 7 Rob., 119.
Written agreement not signed not binding. Cited
in— 1 Laos., 210 ; 4 E. D. Smith, 402 : 108 U. S.. 161.
JACKSON, ex dem. BUSH ET A.L.,
v.
HASBROUCK.
Eridence— Wills— Not Produced— Parol Evi-
dence of Contents — Diligent Search must be
Shown.
To entitle a party to give parol evidence of the
contents of a will, alleged to be destroyed, where
there is not conclusive evidence of its absolute de-
struction, the party must show that he has made
diligent search and inquiry after the will, in those
places where It would most probably be found, if
in existence, as in the office of the surro»fate of the
county, where the testa tor.died, or in the office of
the judge of probates, or of the executors.
NOTE.— Evidence— Admissihility of secondary, of
contents of will.
Before necmvlaru evidence of the contents of a irflZ
can he introduced, proof of search for it In the
places when- it would be likely to be found must
be Riven. Dan v. Brown, 4 Cow., 483 : Jackson v.
Kusaoll. 4 Wend., 543: Jackson v. Frier, 16 Johns..
1K{; Jackson v. Bctts, 8 Cow.. 877, » Cow., 208;
Pataevabr v. Wainroncr, 11 Wend., 599; Eure v. Pitt-
man, 3 Ifawkc*. 3M. See also. Cook v. Hunt, 24 III.,
535; Holhrook v. School Trustees, 28 III.. 187; Sell-
ers v. Carpenter, 33 Me.. 48ft ; Kidder v. MlaN.lall. 45
>!«•.. 4rtl : Parmiaid v. Smith, 8 Pick., 272; Fletcher
v. Jachson, 23 Vt., 581 ; Wade v. Work, 13 Tex., 482.
855
192
SUPREME COURT, STATE OF NEW YORK.
1815
THIS was an action of ejectment, for a farm
in Marbletown, in Ulster County, and
was tried at the Ulster Circuit, in November,
1812, before Mr. Juntice Van Ness.
A witness for the plaintiff, aged seventy
years, testified that he was well acquainted
with the premises in question, which belonged
to Simeon Van Wagenen, who died seised
thereof in 1760, leaving three sons and five
daughters. That Van Wagenen made a will,
which was in the possession of his children
after his death, by which he devised to them,
respectively, his real and personal estate, and
which they held according to the will. Heu-
drick Bush married one of the testator's
daughters, and he and Garret, the son of the
testator, were in possession of the premises,
being two hundred acres of land, until Bush
sold them, in 1764, to James Van Wagenen.
Bush told the witness that he held under the
will, and was to have the land during his
wife's life, after which it was to go to his
children. Many years ago, Hendrick Bush
and James Van Wagenen called on Matthew
•Cautine, and requested him to draw a deed of
193*] the *premises from Bush and his wife,
to James Van Wagenen ; and Cantine said it
would do no good to draw the deed, unless
the will of Simeon Van Wagenen was de-
stroyed. The witness further stated that there
were three witnesses to the will, and that he
had heard it read ; and that Matthew Cantine
said it was a good will ; that James Hamilton,
who drew the will, was alive, and then in
court ; and that the only surviving child of
the testator was then ninety years old.
Another witness testified that Bush and his
wife, and Johannes Van Wageuen, told him
that the will was at Peter Hermance's, who
married a daughter of the testator. Garrit
Van Wagenen told him the will was gone,
but where he did not know. On his cross-
examination, he said a copy of the will was
with Peter Hermance, and that Bush and
James Van Wagenen said the will was de-
stroyed.
The deed from Bush and his wife to James
Van Wagenen was produced, and was dated
the 27th June, 1784. for the premises'iu ques-
tion ; a witness testified that when Cantine
was applied to, to draw the deed, a difficulty
arose about the exchange of farms between
Bush and his wife, and James Van Wagenen,
on account of the provisions in tlie will.
Another witness testified that H. Bush, in
his lifetime, repeatedly said that he and James
Van Wagenen destroyed the will at the time
they exchanged farms. The children of H.
Bush are the lessors of the plaintiff.
The defendant proved that James Van
Wagenen was in possession of the premises,
and was afterwards convicted under the Act
of Attainder, in August, 1781 ; and the prem-
ises in question were, in February, 1782, con-
veyed by the Commissioners of Forfeiture to
Cornelius E. Wynkoop, who, on the 10th
April, 1782, conveyed the same to Isaac Has-
brouck, who died about twenty-five years ago,
and his son, the present defendant, entered,
and has since continued in possession.
The judge charged the jury that it was
questionable whether there was sufficient evi-
dence of the execution of the will to show its
356
existence as a good and valid will ; but, with-
out giving any opinion on that point, he
thought there was not sufficient evidence of
the destruction or loss of the will to allow
parol evidence of its contents to be given ; and
whether the evidence of the possession of the
defendant and his ancestor was not sufficient
to bar the plaintiff, notwithstanding the evi-
dence of the Confessions of those [*194
under whom he claimed, was a question of
fact for the jury to decide. The jury found
a verdict for the defendant.
A motion was made to set aside the verdict,
and for a new trial.
Mr. L. Elmendorf for the plaintiff.
Mr. Sudam. contra.
Per Curiam. The motion for a new trial
must be denied. The only question in the
case is whether there was such evidence of
the loss of the will of Simeon Van Wagenen
as to authorize the admission of parol proof of
it. The witnesses who speak of the acknowl-
edgments and declarations of the Van Wag-
enens, as to the loss of the will, are inconsis-
tent and contradictory. They would seem,
however, to trace the will, or a copy of it, into
the possession of Peter Hermance. But there
was no proof of any inquiry having been made
of Hermance for it. The testimony does not
warrant the conclusion of an absolute destruc-
tion of the will ; and it was therefore neces-
sary to show, at least, reasonable diligence to
find it, before parol proof of its contents
could be admitted. It was incumbent on the
party to have made examination in the office
of the surrogate of the county where the tes-
tator died, or in the office of the judge of pro-
bates, or to have made inquiry of the execu-
tors, if known. Nothing of this kind appears
to have been done. And it would be too
loose and dangerous a rule to admit parol
proof of a writing, without more satisfactory
evidence of its not being in the power of the
party to produce the instrument itself.
Motion denied.
Cited in— 4 Cow., 491 ; 6 Cow., 383; 11 Wend., 602.
*STEVENS AND HOAG, Overseers of [*195
the Poor of the Town of Dover,
v.
LORETTA HOWARD.
Bastard — Maintenance — Assumpsit Against
Overseers by Mother — Express Promise must be
Shown — Non- Residence.
Where an order of filiation and maintenance has
been made by two justices against the putative
father of a bastard child, and the child has been
supported and maintained by its mother, an action
of cumimpsit will not lie against the overseers of the
poor, by the mother, for the maintenance and sup-
port of the child, without showing1 an express
promise to pay her for the support of it ; or that
the overseers had received money under the order.
And in such action it is competent for the defend-
ants to show that the child had no settlement in the
town in which they are overseers, notwithstanding
this order of the justices was granted on their ap-
plication.
N ERROR on certiorari. Loretta Howard
brought an action of assumpsit in the
JOHNS. REP., 12.
1
1815
VAN SAJTTWOOD ET AL. v. SANDKORD.
195
court below, against Stevens and Hoag, over-
seers of the poor of the town of Dover, and
declared against them, on a promi.se to pay
the plaintiff for the maintenance and support,
by the plaintiff, of two bastard children, at
the instance and request of the defendants.
The defendants pleaded the general issue ; and
the plaintiff then gave verbal notice to the de-
fendants to produce two certain orders con-
cerning two certain bastard children born of
the body of the said L. Howard, the plaintiff
below. The defendants objected to the notice
as being verbal, and void for uncertainty.
The justice gave no decision on the point, but
the cause was adjourned, and a ventre issued.
On the day of the trial, which was in January,
1814, the plaintiff renewed the call for the
orders in the same words as before, or that she
be permitted to give parol evidence of their
contents ; the same objection was again made
by the defendants, but was overruled. Parol
evidence was then given of an order made by
two justices, in March or April, previous to
the trial of the cause, against one Justice Bond,
for the maintenance of a bastard child, born
of Loretta Howard, directing him to pay fifty
cents per week, 'which order was said by the
witness to be in the common form ; also, of
another order made in November preceding,
against the said Bond, directing him to pay to
the overseers of the poor of the town of Dover
sixty and a half cents per week toward the
maintenance of a bastard child, &c. It was
also proved that the plaintiff took care of the
children, but how long did not appear. The
defendants offered to prove that these children
were not paupers of the town of Dover ; but
the evidence was refused, on the ground that
the orders were conclusive as to the fact, as
they were made on the application of the over-
seers of the poor, and were not appealed from.
The jury gave a verdict for the plaintiff for
$35.
Per Curium. There is no proof whatever
appearing upon the return to show that the
bastard children were put into the keeping of
11HJ*] *the plaintiff by the defendants, or
that there was any express promise or engage-
ment, on their part, to pay her for their main-
tenance ; nor is there any evidence that the
defendants had received any money directed
by the orders to be paid for the purpose of the
maintenance of the children : and the law will
not raise a promise upon the mere naked fact
that orders were made out, admitting such
orders were sufficiently proved. This is im-
posing no hardship upon the mother ; she is
not bound to keep the children ; she could, at
any time, throw them upon the overseers of
the poor, unless she had made a contract to
keep them ; and. if so, she was bound to show
it, in order to make the defendants personally
liable. Besides, it was incumbent upon the
plaintiff to show that these children continued
chargeable to the town ; for the order, if in
the usual form, only directs the payment of
the weekly allowance, so long as the bastard
children shall be chargeable to the town ; so
that it is not necessarily to be inferred that
the overseers had received the money upon
the orders ; and the defendants offered to
prove that the children were not paupers of
.Ions- REP., 12.
the town of Dover, which was overruled. By
this we are to understand they offered to show
that the town was not chargeable with their
maintenance. There certainly could be no ob-
jection to such proof, if made out legally. In
what way it was intended to be made out does
not appear. If the town was not chargeable,
the law would certainly raise no obligation
upon the ove-T*eers of the poor to defray the
expense of their maintenance. The judgment
must, therefore, be reversed ; and we give no
opinion as to the sufficiency of the notice to
produce the orders.
Judgment reverted.
Cited In HJ Cow., 651 ; 10 Wend., 429 ; 19 Wend., 406.
*VAN SANTWOOD ET AL. [*19T
SANDFORD.
Pltading and Practice — Covenant — Setting
Forth Instrument Verbatim Insufficient.
In an action of covenant it must be averred that
the writinsr or contract on which the suit is brought
was sealed by the defendant ; it is not sufficient to
state that the defendant made a writing. te_ in the
words and figures following, to wit : setting1 it forth
1-i-rinttiin, with the conclusion, " in witness whereof,
I have set my hand and seal," with the name and a
scrawl with an "(L. S.)"
Citations— 1 Saund., 291, n. 1: Chitty, 348; Cro.
Eliz., 571; Ld. Kaym.,2537: Com. Dig., Fait. (A, 2>
Pleader, 2 W. 9, 14: 5 Johns.. 244.
THIS was an action of covenant. The dec-
laration contained four counts. The
fourth count, that certain differences having
arisen between the plaintiffs and one Isaac
Newton, they, on the 22d of March, 1814,
entered into articles of agreement, in the words
following : (setting forth the agreement, to
submit to arbitration verbatim). " And here-
upon the said defendant, on the 34th day of
March, in the year aforesaid, entered into a
guaranty, covenant, and agreement, in the
words and figures following," to wit : (setting
forth the agreement of the defendant ver-
batim), and which concluded in the following
words: "signed and sealed the 24th day of
March, 1814., Stephen Sandford (L. S.)."
And by which the defendant guarantied the
performance of the award of the arbitrators
on the part of Newton, to the amount of $800.
The plaintiffs, in this court, then stated an
award of the arbitrators, that Newton should
pay to them $680.36. in two days thereafter,
and notice of the award to Newton, and to the
defendant, that neither of them had paid the
money; and that the defendant had not kept
his said covenant and guaranty so by him
made, &c.
To this count there was a demurrer and
joinder.
Mr. 1. Hamilton, in support of the demur-
rer. He cited 1 Chittv's PI.. 348; 1 Saund.,
291 a. n. I: \ Saund.. 320, n. 8; 5 Johns. ,244;
•-' I..-v.. 74, 207.
Mr. S. Foot, contra.
SPENCER, J. delivered the opinion of the
court:
857
197
SUPREME COURT, STATE OF NEW YORK.
Trie demurrer to the fourth count is well
taken : the action is covenant, and it cannot
be maintained but on a deed. The only aver-
ment or allegation of a deed is, " and here-
upon the defendant, on the 24th day of March,
in the year aforesaid, entered into a guaranty,
covenant, and agreement in the words and
figures following ;" then the agreement is set
out in h(BC verba, with a conclusion; that it was
signed and sealed with the name of the
198*] *defendant and the locus sigilli, pur-
porting to be a literal oyer of the agree-
ment.
It must appear that the contract was under
seal, and the law will not intend that it was
sealed, unless it be expressly averred to be so;
and though the bond or deed, upon oyer,
recite, "in witness whereof we have here-
unto set our hands and seals," yet that does
not amount to an averment, but that the party
must show that the bond or deed was actually
sealed by the other. These principles will be
found in Cabel v. Vaughan, 1 Saund., 291, note
1; Chitty, 348, where all the cases are carefully
and accurately collected. There are some
words of art, such as indenture, deed, or
writing obligatory, which, of themselves, im-
port that the instrument was sealed ; but if it
be alleged that J. S. by his certain writing,
demised or covenanted, without averring that
it was sealed, the court will not intend that the
writing was sealed. (Cro. Eliz., 571 ; Ld.
Raym., 2537 ; 8 Com. Dig. Fait., A, 2, Pleader
2, W, 9, 14.)
In the case of Warren v. Lynch, 5 Johns.,
244, this court decided, that a scrawl for a
seal, with an (L. S.) was not a seal, and de-
served no notice ; and that calling a paper a
deed will not make it one, if it want the
requisite formalities. The oyer of the con-
tract, therefore, set out in the count under
consideration, can have no effect ; for we can-
not tell that the original differs from it, or
possesses any of the properties of a seal.
The other objections taken by the defend-
ant's counsel are not tenable, but it is not
now necessary to consider them, as the count
is bad for the reasons assigned.
Judgment for the defendant, with leave to
amend on the usual terms.
Cited in— 17 Wend., 418 ; 3 N. Y., 152 ; 3 Abb. App.
Dec., 442; 4 Barb., 276; 8 Abb. N. S., 120; 6 Park,
687 ; 8 How (U. S.) 464.
199*]
*HORNBECK ET AL.
v.
SLEIGHT.
Deed — Reservation in Fee to Inhabitants of an
Unincorporated Town, Void.
A proviso in a deed from the trustees of the town
of It. (authorized by the patent to convey to H.),
that the inhabitants of R. (who were not a body
corporate) be allowed to cut and carry away wood
from any part of the land not inclosed, is void.
Citations— 9 Johns., 73; 2 Johns., 230.
358
1815
was an action of trespass on the case,
JL tried at the Ulster Circuit, in September,
1813, before Mr. Justice Spencer.
The plaintiffs gave in evidence a deed from
the trustees of the town of Rochester to Cor-
nelius Hornbeck, dated 6th January, 1729,
which recited the patent of Rochester, the
power of sale given thereby to the trustees,
&c., and after a description of the premises,
the locus in quo and the habendum, it contained
the following clause : " Yielding and paying
annually, every year, chief and quitrents,
due for the said tract of land and premises,
the sum of two shillings, current money, &c.
Provided always, that the inhabitants of the
said town of Rochester may have allowed
sufficient roads and outways over the said
tract of land, and to break, cut, and carry
away wood and stone from off any part of the
said land which shall not be in fence."
It was admitted that the trees cut by the de-
fendant were on. lots No. 10 and No. 11, of
the tract of land granted by the trustees of
Rochester to Cornelius Hornbeck, and that
the defendant was entitled to those lots by de-
vise or descent. It was proved by a surveyor
that the tract of land originally claimed by
Cornelius Hornbeck, under the deed from the
trustees of Rochester, would include about
50,000 acres ; and, as since settled along the
line of a deed to one Louw. who also claimed
under the trustees of Rochester, about 30,000
acres.
The defendant proved that he held his farm
under Louw's deed. The defendant then gave
in evidence the patent of Rochester, dated the
25 June, 1703. It was admitted that there had
been a regular succession of trustees, by elec-
tion and conveyance, as mentioned in the
patent, from that day to the present, and that
the trustees, for the time being, transferred the
property to their successors by deed, reciting
the patent, and under the same trusts, &c.
That the defendant, at the time of the alleged
trespass, was, and had been for eleven years
before, a freeholder and inhabitant within the
patent of Rochester ; that the wood cut was
for the necessary firewood of the defendant
and his family, and was used by him as such
on his farm. The defendant also proved by
the book of minutes^ kept by the trustees
of Rochester, that all the lands were to be
granted, with a reservation *of a right [*2OO
to the freeholders and inhabitants of the town
of Rochester, to cut and carry away wood on
lands not inclosed ; and it was admitted that
the locus in quo was not inclosed or in fence.
A verdict was taken, by consent, for the
plaintiffs for $10, subject to the opinion of the
court on a case to be made ; and it was agreed
that if the court should be of opinion that the
plaintiffs were entitled to recover, the verdict
should stand ; but if the court were of opin-
ion that the defendant had made out a justifi-
cation for cutting necessary firewood, the ver-
dict was to be set aside, and a new trial
granted, with costs to abide the event of the
suit ; or if the court should be of opinion
against the defendant, he should be at liberty
to turn the case into a special verdict.
Mr. Sudam, for the defendant, contended
that the proviso in the deed from the trustees
of the town of Rochester operated as a cove-
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. MURRAY.
200
natit, running with the iand in favor of the
'* que tru*t. who were the freeholders and
inhabitants of Rochester. (Cruise's Dig.,
Deed, ch. 5, sees. 16 and 17; Cruise's Dig.,
Covenant, ch. 7 sec. 4; Shep. Touch., 158-
163.) It could not be made to them, but was
in 11 lc to the trustees for their benefit. It may
be considered as a covenant running with the
land, or as condition, or exception, or reserva-
tion, as might l>e most consonant to the inten-
tion of the parties. (4 Lee, 72, 73 ; Saund.
on Uses, 47, 209; 19 Vin. Abr., Reservation,
L. 8, T, Z; 2 Co., 70; Co. Lit., 47 «, 148
•a.) A reservation or proviso' may be in an}'
part of a deed. Though a general grant to
the freeholders and inhabitants of Rochester
would be void for uncertainty, yet a reserva-
tion out of a grant to trustees, for their bene-
fit, would be good. The patent xpcaks of the
freeholders and inhabitants, for the time be-
ing, as cf*ttiis(i>ie trust, and persons interested.
They are not strangers. The intention of the
trustees in making this proviso is manifest,
.and the court will feel disposed to carry that
intention into effect. The privilege of cutting
wood is not personal, but an easement running
with the land. Where a trust is clearly ex-
pressed in an instrument, or appears on the
face of the deed, the rule is the same at law
as in equity. (Saund. on Uses and Trust, 205,
227.)
Mr. L. Elmendorf, contra, relied on the case
•of Hornbeek y. Westbrook, 9 Johns., 73. It
was there decided that this reservation, being
to third persons, was void. The reservation
must be to a party, not a stranger ; and it must
be to a person capable of taking. This is not
^i grant or conveyance in trust, on the face
20 1 *] *of the deed. If this was a valid reser-
vation, it could only be to the freeholders and
inhabitants of Rochester, who were living at
the time of the deed. It could not inure to
their successors.
Per Uuriam. This case cannot be distin-
guished from that of Hornbeek v. Wesibrook, 9
Johns., 73. It is there expressly decided that
the proviso in the deed of 1728 was null and
void ; that the inhabitants of Rochester were
rfot a body corporate, so as to be competent to
take an estate in fee. And if a grant to them
would be void, a reservation to them in a deed
in fee to a third person would be equally void.
Nor would it be valid as a covenant to stand
seised. The inhabitants of Rochester were
strangers to the deed. The present inhabitants
at all events must be so considered. For they,
not being a body corporate, so as to perpetuate
the rights granted by the patent, these rights
must be restricted to the then inhabitants.
They alone were the ce*tui* que trutt. The
grantors in this deed were seised in fee as pri-
vate individuals, and competent under the
patent, to convey the common land of the
town of Rochester. (2 Johns.. 280.) Their
•deed and all provisos and reservations, must
receive the same construction, and be governed
bv the same rules, as the deeds of other in-
•dividual*. The plaintiffs must, therefore, have
judgment upon the verdict of the jury.
Judgment for the plaintiffs.
Cited ln-19 N. Y., 287 : 8 Barb., 147: 5 How. Pr. 70.
JOHNS. REP., 12.
JACKSON, ex dem. DANFORTH and RUSSELL.
v. »
MURRAY.
Estoppel — Grantor E»topptd by Warranty from
Setting up Subsequently Acquired Title.
Where a person conveys land, in which he has no
interest at the time, but afterward* acquires a title
to the ouine land, he will not be permitted to claim
in opposition to his deed, from the urantw, or any
person deriviiiK title under the grantee.
Citation -1 Johns, fas., 90.
THIS was an action of ejectment, for a part
of the south half of a lot No. 28, in the
town of Pompev, and was tried at the Onon-
dajra Circuit, "before Mr. Juttice Plait, in
1814.
The plaintiff gave in evidence an exemplifi-
cation of a bill tiled in the Court of Chancery,
by Asa Danforth, one of the lessors, in 1804,
against Murray, the father of the defendant,
*Allen Beach and Russell, and of their [*2O2
answers, and the decree of Jhe Court or Chan-
cery in the cause. The bill, among other things,
stated that in 1792 Danforth purchased lot No.
28. of one Michael Connolly, for £150, the
legal title then being in one Jasper Cropsey,
as trustee for Connolly. Soon afterwards, al
the request of Connolly, Cropsey executed a
deed for the lot in fee simple to Danforth,
which was placed in the hands of Isaac Clason
to be delivered to Danforth.
That in 1793 Danforth, by parol, agreed to
sell and convey the lot to Beach and Russell,
for $1,000, and they took possession of the lot,
and divided it, Beach taking the north, and
Russell the south half ; and on the 9th of Sep-
tember, 1796, Danforth entered into a written
contract to convey the lot to them. That in
the year 1798 Danforth gave an order to receive
from Clason Cropsey 's deed to D., but which,
in the meantime, had been delivered to the ad-
ministrator of Conolly, who delivered it to
Beach, who fraudulently gave up the deed to
Cropsey.
The bill stated that actions of ejectment had
been brought by Beach against persons hold-
ing under Dahforth, and pra3red that the suits
might be stayed, and that Beach might be di-
rected to convey to Danforth; and for general
relief.
Beach and Russell in their answer, admitted
the parol contract, and division of the lot, and
the subsequent written agreement by Danforth,
and that Russell had, bonafide, sold bis interest
in the lot to Beach, and given him a power to
demand the deed from Danforth for Connolly;
and that in 1801 Cropsey released all his right
in the lot to Beach.
Beach and Murray admitted that 1801 Beach
contracted to sell the south half of the lot to
Murray : but no conveyance was executed ;
and to secure the payment made, Beach exe-
cuted a mortgage to the defendant, the son of
Murray.
The order of the Court of Chancery, in De-
cember, 1808, directed Danforth on payment
of the purchase monev, to convev the lot in
question to Russell and Beach, and a reference
was made to a master ; and after the coming
in of the report, a final decree was pronounced
in June, 1811, which dismissed the bill as to
Murray, as having no interest, and directed a
lit
202
SUPREME COURT, STATE OF NEW YORK.
1815
conveyance by Danforth, of the south half of
the lot to Russell, and the north half to Beach.
2O3*] *The plaintiff then gave in evidence
the deed of Danforth, dated the 30th of
March, 1812, made in pursuance of the de-
cree.
The defendant gave in evidence a deed from
Jasper Cropsey to Allen Beach, dated 12th
September, 1800, of the whole lot, and a mor-
gage from Beach to the defendant, of the south
half of the lot, dated 9th June, 1803. Reuben
Murray, the elder, died in 1810, and the defend-
ant continued in possession after his death.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court upon a case
containing the above facts.
Mr. N. Williams for the defendant.
Mr. Van Vechten, contra.
SPENCER, J., delivered the opinion of the
court :
There is no ground on which either of the
lessors can pretend to any title to the premises
in question.
1. Admitting that Danforth acquired a title
to the lot by Cropsev's deed to him, yet on the
30th of March, 1812, Danforth, by his deed,
devested himself of all claim to the lot ; and he
then conveyed it to Allen Beach and Jonathan
Russell; the south half of the lot to Russell,
and the north half to Beach.
2. Danforth made this conveyance pursuant
to the decree of the Court of Chancery ; the
bill was filed by him against Russell, Beach,
and the defendant's father, Reuben Murray ;
its object was, undoubtedly, to compel Russell
and Beach to fulfill and execute an agreement
made between Danforth and them, for the sale
and conveyance of the lot by him, and for the
payment by them of the price agreed to be
given, namely, $1,000. It is not necessary to
notice the unimportant facts in these proceed-
ings ; it appears, however, that Russell and
Beach admitted the agreement for the pur-
chaseof the lot, with Danforth, in consequence
of which they made a parol division of it, and
shortly after the execution of the contract for
the conveyance of the lot by Danforth to Rus-
sell and Beach, Russell, bona fide, and 'for a
good and valuable consideration, bargained
and sold all his right and title in the lot to
Beach, his heirs and assigns forever. In 1801.
and after the bargain and sale by Russell to
Beach, the latter contracted to sell the south
half of the lot to Murray, but no conveyance
2O4*J was executed ; and to secure *tbe pay-
ments made, Murray took a mortgage from
Beach to his son, the defendant.
It appears by the decree, that Murray, hav-
ing no interest in the question, the bill, as to
him, was dismissed. The decree is conclusive
as to the subject matter of it ; the object of the
bill was to protect Danforth from a suit at
law, brought against him by Russell and
Beach, on his contract to convey to them the
lot, on the ground that Danforth had the title
to the lot, and was ready to convey, on their
making the stipulated payment. If the plaint-
iff can recover, it must be on the principle that
when Russell conveyed to Beach, Danforth
had not then conveyed them ; but Russell can-
not be allowed to say that his deed to Beach
conveyed no interest. This point was solemnly
360
adjudged in this court, in the case of Jackson
v Bull, 1 Johns. Cas., 90. It was there held
that a man shall never be permitted to claim in
opposition to his deed, by alleging he had
no e*tate in the premises ; and that if a man
makes a lease of land by indenture, which is
not his, or levies a fine of an estate not vested,
and he afterwards purchases the land, he shall
notwithstanding, be bound by his deed, and
not be permitted to aver he had nothing. The
authorities there cited fully warrant the de-
cision.
This view of the case decisively entitles the
defendant to judgment.
Judgment for the defendant.
Cited in— 13 Johns., 414 ; 2 Cow,. 230 ; 5 Wend., 525 ;
11 Wend.. 119: 13 Wend., 213 ; 2 Denio, 25; Hill &.,
D., 31t ; 18 N. Y., 583 ; 41 N. Y., 95 ; 30 Barb., 624.
LOVET AND ABEL v. GREEN.
Pi-actice — Certiorari — Irregularity — Security
for Stay of Execution — Judgment.
On the return of a certiorart,it is too late to object
that the affidavit, on which it was allowed, was made
after the time required by the statute.
The irregularity should be taken advantage of,
by motion to quash the certutrari.
Where a person becomes security fora defendant
in a justice's court, in order to obtain a stay of ex-
ecution against the defendant for thirty days, and
the justice, with the assent of the security, enters
up judgment againt him jointly with the defendant
such judgment is valid ; the Act not declaring the
manner in which the security shall be taken.
Citation— 1 N. R. L., 394.
IN ERROR, on certiorari. Green commenced
a suit by warrant, against Abel, one of the
defendants below, who was brought before the
justice on the 21st March, 1813 ; and Abel, on
seeing the plaintiff's demand, which was a
promissory note, acknowledged the same to be
correct, to the amount of $16, and then paid
the money to the other defendant, Lovet, who
offered *himself a-s security (in order to [*2O5
obtain a stay of the execution against Abel), and
alleged that he was a freeholder, and that the
justice could not refuse him ; upon which the
justice told him, that since he had received the
money, he would consider him in the judg-
ment with Abel, and if the same was not paid
within thirty days, he would issue execu-
tion against them both jointly; to which Lovet
assented ; and the judgment was entered
against them both jointly. Thirty days after
the judgment, the justice issued an execution
against them both. The justice further re-
turned, that the affidavit annexed to the cer-
tiorari served on him appeared to have been
taken on the 18th of May.
Per Curiam. We cannot, at this stage of
the proceedings, notice the objection that the
affidavit upon which the certiorari was allowed
was made after the time required by the statute.
This irregularity should have been taken ad-
vantage of, by an application to quash the cer-
tioniri. But there is no ground whatever, up-
on the merits, to reverse this judgment. It is
a judgment by confession in open court.
Lovet offered himself as security for Abel, for
JOHNS. REP., 12 ..
1815
Sl.l.I.K K V. FOX.
the purpose of obtaining a stay of execution
against Abel for thirty days, according to the
Statute. (I N. R. L., 394") The Act dot'* imt
point out the mode in which this security shall
be taken, and the surety here, after a full Ex-
planation from the justice, consented to be in-
cluded in the judgment.
Judgment affirmed.
Cited in-53 Barb., 411; 35 How. Pr.. 197.
8ELLICK v. FOX.
Practice in Justice Court — Jurisdiction — Set-
Off — Must Plead or give Notice at Joining of
Issue.
Where a defendant in a justice's court pleads to
the jurisdiction, because the accounts between the
parties exceed $300, but does not exhibit nor set off
his account, and fails in substantiating his plea, he
cannot, afterwards, at the trial, produce his account
as a set-off.
Citations— 10 Johns., 108, 110.
IN ERROR, on certiar*ri. Fox sued Sellick
in the court below, and declared against
him. on a promissory note, for $15.30, with
interest ; the defendant pleaded to the jurisdic-
tion of the court, because the accounts be-
tween the parties exceeded $200, but did not
UOO*] state the nature of *tlie account, or
claim any balance due him, and expressly re-
fused to set off any account or demand against
the plaintiff. The cause was then adjourned by
consent of parties, and a venire issued. At the
day of trial, the defendant proceeded to give
evidence under his plea to the jurisdiction of
the court, and produced an account against
the plaintiff for about $80, and proved a very
small part thereof, by his son, whose testimony
was by no means satisfactory ; and the justice
overruled the plea. The plaintiff proved his
note, and the defendant then offered to give
his account in evidence as a set-off, which was
objected to, and excluded by the justice, be-
cause he had refused to exhibit or state it at
the time of joining issue. The jury found a
verdict for the plaintiff.
Per Curiam. The set-off was properly re-
jected, according to the decision In Waring v.
Lockicood, 10 Johns., 108, where it is expressly
ruled, that if a defendant has any account or
demand against the plaintiff, he must plead it,
or give notice of the set-off at the time of join-
ing the issue ; and if he neglects to do- so, he
cannot make the set-off afterwards, at the trial.
This was not like the case of Smith v. Burke,
10 Johns.. 110, relied upon by the plaintiff in
error. The defendant there produced his ac-
count at the time of joining the issue, amount-
ing to $22i).34. by way of set off, and to show
the justice had not jurisdiction. The whole of
the account was rejectee!, because, as the jus-
tice said, it was not fully Substantiated ; and
this court say, although the sum proved might
not amount to $200, so as to take away t'hj
jurisdiction of the justice, yet if it was substan-
tiated to any sum less than $200, it ought to
have been received. Hut had not the account
been produced at the time of joining the issue
JOHNS. REP., 12.
the decision would doubtless have been com-
formable to that of Waring v. LoekiPood, for
both causes were decided at the same terra.
The judgment must, therefore, be affirmed.
Judgment affirmed.
*HOYT v. HUDSON. [*2O7
Practice — After a Sufficient Levy, Second
cannot he made — Nor after Delivery of Goods
to a Third Perton.
Where an officer has once levied, under an execu-
tion, property sufficient to satisfy it, he cannot
make a second levy.
If an officer, on levying an execution, deliver the
g<MMls to a third person, on bis giving a receipt to
return them, or pay the amount of the execution,
he cannot afterwards take other goods of the de-
fendant in execution.
And in such case it is immaterial whether the
property originally taken were sufficient to satisfy
the execution or not ; or that he had been unable to
recover anything on the receipt.
Citations-2 Ld. Kaym., 1073; 1 Salk., 322; 4 Mass.,
403; 7 Johns., 428.
IN ERROR, on a bill of exceptions, from the
Court of Common Pleas of the County of
Otsego. This was an action of trespass,
brought by Hudson against Hoyt. The dec-
laration contained several counts, both in tres-
pass debonis a»portati*t and for an assault and
battery of the plaintiff. The defendant pleaded
not guilty.
It was then proved, by the plaintiff below,
on the trial, that the defendant below, who
was a constable, had taken the horse, saddle
and bridle of the plaintiff. The defendant
then proved that he took the goods by virtue
of the execution, dated the 1,5th of July, 1813,
in favor of one Higinbotham against Hudson,
the plaintiff below, issued by one Kaple, a jus-
tice of the peace in Otsego County, for $22.25,
including costs. It appeared that the property
was taken the last of July or first of August,
1813, and had been levied on previous to the
taking proved by the plaintiff. The plaintiff
then proved (the defendant excepting to the
admission of the testimony) that the defend-
ant had before taken a sleigh or cutter, the
property of the plaintiff, and had taken a re-
ceipt of Ebenezer Hudson, in which receipt
Hudson had agreed, for value received, to de-
liver the cutter at a day and place mentioned
in the receipt, or pay "the defendant a sum of
$22.25. The defendant then offered to prove
that the cutter was not worth more than $7 ;
but the testimony was objected to, and rejected
by the court ; and the defendant excepted to
the opinion of the court.
The defendant thereupon proved that the
cutter was not delivered up at the time and
place mentioned in the receipt, and that he
commenced an action on the receipt against
Ebene/er Hudson, in which he was nonsuited,
by reason of his being unable to prove the
handwriting of the defendant in that suit ;
and that he afterwards took the goods above
mentioned. The plaintiff then offered to prove,
that since the commencement of this suit, the
defendant had commenced an action on the
receipt, and recovered and collected the
amount thereof from E. Hudson : the evi-
3G1
307
SUPREME COURT, STATE OF NEW YORK.
1815
dence was objected to, but admitted by the
2O8*] *court as an answer to the testimony
given by the defendant relative to the former
action against E. Hudson.
The court thereupon charged the jury, that
inasmuch as before the taking of the horse,
«fcc., the defendant had taken the cutter, and
had also taken the receipt above mentioned
from E. Hudson, and time having elapsed be-
fore the taking of the horse, &c., the receipt
ought to be considered as a satisfaction of the
execution, as it respected the defendant ; and
that the constable had no right, afterwards, to
take any other property of the defendnat on
the execution; and therefore the plaintiff
ought to recover for the value of the goods.
To this opinion the defendant excepted ; and
the jury found a verdict for the plaintiff for
$61.
Mr. Hammond for the plaintiff in error.
Mr. Van Vechten, contra.
Per (Juriam. This case comes before the
court on a writ of error to the Common Pleas
of Otsego County, upon a bill of exceptions
tendered at the trial. The general principle
adopted by the court below was correct.
When an officer, under an execution, has
once levied upon the property of the defend-
ant, sufficient to satisfy the execution, he can-
not make a second levy. This principle ap-
pears to be well settled. In the case of Clark
v. Withers, 2 Ld. Ray., 1072; 1 Salk., 322, it
was ruled, that when a defendant's goods are
seized on &fi. fa., the defendant is discharged.
And in the case of Ladd v. Blunt, 4 Mass.,
403, it is expressly decided that when goods
sufficient to satisfy an execution are seized on
afi.fa., the debtor is discharged, even if the
sheriff waste the goods or misapply the money.
The same principle is adopted, and, indeed,
carried a little further by this court, in Reed v.
Pruyn & Staats, 7 Johns., 428, where it is
held that a sheriff cannot take a bond or other
security on a fi. fa. and still hold the execu-
tion in his hand, and use it afterwards to en-
force payment. According to the principle
here recognized, it was immaterial whether
the property first levied upon was sufficient to
satisfy the execution or not, for upon such
levy the constable took security for the debt ;
and to which security he actually resorted.
His failure to recover in the first instance
arose from his own negligence in not procur-
2O9*] ing testimony to prove *the handwrit-
ing of the surety. And although the testi-
mony, showing that the plaintiff had, since the
commencement of the present suit, recovered
against the surety the amount of the execution,
might not be strictly admissible, yet it was
perfectly immaterial, and could not alter or
affect the merits of the defense set up on the
other grounds. The judgment of the court
below must, accordingly, be affirmed.
Judgment affirmed.
After first sufficient levy made, officer cannot make
second. Cited in— 4 Cow., 418 ; 6 Cow., 563 ; 8 Cow.,
194 ; 7 Wend., 221 ; 11 Wend., 438 : 14 Wend., 262 ; 16
Wend., 445 ; 23 Wend., 499 ; 22 Barb., 524 : 3 How. Pr.,
262 ; 1 Leg. Obs.. 60; 3 McLean, 355; 42 Ind., 310.
Agreement of third party to answer for goods
levied on. Cited in— 21 Wend., 607; 5 Hill, 595;
Hoffm.. 149.
PORTER v. ROSE.
Practice — Action for Non-delivery of Goods —
Plaintiff must Prove Readiness to Pay — De-
livery to Agent — Receipts.
In an action for the non-delivery of goods, in pur-
suance of an agreement, by which the defendant
agreed to deliver 6,000 gallons of whisky to the
plaintiff, or his agent at B., to be paid for on the de-
livery thereof ; it is sufficient for the plaintiff to
aver that he has, at all times, been ready to receive
the whisky, and pay for the same, at the price
aforesaid, to wit : at B., without saying he was to
pay at the particular time stipulated for the de-
livery.
Where two acts are to be done at the same time,
as where one agrees to sell and deliver, and
the other agrees to receive and pay, in an ac-
tion for the non-delivery, it is necessary for the
plaintiff to aver and prove a readiness to pay on his
part, whether the other party was at the place
ready to dejiver or not. And where the agreement
was to deliver to the plaintiff or his agent at B.,
and the plaintiff was to pay the price stipulated, on
the defendant's presenting the receipts for the
goods, it was held that a payment on delivery was
not dispensed with, if the plaintiff himself was at
the place ; the provision for payment, on the pro-
duction of receipts, extending only to the case of a
delivery to the agent of the plaintiff.
Citations-2 Chit. PL, 99; 7 T. R., 125; 1 East, 203;
2 Bos. & P., 447 ; 1 Saund., 320, n. 4; 5 Johns., 179 ; 2
Johns., 207.
was an action of assumpsit, tried at the
J- Ontario Circuit, before Mr. Justice Platt,
in June, 1814. The declaration contained two
counts on a special agreement, and the usual
money counts. The first count stated that the
plaintiff, on the 12th November, 1812, at Can-
andaigua, at the special instance of the de-
fendant, agreed to buy of him, and the de-
fendant then and there sold, to the plaintiff,
6,000 gallons of whisky, &c., at the price of
seventy cents per gallon, &c., to be delivered
by the defendant to the plaintiff, or his agent,
clerk, or issuing commissary, at Buffalo, in
manner following, that is to say, 1,000 gallons
in each month, beginning the 15th November,
1813, and to be paid for by the plaintiff to the
defendant, on the delivery thereof as afore-
said ; and in consideration thereof, and that
the said plaintiff, at the like special instance,
&c., had then and there undertaken, and faith-
fully promised the defendant to accept and
receive the said whisky, to pay him for the
same, at the price aforesaid, the defendant
undertook, and then and there faithfully prom-
ised the plaintiff, to deliver the whisky as afore-
said ; though the time of the delivery of the
whisky hath long since elapsed, and the plaint-
iff hath always been ready and willing to re-
ceive the said whisky, and to pay for the same
at the rate or price aforesaid, to wit : at Buf-
falo aforesaid. Yet the defendant, *&c. [*21O
The second count was similar to the first, ex-
cept that it stated the promise of the plaintiff
to pay seventy cents per gallon, on receipts
being presented therefor ; and the plaintiff, as
in the first count, alleged that he had been, at
NOTE.— Soles— Actnn for non-delivery of goods-
Readiness to pay.
In an action for non-delivery, the plaintiff must
prove that he was ready and willing to pay for the
goods. Topping v. Root, 5 Cow., 404 ; Coonley v.
Anderson, 1 Hill, 519 ; Vail v. Rice, 5 N. Y., 155 ;
Bronson v. Wiman, 8 N. Y., 182; Chaplin v. Potter,
1 Hilt., 366. See, also, Cornwell v. Haight, 8 Barb.,
327.
JOHNS. REP., 12.
1315
PORTER v. ROSE.
210
all times, ready and willing to receive the
whisky, and pav for the same, &c. At the
trial, the plaintiff proved and read in evidence
the special agreement, and also proved the
price of whisky at Buffalo, at the several
times when the same ought to have been de-
livered.
The defendant proved the delivery of 2,495
gallons of whisky, at sundry times between
the 12th of December and the 28th of Janu-
ary, which WHS admitted to be all that had
been delivered under the contract. The de-
fendant's counsel moved for a nonsuit, on the
ground that the undertakings were dependent,
and that the plaintiff was bound to show a
readiness to pay ; but the judge overruled the
motion, and decided that the plaintiff was not
bound to show either an actual payment, or
readiness to pay on his part. The defendant's
counsel then offered to prove that after the
defendant had delivered the said whisky to I
the plaintiff's agent at Buffalo, and which had
been accepted by the plaintiff, he presented
the receipts therefor to the plaintiff's agent at
Canandaigua, who usually transacted the
business, and who had the contract, and de-
manded payment, which was refused by the
agent, for want of funds ; that apprehensions
were generally entertained of the solvency of
the plaintiff at this time, and that the defend-
ant offered to proceed and perform the residue
of the contract, by a delivery of the remainder
of the whisky, if he could be paid for what
had been already delivered ; but this evidence
was overruled by the judge, and the jury found
a verdict for the plaintiff for $516.08.
A motion was made in arrest of judgment,
and also for a new trial, which were argued
together.
3/r. /. C. Spencer, for the defendant. 1. In
actions for the non-delivery of goods sold, it is
necessary for the plaintiff to allege, in his dec-
laration, a payment, or a readiness, on his
part, to pay the price (1 Chitty's PL, 310 ; 1
East, 203) at the time stipulated. Neither of
the two counts in this agreement contain an
averment of a readiness to pay, or tender of
payment at the time. The second count does
not aver that no receipts were tendered.
211*] *In Morton v. Isimb, 7 Term R. , 125.
which was an action for the non-delivery of
corn, pursuant to an agreement, the Court of
K. B., in England, held that the plaintiff must
aver a performance, or a tender to perform,
on his part ; the delivery of the corn, and the
payment of the price, being concurrent acts,
to be done by the respective parties. The gen-
eral allegation of a readiness to pay the price
stipulated, is not enough ; the plaintiff must
aver also a readiness to pay at the time stipu-
lated. The time is as material as the price.
The receipts were to be produced at the time
the money was paid. The acts to be performed
by the parties were to be contemporaneous and
concurrent.
Mr. II. Bleteker, contra. 1. The first count
ia taken from a precedent of established
authority (2 Chitty's PI., 99; 2 Saund., 352,
n. 8), and is drawn with technical and scrupu-
lous accuracy. The plaintiff says he was, at
all times, ready to pay. The second count
contains the same averment of a readiness to
pay at all times. But the agreement there
JOHNS. REP., 12. ,
stated is, that the plaintiff was to pay when
the receipts for the whisky were presented to
him. Now the whisky must have been deliv-
ered before receipts could be given ; and if
the delivery was to precede the payment, it
was a condition precedent ; and if so, there is
an end of the objection. Where the mutual
covenants constitute the whole considerations
on both sides, they become mutual and preced-
ent conditions to each other, and the plaint-
iff must aver a performance on his part. (I
Saund., 320. n. 4 ; I Chitty's PI., 314.)
SPENCER, «/., delivered the opinion of the
courv
On the trial, the defendant's counsel moved
for a nonsuit, on the ground that the under-
takings were dependent, and that the plaintiff
was bound to show a readiness to pay. The
judge overruled this objection, deciding that
the plaintiff was not bound to show either a
readineas to pay, or the actual payment for
what had been delivered,
The defendant has moved in arrest of judg-
ment, and for a new trial. In both counts of
the declaration, it is stated that the whisky
was to be delivered at Buffalo ; and it is
averred, in both counts, that the plaintiff hath
at all times, been ready and willing to receive
the said whisky, and pay for the same, at the .
rate and price aforesaid, to wit: at Buffalo
aforesaid. And although it is not averred
that the plaintiff was ready, &c., at the time
•stipulated for the delivery, the declara-[*2 1 2
tion conforms to the precedent. (2 Chitty's PI.,
99.) An averment that he was at all times
ready, necessarily relates to the time of deliv-
ery. There is no averment that the defendant
did not present the receipts, and that the
plaintiff was ready to pay, on their presenta-
tion. This was not necessary, because non
con*1at, that receipts were given, and it was
unnecessary to give them, when the delivery
was to the principal himself ; consequently,
the motion in arrest of judgment cannot be
sustained.
As to the motion for a new trial, it is fully
settled in a variety of modern cases, which
have disregarded the artificial and subtle dis-
tinctions of former times, and looked to the
real intention and meaning of the parties, that
where two acts are to be done at the same
time, as when the one agrees to sell and
deliver, and the other agrees to receive and
pay, an averment by the purcha«er, in case he
sues for the non-delivery, of a readiness and
willingness to pay, is indispensably necessary;
and that, consequently, the readiness and will-
ingness to pay, is matter to be proved on his
part, whether the other party was at the place,
ready to deliver the thine contracted for or
not. (7 T. R., 125. Morton v. Lamb ; 1 East,
203, Ifatc#on & Minns v. Johnson ; 2 Bos. A.
P., 447, Wiiterhoutiev. Skinner ; 1 Saund.. 820.
note 4 ; 5 Johns., 179, West v. Emmon*, and 2
Johns., 207. Green v. Reynold».)
It is impossible to distinguish this case from
those cited, but on the ground that this con-
tract provides for the delivery of the whisky
at Buffalo, to the plaintiff, his agent, clerk, or •
issuing commissary, and obliges the plaintiff
to pay for the whisky, on the production of
receipts. From these stipulations, it might
MI
SUPREME COURT, STATE OF NEW YORK.
1815
have been contended, in case of a delivery of
the whisky to the plaintiff's agent, &c. , that
the payment on the delivery was dispensed
with. The averments in the declaration pre-
clude the plaintiff from taking this ground ; he
has averred a readiness and willingness to pay
for the whisky at Buffalo, and cannot, con-
trary to the averment, set up that he was not
at Buffalo, or excuse himself from a readiness
and willingness to pay there. The provision
relative to a payment on the production of re-
ceipts, extends only to a delivery to the plaint-
iff's agent ; for it would be absurd to require
a receipt from the plaintiff himself as evidence
of the delivery to himself. Under the aver-
ments in the declaration, we are to intend that
213*] *the plaintiff was at Buffalo at the
times specified for the delivery, and that he
was then and there ready and willing to re-
ceive and pay. His ability and readiness to
Say, became then a matter which he was
ound to prove, whether the defendant was
then ready to deliver or not.
Motion for a new trial granted, the costs to
abide the event of the suit.
Cited in-20 Johns., 27, 135; 5 Cow., 405 ; 7 Cow.,
29 ; 8 Wend., 619 ; 13 Wend., 287 ; 1 Hill, 523 : 3 Denio,
387 ; 8 N. Y., 513 ; 45 N. Y., 835 : 67 N. Y., 125 ; 7 Barb.,
171 ; 8 Barb., 332 ; 12 Barb., 507 ; 16 Barb., 94 ; 22 How.
Pr., 197 ; 38 How. Pr.. 448 ; 6 Duer, 250 ; 2 Hall, 413 ;
1 Bald., 494.
JACKSON, ex dem. SLEIGHT ET AL..
v.
HASBROUCK.
Ejectment — Action by Purchaser under Execu-
tion— Evidence.
Where an action of ejectment is brought by a
purchaser of land, under a sheriff's sale oh execu-
tion, to recover the possession, he must produce not
only the execution and sheriff's deed, but an exem-
plification of the judgment on which the execution
issued.
Citations— 2 Johns., 46 ; Buller, 104 ; 2 Peak. Ev.,
315 ; 7 Johns., 535.
THIS was an action of ejectment for land in
Newburgh, in Orange County. The
cause was tried at the Orange Circuit, in
August, 1813, before Mr. Justice Yates. The
plaintiff gave in evidence afi. fa. issued out of
this court, in favor of Austin & Andrews,
against William W. Sackett ; and another fi.
fa. issued out of the Court of Common Pleas
of Orange County, in favor of Edmund Gris-
wold, against the said Sackett ; and also a deed
from Solomon Sleight, sheriff, for the premises
in question, dated February 28, 1813, reciting
that the premises were sold by virtue of the
executions. The counsel for the defendant
objected that this evidence was not sufficient
to entitle the plaintiff to recover ; but that he
ought also to produce exemplifications of the
records of the judgments on which the execu-
tions issued ; but this objection was overruled
by the judge ; and the counsel for the defend- j
ant excepted to his opinion. The plaintiff i
364
proved that Hasbrouck was in posession in
May, 1813, and, as he informed the witness,
under Sackett.
The defendant then produced evidence on
his part, which he insisted was sufficient to
prove the sale by the sheriff to be fraudulent ;
but the judge delivered his opinion to the jury
that the evidence adduced by the defendant
was not sufficient to impeach the sheriff's deed
as fraudulent ; and that the plaintiff was en-
titled to recover ; and the jury, accordingly,
found a verdict for the plaintiff ; and the de-
fendant's counsel tendered a bill of exceptions
to the opinion of the judge.
Mr. If. Bleefker, for the defendant, con-
tended, 1. That the execution *was [*214
not sufficient evidence, without producing an
exemplification of the judgment. If a credi-
tor, who has sued out an elegit. brings eject-
ment to get possession of the land, he must
produce a copy of the judgment, and of the
award and return of the elegit on the roll, as
well as a copy of the ekgit itself. (Peake's
Ev., 3d ed., 352. 325 ; Gilb. Ev., 9.) In High
v. Wilson, 2 Johns., 46, it was decided that in
trespass, by a stranger against a sheriff for
seizing goods, the sheriff, to justify himself,
must produce the judgment. 2. That the
question of fraud ought to have been left to
the jury, as a matter of fact. (13 Vin. Abr.,
Fraud, 554.)
Mr. Burr, contra, insisted that in a case of
this kind it was not necessary for the plaintiff
to produce a copy of the judgment ; nor could
any case be found in which it had been so de-
cided. The case of High v. Wilson was of a
fi. fa. against the goods of the defendant.
The judge was correct in expressing his
opinion on the evidence produced by the de-
fendant ; for fraud is a mixed question of law
and fact.
THOMPSON, Ch. J., delivered the opinion of
the court:
The title upon which the lessors of the
plaintiff placed their right to recover is made
under a sheriff's sale, on executions against
William W. Sackett ; and the only question
made upon the argument of this case was,
whether it was necessary to produce upon the
trial the judgments against Sackett, or whether
it was sufficient to produce the executions
only. I do not find any case in which this
question has been directly decided. But from
the analogy it bears to principles well settled,
and as a safe and proper rule of practice, I
think the judgments, as well as the executions,
ought to have been proved.
The defendant was not a party to these
judgments, and although it appears that he
held under Sackett, it may well be questioned
whether he is to be chargeable with knowl-
edge of the judgments in the same manner as
Sackett himself would be. As against strang-
ers, there are many cases in which the execu-
tion is not sufficient, even to justify the officer
in seizing property. It is a well settled rule,
that in trespass by a stranger against a sheriff,
for taking goods under a fi.fa., the sheriff, in
order to justify himself, must show the judg-
ment as well as the execution. But if the suit
be by the defendant in the execution, the
judgment need not be shown, as the party ia
JOHNS. REP., 12.
1815
GALE v. (/BRYAN.
215
215*] jpresumed *to be conusant of it. (2
Johns., 46.) As against strangers, the execu-
tion, without the judgment, does not show a
right to intermeddle with property. And if
so with respect to personal property, there can
be no good reason why the same rule should
not be applied to real property. The occu-
pant cannot bring trespass against the sheriff
for levying upon, and selling, the laud in his
possession" and has no opportunity, therefore,
of calling for the authority under which the
sale is made, until an ejectment is brought
against him to recover the possession. And
according to the rule laid down in trespass,
the execution does not, of itself, show this
authority.
But admitting the defendant to stand in the
same situation as Sackett himself would, I
should still think it necessary to prove the
judgments. A tenant by eleyil, in order to re-
cover possession of the land extended, must
prove the 'judgment as well as the elegit.
(Buller, 104; 2 Peak. Ev., 815.) And in the
case of Carter v. Simpson, 7 Johns., 535, this
court decided that proof of a purchase of prop-
erty at a constable's sale did not show such an
interest in the purchaser as would enable him
to maintain trespass for an injury done to the
property, without showing the authority under
which the constable acted. It is not expressly
said that it was necessary to show the judg-
ment. Though this is fairly to be intended, as
the objection upon this trial was that the exe-
cution and judgment ought to have been pro-
duced. And if the judgment be necessary for
the purpose of showing an interest in the pur-
chaser under an execution to personal prop-
erty, this necessity is certainly equally strong
with respect to real property. It is, I believe,
the general practice, in cases like the present,
to require the production pf the judgment as
well a-s the execution ; and this is clearly the
safest and be-st rule. We are, accordingly, of
opinion thata new trial must be awarded, with
costs to abide the event of the suit.
New trial granted.
Cited in -4 Duer, 356; Hemp., 21.
2 16*] *QALE AND STANLEY
v.
O'BRYAN.
Pleading — Declaration in Debt — Bond.
A declaration commencing in debt, setting forth
a bond, with a ape-vial condition, and concluding
with an assignment of breaches, us in covenant, id
good.
Citation— 1 Saund., 58, »».
was an action of debt, of a plea that
1 the defendant render to the plaintiff
$1,000, which he owes to, and unjustly detains
from him. The declaration set forth the bond
of the defendant for $1 ,000, and the condition,
which was that the defendant should deliver
up the peaceable possession of certain prem-
ises, in good order, &c.. pursuant to his coven-
ant and agreement, &c., oa or before the 1st
December, then next ; and alleged a breach of
the covenant (stating it particularly), " and
JOHNS, ici.iv , 12.
therefore the said T. O'Bryan, his covenant
aforesaid, with the said Gale and Stanley, bath
not kept, although often requested, but hath
broken the same ; wherefore, the said Gale
and Stanley say they are injured, and have
sustained damages to the value of $1,000, and
therefore they bring suit," «fec.
The defendant demurred to the declaration,
and the plaintiff joined in demurrer ; which
was submitted to the court without argument.
Per Curiam. This case has been submitted
without argument, and the ground for the
demurrer is stated to be, that the declaration
commences in debt, and concludes by assign-
ing breaches in covenant. The declaration is
precisely in the form recommended by Ser-
geant Williams, in his note to 1 Saund.. 58.
Tie advises that after the words "should be
thereunto required," to set forth the condition
and breaches, concluding as in a declaration
in covenant. The court see no ground to
question the fitness and accuracy of the prece-
dent.
Judgment for the plaintiff.
Cited in-13 Johns.. 190.
•CHAMBERLAIN t>. LOVET. [*2 1 7
Practice in Justice Court — Delay of Trial — Dit-
continuance.
A delay in proceeding to trial, occasioned by the
justice being engaged in the trial of another cause,
will not work a discontinuance.
IN ERROR, on certiorari. After issue joined
in the court below, the cause was ad-
journed until another day, at 3 o'clock in the
afternoon ; on which day the parties appeared
before the hour, but the justice was engaged
in the trial of another cause, which continued
until 8 o'clock. When that trial was over,
Chamberlain, the defendant below, l>y his
counsel, moved that the venire in this cause
should be returned ; to which the justice re-
plied that no venire had been issued in this
cause ; but he supposed that the same jury
which tried the last cause might serve in this.
Chamberlain objected to that, and demanded
a nonsuit, for want of a jury, but the nonsuit
was overruled. Lovet then moved for a venire,
inntanter, which was granted, and in the course
of half an hour a jury was summoned and
duly impaneled ; at which time Chamberlain
had withdrawn to another part of the house,
and the justice caused him to be duly notified
that the jury was ready to proceed to trial, but
he refused to attend. The trial, however, pro-
ceeded, and a verdict was found for the
plaintiff.
Per Curium. The delay in not proceeding
to trial in this cause, until five hours after the
time to which it was adjourned, is sufficiently
accounted for. The justice was continually
engaged in the tral of another cause, and the
defendant had sustained no inconvenience by
the delay, from anything that appears ; he was
still remaining at the same house, and had
himself moved the trial but half an hour be-
fore, and was duly notified that the jury were
Mi
217
SUPREME COURT, STATE OF NEW YORK.
1815
impaneled, and the court ready to proceed.
In the cases where we have decided that if the
trial does not proceed within a reasonable time
after the hour appointed, the cause is to be
considered as out of court, the delay has not
been accounted for, or the party has sustained
an injury without his own willful default,
which is not the case here. The plaintiff was
in season to demand a venire; the court had
not proceeded to inquire into the merits of the
cause, and, indeed, it does not appear that the
parties had been called by the justice. The
return only states that when the other trial
was over the defendant moved that the venire
218*] in this cause be *returned, and that the
cause proceed to trial ; and was then told that
no venire had been issued ; and it does not ap-
pear from the return that either party had, at
this time, demanded a venire. These are the
only objections to the return raised by the
plaintiff in error, none of which appear to us
sufficient to set aside the judgment ; it must,
accordingly, be affirmed.
Judgment affirmed.
Cited in— 15 Johns., 497.
ALEXANDER, Administratrix, &c.,
FINK.
Pleading and Practice — Plea in Abatement can-
not be made after Verdict — Report of Referees.
The marriage of a female plaintiff, after verdict,
and before the day in court, cannot be pleaded in
abatement; nor can it be so pleaded, pwfe darrein
continuance, after a report of referees, and before
it is filed in court, in a cause which has been re-
ferred under the statute ; such report being the
same as a verdict of a jury.
Citations.— 1 Com. Dig-., 102; Abatement, 1, 34;
Cro. Car., 232.
THIS case, involving the examination of
long accounts, had been referred, by or-
der of the court, under the statute. After
the hearing before the referees, and after they
have made their report, but before it was filed,
the plaintiff intermarried with William Gar-
win ; and the marriage was pleaded in ' abate-
ment puis darrein continuance.
And the question as to the validity of this
plea was submitted to the court. A case
agreed on by the parties as to th* facts proved
before the referees was also submitted, with
the report of the referees in the cause, on a
motion to set the report aside.
It appeared from the case, that in the win-
ter of 1807, the defendant called on the intes-
tate, William Alexander, and informed him
that he had a large quantity of wheat for sale,
and wished to know with whom the intestate
stored his wheat in Albany, as he wished to
send a part to be stored there for Alexander to
sell, and the residue he would bring to Alex-
ander, at the Little Falls, to be sent by him
with his own wheat to Albany, or New York,
for sale, and to credit the defendant with the
net proceeds. Alexander informed the de-
fendant that he stored all his wheat with Messrs.
Hugh & Hamilton Boyd. of Albany, who
were his agents for storing and selling produce;
and the defendant then agreed to send part of
his wheat to Messrs. Boyd, at Albany, and
3 (Hi
bring the rest to Alexander, to be sold, and
have the net proceeds placed to his credit.
Several parcels of wheat were accordingly de-
livered to Alexander, who sent the same with
*his own wheat to Messrs. Boyd at Al- [*2 19
bany, to be sold by them on his account. And
on the 2d of September, 1807, the defendant
gave to Alexander a receipt of Hugh & H.
Boyd. for 243 bushels of wheat ; and directed
Alexander to send on the wheat he had to
Messrs. Boyd, and to have the whole sold, in
the same manner as he, Alexander, had his
own sold. Rankin & Heyer, of New York,
were the general agents of Alexander, in New
York, and the proceeds of all sales of produce,
or notes taken, were deposited with them for
collection on his account. In September, 1807,
Alexander directed Messrs. Boyd to send the
wheat, about 1,200 bushels, including the
wheat expressed in the receipt, to the defend-
ant, to New York, to be sold to the best ad-
vantage. In October, 1807, half df the wheat
was sent to New York, by Messrs. Boyd, and
not being able to sell it for cash, they sold it
on a credit of sixty days to John Townsend, a
person then in good credit, and took his note
payable to Rankin & Heyer, which was left
with them for collection, and to account there-
for to Alexander. In November, 1807, the
residue of the wheat was sent by the Boyds to
New York, and sold for the same price to
Townsend, then in good credit, at a credit of
sixty days, who gave his note for the amount,
payable to Rankin & Heyer, with whom it was
deposited for collection, for account of Alex-
ander. It was proved that other persons sold
wheat to Townsend, at the same time, for the
same price and on the same credit. Before
the notes were due, Townsend became wholly
insolvent, and the notes were never paid.
SPENCER, J., delivered the opinion of the
court :
The plea, puis darrein continuance, of the
marriage of the plaintiff cannot avail here. It
is well settled that after a verdict, matter which
abates the writ shall not be pleaded in abate-
ment, for the defendant has no day in court.
The marriage of a woman plaintiff after ver-
dict, and before the day in court, cannot be
pleaded. (1 Com. Dig., 102; Abatement, 1,
34; Cro. Car., 232.)
A reference, in matters involving long ac-
counts, is a legislative substitute for a trial by
jury ; and this we are to intend is such a case.
Consequently, the report of the referees is to
be regarded in the same light as a verdict of a
jury ; and the marriage of the plaintiff having
taken place after making the report, the plea
is bad.
*Upon the other point in the case, [*22O
there is no pretense that Alexander is liable for
the wheat sent to the Boyds, and sold by them
to Townsend.
Motion to set aside report denied.
Cited in-15 Wend., 507 ; 6 Hill, 253 ; 48 Ind., 482.
HANDY v. DOBBIN.
Practice — Money may be taken on Execution —
Chases in Action Exempt.
Bank bills or money, and everything belonging
to the debtor, of a tangible nature, except choses
JOHNS. REP., 12.
1815
ROGERS v. HOESEN ET AL.
in action, and articles expressly exempted by stat-
ute, may be taken in execution.
And any property of the debtor which may be
taken In execution may be seized by an attachment
under the Act relative to Absconding Debtors.
Citations— 5 Johns., 167 ; 1 Cranch, 133.
IN ERROR, on certiorari from a justice's
court. Dobbin sued out of the justice's
court an attachment, under the twent third
section of the Twenty-five Dollar Act (1 R. L.,
398), against the goods and chattels of Handy;
due proof having been given that he had ab-
sconded. The constable returned that he had
attached two $5 bank bills of the goods of
Handy. The justice gave judgment for the
plaintiff below. The only error relied on was,
that these bills were not liable to be attached.
SPENCER, J., delivered the opinion of the
court :
There can be no doubt that the constable,
under the attachment, could take any goods
and chattels which could be levied on by ex-
ecution. The authority in both cases is the
same. Bank bills are treated riviliter, as money;
a tender in them is good, unless it be specially
objected to at the time. The question then is
narrowed to this, can money be levied on Ly
an execution. This court, in WMiaim v.
Rodgers, 5 Johns., 167, intimated strongly
their concurrence in the decision of the Su-
preme Court of the United States on this
point. In that case (1 Cranch, 188) all the
cases on the point were reviewed, and it was
held that money could be levied on. We now
fully concur in the doctrine there advanced ;
we perceive no objection in principle, why
money should not be taken in execution. It
is the goods and chattels of the party ; and it
appears to us to comport with good policy as
well as justice, to subject everything of a tan-
gible nature, excepting such things as the
Humanity of the law preserves to a debtor,
and mere choses in action, to the satisfaction
of a debtor's debts.
Judgment affirmed.
Cited in— 12 Johns.. 3»B; 19 Johns., 146; 2 Wend.,
$»; 12 Wend., 58tt ; IN. Y., 81 ; i» N. Y.. 277 ; 8 Abb.
Pr., V& : 9 Abb. Pr., 331 ; 10 Abb. Pr., 93 ; 4 Bos.. 220;
5 BOA., 358, 634 ; 3 Rob., 163 ; 3 Peters, 131 ; 5 Mason.
650 ; 2 Storey, 53.
221*] *ROGERS AND ROGERS
f.
VAN HOESEN ET AL.
Evidence — Contract* — In Writing — Mmt be
Produced — Notice — Parol Evidence of.
Where it appears from the evidence in a cause,
that the contract on which the action was brought
w.i- in writing, the plaintiff is bound to produce it :
or if it were in the possession of the opposite party,
he cannot give parol evidence of Its contents with-
out having previously given notice to produce it.
Where the place in which the goods are to be de-
livered Is in tne option of the seller, he is bound to
give the vendee notice where he intends to deliver
them.
IN ERROR, on certwrari. The plaintiffs
below declared generally for goods sold,
&c., and on a special contract, by which the
defendants engaged to take, at a certain price,
JOHNS. REP., 12.
all the herring which might be caught in the
plaintiff's net for the season ; and from the
evidence it appeared that the fish were to be
delivered at the Fly, or at the dock at Catskill;
that the plaintiff caught a quantity of fish at
the Fly, and the defendant not being there to
receive them, they were carried to the dock at
Cabikill, and there kept until they spoiled ;
but no notice had been given to the defendants
of the fish being there. It further appeared
from the evidence that the contract was in
writing, but it was not produced ; and when
evidence was offered by the defendant to
show that the contract was in writing, the jus-
tice overruled it; and judgment was given for
the plaintiffs below.
Per Curiam. The judgment must be re-
versed. It appearing from the examination of
the plaintiffs' witnesses, that the contract upon
which they relied was in writing, they were
bound to show it ; or, if in the possession of
the opposite party, notice to produce it should
have been given oefore the parol evidence was
admitted. It is fairly to be inferred from the
return that this objection was taken, though
it is not distinctly stated in terms.
But there is another and fatal objection to
the recovery upon the contract as proved.
The fish were to be delivered to the defend-
ants at the Fly, or at the dock at Catskill. The
place of delivery being at the election of
the plaintiffs, they were bound to give notice
to the defendants of such place, and that the
fish were ready to be delivered ; and there is
no pretense that this was done. The fish were,
therefore, lost through the negligence of the
plaintiffs, and it would be manifestly unjust
to throw this loss upon the defendants.
Judgment reversed,
Cited in— 2 Abb, App. Dec., 344 : 3 Trans. App..
819 ; 3 Keyes, 443 ; 2 Hilt.. 436.
•WYNKOOP «. BURGER. [*222
Right of Way — By Grant and Usage — Change of
— Orantee muni keep in Repair.
Where a right of way is granted, without any
designation of the place In the deed, it becomes lo-
cated by usage for a length of time.
And being 4b located, it cannot afterwards be
changed by the grantor.
But if changed, and the grantee has, for a length
of time, used the new road, his acquiescence in the
alteration will be presumed.
The grantee of the right of way must keep the
road in repair.
IN ERROR, from the Court of Common
Pleas for the County of Greene.
Burger, the plaintiff in the court below,
brought an action on the case against Wyn-
koop, the defendant below, to recover dama-
ges for an alleged obstruction of a right of
way, claimed bv Burger over the lands of
Wynkoop, in which he recovered a verdict of
$80, with costs. A bill of exceptions was taken
by the defendant below, and a writ of error
brought. The counsel for the parties agreed to
make a case, instead of a return to the writ of
error.
The locus in quo is part of a tract of land,
formerly held in common by Philip Spawn
86?
•223
SUPREME COURT, STATE OF NEW YORK.
1815
•(whose portion Wynkoop bad purchased), Jo-
hannes Burger (to whose rights the plaintiff
below succeeded), and Paulus Smith ; who, in
1762, made partition of the same, and executed
mutual releases. In the release to Johannes
Burger was the following grant of a right of
way :
" Together with full and free liberty, to and
for the said Johannes Burger, his heirs and as-
signs, to land goods, store wood, and to have a
«anoe at a place called the canoe place, part of
lot No. 5, of the piesent division (which fell in
the allotment to Spawn, under whom Wyn-
koop claimed), and also full liberty of passing
and repassing at all times into, through and
out of the said lot No. 5, as well to and from
the same canoe place as to lots Nos. 4 and 7 of
the same division (which fell to Johannes Bur-
ger), with horses, wagons and other car-
riages."
It appeared from the case, that about twenty-
seven years ago, the road to the canoe place
from B'urger's house ran somewhat differently
to what it had before done, and that about
three years ago Wynkoop made an alteration
in the road, at a point marked B, in the map
annexed to the case, by which the distance
was a little extended.
When Wynkoop came into possession, about
eighteen years ago, a small part of the road
near the canoe place, at a point marked C in
the map, was obstructed by trees fallen across
it, and another road to the canoe place was
used, by consent, at a place marked F, until
ten years ago, when the plaintiff cleared
223*] *away the fallen trees from the road at
C; and three or four years ago made a fence
across the road at F.
The case was submitted to the court'without
argument.
Per Curiam. The judgment of the court
below must be affirmed. The right of way is
established by grant ; and there is, of course,
no necessity for presuming a grant, from the
long acquiescence in the use of the way. The
grant does not designate the precise place ; but
the length of time the way has been used in a
particular place shows the location by fhe acts
and acquiescence of the parties. It would be
extremely unjust to allow the plaintiff in error
to be changing this road whenever he pleased.
As it is a private way for the accommodation
of the defendant in error, it must be kept in
repair at his own expense. With respect to the
alteration, at the place called the canoe place,
it is fairly to be intended that it was done by
the consent of the defendant in error, as it had
been used by him, since it was altered, for such
length of time as to show an acquiescence in
the alteration. But it is not so with respect to
the alteration made at the corner, designated
upon the map produced to the court by the
letter B ; and this alteration is evidently inju-
rious to the defendant in error, as it increases
the distance of traveling, in a small degree.
Whether the damages recovered do not exceed
the injury, is a question which we cannot no-
tice here.
Judgment affirmed.
Cited in-«4 N. Y., 565 ; 71 N. Y., 197 ; 4 Barb., 62.
368
BETTS 0. BADGER.
Practice — Evidence — Deed Produced on Notice
from Opposite Party is, Prima Facie, Duly
Executed.
A deed produced by a party at a trial, pursuant to
a notice to him, from the opposite party, is, prima
facie, to be taken to be duly executed, and may be
read in evidence, without proof of its execution.
Citations— 2 T. K., 44; 1 Esp., 409; 8 East, 548 ; 2
Campb., 94.
IN ERROR, from the Court of Common
Pleas of Chenango County. Badger brought
an action in the court below against Belts. The
plaintiff declared on a certain note or instru
ment in writing, dated the 28th of May, 1808,
by which the defendant, for value received,
promised to pay to the plaintiff $50, on or
before the 1st of May, 1810, in good napped
hats, to be delivered to the defendant ; which
note or instrument in writing was subject to a
condition thereunder written, *to the [*224
following effect : that if the defendant should
not procure a deed from M. Lewis of the farm
on which the plaintiff lived at the time of the
execution of the note, or instrument in writ-
ing, on account of objections of Lewis, then,
and in that case, the said note or instrument in
writing was to be null and void ; but should
the said M. Lewis comply, then the said note
was to remain valid, and the hats valued at $3
each. The plaintiff averred that the defendant
did procure from M. Lewis a deed of the
farm, &c. ; yet the defendant, though often re-
quested, &c., had not paid, &c. The declara-
tion also contained the usual money counts,
and the defendant pleaded the general issue,
with notice of special matter to be given in
evidence. At the trial, the deed of Lewis was
produced by the defendant, pursuant to a no-
tice given to him for that purpose, by the
plaintiff ; and the counsel for the plaintiff
offered to read it in evidence, without any
proof, by the subscribing witness of its execu-
tion. The plaintiff's counsel objected, insisting
that it could not be read in evidence, without
calling the subscribing witness to prove it,
or making legal proof of its execution. The
judges of the court below were divided in
opinion upon the question ; and the deed was
read in evidence, without any proof, of its ex-
ecution. The jury gave a" verdict for the
plaintiff for $64.25. The defendant's counsel
tendered a bill of exceptions, on which a writ
of error was brought to this court.
Mr. Vanderpool, for the plaintiff in error.
The deed, though produced by the plaintiff,
under a notice for that purpose, ought to have
been proved, as in other cases. It is true that
the Court of K. B., in England, in the case of
the King v. Inhabitants of Middlesoy, 2 Term
R., 41, decided that a deed produced by the
opposite party, under a notice, though no
party to it, was prima facie evidence, without
any proof of its execution ; but that case was
afterwards doubted by Lord Kenyon (Peake's
Evidence, 111, 109, 112), and finally overruled
by the court, in Gwdon v. Secretan, 8 East,
548, and the rule laid down, that the produc-
tion of a deed at the trial, pursuant to a no-
tice, did not dispense with the necessity of
proving it by one of the subscribing witnesses,
as in ordinary cases. In Fox v. Heel, 8 Johns.,
JOHNS REP., 12.
1815
DANFORTH v. PRESIDENT, ETC., SCHOUARIE AND DUANESBURGH ROAD.
224
477, this court decided that where there was a
subscribing witness to a bond, proof of the
confession of the obligor of the execution of
the bond was not sufficient, without producing
225] *the subscribing *witness, or, in case of
his death, proving his handwriting.
Mr. II. Bleecker, contra. This is an exception
In Pa**ell v. Godsall, cited in 2 T. R, 44,
the plaintiff had given the defendant notice to
produce an agreement at the trial. It was pro-
duced, and the objection was taken that it
could not be read without proof. Lord Mans-
field overruled the objection, saying the de-
fendant produced it as the original agreement
to the opinion of the court below ; yet the bill i and therefore it need not be proved. Lord Mans-
of exceptions states that the judges were field expressed the sam<*_oninion in Thompson
equally divided in opinion ; so that there was
no decision, which was, in effect, denying the
motion for the deed to be read.
[THOMPSON, Ch. J. But as the deed was, in
fact, read in evidence, we must presume that
it was read with the assent of the court.]
But admitting that it was read with the di-
rection or assent of the court below, there can
be no doubt that it was prima facie evidence,
without further proof. It was so decided in the
case of the King v. Middle#>y, and by Lord
Mansfield, in Pastel v. Godsall, cited in that
case. And this rule was expressly recognized
by Buller, J. , in the case of Bowie* v. Lang-
teorthy, 5 T. R., 366, and by Lord Kenyon,
in Doton v. Ilaigh. (1 Esp., 409.) It is true
that Lord Ellenborough. in the case of Gordon
v. Secretan, reprobated and denied this doc-
trine, and that is the only case in which the
rule has been denied.
There is no danger in this rule, and it is far
more convenient than the one requiring strict
proof in ordinary cases. The deed so pro-
duced is only prima fade evidence ; and may
be repelled, if the party think proper, by evi-
dence of fraud or forgery. But if a plaintiff
who calls for a paper essential to the support
of his case, is bound to produce the subscribing
witnesses when it is produced at the trial, he
may be taken by surprise and nonsuited, from
not knowing the witnesses or where they may
be found.1
SPENCER, •/. , delivered the opinion of the
court :
The question presented by the bill of ex-
ceptions is, whether a deed in the possession of
one of the parties, and produced by him at
the trial upon notice given, and at the requisi-
tion of the other party, can be read in evidence
iiiiO*] by the party thus calling for its *pro-
duction with proof of its execution ; there be-
ing a subscribing witness to the execution.
The bill does not state, nor can it be collect-
ed, with certainty, from the note declared on,
whether the deed was given to Belts or Badger,
or some other person. I think, however, it
may be inferred from several circumstances,
that the deed was given by Lewis to the
plaintiff in error : 1st. Because he had pos-
session of it; and. 2d. From the condition of
the note ; that if the plaintiff in error did not
produce a deed from Lewis for the farm, on
which the defendant lived, then the note was
to be null and void ; if he did. then he was to
pay the note. This imports that he was to
gain an ad vantage and to derive a benefit from
the deed.
_ ._ „ . _ . rp HIS was an action of asmtmput. The dec-
1.— Campbell, in a note to V> etherston v. Ldpin- 1,,,-nHnn ™nt»in«i Miti>«> count*
in. 2 Campb., 94. thinks this difficulty. Vhich 1
!• rule I In the first count the plaintiff stated that the
ordon defendants of the first part, and the plaintiff
v. Jones, also cited in 2 T. R., 44. In the case
of the King v. The Inhabitants of Middlenoy, 2
T. R., 44, Ashurst, Buller and Grose, Justices,
all agreed that an instrument produced by one
party, at the call of the other, must be pre-
sumed, prima facie, to be duly executed. In
Dofonv. Ilaigh etal., 1 Esp., 409, Lord Kenyon
expressed the same opinion; and Peake, in'his
treatise on evidence, considers that to be the
rule when the deed is given to the party who
produces it ; but when it is matter inter olios
acta, and the party called on to produce it is
not a party to the instrument, he expresses
doubts whether it be not necessary to prove it.
In Gordon et at. v. Secretan, 8 East, Lord Ellen-
borough held that it was necessary, when there
was a subscribing witness, for the party to
prove tli- execution, although the instrument
was produced by the other party, and although
purporting to be executed by him ; and Law
rence, J., in the same case, said it had been so
ruled by Lord Kenyon, in the case of a will.
But in a subsequent case, Wtthemtnn v. Kdg-
ington, 2 Campb., 94, Heath, J., declared he
thought the old rule the sensible one, that an
instrument coming from the opposite side was
prima facie, to be taken as duly executed.
*These are believed to be all the [*227
cases on the subject. I apprehend the prac-
tice at Niri Print with us, has been in con-
formity with what Mr. Justice Heath calls the
old rule; if the party producing an instrument
is one of the parties to it, the custody of the
paper affords high presumptive evidence, that
he holds it as a muniment ; and prima facie, it
is sufficient proof of the execution.
Judgment affirmed.
i—17 Johns., 159 ; 10 Wend., 518 ; 7 Hun,
DANFORTH
«.
THE PRESIDENT. DIRECTORS AND
COMPANY OF THE SCHOHARIE AND
DUANESBURGH TURNPIKE ROAD.
Contract — Assumpsit — WiU Lie against Corpo-
ration to liecover Balance on Covenant — Im-
plied Promine.
has
Where there is a covenant to par money and part
s been paid, owmmptrit will lie on the implied
promise to pay the balance.
it will l
lie OKHinst a corporation on an
implied promise.
Citatlons-2 T. R.. 483, note : 3 P. Wms.. 419 ;
Doujf ., 424 ; 3 Mass., 364 ; 3 Dall., 496 ; 7 Cranch, 299.
ton
seems to be
as
v. Secretan. misfit be easily obviated by obtaining
a rule of court, or a Judjre 's order, to inspect the
ins to be the principal objection to the
<«tahliahed by the Court of K. M. in Oc
,
instrument before the trial.
JOHNS. REP., 12.
N. Y. R., 5.
of the other part, on the 26th of May, 1810,
entered into articles of agreement under the
24 8«»
237
SUPREME COURT, STATE OP NEW YORK.
1815
seal of the said Corporation, and under the
hand and seal of the said plaintiff ; and then
proceeded to set forth the said articles of agree-
ment ; whereby the plaintiff covenanted, on or
before the 1st of October, 1811, to make a turn-
pike road for a certain distance, supposed to
be eight and a half miles ; or should it exceed
or fall short of that distance, the pay was to
be in proportion ; that is, at the rate of $6,000
for every eight apd a half miles, five miles of
which road were to be completed on or before
the 1st of November then next ; and It was
further covenanted that the plaintiff should so
far complete the remainder of the road from
the termination of the said five miles, that it
should be passable for sleighs, wagons, &c., by
the 1st December then next ; in consideration
whereof, the defendants covenanted to pay
the plaintiff the sum of $6,000 in the following
manner : $3,000 on or before the 1st of No-
vember then next, to be paid as the work goes
on ; $5,000 before the 1st July, 1811, and
$1,000 in the stock of the said Company when
the whole route should be completed. It was
then stated that afterwards, on the 5th of Octo-
ber, 1812, the defendant covenanted with the
228*] plaintiff *that if he would execute and
deliver to them a bond in the sum of $600,
conditioned to put the road mentioned in the
above agreement, in such repair as the law di-
rects, at any time after the 1st of April, and
before the 1st of August then next, that they,
the defendants would pay him the sum or
sums of money mentioned in the above articles
of agreement. The plaintiff then averred that
on the 7th of October, in the year aforesaid,
he did deliver the defendants such a bond and
that there was then, and still is, due to him the
sum of $4,000 on the said agreement; and that
the defendants did not, at the day and year last
aforesaid, pay him the said sum of money; and
being so liable, the said defendant afterwards,
to wit : on the said 7th day of October, under-
took, and faithfully promised the said plaint-
iff, to pay him the said last mentioned sum of
money when thereto requested.
In the second count the plaintiff, after set-
ting forth the articles of agreement, averred
that he proceeded to make the road at the
time required by the said articles, and that
the defendants did not purchase the land
and ground, mentioned therein, in such time
that he could complete the road by the time
he had covenanted ; and therefore, afterwards,
on the 5th of October, 1812, the defendant cov-
enanted that if he would execute and deliver
to them a bond, &c., as in the first count.
The third count was a general indebitalm
assumpnit for work and labor.
To this declaration there was a general de-
murrer and joinder.
Mr. M'Gowen, in support of the demurrer.
A corporation aggregate cannot be charged on
any contract unless under their corporate seal.
(2 Bac. Abr. Corp., E, 3, 13 ; 6 Vin. Abr.,
317 ; 1 Bl. Com., 475.) If this act ion is found-
ed on the first agreement stated in the declara-
tion, which is averred to have been under seal,
then it should have been covenant, not assump-
*it. Afusumpint never lies against a corporation
except in cases especially provided in the Act
or Charter of Incorporation. An agreement by
a corporation, not under seal, will not be en-
370
forced in equity. (1 P. Wms., 655.) A cor-
poration may do an act of record and are
estopped to say that it is not theirdeed (1 Salk.,
192), but it can do no act in pats unless under
their corporate seal.
Mr. S. Foot, contra. The position of Black-
stone, and which is laid down in Bac. Abr.,
where the same authority is cited, is not sup-
ported by the cases. Whatever may have been
the rule *anciently, on this subject, it [*229
has been relaxed in modern times. In the case
of Maxwell v. Dulwick College, decided 14th
July, 1783 (1 Fonbl. Equ., 296, note), it is said
that an agreement of a major part of a corpor-
ation, entered in their books, though not under
their corporate seal, will be decreed in equity.
In the case of the Attorney- General v. Davy. 2
Atk., 212, decided in 1741, Lord Hardwicke
says it is not necessary that every corporate
Act should be under the seal of the Corpora-
tion, as to choose a chaplain, or to present to
a living. (Attorney- General v. Scott, 1 Ves.r
413.) It has been admitted, that a corporal ion.
may appoint a servant or baliff, without deed.
(1 Salk., 192; 3 Lev., 107; 6 Vin. Abr., 268,
287, 288; 3 P. Wins., 419.)
Kyd, in his treatise on the law of corpora-
tions, though he lays down the general rule
that a corporation aggregate cannot dispose of
their real estate, or appoint a person to do an
act in which their real property is concerned,
yet they may do other acts to bind them, with-
out seal. A seal is only evidence of assent to
an act, and that assent is as well shown by a
resolution or entry made in the minutes of the
corporation.
Chitty (Chitty, PI., 98) says, aswmpsit does
not lie against a corporation, which cannot
contract by parol, unless in the case of con-
tracts sanctioned by statute ; and he cites 6
Vin. Abr., 317, pi. 49, and 5 East, 239; but
Viner only says case will not lie on an express
promise. The case in East was of a promise
relative to the tolls of the corporation. In
the case of the King v. The Bank of England,.
Doug., 524, 526, it was held that a special
action on the case will lie against a corpora-
tion, to compel a transfer of stock. It is true
that in Breckbill v. Turnpike Co., 3 Dallas, 496,
in the Supreme Court of Pennsylvania, it was
decided that indebitatus assumpzit would not
lie against a corporation on an implied prom-
ise. In the case of the M. Ins. Co. of Alex. v.
Young, 1 Cranch, 332, the point was argued
and the authorities cited, in the Supreme
Court of the U. S., but no decision was made
on the question. In Gray v. The Portland
Bank, 3 Mass., 364, it was held that a special
action on the case lies against an incorporated
bank, for refusing to permit an original stock-
holder to subscribe and hold the new stock
created by the Corporation. In /Stafford v.
The Corporation of Albany, 6 Johns.; 1 S. ("•.,
7 Johns., 541, this court held that asyumpnit
would lie against a corporation, on the implied
promise to pay the amount of damages assessed
by a jury, for the land of the plaintiff taken-
by the corporation.
That there was a covenant in this case, can
be no objection *to the action of a«- [*23O
sumpsit, to pay the balance due on the agree-
ment. (2 East, 483, Moravia v. Levy, Ib., note.)'
It has been decided in the Supreme Court of
JoHJs's. REP., 12,
1815
ROBERTS v. TURNER.
230
the U. S., that amwmptrit will lie against a cor-
poration, on an implied promise, or a promise
not under seal. (Rank of Columbia v. Patterson.
See Evening Gazette, Boston, March 18, 1815;
S. C., 7 Cranch, 299.)
THOMPSON, Ch. J., delivered the opinion of
the court :
This case comes before the .court on a gen-
eral demurrer to the declaration. The action
is <i.*it>iiiu>xit, and the first two counts in the
declaration set forth articles of agreement en-
tered into between the parties, under seal, rel-
ative to the making of a road. All necessary
averments of performance, on the part of the
plaintiff, and breaches on the part of the de-
fendants arc duly made, and set forth, and a
balance of $4,000 is alleged to be due the
plaintiff ; and thereupon a special promise is
alleged, on the part of the defendants, to pay
such balance. The third count is for work,
labor, and services, &c. ; and alleges a promise
to pay, &c.
No objection was made on the argument, to
the form of the action, or that it should have
been covenant, founded upon the articles en-
tered into between the parties: The action is
founded upon the promise to pay the balance,
and the covenant is only set out as induce-
ment. (2 T. R., 488, note.) The objection
taken to the declaration goes on the broad
ground that an action of awmmpnit will not lie
against a corporation ; for they cannot make
a valid and binding contract, except under
their corporate seal. The proposition, in this
latitude, is certainly not tenable. Although it
may be laid down by elementary writers, as a
general rule, that corporations can do no act
without a seal, and such would seem to be the
doctrine of some old adjudged cases ; yet the
law of the present day seems to be otherwise
well settled. Corporations, in many cases,
have been considered bound bv their acts and
agreements, not under seal. In Rex v. Bigg,
8 P. Wms. . 419, it was held that a corporation
might, without seal, duly authorize an agent
to sign notes. And in 'Rex v. The Bank of
England. Doug., 424, the court refused to
grant a mandamu* to the Hank, to transfer
stock, because there was a remedy by an ac-
tion on the case, if they refuse, and a special
action of a**ump*it was afterwards brought
li.'Jl*] *against the Bank. The principle of
this case has been recognized in this court.
(See Shipley et al., v. Mechanic*' Bank, 10
Johns., 484.)
An attempt has, in some cases, been made
to distinguish between express and implied
promises, as to the liability of a corporation.
(8 Mass., 864; 8 D.-ill.. 496.) But in a late
case of the Bank of Columbia v. Patternon'*
Adm'r*,1 decided in the Supreme Court of the
United States, all such distinctions are disre-
garded, and the court seem to go to the full
length of giving the same remedies against
bodies corporate, in matters of contract, as
against individuals. The old cases are there
reviewed, showing that the law has been pro-
gressively altering, with respect to the validity
of acts done by corporations, not under their
seal. The court observe, upon the English
1. — This case was cited and read to the court,
frnm a Gazette, dated Marob 18, 1815.
JOUNS. REP., 12.
authorities referred to, that as soon as it was
settled that a regular appointed agent of a
corporation could contract in its name, with-
out a seal, it was impossible to maintain any
longer that a corporation was not liable upon
promises; otherwise, there would be no reme-
dy against the corporation ; and the court con-
cluded by saying, that it is a sound rule of
law, that whenever a corporation is acting
within the scope of the legitimate purposes of
the corporation, all parol contracts made by
its authorized agent, are express promises of
the corporation; and all duties imposed upon
them by law, and all benefits, conferred at
their request, raise implied promises, for the
enforcement of which an action will lie. It is
unnecessaiy, upon the present demurrer, logo
the full length of this case, or to decide any-
thing more than that a corporation may make
a valid contract, not under its seal. Whether
the promise in this case was made by the
board of directors, and entered upon* their
minutes, or by a committee, or other agent
duly authorized for that purpose, or in any
other manner that would be binding, are
questions which must arise and be determined
upon the proof offered at the trial, a^id can
not properly come under consideration upon
the present demurrer. We are. accordingly,
of opinion that the plaintiff is entitled to judg-
ment.
Judgment for the plaintiff. '
Afsumpitit will lie against a corporation on implied
promine. Cited in— 14 Johns., 119; 19 Johns., 66: 1
Cow., 532 ; 3 Wend., 97 : 7 Wend., 255 ; 15 Wend.. 266;
25 Wend., 685; 2 Hill, 46, n.; 4 Hill, 449; 2 Denio,
473; 14 N. Y., 191: 15 N. Y., 173; 30 N. Y., 86; 40 N.
Y.,380; 4 Hun, 138.
•ROBERTS t>. TURNER. [*232
Common Carriers — Forirarder of Qoods not a
Common Carrier.
A person who receives and forwards goods, tak-
ing upon himself all the expenses of transporta-
tion, for which he receives a compensation from
the owner of the goods, but who has no concern in
the vessels by which they are forwarded, or inter-
est in the freight, is not a common carrier.
Citations-5 T. R., 394 ; 4 T. R., 581.
THIS was an action on the case, against the
defendant, aw a common carrier, and was
tried at the Albany Circuit, in April, 1814,
before bfr. Jmtife Spencer.
The defendant resided at Utica, and pursued
the business of forwarding merchandise and
produce from Utica to Schenectady and
Albany. The ordinary course of this business
is, for the forwarder to receive the merchan-
1.— In Hayden v. The Middlesex Turnpike, 10
Tvng's Muss. ]{<•()., :fii7. the Supreme Court of Mas-
*:ichnsett* decided that (ixxmn/wif would lie against
a corporation, where then1 is an express stipulntion
by an agent of the corporation, or a duty arising
from some act or request of such agent, within
their authority.
NOTE.— Common Carriers— Fomcarders.
Pen* nix u7i" »V<VUT <intl forunrd goods and a/online
thf ejrjifiiKf o/ tramtmrtatinn, for compensation, but
have no interest in the freight or means of trans-
portation, are not common carriers. Platt v. Hib-
bard. 7 Cow.. 497: Stannard v. Prince. 64 N. Y.. 300;
Hrown v.Denison, 2 Wend., 593: Schmidt v. Blood.
9 Wend.. 288 : Sim k ins v. Norwich Steamboat Co..
11 Gush., 102; Sheldon v. Robinson, 7 N. II.. 157;
371
232
SUPREME COURT, STATE OP NEW YORK.
1815
disc or produce at his store, and send it by the
boatmen, who transport goods on the Mohawk
River, or by wagons to Schenectady or Albany,
for which he is paid at a certain rate per bar-
rel, &c. ; and his compensation consists in the
difference between the sum which he is
obliged to pay for transportation, and that
which he receives from the owner of the
goods.
The defendant received from the plaintiff,
who resided in Cazenovia, in Madison County,
by Aldrich, his agent, twelve barrels of pot
ashes, to be forwarded to Albany to Trotter ;
the ashes were put on board a boat, to be car-
ried down the Mohawk to Schenectady, and
whilst proceeding down the river, the boat ran
against a bridge and sunk, and the ashes were
thereby lost.
The defendant's price for forwarding goods
to Schenectady was twelve shillings per bar-
rel, and the price which he had agreed to pay
for the transporting the goods in question to
that place was eleven shilling ; the defendant
had no interest in the freight of the goods, and
was not concerned as an owner in the boats
employed in the carriage of merchandise.
The judge being of opinion that the testi-
mony did not make out the defendant to be a
common carrier, nonsuited the plaintiff ; and
a motion was made to set aside the nonsuit.
Mr. N. Williams for the plaintiff.
Mr. Henry, contra.
SPENCER, J. On the fullest reflection, I
preceive no grounds for changing the opinion
expressed at the Circuit. The defendant is in
no sense a common carrier, either from the
233*] *nature of his business, or any com-
munity of interest with the carrier. Aldrich,
who, as the agent of the plaintiff, delivered
the ashes in question to the defendant, states
the defendant to be a forwarder of merchandise
and produce from Utica to Schenectady and
Albany, and that he delivered the ashes, with
instructions from the plaintiff to send them to
Col. Trotter.
The case of a carrier stands upon peculiar
grounds. He is held responsible as an insurer
of the goods, to prevent combinations, chican-
ery and fraud. To extend this rigorous law
to persons standing in the defendant's situa-
tion, it seems to me would be unjust and un-
reasonable. The plaintiff knew, or might
have known (for his agent knew), that the de-
fendant had no interest in the freight of the
goods, owned no part of the boats employed
in the carriage of goods, and that his only
business in relation to the carriage of goods
consisted in forwarding them. That a person
thus circumstanced should be deemed an in-
surer of goods forwarded by him, an insurer
too without reward, would, in my judgment,
be not only without a precedent, but against
all legal principles. Lord Kenyon, in treating
of the liability of a carrier (5 T. R., 394), makes
this the criterion to determine his character ;
whether, at the time when the accident hap-
pened, the goods were in the custody of the
defendants as common carriers. In Oarside v.
The Propi*ietors of tJie Trent and Mersey Navi-
gation, 4 T. R., 581, the defendants who were
common carriers, undertook to carry goods
fi'om Stoneport to Manchester, and from
thence to be forwarded to Stockport. The
goods arrived at Manchester, and were put into
the defendants' warehouse, and burnt up be-
fore an opportunity arrived to forward them.
Lord Kenyon held the defendants' character
of carriers ceased when the goods were put
into the warehouse. This case is an authority
for saying that the responsibilities of a com-
mon^carrier and forwarder of goods, rest on
very different principles.
In the present case, the defendant performed
his whole undertaking ; he gave the ashes in
charge to an experienced and faithful boat-
man.
It has been urged that the defendant derived
a benefit from the carriage of the goods, in re-
ceiving cash from the owners of the produce,
and paying the boatman in goods, and also in
charging more than he actually paid. The lat-
ter suggestion is doubted in point of fact ; but
admitting the facts to be so, these *are [*234
ad vantages derived from the defendant's situa-
tion, as a warehouse keeper and forwarder of
goods, and by no means implicate him as a
carrier ; for surely the defendant is entitled to
some remuneration for the trouble in storing
and forwarding goods. In any and every point
of view, there is not the least pretext for charg-
ing the defendant with this loss as a common
carrier.
Per Curiam. Motion denied.
Distinguished— 19 Wend., 332 ; 9 Barb., 323.
Cited in— 19 Wend., 239 ; 7 Hill, 545 ; 64 N. Y., 302 ;
31 Barb., 197.
M'CONNELL v. HAMPTON.
Practice — Assault — False Imprisonment — New
Trial Awarded for Excessive Damages.
In an action for an assault and false imprison-
ment against a military commander, for arresting
the plaintiff, a private citizen, on a charge of
treason, confining1 him for five days, and trying
him by a court-martial, the jury found a verdict
for the plaintiff, for $9,000 damages; and a new
trial was granted, on the ground of the excessive-
ness of the damages.
Citations— Styles, 462; Comb., 357; 1 Str., 692;
Salk., 649 ; 5 T. R., 257 ; 4 T. R., 657.
was an action of assault and false im-
-L prisonment, &c., tried before the Chief
Fish v. Chapman, 2 Kelly, 349 ; Maybin v. S. C. Ry.
Co.. 8 Pick., 240 ; Blin v. Mayo, 10 Vt., 60; Ducker
v. Barnett, 6 Mo., 97.
Forwarders are responsible only for ordinary care
and diligence. Brown v. Denison,2 Wend., 593;
Dillon v. N. Y. & Erie Ry. Co., 1 Hilt., 231 ; Platt v.
Hibbard, 7 Cow., 497 ; Schmidt v. Blood, 9 Wend.,
268; Califf v. Danvers, Peake, 114; Finsecane v.
Small, 1 Esp., 315 ; Garside v. Trent Nav. Co., 4 T.
R. 581 ; Sidaways v. Todd, 2 Stark., 400.
But where one takes aoods from the owners and re-
tains the possession and control of them, though he
contracts with others to carry them in vehicles
372
owned and controlled by them, is a common carrier.
Express companies are within this class. Russell v.
Livingston, 19 Barb., 346; Sherman v. Wells. 28
Barb., 403 ; Sweet v. Barney, 23 N. Y., 335 ; Newstad
v. Adams, 5 Duer, 42; Place v. Union Express Co..
2 Hilt., 19; Read v. Spaulding, 30 N. Y., 630; Rich-
ards v. Westcott, 2 Bosw., 589; Mercantile Mut. Ins.
Co. v. Chase, 1 E. D. Smith, 115; Krender y. Wool-
cott, 1 Hilt., 223 ; American Express Co. v. Pinckney,
29 III., 392 ; Christenson v. American Express Co.,
15 Min., 270; 5 Am. Rep.. 122; Buckland v. Adams
Express Co., 97 Mass., 124. But see Hersfieid v.
Adams, 19 Barb., 577.
JOHNS. REP., 12.
181. 5
M'CONNELL v. HAMPTON.
234
Justice, at the Albany Circuit, in October, |
1814. It appeared, from the evidence given i
at the trial, that in the month of August, 1813,
tin- defendant was commander of the Army of
the United States at Burlington, when the
plaintiff, a private citizen, was arrested and
tried by a court-martial. The plaintiff came
to the defendant to make some communica-
tion relative to the enemy ; and the defendant
said the communication was false, and ordered j
the plaintiff to be taken to the guard house,
and said he would have him tried. The plaint-
iff was confined from Tuesday until Sunday ;
and lay on the floor of the guard house, with-
out any bed, but was allowed to procure his
own provisions, and the rations of a soldier,
and was permitted to speak to others, iu the
presence of the officer, but not to leave the
guard house. The witness stated that the
plaintiff was " a back and forth trader, and of j
a respectable character." The defendant de-
clared to the witness that he should have been
justified to have hanged the plaintiff immedi- i
ately at the halberts, but would have him tried \
by a court-martial ; that the defendant after- j
wards declared that the plaintiff was not in a
worse situation than he ought to be ; that he
could convict him, and that he should be con-
victed, if possible, and hanged ; for he Was
guilty of treason, and had been in company
with two British officers, and had given infor-
mation to the enemy.
^.'{."i*] *The witness stated that two British
officers had come into the house where he and
the plaintiff were, at Alsburgh, about a mile from
the Canada line, at the time the British army
were coming to Plattsburgh. Another witness
stated that he believed that the communication
made by the plaintiff to the defendant was
true ; that at the time of the court-martial, the
defendant appeared much prejudiced against
the plaintiff, and it was understood that there
had been some personal difference between
them.
It was stated by a witness that the defend-
ant was a man of liberal educatioq. and that
his yearly income was about $60,000.
The jury found a verdict for the plaintiff
for $9.000 damagw.'
A motion was made to set aside the verdict,
and for a new trial, on the ground of excessive
damages.
Mr. Van Vechten for the defendant.
Mr. Henry, contra. He cited 9 Johns., 45;
10 Johns., 443 ; 1 Lev., 97 ; 2 Mod., 150 ; 4T.
U . 651.
THOMPSON, (Jh. J. That courts have a legal
right to grant new trials, for excessive damages
in actions for torts, is nowhere dented ; but,
on the contrary, has been universally admitted,
whenever the question has been agitated. That
this power, however, ought to be exercised
cautiously and with sound legal discretion,
for the purpose of promoting the ends of jus-
tice, cannot be questioned. The difficulty is
in applying those rules to given cases. The
great and leading object in actions of this
description, as well as in all other private suit*,
is to recover compensation for an injury sus-
tained. But in personal torts, it is difficult,
and indeed, impossible, precisely to estimate
the measure of damages which would repair
JOHNS. REP., 12.
the injuiV. This must be, to a certain extent,
matter of sentiment and feeling, under the
guidance of sound judgment, duly weighing
all the circumstances of the case. Hence, we
can find but very little satisfaction in the ex-
amination of the reported cases on this subject.
It is a question not susceptible of any fixed
and definite rule. But the power of the court
to grant new trials, in such cases, necessarily
includes the right, and imposes on them the
duty, of judging, in some measure, between
the injury proved *and the damages [ * 2<$G
given. According to the language, however,
of adjudged cases, to justify the court in set-
ting aside a verdict, the damages ought to ap-
pear outrageous, or manifestly to exceed the
injury, and such that all mankind would, at
once, pronounce unreasonable, and so as to
induce the court to believe that the jury must
have acted from prejudice or partiality, or
were influenced by some improper considera-
tions. It is not necessary that the court should
believe that the jury acted corruptly. Their
feelings might be so excited, or their passions
so inflamed, as to mislead their judgments,
and induce them to give a verdict, which their
own sober reflection would not approve. The
circumstances of this case, when viewed on
one side only, are very much calculated to ex-
cite feelings of indignation in a jury. If the
defendant was wantonly exercising his mili-
tary power, for the purpose of gratifying any
private resentment, it was an aggravated case.
And there is good reason to believe, from the
amount of damages, that some such considera- .
tions must have operated upon the feelings of
the jury, without duly weighing the circum-
stances, which went to show, and afforded
good ground to believe, that the defendant
acted under an honest, though mistaken opin-
ion, that he had a right to try the plaintiff on a
charge for treason.
If this is the fair conclusion to be drawn
from the testimony, it must strike every one,
at first blush, that the damages given by the
verdict are unreasonable, and indeed, "out-
rageous. It is not, therefore, a case of the
mere assessment of damages, upon an undis-
puted state of facts ; but where different men
might very honestly draw different inferences,
as to the motives which influenced the con-
duct of the defendant. To refuse a new trial
in this case, would, in effect, be saving that a
new trial ought never to be granted* in actions
of this description. Although the defendant
is a man of very large fortune, the plaintiff's
injury is not thereby enhanced. And, under
all the circumstances, I am inclined to think it
will be a discreet exercise of the power of
granting new trials, to send this cause back
for the consideration of another jury.
SPENCER, .7. The rule for granting or re-
fusing new trials, in actions for a personal
injury, is well settled. To justify the grant-
ing a new trial, the damages must be flagrant-
ly outrageous and extravagant, evincing in-
temperance, passion, partiality or corruption
*on the part of the jury, that the 1*237
court have the power to grant new trials, in
actions for personal torts, where excessive
damages have been given, and that this power
has been frequently exerted, cannot be denied.
in
237
SUPREME COURT, STATE OP NEW YORK.
1815
It was done in Wood v. Ounston, Styles, 462 ;
in Ash v. Ash, Comb., 357; in Cliambers v.
Robinson, 1 Str., 692 ; in Clerk v. Udatt, Salk.,
649; and in Jones v. Spurron, 5 T. R, 257.
In the last case a verdict bad been obtained,
in an action for an assault and battery, for
£40, and a new new trial was granted for ex-
cessiveness of damages.
In applying tbe general principle, every
case must be tested by its own peculiar cir-
cumstances, and when the court cannot but
perceive that the damages given are enorm-
ously disproportioned to the case proved, the
only power claimed by the court is, to submit
the case to the revision of another jury. This
principle was very ably illustrated in Duberly
v. Gunning, 4 T. R., 657, and it will be seen
by a reference to the case of Jones v. Spurron,
that Lord Kenyon's strong remark, that he
had not courage enough to make the precedent
of granting a new trial for excessiveness of
damages, was confined to the case of crim.
con., which, said he, in Jones and Spurron,
was a case sui generis ; and in the latter case,
he had the courage to concur in granting a
new trial for excessiveness of damages when
they were only £40.
The facts in this case are few. The de-
fendant, in August, 1813, commanded the
Army of the United States at Burlington, and
caused the plaintiff to be confined from Tues-
day until the Sunday following. The plaint-
iff was brought to trial before a court-martial
instituted by the defendant, on the charge of
treason, having been in company with two
British officers, and with having given in-
formation to the enemy, and was acquitted.
The evidence exhibits the defendant as having
made violent declarations of what he could do
to the plaintiff. It appeacs that the defendant
was a witness before the court-martial, and
stated that the plaintiff made communications
to him relative to the enemy, which were false.
The witness, who proved the proceedings be-
fore the court-martial, declares that he believed
the communication made by the plaintiff to
the defendant was true. On the other hand,
it appears that the defendant had strons
grounds for believing the plaintiff to be a BUS-
238*] picious *character. It is stated by one
of the witnesses that the plaintiff was at Als-
burgh, about one mile on their side of the
Canada line, at the time the British were com-
ing to Plattsburgh; and that two British of-
ficers had come into the house where the
plaintiff was; and that the plaintiff was a
trader back and forth, and had been such for
some time.
Upon these general facts, the jury have
given $9,000 damages ; and although it be
true that the defendant possesses a large for-
tune, I cannot but believe that the verdict
proceeded from intemperance and passion, and
that the damages are enormously dispropor-
tioned to the case proved.
The defendant, as Commander -in-Chief of
a Division of the Army, being near the ene-
my's territory, and at no great distance from
their forces, was bound, by every consider-
ation of duty as a soldier, and of patriotism
as a citizen, to avoid surprise, and to guard
himself against machinations of every kind.
There is strong ground to believe that the de-
374
fendant acted under the impression that the
plaintiff was a suspicious character, if not in
the interest of the enemy ; he had been in
company with British officers on our side of
the line, and he was a smuggler; for this trad-
ing back and forth imports nothing else. Un-
der these circumstances, the defendant might
very naturally believe that a person who
would hold even commercial intercourse with
the enemy, contrary to the laws of the land,
and his duty as a citizen, would feel little
scruple in giving him false information ; and
if his interest could be promoted, giving the
enemy true and important information, which
might betray the Army under the defendant's
command into their hands.
It seems to me that the jury have wholly
overlooked the critical and delicate situation
of the defendant, as a commander of an
army upon the frontiers, as also the very
suspicious light in which he must have viewed
the plaintiff. The declarations made by the
defendant, that he would have been justi-
fied in immediately hanging the plaintiff at
the halberts, were immediately qualified by
the declaration that he would have him tried
before a court-martial ; and it does not appear
that he then knew he was a citizen.
Although the defendant's conduct is not to
be justified, there are circumstances of extenu-
ation, of which the jury have entirely lost
*right. I am strongly persuaded that [*23£>
there never was a case which more emphati
cally required the interposition of the court,
to set aside a verdict strongly marked with in-
temperance and passion, for the purpose of a
revision by another jury.
VAN NESS, J., dissented.
New trial granted.
Cited in-5 Cow., 119; 9 Wend., 470; 12 Barb., 497 :
47 Barb., 201; 8 Bos., 591; 4 Wall., 129; Hemp., 78.
.DEXTER v. TABER.
Slander — Will Not Lie for Charging a Tres-
pass — Whether Charge is of a Felony or Tres-
pass, is for the Jury.
In an action of slander, the words charged were :
" You are a thief," " you are a damned thief." The
words as proved were : " You area thief ; you stole
hoop poles and saw logs from off Delancey's and
Judge Myers' land."
The judge before whom the cause was tried, left
it to the jury to decide whether, by the words
proved, the defendant meant to charge the plaint-
iff with taking timber, or hoop poles already cut
down, in wliicn case it would be a charge of felony,
or whether they were meant only to charge the
plaintiff with cutting down and carrying away
timber to make hoop poles ; in which case it could
amount only to a trespass, and the words would
not then be actionable ; and the jury having found
a verdict for the defendant, the court refused to
set it aside.
Citations— 1 Johns. Gas., 279; W. Bl., 959 ; 9 Cowp.,
278; 9 East, 96; Cro. Jac., 166; Yelv., 152; 2 Ld.
Raym., 959. \
was an action of slander, and was
-L tried at the Herkimer Circuit, the 30th of
May, 1814, before Mr. JusticeV&n Ness. The
words charged were: "You (the plaintiff)
are a thief ; you (the plaintiff) are a damned
thief."
JOHNS. REP., 12.
1815
DEXTER v. TABEK.
The words proved at the trial to have been
spoken by the defendant were : "You (the
plaintiff) are a thief ; you stole hoop pole*
Ami saw logs from off Delancey's and Judge
Mvers' land."
The witnesses said that they supposed the
words spoken alluded to the cutting of stand-
ing timber, but they did not know the defend-
ant's meaning.
The judge told the jury that it was for them
to decide, whether the words, as proved,
amounted to a charge of theft, or of trespass
merely ; that if, by the words, the defendant
meant to charge the plaintiff with secretly
taking timber already cut into hoop poles and
.saw logs, it was a charge of theft ; but if they
meant only that the plaintiff had secretly cut
and carried away timber from off the land, in
•order to make hoop poles, «fcc. , it amounted
to a charge of trespass only ; and, in that
•case, the words were not actionable ; and that
this was his impression as to the meaning of
the words. The jury found a verdict for the
defendant.
A motion was made to set aside the verdict,
and for a new trial.
Mr. II. BUecker, for the plaintiff. He cited
€ro. Jac., 1'W ; Yelv., 152 ; Ld. Raym., 959.
24O*J *\fr. Morr*. contra. He cited 1
Johns. Cas., 279.
Per Curiam. The motion for a new trial must
be denied. The slanderous words charged in
the declaration are, that the defendant said to
the plaintiff: " You are a thief." The wit-
ness who proved the speaking of these words
went on to explain in what connection, and in
reference to what subject the words were
.spoken, to wit : " You are a thief ; you have
.stolen hoop poles and saw logs from off De-
lancey's and Judge Myers* land," alluding to
•certafn wood lands belonging to those per-
sons. The charge thus made may be equivo-
•cul and somewhat doubtful ; and had the
whole charge, as made and proved, been set
out in the declaration, and if this was a mo-
tion in arrest of judgment, it might well be
•contended that the words import a charge
•of felony. But it was correctly stated to the
jury, that if the defendant intended to charge
the" plaintiff with taking hoop poles and saw
logs, already cut, it was a charge of felony :
but if he only meant to charge him with cut-
ting and carrying them away, it was only
•charging him with having committed a tres-
pass. And in what sense the words were in-
tended to be used was for the jury to deter-
mine. This point is well settled, both in our
own and in the English courts (1 Johns. Cas..
279 ; Win. Bl.. 959 ; Cowp., 278 : 9 East, 96.)
The terms "hoop poles" and "saw logs," in
•common parlance, are used indiscriminately,
-as applicable both to standing and foiled tim-
ber of these descriptions. And the jurv have
found that the words were used in the former
sense ; and, of course, not amounting to a
•charge of felony. And the facts in the case
fully warrant the finding of the jury.
SPENCER, «/., dissented. The words laid
.are : " You (the plaintiff meaning) are a
•damned thief ;" the proof was that the words
upoken were : " You (the plaintiff)are a thief ;
.you stole hoop poles and saw logs from off
JOHNS. RHP., 12.
Delancey's and Judge Myers' lands." The
judge, without any proof explaining the
words, other than an imagination of the wit-
nesses, that the words related to cutting stand-
ing timber, though they said they did not
known what the defendant's meaning was,
left it to the jury to determine their meaning,
with an intimation that it was intended to
charge the plaintiff with a trespass. The jury
found for the defendant.
*In Van Kfn**elatr \.Dole, 1 Johns. 1*241
Cas., 279, the words considered slanderous were
proved to have been understood by the wit-
nesses to relate to a transaction the day before,
and used in reference to it. This was held to
qualify the words, and that if understood in
the qualified sense, they were not actionable ;
but here there is no qualification, and we must
construe their words in their ordinary sense.
The words "you are a thief," unaccompanied
with any explanation, are actionable. It is not
necessary to add the particular thing stolen;
for it is to be intended that the words import
a stealing of something which could be the
subject of larceny. It lias not been urged, as
an objection, that the additional words proved
ought to have been stated in the declaration ;
and it could not be urged, with success, unless
indeed the additional words did qualify those
alleged. In Lo v. Sounder*, C'ro. Ja., 166,
the words were : " thou hast stolen my wood:"
on demurrer, it was adjudged for the plaintiff;
for, say the court, it shall be taken in the
worst part ; and wood is to be intended of that
which is cut down, according to the ancient
rule, arbor dum crwcit, lignum dum crencere
neneit.
In Higgsv. Austin, Yelv., 152, thewordsare:
"thou hast stolen as much wood and timber as
is worth £20." The jury found the words
with this addition: "off my landlord's grounds;"
and it was adjudged for the plaintiff, for the
words found by the jury, more than were in
the declaration, do not qualify the first words.
In Baker\. Pierce, 2 Ld., liaym., 959. the
words were : " John Baker stole my box wood,
and I will prove it." There was a verdict for
the plaintiff, and a motion in arrest of judg-
ment, and judgment for the plaintiff. Holt,
Ch. J., said, where words tend to slander a
man, and take away his reputation, he should
b« for supporting actions, because it tends to
preserve the peace ; and that in most cases
where such words have been held actionable,
there are other words of an ill sense to explain
them. Admitting that the words "you stole
hoop poles and saw logs" are equivocal, and
that they do not import absolutely that the
poles were cut or the trees felled ; yet, when
connected with the positive charge " that the
plaintiff was a thief," I think we must intend
that the poles and trees were cut down. Properly
speaking, hoop poles and saw logs are severed
from *the land ; they are neither whilst [*2412
growing. If a man will charge a felony, and
attempt to escape the effects of the charge, by
additional words, these words ought to qualify
the first charge, bv showing that a felony was
not committed. These additional words do
not, for they are, at least, equivocal.
I think the learned judge incorrect in leav-
ing the cause, as he did. to the jury. There
! was no local meaning in the words ; nothing
342
SUPREME COURT, STATE OP NEW YORK
1815
peculiarly for the jury to pass on. The sense
of the words being collected, as far as could
be, the construction of slanderous, or not slan-
derous, belonged to the court.
I am of opinion that a new trial ought to be
granted, with costs to abide the event of the
suit.
New trial refused.
Cited in— 20 Johns, 356 ; 2 Cow., 815 ; 3 Cow,, 240 ; 7
Wend., 177 : 17 Wend., 429 ; 26 Wend., 394 ; 1 Denio-
361; 60 N. Y., 190; 6 Barb., 47 ; 3 Rob,, 290; 5 Sand.-
266 ; 37 Ind., 80.
JACKSON, ex dem. THE PEOPLE,
v.
WOOD.
Mortgages Presumed Satisfied after Twenty
Tears — Possession in Mortgagor — Non-pay-
ment of Interest — Acknowledgments of Sub-
sequent Purchasers.
Where the mortgagee has never entered into pos-
session of the mortgaged premises, and no demand
has been made, or interest paid, for twenty years,
the mortgage will be presumed to have been satis-
fied.
And where (the mortgage never having been reg-
istered) it is attempted to repel the presumption of
payment, by the acknowledgments of subsequent
purchasers of the land, the evidence of the mort-
gage must be clear and explicit.
Citations— 3 Johns., 386 ;*7 Johns., 283 ; Bull, N. P.,
110 ; 8 Johns., 140 : 2 Atk., 275.
THIS was an action of ejectment, brought to
recover lot No. 12, in Bain's patent, in the
town of Cambridge, and tried before the Chief
Justice, at the Washington Circuit, 1814.
The premises in question were mortgaged by
Daniel Ellis to John Munro, by mortgage
bearing date the 18th April, 1775, with cove-
nant for the payment of £60 current money of
New York, with interest annually, commenc-
ing on the 18th April, 1776. It did not appear
that the mortgage had ever been acknowledged
or registered. Munro was attainted for adher-
ing to the enemies of the State, and judgment
of attainder was signed on the 14th July, 1788.
The mortgage and an exemplification 'of the
judgment, were produced and proved, on the
part of the plaintiff.
A witness, on the part of the plaintiff, testi-
fied that he had known the premises in ques-
tion for thirty years past ; that Daniel Ellis
was succeeded, in the possession of the lot, by
one Dobbs, who was succeeded by a Dr. Hill ;
then one Brown succeeded, who purchased
Hill's right to the premises at vendue ; that
Brown sold to Isaac Ferine ; Ferine to Abra-
ham Lake ; Lake to Willard Trull ; Trull to
David Pierce, whose right was acquired by
243*] *Paul Cornell, at public vendue, and
that Cornell sold to the defendant.
Witnesses were produced on the part of the
plaintiff to rebut the presumption of payment,
arising from the lapse of time.
Willard Trull testified that he purchased the
NOTE.— Mortgage— Satisfaction of, presumed after
twenty years.
In the absence of entry by mortgagee, foreclos-
ure, or payment of interest for twenty j^eare, the
mortgage Is presumed satisfied. See Jackson v.
Pratt, 10 Johns., 381, note.
37G
premises in question of Abraham Lake, in
April 1776 ; that at the time of his purchase he
well understood there was a mortgage on the
premises for £60, given by Daniel Ellis to John
Munro ; that when he sold the premises to
David Pierce, he informed him of the exist-
ence of the mortgage, and told him if there
should be any difficulty on account of it, he
would give him Lake's deed, on which he
might seek his remedy ; that he had frequently
spoken with Cornell, who, with one Merritt,
acquired Pierce's right respecting the said
mortgage ; that he was present when Cornell
sold to the defendant, and that he believes the
mortgage was then spoken of, and it was then
understood, if there should be any difficulty on
account of the mortgage, resort could be had
to Lake's deed.
Asa Rice testified that he had known the
premises twenty-six or twenty -seven years ago,
when one Hill was in possession, and that Hill
sold to Brown ; that he had known all the
persons, since in possession of the premises,
and had heard them all acknowledge the exist-
ence of the mortgage given by Ellis to Munro,
and that it was unpaid. On being cross-exam-
ined as to which of the owners of the land he
had heard acknowledge the existence of the
mortgage, he said every one but Brown ; and
on being cross-examined as to the amount of
the mortgage, he said that the occupants told
him that only forty acres were mortgaged, and
that the sum was £40.
The defendant then gave in evidence a deed
of the premises in question, from Brown to-
Ferine, dated the 5th February, 1782 ; a deed
from Ferine to Lake, dated the 21st March,
1793 : a deed from Lake to Trull, dated 15th
April, 1796 ; a deed from Trull to Pierce, dated
24th June, 1806 ; a deed from the sheriff of
Washington County, conveying the title of
Pierce to Cornell, dated the 4th of August,
1810 ; a deed from Cornell to the defendant,
dated the 1st April, 1811. All which deeds,
were for the premises in question, and (except-
ing the sheriff's) contained covenants of war-
ranty, but no mention was made of the
mortgage in either of them.
The Chief Justice charged the jury, that by
the attainder and *conviotion of Munro, [*244
the people had become vested with his rights,
and consequently mitrht bring an action on the
mortgage given to him ; but that the plainliff
was not entitled to recover, inasmuch as the
mottgage had not been recorded, and sufficient
notice of its existence had not been brought
home to the defendant, or those under whom
he claimed, and that the jury had a right to
apply the presumption of law, that the mort-
gage had been paid, to this case, it being of
more than twenty years' standing, and no suf-
ficient circumstances existing on the part of
the plaintiff to repel the presumption. Under
which charge the jury found a verdict for the
defendant.
A motion was made to set aside the verdict,
and for a new trial.
Messrs. Van Vechten and Wendell for the
plaintiff. There can be no doubt, from the
evidence, of the existence of the mortgage ; and
the question is, whether the plaintiff can recover
under this mortgage, it not having been regis-
tered. The statute was made to protect bona-
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. TRUSDELL.
344
fide purchasers ; and the defendant must show
himself to be a purchaser for a valuable con-
sideration, and without notice ; but, from the
evidence, it appears that the defendant, and
those under whom he claimed, had notice of
the existence of this mortgage.
Mr. Orary, contra. The defense relied on
in this case is a possession, for more than
twenty years, under a claim of title. The
lessors of the plaintiff claim under a mortgage,
dated thirty-nine yenrs before the trial. The
right of entry accrued to the mortgagee long
before his attainder. In presumption of law,
the mortgagor still continued in possession.
As nothing was done by the mortgagee, it
must, :iftrr so great a lapse of time, be pre-
sumed that the mortgage had been satisfied
and settled, before this attainder; and its hav-
ing remained so long unregistered, fortifies that
presumption.
Again ; a mortgage is no evidence of title,
if the mortgagee has never entered, and no in-
terest has been paid for twenty years. (Jack-
ton v. Hudson, 8 Johns., 375, 386 ; 7 Johns.,
383.)
Per Curiam. The lessors of the plaintiff
claim title to the premises in question, under
a mortgage, bearing date the 18th of April,
1775, given by Daniel Ellis to John Munro,
for £60. The attainder and conviction of
i24<">*] Munro, and the execution of *thc
mortgage, were duly proved; and the only
question upon the trial was, whether the evi-
dence offered was sufficient to rebut the pre-
sumption of payment, arising from the lapse
of time. There was no witness who spoke of
any acknowledgment of the several owners of
the land; that there was any mortgage upon
it, which was in force and unpaid, except Asa
Rice, and he does not identify the mortgage
now in question. The one he heard spoken
of was for £40, and upon forty, instead of one
hundred acres of land. And he, too, contra-
dicted himself, rir-t saying he had heard all
the owners acknowledge the mortgage, and
afterwards admitting that he had never heard
Brown make any such acknowledgment. And,
besides, his knowledge of the lot seemed to be
imperfect and recent, when compared with the
date of the mortgage. Under such circum-
stances, the jury might well question the ac-
curacy of his memory. The acknowledg-
ments spoken of by all the other witnesses
were in reference to mere vague rumors, and
by no means recognizing^, this as a valid sub-
sisting mortgage, for which the owners of the
land held themselves responsible. And their
conduct shows that they did not consider it in
this light. For, in the numerous sales made
of the premises, no deduction in the purchase
money appears to have been made on this ac-
count ; and warranty deeds were given, with-
out any exception of the mortgage. No bond
was shown ; and the mortgage not having
been registered, no discharge upon it was ab-
solutely necessary to invalidate it. Payment
of the bond would operate as a discharge of
the mortgage. The presumption of the pay-
ment and extinguishment of such an old out-
standing mortgage, ought to be pretty liber-
ally indulged. Where the mortgagee has
never entered into possession of the mortgaged
JOHNS. REP., 12.
premises, twenty years without any demand,
or any interest having been paid, has always
been deemed a sufficient length of time to
warrant the presumption of satisfaction. (3
Johns., 386 ; 7 Johns.. 288 ; Bull. N. P., 110.)
The mortgage not having been registered, can-
not be set off against subsequent oonafide pur-
chasers, unless notice of the mortgage i»
brought home to them. What is said by the
court in Jachnn v. Given, 8 Johns., 140, i»
very much in point, that mere loose conversa-
tions will not warrant the inference of notice.
And Lord Hardwicke, in Hint v. Dodd, 2 Atk.,
275, said that mere suspicion of notice was
not enough to break in upon the Registry Act;
*nothing short of fraud, or clear and [*24O
undoubted notice, would do. The same doc-
trine has been recognized in other cases.
Under these circumstances, the jury were fully
warranted in presuming, either an extinguish-
ment of this mortgage, or a want of due notice
of its existence. The motion for a new trial
must, accordingly, be denied.
Motion denied.
Cited In— 16 Johns., 214; 5 Cow., 130; 5 Wend.,
296 ; 7 Wend.. 98 ; 14 Wend.. 190 ; 19 Wend.. 315 ; 5
Johns. Ch., 553; 4 Paige, 597 ; ION. Y.. 543; 48 N. Y.,
271 ; 29 Barb., 441 ; 4« Barb., 461 ; 1 Abb. N. C., 86; 2
Wood. & M.. 403 ; 11 Allen, 588; 130 Mass., 124.
JACKSON, ex dera. VAN DEN BERGH,
p.
TRUSDELL.
Ejectment. 1. Partition under Statute as Plaint-
iff's Titie. 2. Witnesses — T^essee of Defendant
Incompetent. 3. Improvement*.
Where the plaintiff's lessor in ejectment claim*
under a partition, made by virtue of the Act of
1801, sess. 24, ch. 176, of lands of which the defend-
ant, or those from whom he derives title, were in
possession-previous to the passing of that Act, it is
no defense that he had not paid for the improve-
ments pursuant to the Act of 1785.
When; a defendant in ejectment sets up, as a de-
fense, that he was not in possession when the decla-
ration wasserved, his tenant to whom he had Icasi-d
the land is not a competent witness to the fact, as
be has an interest both in the question and the
event.
Citations— 1 Johns. Cas., 275, 162 ; Cowp., 622 : Act
1785, sess. 8, ch. 39, sec. 6; Greenl. cd., 168; Act
1801, sess. 24, ch. 176.
THIS was an action of ejectment, and was.
tried at the Greene Circuit, in August,
1814, before Mr. Justice Van Ness.
The plaintiff claimed the premises in ques-
tion, being about an acre of land, situate in
the town of Coxsackic, under a judgment in
partition, rendered in the Common Pleas of
Greene County, in January Term, 1812, under
the Act of 1H01. sess. 24, ch. 176, between the
plaintiff's lessor and Wilhelmus and Richard
R. Van Den Bergh.
The defendant purchased the whole of the
premises comprehended in the partition of
Richard R. Van Den Bergh, and immediately
went into possession, in 1812. Richard was
in possession of the premises during the pen-
dency of the proceedings in partition, and long
before. The plaintiff proved the service of
the declaration, some time between the 1st and
9th of May, 1818, and produced testimony to
877
246
SUPKEME COURT, STATK OF NKW YORK.
1815
show that the defendant was* at that time iu
the actual possession.
The defense set up by the defendant was,
1st. That Richard, of whom the defendant
purchased, was in possession of the whole of
the partitioned premises previous to the year
1801, and had made improvements, and set
out an orchard thereon, especially on the
premises in question. These facts being ad-
mitted, the defendant contended that the
plaintiff could not sustain the action until the
defendant was paid for the said improvements,
agreeable to the Act for Partition of 1785.
The judge overruled this objection, reserving,
however, the question of law for the considera-
tion of the court.
247*] *2. That, at the time of the service
of the declaration, the defendant was not in
possession; and in proof of this, produced a
lease from the defendant to his father, Stephen
Trusdell. the elder, dated and executed on the
20th of April, 1813, under which possession
•of the premises was given to the lessee. The
plaintiff objected to the admission of the lease,
but the judge allowed it to be given in evi-
dence.
Testimony was adduced by the defendant to
prove acts of possession by the lessee ; and
by the plaintiff, to show that the lease was
merely colorable. It is unnecessary to state
the evidence, any further than this, that the
defendant offered his father, the lessee, as a wit-
ness, who was objected to by the plaintiff, on the
ground of interest, and rejected by the judge.
The jury found a verdict for the plaint-
iff, which the defendant now moved to set
aside.
Mr. E. Williams for the defendant*-
Mr. Van Dyck, contra.
Per Curiam. The lessor of the plaintiff
claims title to the premises in question, under
the proceedings in partition in the year 1812.
The defendant claims under Richard R. Van
Den Bergh, who was a party in partition, and
who was in the actual possession of the prem-
ises at the time such partition was made.
Upon the trial, one principal question was,
whether the defendant was in possession when
this suit was commenced. The declaration
was .served some time between the 1st and 9th
of May, 1813. The defendant gave in evidence
a lease from himself to his father, Stephen
Trusdell, the elder, bearing date the 20th of
April, 1813, and some proof was given of pos-
session having been taken under this lease, in
April ; and to establish this fact, Stephen
Trusdell, tbe lessee, was offered as a witness,
to show himself in possession ; but was not
admitted. The case of Brant v. Dyckman, 1
Johns. Cas. , 275, is in point to show that the
witness was incompetent. He was called for
the purpose of showing himself in possession ;
he had, therefore, an immediate interest in
preventing a recovery, for the purpose of pro-
tecting his own possession. This seems to be
considered as a question mi generis; partly an
interest in the question and partly an inter-
est in the event. And it is one of those
248*] cases in *which reason and sound
policy lead to the exclusion of the witness; as
from the nature of the fact, there can be no
inconvenience in requiring other proof, which
#78
it must always be in the power of the party
to produce. (1 Johns., 162 ; Cowp., 622.)
The defendant is not entitled to compensa-
tion for improvements. By the Act of 1801,
under which the partition in this case is made,
there is no provision whatever for payment for
improvements. The provision on that subject,
in the Act of 1785, sess. 8, ch. 39, sec. 6 ;
Greenl. ed., 168, has not been continued. And
there are no grounds upon which the defend-
ant can claim, from the lessor, compensation
for his improvements. He must look to the
person from whom he purchased for his in-
demnity. The motion for a new trial must,
accordingly, be denied.
New trial refuted.
LOCKWOOD v. THOMAS.
Husband and Wife — Living Separate — Husband
Liable for Necessaries — What Deemed Necessa-
ries— Separate Estate of Wife.
Where a husband and wife separate, without any
provision being made for her maintenance, the
husband is liable for necessaries furnished her, suit-
able to his condition in life.
Whether the circumstance that the wife has a
separate estate of her own, will exonerate the hus-
band from providing for her maintenance, and how
far it will have that effect. Qucere.
Citations— 1 Bl. Com., 442; 8 Johns., 73; 11 Johns.,
283.
THIS was an action of asmmpsit, for goods
sold to the defendant, and delivered to
his wife; and also for the price of several ar-
ticles of apparel, and other necessaries, furn-
ished by the plaintiff to the wife. The cause
was tried in July,. 1814. before His Honor, the
Chief Justice.
The articles, for the price of which the ac-
tion was brought, were previously delivered
to the 1st January, 1814, and the value of
them, with interest, amounted to $127.25.
They were proved to have been necessary and
suitable to the rank, degree and station in life
of Mrs. Thomas.
The defendant offered in evidence a deed
executed January 14, 1800, by Mrs. Thomas,
previous to her marriage with the defendant,
to her father, Stephen Hogeboom, of several
pieces of land, in trust to her sole and separate
use. The admission of this deed was objected
to, but it was admitted by the judge, subject
to the opinion of the Supreme Court.
The defendant also gave in evidence the will
of Stephen Hogeboom, who died on the 4th
April, 1814, about two months after this
*suit was commenced, by which he de- [*249
vised to trustees, with a power of sale, an es-
tate of the value of $12,000, in trust for the
sole and separate use of Mrs. Thomas.
On or about the 1st of May, 1813, the defend-
ant ceased to keep house, and made no pro-
vision for the support of his wife: soon after
that period, she came, at the instance of her
husband, to the house of John Russell, Esq.
(a witness in the cause, who testified to those
facts), in the village of Troy; and with her
servant, boarded with him, at the rate of $5
per week, her room to be furnished by her-
self, expecting that an arrangement would be
made for a permanent separation from her
husband; but as nothing was done towards
JOHNS. REP.. 12.
1815
JACKSON. EX DEM., v. Louw.
249
completing such an arrangement, on the part
of the defendant, Mrs. Thomas consulted the
witness as to the course which she ought to
pursue; who advised her to take up such goods
and articles, upon the credit of her husband,
as she would be able and willing to pay for, if
the arrangement between her and her husband
should be completed; and she accordingly
purchased the goods in question. The defend-
ant had only furnished his wife with $50,
since she came to reside with the witness, and
having refused to pay her board, he sued him
for it, and no part «>f it had been paid, until
May, 1814, after the return of the writ in the
present suit. The reul property, mentioned
in the deed, produced annually from $100 to
$120; but a part of it had been sold for $2,000,
and the defendant received part of the consid-
eration money, and the securities for the res-
idue. Mrs. Thomas had also a personal estate
which yielded, several years ago, about $80
per annum, but $400 of the principal of her
personal fund had been expended previously
to May, 1818. While her principal was entire,
the money received by her, per annum, never
exceeded $300, which was insufficient to pur-
chase her necessary clothing, even if her hus-
band paid for her board. Most of the proper-
ty to which Mrs. Thomas was entitled under
her father's will was unproductive, and the
present suit was commenced before her title to
it accrued. Mrs. Thomas, from motives of
economy, had agreed to furnish her room, and
therefore several articles had been necessarily
purchased this vear which would be unneces-
sary hereafter. The defendant was now worth
about $50,000, and had supported his wife
several years, while he lived with her, in a
respectable manner.
A verdict was found for the plaintiff, for
25O"] *$137.25, subject to the opinion of the
court on the above case.
YATES. J., delivered the opinion of the
court :
The husband is bound, by law, to provide
necessaries for his wife, as much as for him-
self; and if she contracts debts for them, he is
obliged to pay such debts; but for anything
besides necessaries he is not chargeable; and
what are necessaries must be ascertained by a
jury, from the rank and circumstances of her
husband. (1 Bl. Com., 442.) Where there is
cohabitation, the principle cannot be ques-
tioned, because that, of itself, is deemed evi-
dence of his assent to contracts by her for ne-
cessaries. When the husband and wife are
separated, and a sufficient amount in nioney
has not been given to supply the wife with
necessaries, the law also makes it his duty to
maintain her. And when the law imposes a
duty, it raises a promise on the part of the
person on whom it is imposed to discharge it.
These principles are well established, and nave
been recognized by this court in several in-
stances. (8 Johns.. 78; 11 Johns., 283.)
It appears that Mrs. Thomas went to the
house of Mr. Russell, not only with the knowl-
edge, but at the instance of her husband; it
ought not therefore to be urged that a com-
pliance on her part with his request could pos-
sibly exonerate him from the obligation of
maintaining her. He must have expected and
.JOHNS. REP., 12.
intended, at the time, to have provided her
with necessaries suitable to her condition in life.
From the smallneas of Mrs. Thomas' annual
income, out of her separate estate, it is evident
she could not be supported according to her
rank and condition in life. The property she
is entitled to by the will of her father, she re-
ceived after the commencement of this suit ;
that, of course, cannot now be brought into
view. Admitting, then, that the inquiry, as
to the deed to the trustee, was admissible, the
amount is too inconsiderable to affect the ver-
dict in this suit. It appears that she came to
the house of Mr. Russell, on or at>out the 1st
May, lH18:and the present suit was commenced
about February, 1814, nine months after-
wards, during which period her husband had
paid her $50, toward her clothing and the ex-
penses of her servant: her board he paid after
the comnencement of this action, on being
prosecuted for it. The whole annual income
*of her property, at the time this debt [*2£» 1
was contracted, after deducting from her real
estate the consideration money for what has
been sold and received by the defendant, and
$400, the amount of the diminution of her
personal estate before May, 1813, according
to the most liberal calculation in favor of the
defendant, could not have exceeded $180; a
sum, in my view, wholly inadequate to defray
the expenses necessary for her maintenance
the first year after their separation, admitting
that her board had been paid by him. It can-
not be deemed extravagant or improper for her
to have furnished her own room. Mr. Russell,
the witness, states that she was induced to do
it from motives of economy, and therefore,
several articles had been purchased the first
year which would be unnecessary thereafter.
The defendant had supported* his wife for
several years, while he lived with her, in a
respectable style, and is worth about $")0,000,
so that, according to her condition in life,
Mrs. Thomas cannot be charged with profu-
sion in her expenses: a furnished room und a
servant appear to me indispensable. Making,
therefore, the necessary allowance for the
means of support in her own power, I do not
think that the goods taken up. amounting,
with interest, to $124.25 (it being the first, and,
consequently, the most expensive year since
she lived separate from her husband), can be
considered as unreasonable and improper. My
opinion, therefore, is, that judgment be en-
tered in favor of the plaintiff for the amount
of the verdict.
Judgment for the plaintiff .
Cited in 22 Barb., 100.
•JACKSON, ex dem. THE TRVSTEKS [*2*>2
or THE TOWN OK KINGSTON, and VAN
A KEN,
t>.
LOUW.
Real Property — Where Boundary i* a cer-
tain Creek Line it Tfirouffh Middle of
Stream — Conveyance by Trustee* to Oterteert
— Statute Regulation.
The learal title in the property bclonfring to the
frtvholdrrs and inhabitant* of Kingston continued
to their trustees, until conveyed by them to the
879
252
SUPREME COURT, STATE OP NEW YORK.
1815
supervisors and overseers of the poor of the town
of Esopus, Saugerties and Kingston, under the 3d
section of the Act to Divide the Town of Kingston
(sess. 34, ch. 161, April 5, 1811).
Where one of the boundaries of the premises de-
scribed in the deed is a line to be run up a creek,
the line must be run through the middle of the
creek, according to its turns and windings.
Citation— Act April, 1811, sess. 34, ch. 161 a.
THIS was an action of ejectment for lands
in the town of Saugerties, in the County
of Ulster, and was tried before Mr. Justice
Van Ness, at the Ulster Circuit, in September,
1814.
The premises in question were within the
founds of the patent of Kingston. The plaint-
iff produced a deed, dated the 28th of No-
vember, 1812, from the defendant and others,
to Van Aken, one of the lessors of the plaint-
iff, of a lot of land, " beginning at a stone set
up in the ground, standing on the south side
of the Platte Kill, and thence runs south, &c.,
west, &c., to a white oak tree, marked, &c. ;
then south, &c. , to a white oak tree marked,
standing near the said Kill : then up the said
Kill north, &c., containing sixteen acres, one
quarter, and sixteen perches."
The plaintiff also introduced a lease in fee,
reserving an annual rent, executed by the
trustees of the freeholders and the common-
alty of the town of Kingston to Abraham P.
Louw, the defendant's father, for the same
premises, dated November 8, 1771 ; and also
a deed from the heirs of Abraham Louw to
Van Aken, dated the 12th of April, 1813, for
a certain piece of land, situate in the town of
Saugerties, being part of land covered with
water in the Platte Kill, lying adjoining a lot
containing sixteen acres, one quarter, and
twenty-eight perches, and bounded as follows:
"Beginning in the southeast corner of the
said sixteen acre lot, and runs thence south-
east to the middle of the said Kill ; then up,
through the middle thereof, northwardly, and
northwesterly, until a south course will strike
the northwest corner of the said lot ; then
with the said course to the same, and then
along the same to the place of beginning."
The plaintiff also produced a deed, executed
by the trustees o*f Kingston to Van Aken,
dated the 20th of August, 1813, of "all that
certain small lot or parcel of land which was
lately in the possession of Abraham Louw, Jr.,
deceased, situate in the town of Saugerties,
adjoining the southeily bounds of the land
conveyed by the heirs of the said Abraham
Louw, Jr., to the said John C. Van Aken, on
the westerly side of the Platte Kill, and is
bounded as follows," &c.
253*] *The plaintiff also produced a deed
from the trustees of Kingston to Abraham
Louw, Jr., alia* dictus Abraham P. Louw,, for
parts of lots Nos. 51 and 52.
The defendant then read in evidence a
deed from the trustees of Kingston to Peter
Louw, dated 30th of June, 1804, for lot No.
50, and part of Nos. 51 and 52, " beginning at
a stake marked, standing on the south line of
lot No. 53, and in the line of a lot this day
conveyed to Abraham Louw, Jr., and runs
thence south to a stake, &c. ; thence north,
&c. ; thence south, &c., to the Platte Kill ;
thence up the same to the southwest corner of
a lot this day conveyed to the said Abraham
380
Louw, Jr.; thence, &c., containing forty-eight
acres, excepting two small lots belonging to his
father." ,
Testimony was introduced respecting the
manner of running the line up the Kill, which
appears to have been the principal question
as to the boundaries, made in the cause.
There was another question as to the loca-
tion of the lots excepted in the last mentioned
deed from the trustees to P. Louw. John A.
Louw proved that these lots were in the pos-
session of the defendant's father, at the time
the defendant obtained the deed from the
trustees, and were claimed by the defendant's
father from the trustees, until his death ; these
lots were understood by all as being excepted
in the deed to P. Louw, and were south of the
sixteen acre lot of leased land. William
Blackwell also testified to the same facts.
The jury, by the direction of the judge,
found a verdict for the plaintiff, reserving the
question as to the true mode of running the
line to the southwest corner of the land of
Abraham Louw, Jr., for the opinion of the
court.
Mr. Sudam for the plaintiff.
Mr. L. Elmendorf, contra.
YATES, J., delivered the opinion of the
court:
It is admitted that the lands in question are
included in the patent of Kingston ; and the
deed from the trustees of Kingston to the
lessor of the plaintiff evidently comprehended
the premises in question. Unless, therefore,
the premises passed to the defendant by the
deed from the same trustees of the 30th of
June, *1804, the plaintiff must recover, [*2*>4-
at all events, to the extent of what is not em-
braced by that deed, provided the trustees, ou
the 12th of April, 1813, had a right to convey
to the lessor of the plaintiff, or still retained
title to the premises, sufficient to enable them
to recover on their own demise.
Admitting that by the operation of the Act
of 1811, 34 sess., ch. 161, the trustees are en-
titled to convey, and that their deed to Van
Aken is void, yet the legal title remains in
them, until a transfer is made by them to the
supervisors "or overseers of the poor, pursuant
to the Act. The Act is somewhat obscurely
worded ; but when all its parts are taken
together, it must be construed as only directing
the trustees to convey. The second section
declares that, as soon as may be, after the first
Tuesday in May then next, all the corporate
estate and interest remaining undivided, of
the freeholders and commonalty of Kingston,
shall be, and thereby is declared to be, vested
in the supervisors of the poor. If the title
was intended to be vested in the supervisors
of the poor, by operation of the Statute solely,
it would not have declared that as soon as may
be after the 1st of May, &c. The expression
necessarily implies that something was to be
done after the 1st of May to pass the title ;
hence the necessity and propriety of the pro-
vision in the third section : " That as soon as
may be after the 1st of May, the supervisors
should notify the trustees and overseers of the
poor to convene ;" and requiring the trustees
to make a full surrender, transfer, assignment
and delivery to the supervisors and overseers
JOHNS. REP., 12.
1815
MORRELL ET AL. V. PlXLEY.
254
of the poor, of all the estate vested in them,
in trust for the freeholders and inhabitants of
Kingston. If the estate was vested in the over-
seers, by operation of the second section, this
provision was unnecessary, and indeed, ab-
surd, for if the estate bad already passed by
the Act, they could not transfer anything to
the overseers of the poor and the supervisors.
There is an incongruity between these two
sections. The second declares the estate vested
in the overseers of the poor; and the third
requires the trustees to assign, transfer and
surrender the same to the supervisors and
overseers of the poor. It must undoubtedly
have been the intention to vest the interest in
the supervisors and overseers, because the
supervisors are made a part of the board which
is to meet, to take the management and direc-
tion of the property, pay ing debts, and making
division of the lands ; and to whom the trust-
255*] ees are to account. 'According to this
construction, then, the title remains in the
trustees until they transfer the same to the
supervisors and overseers ; and there is no
evidence that this has been done. The trust-
ees, therefore, still retain a right to recover
on their demise, if they have not parted with
that right by the deed of 1804.
The defendant, by the deed of the 30th of
June, 1804. is not entitled to more than one
half of the Platte Kill, or Creek. After stating
the cpurse leading to the creek, the words
used are, " thence up the same to the south-
west corner of a lot conveyed to Abraham
Louw, Jr."
There can be no doubt but that this lot
must follow the creek upon one of its banks,
or through the middle. This description or
boundary never can be satisfied by running a
direct or straight line. The terms " up the
same " necessarily imply that it is to follow
the creek, according to its windings and turn-
ings, and that must be in the middle or center
of it. The rule is well settled that when a
creek, not navigable, and which is beyond the
ebb and flow or the tide, forms a boundary,
the line must be so run.
The small lot belonging to, or possessed by
the father of the defendant, and excepted in
the deed under which he claims, was suf-
ficiently located by the testimony of John A.
Louw and William Blackwell to warrant the
verdict of the jury. They both agree that the
situation of the land thus'excepted was south,
and adjoining the sixteen acre lot ; that the
father of the defendant and one of the wit-
nesses possessed it at the time the above deed
was executed by the trustees to the defend-
ant, and, consequently, claimed it in behalf of
the trustees, and continued to do so until his
decease. This ought also to be included in the
recovery.
JOHNS. REP., 12.
Judgment for the plaintiffs.
Cited in-20 Wend., 157 : 34 Barb., 519 ; 22 How. Pr..
134 ; 1 Sand., 348 ; 30 Win., 432.
*MORRELL ET AL., Executors. &c., [*256
».
PIXLEY.
SAME t. SEAMAN AND REYNOLD, Bail, &c.
Practice — Amendment of Bailpiece — Surrender
of Principal.
A ballpieoe in a cause, after an attempt by the
bail to surrender, was not allowed to be amended at
the iiistn iir«- of the plaintiff, by striking1 out the
words "trespass on the caw," and inserting1 the
word "debt,"8o as to make it conform to the action
in which the principal was, in fact, arrested, the
plaintiff's attorney not having discovered the mis-
take until after a suit against the bail.
MR. SLOSSON.for the plaintiffs, moved for
leave to amend the bailpiece filed in this
cause, by striking out the words "trespass on the
case," and inserting, in their place, the word
"debt." The writ and declaration were in
debt, and special bail was put in, in June,
1813. Judgment was obtained in January
Term, 1814, on which a ca. sa. was issued, and
returned //"/* est inventus. In September fol-
lowing, the suit was commenced against the
bail, and in February last a declaration was
filed, to which the defendants, in March last,
pleaded non tiel record.
It appeared that in October or November
last, one of the plaintiffs was informed of the
mistake in the bailpiece ; but the plaintiff's
attorney stated that he did not know of it un-
til it was intimated to him in April last, by
the attorney for the defendant. It appearea,
also, that some time after the bailpiece was
filed, the bail had proceeded to take their
principal, in order to make a surrender ; but
it appearing from the copies of the bailpiece.
procured for that purpose, that the bail was
not in the action in which he had been arrest-
ed, nothing further was done, and the prin-
cipal was again set at large. *
Mr. P. A. Jay, contra, objected that this
being a recognizance signed by the party, and
acknowledged before a judge, could not be
altered in this way, any more than a bond or
contract.
Per Curiam. This amendment cannot be
allowed ; especially after an attempt of the
bail to surrender their principal, and when it
might be to their prejudice. There appears
also to have been a laches on the part of the
plaintiffs, in not making the application
sooner.
881
[END OF MAT TERM, 1815.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK,
AUGUST TERM, IN THE FORTIETH YEAR OF OUR INDEPENDENCE.
SMITH v. SHAW.
Jurisdiction of Court- Martial. 1. Where neither
Subject Matter nor Person are within the
Jurisdiction, Proceedings are void, and all
Concerned therein Trespassers. 2. Civilian
not Amenable to Martial Law. 3. Principal,
a Trespasser, by Ratification of Agent's Acts.
Where a person not subject to the jurisdiction of
a court-martial is arrested, and detained for trial,
for an offense not within their jurisdiction, not
only the persons making the arrests are trespassers,
but also a commanding officer who ratifies and
affirms their acts, or himself undertakes to exercise
restraint, over the plaintiff, is subject to an action.
Whether a mere refusal to discharge the plaintiff
would render the commanding officer a trespasser.
Quaere. But it seems that a provost marshal would
not be liable for detaining the plaintiff.
A citizen of the United States, not in military
service, is not amenable to a court-martial.
Where the subject matter of a suit is not within
the jurisdiction of a court, all the proceedings are
absolutely void, and the officer, as well as the party,
is a trespasser.
But where the subject matter is within their juris-
diction, and the want of jurisdiction is to the per-
son or place, the officer is excused, unless the want
of jurisdiction appears on the process.
Citations— 1 Sess., 9 Cong., ch. 20, Art. 80, 81 :
Cow p., 476 ; 10 Coke, 76 ; Hard., 480 ; 3 Cranch, 331,
337; 2 Wils., 382; Cowp., 175; Act Cong., April 10,
1806, Sec. 2; Cro. Car., 196 ; 1 Ld. Rayin., 229; 2 T.
Jon. -s, 214.
IN ERROR, from the Court of Common
Pleas of Jefferson County.
Shaw brought an action of assault and bat-
tery, and false inprisonment, against Smith, in
the court below. The defendant pleaded not
guilty, with notice of special justification, to
be given in evidence on the trial. At the
trial, in July, 1814, it was proved, on the part
of the plaintiff, that, in January, 1814, Shaw
was arrested, at Adams, distant about fifteen
miles from Sackett's Harbor, by two persons,
whose names were Hopkins and Findley, and
carried by them to Sackett's Harbor. The wit-
ness applied to the defendant to get Shaw re-
leased, and the defendant said he had a man
in the provost guard, by the name of Shaw,
NOTE.— Ministerial officers— How far protected by
•procots. For a full discussion, see note to Warner
v. Shed, 10 Johns., 138, and other notes there cited.
382
who had been brought there by Hopkins ; that
he had been confined four or five days, on
charges of treason and of being a spy ; and
that he, the defendant, should not release
Shaw until he had seen Lieutenant Hopkins,
who was expected *to return to Sack- [*258
ett's Harbor in eight or ten days ; that he, the
defendant, was not acquainted with the civil
law, but knew the martial law, and should be
governed by it ; that he should regret to keep
an innocent roan in confinement, and if he
were satisfied of the innocence of Shaw, he
would release him. Shaw was brought before
the defendant, by his order, and stated that a
person of the name of Burr, at Sackett's Har-
bor, knew him to be a citizen of the United
States. Smith made some excuse for not then
sending for Burr, but said he would send for
him the next day, and remanded Shaw to the
§uard house. The witness understood from
mith, that he was the commanding officer at
Sackett's Harbor. The witness, about ten days
after, saw Shaw at large, m Adams.
Another witness stated that when Smith
was applied to, as above stated, in behalf of
Shaw, he appeared to have forgotten him, and
observed that he had been very much occupied;
that he legretted to detain an innocent man;
but that he must investigate the case, before
he could, with propriety, discharge him. It
was proved that Shaw (a native of Scotland)
was a naturalized citizen of the United States,
and resided in the County of St. Lawrence at
the time of his arrest.
The defendant below offered to prove, in
justification, that on the 6th of January, 1814,
the plaintiff below was committed by Hopkins
and Findley, then officers in the Army of the
United States, to the officer commanding the
provost guard at Sackett's Harbor, and by their
order was taken and kept by that officer, in
his custody ; that Hopkins and Findley, at the
time of the commitment of the plaintiff, de-
livered to the officer of the guard a writing
signed by them, stating the charges against
the plaintiff to be : " exciting insurrection and
mutiny among the good citizens of the United
States, at the town of Adams, in the State of
New York, on the 6th of January, 1814 ;"
JOHNS. REP., 12.
1815
SMITH v. SHAW.
" violating his parol as a prisoner of the
enemy, and engaging in an illicit trade, to
furnish the enemy with necessaries from the
United States;" "being an enemy's spy in
time of war, between Great Britain and the
United States ;" under which last charge, it
was specified, "making improper and sus-
picious inquiries of and concerning the military
post at Sackett's Harbor, in the vicinity of the
same ; and for lurking in and about said post,
without any apparent cause or business." The
25!)*] defendant 'further offered to prove
that the plaintiff was so committed, and so re-
ceived and detained by the officer of the pro-
vost guard ; that it was the same detention
complained of . and that the defendant could
not legally prevent the said arrest and deten-
tion o? the plaintiff.
The court below refused to admit the evi-
dence thus offered by the defendant in justifi-
cation, but decided that it might be received in
mitigation of damages ; and with that direction
the cause was left to the jury, who found a
verdict for the plaintiff for $779.25. The
counsel for the defendant tendered a bill of
exceptions to the opinion of the court below,
on which the writ of error was brought to this
court.
Mr. Sterling, for the plaintiff in error, con-
tended that the evidence offered by the defend-
ant in justification was improperly rejected
by the court. The defendant below was not
answerable for the arrest of the plaintiff. It
was made without th« knowledge or consent
of the defendant, who knew nothing of
the plaintiff until he was committed to the
costody of the officer of the provost guard.
Was the defendant bound to discharge with-
out any inquiry into the circumstances of the
case ? It does not follow, because a person
has a command, or control over the arresting
officer, that he is responsible to the person ar-
rested, without legal notice of his being un-
lawfully detained. Legal notice to the defend-
ant must !>•• the decision of a court-martial,
as to the innocencyof the prisoner. According
to the laws and usages of war, the defendant
could not have discharged Shaw without in-
vestigating the cause of his commitment.
By the Articles of War (80, 81, 82), an officer
commanding a guard, or provost marshal, is
bound to receive and keep any prisoner com-
mitted to his charge by an officer of the Army,
provided such officer delivers an account in
writing, signed by him, of the crime with
which the prisoner is charged ; and such pris-
oner cannot be released "without proper au-
thority."
The "proper authority" mentioned in the
Articles of War, is not the will and pleasure
of the commanding officer, but the decision of
a regular court-martial. It may be said, per-
haps, that the defendant did not proceed ac-
cording to the Articles of War, but discharged
the plaintiff, afterwards, on being convinced
of his innocence, without any court-martial
2«O*] having been held. *If the defendant
did so, he acted without proper authority, and
at his peril.
But we contend that the detention of the
plaintiff was not unlawful. The plaintiff was
charged with being n spy, and with a breach
of his parole ; these were offenses within the
JOHNS. K>.r . 12.
jurisdiction of a court-martial. It is enough
to ju-t if y the officer, that the subject matter is
within the jurisdiction of the court. If the
court has no jurisdiction as to the person of
the party arrested, he must come in and plead
; it. (Lucking v. Denning, 1 Salk., 201 ; Cowp..
;476; ICaines, 92.) We do not pretend that
citizens are subject to courts-martial for
crimes ; but if the subject matter is with-
: in the jurisdiction of a court-martial, the
| party must plead that he is a citizen, and
, not a soldier. In Grant v. Gould, 2 H. Bl., 69,
86. it was admitted that a court-martial had a
right to try and decide the question, whether
soldier or not. Such power is inseparable from
its jurisdiction. It must, however, take care
to decide the question on proper and sufficient
evidence.
But we contend that the plaintiff, as to his
person, was subject to a court-martial ; he was
an alien, born in the enemy's country, and,
priinn facie, was an alien enemy.
Again ; admitting that the plaintiff was a
naturalized citizen, he might, on the princi-
ples of natural and unalienable allegiance, be
treated as a spy. He might be treated accord-
ing to the laws of his native country. The
doctrine of perj)etual allegiance has been rec-
ognized by our courts. In the case of Isaac
Williiirns.who was tried in the Circuit Court of
the United States.for the District of Connecti-
cut,in September, 1799,C%w/ Justice Ellsworth
adopted the principle and the reasoning of
Blackstone, relative to allegiance, or the polit-
ical compact, and considered it as still the com-
mon law of this country. He accordingly re-
jected the evidence offered by the prisoner, to
show that he was a naturalized citizen of
France.
A court-martial had power to try the ques-
tion whether Shaw was a naturalized citizen
or not. Citizenship is a plea that might be
urged by every person arrested as a spy, and
it must necessarily be tried by the court-mar-
tial before whom he is brought. It may be
said the Articles of War of the United States
speak only of officers and soldiers : so do the
Mutiny Acts of England ; yet courts-martial
try the question, whether a person is a soldier
or not.
*Again, as to the policy of this doc- [*2O1
trine ; it is essential to the public safety. Sal-
u* pnpuli supremo, lex e*t. This is not a doc-
trine dangerous to liberty, or to the rights of
citizens, qualified as it is with the requisites,
that there must be a case of necessity, a proba-
able cause for the arrest. Silent lege» inter ar-
ma. In cases which are for the public good,
a man may justify doing a wrong ; as in time
of war, a person may erect bulwarks on the
land of another. (Noy's Maxims, 23 ; Plowd..
323 ; Dyer, 36 b.) A man may justify pulling
down a house that is burning, to save the
neighboring houses. Cases of necessity and
public exigency are exceptions to the general
rules of common law. If the rights of public
property may IKJ violated, in time of war, for
the public good, why may not the rights of
person be violated also? It is admitted on all
hands, that if the plaintiff had been a spy, his
detention would have been justifiable and
proper. Now the defendant did nothing
more than every officer, in his situation was
388
261
SUPREME COURT, STATE OP NEW YORK.
1815
bound to do ; that is, to make inquiry into the
truth of the facts charged against the prisoner,
•whom it was necessary to detain, until the fact
of his being a spy, or not, could be ascertained.
It is impossible for the commanding officer to
know whether the person arrested is a spy or
not without investigation.
But the plaintiff, being an alien, born in Scot-
land,was prima facie, an enemy ; and there was
therefore, a probable cause for the detention.
Again ; had not the defendant a right to de-
tain the plaintiff, in order to deliver him over
to the civil power, there being a charge of trea-
son against him? The 82d Article of War re-
quires every officer or provost marshal, to
whose charge prisoners are committed, within
twenty-four hours after such commitment, or
as soon as relieved from his guard, to report,
in writing, to the commanding officer, the
names of the prisoners, their crimes, and the
names of the persons who committed them.
Mr. Storrs, contra (Mr. Van Vechten, same
side). The plaintiff, being a naturalized citi-
zen of the United States, is, by our law, enti-
tled to all the rights and privileges of a native
citizen, without exception. Even in England,
an alien naturalized by Act of Parliament,
though incapable of holding certain offices, is
in the same state as if he had been born in the
King's legiance, (1 Bl. Com., 374), and is enti-
tled to the same privileges and immunities.
262*] The doctrine of *perpetual allegiance
has no application to this case. The question
is not between the government of the United
States and that of Great Britain, but between
this government and one of its naturalized
citizens. The policy of our government
has been to protect its naturalized citizens, not
only in this country, but everywhere ; and if
they did not receive the same protection as a
native citizen, the act of naturalization would
be a cruel mockery.
Then, what are the rights and privileges of
a native citizen? He is entitled, in every pos-
sible case, to protection from military power.
The laws, rules, and Articles of War, apply
exclusively to officers and soldiers, or such
persons as are subject to military law. 'These
military courts-martial are of very special and
limited jurisdiction. Martial law, as it is called,
is, as Sir Matthew Hale (Hist. C. L., ch. 2, p.
•54, 5 ed.) observes, in truth, no law, but some-
thing merely indulged as law.1 The civil or
municipal law knows no such thing as a mili-
tary state or military court. Our citizens, in
this respect, are in the same state as if no war
existed. Independent of the Mutiny Act in
England, or of our Act of Congress relative to
the Army, no such thing as a court-martial or
military law is known. Without this special
Act, a court-martial would not have power
even to try a spy. Being a spy is an offense
against the law of nations, and might be tried
by a court of common, law. The second sec-
1.— Lord Loughborouph, in Grant v. Gould, 2 H.
Bl., 98, said that martial law, as described by Hale
and Blackstone, did not exist in England at all. It
had been exploded for more than a century, as con-
trary to the Constitution. The Mutiny Act passed
from time to time, is the authority for courts-mar-
tial, which are subject to the controlling1 power of
the courts at Westminster Hall, to prevent any ex-
cess of jurisdiction by those special courts.
384
tion of the Act Establishing Rules and Arti-
cles of War, passed April 10, 1806, defines a
spy. It declares " that in time of war all per-
sons not citizens of, or owing allegiance to the
United States of America, who shall be found,
lurking as spies, in or about the fortifications
or encampments of the Armies of the United
States, or any of them, shall suffer death, ac-
cording to the law and usage of nations, by
sentence of a general court-martial." It can-
not, surely, be pretended that the plaintiff, a
naturalized citizen, could be treated as a spy.
The plaintiff is entitled to all the benefits of
our Constitution and Bill of Rights. It is one
of the very grievances enumerated in the Dec-
laration of Independence, that the King had
effected to *render the military inde- [*263
pendent of and superior to the civil power. It
is matter of astonishment, that in less than
forty years, and in the life of the men who
framed that instrument, it should be urged in
a court of justice that this military power can
be exercised in this country ; in England it
would not even be debated.
The bill of exceptions does not state even
that the defendant offered to prove that the
plaintiff was lurking in or about the fortifica-
tions or camp at Sackett's Harbor. If the de-
fendant meant to justify, he ought to have
pleaded specially, or given notice of the pre-
cise facts he intended to prove. The notice
states no more than what the defendant offered
to prove, namely, that Hopkins and Findley,
officers of the Army of the United States, com-
mitted the plaintiff to the officer of the guard,
or provost marshal ; and that the defendant,
therefore, had a right to detain him, until he
inquired into his case, or had the plaintiff
tried by a court-martial.
If the two officers who arrested the plaintiff
were trespassers, then the defendant was a
trespasser ; he must be deemed, by relation, a
party to the original arrest ; in judgment of
law, he was present, and a party to the arrest
— every officer and soldier was under his abso-
lute command and control. The plaintiff,
moreover, was brought into the presence of
the defendant, and claimed his rights as a citi-
zen ; but the defendant ordered him back to
the guard house. A moment's delay, after
such a claim, for any cause, was unjustifiable.
A military commander, after a claim of citi-
zenship, cannot detain the party, or, if he does
so, it is at his peril. The defendant said
he knew nothing of the civil law, but should
be governed by the martial law.
Because courts-martial have jurisdiction over
spies, it does not follow that they have a right
to detain and try every person charged as a
spy. To make out a justification, the defend-
ant should show that he had jurisdiction over
the person of the plaintiff. If a militiary
commander is allowed to be a judge, and to
decide the question whether a person be a
citizen or not, he has jurisdiction throughout,
and may order a court-martial, and have the
party tried and executed. If such be the law,
on what ground did this court issue a habeas
corpus, in the case of Stacy, to a military com-
mander, and order an attachment against
him, in case he did not discharge the pris-
oner forthwith ? If the *command- [*264
er, in that instance, had authority to try,
JOHNS. REP., 12.
1815
SMITH v. SHAW.
264
tlii-^ court could not discharge on habea» corpu*.
But it IK said the defendant might detain the
plaintiff, in order to hand him over to the
civil magistrate. This is a new ground of
justification. The defendant did not pretend
to be a civil or peace officer. It is the first
time we have heard of military commanders
being peace officers. An officer of the peace
is bound to inquire, and may justify an arrest
and detention, on prpbable cause. A mere
citizen arresting another for a felony, does it
at his peril. But what grounds or probable
cause, have been shown by the defendant?
The plaintiff was arrested fifteen miles from
Sackett's Harbor, and his place of residence
was more than one hundred miles from that
place.
Again ; the facts in justification were before
the jury.
Mr. .\f. William*, in reply, said the question
\v:i-, whether the defendant was acting as a
ministerial offlcer.in a case in which it was his
duty to act. If he was, and he exercised his best
judgment, he cannot, by any principle of law,
or doctrine of relation, be made a trespasser.
• (11 Johns., 121, 158, 160.) The defendant
merely received a prisoner who had been ar-
restetf by officers who had a right to arrest.
The detention of the plaintiff, before he was
reported to the defendant, cannot be imputed
to the defendant. And the defendant had a
right, afterwards, to detain the plaintiff a rea-
sonable time, to inquire into the case, and as
certain the truth of his claim to be discharged.
(Tiylorv. Brander. 1 Esp. N. P. Cas., 45.)
And what is a reasonable time, must depend
on the circumstances of the case. Now the
court below decided that the defendant had no
right to detain the plaintiff at all, not that he
detained him an unreasonable time.
Admitting that the defendant had no right
to decide the question whether the plaintiff
was a citizen on not, we say that for that
very reason he had a right to detain him until
the question could be decided by a court-mar-
tial, or the proper authority.
THOMPSON, G%. «/., delivered the opinion of
the court:
This case comes before the court upon a
ii<J*>*] writ of error to the *Common Pleas of
Jefferson County, upon a bill of exceptions
taken at the trial, for excluding the testimony
offered on the part of the defendant below.
The action was for false imprisonment ; and
the defendant, under the general issue, gave
notice of a justification ; to support which,
upon the trial, he offered to prove that the
Elaintiff was committed to the provost guard
y Hopkins and Findlev. who were officers of
the Army of the United States, charging him,
the plain'tiff, in writing, with having excited
mutiny among the citizens of the United
States, violating his parole, as a prisoner, and
engaging in an illicit trade, and furnishing the
-enemy with necessaries from the United
States, and being an enemy's spy in time of
war between Great Britain and the United
States. It appeared in evidence, on the part
of the plaintiff below, that he was a natural
ized citizen of the United States, and was ar-
rested by Findley and Hopkins at a place
called Adams, about fifteen miles distant from
JOHNS. REP., 12. N. Y. R., 5.
Sackett's Harbor, where the Army was sta-
tioned. Under these circumstance, the ques-
tion presented to the court below was, whether
the evidence offered on the part of the defend-
ant would amount to a justification. It was
overruled as a justification, but admitted, or
offered to be received, in mitigation of dam-
ages.
There can be no doubt but that the rights
and the responsibility of the defendant must
be governed by the rules of law, applicable to
courts of special and limited jurisdiction. And
it is a general rule, that where such a court
has neither jurisdiction of the subject matter,
nor of the person, everything done is absolute-
ly void, and all are trespassers who are con-
cerned in the proceedings. None of the of-
fenses charged against Snaw were cognizable
by a court-martial, except that which related
to his being a spy; and if he was an American
citizen, he could not be charged with such an
offense. He might be amenable to the civil
authority for treason ; but could not be pun-
ished, under martial law, as a spy. There
was, therefore, a want of jurisdiction, either
of the person or of the subject matter, as to
all the offenses alleged against the plaintiff.
There can be no doubt but that Hopkins and
Findley were trespassers, and the defendant's
liability must depend upon the fact how far
he has ratified and affirmed their acts, or has
himself undertaken to exercise any restraint
over the plaintiff. Had he barely refused to
discharge him until tried by a court-martial, I
.should ^question whether he could be f*2OO
made a trespasser by such refusal. But he
went further, and, in some measure, affirmed
the arrest ; for, on application being made to
him in behalf of the plaintiff, he said he had
such a man in the provost guard, and that he
should not release him, until he saw Hopkins;
that he knew the martial law. and must be
governed by it ; thus claiming the right to
hold and try him by a court-martial. Nor
did the defendant sto'p here ; he undertook to
•act affirmatively, and order the plaintiff to be
brought before him, and after making some
examination and inquiries, remanded him to
the custody of the provost marshal. This was
a direct and positive exercise of authority and
restraint.
The damages recovered against the defend-
ant appear to me to be very high ; but this is
a question which cannot be taken into consid-
eration by this court. The judgment must be
affirmed, unless the evidence offered b}* the
defendant could have afforded a complete justi-
fication. The conduct of the defendant in this-
case does not appear to have been harsh and
oppressive. But it is the principle involved in
it which renders the question important. If
the defendant was justifiable in doing what he
did, every citizen of the United States would,
in time of war, be equally exposed to a
like exercise of military power and authority.
It was not pretended, on the argument, that if
the plaintiff was a citizen he was amenable to
a court-martial for any offenses alleged against
him. And the defendant could certainly have
no legal right to detain him to try that ques-
tion before a court-martial. In this respect he
acted at his peril. Suppose a habeas corpu*
had been issued from this court to bring up
25 3S.>
266
SUPREME COURT, STATE OP NEW YORK.
1815-
the plaintiff, would it have been a sufficient
return by the defendant, that he detained him
for the purpose of trying by a court-martial
whether he was a citizen or not ? The defend-
ant does not stand in the situation of a subor-
dinate officer, bound to obey the command of
his superiors. He was the commanding offi-
cer at Sackett's Harbor, and had a right, with-
out doubt, to discharge the plaintiff. At all
events, Hopkins and Findley had no authority
to compel him to detain him. Had the suit
been against the provost marshal, more diffi-
culty would have been presented. For, under
the Rules and Articles of War, he was bound
to receive him ; and he would have exposed
himself to punishment had he voluntarily re-
leased him. (1 sess., 9th Cong., ch. 20, art. 80,
267*] 81.) The *situation of the provost
marshal might be considered somewhat anal-
ogous to that of the pound keeper in Badkin
v. Powell, Cowp., 476, where it was held, that
he was not a trespasser merely for receiving a
distress, though the original taking was tor-
tious, because he was bound to take and keep
whatever was brought to him. But the de-
fendant cannot be protected under this princi-
ple. He had, as I have before shown, made
himself a party detaining the plaintiff. The
general rule which appears to be laid down in
the books is, that where the subject matter of
any suit is not within the jurisdiction of the
court applied to for redress, everything done
is absolutely void, and the officer, as well as
the party, becomes a trespasser. But when
the subject matter is within the jurisdiction of
the court, and the want of jurisdiction is to
the person or place, then the officer is excused,
unless the want of jurisdiction appears on the
process. (10 Coke, 76 ; Hard., 480.) But in
the case of Wise v. Withers, 3 Crauch, 331, the
liability, even of the officer, was extended by
the Supreme Court of the United States be-
yond what this rule would seem to warrant.
It was there held that trespass lies against a col-
lector of militia fines, who distrained for a fine
imposed by a court-martial upon a person no*
liable to be enrolled ; the court-martial having
no jurisdiction in such cases. The coiirt said,
it is a settled principle that the decision of
such a tribunal, in a case clearly without its
jurisdiction cannot protect the officer who acts
under it ; that the court and officers are all tres-
passers. It is unnecessary., in the present case,
to press the principle so far, as the defendant
cannot, in any manner, be considered as stand-
ing in the light of a ministerial officer. That a
want of jurisdiction of the person renders the
proceedings void, and makes the party procur-
ing them a trespasser, is well settled. As in the
case of Perkin v. Proctor, 2 Wils., 382, where
it was held that trespass lies against the as-
signees under a commission of bankruptcy,
sued out against a person not liable to be de-
clared a bankrupt. And in the case of Mostyn
v. Fabrigaz, Cowp., 175. Lord Mansfield, in giv-
ing the opinion of the court refers to a suit
brought by a carpenter in the train of artillery,
against Governor Sabine, who had barely con-
firmed the sentence of a court-martial, by
which the plaintiff had been tried and sen-
tenced to be whipped, and the Governor was
held responsible, in an action of trespass,
because the plaintiff was not liable to
*martial law. Although there is no [*26&
reason to believe but that the defendant acted
in good faith, and under an honest impression
that he was discharging his duty, yet we think
he acted without authority, and that the mat-
ter offered in evidence would not have afforded
a justification. The judgment of the court be-
low must, therefore, be affirmed.
SPENCER. /. (dissenting). After the fullest
consideration, I am unable to arrive at the
same result to which my bretheren have come,
and must, therefore, dissent from their opin-
ion. I shall content myself with merely stat-
ing the grounds of my dissent.
It cannot be pretended that the plaintiff in
error is at all responsible for the arrest of Shaw
by Hopkins and Findley, and his first impris-
onment in the provost guard. The 80th article
of the Act for the Establishing Rules and Ar-
ticles for the Government of the Armies of the
United States, provides that no officer com-
manding a guard, or provost marshal, shall
refuse to receive, or keep, any prisoner com-
mittted to his charge, by an officer belonging
to the forces of the United States, provided the
officer committing shall, at the same time, de-
liver an account, in writing, signed by him-
self, of the crime with which the prisoner is
charged. The 81st article forbids an officer
commanding a guard or provost marshal, re-
leasing any person committed to his charge,
without proper authority for so doing. The
65th article authorizes any general officer,
commanding an Army, or colonel, command-
ing a separate department, to appoint general
courts-martial.
Hopkins and Findley, it was offered to be
shown, were, at the time of Shaw's commit-
ment, officers in the Army of the United
States ; that they committed him to the officer
of the guard, or provost marshal, and at the
same time delivered to him an account in writ-
ing, signed by them, of the crimes with which
they charged Shaw, among which was the
following : his "being an enemy's spy, in time
of war between Great Britain and the United
States," with a specification of his "making im-
proper and .suspicious inquiries of and con-
cerning the military post at Sackett's Harbor,
in the vicinity of the same, and for lurking in
and about the said post without any apparent
cause or business."
The bill of exceptions furnishes no evidence,
direct, presumptive, *or probable, that [*26?>
the plaintiff in error was, in the least, privy to
the defendant's arrest by Hopkins and Find-
ley, or his reception by the officer of the
guard, or provost marshal. The 80th article
virtually confers on any officer belonging to
the forces of the United States, the power of
committing, as prisoners, such as have com-
mitted offenses cognizable by military law.
Whether they are responsible for arresting per-
sons not amenable to a military tribunal, is not
the present question. It is enough to exempt
the plaintiff in error from any liability for the
acts of inferior officers, that they have the
power to commit offenders for trial, and, es-
pecially, when the superior officer has not, in
any manner, participated in the act of com-
mitment. The article in question, by requir-
ing the provost marshal to receive any prison -
JOHNS. REP., 12
1815
SMITH v. SHAW.
269
er, committed as the defendant in error was,
presupposes the right of any officer to com-
mit ; and every officer possesses this right in-
dependently of his superior.
To maintain that the plaintiff in error is re-
sponsible for such an act, without any privity
of his, is. in effect, to maintain that a com-
manding officer is responsible for every act of
an inferior officer or soldier under his com-
mand ; a doctrine too absurd to require refu-
tation.
It appears from the bill of exceptions that
the defendant was a naturalized citizen of the
United States, born in Scotland, and then re-
Billing in the County of St. Lawrence, and as
such, by the 2d section of the Act of Congress
of the 10th of April, 1806, was not liable to be
tried as a spy ; and it has been contended that
as there was a want of jurisdiction over the
person of the defendant, all who were con-
cerned in arresting and detaining him were
guilty of false imprisonment.
I am free to admit that Hopkins and Findley
were trespassers. Their act was self-moved
and voluntary, and at their peril ; but I am
not prepared to admit that the provost mar-
shal, or the plaintiff, were trespassers. As to
the provost marshal, we perceive that the 80th
and £lst Articles of War require him, under
certain conditions, which, in this instance,
were complied with, to receive prisoners com-
mitted to his charge ; and he is- forbidden to
release them without proper authority for so
doing. The case of Badkin v. Powell et al.,
Cowp., 476, is expressly in point. There an
action of trespass was "brought against two
persons for taking the plaintiff's horse and
cart, as well as against the pound keeper, for
2 7 O*l receiving them ; the original *taking
was ad mil icil to be wrongful ; and tl^e court
held that, as the pound keeper was bound to
take and keep whatever was brought to him,
at the peril of the person who brings it, he was
not a trespasser ; and Lord Mansfield said :
"It would be terrible were he liable to an ac-
tion for refusing to take cattle in, and were
he also liable in another action for not letting
them go." As to the plaintiff in error, it is
urged, that if he be not answerable for the
original imprisonment, he made himself so by
remanding Shaw to the custody of the provost
marshal.
It appears, by the bill of exceptions, that
Shaw was brought before the plaintiff in error,
who was the commanding officer at Sackett's
Harbor, when the defendant stated that a Mr.
Burr knew him to be a citizen of the United
States ; the plaintiff in error made some ex-
cuse for not sending for Burr at that time,
but said he would on the morrow, and then
remanded the defendant in error to the guard;
and, in about ten days thereafter, the witness
who testified on the above facts, saw the de-
fendant at Adams.
It is manifest, from the bill of exceptions,
that the defendant in error was brought be-
fore the plaintiff in error, at his own request,
and with a view of procuring his enlargement
without a trial by a court-martial ; the act,
then, of going before the plaintiff, was for the
'defendant's benefit. Had the plaintiff in er-
ror been merely passive, and refused to inter-
fere, it seems to me impossible to consider him
JOHNS. REP., 12.
as a tort feawr. It does not appear that the
plaintiff in error had the power to appoint a
general court-martial. A spy can be tried
[ only by a general court-martial, and such
courts can be appointed only by a general offi-
cer commanding an Army, or a colonel com-
manding a separate department. (Art. 65.)
There is no proof that the plaintiff in error
was a general officer commanding an Army,
or a colonel commanding a separate depart-
ment. Before the plaintiff in error can be im-
plicated for not making the appointment, the
defendant in error was bound to show he was
the one or the other. If, however, the plaint-
iff in error had the power, and neglected to ex-
ercise it, the case of Salmon v. Percital, Cro.
Car., 196, is decisive, that ca.«e. and not tres-
pass, would be the proper and only remedy.
It comes, then, to this : Had the plaintiff In
error a legitimate right to discharge the de-
fendant, who had been regularly committed
for one of the highest offenses, without being
subjected to a court-martial ; and was he
bound, upon the mere 'allegation of [*27 1
the prisoner himself that he was a citizen, to
exercise that power ?
I doubt, very much, whether the power to
discharge a person thus committed, without a
trial, resides in any officer: it cannot, and
ought not to be inferred from the fact that the
plaintiff in error professed his willingness to
discharge the defendant, if innocent, nor from
the fact that he subsequently discharged him
without a trial. It is one thing for an inferior
military officer to obey his superior, and it is
another, and quite a distinct consideration,
whether he was bound to obey. In analogy
to proceedings in the civil tribunals, it is very
certain, that a person committed by magis-
trates, charged with an offense, cannot he dis-
charged from custody, and from the offense,
without the intervention of a court, and an in-
vestigation into the offense before, at least, a
grand jury. I cannot but consider the de-
fendant's discharge as an act of power, exer-
cised gratuitously and mercifully ; not an act
which could have been required."
I have already observed that the plaintiff in
error, in ordering the defendant to be brought
before him, evidently did so at the defendant's
request, and for his benefit ; and it appears
that the result was to accelerate the defend-
ant's discharge from imprisonment : the re-
manding the defendant, under the circum-
stances of the case, amounted to no more than
a declining to discharge him on his own alle-
gation. This was not a new or distinct com-
mitment. Had the plaintiff in error gone to
the provost marshal, and limn I the defendant's
allegations, and declined interfering affirma-
tively, there could be no pretense to charee
the plaintiff as a trespasser. The remanding
was. in effect, no more than a refusal, on the
part of the plaintiff in error, to interfere at
that time. It appears to me most unreason-
able, that the defendant in error, at whose re-
quest, and for whose benefit, the act of brinjj-
iu- him before the plaintiff was done, shall
make that act, and a declining to interfere
upon the mere naked assertion of the defend-
ant, an independent and substantive act of
imprisonment.
What is an officer, circumstanced as the
387
271
SUPREME COURT, STATE OF NEW YORK.
1815
plaintiff in error was, to do ? He finds a man,
of whom be knows nothing, charged with an
offense, in writing, and under the hands of
two of his officers, with a crime of the most
heinous nature ; a crime endangering a post of
immense importance ; a crime punished, as
well by our laws as those of every nation, with
27 12*] death : the person thus implicated *calls
on him to be discharged from imprisonment,
upon the allegation that he is a citizen ; the
imprisonment is continued, until the command-
ing officer becomes satisfied that the allegation
of citizenship is true, and then the prisoner is
enlarged. I see no fault, no violation of law,
nothing unreasonable, in this procedure. To
hold that a commanding officer is bound to
know the fact of citizenship of every person
committed by others as a spy, and that he
must instantly release him, without an oppor-
tunity to make inquiry, and become satisfied
of the fact, is most unreasonable, and I do not
believe it to be law.
I have met with no case bearing out the
court below in considering the plaintiff a tres-
passer. I am sensible it has been decided by
the Supreme Court of the United States (3
Cranch, 337) that it is a principle, that the de-
cision of a court-martial, in a case clearly
without its jurisdiction, cannot protect the of-
ficer who executes it. This I do not think
applies to this case, even if the position was
indisputable. To give a court complete juris-
diction, there must be jurisdiction as well over
the person as the offense; or, as applied to
civil proceedings, over the cause of action.
In Truscottv. Carpenter & Man, 1 LordRaym.,
229, the court held that neither the officer nor
party are bound to take notice whether the
cause of action arose out of the jurisdiction of
the court ; «nd they condemned the resolution
in the case of the Marshalsea, as a hard one,
and warranted by none of the books ; and say,
if the cause of action arose out of the jurisdic-
tion of the court, the defendant ought to plead
it ; and, if he does not, the affair of jurisdic-
tion is over, and he shall not take advantage
of it in any collateral action against the plaint-
iff, or the officer who executes the process.
The same doctrine will be found in 'Lutw.,
937, 1560, and 1 Freem., 322.
It appears to me that the case of Oliet v.
Bessey, 2 Sir T. Jones, 214, has a strong bear-
ing on this case. There the plaintiff had been
arrested by process, without the jurisdiction
of the court : he was carried wilhin the liber-
ty, and delivered to the defendant, who was a
jailer of the liberty ; and the question was
whether false imprisonment lay. The court,
after many arguments, held that the action
did not lie against the jailer, for he had done
no wrong to the party, but that only which be-
longed to his office, which did not oblige him
to inquire whether the first arrest was tortious
or not : even if he had been informed of the
toriious taking, he ought to have detained the
273*] *prisoner, being delivered to him with
a good warrant for the arrest. The plaintiff,
here, is not strictly in the same situation as
the provost marshal, not personally having the
custody of the defendant. He had, however,
a supervisory power over him ; and what
would justify the provost marshal for detain-
ing the defendant would justify him. I again
888
repeat it, the plaintiff in error did not make the
arrest, and he was under no obligation to dis-
charge the defendant in error, without a trial
by a court-martial. The commitment by Hop-
kins and Findley was a warrant, both to the
plaintiff in error and the keeper of the provost
guard, for his detention. It would, in my
judgment, be most irrational and mischievous,
that an officer, in the situation of the plaintiff
in error, should be bound first to try, and, at
his peril, exercise his judgment on the truth
of the charge. The principle contended for
pushes the absurdity further ; the plaintiff in
error is not even allowed to inquire whether
the defendant in error was exempted from a
trial as a spy or not, in consequence of his al-
leged citizenship. I cannot yield my assent
to doctrines so unjust and unreasonable ; and
am, therefore, of opinion that the judgment
below ought to be reversed, because the court
did not allow the evidence offered to be a full
justification.
PLATT, «/., not having heard the argument
of the cause, gave no opinion.
Judgment affirmed.
Overruled— 5 Wend., 176 ; 5 N. Y., 382.
Cited in— 19 Johns., 31: 6 Wend., 442; 13 Wend.,
48 : 28 N. Y., 666 ; 1 Keyes, 515 : 14 Barb., 99 ; 6 Park.
289 ; 46 Super., 466; 16 Mich., 252 ; 7 How (TJ. 8.), 77 ;
4 Wall., 129 ; 5 Mason, 503.
*RAYMONDET AT,, v. BEARNARD. [*274
Contracts — Pleading — Money Counts — Rescission
— Recovery of Purchase Money — Demand —
When Unnecessary — Interest.
Where a special agreement subsists in full force,
the plaiiftiff cannot recover under the money
counts.
But if the agreement has been rescinded by the
defendant, the plaintiff may, under a count for
money had, &c., recover back money paid by him
on account of the agreement.
So, where part of the purchase money of goods
which the plaintiff had agreed to call for, and take
within a certain time, WHS paid in advance, and the
plaintiff did not call within the time, but sometime
after the expiration of it, demanded the goods, and
the defendant refused to deliver them, the plaintiff
is entitled to recover back the money paid in ad-
vance.
And a demand of the money, before bringing the
action, is unnecessary.
Nor will a tender of it extinguish the right, but
will only preclude a claim of interest.
Citations-1 T. R., 133 ; 1 Bos. & P. N. S.,353; 6
Johns., 87 ; 7 Johns.. 132.
IN ERROR, on a bill of exceptions, to the
Court of Common Pleas of Orange County.
Bearnard, the plaintiff below, brought an
action of assumpsit against Raymond and
others, the defendants below, who were part-
ners in trade, carrying on business under the
firm of Raymond & Barney, for the non-deliv-
ery of twelve barrels of whisky, sold by them
to Bearnard. The declaration contained three
counts.
The first count stated that on the 7th of Sep-
tember, 1813, the plaintiff, at the special in-
stance and request of the defendants, bargained
with the defendants for, and the defendants^
sold to the plaintiff, a large quantity, to wit :
twelve barrels of whisky, at the rale of $22 a
barrel, to be delivered to the plaintiff at the
JOHNS. REP., 12.
1815
WKSTON v. BAKKEH.
074
store of the defendants, within a reasonable
time thereafter ; and the residue of the money
that might be due therefor to be paid on t la-
delivery of the whisky ; and that in consider-
ation thereof, and that the plaintiff, at the like
special instance and request, had paid to them
$100, part of the consideration money, and
had promised to receive the whisky, and pay
the residue of the money due for the same,
they, the defendants, undertook to deliver the
same ; and that although the plaintiff, within
a reasonable time thereafter, to wit : within
the time of ten weeks thereafter, at the store
of the defendants, did demand the delivery of
the whisky, and was then and there ready and
willing to pay the residue of the money, and
offered so to "do, and hath always been ready
to receive and pay for the same ; yet, that the
defendants, not regarding, &c.
The second count stated the sale of the
whisky, as in the first count, to be delivered
when the plaintiff could conveniently procure
teams for the transportation thereof, which the
plaintiff stated to be when the farmers would
be done ploughing : and alt Hough the plaint-
iff, when the farmers were done ploughing, as
soon as he could conveniently procure teams
for the transportation of the whisky, to wit :
275*1 on the tenth day *of November, in the
year aforesaid, at the store of the defendants,
did demand, &c.
The third count was for money had and re-
ceived.
The defendants pleaded the general issue ;
and it was proved by two witnesses for the
plaintiff, at the trial, that at the time the
whisky was sold, to wit : the 7th of Septem-
ber, it was agreed that the plaintiff should call
for it, at the store of the defendants, within
one mouth ; but that the plaintiff, as was
stated by one of the witnesses, objecting to the
time, the defendants consented to enlarge it to
five or six days, to which the plaintiff said that
he would take it away if he could ; and that
the plaintiff then advanced $100 in part pay-
ment ; the other witness stated that the agree-
ment was to pay the residue of the money, and
take away the whisky, within one month, or
thereabouts. It was further proved, that about
three months thereafter, as one witness said,
or on the 10th of November, as the other
stated, the plaintiff came to the store of the
defendants, and demanded the delivery of the
whisky, and tendered the residue of the pur-
chase money ; but that the defendants refused
to deliver it, alleging that the plaintiff had vio-
lated his contract by not calling in time, and
that they had sold the whisky, and thereupon
tendered and offered to .pay 'the plaintiff the
sum of $100.
Upon this evidence, the counsel for the de-
fendants contended that the plaintiff was en-
titled to recover, neither on the special counts,
nor on the count for money had and received ;
but the court charged the jury that, although
the contract was not proved as laid, yet the
Slaintiff was entitled to recover the $100, un-
er the money count ; and the jury found a
verdict accordingly.
A bill of exceptions was tendered bv the de-
fendants' counsel to the opinion of tlie court
below, which was now submitted to this court
without argument.
JOHNS. RKP., 12.
Per Curium. This case comes before the
court on a writ of error to the Common Pleas
of Orange County ; and the errors complained
of ari*e out of a bill of exceptions tendered at
the trial. The declaration contains several
i counts on a special contract, and also the com-
mon money counts. Upon the trial, the plaint-
iff below failed, in the opinion of the court,
in supporting the special contract, but they
allowed him to recover back the money ad-
vanced at the time the contract was made.
The *grouud upon which the plaintiff [*27O
failed in recovering on the special contract,
was, that he did not call for the deli very of the
whisky within the time limited by the contract ;
and when he did call, and demand the same,
the defendants refused to deliver it, because
the demand was not made in season. Thus,
the defendants, by th'eir own act, defeated a
performance of the contract. There is, there-
fore, no special agreement subsisting between
the parties ; but the same has been put an end
to by the election of the defendants. If the
special agreement was still in force, the plaint-
iff could not resort to the general counts. But
the defendants themselves refusing to carry
into effect the contract, they ought not to be
permitted to set it up as the pretext for holding
the money advanced. If thecontract is rescind-
ed in part, it must be in toto ; and the plaint-
iff's right to recover back the money paid is
undeniable. (1 Term R, 133: 1 Bos. & P.,
N. S., 353 ; 5 Johns., 87 ; 7 Johns., 132.) No
demand of the money was necessary before
bringing the action ; nor did the tender set up
extinguish the demand ; the only effect of
such tender is to preclude any claim for inter-
est. The judgment of the court below must,
accordingly, be affirmed.
Judgment affirmed.
Cited In— 13 Johns., 96, 365; H Johns., 327; 20 Johns. ,
27; 7 Cow.. 28; 4 Wend, 276 : 5 Wend, ->07 ; 1-' Wend,
388 ; 16 Wend., 636 ; 22 Wend., 581 ; 24 Wend., 63 ; 26
Wend., 556; 5 Hill, 115; 21 N. Y., 366: 3 Hun., «02;
29 Barb., 317 ; 30 Barb.. 23 ; 47 Barb., 579 ; 49 How. Pr..
27 ; 51 How. Pr., 7 ; 6 T. & C.. 297; 7 Bos., 112; 10 Bos..
350; 15 Mich., 236.
WESTON «. BARKER.
Assumpsit — Securitien held in Trust — Accept-
ance of Trust, Kquimlent to Express Promise
to Cestui que Trust — Set-off.
Where A assigns certain securities to B in trust,
to dispose of part of the money to be received then •-
on. to certain specified purposes, and to hold Un-
balance subject to the order nt A. which trust B
accepts; and A then direets B to pay the Imluncc to
C, and B afterwards reti-ivos the money due on t In-
securities; C may maintain an action for money
had and received, against B, to recover such bal-
ance; the ueee|>tiince of the trust by I) being equiv-
alent to an i-xpress promise to the person to wnotn
A should direct tin- money, when received to .be
paid.
And in such action, B cannot set off a demand
which he may have ajrainst A.
Citations -7. 1 ohns., 103; 8 Johns.. 14»; 1 Bos. 4 P.,
290; 2 I/I. Kaym.. tt-*; 1 H. HI.. £>'.»: 2 HI.. 12tiK. 13JH ;
KM : :t Last. 171 : 1 Johns. Cas,. 205; 3 Johns..
82; 1 Hull's I.a\v .Imirnal. 4H«; 11 Mod.. 241 ; 4 Esp.,
203; 10 Johns.. 213; Cow p., 572.
S was an action of a*niimp*tf, tried before
1 His Honor, the late Chief Justice, at the
-it tings in New York, the 12th of November,
1818.
889
276
SUPREME COURT, STATE OF NEW YORK.
1815
Bowen & Robins, partners in trade in New
York, for the purpose of securing certain debts,
on the 4th of March, 1811, assigned to the de-
fendant two policies of insurance, dated on
the 1st of September, 1810, made by the New
277*] York Ins. *Co. , on vessel and cargo. At
the time of the assignment, they addressed a let-
ter to the defendant, as follows: "Sir, we have,
together with Mr. E. M. Stillwell (who was
jointly interested with them in the vessel and
cargo), subscribed a certain assignment to you
of two policies of insurance on the brig Salem
and cargo, on which is claimed from the New
York Ins. Co. about $5,200:" "One half of
which is for our account, which you will please
to understand to be held in trust to discharge
the follow obligations of ours, viz :
An acceptance in favor of John
Ward - - $59408
A note indorsed by E. M. Stillwell,
at 6 months, llth of August, - 937 50
A note indorsed by E. M. Stillwell,
at 6 months, 22d of August, - 82 25
$1,613 93
After which you will hold the balance, which
may be received, subject to our order."
On the back of a copy of this letter, the de-
fendant, at the same time, made and subscribed
the following indorsement : "I acknowledge
to have received from Bowen & Robins the
original letter, of which the within is a copy,
the conditions named in which I engage to
comply with. New York, March 4, 1811."
Bowen & Robins being indebted to the
plaintiff in a larger sum than the amount of
the fund in the hands of the defendant, which
remained unappropriated (after drawing on
him for about $91, in favor of a third person),
indorsed on the above-mentioned copy of a
letter, an order, in favor of the plaintiff, on
the defendant, as follows: "New York,
March 15, 1811. Sir : For value received, we
hereby request you will account with Abijah
Weston, of this City, for the amount recovered
of the New York Ins. Co., on policies Assigned
you for our account, first providing for as-
sumptions made by us to amount of $1,705, as
per account annexed ; " which he delivered,
with the indorsement of the defendant, above
stated, to the plaintiff; and of which order or
assignment to the plaintiff, the defendant, at
the same time, or within a day or two there-
after, had notice.
278*] *The defendant on the 16th of
April, 1811, received, on the policies of assur-
ance so assigned to him, the sum of $1,700 ; on
the 27th of the same month, the further sum
of $2,298.50, including the premium notes of
$272.50 ; and on the 15th of May following,
the further sum of $978.76, making in the
whole, exclusive of the premium notes,
$4,704.76, the one half of which, belonging to
Bowen & Robins, was $2,352.38 ; of which
sum, after deducting the amount specially ap-
propriated by the order of Bowen & Robins,
previous to their assignment to }he plaintiff,
there remained a balance of $647.38 in the
hands of the defendant, which, with the inter-
est thereon, was the amount claimed by the
plaintiff in this action.
390
The defendant offered in evidence, by way
of set-off, a note drawn bv Bowen & Robins,
in favor of Mason & Wilcox, for $2,300, dated
January 8, 1811, payable four months after
date, and which was received by the defend-
ant from Bowen & Robins, for goods sold to
them by the plaintiff ; which note was pro-
tested for non-payment on the llth of May,
1811.
A verdict was found for the plaintiff for
$800, subject to the opinion of the court ; and
the amount to be liquidated accordingly.
The case was argued by Mexsrs. Warner and
P. W. Raddiff for (he plaintiff, and by Mr.
Wctts for the defendant ; but the points and
authorities are so fully considered in the opin-
ion of the court, that it is deemed unnecessary
to state the arguments of the counsel.
THOMPSON, C h. J., delivered the opinion of
the court :
The principal question in this case is, whether
an action for money had and received can be
sustained by the present plaintiff. It was not
denied on the argument by the defendant's
counsel but that the action would be supported,
if an express promise to pay was proved ; and,
indeed, this principle is too well settled to be
questioned. It has been repeatedly recognized
in this court. (7 Johns., 103 ; 8 Johns., 149.)
It appears to me that the proof in this case
establishes such a promise, according to the
good sense and sound interpretation of the
rule. That the defendant *has actual- [*279
ly received the money is admitted, and the
plaintiff's claim to it is supported by the strong-
est principles of justice and equity, as will ap-
pear from a bare statement of the case.
Bowen & Robins, on the 4th of March. 1811,
assigned to the defendant two policies of in-
surance, in trust, to discharge certain specified
debts, and the balance to be held subject to
their order. The defendant, on the same day,
signified, in writing, his acceptance of the
trust, and expressly engaged to comply with
the conditions mentioned in the letter, which
declared the trust, viz : to pay the specified
debts, and hold the balance, subject to the
order of Bowen & Ro'bins. On the 15th of
the same month, Bowen & Robins, being in-
debted to the plaintiff, gave him an order on
the defendant for such balance, of which notice
was about the same time given to the defend-
ant. The defendant, afterwards, received the
amount due on the policies, and after paying
the demands specified in the declaration of
trust, hdd in his hands a balance of $647.38,
which is the sum, together with the interest,
for which this suit is brought.
This brief statement of facts would seem
sufficient to show the plaintiff's right to re-
cover. The money has, in fact, been received
by the defendant ; and, according to the very
terms of his engagement, was received as the
money of the plaintiff, and not of Bowen &
Robins, they having previously directed the
Fame to be paid to the plaintiff. If A deliver
money to B, to be paid over to C, the latter
may recover it of B, in an action for money
had and received. (1 Bos. & P., 296.) It is
immaterial, in the case before us, whether the
money was actually paid by Bowen & Robins
to the defendant, or whether it came into his
JOHNS. REP., 12.
1815
WESTON v. BARKER.
27»
hands from any other quarter, by their order.
When it was received, it was received as the
money of the plaintiff ; and so. in the most
strict and literal sense, it was money received
to the plaintiff's use. It was considered on
the argument that had the plaintiff been named
iu the declaration of trust, as one of the per-
sons to be paid out of the moneys received on
the policies, he could maintain this action.
And where, in good sense and sound principle
•can be the difference, whether he was origi-
nally named, or afterwards designated, ac-
•cording to the terms of the defendant's under-
taking ? His express promise was to hold the
balance, subject to the order of Bowen &
28O*] Robins. As soon as *such order was
given, this promise attached and inured to the
benefit of the person named in such order. It
is undoubtedly a well-settled rule of the com-
mon law that choses in action are not assign-
able ; and, therefore, when a person entitled
to money due from another, assigns over his
interest in it to a third person, the mere act of
assignment does not entitle the assignee to
•maintain an action for it ; but if there be an
Assent or promise on the part of the debtor or
holder of the money, the action for money had
and received has been holden to lie.
What will amount to such assent or promise,
so as to make the holder of the money liable,
will be better seen by a reference to some of
the adjudged cases on this subject. In Ward
v. Km a*, 2 Ld. Raym., 928. one Fellows, hav-
ing money in his hands of the defendant, gave
a verbal order to pay a certain sum to the
Elaintiff. and to indorse it upon a note, which
e, Fellows, held against the defendant, and
this iBuorsement was accordingly made ; this
was held sufficient to maintain the action for
money had and received to the use of Ward,
the plaintiff. Holt, C h. «/., said, when the
money was indorsed on Fellows' bill, and
Fellows directing that sum to be paid to the
plaintiff, and the defendant having the money
in his hands, it amounted to a receipt of so
much money by the defendant to the plaintiff's
u?e. So, also, in Israel v. Dougla**, etal., 1
H. Bl., 289. The defendants being indebted
to one Delvalle, he drew an order on them, in
favor of the plaintiff, who had advanced
money to Delvalle ; the defendants accepted
the order, and they were held responsible in
an action for money had and received. Lord
Lough borough, in answer to the argument,
that the money was, in point of fact, owing by
the defendants to Delvalle, and that their
undertaking was to him, and that no money
was in reality had and received by them to the
use of the plaintiff, says, the debt, with the
•consent of the parties, was assigned to the
plaintiff, of which the defendants had notice,
and assented to it ; by which assent they be-
came liable to the plaintiff for money had and
received. Had the defendant, in the case he-
fore us, directly accepted the order drawn on
him, it would fall precisely within the case
last cited. But as I have before observed, this
could in principle make no difference, for the
•express promise of the defendant was, in sub-
stance, to pay over the money to whomsoever
Bowen & Robins should appoint to receive it.
And this appointment was made certain by the
28 1 *] 'subsequent designation in the order.
JOIINB. RKP., 12.
That this was sufficient, is established bv the
case of Fenner v. Meares, 2 Bl. Rep., 1269. It
was there held that indebitatu* atuntmjmt for
money had and received would lie by an as
signee of a rtntpondtntia bond, where the
obligor, by an indorsement thereon, promised
to pay the same to such assignee as the obligor
should duly appoint. Here the promise was
not made to any person in particular, but gen-
erally, to whomsoever the obligee should ap-
point. It is true that the authority of the last
two cases has been questioned by later decis-
ions in the English courts. (1 East, 104 : 8
East, 171.) The reasons and principles, how-
ever, upon which they were founded, have
uot been shaken, but, on the contrary, sanc-
tioned by this court, as will be seen by the case
ofJVWfoort v. might, 1 Johns. Cas., 205, which
was an action of aiunimjutit for money had and
received. From an examination of the facts
in that case, it appears that there was no ex-
press promise made by the defendant to the
plaintiff. Radcliff, J., after stating the lead-
ing facts in the case, observes that there was a
trust created in liaddon, for the benefit of the
plaintiff, which the plaintiff had a right to
affirm and avail himself of, and that this trust
was transferred to the defendant, wlio became
equally responsible with Raddon, by receiving
the wines on the same terms ; that there was
an implied (uutumjurit in law, the fund being in
the defendant's hands, and received by him
for the benefit of the plaintiff. He laid it
down as a maxim, that where a trust is created
for the benefit of a person, though without 1m
knowledge at the time, he may affirm the trust,
and enforce its execution. And Kent, J.,
said, from these facts, the law will infer a
promise by the defendant to pay the money,
because, in justice and good faith, he was
bound so to do. From that case, it is clear that
no express promise is necessary, in order to
make a party responsible in this form of action.
But in tlie case before us, I think I have shown
that there was what must be deemed equiva-
lent to an express promise ; and as soon as the
money came into the defendant's hands, he
became bound to pay it over to the plaintiff,
according to the principle which governed the
decision in M'Menoniy & Tmcnsend v. Herrert,
3. Johns.. 82.
There is no ground upon which the set-off
can be allowed : that is a claim against Bowen
& Robins, with which the plaintiff has no con-
cern. Nor can the defendant complain of
*any hardship in the case ; for he held [*282
this note against Bowen & Robins, when he
accepted the trust, and engaged to pay the
money now in question to their order. " This
shows, conclusively, that he did not look in
any manner to this fund as security, but
trusted to the personal responsibility of the
drawers and inuorsers for payment.
The opinion of the -court, accordingly, is
that the plaintiff is entitled to judgment.
SPENCER, J. (dissenting). The facts in this
case, in my judgment, do not entitle the plaint-
iff to a recovery. The simple question is,
whether a person, having money iu his hands
belonging to another, is liable to a suit by a
third person, to whom the person entitled to the
money *hall direct it to be paid, without any
891
SUPKEME COURT, STATE OF NEW YORK.
1815^
promise or agreement to pay the money to
such third person. I have not been able to
find a case unless it be that of M'Kim v. Smith,
in the Baltimore County Court, tried before
Nicholson, Oh. J. (1 Hall's Law Journal, 486),
which will warrant a recovery in this case. In
Orifford v. Berry, 11 Mod., 241, wages being
due to A from the East India Company, he or-
dered B to receive the money and to pay it to
C, to whom he was indebted ; C brought in-
debitatus assumpsit against B. Holt, Ch. J.,
held that the action could not be maintained
by C. This case is very briefly reported, but
there can be no doubt that B had received the
money, and that when he was authorized to
receive it, he received the direction to pay it
to C. In Surtees et al. v. Hubbard, 4 Esp. ,
203, an action for money had and received
was brought by the plaintiffs, as assignees of a
ship, to recover the amount of freight ; notice
had been given of the assignment of the ship
and freight to them ; the objection was
taken, that it being a chose in action, the
demand could nor be assigned, so as to
enable the assignee to bring a suit in his
his own name. Lord Ellenborough nonsuited
the plaintiff, saying that where a party, enti-
tled to money, assigns over his interest to an-
other, the mere act of assignment does not en-
title the assignee to maintain an action for it ;
the debtor may refuse his assent ; he may have
an account against the assignor, and wish to
have his set-off ; but if there be anything like
an assent on the part of the holder of the
money, in that case this, which is an equitable
action, is maintainable.
283*] *In Fenner v. Meares, 2 Bl., 1268,
the defendant had borrowed money of Cox on
respondents, and by an indorsement on the
bonds, stipulated, in the most express terms,
that if they were assigned, he held himself
bound to pay the assignee, without any de-
duction or abatement ; and on the return of
the ship, and application by the assignee, the
defendant desired time, and begged the as-
signee would not sue him. Two of the judges,
Ch. J. De Grey, and Nares, J., held that the
plaintiff was entitled to recover, without refer-
ence to the promise afterwards, on the ground
that these bonds were essentially necessary to
carry on the India trade, and that it would
clog them, and be productive of inconvenience,
if they were obliged to remain in the hands of
the first obligee ; and that the contract was
devised to operate on subsequent assignments,
and amounted to a declaration, that the money
which had been borrowed should, on assign-
ment, be no longer the money of A, but of B,
his substitute. Blackstone, J., avoided giv-
ing any decisive opinion on that point, but
put the case on the subsequent promise.
This case may, at first view, be supposed to
favor the plaintiff's right to maintain this suit;
but I think it very different from the present
case. The stipulation to pay to any assignee
was as explicit as language could make it ;
and besides, it related to a trade which policy
required should be protected and encouraged ;
but this case met with' discountenance from
Lord Kenyon, in Johnson v. Collings, 1 East,
104. He declared he could not agree to that
case ; and he supposed that the result was,
that the determination of the jury, having
392
been made according to equity and good con-
science the court would not disturb the ver-
dict. All the court, however, held that a
promise by a debtor to his creditor to accept a
bill and pay it, was not an acceptance of a hill
not then in esse. The plaintiff, in that case,
was the indorser of the bill drawn on a prom-
ise by the debtor to accept it, and had added the
money counts ; and with respect to those
counts, Lord Kenyon added : " If we were to
suffer the plaintiff to recover on the general
counts, we must say that a chose in action is
assignable, a doctrine to which I never will
subscribe." Grose, J., declared it would be
of most dangerous consequence to relax the
rule of law, to the extent contended for ; and
that to permit the plaintiff to recover, would
be making all choses in action assignable.
The case of Israel v. Don glass et al., 1 H.
BL, 239, *was decided on the ground [*284
that the debt, with the consent of the parties,
was assigned to the plaintiff ; and Gould, J.,
put it on the true footing. He says : "If I
pay money to you for another person, it is
money had and received by you to his use ;•
but where is the real and substantial differ-
ence, whether I in fact pay money to you for
a third person, or whether I give you an or-
der to pay so much money, to which you ex-
pressly assent ?"
Most of these cases came under the consid-
eration of this court, in M'Eters v. Mason, 10
Johns., 213. Ch. J. Kent, in delivering the
opinion of the court, states the case as laid
down by Beawes, with approbation : that the
party making a promise to accept a bill to be
drawn, is answerable in damages to the per-
son to whom the promise is made ; aud he
adds, "but such a promise is not assignable ;
and it seems a little difficult to understand
how the indorser of a bill, subsequently
drawn, can charge the drawer with acceptance,
by virtue of such a preceding promise, which
is not of itself assignable, and is, strictly, no
part of the negotiable contract ;" and he adds,
he " had met with no adjudged case, except it
be that of M'Kim v. Smith, in which it had
been decided that an indorser can avail him-
self of such a previous promise, as amounting
to an acceptance under the law merchant, of a
bill not then drawn." The case of M'Kim
v. Smith is the opinion of a single judge, pro-
nounced at the trial of the cause ; and per-
haps, the trick attempted to be practiced by
the defendant on the other creditors of Bowen,
had an insensible influence on the judge.
Great stress was laid upon the defendant's
agreement to hold the moneys he should re-
ceive on the policies, subject to the order of
Bowen & Robins, this amounted to no more
than an agreement to hold himself responsible
for what should be received ; but, at all events,
it was no more than an agreement with Bowen.
& Robins to accept and pay their order ; an
agreement with which the plaintiff has no
concern. In the present case, the plaintiff
gave no new credit to Bowen & Robins, in
consequence of the defendant's agreement to
hold the balance that might be recovered on
the policies, beyond the specific appropriations
subject to the order of Bowen & Robins. I
believe what was stated by Mr. Gorman, one-
of the special jury, on the trial of Pierson v.
JOHNS. REP., 12 ..
1815
BLOODOOOD v. OVERSEERS OP THE POOR OP JAMAICA.
284
Dunlop, Cowp., 572, is true, that it is a
285*] *universal rule among merchants, that
a mure engagement to the drawer of a bill is
no engagement to the holder of it.
The injustice of the principle contended for
by the plaintiff is very manifest in this case,
and it is one of the reasons assigned by Lord
Ellenborough against such an action. The
defendant holds Bowen & Robins' note for
$2,300 for goods sold to them two months be-
fore the assignment of the policies ; and by
sustaining this suit, he will be deprived of his
set-oft*.
On the ground, then, that the debt due from
the defendant to Bpwen & Robins for the
balance is not assignable, so as to enable
the assignee to sue for it in his own name;
that the plaintiff has not given to Bowen &
Robins any new credit, on the faith of the de-
fendant's agreement with them, and that the
defendant has had no communication with,
or made any promise to the plaintiff. I am de-
cidedly of opinion that the action is not sus-
tainable, and that the defendant ought to have
judgment.
PLATT, J., not having heard the argument
of the cause, gave no opinion.
Judgment for tfa plaintiff.
Crtticised-15 Bank. Keg., 462.
Distinguished— 24 Wend., 11:5 Peters, 587.
Cited fn— 5 Wend., 352 ; 10 Wend, 34.5 ; 23 Wend.,
530 : 24 Wend.. 2«2: 1 Hill. 85, 585 : 4 Denio, 100 : 3
Johns. Oh., 2»l ; 2 Edw., 110 : 3 N. Y., 117 : 48 N. Y.,
440; 1 Kcyes. 190; 2 Abb. App. Deo., 307 : 4 Lans.,
13 ; 1 Barb.. 063 : 2 Burb., 145 ; 16 Barb.. 565; 18 How.
I'r.. til : Kdin.. 288 : 6 Bos., 297 : 7 Bos., 113 : 5 Duer,
177: 2 Sand., 334; 38 Super., 307 : 1 Daly.57 ; 1 Hilt..
464 ; S Bradf.. 390 ; 45 Wig., 410: 18 How. (U. S.). 220 :
• Bank. Keg., 253.
BLOODGOOD, one of the Overseers of the
Poor of Flushing,
v.
THE OVERSEERS OF THE POOR OF
JAMAICA.
1. Practice in Justice Court — Waiter of Irregu-
larity. 2. Witnesses — Constable Competent
on Settlement of Pauper.
If the defendant, in a justice's court, neglects to
take an exception, in t hi- first instance, on account
of the variance between the process and declaration,
but takes Issue, and goes to trial on the merits,
it is a waiver of all objection to the process or
pleading.
A constable, who is an inhabitant of a town, and
pays taxes to support the noor, is a competent wit-
ness in a suit brought by the overeeersof that town
ajniiiiMt the overseers of another town, relative to
the settlement of a pauper.
Citations— 2 Cai.. 134 : 1 Johns., 476.
IN ERROR, on' certiorari from a justice's
court.
The defendants in error sued the overseers
of the poor of Flushing by a summons, in
common form, against both of them (viz :
Samuel II. Van Wyck and Daniel Bloodgood),
in a plea of debt for $25. The summons was
returned personally served upon both the de-
fendants : and on the return day they t>oth
appeared.
2H4J*] *The overseers of the poor of Jamaica
then declared against Daniel Bloodgood only,
JOHNS. REP., 12
for the penalty of $25, for refusing to receive
paupers upon a warrant of two justices of Ja-
maica, according to the llth section of the Act
for the Settlement and Relief of the Poor,
passed in April. 1801. (1 R. L., by K. and
R., p. 560.) The penalty is given, by that
law, against the overseers of the city or town,
or any or either of them so refusing ; and is
to be applied toward the support of the poor
of the other town.
To this declaration, Daniel Bloodgood
pleaded the general issue ; and no further no-
tice was taken, in any part of the proceedings,
of Van Wyck, the other defendant below.
The proof applied to Bloodgood only, and
fully established the claim of the plaintiffs be-
low. The justice, accordingly, gave judg-
ment against Bloodgood for $25 and the
costs.
The exceptions taken to the justice's pro-
ceedings were :
1st. The incongruity between the summons
and the declaration ; the process being against
two defendants, and the declaration agaiiot
one of them only.
2d. That the justice (notwithstanding an ob-
jection) admitted as a witness for the plaintiffs
below, the constable of the town of Jamaica,
who removed the paupers, and who was " an
inhabitant of that town, paying taxes for the
support of the poor."
Per Curiam. The case of Day v. Wilder, 2
Caines, 184, and the uniform decisions since
that time, have established the rule, that if the
defendant neglects to take his exception to the
first process but joins issue upon the declara-
tion of the plaintiff, in the court below, upon
the merits, he is deeme/1 to have waived all
objection to the process, and the cause stands
upon the same footing as though the parties
had voluntarily joined issue, and gone to trial
without process.
Upon the 2d point, the decision in the case
of Falls & Smith v. Belknap, 1 Johns, 476. is
in point against the plaintiff in error. It is true
that the penalty, if recovered, is to be applied
for the support of the poor of the town in
which the witness is liable to be taxed for that
object ; but such an interest is too remote and
contingent to exclude the witness.
Judgment affirmed.
Cited in— 3 Hill, 327 : 3 N. Y.. 483 : How. Cas., 624 ;
18 How. Pr.. 174; 9 Abb. Pr., 42; 2 Hilt., 450: 2 Wood.
& M., 175.
*AMORY ET AL. P. M'GREGOR. [*287
I 1. Pleading — Demurrer — Doe* not Lie on Fin-
material Allegations. 2. Illegal Contract*.
Where the day of milking a contract is imma-
terial, it is not a ground of demurrer that the con-
tract is illegal, by reason of its having been made on
tin- Hay laid in the declaration.
Whether a contract to convey goods from
Great Britain to the United States, en;
into during the existence of war between the two
countries, is illegal. Qtuvrc.
Citations— 3 Johns., 42 ; 10 Johns.. 119.
T 1 1 1 S was a special action on the case for
negligence in the transportation of goods.
The declaration contained two counts.
•M
287
SUPRKME COURT, STATE OP NEW YORK.
1815
The first count stated that the defendant, at
at the time of the making of the promise
therein mentioned, was the owner of a ship
called the Indian Hunter, then in the port of
Liverpool, in Great Britain, and bound to
New Orleans ; and that the plaintiffs, on the
21st of July, 1812, at Liverpool aforesaid, at
the special instance of the defendant, caused
to be shipped on board the said ship, whereof
James L. Stevens was master, divers goods,
wares, and merchandise, to wit : nine trunks
and one bale of merchandise, and one hundred
and twenty-seven crates of earthenware, in
food order and condition, of the value of
15,000, to be taken care of, and safely and
securely carried and conveyed by the defend-
ant to New Orleans, and there to be safely and
securely delivered, in like good order and well
conditioned, all and every the dangers and ac-
cidents of the seas, and navigation of whatso-
ever nature and kind excepted ; and in con-
sideration thereof, and of certain freight, the
defendant undertook to take care of, and
securely carry and convey, and deliver the
goods, the dangers and accidents of the seas
and navigation excepted. And although a
reasonable time for carrying and delivering
the said goods had elapsed, yet that the de-
fendant, not regarding his duty nor his said
undertaking, but contriving, &c.( did not, nor
would take care of, and safely and securely
carry and convey the goods to New Orleans,
and there safely and securely deliver them to
the plaintiff, and although no dangers and ac-
cidents of the seas and navigation did prevent
him ; but that, on the contrary, the defend-
ant so fraudulently, negligently and carelessly
behaved and conducted himself with respect
to the goods, that by find through the mere
fraud, carelessness, negligence and improper
conduct of the defendant and his agents, in
that behalf, the goods became and were totally
lost to the plaintiffs.
The second count stated the delivery of the
fjods to the defendant, at his request, in good
88*] order and well conditioned, *on the
said 21st of July, 1812, to be taken care of, and
safely and securely carried and conveyed, by
the defendant, in and on board of a certain
other ship or vessel, from Liverpool to New
Orleans; there to be safely and securely de-
livered for the plaintiffs, for a certain freight
and reward; and that the defendant undertook
to take due and proper care of the same whilst
he had the care and custody thereof, for the
purpose aforesaid ; and that, although the de-
fendant had and received the goods, yet that,
not regarding, &c., but contriving, &c., whilst
he had the care and custody of the goods, took
so little, and such bad care of the goods, that
by and through his mere carelessness and neg-
ligence, they became and were wholly lost to
the plaintiffs.
To this declaration there was a general de-
murrer, and joinder in demurrer.
Mr. Colden, in support of the demurrer.
Mr. D. B. Ogden, contra.
The case was argued not only on the point
of pleading, as to the materiality of the day,
or time of making the contract laid in the
declaration, but on the merits, as to the illegal-
ity of the contract ; but the court having been
decided on the first ground only, it is unneces-
801
sary to state the arguments of counsel. As to
the first point, the following cases were cited :
Cheetham v. Lewis, 3 Johns., 42 ; Waring v.
Tales, 10 Johns., 119 ; Vail v. Leivis & Livings-
ton, 4 Johns., 450.
Per Curiam. This case comes before the
court on a general demurrer to the declaration.
And the ground upon which it has been at-
tempted to support the demurrer is, that the
day laid in the declaration is during the exist-
ence of hostilities between this country and
Great Britain ; and that, of course, the con-
tract set forth in the declaration is void, being
contrary to the laws of the United States.
Without giving any opinion upon the validity
of the contract, if, in point of fact, it was
made at the time laid in the declaration, it is
sufficient, in this case, to say that the day be-
ing immaterial the plaintiff would not be
obliged to prove the contract to have been
made on the day laid. Nothing appears on
the face of the declaration *sho\ving [*289
the contract to be illegal or void. And it is a
general rule that a party cannot demur unless
the objection appears on the face of the plead-
ings. And so are all the cases referred to, and
relied upon, by the defendant's counsel. In
Uieethamv. Lewis, 3 Johns., 42 ; and Waring
v. Yates, 10 Johns., 119, it appears, from the
declaration, when the suit was commenced,
and that the cause of action arose afterwards,
The plaintiff must, therefore, have judgment,
with leave to the defendant, however, to plead
to the declaration.
Judgment far the plaintiff .
SALISBURY'S EXECUTOR
v.
THE HEIRS OF PHILIPS.
Practice — Demurrer — Costs — Executors and Ad-
ministrators.
If judgment on demurrer be given against an ex-
ecutor or administrator, plaintiff, he must pay
costs.
Citations— 2 Johns., 377 ; 1 N. R. L., 346 ; Stat. 23
Hen. VIII., ch. 15, sec. 1 ; 2 Bos. & P., 255 ; Stat. 8 &
9 Wm. III.
JUDGMENT had been given against the
«J plaintiff, on demurrer to his declaration
(see 10 Johns., 57); and the question now sub-
mitted to the court was, whether he was liable
for costs.
Per Curiam. This case cannot be distin-
guished from that of the Administrators of
kelloc/g v. Wilcox, 2 Johns. , 377, where it is ex-
pressly decided that if judgment on demurrer
be given against executors or administrators,
plaintiffs, they must pay costs. The correct-
ness of this decision is now called in question ;
but a little examination will show that it is
well founded. It necessarily arises out of the
construction to be given to the 12th section of
our Act Relative to Costs (1 N. R. L., 346);
the terms of which are as broad as language
can make it. It contains nothing that could
give color to an exception, as to executors and
administrators. The decisions in the English
courts will not apply, by reason of the differ-
JOHNS. REP.. 12.
1815
JACKSON v. RAYNER.
ent phraseology of our statutes. Under the
2A section of the Act, executors and adminis-
trators, plaintiffs, when nonsuited, or a ver-
dict obtained against them, would be liable to
costs, were it not for the express exception in
their favor. This exception does not extend
to the 12th section, which relates to costs on
demurrer.
The English Statute (23 Hen. VIII., ch. 15.
2JM>*1 sec. 1), which gives *costs against a
plaintiff, in case he is nonsuited, or a verdict
passes against him, contains no express excep-
tion in favor of executors and administrators ;
but they are exempted by an equitable con-
struction of the Statute, which would seem to
be confined to cases where the contract, upon
which the suit was brought, was made with the
plaintiff ; and, according to the early CMM,
the construction of this Statute was, that if
the contract be not made with the executor or
administrator, but with the testator or intestate
whom they represent, then it was not consid-
ered an action upon a contract supposed to be
made with the plaintiff, or any other person,
in the language of the Act. and so did not ap-
ply to executors or admistrators. (2 Bos. &
P.. 255.)
The proviso to the Statute (8 & 9 Wm. III.),
which relates to costs on demurrer, extends the
same equitable construction in favor of exec-
utors and administrators which had been given
to the Statute 28 Hen. VIII. Neither the sec-
ond nor 12th section of our Act appears to
have any reference, like the English Statutes,
to the intermediate parties to the contract,
upon which the action is founded, but applies
to the action generally. The 12th section de-
clares that if any person shall prosecute any
action wherein, upon demurrer, judgment
shall be given against the plaintiff, the defend-
ant shall recover costs. If. under the 2d
section of our Act, executors and administra-
tors, plaintiffs, would be liable to costs when
nonsuited, or a verdict obtained against them,
were it not for the express exception in their
favor, it would seem to follow, as a necessary
consequence, that, under the 12th section, which
contains no such exception, they must pay
costs where the judgment is against them upon
demurrer.
The derisions in the English courts are not
all reconcilable, and whether the exposition
of their statutes, above suggested, be sound
or not, is unnecessary to say. It is sufficient
for us, that our Act contains no words that
will admit of any such equitable construction,
and is too plain and explicit to allow any ex-
ception in favor of executors and adminis-
trators.
The defendant must, accordingly, hare judg-
ment for coats.
8. C.— 10 Johns., 57.
291*]
MOHN JACKSON
WILLIAM RAYNER.
Justice Court — Statute of Fraud* — Promise to
Pay Debt of Third Person.
NOTB.— Statute nf frauds— Promise to imiitlie <irht
of another. See Farley v. Cleveland, f Cow., 432,
nnte.
JOHNS. REP., 12.
A promise to pay the debt of a third person must
be in writing, notwithstanding it is wade on a suffi-
cient consiili-ration.
Where A gave trave a promissory note to B, and C
told B that lie- had taken an assignment of A's prop-
erty, and meant to pav his debts, and would pay the
debt to him from A. it was held that the promise of
C was within the Statute of Frauds.
Citation— 4 Johns.. 422.
IN ERROR, on certiorari to a justice's court.
Michael Jackson, son of the plaintiff in
error, gave his promissory note to Samuel Ed-
son, or order, which was indorsed by Edson to
William Rayner, plaintiff below.
Rayner sued Michael Jackson, by warrant,
upon the note ; and when the constable was
about to serve the warrant, John Jackson, the
defendant below, told the constable "not to
serve it, for he, the defendant below, would
pay the debt, if an honest one." Upon which
the plaintiff below expressed his satisfaction,
and withdrew that suit.
Soon afterwards the defendant below saw
the constable again, and requested him to tell
Rayner, the plaintiff below, "to give himself
no further trouble about it, for lie would pav
the debt ; as he had taken his son Michael s
property, and meant to pay his honest debta"
This suit was for the amount of that note ;
and there being no note in writing of the new
promise, the defendant below relied on the
Statute of Frauds, and objected to the parol
proof above stated.
The justice overruled the objection, and
gave judgment for the plaintiff below.
Per Curiam. The fair construction of the
parol proof, in this case, is, that the defendant
below had received an assignment of his son's
property, in trust, for the payment of his son's
debts ; and from that fund he promised to pay
the debt now in question. He is to be regarded
as a trustee for the creditors of his son ; and
his absolute promise to this creditor is evidence
that the fund was adequate. But the original
debt of the son was still subsisting ; ana, ac-
cording to the decision in the case of Simpson
v. Patten, 4 Johns., 422, and the authorities
there cited, it seems well settled that a promise
to pay the debt of a third person must be in
writing, notwithstanding it is made on a suffi-
cient consideration.
The judgment must, therefoie, be returned.
Limited-21 N. Y.. 428.
Explained- 2 Denio, 56.
Cited In— 4 Cow., 4:{.-> ; 20 Wend., 204 : 23 Barb., 815 :
2 Bos., 308: 2 K. I). Smith, 404; Olcott, 153; 98 Mass.,
302.
*THE PEOPLE «. JOHNSON. [*29!l
Statute Law — Obtaining Good* under False
Pretense*.
A person who obtains goods under pretense that
he lived with, and was employed by, A B. who sent
him for them, is indictable for obtaining goods by
false pretenses, under the Statute (sees. 86. ch. 28,
sec. 13).
Citations— 1 N. R. L., 410 : 30 Goo. II., ch. 24 : 7
.Johns. 201; 33 Hen. VIII.. ch. 1; ST. R..B8; 2
East's C. L., 830.
rPIIE defendant was indicted at the General
JL Sessions of the Peace, for the City and
8?>:>
SUPREME COURT, STATE OF NEW YORK.
1815
County of New York, under the Act (sess. 36,
ch. 29, sec. 13 ; R. L., 410) for obtaining goods
by false pretenses.
The indictment charged that the defendant
pretended to one Alfred Nash that he lived
with, and was employed by, one Jacob Tier
(Tier being well known to Nash), and that he
was sent by Tier to Nash for a pair of shoes,
in the name of Tier, by which pretenses he
obtained from Nash one pair of shoes, of the
value of one dollar, of the goods and chattels
of Nash, with intent to cheat and defraud
him, Nash, of the same ; whereas, the defend-
ant did not live with, nor was employed by,
Tier, nor had been sent by him for the shoes,
or any shoes whatever, in the name of Tier.
The jury found the facts stated in the in-
dictment to be true, subject to the opinion of
the court whether the offense was indictable.
The court below were of opinion that it was
indictable under the Statute, but wished to
have the question settled by an opinion of this
court, and, in the meantime, suspended judg-
ment.
The case was submitted to the court without
argument.
*
THOMPSON, Ch. J., delivered the opinion of
the court :
The Statute (1 N. R. L., 410) declares that
if any person shall, knowingly and designedly,
by false pretense, obtain any money, goods or
chattels, &c., with intent to cheat or defraud
any person, he shall be punished, &c. This is
a transcript of the English Statute (30 Geo. II.,
ch. 24), which, according to the English de-
cisions, has been considered as extending the
common law offense of cheating, and as intro-
ducing a new rule of law. The common law
extended to cheats effected by means of any
false token, having the semblance of public
authority, or in any manner touching the pub-
lic interest. And this was the principle adopt-
ed by this court in the case of The People v.
293*] Babeock, 7 Johns., *201, which was an
indictment at common law. The Statute (33
Hen. VIII., ch. 1) extended the common law
rule, but still required some false token to be
used. But this being found too limited to
prevent the evil intended, the Statute of Geo.
II. was passed, which adopted the more gen-
eral terms of false pretenses ; and which has
been considered, in England, as extending to
every case where a party has obtained money
or goods by falsely representing himself to be
in a situation in which he was not, or by
falsely representing any occurence that had
not happened, to which persons of ordinary
caution might give credit. (3 T. R. , 98.) The
ingredients of the offense are obtaining the
goods by false pretenses, and with an intent to
defraud. In this case there was a false pre-
tense, and one, too, very naturally calculated
to deceive and impose upon the seller, and
that pretense was false. If the false pretense
created the credit, it has been considered as
bringing the case within the Statute. (2 East's
C. L., 830.) That the credit in this case was
obtained by means of the false pretense can-
not be doubted. According to these princi-
ples, therefore, which appear to be fully war-
ranted by the words of the Statute, the case
before us clearly falls within it, the. jury hav-
896
ing found the facts stated in the indictment to
be true.
We are, accordingly, of opinion that judgment
ought to be pronounced upon the prisoner in the
court beloio.
Cited in— 9 Wend.. 188 ; 11 Wend., 566 : 14 Wend.,
559; 5 Park, 166; 1 Wheel., 463; 2 Wheel., 178; 1
Sheld., 43 : 4 City H. Rec., 71 ; 50 Ind., 476.
M'GAHAY v. WILLIAMS.
Husband and Wife — If Wife Leave, but After-
ward Returns, Liabilities for Necessai-iex Re-
vive— Application by Third Person for Wife's
Return.
If a wife leave her husband, although voluntarily,
and without sufficient cause, and afterwards offers
to return to him, his liability for necessaries fur-
nished to her is thereby revived.
And if application is made to the husband by a
third person, on behalf of the wife, to receive her,
and he, without questioning the authority of the
person applying, puts his refusal on some other-
ground, it will be tantamount to a personal appli-
cation by the wife herself.
Citation— 11 Johns., 281.
I
N ERROR, on certiorari to a justice's court.
Williams brought an action against M'Gahay
in the court below for the board and lodging
of M'Gahay's wife. The cause was tried be-
fore a jury.
The marriage of M'Gahay, the defendant
below, with Eleanor, his wife, was admitted ;.
and it appeared from the evidence returned
that the defendant and his wife had lived sep-
arate for about twelve years, during which
time she had supported herself *until [*294
she was no longer able to do so. Before she
left her husband, she had borne him a child ;
and it was proved that she was a woman of
unblemished reputation ; but no abuse or mis-
conduct, on the part of the defendant wa&
shown.
Harris, a witness on the part of the plaint-
iff, testified that after the separation he called,
at the instance and request of Eleanor, on the
defendant more than twenty times, to request
him to let Eleanor return to him ; but he ab-
solutely refused to let her come, saying that
she had played him a trick ; that she had left
him with one young child, and if he took her
back again she might stay till they had more,,
and then leave him with four or five.
M'Cutchen, also a witness for the plaintiff,
testified that about a year ago he went with
Eleanor to the defendant, and that she told
him that she was come to ask a maintenance
from him, as she was unable to support her-
self any longer ; but he said that she must
seek her remedy. The witness did not recol-
lect that she offered to come back, or that sh&
wanted to live with him, or asked to see her
child.
Betsey Livingston, on the part of the de-
fendant, testified that she had been the inti-
mate friend of Eleanor, and that she was re-
quested, about twelve years ago, by Eleanor
and Eleanor's father, to go with her to the de-
fendant for her clothes, for that she would
not live with him any longer, and was going
JOHNS. REP., 12.
1815
REED v. GILLET.
294
to leave him ; when they came to the defend-
ant, Eleanor told him that she found that they
could live no longer together, and that, there-
fore, she was going to leave him, and wanted
her clothes. The defendant asked her if she
•would take care of the child, but she said
"no," but that the witness would nurse and
take care of it. The defendant told her that
they had lived together better, or that she had
made him a better wife, the last three months
than ever, and that, if they continued to live
together, he did not doubt but that they
should do very well ; and added that he told
her when she was going to her father's yester-
day that he or they would make some diffi-
culty ; but on her saying that they could live
no longer together, he told her that she might
take all the clothes that she could call lier
own. She then took her clothes and left him,
and left the child with him. The witness, ou
being cross-examined, said that the defendant
did not urge his wife to stay ; that she be-
lieved it impossible for her to live with him ;
that her father was about to move away, and
2O5*] *that she wished to go and see him be-
fore be went, but that her husband was un-
willing to let her go. saying that he would
make some difficulty between them . but that
she insisted upon going, and did go ; which
gave rise to the separation.
This is all the evidence that it appears nec-
essary to detail.
The jury fonnd a verdict for the plaintiff
for $4.87, on which the justice gave judg-
ment.
Mr. Fi*k, for the plaintiff in error, contend-
ed that the wife having voluntarily abandoned
her husband, and continued absent from him
for twelve years, he was not now bound to
maintain her, though she offered to return ;
and he relied on the case of Mariby v. Scott, 1
Mod., 124; 8. C., 1 Sid., 129; 8. C., 1 Keb..
69. 482; 8. C., 1 Lev., 4; 8. C., 1 Bac. Abr.,
4861 6th ed. by Gwill. ; see, also, M'Cutchen v.
M'dafuiy, 11 Johns.. 281, the doctrine there
laid down being, as he said, directly in point.
*//•. /.'">•«. contra, insisted that though a wife
voluntarily leaves her husband, yet, if she of-
fers to return again, and he refuses to receive
her, he is, from that time, liable to pay for
necessaries furnished her. This case is differ-
ent from the former one brought by M'Cutchen
against the same defendant. The offer to re-
turn here is fullv proved, and though the of-
fer was made through a friend, yet the de-
fendant made no objection to her not applying
in person. He cited 12 Mod., 244; 2 8tr.,
.1214 ; 1 Esp. N. P. Cas., 441 ; 8 Johns., 72,
Baker v. Barney.
Per Curiam. This case comes before the
court on a certiorari to a justice's court. The
suit in the court below was for necessaries fur-
nished M'Gabay's wife. There was some con-
troversy as to the marriage, but that ground
was finally abandoned by the defendant oelow,
and the marriage admitted ; and the only
question was as to the liability of M'Gahay to
maintain his wife. In the case of M'Cutchen
against the same defendant (11 Johns., 281),
we adopted this principle : that if a woman
leaves her husband, and lives separately from
him, he is not liable to her contracts forneces-
JOHNS. REP., 12.
j saries, although the person giving credit to her
does not know of the elopement ; but if she
offers to return, and her husband refuses to re-
ceive her. his liability to her contracts for nec-
essaries revives from'that time. If a husband
turns away his wife, he gives her a credit where-
ver she goes, and must pay for necessaries fur-
nished her. Applying these principles to the
*facts stated in the return, in this case, [*121)(J
the liiibilityof thedefendunt below forthemain-
tenance of his wife is revived. Although she
appears to have left him voluntarily, and with-
out any sufficient cause, yet she has repeatedlv
oticred to return. Harris, in his testimony,
states that shortly after the separation he, at the
request of the defendant's wife, went to him
more than twenty times, and requested him to
let his wife return, which he utterly refused.
He did not pretend to question the authority of
the witness, or that he came at the instance of
his wife, but put his refusal upon a totally dif-
ferent ground. It must, therefore, be deemed
equivalent to a personal application by the
wife herself, and a denial by her husband to
permit her to return : which brings the case
precisely within the principle adopted in the
former decision. The judgment of the court
below must, accordingly, be affirmed.
Judgment affirmed.
Cited i n 4 Denio, 49 ; 45 I mi.. 76.
REED v. GILLET.
Practice in Justice Court — Summon* by Copy —
Warra n t — Judgment.
Where, on the return of a summons before a jus-
tice, served by copy, the defendant does not appear,
the justice may issue a warrant.
In an action of debt, on a judgment in a justice's
court, it is not necessary to snow that the person or
justice, before whom toe judgment was obtained,
was a magistrate, or that he nad not been super-
seded at the time the judgment was rendered. And
if the record of the judgment is proved by the testi-
mony of the justice, not on oath, without any ob-
jection being made at the time, it is sullicient.
IN ERROR, on certiorari to a justice's court.
On the 5th of June, 1818, Gillet sued Reed,
by summons which was returned, served by
copy.
A warrant was then issued, at the return of
which the plaintiff declared in debt, on a
judgment recovered before William Parkes,
on the 3d of April, 1818, alleging that be
could not prosecute said judgment to execu-
tion, because Parkes had been removed from
office. The defendant pleaded that judgment
should have been rendered against him upon
the summons, and that a warrant ought not to
have been issued ; and that the plaintiff had
produced no evidence that Parkes was even a
justice of the peace. These objections were
overruled. William Parkes then stated, not
on oath, but without *any objection [*Ji97
being made, that the record produced in court
was the original record of the judgment re-
covered before him, the amount of which had
never been paid to him ; and the defendant
admitted, in open court, that he had never
paid any part of the judgment. Upon this
the court below gave judgment for the plaint-
397
297
SUPREME COURT, STATE OK NEW YORK.
1815
iff for $18.80 damages, and $2.96 costs. Th
justice, in his return, assigned as one reason
for bis judgment that he knew Parkes actec
as a justice as late as the 1st of April then last
and that his supersc'deas was dated on the 9th
of April ; but added that he rendered judg
ment principally from the defendant's confes
sion.
Per Curiam. This judgment must be af
firmed. The defendant below not having ap
peared upon the service of a copy of the sum
mons, it was regular in the justice to issue a
warrant ; and to have given judgment with
out issuing another summons, or a warrant
would have been erroneous. Nor is there any
weight in the other objection, although the
justice may not have assigned a good reason
for overruling it. The objection was not that
Justice Parkes had not been superseded, but
that he was not a magistrate when he rendered
the judgment, upon which the present suit
was founded. The judgment was proved by
the magistrate before whom it was obtained,
in a manner not objected to, and which was
equivalent to an admission of the judgment.
This was, at least, prima facie evidence of the
authority of Parkes to render such judgment;
and it would not be necessary, upon an action
founded on that judgment, which remained in
in full force, to show that the person before
whom it was obtained was a magistrate.
Judgment affirmed.
Cited in— 5 Wend., 233 ; 9 Wend., 18 ; 65 N. Y., 571 ;
14 Barb., 287 : 38 Barb., 47 ; 5 Leg. Obs., 337.
298*] *WOODIN v. HOOFUT.
Practice in Justice Court — Whole Evidence not
Returned.
Where the whole evidence is not returned by the
justice, before whom a judgment had been obtained
on a promissory note, which the defendant alleged
was not for a good consideration, and the cause was
fairly submitted to the jury, who found for the
plaintiff, the court will not reverse the judgment :
though, from the evidence returned, there is some
reason to believe that a larger sum was included in
the note, which was given for fees and services as a
deputy-sheriff, than <vas warranted by law.
IN ERROR, on certiorari to a justice's court.
Hoofut sued Woodin before the justice,
and declared upon a promissory note, dated
the 3d July, 1811, for $19.75, with interest.
Upon the trial the defendant admitted the
making of the note, but alleged it was not for
a good consideration. The justice, in his re-
turn, stated that a part only of the testimony
was taken down in writing and returned. This
evidence appeared to consist principally of ad-
missions made by the parties, which went to
show that the note was given for fees and ser-
vices rendered by the plaintiff, as deputy-sher-
iff, upon an execution in his hands, in favor of
Herrick against Woodin. The cause was fair-
ly stated, and submitted by the justice to the
ury, who tried the cause, and a verdict was
found for the plaintiff for the amount of the
note and interest.
Per Gttriam. The whole of the testimony
not being returned, it is difficult to say whether
398
substantial justice has been done or not.
There is some reason to believe that there was
included in the note a greater sum than the
law would warrant. The note, however, ap-
pears to have been given after a settlement of
the suit with the plaintiff's attorney, and so
not open to the suspicion that it was obtained
under the pressure of the execution. And,
besides, there is evidence showing that some
extra services were rendered, for which the
deputy might fairly have been entitled to com-
pensation ; and the question being proper for
the determination of a jury, and it having
been fairly submitted to them, the judgment
must be affirmed.
Judgment affirmed.
*CLEMENTS
v.
BENJAMIN ET AL.
[*299
Practice in Justice Court — Plaintiff may be
Nonsuited — Certiorari— Imperfect Return —
Witnesses.
A justice, in a trial before him, may nonsuit the
plaintiff, when, in his opinion, the testimony offered
by hirn does not support the action.
On a return to a certiorari, the error complained
of ought to appear affirmatively ; otherwise the
judgment of the justice will be presumed to be
correct.
If the return is imperfect or defective, the
plaintiff in error ought to procure a further re-
turn.
Where a plaintiff's witness is in part examined,
and then the cause is adjourne-I on account of his
sickness, it is the duty of the plaintiff to produce
the witness again at the day, or show some reason
why the witness is not there ; otherwise, the justice
may reject the evidence given on his unfinished ex-
amination.
IN ERROR, on certiorari to a justice's
court.
The certiorari in this case was brought to
reverse a judgment of nonsuit, The return
did not set forth what the evidence before the
justice was ; but merely that after the plaintiff
had closed the testimony on his part, and be-
fore the defendants had entered upon their de-
fense, the plaintiff was nonsuited.
Per Curiam. There can be no doubt but
that it is within the province of a justice to
nonsuit a plaintiff, when, in his opinion, the
testimony offered does not support the action.
And if, upon the return to a certiorari. the
;vidence offered would, in the opinion of this
jourt, have supported the action, or was
sroper for the consideration of the jury, the*
judgment of nonsuit will be reversed. But
,he evidence not being returned in this case,
we cannot say how far it supported the action.
If the return was imperfect, it was the duty
of the plaintiff in error to have procured a
further return to be made. We have repeat-
edly said that the error complained of ought
o appear affirmatively; otherwise, we are to
>resume the judgment correct.
The justice acted correctly in setting aside
he imperfect and unfinished examination of
-he plaintiff's witness. After the adjournment,
'or the purpose of his recovery from his in-
lisposition, it was the plaintiff's duty to have
JOHNS. REP., 12.
1815
CAIKNES v. BLEECKER.
him again in court, or assign some reason why
he was not there. It was the right of the de-
fendant to cross-examine him ; and he had a
right to presume that the plaintiff would have
him in court for that purpose.
Judgment affirmed.
Cited in— 13 Johns., 335: 10 Wend., 622; 19 Wend.,
353; 7 Hill.. 4«»: 8 X. Y..74; «7 N. Y.,387; 2 Barb..
961 ; 3 E. D. Smith. 116 ; 13 Bank. tie?.. SOS.
3OO*] *CAIRNES AND LORD
v.
BLEECKER
1. Principal nnd Agent— Ratification by Silence.
2. litinedie* — Troter — Qi«e.
It seems that where an agent is authorized to de-
livered goods to a third person, on receiving suffi-
cient security for the amount, and the agent deliv-
ers the goods, but does not take sufficient security.
trover will not lie against the agent for the goods ;
but the proper remedy is an action on the ease. But j
where an agent, on the 18th July, informed his
principal, by letter, of what be had done, and the
nature and amount of the security he had received
on the delivery of the goods, and the principal did
not answer the letter until thcIJSUh October, follow-
ing, this WHS held to amount to'an acquiescence in.
or approbation of the agent's conduct.
Where a principal is informed by his agent of
what he has done, the principal must express his
dissatisfaction in a reasonable time : otherwise, bis
assent to his agent's acts will be presumed.
Citations— 4 T. R., 280; 3 Taunt., 117: I Cat.. 539; 1
Johns. Cas, 110.
was an action of trover, tried at the
JL New York sittings, before Mr. Justice Van
Ness, the 5th April last.
The plaintiffs produced in evidence the fol-
lowing receipt 01 the defendants : "Received
in store, Albany, 18th May, 1811. from on
board the sloop Diana, John Gager, one box,
and one bale of dry goods, marked M. Gillet,
subject to the order of Messrs. Cairnes & Lord,
New York. B. & J. R. Bleecker." The value
of the goods in May, 1811, was admitted to be
$795.82.
On the 20th May, 1811, the defendants wrote
to the plaintiffs, as follows: "Captain John Ga-
ger has put into store a box and small bale of
goods, marked M. Gillet, for which we have
given him a receipt, as holding them subject to
your order. Mr. Gillet has drawn on us, in
your favor, for the amount of goods said to be
NOTE.— Princi}tal and agent— Ratification by si-
lence.
Where the principal i» infinrmed itf an unauthor-
ized act of bis agent, and does not within a reason-
able time give notice of his disapproval, his ratifi-
cation N presumed. Armstrong v. Uilchrlst, 2
Johns. Caa., 424 ; Towle v. Stevenson, 1 Johns. Cas..
110; Vitinna v. Barclay, 3 Cow.. 281 ; Crans v. Hunt-
er, 28 N. Y.. 880; Uage v. Sherman, 2 N. Y., 417;
.1 ili n -i Hi v. Jones, 4 Bart)., 300; BrMentxtcker v.
Lowell. 32 Burti.. 9: Murray v. Bininger, 3 KfVfs.
107; 33 How. Pr., 425; Hope v. Lawrence, SO Ifcirli.,
2fi8; Hazard v. Spears, 2 Abb. App. Dec., 363; 4
Keyeft,4tW; Williams v. Merrill, 23 1 11.. 023 ; Mangum
v. Bell, 20 La. Ann., 215: Bred in v. Dubarry, 14 Serg.
& R.. 27; Hall v. Harper. 17 111.. 82; Owlsey v.
Woolhoptcr. 14 Ga.. 124: Farwell v. Howard, 20
Iowa, 381; Lindsley v. Malone, 23 Pa. St.,24; Araory
v. Hamilton, 17 Mass., 103; Johnson v. Wingate, 29
Mr.. 404 : Clay v. Spratt. 7 Bush. 334: Law v. Crow,
1 Itluck. Mt; Richmond Mfg. Co. v. Stark, 4 Miison,
296; .!•• i- vis v. Hoyt, 2 Hun, 637; 5 Super, 199.
JOHNS. REP., 12.
contained therein ; but, not being authorized
by you so to do. we have not accepted them,
but shall retain the goods, to be disposed of as
you may direct. It is by the desire of Mr. Gillet
we have written to you on this subject ; and
also, to inform you of his wish to have the goods
left on our hands, until he shall make you re-
mittances in ashes, to an amount to make you
feel satisfied to let him take them. We be-
lieve he has written himself, in regard to the
business, and we shall wait your instructions
how to act."
On the 22d of May the plaintiffs, wrote to
to the defendants, stating the sale of the goods
to Gillet, for drafts on the defendants, which
Gillet informed them hnd not been accepted,
but that the goods remained in the hands of
the defendants, subject to the order of the
plaintiffs ; and that he should, on his return
home, immediately place in the hands of the
defendants a quantity of potashes, as security
for the claim of the plaintiffs ; and they add,
in their letter, "believing Mr. Gillet's inten-
tions were correct, and that his disappoint-
ment would be great, we have to request you
to receive, agreeably to Mr. Gillet's proposi-
tion, property amply sufficient to secure our
claim, which *you will dispose of, and [*30 1
pay over to us, when sold, the amount of the
drafts before mentioned ; and as soon as prop-
erty is placed in your hands, agreeable to the
conditions above, you will please deliver the
goods. Please to write us, if the satisfactory
security is received." On the 18th July, 1811,
the plaintiffs again wrote to the defendants,
mentioning their last letter, and say: "Please
inform us whether the security is received,
and the goods delivered, by the first convenient
opportunity."
On the 18th July the defendants wrote to
the plaintiffs as follows : "Mr Gillet, some
time lost week, wrote us that he would, in a
few weeks, send about seven tons of ashes,
which we could (if we thought proper) .ship
to New York, to be delivered to you, subject
to his order. We have now put on board the
sloop Cornelia, Captain Staats, twenty-six
casks of ashes, which we have directed him
to send to an inspector's store, and deliver the
bills to you. which you will have the goodness
to recefpt for, subject to Mr. Gillet's direc-
tion. It is probable, at the next trip of the
sloop, we may have more to ship you for Mr.
Gillet. We send these now, in case he should
require them to be .shipped before the sloop
goes down again, say the next month. You
will, of course, not dispose of the ashes until
you receive Mr. Gillet's orders." "P. S. We
sent the last package of your goods yesterday,
to Mr. Gillet."
In a letter of the plaintiffs to the defendants,
dated the 29th October. 1811, they say: "Be
pleased to inform us if any directions have
been given you relative to the ashes held by
us, for account of Mr. Martin Gillet ; and,
also, what other property he placed in your
hands, when he took the last of the goods."
They also state that if the ashes they had re-
ceived were then sold, at the then prices, they
would fall far short of their demand. On the
first November, the defendants, in answer,
wrote to the plaintiffs that they had received
no communication from Mr. Gillet since the
801
SUPREME COURT, STATE OF NEW YORK.
1815
summer months; that they had been informed
that Mr. Gillett had gone to Baltimore ; that
-no more ashes, or other property, had been
left by him with them; and they promise to
make further inquiries as to the circumstances,
&c., of Mr. Gillet, and inform the plaintiffs.
On the 12th February, 1812, the plaintiff's
attorney wrote to the defendants, informing
them that the plaintiffs held them responsible
for the value of the goods left in their hands;
that ashes would then sell to advantage, and
suggesting, for their consideration, the pro-
3Oii*] priety *of giving orders to the plaint-
iffs to sell the ashes, and appropriate the pro-
ceeds towards the payment of their claim on
the defendants. This letter was not answered
by the defendants, and on the 3d of August,
1812, a formal demand was made, on behalf
•of the plaintiffs, on the defendants, for the
goods placed in their hands, and which they
refused to deliver.
The receipt of the plaintiffs to the defend-
ants, for the ashes, was dated the 27th of
July, 1811, for "twenty-six barrels of potashes,
and one barrel of of caustic, as per bill of J.
H. Bogert, which are held by us for account
of M. Gillet." The ashes remained in the
store of Bogert, the inspector, until December,
1813, when he sold them, according to
the directions of the statute, and paid the
proceeds into the hands of the State Treas-
urer.
A witness for the defendants, a clerk in
their store, testified that the captain of the
sloop who brought the goods for Gillet offered
to deliver them to the defendants, on their ac-
cepting two drafts drawn on them by Gillet,
each for $397.66, one at four months, and the
other at eight months, which the defendants
refused to accept ; but observed that they had
some ashes of Gillet's in store, and that they
would receive the goods on storage, and retain
them until they should receive sufficient ashes
from him to pay the amount of the drafts, for
which they would not make themselves liable.
The goods were then delivered to the defend-
ants, who gave the receipt for them above
mentioned. The witness stated that, Gillet
made frequent applications to the defendants
for the goods, but they refused to deliver
them until they had received a sufficient quan-
tity of ashes to secure the amount of the
drafts ; and that, on the 18th of July, 1811,
having received a sufficient quantity of ashes
to secure the amount, they delivered the
goods to Gillet, and sent the ashes to the
plaintiffs.
It appeared that the price of ashes in New
York, in July and August, 1811, was $95 per
ton ; and in October and November, of the
same year, $80 per ton. The amount for which
they were sold by the inspector was $583.42.
A verdict was taken for the plaintiffs for
$989.23, subject to the opinion of the court on
the case above stated.
3O3*J *Mr. Slosson for the plaintiffs. The
goods of the plaintiffs were deposited with the
defendants to be delivered to Mr. Gillett only on
the condition that the defendants received am-
ple security ; and of the adequacy of that
security they alone were to be the judges.
They were bound, by the tenor and effect of
their engagement, to take for the plaintiffs ade-
400
quate and unconditional security. Under a
perfect understanding, however, and full
knowledge of all the circumstances they took
security, insufficient in itself, and clogged with
the condition of being subject to the order
of Gillet. The defendants in their letter did
not pretend that the potashes they sent were
sufficient security ; yet, they delivered the
goods to Gillet which had been deposited with
them.
By the delivery of the goods to G., in viola-
tion of the terms of the deposit, the defendants
must be considered as having converted them
to their own use ; and after a demand and re-
fusal to deliver them to the plaintiffs, there
can be no question that the action of trover lies.
The case of Syeds v. Hay, 4 T. R,, 260, in En-
land, and of Laplace v. Aupoix, 1 Johns, Cas.,
406, and Bristol v. Burt, 7 Johns. , 257, in this
court, show the principles of this action, and
that it will lie in such a case.
But it may be said, perhaps, that the plaint-
iffs have acquiesced in, or adopted the acts of
the defendants, their agents or bailees. But
there can be no adoption unless there has been
a full and perfect disclosure of the facts. If
there be a concealment of facts, the principal
cannot be bound by any supposed adoption.
(Wallace v. TeUfair,2T. R, 188, note; Codwise
v. Hacker, 2 Caines, 526, 539 ; 1 Ves., 509.)
Now, the defendants did misrepresent facts ;
we do not say willfully or intentionally ; but
if there was any erroneous statement or con-
cealment which might mislead the judgment
of the plaintiffs, they cannot be held to have
adopted the conduct of the defendants. In
their letter of the 18th of July, the defendants
did explicitly hold out to the plaintiffs the ex-
pectation that more ashes were to be shipped
to them, and that the twenty-six barrels were
not the whole of the security they were to re-
ceived. That expectation, however, was never
realized.
Messrs. Brinckerhoff and Wells, contra. The
agency of the defendants was gratuitous. The
bailment to them was a naked bailment ; and
it is merely a question as to good faith on their
part. Has the agent honestly, and in good
faith, exercised the power vested in him by his
principal ? The plaintiffs gave to the defend-
ants a discretion in the exercise of their judg-
ment as to the *sufficiency of the secu-[*3O4
rity to be received on the delivery of the goods
to Gillet. If the defendants have exercised
their judgment honestly and fairly, they ought
not to be made answerable if that security has
proved deficient.
On the 18th of July they wrote to the plaint-
iffs and informed them of what they had done.
If the plaintiffs were dissatisfied with their con-
duct they ought immediately to have expressed
their disapprobation, so as to put the defendants
on their guard, and to give them an opportunity
of securing themselves through Gillet, in case
they had made themselves responsible to the
plaintiffs. Considering the circumstances un-
der which the defendants accepted of the agen-
cy, it was peculiarly the duty of the plaintiffs
to have instantly answered the letter of the de-
fendants and expressed their opinion of their
conduct. On the contrary, they continued
silent until the 29th of October which, we con-
lend, amounts to an assent to their acts. It is
JOHNS. REP., 12.
1815
WlGGIN V. BCSII.
304
a general principle of law,1 and which has
been recognized by this court (Totek et ai. v.
SUventon, 1 Johns. Cas., 110; Codiriaev. Hack-
•er, 1 Caines, 526 ; Armstrong & BarnweU v.
OOcfirut 2 Johns. Cas., 481, per Kent ,J.),
that where an agent by letter, gives an account
-of what he has done, and that letter is not an-
swered by the principal, it amounts to an ap-
probation of the conduct of the of the agent.
But we contend that trover does not lie in
this case. The goods were delivered to the
•defendant, with directions to deliver them over
to Oillet, on receiving satisfactory security.
The defendants having received security,
which they believed sufficient and delivered
the goods, the property of the plaintiffs imme-
diately ceased. Their only remedy, therefore,
if any, must be an action on the case against
the defendants as their agents, for exceeding
their authority. In such an action the defend-
ants, if they have not acted bonajide, would be
liable only to the damages actually sustained
by the plaintiffs. But in trover they must an-
swer for the value of the goods.
SPENCER, J., delivered the opinion of the
•court:
Two objections have been made to the plaint-
ilTs recovery : 1st. That trover cannot be sus-
i*O5*] tained in such a case ; and, 2d. *That
the plaintiffs, after a knowledge of all the
fads, adopted the defendants' acts.
The plaintiffs' counsel relies on the case of
Seydv. Hay, 4 T. R, 260, as to the form of
the action. In that case, the owner of goods
•on board of a vessel directed the captain not to
land them on the wharf, which he promised
not to do, but afterwards delivered them to
the wharfinger for the owner's use, under the
pretense that the wharfinger had a lien on
them for wharfage; the court held the delivery
to be a conversion, there being no right to
wharfage. The case of Dufrexne v. Uutchin-
#>n, 8 Taunt., 117, decides that if a broker au-
thorized to sell goods for a particular price, sells
them at an inferior price, he' is not liable in
trover, and that the proper remedy is an action
on the case. The court do not think it neces-
sary to decide this point on the present occa-
sion, nor do they intend to do so. It appears
to me. however" that there is serious objection
to the form of the action without impugning
the case of Seyd v. Hay ; in that case the de-
fendant was guilty of a direct breach of orders,
contrary, too, to his prqmise : here thedefend-
anN were authorized to deliver the goods to
Qillet, on receiving property amply sufficient
to secure the plaintiffs their demand : this
necessarily referred it to their judgment what
was sufficient property ; and for misbehaving
in this trust it seems to me that case, and not in
trover, is the apropriate remedy. At all events
the form of action ought not to deprive the de-
fendants of any ground of defense.
On the 18th or July, 1811, the defendants
1. — Le i n. i in Ian t out ne repond point a la lettrp par
lu'iuolle sea commJasionaires luiexpliquent ce qu'ils
out fult, eat cense approuver leur conduito, quoi-
qu'ils ayent excede IP mandat. Cette rt'ivption <lc
la l«-ttr«' linn coiitri-'liU', est, parini les nugociatwi,
mi art.- poeitif d'approbution. Kmi-ritf. tmn. 1 p.
146. Receptiti liter arum rxtoctu* ixmltlriu. Straccha
de As»ff., fl. 11, n. 47 : OisHuiviris <li*c. 30, n. 63, dtec.
188, u. 54, K0. l:n. n. 7, d(*e. 285, n. 64, Rot de Oenes
d«e.24, n. 4, </«•<*. 147. n. 4.
informed the plaintiffs that they had, on the
l?ih of that month, delivered Gil let the last
parcel of the goods, and that they bad received
from him twenty-six casks of ashes, which
were placed at the same time under the plaint-
iff's control, subject to Gillet's order as to their
sale. The plaintiffs rest satisfied until the
29th of October, and then, for the first time,
ask for information what other property Gillett
had placed in their hands when he took the
last of the goods. The cases of Codiri*e v.
Hacker, 1 Caines, 539, and Totcle <fc Jackton v.
SltMOMon, \ Johns. Cas., 110, are authority
for saying that when the principal, with a
knowledge of all the facts, adopts the acts of
his agent, though these acts are contrary to bis
duty and instructions, he shall not afterwards
impeach his conduct ; and this principle is pe
culiarly applicable to a case like the present ;
for had the principle disapproved, *the [*IJOO
defendants might by their vigilance, for aught
we know, have secured themselves. The lapse
of time after the information that the last
parcel bad been delivered, and that only
twenty-six barrels of ashes had been deposited^
was sufficient to denote to the defendants the
plaintiffs' approbation of, or acquiescence in
what they had done ; and besides, the defend-
ants had a right to infer that Gillet had com-
mitted to the plaintiffs his orders as to the dis-
position of the ashes, and made arrangements
with them as to the debt. It is a salutary rule
in relation to agencies, that when the principal
is informed of what has been done, he must
dissent and give notice in a reasonable time,
or otherwise his assent to what has been done
shall be presumed.
Judgment for the defendant*.
Distinguished— 68 N. Y.. 527.
Cited in-16 Johns.. 76 : 3 Cow.. 283 : 6 Wend., 155 ;
48 N. Y., 495 ; 2 Hun, 641 ; 32 Barb., 19 ; 33 Barb.. 248;
32 How. Pr., 350 ; 53 How. Pr.. 156 ; 5 T. & C.. 202 ; 43
Super., 492 ; 2 Daly, 109 : 3 Redf ., 475 ; 96 U. S., 645 ; 1
Curt., 469 ; 3 Wood. & M., 86.
WIGGIN AND WIGGIN t>. BUSH.
Negotiable Paper — Promissory Note — When
Consideration Illegal, Void.
A note executed by a debtor to a creditor, to in-
duce him to withdraw his opposition to the debtor's
obtaining' his discharge under an insolvent law, IB
void.
Citations-Act April 11, 1811; 2 D. & E.. 763; 3 Cat.,
213.
THIS was an action on a promissory note
made by the defendant, payable to one
David Forsaith, sixty days after date, for $1,-
000, dated May 24th. 1812, and indorsed by
Forsaith to the plaintiffs. The defendant
pleaded the general issue, with notice of his
discharge under the Insolvent Act, passed
April 3d, 1811, and of other special matter.
The defendant was a partner of the house
of Hire & Bush, who were indebted to the
plaintiffs in the sum of $6,000 on five promis-
sory notes, drawn by Rice & Bush, payable to
NOTB.— Insnlvent'* ntttct— Illegal contttleratiim.
Notce given in cnnnideratinn of witMravxil nf oppo-
xiM.m tti inntilrfitt't discharge are void. See Payne v.
Eden, 3 Cat., 213, note.
JOHNS. UK !•. 12.
N. Y. R, 5.
26
401
306
SUPREME COURT, STATE OP NEW YORK.
1815-
David Forsaith, and by him indorsed to the
plaintiffs. Forsaith had conveyed lands to
the plaintiffs, as security for the payment of
the notes, but those lands were not sufficient
for the payment of them. The plaintiffs re-
sided at Boston, in Massachusetts.
David Forsaith, being at New York in
April, 1812, had some conversation with
the defendant about his obtaining his dis-
charge, in which the defendant stated that
Forsaith might have it in his power to prevent
his discharge, as he had not made a fair ex
hibit. On being asked what property he had
omitted, he replied that he did not know what
3O7*] it would amount to, until *he had it
collected together. Forsaith attended before
the Recorder and opposed the defendant's dis-
charge ; and the defendant, to procure For-
saith to withdraw his opposition, agreed to
give the plaintiffs a note for $1,000, on which
Forsaith wrote a few lines to the Recorder,
the purport of which was to withdraw his op-
position. Forsaith consented to indorse the
note without receiving any security from the
defendant.
The note, although dated on the 24th of
Mav, was, in fact, made on the 22d of April,
and a memorandum of the day upon which
it was executed was indorsed upon it. For-
saith received the note, and delivered it to the
plaintiffs immediate!}' on his return to Boston,
before it became payable, but did not commu-
nicate the manner in which it had been ob-
tained ; and at the time of passing the same,
there was no understanding that he should
not be liable as the indorser.
The defendant was discharged by the Re-
corder of New York, on the 1st of May,
1812, under the Act.
Mr. R. Sedgwick, for the plaintiffs, con-
tended that this being an action by a bona fide
indorsee against the maker, it did not lie in
the mouth of the defendant to falsify the note,
or to say that it was made on a day different
from that on which it bears date. (Boehm et al.
v. Sterling, 1 T. R., 423). But the day on
which the note was issued was, in fact, noted
on the back of it.
Then, was this note given in fraud of the
Insolvent Law of 1811? There was no actual
fraud in the transaction ; nor can it be consid
ered as against the policy of the Act. Forsaith
was not bound to oppose the defendant in ob-
taining his discharge. The law imposes no
such duty on a creditor. He, therefore, vio-
lated no duty by taking a note or promise to
pay an honest and just debt. The English
cases on this subject are those of positive
frauds against the other creditors in sign-
ing the bankrupt's certificate, or in executing
deeds of composition (1 Atk., 105; 2 T. R.,
763 ; 4 T. R., 166 ; 4 East, 372 ; Doug.. 227,
696 ; 3 T. R., 17; 1 H. Bl., 647, which are
distinguishable from the present case.
In Levins v. Chate, 1 P. Wms., 620, Lord
Chancellor Parker refused to relieve against a
bond given by a bankrupt to a creditor to in-
duce him to withdraw a petition against the
allowance of the bankrupt's certificate. In
the case of Waite v. Harper, 2 Johns., 386,
the plaintiff's demand was not inserted in the
inventory of debts exhibited by the defendant;
it was a case therefore of direct fraud against
402
the statute. In Bruce v. I^ee, 4 Johns., 410,
it is not stated *that the plaintiff's name [3O£
was omitted in the schedule of the insolvent,
which was the fact. These cases are not,
then, applicable to the present case. This is
not a question of fraud, but as to the policy
of the Act. But the Act itself was repealed
at the next session as impolitic, and as tending
to produce frauds.
Mr. Golden, contra, contended that the note
was absolutely void in its creation, as being a
fraud on the other creditors, and oppressive on
the insolvent. Cockshot v. Bennet; 2 T. R.,
763. It cannot, therefore, be set up or en-
forced by a third person, although an innocent
indorsee, for that would defeat the very ob-
ject of the Act. In Sunner v. Brady, 1 H.
Bl., 647, Lord Lough borough said the case of
Lewi* v. Chaise had long since been exploded,
and that he regarded it as a case destitute of
principle, and directly contrary to the true
construction of the Act.
The case of Payne v. Eden, 3 Caines, 213,
in this court, and which has since been fol-
lowed by those of Waite v. Harper, Bruce v.
Lee, and Yeomansv. Chatterton, 9 Johns., 295,
was decided on the sound principles of justice
and policy, and the true construction of the
insolvent acts. It was there established that a
note given under such circumstances was void,
as being a fraud against the other creditors ;
and that being founded in fraud, no subse-
quent promise could revive it.
Again ; the plaintiff received the note under
circumstances to induce suspicion, and suffi-
cient to put him on inquiry. He must there-
fore be presumed to know for what it was
originally given. Further ; the holder gave
no consideration for the note, and is therefore-
in privity with the first taker. (Collinx v.
Martin, 1 Bos. &P., 648 ; Chitty on Bills, 63.)
Forsaith received no consideration. The for-
mer notes were not given up. The plaintiff
must be deemed an original party to the trans-
action, acting by Forsaith as his agent.
The objection that a party cannot impeach
paper to which he has lent the credit of his
name, and put into circulation by indorsement,
does not apply where it is sought to avoid the
paper or security on the ground of fraud and
illegality.
YATES, J., delivered the opinion of the
court :
The plaintiff in this cause was properly
nonsuited.
The note in question was given to prevent
the opposition of Forsaith, the payee, against
the insolvent's obtaining the benefit of the
Act of the llth of April, 1811, and in my
opinion under *circumstances of fraud; [*3O9-
for it is expressly stated that the defendant, in
conversation with him on this subject, ad-
mitted that he had not made a fair exhibit of
his debts to the Recorder. It became, there-
fore, a subject of inquiry, whether he had
committed perjury, in not rendering a just
and true account according to the oath taken
by him. as prescribed by the statute under
which the proceedings were conducted. Other
reasons besides might have been shown by
Forsaith to prevent his discharge, not suscep-
tible of detection afterwards ; so that the
JOHNS. REP., 12.
1815
WHEELER v. VJLN HOUTEN.
transaction from its very nature must operate
fraudulently, and ought not to be counten-
anced. Not only true policy, but the spirit of
this statute, ax well as every statute I have
seen on the same subject forbids such trans-
actions. It is at all times intended by the
Legislature, to effect an equal distribution of
the insolvent's estate, and secure equal ml van
tage» to the creditors ; and although the giving
of this note, and the payment of it afterwards
by the insolvent, would not as to that amount
lessen their distributive shares in his estate ;
yet the suppression of facts producing such
a result, which might be the case, is alone in
my view sufficient to prevent the recovery now
sought for.
The Act never can be construed so as to
authorize the insolvent to silence an opposing
creditor by a written promise of future pay- I
tin -HI of his debt, or by giving a reward to any j
person, whether agent for a creditor or not, to j
withdraw his opposition. It appears to me |
incorrect and unjust, and might be attended
in either case, with the grossest imposition on i
creditors. It must be admitted that laws of i
this description, although necessary to relieve |
unfortunate debtors, always operate hard on
creditors ; and it is the province of courts of
justice, in cases like the present, to interfere,
and to close the remotest avenues leading to
fraud or imposition on them, by persons
claiming the benefit of such laws.
The case of Cockxhot et al. v. Bennet et al. ,
2 D. & E., 768, could not have interfered with
the distributive share of a creditor ; yet the
court decided that the note given by the bank-
rupt was void. In that case all the creditors
of the insolvent consented to accept a compo-
sition for their respective demands, upon an
assignment of his effects by a deed of trust to
which they all were parties ; and one of them
before he executed the deed, obtained from
3 1 O*] the insolvent a promissory *note for the
residue of his demand, by refusing to execute
the deed until such note was made. The note
was declared void in law, as a fraud on the
rest of the creditors ; and the court decided
that a subsequent promise to pay it was a
promise without consideration which would
not maintain an action.
Ill Payne v. Eden. SCaines, 213, it was neces-
sary for the insolvent to obtain the assent of a
certain portion of his creditors ; and he had a
sufficient number without the payee of the
note ; but the note haVing been given in con-
sideration of bis signing the insolvent's petition,
it was adjudged void.
If the security in the above cases was deemed
void, the reasons against the validity of the
note, in this cause, are certainly more cogent
and conclusive ; but it is, notwithstanding,
contended that this is a defense set up against
third persons, who are subsequent holders for
a valuable consideration, and without notice.
This, according to the view before taken of
the subject, could not give validity to the note,
if void -/•'< i /n't in. It cannot, however, be made
a question in the present case ; because it does
not satisfactorily api>ear that a consideration
had been given for the note by the holders ;
and because they had sufficient notice of the
manner in which it was originally obtained by
the payee, as their agent.
.JOHNS. RBP.. 12."
It appears that the plaintiffs still hold the
former notes given by Rice & Bush to them,
and indorsed by Forsaith, the payee of the
note in question ; who, without making any
arrangement at the time it was so transferred
to deduct from that debt the amount of this
note, which debt was also stated on the defend-
ant's schedule delivered to the Recorder,
and for the payment of which the same liabil-
ity existe ; so that the whole demand remained
in the same situation, without affording any
benefit to Forsaith, the indorser of this note.
To say the least, therefore, it is extremely
questionable, whether any consideration can
even be presumed to have passed to Forsaith,
from the plaintiffs, for the note.
By the indorsement on the note of the real
date, the plaintiffs had such information as
ought to have led to an inquirv into the manner
the payee had obtained it. The post-dating of
the note which was indorsed, was an extraor-
dinary circumstance, and must have created
suspicion. The neglect of the plaintiffs to
make any inquiry, ought to subject them to the
consequences of the transaction between the
defendant and Forsaith, the immediate or or-
iginal *parties; and, as between them, [*311
it is decidedly an illegal consideration. It is,
however, manifest, from the face of the trans-
action, that Forsaith, the payee and indorser
of this note, acted as the agent of the plaintiffs:
they, of course, are bound by his acts, and are
subject to the same consequences, as if the
whole had been conducted by themselves ; so
that, independent of other reasoning on the
subject, this alone is sufficient to prevent a re-
covery. The motion for a new trial must,
accordingly, be denied.
Motion denied.
Cited in-20 Wend.. 31 ; 4 Hill, 444; 7 N. Y., 183; 12
N. Y., 10 ; 72 N. Y.. 89 ; Edm.. 289 : 4 Sand.. 88 ; 5Sand.,
189 ; 4 E. D. Smith. 467 : 8 Leg. Obs.. 278 ; 42 Mo., 406 ;
52 Mo., 81: 20 How. (U. S.), 366; 3 McLean. 103; 4
McLean, 9 ; 8 Bank. Reg.. 230 : 10 Blatchf ., 370.
WHEELER v. VAN HOUTEN.
Arbitration — Where all Demands are Submit-
mttted, Award is a Bar to Action.
Where there is a submission to arbitration of all
the demands which either party had against the
other, the award is a conclusive bar to an action for
any demand su twisting at the time of the submission
and award ; though the plaintiff can show that the
demand for which action IB brought was, by mistake,
omitted to be laid before the arbitrators, and wa»
not considered, or decided upon, by them.
Citation-4 T. K., 146.
IN ERROR, from the Court of Common
Pleas of Orange County. . Wheeler brought
an action of asuumpnit against Van Houten, in
the court below, and the defendant pleaded
the general issue. At the trial of the cause,
the defendant proved that he and the plaintiff,
on the 26th day of February, 1812, before the
commencement of the suit, mutually agreed
to submit the final adjustment of all their
demands against each other to arbitrators, and
pledged themselves to abide their award ; and
that the arbitrators did award and order that
Wheeler, the present plaintiff, should pay to
408
311
SUPREME COURT, STATE OF NEW YOUK.
1815
Van Houten. the. defendant, the sum of $27.74;
and that the costs should be equally divided
between them. The counsel for the defend-
ant insisted that the award was conclusive
evidence for the defendant, and a bar to the
plaintiff's reco vering for any demand subsisting
against the defendant, prior to the submission
and award. The plaintiff's counsel then
offered to prove that the several demands and
charges for goods sold, mentioned in the plaint-
iff's declaration, and the several items for
which the present suit was brought, were, by
accident, never laid before the arbitrators for
their consideration, nor did they decide thereon;
and that, since the award, the plaintiff had
admitted that the items for which the present
suit was brought were not produced before the
arbitrators, or considered by them in making
3 1 2*] *up their award. But the court below
rejected the evidence, and decided that the
award was conclusive evidence, in bar of the
plaintiff's action, for all demands subsisting
prior to the submission and award ; and the
plaintiff was thereupon nonsuited. The plaint-
iff's counsel tendered a bill of exceptions to the
opinion of the court below.
Mr. Story, for the plaintiff in error. An
award stands on the same and no better ground
than a judgment ; which is prima facie, a bar,
and no more. The defendant pleads that the
same identical matter was recovered in a for-
mer suit. In Ravee v. Farmer, 4 T. R., 147,
Oolightly v. Jellicoe, lb., note, it was decided
that an award, upon a submission of all mat-
ters in difference between the parties, did not
preclude the plaintiff from suing for a cause of
action subsisting at the time of the submission,
if he could show that the subject matter of such
action was not laid before the arbitrators. The
same principle was laid down in Seddon v.
Tutop, 6 T. R., 607 ; 2 Bl., 827 ; 3 Wils., 304,
and Grose, J., observed that the recovery in
the former action was only prima facie evidence
that the demand had been inquired into by the
jury.
The case of De Long v. Stanton, 9 Johns.,
34, is not applicable to this case, for there the
submission was general, and the arbitrators, in
fact, award upon the subject matter of the new
action, though the plaintiff objected that he
did not intend to submit it to the arbitra-
tors.
Mr. 8. Jones, Jr. , contra. This is an attempt
to open an award by parol evidence. It is an
action to recover part of a matter before sub-
mitted to arbitration, but omitted, through the
f orgetf ulness or mistake of the party, to be
laid before the arbitrators. The award is
final and conclusive, as to all matters within
the submission. In this case, the submission
was of all demands ; not merely of all matters
in difference. If, then, the cause of the pres-
ent action was a demand subsisting at the time
of the submission, it is within it, and the award
must be conclusive. This court, in the case of
Newland v. Douglas, 2 Johns., 62, held that a
palpable mistake of the arbitrators, in calcu-
lating the amount awarded, could not be cor-
rected at law. And in Barlow v. Todd, 3 Johns. ,
367, it was decided that where the award
is, on the face of it, final, nothing dehors the
award can be pleaded or given in evidence
against it. In De Long v. Stanton the same
404
principle was laid down, as to *the [*313
award being final and conclusive, as to all
matters within the submission.
Per Curiam. In Reeve v. Farmer, 4 T. R.,
146, it was held that on a submission to
arbitration "of all matters in difference," the
award was conclusive on the parties, as to all
causes of action subsisting between them pre-
viously to the submission ; but that where it
could be shown, that the subject of the action
was not a matter in difference at the time of
the submission, nor was referred by the parties
to the arbitrators, the award would be no bar.
The case of Oolightly v. Jellico, in a note to the
case cited, turns on the same principle.
These decisions do not bear out the plaintiff
in maintaining this suit ; for here the submis-
sion extended to all the demands which either
party had against the other — whatever consti-
tuted a demand, on the one side or the other,
was submitted ; and if submitted, the cases
cited show that the award must be final.
It would be a very dangerous precedent, to
allow a party, on a submission so general, in-
tended to settle everything between the par-
ties, to lie by, and submit only part of his de-
mands, and then institute a suit for the part
not brought before the arbitrators. The ob-
ject of the submission (Was to avoid litiga-
tion ; and neither party is at liberty to with-
hold a demand from the cognizance of the
arbitrators, on such submission, and then to
sue for it.
It is true, if a person sues upon several and
distinct causes of action, and submits only a
part of them to the jury, he is not precluded
from suing again for such distinct cause of
action as was not passed upon. In that case,
he was not bound originally, to unite the dif-
ferent causes of action, and, therefore, shall
not be barred ; but here he bound himself to
the defendant to submit every demand, and
cannot recede from his agreement.
Judgment affirmed.
Cited in-19 Wend., 288; 4 N. Y., 575; 20 Barb.
411 ; 23 Barb., 197 ; 1 E. D. Smith, 443 ; 1 Wood. & M.,
179.
*CONCKLIN «. HAVENS. [*314
Wills — Construction — Slave-owner Entitled to
Increase.
Where A, by his last will, manumitted his slave
Maria, and gave to Maria her daughter Cloe, during
her naturallif e, it was held that, whether the words
" during her natural life," applied to Maria or Cloe,
and, whether the children of Cloe, born during the
time that Maria was entitled to her services, be-
came free, on the death of Maria, or not, they could
not be claimed by the representative of A.
If Maria had no legal representatives, on her de-
cease, the children of Cloe, being the issue of her
own daughter, became free.
It seems that the words "during her natural
life" are to be referred to the life of Cloe.
But if they are to be referred to Maria, the chil-
dren of Cloe, born in the lifetime of the legatee, be-
came her property, on the general principle that
the temporary proprietor of an animal is entitled to
the increase of it.
Citation— 8 Johns., 435.
was an action of trespass and false im-
J- prisonment, in which the question pre
sented for the consideration of the court was,
whether the plaintiff was the slave of the de-
JOHNS. REP., 12.
1815
SCOTT v. ELMENDOUF.
314
fendant. It does not appear from the case
that any trial had ever been had, and it was
submitted to the court without argument..
One Joseph Concklin, was the owner of a
negro slave named Maria, and her daughter
Cloe. Concklin, by his will, dated September
80th, 1780, bequeathed all his personal estate
to the defendant, and appointed him his execu-
tor ; and by a subsequent clause, bequeathed
:v- follows : " Item — I give my negro wench,
Maria, her time ; and I also give to Maria her
daughter Cloe, during her natural life."
After the death of the testator, and during
the life of Maria, Cloe had several children, of
whom the plaintiff was one.
YATES, «/., delivered the opinion of the
court:
The clause in the will of Joseph Concklin
which gives rise to the present controversy, is
as follows : " I give my negro wench, Maria,
her time ; and also, I give Maria her daugh-
ter Cloe, during her natural life." VVhether
the testator intended to give Cloe, during her
natural life, to Maria, or give her, during the
natural life of Maria, will not vary the result
in determining the rights of the present par-
ties. In my view, in either case, the plaintiff
cannot be deemed the slave of the defendant.
I shall, consequently, adopt the construction
of the will most favorable to the claim of the
defendant, which, I am also inclined to think,
was the intention of the testator ; and which
is, that Cloe was given during the lifetime of
Maria.
By our laws, appearing from various decis-
ions in this court, slaves are protected, and
have many rights and privileges, yet they are
considered, on questions in relation to the
right of property in them, as goods and chat-
tels; and, consequently, such questions must
be decided by the same legal principles as are
applicable to that sort of property. Not to
enforce this doctrine in the present case, when,
on other occasions, it is applied to slaves as
personal property, would be manifestly unjust:
H 15*] and *I rejoice that an instance has oc-
curred, by which the law, thus applied, will
operate in favor of personal liberty. Accord-
ing to the general principle of law, a person
hiring an animal is entitled to the increase,
because, by hiring for a time, he becomes
temporary "proprietor of the animal. (8 Johns.,
485.)
If this is the case where there is a hiring for
a time, the doctrine applies with greater force
in favor of a person having a right, or who is
proprietor during life.
The children of Cloe were born during the
lifetime of Maria, and while she was entitled
to her services ; they, therefore, belonged to
her, and in case of her decease, to her legal
representatives ; and if there should be no
such representative, which probably is the
case in this instance, the children being the
issue of her own daughter, they of course
have become free. The plaintiff being one of
those children, if not entitled to his freedom
altogether, at all events, cannot be claimed by
the defendant in this cause.
Judgment for the plaintiff.
Cited ln-46 Mich.. 188.
JOHNS. KEF., 12.
SCOTT AND WIGRAM t. ELMENDORF.
Attorney and Client — Suit for Bill — Co*t».
A defendant, in a suit for an attorney's bill, can-
not contest the items at the trial. He oii{rht to ap-
ply to the court to have the bill taxed. As between
attorney and client, the former is entitled to Com-
mon Pleas costs only, wht-rt- his chuiyes arise from
his employment in a suit for the recovery of a sum
loss than $250 ; especially where he brings his ac-
tion on the implied axxutnpxit arising- from his re-
tainer.
Citations DOUR.. 198; 2 Bos. & P., 837.
S was an action of ansumprit for fees,
L disbursements, and services, by the plaint-
iffs. as attorneys for the defendant, adminis-
trator of Jacobus Elmendorf , deceased. Plea,
/'•in awtumpmt. Scott, one of the plaintiffs,
applied to the defendant for the payment of a
bill of costs due to him from the estate of
Jacobus Elmendorf, the intestate ; and the
defendant gave to Scott a note, for which he
gave to the defendant a receipt, as follows :
December, 8, 1807. Received of Mr. Levi El-1
mendorf. administrator of Jacobus Elmendorf,
deceased, a note of hand, said to be executed
by Philip Becker and Jacob Becker, to Jaco-
bus Elmendorf, deceased, for $50, dated
February, 1805, payable one year after date ;
received to collect, and if collected, to account
for on my demand against said estate." The
fees. &c., for which the present suit was
brought, accrued in a suU brought on the note
above mentioned, against the makers, one of
whom resided in the County of Greene, and
the other in the County of Dutchess. The
suit on the note was commenced in the
Supreme Court ; and *on the trial at F*31B
the Circuit, the plaintiff was nonsuited, hav-
ing failed to prove the handwriting of Philip
Becker, one of the makers.
On the 24th of August, 1818, a copy of the
bill of costs, for which this suit was brought,
was served on the defendant, amounting to
$58.72; and it appeared that the present suit
was commenced the 25th of September, 1818.
The counsel for the defendant objected to
the plaintiffs' right to recover: 1st. Because
the note for which the suit was prosecuted be-
ing for $50, it ought to have been commenced
in a court of common pleas ; 2d. That the
plaintiffs were entitled to Common Pleas costs
only ; and 8d. That the suit ought to have
been brought against the defendant in his
representative capacity. But the judge, be-
fore whom the cause was tried, overruled these
objections ; and the jury found a verdict for
the plaintiffs for $58.72.
A motion was made to set aside the verdict,
and for a new trial, which was argued by Mr.
Sitdam for the defendant, and Mr. J. V. D.
Scott for the plaintiffs.
Per Ouriam. It is not permitted to a defend-
ant sued on an attorney's bill, which has been
served according to the statute, to contest the
items on the trial, because he can procure the
bill to be taxed, by application to the court at
a seasonable period. (Doug., 198 ; 2 Bos. &
P., 287.) The objection here went beyond the
items, and attacked the principle on which the
bill was taxed ; the plaintiffs insisting that
they are entitled, as between themselves and
405
816
SUPREME COURT, STATE OF NEW YORK.
1815
client, to be paid the fees allowed by law, in
cases where the recovery is above $250, in this
court ; and the bill is made out upon that
principle. In the present case, there was no
agreement, on the part of the defendant, to
pay the plaintiffs any costs at all, other than
an implied assumpsit resulting from their re-
tainer. When the law has marked out the
costs which are recoverable in a case like the
present, and has forbidden the attorneys to
exact or demand any more or other than such
as are specified, it would be extraordinary that
the law should raise a promise to pay more
than can be legally exacted. It is said there
was a necessity to bring the suit on the note
in this court, as the makers of the note lived
in different counties. This might have been
317*] a motive for the *plaintiffs' declining
to commence the action, but it is no argument
why they should have costs not adapted to the
case. There is room for doubt, whether an
agreement, in express terms, to pay higher
costs than those allowed by law, would avail ;
;but when, as in this case, nothing is said, there
cannot be a doubt that no other costs are re-
coverable, as between attorney and client, than
such as the fee bill directs, when the recovery
is under $250. And in this case, we think the
defendant was not concluded from making the
objection at the trial.
It follows that there must be a new trial,
unless the plaintiffs elect to make put their
bill on the principles above stated ; in which
case, if the amount be under $50, the defend-
ant will be entitled to the costs of this suit ;
on paying the balance, if any, a new trial will
be unnecessary.
Motion granted.
Cited in— 8 Cow., 259; 6 Wend., 302; 18 Wend.,
671 ; 23 Wend., 458 ; 5 Denio, 358 ; 3 Barb., 338 ; 9
How. Pr., 24 ; 14 Abb. Pr., 234 ; 1 Sand., 95 ; 1 E. D.
Smith, 606.
SCOTT v. ELMENDORF.
Attorney — Authority of, to Bring Second Suit.
An attorney who receives a note from his client
to collect, is warranted by his general retainer, to
bring a second suit on the note, after being non-
suited in the first, for want of sufficient proof of
the execution of the note.
THIS was an action for another bill of costs
by the plaintiff, as attorney, in a second
suit against Philip Becker, on the same note
mentioned in the preceding case ; in which, at
the trial, the maker of the note proved that it
had been paid ; and a verdict was found for
the defendant. In addition to the point relied
on in the last cause, the defendant, in this suit,
objected that the plaintiff had no authority to
bring the second suit on the note against
Becker, after being nonsuited in the first.
Mr. Sudam for the defendant.
Mr. Scott for the plaintiff.
Per Curiam. In this case, we consider the
plaintiff as warranted, by his general retainer,
318*] in bringing the second suit ; *and the
principles adopted in the last case dispose also
of the other objections in this cause.
Motion granted.
Cited in-3 E. D. Smith, 208.
406
JACKSON, ex dem. MERRITT ET ux.,
v.
WILSON.
Wills — Interest in Expectancy — Military Bounty
Land.
Where A, being entitled, as representative to B,
to a lot of military bounty land, the patent for
which had not been issued, made his will, and after
devising his estate to his wife and two daughters,
devised as follows: as there is some expectation of
something coming to me of my brother B's estate,
which is not comprehended in the above, 1 give It
unto my brother C forever; it was held that this
devise applied to the interest in expectancy of A
in the military bounty land, and was not included
in the devise to his wife and daughters.
Citation— Act April 5, 1803.
was an action of ejectment, brought to
-L recover a part of an unimproved lot of
land, situate in the town of Cincinnatus, in the
County of Courtlandt ; the cause being at is-
sue, the following case was agreed to by the
parties, and submitted to the court without ar-
gument.
Isaac Sherwood was a lieutenant in the Sec-
ond New York Regiment, and died intestate,
in the year 1777, leaving Job Sherwood, his
father; Samuel Sherwood, his eldest brother;
Job Sherwood, Jr., his youngest brother, and
four sisters, his next of kin. A patent was
granted to Isaac Sherwood, and his heirs and
assigns, for the lot in question, on the 30th of
September, 1790. Samuel Sherwood died in
1786, having, by his last will and testament,
dated May 19th, 1786, devised one third of his
estate to his wife, and the other two thirds to
his daughters Rachel and Sarah ; and if either
of them should die before she came of age, to
the survivor. The will, after the last-men-
tioned bequests, contained the following : "I
give unto my brother, Job Sherwood, all my
wearing apparel ; and as there is some expec-
tation of something coming to me of my broth-
er Isaac's, deceased, estate, which is not com-
prehended in the above, I give it unto my said
brother, Job Sherwood, forever." Isaac Sher-
wood left other property beside his military
lands. Job Sherwood, Jr., claimed the land
in question, either under the will of his father,
or as devisee under the will of Samuel Sher-
wood, and sold it to Jasper Crosby, on whose
application letters patent were issued, and the
defendant held under Crosby. Samuel Sher-
wood never filed any claim for the land, nor
took any steps to obtain letters patent for the
same during his life. Rachel, one of the les-
sors of the plaintiff, was the daughter of the
said Samuel Sherwood. Sarah, the other
daughter, died in her infancy. The lessors of
the plaintiff *claimed two thirds of the [*31 D
lot in question, in right of Rachel, under the
will of Samuel Sherwood.
SPENCER, J., delivered the opinion of the
court :
The intention of Samuel Sherwood to de-
vise the premises in question to his brother,
Job Sherwood, it appears to me is quite plain
and manifest. After devising one third of his
estate to his wife, and the residue to his
daughters, the will proceeds : " I give unto
my brother, Job Sherwood, all my wearing
apparel ; and as there is some expectation of
JOHNS. REP., 12.
1815
WICKAM v. MILLER
319
something coming to me of my brother Isaac's,
•deceased, estate, which is not comprehended
in the above, I give it unto my said brother.
Job Sherwood, forever."
The case furnishes full evidence that the
devisor had taken no measures relative to the
lot in question . and it is a fact which we have
a right to notice, that, in 1786. no lands had
been granted for military services ; the Legis-
lature had, bv resolution, declared their in-
tention to make grants, and had passed one or
more statutes to carry that resolution into ef-
fect ; but the devisor did not, and could not,
know where those lands were situate ; he was
•correct, therefore, in calling it an expectation
•of something coming to him from his brother
Isaac's estate ; and I am entirely satisfied that
it related to his military bounty lands. He
explicitly declares that the estate he expected
to derive from Isaac wa-s not comprehended in
his devise to his wife and daughters, and he
gives it by words, which, in the construction
of wills, carry a fee to his brother Job.
If, however, the lot did not pass to Job, by
this devise, it is sufficient to defeat the claim
of the lessors, that it was not devised to his
•daughters ; for, by the Act of the 5th of April,
1808 (revised in 1st H. L., 305), this military
lot went to the father of Isaac Sherwood,
unless it pa-ssed by the will of Samuel; there-
fore, in every view of the case, the lessors of
the plaintiffs have no title to the premises.
Judgment for defendant.
4I2O*] * WICKH AM r. MILLER.
Practice in Justice Court — Execution — Justice
may Renew without Written Return — Pur-
chase with Notice of Judgment, Void.
A justice may renew an execution issued by him,
without a return of nulln IMHM indorsed thereon.
It is unnecessary for the justice to i-*suc a new ex-
i-'-ininii, but an indorsement on the original writ,
"this execution renewed," will be sufficient.
And such indorsement is evidence that the con-
stable had satisfied the Justice that there were no
goods on which he could levy.
Where a person has notice of a judgment, and
purchases the goods of the defendant with a view
to defeat the plaintiff's remedy, such purchase is
void.
Citation H Johns.. 446.
IN ERROR, on a bill of exceptions to the
-L Court of Common Pleas of Sullivan
•County.
This was an action of replevin, brought by
Wickham, against Miller, in the court below,
for taking, on the 29th of October. 1812, the
beasts, goods and chattels of the plaintiff, to
wit : two horses, one wagon and one set of
harness, at the town of Mamakating.
The defendant, in his avowry, stated that
on the 29th of October he was one of the con-
stables of Mamakating; and that, on the 3d of
June. 1812, an execution was issued by New-
kirk, a justiceof the peace in Sullivan County, i
and delivered to him, at the suit of one Smith
against David Canticld ; anil that the defend- 1
ant not having found any goods and chattels
<>f Cantield within thirty days from the date
JOHNS. REI-., 12.
and delivery of the execution to him, whereof
he could levy the amount of the judgment, or
any part thereof, the justice did, from time to
time, to wit : from the expiration of the said
thirty days, to the 23d of October, 1812, renew
the said execution, and deliver the same, so
renewed, to the defendant, to be executed ;
by force of which he. on the 13th of October,
1812, levied on. and seized two horses, then be
ing the property, tiad in the possession of Can-
tield ; also, that on the 9th of September, 1812,
Newkirk delivered to the defendant two other
executions against Cantield. one at the suit of
Wilkin, and the other at the suit of Bennet ;
and that the defendant not having found
goods on which to levy, within thirty days,
the justice, on the 9th of October, renewed the
said executions, under which the defendant,
on the 13th of October, levied and seized on
two horses, being the property of, and in the
possession of Canfield, and took, led. drove,
and brought away the said two horses, one set
of harness, one voke of oxen, and one wagon,
from and out of the possession of David Can-
field.
The plaintiff pleaded two pleas : 1st. Ad-
mitting that the defendant was a constable,
and that the executions were originally issued
as stated in the avowry, yet denying that they
were renewed by the justice, and delivered to
the constable, according *to the stat- [*321
ute ; and, 2d. Denying that the beasts and
chattels belonged to Caufield. but that they
were the beasts and chattels of the plaintiff.
At the trial, it was proved that the execu-
tions mentioned in the avowry were renewed
by making the following indorsement on the
back of each: "This execution renewed.
Henry Newkirk, justice of the peace ;" and
that the goods levied upon were, at the time
of such levy, the property, and in t{ie posses-
sion of Canfield. The plaintiff proved that
before the issuing or levying of the executions,
the sheriff of the County of Sullivan, by virtue
of a fieri facui*. to collect between $80 and
$90, issued out of the Common Pleas of that
County, had levied upon the same goods, and
that the sheriff had advertised the same for
sale. The plaintiff further proved that no re-
turn had been made on either of the execu-
tions issued by Newkirk previous to their re-
newal, and that Canfield had been in posses-
sion of the goods at and before the original
issuing of the executions ; and that, on the
19th of October, 1812, Canfield, by a bill of
sale, transferred the goods to the plaintiff, for
the consideration of $200 ; and that the plaint-
iff satisfied the writ of fieri facia*, and paid the
residue of the sum of $200, which was the
value of the goods. The defendant proved
that the goods were, at the time of such sale,
in his possession.
The counsel for the plaintiff insisted that
the executions were void in law, and gave the
defendant no power to seize or sell the goods ;
but the court below charged the jury that the
executions, so renewed, were valid ; and the
jury gave a verdict for the defendant, and a
return of the goods to the defendant. The
counsel for the plaintiff tendered a bill of ex-
ceptions to the opinion of the court below, on
which the writ of error was brought to this
court.
407
821
SUPREME COURT, STATE OF NEW YORK.
1815
Mr. Brackett for the plaintiff in error.
Mr. Fink, contra.
YATES, /., delivered the opinion of the
court :
The first question in this cause is as to the
validity of the executions originally issued by
322*J the justice ; whether the renewal *by
him, as stated, continued the authority to the
officer, under the statute, to levy on the prop-
erty.
The llth section of the Act for the Recovery
of Debts to the Value of Twenty-live Dollars,
among other things, states that whenever
judgment shall be given against either plaintiff
or defendant, the court shall grant execution
thereupon, directed to any constable within the
county, commanding him to levy the debt, or
damages and costs, of the good's and chattels
of the person against whom such execution
shall be granted, his arms and accoutrements
excepted ; and to bring the money at a certain
time and place therein to be mentioned, before
the justice who issued the execution, to render
to the party who recovered the same ; and if
no goods or chattels can be found, or not suffi-
cient to satisfy such execution, the party re-
covering the judgment may, from time to
time, renew such execution, or have further
execution against the goods and chattels of the
party against whom such judgment is recov-
ered, or may bring an action of debt thereon,
&c.
I do not think that a formal written return
of the constable, on the execution, that no
goods or chattels can be found, is necessary ;
the requisitions of the statute may be com-
plied with, without indorsing a return on the
process ; and if the constable has given infor-
mation to the magistrate of the fact, that no
goods or chattels can be found, on which the
justice is induced to renew the execution, it
must be deemed sufficient to protect the rights
of the party in whose favor it issues ; and, of
course, will justify the officer to whom it is
delivered in proceeding on it.
The s tatute never contemplated that a new
execution should issue, specially stating, the re-
turn and renewal ; and no more is required by
it, than an indorsement of such renewal on the
original execution by the justice, as was done
here. This has been the general (if not uni-
form) practice of courts of this description,
since the passing of the Act authorizing re-
newals ; and I can discover no reason why a
different and more rigid practice should be en-
forced. If there should be any collusion
between the constable and the debtor, in
making a false representation to the magis-
trate, in relation to the goods and chattels,
with a view of giving further time of pay-
ment, the indorsement of renewal is conclu-
sive evidence of the previous return or repre-
sentation made by the constable ; for, without
323*] it, the *justice could not have obtained
possession of the execution to renew it ; so
that the party, in seeking redress, has the ben-
efit of testimony equally certain with a return
indorsed on the execution.
The renewal of the execution is a judicial
act of the magistrate, and ought not to involve
the officer, who is obliged to do his duty. It
might have been delivered to another consta-
408
ble, who would have been obliged to proceed
in collecting the amount, without inquiring
into the truth as to the existence of the former
return or representation by the officer in whose
hands it had been. And this must continue to-
be the practice, unless an alteration in the
statute shall be made, directing the return to-
be indorsed on the execution before renewal.
In its present form, the Act admits of no such
construction, but authorizes a renewal, in case
no goods or chattels can be found ; of which
fact the justice must be informed by the con-
stable. And the indorsement of such renewal
on the execution, as before stated, is conclu-
sive evidence that such information has been
given, to the satisfaction of the justice, by the
officer to whom it had been delivered. The
court below, therefore, decided correctly, that
the renewed executions, under which the-
avowant justified the taking, were valid in
law.
But, admitting that those executions had
been improperly renewed, so as to have no va-
lidity, still the party might have new execu-
tions for the amount of the demand, the judg-
ments still existing in full force ; and, under
the circumstances of this case. I think the
right of the plaintiff to this property might
well be questioned. If he intended to be pro-
tected under the fieri facias on which the sheriff
had advertised, he ought to have purchased at
a sale under it. His settling with the sheriff
the debt due on it, and paying the residue of
the consideration for the goods, gave him no
better title than if the whole had been paid to
Canfield. It is evident that at that time he-
knew of the judgments before the magistrate ;
and I am aware that this knowledge, of itself,
would not destroy the sale, nor would the non-
delivery of the goods be more than prima facie
evidence to invalidate it, and might be ex-
plained by circumstances ; but if he knew of
the judgments, and purchased with a view,
and for the purpose, of defeating the party's
remedy in relation to those goods, towards sat-
isfying his demand, on the ground that those
executions were void, and knowing that new
*executions might issue on those judg- [*324
ments, I should doubt the validity of his bill
of sale. All those circumstances must have
been known to the plaintiff ; for it is expressly
stated, that the goods in question were in the-
hands of the constable, under those execu-
tions, at the time he purchased.
In Beah v. Guernsey, 8 Johns., 446, this
principle is, in a great measure, recognized.
We there say that if a purchaser knows of the
judgment, and purchases with the view, and
for the purpose of defeating the creditor's ex-
ecution, it is void, notwithstanding a full price
had been paid by the purchaser.
The decision of this cause, however, does
not rest upon that point. The statute, in my
view, authorized the renewal of the execution
in the manner it has taken place ; and, upon
that ground, the judgment in the court below
must be affirmed.
Judgment affirmed.
Cited in-2 Cow., 424, 436; 7 Cow., 314; 1 Wend.,
552 ; 7 Wend., 221 ; 8 Wend., 390 : 7 Barb., 72 ; 1»
Barb., 275.
JOHNS. REP., 12..
1815
WETMORR ET AL. v. HBNSHAW.
324
WETMORE ET AL. «. HENSHAW.
Marine Law — Where Freight it Earned, Seamen
Entitled to Full Wage»— Capture only 8u»
pendt Contract — Recapture lievive* it — Sal-
vage.
Where a ship, captured during her voyage, and
her crew taken out and detained prisoners of war,
was afterwards recaptured, and (the master having
hired a new crew) proceeded on her voyatfe, and ar-
rived at her last port of delivery, and MUmed
freiKht : it was held that the seamen who were taken
out, though never restored to the ship, were entitled
to wa#t« for the whole voyage, deducting only their
proportion of the salvage paid to the recaptors.
Citations— 4 Rob. Ad., 116; 3 Esp., 36; 1 Bon. & P.,
037 ; 3 Bos. & P., 430: 24 East. 558 ; 2 H. Bl.,606, note ;
1 Peters' Ad. Dec., 115, 123, 142, 157 ; 2 7d., 184, note ; 1
Bee's Rep., 255 ; 2 Mass., 39.
IN ERROR, on certiorari from the Justices'
Court in the City of New York.
The plaintiff below (Henshaw), an American
citizen, on the 16th of February, 1818, signed
shipping articles, in the UKual form, as chief
mate of the American brig Criterion, owned by
the defendants below, on a voyage from New
York to a port or ports in France, and back to
a port in the United States. The plaintiff was
to* receive $50 per month, one month's wages
beine paid to him in advance. The vessel
sailed from New York on the 18th of Janu-
ary, 1818, and, on her outward voyage, was
captured by a British cruiser, on the 14th of
February following, who put on board of the
brig a prize-master and crew of British sea-
men ; the plaintiff, and all the rest of the crew
of the brig, except the captain, were taken on
boird of the enemy's ship, and never after-
wards rejoined the brig. About two days after
the capture, the brig was recaptured by an
American privateer, and carried into Port Pas-
.'{li."»*l sage, in Spain, where she arrived *on
the 23d of February; and after being detained
by bad weather about a month, was carried by
the recaptors into Bayonne, in France, where
one half of the vessel, cargo and freight
were, by a decree of the American Consul,
adjudged to the recaptors, for salvage. To as-
certain the amount of the salvage, the brig
was put up for sale at auction, and bought in
by the original owners, and proceeded to La
Teste, in France, where she arrived in Octo-
ber, and took in a return cargo, and sailed for
New York, where she arrived the 7th of
March, 1814, having earned freight for the
whole voyage, throughout, subject to the sal-
vage paid to the recaptors, on her outward
passage. After the brig was restored by the
recaptors, a new crew was employed to navi-
gate her, at an increased rate of wages. The
plaintiff having been detained as a prisoner of
war in England, arrived at New York, in a
cartel, soon after the arrival of the brig ; and
brought his action against the owners, in the
court below, to recover the whole of his wages.
The cause was tried by a jury, and the court
charged them to find a verdict for the plaintiff
for full wages during the whole voyage, de-
ducting the month's wages paid in advance,
and the proportion of salvage ; and the jury
accordingly, found a verdict for the plaintiff
for $325. on which the court below gave judg-
ment.
Mr. Griffin, for the plaintiffs in error.
JOHNS. I {i.i-.. 13.
Where a party comes into court to enforce the
performance of a contract, he must show a
performance of it on his part. The plaintiff.
in the present case, docs not pretend that he
has performed the services for which he en-
gaged. It is true that his failure has been oc-
casioned by superior force, not by bis own
fault : but on the other hand, it has not been
occasioned by the fault of the owners. It is
the misfortune of- the plaintiff. He cannot
call on the defendants to pay him wages, for
he has not fulfilled the contract on his part.
He cannot rest his claim on a quantum meruit
for services, for he has rendered no service.
I have been able to find but one case in
which the precise question, now before the
court, has been decided ; that is, the case of
The friends, in the Instance Court, before Sir
William Scott (4 Rob. Adm. Rep., 143). who
held that a mariner captured in a ship, taken
and carried to France, though the ship was re-
captured, and arrived at her port of destina-
tion, was not entitled to his wages beyond the
*time of capture. He considered it as [*Ji!5O
a case of private hardship arising out of the
events of war.
It is true that Judge Peters, in the case of
Ifowland v. The iMvinia, 1 Peters' Adm. Dec.,
123 ; see also, Hart v. Littlejolin, lb., 115,
allowed the claim for wages by a mariner who
had been taken out of the captured vessel,
which was afterwards recaptured, and, on pay-
ing salvage, arrived at her port of destination,
and earned freight ; but that was the case of
a neutral carried in for adjudication, which is
very distinguishable from the case of a capt-
ure between belligerents ; and the learned
judge himself, in a note to that case, makes
this distinction, and thereby recognizes the
doctrine as laid down by Sir William Scott, in
the case of The Friend* ; and in the case of
Watson v. The ROM, 1 Peters' Adm. Decis.,
132, he held that an American seaman, im-
pressed out of an American vessel by a British
cruiser, was not entitled to wages, though the
vessel completed her voyage, and earned
freight. The case of Bergstrom v. Mill*, 3 Esp.
N. P. Cas., 36, was that of a Swedish seaman
on board of a British ship ; and he continued
on board until the recapture. The case of
Brooks v. Dorr, 2 Mass., 89, decided in the Su-
preme Court of Massachusetts, was that of a
neutral vessel, an American, taken and carried
into France, and afterwards released ; and the
case comes within the distinction stated by
Judge Peters.
Capture puts an end to the contract. Then
what is the effect of a recapture ? If the sea-
man continues on board to the time, and is in a
situation to perform services, he is entitled lo
wages, on a quantum meruit, but not on the
ground of the original contract. The case of
Curling v. I^ong, 1 Bos. & P., 637. though a
case of freight, isanalogousin principle. Eyre,
Ch. J., says that where a ship, after capture
and recapture, completes her voyage, the mas-
ter, or owner, is entitled to a recompense ; nol,
however, on the foot of the old contract, but
on the new contract, which springs out of it ;
for the shipper having received his goods,
with the benefit of carriage, a meritorious
consideration arises, which entitles the mas-
ter to be paid for the transportation. 80.
326
SUPREME COURT, STATE OF NEW YORK.
1815
in the present case, if the plaintiff had re-
mained on board until the recapture, he could
have maintained assumptit for services ren-
dered, on a quantum meruit, but not on the
original contract for wages.
Though ransom is no longer permitted in
England, it may be well to see how the law
stood there when that practice was permitted.
In the case of Chandler v. Meade, cited in
Wiggins v. Ingkton, Ld. Raym., 1211; see Ab-
bot on Ship, 3d ed., 445, p. 4, ch. 3, sec. 2, b,
Holt, Ch. J., said that a mariner on board a
vessel captured by the enemy, and ransomed,
327*] *was not entitled to wages, though the
ship arrived in England, and delivered her
cargo.
It would be extremely hard and unjust, if
the merchant, after paying a large sum for
salvage, and being oblig'ed to hire a new crew
for higher wages, should also be obliged to
pay the wages of the old crew, who were taken
out by the captors. The hardship of the case
will be more striking, if we suppose several
captures and recaptures, with salvage, and
the expense of new crews. It is surely just, at
least, that the old crew, if they claim their
wages, should contribute to the expense of
hiring the new crew, as well as the salvage.
Messrs. Anthon and T. A. Emmet, contra.
The error in the reasoning on the other side,
arises from considering the contract for sea-
men's wages as governed by the same prin-
ciples as other contracts. But it is an anomal-
ous contract, resting on the peculiar principles
of maritime law. The maxim is, that freight
is the mother of wages ; and the safety of the
ship is the mother of freight. (Dunnett v.
Tomhagen, 3 Johns., 156; Icard v. Goold, 11
Johns., 279; Eaken v. Thorn, 5 Esp. N. P.
Cas., 6.) Cases may arise in which the sea-
men have performed their services to f,he last
day, and the casualty may intervene, which
may deprive them of their wages. On the
other hand, cases may exist where a seaman
has performed no more than a day's service,
and yet he may be entitled to recover wages
for the whole voyage.1 (Chandler v. Grieves,
2 H. Bl., 606, note ; 1 Peters' Adm. Rep., 125,
128, 142, 155 ; and Sims v. Jackson, in note.)
The right of a seaman to recover his wages,
does not depend on the implied assumpsit aris-
ing from the performance of services, or a
quantum mernit. The court, if there is no
<>ause of forfeiture, only inquire whether
freight has been earned or not. If freight is
earned, nothing but the fault of the seaman
will deprive him of his wages. Thus, sick
and disabled seamen, or those taken out of a
neutral vessel carried in for adjudication, have
been held entitled to their wages, where the
shijj has reached her destined port, and earned
freight.
Though capture annuls the contract, recapt-
ure revives it. Capture puts an end to the con-
tract only because it renders it impossible to be
performed ; for the same reason, it puts an
«nd to the charter-party ; but a recapture com-
pletely restores it. It may rather be said that
1.— In the case of Chandler v. Grieves, cited by
the counsel, the verdict was for the wages only to
the time the ship left Philadelphia, and the court
having discharged the rule, the judgment could
have been for no more than the verdict.
410
capture suspends the contract until the ulti-
mate *eff ect or event is known. If the [*328
contract was absolutely and entirely annulled
by capture, then, though the vessel might be
recaptured the next day.the seamen might leave
the ship.
Ship owners and seamen may all be regarded
as partners in the same adventure ; they en-
counter a common peril, and share the com-
mon calamity. In the case of the impress-
mentof a particular seaman, it is his individual
and personal injury, not a common calamity
or peril. All the cases to be found in the books
are in favor of the plaintiff below, except the
case of The Friends, decided by Sir William
Scott. He appears to have taken up that case,
ut res nova, without examining prior decisions
and authorities, and has decided upon what he
thought to be the equity of the case. We shall
not attempt, as has been done by Judge Peters,
to suppport that decision, by a distinction be-
tween a belligerent and neutral capture. We
meet it. at once, and say it is not law ; unless,
perhaps it may be saved by the distinction,
noticed by Parker, J., in Brooks v. Dorr, that
the seamen entered upon the voyage, under a
special contract, by the run, so that their
wages depended on the contingency of the ves-
sel's arriving at her port of destination. Par-
sons, however, who was counsel in that case,
did not put it on that ground. He admitted
the general rule ; but insisted, that as the sea-
man did not return to his ship as soon as she
was liberated, it amounted to a voluntary de-
sertion. Lord Eldon, in the case of Bergslrom
v. Mills, did not assent to the doctrine of Sir
William Scott, as to capture, but admitted the
general rule, and put the case on the ground
that the vessel arrived at her port of destina-
tion, and earned freight. The case of Beale v.
Tlwmpson, 4 East, 546-566, also supports the
doctrine for which we contend, that where
freight is earned, and there is no fault in the
seaman, the act of God, or a public enemy, as
an accidental wound, sickness, or capture,
will not deprive him of his wages. The same
principle is to be found in the French ordi-
nance. (Valin, 748, 749, liv. 3, tit. 4, art. 17.)
That the master has been obliged to hire a
new crew to carry on the ship to her ultimate
port of destination, can make no difference in
this case, any more than in the case of hiring
a mariner, in the place of one who has become
sick or disabled by accident. (1 Peters' Adm.
Dec., 116-149.)
*Mr. Wells, in reply. Capture puts an [*329
end to the contract for wages during the voyage
in which freight was to become due; and the
reason is, that the contract cannot be per-
formed by the parties. (Anon., Sid., 179;
Wiggins v. Ingkton, Ld. Raym., 1211 ; Chandler
v. Meade, Ib., cited Hornaman v. Bawden, 3
Burr., 1844; Yates v. Hall, 1 T R. 79, per Bul-
ler, J.) Recapture restores the contract, be-
cause the capacity to perform is restored. But
where a seaman is separated from his ship, he
cannot perform his contract. His capacity to
perform is not, in that case, restored; and it is
on the ground of his being in a capacity to per-
form his contract, not that the vessel has per-
formed her voyage, that he becomes entitled
to wages. Suppose a vessel abandoned, from
necessity, at sea, should afterwards be taken
JOHNS. REP.. 12.
1815
WETMOKE v. HENBHAW.
829
possession of, and carried into her port of des-
tination, could the seamen who had abandoned
her claim thek wages?
In Beale v. Thompson, 4 East, 546-562,
Lord Ellenborough says : "The right of the
mariner to wages depends, first, upon the earn-
ing of freight bv his owners in that voyage
for which he is hired ; and second, upon the
performance by the mariner of the service he
has agreed to perform, in respect to such
owners, during the voyage," But the counsel
on the other side put- the performance of
services out of the case, and makes the right
of the mariner to wages to depend solely on
the earning of freight. It has been said* that
the act of God, or the King's enemies, cannot
injure the plaintiff's rights. The act of God
may excuse the non-performance of the con-
tract ; but it can afford no foundation for a
claim for wages, where no service has been
performed.
In all the English cases, except, perhaps that
of Berg*trom v. MiUa, the seaman, after the acci-
dent, has been restored to his ship, and in a
capacity to perform his contract. In the case
of Pratt v. Cuff, tried before Lord Keuyon,
and cited in Thompton v. Rowcroft, 4 East, 43;
Ib., 560, and in Beale v. Thompson, the sea-
man, after being imprisoned seven months,
was released, with the vessel, and proceeded
in her on the voyage. A seaman, in such
case, is considered as restored, by way of re-
mitter, to his former state, and the contract as
having continued without interruption. It is
like a seaman's returning to his duty, and be-
ing received by the captain, after a* forfeiture
of wages. In the case of Bergstrom v. MM*,
it is not distinctly stated that the seaman was
not restored to his ship, or that he was in a
capacity to perform his stipulated services. It
IJIJO*] is fairly to be inferred, however, *that
he was restored, and did perform his contract;
and if that was the fact, ' then that case
agrees with all other cases decided in England.
On the principles of the common law, then,
there can be no question.
1. — Comyn, in his treatise on Contract* (Vol. I.,
p. 375), seems so to understand it. He states the
principle decided in that case to be, that "if a ship
is captured in the course of her voyage, but is after-
wards recaptured, and arrives with her crew, at the
port of delivery, the seamen art- entitled to their
waxes- "
2.— The expressions of the law of Oleron arc:
"Item, quand 11 arrive (|ii'aucutn maladie attaque
un dos niarini'Ts de la Nef, en rendant service un la
ilit.- Nef, le innit i . la doit mettre bora de la dite
Nef, et luy dolt trouver logis," &c. "Et si la Nef
etoit pn-ste a faire voyage, elle ne doit point de-
murer pour luy : et si'll guerlt, 11 doit avoir son
loyer tout coiupctant, en ntbutant les frais, si le
Hunt n- luy en a fait ; Et si'il mcurt, sa femine et ses
prochalns le doivi-nt avoir pour luy." Jugemens
D'Oleoron, 1, 7. Clelrac, In his commentary on this
article, says, that the 10th article, of the Ordinances
of Wisby. the 4.5th article of the laws of the I Inns,'
Towns, the 27th of the Ordinances of Charles V.,
and the IBth of Philip II.. compiled for the Low
Countries, are all compiled or extracted from this
law of Oleron, and are. exactly similar, in regard to
a mariner who falls sick, whether he recovers his
health, or dies during the voyage. Clelrac, Les U»
et Ctmtume* tie la Me*, p. 2f>. See,, also, p. 143-174.
These different maritime laws and ordinances may
be trac-ed up to the very ancient and celebrated
code entitled 11 ConwUo/o del Mare, as the source
from whence they have been derived. In the edi-
tion of the (Vmsolato, printed at Venice in 17:17. with
the Commentary of Casaregis, chap. 125, 12H, 127. It Is
•aid: "That if a mariner shall be taken Kick and die
JOHNS. HKP.. 12.
But it is contended that, by the principles of
the marine law, it is enough to entitle the sea-
man to wages, if freight has been earned, and
he has been disabled from performing his con-
tract by no fault of his own. We impute no
fault to the plaintiff. It was his misfortune ;
but we insist that we ought not to bear his
misfortune as well as our own.
As to the rule relative to seamen disabled by
sickness, that rests on the principles of the
common law and humanity. If a servant is
taken sick in his master's service, the master
cannot turn him adrift, but is In xnn I to take
care of him during his sickness. Sickness is
a temporary disability ; the party may return
to his duty ; and, on principles of common
law and common sense, he ought not to lose
his wages.
As to the death of seamen, it has been said
that if a seaman dies during the voyage his legal
representatives may recover his wages for the
whole voyage remaining to be performed.
But this is manifestly unreasonable. Sickness
produces a temporary incapacity, but death
puts an end to the possibility of "the seaman's
performing the residue of his contract. It is
true that Judge Peters so decided, in the case
of Watson v. The Neptune, 1 Peters' Adm.
Rep., 142, and gave wages to the administra-
tors of a deceased mariner to the end of the
voyage ; and he grounded his decree on what
he supposed to be the principles of the laws of
Oleron, of Wisbuy. and of the Hanse Towns ;
but if those ancient laws and ordinances are
attentively examined, it will l>e found that
they do not bear out the decision of that
learned judge. The question which those
laws intended to decide was, whether a mar-
iner, who had died before the completion of
the voyage, was entitled to any wages, and
they declare that he shall have his full wages,
that is, without any deduction, up to the time
of *his death.' This was the con- [*381
struction put upon those laws by Judge Davis
(Abbot on Ship., Storey's ed., 478. in note), of
Massachusetts, in a case which came before
in the ship, he shall be paid all his wages." "Se
marinaro che sara ammalato et morira nelle nave,
debba essere pagato di tutto il 8uo salario." (cap.
! 125.) "A mariner hired for the voyage, who. l>y
| the will of God, dies before the ship sets sail, ought
to have a fourth part of his wages, which shull i>e
delivered and paid tohia heirs; and if he should die
after the ship has set sail, and before she arrives at
i her port, the half of the wages is due to the de-
ceased mariner, and ought to be paid to his heirs ;
i and if he has received the whole of his wages be-
| fore his death, the whole shall belong to him, and
; go to his heirs." "Marinaro one a«ra accordato in
! viaggio, et per volonta di Dio muore innanzi di
i haver fatto vela, debba haver il quarto del salario,
et sia consignato c dato a gli heredi ; et se morira
I dipoi che havcrao fatto vela, et innanzi che fuaso
1 dove la nave fara porto, le meta del salario dehtia
• eaaere del morto, et debhasi dar alii auoi heredi, et
' si ImvcsHe. rleevuto totto II sulario innanzi che
morisKc, tutto debba esser suo. et dato a i suo
heredi, cho patrone di nave, ne di navilio non quo
niente eontrastare, ne dlmandare." (cap. 126.) ^'If
the mariner is hired by the month, and shall die. his
wages, for the time he has served, shall be paid to
his heirs." Se il marinaro e aceoMato a mesi. et
morira, sia pagato et ditto alii suo heredi per quello
che havessc aervitto. (cap. 127.) The-»e thnt- chap-
ters should !«• taken together; and the general
|K>Rltion stated in the 12tith chapter la to be under-
stood with the distinctions and explanations con-
tained in the two following chapters. It U so iin-
i derstood by Casaregla, in his Commentary ; and the
i same distinctions as to the time when the death liai>-
411
331
SUPREME COURT, STATE OF NEW YORK.
1815
him in the District Court of the United States. '
It is true that the decision of Judge Peters
was affirmed by Judge Washington, on appeal
to the Circuit Court of the United States, in the
case of Jackson v. Sims, Peters' Adm. Rep.,
157, in 1806 ; but in Gary et al. v. The Kitty,
in the District Court of South Carolina, Judge
Bee, in 1808, with those opinions of Judge
332*] Peters and *Judge Washington before
him, decided differently, and allowed wages
for the deceased seaman to the time of his
death only. So far, then, as the opinions of the
judges of the courts of the United States are
to be regarded, they are equally divided. The
French Ordinance (Ordon. de la Mar., art. 13,
14; 1 Valin. Com., liv. 3. tit. IV., p. 746) de-
clares, that where a seaman, hired by the
month, dies during the voyage, his heirs shall
be paid his wages to the time of his death; and
where the hiring is for the whole voyage, out
and home, for an entire sum, his heirs are en-
titled to half that sum, if he dies on the out-
ward voyage, and the whole if he dies on the
return voyage. And Heath, J., in the case of
Beale v. Thompson, 3 Bos. & P., 406-427,
see S. C., 4 East, 546, considers a seaman dy-
ing in the course of the voyage as entitled
only to a proportionate part of his wages.
Abbot seems to doubt whether a seaman, in
such case, is entitled to any wages. (Abbot
on Ship., part 4, ch. 2, sec. 4.)
In the case of Cutter v. Powell, 6 T. R., 320,
the master gave a note, promising to pay the
seaman thirty guineas, provided he continued
on board and did duty for the voyage from Ja-
maica to Liverpool. The seaman died before
the ship reached Liverpool, and the Court of
K. B. decided that his administratrix was not
entitled to recover the stipulated wages, either
on the contractor on a quantum meruit.
In the case of a mariner impressed during
the voyage, Lord Holt ( Wiggins v. Ingleton.
2 Ld. Rayin., 121) held that he was entitled to
wages, pro tanto, or for the part of the voyage
he had performed before he was impressed.
In that case the seaman was taken out by vis
major, and the ship arrived safe and earned
freight. On the principle contended for by
the counsel for the defendant in error, he
ought to have recovered his whole wages ; but
Lord Holt decided otherwise ; and on what
principle, unless it was that he had not per-
formed the services for which he had contract-
ed?
Judge Peters does not question the authority
of the decision of Sir Wm. Scott, in the case
of The Friends, but the distinction which he
states, and which is a clear and sound one, sup-
ports that decision. The French Ordinance
(art. 16), and Valin, regard the capture of a
seaman by an enemy or pirate, as his peculiar
misfortune, and declares that he can have no
claim whatever against the master or ship
owner for his ransom or wages. And the 17th
article of the same ordinance declares only,
that if a sailor, sent by water or on shore, in
pens, and the terras of the contract of hire, are
adopted in the Ordinances of Charles V., and in the
Marine Ordinance of France. It is clear, from a
careful examination and comparison of all these
ancient ordinances with the commentators, that
the construction put by Judge Davis on the Law of
Oleron, is the true one, viz.: that a seaman who is
taken sick in the service of the ship, and dies, is en-
412
the service of the ship, should be taken and be
made a slave, his ransom shall be paid at the
expense of the ship, without prejudice
*to his claim for wages. This Valin [*333
considers as a totally different case from that
of a capture by an enemy, or where a pirate
takes out a particular seaman and makes him
a slave. Again ; it may be observed that the
vessel and cargo were sold in France to pay
salvage ; she was purchased in, and a new
crew hired. Must not, then, the former voy-
age be considered as having ended in France?
THOMPSON, Ch. J., delivered the opinion of
the court :
The plaintiff below, as mate of the Ameri-
can brig Criterion, signed the usual shipping
articles for a voyage from New York to a port
in France, and back again to the United States.
On the voyage, the brig was captured by a
British ship of war, and the plaintiff and the
rest,of the crew were taken from on board, and
never afterwards joined the brig. About two
days after the capture, the brig was recapt-
uied by an American vessel, and restored on
payment of salvage, and performed her voy-
age, and earned freight. The plaintiff claimed
and has recovered, in the court below, his full
wages for the voyage, deducting his propor-
tion of the salvage, and the advance of one
month's wages. The question now submitted
to this court is, whether this recovery can be
supported.
There is little satisfaction to be derived from
the examination of adjudged cases on this sub-
ject ; for we find much confusion and great
diversity of opinion among very able and
learned judges on the question. From an at-
tentive examination, however, both of the
English and American decision, I am satisfied
that the weight of authority and principle is
in favor of allowing full wages. It is a con-
tract of a peculiar kind, owing to the nature
of the service, and is regulated by principles
of policy, which are calculated to secure the
faithful service of seamen. The governing-
rule is, that wages are payable out of and de-
pend upon the fund created by the earning of
freight, and not upon the performance of ser-
vice. Hence, it has become a maxim, that
freight is the mother of wages. The event of
earning freight seems to be the contingency
upon which the right to wages is to depend.
It may seem, at first view, unjust that ship
owners should be compelled to pay wages
when no service has been performed ; but it
would be, at least, equally hard upon seamen
to deny to them their wages, when the non-per-
formance of the service was not occasioned by
their own fault or misconduct.but by *a [*334
vis major, over which they could have no con-
trol. The great principle upon which the
counsel for the plaintiffs in error seem to have
rested the cause is, that the capture dissolves
the contract, and that the seaman's right to
wages, afterwards, depends upon the perform-
titled to his wages to the time of his death, with-
out any deduction for the time of his sickness.
1.— This' was the case of Natterstrom, adminis-
trator of Taylor v. Ship Hazard, decided 31st May,
1809. The elaborate and learned opinion of the
judge, in this case is to be found in the second vol-
ume of Hall's Law Journal, pp. 359-382.
JOHJSS. REP., 12.
1815
WETMORE v. HENSHAW.
334
ance of services. This proposition appears to
me too broad to be supported. If the contract
be dissolved, and entirely at an end. it would
be optional with the ship owner, upon recapt-
ure, whether or not to employ the same sea-
men. But this never could be admitted. No
case will be found to warrant such a principle.
If the seamen are ready and willing to perform
the service, agreeably to the terms of the ship-
ping articles, there can be no doubt but that
the master would be bound to receive them.
The effect of the capture is to dissolve the con-
tract, if no restoration takes place, because it
cannot be executed ; but if, by any subsequent
event, it can be carried into execution, the
rights of the parties are restored, and the per-
formance of the contract is deemed only to
have been suspended.
In the case of The Friends, 4 Rob. Ad. Rep.,
116, which has principally been relied upon
by the plaintiffs in error, Sir William Scott
seems to admit that the recapture revives the
contract as to the seamen on board at the time of
the recapture. It is not, however, to be de-
nied but that the point decided in that case is
directly against the right to recover wages in
cases like the one before us. In opposition to
this, however, may be put the case of Berg-
#trom v. Mill*, 8 Esp., 36, where Lord Eldon
.says there is no doubt that if a ship does not
perform her voyage, the sailors have no title
to wages. But it is equally certain, that if
the voyage is performed, a temporary inter-
ruption shall not defeat the claims of the sea-
men. The temporary interruption here allud-
ed to was a capture, and detention of the ves-
sel until recaptured.
In the case of CurUng v. Long, 1 Bos. & P.
•637, Lord Ch. J. Eyre considers capture as
putting an end to the contract of freight ; and
that recapture and services performed, would
raise a consideration that would support an
action of aitsumpsit, not on the foot of the old
contract, but on a new contract which springs
out of it. Lord Alvanley, however, in Beak
v. Thompson, 3 Bos. & P., 430, denies this doc-
trine. He says, "I admit thatcapture puts an
•end to the contract ; but I do not admit, nor
do the cases establish, that capture one day,
and recapture the next, will put an end to the
31J5*] contract ; *and with great deference to
the dictum of Lord Ch. J. Eyre, in the case of
CurUng v. Long, I think that capture and re-
capture do not put an end to the voyage. That
capture, followed by a total loss, does ; but
capture, followed by a recapture, does not ;
and God forbid it should : for when a ship is
taken infra prccmdui hoali*, and becomes the
prize of the enemy, if capture puts an end to
the voyage, the sailors are not interested to re-
take the vessel ; for, although the crew should
rise on the enemy, and recapture and bring
back the ship, they are to be told she has been
captured, which puts an end to the contract
for wages. "
The view here taken of the effect of capture
and recapture upon the voyage, and the con-
tracts in relation to it, appear to me to be
founded in good sense and sound policy. It
would be useless for me to travel over all the
cases, and notice the various opinions which
have been thrown out on this point ; they are
certainly not reconcilable with each other.
JOHNS. RBP., 12.
! And it strikes me that the one maintained by
Lord Eldon and Lord Alvanley is the most fit
and proper to be adopted. To these might be
added that of Lord Ellenborough, 4 East. 558.
Molloy also lays down generally, that if a
ship be taken, and afterwards retaken and re-
stored, and proceeds on her voyage, the con-
tract is not dissolved.
If, then, the contract has not been dissolved,
upon what principle can the seamen be denied
their wages ? The voyage has been performed,
and freight earned, and no voluntary act done
by them to forfeit their wages. That the
nght to wages does not depend upon the actual
performance of service is settled by the case of
Chandler v. Qreate*, 2 H. Bl., 606, note. In
that case, the seaman was taken sick, and left
on the voyage ; and Lord Lough borough, at
the trial, thought he was not entitled to want;
but the court, upon a motion for a new trial,
said that the marine law ought to be followed
in the construction of the contract, and direct-
ed an inquiry to be made as to the usage in
the Court of Admiralty in such cases ; and it
was ascertained to be the established rule, that
a disabled seaman was entitled to his wages
for the whole voyage, although he had not
performed the whole. The same rule is laid
down by Abbot, 354, who observes, that a* a
seaman is exposed to the hazard of losing the
reward of his faithful services during a con-
siderable period, in certain cases, so, on the
other hand, the law gives him his whole wages,
even when he has been unable *to ren- [*33O
der his services, if his inability has proceeded
from any hurt received in the performance of
his duty, or from natural sickness happening to
him in the course of the voyage. And such is
also the rule of the laws of Oleron, art. 6, and
7, the great leading principles of which are re-
ceived and adopted by most of the commercial
nations of Europe as a part of their maritime
code. If such be the established rule with
respect to sick and disabled seamen, it must
apply with equal, if not greater force, to sea-
men forcibly taken from a vessel. There is
the same loss of service in the one case as in
the other ; and the same expense incurred by
the owner to supply their places.
On an examination of the decisions of the
courts in this country, so far as they have
fallen under my observation, it appears'to have
been uniformly considered that seamen, in
cases like the present, were entitled to full
wages. This precise question has frequently
come under the consideration of Judge Peters,
in the District Court of Pennsylvania, where he
has held that a seaman is entitled, or not, to
wages, according to the fate of the freight,
which is a particular fund upon which his
right is to depend. If this fund is lost, the
seaman suffers with the ship owner, and reaps
not the reward of his dangers and his toils.
But he is entitled to wages in all cases where
the defect of service is not imputable to him-
self. If he has been prevented from perform-
ing the voyage by force, he is to be paid full
wageo, deducting what he may have earned in
other service. It is highly fit and proper that
a seaman should lose his wages where the non-
performance of his contract is imputable to his
own fault, negligence or misconduct ; but he
ought not to suffer, or have his risk or respon-
418
336
SUPREME COUKT, STATE OP NEW YORK.
1815
sibility increased, by circumstances he could
not control, where the fund to which he was
to look though temporarily in danger, is ulti-
mately safe. (1 Peters' Adm. Dec., 115, 123.)
The principles upon which these decisions
are bottomed have been sanctioned and affirmed
by Judge Washington, in the Circuit Court of
the United States. (2 Peters' Adm. Dec., 184.)
Cases like this have been considered, in prin-
ciple, as stiimling on the same footing with
those where ihe non-performance of service
has been occasioned by sickness ; in which
case, although death ensues before th'e termi-
nation of the voyage, full wages have been de-
creed by Judge Peters, and sanctioned by Judge
Washington. (1 Peter's Adm., 142, 157, and
337*J 157, note.) *And this is, indeed, con-
formable to the principle adopted in Chandler
v. Greaves, already referred to. Judge Bee, in
the case of Carey v. Schooner Kitty , 1 Bee, 255,
held a different doctrine, and limited the re-
covery of wages to the death of the seaman ;
although he admitted that, according to the
laws of Oleron, Wisbuy, and the Hanse Towns,
wages for the whole voyage were recoverable;
but he thought proper to follow the French or-
dinances, which, he said, were otherwise. The
case of Brooks v. Dorr, decided by the unani-
mous opinion of the Supreme Court of Massa-
cusetts (2 Mass., 39), is directly in point on this
question, and is entitled to very respectful at-
tention. The late Chief Justice of. that State,
who was counsel for the defendant, did not pre-
tend but that the plaintiff was entitled to his full
wages ; but argued that they were to fall upon
the underwriters, and not upon the ship own-
ers, they having abandoned. He admitted
that it was a general rule, that if a seaman has
done nothing by which he has incurred a for-
feiture of his wages, he is entitled to them
until the completion of the voyage ; and said
there was no case where wages had been re-
covered for part of a voyage, unless where the
mariner had died during the voyage.
Upon the whole, therefore, I think that the
weight of judicial opinions on this subject is
decidedly in favor of allowing to the plaintiff
below his full wages ; and that this is in con-
formity to the principles and policy which
ought to govern the construction of contracts
for seamen's wages. The judgment of the
court below must, accordingly, be affirmed.
Judgment affirmed.
Cited in-9 Cow., 165 ; 1 Hilt., 28.
VAN VALKENBURGH v. ROUK.
Pleading and Practice — Evidence of Fraud.
Under the plea of non eat factum, the defendant
may give evidence of fraud in the manner of
obtaining the instrument on which the plaintiff de-
clares.
Citation— Chit. P., 479.
THIS was an action of debt on a bill obliga-
tory, or sealed note, and was tried before
Mr. Justice Yates, at the Orange Circuit, in
August, 1814.
The defendant pleaded non est factum, and
at the trial, entered into evidence to show that
the note had been fraudulently obtained, by
substituting, in the place of the note which
414
the *defendant intended to execute, [*338
one for a much larger amount. To this testi-
mony the counsel for the plaintiff objected
that it was admissible under the plea ; but the
judge overruled the objection.
It is unnecessary to state the testimony, as it-
is unnoticed in the opinion of the court. It
appears from the case to have been of a very
vague and indefinite nature, consisting princi-
pally of loose conversations with the plaintiff,
and none of it looking directly towards the
species of fraud intended to be proved. It
was proved, on the part of the plaintiff, that
the defendant could read writing, and wrote a
good hand.
The jury found a verdict for the defendant.
The plaintiff moved to set aside the verdict,
and for a new trial : 1. Because improper tes-
timony was admitted. 2. Because proper tes-
timony, offered by the plaintiff, was overruled
by the judge. 3. Because the verdict was
against evidence.
Mr. Ross for the plaintiff.
Mr. Fisk, contra. He cited 2 Chitty, 479 ; 3
T. R., 438.
SPENCER, J., delivered the opinion of
the court :
The evidence in this case looks towards a
substitution of an instrument of a larger
amount, for the one the defendant supposed
he was executing. Had it been made out sat-
isfactorily that there had been a note drawn
for a smaller amount, that the defendant was
defrauded into executing the note in question,
by its substitution at the moment of execution,
I cannot perceive any objection to the admis-
sion of such proof: and if made out, I think it
would avoid the instrument upon the issue of
non est factum. Chitty lays it down, that the
defendant, on non est factum, may give in evi-
dence that the deed was void at common law,
ab initio ; as that it was obtained by fraud, &c.
(Chitty, PL, 479.) The fraud he refers to must
have been a fraud relating to the execution of
the deed, for the issue involves only the exe-
cution of the instrument. In the case of an
infant, he must plead infancy, and cannot give
it in evidence on non est factum, because the
deed is his, though he is not bound by it. A
feme covert, having no capacity to contract, is
not bound to plead coverture. If a deed' be
misread, or misexpounded to an unlettered
man, this may be shown on non est factum,
*because he has never assented to the [*33t>
contract. So, if a man be imposed upon, and
signs one paper while he believes he is signing
another, he cannot be said to have assented,
and may show this on non est factum.
I will not pretend to say that there is not a
great deal of technicality in the application of
the rule, as to the cases in which you may give
evidence impeaching the execution of the in-
strument, under the plea of non est factum,
and those in which you may not. In the pres-
ent case, the defendant was not unlettered, and
there is not sufficient proof to warrant the ver-
dict that there was a substitution of one in-
strument for another. There must be a new
trial.
New trial granted.
Cited in— 9 Cow., 311: 14 Wend., 198; 15 Wend.,
509; Hill&D., 31 : 25 Barb., 211; 35 Super., 490: 70
Mo., 179.
JOHNB. REP., 12.
1815
THE PEOPLE v. ROSE.
THE PEOPLE «. ROSE.
Aiding Fellow Prisoner to Escape— Liable for
under Statute.
A person confined in a Jail who attempts to es-
cape, by breaking the prison, in consequence of
wliii-h a fellow prisoner, confined for felony, es-
cape from the Jail, is guilty of an offense within
the anh section of the statute (seas. 3tf. chap. 2»;
1 N. R. L.. 412), and may be punished with imprison-
ment in the State Prison.
THE defendant, who was brought up on
habea* corpus, had been indicted at the
last Oyer and Terminer in Onondaga County,
under the 20th section of the Act declaring the
punishment of crimes (1 N. R. L., 412 ; sess.
36, ch. 29) for aiding a prisoner, who was con-
fined in the jail of that county for felony, in
escaping from the jail.
It appeared that Rose, who was confined in
the same jail for some petty offense, attempted
to escape, by breaking the prison : in conse-
quence of w'hich. a fellow prisoner, confined
for felony, was enabled to escape.
Mr. E. Williams, for the defendant, con-
tended that the prisoner, in breaking the
prison, intended only to effect his own escape,
and not to aid or assist other prisoners to es-
cape ; and that the case did not, therefore,
come within the Statute.
Per Curiain. This case is clearly within, the
mischief which the Statute was made to pre-
vent.
The prisoner must, therefore, be sentenced to
At State Prison, at hard labor, for five years.
34O*] «TAYLOR v. HATCH.
Practice — Affidavit before an Attorney.
An affidavit will not be allowed to be read in
support of a motion, if taken before an attorney in
the cause.*
•The Rule in the case applies only to affidavits
made before an attorney in a suit pending not to
those preparatory to the commencement of one; as
an alh'davit to obtain the allowance of a certittrari.
Vury v. Godfrey, 6 Cow., 587: and see Willard v.
Judd, 15 Johns., 531; Hallenback v. Whitaker, 17
Id.. S5.
JOHNS. REP., 12.
MR. SKINNER was about to read an affida-
vit, in support of a motion in this cause,
when Mr. Walvorth objected that the affida-
vit had been taken before the attorney for the
plaintiff, who was a commissioner for taking
affidavits, to be read in this court. He cited
the rule of the Court of K. B.. in England,
and 3 T. R., 403, King v. Wallace.
Per (Juriam. The practice of the Court of
K. B. is not to allow an affidavit taken before
the attorney in the cause to be read. It is a
very fit and proper rule, which we shall, there-
fore, adopt as the practice here. As <he party
may, however, have been led into a mistake
as to the practice, we give him leave to with-
draw his motion, and to renew it again, at the
next term, on a proper affidavit.1
Cited in— 15 Johns.. 531 ; 17 Johns., 2 ; 8 Cow., 587 :
3 How. Pr., 221 ; 4 How. Pr., 153; 58 How. Pr.. 113: 8
Abb. N. C.. 242; 58 How. Pr., 113.
ANONYMOUS.
Practice — Judgment — Costs.
A Judgment may be reversed In part, and
affirmed in part ; but in such case no costs are al-
lowed on either side.
Citation— Sess. 36, ch. 96, sec. 13.
IN this case, on a writ of error, the judgment
of the court below has been reversed in
part, and affirmed in part, and the only ques-
tion was as to the costs.
Per Curiam. There is no doubt that a judg-
ment may be reversed in part, and affirmed in
part. But the Statute speaks only of the en-
tire affirmance or reversal of a judgment. (1
N. R. L., 846; sess. 36, ch. 96, sec. 13.)
We think that no costs, in this case, are to be
allowed on either side.
Cited in-5 Wend.. 341 ; 6 N. Y., 89.
1.— Tidd's K. B. Pr., 451. But an affidavit to hold
to ball may be taken before a commissioner, though
attorney for the plaintiff. Tidd's Pr.. 155.
415
[END OF AUGUST TERM, 1815.]
CASES ARGUED AND DETERMINED
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK.
OCTOBER TERM, IN THE FORTIETH YEAR OF OUR INDEPENDENCE.
HORTON AND WOODHULL «. HICKS.
Practice — Insolvents — Costs under Statute.
The 22d section of the Act Giving Relief in Cases
•of Insolvency (1 N. R. L., 460; sess. 36, ch. 98), di-
recting all costs of suit to be first paid by the assign-
ees, applies only to costs in suits brought by or
against the assignee or assignees of the insolvent,
and not to suits brought by creditors before the
assignment.
THE defendant, having become insolvent,
regularly assigned his property under the
Act (sess. 36, ch. 98; IN. R. L., 460). The
plaintiffs, under the 22d section of the Act,
demanded of the assignee payment of the
taxed bill of costs in this cause, which he re-
fused. This section of the Act directs "that
all costs of suit, prison and jail fees, and
charges of proceeding under the Act, to ob-
tain the discharge of the insolvent, shall be
first paid ; and then, deducting all such costs,
charges, and expenses; as shall be necessarily
laid out and expended by the assignee or as-
signees, together with his or their commis-
sions," &c. ; the residue shall be equally divided
among the creditors, without preference. On
the refusal of the assignee to pay the costs, the
plaintiffs obtained an order from the Recorder,
directing the assignee to pay them.
Mr. M' Coun, for the assignee, now moved
for a rule to vacate the order of the Recorder.
He contended that the Act did not apply
342*] *to suits brought by or against the in-
solvent, before the assignment or discharge ;
and he cited Dey v. Lovett, 7 Johns. , 374.
Mr. G. W. Strong, contras relied on the
words of the Act, "that all costs of suit"
should be first paid ; which, he contended, in-
cluded all suits against the insolvent ; that the
prosecuting creditor ought not to be placed in
a worse situation than the other creditors,
which would be the case if his costs were not
paid.
Per Curiam. We decided in the case of
Dey v. Lovetl et al., Assignees of Richards & Coit,
that the Act did not extend to costs of suits in-
stituted by the insolvent before his discharge ;
and, on the same principle of construction, it
is equally clear, that it does not apply to suits
brought by creditors against the insolvent be-
fore his assignment or discharge. The words
of the Act, " all costs of suit," mean only the
costs of suits brought by or against the as-
416
signee or assignees of the insolvent. There is
no reason or justice in giving the prosecuting
creditor any advantage over the other credit-
ors. The Act does not intend to encourage
suits against insolvents. Its object, in this
section, is merely to indemnify the assignees
for all the costs, charges and expenses of all
suits brought by or against them, or necessarily
incurred by them in the execution of their
trust.
Rule granted.
*ANDERSON ET AL. t>. VAN ALEN. [*343
1. Assignments of Choses in Action and Rights
of Cestui que Trust Protected by Courts of
Law. 2. Notice — Action Unnecessary.
Courts of law take notice of assignments of
choses in action, and will protect the rights of a
cestui (jue trust, against any person having notice of
the trust; and actual notice of the assignment or
trust need not be shown ; but it is enough it' the
party acts with a knowledge of such facts and cir-
cumstances as ought to put him on inquiry.
Citation— 1 Johns. Cas., 51.
was an action of assumpsit, for goods
JL sold and delivered. The defendant
pleaded non assumpsit, with notice of a set-off.
The goods were sold to the defendant in May
or June, 1814, to the amount of $553.92.
The defendant, on the 26th of September,
1814, purchased of W. D. & Sons, of Amster-
dam, in Montgomery County, two notes, drawn
by the plaintiffs on the 17th of June, 1814, one
for $500, payable in ninety days, and the other
for $31.25, payable at the same time; for
which the defendant gave to W. D. & Sons
his two notes for $250 each, payable at nine
and twelve months ; and the defendant, at the
same time, gave to W. D. & Sons a receipt,
specifying that he had received of them the
two notes above mentioned of the plaintiffs,
in exchange for his two notes above specified,
and promising to return the said notes of the
plaintiffs to W. D. & Sons, at any time within
two months, in exchange for his said two notes,
or for other notes of the plaintiffs to that
amount. On the 20th of November, 1814, the
defendant returned to W. D. & Sons the note
of the plaintiffs above mentioned ; and they
indorsed and delivered to him another note
drawn by the plaintiffs, dated April 9, 1814,
JOHNS. REP., 12.
1815
ANDERSON ET AL. v. VAN AI.KN.
343
by which they promised to pay to W. D. &
Sons, or order, six. months after date, $453.18,
which was the note mentioned in the notice of
set-off, and the only one offered under the
notice, at the trial.
The plaintiffs proved that the defendant, in
a conversation with their attorney, in January
la-st, admitted that he obtained the note offered
. set-off, after he had heard of the plaintiffs'
failure ; that he was in Albany on the 22d of
- i ember. 1814, when he learned that the
plaintiffs had failed, and become insolvent,
ami saw their goods sold by the sheriff on that
: and that, some days after his return from
Albany, he obtained the notes of W. D. &
Sons.
The plaintiffs then produced an assignment,
uted by them on the 26th of September.
1814, to James Gourlay. assigning over all the
debts due the plaintiffs, specified in the sched-
iil>' annexed, among which was the note due
:> l-4*J from the defendant, in trust, to *pay
the debts due from the plaintiffs to certain cred-
itors mentioned in another schedule annexed
to the said assignment, and to pay over the
•>urplus tn all the other creditors of the plaint-
iffs not named in the said schedule, without
distinction.
On the 7th of October, 1814, the plaintiffs
executed an assignment to L. Bingham and
two others, of the City of New York, their cred-
itors, of all their notes and accounts, in trust,
for payment of themselves and other confiden-
tial creditors, and then in trust for all the other
creditors of the plaintiffs. Gourlay having
agreed to give up to the said assignees the as-
signment made to him, of the 26th of Septem-
ber. 1814, on their engaging to pay, out of the
tir^t moneys they should receive under the as-
signment to them, the debts due to the persons
named in the schedule annexed to the first as-
signment, but which, it appeared, was not, in
fact, annexed, though expressed and intended
so to be by the parties.
A notice, dated the 15th of October, 1814,
was published in two newspapers, in Albany,
and the publication continued for three
months, which stated that the plaintiffs had
.-tied all their debts, &c., to Bingham and
others, to whom payment was requested to be
• made; and on the 20th of October, the attor-
neys of the plaintiffs wrote a letter to the de-
fendant, addressed to him at Amsterdam,
where he resided, which was put into the post-
oltice at Albany, informing him of the assign-
ment, and requesting him to make payment
to the assignees. This letter the defendant
did not receive from the postofflce at Amster-
dam until the latter part of December, or the
beginning of January last, though the letter
had lain in the postofflce there from October
to that time.
A verdict was taken for the plaintiffs, sub-
ject to the opinion of the court on a case con-
taining the facts above stated; and which was
submitted to the court without argument.
THOMPSON, Ch. «/., delivered the opinion of
the court:
The plaintiffs having made an assignment
of the dcmuild on which the present suit is
are only nominal parties upon the record, and
the real question is between their creditors and
the defendant; and the right of set-off will
depend upon the fact, how far the defendant
is chargeable with notice of the assignment.
It is a well-settled principle, that courts of law
will notice the assignment of a *chbse [*345
in action, and protect the interest of a eettui
que trust against every person who has notice
of the trust. And it seems, also, to be pretty
well settled that actual notice is not necessary.
If a party acts in the face of facts and circum-
stances which were sufficient to put him upon
inquiry, he acts contrary to good faith, and at
his peril. These are principles fully recog-
nized by this court, in the case of Johnson v.
Bluodgood, 1 Johns. Cas., 51, and, if applied
to the case before us, will very satisfactorily
show that the .set off cannot be allowed.
1 lay out of view the first assignment toGour
lay, and notice only that made to Bingham, and
others, on the 7th day of October, 1814. The
note offered as a set-off, bears date the 9th day
of April, 1814, payable six months after date,
and was not transferred to the defendant until
the 20th of November, in the same year, which
was some time after it fell due. This has al-
ways been considered a circumstance of sus-
picion, and enough to put the indorsee upon
inquiry There is no direct and positive proof
that this note was purchased for the express
purpose of setting it off against the present
demand; but the facts in the case afford an al-
most irresistible conclusion that such was the
object. The defendant, as appears by his own
confessions, was, some time before he pur-
chased the note, fully apprised of the failure
of the plaintiffs; was present at the sale of
their goods by the sheriff; and it is hardly con-
ceivable that, with a knowledge of this fact,
he would have purchased the note in question,
unless it had been with some such view. About
the middle of October, 'notice of the assign-
ment was given in two of the public newspa-
pers, printed in the City of Albany, and con-
tinued for three months; and about the 20th
of the same month, a letter was written to the
defendant, giving him notice of the assign-
ment. This letter, it is true, did not come to
the defendant's hands until some time in De-
cember or January; but the very circumstance
of its lying in the postoffice, in the very town
where he resided, from some time in October,
bears strongly the appearance that there was
some suspicion as to its contents, and that the
notice in the newspapers had been seen. These
are strong grounds for believing a speculation
was intended, to the prejudice of the other
creditors who were interested in the assign-
ment, and arc sufficient to afford a well-
grounded belief, if not an irresistible convic-
tion, that the defendant had notice *of [*346
the assignment when he purchased the note.
The opinion of the court, therefore, is, that
the set off ought not to be allowed, and that
the plaintiffs have judgment for $553.92.
Judgment for the plaintifft
founded, for the benefit of their creditors, they
.JOHNS. RHP., 12. N. Y. R., 5. 27
Cited In- 19 Johns., 97 : 6 Hill. 239; 64 N. Y.. 161 :
:t linn. 475: 4 Barb.. 49; H Burb.. 1%: 8 B:irb.. 145; 3
11. nv. Pr.,38S; 5How. Pr..«7; 5T.&O, 6J7; 8 Boa,
; 2 Co. K., 5; 3 Wood. 4 M., 383.
417
346
SUPREME COURT, STATE OF NEW YORK.
1815-
CANFIELD v. MONGER.
Negotiable Paper — Equitable Assignment — Au-
thority with Interest — Conversion.
Where A delivers a note to B to receive the
amount, and and apply it to the payment of a note
from A to B, this is an equitable assignment of the
note, and vests an authority, coupled with an in-
terest, in B; and B will not be guilty of a conver-
sion, by refusing to deliver the note to A.
Citations— 1 Cai., 363; 3 Johns., 71; 1 Cai. Cas., Er. 15.
IN ERROR, on certiorarito a justice's court.
This was an action of trover for a note of
about $5, drawn by one Linsey , payable to Mon-
ger, the plaintiff below, dated in the year 1811.
The defendant pleaded not guilty; and upon
the trial it appeared that a note, of the descrip-
tion set out in the declaration, had been de-
livered to one John E. Caurield, to receive the
amount of the drawer; and, when paid, to
credit and indorse the amount on a note which
John E. Canfield held against the plaintiff and
one Reuben Adams; that both those notes were
afterwards in the possession of the defendant;
but how he came by them did not appear; that
the plaintiff demanded the note drawn by Lin
sey, which the defendant refused to deliver
up; that he then demanded that he should in-
dorse it upon the plaintiff's note, which be
also refused to do. At the trial, the defendant
offered to give up the note to the plaintiff, but
he refused to receive it. The justice gave judg-
ment for the plaintiff.
Per Curiam. How the defendant below came
into possession of the note in question does not
appear. But it is necessarily to be inferred
from the evidence, that he either received it
by purchase from John E. Canfield, or, as his
agent, to collect, and apply it in the same
manner as John E. Canfield was authorized
to do; and the defendant must be considered
as standing in the same situation, and clothed
with the same rights, in relation to this note,
as John E. Canfield was; and the delivery of
the note to him, with directions to-receive and
apply it towards payment of his own note,
would amount to an equitable assignment of
it, and vest in him an interest, which the
347*] plaintiff could not defeat at *his pleas-
ure. (I Caines, 363; 3 Johns., 71.) He had
an authority coupled with an interest (1 Cai-
nes' Cas. in Error, 15), which the plaintiff
could not devest him of, without paying the
note upon which the one in question was to be
applied. The defendant, therefore, had a
right to retain the note, and was not guilty of
a conversion by refusing to deliver it up when
demanded; and he ought not to have indorsed
it on the other note, as requested, unless pay-
ment had been received 01 Linsey, or it had
been lost in consequence of the defendant's
negligence, of which there was no evidence.
The judgment must, accordingly, . be re-
versed.
Judgment reversed.
Cited in— 9 Cow., 36; 61 N. Y.,
11 Barb., 638; 4 E. D. Smith, 641.
418
76 N. Y., 356;
CANFIELD v. MONGER & ADAMS.
Practice — Trover will not Licfw Note Equitably-
Assigned — Set-off.
Trover will not lie for a note, payable to the
plaintiff, which has been delivered to A to collect,
and apply the amount received thereon to the pay-
ment of a note which he held against the plaintiff.
Matter which would have been a defense to a for-
mer action cannot afterward be made the subject of
a suit.
IN ERROR, on certwrari to a justice's court.
Monger & Adams, the plaintiffs below,
declared against Canfield, in trover, for a note
drawn by Benjamin Williams, payable to the-
plaintiffs, on which there was due about $ls ;
also a count for money had and received, and
also for goods sold. From the evidence it ap-
peared that the note was put into the hands of
John E. Canfield to collect, and apply towards
the payment of a note which John E. Canfield
held against the plaintiffs ; and on which note
the defendant below, as indorsee, had, the day
before, commenced a suit against the plaintiffs.
The defendant below acknowledged that he
had had the note in question, which had been
paid to him. The plaintiffs below demanded
the note, which he refused to deliver, and also-
required to have credit given on their note,
which he also refused : and it appeared that
no indorsement was made on the plaintiff's,
note of any money received of Williams.
What was further done in that suit does not
appear. In this suit the justice gave judg-
ment for the plaintiffs.
Per Curiam. . Whether the money counts-
could be joined with a count in trover, is not
a question before us ; no objection having
been made in the court below, it is, therefore,,
to be taken as admitted by consent. The
proof, however, did not *support the [*348
count in trover : there was no conversion : the
note was delivered to John E. Canfield to col-
lect, and apply the money towards the pay-
ment of a note which he held against the plaint-
iffs below ; and from the confession of the
defendant, it appeared that he had received
the money, and that the note was discharged,
and, probably, was given up to Williams, the
drawer ; at any rate, there was no evidence
that it was in the defendant's possession, when
demanded, and if paid off by Williams, it
ought to have been delivered up to him.
There was, therefore, no conversion, as the
note had been disposed of according to the
directions to John E. Canfield ; nor was the
count for money had and received supported.
If the defendant below acted as the agent of
John E. Canfield, he was accountable to him,
and did not receive the money for the use of
the plaintiff. But admitting the defendant to-
be accountable to the plaintiffs for the money,
it was matter of defense upon the suit on the
plaintiff's note, which, it appears, was com-
menced before the present action. It ought to
have been set off in that action, if the defend-
ant was at all responsible for the money to the
plaintiffs below. The judgment must, accord-
ingly, be reversed.
Judgment reversed.
Cited in— 1 Denio, 434 ; 1 Barb., 556 ; 4 Barb., 365 ;
15 Barb.. 70 : 43 Barb., 319, 631 ; 50 Barb.. 394 : 17 Abb.
Pr., 353 ; 50 Ind., 420.
JOHNS. REP., 12.
1815
M'CARTY V. VlCKEKY.
Mfl
I
M'CARTY e. VICKERY.
Trespass — Possession Necessary to Maintain. \
After a delivery of goods sold, the seller cniuiut,
on account of fraud In the contract, forbid the
food* to bo taken away, and bring an action of
trespass against a person taking them away.
«N KRUOR, on certiorari to a justice's court.
Vickery, the plaintiff below, brought an
action of trespass against M'Carty. for cutting
and taking away some wood. The defendant
pleaded not guilty, and the cause was tried
before a jury.
On the trial, it appeared that one Peter Fake
had bought some wood of the plaintiff, aud
gave a note, signed by himself and one Henry
M'Carty, as security. The wood was delivered
to Fake, and the defendant below was engaged
in taking It away. The plaintiff afterwards
forbade tue defendant to take away the wood,
alleging that a fraud had been practiced upon
him in the purchase, and charging the defend-
:$ !{>*] ant with being a party *to it. Fake,
and his security, Henry M'Carty, were gener-
ally reputed to "be insolvent. The jury found a
verdict for the plaintiff.
Per Curiam. Although it is pretty evident
that the plaintiff below was deceived, in the
sale of the wood to Fake, yet there is no prin-
ciple upon which an action of trespass can be
sustained against the defendant. The wood
had actually been delivered to Fake ; the
plaintiff was, therefore, devested of the pos-
session, which is necessary to the support of
an action of trespass. Had not the plaintiff
parted with the possession, the insolvency of
the purchaser might have justified a refusal to
deliver; but by the delivery, the property
was changed, and trespass could not be main-
tained.
Judgment reversed.
Ouestloned-1 Hill. 318.
Expiained-3 Hill. :1SO.
Cited in-43 Cow.. 1U; 8 Cow., 244; 20 Wend., 279;
1 Hill. 30U; 4 Barb., 565; 32 Barb., 178.
MYER ET AL, Executors of Myer,
«.
COLE AND NIVEN, Executors, &c.
Pleading and Practice— Joinder of Count* —
Amendment — Costs.
A count on a cause of action arising after the
death of the testator cannot be joined with a count
on a cause of action arising in his life-time.
A declaration in a*Mmp*U, against executors,
contained three counts, in the first two of which
the promises were laid to have been made by the
testator in his lifetime, and the last stated that the
defendants, as executors aforesaid, being Indebted,
&c.. for work and labor, &c., about the funeral of
the testator. " done and performed at their special
instance and request," Sic., and that, in constdera-
- tion thereof, the defendants, " as executors afore-
said," undertook, &c. The declaration was held
bad, on a general demurrer.
Citations- 2 Bos. & P., 484 ; 4 T. R., 347 : 8 Johns,
840.
rpHIS was an action of assumpsit. The dec-
L laration contained three counts. The first
count was for money paid, &c., goods sold.
A:<-.. by the plaintiffs' testator to the defend-
IN-V RKP., 12.
ants' testatrix, in their lifetime, respectively,
and the promises alleged to have been marie
by the defendants' testatrix to the plaintiffs'
testator. The second count was for work and
labor, and the promise laid in the same manner
as in the first count. The third count stated
that the defendants, as executors aforesaid,
were indebted to the plaintiff's testator, in his
lifetime, as well for his work and labor. Ac.,
about the funeral of the said Hannah Myer,
deceased, " done and performed at their special
instance and request, as for divers materials,
&c., necessary on that account, by the said
testator furnished, &c., at his own proper costs
and charges, and used and employed at and
about the funeral of the said H. M. ; " " and
being so indebted, the said defendants, as
executors aforesaid, in consideration thereof,
&c., 'undertook, and promised, &c., [*35O
to pay to the plaintiffs' testator in his life-
time," &c.
To this declaration there was a demurrer
and joinder thereon, which was submitted to
the court without argument.
Per Curiam. The declaration is clearly
bad. The cause of action, stated in the last
count, arose after the death of the testatrix,
and could not be joined with a cause of action
arising in her lifetime. It would require dif-
ferent judgments. The defendants would be
personally liable on the cause of action us
stated in that count ; for the promise is not
alleged to have been made by them as execu-
tors. They were only named as executors as
a mere descriptio persona. (Bridgen v. Parkes,
2 Bos & P.. 424; Jennings v. Newman, 4 T.
R. , 347; Carter v. Phelps' Adm. , 8 Johns. , 840.)
That the funeral expenses of the defendants'
testatrix would be payable out of her estate,
is no answer to the form of the declara-
tion. It was a cause of action arising after
her death, and for which she could have made
no promise.
There must be judgment for tite defendants,
with leave to amend, on payment of coats.
Cited in— 7 Cow., 58 ; 3 Wend., 246 : 5 Wend., 38 ; 8
Wend., 531; 13 Wend., 568; 24 Wend., 185; 4 Sand.
Ch.. 37 : 41 N. Y., 319: 47 N. Y., :»6 : 59 N. Y., 585 ; 2
Barb., 371 ; 12 Barb., 331 : 14 Barb.. 116; 16 Barb., 290 ;
53 Barb., 89; 61 Barb.. 525, 530: 1 Daly, 219.
VAN WYCK t>. MONTROSE.
THOMPSON AND JOHNSON t>. MON-
TROSE.
Judgment on Bond — Recovery of Penalty — In-
terest and Costs only.
On a judgment on a bond fora penalty, the plaint-
iff cannot, by his execution, collect more than the
sum mentioned in the condition of the bond, with
interest and costs.
Citation— 6 Johns.. 283.
IN the first of these causes, a judgment was
obtained on a bond, with a penalty of
$750, conditioned to pay $875 ; and in the sec-
ond, on a bond, with a penalty for $800, con-
ditioned to pay $400.
Mr. D. Jtttgglf*, attorney for the plaintiff in
the first suit, issued a fi. fa. on the judgment
Alt
350
SUPKEME COUUT, STATE OP NEW YORK.
1815
to the sheriff of the County of Orange, direct-
ing him to collect $114.66 more than the sum
expressed in the condition of the bond, with
interest and costs, on the ground that, after
the judgment was entered up, 'the defendant
consented that the execution might be issued
to collect such further sum, in order to cover
and include a book debt of the defendant, ow-
351*] ing to the plaintiff. The sheriff *pro-
ceeded according to the direction of the plaint-
iff's attorney, and levied the whole amount so
directed, by a sale of all the property, real and
personal, of the defendant, and paid the mon-
ey to the plaintiff's attorney.
Mr. Baker, in behalf of the plaintiffs in the
second suit, now moved for a rule, that the
plaintiff in the first suit be ordered to pay over
to the plaintiffs in the second suit the sum of
$114.66, so collected, on the judgment in the
first suit, over and above the condition of the
bond and interest, and costs.
Per Curiam. It was an irregularity in the
attorney of Van Wyck, to direct the sheriff to
collect more than the sum mentioned in the
condition of the bond, with interest and costs ;
and it cannot be cured by any agreement be-
tween the parties. To allow the creditor or
his attorney thus to carve for himself, would
be sanctioning a practice that would lead to
oppression. No person can be admitted to
exact by execution what he claims as a debt,
without a previous judicial sanction, explicitly
given.
That the judgment was for a penalty, makes
no difference in the case. The reasons assigned
by this court, in the case of Watson v. Fuller,
6 Johns., 283, are also applicable to the case
now before us. Indeed, the present case is
much stronger ; because, the irregularity, if
permitted, would defeat a vested right of the
second judgment creditors, who have a fieri
facias on their judgment, in the hand of the
same sheriff.
Let a rule be entered, that Mr. D. Buggies,
the attorney of the plaintiff in the first suit,
pay back to the sheriff the sum of $114.66, in
order that the same may be applied towards
Ihefi fa. now in his hands, or which he may
receive on the second judgment.
Rule granted.
352*] *E VERTS AND ALLEN
v.
ADAMS.
Pauper — Services by Physician — Overseers of
Poor — Order of Relief by Justice — Statute.
A physician who furnishes medicine to, and at-
tends upon, a pauper, cannot recover for his ser-
vices from the overseers of the poor, unless it were
done at their request, or they have subsequently
promised to pay.
It seems that the justice, in his order of relief,
may designate the physician to attend upon the
pauper ; and that if the overseers employ any other,
and pay his bill, it will not be allowed them, in the
settlement of their accounts.
Citations— 1 R. L., 287 ; 2 East, 505.
IN ERROR, on certiorari to a justice's court.
The defendant in error, a physician,
brought an action in the court below, for med-
420
icine and attendance furnished a pauper,
against the plaintiffs in error, overseers of the
poor. An order had been given by two jus-
tices, to the overseers of the poor, to furnish
the pauper with necessaries, and also with
medical aid, if requisite, to be administered by
Dr. Malcolm. There was no evidence that Dr.
Malcolm had ever attended, nor was it proved
that the defendant in error had attended at the
request of the overseers. One of the plaintiffs
in error, when the bill was presented to him,
said that he would take counsel, and if liable
to pay the bill, would pay it. The justice
gave judgment for the plaintiff below for $25.
Per Curiam. The Statute, in cases like this
(1 R. L., 287) ; requires an order from a jus-
tice of the peace, as the warrant or authority
for the overseer to make the advances for the
relief of the pauper, and declares that the over-
seer shall make no other or further allowance
than what, by the said order, shall be directed,
and that the order shall be the voucher for the
payment ; and the Act (p. 289, sec. 28) further
declares, that, in case any overseer shall enter
in the poor books, and relieve any poor per-
sons, without such order, he shall forfeit and
lose all such advances, and not be allowed the
same in passing his account. If the overseers
of the poor had paid this bill, would they have
been allowed the same in the settlement of
their account ? This is very questionable. It
certainly would not have been a payment con-
formably to the order. If the justice is to
judge of the necessity of the relief, and
whether medical aid is wanting, it would
seem to fall within the scope of his authority
to designate the physician, and the overseer
of the poor would have no right to act in op-
position to it. But the liability of the defend-
ants below does not depend on this question.
They never have, in any way, sanctioned the
plaintiff's demand, or engaged to pay it ; nor
did they, in any manner, employ him to per-
form the service. There is, therefore, [*353
no obligation to pay, unless it be implied by
law ; and the law will create no such liability,
especially as it would be directly in the face
of the order. (2 East, 505.) How the plaintiff
came to attend upon the pauper, or at whose
request, does not appear. He is, undoubtedly,
entitled to a compensation for his services ;
but he must look to the person who employed
him, and not to the defendants below. The
judgment must, therefore, be reversed.
Judgment reversed.
Cited in— 5 Cow.. 649, 664 ; 66 Barb., 71 ; 7 Bos., 460 ;
5 Daly, 7 ; Tuck., 29.
COAN v. WHITMORE.
Pleading and Practice — Mispleading Cured by
Verdict.
If the defendant, to a plea of snlvit ad diem, in an
action of debt, add_s asi/niliter, and the jury find a
verdict for the plaintiff, he cannot move in arrest
of judgment for want of a replication to his spe-
cial plea.
A defendant cannot take advantage of his own
mispleading to defeat the plaintiff's suit, when the
jury have found a verdict for him.
Citation— 1 H. Bl., 644.
JOHNS. REP., 12.
1815
JACKSON, EX DEM , v. CROSBY.
853
fPHIS was an action of debt, on a single bill.
L The defendant pleaded, 1. Non eatfactum.
2. Payment at the day. 3. Payment after the
day. 'The conclusion of these pleas was to the
country, and the defendant added the nmiliter
to each, and on these issues the jury found a
verdict for the plaintiff.
The defendant moved in arrest of judgment,
on the ground that the two last pleas, of mint
ad diem, and auleit pott diem, required replica-
tion-.
Per Curium. The defendant, in his special
plea, tendered an issue to the country, instead
of concluding with a verification, as he ought
to have done ; and he added the similiter him-
self. This was a mispleading which is cured
by the verdict. The defendant cannot take
advantage of his own mispleading to defeat
tin- plaintiff's suit, when the jury have found
a verdict for the plaintiff. (Harcey v. Rich-
ard*, 1 H. Bl., 644.)
Motion dented.
Cited ln-7 Wall., 570.
354*]* JACKSON, ex dem. WOLCOTT ET AL.,
v.
S. AND D. CROSBY.
•nient — Identity of Soldier Entitled to Boun-
ty land — New Trial — Newly-Discovered Evi-
dence.
In actions of ejectment relative to the lands in
tli>- military tract, where the principal or turning
point in the cause, is as to the identity of the soldier
entitled to the bounty land, each party claiming
un<l'-r a person of the same name, the court will
grant a new trial on affidavits of newly-discovered
evidence, relative to the identity of the patentee,
though such evidence may consist of cumulative
•hiti v to the same point which was the sub-
ject of inquiry at the former trial ; these cases be-
in* peculiar, and not strictly governed by the rules
r> lativt- to new trials in ordinary cases.
THIS was an application for a new trial, on
the ground of newly-discovered evidence.
It appeared, from the affidavits read, that the
action was brought to recover the possession of
l"i Xo. 71, in the township of Virgil, in the
military tract, so called. The lessors of the
plaintiff claimed as heirs at law of Cornelius
Brackett, who, they alleged, was the soldier
tn whom the letters patent were issued.
The defendants claimed under a deed from
a person of the same name, bearing date the
2 1th of August, 1790, made to Samuel Mere-
dith. The principal and important question
between the parties, was as to the identity of
tin- soldier, or patentee. The deed from Cor-
nelius Brackett to Samuel Meredith purported
to have been executed at New York ; and at
the trial, there was considerable evidence, on
the part of the plaintiff, to show that Cornel-
ia* Brackett. during the summer of 1790, re-
sided constantly at Woodbridge, in the State
of Connecticut. There was, also, some evi-
dence, on the part of the defendants, to show
that a person of that name resided, during
tli.it time, at Crumpond, in Westchester Coun-
ty ; and it was contended that he was the
same person who had resided at Woodbridge ;
and that the witnesses, on the part of the
JOHNS. REV., 12.
plaintiff, were mistaken as to the time of his
residing at Woodbridge. The newly-discovered
evidence, offered by the defendants, went to
show that the same Cornelius Brackett re-
moved from Woodbridge to Crumpond.
Mr. Sill for the plaintiff.
Mr. Kellogg, contra.
Per Curiam. The newly-discovered evi-
dence goes very satisfactorily to show that the
same Cornelius Bracketl, who lived at Crum-
pond, removed from Woodbridge, when he
came there. This is certainly very important
testimony as to what is deemed, by both par-
ties, to be the turning point in the cause. The
•defendants are not chargeable with [*355
any very gross negligence in not having discov-
ered this evidence before the former trial. The
identity of the soldier entitled to the military
bounty land is a question often involved in
much doubt and difficulty, and about which
there is, usually, much contrariety of evidence.
We have frequently granted new trials, under
similar circumstances, though the newly-dis-
covered evidence might be considered, in some
degree, as cumulative facts, relative to the
same matter which was the subject of inquiry
on the former trial. These cases are peculiar,
and not to be strictly governed by the rules
adopted in ordinary cases. From the nature
of the inquiry, the development of truth and
the ends of justice have been found to be best
answered by a liberal exercise of the power
of granting new trials. We shall, therefore,
grant a new trial, on payment of costs.
New trial granted.
Cited in-5 Cow., 210; 34 Barb., 295.
JACKSON, ex dem. WADSWORTH,
v.
WENDELL ET AL.
E/jectment— Freehold — Conveyance must be by
Deed.
A freehold, or estate in fee in land, cannot be re-
conveyed without deed, or writing under seal.
Citation— Ante, 73. n. .
T'HIS was an action of ejectment, brought to
recover the possession of lot No. 11, in
Solon, in the County of Cortlandt. At the
trial, before Mr. Justice Spencer, at the Cort-
landt Circuit, in 1814, the plaintiff gave in evi-
dence the original patent to John Thomas,
dated July 9, 1790 ; also, a written instrument,
dated the 5th of September, 1789, without seal,
from John Thomas, by which, "in consider-
ation of a valuable sum received," &c.. he sold,
quitclaimed, and conferred all his right, &c.f
to bounty lands, &c., to James Wadsworth.
It is unnecessary to state the further evi-
dence in the cause. A verdict was taken for
the plaintiff, subject to the opinion of the
court on a case made, which was submitted to
the court without argument.
Per Curiam. Several objections ^re stated
NOTB.— Deed*— Seal nefmary.
A *eal to nccauaru to the mlfeitty of a deed pw-
ix>rf ing to ctmvey a freehold interest. See Jackson v.
Wood, ante, p. 73. note.
421
355
SUPREME COURT, STATE OF NEW YORK.
1815
as to the sufficiency of the instrument from
Thomas to Wadsworth, to convey a title to
35G*] *the lot in question. It is unnecessary
to take notice of any other than the one that
the instrument is without a seal. This alone
is fatal to the plaintiff's title, according to the
decision of this court, in Jackson, ex dem.
Gouch, v. Wood, ante, 73. It is expressly de-
cided in that case, that a conveyance of a free-
hold estate in fee must be by deed or writing
under seal.
Judgment for the defendant.
Cited in— 4 Wend., 483 ; 7 Barb.. 639.
M'DOWELL
v.
VAN DEUSEN AND DELAMATER.
Practice in Justice Court — Reversal of Judg-
ment for Opinion Expressed before Trial.
The judgment of a justice will not be reversed
because he had previously expressed an opinion in
the cause.
Citations— 1 Inst., 294 ; 2 Inst., 422.
IN ERROR, on certiorari to a justice's court.
The defendant below, after issue joined,
pleaded puis darrein continuance, that the jus-
tice ought not to try the cause, because he had
given his opinion in the cause, and verified
his plea by affidavit of himself and another
person : to this plea there was a demurrer and
joinder ; and it was agreed between the par-
ties, that, in case the justice should decide in
favor of the plaintiffs below, on the demurrer,
he should give judgment against the defendant.
The justice, in his return, denied the truth of
the matter pleaded. Judgment was given for
the plaintiffs on the plea puis darrein contin-
uance.
Per Curiam. The plea puis darrein contin-
uance was properly overruled. Admitting the
truth of the matter set forth in it, it was not
such as the defendant could avail himself of,
to prevent the trial. It is a general 'principle
(1 Inst., 294 ; 2 Inst., 422) that a judge cannot
be excepted to, or challenged, for corruption ;
but must be punished by indictment, or im-
peachment. If this plea could not be sup-
ported, it was agreed by the parties that judg-
ment should be rendered for the plaintiffs.
The judgment must, therefore, be affirmed.
Judgment affirmed.
Cited in— 8 Cow., 184 ; 15 Wend., 278 ; 7 Barb., 481.
357*1
*B. SPRINGSTEIN
v.
H. B. SCHERMERHORN.
Landlord and Tenant — Acceptance of New Lease
a Virtual Surrender of Prior Lease — Es-
toppel Burs Claim under Original Lease.
A tract of four hundred acres of woodland, was
leased by the proprietor of the manor of Rensselaer,
in J707 to A in fee, and reserving1 an annual rent,
and granting reasonable estovers out of the woods
of the manor &c. In 1763, A granted to his son B
part of the premises, with common of estovers, out
of any part of the woodland of A ; and afterwards
devised to his sons, C and D, the residue of the said
tract, who, on the death of the devisor, entered and
made partition. In 1791 an agreement was made
between B and C, and D, and other tenants of the
manor, with the then proprietor, by which the ten-
ants agreed to surrender or release their former
leases, and take new leases of the proprietor at a
certain rent, and new leases were accordingly ac-
cepted, for their respective lands, by B, C, and D.
It was held that as there was no reversion in the
proprietor of the manor, the acceptance of new
leases did not operate as a surrender of the former
estate but that the lessees, having accepted new
leases from the proprietor, in pursuance of the
agreement, a release of the old was to be presumed ;
and further, that B was thereby estopped from all
claim under the lease to him ; and that, for these
reasons, the right granted to B, to take estovers
from the other land of A, was gone.
Citations-Co. Litt., 337 ft ; 352 a; Co. Litt., 47 b.
THIS was an action of trespass quare clau-
sum fregit, and for cutting wood &c.
In 1707 Killian Van Reusselaer, proprietor
of the manor of Rensselaerwick, gave a lease
in fee to Jacob Schermerhorn, of a tract of
woodland, now situate in the town of Scho-
dack, in Rensselaer County, containing, by es-
timation, four hundred acres of land, more or
less ; subject to the yearly rent of one tenth
part of the produce of the demised premises.
The lease contained the following clause: " To-
gether with reasonable estovers out of the
woods of the said manor, for building, fenc-
ing, and fuel, on the said woodland," &c. ;
and also the following reservation : " Reserv-
ing the privilege to the neighboring tenants of
the said manor, of free pasturage for com-
monable cattle, within the bounds of the said
tract, if not in fence ; to gather and take away
stone ; and to cut and carry away wood, for
fencing, building, and fuel, for their uses on
the said manor only."
In 1763 Jacob Schermerhorn conveyed part
of the demised premises, by metes and bounds,
to his son, Ryers Schermerhorn ; and the deed
contained the following clause: " As also free
liberty and privilege for the said Ryers Scher-
merhorn, his heirs and assigns, to cut and
carry away wood for fuel and fencing for the:
use of the conveyed premises only, out of any
part of the woodland of the said "Jacob Scher-
merhorn, and excepting and reserving to the
lord of the manor the tenth of the produce of
all grain, the growth of the same premises."
Jacob Schermerhorn, by his will, dated the
16th of July, 1766, devised all his land, lying
at Schodack, on the main shore, to his sons,
Johannes and Hendrick, their heirs and as-
signs, forever, each the equal half thereof.
On the death of the testator, during the
Revolutionary War, the devisees entered on
the premises so devised, which were part of
the land above leased, and, soon after, divided
the same betweem them.
*By an agreement, made the 24th of [*358
November, 1791, between Ryers Schermer-
horn, John Schermerhorn, Jacob Schermer-
horn, Hendrick Schermerhorn and several
others, of Schodack. of the one part, and
Stephen Van Rensselaer, proprietor of the said
manor, by Thomas L. Whitbeck, his attorney,
of the other part ; reciting, that the parties of
the first part, being tenants in common of cer-
tain lands in Schodack, by virtue of four
JOHNS. REP., 12.
1815
SPRINGSTEIN v. SCHERMERHOKK.
358
several leases from Killan Van Rensselaer, the
proprietor of the manor of Ren.sselaer, speci-
fying their dates, and desirous to hold the
lands, each, for himself, in severally, and sub-
ject to a certain annual stipulated rent, they
agreed to release, or surrender up their former
leases, to the party of the second pan, and
take new leases, agreeable to a survey to be
made, subject to the annual rent of ten bushels
of wheat for every hundred acres ; and the
party of the second part agreed to execute new
• accordingly, reserving only ten bushels
of wheat and two fat hens, yearly, for each
hundred acres, free from any quarter sale ;
with free privilege for cutting wood in such
lands, in the said manor, as shall, from time
to time, remain waste, and not particularly
appropriated or demised.
in pursuance of this agreement, Hendrick
Scherrnerhorn, on the 33d of June. 1792, ac-
cepted a new lease from 8. Van Rensselaer,
the proprietor of the manor, for divers parcels
of l-iti>i in the said manor, including the
premises devised to him, as aforesaid, and de-
-rrilwd with metes and bounds, in which was
the following clause : " Together with reason-
.ableestovers for building, fencing, and fuel, on
-a ii 1 pieces or parcels of land .out of such parts of
said manor as shall, from time to time, remain
waste, and not particularly appropriated or
demised by the said Stephen Van Rensselear,
his heirs and assigns." Johannes Schermer-
horn and Hyers Schermerhorn accepted simi-
lar leases for their respective lands in January,
1794.
Hendrick Schermerhorn died intestate in
1796, and in 1798 his heirs sold and conveyed
to the plaintiff, 147 acres of the land and
premises so leased to Hendrick Schermerhorn.
The plaintiff had married a daughter of Jo-
hannes Schermerhorn, who inherited, from
her father twenty acres of the land so leased
to Johannes, 'fhe plaintiff entered into the
possession of the premises so conveyed and de-
vised to him, and inclosed the same with a
fence ; and the defendant broke the fence of
th;; plaintiff, and cut and carried away wood
355)*] from off the said land. *Ryers Scher-
merhorn, a few years ago died intestate, and
his lands decended to his son, H. R. Schermer-
horn, the defandaut, who claimed the right to
cut and carry away wood out of the close of
the plaintiff, by virtue of the conveyance from
Jacob Schermerhorn to Ryers Schermerhorn,
in 1763.
Two witnesses for the defendant testified
that the plaintiff had complained that the
rL'ht of the Schermerhorns to cut wood on
his land was ten times more burdensome to
him than the rent payable to the lessor. That
the witnesses lived near the premises ; and
that since 1792, and long before, the defend-
ant and his father exercised the right claimed
by them to cut wood on the said premises,
with the knowledge of the plaintiff, and they
never heard the right questioned until a short
time l>efore the commencement of the present
suit. Two witnesses for the plaintiff testified
that they lived near the premises, and that the
privilege claimed by the defendant and his
grantor, to cut wood on the premises, had
been a subject of controversy between them
and the plaintiff, and those under whom he
JOHNS. REP., 12.
derived his title, for many years, and that
actions of trespass had been brought before
justices of the peace ; and that the plaintiff
had uniformly and openly denied and resisted
the privilege claimed by the defendant.
It was agreed by the case, that if the court
should be of opinion that the plaintiff was
entitled to recover, an interlocutory judgment
should be entered, and a writ of inquiry of
damages issue thereon ; otherwise, a judgment
of nonsuit was to be entered.
Mr. A. Van Vechtfn, for the plaintiff, con-
tended that the defendant had no right of
common, by descent from his father, Rvere
Schermerhorn. The right which Ryers had,
was liberty to him, and his heirs and assigns,
to cut and carry away wood, for fuel and
fencing, for the use of the part of the demised
premises conveyed to him by Jacob Schermer-
horn. The right of common of estovers, in
this case, was not partable in its nature (Co.
Litt., 147 b, 164 b ; 4 Vin. Abr., Common., pi.
2 ; 8 Vin. Abr . Appor., A, pi. «, note ; Id., B.
pi. 11; Finch's Law, 158); and by the convey-
ance of parcel of the farm, it became extinct.
There can be no apportionment in such a case.
Suppose Jacob Schermerhorn had, by separate
conveyances, parceled out his four hundred
acres to forty different persons, with the same
clause as to common of estovers, could all the
different tenants exercise rights of common,
originally granted to one only? *Again; f*H<$O
all the rights or privileges granted to Jacob
Schermerhorn, and which nassed to his sons,
have been surrendered ; and if the defendant
justifies, it must be under a new title, not
under the original grant to his ancestors.
Here is not only a surrender by express slip
ulution, but a surrender by operation of law.
The son accepted a new lease for the premises
derived from his father. (Shep. Touch., 301,
302; 4 Burr., 1980; Rob. on Frauds, 253,
261.) The acceptance of the new lease, in-
consistent with a former, operates as a surren-
der of such former deed. It may be objected,
perhaps, that there is no certain evidence of
an actual surrender of the original lease. But
the agreement for the new lease was express
that the old one was to be surrendered. Such
surrender was a condition precedent to grant-
ing the new lease. The manner of obtaining
the new leases, connected with the agreement,
shows, conclusively, that the condition on
which the new leases were to be given was
fulfilled. But it will be said that the defend-
ant, not being a party, is not estopped. But
where a surrender is necessary to give effect to
a new lease, the party who accepts the new
deed is incapacitated to deny the surrender of
the old deed.
Again ; it may. perhaps, be said that the
new lease is not for the whole of the premises
contained in the old lease ; and so cannot oper-
ate as a surrender of the whole. Granting
this, still the surrender is good pro tanto; if so,
it must operate as a complete surrender of the
right of common ; for to what part can the
right of common attach ? By the surrender of
a part, the common is extinguished and gone.
(Bac. Abr., Common., E; 5 Vin. Abr., 16,
Common., E. a ; Cro. Eliz., 594.)
Mr. H. Bleeeker, contra. Henry and Johan-
nes S. took the land, devised to them by Jacob.
423
360
SUPREME COURT, STATE OF NEW YORK.
1815
subject to the right of common before granted
by Jacob to Ryers. The defendant, being the
heir of Ryers, the land descended to him, with
the right of common of estovers. A grant of
the land carries with it the right of common,
which is attached to the land. Then what
has been done to release this right of com-
mon ? The agreement made with the lord of
the manor was merely for the. purpose of
changing the nature of the rent ; to make it
certain, to avoid quarter sales, and that each
might hold in severally. It was at the in-
stance, and for the benefit of the tenants, who
were parties to that agreement. The lord of
the manor had no concern with the rights of
common. As no release of these rights to the
361*] *lord of the manor are produced or
shown, the court will not presume that they
have been released.
Then what is the effect of the new lease to
Ryers Schermerhorn ? It was only for a part
of the lands derived from his father. The
premises originally granted comprised two
islands in the Hudson, which are not included
in the new lease ; if he surrendered a part, the
right of common became apportioned, and he
retained the right of common as to the part
not surrendered. If so, the plaintiff must fail
in this action ; for the quantity or extent of
the defendant's right is not to be settled in
this case. If Ryers retained any part of the
land to which the right of common remained
attached, the law of apportionment will apply
to that part. Common of estovers may be ap-
portioned as well as any other common.
Again ; the parol evidence shows that the
defendant has exercised this right of common
for more than twenty years, under the eye of
the plaintiff, and an acknowledgment of this
right on his part. Common may be gained by
long sufferance, as well as lost by long neglect.
(5 Vin. Abr., 15 ; Common., E, a.) The law,
as in the case of ancient rights, presumes a
grant, from the lapse of time.
PLATT, ,/., delivered the opinion of the
court :
The only question which is deemed neces-
sary to consider, is, whether the agreement
with Stephen Van Rensselaer, and the accept-
ance of new leases by Ryers Schermer-
horn and his two brothers, in pursuance of
that agreement, have operated to devest him
and his heirs of their original privilege of cut-
ting wood in those parts of the four hundred
acre tract which are included in the new
leases to Johannes and Hendrick Schermer-
horn ?
It is contended, by the plaintiff's counsel,
that the acceptance of the new leases was,
virtually, a surrender, in law, of the original
lease, and of all rights which the new lessees
had acquired under it.
According to Sir Edward Coke, "a sur-
render is a yielding up of an estate, for life or
years, to him that hath the immediate estate
in reversion or remainder, wherein the estate
for life or years may drown, by mutual agree-
ment." (Co. Litt., 3376.)
Here, it must be observed, that the original
lease to Jacob Schermerhorn was a grant in
fee, subject to rent. There was, therefore,
no immediate estate of reversion or remainder
424
in the lessor or his heirs, in which a lesser
estate could merge or *drown ; so that [*3(>2
the doctrine of surrender, express or implied,
has, strictly, no application to this case.
I think, however, that law, as well as equity,
forbids the claim set up by the defendant.
1st. On the ground that a release by Ryers,
Johannes, and Hendrick Schermerhorn, to
Stephen Van Rensselaer, is, legally, to be pre-
sumed ; because the agreement to release, with
the reasons and motives given for it, the ac-
ceptance of new leases for the premises in
question, and exacting a general covenant of
warranty against all claims, are acts utterly
inconsistent with the existence of the old lease,
so far as regards the lands included in the new
leases.
The agreement bound Ryers Schermerhorn
and his brothers to release all claims to the
four hundred acre tract ; and, upon condition
of their so doing, Stephen Van Rensselaer
covenanted to give new leases, in lieu of the
old lease. Fair dealing, and the obligation of
their contract, required them to extinguish all
previous interest and claims, before they ac-
cepted new leases for the same land, with
general warranty of title. Besides, the case
agreed on expressly states that the lessees accept-
ed the new leases "in pursuance of the said
agreement ;" which implies that, upon exe-
cuting the new leases, all the previous con-
ditions were complied with on the part of the
lessees ; and, if so, the release must have been
duly executed.
2d. On the ground of estoppel, I think the
defendant is barred of all claim under the
original lease.
The locus in quo was not, indeed, a part of
the lands for which Ryers Schermerhorn ac-
cepted a new lease to himself ; but the trans-
actions embraced in the agreement with
Stephen Van Rensselaer, were the subject of
one entire contract, wherein the covenants
and stipulations of each of the parties were,
necessarily, dependent upon, and connected
in interest with the acts to be done by every
other party. I consider, therefore, that, in
executing that agreement, Ryers Schermer-
horn contracted not only for a new lease to
himself, for his particular part, but, also, that
new leases should be given, in complete
severally, for the other parts, to his brothers,
Johannes and Hendrick. At the time of
making that agreement, Ryers had a privilege
(appurtenant to his other land) of cutting
wood for fuel and fencing, on any par! of the
four hundred acre tract ; and, by that agree-
ment, he consented and appointed that the
landlord should *execute new leases [*363
to Johannes and Hendrick, for particular
parts of that tract, without reservation of his
Rrivilege. Those new leases have, according-
/, been executed, and include the locus in quo.
Estoppel may be by matter in pau as well
as by matter of record ; as, by accepting an
estate, making partition, &c. (Co. Litt., 352 a.)-
So, if a man take a lease of his^own land,
he is estopped from setting up his original
title. (Co. Litt., 47 &.) And, whether Ryers
took a new lease to himself, or directed, in
writing, under seal, that his landlord should
give new leases to his brothers, for the prem-
ises in question, he is equally estopped from:
JOHNS. REP., 12_
1815
WHEELER v. BOARD.
363
asserting any claim in oppossition to the new
leases.
From the view which we have taken, the
parol evidence in the case is irrelevant ; and
the plaintiff is entitled to judgment.
Judgment for the plaintiff.
Distiniruished-68 N. Y..353.
Cited in— i Denio, 412: 1 N. Y., 351 ; 30 N. Y., 462 ;
5 Hun, 580 ; 4 Barb., 570; 5 Barb., 329 ; 27 How. Pr.,
451.
WHEELER AND BRACKET «. BOARD.
Practice — Money Had and Received — Recovery of
Advance* for Service* — Eridence of Non-nr-
f or ma nee.
Money paid in advance on account of services to
be performed, may be recovered back, in case of
non-performance, in an action for money bad and
received.
The defendant is not bound to show a perform-
ance of the agreement, on his part ; but the plaint-
iff must prove the non-performanoe.
Til IS was an action of atsumpsit on a special
agreement to cany salt from Salina to
Olean, and for money had and received ; an
inquest was taken by default at the Onon-
daga Circuit, and a verdict for the plaintiffs
for $57.44, subject to the opinion of the court
on the following case :
The plaintiffs produced, and proved a re-
ceipt, signed by the defendant, for six barrels
of salt, received of the plaintiffs, at Salina, to
be carried to Olean, at $5.50 per barrel ; the
carriage to be paid for in advance. The re-
ceipt was not dated, but the salt was proved,
by a witness, to have been delivered to the
defendant about the 16th of February, 1814 ;
and that, about the 38th of the same month
(being a reasonable time thereafter, for the
conveyance and delivery of the salt at Olean),
salt was worth, at Olean, $10 a barrel. The
witness also stated that he was at Olean the
latter part of February, and first part of
March, on business for the plaintiffs, and that
he did not know of the defendant having de-
ttO4*] livered *any salt at that place. The
plaintiffs produced, and proved, another re-
ceipt, signed by the defendant, dated the 18th
of February, 1814. for $37, received on ac-
count of forwarding salt. The same witness
further testified that in the latter part of
February, 1814, he saw the defendant, who
then told him that he had lately received
money of the plaintiffs for forwarding salt
from Olean to Pittsburgh, which he had not
done, and the witness did not know whether
it had ever been done, or not. The plaintiffs
also produced, and proved, another receipt,
for $15, signed by the defendant, and dated
the 22d of Febnia'ry, 1814, the money to be
repaid to the pluintiffs, or the amount thereof
in flour, at Olean, in twelve days.
The plaintiffs claimed the amount of the
salt, at the Olean price, with interest, after the
time when it ought to have been delivered ;
and the amount of the two cash receipts, witli
interest on the first, after the 1st of March,
1814. and on the latter, after it became due.
The judge was of opinion that the plaintiffs
were bound to show further, and more fully,
the failure of the defendant to perform his
JOHNS. REP., 12.
agreements, as specified in the several receipts
above mentioned, but permitted the plaintiffs
to take the verdict as above stated, which was
for the amount of the two last receipts, with
interest.
The case was submitted to the court with-
out argument.
Per Curiam. The plaintiffs were entitled
(under the count for money had and received)
to recover the amount of the receipt for $37.
received by the defendant "on account of for-
warding salt, with interest. The evidence
was sufficient to warrant the jury in presum-
ing that he- received that money for forward-
ing salt from Olean to Pittsburg ; and that he
had not performed that service. The con-
sideration had, therefore, failed.
The third receipt was " for $15, to be re-
paid to the plaintiffs, or the amount thereof,
in flour, at Olean, in twelve days."
There is no special count on this agree-
ment ; nor is there any proof of non-perform-
ance. The plaintiff is not entitled to recover
the $15 in the action for money had and re-
ceived ; *for it does not appear but [*JJO5
that the flour was delivered at Olean ; and the
defendant was not bound to show that in this
action.
The defendant had a right, at his option, to
repay the $15, or to deliver flour equivalent,
at Olean, in twelve days ; and, certainly, the
plaintiff cannot recover the money back, upon
merely proving the execution of the receipt.
The verdict, instead of $57.44, ought to have
been for $37, with interest, from the 1st of
February, 1814.
New trial granted, with cost* to abide the event
of the suit.
Cited in— 2 Denio, 142; 6 Hun, 600; 4 Barb., 358;
30 Barb., 23 ; 51 How. Pr., 7 ; 16 Mich., 236.
JACKSON, ex dem. WINTHROP,
WATERS.
Ejectment — Grants from French Gorernment,
Void — Ad terse Possession — To be Strictly
Taken — Must be Definitely Bounded.
A possession of land in this State, taken under a
Krunt from the French Canadian Kovernmeut, prior
to the conquest of Canada by the British, is not
such an adverse possession as will prevent or defeat
the operation of a subsequent grant of the same
land under the provincial government of New York,
but will be considered as neld in subordination to
the title frranted by the patent of the New York
government.
Citations— 4 Johns.. 182 ; 9 Johns., 167 ; 1 Johns.,
156 ; 2 Johns., 230.
THIS was an action of ejectment, for land in
Ohazey, lying within the bounds of lot
No. 70, in Dean's patent.
The plaintiff produced the letters patent to
Elkanah Dean, and others, issued by the colo-
nial government of the Province of New York,
.— Advene poiwe**i»naHaffef tiny grunt*. See
o v. Wheeler. 10 Johns.. 148. note; Whitaker
\. r.in... -..'Johns. Caa., 58, note : Jacluon v. Todd, 2
Cat., 183. note.
365
SUPREME COURT, STATE OF NEW YORK.
1815
dated the llth of July, 1769, and made out a
regular title, under that patent, to lot No. 70.
The possession of the defendant was admitted.
The defendant produced a writing, dated
the 28th of June, 1768, from Francis Mackay,
who claimed under a grant from the French
Canadian government to one La Gauchetierre,
prior to the conquest of Canada, by which one
Jaques La Framboise was permitted to take
two lots of land, in Mackay's seignory, on
Lake Champlain, and settle himself there. La
Framboise had entered, in 1763, by permission
from Mackay, but did not continue long ; and
again, in 1768, entered under the above writ-
ing from Mackay, and continued there until
the American War, having cleared about twelve
acres, when he left the premises ; and again
returned, in 1794, and remained in the posses-
sion until January, 25, 1803, when he conveyed
to Charles L. Sailley, in fee, all his right, in
the said lot No. 70, in Dean's patent. On the
17th of March, 1803, Sailley conveyed to the
defendant in fee.
Mr. 1. Emolt, for the plaintiff. The doctrine
366*] of an adverse possession *is to betaken
strictly. (9 Johns., 167.) It must be hostile
in its commencement, and continue so. (1
Johns., 158 ; 10 Johns., 477.) The first entry
could not be adverse, because the title to the
land was in the Crown. The writing held by
Mackay was dated in June, 1768, and the grant
to Dean was in 1769. The King could not be
put out of possession by the mere entry of
another. (17 Vir». Abr., 176, Prerog., B d, 4,
sec. 3, 4 ; Plowd., 546 ; 3 Dyer, 266 b, sec. 10,
n. 10 ; 1 Burr., 109.) The case of Jackson, ex
dem. Winlhrop, v. IngrSh-am, 4 Johns., 165,
shaws that the property was in the Crown,
and there could be no adverse possession against
the Crown. But was there not, in point of fact,
an adverse possession ? Mackay might have
had some pretension to a pre-emptive right :
but when he found that it was not recognized
by the Crown, he totally abandoned it. He
never called on La Framboise, as his tenant,
or demanded any rent. The possession was
not adverse until 1803, when Sailley entered,
claiming in fee. Jackson, ex dem Southampton,
v. Cooly, 2 Johns. Cas., 223, is a strong case to
show that Mackay could not, on the writing
given to Framboise, have recovered the posses-
sion from him.
Messrs.' Sperry and E. Williams, contra. If
the entry is under color of title, it is sufficient
to make the possession adverse. It need not
be a good title. No matter how defective or
groundless the title may be, if the person en-
ters claiming under it. (Smith v. Burtis, 9
Johns., 174.) The intention of the party en-
tering decides the character of such entry.
There can be no doubt, in this case, that the
original entry was for Mackay's benefit, and
not for any other person. There has been a
continued possession under Mackay for above
fifty years, a duration of possession long
enough to bar all the world — sufficient even
against the people who, in succeeding to the
rights of the crown, have disclaimed that part
of the royal prerogative which prevents an ad-
verse possession being gained against the
Crown. The Statute bars all suits, by the peo-
ple, for lands, after forty years. It is no ob-
jection that Framboise was out of possession
423
from 1776 to 1794 ; for, where a person is
driven out from his possession, by a public
enemy, the possession, in presumption of law,
continues. (Smith v. Burtis, above cited.)
Again ; the plaintiff having been out of pos-
session for more than twenty years, cannot re-
cover in ejectment.
Mr. Emott, in reply, insisted that the doc-
trine as to an adverse possession against the
crown, or the people, was different from the
doctrine of limitations. What he contended
for was, that *a person entering on the [*367
land of the people, under a pretense of title,
does not prevent the people from granting the
land, so as to give a good title to the grantee.
THOMPSON, C h. J., delivered the opinion of
the court :
The lessor of the plaintiff produced and
proved a regular title for the premises in ques-
tion, under a patent to Elkanah Dean, dated
the llth of July, 1769; and the only question
in the case is, whether such an adverse posses-
sion was shown as to take away the right to
recover, in this form of action. The origin of
the adverse possession set up by the defendant
is that taken by La Framboise m the year 1763,
by permission of Mackay, who claimed under
a grant made by the French government of
Canada to La Gauchetierre, prior to the con-
quest of Canada by the British.
In the case of Jackson y. Ingraham, 4 Johns.,
182, it was held by this court that we could
not notice any title to land not derived from
our own government ; that grants from the
French government were to be treated as nulli-
ties, and absolutely void, and could not afford
any legal evidence of title, which we could
recognize. And if such be the light in which
these pretended titles are to be viewed, the
possession taken under these grants ought also
to be considered as unavailing, for anv pur-
pose. It cannot be deemed a possession in
hostility to any private or individual right ;
but, rather, as a controversy between the two
governments, and in no way affecting individ-
ual claims, further than they were recognized
and secured by the Treaty of 1763. No such
right is established in the present case. The
permission given by Mackay to La Framboise
is extremely vague and indefinite. It did not
relate to any lot in particular, but was only a
general permission to go on two lots in his
seignory. It was, substantially, a promise
that when he should receive a title he would
convey to La Framboise ; so that Mackay him-
self did not pretend to have any title thus
vested in himself. Whatever right might have
been supposed to pass by this permission, does
not appear to have been followed up, or ever
afterwards noticed by either party. No con-
sideration was paid by La Framboise for the
land: no rent claimed or demanded by Mackay;
and it is reasonable to presume, under the cir-
cumstances attending these lands, thus held,
that, whatever pretended right he might once
have had, was *given up and'abandoned [*368
by him. The possession thus held by La
Framboise could not prevent the operation of
the patent to Dean, in the year 1769, and must
be considered as held in subordination to the
title granted by the patent.
The doctrine of this court, with respect to
JOHNS. REP., 12.
1816
KINCATBD v. SCOTT.
368
adverse possession, is, that it is to be taken [
strictly, and not to be made out by inference, j
but by clear and positive proof. Every pro- 1
sumption is in favor of possession in subordi-
nation to the title of the true owner. (9 Johns.,
167.) It must be hostile in its inception, and
continued so for twenty years ; and must be
marked by definite boundaries. (1 Johns., 156 ;
2 Johns., 230.) The possession held by La
Framboise, prior to his conveyance to Sailley,
in 1803, cannot be deemed adverse, if his ori-
ginal entry, under Mackay, is not to be so con-
sidered, as it clearly is not, it being taken un-
der a foreign government, which we must
reject as a legitimate source of title. The
plaintiff must, accordingly, have judgment.
Judgment for the plaintiff.
Explained— 5 Peters, 446.
Cited in— 8 Cow., 600: 9 Wend., 518; 8 Barb., 193,
277; 12 Barb.. .K7 : 15 Barb., 490; 17 Barb., 666; 34
Biirb., .«,'; 23 How. Pr., 215; 29 Wis., 252; 42 Wia.,
KINCAIRD*. SCOTT.
Wcwte — Action for, Does not He ngain*t Trustee
— Trustee not a Tenant.
A devised bis lands, &c., in fee simple, to his in-
fant son, B, and appointed C sole executor of his
will, and trustee of all bis estate, for his son, until
he should arrive at tho age of twenty-ono years. On
the death of A, C. as trustee under tne will, entered
into possession of the estate so devised, and com-
mitted acts of waste ; and the infant heir, by his
guardian, brought an action of waste against him,
under the Statute. It was held that C was not a
tenant within the purview of the Act, having no
interest or estate in the lands devised ; and that an
action of waste did not, therefore, lie against him.
Citations— Co. Litt., 54 a; 1 R. L., 62; 52 Hen.
III., ch. 23; 6 Edw. L, ch. 5; 5 Co., 75; 2 Inst., 301.
THIS was an action of waste, brought by the
plaintiff, by his guardian. The declara-
tion stated that John Kincaird was seised, in
his lifetime, and died seised, of a certain mes-
suage, lauds, &c., in Hartford, in the County
of Washington ; and. by his last will, devised
all his real estate in Hartford to the plaintiff,
in fee, and appointed the defendant sole exe-
cutor of his said last will and testament, and
also a trustee of all his goods, &c., lands and
tenements, which he might be possessed of, or
have title to, at the time of his death, for the
plaintiff, until he should arrive at the age of
twenty-one years. The declaration then stated
that ou the death of the testator, the plaintiff
became seised and possessed of the several
pieces of land, &c., described in fee, by virtue
of the said will ; and that the defendant, being
possessed of the said several pieces of land.
ISO!)*] *by virtue of the said trust mentioned
in the said will, did commit waste and destruc-
tion in the houses, messuages, &c.. specifying i
the particular acts of waste done, in the usual |
form, which was to the disinheriting of him, !
the said plaintiff, and to his damage, &c.
The defendant pleaded the general issue that
he did not commit waste, &c.
The cause was tried at the Washington Cir-
cuit, the 15th of June last, before Mr. Jttttife
Platt. At the trial the plaintiff exhibited the
will of the testator, which had Ix-en duly
proved and recorded in the Court of Common '
JOILNR. RKP., 12.
Pleas of Washington County, by which it ap-
peared that the premises descYibed were devised
to the plaintiff, and the defendant named sole
executor and trustee for the plaintiff, as stated
in the plaintiff's declaration.
The testator died in June, 1806. It was
proved that the defendant took possession of
the lands, &c., by virtue of the will ; and the
plaintiff was alxjut offering evidence of the
particular acts of waste committed by the de-
fendant, when it was objected that this action
would not lie against the defendant, he being
a trustee under the will, and not coming with-
in the provision of the Statute relative to waste.
The judge, without permitting the plaintiff
to proceed further, ordered him to be non-
suited ; to which the plaintiff submitted, with
leave to move the court to set aside the non-
suit, on a case to be made.
Mr. Z. It. Shepherd, for the plaintiff. 1. The
third section of the Act for Preventing Waste
(1 N. R. L., 62; sess. 10, ch. 6), declares:
" That any person may have a writ of waste
against him or her who holds by curteny, or
otherwise, forterm of life, or for term of years,
or other terra ; or a woman in dower, as well
as against a guardian." The defendant, by the
will of the testator, was a trustee of the e'state
of the plaintiff, until the latter arrived at the
age of twenty -one years. On the death of the
testator, the defendant entered into possession
of the estate. He must, therefore, be consid-
ered as a tenant holding for a term, that is.
until the heir arrived at full age, and as
answerable for the rents and profits. The case
clearly'comes within the mischief the Statute
intended to prevent. It cannot be tolerated,
that the defendant should commit waste with
impunity ; and it is no answer to say that the
plaintiff might have recourse to the Court of
Chancery. This *will not prevent him [*37O
from having his remedy at law. Again ; the
defendant is, by the will of the testator, ap-
pointed the guardian of the plaintiff, and is, in
effect, a guardian of his estate, though nomi-
nally a trustee.
2. The objection to this action appearing on
the face of the declaration, the defendant
ought to bave demurred to it, or moved in ar-
rest of judgment.
Metstir*. U/tamplin &nd Skinner, contra. It is
true that a motion in arrest would have been
proper ; but the plaintiff acquiesced in this
mode of taking advantage of the objection at
the Circuit.
[.>//•. Shepherd. I waive the second objec-
tion.]
This is not an action on the Statute, but at
common law ; if the party sues for the Statute
remedy, or triple damages, heoutrht to declare
on the Statute. If he does not, his rights must
be tested by the rules of common law. Now.
at common law. most clearly, the action of
waste lies only against tenants ; viz : a tenant
in dower, guardian in chivalry, and tenant by
the ourti-sy ; though, as to the latter, there
were great doubts, which, however, were re-
moved by the Statute of Gloucester (2 Inst.,
300. 801. 802 ; 2 Bl. Com., 281, 282 ; 7 Bac.
Al>r.. Waste, H). The common law of this
State is the same as that of England, in this
respect.
The defendant is so far from being a tenant
427
870
SUPREME COURT, STATE OF NEW YORK.
1815
that he is, rather, a principal or landlord. He
has the sole and exclusive use and management
of the estate, during the minority of the plaint-
iff. Why subject a trustee to the action of
waste, when a court of chancery affoi ds a more
easy and adequate remedy against him ?
The defendant has no power or authority as
a guardian ; nor can he exercise the rights of a
guardian. The plaintiff has chosen another
guardian, by whom he has brought the present
suit.
PLATT, J. , delivered the opinion of the court:
This is an action of waste, contra formam
statuti. The irregularity at the Circuit, in
directing a nonsuit, instead of putting the de-
fendant to his motion in arrest of judgment,
being waived on the argument, the only ques-
tion is, whether the defendant had such an
37 1*] *interest in the land, orstood in such a
relation to the plaintiff, as to make him liable
to this action, under the statute.
At common law, an action of waste lay only
against guardian in chivalry, tenant in dower,
and tenant by the curtesy ; and not against a
tenant for life or years. The reason for the
distinction was, that the estate of the three
former was created by the act of law, which,
therefore, gave a remedy against them ; but
tenants for life, or for years, came in by the
demise of the owner of the fee, who might have
provided against the committing of waste by
his lessee. (Co. Litt., 54 a.)
Our Statute for Preventing Waste (1 R. L.,
62), combines the provisions of the Statute of
Marlbridge (52 Hen. III., ch. 23), and the Stat-
ute of Gloucester (6 Edw. I., ch. 5), and gives
an action of waste and triple damages, and for-
feiture, " against him or her who holdeth by
curtesy, or otherwise, for term of life, or for
term of years, or other term, or a woman in
dower, as well as against guardians."
It cannot be pretended that the defendant
stands in the relation of guardian to the plaint-
iff. We have, therefore, only to inquire,
whether he is to be considered as holding "for
term of life, or for term of 3rears, or other term. "
Under the rules of construction applicable to
penal statutes, I think the defendant is not a
tenant, within the purview of the Act. By the
will of John Kincaird, the lands are devised in
fee simple to the plaintiff, an infant ; and the
testator then appoints the defendant trustee for
the plaintiff, of all the lands so devised, until
he shall arrive at full age.
This gave to the defendant the right to oc-
cupy and control the real estate during the
minority of the devisee, as trustee for the infant;
and, as such, he is under the general superin-
tendence and control of the Chancellor, and is
accountable, according to the rules which
govern trusts. He has no interest or estate in
the lands, in his own right, and may be devest-
edof the trust for incompetency, or other good
cause, at the discretion of the Chancellor.
The relation of landlord and tenant does not
subsist between the trustee and his cestui que
trust. Scott does not hold the lands under the
plaintiff, but for him.
Clifton's case, 5 Co., 75. is an exposition of the
English Statute, of which ours is a transcript;
and it was there ruled that " if a feme lessee
for life takes husband, the husband does waste,
428
*and the wife dies, the husband shall [*372
not be punished by this law ; for the words of
the Act be, 'a man that holds, &c., for life ;'
and the husband held not for life, for he was
seised but in right of his wife, and the estate
was in his wife." (2 Inst., 301 ; Co. Litt., 54 a.)
"But if a. feme be possessed of a term for years,
and take husband, and the husband cloth waste,
and the wife dieth.the husband shall be charged
in an action of waste ; for the law giveth the
term to him." (Co. Litt., 54 a.)
The forfeiture of the place wasted (given by
the Statute), implies that the person against
whom the remedy is given has an interest and
estate in the lands. Here the trusteeship was
not an estate, but an office merely ; and the
plaintiff is not entitled to the remedy given by
this Penal Statute.
Motion for setting aside the nonsuit denied.
Citedjn— 3 Abb., N. C., 346 ; 40 Mich., 541.
CUYLER, Assignee of EARLL, late Sheriff of
Onondaga,
v.
RUST, Survivor, &c.
Debtors — Imprisonment of for Coats — Discfiarye
under Statute.
Under the Act for the Relief of Debtors, with Re-
spect to the Imprisonment of their Persons (sess. 36,
ch. 81), a person in jail, on an execution for costs
only, not being1 a freeholder, was entitled to his dis-
charge at the expiration of thirty days.
But by the Act (sess. 36, ch. 203, sec. 49), this con-
struction of the Act for the Relief, &c., is expressly
done away.
Citation— Sess. 36, ch. 81, 203.
was an action on a bond for the liber-
ties of the jail of the County of Onondaga,
by the plaintiff, assignee, &c., against the de-
fendant, surety on the bond, for one Archelaus
Graves. The following case was agreed to by
the parties, and submitted to the court without
argument.
In August Term, 1812, a judgment for $36.-
33, of costs in the Supreme Court, was ob-
tained against Graves, in an action in which he
was plaintiff, and the now plaintiff, defendant.
In the same Term, the then defendant issued a
ca. sa. on the judgment, returnable the next
October Term, to the sheriff of Onoudaga, on
which Graves was arrested on the 2d of Sep-
tember, and a bond given for the jail liberties,
by Graves and the defendant Rust. Graves
was not, at the time of his arrest, or during
his imprisonment, a freeholder. At the expira-
tion of thirty days from the time of his com-
mitment, Graves departed from the jail liberties,
with the knowledge and consent of the deputy
sheriff, and never returned. If the court
should be of opinion *that the plaintitf [*373
was not entitled to recover, it was agreed that
judgment of nonsuit should be entered.
Per Curiam. By the Act for the Relief of
Debtors, with Respect to the Imprisonment of
their Persons (sess. 36, ch. 81; IN. R, L., 348),
it is enacted "That every person, not being a
freeholder, who shall be confined in jail upon
any execution, or other process, or by virtue of
'JOHNS. REP., 12.
1815
FLIKT v CLAKK.
873
any judgment, or order of any court of justice,
or by warrant from any judge or justice, for
any debt, sura of money, fine, or forfeiture,
not exceeding $'35, exclusive of costs, and sball
have remained in jail for thirty days, if not
detained for any other cause, shall be dis-
charged from such imprisonment," &c.
The only question is, whether Graves was a
prisoner within the purview of this section.
By tiie 49th section of the Act of 1813 (sup-
ply bill), BCSS. 36, ch. 203, it is enacted "That
nothing in the first section of the 'Act for the
Relief of Debtors from the Imprisonment of
their Persons' shall be deemed or construed,
to extend to imprisonment of the plaintiff, or
lessors of the plaintiff, for costs only, in any
suit hereafter to be brought."
This last Act is remedial and prospective;
but the escape insisted on in this case was prior
to it; and, therefore, not affected by it. This
last Act, however, is an implied exposition of
the first Act; and shows that, in legislative
construction, the first Act did limit the im-
prisonment to thirty days, in all cases of per-
sons in execution for costs only.
According to the spirit of the first Act (which
must govern this case), I think the prisoner
was entitled to his discharge at the expiration
of thirty days. Thi* being a case ofc personal
liberty, is one in which courts are least of all
bound by the strict letter of the Statute. The
intention of the Legislature was. manifestly,
this: that no person should be imprisoned
more than thirty days, for costs only; nor for
any sum of costs, together with debt or dama-
ges, not exceeding $25.
Let judgment of nontuti be entered.
374*] *DEBORAH FLINT t>. CLARK.
Arbitration — Submission under Seal — Amount
of Award to Apply on Note — Action for
Breach of Covenant — Pleading. •
Where, by an agreement, under seal, between A
and B, a controversy between them was submitted
to arbitration, and it waa agreed that the sum to be
awardcnl by the arbitrators, in favor of B. should
be credited on a note which A held against B, B
cannot maintain an action for a breach of coven-
ant in not cr. ait i ni.' the amount of the award on
the note, without averring1 that the note had been
assigned before it fell due.
The covenant and award operate as a receipt pro
ton/o of the amount of the note : and whenever the
balance should be paid, the note would, in judg-
ment of law. be satisfied.
rpIIIS was an action of covenant. The dec-
-L laration stated that on the 24th of Septem-
ber, 1803, articles of agreement were made and
sealed by the parties, by which the defendant
covenanted that the defendant, and one Cyrus
Clark, should submit a certain controversy,
between them and the plaintiff, concerning the
non-fulfillment of an agreement, before that
time made, between the defendant and Cyrus
Clark, and the plaintiff, respecting the build-
ing certain chimneys by the defendant and
Cyras Clark, for the plaintiff, to arbitration ,
and that whatever sum of money the arbitra-
tors should direct to be paid to the plaintiff,
for damages, as for the non-fulfillment of the
said contract, should be accounted for, can
JOHNS. REP., 12.
j celed and credited on a certain promissory
| note which had been given by the plaintiff to
j the defendant and Cyrus Clark, to procure the
\ settlement of a suit, instituted in the Supreme
I Court by the defendant and Cyrus Clark,
I against the plaintiff; the plaintiff then averred
i that the arbitrators were appointed, and that,
after hearing the proofs and allegations, they
awarded that the defendant and Cyrus Clark
should pay to the plaintiff the sum of $202.50,
of which the defendant and Cyrus Clark had
notice. The breach is then assigned in the
following words: "And the said plaintiff avers
that the said defendant did not cause, or pro-
cure the said sum of $202.50, or any pan there-
of, to be allowed, canceled or credited on the
aforesaid note so given to the said defendant
and the said Cyrus Clark, but hath hitherto
wholly refused and neglected so to do; nor
has the said defendant, and the said Cyrus
Clark, in any way paid or satisfied the said
plaintiff, the said sum of $202.50, or any part
thereof, but on the contrary thereof, "&c.
The defendant prayed oyer of the agree-
ment, and demurred generally. The agreement
was in the following words: "Canajohary,
24th of September, 1803. This may certify,
that the business of prosecution in the Su-
preme Court, wherein Cyrenus Clark and Cy-
rus was plaintiffs, and Deborah Flint defend-
ant, is settled by the defendant securing the
plaintiffs by a promissory *note ; and f*37f>
further, the plaintiffs do agree to settle with
the defendant, by way of arbitrament, the
building of the chimney, wherein the plaint-
iffs is charged to make them good ; provided
also, said arbitrators, indifferently chosen by
the parties, should award in favor of said
Deborah Flint, the said sum is to be canceled
on a promissory note above mentioned."
The cause was submitted to the court with-
out argument.
PLATT, .J, delivered the opinion of the
court.
I think the demurrer is good ; for, allowing
all the averments in the declaration to be true,
the plaintiff is not entitled to recover. The
covenant, as set out in the declaration, does
not bind the defendant to do any act : he did
not engage to indorse a receipt on the note for
the amount of the award. It was an agree-
ment by one of the joint creditors of the
plaintiff" that the sum to be awarded should
be deemed a payment pro tanto on the note ;
and that the plaintiff should have the full ben-
efit of it, as a part satisfaction of the note. All
the right and benefit which accrue to the
plaintiff, from the covenant, are, that upon
his paying the balance of the note, over and
above the sum awarded to him, the note is, in
judgment of law, satisfied.
It must be presumed (because the contrary
is not averred) that the note still remains in
the hands of the original payees ; and if so,
the plaintiff has sustained no injury.
The covenant and the award operate like a
receipt, whereby the defendant acknowledges
HO much paid on the note ; and it is enough
for him, tbat when payment of the note is de-
manded, he can protect himself pro lanto,
under the agreement and award. There can
be no doubt that the agreement, in this sense,
429
375
SUPREME COURT, STATE OF NEW YORK.
1815
is binding upon Cyrus Clark, as well as the
defendant.
If the declaration had averred that the note
had been assigned before it fell due, then it
would have shown a right of action in the
plaintiff ; because he would have thereby lost
the benefit of the payment under the award.
There must be judgment for the defendant
on the demurrer.
Let tfte plaintiff amend, &c.
Cited in-6 Wend., 296 ; 24 N. Y.. 391.
376*] *DENNISTON v. COOK.
Wager — On Event of Election is Void — No Ac-
tion will Lie on, Check G-iten.
A and B, being qualified electors for Governor, a
few days before the polls were opened, laid a bet on
the event of the election for Governor, and depos-
ited their respective checks on the Bank for the
amount, payable the 1st of June, with a stake-
holder.
When the result of the election was generally
known, but before the official canvass of votes was
declared, B, supposing1 the wager lost, withdrew all
his money from the Bank ;, and his check, which
had been delivered over by the stakekolder, after
the official canvass, to A, on being presented at the
Bank, was refused payment. In an action brought
by A against B, to recover the amount of the check,
it was held that the contract being illegal, no ac-
tion would lie on the check given for the wager,
nor for money had and received to the plaintiff's
use.
Citations— 4 Johns., 426 ; 12 Johns., 1.
THIS was an action for assumpsit, to recover
the amount of a check on the Bank of
Albany, for $200.
A few days before the election of Governor,
on the last Tuesday of April, 1813, the plaint-
iff and defendant deposited with J. Alexander,
their respective checks on the Bank, for $200
each, dated the 24th of April, and payable on
the 1st of June then next, to abide the deter-
mination of a wager on the election; the terms
of which, as stated by the witness, were that
the defendant bet $100 with the plaintiff that
Stephen Van Ilensselaer would have a major-
ity of 5,000 votes over Daniel D. Tompkins ;
and another $100, that Stephen Van Rensse-
laer would have a majority of votes over Dan-
iel D. Tompkins. On the official canvass of
the votes for Governor being made known,
Alexander was to deliver the checks to the de-
fendant, in case S. Van Rensselaer was elected
Governor by a majority of 5,000 votes ; or to
the plaintiff, in case Daniel D. Tompkins was
elected ; but if S. Van Rensselaer was elected
by a majority of votes less than 5.000, the
check of each party was to be returned to him.
About the middle of May, and before the
official canvass of votes was published, but
after it was well known, from public inform-
ation of the result of the canvass, how the
election had terminated, the defendant gave
Alexander notice not to deliver up his check
to the plaintiff. But immediately after the
result of the canvass was officially announced
to the public, and D. D. Tompkins was de-
clared to have been elected Governor, Alex-
ander, on being indemnified by the plaintiff,
delivered the checks to him.
NOTE. — Wager — On event of an election void. See
Yates v. Foot, ante, p. 1, note.
430
At the time the wager was laid, the defend-
ant had deposited in the Albany Bank more than
$200, and such deposit continued until after
the result of the election was generally known,
but before it was officially declared ; and the
defendant withdrew the deposit, expressly for
the purpose of defeating the payment of this
check, alleging that he had laid the bet as the
agent of a third person, who had refused to
assume it. *When the check was pre- [*377
sented by the plaintiff at the Bank, payment
was refused for want of funds.
It was agreed that if the court should be of
opinion that the plaintiff was entitled to re
cover, the defendant should give a cognovit
actionem for $200, on which judgment should
be entered; otherwise, a judgment of nonsuit
was to be entered.
Mr. Van Vechten, for the plaintiff, relied on
the case of Yates v. Foot, ante, p. 1, decided
in the Court of Errors.
Mr. Hale, contra, insisted, that the wager
was illegal and void, and cited Sunn v. Hiker,
4 Johns., 426, and Lansing v. Lansing, 8 Johns.,
454.
SPENCER, J., delivered the opinion of the
court :
The case does not state the particular counts
contained in the declaration, It is presumed
there are counts on the bet, and for money had
and received.
It was admitted, on the argument, that the
plaintiff had the qualifications of an elector of
Governor. This admission is decisive against
the action upon the wager. It was held, in
Bunn v. Hiker, 4 Johns., 426, that where either
of the parties was an elector, the wager was
illegal, on the ground that it was corrupt, and
against the fundamental principles of the Con-
stitution.
I can perceive no ground for the argument
that the money which the defendant had in
the Bank of Albany is to be considered as the
plaintiff's money. There was no appropria-
tion of this money, either by the Bank, or the
defendant, to the plaintiff's use; and, before
the plaintiff had a right to demand the sum
won, the defendant had withdrawn bis de-
posit from that Bank. From what motive this
was done, is immaterial ; it was not, in any
sense, the plaintiff's money.
It appears to me to involve an absurdity to
say that the plaintiff can maintain this action
as for money had and received, when, con-
fessedly, he cannot sustain an action upon the
check which the defendant gave to him ; on
the ground that it is void, as being an illegal
transaction. This case is very different from
that of Foot v. Yates, in error. There, the
party who had lost the bet sought to recover
against the stakeholder ; here, the party win-
ning the bet seeks to recover on the ground of
the wager. It is very difficult, from the man-
ner of deciding cases *in the Court for [*37&
the Correction of Errors, to ascertain the pre-
cise principle adopted by the court. The only
opinion reported in the case is that of Sanford,
Senator. Whether that was adopted by the
majority of the members is uncertain. " The
substance of his opinion is, that courts ought
not to entertain suits, in such a case, either by
the winner or loser ; and, so far as respected.
JOHNS. REP., 12.
1815
TYI.ER v. OLNEY.
878
the loser, he considered the contract executed,
and he applied the maxim fieri non debet, xd
factum rout.
It may be confidently affirmed that no prin-
ciple was adopted, in that case, which coun-
tenances the present action.
Judgment for the defendant.
Cited ln-1 Denio. 560; 4 Barb., 538.
TYLER t>. OLNEY.
Practice injustice Courts-Defendant MMeadby
Justice.
It a Justice mislead a defendant, by informing
him that the cause was discontinued, mxl after-
wards >n v<- judgment against him in his absence,
the judgment will be reversed.
N ERROR, on certiorari to a justice's court.
I
A summons was issued in the court below,
at the request of Mr. Cone, as attorney for Ol-
ney, the plaintiff below. The consta'ble who
served the summons informed the justice, at
the time of the return, that the cause would
be discontinued, which the justice noted upon
the back of the summons. About this time,
or soon after, one Elijah Durand appeared in j
behalf of the defendant, and inquired if the
cause would be called, when the justice in-
formed him of what the constable had stated,
and showed him the indorsement made on the
summons. Durand produced no power of at-
torney, nor alleged that he had one ; nor did
the justice ask for one. After Durand was
gone. Cone appeared in behalf of the plaintiff,
and demanded that the suit should go on, and
denied that he had given the constable any
orders to say that the suit would be discon-
tinued. Upon explanation with the constable,
it appeared that there was a mistake as to the
suit in which the order was given. The justice
proceeded to trial, and gave judgment for the
plaintiff.
Per Curiam. It would be the height of in-
justice to sustain this judgment. It may be
questioned whether the suit was not discon-
tinued and out of court ; but if not, the jus-
37J)*1 lice was bound *to postpone the trial,
as he had a right to do, not exceeding six
days, he having misled the defendant. Wheth-
er'Durand was authorized to appear, was not
made a question ; the justice recognized him
as the agent or attorney of the defendant ; if
he had disputed his authority, he should have
required the proof it. The judgment must be
reversed.
Judgment reverted.
GRIFFITH
THE ADMINISTRATORS OF KETCHUM,
late Sheriff of Saratoga.
Sheriff — Upon Execution may Pay Rent in Be-
half of Plaintiff— Return on Execution it
Pnma Facie True — Mutt b« Conttrued at a
Whole.
In an action of <j«wmix»tf for money had and re-
ceived, against the administrator of a sheriff, to re-
cover the a mount collected by the intestate on an
JOHNS. REP., 12.
execution in favor of the plaintiff ; it appearing
from the return, indorsed by the sheriff on the /I.
«i. that he hud paid part of the sum levied "to M.
., for five and a half months' rent due, and c-o-ts,
demanded by her attorney," lie.; it was held that
the return must l>e taken to In- true, and the whole
construed together : and that the rent being due,
and notice to the plaintiff of the claim for rent to
be presumed, the sheriff must be deemed to have
paid tlie i-ent, in hi* behalf and for hia benefit, and
that the plaintiff wan, therefore, entit!«-d ton-cover
no more than the residue of the sum levied, after
deducting the amount paid by the sheriff for the
rent In arrcar.
Citations— 1 N. R. L.. 437. sec. 12; 1 K. 4 R. edit..
137 ; Stat. 8 Anne. ch. 14. sec. 1 : 1 Str.. 97, 212.
THIS was an action of ansumpnt, for money
paid, money lent, and money had and re-
ceived, &c., by the intestate, in liis lifetime, as
sheriff. &c. The defendant pleaded non <u-
sumpxit, with notice of set -off, &c. The cause
was tried at the Saratoga Circuit, on the 2.5th
of May, 1818. The plaintiff gave in evidence
a judgment against one Lujussee, in favor of
James Fellows, who assigned it to the plaint-
iff, who caused nji. fa. to be issued thereon,
directed to the intestate, then sheriff of the
County, who returned the same with the fol-
lowing indorsement : "By virtue of the with-
in execution, I have received of the defendant,
and caused to be made of his goods and chat-
tels, in all, the sum of $52.03; $23. 37* of which
I have paid over to Maria Nobles, for five and
a half months' rent due, and costs demanded
by her attorney ; $6.40 of which has been re-
covered of me by S. Drake and Samuel
Haight, on account of the sale of the property
of the defendant ; and the residue of the said
sum of $52.03, deducting therefrom $2.49, for
my fees. I have caused to be tendered to the
plaintiff's attorney, and have rendy in court,"
&c. A verdict was taken for the plaintiff for
$52.03, subject to the opinion of the court on
a case as above stated.
Mr. Buel, for the plaintiff, contended that
the return of the sheriff was conclusive. It is
parcel of the record ; and the only way
*of impeaching it is by an action for a [*38O
false return. (2 Saund., 344. n. 2 ; Str., 813 ;
Com. Dig.. Return, F, 2.) The return is the
solemn act of the officer, and binding on him
and his representatives. There is nothing in
the return which shows that any rent was due.
The statutedoes not authorize the sheriff to
pay the rent. He is bound only not to remove
the goods, until the plaintiff pays the rent.
The return ought to state the facts with pre-
cision, so as to enable the court to decide
whether there has been more paid by the
sheriff than the plaintiff was bound to pay.
The landlord is not entitled to the rent of the
current quarter, but only to the end of the la>t
quarter preceding the seizure by the sheriff
(Hazard v. Raymond, 2 Johns., 478). who, with-
out a notice from the landlord of the precise
sum due for rent, is not bound to leave any of
the goods for the purpose of discharging the
rent in arrear. (11 Johns., 185.) There is
nothing in the return to authorize a deduction
from the amount of the verdict. Where the
sheriff returns that he has levied on goods to a
certain value, he is answerable for the amount.
(2 Ld. Raym., 1075 ; 2 Saund., 348, 844, n. 3.)
Mr. Foot, contra, insisted that the return
was substantially good, and sufficiently par
431
380
SUPREME COURT, STATE OP NEW YORK.
1815
ticular ; and that the sheriff was justifiable in
paying the rent ; for, after notice of rent be-
ing due, he is liable for it, if he remove the
goods before it is paid. (Palgmve v. WyiidJiam,
1 Str., 212 : Com. Dig., Rent, D, 6.)
THOMPSON, Ch. J. This is an action for
money had and received to the use of the
plaintiff ; and the only evidence relied
upon in support of the action is the re-
turn made by the intestate upon an
execution put into his hands, as sheriff of
the County of Saratoga. This return is spe-
cial, admitting that he had received, upon the
execution, $52, out of which he had paid for
rent due and demanded $23.37 ; and the only
question is, whether the sheriff is to be allowed
for the rent thus paid. The Statute (1 N. R.
L., 437, sec, 12) directs that no goods or chat-
tels upon the demised premises shall be liable
to be taken by virtue of an execution, on any
pretense whatever, unless the party at whose
suit the execution is sued out, shall, before the
removal of the goods, pay the rent due, pro-
vided it does not exceed the rent for one year.
As the plaintiff has relied entirely upon the
return made by the sheriff, the whole return
must be taken together together. The plaint-
iff will not be allowed to adopt such parts as
make in his favor, and reject the residue. If
lie did not choose to admit the truth of the
381*J *whole return, he should have sup-
ported his action upon other proof. This re-
turn is made under the sheriff's oath of office,
and is certainly to receive as liberal an inter-
pretation as the bare confession of a party ;
and it is an invariable rule of evidence, that a
whole confession is to be taken together, as
well that which is in favor of, as that which
is against the party. This return states ex-
pressly that the rent was due, and this fact is
not pretended to be denied ; and it is no more
than reasonable to presume that the plaintiff
had notice of this claim for rent. But, whether
he had or not, is immaterial in this case.
He has waived all objection on this ground,
by ratifying and affirming the sheriff's return.
The sherTff having had notice of the claim
for rent, was, by the statute, prohibited from
removing any of the goods, until the plaintiff
in the execution had paid the rent due. The
sheriff must be considered as having paid this
rent in behalf of the plaintiff ; and the plaint-
iff, by adopting the return, as to the receipt of
the money, must be deemed to have adopted
it as to the appropriation, so far as there was
a legal liability on the part of the plaintiff to
pay ; and by the statute, he was clearly liable
to pay the rent, it being for less than one year.
The payment of the rent was for his benefit,
as the sheriff's hands were tied up until it was
paid ; and it would be extremely unjust to
allow the plaintiff to avail himself of the sale
under the execution, and reject the paymant
of the rent. He sustains no injury thereby,
for no more is allowed than he himself would
have been obliged to pay, before he could have
availed himself of his execution. The sheriff
did not, therefore, receive for the use of the
plaintiff any more than the surplus after pay-
ing the rent, if the whole return on the execu-
tion is taken together ; and if the plaintiff will
rely upon the return alone, the whole must be
432
taken into consideration. The sheriff allowed
for the money paid on account of the rent,
which the plaintiff was, by the statute, bound
to pay. The judgment must accordingly, be
for the sum of $28.63.
SPENCER and YATES, JJ., of the same
opinion.
PLATT, J. The question presented is, wheth-
er, upon the return of the sheriff without any
explanation, the defendants are *liable [*3812
for the whole amount levied on the/, fa., or
for what other sum.
The sheriff's return is to be received as true
in all its parts ; it being the only evidence on
which the plaintiff's claim is founded.
With regard to the rent; it must be assumed
as true that the sheriff paid it to the person to
whom it was due ; and as to the costs, the
sheriff paid what was "demanded" by the at-
torney of Maria Nobles. What proportion of
the $23.374 w&8 paid for rent, and how much
of it for costs, we are left to conjecture.
The law did not require, nor authorize the
sheriff to make such payments, without the
plaintiff's direction or consent.
The return does not assert enough to show
that the sheriff was warranted in paying the
rent and costs ; because it does not state that
the plaintiff was privy, or assenting to such
payment ; nor does it state that the rent was
due on the premises where the sheriff seized
the goods of Lajussee. It might have been
for rent due on other lands. Whether the
costs paid by the sheriff had any relation to
the rent, no explanation is given ; but suppos-
ing them to have accrued in the regular course
of collecting the rent, by what law had the
landlord a lien for those costs, in preference to
the/, fa. of another creditor?
The costs seem to have been paid by the
sheriff, because they were "demanded by the
attorney of Maria Nobles." The return does
not state the amount of the costs, nor the name
of the attorney who received them.
The sheriff is a receiver appointed by law,
without special confidence reposed in him by
the individual creditor ; and to allow him to
shield himself by such a vague and indefinite
return, or to impose upon the creditor the ne-
cessity of unraveling the mystery, and detect-
ing the falsity of the return, would greatly les-
sen the accountability of that officer, and im-
pair the rights of creditors.
To protect himself against paying over the
money, which, he admits, he received on the
fi.fa<., the sheriff is bound to show all the facts
required to warrant another appropriation of
that money.
Suppose a person should write to me, stat-
ing that he had received, for me, $100, due to
me from A, and that he had paid it, in satis-
faction of a debt due from me to B, would
not *the receiver, on this evidence [*383
alone, be compellable to pay me the $100 ?
The whole confession is to be taken together ;
and then it appears that he received my money,
and that he paid my debt, without showing
any authority for making such appropriation.
The sheriff's return is to be regarded as a
confession, or declaration, of several distinct
independent facts ; and that same legal con-
JOHNS. REP., 12.
1815
BROWN v. COWELL.
383
sequences result from those facts, as if they
were proved bv witnesses. Suppose, then,
that the plaintiff had proved, by a witness, the
first fact, viz : the receipt of the money by the
sheriff, on the execution ; and the defendant
had then proved, by a witness, the other fact,
viz : that he had paid part of the money for
"rent due," and for "costs demanded," with-
out further explanation; would not the sheriff,
on such proof alone, be held liable for the
whole sum collected ?
At common law there was no lien for rent
in preference to &fl,fa.; and the Statute (1 K.
& R. edit., 137) enacts "That no goods shall
be taken on execution, unless the party, at
whose suit the said execution, is sued out,
shall, before the removal of such goods, by
virtue of such execution, pay to the landlord
of the premises all money due for rent ; pro-
vided the arrears of rent do not amount to
more than one year's rent ; and the sheriff is
required to levy and pay to the plaintiff, as
well the money so paid for rent as the execu-
tion money." "
Under this Statute, the sheriff was not bound
to pay rent to the landlord, on executing the
'i. fa. The injunction of the Statute is merely
against the removal of the goods, until the
judgment creditor shall pay the rent.
By the expositions of this Statute, which is
.a copy of the Statute of 8 Anne (ch. 14, sec.
1). it is settled that the landlord is bound, in
such cases, to give notice of bis claim for rent,
before the goods are removed from the leased
premises. (Waring v. Dewberry, 1 Str., 97.)
It does not appear that any such demand
was made in this case, before the goods were
sold and removed ; and if such demand had
been made, it would have been the duty of the
sheriff to stay the sale, and give notice of such
•demand to the plaintiff in the suit; and it was
for the plaintiff, on notice, to contest the claim
for rent, or to pay it, at his election.
It does not appear that the plaintiff bad any
such notice in this case ; nor does it appear
whether the sum paid was for one year's rent.
JJ84*] *or for seven years' rent ; and from
the return alone, we are to presume that the
sheriff acted without direction from the plaint-
iff, as to-the rent; and, therefore, he paid it
in his own wrong.
The sheriff cannot, by a voluntary payment
• of rent, conclude the rights of the creditor.
It would have been a good return, that he had
seized the goods, but could not proceed to a
sale, for that the landlord had demanded rent
pursuant to the Statute ; and that the plaintiff
was not there ready to pay. (Palgrave v. Wind-
ham, 1 Str., 212.)
As to the money stated to have been recov-
ered of the sheriff by Drake and Haight, the
return is altogether vague and uncertain. It
does not appear that the sheriff had been sub
jected to that payment by any act or interfer-
ence of the plaintiff ; nor does it appear that,
in making this payment, he acted with the
privity or assent of the plaintiff.
The fees for executing thefi.fa. ($2.49) were
rightfully deducted by the sheriff; and my
(•< inclusion is, that the plaintiff is entitled to
judgment for the balance of the whole sum
levied, after deducting those fees ; to wit: for
$49.54
JOHNS. RKP., 12. N. Y. R.. 5. 23
VAN NESS, «/"., was of the same opinion.
Judgment for the plaintiff for $S8.QS only
BROWN t>. COWELL.
Practice in Justice Court — Witneste* Privately
Re-examined by the Jury.
A witness may be privately re-examined by the
Jury, after they have retired with the consent of
the part i. s.
If an improper question has been put to a wit-
new, and answered, but which is immediately cor-
rected by the justice, the judgment will not be re-
versed on that account.
IN ERROR, on certiorari to a justice's court.
After the jury, in the court below, had re-
tired, they sent and requested leave to examine
Briggs, one of the witnesses. The justice ap-
plied to the parties to know if they would
consent to his being examined, to which they
agreed, and the justice went with the witness
into the room where the jury were. Whether
the parties went with them or not, did not ap-
pear. One of the jurors asked the witness if
Kinney, who had testified on the same trial,
had not sworn false on some former trial ; to
which the witness immediately answered in
the affirmative. The justice *then [*385
immediately told the jury that the question
was improper. The jury then inquired as to
the general character of Kinney, for truth
and veracity, and the witness answered that
it was not good ; upon which the justice and
witness retired, and the jury found a verdict
for the plaintiff.
Per Otiriam. This judgment must be affirmed.
The admission of the witness to be re-examined
privately, by the jury, would have been im-
proper, had not the parties consented to it.
And although the question put by the juror
was improper, the answer was given before
the justice could correct it, and he did every-
thing that he could do, by telling the jury
that the evidence was improper. Besides, the
parties, having consented to the examination,
ought not now to be permitted to object to
what took place upon such examination.
Judgment affirmed.
Cited lu-44 Wls.. «14; 2 Allen, 106.
GILL v. BROWN.
Officers — Personally Liable on Ejcprcss Promite
Though for the Public.
A public officer is liable on his express promise to
pay for service* rendered to government.
where a Quartermaster of the I'nited States hav-
ing obtained possession of a boat which had been
seized by a Collector, and used her in the public ser-
vice, agreed if the owner would obtain possession of
the boat from the marshal, that he would purchase
her and pay him for the previous use of her, and the
owner accordingly got possession on paying tin-
marshal $400, and the other party purchased the
boat and paid for it : it was held that he was per-
sonally liable on his promise for the hire of the boat,
and that the promise was founded on a good con-
sideration.
NOT*.— Puhlic officers— Pennnal liability of on
(ontractH. See. generally, Henderson v. Brown, 1
Cat., 82, note; Seaman v. Patten, 2 Cal., 312, note ;
Yates v. Lansing, 9 Johns.. :»">, note; Wallsworth v.
M'Cullough, 10 Johns.. 98. note.
The question in, whether the officer contracted as a
488
385
SUPREME COURT, STATE OF NEW YORK.
1815
Citations— 3 Cai., 72 ; 1 Brown's Ch., 101, note ; 1
Cranch. 363.
was an action of assumpsit brought to
regover compensation for the use of a cer-
tain vessel or schooner, called the Gold Hunter,
formerly belonging to the plaintiff. The cause
was tried at the Jefferson Circuit in June, 1813,
before Mr. Justice Spencer.
The defendant was, in the summer and
autumn of 1813, a deputy Quartermaster-Gen-
eral, in the service of the United States. The
vessel in question had been seized by the Col-
lector of Oswego, and the defendant obtained
possession of and used her, without the con-
sent either of the Collector or plaintiff for the
service of the United States in transporting
troops, provisions, &c. Afterwards in Sep-
tember, 1813, it was agreed between the plaint-
iff and the defendant that if the plaintiff would
obtain possession of the vessel from the mar-
shal of the United States, the defendant would
386*] purchase her at the appraisal of *men,
and would also pay him for the previous use
of the vessel, The plaintiff accordingly pro-
cured the vessel to be delivered over to him
on paying the marshal $400 ; she was then ap-
praised at $1,233.33, which sum was paid by
the defendant. The jury, by the direction of
the judge, found a verdict for the plaintiff,
subject to the opinion of the court.
Mr. Storrs, for the plaintiff, contended that
the defendant was personally responsible on
this contract, in his individual capacity. The
case of Sheffield v. Wateon, 3 Caines, 69, is in
point, to show that a government agent,
though contracting for things for the use of
the government, will be personally liable on
his contract unless he makes it in his official
character. In this case nothing was said as to
the character of the defendant, or who was to
Eay. There is no evidence that the plaintiff
>oked to the government for payment.
Further; it appears that here was an ex-
press promise by the defendant to pay. He
agreed that if the plaintiff would obtain pos-
session of the boat, he would purchase her,
and also pay the plaintiff for the previous use
of the boat.
Again ; the defendant in agreeing to pay for
the previous use of the boat, went beyond the
scope of his authority as a public agent, and
must, therefore, be personally responsible.
Mr. Benedict contra, contended, 1. That
the defendant being a known public agent, and
making this contract for the use of the gov-
ernment, was not answerable in his individual
capacity. The case of Sheffield v. Watson was
not intended to shake the English authorities.
(Bro., ch. 101; 2 Str., 915 ; 1 T. R., 172, 674 ;
1 East, 135, 579 ; 3 Wils., 149.) And in the
case of Hodgson v. Dexter, 1 Cranch, 345, the
Supreme Court of the United States expressly
recognized the principles laid down in Mac-
beath v. Haldimand, IT. R., 172.
A public agent, known to be such, is not per-
sonally answerable unless he expressly con-
tracts in his individual capacity. This must
be clearly made to appear to show that the
party intended to look to the individual or
agent, and not to the government.
2. The promise in this case was without con-
sideration. The only consideration shown
was, that the boat had been used the preced-
ing summer, in the service of the government.
If it *had been in the service of the [*387
defendant himself, it would have been a past
consideration. (2 Str., 933; 5 Johns., 272; 7
Johns., 87.)
THOMPSON, Ch. J., delivered the opinion of
the court :
This is an action of assvmpsit to recover com-
pensation for the use of the schooner Gold
Hunter belonging to the plaintiff. The vessel
was, in point of fact, employed in the service
of the United States ; and the only question in
the case is, whether, under the circumstances,
the defendant is personally responsible. It was.
matter of general and public notoriety that the
defendant was a Quartermaster acting in behalf
of the United States. Whether, in this par-
ticular case, he contracted in that capacity, is
the point under consideration. There can be
no doubt that an agent may make himself per-
sonally responsible, if he is willing, and will
undertake so to do ; and it is equally clear,
that if an agent means to incur no personal
responsibility he must act within the scope of
his authority, so as to give a remedy against
his principal.
From the facts in this case, it appears that,
the schooner had been seized by the Collector,
previous to her being employed in public
service, and was taken by the defendant with-
out the consent either of the Collector or the
plaintiff and put it into public service in
April, 1813. In September following the de-
fendant agreed with the plaintiff that if he
would get the vessel into his own possession,
exonerated from the seizure, he, the defendant,
would purchase her at the appraisal of men,
and would pay him for her previous use in the
service of the United States. The plaintiff
accordingly, on paying $400, procured the
schooner discharged from the claim growing
out of the seizure, and she was delivered to the
defendant at the appraisal ; and the claim now
is for the use of the vessel according to the
defendant's promise. Here, then, is an ex-
press promise by the defendant to pay, and
made under such circumstance as renders him
personally responsible. There is nothing in
the case showing that it was the understanding
of either party that the plaintiff was to look to
the government for payment. The simple
facts that the defendant was Quartermaster,
and that the services performed were for the
United States, were not sufficient when op-
posed to the express and unqualified promise
of the defendant to exonerate him from per-
sonal liability.
388*] *In the case of SJuffield v. Watson, 3
Caines, 72, the court say it is not enough that
public agent or a private person. Sheffield v. Wat-
son, 3 Cai., 69; OIney v. Wickes, 18 Johns., 122;
People v. Van Wyck, 4 Cow., 260 ; Osborne v. Kerr,
12 Wend.. 179: Nichols v. Moody, 22 Barb., 611;
Holmes v. Brown, 13 Barb., 599 ; Fox v. Drake, 8
Cow., 19i: Murray v. Kennedy, 15 La. Ann., 385.
Contracts made by a public officer within the, scope
434
of his authority, are presumed to be made in his offi-
cial capacity, unless the contrary appears. Walker
v. Swartwout, post, 444 ; Sheffield v. Watson, 3 Cai..
69; People v. Vilas, 36 N. Y., 459; Cook v. Irwin, 10
Serg. & R., 492; Sanborn v. Neal, 4 Min., 126 ; Parks
v.Ross, 11 How., 362; Stone v. Mason, 2 Cranch, C.
C., 431. But see Swift v. Hopkins, 13 Johns.. 313.
JOHNS. REP., 12.
1815
JACKSON. EX DEM., v. BABCOCK.
388
the plaintiff knew the defendant to be a public
agent and that the frigate built by the plaintiff
was to be a public vessel ; but it should ap-
pear that the defendant contracted in his of-
ficial capacity and on account of the United
States, and that the plaintiff gave credit to and
intended to look to the government alone for
compensation. If the principles of this case
be adopted the defendant is clearly liable;
and, indeed, the present is a much stronger
case, for here is an express promise to pay.
An examination of this class of cases will
show that they all turn upon the quesstipn, to
whom was the credit intended to be given ?
The reasoning of the court in Gotten v. fyueen»-
bury, 1 Brown's Ch. Rep., 101. note, shows
pretty strongly the injustice and unfltness of
too hastily listening to an objection like the
present, and turning round the party from
the person with whom he contracted to those
he may choose to set up as his principals. In
Hodgson v. Dexter, 1 Cranch, 363, it is stated
and admitted by the counsel on both sides to
be a question of intention ; and the court rec-
ognize that position as correct, and they go
into an examination of the circumstances to
ascertain the intention, and observe that the
whole agreement manifests, very clearly, a con-
tract made entirely on public account without
a view, by either party, to the responsibility of
Dexter ; and this will be found to be the prin-
ciple which runs through all the cases in the
English courts on this subject.
Independently of the express promise made
by the defendant, this case furnishes other
strong circumstances to show that he ought to
be personally responsible. The schooner was
taken out of the possession of a public officer
of the United States. For what cause she had
been seized does not appear ; and it is very
questionable whether the government would
have considered themselves bound to pay for
the use of the vessel whilst under this seizure.
This, at least, was so doutful that it is not very
probable the plaintiff meant to look to the gov-
ernment ; nor does the manner in which this
vessel was taken, without the permission of
either the Collector or the plaintiff, appear to
have been within the scope of the defendant's
authority as a public agent; and if not, the act
might not have been sanctioned by the gov-
enrhent, nor the defendant's promise ratified
and performed. No objection growing out of
,'*8i>*] the Statute of *Frauds can be raised
against the right of recovery. If the defend-
ant is personally responsible there was a suf-
ficient consideration to support the promise.
The plaintiff procured the vessel to be dis-
charged from the claim of the United States
by virtue of the seizure, for which he paid
$400; and this was done in pursuance of, and
according to the contract between the parties.
Here was, then, an actual loss to the plaintiff
in consequence of the defendant's promise and
as the {consideration therefor, which is suffi-
cient to support the promise, whether the de-
fendant received any personal benefit or not.
In whatever point of light, therefore, the case
is considered, the plaintiff is entitled to judg-
ment.
Judgment for the plaintiff.
Cited in- 12 Johns., 44«; 18 Johns., 125 ; 22 Barb.,
814.
JOHNS. REP., 18.
JACKSON, EX DEM. HEURICK ET A.L.,
«.
BABCOCK.
1. Ante-Nuptial Contract 2. WiU»—ffo Tech-
nical Words NetMtary to Devise Fee — May
be Construed in Connection with other Writ-
ing* to which it Refers.
Before marriage, husband and wife bad entered
Into a written contract, by which they agreed that
neither would alien the property then ponaeesed
by them ; and when their marriage should take
place, their property, of every description should
forma joint fund; and that, on the dMHMB of either,
the survivor should possess and enjoy the whol<- of
such Joint property then remaining, or which might
have been acquired by their mutual exertions.
The husband, by his last will, after giving a small
pecuniary legacy to each of his children, by name,
devised us follows : "I give, &c.. to my wife. M. B.,
after payment of my debts and funeral clnirgc-*. nil
my estate, both real and personal, that I may be in
possession of at my decease, to be at her absolute
disposal, according to an agn>ement made and en-
tered Into with her on the 27th of October, IHtti.and
previous to our marriage : it being my intention, if
my said wife shall die before me, that my real and
personal estate shall be equally divided among my
said children, their heirs and assigns."
The wife, having survived her husband, died in-
testate, and without issue. It was held that she took
an estate in fee. by the devise of her husband. No
technical words are necessary to devise a fee. The
words "all my estate, both real and personal, to be
at her absolute disposal," are sufficient to carry a
fee.
Since the Statute of Wills, as well as before, a
will may be construed in connection with another
instrument of writing to which It refers.
Citations— 10 Johns., 148 : 2 Johns., 391 ; Powell on
Devises 22, 49, 52.
rpHIS was an action of ejectment, for a lot of
-L land in Westmoreland, in Oneida County.
The lessors of the plaintiff were the children
and heirs at law of John Herrick, who died
seised of the premises in question ; and by
his last will and testament, dated the 17th Oc-
tober, 1811, after devising to his nine children,
by name, five sons and four daughters, goods,
&c., to the amount of $15 each, devised as fol-
lows : "I give, «fcc., to my wife, Mary Bates,
after payment of my debts and funeral charges,
all my estate, both real and personal, that I
may be in possession of at my decease, to be
at her absolute disposal, according to an agree-
ment made and entered into with her on the
27th day of October, 1802, under the name of
Mary Bates Hills, and previous to our mar-
riage ; it being my real intention, that if my
said wife shall decease 'before me, [*3i)O
that my real and personal estate shall be equally
divided among my said children, above men-
tioned, their heirs and assigns. ' The testator
appointed his son (John) executor, and his
wife, Mary Bates Herrick, executrix of his will.
The contract, or agreement, referred to in
the will, between the testator and Mary Bates
Hills, previous to their intermarriage, after
some introductory clauses, and mutual prom-
ises of marriage, as soon as convenient after
the execution of the contract, was as follows :
"The parties further promise and engage, each
to the other, that in consideration ofthe many
kind offices which they may, in the course of
Divine Providence, be called on to render and
perform, each to the other, during the re-
maining part of their journey through life, that
neither of the contracting parties shall, or will,
in any way, or manner whatever, alienate of
485
390
SUPREME COURT. STATE OP NEW YORK.
1815
dispose of any part of the property which they
now possess or may acquire, to the detriment of
the other ; but that, whenever their persons
are united, according to the law of God, and
the land, their property, of whatever name or
nature, shall form a common fund, to meet
the various contingences of life ; and that, on
the decease of either, the survivor shall possess
and enjoy the whole of such joint property, as
may then remain, or have been acquired by
their mutual exertions." "And lastly, the
parties hereunto do freely and voluntarily pre-
clude themselves from all, or any power, right,
or authority, in any way or manner whatso-
ever, to make any disposal of the property
aforesaid, other than is above stated." Soon
after the execution of this contract, the par-
ties intermarried. Herrick, the testator, died
in 1811, and his wife, the said Mary Bates,
survived him ; and, afterwards, previous to
the commencement of this suit, died intestate,
and without issue.
The defendant claimed to hold the prem-
ises under the sister of the wife of the testator.
Mr. J. B. Yates, for the plaintiff. The tes-
tator devised to his wife ''all his estate, real and
personal," without words denoting an estate of
inheritance or fee. These words are to be un-
derstood as descrptive of the things devised,
not as denoting the quantity of interest in the
testator. (Frogmorton v. Wright, 3 Wils.,418,
per De Grey, Ch. J.; 6 Cruise's Dig., 320, tit.
38, ch. 13, sees. 35, 36, 37 ; 2 P. Wms., 335 ;
Andrews, 321.)
Again ; the testator, in declaring his inten-
tion, in case his wife should die before him,
devises all his estate, real and personal, to his
children, their heirs and assigns. It is evident
that he fully understood the legal operation of
391*] those technical words, *and meaning
to give his children a fee, he used them as the
apt and proper words to express that intention.
When, therefore, in the preceding part of the
same clause, in the devise to his wife, he omits
the words "heirs and assigns," must we not
suppose that such omission was intentional
and advised, and that he did not mean to give
his wife an estate in fee? To construe the
words "all my estate" as carrying an estate
in fee, the intention to give such an estate
must be clear and apparent.
There is no ground to suppose an estate in
fee, by implication, from the words "after
paying off my debts and funeral expenses." To
carry a fee by implication, the charge must be
on the person of the devisee, in respect to the
estate devised to him. (Jackson ex dem. Town-
send, v. Butt, 10 Johns., 148; Jackson v. Harris,
8 Johns., 141 ; Denn v Meller, 5 T. R., 558 ; 4
East, 496.)
The words "to be at her absolute disposal,"
refer to the agreement entered into between
the testator and his wife, before their intermar-
riage. We must, therefore, have recourse to
thai contract, to aid the construction of these
words used in the will. There can be no
doubt that a devise may be made to take effect
with reference to another instrument. (Pow-
ell on Devises, 22, 49, 52.) Now, if we look
at the terms of this contract, it is manifest
that they give only an estate for life. The
object of the parties was to make a joint fund
out of their separate estates, to guard against
436
the contingencies of life, and to be possessed
and enjoyed by the survivor. They do not
look beyond the life of the survivor. The
terms of the will are then to be restricted to
the terms of the agreement. The words "ab-
solute disposal" mean, therefore, nothing more
than that the wife, if she survived, should
have the sole and exclusive enjoyment of the
estate during her life ; unless they give the
power also to dispose of the fee, by deed or
devise. (1 P. Wms., 149 ; 1 Mod., 189 ; Pow-
ell on Powers, 31, 32.) If she had such a pow-
er, she has never executed it.
Mr. Sill, contra. It is much to be regretted
that courts of justice, in the construction of
wills, ever abandoned technical rules to look
after the intention of the testator. Courts
have said, in the construction of wills, that the
intention of the testator is always to govern :
yet. afterwards, in certain cases, they say, we
have no doubt of the intention , yet, on ac-
count of certain technical words used, we can-
not carry that intention into effect.
1. It is laid down in Baddeley v. Lepping-
well, 3 Burr., 1541, and * Throgmorton [*392
v. Holyday, 3 Burr., 1625, to be the established
principle, that the intention of the testator is
to govern, and that it is immaterial what words
are made use of, if, by sound construction,
the intention to pass a fee is apparent ; and
that no technical words are necessary for that
purpose. The testator gives all his estate to
his wife, "after payment of his debts and fu-
neral charges." The estate is thereby made
subject to the payment of debts ; and any
words which, according to the English decis-
ions, will charge the estate devised, with pay-
ment of debts or legacies, will carry a fee to
the devisee, by implication. (Doe v. Richards,
3 T. R., 356 ; Doe v. Holmes, 8 T. R., 1 ; Good-
title v. Maddern, 4 East, 496 ; Ackland v. Ack-
land, 2 Vern., 687; Freak v. Lee, 2 Show., 38;
Wellock v. Hammond, Cro. Eliz., 204.)
The case of Jackson v. Harris, 8 Johns., 141,
I consider as overruled bv that of Jackson v.
Bull, 10 Johns., 148.
[SPENCER, J. It was not the intention of
the court to overrule that case. On the con-
trary, we declared, in Jackson v. Butt, that it
was a correct decision.]
It appears to me that the decision in Jackson
v. Bull is not founded in principle. A fee is
claimed, by implication, on the ground that
the testator meant to benefit the devisee, by
the devise of the estate to him. Now, the de-
visee, whether the charge is personal, or on
the estate devised, stands on no better or dif-
ferent ground ; it cannot be that he is bound
to pay the debts and legacies, at all events, or
beyond the estate devised ; for the devisee is
not chargeable beyond the estate devised to
him. (1 N. R. L., 316 ; sess. 36, ch. 93, sees.
4, 5.)
2. The testator gives all the estate to his wife,
"to be at her absolute disposal, according to
an agreement," &c. The word " estate," un-
less restrained by other words, will carry a
fee. (Holdfast v. Martin, 1 T. R., 411 ;
Fletcher v. Smiton, 2 T. R., 656; Meny v.
Wise. 2 Vern, 564, 690; 3 P. Wms., 295;
Jackson v. Delancy, 11 Johns., 365). But it is
said that, by referring to the marriage articles;
JOHNS. REP., 12.
1815
JACKSON. EX DEM., v. BABCOCK.
39S
that instrument must govern, in ascertaining
the intention of the testator. The testator
first uses words in his will, which carry a fee,
and then refers to the agreement made before
marriage, without expressing what his inten-
tion was in those articles. That agreement
cannot restrain or abridge the meaning of the
words first used in the will, especially when
the testator was an unlearned person. The
words " to be at her absolute disposal " further j
show the intention to give a fee. In Jackmn, \
ex. dem. Hush, v. Coleman, 2 Johns., 391, the
testator gave to his wife " the use of all his
real and personal estate, to use and dispose of
at her pleasure ;" it was held that the wife
took an estate in fee.
.•*»;**] *Again ; the testator does not de-
vise over his estate, in case his wife should
survive him, but only in case she should die
before him. His giving small legacies to each
of his children, shows also an intention to dis-
inherit them. As to the marriage articles,
there can be little doubt that the intention
of the parties was to create a joint estate, the
whole of which should go to the survivor.
PLATT, J., delivered the opinion of the
court :
The only question is, whether Mary, the
widow of John Herrick, 8r., took an estate
for life, or an estate in fee, under the will of
her husband.
It is an established rule that no technical
words are necessary to devise a fee, and that
the intention of the testator, to be collected
from the whole will, is to govern ; but the i
phraseology and combinations of words used i
in wills are infinitely various, and therefore
the application of any general rule is often
very difficult.
The words used by the testator in this case
are these : "I give, bequeath and devise un-
to my wife Mary, after payment of my debts
and funeral charges, all my estate both real
and personal, that I may be in possession of
at my decease, to be at her absolute disposal,
according to an agreement made with her on
the 27th day of October, 1802."
I see no ground to contend that this devise
falls within that class of cases which give a
fee by implication, where the payment of debts
is charged upon the devisee personally, or
specifically upon the land devised.
The intention here is clear, that the residue ;
of the estate should go to the wife, after the
debts and funeral charges were paid from the
funds which the law provides ; not that the
whole estate should vest in the wife, subject
to the payment of debts, as a condition of the
devise. This doctrine is well examined, and
most of the leading cases on this point are
ably reviewed, in the case of Jackxm, ex dem.
Toiensend, v. Bull, 10 Johns., 148.
The words " all my estate, both real and
personal," "to be at her absolute disposal,"
are undoubtedly sufficient to vest a fee ; un-
less those words are controlled and limited by
the terms of the written agreement to which
804*] the will expressly refers. *(Jack»on,
ex dem. Bush, v. Cabman, 2 Johns., 391, and
the cases there cited.)
There is no question that, since the Statute
of Wills, as well as before, a will may be con-
JOHNS. REP., 12.
strued in connection with another instrument
of writing to which it refers. (Powell on De-
vises, 22, 49, 52.) Hence it becomes necessary
to examine the marriage articles, in order to
determine the question Before us. It is infer-
rible, from that agreement, that the husband
acquired property in right of his wife, and
that they both contributed to the joint fund.
What was the original proportion of each
does not appear. It may be that the fund was
composed chiefly of the property of the wife.
The husband may, therefore* have obeyed
a good conscience, in disinheriting his chil-
dren in favor of his widow ; and I see nothing
in the agreement to control the words in the
will. When the agreement was made, the
parties could not foresee whether the joint
fund would consist of real or personal estate,
when the event of survivorship should occur :
they therefore say, " the survivor shall possess
and enjoy the whole of such joint property."
When the will was made, the testator spoke-
with reference to the actual condition of the
fund at that time ; and he thereby devises to-
his wife "all his estate, both real and per-
sonal," "to be at her absolute disposal, accord-
ing to the agreement," &c. By the will the
testator shows that he understood and intend-
ed that the agreement was to give the full and
complete benefit of survivorship in all his real
and personal estate. The agreement and the
will appear to me to be perfectly consistent ;
and the words " all my real estate, at her ab-
solute disposal" are sufficient to carry a fee.
It is said by the counsel for the plaintiff,
that in using the words " heirs and assigns, >r
in the devise to his children, the testator shows
that he understood the meaning and effect of
those words ; and that in using other words in
the devise to his wife, be manifests an inten-
tion not to give a fee.
I think this weighs but little in judging of
the testator's intention ; for although the
word "heirs" is the most apt, it is not the
only word to devise a fee.
The contingent devise to the children seems
to me to afford a strong inference in favor of
the widow's claim to the fee.
The testator says : " It is my intention,
that if my said wife *shall decease be- f*3O«">
fore me that my real and personal estate shall
be equally divided among my children, and
their heirs and assigns." Now, if he intended
that his wife should have only a life estate in
the event of her surviving him, why did he
not limit the remainder to his children ? It is
true his children would take, as heirs, the same
estate which such a limitation would give them,
but it is equally true that the contingent de-
vise to them, on the event that his wife should
die before him, was also inoperative and su-
perfluous. If the widow has not a fee, then
the remainder, after her life estate, is undis-
posed of by the will ; and quoad hoc, the tes-
tator had died intestate. Such a construction
would defeat the intention of the testator.
In my opinion, therefore, the case shows a
title out of the lessors of the plaintiff ; and
the defendant is entitled to judgment.
Judgment for the defendant.
Cited In— 12 Wend., 541 ; 17 Wend., 898; » Wend.,
445 : 58 N. Y.. 235 ; 2 liarb., 131 ; 58 Ind.. 87 ; 130 Mass.,
93.
437
395
SUPREME COURT, STATE OP NEW YORK.
1815
HOLMES v. NUNCASTER.
1. Officers— Process Protects. 2. Money Subject to
Levy.
An officer, sued for taking goods under an exe-
cution, need only give the execution in evidence.
Money or bank notes may be levied on, under an
execution.
Citations— Ante. 220 ; Doug., 231 ; 4 East, 510; 9 East,
48 ; 2 Show., 166 ; Dalton's Sheriff, 145; ICranch., 117.
IN ERROR, on certiorari to a justice's
court.
This was an action of trover, brought by
Nuhcaster, in the court below, against the
plaintiff in error, for bank notes, to the amount
of $22. The defendant below, a constable,
being present when some money was paid to
the plaintiff below, and some conversation
arising about the money being good, it was
handed to the defendant, by the plaintiff, for
examination, and thereupon the defendant,
having in his hands an execution against the
plaintiff, kept the money, and applied it to
the payment of the execution, and refused to
deliver it to the plaintiff on its being de-
manded.
The return states that the defendant offered
in evidence the execution, which was objected
to, but admitted. Judgment was given for the
plaintiff below.
Per Curiam. What the objection was to
the admission of the execution, in evidence,
does not appear. The execution was all that
it was necessary for the constable to show in
396*] his defense, *provided he had a right to
take money under it ; he was not bound to
show the judgment. It appears, from the
plaintiffs own testimony, that the money was
claimed to be held by the defendant under an
execution against him ; so that the only ques-
tion is, whether the constable had alright to
levy and hold the money under the execution.
The money came into his hands by delivery
from the plaintiff himself, though for another
purpose ; so that no question arises as to the
levy of the execution, or how far an officer
would be authorized to go in this respect ; but,
having the money in his hands, there can be
no good reason assigned why it should not be
applied to the satisfaction of the execution.
Indeed, we have expressly decided, in Handy
v. Dobbin, ante, 220, that money or bank bills
may be taken in execution ; and on looking
again at the cases, we find nothing to induce
us to doubt the soundness of that decision.
Lord Mansfield, in the case of Armistead v.
Philipot, Doug., 231, said that there were some
old cases in which it has been held that the
sheriff could not take money in execution,
even though found in the defendant's scrutoire,
and that a quaint reason was given for it, viz :
that money could not be sold. But it is evi-
dent that he did not think this a sound reason,
and the result of the motion in that case would
seem pretty strongly to sanction the right of
the officer to take money under an execution.
This, however, has been otherwise ruled in the
K. B. in later cases (4 East, 510, Fieldhouse v.
Croft; and see Francis v. Nash, Rep. temp.
Hardw., 53 ; 9 East, 48, Knight v. Griddle),
and carried so far that the court would not al-
low the sheriff to apply surplus money raised
on a sale of property under an execution to
the satisfaction of another execution in his
hands against the same defendant, although
no other property was to be found. In the
case, however, of Tlie King v. Webb, 2 Show.,
166, it was ruled that a sheriff may take ready
money, under a levari facias ; and in this re-
spect, there is no difference between a levari
facias and & fieri facias ; and in Dalton's Sher-
iff, 145, it is expressly laid down that money
may be taken under a ftere facias. The Su-
preme Court of the United States, in Turner v.
Fendatt, 1 Cranch, 117, after examining all the
cases, adopted the same doctrine. They say
they could perceive no reason why an execu-
tion should not be levied on the money ; the
one given in the books, that money could not
be sold, was not a good one. The reason of a
sale is, that money only will satisfy an execu-
tion ; and if anything else be taken, it must be
turned into *money ; but this can be [*397
no good reason for refusing to take the very
article, to produce which is the sole object of
the execution. We are of opinion that the
judgment below must be reversed.
Judgment reversed.
Cited in- 19 Johns., 145 ; 12 Wend., 586 ; 1 N. Y.. 31.
AND HALE v. GOODRICH.
Arbitration — Parol Submission — Assumpsit —
WJiere Promise of one Party is the Considera-
tion for the Promise of other, Promises must
be Concurrent.
In assumpsit, on a parol submission to arbitration,
where the promise of the defendant, to perform the
award of E., was stated to be in consideration of the
plaintiff's promise to fulfill the award, on his part,
and both promises were laid in the declaration to be
concurrent ; and the proof at the trial was, that
though the defendant, several times, prior to the
28th of January, 1814, had agreed to abide by the
award of E., yet that, at that time, the plaintiff de-
clared to E. that though the defendant was to be
bound by his award, he, the plaintiff, was not to be
bound ; but afterwards he told E. that he would be
bound by his award, and E., without any further
communication with the parties, made his award in
May, 1814 ; it was held that the promises in this case
not being concurrent, the defendant's promise was
a nudum pactum, and not binding on him.
Citations-1 Cai., 583 ; ante, 190 ; 1 Chit. PI., 297 ;
3 T. R., 653, 148 ; Peake's N. P., 227 ; Hobart, 88.
THIS was an action of assumpsit. The dec-
laration contained three counts. The first
stated that certain differences having arisen
between the plaintiffs, as executors of Nathan
Hale, deceased, and the defendant, concerning
a prommissory note, made by the defendant to
their testator, dated the 7th day of February,
1797, by which the defendant promised to pay
him, for value received, £69 3s. 8d. lawful
money, on demand, with lawful interest, at six
per cent., in certain liquidated securities given
by the Treasurer of Connecticut ; and that to
put an end to such differences, the parties,
heretofore, to wit : &c., " respectively submit-
ted themselves to the award of John Elmore,
to be made between them, of and concerning
NOTE. — Ministerial officers— How far protected by
procetm. See Warner v. Shed, 10 Johns., 138, note.
438
NOTE.— Mutual promises— Must be concurrent. See
Livingston v. Rogers, 1 Cai., 583, note.
JOHNS. REP.. 12.
1815
KEEP v. GOODRICH.
397
the said differences; and in consideration there-
of, and that the plaintiffs, at ihe special in-
stance and request of the defendant, had, then
and there, undertaken and promised the defen-
dant to perform and fulfill the award of the said
John Elmore, to be made, &c., of and concern-
ing the said differences, in all things on their
part to be performed and fulfilled, he, the de-
fendant, undertook, «fcc.. to perform and fulfill
the said award, in all things," &c. The plaint-
iffs averred that Elmore, having taken upon
himself the burden of the arbitrament, did, on
the 15th of May, 1814, at, &c., make his a ward
in writing, &c.. and thereby awarded that the
•defendant should pay the said plaintiffs, as ex-
ecutors aforesaid, the sum of $391.81, in full
satisfaction of their claim on the said note, of
which said award, the said defendant, after-
wards, to wit : &c., had notice ; and although
often requested, &c., to pay the said sum. &c.,
according to the tenor ana effect of the said
award, and of his promise, «fcc. ; yet, not re-
garding, «fcc., he did not pay, &c. The second
J{i)H*J count was on an *imumuf computa**ent.
The third count was also on an inaimul com-
puttnutent, with the plaintiffs, as executors, &c.
The defendant pleaded the general issue,
with notice of set-off.
At the trial, the plaintiffs gave in evidence
a letter of the defendant, dated Albany, August
19th, 1811, addressed to John Elmore, in which
speaking of the claim of the plaintiffs, and al-
leging that he owed nothing, he says : " But
I have agreed for you to say what I shall do
in this case, and hold myself obligated accord-
ingly," «fcc. On the 23d of November, 1811,
the defendant again wrote to Elmore on the
same subject, and promising to send him some
papers relative to his payments, &c.
On the 8th of January. 1814, he again wrote
to Elmore, and, after mentioning that he had
been called on again by the plaintiffs, about
the business, he says: "I still wish you to
make up your mind" on this business, as I am
willing to agree to your decision, and abide
your judgment."
The defendant, on the 8th of January, 1814,
wrote to Elmore as follows: "I wrote you
some time since, concerning Squire Hale and
myself. I wish you to make up your mind
according to what you have understood, as you
have had more knowledge than any other per-
son about my business. I think I made a kind
of statement to you. I am called upon by Mr.
Keep, and have renewed a line to you on the
matter ; and I wish you to look into the busi-
ness, and give your opinion, for a full settle-
ment of the business," &c. " N. B. I am will
ing to have the note matter settled on your
opinion."
On the 28th of January, 1814, Elmore, who
lived at Cuniuin, in the State of Connecticut,
wrote to the defendant, at Albany, acknowl-
edging the receipt of his letter of the 8th of
January, saying he should have no objection
to determine what was right in the matter, if
they (the plaintiffs) would agree to it, after
having the circumstances stated to him again,
as they were somewhat out of his mind. "But
they will not agree to abide my judgment ;
for J. Hale (one of the plaintiffs) told me.
when In- called on me sometime since, for my
opinion in the matter, that you was bound to
JOHNS. RKP., 12.
abide my judgment, but he was not, unless he
liked it. I then told him I would not deter-
mine it, unless he was bound also. If they
will agree with you to refer their claim to me,
and give me a statement of the fact, I will de-
termine the question between vou."
*EImore testified that he had not [*399
seen the defendant for some time previous to
the 19th of August, 1811, nor since, until after
he made his award ; and that the defendant
had never appeared before him, nor submitted
the matter in controversy to him, otherwise
than is contained in the above letters. That
after writing the letter to the defendant, of the
j 28th of January. 1814, one of the plaintilK
who resided at Goshen, in Connecticut, called
> on him, and agreed that they would be bound
' and abide bv his award. No notice of the
time and place where they would meet, to
\ make up an award, was given by him to the
| defendant ; nor did he inform the defendant
that he had taken upon himself to decide be-
tween the parties ; nor that the plaintiffs had
agreed to abide by his decision ; nor was the
defendant present when he undertook to make
up his decision.
The plaintiffs produced an award in writ-
ing, dated Canaan, May 15th, 1814, which,
after reciting that the plaintiffs, as executors,
&c., and the defendant, had submitted the
controversy subsisting between them, relative
to a promissory note, &c., and that, "having
heard the parties, and taken the case into con-
sideration," he was of opinion that there was
due to the plaintiffs, as executors, &c., on the
said note, $391.31 ; and, therefore, he award-
ed that the defendant should pay to the
plaintiffs the said sum, in full satisfaction for
their claim on the said note.
The judge charged the jury that, in his
opinion, there was sufficient evidence of a sub-
mission, on the part of the defendant, of the
matter in difference between the plaintiffs and
defendant ; and that, without regarding the
matter as a submission to Elmore, he might be
considered as having been constituted the
agent of the defendant, to adjust and ascer-
tain the amount due on the note The jury
found a verdict for the plaintiffs for $417.50.
A motion was made to set aside the verdict,
and for a new trial.
Mr. Parker for the defendant.
Mr. II. Bleeeker, contra.
SPENCER, J., delivered the opinion of the
court :
It is very clear that Elmore did not act as
the private agent of the defendant. *in [*4OO
adjusting the claim made on him by the
plaintiffs. He made a formal award between
the parties, and refused to act, unless the
plaintiffs agreed to be bound also. The count
on an insimul computwaent cannot be main-
tained.
The real question is whether the defendant
is bound by the award, it appearing clearly in
evidence that the plaintiffs refused to be con-
cluded by it up to the 28th of January, 1814.
Subsequent to that time, the plaintiffs agreed
to be bound by the award ; but the defend-
ant's agreement to submit to Elmore, and to
be bound by his decision, was on or anterior
to the 8th of January, 1814 ; so that there was
439
400
SUPREME COURT, STATE OP NEW YORK.
1815-
no point of time when both parties bound
themselves by agreement with each other to
submit their controversy to Elmore, and to be
bound by his award.
In Livingston v. Rogers, 1 Caines, 583, it was
decided that in assumpsit on mutual promises
the declaration must allege that they were
concurrent. In that case, the promise was
stated, "and that in consideration the plaint-
iffs had, at the defendant's request, promised
to perform his part ; the defendant afterwards,
to wit: the same day, promised," &c. The
court were of opinion that the judgment ought
to be arrested ; but there being a good count,
and a motion to amend, leave was given for
that purpose, on payment of all the costs.
The only consideration, in this case, for the
defendant's promise is the plaintiffs' promise ;
and it is alleged, in both counts on the award,
that the defendant's promise was made in con-
sideration of the plaintiffs' promise, and both
promises are laid as concurrent acts ; and we
have seen that if the promises were not al-
leged to have been made concurrently, it
would have been good ground for arresting
the judgment. It is a necessary consequence
that the proof should support this allegation
in the declaration, and show that, in point of
fact, the promises were considerations recipro-
cally for the parties. Here the proof negatives
the fact that the consideration of the defend-
ant's promise to submit and abide by the
award of Elmore was that the plaintiffs had,
at the same time, made the like promise ; for
it clearly appears that the plaintiffs refused to
submit and be bound by Elmore's award, long
after the defendant professed a willingness to
make the submission.
In Tucker v. Woods, ante, 190, we recog-
nized the principle that in contracts, where
the promise of one party is the consideration
4O1*] *for the promise of the other, the
promise must be concurrent and obligatory
upon both at the same time ; and, in addition
to the case in Gaines, 1 Chitty's PL, 297, and
3 T. R., 653, were cited, which fully warrant
the position. The same doctrine is contained
in Paine v. Caw, 3 T. R., 148, and in Kingston
v. PMps, Peake's N. P., 227. The plaintiff
proved that the defendant consented to be
bound by an award to be made on a submis-
sion by other underwriters on the same policy,
but the witness proved no agreement on the
part of the plaintiff to be bound by the award.
Lord Kenyon held that there was no mutual-
ity, and. therefore, the defendant's agreement
was a mere nudum paclum. It is correctly
stated by Kent, J., in Livingston v. Rogers,
that Hobart (88) observes that the promises
must be at one instant ; for else they will be
both nuda pacta.
There must be a new trial, with costs to
abide the event of the suit.
New trial granted.
Cited in— 12 Barb., 505 ; 2 Hilt., 51 ; 99 Mass., 586.
NIVEN v. SPICKERMAN AND STEVER.
Practice in Justice Court — Covenant — Does not
Lie between Partners — Oyer — Parties.
In an action of covenant in a justice's court, the
defendant is entitled to oyer, before he can be
called on to plead.
440
An unincorporated company cannot sue in the
name of their trustees.
Covenant does not lie on an agreement of part-
nership, to compel the payment of a balance due to
the partnership from one of the partners.
N ERROR, on certiorari to a justice's court.
I
This was an action of covenant, brought by
Spickerman and Stever against the defendant
below. The defendant prayed oyer, which
was refused by the justice, who told him that
he had no right to see the covenant until it
was produced on the trial. The defendant
then pleaded the general issue, and, after an
adjournment, the cause was tried before a
jury. A covenant or agreement of partner-
ship, signed by the defendant below, to which
he, and the plaintiffs below, and several other
persons, were parties, to dig for a mine, for
their joint benefit, was produced. By the
agreement, it was stipulated that the affairs of
the Company should be conducted by trustees,
to be chosen by a majority of the subscribers ;
and it appeared that the plaintiffs below were
the trustees so appointed. The defendant
*below had paid all his original sub- [*4O2
scription money, and the Company having
been engaged in digging for upwards of two
years without any success, he relinquished all
that he had paid, and refused to contribute
any more.
This suit was brought by the plaintiffs be-
low, as trustees of the Company, to compel
the defendant to pay a balance due from him
to Hie Company, on partnership account.
Judgment was given for the plaintiffs in the
court below.
Per Curiam. There has been an utter sub-
version of legal principles in this case.
The return presents ground for many ob-
jections ; but it is sufficient to say, 1. That
the justice committed an error in not allowing
the defendant below oyer of the covenant de-
clared on, before he was compelled to plead.
2. This being an unincorporated Company,
it cannot sue in the name of its trustees.
3. The only remedy by partners against
each other, for balances due on partnership
account, is by bill in equity, or action on ac-
count.
. Judgment reversed. '
Cited in-1 Wend., 534 ; 24 Wend., 158 ; 6 Barb., 541
3 E. D. Smith, 231.
*HOTCHKISS, Sheriff, &c., [*4O3
M'VICKAR.
Sheriff — Trover — Execution — Property in Goods
Remains in Defendant until Execution Exe-
cuted.
A sheriff cannot maintain trover for goods tor-
tiously taken out of the possession of the party
1.— In Casey v. Brush, 2 Caines, 293, it was de-
cided that assumpsit will not lie by one partner
against the other, for a balance of account, unless,
upon an express promise to pay. In Moravia v.
Levy, Buller, J., held that aasumpsit would lie by
one partner against the other, on an express promise
to pay the balance of account struck between
them, though the articles of copartnership con-
tained a covenant to account at certain times. 3
T. R., 483, n. a. See, also, Hobart v. Howard, 9
Mass., 304.
JOHNS. REP., 12^
1815
HOTCHKISS V. M'VlCKAR.
403
against whom the execution issued, after the tettte,
but before the delivery of the execution to, and a
seizure of them by him. The Statut*- of Frauds, by
which the iroods of the debtor are bound from the
delivery of the writ of execution to the sheriff,
doe* not alter the property of the Roods : but be-
fore and since the Statute, the property in the
Roods continues in the defendant until execution
executed.
Citations— » Car. II.. ch. 3, sec. 1« ; 2 Tidd's Pr.. 914,
«L and >».; 7 T. K.. 21 ; 1 Saund., 21»/; 10 Vin. Abr.,
566 ; Comb., 145 : 2 Bq. Cas. Abr., 361 ; 1 R. L., 501,
sec. 6; S Baund., 47 : 4 East, 530, 537; 1 Ventr., 52; 1
Brownlow. 132 ; 2 Cai.. 143 ; 9 Johns., 132; 1 Chit. PL,
151.
THIS was an action of trover, for a fishing
net, tried at the Columbia Circuit, in 1814,
before Mr. Justice Van Ness.
On the 6th of July, 1814, and long previous,
the net was the property of Garret Clow,
against whom a writ of fieri facia* issued the
7th of July, 1814, on a judgment against him,
in favor of John P. Beekman. On the 6th
of July, the day previous to the delivery of
the writ to the deputy-sheriff, the defendant,
without the leave of the plaintiff, took away
the net from the place where it had been left
by Clow. The execution was tested in May
Term, and returnable in August Term, 1814.
The defendant had applied to Clow for leave
to take the net, which he refused, observing
that he had given a judgment bond to Beek-
man.
The deputy-sheriff, on receiving the exe-
cution, went in search of the net, and learning
that the defendant had taken it, demanded it
of him, by virtue of the execution agafhst
Clow. The defendant admitted that he had
taken the net, but refused to deliver it to the
deputy- sheriff.
A verdict was taken for the plaintiff, subject
to the opinion of the court on the above case.
Mr. Vanderpool, for the plaintiff. I. The
property was bound from the te*te of the exe-
cution ; and the defendant, being a wrong-
doer, cannot assert any right against the sher-
iff. The rule of the common law, except as
to bona fide purchasers, remains the same as
before the Statute of 29 Car II., ch. 8, sec. 16.
The Statute was made to protect bona fide
purchasers only. As to all other persons,
the execution binds the property from the
tette of the writ. (1 Saund., 219 /, note; 10
Vin. Abr., 567 ; Execution, A, a, sees. 14, 15,
16; Comb., 145 ; 2 Show., 485 ; 12 Mod., 5 ;
Ld. Raym., 252 ; 2 Tidd's Pr., 914 )
2. Then, can the sheriff, before actual pos-
session, maintain trover for the goods of the
defendant, wrongfully taken away ? To
maintain trover, an absolute or general prop-
erty in the goods is sufficient, though the
plaintiff has never had the actual possession.
(2 Saund., 47 a, note 1 ; Gordon v. Harper, 7
T. R., 18.) If a person has the right of posses-
sion, the law implies possession. As it respects
Clow, the debtor, the sheriff had the absolute
property against all the world. In regard to
4O4*] *a bankrupt, it was held, in Fowler v.
Down, 1 Bos. & P.. 44-47, that he had a right
against everybody but his assignees ; and that
it was not competent to a third person to dis-
pute the bankrupt's title. The assignees may
maintain trover for goods of the bankrupt, and
taken by a sheriff on execution, subsequent to
the act of bankruptcy, prior to the commission
JOHNS. REP.. 12.
and assignment ; for the property is held to be
in the assignee, by relation, from the time the
act of bankruptcy was committed. (Cooper et
al. v. Chitty et al.. 1 Burr., 20, 83.) The gist
i of this action is the wrongful conversion.
Mr Bronk, contra. It i- an established
principle, that to maintain trover, the plaint-
iff must have the actual possession, or right
to possession ; as well as the right of property.
(7 T. R., 9 ; 8 Lev., 809 ; Chitty's PI., 150.)
A sheriff, who receives an execution, does not
thereby acquire an absolute or general prop-
erty in the goods of the debtor, but merely a
special property by the seizure ; and he stands
on the same ground, as to his right of action,
as a factor, consignee, or trustee. (1 Chitty's.
PI.. 151 ; 2 Saund., 47 a, note 1.)
In Jackson v. Catlin, 8 Johns.. 548, it is said
that the sheriff may maintain trover or tres-
plrTT. on account of the special property he
acquires in the goods by the seizure. In
Jit i/! v. Burling, 1 Caines, 18, the court said
| that, in this action, there must be the right of
; property and possession, or right of posses-
' sion, in the plaintiff. Possession must ac-
| company the special property. (4 East, 214.)
j The plaintiff must have an interest in the
! goods, arising either from the right of prop-
' erty or possession. The sheriff, by the de-
livery of the execution to him, acquires no in-
terest in the property of the defendant ; he
acts under the authority of the writ, and as
the agent of the law to execute its judgment.
He can acquire no interest or property in the
| goods of the debtor, until he has made an
actual seizure. It is true that, by the com-
mon law, the goods of the debtor were bound
from the teste of the execution, and by our
Statute, from the delivery of the writ to the
sheriff. But because the property of the
debtor is so bound, it does not follow that the
sheriff acquires an interest in them before
seizure. The law gives him only a right to
I seize those goods. In Payne v. Drew, 4 East,
i 523, all the cases on the subject are examined
by Lord Ellenborough, who delivered the
opinion of the Court of K. B., that though
the delivery of the Ji. fa. binds the goods of
the debtor, yet the property in the goods is
not devested out of him, until execution exe-
cuted. (Scftermerhorn v. Van Volkenburgh, 11
Johns., 529 ; Barker v. Miller, 6 Johns., 195 ;
2 Saund., 47 a; 2 Tidd's Pr., 925.) A subse-
quent execution, first levied, will defeat a
*prior execution first delivered to the [*4O£»
sheriff. (Ante, 162, Sandford v. Roota.) In
BUM v. />''/''/. 9 Johns., 182, it was decided
that if a sheriff sells property after the return
day of the execution, without a previous
seizure, he is a trespasser. But how can he
be considered a trespasser, if he was vested
with such a special property, by the delivery
of the ri. fa. to him, that he could maintain
trover ?
Again ; an action is given to the sheriff only,
for nis indemnity, and because he is liable
over to the plaintiff, in the execution. But if
the sheriff, in this case, returns nulU bona,
would he be liable ? If not, he is not damni-
fied, and cannot, therefore, have any right of
action. As soon as the goods are seized, the
sheriff may have the amount indorsed on the
execution, and will be so far discharged. But
441
40.5
SUPREME COURT, STATE OP NEW YORK.
1815
in this case, could he make such and indorse-
ment ?
Again ; a sheriff cannot sue for property
which he cannot levy upon ; and he cannot
levy an execution after the return day. In
trover, the defendant may bring the goods
into court (3 Burr , 1363; 7 T. R, 53), if they
are susceptible of it. And suppose the de-
fendant had brought the net into court, could
the plaintiff levy on it, or seize it, by virtue of
the execution, after the return day ?
The cases under the bankrupt laws of En-
gland depend on the peculiar provisions of
those laws.
Mr. Vanderpool, in reply. I go on the ground
of the common law, as it existed before the
Statute ; for all the cases agree that, as be-
tween the sheriff and the party, the common
law has not been altered by the Statute, which
protects bona fide purchasers only. By the
common law, the goods were bound from the
the teste of the execution, and the sheriff might
take them out of the hands of a bona fide
purchaser. (Anonymous, Cro. Eliz., 174 ;
Borcher v. Wiseman, Cro. Eliz., 440.) If so,
must not the property or right of possession
be in the sheriff before seizure ? This title to
the possession commences with the teste of the
execution, by relation. In Rorke v. Dayrell,
4 T. R., 402-411, Lord Kenyon says that, " as
by the common law, abridged as it is by the
Statute of Frauds, the property of the debtor's
goods is bound by the delivery of the writ to
the sheriff ; there then remains no property in
the debtor."1 The case of Payne v. Drew was
that of two contending creditors, and the
maxim of vigilantibus, et non dormientibus, leges
subveniunt, applied. That case is clearly dis-
4O6*] tinguishable *from the present, which
is between the sheriff and the party.
A person having the special property, with-
out the actual possession, may maintain trover
against a mere stranger, or tort feaser. (1
Chilly's PL, 151; 2 Saund., 47 c; 2 Roll's
Abr., 569 ; Fowler v. Doun, 1 Bos. &P., 44,
per Eyre, Oh. J.; 7 T. R., 9-13.)
Trover is, in facl, a special action on the
case ; and who is it that objecls lo the plaint-
iff's title to maintain this aclion ? I^ot a bona
Jlde purchaser, but a mere wrong- doer, a tres-
passer.
SPENCER, J., delivered the opinion of Ihe
courl :
II is loo lale lo queslion the construction
which has been uniformly given to the Statute
of 29 Car. II., ch. 3, sec. 16, which enacts
" that no writ of fi. fa., or other writ of exe-
cution, shall bind the properly of the goods of
the parly against whom such wril of execution
is sued forlh, bul from Ihe time that such writ
shall be delivered to the sheriff." &c. Thai
conslruction has been, that the Statule being
made lo prolecl purchasers, does not alter the
law, as between the parties ; and the common
law, prior to Ihe Slalute, was, thai the fi. fa.
had relation to its Uste, and bound Ihe defend-
ant's goods from that time ; so that if the de-
fendant had afterwards sold them, though
bona fide, and for a valuable consideration,
they were still liable to be taken in execution.
1.— See the observations of Lord Ellenborougb on
this dictum of Lord Kenyon in 4 East, 547, Payne v.
Drew.
442
(2 Tidd's Pr., 914, 915, and the note • 7 T. R.,
21, and the case of Parson v. Gill, in Ihe notes;
1 Saund., 219/; 10 Vin. Abr., 566 ; Comb.,
145; 2 Eq. Cas. Abr., 381.) To remedy the
unjust effect of the relation of a fi. fa. to its
teste, which produced great mischief to pur-
chasers, the Statule was passed. Our Statute
(1 R. L., 501, sec. 6,) is substantially a tran-
script of the British Statute.
The goods in question were Ihen bound by
Ihe execution in the plaintiff's hands, at the
time the defendant look Ihem away.
The only remaining inquiry is this : can the
plainliff , who never levied on the goods, main-
tain an action for the conversion of them,
when they were, in facl, taken tortiously by
the defendant before the plaintiff received Ihe
execution, on the ground that they were
bound by Ihe execution in consequence of the
teste being prior to the defendant's taking
them?
To entitle a party to maintain trover, two
things are necessary : 1st. Property in the
plaintiff ; and, 2d. A wrongful conversion by
the defendant. The plaintiff's property may
be general *or special. A carrier, [*4O7
bailee or the person who finds a chattel, has,
in regard to his possession, sufficient property
to entille him to maintain the action. A sheriff
who has seized goods, on a fi. fa. may main-
tain this action against any person who takes
them away, and converts them, before a sale.
(2 Saund.. 47.)
J, have not met with a case which shows lhal
an aclion of trover can be maintained by a
sheriff, for goods tortiously taken out of the
possession of Ihe parly against whom the exe-
cution issued, before the execution comes to
the hands of the sheriff, and where he has
never levied on the goods. It has been re-
peatedly held that neither before nor since the
Statute, the words "bound from the delivery
of the writ to Ihe sheriff " aller Ihe properly
of the goods ; but it continues in the defend-
ant until Ihe execution is executed. This
construction was given by Lord Hardwicke to
the Statule, in Lowthal v. Tonkins, 2 Eq. Cas.
Abr., 381. This, also, was Lord Ellenbor-
ough's opinion in Payne v. Drew, 4 East, 536,
537.
If the goods are rescued, the sheriff may
return that they are rescued, and he will not
be liable. (1 Vent., 52 ; 1 Brownlow, 132.)
This shows lhat the property did not vest in
him ; indeed, the execution creates the lien for
the benefit of the creditor ; and the sheriff is
the mere minisler of Ihe law, lo procure for
Ihe creditor satisfaction of the debt ; and to
this end the sheriff is invested with the right,
after he has found the property and levied on
it, to hold possession until a sale ; and if that
possession is violated, he may maintain tres-
pass or trover.
It has been uniformly held in this court,
that an actual levy of a fi.fa. was necessary.
Thus, in Devoe v. Elliot, 2 Caines, 143. it was
decided that where a sheriff has levied an exe-
cution, in due time, he may complete the same
by sale, but cannot levy afler Ihe relurn day.
So again in Bliss v. Ball, 9 Johns., 132, a levy
was considered an essenlial requisite. The
reason given by Chitly (1 Chit. PI., 151) why
a sheriff, carrier, faclor, &c., may mainlain
JOHNS. REP., 12.
1815
ADAMS v. FKKEMAN.
407
trover, in consequence of their special property
in goods taken out of their possession, is quite
satisfactory and reasonable. It is because
they are responsible over to their principal.
In the present case, the plaintiff, as we have
seen, cannot be considered as having the gen-
eral property ; and, in my judgment, he never
had a special property. In such a case, that
species of property can alone arise from pos-
4O8*] *The execution, I agree, had a retro-
spective operation. The goods, in this case,
being bound from the te*te, gave the sheriff a
right to reduce the goods to possession, if he
could have levied on them ; but he could not
find them. Would the sheriff be liable to the
party in whose favor the execution was, under
the tacts in this case ? I conceive, most clearly
not ; and it seems to me that consideration
furnishes a decisive criterion ; for if the sheriff
is not liable to the plaintiff in the execution,
fii bono is he prosecuting this action ? Not to
protect himself from any liability over, but to
gain to himself something, which, for aught I
see, would be his own, when recovered.
On the principle, therefore, that a levy was
necessary to constitute a special property in
the plaintiff, in the goods, and that no levy
has ever been made, the defendant is entitled
to judgment.
Judgment for the defendant.
Sheriff may maintain troper/or wrongful taking of
property levied on. Distinguished— 1 Sand., 253.
Cited in-1 Cow., 332; 7 Cow., 298; 11 Wend., 560;
13 Wend., 64; 16 Wend., 350, 569; 20 Wend.. 43; 23
Wend., 291 ; 4 Denio, 490 ; 5 Denio, 204 ; 9 N. Y., 174 ;
74 N. Y.. 401; 7 Hun, 412; 25 Barb.,B34; 7 W. Dig.,
ML
Time when goods bounil by execution. Limited— 29
N. Y.,489.
Cited in-54 N. Y., 109 ; 7 How. Pr., 337.
Also cited in— 4 Cow., 468.
ADAMS 9. FREEMAN.
Trespass — Entering a Dwelling House — License.
Entering a dwelling-house without license is a
trespass.
Keeping an inn amounts to a general license ; and
familiar intimacy may be evidence of a general
liit-iiM-.
If a person enter a dwelling-house, by permission,
and continue there after he has been requested to
leave it, he becomes a trespasser ah Inltio.
IN ERROR, on certiorarito a justice's court.
This was an action of trespass, brought by
the plaintiff in error against the defendant in
error, for entering the plaintiff's house. The
defendant pleaded not guilty ; and on the trial
the plaintiff proved that, he being in bed,
•(whether in the day time or at night is not
stated), the defendant entered his ho'use with-
out permission. The plaintiff's son, by order of
his father, requested the defendant to leave the
house ; to which the defendant answered that
he would go when he pleased. The plaintiff's
wife then ordered the defendant to go off, to
which the defendant gave a similar answer.
The plaintiff then rose from bed, and ordered
the defendant to leave his house, but he still
refused to go, and remained there half an
hour, without doing any other injury, and
then departed.
JOHNS. REP.. 12.
The defendant moved for a nonsuit, and the
justice decided that the proof was insufficient
to sustain the action, and nonsuited the plaint-
iff, with costs.
*Per Ouriam. To enter a dwelling- [*4O9
house without license, is, in law, a trespass.
Any person professing to keep an inn thereby
gives general license to all persons to enter his
house. But the house of the plaintiff does not
appear to have been an inn; and, therefore, to
render such an entry lawful, there must be a
permission, express or implied ; and familiar
intimacy may be evidence of general license
for such purpose. According to the evidence,
here was no such permission; and therefore the
act of entering the plaintiff's house was a tre%
pass. Besides, if the defendant had received
permission to enter, as by being asked to walk
in, upon his knocking at the door, his subse-
quent conduct was such an abuse of the
license, as to render him a trespasser, ab initio.
Judgment reversed.
Overruled— 13 Johns., 414 ; 5 Wend., 510 ; 4 Denio,
321.
Cited in-25 Hun. 437: 45 Barb., 260; 31 How. Pr.,
85 ; 1 Abb. N. S.. 341.
ARNOLD 9. CAMP.
Negotiable Paper — Promissory Note — Extin-
guishes Pre-existing Debt, if Agreed to be
Received as Payment.
Where a promissory note is given by a partner-
ship, and the payee afterwards takes the individual
note of one of the partners for the amount, and
gives up the partnership note, it is a payment of the
partnership note.
And if the payee afterwards gets back the part-
nership note from the individual partner, on re-
(IHivrring him his note, and brings an action upon
the partnership note, the other partner may avail
himself of these circumstances as a bar to the
action.
Citattons-6 Crunch, 264 ; 14 East, 239 ; 5 Johns., 72 ;
11 Johns., 518.
THIS was an action on a promissory note,
payable to the plaintiff, or bearer, on de-
mand, for $464.69, dated the 10th of February,
1813, and executed by Camp, and one Down-
ing, his partner, against whom process had
been issued jointly with Camp, but who was
not taken. The cause was tried before Mr.
Justice Spencer, at the Onieda Circuit, in June,
1815.
The note in question had been given up by
the plaintiff to Downing, upon the latter giv-
ing his own note for the amount ; but Down-
ing afterwards took back his own note, and re-
turned the partnership note to the plaintiff, on
the plaintiff's telling him that if he did not do
so he should Work for him no longer. The part-
nership between Camp and Downing was dis-
solved in June. 1813, and the plaintiff had no-
tice of the dissolution. Camp had given
Downing property for the purpose of taking
up this note.
NOTE. --1'aymrnt— Prnmi**rtrynote as.
A note given and received for that purjxwe, dis-
charges a precedent debt. See Murray v. Gouver-
neur, 2 Johns. < 'us.. 438, note; Herring v. Sanger, 3
Johns. Cas., 71. note.
44*
409
SUPREME COURT, STATE OP NEW YORK.
1815-
A verdict was found for the plaintiff, sub-
ject to the opinion of the court.
41O*] *Mr C. M. Lee, for the plaintiff, con-
tended, 1. That there was no consideration for
the exchange of the partnership note for the
note of one of the parties only. (2 Bl. Com.,
445 ; 1 Com. on Contracts, 9^13.)
2. The fact of exchanging the partnership
note for the note of the individual partner,
was not, of itself, a payment of the partner-
ship note. (2 Johns. ,455; 5 Johns., 68; 8 Johns.,
58; 7 Johns, 311; 11 Johns, 409, 513; 6 Cranch,
253, 1 Salk., 124.
3. The time for the payment of the partner-
ship note, which was given for a precedent
debt having elapsed, and the note not having
freen paid, the plaintiff is entitled to recover
under the counts for work and labor. (Tobey v.
Barber, 5 Johns., 68; Johnson v. Weed, 9
Johns., 310 ; 5 T. R., 513 ; 6 T. R., 52 ; Put-
nam v. Lewis, 8 Johns., 389.)
Messrs. Storrs and JV. Williams, contra, con-
tended that the partnership note having been
taken up by Downing, and his own note ac-
cepted in its stead, the partnership note was
thereby satisfied and extinguished. They did
not dispute any of the authorities cited on the
other side, but said they were cases of notes
given at the time of the contract, and were not
applicable to the present case ; that where a
note is given for a precedent debt, and it is
expressly agreed to be received as payment, it
shall be payment. (6 Cranch, 264 ; 11 Johns.,
409.) The giving up the partnership note was
the highest evidence of an agreement to accept
the note of Downing as payment. It was
either taken in payment, or as collateral
security. It could not be the latter, for its cor-
relative, the partnership note, was gone.
The case of Newmarck et al. v. Clay et al. 14
East., 239-242 ; Kingour v. Finlyson, 1 H. Bl.,
155, in the K. B., is in point, that the deliver-
ing up the partnership note/ and receiving the
other, is such a payment of the former, that
no action can be maintained upon it ; and in
this case, also, it is an answer to the third
point made by the plaintiff's counsel.
THOMPSON, Ch. J., delivered the opinion of
the court :
The question is, whether, under the circum-
stances of this case, Camp is not discharged
from all responsibility upon this note There
is nothing in the case showing that Downing
is insolvent, or unable to pay the note he gave
in his individual capacity. As Downing had
received property to discharge the note, the
redelivery of it to the plaintiff was unjust, as
it respected Camp, and he is justified in avail-
ing himself of all legal measures to exonerate
himself from the payment. The circumstances
appear to fully warrant the conclusion that
41 1*] the individual note of *Downing was
intended to be given to and was actually re-
ceived by the plaintiff, in satisfaction of the
partnership note. This was delivered up for
the purpose, as must necessarily be inferred,
of being destroyed. This is a much stronger
case than that of Sheehy v.Mandeville,Q Cranch,
264. It is there held that although, as a gen-
eral principle, a promissory note will not, of
itself discharge the original cause of action, yet
if, by agreement, the note is received as pay-
444
ment, it satisfies the original contract, and the
party receiving it must take his remedy on it.
That case also shows that the doctrine of nud-
umpactum has no application to cases like
the present ; there, also, as in this case, it was
the note of one of the firm that was held to
discharge the partnership. The same doctrine-
is maintained in Newmarck v. Clay, 14 East,
239, and in Tobey v. Barber, 5 Johns. , 72, this
court considered the acceptance of a note as
an extinguishment of a pre-existing debt, if
agreed to be received as payment ; and
Whetherby v. Mann, 11 Johns., 518, is a still
stronger case. It is there held that when a
negotiable note has been received in satisfac-
tion of a judgment, it is an extinguishment
of the judgment debt. If the facts, then, in
the case before us, will warrant the conclusion
that when the individual note of Downing was
taken, and the partnership note delivered up,
it was intended and agreed to be considered as
payment of the note in question, there can be
no doubt that, in judgment of law, it will
operate as a satisfaction of the partnership
note ; and that the facts, not only fairly, but
necessarily, lead to such a conclusion, will, in
my opinion, admit of no doubt. The defend-
ant is, accordingly, entitled to judgment.
Judgment for the defendant.
Overruled— 1 Hill, 517 ; 3 Denio, 414.
Cited in- 16 Johns., 278 ; 1 Cow., 304 ; 21 Wend.,.
453 ; 5 Hill, 449 ; 3 Denio, 420 ; 13 N. Y., 169 : 40 N.
Y., 541 ; 56 N. Y., 406 ; 6 Barb., 208, 251 ; 12 Barb.,.
470 ; 15 Abb. N. 8., 377 ; 2 Hall, 549 ; 4 E. D. Smith,
284 ; 3 Wood and M., 200 ; 13 Bank. Reg., 460.
*RYDER [*412
v.
CUDDERBACK AND COLEMAN.
Taxes — For Common Schools — Construction of
Statute.
The Act relative to Common Schools (sess. 35, eh.
242, sec. 8 ; 1 N. R. L., 261) authorizes the inhabitants
of a school district to meet and vote a tax on the res-
ident inhabitants of the district, for the purpose of
building a schoolhouse, &c., &c., to choose trustees,,
who are to raise the sum voted by an assessment "on
all the taxable inhabitants of the district, agreeable
to the levy on which the town tax was levied the
preceeding year." A tax was voted by the inhabit-
ants of a school district in September, 1813, and the
trustees made out their assessment, agreeable to the
levy of the town tax for the year 1813, by which A,.
who was a taxable inhabitant of the town at the
time the tax was voted, but not a resident or tax-
able inhabitant in the year 1813, was assessed his
proportion. It was held that the tax list for the
preceding year must be understood, according to*
the general law relative to the assessment and col-
lection of taxes, to mean the year ending on the
first day of August, and that the assessment of the
trustees on A was, therefore, correct.
Citations— 1 N. R. L., 262, sec. 68 ; 2 N. R. L.. 510.
THIS was an action of trespass, for taking
and carrying away a yoke of oxen, be-
longing to the plaintiff.
On the 12th of March, 1814, William Lewis,
by virtue of a warrant directed to him by the
defendants and C. Bailey, Jr., as trustees of
the twenty-seventh school district in the town
of Pompey , in the County of Onondaga, took
from the plaintiff a yoke of oxen, which were
regularly advertised for sale for six days, and
JOHNS. REP., 12.
1815
THE PEOPLE v. SUPERVISORS OF ALBAKY.
412
sold at public auction on the 19th of March,
1814, for $67. The warrant was regular, bear-
ing date March 10, 1814, having a regular tax
list annexed to it, to raise the sum of $175,
with five cents on each dollar for the collector's
fees ; and which tax list contained the name
of the plaintiff and the amount of his tax.
At a meeting of the inhabitants of the said
school district, pursuant to public notice for
that purpose, on the third Tuesdav of Septem-
ber, 1813, the defendants and Clark Bailev
were duly elected trustees, and William Lewis
•clerk, and the site for a schoolhouse to be
erected was fixed, and $175 agreed to be raised
for that purpose. And at a regular meeting
of the inhabitants of the district, on the 24th
of January, 1814, it was resolved that the tax
for building the schoolhouse should be made
according to the last spring assessment, as the
town taxes were ; and at a legal meeting on
the 25th of January it was voted that the
money for building the schoolhouse should
be raised by a tax, according to the last spring's
assessment.
It appeared that the plaintiff was not a taxable
inhabitant of the town of Pompey in the year
1812, and that his name was not on the tax
list of the town for that year; but the plaintiff
was, on and before the third Tuesday of Sep-
tember, 1813, a taxable inhabitant of the said
•district, and continued so to be until after the
19th of March, 1814.
The defendants made out their tax list for
the said district, from the tax list of the said
town for the year, 1813, in which tax list was
the plaintiff's name, and his estate assessed at
$1,819 ; and the defendants directed the col-
413*] lector to collect *from the plaintiff
$39.09, which was the sum he was legally
liable to pay, agreeable to the levy on which
the town tax was raised in the year 1813, pro-
vided the said school tax list ought to have
been made from the town tax list of that year.
It was agreed that if the court should be of
opinion that the plaintiff was entitled to re-
cover, a judgment should be entered for the
plaintiff for $67 ; but if the court should be
in favor of the defendant, a judgment of non-
suit was to be entered.
Mr. Sabin for the plaintiff.
Mr. Kellogg, contra.
THOMPSON, Ch. J., delivered the opinion of
the court :
This is an action of trespass de bonvt asporta-
'>'•- brought against the defendants, as trustees
of the twenty-seventh school district, in the
town of Pompey, and County of Onondaga ;
who have issued a warrant to collect a tax laid
on the district, and under which the plaintiff's
propertv, which is now in question, was taken
and sold. The only irregularity complained
of, and relied upon in support of the present
action, is, that the tax ought to have been laid
according to the tax list of 1812, and not of
1813; and if HO, that the plaintiff was improperly
assessed, as he was not a taxable inhabitant of
the district in 1812.
It is not easy to discover the reason or neces-
sity for the various votes that appear to have
been taken in relation to the tax in question,
some of which were in the fall of 1813, and
others in the winter of 1814. It is, however,
JOHNS. UK I-.. 12.
no more than a fair and liberal interpretation
of the proceedings of the meeting of Septem-
ber, 1813, to say that the tax was then voted.
There is no form prescribed by the Statute in
which the question for raising the money shall
be presented to the voters. The vote, as en-
tered in the minutes of the meeting, was, that
$175 be appropriated for building a school
house, ana a vote of the 24th of the same
month of September shows it was to be raised
by tax. I assume, therefore, that the tax was
voted in September, 1813, which is putting the
plaintiff's case on the strongest ground. The
question then is, according to what tax list
should the assessment have been made. The
Act directs that after the district meeting have
voted a tax, the trustees shall proceed to ap-f
portion *the same on the taxable in- [*414
habitants of said district, according to the tax
list of the preceding year. (1 N. R. L., 262,
sec. 8.) By the general law relative to the as-
sessment and collection of taxes (2 N. R. L.,
510). the assessment roll is to be completed by
the 1st of August in each year. When, there-
fore, the Statute in relation to the school dis-
tricts speaks of the tax list of the preceding
year, it must be understood as referring to the
year ending in August, when the general as-
sessment is to be completed ; and must be so
construed, as if, instead of the preceding year,
it had said the preceding tax fist. It would
be absurd to suppose the Legislature intended
to pass over one tax list, and regulate the as-
sessment according to the list of a prior date.
The plaintiff was a taxable inhabitant of this
district in September, 1813, when the money
was voted to be raised, and there can be no
possible reason why he should not bear his
proportion. The trustees were, then, correct
in regulating their assessment by the tax list
of 1813 ; and if so, it is admitted that the pro-
ceedings were regular, and that there are no
grounds upon which the present action can be
maintained. Judgment of nonsuit must, ac-
cordinglv, be entered, pursuant to the stipula-
tion in the case.
Judgment of nonsuit.
Cited in— 7 Wend., 92.
THE PEOPLE, ex rel. WILSON,
THE SUPERVISORS OF ALBANY.
Mandamus — Peremptory — Does not Lie against
County Supervisors to Compel the* Allowance of
Constable's Account.
After the supervisors of a county have passed
upon the account of a constable for removing pau-
pers, and have allowed part, and disallowed part, a
peremptory mandamus, directing thorn to audit and
allow the account of the relator. will not be grant-
ed, on the ground of the improper rejection of part
of his account.
Citationa-1 R. L., 288 ; Bac. Abr. Manda.. 627 : 3
HI. Com., 110; 2Str.,881.
THIS was an alternative mandamus to the
supervisors of the County of Albany,
directing them to -unlit and allow the relator,
NOTE.— Mandamus.
The discretion of an inferior trilmiml cannot be
cnntrntlt'l hu mandamus. See Hull v. Supervisors
I of Oneida, 19 Johns., 259, note.
445
414
SUPREME COURT, STATE OF NEW YORK.
1815
a constable of the City of Albany, his account
for removing certain paupers from the City
of Albany to the adjoining towns, or to show
cause, &c.
The defendants returned, that at their an-
nual meeting at the Capitol, in the City of
Albany, on the 1st Tuesday of October, 1814,
the relator presented them an account for the
removal of several paupers from Albany to
the adjacent towns, amounting in the whole to
$102, with the certificates of the constables of
415*] *the adjoining towns, acknowledging
the receipt of the paupers ; which account
they examined, and allowed the sum of $28
thereof, and disallowed the residue, because it
appeared to them extravagant, unreasonable,
jnd unjust ; and that the allowance made was
according to the rates of allowance made to
other constables of the county for services of
the same nature ; that they caused this allow-
ance to be entered in their minutes, and
directed the payment thereof by the treasurer
of the county, and, then, according to the
usage of their board, caused the original ac-
count of the relator, with his vouchers, to be
destroyed, in consequence of which they are
unable to give a detailed statement of the ac-
count ; and that, on the 7th of February last,
the relator applied to the treasurer of the
county, and received from him the said sum
of $28, and gave a receipt in full for the
amount allowed him by the supervisors.
SPENCER, J., delivered the opinion of the
court :
By the 9th section of the Act for the Relief
and Settlement, of the Poor (1 R. L., 282), any
constable conveying a pauper from one town
to another, is to receive so much money for
his services as the supervisors of the county
shall judge he reasonably deserves to have, to
be^aised, &c.
The office of a writ of mandamus is to re-
quire the person or persons to whom it is
directed to do some particular thing therein
specified, which appertains to their office and
duty, and which the court issuing it has pre-
viously determined, or, at least, supposes to
be consonant to right and justice. If the party
making the application has a legal right, and
no other specific legal remedy, the writ gen-
erally goes. (Bac. Abr., Manda., 527; 3 Bl.
Com., 110.)
In the present case whatever may be thought
of the reasonableness of the allowance of the
supervisors to the applicant, he has no legal
right to any particular sum. He has no right
to any money for the services performed, but
such as the supervisors shall, in their discre-
tion, judge him entitled to. Had they refused
to hear his application, and to examine and
pass on his account, a mandamus would have
been proper to compel them to do so. Should
we grant a peremptory mandamus, what would
be its command ? Certainly not to allow any
416*J specific *sum ; that would be taking
upon ourselves a discretion which the Legis-
lature have vested in the supervisors ; we
could only command them to examine the ap-
plicant's accounts, and in the words of the
Statute, allow him, for his services, such sum
as they shall judge he reasonably deserves to
have ; and this has been already done.
446
Wherever a discretionary power is vested in
officers, and they have exercised that discre-
tion, this court ought not to interfere, because
they cannot control, and ought not to coerce
that discretion. In John Giles' case, 2Str., 881,
a mandamus was moved for to certain justices
to grant him a license to keep an alehouse ; it
was opposed, on the ground that it was discre-
tionary in the justices, and the court refused
it, saying there never was an instance of such
a mandamus.
I recollect an application on a mandamus
being made to this court, when I was at the
bar, by a gentleman who wished a public road
laid out to suit his convenience. I opposed
the application, on the ground that the com-
missioners had a discretion to lay it out or not,
as they saw fit ; and that it was not a case for
a mandamus, the applicant having no legal or
precise right. The court were about denying
the motion, and the application was with-
drawn.
This may be a hard case, and the party may
be remediless, but that consideration cannot
induce us to grant an unfit, and, as I believe,
a nugatory remedy. The application for
quashing the return, or requiring a further re-
turn, must be denied.
Application denied.
Cited in— 19 Johns., 262 ; 2 Cow., 482 ; 5 Wend., 123 :
10 Wend., 397; 18 Wend., 96, 575; 1 Hill, 367 : 11 N.
Y.. 573 : 45 N. Y., 200 ; 3 Abb. App. Dec., 501 ; 2 Barb.,
417 : 13 Barb., 444 ; 14 Barb., 58 ; 35 Barb., 426 ; DJ How.
Pr., 207, 227 : 13 How. Pr., 269 ; 30 How. Pr., 181 ; 1
Abb. Pr., 18:3 Abb. Pr., 322; Edm., 551; 6 Leg-. Obs.,
64 ; 4 E. D. Smith, 691 ; 84 111., 307.
*STEWART v. MEIGS. [*417
Practice in Justice Court — Irregularity in Place
of Trial.
If a justice try the cause at a place different from
that mentioned in the summons, it is an irregulari-
ty, for which the judgment will be reversed.
Citation— 1 Johns. Cas., 243.
N ERROR, on certwrari to a justice's court.
I
A summons was issued, at the suit of Meigs
against Stewart, and returnable at the house
of Clark Lawrence, innkeeper, on the 26th of
April, 1813, at 9 o'clock in the forenoon. At
the time and place appointed, Stewart, the de-
fendant below, appeared before the justice,
and, after waiting there one hour, without the
plaintiff appearing, he applied to the justice
to be discharged from the cause ; to which the
justice answered that he would not proceed,
nor do anything in the cause until the sum-
mons was returned. The defendant then said
that he had employed one Battle as his coun-
sel ; and the defendant and the justice then
left Lawrence's house together. At 11 o'clock
the constable returned the summons to the
justice, at the justice's house, who then and
there called the parties, when the plaintiff ap-
peared, but not the defendant. The justice,
seeing Battle there, requested him to appear
for Stewart, but he declined, and went away.
The cause was heard ex-parte, and judgment
given for the plaintiff.
JOHNS. REP., 12.
1815
ST. JOHN v. BENEDICT.
417
Per Gtiriam. Whether the delay at Law-
rence's house would operate as a discontin-
uance, need not be decided. The trial of the
cause at the justice's own house, a different
place from that appointed in the summons,
was irregular, and the judgment must be re-
versed. (Cane v. Van Nat, 1 Johns. Cas.,
248.)
Judgment reverted.
Cited in— 1 Cow.. 113; 2 Curt., 48.
418*] *8T. JOHN v. BENEDICT.
Practice in Justice Court — Witnette* — Second
Adjournment.
A Justice may refuse to arrant a second adjourn-
ment to a defendant, for the purpose of procuring:
witnesses, where he shows no excuse, for not having
procured them after the first adjournment.
N ERROR, on ccrtiorari to a justice's court.
I
After the cause had been adjourned on the
application of the plaintiff in error, the defend-
ant below, the defendant, at the adjourned
day, by his attorney, offered to swear that he
still wanted material witnesses, and to give
security, but did not offer to prove that he
had taken any measures to obtain the wit-
neves. The justice refused a second adjourn-
ment, and the defendant's attorney withdrew.
The cause was heard ex-parte, and judgment
given for the plaintiff.
Per Curiam. Although the justice may,
upon reasonable cause, grant a second adjourn-
ment, yet, according to the return, he acted
discreetly in refusing it in this case ; because
there was no excuse offered for the laches in
not procuring the witnesses after the first ad-
journment.
Judgment affirmed.
JACKSON, ex dem. EAMKS,
PHIPPS.
Ejectment — Deed — Acceptance Requisite to Con-
stitute Delitery — Mutt be Delivered.
A delivery is essential to the validity of a deed,
and there can be no delivery without an accept-
ance by the grantee. Where A residing in this
State, agreed with B, in Massachusetts, to give him
a deed of his farm as a security for a debt, and A. on
his return home, in 1806, executed and acknowl-
edged a deed to It. and left it in the clerk's office on
the same day, to lie recorded ; neither the grantee,
nor any person in bis behalf, being present, to re-
ceive the deed ; and the grantee died in 1809, and,
in 1810, A sent the deed to the sou (and heir) of the
grantee : it was held that there was no delivery of
the deed.
Citation*-! Shep. Touch., 67, 68 ; 2 Bl. Com., 807 :
4 Viner,27. sec. 52; 1 Johns. Cas.. 114.
was an action of ejectment, to recover
I twenty-five acres of land in lot No. 24,
part of Scriba's patent, in Oneida County, and
also twelve acres of land adjoining, called the
Gore. The cause was tried at the Oneida Cir-
Nor«.— VttA*— What in a mfflcUnt delivery. See
Scrugham v. Wood, 15 Wend^ 646, note.
JOHNS. REP., 12.
cuit, in June last, before Mr. Justice Spencer.
Both parties claimed title to the parcel of
twenty-five acres, under Joseph Phipps, who
had been in possession of the premises for a
number of years prior to giving the mortgage
hereafter mentioned. The declaration was
served on the tenant in possession the 9th of
May. 1814.
*The plaintiff gave in evidence a [*419
mortgage of the two pieces of land, dated the
17th of March, 1809, by Joseph Phipps to the les-
sor of the plaintiff, to secure the payment of
$53, which was recorded in the office of the
clerk of Oneida County, the 14th of April,
1809.
The defendant gave in evidence a deed with
warranty from Joseph Phipps to his brother,
Aaron Phipps, the fatherof the defendant, for
forty-four acres and a half of land, which in-
cluded the twenty-five acres, but not the twelve
acres in question ; this deed was dated, ac-
knowledged, and recorded, the 27th of Jan-
uary, 1809.
The defendant offered to prove, by his at-
torney, that the tenant in possession, on the
6th of April, 1814, verbally agreed with him,
to hold possession of the twelve acres under
the defendant, on a promise to sell to the ten-
ant. This evidence was objected to, but ad-
mitted by the judge. It did not appear, how-
ever, that the defendant, who resided in 3Ias-
sachusetts, knew of, or consented to this at-
tornment.
It was proved that Joseph Phipps, being in
embarrassed circumstances, in the fall of the
year 1808 went to his brother, Aaron Phipps,
who resided at Hollistown, in Massachusetts,
and agreed to give him a deed of his farm, to
secure two notes of about $130, with the in-
terest, and a small debt due to the defendant.
Joseph Phipps, accordingly, returned home,
and executed and acknowledged the deed of
the 27th of January, 1809, and left it in the
clerk's office. Neither the grantee, nor any
person in his behalf, was present. Aaron
Phipps, the grantee, died in the fall of 1809,
never having been in this State. In February,
1810, Joseph Phipps sent the deed, inclosed
in a letter, to Eli Phipps, the defendant, who,
on receiving it, appeared to be surprised ; but,
on reading the letter, observed that it was in-
tended to secure the two notes which the said
Joseph owed to the grantee, and which the de-
fendant said he then held, as administrator of
his father, uncanceled, and that he was disap-
pointed in not receiving the money instead of
the deed. •
It appeared that Joseph Phipps continued
! to occupy the premises for about three years
I after the date of the deed to Aaron Phipps,
! and then delivered the whole to the defendant,
j who let them to the tenant in possession. The
premises were proved to be worth about $700.
*Joseph Phipps testified that when he[*42O
executed the deed to bis brother, he informed
him, by letter, of a mortgage to one Wager,
for about $300, and another mortgage to the
State, on part of the premises, for about $60 ;
and it was proved that the defendant had paid
off those two mortgages.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on the above
(MM-.
447
420
SUPREME COURT, STATE OP NEW YORK.
1815
Mr. N. Williams, for the plaintiff, contended,
1. That the deed from Joseph Phipps to Aaron
Phipps was never delivered to the grantee,
and, therefore, void, for want of a delivery.
A delivery is essential to give effect to a deed.
<2 Bl, Com., 306, 307 ; Shep. Touch., 57, 58.)
It must be delivered to the party, or his at-
torney, unless where it is delivered to a third
person as an escrow. There must be an ac-
ceptance of the deed by the grantee. (Jackson
v. Dunlap, 1 Johns. Gas., 114.)
2. The deed is fraudulent and void, as
against creditors. The grantor was insolvent
when he executed the deed to his brother, who
who never saw the land ; it is an absolute
deed, when the parties intended it merely as
security. A mortgagee is a bona fide pur-
chaser, and is protected by the third section
•of the Act (1 N. R. L., 75, sess. 10, ch. 44 ; 27
Eliz., ch. 4; 39 Eliz., ch. 18; Cow., 279; 2
Bl. Com., 296), against such a fraudulent con-
veyance.
Mr. Sill, contra. The deed having been ex-
ecuted pursuant to a previous agreement be-
tween the parties, and left at a public office to
be recorded, must be deemed to have been de-
livered. It is enough that the grantee had no-
tice of the execution of the deed, and of its
being left at the office. The good sense of the
rule as to the delivery is, that the grantor
should manifest his intention that the prop-
erty should pass by the deed, and that the
grantee should accept of the transfer ; and as
the conveyance is for his benefit, his accept-
ance is always presumed.
As to the allegation of fraud. The fact of
the grantor being insolvent at the time of ex-
ecuting the deed, does not, of itself, make it
void ; it is his selling or conveying the prop-
erty to a person not a creditor. If he conveys
it to a creditor, it is no fraud. A preference
of one creditor to another is not fraudulent ;
<3 Johns., 71 ; 5 Johns., 335, 412), nor is the
possession of real property, after sale, with the
consent of the grantee or creditor, evidence of
a fraud. Jackson v. Brownett, 3 Caines, 222.)
As to the twelve acres or gore, they are not
included in any patent, and therefore, belong
to the people of the State.
421*] *SPENCER, J., delivered the opinion
of the court :
The parties both claim title, under Joseph
Phipps, to the twenty-five acre tract. The
other tract is described as a gore; and is in-
cluded in the mortgage given by Joseph Phipps,
to the lessor ofthe plaintiff, but it is not includ-
ed in the deed from Joseph Phipps to Aaron
Phipps. With respect to the piece called the gore
there can be no question. The defendant de-
f ejids as landlord of the premises, and his only
pretense to any title to this part of the prem-
ises arises from his having succeeded to the
possession under Joseph Phipps. The mort-
gage to the lessor of the plaintiff comprehending
it, and the defendant having no title para-
mount to the mortgage, there exists no legal
defense for this tract.
The date of the deed under which the de-
fendant claims being prior to the execution of
the mortgage under which the plaintiff claims
the premises, the former must prevail, if it be
well and legally executed.
448
The objection to it is, that it never was de-
livered to the grantee, nor to anyone, for his
use, during his lifetime ; and the facts are,
that in the fall of 1808 it was agreed, between
Joseph and Aaron Phipps, that the former,
who was indebted to the latter, should give
him a deed of his farm, to secure the debt ;
that Joseph executed the deed, acknowledged
and carried it to the clerk's office for recording
on the day of its date, without the grantee, or
any person on his behalf being present, or re-
ceiving a delivery of the same ; that Aaron,
the grantee, died in the fall of 1809, and in
February, 1810, the defendant received the
said deed, as the son, and, probably, heir of
Aaron.
Under these circumstances, the deed nmst
be considered inoperative. It is requisite, in
every well-made deed, that there be a delivery
of it. This delivery must be either actual, by
doing something and saying nothing, or else
verbal, by saying something and doing noth-
ing ; or it may be by both ; but by one or both
of these it must be made ; for, otherwise,
though it be never so well sealed and written,
yet is the deed of no force. It may be de-
livered to the party himself, to whom it is
made, or to any other person, by sufficient au-
thority from him, or it may be delivered to a
stranger, for, and in behalf, and to the use of
him to whom it is made, without authority ;
but if it be delivered to a stranger, without any
such declaration, unless it be delivered as an
escrow.it seems that it is not a sufficient delivery.
*(1 Shep. Touch., 57, 58 ; 2 Bl. Com., [*422
307 ; 4 Viner, 27, sec. 52.) In Jackson, ex dem.
M'Crea. v. Dunlap, 1 Johns. Gas., 114, it was
decided that it was essential to the legal opera-
tion of a deed that the grantee assents to re-
ceive, and that there could be no delivery with-
out an acceptance.
A delivery of a deed, which, we have seen,
is essential to its existence and operation, ex m
termini, imports that there be a recipient. It
would be absurd to hold that a thing was de-
livered when there was no person to receive ;
and, in this case, the grantee died without any
delivery to him. Without inquiring, there-
fore, whether the deed was fraudulent, it is
enough that it was never well executed, by de-
livery.
Judgment for the plaintiff.
Cited in— 20 Johns., 188 ; 6 Cow., 630 ; 2 Wend., 317 ;
4 Wend., 376 ; 6 Wend., 670 ; 15 Wend., 660 ; 30 Wend.,
46 ; 34 Wend., 285 ; 1 Edw., 498 ; 45 N. Y., 410 ; 1 Barb.,
504 ; 6 Barb., 194 ; 30 barb., 338 : 22 How. Pr., 419 ;
47 How. Pr., 177 ; 3 Duer, 96 ; 95 111., 281, 283, 287 ; 105
Mass., 563 ; 65 Mo., 692; 3 Wall., 641.
MONEY v. TOBIAS.
Practice in Justice Court — Warrant — Must be
Supported by Oath.
A justice cannot, on his own knowledge, issue a
warrant, at the suit of a non-resident plaintiff, with-
out oath.
A written request to the justice, to let the plaint-
iff have a warrant, and that the party subscribing-
would be answerable for the cost, is not such se-
curity as is required by the statute to authorize the
issuing a warrant, at the suit of a non-resident
plaintiff.
Citations— 1 Laws, 388,
9, sec. 4 : 4 Johns., 228.
JOHNS. REP., 12.
1815
GRIFFIN v. QOFF.
422
TN ERROR, on certi&rari to a judge's court.
Money, the defendant below, was sued by
warrant ; and when brought before the justice,
he inquired whether the plaintiff had made
the oath required upon issuing a warrant, ac-
cording to the Statute. The justice answered
that he had not, but that he was satisfied that
the plaintiff was a non-resident, without any
oath of that fact. The defendant then moved
for a nonsuit for that cause, which was over-
ruled. The defendant then objected that the
warrant had been issued in favor of a person
claiming to be a non-resident, without giving
«ecurity according to the Statute, and moved
for a nonsuit on that ground. The justice said
that bail had been given, and produced a
paper, on which wts written as follows: "Mr.
Brock: Please let Mr. Tobias have a warrant,
and I will be answerable for the cost. John
Holly." The defendant objected to this, as
insufficient security, but the justice decided
that it was legal and sufficient. Issue was
joined, a trial had, and judgment given for the
plaintiff.
423*] * Per Curiam. The Statute is express
and imperative, that in case of a non-resident
plaintiff suing by warrant, the fact of non-resi-
dence shall be sworn to by the party applying for
the warrant ; and also, that a non-resident
plaintiff, suing by warrant, shall give security
lor the payment of any sum which may be ad-
judged against him, as a condition of his right
of suing by warrant. (See Act, sec. 4, with the
proviso, Vol. I., 888, 389.)
The justice had no right to dispense with
the oath, under pretense that he was satisfied
of the fact without oath (4 Johns., 228); and
it is equally clear that the written memorandum
of Holly was not such security as the Statute
requires. It was a promise to pay the cost of
a warrant, without specifying in what suit.
The Statute requires security, not merely for
costs, but " for any sum which may be adjudg-
ed against the plaintiff."
Besides, the defendant below was unfairly
surpnsed upon the trial, by a very special
claim, which the plaintiff did not disclose un-
til the defendant had pleaded, and several wit-
nesses had been examined ; and which if it
had been stated in proper season, might have
induced the defendant to ask for an adjourn-
ment, or for a jury. The judgment ought to
be reversed.
Judgment reverted.
GRIFFIN t. QOFF.
Negotiable Paper — Promi**ory Note — Demand
mutt be Made on Third Day of Grace — Notice
of Default — Discharge of Indorser. '
A demand of payment of a promissory note can-
not be made until on the third or last day of grace,
unless that day be Sunday, in which case it may be
ma<le on Saturday, or the second day.
Where a demand of payment is made on the day
on which a note is payable, and notice is given to
the indoraer on the third day thereafter, the in-
NOTB.— Sunday or leoal holiday — A'ofe* ami l>Ui#
fMiiiq due on— Time for notice. See Jackson v.
Richards, 2Cal., 843, note.
dorser is not liable ; and a subsequent promise to
pay will not make him liable, unless it be explicit
and unequivocal, and with a full knowledge of all
the facts.
Citations-2 Cai., 343 ; 8 Johns., 48 ; 5 Johns.. 885.
THIS was an action of a»»ump»i(, on a promis-
sory note, brought by the plaintiff as in
dorsee, against the defendant as indorser. tried
at the Jefferson Circuit, in June last, before
Mr. Justice Spencer.
The note was for $255, drawn by one John-
son, at Ogdensbiirgh, August 12, 1814, pay-
| able to the defendant, or bearer, the first day of
December (then) next. The defendant indors-
i ed the note in the following words: " I order
the contents of the within note to be paid to
: Daniel Griffin. NATHAN GOFF."
*A witness for the plaintiff testified [*424
j that on the 1st December, 1814, he went to
: ( 'ha 1 11 pi in. where Johnson, the maker of the
I note, resided, to demand payment ; that the
'. maker was not at home, and could not be
\ found, and no person was there to pay the
note. On the third day thereafter, the wit-
ness went to the house of the defendant, at
Ogdensburgh, in St. Lawrence County, for
the purpose of giving him notice of the non-
payment of the note ; but the defendant was
not at home ; and he gave notice to a person
who was there, who said he was the clerk of
the defendant, of the non pavment of the note,
and that the plaintiff would look to the de-
fendant for payment of it ; and the clerk
promised to inform the defendant accordingly,
as soon as he returned home. It appeared that
a short time before the trial, the defendant,
being asked whether he had any defense to
the suit, said "he knew of no defense." On
this evidence, a verdict was taken for the
plaintiff, subject to the opinion of the court,
on a case containing the above facts, and
which was submitted to the court without argu-
ment.
SPENCER. «/., delivered the opinion of the
court :
It is perfectly settled, that to fix an indorser,
the holder must demand, or use due diligence
to obtain payment of the note, when it be-
comes due ; ami that when the maker makes
default, he must give notice thereof, with
due diligence, to the indorser. It is equally
well settled, that when a negotiable note is in-
dorsed, it is not demandable until the third
day of grace, unless the third day be Sunday,
in which case it is due on the second day ; and
that where notice is given to the indorser,
prior to the demand on the maker, it is null,
as the drawer was not in default when the
notice was given. These principles were
recognized and enforced in the case of Jack-
son v. Richard*, 2 Caines, 343. In the pres-
ent case, the demand of payment being made
at the house of the drawer, before the note
was payable, is as no demand ; it is a perfectly
nugatory act ; payment might have been de-
manded, with as much propriety, on the day
the note was given. There was no default on
the part of the drawer, for the want of de-
manding payment on the last day of grace; and,
consequently, the notice to the'indorser was a
nullity.
In Duryee v. Dennison, 8 Johns., 248, it was
decided that if an indorser has not had regu-
JOHNS. REP., 12.
N. Y. R, 5.
29
445)
424
SUPREME COURT, STATE OF NEW YORK.
1815-
lar notice of non-paymeiit by the drawer, yet
if, with a knowledge of that fact, he make
425*] *a subsequent promise to pay, it is a
waiver of the want of due notice. The same
principle was also recognized in Miller v. Hack-
ley, 5 Johns., 385, and in that case it was
proved that the defendant said that he would
take care of the bills or see them paid. The
court held that this was not enough ; that the
promise ought to be clearly and unequivocally
made out.
Here there is no promise. The defendant
knew of no defense. This was extremely
slight, and by no means waives any objection
which the law puts into his hands.
Judgment for the defendant.
Cited in— 1 Cow., 406 ; 3 Wend., 171 ; 6 Wend., 661 ;
23 Wend., 383 ; 12 Hun, 518; 8 Barb., 399; 1 McLean,
311.
WESTFALL «. VAN ANKER ET AL.
Trespass — Fishing Place — Exchisive Right.
Clearing out a fishing place in a river does not
give an exclusive right or fishery.
IN ERROR, on certiorari to a justice's court.
The defendant in error brought an action
of trespass in the court below, against Westf all,
for fishing with a seine in the Delaware, in the
town of Minisiuk, in Orange County. The de-
fendant pleaded the general issue ; and it was
proved that about six or seven years before
the trial, they cleared out the fishing place,
part of which was in Orange County, and part
in the State of Pennsylvania ; and that the de-
fendant had drawn his seine from the Penn-
sylvania shore, so as to sweep over part of the
fishing place on this side of the river, but
without touching the shore of Orange County.
The plaintiffs below offered no evidence of
title or possession in themselves, other than
the clearing out the fishing place ; and it was
not pretended that they owned any land upon
the banks of the river. The justice gave judg-
ment for the plaintiffs below.
Per Curiam. Injustice has been done.
There is no evidence to warrant a recovery by
the plaintiffs, and the Judgment must be re-
versed.
Judgment reversed.
426*] *PABODIE v. KING.
Contracts — Promise not to Sue — Consideration.
Payment of part of the debt by the debtor is not
a consideration which will support a promise to for-
bear to sue.
IN ERROR, on certiorari to a justice's court.
This was an action of assumpsit, brought
by King, the plaintiff below, against Pabodie,
the defendant below. The ground of the
plaintiff's claim was, that he and one Perry
were indebted, by their joint promissory note,
to Pabodie, for one hundred bushels of wheat.
The note being due and recoverable in money,
the defendant called on the plaintiff below,
450
and promised that if he would pay him $50
on the note, he would forbear to sue him until
he had endeavored to collect the balance of the
note by a suit against Perry ; the plaintiff, ac-
cordingly, paid $50, and the defendant, after
waiting about a year, without having at-
tempted to sue Perry, brought an action against
the plaintiff, and recovered the balance of the
note in the Supreme Court. The justice gave
judgment for the plaintiff. :•*., >.
Per Curiam. The promise to forbear was a
nudum pactum. In paying the $50, King did
no more than he was legally bound to do ; and
the promise, on the partof Pabodie, was with-
out any benefit to him, and occasioned no loss
to King.
Judgment reversed.
Cited in-5 Wend., 505; 9 Wend., 124 ; 11 Wend.,
320; 25 N. Y., 190; 30 N. Y., 491; 7 Barb., 599; 30
Barb., 341 : 46 Barb., 197 ; 22 How. Pr., 423 ; 12 Abb.
Pr., 34 ; 2 Hall, 188 ; 74 Pa. St., 40 ; 34 N. J. L., 57 ; £
McLean, 377.
*JACKSON, ex dem. D.
ET AL.,
V.
CROY.
[*427
Ejectment — Deed — Parol Evidence Inadmissible
to Contradict — Whole Need not be Read — Pre-
sumption as to Possession.
Parol evidence is inadmissible to show that part
of the premises contained in a deed were intended
to be excepted from the grant.
A deed will not be declared void on the ground of
fraud or mistake, because the whole of it was not
read by the grantor.
The repeated application of the defendant in
ejectment to the plaintiff's lessor to purchase the
premises in question from him, affords a presump-
tion that he came into possession under the lessor
of the plaintiff.
was an action of ejectment, for land in
J- Petersburgh, tried at the Rensselaer Cir-
cuit, in -June last.
The plaintiff gave in evidence a deed, dated
31st January, 1805, from Abraham Ten Broeck
to Abel Russell, for the farm, of which the
premises in question are part, and that Russell
took possession under that deed, and contin-
ued in possession until June, 1811. The
plaintiff also gave in evidence an exemplifica-
tion of the record of a judgment in favor of
Samuel Starr and Jacob Houghton, against
Abel Russell, for $250 of debt, and $8 damages,
docketed in this court the 17th October, 1807 ;
and a writ of fieri facias issued thereon to the
sheriff of Rensselaer, and a deed from the
sheriff of that County, dated the 5th June,
1811, to David Russell, one of the lessors of
the plaintiff, and the son of Abel Russell. The
sheriff's deed, after setting forth the judgment
and execution, and the lands seized by virtue
thereof, contained the following exceptions :
" Excepting one acre heretofore conveyed by
the said Abel Russell to Potter Maxan, on
which the shop and dwelling-house of the said
Maxan now stands ; and, also, except one acre
conveyed to John D. Croy, on which the
house and store of the said Croy now stands ;
NOTE.— Parol evidence— When inadmissible. See
Jackson v. Bowen, 1 Cai,, 358, note.
JOHNS. REP., 12.
1815
JACKSON, EX DEM , v. CROV.
427
and, also, except the lot on which the bouse of
A.H.Tiftnow8tands,«fcc. ;also, half an acre con-
veyed to D. M. Silliman; also, half an acre con-
veyed to George Gardner, the _'<1. on which his
house now stands ; also, except a small lot,
about a quarter of an acre, adjoining to Sili-
man's lot."
It appeared from the testimony of Anthony
Hoffman, who surveyed the land, that the
premises in question did not fall within any of
the exceptions in the sheriff's deed, and that
the premises in question were a part of the
lands conveyed by Ten Broeck's deed to Abel
Russell, and are included in the sheriff's deed
to David Russell.
It appeared, also, that before the commence-
ment of this .suit, and before the defendant
went into possession of the premises, he ap-
plied to David Russell to purchase them, and re-
428*] quested *to have the refusal, whenever
i hey -ii. nil I be sold ; and that the defendant,
before the commencement of this suit, dis-
claimed holding under David Russell.
David Russell was present at the sheriff's
>ale, and stated that his father, Abel Russell.
had >old certain lots, which lie wished to have
< \eepted from the sale; "that it was not in-
tended to sell any part of the lands which his
father, Abel Russell, had sold ;" and the sher-
iff made a similar declaration.
The sheriff testified that certain exceptions
were made by him on the sale, according to the
directions from David Russell; but whether
the premises in Question were among the
exceptions, he did not know ; he thought
that the name of Griffls was mentioned as the
owner of one of the excepted lots. There
was a number of bidders, and the property
was struck off to David Russell, the highest
bidder, for $1,400. A blank deed was then
presented by David Russel, which was tilled
up with the name of the purchaser and the
consideration, and executed by the sheriff,
without further examination by him, except
to see that the execution was properly de-
scribed.
It was proved that, at the time of the sale,
Jasper Griffls owned the lot excepted in the
sheriff's deed, described as being half an acre
conveyed by Abel Russell to George Gardner,
the 3d. and that Griffls was then in possession
of it. The defendant produced a deed, dated
the 23d of October. 1810, from Abel Russell to
Peter Griffls and Samuel Phillips, conveying
an estate in fee, which included the premises
in question ; and also a deed from Samuel
Phillips to Jasper Griffis, dated the 23d of No-
vembcr,1813,coveringthe premlsesin question.
The judge charged the jury that, in his
opinion, the defendant had failed to impeach
the sheriff's deed, on the ground of mistake or
fraud; and that the plaintiff had shown a clear
title in David Russell: and besides, the defend-
ant had, by repeated acts, recognized David
Russell as owner of the premises in question,
sufficient, in his opinion, to afford a strong
presumption that he had received possession
from him. Under this charge of the judge,
the jury found a verdict for the plaintiff.
A motion was made to set aside the verdict,
and for a new trial.
4i2»*] *Mr. C. MittheU for the defendant.
Mr. (Jrary, contra.
JOHNS. REP., 12.
YATES, «/., delivered the opinion of the
court :
The judgment given in evidence against
Abel Russell was docketed in 1807. The exe-
cution bad regularly issued on it, so that the
sale made by the sheriff, and the deed given
by him in June, 1811, to David Russell, vested
the title to the premises in him. That title
cannot be affectea by the deed of Abel Russell
to Griffis and Phillips, executed in October,
1810, being subsequent to the docketing of the
judgment upon which the sherilf- deed to Da-
vid Russell is founded, unless that deed has
been obtained from the sheriff under circum-
stances of fraud, which would render it void.
The parol proof received on the trial, was
not to explain any ambiguity in the sheriff's
deed, but is directly contradictory to it, and
therefore inadmissible. There was no uncer-
tainty as to what was conveyed by it. The
premises in question were evidently included
and described in the deed; and resorting to
this sort of extrinsic testimony, to show that
'the premises ought not to have been included,
is contrary to the established rules of evidence,
in relation to instruments of this description.
But admitting that the evidence could be re-
ceived on the ground of fraud or mistake; it
neither shows fraud nor imposition by Russell,
one of the lessors, nor a mistake in the sheriff;
for it does not appear that the premises were
excepted at the sale. There is nothing stated
explicitly on the subject. The sheriff declares
he has no distinct recollection about it. He
remembers that David Russell stated that his
father. Abel Russell, had sold certain lots,
which he wished to have excepted from the
sale; and said it was not intended to sell any
part of the land which his father had sola;
but whether a memorandum, enumerating the
expected lots, was handed to him or not, he
does not remember. He recollects that certain
exceptions were made by him on the sale, ac-
cording to the directions he had received from
David Russell; but whether the premises in
question were excepted, he does not know.
The manner of executing the deed, as stated
by him, may well have taken place, and still
the whole be fair and bonafide. The sheriff
might have read the whole deed if he pleased;
for he says he examined a part of the deed ;
and because he did *not examine the [*43O
residue, can it be tolerated that the person
who drew and presented it must be subjected
to the imputation of fraud upon him? This
cannot be. We are bound to consider the
transaction to have been conducted in good
faith, unless the contrary appears. It is evi-
dent that no part of the testimoney will war-
rant the inference that fraud was practiced by
Russell.
The repeated acts of the defendant, recog-
nizing the plaintiff's title, by applications to
I'un-liase from him. both before and after In-
entered into possession of the premises, af-
forded the strongest reason to presume that
the defendant was in possession under David
Russell. We are, accordingly, of opinion that
the plaintiff ought to have judgment.
Judymentfor tfo plaintiff.
Cited in-17 Johns., 109; 1 Cow., 646; 7 Wend.. 87:
11 Wend., 428; 1 N. Y., 574; 20 Hun, 113; 6 llarb.. 138;
36 Barb., 213.
451
430
SUPREME COURT, STATE OP NEW YORK.
1815
GARLAND v. CHATTLE AND CLOUGH.
Pleading — Waiver of Irregularity — Statute of
Limitations — Commencement of Suit — Time of .
After plea pleaded, it is too late to take advantage
of a variance between the declaration and the writ.
A writ was issued against A. within six years
from the time the cause of action accrued. The
plaintiff's attorney, finding that the demand was on
a partnership account against A and B, filed his
declaration against A and B, as of the day of the
term on which the writ was returnable, which was
after six years had elapsed, and A pleaded to this
declaration non assumpsit, and the Statute of Lim-
itations. This was held to be a commencement
of a suit against A and B, within six years.
MR BETTS, for the defendant, moved to set
aside the verdict in this cause, on the
grounds of irregularity and surprise. From
the affidavits which were read, it appeared
that a writ was issued against Chattle alone, at
the suit of the plaintiff, on the 9th of January,
1815, returnable on Saturday, the last day of
January Term. The plaintiff's attorney being
afterwards informed that the demand was
against Chattle and Clough, for money paid to
the defendants on the 12th of January, 1809,
as partners in trade, and that Clough had ab-
sconded and gone to Canada; in order to save
the Statute of Limitations, he declared against
both defendants, as if Clough had been named
in the writ, and served a copy of the declara-
tion entitled of Saturday, the 14th day of Jan-
uary, in the Term of January, on the defend-
afat, Chattle, who pleaded thereto non assump-
sit, and the Statute of Limitations, and the
plaintiff replied to the secend plea, generally,
and issue was joined thereon.
At the trial, at the last Orange Circuit, the
plaintiff proved money paid by him, for the
use of the defendants, on the 12th of January,
1809. The Chief Justice, before whom the
cause was tried, being of opinion that the
431*] plaintiff's demand was barred by *the
Statute of Limitations, called on him for fur-
ther proof: the plaintiff's counsel then pro-
duced the Nisi Prius record, from which it
appeared that the declaration was entitled
fenerally of January Term, 1815. The Chief
ustice then said, as he could not look beyond
the Nisi Prius record, the commence'ment of
the suit must be considered, by relation, as of
the first day of the term, which was the sec-
ond day of January; and so being within six
years, the jury, under the direction of the
judge, found a verdict for the plaintiff for
$2,154. The defendant, Chattle, not being
apprised of the variance between the Nisi Prius
record and the copy of the declaration, relied
wholly on the plea of the Statute of Limita-
tions, and had not so pleaded as to enable him
to avail himself of a set-off, and other defense,
and was thus completely surprised.
Messrs. P. Buggies, and D. Ruggks, contra,
read affidavits to show that the plaintiff was
entitled to recover his demand, independent
of auy plea of matter of defense set up by the
defendants.
Per Curiam. The variance between the dec-
laration and the writ should have been taken
advantage of in the proper time; but after plea
pleaded by the defendant, Chattle, it is too
late for him to make the objection. The writ
452
was issued within the six years, and the dec-
laration is to be considered as a continuance
of the same suit, so that the Statute was no
bar. The motion must be denied.
Motion denied.
Cited in— 5 Cow., 526; 23 Hun, 230.
JACKSON v. CASE.
Practice — Verdict — Notice of Argument — Oi'der
for Stay of Proceedings.
Where a verdict is taken for the plaintiff, subject
to the opinion of the court on a case to be made,
and the plaintiff does not make up the case, accord-
ing to the rules and practices of the court, the de-
fendant may give notice of the motion at the next
term for judgment; and if no sufficient excuse is
then shown by the plaintiff, for not making the
case, the court will order judgment to be entered
for the defendant.
When a verdict is taken, subject to the opinion of
the court, no order for a stay of proceedings is nec-
essary; and it does not come within the rule of
practice allowing either party to notice the case for
argument, but the defendant may move the court
for leave to enter judgment.
A VERDICT was taken for the plaintiff in
this cause, at the Orange Circuit, in 1814,
subject to the opinion of the court on a case to
be made. No case having been made by the
plaintiff, according to the rules and practice of
the court, on an affidavit *of the above [*432
facts, and of a service of a notice on the
plaintiff's attorney that the defendant would
move for judgment at this term ; Mr. Fisk now
moved that judgment be entered for the de-
fendant.
Mr. Story, contra, objected that the defend-
ant ought to have noticed the case for argu-
ment ; and if the plaintiff was not then ready
with his cases for the argument, the defendant
would, according to the course of practice, be
entitled to his judgment, unless the plaintiff
could excuse his default.
Per Curiam. The course pursued by the de-
fendant's attorney was correct. The rule per-
mitting either party to give notice of the argu-
ment of a case, presupposes that the case is
settled ; so that there can be no controversy on
that point, when a motion is made to bring on
the argument. Where a verdict is taken sub-
ject to the opinion of the court, no order for a
stay of proceedings is necessary ; and the de-
fendant must have leave from the court to pro-
ceed. To allow the defendant to notice the
case for argument would be a very inconven-
ient practice. The court would, then, be
obliged to hear the plaintiff's excuse for not
having made up his case in due season ; and if
there were any disagreement between the par-
ties as to facts, affidavits would be necessary ;
thus would be drawn before the court, on days
assigned to hear enumerated motions, matters
intended to be confined to the days fixed for
the hearing of non-enumerated motions. No
sufficient excuse having been shown, on the
part of the plaintiff, for not having made the
case, the motion must be granted.
Motion granted.
JOHNS. REP.. 12.
1815
SHEPHERD v. HEES.
433
433*] *SHEPHERD c. HEES.
Stock Running at Large — Pouter of Town* to
Regulate, under Statute.
A by-law of a town, declaring that all hogs should
be kept up, only extends to prevent hogs from
going at large on the highway : and it seems that a
town has no power to prevent the inhabitants from
letting their hogs go at law upon their own land.
If the defendant s hoga go into the a<ij< ijnimr land
of the plaintiff, by reason of the partition fence,
which the plaintiff is t>ound to keep in repair, being
insufficient, he cannot maintain an action of tres-
Citation— 2 Laws, p. 131, sec. 12.
IN ERROR, on certiarari to a justice's court.
This was an action of trespass, brought in
the court below by Hees against Shepherd, for
damage done by the defendant's hogs in the
plaintiff's cornfield. The plaintiff proved that
the defendant's hogs repeatedly came into his
cornfield, through a partition fence which di-
vided their farms, and destroyed his corn. The
defendant then proved that the plaintiff's fence
through which the hogs entered the cornfield
was out of repair, and utterly insufficient. To
which the plaintiff replied by'showiug a by-law
of the town, whereby it was provided that all
hogn should be kept up, under a penalty of
fifty cents. Judgment was given for the
plaintiff in the court below.
Per Curiam. The question here depends
entirely upon the construction of this by-law.
By the 12th section of the Act relative 'to the
Duties and Privileges of Towns (Vol. II., 131),
town-meetings are authorized " to make such
prudential rules and regulations as they shall
judge necessary and convenient, for directing
the times, places, and manner of permitting
or preventing cattle, horses, sheep, and swine,
or any of them, to go at large," and " for as-
certaining the sufficiency of all partition and
other fences."
By enacting that " all hogs shall be kept up."
the town-meeting must be supposed to intend
that, no hogs shall go at large ; which means
that they shall not be free commoners upon the
highways. It was not intended by this by-law
to interfere with the interior economy or man-
agement of every man's farm ; it could not
reasonably have been intended to compel every
farmer to keep his swine in a close pen. The
power of the towns for such interior regula-
tions may well be doubted.
Upon this construction, therefore, it results
that the by-law in this case has no application ;
because the trespass complained of was not
done through the outer fence, adjoining a
highway or common ; but through an inner,
or partition fence between the two neighbors.
434*] *Theease rests, then, upon common
law principles, independent of the by-law ;
and as it appears that the swine entered the
cornfield through that part of the interior
fence which the plaintiff below was bound to
keep in repair, but which he suffered to de-
cay, so as to be utterly insufficient, the loss he
complained of was occasioned by his own neg-
ligence ; and he has suffered damnum attsque
iryuria. The judgment below must be re-
versed.
Judgment reverted.
Cited in ~3 Wend., 14fl; 5 Denio, 380 ; 81 N. Y.. 117 ;
50 N. Y.. 4SO ; 7 Barb., 301 ; 13 Barb., 497 : 22 Barb..
579 : 86 111.. 104.
JOHNS. Hi. r. 12.
RICHARDS AND FINNEY e. WALTON.
Practice in Justice Court — Entire Judgment —
Trespass.
Where a judgment is entire, it must be affirmed or
reversed in toto.
So, where two persons were sued by warrant in a
justice's court, and one only appeared, and the jus-
tii-t- gave judgment against both defendants, the
: judgment, being erroneous as to the defendant who
did not appear, was reversed, on ctitinmri, as to
both.
Whether the justice could sever the defendants,
and give judgment against the one who appeared.
Quter c.
Citations— 8 Johns.. 568 ; Bac. Abr., Error (M).
IN ERROR, on certiorari to a justice's court.
The defendants below were sued by war-
rant in trespass, for cutting timber ; the con-
stable returned to the warrant that the same
was served agreeable to law : but only brought
Richards before the justice, no reason appear-
ing why the other defendant was not brought.
Richards pleaded, and demanded an adjourn-
ment ; but refusing to give security, it was de-
nied, and the justice gave judgment against
both defendants.
Per Curiam. The rule of affirming in part,
and reversing in part, does not apply to cases
of this kind. (8 Johns., 566.) This maybe
done where the judgments are distinct, as in
cases of damages and costs, in which the
judgment may be reversed as to one, and af-
firmed as to the other ; but where the judg-
ment is entire, there must be a total affirm-
ance, or reversal. Thus, at common law, in an
action of trespass against three, if one die
pending the writ, and yet judgment be given
against all three, the whole judgment must be
reversed, because it is entire, although the
writ abated but against one. So in trespass
against several, if the judgment be erroneous,
because one of the defendants was within age.
and appeared by attorney, the judgment shall
be reversed in into. (Bac. Abr. , Error, M. and
cases there cited.) In the case before us, the
proceedings against Fiuney were clearly erro-
neous ; where a party is prosecuted by war-
rant, *the justice has no authority to [*43«!>
proceed, unless the defendant appears in
court. There is nothing in the return to war-
rant an Inference that Richards was authorized
to appear for Finney, even if that would be
sufficient. The justice might possibly have
been authorized, as the action was trespass, to
treat the defendants as severing, and have
given judgment against Richards ; but as the
judgment is against both, and entire, it must
be reversed.
Judgment reversed.
Cited in It Johns., 425; 5 Wend., 163, 841:11
Wend.. 96; 10 Wend.. 52; 2 Hill, 334: 5 Mill, 442; Hill
& D., 237 ; 9 N. Y., 234 ; 1 Barb., 557 ; 10 Barb., 3S3 : 8
How. Pr., 379: 10 How. Pr.. 370 ; 4 Rob., 606 ; 4 E. D.
Smith, 28; 47 Wis., 600; 23 Mich., 439.
PUTNAM ET AL. ». SHELOP.
Practice in Justice Court — Jurisdiction.
Where a plaintiff, in a justice's court, proves dam-
•Ix-ynnd $25, but judgment is given only for
the judgment is regular.
Citation- 1 Johns. Cas.. 25, 333.
458
435
SUPREME COURT, STATE OP NEW YORK.
1815
TN ERROR, on certiorari to a justice's court.
J- The defendant in error brought an action
of assumpsit in the court below, against the
plaintiffs in error. At the trial, the plaintiff
below proved a sale by him to the defendants,
of a parcel of boards, for which they agreed
to pay him $34.
The justice gave judgment for the plaintiff
for $25, and costs.
Per Curiam. This being an action sound-
ing in damages, the plaintiff below had a
right to waive his claim for the excess, over
$25 ; and the exception to the jurisdiction is
not well taken. (Tuttle v. Maston, 1 Johns.
Cas., 25; Ibid., 333.)
Judgment affirmed.
Cited in— 3 Denio, 320.
436*]
*VAN EPS
THE MAYOR, ALDERMEN AND COM-
MONALTY OF THE CITY OF SCHEN-
ECTADY.
Real estate — Agreement to Execute Deed, does
not Imply Deed with Warranty — Conveyance
in Fee does not, Ipso facto, Imply a Warranty
— Sale of Lots at Auction Separately, not an
Entire Contract — Adverse Possession Benders
Grant Void — Recovery of Consideration.
An agreement, on a sale of land, " to execute a
deed " to the purchaser, is satisfied by executing1 a
deed without warranty or covenants.
Where land is sold at auction in separate lots, and
several of the lots are purchased by one person, it
is not an entire contract ; and if the vendor cannot
give a title as to all the lots, the vendee cannot re-
scind the agreement in toto, but must take a con-
veyance for such of the lots as the vendor is author-
ized to convey.
The vendor is bound, if required, to give separ-
ate deeds for the several lots, and his offer to ex-
ecute one deed for the whole does not render the
contract entire.
Citations— 2 Cai., 191 ; 5 Johns., 58.
THIS was an action of assumpsit, for money
had and received, &c., to recover back
the consideration money, and interest paid by
the plaintiff, for thirty-three lots of land.
Plea, non assumpsit. The cause was tried at
the Schenectady Circuit, in August, 1814,
before Mr. Justice Spencer.
On the 8th of October, 1805, the defendant
sold to the plaintiff, at public auction, as the
highest bidder, thirty-three lots of ground, in
the City of Schenectady, lying on the Sche-
nectady and Albany Turnpike Road, to wit :
Nos. 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, and 13, in
the first allotment, and Nos. 8, 9, 16, 17, 18,
19, 20, 33, 34, 35, 62, 63, 64, 65, 116, 117. 118,
119, 162, 163, 165, and 166, in the second al-
lotment. The lots were put up and sold sep-
arately, one after the other, at the same time ;
the plaintiff having purchased each lot for a
distinct and separate price. The treasurer of
the defendants delivered to the plaintiff thirty-
three certificates, of one of which the follow-
ing is a copy : "In virtue of a resolution of
the ^Mayor, Aldermen, and Commonalty of
the City of Schnectady, I do hereby certify,
that Abraham Van Eps has this day purchased
at public auction, lot No. 1, of the first allot-
ment, on the Albany and Schnectady Turn-
pike, in the second ward of the said City, for
the sum of $50, one fourth of which, amount-
ing to $12.50, I have this day received; and
upon his paying the sum of $12.50, in six
months from this date, the sum of $12.50, in
one year and six months from this date, and
the sum of $12.50, being the residue of the
said sum of $50 in two years and six months
from this date, with lawful interest on the
said sums, from time to time, to be paid as
aforesaid, then, and in such case, a deed will
be executed by the Mayor, Aldermen, and
Commonalty of the said City, to the said
Abraham Van Eps, his heirs and assigns, for-
ever. 8th of October, 1806."
The plaintiff then proved the payment, by
him, of the whole of the consideration of
the lots so purchased, and produced receipts
of the several treasurers of the said City for
the same ; the *last of which receipts [*437
was dated 21st of December, 1812. On the
12th of July, 1813, the plaintiff exhibited the
said receipts to the Mayor of the City, and
demanded a deed for the lots so purchased by
him. The Mayor showed the plaintiff a blank
quitclaim deed, which he offered to fill np and
execute to him, for the said lots. The plaint-
iff inquired whether the defendants were not
out of possession of part of the land ; and
was answered by the Mayor in the affirmative,
who said that John H. Schermerhorn was in
possession of it ; that the defendants had
brought an action of ejectment against Scher-
merhorn, to recover the possession, but had
failed in their suit. The Mayor, nevertheless,
offered to execute a quitclaim deed to the
the plaintiff, if he would accept it, saying that
Schermerhorn would be in town in a few days,
when an exchange would be made. The
plaintiff refused to accept any deed, unless
such a one as would secure to him the pur-
chase money, in case the title proved bad ; but
the Mayor refused to execute any other than a
quitclaim deed.
The plaintiff then produced the records, or
book of minutes of the Corporation, in which
was entered, the 6th of September, 1806, a reso-
lution for the sale of the lots above mentioned at
public auction in the terms as above mentioned
in the treasurer's certificate. There were var-
ious subsequent resolutions, authorizing the
NOTE. — Covenant to give deed — Adverse possession.
A conveyance without a 'warranty satisfies a cove-
nant to give a deed or to convey a fee. In addition
to the above case of Van Eps v. Schenectady, see,
Ketchum v. Evertson, 13 Johns., 359 ; Frost v. Ray-
mond, 2 Cai., 188 : Nixon v. Hyserott, 5 Johns., 58 ;
Fuller v. Hubbard, 6 Cow., 13. But see Fletcher v.
Button, 4 N. Y., 396 : Burwell v. Jackson, 9 N. Y.,
535.
The latter case holds that in executory contracts to
convey, a warranty of title is implied. See, also,
White v. Foljambe.ll Ves., 337; Deverell v. Lord
454
Bolton, 18 Ves., 508 : Purvis v. Rayer, 9 Price, 488.
A covenant to give a good and sufficient deed, re-
quires one which conveys a good and sufficient
title. Clute v. Robinson, 2 Johns., 595 ; Judson v.
Wass, 11 Johns., 525 ; Everson v. Kirtland, 4 Paige,
628; Story v. Conger, 36 N. Y., 673 ; Jones v. Gard-
ner, 10 Johns., 266; Stevens v. Hunt, 15 Barb., 17.
As to a grant of landsheld adversely, see Whitaker
v. Cone, 2 Johns. Cas., 58, note; Jackson v. Todd, 2
Cai., 183, note; Jackson v. Wheeler, 10 Johns., 164,
note.
JOHNS. REP., 12.
1815
VAN EPS v. MAYOR, ETC., OF THE CITY OF SCHESTECTADY.
487
Mayor to execute deeds to the purchasers, on
the treasurer's receipts being produced for the
purchase money, «fec., to have the payments
collected, and "to inquire into the claim of
Schertnerhorn to certain lots, and take meas-
ures, if ii settlement could not be effected with
him, to bring an action to recover the posses-
sion. On the 5th of May, 1812, it was resolved,
by the defendants, that the treasurer in- direet-
i-'l to collect the amount due for the Turnpike
lots, except such lots as were in controversy.
At the time this resolution was passed, the
plaintiff was a member of the Corporation,
.and continued to be a member for twelve
months thereafter. The land in possession of
Schermerhorn, referred to in the minutes of
the Corporation, covered two acres, one rood,
and eight perches, of lots Xos. 11, 12 and 13,
three of the lots purchased by the plaintiff. It
•was proved that part of lots Nos. 11. 12 and
18, had been the property of Schermerhorn,
and his father, for more" than twenty-seven
years, and had been continually in their pos-
session. I. F. Schermerhorn came to the pos-
session annut seven years ago, by descent from
4JJ8*J *his father, and about five years ago
inclosed it with a ditch ; and held adversely
to the defendants.
The whole amount of the purchase money
paid by the plaintiff, with interest to the 20th
of October, 1814, was $2,490.84 ; and the
amount paid on lots 11, 12 and 18, in posses-
sion of Schermerhorn, with interest to the 20th
of October, 1814, was $834.65.
The auctioneer who sold the lots testified
that the treasurer of the defendants was pres-
ent, and stated the terms of sale, but nothing
was said as to the nature or form of the deed
to be given ; and that he never heard that
Schermerhorn. or any other person, had the
possession, or laid claim to any of the lots.
Another witness testified that the adverse pos-
session of Schermerhorn was a matter of pub-
lic notoriety at the time of the sale.
The judge was of opinion that the plaintiff
was entitled to recover the sum of $W34.65
only. The jury found a verdict for the plaintiff
for the whole sum of $2,490.34, subject to the
opinion of the court on a case containing the
facts above stated ; and if the court shoulii be
-of opinion that the plaintiff had no riLrlit to re-
scind the contract as to the whole of the lots,
but only as to the three in controversy with
Schermerhorn. then the verdict was to be re-
duced to $834.65 ; or if the court should be
of opinion that the sale as to any of the lots
ought not to be rescinded, then a judgment of
nonsuit was to be entered.
Mr. Hudson, for the plaintiff. Ever}' sale
of real estate, at auction, is a sale of the title,
or the legal estate, in fee, clear of all incum-
brances ; unless the terms of sale, or agree-
ment of the parties, be different. (Sugden's
Law of Vendors, 5, 6. 21, 25. 296.) A cove-
nant to execute a good and sufficient deed of
land, means that the party is to give a good
and valid conveyance of the title. (Clute v.
Kobuunn, 2 Johns.. 5»5. 613; Cole & Front v.
Rtiymnnd, 2 Caines, 195; Jud*on v. Warn, 11
Johns., 528; Jonet v. Gardner, 10 Johns..
269.) If the vendor sells a doubtful title ; if
there are no persons to covenant ; if title deeds
•cannot be produced ; or if there are incum-
S. REP., 12
brauces, or the purchaser is to take the title at
his own risk ; all these are circumstances
which must be inserted in the terms of sale,
and made known to the vendee, otherwise the
general principle is to govern, and the vendee
may disaffirm the contract, and recover back
the deposit money. Van Ness. ,/., in Judton
v. Watt, says : "In every sale like the prosi-nt.
there is a condition that the *pur- [*4tt!>
chaser shall not be bound to part with his
money, unless the seller is able to give
him a title according to the terms of the
sale."
If the vendor is not ready with his title
deeds at the day fixed, no action lies against
the purchaser for the non -performance of his
agreement. (Kerry v. Young, 2 Esp. Ca«.,
640. «.; Sugden's Law of Vendors, 246.)
The purchaser must take care that he has a
good title, or an express warranty (1 Salk.,
211). which would be a useless caution, if the
vendor was hot bound to show his title, or ex-
ecute a deed with the necessary covenants.
Here was a sale at public auction, without
any previous agreement between the parties,
ami the terms of sale were, that a deed was to
be executed when the money was paid. The
fair construction of the terms of sale is, that
the title was to In- sold without limitation ;
and the plaintiff, having paid his money, and
demanded a conveyance that would protect
him, and no title being shown or tendered, he
may rescind the contract. He was entitled to
the regular chain of covenants, of seisin in
fee, and power to convey ; for quiet enjoy-
ment, &c. ; unless these covenants are express-
ly dispensed with in the terms of sale. (Sug-
d"en's Law of Vendors, 298-300.)
A deed means a good and sufficient deed, or
one containing the usual or reasonable coven-
ants. (Com. Dig., Cond.. H.) It is only
where purchases are made with the express
understanding that the title is to be at the
risk of the vendee, that these covenants are
dispensed with. (Per Livingston, J., in Frost
v. Raymond, 2 Caines, 195.)
After the vendee lias accepted the deed,
there is an end of the agreement, and he has
nothing to look to but his deed. (10 Johns.,
297.) He has time, therefore, to look to
the deed, and before he has accepted it, the
maxim of caveat emptor does not apply. (6 T.
R.. 606; 3 Bos. & P., 162. 163.)
The plaintiff, in this case, asked no more
than what every purchaser is, bylaw, entitled
to. If there are doubts as to the title of the
vendor, neither a court of law nor equity will
compel the vendee to a performance. Here
there were reasonable doubts, as the defend-
ants, when called upon, would neither show
their title deeds, nor give a deed with the usual
and reasonable covenants. The Act relative
to Sheriff's Sales (1 N. R. L., 804, fess. 86. ch.
50, sec. 11) shows the sense of the Legislature
on this subject, by protecting purchasers, and
j providing that their money should be restored
to them, in case there should be a failure of
title, or incumbrances.
'Besides, here was such a want of [*44O
ilisclosure of circumstances which ought to
1 have been disclosed at the time, that the pur-
I chaser ought to be allowed to rescind the con-
tract (5 Burr., 2689); more especially, as a
454
440
SUPREME COURT, STATE OF NEW YORK.
1815
corporation cannot be liable to an action for
deceit or fraud.
Again; all the lots sold were so connected,
that it must be considered as an entire sale.
All the payments were made together, as one
entire contract, and the deed tendered by the
defendants was for the whole of the lots sold.
There being an adverse possession of some of
the lots, so that the defendants could not give
a good title for them, the case comes within
that of Poole v. Shergold, 2 Bro. Ch. Cas., 118,
in which Lord Kenyon, when sitting for the
Lord Chancellor, said, that if a purchase was
made of a mansion house in one lot, and of
farms, &c. , in other lots, and no title could be
made by the vendor to the lot containing the
mansion house, the purchaser might rescind
the whole contract.
That the plaintiff has a right to recover back
the money paid for the three lots held adverse-
ly at the time of the sale, there can be no
doubt. It has been repeatedly decided in this
court, that a party cannot convey lands held
adversely, without being guilty of mainte-
nance ; and if he does, his deed is void.
(Williams v. Jackson, 5 Jotins., 489 ; Jackson
v. Durriont, 9 Johns., 58 ; Jackson v. Matts-
dorf, 11 Johns., 97.)
Mr. J. V. N. Yates, contra. The vendor of
real property is not bound to return the pur-
chase money, unless there is fraud in the sale,
or a warranty (Sugden's Law of Vendors, 1, 2,
7, 195, 199) ; and where the action is either to
recover back a deposit, or for damages, it is
essential to prove that the vendor knew of the
defect. There was no pretense of any mala
fides in this case, or a fraudulent concealment.
It is true that there is a class of cases where
an action lies to recover back money, on the
ground of a failure of consideration ; but the
action does not lie, if the money has been
paid under a full knowledge of the circum-
stances ; or where there is no fraud. (2 East,
269; 1 Bos. & P., 260 ; 1 Esp. N. P. Cas.,
279.)
In Nixon v. Hyserott, 5 Johns. , 58, this court
said that a conveyance would be good and
perfect, though it contained no personal cov-
enants or warranty.
In Poole v. Shergold, Lord Kenyon decided
that where an estate is sold at auction in lots,
and the vendor has not a title to all the lots
sold, the purchaser will be compelled to take
the lots to which the title can be made, if they
441*] are not implicated *with the rest ; and
he is entitled to compensation only pro tanto.
In Drew v. Hanson, 6 Vesey, Jr., 675; see,
also, 7 Vesey, Jr., 270 ; 3 Anstr., 657, an in-
junction was obtained, restraining the defend-
ant from proceeding at law to recover back
his deposit, which was continued by Lord
Eldon, though it appeared that the principal
subject of the purchase were the corn and hay
tithes of the parish, inserted in the particulars
of the sale, and half the hay tithes belonging,
in fact, to the vicar, and the other half being
commuted for a customary payment. His
Lordship, in that case, said that in inforcing
a specific performance, on the principle of a
compensation for the variance from the de-
scription, the court had gone so far as to defeat
the very object of the purchaser ; and he states
several cases of apparent hardship ; as, where
456
there was a contract for the sale of a house
and wharf, and the object of the purchaser
was to carry on business at the wharf, yet the
Court of Chancery considered it a specific per-
formance of the contract, by giving him the
house, without the wharf. So, in Shirley v.
Davis, where the subject of the contract was a
house on the north side of the Thames, sup-
posed to be in the County of Essex, but which,
in fact, was in the County of Kent; and the
purchaser was told he would be made a church-
warden of Greenwich, and his object was to
be a freeholder of Essex, he was compelled to
take the house. So in Lord Stanhope's case,
where the object was to get an estate tithe free,
Lord Thurlow compelled him to take the es-
tate subject to tithes. '
In Johnson v. Johns&n, 3 Bos. & P., 162. the-
house was valued, and paid for, at £300, and
the land at £700 ; and the purchaser, being
evicted from the house, for a defect of title,
brought his action to recover back the £800,
but refused to give up *the land, and [*442
the Court of C. P. held that he was entitled to
recover.
Mr. T. Sedgwick, in reply, insisted that this
was an entire contract, and that a court of law
could not enter into those particular circum-
stances, which might induce a court of equity
to compel a performance of part only of the
contract. The decision of Lord Kenyon, ia
Chambers v. Griffiths, 1 Esp. N. P. Cas., 149,
was decisive on this point.
It does not follow, that because nothing was
said about any covenants in the deed, the ten-
der of a mere quitclaim deed, without any cov-
enants, was sufficient. Though some of the
old cases are contradictory on this subject
(Com. Dig., Cond., H; 1 Sid., 467), yet the
general rule is, that the deed must contain
reasonable covenants, or an effectual assur-
ance. A court of equity will not compel a
specific performance, unless the title of the
vendor be free from all suspicion. The pur-
chaser is not bound to accept a doubtful title.
(Sugden's Law of Vendor's, 210; 2 Vesev, 59;
2 P. Wms., 198; 3 Vesey, 679; Peake's Cas.,
131, per Ld. Kenyon.) The defendants being
out of possession of part of the lots sold, was
sufficient to raise doubts as to their title. The
defendants, at the trial, ought to have shown
that they had a good title to the whole.
1. — Mr. Sugden (Law of Vendors, 188) remarks,
that Lord Eldon, in Drew v. Hanson, did not take
notice of the cases of Chambers v. Griffiths, 1 Esp.
Cos., 149, and Boyer v. Blackwell,3 Anstr., 657, but
that he had learned that Lord Eldon had since men-
tioned, from the Bench, that he had met with the
case of Chambers v. Griffiths, and desired it to be
understood that he was not of the same opinion
with Lord Kenyon. The case of Chambers v. Grif-
fiths was that of several houses put up and sold in
separate lots, three of which were purchased by the
plaintiff ; but the vendor being- unable to give a
title to more than one of them, Lord Kenyon held
that it must be taken to be an entire contract, and
if the vendor fails in making; out a title to any one
of the lots, the purchaser might rescind the whole
contract. C. B. M'Donald seems to have been of
the same opinion in Boyer v. Blackwell ; and Lord
Alvanley, in Johnson v. Johnson, 3 Bos. & P., 163,
was of opinion that, though a court of equity might
inquire into all the circumstances, and ascertain
how far one part of the bargain was a material
ground for the other, and award a compensation
according to the real state of the transaction, yet
that, in a court of law, It must be deemed an entire
contract.
JOHNS. REP.. 12.
1815
WALKER v. SWAHTWOCT.
442
YATES, J., delivered the opinion of the
court :
In the certificate or contract executed by the
treasurer of the Corporation, and countersign-
ed by the purchaser, the lot sold i- mentioned,
and that upon the purchaser's making the
payments, particularly stated, a deed will be
executed for it by the defendants to the pur-
chaser ; and, in this instance, to the plaintiff,
his heirs and assigns, forever. This, certainly,
according to the terms used, does not create
an obligation on the part of the Corporation
to execute a deed containing the covenants in-
sisted on by the plaintiff. The deed stated in
the case, and offered to be executed bv the
Mayor, was a sufficient compliance with the
terms of the contract, to exonerate the defend-
ants : and unless other circumstances are dis-
closed by the evidence, to justify the plaintiff
in his demand to have the covenant required by
him inserted, he is still held by the contract,
and obliged to accept of the conveyance of-
fered to him. By covenanting to execute a
deed, no greater duty or obligation can be in- 1
tended than to execute a conveyance or as-
surance of the property, which may be good
and perfect, without warranty, or personal
44:3*] 'covenants. Its meaning, in the con-
tract before us, is clear and decisive, and will
not, even by implication, admit of a more ex-
tended construction or definition.
In the case of Frmt et ai. v. Raymond, 2 Caines,
191, it is stated, in the opinion of the court,
to be a settled position, that an estate in fee
may be created by the usual and solemn forms
of conveyance, without warranty, express or
implied ; and that a conveyance in fee does
not, i*po facto, imply a warranty ; that if it
did, our books would be inconsistent and un-
intelligible on the subject. The case of Nixon
v. Hyterott, 5 Johns., 58, supports the same
principle, and shows that a general power to
execute a deed does not authorize the giving
it with the usual covenants of warranty, &c.
It is evident, then, that where it is contracted
to execute a deed, as in this case, to the plaint-
iff, his heirs and assigns, forever, no covenant
of any description can be intended, either by
implication or otherwise ; nor will the circum-
stance of the sale being at auction vary the re-
sult. It must entirely depend on the contract
made at the time, which, in this case, is con-
clusive against the insertion of the covenant
required by the plaintiff, as appears from the
conditions or terms of sale previously made
known by the treasurer, and the subsequent
memorandum or certificate under the signature
of the parties.
It cannot be pretended that this was one
entire contract for all the lots. They were
put up at auction separately, and a certificate
given for each lot, which was countersigned
by the purchaser, so that the Corporation
were obliged, if required, to give separate
deeds. The offer, by the Mayor, to give one deed
or quitclaim for all the lots purchased by the
plaintiff, will not give such a character to the
transaction as to make it an entire contract,
and thus authorize a relinquishment, on the
part of the plaintiff, of the purchase of the
whole thirty-three lots, because a part of them
might have been held adversely at the time of
JOHNS. Hi.i-.. 12.
sale. The fact that each lot was separately
contracted for, appears so conclusively from
the evidence in the case, as, in my view, to
put the right of rescinding, on the ground
that the purchase of all those lots was one en-
tire contract, wholly out of the question . and,
therefore, the existence of an adverse pos-
session of a part of the lots could not affect
the contracts for the residue.
*From the facts disclosed by the case, [*444
it does appear that lots Nos. 11. 12, and 13, were
held adversely to the title of the defendants,
at the time the plaintiff contracted to purchase
them, and continued so until the payments for
them were made, which would, of course, have
rendered a deed for those lots (if it had been ex-
ecuted) wholly inoperative. The plaintiff ought,
consequently, to recover back the amount of the
consideration money paid for them. The ver-
dict must, therefore, be reduced to $834.65,
according to the stipulations in the case, for
which the plaintiff must have judgment.
Judgment for Hit plaintiff, accordingly.
Distinguished— 1 Hud.. 6; 49 N. Y., 486; 8 How.,
(U. 8.), 489.
Commented on -4 N. Y., 401.
Cited In— 13 Johns., 364: 16 Johns., 289 : 20 Johns.,
138; 8 Cow., 22; 4 Edw., 595; 9 X. Y., 544; 19 Bui t...
i*t : »£.' Barb., 5»1 ; 2 Itob., 68 ; 124 Mass., 41 ; 38 Mo.,
183.
WALKER ». SWARTWOUT.
Public Officers — Personal Liability must be tery
Apparent.
A public a-i-ni, in his known official capacity,
employinK a man to work on account of govern-
ment, la not personally liable for his wa#es.
Citations— Ante, 385; 3Cal.,69; 9 Coke, 76 ; 1 Mass.,
208 ; 1 Cranch. 345 ; 1 T. R., 172.
'PHIS was an action of anttumpsit, for work
I and labor, tried before Mr. Justice Spencer,
at the Jefferson Circuit, in June last.
The defendant was Quartermaster-General
of the Army of the United States, which ar-
rived at French Mills, in the County of Frank-
lin, about the 20th of November, 1813. The
defendant directed certain boatmen, who were
with the Army, and the plaintiff among the
rest, to go to work, for the use of the Army,
and that they should be each allowed $2 per
day, and one ration ; that the plaintiff accord-
ingly worked in making tents, &c., for the
hospital department, and laying up the boats
and rigging. After working about six weeks.the
defendant being about leaving French Mills,
the plaintiff applied to him for a certificate, as
evidence of the contract, and of the time he
had worked ; and the defendant replied, " My
word is sufficient ;" and told the plaintiff to
go to work, and he would pay him when his
work was done. The plaintiff continued to
work until the 20th of Febuary, 1814, when
he was discharged without having received
any pay. The plaintiff, not knowing where
to find the defendant, who had left the place,
applied to the Deputy Quartermaster-General,
at Sackett's Harbor, and informed him what
he had done, who paid the plaintiff $20.
NOTK.— PiiMte o/HwH-Prmonol lialMUv of. See
GUI v. Brown, ante. p. 386, note.
407
445
SUPREME COURT, STATE OF NEW YORK.
1815
445*] *The plaintiff, while at his work,
drew his rations daily, with the other boat-
men and soldiers, and "the defendant had paid
them their wages up to the 20th of November,
1814.
Brown, the Deputy Quartermaster-General,
testified that the plaintiff applied to him at
Sackett's Harbor, and informed him that he
had worked for the defendant, but produced
no certificate ; and having been previously ac-
quainted with the plaintiff, paid him the $20,
and took his receipt as Deputy Quartermaster-
general ; that he first employed the plaintiff,
-and others, in the autumn of 1813, to go down
the St. Lawrence with the Army, and gave
them their certificates of contract, on account
of the public. This contract with the plaintiff
•expired about the time the Army arrived at
the French Mills.
A verdict was found for the plaintiff for
the sum of $136. subject to the opinion of the
court on a case containing the above facts.
Mr. Benedict, for the plaintiff. The question
is, whether the defendant, on this contract, is
personally liable. There may be some ap-
parent contradiction among the authorities on
this subject. The general rule, however, to
be deducted from them, clearly is, that a pub-
lic agent, contracting as such, is not per-
sonally liable. But whether he contracted
as such agent or not, is matter of fact for a
jury to decide ; the intention of the parties,
at the time, is to govern. The plaintiff was
to work by the day. It could not be the in-
tention of the defendant that the plaintiff,
after working a day, should apply to the
government for his $2. But here is, in fact,
an express promise by the defendant himself,
that he would pay the plaintiff.
In Sheffield v. Watson, 3 Caines, 69, Livings-
ton, J., says that it is not enough that the
plaintiff knew the defendant to be a navy
agent, and that the frigate, whose model he
was making, was to be a public ship of war.
Before we send him to government for re-
dress, it should appear, as well that Watson
contracted in his official character, and on ac-
count of the United States, as that Sheffield
gave credit, and intended to look to govern-
ment for compensation.
Mr. Htorrs, contra. The court must look
back to the time when the plaintiff first left
Sackett's Harbor, when, according to the testi-
mony of Brown, he was employed expressly
on account of the government, and he most
•clearly considered himself as continuing in
44O*J *the same employment after the Army
reached the French Mills. He contracted with
the defendant as Quartermaster to the Army,
not as a private individual. The promise
made, afterwards, by the defendant, to pay
for the work, was without consideration, and
could not bind him personally.
THOMPSON, Ch. J. The only question in
this case is, whether the defendant is person-
ally responsible to the plaintiff for the work,
labor, and services performed by him. That
the defendant was a public officer, and that
the benefit of the plaintiff's labor was for the
public, are questions not in dispute. If the
case of Sheffield v. Watson, 3 Caines, 72, is to
be supported, there can be no doubt of the de-
458
fendant's liability. And independent of that
case, it appears to me, he is responsible, upon
well-settled principles, applicable to this class
of cases. It is not to be denied that an agent
may make himself personally responsible.
And, as was said by this court, in the case of
Qtti v. Brown, ante, p. 385, decided at the
present term (and which is a principle recog-
nized in all the cases on Ihis subject), it is a
question of intention in the contracting par-
ties, and this intention must be collected from
the circumstances of the case. In my judg-
ment, the circumstances showing a personal
liability in the defendant, in this case, are as
strong, if not stronger, than in the case last
referred to. Here is not only an absolute and
unqualified promise to pay, but a refusal to
furnish the plaintiff with the usual and neces-
sary voucher, to enable him to procure com-
pensation from the government. The case
states that the plaintiff went to work by the
direction of the defendant; and, after some
time, hearing that the defendant was about
leaving the place, the plaintiff applied to him
for a writing, or certificate, as evidence of the
contract, and of the time he had worked. The
reply made by the defendant was : " My word
is sufficient ; go to your work, and I will pay
you when it is done." The defendant was too
well acquainted with his business to suppose
his bare word was sufficient to enable the
plaintiff to obtain his pay from the govern-
ment. He well knew that some voucher from
him was necessary for this purpose, if the
plaintiff was to be turned over to the govern-
ment. When he, therefore, told the plaintiff his
*word was sufficient, and at the same [*447
time accompanied it with a promise to pay, it
appears to me to admit of no other reasonable
interpretation than a personal engagement to
pay. Had this not been the intention of the
defendant, his reply to the plaintiff's request
would not have been, "I will pay you when
your work is done," but "I will then give you
a certificate." The promise was to pay when
the work was done ; and if the plaintiff was to
look to the government for pay, how could
the defendant know when payment would be
made ?
It is the duty of an agent, and the usual
course of business, not only to disclose the
character in which he acts, but also to furnish
those with whom he deals with all requisite
vouchers, to enable them to have recourse to
the principal ; and when this is refused, the
reasonable intendment, and, I apprehend, the
legal effect, is, that the agent is personally
liable. When one acts as the agent or attorney
of another, he ought to do it in the name of
him who gives the authority, and cannot do it
in his own name. (9 Coke, 76.) Where ser-
vices are performed for a known public agent,
without any express contract, and the party
relies upon an implied obligation to pay, per-
haps the law would also imply that the service
was performed for the agent in that character.
But where the agent makes an express con-
tract or promise, in his own name, and not in
the name or on behalf of his principal, the
agent ought to be held personally responsible.
This necessarily grows out of the principle
that an agent or attorney mus<t contract in the
name of his principal. This appears to me to
JOHNS. REP., 12
1815
WALKER v. SWARTWOUT.
447
be a sound and reasonable distinction, and best
calculated to prevent parties from being mis-
led or deceived. In the case of Brown v. Austin,
1 Muss., 208. it is admitted by the counsel on
both sides, that if an agent make an express
promise to pay, he is personally responsible ;
and this seems to be taken for granted by the
court. Sedgwick, Jiulice, says there is no
doubt that an agent, by an express undertak-
ing, in his private capacity, makes himself
personally liable. When there is an express
undertaking, it must, I presume, always be
understood to be by the party in his private
capacity, unless otherwise expressed. No part
of the plaintiff's conduct would justify a con-
clusion that he did not look to the defendant
for pay, or consider him liable. When appli-
cation was made by the plaintiff to Brown, the
Deputy Quartermaster, he informed him he
had be'en at work for General Swartwout, and
448*] had nothing to show for his work, *and
did not know to whom or where to look for his
pay. Well might he say he did not know
win-re to look for pay, for the defendant had
left that part of the country, as appears by the
case, or is necessarily to be inferred, and had
refused to give him "any voucher for his -er-
vices. The defendant had not pursued the
uMial course of the public agents, who meant to
turn the workmen over to the public, for pay-
ment ; as would appear, not only, from the
known and general practice, but from the con-
duct of Brown, who had employed this very
plaintiff, and gave him a certificate of the con-
tract, on account of the public. The plaintiff
had good reason to conclude that the defend-
ant considered himself bound to pay him for
his work, when he not only refused to give him
any certificate, that he might look to the gov-
ernment, but expressly promised to pay him.
And I think he was fully warranted in such
conclusion, upon the soundest principles of
law and justice. I am, accordingly, of opin-
ion that judgment ought to be for the plaintiff.
SPENCER, /. It was supposed, on the argu-
ment of this cause, that the case of Sheffield v.
Wattan, 8 Caines, 69, overruled the decision
of the Supreme Court of the United States, in
the case of Hodgunn v. Dexter, \ Crunch. 346.
and Macbenth v. Haldiman, IT. R., 172, and
several other cases in the English courts ; but,
on as critical an examination as I have been
able to give of the subject, I cannot assent to
that proposition. Judge Livingston, who de-
livered the opinion of the court, expressly
states that it was not intended to shake any of the
English authorities on the point ; and he states
that the court in Hodgnon v. Dexter regarded
the contract as made entirely with a view to
government ; and that when that appeared, it
would be unjust to charge the officer.
Whether the court in Sheffield v. Watxtn
made a correct application of the principles
recognized and established in these two cases,
to the facts before them, may, I think, admit
of some doubt ; but certainly we did not in-
tend to overrule them. We have all of us had
occasion to remark, that, though we concur
in the point decided, unless our dissent be
slated, yet we are not committed by the illus-
trations of the judge who happens to give the
opinion. I make this remark here, because, I
JOHNS. RKP.. 12.
confess, the train of the judge's reasoning, in
fthejfitld v. Wattnn, does not appear to me per-
fectly reconcilable with the declaration, which,
*I am fully convinced, is correct, that [*44i>
we did not intend to shake any of the English
authorities.
I shall forbear stating the particular circum-
stances in Sheffield v. Wnl*on, which may dis-
tinguish that case from the two leading ones
already cited. It appears to me that the opinion
of Ashhurst, «/., in Macbentk v. HaMimnnd, is
entitled to the most unreserved respect, for its
clearness and perspicuity. He observes : "A
person acting in the capacity of an agent may.
undoubtedly, contract in such a manner as to
make himself personally liable ; and that (he
says) brings it to the true question, namely,
whether, from anything that passed between
the parties at the time, it was understood, by
them, that the plaintiff was to rely upon the
personal security of the defendant." He pro-
ceeds to state the facts, and then adds, " that
there is nothing in this transaction to fix the
defendant, or to show that the plaintiff looked
to him as his debtor at the time the credit was
given." Buller, J., in the same case, uses
these strong expressions: "And in any case
where a man acts as agent for the public, and
treats in that capacity, there is no pretense that
he is personally liable." In ascertaining the
intention of the parties, the court regarded the
existing facts when the goods were furnished,
and the subsequent conduct of the parties.
The Chief Justice, in delivering the unani-
mous opinion of the court in Ifndgson v. Dexltr,
observes : It is too clear to be controverted,
that whore a public agent acts in the line of
his duty, and by legal authority, his contracts,
made on'accouut of the government, are pub-
lic, and not personal."
After stating the facts, which went to show
that the house was taken on account of the
public, in pursuance of authority, and that
the contract was made by the head of a depart-
ment, for his use as an officer of government,
he then adds: "Under these circumstances,
the intent of the officer to bind himself person-
ally must be very apparent indeed to induce
such a construction of the contract."
It has been argued, in this case, that the
defendant promised to pay the plaintiff for his
work when it was done. The same argument
was urged in Hodgson v. Dexter, and the fact,
in that case, was, that Mr. Dexter covenanted,
under his seal, to keep the premises in good
repair, inevitable casualties, «fec., excepted, and
to yield up the same at the end of the term,
the same so *well and sufficiently kept [*45O
in repair ; but the court, holding it to be a
contract entirely on behalf of government, con-
sidered the obligation to be on the government
onlv, and not a personal undertaking.
The facts in this case show very clearly that
it never was in the contemplation of either
party, originally, nor until some time after the
labor was done" that the defendant should be
personally responsible. The plaintiff was em-
ployed, on the public account, to proceed down
the St. Lawrence, a«a boatman, with the Army,
and received a certificate of his being thus em-
ploved. On his arrival at the French Mills,
with the Army, the defendant, who was known
to the plaintiff to be Quartermaster-General,
•H
450
SUPREME COURT, STATE OP NEW YORK.
1815
and acted as such, directed the plaintiff to go
to work with the rest of the hands, for the
Army, and that they should each be allowed
$2 a day. The plaintiff, after working about
six weeks, learning that the defendant was
about leaving the place, applied to him for a
writing, or certificate, as evidence of the con-
tract, and the time he had worked. The
plaintiff drew his rations from the public store-
house, and, after leaving the French Mills,
applied to Major Brown, an Assistant Quarter-
master-General, stating that he had been to
work for General Swartwout, but had nothing
to show for his work, and did not know to
whom or where to look for his pay'; upon
which Major Brown advanced him $20, as
Assistant Quartermaster-General.
These facts abundantly show that the de-
fendant's contract with the plaintiff was as a
public agent, and that the plaintiff did not
work, nor contract to work, with a view to the
defendant's personal responsibility.
I entirely agree with Chief Justice Marshall,
that, to hold a public agent, acting in the line of
his duty, liable for contracts made on account
of government, would be productive of the
most injurious consequences to the public, as
well as to individuals ; and that no prudent
man would consent to become a public agent,
if he should be made personally responsible on
the public account.
This is not the case of an isolated boatman.
The same principles which will render the
defendant liable in this case, will, for aught I
perceive, make him liable to all the boatmen
who descended the St. Lawrence with the
45 1*] Army ; for it seems the defendant *set
them all at work, at $2 a day ; and hence the
greater improbability that he meant to subject
himself. I am, therefore, of opinion that the
defendant is entitled to judgment.
VAN NESS, YATES, and PLATT, JJ., were of
the same opinion.
Judgment for the defendant.
Cited ln-18 Johns., 125; 4 Cow., 263; 13 Wend.,
180 ; 46 N. Y., 75 ; 13 Barb., 601 ; 22 Barb., 614 ; 4 Daly,
102.
DOWDLE v. CAMP.
Contracts — Parol Contract far Sale of Lands —
Binding, on Payment of Purchase Money.
Where, on a parol contract for the sale of lands,
the purchaser pays part of the consideration, he
cannot, there being1 no default on the part of the
vendor, maintain an action to recover it back.
IN ERROR, on certiorari to a justice's court.
The plaintiff in error brought an action,
for goods sold and delivered, in the court be-
low, against the defendant in error. The
defendant pleaded the general issue, and gave
notice of set-off. It appeared, on the trial, that
in the fall of 1810 the plaintiff agreed to pur-
chase of the defendant two acres of land, at
$45 per acre, and towards payment to let the
defendant have a cow, valued at $16. The
contract was by parol. The defendant, a short
time after the bargain, had the land surveyed,
and offered to give the plaintiff a deed to it, on
receiving a mortgage to secure the payment ;
but the plaintiff declined receiving the deed,
400
until he had completed the payment. It also
appeared, from the plaintiff's confessions, that
the defendant had extended the time of pay-
ment, and that, if not made within the extended
time, which was long since past, the cow
should be forfeited. The justice nonsuited the
plaintiff.
Mr. N. Williams, for the plaintiff in error.
He cited Crawford v. MorreU, 8 Johns., 256,
and Tappenden v. Randell, 2 Bos. & P., 467.
Mr. Storrs, contra.
*Per Curiam. The cow, for which [*452
this action was brought, was delivered by the
plaintiff to the defendant in part payment of a
piece of land, the contract for the purchase of
which was by parol. The defendant, it appears,
has always been willing, and has offered to give
a conveyance of the land, pursuant to his con-
tract, but the plaintiff declined receiving it,
and now brings his action to recover back what
he has paid upon his contract. The action
cannot certainly be sustained, under the circum-
stances disclosed by the return ; for the cow
had become forfeited, according to the plaint-
iff's own confession. But the action would
not be sustainable independent of this. The
contract was not illegal at its inception, al-
though not binding upon the parties ; but pay-
ment of part of the purchase money was such
part performance as to become binding on the
defendant, and a court of equity would compel
a conveyance. The judgment must therefore
be affirmed.
Judgment affirmed.
Limited— 26 Mich., 421.
Cited in-4 Denio, 53 ; 45 N- Y.. 147, 165 ; 49 N. Y.,
29 ; 17 Barb., 472 ; 6 Abb. N. C., 150 ; 10 Bos., 207 ; 4
Daly, 547 ; 2 Hilt., 10; 26 Mich., 421.
JACKSON ex dem. BRISTOL ET AL.,
v.
ELSTON.
Ejectment — Deed — Subsequent Recoi'ded Deed
is Good as against Prior Unrecorded Deed —
Notice — Adverse Possession.
Explicit evidence of notice of a prior unregis-
tered deed, must be given, in order to destroy the
effect of a subsequent registered deed. Where a
person purchases the possession of an occupant of
land, without color of title, and afterwards conveys
the land to another, in fee, this is such an adverse
possession as will avoid a grant from the true pro-
prietor.
Citation— 1 Cai., *58.
was an action of ejectment for lot No.
J. 33, in the township of Cato, formerly
Brutus, tried at the Cayuga Circuit, in June
last, before Mr. Justice Van Ness, when a ver-
dict was taken for the plaintiff, subject to the
opinion of the court on the following case:
Letters patent for the lot in question were is-
sued to Enos Haggerty, a soldier in the line of
this State, dated the 19th of February, 1791.
The marriage and death of Haggerty were
NOTE.— Registration of deeds— Subsequent pur-
chaser without notice of unrecorded deed. See Jack-
son v. Bonnell, 9 Johns., 163, note.
Grant of land* held adversely. See Whitaker v.
Cone, 2 Johns. Cas., 58, note; Jackson v. Todd, 2 Cai.,
183 note; Jackson v. Wheeler, 10 Johns., 164, note,
JOHNS. REP., 12.
1815
BHOWN v. WILDE.
432
proved, and that Julia Ann Williams was his
onlv surviving child by that marriage. The
plaintiff also gave in evidence a deed for one
half of the lot in question to Charles B. Bris-
tol, one of the lessors, from Alexander Will-
iams, and the said Julia Ann, his wife, dated
the 5th of March, 1809, and recorded in the
office of the clerk of Cayuga County, the 27th
of August, 1811 ; also a deed from the said
Williams and his wife, for one equal half of
the said lot, to Daniel M Bristol, dated the
453*] *4th of March, 1811, and recorded in
the same office the 27th of August, 1811.
The defendant gave in evidence a deed from
Julia Ann Haggerty to Jehiel Day, dated the
27th of August, 1795, for one half of the said
lot ; and also another deed between the same
parties, dated the 19th of December, 1798, for
an equal half of the same lot; but neither of
these deeds had been recorded. He also pro-
duced a deed from Abraham Belle, dated the
22d of March, 1808, for the whole lot, and
proved that he was in possession of the
premises in question, under that deed, at the
date of the deeds from Julia Ann Williams
and her husband, to the Bristols, above men-
tioned. It appeared that eight years ago
Bell purchased the possession of some person
then on the lot, but without color of title, and
that, at that time, about fifteen acres had been
cleared and improved ; and that at the time of
the trial, about thirty acres had beeu cleared.
Mr. Rice, for the plaintiff, contended that
there was no adverse possession in this case,
and that the person of whom Bell purchased
the mere possession must be considered to
have held it for the rightful owner, Williams.
He cited Brandt v. Ogden, 1 Johns., 156 ;
Smith v. Burtis, 6 Johns., 197; Jackson v.
Sharp, 9 Johns., 164-166; Doe v. Campbell,
10 Johns., 475.
Mr. Kellogg, contra, contended that the
entry, though with mere color of title, was
sufficient to make out an adverse possession.
In Jackson v. Sharp the defendant entered
without color of title, for the benefit of the
patentee. This case was, in this -respect, like
that of JacJaon v. Wheeler, 10 Johns., 164. If
the defendant entered on the fifteen acres, claim-
ing title to the whole, the case of Jackson, ex
dem. Putnam, v. Bowen, 1 Caines, 357, was in
point, and decisive as to the adverse posses-
sion.
Per Curiam. The title of the Bristols, two
of the lessors of the plaintiff, cannot be af-
fected by the two deeds previously executed
to Jehiel Day, for the same premises, because
neither of those deeds are recorded ; and it
does not appear that the Bristols purchased
with notice, or knowledge of those prior deeds
454*] *to Day ; and explicit proof of such
notice, or knowledge, is indispensable to sup-
ply the defect of a prior registry. Without
such evidence, the deed first registered must
prevail against a previous unregistered deed,
or the Statute requiring the registry of those
deeds would be nugatory. But it appears
from the case, that on the 22d of March, 1808,
the defendant had purchased from one Abra-
ham Bell the whole of this lot, and that he
was in possession of the premises in question,
under that deed, at the dates of the two deeds
to the Bristols. It is, therefore, evident that
Jonxs. REP., 12.
I the defendant entered and possessed under
Bell's deed to him. This was an original en-
! try. under color of title, sufficient to make it
' a possession, and holding adverse to the title
of Williams and his wife, and prevents the
operation of the deeds given by them to the
Bristols ; and having thus entered and im-
proved a part of the lot, with a claim to the
whole, under this deed, he must be deemed in
adverse possession of the whole lot.
If an adverse possession of part, with a
claim of title to the whole lot, for twenty
years, would bar the action of ejectment, and
we have so decided in Jackson ex dem. Putnam
et al., v. Bowen, 1 Caines, 858, then it will
hardly be questioned but that the existence of
this possession will destroy the operation of
the deeds given to the Bristols at the time ;
nor can the manner in which it was originally
obtained by Bell change the charter of the pos-
session; because the defendant held under a deed
in fee, and claimed the whole in virtue of that
deed. Whether the person who sold to him
had purchased the naked possession or not,
cannot avail. The lot was held and possessed
adversely, at the date of those deeds, and that
is sufficient. They must be deemed inopera-
tive and void.
Judgment for the defendant.
Cited in-23 Wend., 821; 10 N. Y., 518; 13 N. Y.. 580:
53 N. Y., 295; 6 Barb., 8 BOB., 169; 5 Rob., 717; 1 Mc-
Lean, 294.
*BROWN t>. WILDE. [*455
1. Verdict Against Weight of Evidence. 2. Evi-
dence under General Issue.
Where, in a trial in a justice's court, there is evi-
dence on both sides, so that the question is at least
doubtful, the judgment will not be reversed, even
if the verdict were against the weight of evidence.
A former trial cannot be given in evidence, under
the general issue, unless by consent ; but if the de-
fendant offered other matter of defense, which
was entered into at large, and it does not appear
that injustice has been done, the judgment will not,
on that ground, be reversed.
N ERROR, on certtorari to a justice's court.
I
The plaintiff in error brought an action of
trespass on the case, in the court below,
against the defendant in error, for fraud in
the sale of a horse. The defendant pleaded
not guilty, and the cause was tried by a jury ;
there was considerable evidence on both sides
as to the fraud, and the jury found a verdict
for the defendant. In the course of the evi-
dence, it appeared that there had been a for-
mer trial between the same parties, in relation
to a pair of horses, of which the horse in ques-
tion was one. The justice, in answer to the
allegation in the affidavit, that the evidence of
the former trial was objected to as inadmis-
sible under the general issue, returned that it
was admitted under the agreement of the
parties.
Per Ouriam. The judgment must be affirmed.
Whether there had been any fraud in the sale
of the horse, was a proper question for the
NOTB.— New trial— Verdict aqainxt evidence or
without evidence. See Wilkie v. Kooaevelt, 3 Johns.
Oik* MB, note.
461
455
SUPREME COURT, STATE OP NEW YORK.
1815
jury, and there having been evidence before
the jury, that rendered the question, at least,
doubtful, we do not, in such cases, interefere,
even where the verdict is against the weight
of evidence. The evidence of the former trial
was not admissible under the general issue, if
there had been no agreement between the par-
ties on the subject ; but the justice was war-
ranted from the agreement, which he states,
to draw the inference that the objection was
waived. At all events the defendant did not
rest upon the former trial as his sole defense;
but the merits of the question of fraud were
entered into at large, and we cannot say that
injustice has been done.
Judgment affirmed.
Overruled-2 Hill, 479.
Cited in— 6 Cow., 692; 15 Wend., 492; 5 Barb.,
562; 57 Barb., 601; 7 How. Pr. 67; 31 How. Pr.,
374; 2 Blatchf., 71; 2 Wood. & M., 153; 3 Wood.
& M., 188.
456*] *FOSTER v. TRULL.
WOODFORD 0. THE SAME.
1. Evidence — Process Cannot be Proved by Parol.
2. Accord and Satisfaction. 3. Discontinu-
\ ance — May be Proved, by Extrinsic Evidence.
Process cannot be proved by parol, but the pro-
cess itsell must be produced, or a sworn copy ; and
if the original be lost, it must be accounted for.
Where A and B have suits for false imprisonment
depending: against each other, an agreement to dis-
continue their respective suits, and an actual dis-
continuance, are a good accord and satisfaction.
The discontinuance of the suits may be proved by
other evidence besides the production of the min-
utes of the court.
rPHESE were actions of assault and battery
JL and false imprisonment, tried at the Onon-
daga Circuit, in June last, before Mr. Justice
Van Ness.
It was proved that the defendant, Trull,
who was a captain in the Army of the United
States, in consequence of his having suffered,
in an attempt to remove the plaintiffs and
others out of a house in which they lodged,
and where they were making a noise and dis-
turbance, ordered a sergeant, one Trueinan
Curtis, with sixteen soldiers, armed with mus-
kets and bayonets, to arrest the plaintiffs and
others, and confine them in the military guard
house. The order of the defendant was exe-
cuted, and the plaintiffs were confined in the
guard house, from 11 o'clock at night until
the morning.
The defendant proved that actions of assault
and battery and false imprisonment, had been
brought in the Court of Common Pleas of the
County of ^Onondaga, by each of the above
plaintiffs, against the defendant, and Trueman
Curtis, in which they had been arrested by
the sheriff, and the writs returned "taken;"
copies of which writs were produced, and de-
fendant also produced writs issued out of the
same court, in favor of Trueman Curtis,
against each of the plaintiffs, for an assault
and batter}r and false imprisonment, with the
sheriff's return of cepi corpus thereon indorsed;
and which suits were brought by Curtis for
false imprisonment, under pretense of the
other suits. Curtis testified that he acted as a
462
principal, and gave orders, under Trull, in the
arrest and imprisonment of the plaintiffs, for
which the present suits were brought.
The defendant then offered to prove, by
Curtis, that he had been sued by the plaintiffs,
severally, for the same false imprisonment,
but no writs were produced. This evidence
was objected to, but admitted, subject to the
opinion of the court. Curtis testified that he
and Foster, one of the plaintiffs, came to a
settlement of both of the above suits, and of
the several suits of the plaintiffs against him.
On which settlement Foster paid *Cur- [*457
tis $40. A memorandum of the settlement,
signed by Foster, was produced, and was as
follows : " This is to certify that the suits
commenced by me and Solomon Wood ford,
against Trueman Curtis (Marsh and Rice,
attorneys), are discontinued and discharged,
which I bind myself my heirs and representa-
tives, never to prosecute for the same. Man-
lius, 27th of May, 1818. S. M. C. Foster." It
was also proved that Curtis directed his attor-
ney to discontinue the suits in his favor,
against the plaintiffs, and that they were
stopped, and Curtis paid the costs of prosecu-
tion. This evidence was objected to, without
the records of the court being produced, but
admitted, subject to the opinion of the court.
It was proved by Curtis and Foster that since
the settlement of the suits, Woodford, on being
informed of it, said it was correct, and that he
was glad of it, and approved of what Foster had
done. The defendant also offered to prove
that Mr. Rice issued writs in favor of Foster
and Woodford, severally, against Curtis, and
that he was arrested on them, which was ob-
jected to, unless the writs or records were pro-
duced, or it was shown that they were lost ;
but the testimony was admitted, subject to the
opinion of the court.
Mr. Sill, for the plaintiffs, contended, 1.
That the pendency of the suits against Curtis,
and the discontinuance of the suits by him,
ought to have been proved by the record, and
not by parol. (6 Johns., 9 ; 7 Johns., 19.)
2. That the pretended settlement was no
more than an accord, without a satisfaction,
and therefore no bar. (Roll. Abr., 128 ; Bac.
Abr., Accord, a ; 5 T. R, 141.)
Mr. Wendell, contra, insisted that there was
evidence of a complete accord and satisfaction ;
that a reasonable satisfaction was sufficient,
especially in the case of a tort. (2 H. Bl., 317;
1 Roll Abr., 128 ; 5 Johns., 386.)
YATES, J., delivered the opinion of the
court.
There can be no question that parol proof,
respecting the existence of a process issued out
of a court, is inadmissible. The process itself
must be produced, or a sworn copy ; and if
the original is lost, it ought to be accounted
for. It is somewhat extraordinary that this
was not done on the trial of these causes.
There are strong reasons to believe that the
writs which were issued in the various suits
first commenced by those parties against each
other, with the sheriff's return indorsed, were
never filed in the clerk's *office, [*458
after the written agreement in relation to those
suits (as stated in the case) had been entered
into, but remained in the hands of the respect-
JOHNS. RFP., 12.
1815
GARDINER v. BUUIIAM.
458
ive plaintiffs, who, probably, destroyed them.
As nothing of this sort, however, appears from
the testimony, no notice can be taken of the
parol proof respecting the process and com-
mencement of the suit. The decision of the
present causes must depend on the effect of
the settlement made between the parties.
The only question to be discussed is,
whether this settlement, and tliecireuinMaiu <-
which immediately ensued, can be deemed
evidence of accord and satisfaction, so as
to bar the present actions. This, I am inclined
to think, is the fair deduction from the written
agreement, and that part of the testimony con-
nected with it, which the court are authorized,
on legal principles, to receive.
The written agreement admits that suits had
been brought by Foster and Woodford against
Curtis, which rendered the production of the
process in those suits, to show that they were
commenced, unnecessary ; aud it could not
conclusively be made to appear that they were
for the same cause of action with the suits
now brought by them, in any other way than
by parol proof. As far, therefore, as Curtis'
evidence went to show that fact, it ought to be
received. He declares that he had been sued
by the plaintiffs severally, for the same false
imprisonment which i.« the subject of contro-
versy in the present suits ; and the acceptance
of a similar agreement from Curtis by Foster,
shows the satisfaction to be rendered by Curtis.
The agreement purports to be for suits com-
menced, and is not confined to the suit brought
against them jointly. The accord extended to
the suits mentioned by Curtis in his evidence ;
and if so, it remains only to show that satis-
faction followed it ; for the law cannot be
questioned, that accord, without satisfaction,
is an insufficient or bad defense.
I do not think it was indispensably neces-
sary to produce the record showing the dis-
continuance of Curtis' suits, in making out a
compliance with the respective agreements.
Sufficient appears without it. It is in evidence
that the suits were stopped, according to
Curtis' directions to his attorney, and he paid
the costs. From those circumstances we have
reason to infer that the writs were never filed
in the clerk's office. All this taken together
is a sufficient discontinuance ; and must,
459*] *and ought to be deemed such a
compliance with the written agreements, inter-
changed between Foster and Curtis, as to
amount to a satisfaction ; and if so, then the
present suite are at an end.
The recognition by Woodford of Foster as
his agent, appears to be explicit and satisfac-
tory. He declared, after the settlement, that
it was correct ; that he approved of what
Foster had done in his behalf, and agreed to
it. He, therefore, is bound by this agreement,
which has been fully satisfied as to him ; for
the suit against him, in favor of Curtis, was
also stopped, and the costs thereon paid. The
written agreement, therefore, taken in connec-
tion with the other circumstances, is sufficient
evidence of accord and satisfaction to bar the
present actions. The defendants are entitled
to judgment in their respective causes.
Judgment for tiie defendants.
Cited ln-84 N. Y., 391.
JOHNS. HEP.. 12.
GARDINER, Assignee, &c..
BURHAM AND OLCOTT.
Practice — Action on Bail-bond — <\>*t».
An action on a bail-bond may be brought in this
court, win TV the original suit was in a court of C. P.
as of Madison County, and the principal resided in
Montgnmery.and the bail in Madison.and this <-<>urt
will relieve Imil on the same terms ii> the eoiirt be-
low, and costs as in the C. P. only are allowed.
THIS was an action on a bail-bond. The
original suit was in the Court of Common
Picas of Madison County. The principal re-
>idcd in Montgomery County, and the bail in
Madison ; and the present suit was against
both.
Mr. Edteards. for the defendants, moved to
set aside the proceedings.
Mr. Rrackett, contra, cited Ha»ioell v. Rate*
and iMiixiny, 9. Johns., 89; and see Dati* v.
<;it!'t, 1 Johns., 818, and insisted that this
cause came within the principle decided in
that case.
Per Curifim. Though the bail resides with-
in the county, yet we see no reason to set aside
the proceedings. Relief will be granted on
the same terms here as in the court below, and
costs of the Court of Common Pleas only will
be allowed.
Motion denied.
Cited in-13 Johns., 424 ; 1 Hill, 805 : 7 Peters, 286.
*!N TIIK MATTER OF BRON8ON AND [*4«O
MITCHILL.
Practice — Affidavit* Entitled — Attachment.
Affidavits for an attachment must be entitled in
the civil suit, until the attachment is grunted ; after
which the proceeding1 must be in the name of the
pei i]>ie. But it seems that affidavits to support a
motion for an attachment against a printer of a
newspaper, reflecting on the parties, or proceedings
in a cause pending in the court, need not be entitled
at all ; and if entitled erroneously, they cannot be
read. Whether they maybe not entitled in the civil
suit pending. Qiurre.
MR. MUNRO moved for a rule to show
cause why an attachment should not
issue against Mitchill, for a publication in a
gazette, of which he was the editor, reflecting
on Bronson, for bringing a certain suit, in
which he was plaintiff, and which was pend-
ing in this court.
The affidavits, on which the motion was
founded, were entitled: " In the matter of
Isaac Bron»on and Caldteett MitchiU ;" and Col-
den objected that the affidavits, not being
properly entitled in the suit pending here,
ought not to be read. He cited Folger v. Hoog-
land, 5 Johns., 235, in which the court said
that until the attachment was granted, the affi-
davits ought to be entitled in the original or
civil suit ; but after the attachment, the pro-
ceedings must be in the name of the people.
This was the practice of the Court of K. B.
in England, as settled in the case of Wood r.
Weltb, 8 T., R. 253, where the contrary practice,
laid down in The King v. The tf.'ieriff Middlt-
tex, 8 T. EL, 183, was explained and overruled.
(7T. R., 489; 2 East, 182.)
M8
460
SUPREME COURT, STATE OP NEW YORK.
1815
THOMPSON, Ch, J. The affidavits are wrong-
ly entitled. Until an attachment issues, the
affidavits must be entitled in the civil suit.
There is no such suit pending here as that men-
tioned in the title of these affidavits.
SPENCER, J. I do not think that, on an ap-
plication of this kind, the affidavits ought to
be entitled at all ; but here they are entitled,
and erroneously, and cannot be read.
VAN NESS, J. I do not consider it necessary
that the affidavits should be entitled at all, and
the present title may be rejected as surplusage.
It is merely to inform the court that Bronson
is the relator in a matter in which Mitchill is
concerned.
YATES, J. I agree with the Chief Justice,
that the affidavits are not properly entitled, and
cannot be read.
40 1 *] *PLATT, J. This is like an application
for an information, and no title to the affidavits
was necessary ; but I concur with my brother
Van Ness, in the opinion that the title gi\en in
the affidavits ought to be rejected as mere sur-
plusage.1
Cited in— 3 Denio, 56 ; 8 Barb., 547.
I
VOSBURGH v. THAYER.
Evidence — Books of Account — When Admissible
in Favor of the One Making the Entries.
Where there are regular dealings between the
plaintiff and defendant, and it is proved that the
plaintiff keeps honest and fair books of account,
that some or the articles charged to the defendant
have been delivered to him ; and that the plaintiff
keeps no clerk, his books of account are, under the
circumstances, and from the necessity of the case,
admissible evidence for the consideration of the
jury.
Citations— 8 Johns., 212, 211: 2 Salk., 690; 1 Salk.,
285 ; 1 Wash., 76 ; 2 Mass., 217 ; Pothier, part IV., art.
2, sec. 4 ; Evans' Trans., 483 ; Swift's Laws of Conn.,
p. 172; 1 Ball., 238; 1 Binn., 234; 2 Bl. Com., 368.
N ERROR, on certiorari to a justice's court.
Thayer sued Vosburgh, in the court below,
1.— In Haight v. Turner, 2 Johns., 371, the court
said that an affidavit on wlu'ch to ground a motion
for a mandamus to a Court of C. P., must not be en-
titled, for the same reason, that according' to the
practice in the English courts, affidavits on a mo-
tion for an information, or to hold to bail, must not
be entitled, namely, because there is, at the time the
affidavit is made, no cause pending1 in the court. As
to entitling affidavits, the English cases appear to
have been fluctuating and contradictory, it being a
matter of form, and not much regarded. But the
Court of K. B., 37 Geo. III., Trin., settled the prac-
tice as to affidavits to hold to bail, by a general rule
declaring that they should not be entitled in any
cause. King v. Cole. 6 T. K., 640 ; Hollis v. Brandon,
1 Bos. & P., 36 ; Green v. Renshaw, Id., 227 ; Clarke
v. Cawthorne, 7 T. R.,321 ; Id., R. G., 454. In Rex v.
Lawrence, Sayer, 218, it was decided that on a mo-
tion for a rule to show cause why an information
for a misdemeanor should not be tiled, the affidavits
ought not to be entitled.because, until the rule was
granted, there was no cause depending in court.
The same point was ruled in Rex v. Jones, and Rex
for butcher's meat furnished by him to Vos-
burgh and his family. It was proved by several
witnesses, that he had been in the daily practice
of supplying them with meat during the period
for which he claimed payment. It was proved,
by some of those who had dealt with him, that
he kept just and honest accounts. He then
offered his books of accounts in evidence, it
appearing that he had no clerk. The books
were objected to, but admitted in evidence.
PerCuriam. The only point for our consider-
ation is, whether the evidence in support of the
plaintiffs' demand, in the *court below, [*462
was admissible. In Case v. Potter, 8 Johns.,
212, the question, how far the books of account
of a party were evidence, incidentally came
under consideration ; but as there was suffi-
cient proof, in that case, to sustain the verdict,
without the books, there was no direct decision
on the point.
Cases are there cited, showing that by the
English law, tradesmen's books are not legal
evidence in favor of the party making the en-
tries ; and we intimated that such proof is
tolerated here, from the usage which has crept
in, and the difficulty of giving proof, in many
cases, of a sale and delivery irTthe usual course
of business.
In a case like the present, it is believed that
the usage and the necessity of admitting such
proof has been so long sanctioned and felt in
our courts of justice, that it is now too late
to question the admissibility of it. The ad-
mission of books of account in evidence, under
proper limitations and restrictions, is not cal-
culated to excite alarm, or to produce injurious
consequences. They are not evidence of money
lent. This was so held in Case v. Potter, be-
cause such transactions are not, in the usual
course of business, matter of book account.
They are not evidence in the case of a single
charge, because there exists, in such case, no
regular dealing between the parties. They
ought not to be admitted where there are
several charges, unless a foundation is first
laid for their admission, by proving that the
v. Robinson, Str., 704, and note In 3d ed. by Nolen ;
but the affidavits produced by the defendant on
showing cause, may be entitled, King v. Pierson,
and, 313 ; but in Rex v. Harrison, 6 T. R., 60, it was
held that the latter need not be entitled, though,
after the rule is made absolute, the proceedings
must be entitled. 6 T. R., 641. So, in Bevan v. Bevan,
3 T. R., 601, it was decided that affidavits, on which
a motion was made for an attachment for not obey-
ing an award, the submission to which had been
made a rule of court, need not be entitled ; though
the affidavits by the defendant, on showing cause,
must be entitled. Affidavits to set aside an attach-
ment granted, but not, in fact, issued, must be en-
titled In the name of the King. 7 T. R., 438, 529. And
it seems that an affidavit showing cause is not prop-
erly entitled unless it contains the Christian names,
as well as the surnames of the parties. Fores v.
Dieman, 7 T. R., 661. Affidavits on a motion to stay
proceedings in a bail-bond suit, must be entitled in
that suit. Pell v. Jadwin, 3 Johns., 448 ; 5 Johns.,
367 ; 1 Bos. & P.. 337.
NOTE.— Evidence— Part \fs own entries. \
Where there are regular dealings between the '
parties, and it is proved that the plaintiff keeps
nonest, and fair books, that some of the goods have
been delivered, or some of the work performed,
and that the plaintiff keeps no clerk, such books
are from the necessity admissible in evidence . Case
v. Potter, 8 Johns., 211; Linnell v. Sutherland, 11
Wend., 568 ; Tomlinson v. Borst, 30 Barb., 42 ; Foster
464
v. Coleman, 1 E. D. Smith, 85 ; McAllister v. Reade,
4 Wend., 483 ; Morrill v. Whitehead, 4 E. D. Smith,
239 ; Conklin v. Stamler, 2 Hilt., 422 ; 8 Abb. Pr.,
395 : McGoldrick v. Wilson, 28 Hun, 443 : Wilder v.
Israel, 1 Browne (Pa.) 257 ; Ducoign v. Schreppel, 1
Yates, 347 ; Spence v. Saunders, 1 Bay, 119 ; Charlton
v. Lawry, Mart. (N. C.), 26 ; Easby v. Aiken, Cooke,
388. See statutes in many of the states. See, also,
Greenl. Ev., sees. 118, 119, notes.
JOHNS. REP., 12.
1815
VOSBURGH V. TlIAVKR.
462
party had no clerk, that some of the articles
•charged have been delivered, that the books
produced are the account books of the party,
and that he keeps fair and honest accounts,
and this by those that have dealt and settled
with him. Under these restrictions, from the
necessity of the case, and the consideration
that the party debited is shown to have reposed
confidence, by dealing with, and being intrust-
ed by, the other party, they are evidence for
the consideration of a jury. Testing the pro-
ceedings in this case by these rules, there is no
ground for reversing the judgment.
PLATT, J., dissented : 1. The admission of
the account book of a party, wherein a charge
is entered by himself, to prove the truth of
.such charge, without any other evidence of
the particular item so charged, would be an
innovation on the established rules of evidence,
as adopted by us from the English common
law
4O3*] *In auumptit, for a tailor's bill (Pit-
rtutn v. Mnddox, 2 Siilk., 690), Holt, Ch. J.,
allowed a shop book a- evidence, it being
proved that the clerk who made the entries
was dead, and that those entries were in his
handwriting. He said it was as good evidence
;i- the proof of a witnesses' handwriting to an
obligation ; but he held that such shop book is
not, of itself, evidence for the party in whose
favor the entries were made.
So, in the case of Price v. Torrington, 1
Salk., 285, the same rule was maintained.
<8ee, also, Lewis v. Norton, 1 Wash., 76.)
In the case of Potter v. Gate, 8 Johns., 211,
the same doctrine was sanctioned in this court.
The rules of evidence are part of the com-
mon law ; and in varying those rules, the le-
gitimate power of the court extends no further
than to decide that, from the varying condi-
tion or habits of society, or other causes, the
reason and foundation of the former rule have
•ceased, or varied ; and, therefore, the old rule
must be modified, or a new rule substituted.
To exercise a larger power would be a usurp-
ation of legislative authority.
I can perceive no such change in the reason
of the rule now in question. On the contrary,
if there remains any point of similitude be-
tween our community and that country from
whence we derive this rule, 4f we now possess
any characteristic habits in common with
Englishmen, they are to be seen in our com-
mercial transactions, and in the dealings be-
tween tradesmen and their customers.
In some countries (and particularly in the
New England states), the account book is
evidence for the party who makes it ; but I
believe, wherever this practice prevails, it is
inseparably connected with another rule,
which is, that the charges in the account shall
be sworn to by the party claiming the benefit
of such charges.
In the case of Cogswell v. Dolltoer, 2 Mass.,
217, it was ruled that shop books, verified bv
the oath of the party, may be given in evi-
dence to a jury. Sedgwick, J., there said :
" It is to be lamented that it is necessary, in
this country, to resort to evidence of this kind,
as it opens a door, and furnishes a temptation
to much mischief. Where a book i> oifen-il
in evidence, it ought to appear suited to aid
.I..IINS. REP.. 12. N. Y. R., 5.
the oath of the party, which it is brought to
fortify and confirm'"
*So it appears that the principal evi- [*464
dence there consists in the oath of the party ;
and that the account book is merely auxiliary,
in corroboration of the oath.
And. according to Pothier. parl IV., art. 2,
sec. 4 ; Evan's translation. 483, by the law of
Frdhce, a tradesman's books " make a semi-
proof, and the judges often decide in favor of
the demands of tradesmen, by admitting their
oath as supplying the defect of proof arising
from their books."
In "Swift's System of the Laws of Con-
necticut," &c., page 172, he says, " to admit
the books of the parties, without proof to
evidence them, would produce the greatest in-
justice. To require proof of every article
would require an impossibility. To allow the
proof of part of the articles charged to support
the delivery of the whole, would open the
door to the greatest frauds. It is best, there-
fore, to let the parties in to testify," &c.
In the case of Poultney et al., v. RUM, 1 Dal-
las, 238, Shippen, President, in delivering the
opinion of the court, said: " Thoueh, in
England, the shop book of a tradesman is not
I evidence of a debt, without the assistant oath
of the clerk who made the entry, yet here,
' from the necessity of the case, as business is
often carried on by the principal, and many of
our tradesmen do not keep clerks, the book,
proved bj- the oath of the plaintiff himself,
has alwavs been admitted." So, also, in
SUrrit v. Butt, 1 Binney. 234.
By our law, the party is not allowed to swear
in confirmation of his accounts. Shall we,
then, adopt part of the new rule, in admitting
the account book as evidence, without the
j qualification (the suppletory oath), which, in
other countries, has been thought indispensa-
! ble, in order to make that rule tolerable ?
I hope we shall never allow parties to swear
! to their accounts in our courts of law.
To permit a party to support his account by
his own oath, affords, in my judgment, but
little security against false accounts ; for the
man whose conscience would permit him, de-
liberately, to make a false charge against his
neighbor, would seldom hesitate to swear
to it.
Nor would I permit a party to defeat a
charge against himself, by denying it upon
oath : because it would be to discourage fraud
in some men, by tempting others to commit
perjury.
•Besides, we have adopted the En- [*4O5
gli.sh common law us a part of our State Con-
stitution, subject only to legislative alteration ;
and that common law is, therefore, more
strictly obligatory upon us, than upon our
sister states. In adopting a new rule of evi-
deuce, in this case, we make the law, instead
of expounding it.
We have no right to adopt the French law,
and the civil law, in preference to the English
rule ; as the courts of Massachusetts, Connec-
ticut, and Pennsylvania, seem to have done.
Sir \Villiam Blackstonc, however, insists that
the civil law was conformable to the English
rule; and that other nations have "distorted
it." (8 Bl. Com., 368.)
2. The new rule now attempted to be intro-
30 1 .',
4S5
SUPREME COUUT, STATE OF NEW YORK.
1815-
duced is impolitic and unsafe, inasmuch as no
human prudence or foresight can guard
against the fraudulent claims of tradesmen,
who, by acts of their own mere volition, are
permitted to subject a person to the payment
of money, on no other additional evidence than
that such person has, on some former occasion,
dealt with them on credit ; that they do not
choose to keep clerks ; and that they can pro-
duce witnesses to swear that such tradesmen,
in their dealings, have never cheated them. On
such proof alone, to compel the opposite party
to disprove the charge, or to pa}r it, would, in
my judgment, be an unreasonable hardship.
No necessity exists for such an alteration of
the rule, inasmuch as the tradesman always
has it in his power to protect himself, by re-
fusing credit ; by keeping a clerk, or servants ;
by calling witnesses, or taking receipts for ar-
ticles furnished. That a detailed account has
been delivered to the party charged, and that
he assented to it, or acquiesced without objec-
tion, is sufficient proof of the account, prima
facie; and there is in practice, generally, very
little difficulty in adjusting the balance of a
fair account, before suit brought.
That we and our ancestors, for ages, have
lived and enjoyed security, under the old rule,
is palpable evidence that no necessity demands
an alteration. Necessity is a dangerous word.
3. The rule, as now proposed to be modified,
is very complicated, and difficult in its appli-
cation ; and, therefore, extremely liable to be
misapplied and perverted, especially in jus-
tice's courts, where, according to the estab-
lished rules jn regard to setting aside verdicts,
4O6*] infinite frauds and oppression *may
be screened by the latitudinary powers of
juries in the application of such a complex
rule. The case would seldom, indeed, occur,
where this court could, on justifiable grounds,
control the verdict of a jury upon the point
now under consideration. I think, therefore,
the judgment of the court below ought to be
reversed.
Judgment affirmed. '
Explained— 38 Super., 268.
Cited in-12 Wend., 155; 16 Wend., 594; 20 Wend..
74 ; 4 Denio, 355 ; 4 N. Y., 247 ; 76 N. Y., 606 ; 6 Hun.
103 ; 12 Barb.. 23 ; 30 Barb., 43; 17 How. Pr., 400; 8
Abb. Pr., 397 ; 2 Hilt. 425 ; 1 E. D. Smith, 86 ; 4 E. D.
Smith, 240.
EDWARDS ET TJX. v. ELBERT.
Jurisdiction — Of Justice Court — Malicious Pros-
ecution not Within.
The assistant justice's court of the City of New
York has no jurisdiction of actions for malicious
prosecutions.
Citations— 1 Johns. Cas., 130 : 1 Cai., 191, 594 ; 3 Cai.,
129; 1 Johns. Cas., 228.
IN ERROR, on certiorari to a justice's court
of the City of New York.
Sally Elbert sued the plaintiffs in error, be-
fore one of the assistant justices, in and for
the City of New York, and declared, for that
the wife of Edwards maliciously preferred a
charge against her before the special justices
1.— See Thomas & Foster v. Sinkler, 1 Bay, 40;
Linch v. M'Hugo. Id., 33 ; Spencer v. Sanders, Id.,
119; Tunno v. Rogers, Id., 480; Slade v. Teasdale.
2 Bay, 172 : Lamb v. Hart, Id., 362 ; Tomlins et at. v.
How., 1 Wash., 190-191.
4G6
of New York, for having assaulted and beaten
her, whereby she was compelled to procure
bail for her appearance, and thereby was put
to expense in defending herself • against the
charge.
There was a jury trial, and a verdict for the
plaintiff below for $16.75, and judgment there-
for, and $7.93 costs.
It was objected, among other things, at the
trial, and the same objection was raised for
the consideration of this court, that the justice
had no jurisdiction of the cause.
Per Curium. The case of Main v. Prosser;
1 Johns. Cas., 13C, decides this question. It
was there held that justices of the peace had
no jurisdiction of actions for malicious prose-
cutions. The grounds of that opinion appear
to be twofold : 1st. That the nature of the
action involved delicate and important ques-
tions *affecting the administration of [*467
public justice, and frequently relating to pro-
ceedings in other courts, and might incident-
ally produce a review of the conduct of su-
perior tribunals. 2d. That the Act Concerning
Costs gave costs whenever the plaintiff recov-
ered in an action for malicious prosecution,
however small the recovery ; from which cir-
cumstance it was inferred that the Legislature
had this exception in view. In the Twenty-
five Dollar Act, which was in force when this
decision was made, the expressions were as
broad as they are in the Act giving the jus-
tice's courts, in the City of New York, juris-
diction of causes. Both Acts gave them juris-
diction of all actions of trespass on the case ;
and the general Statute relative to costs gives
costs now, in actions for malicious prosecu-
tions, wherever there is a recovery of dam-
ages, in any court of common pleas, or
Mayor's Court, though the sum recovered be
under $25.
The Act Conferring Jurisdiction on the
Assistant Justices in the City of New York
being posterior to this decision, it is a fair in-'
ference that, in specifying actions of trespass
on the case, the Legislature did not intend to
embrace actions for malicious prosecutions ;
for these expressions had received a judicial
construction, excluding the action for a mal-
icious prosecution ; and, therefore, it was not
necessary to except that action from the cog-
nizance of the assistant justices, because it
had been excepted by construction. In many
other instances, this court have implied excep-
tions in the general grant of power to justices
(1 Caines, 191, 594; 3 Caines, 129; and 1
Johns. Cas., 228.)
Judgment reversed.
*VAN BRACKLIN v. FONDA. [*4«8
Sales — Of Provisions to Consumer — Warranty
of Wholesomeness Implied.
In the sale of provisions for domestic use, the
vendor, at his peril, is bound to know that they are
sound and wholesome ; and if they are not so, he is
liable to an action on the case, at the suit of the
vendee.
Citation— 3 Bl. Com., 165.
NOTE.— Sale of Provisions— Implied warranty of
wholenomeneim.
Insales of provisions to the consumer for domestic
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. HATNBR.
488
I
N ERROR, on certiorari to a justice's court.
Fonda, the plaintiff in the court below, de-
clared against Van Bracklin, for that he had
sold him a quarter of beef as good and sound ;
that it was not good and sound, but bad and
unwholesome.
It appeared in evidence that Fonda pur-
chased of Van Bracklin a quarter of beef for
his own use ; that the cow had eaten, shortly
before she was killed, a very large quantity of
peas and oats, and that she was slaughtered
for fear she would die in consequence of her
having eaten them ; and it was proved, also,
that those who ate of the beef were generally
made very sick, and that one of Fonda's ser-
vants was sick for two weeks from eating it.
The jury found a verdict for the plaintiff be-
low for $5 damages.
Per Curium. The verdict settles the facts
that the beef sold was unsound and unwhole-
some, and that the defendant below knew the
animal to be diseased, and did not communi-
cate that fact when he sold the beef to the
plaintiff below.
In 8 Bl. Com., 165, it is stated as a sound
and elementary proposition, that in contracts
for provisions it is always implied that they
are wholesome ; and if they are not, case lies
to recover damages for the deceit.
In the sale of provisions for domestic use.
the vendor is bound to know that they are
•sound and wholesome, at his peril. This is a
principle, not only salutary, but necessary to
the preservation of health and life.
In the piesent case, the concealment of the
fact that the animal was diseased is equivalent
to the suggestion of a falsehood that she was
sound.
Judgment affirmed.
Cited in-17 Wend.. 272; 18 Wend.. 439, 458; 7 Hill,
86 : 1 Denio. 387 : 5 N. Y., 86 ; 21 N. _Y., 561 : 15 Hun.
.809; 50 Barb., 118; 1 Daly. 101; 3 E. D. Smith, 327;
1U.' Mass., 135.
4O9*] MACKSON, ex dem. TRACY,
HAYNER.
THE SAME, ex dem. THE SAME,
FERGUSON.
Kjfftment — Deed— Void if Obtained by Miarepre-
ientation.
\vii--n- an illiterate man is induced to sign a deed
by a misrepresentation of its nature and contents,
the deed is void.
Citation— 2 Johns., 404 ; 4 Johns., 103.
THESE were actions of ejectment, to re-
cover a farm in the town of Laudlake, in
the County of Rensselaer. The evidence was
taken out of court, and a case settled by con-
sent of the parties.
Abraham Frear was the source of the title,
both of the plaintiffs and defendants, and held
under a lease in fee, from Stephen Van Rens
selaer, dated September 22d, 1790. On the
18th of September, 1800, by an instrument,
indorsed on the lease, Abraham Frear and
wife assigned the premises to James Morrison,
in fee, and the point on which the causes
turned was that this assignment had been ob-
tained by fraud. The plaintiffs' lessor claimed
through Morrison, under a sale, by virtue of
an execution. In 1802 Abraham Frear de-
vised the premises to his son, John Frear;
and afterwards, in 1804, conveyed part of the
same to the defendant Ferguson.
Pownal Hitchcock, the principal witness to
prove the fraud, testified that he wrote the as-
signment on the lease, at the request of Sam-
uel Frear, a son of Abraham Frear, and at
Samuel Frear's house. After it was written,
Samuel Frear called his father out of another
room, who appeared reluctant to execute it.
The only persons present were Samuel Frear
and his wife, Abraham Frear and his wife,
and James Morrison. Abraham Frear asked
what the writing was, whereupon the witness
proposed to read it, but Samuel Frear told him
not to do so, for that the old man would not
understand it, and he did not wish him to.
Abraham Frear asked Samuel whether it
would not hurt him ; to which he replied that
it was only a bargain or agreement between
him (Samuel) ana Morrison, and could not
hurt him. Abraham said to his son that he
did not like to sign it ; and that he was not fit
to sign any paper. After some conversation
between Abraham and Samuel, the former,
with his wife, executed the assignment.
Abraham Frear was an illiterate man, not
being able either to read or write. The exe-
cution of the assignment was proved by
*Hitchcock, before Levi Rumsey, a f*47O
judge of the Common Pleas of Rennselaer
County, and also a justice of the peace. It
appears that, for the purpose of procuring the
attendance of Hitchcock before the judge, to
prove the execution of the assignment, a fic-
titious suit had been instituted between two
persons of the name of Dole and Tanner, in
which he was subpoanaed as a witness. Hitch-
cock testified that when he appeared before
the justice, he informed him that his evidence
was wanted respecting a bet. When Hitch-
cock was sworn, the justice asked him if he
saw Abraham Frear and wife sign the assign-
ment, and if he did it voluntarily ; to both of
which questions, he answered, yes ; and when
about to mention the circumstances attending
the transaction, the justice interrupted him ;
and there the trial before the justice ended. It
appears that upon the evidence thus taken be-
fore him, the justice, as judge of the Common
Pleas, made his certificate of proof of the exe-
cution of the assignment, which was dated
the 2,r>th of December, 1818. The witness, on.
u*e, there lx an implied warranty
Moses v. Mead, 1 Den., 178, note; Hyland v. Sher-
man, 2 E. D. Smith, 234; Divine v. MoCnrinick. 50
Barb., 118; Burch v. Spencer, 15 Hun, 504; Wright
v. Hart, 18 Wend., 449; Hoover v. Peters, 18 Mioh..
51 ; FYench v. VlnlnK. 102 Mass., 132.
For limitations of the doctrine, see Moses v.
Mead, 1 Den., 128 ; Winsor v. Lombard, 35 Mass., 01 ;
JOHNS. REP., 12.
Howard v. Emerson, 110 Mass., 321.
The iloi-lriin </<»•.< not aj>jW{/, unless the articles
sold are for Immediate domestic use. MOM-* \.
M.-U.I. l li.'ii . i;s: <;,,!, 1,-irh v. Ryan; 3 E. D. Smith,
:tH; :> D.M1..H17; Miller v. Seherder. 2 N. Y.. 2ti2;
Ryder v. NeituKv. 21 Min.. 70; Emuierson v. Brigr-
luiin. 10 Mass., 197 ; Mattoon v. Rice, 102 Muss.. 320.
467
470
SUPREME COURT, STATE OF NEW YORK.
1815
his cross-examination, said that the conversa-
tion between Samuel Frear and his father was
held in Dutch, which language he did not un-
derstand. On being asked how he understood
the old man was reluctant to sign the assign-
ment, he said that he understood it by his mo-
tions. Samuel Frear talked in Dutch to the
old man, and pointed to the assignment, and
the old man shook his head, and said "Naen,"
by which he understood him to mean that he
did not like to sign it. The witness said that
he did not mean to say that he heard old Mr.
Frear say that he was not fit to sign any paper;
and that at a circuit court held at Troy, sev-
eral years since, in an action between Morri-
son and Ferguson, respecting the premises, he
testified substantially the same as he had now
done. The trial last mentioned by the witness
was (as appeared from the testimony of Abra-
ham Van Vechteu) held in 1808, who also con-
firmed what the other witness said that the
testimony of Hitchcock was substantially the
same on this as on the former occasion.
There was a mass of evidence detailed in the
case, which it is unnecessary to set forth, as
all the material parts are referred to and stated
in the opinion of the court.
Mr Buell, for the plaintiffs, cited Peake's
N. P., 146; 2 Dall., 96; 2 Johns., 404; 4
Cruise's Dig., tit. 32, ch. 2 ; 2 Caines' Cas. in
Error, 47.
471*] *Mr. Van Vechten, contra, contended
that the assignment from Frear to Morrison was
fraudulent ; and that Morrison was not seised
at the time of sale, and that the sheriff's deed
was void. He cited Jacfoon v. Rumsey, 3
Johns. Cas., 236 ; 4 Johns., 163 ; Cro. Car.,
303, 304 ; 2 Co., 59 ; 1 Burr., 112; 1 Johns.
Cas., 34; 1 Caines, 84; 4 Johns., 390; 6 Johns.,
197, 218; Gilb. Ex., 42; Co. Litt., 222; 2
Cruise's Dig., 72, sec. 43; 1 Bac. Abr., Assign.,
157, A; Co. Litt., 214 ; Roll. Abr., 176; Skinn.,
6-26.
YATES, J., delivered the opinion of the
court :
The only question in these cases, is, wheth-
er the assignment from Abraham Frear to
James Morrison, of the 13th of September,
1800, and indorsed on the lease from Stephen
Van Rennselaer to Frear, of the 22d of Sep-
tember, 1790, is fraudulent and void.
If the facts stated by the subscribing wit-
ness to this assignment are true, there can be
no doubt that a gross and unexampled impo-
sition has been practiced on Abraham Frear,
who. it is alleged, executed it. Pownal
Hitchcock, the witness alluded to, states that
he wrote the assignment at the request of Sam-
uel Frear, who, after it was written, called
his father out of another room, who appeared
reluctant to execute it, and asked what it was.
The witness then proposed to read it to him,
which Samuel told him not to do ; that he
would not understand it, and he, Samuel, did
not wish him to read it ; and it was not there-
fore read to him. The old man then asked
whether it would not hurt him ; to which
Samuel replied "No," that it was only a bar-
gain between him (Samuel) and James Morri-
son, upon which he said he did not like to
sign it ; he was unfit to sign any paper. That,
after some conversation between them, he and
408
his wife executed it. In opposition to those
facts, it is, however, urged that this witness is
not to be believed, because he had previously
appeared before Levi Rumsey, one of the
Judges of the Court of Common Pleas of
the County of Rennselaer, to prove the as-
signment, and stated differently ; and because
he declares that Abraham Frear spoke in
Dutch, and that he did not understand that
language ; neither of these objections are true,
to the extent of invalidating his testimony.
The information he gave to the judge, as far
as he went, when he appeared before him, is
not materially variant from what he relates
now ; and according to Mr. Van Vechten's ev-
idence, it is *the same with what he [*472
testified on the trial of the ejectment, for the
same premises, in 1808. The witness says he
stated to^Judge Rumsey that Abraham Frear
signed it voluntarily, and that when he was
about to relate the transaction more particu-
larly the judge interrupted him. That he in-
tended to proceed with his relation is proba-
ble, because it appears he had, on a former
trial, given evidence, specially stating the cir-
cumstances which took place when the assign-
ment was executed, and Judge Rumsey him-
self, in his evidence, does not expressly deny
the fact mentioned by him, as having occa-
sioned the interruption, but generally states
that Hitchcock was examined b}r him, on oath,
in the usual form of the examination of wit
nesses to prove deeds, and that he examined
him, as fully as is usual, to all the circum-
stances required by law ; that the evidence is
stated correctly, but not verbally, in the cer-
tificate. All this may be true, and yet if the
witness had (as he intended) related the whole
of the circumstances, it would have given a
different aspect to the transaction, from what
now appears by the certificate of proof, in-
dorsed on the assignment. The unusual and
extraordinary method resorted to, by institut-
ing a fictitious suit to enforce the attendance
of a subscribing witness to prove a deed, is, in
my view, highly improper ; particularly where
the justice of the peace, and judge (for Judge
Rumsey acted in both capacities) did not know
as he declares, at whose instance, or for whose
benefit such fictitious suit was instituted. It
was certainly exercising the powers of a justice
of the peace for a purpose different from what
the statute, giving to justices jurisdiction of
causes to be tried before them, ever contem-
plated. \nJack»onv. Schoenmaker, 4 Johns.,
163, we have said that the acknowledgment
and proof of deeds is merely for the purpose
of recording them, and is not conclusive on
the opposite party ; such proof being ex-parte,
and that the party who is to be affected by the
deed can, at any time, question its validity.
Perhaps few cases could be presented showing
the propriety of this decision more conspicu-
ously than the present ; for if a contrary prin-
ciple had prevailed, and this investigation had
not been permitted, it is evident that the truth
as to the execution of this instrument could
never have been brought forward in a court
of law.
The plaintiffs' own witnesses show that
James Morrison and Samuel Frear were men
of bad reputation. Frederick Carpenter says
that Samuel Frear was a rogue, and James
JOHNS. REP.. 12.
1815
SUMN'EK V. BUEL.
473
473*J Cole *says Morrison was a man of bad
character before he left the Beaver Dam. What
brought him after that period to the State
Prison, does not appear. At any rate, they
appear to be men peculiarly fitted for a tran-
saction like the one before us, and of which
they are charged to be guilty through interest-
ed motives. The confession of Samuel Frear
to Cole shows his object, and the difference in
the value of the farms was evidently the ad-
vantage Morrison expected to derive from it.
Samuel Prear mentioned to Cole that he knew
the Oreenbush farm was worth considerably
the most, but that he got the lease assigned to
Morrison to prevent his brother, John Frear
from having the farm, as the old man bad de-
vised his property to John. In this he was
not mistaken, for it appears to have been the
intention of the old man to do so, both before
and after this transaction, as he did eventually
give his estate to his son John, by his last will
and testament.
The fact that Samuel Frear went into pos-
session of the Beaver Dam farm, in the fall of
1800, does not operate in favor of the validity
of the assignment. It would have been other-
wise, if Abraham Frear, the father, had taken
possession of that farm ; but the entry and
possession, by Samuel, was no more than
what might be expected he would do, without
delay, to consummate the intended fraud. The
old gentleman never went into possession, but
continued on his farm at Greenbush ; so that
the possession taken by Samuel rather mili-
tated against the legitimacy of the assignment;
particularly as the father did not accompany
the son when he took possession ; and accord-
ing to the alleged declaration of the father, to
one of the witnesses, his son, Samuel, was to
niiiintain him after the exchange of farms.
The circumstance of the assignment's being
indorsed on the lease will not strengthen it ;
because Abraham Frear was ignorant and il-
literate, and must have supposed that he and
his wife subscribed as witnesses to the agree-
ment, which Samuel told him he had made
with Morrison ; and although it must be ad-
mitted that his being ignorant and illiterate
will not avoid the deed, if even it was not read
to him; yet, where the deed is requested to be
read, and it is not done, that is sufficient to
avoid it. (IIullenl>acle v. Demit, 2 Johns., 404.)
In this case, the conduct and conversation of
Abraham Frear. when he came into the room,
amounted to a request to have it read to him.
He asked what it was, and whether it would
474*] not hurt him to sign it; *and when
Hitchqpck, who drew it. proposed to read
it, Samuel interposed, by misrepresenting the
nature of the instrument he was to sign.
The operation of this instrument on the
right of Abraham Frear is alone sufficient to
stamp it with fraud, because by it he parted
with the farm at Greenbush ; and the Beaver
Dam farm, as appears in evidence, was con-
veyed by Morrison to his two sons. Samuel
and Frederick, without any obligation from
them to him. This certainly was never in-
tended, even according to the recognitions and
confessions of the father, alleged to have
been made to Frederick Carpenter, a witness
relied on by the plaintiffs' counsel. That wit-
ness says the old man declared at the time
JOHNS. RKF.. 12.
that Samuel was to maintain him ; yet no se-
curity for such maintenance was given, and
he parted with his property without it. This,
of itself, renders the whole incredible.
It appears to me that this transaction has
continued throughout, enveloped in the same
darkness and mystery with which the business
commenced, when, according to Cole's testi-
mony, Samuel Frear and James Morrison first
went to view the.Beaver Dam farm in the night,
and slept in the haystack.
It is always dangerous to rely on the loose
declarations of a partv, to prove a conveyance
of real estate ; particularly when the testimony
of the subscribing witness is attended with
corroborating circumstances, showing the
probability of his speaking the truth. The
evidence of the witness ought to outweigh any
parol proof, as to subsequent verbal recogni-
tions on the subject, unaccompanied by the
acts of the party also showing it. In this in-
stance, no such act appears ; for it is evident
that Abraham Frear never took possession of
the Beaver Dam farm, which was not even as-
signed to him ; it therefore cannot reasonably
be supposed that he intended to part with this
property, without any advantage to himself,
not even security for his maintenance from
Samuel; which, according to an alleged con-
fession to one of the witnesses, made oy him,
as before stated, was part of the arrangement
in making the exchange. We are, according-
ly, of opinion that the assignment indorsed on
the lease from Stephen Van Rensselaer to
Abraham Frear, is fraudulent and void, and
that judgment be entered in both these causes
for the defendants.
Judgment for the defendants.
Cited In— 2 Wend., £17 ; 16 Wend., 631; 17 Wend.,
349; 33 N. Y.. 27; 55 N. Y.. 1«6; 6 Rob., 233; 7 W.
Dior., 411 ; 84 111., 455 ; 107 Mass., 388.
*SUMNER v. BUEL. [*475
Libel — Against Officers of Regiment — Special
Damage Must be Shown — Jfiut Reflect on
Particular Person — Remedy by Indictment.
An action does not lie by an officer of a regiment
of militia, for a publication reflecting upon the of-
ficers of the regiment generally, without averring
a special damage.
Citation— Hawk. P. C., bk. 1. ch. 73, sec. 9; 3
Salk., 224 ; 1 Ld. Raym., 486 ; Hob., 89 ; 11 Johns., 54;
Godb., :M ; 1 Yin., 510, note.
THIS was an action for a libel published in a
newspaper, called the Albany Argus, on
the 19th of August, 1814. The defendant
suffered judgment by default, and the plaint-
iff's damages were assessed at six cents.
The defendant now moved in arrest of judg-
ment.
The declaration stated that the plaintiff wan
an ensign commanding a company of riflemen
called the Albany Greens, in the regiment of
riflemen commanded by Colonel Lockwood.
The libel set out in the declaration was in the
following words : "In 1818, some companies
of a regiment of riflemen were called upon to
perform a few weeks' service. Major Koon,
and about half a company, turned out, and
469
475
SUPREME COURT, STATE OF NEW YORK.
1815
acquitted themselves reputably. They were
the whole net proceeds of the regiment.
Most of the regiment commanded by Colonel
Samuel M. Lockwood, and particularly the
Trojan, Albany, and Hudson Greens, with the
honorable exception of a single man, a humble
tailor, Mr. Larkin, of Troy, refused to ren-
dezvous. The officers of those companies
discovered great anxiety to prevent their men
from going, and displayed much art and du-
plicity to accomplish that object, assuring the
men that the Governor had no power to call
the militia into service ; that he had ordered
out 5,000 men, when the President had re-
quired but 1,500 ; that there was no law to
punish delinquencies ; and that, if there were,
the government dare not execute it ; and that
they, the officers, would undertake to pay all
the men's fines. In these representations they
were backed by old tories and worthless petti-
foggers, with such matchless effrontery that
the men finally yielded to the solicitations of
their officers, and concluded to set the laws
at defiance. Now mark the issue. The court-
martial was regularly instituted, convened,
and the delinquent officers and soldiers
brought before it, to show cause why they
should not be punished. It appeared before
the court that the only corps called out was
Hopkin's Brigade, which consisted of a less
number of meu than the 1,500 required by the
President, and that all the other representa-
tions which the officers had made to their men
were equally false. Upon this the officers,
476*] very *cunningl3r, and, I think, very
basely, got their own necks out of the halter,
by alleging that they were all anxious to go,
and appeared at the place of rendezvous for
the purpose, but, to their great mortification,
their men deserted them in an unexpected and
cowardly manner. By these, and other hypo-
critical devices, the officers, to a man, escaped
punishment altogether, but suffered their men
to be severely fined. The collection of these
fines by the marshal, of which notice is given
in the public papers, will probably consign
many of these deluded men to a prison. They
now begin to be sensible of the trick which
has been played upon them, and are denounc-
ing their officers." There was no special
damage alleged in the declaration.
Mr. Tillot&m, in support of the motion, con
tended that on principle this action could not
be maintained, there being no personal allusion
to the plaintiff nor anything by which the iden-
tity of any individual libeled could be ascer-
tained. A. writing, to be a libel, must contain
injurious reflections on some particular person
or individual ; general reflections on any class
or order of men in society, do not constitute a
libel or give any right of action or matter for
indictment. (Ld. Raym., 486; 3 Salk., 224; 2
Barnadist, 138: Cro. James, 107; 6 Bac. Abr.,
332 ; 2 Hawk. P. C., bk. 1, ch. 73, sec. 9 : 5
Johns., 22.) It is true that where a colloquium
is stated, and by proper averments the plaintiff
is ascertained to be the person intended to be
libeled, as in the cnse of Van Vechten v. Hop-
kins, an action might be maintained. But
there are no cases which go the length of
supporting the present action; and it would be
a violation of all principle to permit every in-
dividual of a particuliar class of men to bring his
470
action for a general reflection on thatclass, with-
out there being any personality in the writing
or damage sustained in consequence of it, by
any one.
Mr. VanVechten, contra, insisted that though
it was necessary to support this action, that
some particular person should be intended as
the object of the libel, yet he need not be
named ; but it was sufficient if he was de-
scribed or alluded to, in the writing. The
present is not a libel on the Army or militia,
generally, but on the officers of three particu
for companies of a particular regiment. There
is then a designation of the persons intended.
Though a libel of the members of the bar
generally would not furnish a ground of ac-
tion for each individual of the profession, yet
a writing containing injurious reflections on
*three or more lawyers/concerned in a [*477
particular cause, would be a libel.
In Oidney\. Blake, 11 Johns., 54, where the
defendant said : " Your children are thieve,s,
and I can prove it ;" the court held that the
words applied to all the children of G. , and
the colloquium being of and concerning the
plaintiff, one of the children, the action was
maintainable. (Hob., 89; Cow., 762, 689.)
Mr. Van Buren, in reply, said that cases of
indictments for libels stood on distinct princi-
ples from civil suits for the private injury, and
furnished no rule for the decision of this case ;
and that no case of a civil suit could be found
brought by the individuals of a class, or order
of men, for a publication reflecting on that class
or number of men, generally.
THOMPSON, Ch. J. This is an action for
libel published by the defendant, against the
officers of Colonel Lockwood's regiment, of
whom the plaintiff is averred to be one. But
the publication has no particular or personal
application to the plaintiff. The present is a
motion in arrest of judgment on the ground
of the generality of the libel.
It is a general rule that no writing whatever
is to be deemed a libel unless it reflects upon
some particular person. (Hawk. P. C., bk. 1,
ch. 73, sec. 9.) A writing which inveighs
against mankind in general, or against a par-
ticular order of men is no libel; nor is it even
indictable. It must descend to particulars and
individuals to make it a libel. (3 Salk., 224 ; 1
Ld. Raym., 486.) These are general rules, but
their application to particular cases often pre-
sents difficulty. An action for a libel is for
the purpose of recovering damages for an
actual injury proved to have been sustained,
or which the law presumes that the, party
libeled has suffered. It is a private remedy
for an individual injury. If the libel is either
vague and uncertain, or has no personal appli-
cation, it cannot fairly be presumed that any
damages have been sustained. Although a
jury, in assessing damages, may take into
view other considerations of a more public nat-
ure, yet they are merely collateral to and not
the basis on which the action was founded.
Where the object is public example, and the
punishment of the party, the more fit and ap-
propriate remedy is by indictment. If the
plaintiff in this case had averred and proved
any special *damages sustained by [*478
him, I am not prepared to say that he would
JOHNB. REP. 12.
1815
SUMNEK V. BrKI..
478
not have sustained an action. But from the
generality of the libel the law will not pre-
sume damages; and it would, therefore. be re-
pugnant to the object and foundation of the
.action, and against the policy of the law, to
sustain a private suit. This may be considered
as somewhat analogous to the" remedy for a
public nuisance. It is a well settled rule that
no action will lie by an individual for a public
nuisance, unless he* has sustained some special
damage; and the reason assigned for it is that
it would create such a multiplicity of suits that
the party might be ruined by the costs. The j
..same reason applies to cases of libels of a gen-
eral description, having no particular or per-
:sonal. application. The offender, in such case,
does not go without punishment. The law has
provided a fit and proper remedy by indict-
ment ; and the generality and extent of such
libels make them more peculiarly public of-
fenses. But to give a private suit on such gen-
eral libels where no private damages have been
sustained, would IK? opening a door that would
lead to mischievous consequences ; and, in
in many cases, to the ruin and destruction of
a party by the payment of costs. It is no an-
swer to this objection to say that a party may
refrain from publishing libels, and so not ex-
pose himself to such consequences ; the law,
in many cases, interposes to prevent the multi-
plicity of suits, and the unnecessary accumu-
lation of costs, although parties are in default.
It is very difficult to lay down any precise and
satisfactory rule on this subject ; extreme
•cases may be stated on both sides of the ques-
tion, on which no difference of opinion would
be entertained, and which would yet seem to
fall within the same general rule. Had this
publication applied to the officers of the Army
of the United States, or to the officers of the
militia of the State of New York, or to the offi-
cers of the militia of any particular county, it
would certainly not be pretended that each in-
dividual falling within the general description,
could maintain an action; and yet the libel, by
proper averments might be individually ap-
plied as well in those cases as in the one before
us. So, *• libelous publication generally
ajjiiinst the bar of the State of New York, or
of the City of New York, or of any particular
county, would not give a private action to
each individual of the profession within the
respective districts of country, although a
proper averment might apply it to each indi-
vidual.
4 7O*] 'Numerous other cases of a similar
nature might be put. It is not, therefore, the
want tof certainty as to whom the libel might
be applied by "necessary averments, which
prevents the maintenance of private suits ; nor
is it because the libel applies to an order of
men ; for. in some of the cases put, the appli-
•cation would be only to a portion of such order.
But if this be the principle upon which private
-suits, in such cases are denied, the case before
us falls within it , for the officers alluded to
-arc a portion of the order or class of militia
officers. There must, I think, be some other
reasons which govern cases of this kind. The
Imoks are silent on the subject ; and I know of
none more sound and just than those I have
.ulready alluded to, that where the libel has no
particular and personal application, and is so
-lOIINS. IlKP.. 12.
general that no individual damages can be pre-
sumed, and the class or individuals so numer-
ous to whom it would apply, that great vexa-
tion and oppression might grow out of a multi-
plicity of suits, no private suit shall be sus-
tained, but proceedings against the offender
must be bv indictment. The case of Forcraft
v. facy* Hob., 89, has been relied upon in sup-
port of this action. It does not appear to me
that the principle of that case applies. The col-
loquium there shows the particular and per-
sonal application of the slander to the plaintiff
as well as the other persons ; and the same re-
mark will apply to the case of Gidruyv. Blake,
decided in this" court. (11 Johns., 54.) But
the correctness of. the report of Foxcraft v.
/Mry may be questioned. In Symm't case,
Godb.. 391, it is said that it was adjudged that
the action would not lie. (See, also, 1 Viner,
510, rwto.) Upon the whole, after the best con-
sideration I have been able to give the subject,
I think it would be unfit and against the
soundest principles and policy of the law, to
sustain private suits upon such general libels,
where there is no particular personal applica-
tion and no special damages alleged. The
opinion of the court, therefore, is, that the
motion in arrest of judgment be granted.
SpENCER,'and YATES, </./., were of the same
opinion.
VAN NESS, J. This is a motion on arrest of
judgment, in which we are to assume that all
the material averments and allegations in the
declaration are true ; and the only question
*is, whether the plaintiff is designated [*48O
with sufficient certainty in the libel to enable
him to maintain his action. On this point it
seems to be agreed that it is not material
whether the person of whom words are spoken
or written be described nominally, or indi-
rectly, provided his identity be ascertained ;
and lamentable, indeed, would be the state of
society, if the law were not so ; for then the
character of nny member of the community
might be wounded and traduced, with impu-
nity and triumph, by those whose hearts are
as corrupted and- malignant as their tongues
or their pens are slanderous and unbridled.
To my comprehension, the plaintiff in this
case is as clearly one of the persons intended
to be libeled a's if his name had been men
tioned. It really seems to me that no person
who can read and speak English, upon casting
his eye over this declaration, could hesitate an
instant in applying the lilx?l to the plaintiff ;
and if this be so, I had supposed it necessarily
followed that this motion ought not to prevail.
To show that I have not expressed myself too
strongly, let me appeal to the facts contained
in this record. The declaration states, among
other things, that at the time of publishing the
libel, the plaintiff was an ensign, belonging
to and commanding as such ensign a company
of riflemen, commonly called the Albany
Greens, in a regiment of riflemen commanded
by Colonel Samuel Lock wood ; that the de-
fendant, " well knowing all and singular the
premises," maliciously published the libel in
question, of and concerning the plaintiff as
such officer as aforesaid. The libel, among
other things, states that some companies of a
regiment of riflemen, commanded by Colonel
471
480
SUPREME COURT, STATE OF NEW YORK.
1815
Lockwood, were called upon to perform a few
weeks' service. Major Koon and about half a
company turned out, and acquitted themselves
respectably, &c. Most of the regiment, and
particularly the Trojan, Albany, and Hudson
Greens, with the honorable exception of a sin-
fle man, a humble tailor from Troy, Mr. Lar-
in, refused to rendezvous, &c. The officers
of those companies discovered great anxiety
to prevent the men from going, &c. ; assuring
the men that they, the officers, would under-
take to pay all the men's fines for sixpence.
The officers commanding the companies before
specified are alluded to in various other parts
of the libel. The plaintiff avers that he was
an ensign in a company of riflemen called the
Albany Greens, in Colonel Lockwood's Regi-
ment of Riflemen. The libel states that this
4-81*] company, *among others, was ordered
into actual service, and that the officers of this
company (of whom the plaintiff was one), and
of the other two companies exerted their in-
fluence to produce a disobedience of the order.
If this does not designate the plaintiff as one
of the persons libeled, in such a manner as
that "he who runs may read," I have been
very unfortunate in understanding the terms
in which the declaration is expressed. The
doctrine contended for on the argument, and
which I do not mean to controvert, namely,
that when defamatory words are spoken of an
order of men, no individual belonging to that
order can maintain an action, has no applica-
tion to this case. Were this libel directed
against the officers of the militia generally,
then the plaintiff could not have been discrim-
inated from the whole order as a peculiar sub-
ject of attack ; and of course the suit could
not be maintained. The libel in question is
not against the officers of the militia at large,
as an order of men, but the individuals in-
tended to be injured are selected from that
very order, being particularly designated and
described as belonging to a certain regiment,
and as commanding certain companies, com-
posing a certain part of that regiment. By
law, there are but three officers attached to a
single company of riflemen — a captain, lieu-
tenant and ensign ; and in the case under con-
sideration, those three officers of three respect-
ive companies, are charged with treacherous
disobedience of the express commands of the
Commander in-Chief , and audaciously endeav-
oring, by the combined influence of their offi-
cial authority and personal example, to per-
suade the men under their command to violate
their allegiance to their country and its laws.
Now to say^that he who writes or speaks thus
concerning nine persons, described and desig-
nated with such certainty and precision as to
preclude the possibility of mistake, speaks or
writes concerning an order of men (I must be
pardoned for saying), is absurd.
Suppose a man should publish a libel upon
the bar of the State of New York generally ;
now, as this would be a libel upon an order
of men, no particular individual member of
the order could maintain an action. But sup-
pose the libel should designate the counsel
who argued a particular cause ; or (to present
a case more precisely resembling that under
consideration), suppose it should designate the
counsel who argued three separate causes,
472
which causes are specified in the libel, by giving-
*the respective names of the plaintiff [*482
and defendant in each particular cause ; would
the libeler, in this instance, defame an order of
men, or determinable individuals of that or-
der? Can it admit of a doubt that each of the
counsel who had been engaged in such argu-
ment could maintain an action ? Again : sup-
pose a libel upon the whole body of the clergy
of this State ; here it would be upon an order
of men, and therefore, an action could not be
sustained by any single clergyman against the-
author of such libel. But suppose, again, that
the libelous publication should implicate nine
ministers of the gospel, who performed divine
service in three churches in one of our cities,
and should so describe these three churches as
to render their identity notorious and indubi-
table ; would any man seriously maintain that,
because the peculiar baptismal names of these
nine persons were not expressed, they should
therefore be remediless? Shall this, too, be
considered as a libel upon an order of men ?•
I cannot assent to the idea that the number of
persons who maybe libeled affords the rule to
determine whether or not an action will lie..
Such a rule would be unjust and arbitrary.
The libeler who calumniates a number of per-
sons by name, is liable to an action by each ;
and in such a case, he would hardly be allowed
to say, even in extenuation of his offense,
much less in bar to the action, that because he-
had exposed himself to so many actions, he
ought not, therefore, to be punished at all.
If such a rule should be adopted the calum-
niator, who assails and reviles a great number
of individuals in the same malicious publica-
tion will escape ; while the less guilty and less-
hardy slanderer, who has traduced the char-
acter of a single man only, shall be punished.
Rather than adopt such a rule, I would con-
sent to strike the whole law concerning liber
from our municipal code.
On this point there is an adjudged case, that
of Foxcraft v. Lacy, Hob., 89, which is de-
cisive ; and upon the authority of which this,
court decided the case of Gidney v. Blake, 11
Johns., 54. That case sanctioned and adopted
as it is by this court, in my judgment, settles
all the points now before us.
It was asked in the progress of the argu-
ment of the case, if a libel should charge
" every officer of the Army, without exception,
from the highest to the lowest," with coward-
ice, whether every officer could maintain an
action ? I answer, in the first place, that such
a libel must be considered as upon that whole-
order of men, *and, therefore, no [*483
action would lie. But suppose this answer
not to be satisfactory, what does it prove ?'
Certainly, not that the plaintiff in this cause
shall have no redress, because eight other men
have suffered equally with himself. The
soundest and most salutary principles in the-
world may be carried to an unwarrantable ex-
tent The case last put is an extreme one, and
not likely to occur. I will state another case.
Suppose a libel should be published upon all
the officers of the Army by name ; could each
maintain an action ? I confess I am not pre-
pared to give an answer ; nor would an an-
swer in the negative touch the point now under
consideration. The solidity of a principle is*.
JOHNS. REP., 12 _
1815
CLOWES v. HAWLEY.
48$
not to be tested by extreme cases, which are
usually not embraced within the reason or
policy upon which the principle is founded.
The application of it. in such instances, must
be regulated and restrained by sound judicial
discretion, in such a manner as to preserve the
principle, and at the same time, to prevent it
from being perverted.
My opinion in this case accordingly is :
1st. That this is not a libel upon any order
of men.
2d. That the plaintiff is designated with
sufficient certainty to enable him to maintain
his action.
3d. That this right of action exists, notwith-
standing the defendant may have exposed
himself to other actions, which may be com-
menced by the other officers described in the
libel in question, and that the motion in arrest
of judgment ought, therefore, to be denied.
PLATT, J., was of the same opinion.
Motion granted.
Explained— 25 Wend., 193.
Cited in-17 Wend., 52: 3 E. D. Smith, 344.
484*] *T. CLOWES «. HAWLEY.
Trover — Maintainable by Assignee of Bond Con-
verted by Obligor— If Bond is Conditioned for
Conveyance of Land. Damage* will be its
Value — Tenants in Common—Joint Lessors —
Champerty.
The assignee of a bond may maintain trover
for it, in his own name, against the obligor, who has
got It into his possession, and converted it ; and
such bond being conditioned for the conveyance of
a certain lot of land by the obligor to the obligee,
and his assigns, if it appears that the obligee, or the
plaintiff, has done everything requisite, on his
part, to entitle him to a conveyance, the damages he
will be entitled to recover will be the value of land
which was to be coveyed.
One tenant in common cannot sue his co-tenant
to recover documents relative to their joint estate.
One of two joint lessors .cannot maintain trover
for the lease.
A conveyance of land, pending an action of eject-
ment for its recovery by another, is not void for
champerty, unless the purchaser knew of the pend-
ency of the action.
Citation— « Johns.. 479.
was an action of trover, tried at the
JL Rensselaer Circuit, in June. 1815, before
Mr. Justice Platt. The declaration contained
two counts. The first stated t hut the plaintiff.
on the 18th of April, 1812. was possessed of a
bond, executed by the defendant to Hiram
Clowes, dated the 20th of May, 1809, for the
sum of $1.000, conditioned to convey to the
obligee, or his assigns, the equal and undivided
moiety of a lot of land in Troy ; which bond,
being in full force, was afterwards, by the
said Hiram Clowes, in his lifetime, duly as-
signed, set over, and transferred to the plaint-
iff; by means whereof the plaintiff became
legally possessed, Ac.; stating the trover and
conversion by the defendant.
The second count was for the conversion, on
the 5th of April, 1814, of a certain indenture
of lease or agreement in writing between the
plaintiff in this suit and one Joseph Ketchum,
JOHNS. REP., 12.
! of the first part, and George W. Storer, of the
] second part, but executed by the plaintiff and
j Storer only ; by which the party of the first
part demised unto the party of the second
part a certain farm in Brunswick, in Rens-
selaer County, for one year from the 1st of
April. 1818; and by which the party of the
second part was bound to the parties of the
first part to pay $65 for rent on the 1st of
January, 1814, and the further sum of $65
rent on the 1st of April. 1814.
The defendant pleaded not guilty.
The plaintiff, on the llth of March 1814, be-
fore the commencement of this suit, wrote a
letter to the defendant and William M'Manu-.
forbidding the transfer or delivery of any
choses in action, obligations, accounts, writ-
ings, or property whatsoever, held by them,
or either of them, in trust or otherwise, in
which the plaintiff, or Hiram Clowes, deceased,
had any interest, right, or claim, in law or
equity, to any person whatever, except to the
plaintiff, or for his use and benefit; and de-
manding of them, or either of them, a transfer
and delivery to the plaintiff, of all such deeds,
writings, papers, &c. ; and demanding, also, a
certain bond or writing, executed by the de-
fendant to Hiram Clowes, in his lifetime, for
the conveyance *of a lot in Troy, &c. ; [*485
which said bond, or writing, was assigned to
the plaintiff, and of which they, or one of
them, had gotten the possession, without any
legal or equitable right or claim thereto ; and
that in case of their non-compliance, a bill in
chancery would be filed against them ; and
giving them notice further, that 8. Ross was
authorized to accept and receive the said writ-
ings, conveyances, bonds, &c. This letter was
delivered to the defendant on the 18th of
March, 1814. This was the only evidence of a
demand of the defendant for the bond, &c.
The bond and assignment, pursuant to a no-
tice given by the plaintiff to the defendant,
were produced at the trial. The defendant
had called on Stephen Ross, who was directed,
as attorney of the plaintiff, to bring the suit,
and requested him not to commence an action,
as he wished to settle the matter with the
plaintiff ; and the attorney, accordingly, de-
layed bringing the suit for several days.
The plaintiff gave in evidence a writing
signed by the defendant, as follows :
" Deed from Jacob I. Vandcrheyden to-
Thomas Clowes, for two lots, numbers .
Deed from Joseph Ketchum to Thomas Clowes,
for one half a farm, lying and being in Bruns-
wick, formerly possessed by Norman Pierce.
Deed from Joseph C. Yates to Thomas Clowes,
for a farm situate in Cable's Kill, lot No. 23.
Bond indenture from Lemuel Hawley to
Thomas Clowes, for one half of lot No. 5, on
River Street, Troy. Received the above, in
trust, for Thomas Clowes.
LEMUEL HAWLKY."
The judge refused to admit evidence, of-
fered by the plaintiff, of the value of the
ground mentioned to be conveyed in the bond,
in order to show his damages, and stated that
as he knew of no rule to ascertain the quantum
of damages, he should direct the jury to find
nominal damages only.
In support of the second count, the plaintiff
proved that an indenture executed by him.
47S
485
SUPREME COURT, STATE OF NEW YORK.
1815
and by the defendant, as attorney of Joseph
Ketchum, to George W. Storer, for the lease
of a farm in Brunswick, were in possession of
the defendant in April, 1814, when $65 rent
was paid to the defendant. The lease was (hen
produced by the defendant, and it appeared
to be between Joseph Ketchum and the plaint
iff, of the first part, and George W. Storer, of
the second part ; and the demise was from the
parties of the first part jointly, and all the
486*] rents and *covenants were reserved,
and made to them jointly. The defendant
gave in evidence a deed from Joseph Ketchum
And his wife to him, dated the 22d of Decem-
ber, 1813, for an undivided moiety of the prem-
ises demised by the said lease to George W.
Storer, and described as the land formerly
owned by Norris Pierce. The plaintiff offered
to prove 'that, at the time the above deed was
•executed, an action of ejectment was pending,
at the suit of James Cox, as lessor of the plaint-
iff in that action, against the tenant in posses-
sion under Ketchum and the plaintiff, to re-
cover possession of the premises ; but the
judge rejected the evidence, and decided that,
as the lease was made by Ketchum and the
plaintiff jointly, and the rents reserved to
them jointly, the plaintiff was precluded from
denying Ketchum's right to convey a moiety
•of the premises. The plaintiff submitted to a
nonsuit, with leave to move to set it aside, and
for a new trial.
Mr. Paine, for the plaintiff, contended: 1.
That trover lies fora chose in action (10 Johns.,
172), and that the value of the bond was the
value of the land, for the conveyance of which
it was given ; and that the evidence offered to
show that value, was, therefore, improperly
•overruled by the judge. In Parry v. Frame,
2 Bos. & P., 451, which was an action of tro-
ver for a lease, the plaintiff recovered the full
value of the term. The demand and refusal,
in this case, were sufficiently proved. (1 Esp.,
22 ; Bull. N. P., 44.)
2. It is not pretended that Joseph Ketchum
executed the lease ; he is not a party to it, in
fact. The covenants were to pay rent to the
party of the first part, and not to Joseph
Ketchum and Thomas Clowes. As there was
no signing in this case by Ketchum, there is
no estoppel. (8 Mod.. 312.)
Again, the deed from Ketchum to the de-
fendant was made pending the action of eject-
ment.
Mendrs Buel and Van Vechten, contra, con-
tended that there was not proof that the de-
fendant had possession of the bond when the
demand was made (Salk., 441 ; Bull. N. P.,
44); and that it was not shown that the plaint-
iff had the property or possession of the bond.
<6 Bac. Abr., Trover, C, G ; 1 Caines, 14.)
Again ; it appeared from the receipt pro-
duced, that the defendant was a mere trustee
for the plaintiff ; and trover does not lie
against a trustee. The plaintiff should seek a
different remedy, if there has been a breach of
trust. (2 Fonbl. Eq., 169 n. b; 2 Atk., 162.)
487*] *But there was no evidence of aeon-
version in this case The letter delivered to
the defendant did not amount to a demand ;
and if it did, it does not appear what answer
was given. The refusal must be express and
positive to be evidence of a conversion. The
474
trustee was not bound to seek the plaintiff and
deliver him the papers. A bare non-delivery,
without a refusal, is not evidence of a conver-
sion. (Seterin v. Keppell, 4 Esp. N. P., 156 ;
3 Selwyn's N. P., 1177; 10 Johns., 173, 175.)
If the defendant makes excuses for not deliver-
ing the thing demanded, it shows that he does
not refuse to deliver.
Again ; a recovery in this suit would be no bar
to an action of debt, or covenant on the bond.
As to the damages, the plaintiff was entitled to
nothing but the value of the paper and wax.
To recover more, he ought to have brought his
suit as assignee. If he is to recover the whole
value of the premises, in this action, in his
own name, it will be allowing him to do, in
one form of action, what could not be done in
another.
As to the second count, the lease being a
sealed instrument, Ketchum, who was om: of
the parties, ought to have joined in the action.
(1 Saund., 291 /, note; Scott v. Godwin, 1 Bos.
&P., 67.)
Again; the lease having expired, it was of no
value, and the plaintiff could be entitled to no
more than nominal damages. (Todd v. Crook-
shanks, 3 Johns. . 432.)
As to the objection that the conveyance of
Ketchum being made during the pendency of
the action of ejectment, it should have been
shown further that he knew of the pendency
of the suit, and that the conveyance was made
to defeat the suit, or impede the course of jus-
tice. (1 Hawk., ch. 84. sec. 9; 8 Johns., 479.
Per Curiam. As to the count on the con-
version of the bond, the only point for consid-
eration is, whelher the judge was correct in
ruling that the plaintiff was entitled to recover
nominal damages only . We must consider the
conversion as proved, because no objection
was taken to the proof of it at the trial. By
the assignment of the bond to the plaintiff, by
the obligee, he acquired an interest in it,
which courts of law will protect; and it is no
answer to this action to say that the plaintiff
might have sued directly on the bond, in the
name of the obligee, or proceeded in equity
fora specific performance. We are to presume
that the plaintiff had done everything to entitle
himself to the deed conditioned to be given,
as the evidence to sustain the action and prove
the damages was overruled. If the plaintiff
became entitled to a performance of the con-
dition, the *damages sustained would [*488
be the value of the land. The nonsuit, there-
fore, must be set aside.
As to the lease, the conversion of which
forms a part of the plaintiff's cause of action,
it is proper to dispose of that also. From the
plaintiff's own showing, it was executed by
him and the defendant, as the attorney to
Ketchum, who confessedly owned one half of
the demised premises, as joint lessor to Storer.
The defendant was not bound, in this action,
to show his authority from Ketchum to exe-
cute the lease in his behalf. The plaintiff has
no right to the exclusive possession of the lease.
One tenant in common cannot sue the other,
to recover possession of documents relative to
their joint estate. It appears that the defend-
ant had acquired Ketchum's interest in the
lands leased; and was, therefore, as fully eu-
JOHNS. REP., 12.
1815
JACKSON, EX DEM., v. FOSTER.
488
titled to keep the lease, as the plaintiff is to de-
mand its possession. It avails nothing to say
that the defendant's purchase of Ketchum was
pending an action of ejectment against Storer;
it not being shown that tin; defendant knew of
that suit when he purchased; and unless he
did know of it, the purchase was not an act
of champerty. (8 Johns., 479.)
Motion granted.
Cited ln-2 Mill, Ml; 4 Abb. App. Dec., 164, n.
JACKSON, ex dem. BoNNELand OOODYEAR,
v.
FOSTER.
Ejectment— Estoppel — Lease— Parol Evidence In-
admissible to Contradict — Power of Attorney —
Payment of Consideration Money Entitle* Pur-
chaser to Deed — Adverse Possession.
The plaintiff In ejectment cannot recover under a
demise from a lessor who has released his interest
in the defendant, he beinx estopped by such release
to claim any title.
Parol evidence is Inadmissible to show that a
leasts executed in the name of, and reserving; a rent
to. one person, was intended for the benefit of an-
other.
Where A executes a power of attorney, in which
he recites his seisin in a lot of land, and authorizes
his attorney to sell, which power is recorded, and
the attorney agrees with B to convey to him in \<->;
this is such an adverse possession as will defeat the
<>l><'rHtionof a deed from any other person claiming1
title to the same land, although no deed had been
executed to B; for B, having paid the consideration
money, is entitled to a deed, and holds adversely to
every one.
Citations— 10 Johns.. 164. 166; 9 Johns., 55.
1*HIS was an action of ejectment, for part of
lot No. 72, in Aurelius, and was tried at
the Cayuga Circuit, in May, 1815, before Mr.
Justice Van Ness.
A patent, bearing date the 8th of July, 1790,
issued to John Bonnel, who had been a private
in the New York line, during the Revolution-
ary War, was given in evidence on the part of
the plaintiff. Also, a power of attorney from
Bonnel to Goodyear, dated the llth of Sep-
tember, 1807, authorizing him to sell the prem-
ises, and execute deeds in fee, to take pos-
session of the premises, and to bring suits for
489*] the recovery of the possession; *and
covenanting not to" revoke the power, or dis-
charge suits that he might bring; this power was
duly acknowledged, and recorded in the office
of the clerk of Cayuga, the 19th of November,
1807. Also, the exemplification of a deed from
Bonnel to Goodyear, for the lot in question,
dated the llth of September, 1807, and record-
ed the 5th of April, 1811. Also, an exemplifi-
cation of the record of a judgment, in the case
of Jafkson, ex dem. Bonnel (the present lessor).
v. Foster, the present defendant, rendered, on
a verdict, in August Term, 1808, and docketed
on the 4th of August, in the same year; the
demise, in the declaration in that cause, was
laid on the 1st of January, 1807.
NOTE.— Evidence— ParoJ— When inndmltoHblc. Bee
Jackson v. Brown, 1 Cal.. 356, note.
Grant of Innds held ndrenely. $<•<• W hi taker v.
Cone, 2 Johns. Cas., 58, note; Jackson v. Todd. 2
Cat., 483, not,- ; Jackson v. Wheeler, 10 Johns., 164,
note.
JOHNS. RKP., 12.
Joel Goodyear testified that he had a power
of Attorney from Amasa Goodyear, one of the
lessors, which was lost, and stated (the evidence
being objected to, but the objection overruled)
that he was authorized, by the power, to ap-
point attorneys under him, to prosecute suits,
to lease or sell the lot, &c. The deed from
Bonnel to Goodyear was obtained by the wit-
ness, and the power from Goodyear to Bonnel
was taken to guard against any adverse posses-
sion that might prevent the operation of the
deed. The witness employed Troup and Rich-
ardson, attorneys, to bring a suit for the lot,
and gave them a power of attorney for that
purpose, as well as to lease the premises. A
lease was executed by Troup, as attorney for
Bonnel, to Foster, the defendant, dated the
13th of September, 1808.
Troup testified that the lease, although given
in the name of Bonnel, was intended for the
benefit of Goodyear, and was taken on cxeciit
ing the writ of possession against Foster, the
defendant.
The defendant admitted himself to be in
possession.
The defendant then gave in evidence a deed
of release, from Bonnel to himself, and sev-
eral others, in consideration of $500, for lot
No 72, in Aurelius, dated the 29th of Septem-
ber, 1808. Also, a power of attorney from
Stephen Thorn to Joseph Graver, dated the
27th of April, 1805, and recorded in the clerk's
office of Cayuga County, the 17th of October.
1806, reciting that Thorn was seised in, and
authorizing Grover to sell the said lot No. 72.
Also, an agreement between Grover, as attor-
ney of Thorn, and Samuel Foster, dated the
1st of April. 1806, by which Grover agreed to
convey to Abraham and Samuel Foster one
hundred acres of Lot No. 72, on the payment
of *$500. Also, a lease indorsed on f *4JM>
the said article, dated the 20th of April, 1805.
from Abraham Foster, the defendant, and
Samuel Foster, of eighty acres, part of the
one hundred acres mentioned therein; and an-
other agreement, dated the 1st of April, 1805.
between Grover, as Thorn's attorney, and
Abraham and Samuel Foster, by which
Grover agreed to convey to them fifty acres,
and twenty acres, of the said lot; the twenty
acres, last mentioned, are the premises iu ques-
tion, the whole consideration for which had
been paid. The defendant also gave in evi-
dence a partition deed, between the defendant
and others, the grantees in the deed from Bon-
nel to Foster.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on a case to be
made.
Mr. Sill for the plaintiff.
Mr. Kellogg, contra.
Per Ctiriam. The plaintiff cannot recover un-
der the demise from Bonnel : for, the defendant
having his release, he is estopped from claim-
, ing any title. (10 Johns., 166 : 9 Johns., 55.)
I Can Goodycar recover, 1st, in consequence of
the lease, from Bonnel to the defendant, on
the 81st of September, 1808 ; and. 2d, on the
ground of a need from Bonnel, the patentee,
prior to the defendant's deed ? The defend-
ant's lease from Bonnel does not furnish to
Goodycar a right to recover. Parol evidence
47.-.
490
SUPREME COURT, STATE OF NEW YORK.
1815
cannot be admitted to show that a lease, re-
serving a rent to Bonnel, and which purports
to be for his sole use, was meant, and intended
to be, for the benefit of another person. This
is explaining away a deed, and contradicting
it, in the most essential manner, contrary to
every principle of law. If this be so, then
the powers of attorney, whether well proved
or not. became immaterial. This leads to the
second ground ; The evidence of adverse pos-
session, when Bonnel conveyed to Goodyear,
is as strong in this case as in the case of Jack-
son v. Wheeler, 10 Johns., 164, where we held
that this very deed was inoperative. The only
difference is this : in that case, Thorn had
conveyed to Edward Wheeler by deed ; here,
his power to Grover, which was on record,
recited his seisin in fee, and he covenanted to
convey by warranty deed, and had been paid
the consideration money. The defendant's
491*] *possession is not the less adverse
from his not having a deed in his pocket ; he
was entitled to a deed, and held adversely to
every one.
Judgment for the defendant.
Cited in— 13 Johns., 413 ; 2 Wend., 544 ; 4 Wend.,
483 ; 53 N. Y., 296 ; 7 Lans., 327 ; 25 Barb., 212 ; 5
Rob., 717.
PLUMB «>. M'CREA ET AL.
Pleading — Replication of De Injuria.
A replication of de injuria, &c., is good only
where the matter alleged in the plea is by way of
excuse, and not where it is insisted upon as giving
a right.
In trespass de boms asportatis, a replication of
de injuria, &c., to a plea, stating that the goods
were seized as forfeited to the United States, and
were condemned in the District Court, as bad.
Citations-5 Johns., 113; 1 Chit. PI., 562,-3, 4.
476
THIS was an action of trespass de bonis a-s-
portatis, to recover damages for taking
away a number of horned cattle, on the llth
of September. 1814.
The defendant pleaded, 1st. The general
issue. 3d. That the cattle were attempted to
be exported, by the plaintiff and others, being
citizens of the United States, into Canada; and
that M'Crea, as agent of the Collector of
Champlain, and the other defendants, as his as-
sistants, seized them as forfeited to the United
States, and delivered them to the Collector.
The third plea stated the seizure, and the pro-
ceedings, in the District Court of the District
of New York, whereby the cattle were con-
demned as forfeited to the United States.
The plaintiff repled, 1st. To the second
plea, denying that the cattle were attempted
to be exported ; and, 2d. To the third plea,
that the defendants took the cattle de injuria
sua propria.
The defendants demurred specially to the
replication to the third plea, and the plaintiff
joined in demurrer.
Per Curiam. The replication of de injuria-
sua propria, &c., is bad, according to the rule
laid down in Grogate's case, and recognized by
the court in Lytle v. Lee & Ruggles, 5 Johns. ,
113. This is a plea good only where the mat-
ter alleged is by way of excuse, and not where
it is insisted upon as giving a right. (1 Chit
ty's PL, 562, 3, 4.) The pleas are good and
sufficient, if true, to bar the plaintiff's right
of recovery. If the cattle were forfeited by
the Act of Congress, the property was devest-
ed by the act of the plaintiff.
Judgment for tJie defendant.
Cited in— 7 Cow., 47 ; 1 Wend., 130 ; 4 Wend., 578 ;
8 Wend., 133.
JOHNS. REP., 12.
[END OP OCTOBER TERM, 1815.]
CASES ARGUED AND DETERMINED
IN THE
Court for the Trial of Impeachments
AND
CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK,
FEBRUARY AND MARCH, 1815.
ROBERT SANDS, Appellant,
v.
PATRICK G. HILDRETH, Respondent.
Practice — Decree by Court of Chancery on De-
fault— No Appeal IMS.
No appeal lies from a decree pronounced by the
Court of Chancery, on the default of the defendant,
in not appearing at the hearinKi after the cause
bad been regularly set down, and regular noiice
for that purpose.
fPHIS was an appeal from the Court of Chan-
-L eery. The respondent filed his bill in the
court below, against the appellant, and Com-
fort Sands, and Amie J. Barbarine, to set
aside a conveyance by Comfort Sands, the ap-
pellant, of a ropewalk and premises in Brook-
lyn, purchased by the respondent at a sheriff's
pale, on an execution against Comfort Sands,
on the ground of fraud. Barbarine was made
defendant, as tenant for years, in possession
of the premises. The bill was taken, pro con
feuo. against Comfort Sands, for want of
answer ; and as to Barbarine, the cause stood
on the bill and answer. The first answer of
Robert Sands was excepted to, as insufficient,
and he put in a second answer, which also be-
ing excepted to, he put in a third answer, to
which the respondent replied, and the cause
being at issue, witnesses were examined on
the part of the respondent ; but no witness
was produced or examined, on the part of the
appellant, in support of his title.
494*j *The cause was regularly set down
for a hearing at August Term, 1814, when the
defendants all made default, no person ap-
pearing in behalf of either of them. Upon
which the following decree was pronounced
by the Chancellor.
"This cause coming on to be heard on the
pleadings and proofs therein, as against the
defendant Robert Sands, and on the bill taken,
pro conffMo, against the defendant Comfort
Sands, and upon bill and answer, as between
JOHNS. REP.. 12.
the complainant and the defendant Amie J.
Barbarine; and the matter being opened by
Mr. Riggs, on behalf of the complainant (no
person appearing on the part of the defendants,
or either of them), and it satisfactorily appear-
ing to the court that due notice of the hear-
ing had been given to the solicitors of the de-
fendants respectively : whereupon, it is order-
ed, adjudged and decreed, and His Honor,
the Chancellor, by virtue of the power and
authority of this court, doth accordingly or-
der, adjudge and decree that the deed of con-
veyance from the defendant Comfort Sands,
to the defendant Robert Sands, in the plead-
ings mentioned, and therein described, as
bearing date the 21st day of Februarv, in the
year of our Lord one thousand eight hundred
and seven, for certain real estate and premises,
situate at Brooklyn, in King's County, in this
State, having been made to delay and defraud
the bona fide creditors of the said Comfort
Sands, is void as against the complainant in
this cause; and the same is accordingly set
aside, as against the complainant, who oecame
entitled to the premises in the said deed des-
cribed, as a purchaser thereof, under the sale
and conveyance, made to him by the sheriff of
King's County, as in the pleadings mentioned,
from the time of the sale and conveyance
by the said sheriff (and is now entitled there-
to, and to the rents thereof, from the defend-
ant Amie J. Barbarine), bearing date the 10th
day of March, in the year one thousand eight
hundred and eleven, and mentioned in liis
answer in this cause, and which shall here-
after accrue, and become payable under the
said lease, by the said Amie J. Barbarine; who
is to be considered as a tenant of the com-
plainant, Patrick G. Hildreth, during the resi-
due of the term of years, in the said lease
contained, at the rent therein and thereby re-
served ; and the said Amie J. Barbarine is to
attorn to the complainant, and pay him the
said rent accordingly, as well what is in ar-
rear, as what shall hereafter accrue upon the
477
494
COURT OP ERRORS, STATE OF NEW YORK.
1815
said lease ; but that the covenant in the said
lease contained, on the part of the defendant
495*] *Robert Sands, to pay for all the tools
and implements in the ropewalk, on the said
said premises, as in the said lease contained,
is not obligatory upon the complainant as
owner of the said premises by purchase. And
it is further ordered, adjudged, and decreed
that the complainant pay to the defendant
Amie J. Barbnrine his costs, to be taxed. And
it is further ordered, adjudged, and decreed
that the defendants Robert Sands and Com-
fort Sands shall pay to the complainant his
costs of this suit, to be taxed, including the
costs to be paid by the complainant to Amie J.
Barbarine, as before directed ; and that the
complainant have execution thereof, accord-
ing to law, and the cour.se of the court. And
it appearing to the court by the answer of the
said defendant, Amie J. Barbarine, that the
rent of the said premises, under the said lease,
from the said Robert Sands, to him, and pay-
able to the complainant, as standing in the
place of the said Robert Sands, the lessor, is
$465.10 per annum, payable in quarterly pay-
ments, being $116.27| for each quarter, and
that the said rent, for two years and six
months, ending the 1st day of August, in the
year one thousand eight hundred and four-
teen, is in arrear and unpaid, amounting to
$1,162.75; it is further ordered, that if the
same is not paid within ten days, the com-
plainant have execution for the same against
the said Amie J. Barbarine, according to law ;
and that the complainant have execution for
the said quarterly payments of rent, sub-
sequent to the 1st day of August, as the same
shall become payable, unless the said Amie J.
Barbarine shall attorn to the complainant, and
become his tenant under the said lease."
THE CHANCELLOR, being called upon, ac-
cording to the course of this court, to give his
reasons for the decree in the court below, said,
that as the appellants never appeared at the
hearing, to make any defense, he had no rea-
sons to assign, as his decree was given, as mat-
ter of course on the default of the defendants
below.
Mr. Riggs, for the respondent, now ' moved
to have the appeal dismissed, on the ground
that the defendants did never appear in the
court below to defend the suit. He contended
that this court ought not to hear an appeal
from the decreee of the Court of Chancery,
unless the defendant below had made a de-
fense, for two reasons : 1. Because this court
496*] would be obliged to *decide without
having the reasons of the Chancellor. 2. That
the court below would be obliged to give an
opinion on a mere ex-parte hearing of the
cause.
To allow the appeal, in this case, would be
making this a court of original jurisdiction.
The defendants, who have treated the court
below with disrespect, can lose nothing by the
rejection of their appeal. The default was
voluntary on their part, and it is their own
fault that a decree has been pronounced
against them. If they had any real defense to
make, they should have appeared at the hear-
ing.
In Dean v. Abel, 1 Dickens, 282, when the
478
defendant made default at the hearing, and a
decree was pronounced against him, from
which he appealed, the House of Lords, with-
out going into the merits, dismissed the ap-
peal, for it was in the. nature of an original
hearing.
No matter, not prayed for in a bill, or in-
sisted on at the hearing, can be made the
ground of an appeal. It is the established rule
of the House of Lords, and is founded in the
very nature of a court of appeals, that no
point not made in the court below, can be
made on. the appeal. (Chamley v. Ld. Dusany
et al, 2 Sch. & Lef., 689-712, per Ld. Eldon.)
Messrs. T. A. JSmmetanA Woodwarth, f or the
appellant, said it was unnecessary to look for
English authorities, when our Statute author-
ized the appellant to come to this court. That
Statute (sess. 24, ch. 10, sec. 8 ; 1 N. R. L.,
134) declares that " all persons aggrieved by
any sentence, judgment, decree, or order, of
the Court of Chancery, or Court of Probates,
may appeal from the same, or any part there-
of," to this court. The appellant has a right
to this appeal, both from the terms and spirit
of the statute. The terms of the Act are
plain and explicit ; and the spirit and inten-
tion of it are equally clear. The Chancellor
is bound to examine every case that comes be-
fore him, before he pronounces his decree.
The defendant may repose such confidence in
the learning and integrity of the Chancellor,
as to be willing to trust the decision to his con-
science ; and he ought not, in justice to the
appellant, to put his conscience into the hands
of the solicitor, for drawing up the decree.
It appears from the decree that the cause
was considered by the Chancellor.
Though we might, possibly, obtain a re-
hearing, yet that cannot affect our right of
appeal.
*Mr. Riggs, in reply, said that there [*497
was nothing imperative in the Act Relative to
Appeals ; and this court, in the construction
of it, have considered the circumstances of the
case. The right of a suitor, in England, to
appeal, is as perfect as it is in this State. If
the decree was not warranted by the record,
the defendants below might bring a bill of re-
view, and have a rehearing.
Mr. Emmet. A bill of review is not the
proper remedy for the defendants below.
(Wyatt's Pr. Regis., 94, 95.)
BY THE COURT (unanimously) — Ordered,
that the appeal be dismissed, with costs.
Cited in— 13 Johns., 576 ; 17 Johns,, 471 ; 18 Johns.,
558 ; 2 Cow., 52 ; 2 Wend., 145 : 4 Wend., 179 ; 5 Wend..
637 ; 8 Wend., 226 ; 25 Wend., 250 ; 8 Barb., 352 ; 5
How. Pr., 324.
JOSEPH WINTER, Appellant,
v.
TEMPERANCE GREEN. THE ELDER, AND
WILLIAM GREEN, HER HUSBAND, ET AL.,
Respondents.
Practice — Appeal — Proper Record of Proceed-
ings Below Necessary.
When a cause on appeal comes on to hearing1, if
the transcript of the record, or certified copies of
the pleadings, evidence, and papers, read in the
JOHNS. REP., 12.
1815
TRAVIS v. WATERS.
497
court below, be not filed in tola court, the counsel
for the appellant will not be allowed to read the
original papers produced by the register of the
Court of Chancery, but the appeal will be dismissed
with costs.
THIS was an appeal from a decretal order of
the Court of Chancery. In June, 1809,
the respondents filed their bill, and supple-
mental and amended bills, in October and De-
cember following, against the appellant, as
trustee, &c., charging various breaches of
trust ; requesting that he might be removed,
and another trustee appointed in his place, or
a receiver be appointed, with proper powers
and instructions, and praying for an injunc-
tion to prevent the appellant from selling and
disposing of the trust estates, and fora discov-
ery, &c.
The appellant, in October, 1809, put in an
answer to the original bill, in part, pleading to
other part*, and demurring to the remainder ;
and he, also, put in an answer to the supple-
mental and amended bills.
lo 1811, the parties agreed to submit all
matters in dispute between them to three ref-
erees.' ' A rule of reference was accordingly
entered on the 8th of June. 1811. In April,
1812, the referees made their report, which
was filed with the register of the Court of
Chancery, with all the documents and proofs
4!)8*] "exhibited and taken before them.
Neither party being satisfied with the report,
each of them exhibited and filed their excep-
tions in August, 1812.
In October Term, 1812, both parties set down
the exceptions for a hearing ; but, on the ap-
plication of the appellant, the hearing was
postponed. The exceptions were again set
down for a hearing in January Term. 1818 ;
but a short time before the term commenced,
the appellant presented a petition to the Chan-
cellor, accompanied with affidavits, and pray-
ing that the report might be referred back to
the same referees, for their re-examination ;
but a decision on this petition was postponed
to the first day of January Term, when the
appellant again applied for a postponement of
the argument, and decision, both on the pe-
tition and exceptions ; which being refused,
and the appellant's counsel declining to argue
the exceptions, the Court of Chancery, on the
20th of January, 1813, made a decretal order,
overruling the appellant's exceptions, and al-
lowing those of the respondents; and confirm-
ing the report of the referees, except in such
parts as had been excepted to by the respond-
ents, and ordering it to be referred to the mas-
ter, to take an account pursuant to the report,
with the variations and modifications men-
tioned ; and the petition of the appellant for a
re-reference was ordered to be dismissed. An
injunction was also awarded to restrain the
appellant from selling and disposing of the
trust estates, or intermeddling therewith, a re-
ceiver having been appointed by the court in
October, 1812.
The respondents set down the cause for a
final decree, at the June Term, 1813 ; previous
to which, the appellant served them with a
copy of his petition, praying that the order,
overruling his exceptions, and allowing those
of the respondents, and the order for dismiss-
ing the petition for a re-reference of the ex-
JOHNS. Hi. IV. 12.
caption* to the same referees, might be set
aside, and that a rehearing might be had, or
for such other relief as the coiirt might think
proper. The court ordered a hearing, in the
nature of a rehearing, on payment of certain
costs, both of the exc-eptions'and the petition.
In October the hearing was put off. at the in-
stance of the appellant ; and in April, 1*14,
a rehearing was had before the present Chan-
cellor, who made a decretal order on the l?th
of May, 1814, from which an appeal was made
to this court.
*It is unnecessary to state more of the [*4J)J>
proceedings in this cause, which are very vo-
luminous. The Chancellor assigned the rea-
sons for his decree.
Mr. Baldwin, for the appellant, having
stated the facts in the cause, and made some
observations, was proceeding to read the orig-
inal affidavits and papers, which had been
read at the hearing in the court below, when
he was stopped by
SPENCER, ./. It appears that the appellant
has not filed, in this court, a transcript of the
record, or certified copies of any of the pro-
ceedings in chancery in this cause ; neither
the report of the referees, DOT the exception*
to the report; nor any of the papers, in that
form, which is usual and proper on an appeal,
so that they may be examined by the mem-
bers of this court. He has, to be sure, got
the register of the Court of Chancery to come
here, with a basket load of papers, which he
intends to read and examine ; but that is not
the proper course of proceeding. As the coun-
sel has no papers in the cause, in the proper
form for this court, and is not ready for the
argument, I think the appeal ought to be dis-
missed.
VAN NESS, «/., was of the same opinion.
And this being the unanimous opinion of the
court, it was, thereupon, ordered that the ap-
peal in this cause be dismissed, with costs.
Appeal dunnimed.
Note.— It appeared that there was no appeal from
the order dismissing the petition for a rehearing :
and some of the judges intimated that this court
could not, on this appeal, order a rehearing, but
must decide only on the correctness of the decretal
order made by the Chancellor on the exception to
the report; that if the appellant wished for a re-
hearing, he should have appealed from the Chan-
cellor's order dismissing tne petition for a rehear-
ing.
MACOB TRAVIS ET AI,., Appellant*, f*5OO
v.
THOMAS WATERS, RetpondeiU.
1. Practice — Co*t« — Death of Party Extinguixhct
Claim for — Exception — }n Equity at Duert-
tion of Chancellor— 2. Final Decree. — 8. Ap-
peal—A. Waiver — 5. Revivor.
If a party in a suit in chancery dies before costs
are decreed, the right to costs up to that time is ex-
tinguished ; unless the costs arc payable out of a
particular fund, or are connected with a duty to-
ward the party claiming them, when they are
granted as matter of relief.
Hut the plaintiffs, on a bill of revivor, cannot
claim the- costs, unh-ss they come before the court
expressly In the character of personal representa-
tives of the deceased party.
479
500
SUPREME COURT, STATE OP NEW YORK.
1815
So, if the bill of revivor state the plaintiffs to be
the heirs and devises of the party deceased, though,
in fact, they be also his executors, yet they can be
taken notice of only in the former character, in
which they appear before the court.
The general rule in law and equity, is, that where
the party dies before judgment or a decree, the
costs die with the person.
Costs in equity rest in the discretion of the Chan-
cellor, and do not always follow a decree in favor of
the party praying relief.
If a final decree is silent as to costs, the question
of costs not having been expressly reserved, the
court will not grant them on a subsequent applica-
tion, unless there is a rehearing on the merits.
A decree on a bill for a specific performance, on
the coming in of the master's report as to the
quantity of land to be conveyed, and the payments
made, directing the balance due to be paid, and the
conveyance to be executed, is a final decree.
Whether an appeal will lie, from a decree of costs
only, in any case. Quaere.
But where a plaintiff in chancery has been guilty
of laches, or waived his claim to costs, by his neg-
lect and inattention in obtaining the final decree,
no appeal will lie from the order of the Chancellor
refusing his application for costs.
Citations-1 Bro. Ch. Cas., 438 ; 2 Ves., 580, 461 ; 1
Dick., 173, 316, 370 ; 3 Ves., 195 ; 3 Atk., 772; Harr. Pr.
Ch.. 622.
was an appeal from an order of the
J- Court of Chancery. The bill in the
court below was filed in 1802, in the name of
Ezekiel Travis, for a specific performance of
An agreement for the sale of land, and for an
.account against Thomas Waters the respond-
ent. The bill stated a verbal agreement, and
that the defendant took possession of the land,
under it, and made several payments ; that
the respondent had since commenced an ac-
tion of ejectment to recover the possession of
the premises, and had obtained a verdict at
law. The cause having being put at issue,
and the evidence respecting the payments be-
ing contradictory, a feigned issue was awarded
by the Court of Chancery, to ascertain the
facts as to certain payments alleged to have
been made ; and on the trial of the issue at
Jaw, a verdict was found for the plaintiff.
On the 27th of October, 1808, the Court of
Chancery decreed a conveyance, in fee, of part
of the premises, to be executed by the respond-
ent, and directed the master to take an ac-
count of the quantity of land to be conveyed,
and of the payments, and to ascertain the bal-
ance, if any, due to the respondent, 'on the
payment of which he was to execute the con-
veyance ; and that the question of costs be re-
served until the coming in of the master's re-
port. The respondent appealed from that de-
cree to this court, in 1812, and the decree was
affirmed with costs, and the record remitted to
the Court of Chancery, in order that the de-
cree of this court should be carried into execu-
tion.
Ezekiel Travis, the complainant, died the
13th of August, 1812 ; and on the 24th of Au-
gust, the appellants, who are his heirs and
devisees, and two of them his executors, filed
5O1*] their *bill of revivor and supplemental
bill, which having been ordered to be taken
pro confesso, the Court of Chancery, on the
23d of January, 1813, on the hearing of the
appellants only, ordered the cause to stand re-
vived ; and the master, as before directed
by the order of October. 1808, was ordered to
take an account, and that on the payment of
the balance, if any, the respondent should ex-
ecute a conveyance ; that the appellants might
480
sue out execution for the costs decreed in fa-
vor of Ezekiel Travis, by this court ; and that
all further directions be reserved until the
coming in of the master's report. The master
made his report, which was filed the 17th of
May, 1813, and the usual order entered for its
confirmation, unless cause shown to the con-
trary in eight days.
This order having become absolute, the ap-
pellants, without having the cause set down
for hearing, obtained an order of the Chan-
cellor, entered the 31st of May, ordering the
respondent, under the directions of one of the
masters of the court, on the payment or ten-
der by the appellants, of $18.24, the balance
found due by the report, and the interest
thereon, from the 1st of April, to execute and
deliver to the appellants a good and sufficient
deed for the parcel of land mentioned in the
report, according to the decree of the Court of
Chancery of the 23d of January, 1813. This
decree being silent as to costs, the cause was
set down for hearing as to the matter of costs
in September, 1818 ; and the Chancellor, on
the 8th of October following, decreed the pay-
ment of costs by the respondent, including as
well the costs of the original, as of the present
suit, the costs of defending the ejectment suit
at law, and of the feigned issue.
On the petition of the respondent, the pres-
ent Chancellor ordered a rehearing on the sub-
ject of costs, and after hearing the counsel of
the parties, on the 6th of July last, was
pleased to order and decree, "that the decree
of the 8th of October, 1813, be reversed and
annulled, and that the defendant (present re-
spondent) is not, and shall not be, liable to
pay to the complainants the costs in the said
decree mentioned, or any part thereof, but
that the defendant go quit thereof, &c. ; the
complainants being left to bear their own
costs, and the costs of the former complain-
ant, whose representative they are ;" from this
decree the complainants below appealed to
this court.
*THE CHANCELLOR gave the reasons [*5O2
for his order.1
Mr. Riggs, for the respondent, then made a
preliminary objection, that no appeal would
lie from an order for costs only. The court
said they would consider that question, if nec-
essary, after hearing the argument of the ap-
peal.
Mr. Henry, for the appellant, contended
that the order of the 31st of May, 1813, was
not a final decree, but a mere interlocutory
order (1 Bro. P. C., 434, Tomlins' ed.), and re-
ferred to the decree of the 23d of January,
which reserved all further directions until the
coming in of the master's report. The ques-
tion as to costs was reserved. (2 Har. C. Pr. ,
118.) The decree of the present Chancellor,
annulling the order of his predecessor, decides
that, if a plaintiff in chancery dies, his repre-
sentatives have a duty to perform, and rights
to maintain, without any power of obtaining
a reimbursement of their expenses.
It is not established in England, that there
can be no appeal for costs, in any case ; though
1.— They were the same as delivered by him in
chancery, and will be found in the reports of the
cases decided in that court.
JOHNS. REP., 12.
1815
TRAVIS v. WATERS.
it may be the general rule there. (1 Ves., 250;
HoMly, 3»5.)
No such rule, however, exists here. The
principle established by this court is, that tin-re
may be an appeal from all orders which con-
clude the rights of the parties. (1 Johns. Cas.,
436 ; 3 Johns., 586 ; 4 Johns., 528 ; 9 Johns.,
443.)
The Chancellor says that the costs which
accrued before the death of Travis were a per-
sonal duty, and there being no decree for
> costs, the right to them became extinct at his
death. But this is only where the bill of re-
vivor is brought for costs only (2 Ves., 580),
and where nothing further is to be done. The
maxim, actio personalia iwmtur cum pertonti,
applies only to actions arising ex delicto. The
Court of Chancery, in England, have regarded
the rule there as a hard one, and have sought
occasion to take the case out of its operation:
and have said that if there was anything exec-
utory in the decree, or the costs were given
out of a particular fund (2 Ves., 468; Coop.
K.|. PI., «8; 1 Bro. Ch. Cas., 438), there can be
no revivor for costs only ; but there may be
where there is a duty and costs. (Bunbury,
45, 160; Dick., 132; 3 Ves.. 195.)
The respondents having allowed the bill to
be tuken pro confenno, instead of coming in and
pleading or demurring, the parties are placed
precisely in the situation in which Ezekiel
Travis stood. (3 P. Wms., 348.)
It may be objected that the executors of
Ezekiel Travis are not made parties, though
two of the appellants are, in fact, his execu-
tors. The omission to make them qua execu-
5O3*J tors, 'parties to the suit, is a matter of
form ; and a bill is never dismissed for want
of parties, or on matter of form. (Anon., 2
Atk., 15.)
Costs in equity rest, it is true, in the sound
discretion of the court (2 Atk., 112); but wher-
ever the material issue between the parties is
found for the plaintiff, he shall have his costs
at law. (1 Bro. Ch. Cas., 424, 425.)
Me*»r*. Riggt and Baldwin, contra, insisted
that though a bill of revivor be taken pro con-
fetto, that it gave the party, in whose favor
the suit was revived, all the rights of the
original parties. The rights obtained will de-
pend on the character in which the party seeks
to revive. If it be as heir, executor or dev-
isee, he will have the rights belonging to the
character of either, as the case may be, and no
other.
All the cases to be found in the English
books, relative to appeals for costs, are from
the decisions of the Master of the Rolls to the
Chancellor ; and a petition to the Chancellor
himself, for a rehearing. Not a case is to be
found, except the one cited from Mosely's
Reports, of an appeal to the House of Lords,
on a mere question of costs. (8 Bro. Ch. Cas.,
:U'J, MS3., Earv.Parnel, Crosby \.\Shadforth.)
But that case is no authority.
But it is said, though this may be the rule
in England, it is not the law here. The words
of the Statute are broad and extensive ; but in
the construction of them, this court have de-
cided that an appeal will not lie from every or-
der of the Court of Chancery. No general
rule has been settled, by the adjudications of
-this court, that embraces this question. This
court will consider the circumstances of each
case, as it arises. Costs in the Court of Chan
I eery are at discretion ; and where that di-crc
tion has been exercised, in principle, there is
an end to the question. This court is mod-
j eled on that of the English House of Lords, as a
. court of appeals, and the decisions of that tri-
i bunal have always been regarded as prece-
; dents in this court. It would not be expedient,
or good policy, for this court to hear appeals
from decisions on matters of costs merely.
The allowance or disallowance of them, by
the Chancellor, must depend on the considera-
tion of a variety of circumstances in the court
below, which cannot be made to appear here.
The Court of Chancery, in England, rarely
grants a rehearing for costs only (1 Bro. C'h.
Cas., 141, note), and never unless in case of
mistake or palpable injustice ; and even in
those cases, great caution is used in granting
a rehearing. (2 Dick., 134; 1 Ves.. 250;
Ainlil.. 521.) This court, as it cannot have
the same knowledge of all the circumstances,
•ought to exercise much greater cau- [*5O4
tion in the allowing of appeals in mere matters
of costs.
It is said that the order of the Chancellor, to
carry the first decree into effect, was a mere
interlocutory order, not a final decree. The
decree of the court, on the report of the mas-
ter, was a final decree, for there was a final
liquidation of accounts ; nothing was left to
be ascertained, but the court was prepared and
able to pronounce on the whole merits of the
cause. (2 Har. C. Pr., 420, Decree.) That
there was no reservation as to costs, was not
the fault of the court, but of the appellant.
The decree was at his own instance and appli-
cation, and being silent as to costs, there is a
waiver of them. The omission is not such a
matter of form that it could be supplied on ap-
plication to the court. The decree being final,
it cannot be altered, any more than a judg-
ment at law.
A revivor determines nothing as to the ulti-
mate rights of the parties. (3 P. Wms., 348.)
The cases of Delaval v. Rlaekett, and Dodton v.
Oliver, Bunbury, 45, 160, cited by the appel-
lant's counsel, show that an appeal will not
lie on a mere question of costs. The case of
Hyde v. Foster, 1 Dickens, 132, has no applica-
tion to this question. Where costs are payable
out of a particular fund, or where they are
§iven by way of relief, being considered as a
uty, and not as costs, the court have obliged
the representatives of the deceased party to
pay the costs, not as within the common rule
as to costs, but as relief. (Jame* v. Phillips, 2
P. Wms.. 657; 10 Ves., 573.)
In regard to this question, it makes no dif
ference whether the decree was final or inter-
locutory. In chancery, costs no more follow
the success of the party, than interest follows
the recovery of a debt ; they rest in the sound
discretion of the court.
It is the established practice of the Court of
Chancery to reserve expressly, in its decree,
whatever is not decided by the court ; and if
nothing is reserved, there is nothing further to
decide.
As to the costs that accrued in the lifetime
of K/.i-kifl Travis, they never have been as-
crrtainedor decreed, and must, of course, die
.JOHNS. REP., 12.
N. Y. R.. 5.
31
504
COURT OF ERROKS, STATE OF NEW YORK.
1815-
with his person ; and as to the costs which have
accrued since, we are willing to pay them.
In Lloyd v. Powis, 1 Dick., 16, though the
bill of revivor was dismissed, with costs, yet
the court would not allow the defendant, the
5O5*] *heir, the costs which accrued in the
lifetime of his father ; for it was ruled that
they died with the person.
In Turner v. Turner, 2 P. Wms., 297,
though the infant's bill was dismissed with
costs, yet on a rehearing it was dismissed with-
out costs by Lord Chancellor King.
If costs were decreed in this case, they would
not go to the appellants, but to the personal
representatives of Ezekiel Travis, deceased.
(Str., 708.) The appellants are not brought
before the court as executors or administrators
(2 Dickens, 768); there are, therefore, no per-
sons before the court who can claim the costs.
But if the costs have not been decreed, they
cannot be recovered after the death of the
party. (Thornev. Deas, 3 Johns., 548.)
As to the costs subsequent to the death of
Ezekiel Travis, the Chancellor has decided
that each party shall pay his own costs. Costs
do not necessarily follow the obtaining an ac-
count in equity. There are various cases in
which costs are refused. (1 Bro. P. C., 1,
Tomlins' ed.; 12 Ves., 326, 335 ; 7 Ves., 202 ; 2
Ves., Jr., 243; 3 Ves., 195.)
Mr. Henry, in reply, said that this was a
question of great importance to the suitors in
chancery ; and the rule of refusing costs in such
a case, if sanctioned, would produce great in-
justice. Suppose a bill filed against a faithless
trustee, and it should be made to appear that
he was guilty of gross fraud in relation to his
trust, and the complainant should die before
the final decree ; his personal representatives
come into court for a revival, and they are
told that they may have their rights, but no
costs which have accrued. It may be that the
costs amount to the value of their rights.
An interlocutory order is granted upon
motion, or petition, not on a hearing. A final
decree does not depend on the time when it is
made, but on its relation to the essence and
merits of the cause, after a full hearing of all
the parties, and when the object of inquiry has
been ascertained and examined. The ques-
tion as to costs was reserved, by the first de-
cree, in the lifetime of Ezekiel Travis ; and
will a silence on the subject, in the subsequent
decree, deprive the appellants of their costs ?
In courts of law, judgments are sometimes
amended, where interest has been omitted.
The equity of the claim of the appellants, for
costs, is apparent from the whole proceedings.
How can the complainant be said to have slept
on his rights, when he was in the peaceable
5O6*] possession of the land for fifteen *years,
until he was disturbed by the litigious spirit
of the respondent ?
PLATT, J. The question on this appeal re-
spects, 1st. The costs which accrued prior to
the death of Ezekiel Travis ; and, 2d. The
costs which have arisen since the appellants
became parties upon the bill of revivor.
In examining the claim for costs which arose
prior to the abatement of the suit, this consid-
eration is presented, to wit : that the duty of
conveying the land, which was established by
482
the decree of the 27th of October, 1808 (and
afterwards affirmed in this court), became sep-
arated from the obligation to pay costs (if any
such obligation existed), when the suit abated
by the death of Ezekiel Travis.
The conveyance of the land was due exclu-
sively to the heirs and devisees ; and the costs
(if they were equitably due) could only be
claimed by the executors or administrators of
Ezekiel Travis.
Upon examining the authorities cited on the
argument (Uattv. Smith, 1 Bro. Ch. Cas., 438;
White v. Ilaywood, 2 Ves., 461 ; 1 Dick., 173 ;
Kemp v. Mackrell, 2 Ves., 580; Morgan v.
Scudamore, 3 Ves., 195; Lloyd v. Powi*, 1
Dick., 16 ; and Blower v. Motretfi, 3 Atk., 772),
it appears to be an established rule in equity,
that where there has been no decree for costs,
and the suit abates by the death of the party,
the right to costs, up to the time, is extin-
guished, unless the costs are payable out of a
particular fund, or are connected with a duty
towards the party claiming costs.
According to the allegations in the bill of re-
vivor, in this case, which was taken pro con-
fesno, the appellants claim only in the charac-
ter of heirs and devisees of Ezekiel Travis ; it
not being averred that any person had accept-
ed or assumed the office of executor or admin-
istrator. It follows, therefore, that the appel-
lants have no right to the costs which accrued
in the lifetime of Ezekiel Travis ; because
those costs, if allowable, are due to his personal
representatives ; and although the executors
might have been joined with the heirs and de-
visees in the bill of revivor, yet it is clear that
they must, in such a case, be deemed parties-
for entirely distinct objects. The heirs and
devisees sue for the conveyance of the land,
and the executors for the costs of the original
suits only.
*To test the rule, therefore, let us P*5O7
suppose that, upon the death of Ezekiel Travis,
Waters had voluntarily conveyed the laud to
the appellants ; and the executors of Ezekiel
Travis had then filed their bill of revivor for
costs of the original suit ; could the suit have
been revived for the purpose of obtaining those
costs? I think not. It would have been a bill
of revivor for costs only; and as no decree had
passed for costs before the suit abated, the
claim for costs moritur cum persona.
Whether the executors alone attempt to re-
vive the suit, or whether they join with the
heirs for that purpose, their object would be,
in both cases, singly for costs, unconnected
with any other duty as to them ; not payable
from any fund, and not within any of the ex-
ceptions to the general rule, which is common
to courts of law and equity, that where the
suit abates before judgment or decree, the
claim for costs is extinguished.
It would, therefore, have been useless to
direct the bill to lie over till the executors
or administrators, if and, should be made
parties ; nor was it necessary for Waters to
plead or demur to the bill of revivor, for the
want of proper parties, because the claim of
the executors for costs must have been un-
availing. Besides, it is never necessary to
plead or demur to a bill, if the bill itself con-
tains no equity, which is the case in this bill
of revivor, in regard to costs in the abated suit.
JOHNS. RB.I'.. 12.
1815
TRAVIS v. WATEUS.
507
Whether the appellant* would have been en-
titled to the costs which accrued since the
death of E/ekial Travis, if their proceed! n^
had been regularly conducted for that objec-t,
I deem it unnecessary to decide. It is certain,
however, that a very broad discretion belongs
to the Chancellor in regard to costs, and that
the right to costs is by no means a necessary
consequence of the relief prayed for and ob-
tained ; on the contrary, there are many cases
where equity grants the relief sought for. upon
condition of paying costs to the defendant.
The rule of practice, in equity, is, that if the
final decree be silent as to costs, and the ques-
tion of costs is not expressly reserved, the
court will not listen to a subsequent applica-
tion for costs, except it be on the rehearing
upon the merits, which is sometimes applied
for, merely for the purpose of introducing such
a reservation as to costs. (Ilerle v. Greettbank,
1 Dick., 870.)
5O8*] *A question has been made, whether
the decree of the 81st of May, 1813, was final
or interlocutory.
According to Harrison's Practice in Chancery,
622, "A decree is final, when all the circura
stances and facts material and necessary to a
complete explanation of the matters in litiga-
tion are brought before the court, and so fully
and clearly ascertained by the pleadings on
both sides, that the court is enabled, from them,
to collect the respective merits of the parties
litigant; and upon full consideration of the
case made out and relied upon by each, deter-
mines between them, according to equity and
good conscience."
"A decree is interlocutory, when it happens
that some material circumstance or fact, neces-
sary to be made known to the court, is either not
stated in the pleadings or so imperfectly ascer-
tained by them, that the court, by reason of
that defect, is unable to determine finally be-
tween the parties ; and, therefore, a reference
to, or an inquiry before, a master, or a trial of
the facts before a jury, becomes necessary to
have the doubts occasioned by that defect re-
moved. The court, in the meantime, sus-
pends its final judgment, until, by the master's
report, or the verdict of a jury, it is enabled to
decide finally."
According to these definitions, it seems to
me, His Honor, the Chancellor, was correct in
deciding that the order of the 81st of May,
1813, is lo be regarded as the final decree in
this cause.
By the bill, Travis claimed a conveyance
for the whole parcel of land originally con-
tracted for, and insisted upon certain payments
in money, oxen and turnips. By the answer,
Waters denied any payments made on account
of the land ; and, as to part of the premises in
question, he alleged, as a defense, that he had,
with the consent of Ezekiel Travis, conveyed
fifty acres of it to one person, and one hundred
ana fifty acres to another (not naming who
those persons were).
All the facts stated by way of excuse, or de-
fense, in the answer, were put at issue by a
general replication.
The Chancellor ordered a trial of feigned is-
sues, to ascertain,
1st. Whether Travis paid £60 in May, 1787,
as part consideration of these lands.
JOHNS. KKP., 12.
2d. Whether, in June, 1807, Travis, in like
manner, paid £12.
*3d. AVhether. in November. 1807, [»5O9
Travis, in like manner, paid a yoke of oxen,
valued at £16.
The verdict upon each of these issues was
in favor of Travis, thereby eatablishing the
fact of those three payments, on account of
this land, at the times there stated ; but it
must here be remarked, that the two other ma-
terial facts put in issue by the pleadings, were
perfectly unascertained when the Chancellor
made the decree of the 27th of October, 1808.
By the appellant's case, it is expressly stated
that "the defendant below made no pVoof of
the conveyances alluded to in his answer, nor
of the partition with David Johnson, nor of
any other conveyances, except that two dis-
credited witnesses said, in general terms, that
Waters had sold so many acres of this land
with Travis' consent." Nor was there any in-
quiry made, nor any evidence received, upon
the interrogatories in the cause, in regard to
the quantity or value of the turnips stated to
have been delivered in part payment for the
land.
By the interlocutory decree (as I consider it)
of the 27th of October, 1808. it was ordered,
"that the defendant convey to the complain-
ant, in fee, and in severally, by a good and
sufficient deed in the law, so much of the
lands contained in said lot, No. 39, not ex-
ceeding three fourths of one half of the said
lot, as the said defendant hath not become in-
capacitated to convey, by reason of the par-
tition, and of the release and conveyances
aforesaid : and that it be referred to a master
to take an account of the quantity of land,
part of said lot, which is to be conveyed as
aforesaid." And further, that the master state
an account, charging the land at eight shill-
ings per acre, with interest, and crediting the
three several payments found upon the feigned
issue, with interest ; and also, directing the
master to report as to the amount of the tur-
nips sold by Travis to Waters.
This reference to the master, therefore, was
not merely to calculate interest, and state an
account upon fixed data ; on the .contrary,
that reference involved an inquiry, by the mas
ter, whether Travis had, or had not, made a
payment in turnips, on account of the land ;
and, if any, to what amount. It also involved,
not merely a survey, but an inquiry whether
Waters had executed a deed or deeds of con-
veyance for any part, and how much, of the
premises in question, to any other person, as
*set forth in his answer ; no such con- \*5 1O
veyance ever having been proved or exhibit-
ed.
It is clear, therefore, that, by the pleadings,
and the facts found by the verdict on the
feigned issues, it did not fully appear how
much had been paid by Ezekiel Travis, on ac-
count of the land ; nor did it appear how much
of the land contracted for Waters remained
capacitated to convey. These essential facts
remained to be ascertained by the master's re-
port, before a final decree could be pronounced.
The decree of the 81st of May, 1818. was
founded on the master's report, and the other
interlocutory proceedings in the cause. It
finally settled the respective rights of the par-
488
510
COURT OP ERRORS, STATE OF NEW YORK.
1815
ties, upon the whole merits ; and consummat-
ed the suit, by ordering Waters, upon pay-
ment to him of $13.34, to convey to the apel-
lants "the parcel of land in the said report
particularly mentioned and described," in the
proportions previously settled.
This decree was taken by the appellants ex-
parte, as advised by their counsel ; and must
be considered as allowing them all that they
asked for. No further equity was reserved.
The appellants paid to Waters the balance re-
ported to be due to him, and he obeyed the de-
cree in executing the conveyance to them.
As I understand the practice, the solicitor
for the complainants was irregular in entering
that order or decree, ex-parte, in vacation, with-
out notice to his adversary. Waters might
have' obtained an order to vacate it for irregu-
larity ; but he waived that objection ; that is,
he admitted the decree to be of the same force
and effect as if it had been entered upon a
hearing after regular notice.
According, therefore, to the settled practice
in chancery, which is similar in analogous
proceedings at law, the claim for costs was
waived by the appellants in taking a final decree
for the land without reservation ; and that claim
could never be revived, but upon an applica-
tion to open the final decree upon its merits.
Such an application was never made ; on the
contrary, the appellants actually demanded
and accepted a performance of that decree ;
and after the decree was thus completely exe-
cuted, a rehearing, if applied for, would not,
I presume, have been granted.
I am not prepared to say that an appeal will
not lie, in any case, for costs only. But, in
5 1 1*] this case, the motion for costs is *to be
considered as an application to be reinstated
in a claim which had been waived ; or as a
motion to excuse a laches or default of the par-
ty claiming costs ; and, in that view, I think
the order of the Chancellor, refusing such in-
dulgence upon a point of practice merely, is
not a subject of appeal under our Constitution,
and the statute regulating appeals.
By that statute, "any person aggrieved by
any "order or decree in chancery, may appeal,"
&c. •
To be "aggrieved," is to be "injured in one's
right ;" and a person who waives his claim
suffers damnum absque injuria, and cannot be
legally said to be " aggrieved."
The appellants have lost their right to claim
costs, by their own laches, or default, in
not asserting their claim according to the
regular course of proceeding in chancery ; and
in the late case of Sands v. Hildreth, in this
court, it was decided that if a party be con-
cluded of his rights by his own default in the
court below, this court will not sustain an ap-
peal for the purpose of reinstating him.
I am, therefore, of opinion that the order
appealed from ought to be affirmed.
THOMPSON, Ch. J., VAN NESS, and YATES,
«/«/., were of the same opinion.
ARNOLD, BICKNELL, CANTINE, RADCLIFF,
STEWART, TIBBETS and VERBRYCK, Senators,
also concurred.
SPENCER, J., said, that as to the preliminary
484
question, he though the English House of
Lords would not entertain an appeal for costs
merely. It was, however, more a question of
practice than principle ; and though appeals
ought not to be encouraged, he was inclined
to the opinion that, under the provisions of
our statute, an appeal might lie from a decree
for costs.
As to that part of the decree of the Chancel-
lor, relative to the costs which accured during
the lifetime of Ezekiel Travis, he thought it
correct ; but as to the costs subsequent to the
bill of revivor, he was of opinion that the de-
cree, so far as respected the disallowance of
those costs, ought to be reversed.
*CLARK, CROSBY, PRENDERGAST, [*512
Ross, SWIFT, TABOR, VAN SCHOONHOVEN,
and WENDELL, Senators, concurred.
A majority of the court being of opinion
that the decree of the Court of Chancery
ought to be affirmed, it was thereupon ordered,
adjudged, and decreed that the decree of the
Court of Chancery be affirmed ; that the peti-
tion and appeal be dismissed, and that the ap-
pellants pay to the respondent his costs, to be
taxed by the clerk of this court ; and that the
respondent have his execution therefore out of
the Court of Chancery ; and that the record
be remitted, &c.
Judgment of affirmance.
Affirming:— 1 Johns. Ch., 85.
Cited in— 17 Johns., 559 : 2 Wend., 234 ; 8 Wend,,
225; 14 Wend., 543; 16 Wend., 372 ; 2 Paige, 383 ; Hopk.,
452 ; 8 Barb., 84 ; 20 How. Pr., 441 ; 12 Abb. Pr., 311 ;
1 Daly. 456 ; 2 Co. R., 124.
ISAAC CLASON, Plaintiff in Error,
v.
GILBERT SHOTWELL, Defendant in Error.
Practice — Costs.
The plaintiff in error, in the taxation of costs, is
to be allowed for four copies of the cases or paper
books only.
Costs for the travel and attendance of witnesses
at New York, examined ex-parte, are not allowable.
MR. HENRY, for the defendant in error,
moved for a retaxation of the costs in the
Supreme Court, being $137.71, and of the costs
in this court, which had been taxed by the clerk
at $714.21. (See S. C., ante, pp. 31, 59-68.) He
particularly objected to the charge for copies
of cases delivered to this court, amounting to
several hundred dollars ; and also to the
charge for the attendance of witnesses at New
York, on ex-parte examination.
It appeared that he had applied to two of
the members of this court, in the vacation, for
an order to stay the proceedings in the cause,
which was refused. He cited the Act Relative
to Costs (2 N. R. L., p. 13).
Mr. Burr, contra, eited the rules of this
court. (Printed rules, p. 6.) But the 9th rule
directs, that the plaintiff in error, or appellant,
shall deliver paper books to the President,
Chancellor, Chief Justice, and one of the
puisne judges ; and the defendant in error, or
respondent, shall deliver them to the other
judges.
JOHNS. REP., 12.
1815
NEW YORK FIKEMEN INS. Co. v. WALDEX.
512
The Court referred the bill to the Chancellor
for a relaxation, who reported that he had
513*1 struck out the charges for cases •de-
livered to the court, and Tor attendance of
witnesses at New York, &c.
Mr. Burr, appealed from this taxation, but
the court confirmed the relaxation of the
Chancellor, allowing the plaintiff to charge
for four cases, or paper books only, according
to the rule of the court.
8. C., ante, 31.
THE NEW YORK FIREMEN INSURANCE
COMPANY. Plaintiffs in Error,
v.
JACOB I. WALDEN AND THOMAS WAL-
DEN, Defendant* in Error.
Marine Insurance— Wtiat Facts Should be Com
munirated by the Assured to the Assurers is a
Question for Jury— Barratry of Master.
What facto in the knowledge of the assured art-
material, and necessary to be communicated to the
assurers at the time or effecting: the insurance, is
matter for a Jury, exclusively, to determine : and
the Judge, in his chanre to the jury, though he may
express his opinion as to the materiality of the
note! for their assistance, or by way of advice, in
cases of doubt and difficulty, ought not to give
them a positive direction or opinion as to the mate-
riality of the facto concealed, so as to prevent the
Jurv from exercising their own judgment, and de-
ciding for themselves.
Whether information or facts, known to the as-
sured, as to the carelessness, extravagance, and
want of economy in the master, be material, and
ought to be disclosed to the insurer, at the time of
effecting the policy. Quaere.
Citations— Doug., 260. 396, n. ; 4 Bos. & P., 14, 151 ; 1
Johns.. 522; 1 Cai.,229; 3 Dall.,491: 1 Condy's Marsh.,
473, b, n.; 6 Cranch, 274, 338 ; 4 Cranch, 64 ; Bull. N.
P., 317; 3 Burr, 1742: 2 T. R., 53, 125.
rpIIIS cause came up from the Supreme Court
-L on a writ of error. For the facts in the
case, and the judgment of the court below, see
8. C., ante, p. 128-139.
PLATT, J., assigned the reasons for the
judgment of the court below, which were the
game as those stated in the report of the case
in the Supreme Court.
The cause was argued by Messrs. 8. Jones,
Jr., and Wells, for the plaintiffs in error, and
by Messrs. Griffin and Ilemy for the defendants
in error.
For the plaintiffs in error, it was contended,
1. That there was a concealment of certain
letters and matters, relative to the conduct and
character of the master, which were material
to the risk, and ought to have been disclosed
to the plaintiffs in error, at the time the policy
was underwritten. And to this point were
cited Marshall on Ins., Condy's ed., 815, 465,
468.469,71.74, 473, n.75; 1 W. Bl.. 594: 3 Burr.,
1909; 3 Dallas, 491; 4Bos. &P.. 151; 1 Caines,
57; Doug., 306 ; 2 P. Wms., 107.
2. That under the circumstances of th#
case, the policy did not protect the ship against
the barratry of Cartwright, the master ; and
that there was not sufficient evidence of barra-
try to entitle the plaintiffs below to recover
NOTE.— Marine Insurance— Barratry — Conceal-
ment. See above case of Walden v. N. Y. Firemen
Ins. Go., ante, p. 128, note.
JOHNS. RRP., 12.
on that ground. To this point *were P514
cited 6 T. R., 283 ; 1 Johns., 229 ; Marshall on
Ins., 534, n.
3. That the materiality of the concealment
was a question of fact, and ought to have been
left to the jury; and to this point were cited 1
Johns.. 522 ; Marshall. 470, n. 74, 478 b, 476.
4. That the judge before whom the cause-
was tried admitted improper evidence, and
misdirected the jury.
For the defendants in error, it was insisted,
1. That this was a clear case of a loss by the
barratry of the master. (6 East, 126; 2 Binney,
274 ; 2 Caines. 72 ; Cowp., 143; 1 Johns., 229 ;
8 Johns.. 272; Parke on Ins., 119.)
2. That the charge of the judge to the jury,
relative to the concealment, was correct ; and
that the implied warranty of seaworthiness,
includes the nautical skill, and good moral
character of the master, and so no disclosure
was necessary. (Parke on Ins., 800, 301 ; Mar-
shall on Ins., 475; 4 East. 590; 1 Campb..
N. P., 421 : 4 East. 596. 597 ; Marshall. 154'
473, n. 74.)
8. That the materiality of the alleged con-
cealment was wholly a matter of fact. (Parke
on Ins., 273, 274 ; 18 East, 47 ; 4 Bos. & P.,
151 ; 8 Dallas, 494, 495 ; 6 Cranch, 274, 279.
281. 838, 340 ; 1 Johns., 523-528); and that no
bill of exceptions would lie as to the opinion
of the judge at the trial, on a matter of fact.
(Bull, N. P., 316 ; 1 Bac. Abr., 529, tit. Bill
of Exceptions, 2 Caines, 163, 168 ; 8 Johns.,
507, 515.) That the remedy, if any, was by a
motion for * new trial, on the ground that the
verdict was against evidence. That the late
Act, requiring bills of exceptions to be re-
turned into the Supreme Court (1 N. R. L. , 319 ,
sess. 86, ch. 8, sec. 4), did not intend to ex-
tend them to matters to which they not before
reach.
THE CHANCELLOR. This case comes up
upon a bill of exceptions, and we are accord-
ingly to be confined to the objections taken at
the trial, and appearing on the face of the bill.
The question is, whether there was error in
the charge which the learned judge delivered
to the jury. This charge was, "that the sev-
eral matters given in evidence on the part of
the plaintiffs, were, in his opinion, conclusive
evidence of the barratry of *the master [*515
of the vessel, on the voyage ; and that the
plaintiffs were not bound to communicate, or
disclose, to the defendants, any of the letters,
matters, or circumstances, which were, at the
time of the insurance, in their possession,
relative to the master ; and that the matters
given in evidence, on the part of the defend-
ants, were not sufficient to maintain the issue
on their part, or to bar the action of the
plaintiffs ; and that if the jury agreed with
him in opinion, they ought to find a verdict
for the plaintiffs ;" and with that charge, he
left the matter to the jury.
The counsel went at large into the discus-
sion of the question, whether the assured
were bound to communicate to the under-
writers, at the time they applied for insurance,
the letters and other knowledge they possessed
of the improper conduct of the master. But
it appears to me that this question is not for
the decision of this court; because, whether
485
515
COURT OF ERRORS, STATE OP NEW YORK.
1815
the circumstances relative to the master ought
to have been disclosed, depends upon the
question, whether those circumstances were
material to the risk ; and the materiality is a
question of fact for a jury and not a question
of law for the court. It is a well settled
principle in the law of insurance that what
facts, in the knowledge of the assured, are
material, and necessary to be communicated
to the underwriter, when insurance is asked
for, is for a jury to determine ; and I will
briefly notice a few cases, in illustration of
this point. My whole opinion will rest upon
the admission and the solidity of this prin-
ciple.
In MacDowall v. Fraser, Doug. , 260, it was
assumed by the K. B. as a given point, and it
was said expressly by one of the judges, that
the materiality of a certain representation
to the underwriters was proper for the consid-
ation of the jury ; and in the case of Shirley
v. Wilkinson, which came before the same
court two years afterwards (Doug., 896, n.),
Lord Mansfield, and the rest of the court,
were of opinion that if the assured, at the
time when the policy is effected, in represent-
ing to the underwriters the state of the ship,
and the last intelligence concerning her, does
not disclose the whole, and what he conceals
shall appear material to the jury, they ought
to find for the underwriter, though the con-
cealment should have been innocent. The
next case I shall mention is that of Willes v.
Glove, 4 Bos. & P., 14, in which the Court of
C. B. admit the same doctrine ; and on the
question whether the concealment of a certain
letter was material, the court held the verdict
to be against evidence, and awarded a new
516*] trial ; *and they declared, that though
great respect was due to the opinion of the
jury, still they thought their judgment on that
point had been too hastily formed, and that
the case ought to be reconsidered. In Lyltle-
dale v. Dixon, 4 Bos. & P., 151, the same court,
afterwards, unanimously, and very explicitly,
declared their opinion that every material cir-
cumstance must be disclosed ; but that it was
for the jury to say how far any given circum-
stance was material.
From these cases it appears that the prin-
ciple which I have stated as the ground of
my opinion, is settled in the English courts ;
and I will now show that it is as explicitly ac-
knowledged in our American law.
In Livingston v. Delafield, 1 Johns. , 522, the
Supreme Court of this State declared that,
whether certain information which the assured
knew, and did not communicate, became ma-
terial, was a question of fact that the jury
was to decide ; and the same doctrine had
been previously advanced by the most distin-
guished counsel (Messrs. Hamilton and Har-
tsori), and evidently acquiesced in by the court,
in a case which arose some years before. (1
Caines, 229) So, in Murgatroyd v. Crawford, 3
Dallas, 491, in the Supreme Court of Pennsyl-
vania, Ch. J. Shippen declared that if, in the
opinion of the jury, a knowledge of the cir-
cumstances that were suppressed would have
induced the insurer to demand a higher prem-
ium, or to refuse altogether to underwrite, it
would be sufficient to invalidate the policy.
Again, in the case of Marshall v. Union Ins.
486
Co., decided in the Circuit Court of the United
States for the District of Pennsylvania (1 Con-
dy's Marshal, 473 b, n.), the court left it point-
edly to the jury to judge of the materiality of
circumstances not disclosed. And, to con-
clude with the highest judicial authority in this
country, the Supreme Court of the United
States has decided, on two different occasions,
Livingston v. Maryland Ins. Co. , and Maryland
Ins. Co. v. Rudens, 6 Cranch, 274, 338, that
the operation of any concealment on the policy
depends on its materiality to the risk; and
that this materiality was a subject for the con-
sideration of a jury, and must be left to them.
One of those cases was considerably analogous
to the one now before us. It came up on error,
founded on a bill of exceptions taken at the
Circuit, and the court say that the effect of a
misrepresentation, or concealment, depends on
its materiality to *the risk ; and this [*5 17
must be decided by a jury, under the direction
of the court; and, 'in that case, said the Ch. J.,
it had not been decided, and, consequently, a
venire facias de novo was awarded, to the end
that a jury might pass upon the question of a
material concealment.
It is thus settled (as far as authority goes.)
beyond all doubt or contradiction, that
whether the matters uot disclosed in this case
were material, was a question that ought to
have been submitted to the consideration and
decision of the jury : and here, I apprehend,
lies the error committed by the learned judge,
that he has given a binding direction to the
jury, upon matter of fact, as if it had been
matter of law. It appears to me that the true
and necessary construction of the charge, as
stated in the bill, is, that it was a positive
direction, in point of law, as to the materially
of the non-disclosure, and that it must have
been so received and obeyed by the jury. If
the charge had been intended as a mere opin-
ion to the jury, on a matter of fact, on which
they were to exercise their judgment, the jury
would, undoubtedly, have been told that the
defense in the case rested upon the question of
the materiality of the letters and facts not dis-
closed; and that it was for them to judge, from
the evidence, whether the disclosure would
have varied the premium, or increased the
risk, in respect of the barratry of the master ;
and that if the jury should be of opinion that
the facts not disclosed were in that sense mate-
rial, they must find for the defendants ; and
that if they thought otherwise, they must find
for the plaintiffs. This would have been the
language of a charge suited to the submission
of such a point ; and we have an example of
this species of charge (if, indeed, an example
can be wanting) in the bill of exceptions taken
in the case of Smith v. Carrington, 4 Cranch,
64. If, then, the judge had deemed it proper
to add his own opinion on that fact, for the as-
sistance or satisfaction of the jury, it might
«have been done with utility and with safety.
But the charge, as stated in the case, is not of
this nature, but it is in the usual style and
language of a direction of the court, on mat-
ter of law. The precedent of a bill of excep-
tions, which was cited from Buller's N. %.,
317, and which is given as for misdirection, is
in the language of the charge in this case.
" And the said Chief Justice did then and
JOHNS. REP., 12.
1815
NEW YORK FIREMEN INS. Co., v. WALDEN.
517
there (says the precedent) declare and deliver
his opinion to the jury, that the said several
518*J matters HO produced *and proved, on
the part of the defendants, were not. upon the
whole case, sufficient to bar the plaintiff of his
action , and, with that direction, left the same
to the jury." There is a precedent of a bill of
exceptions, given in 3 Burr., 1742, and which
was taken to a charge on the subject of search-
warrants, made by Lord Camden, when Ch.
J. of the C. B. ; and the language of this very
authentic precedent is almost in the very words
of the one before us: "And the said Chief
.Ju-Mr<- did then and there declare and deliver
his opinion to the jury, that the said several
matters so produced and proved, on the part
of the defendants were not. upon the whole
case, sufficient to bur the action, and, with that
•opinion, left the Mime to the jury."
In this case, from Burrow, it was never
doubted but that the opinion of the Chief Jus-
tice, so stated in that bill, was taken and re
ceived as a direction in point of law ; and if
the charge in the case before us is not to be
deemed of that character, it will be impossible,
hereafter, to discriminate between a charge
containing a positive direction in point of law.
siii-l mere advice on a matter of fact. I shall
.not enter into any minute criticism on words.
No one who consults the precedents can well
be at a loss for the meaning of this charge.
The language of the learned judge was, that
the plaintiffs were not bound or required to
make the disclosure . that the matters offered
in evidence were not sufficient to bar the ac-
tion, and nothing was said about the weight of
evidence for the consideration of the jury. If
even it was doubtful, by the bill, whether the
-charge was intended as direction, or other-
wise, the result of my opinion would be the
same ; because, when the judge interposes his
opinion to the jury on a point of fact, it ought
not to be left in doubt in what light they are
to receive his charge. In order to preserve a
just balance between the distinct powers of
the court and the jury, and that the parties
may enjoy, in unimpaired vigor, their consti-
tutional right of having the law decided by the
court, and of having the fact decided by the
jury, every charge should distinguish clearly
between the law and the fact, so that the jury
cannot misunderstand their rights or their
duty, nor mistake the opinion of the judge
upon matter of fact for his direction in point
of law. The distinction is all important to
the jury. The direction of the judge, in the
one case, is obligatory upon their consciences,
519*] and so they will, *and so they ought
to, regard it ; but his opinion, in the other
case, is mere advice, and the jury are bound to
decide for themselves, notwithstanding the
opinion of the judge, and to follow that opin-
ion no farther than it corresponds with the
conclusions of their own judgment. Unless
this distinction be kept steadily in view, andj
be defined with all possible precision, the trial
by jury may, in time, be broken down, and
rendered nominal and useless.
I am far from wishing to restrain the judges
of the courts of law from expressing freely
their opinions to the jury on matters of fact,
and still less from interfering with their power
•of controlling the mistaken verdicts of juries,
JOHNS. RKP., 12.
by a liberal exercise of the discretion of award-
ing new trials. No man can be more deeply
M-n-ible of the value and salutary tendency of
this judicial aid and discretion, and none, cer-
tainly, can possess higher confidence in the
character and wisdom of the court whose judg-
ment in now under review. All that I feel it
my duty to contend for is, that whenever the
judge delivers his opinion to the jury on a
matter of fact, it shall be delivered as mere
opinion, and not as direction, and that the
jury shall be left to understand, dearly, that
they are to decide the fact, upon their own
view of the evidence, and that the judge in-
terposes his opinion only to aid them in cases
of difficulty, or to inspire them with confi-
dence in cases of doubt. It is for this princi-
ple that I feel solicitous, and not for anything
that may have taken place in this particular
cause. The case before us is, comparatively,
of trifling consequence ; but the distinction I
have suggested goes to the very root and es-
sence of trial by jury; and ma}', indeed, be-
comeof inestimable value, and, perhaps, of per-
ilous struggle, when the present generation
shall have ceased to exist.
I am disposed to hand to posterity the insti-
tution of juries as perfect, in all respects, as
we now enjoy it ; for 1 believe it may, in times
hereafter, be found to be no inconsiderable
security against the systematic influence and
tyranny o? party spirit, in inferior tribunals.
Had the bill of exceptions been represented
to the court below, in the view I have now
considered it. I am satisfied that the court
would have unanimously recognized the just-
ness of the principle for which I contend.
Their attention was wholly drawn to the ques-
tion of the materiality of the proofs.
If then, the charge of the learned judge is
to be considered *(as I think it must be) [*52O
as a declaration to a jury, that the papers and
facts not disclosed were, in judgment of law,
immaterial, then the jury have never passed
their own judgment upon the materiality of
those proofs ; and the cause ought to be re-
manded to another jury. This is the neces-
sary course in such a case. Thus, in Darie*\.
Pierce, 2 T. R. , 53, 125, evidence was rejected,
and a bill of exceptions taken, and the K. B.
held the evidence admissible, and a tenire de
noto was awarded ; and the judges, in that
CTtff. said that "as the jury had not exercised
any judgment upon the whole of the question,
it ought to be submitted to them for their con-
sideration ; and that when they held that the
evidence should have been received, they did
not determine that it was conclusive, but only
that it ought to have been submitted to the
jury, and that what effect it would have upon
their minds, it would be impossible to say."
That case is analogous to the present one in
principle ; for whether evidence be rejected,
or the jury be charged that in law it is of no
avail, amounts to the same thing, as to its ef-
fect with the jury.
I have not deemed it necessary to examine,
critically, the evidence in the case, in order to
determine whether certain facts were material
to have been disclosed, because, as I have al-
ready attempted to show, that question was
for a jury, and is not within the province of
this court ; I shall only add, that it does not
4s;
520
COURT OP ERRORS, STATE OF NEW YORK.
1815-
appear to me to be a very clear point, that the
evidence withheld from the underwriters was
immaterial; and, therefore, as well on account
of the importance of that question in this par-
ticular case, as on general principles of law, it
ought to be submitted to the consideration of
a jury.
I am, accordingly, of opinion that the judg-
ment of the Supreme Court be reversed, and
that the cause be remanded, with directions
that a venire de now be awarded.
A majority of the court1 being of this opin-
ion, it was thereupon ordered and adjudged
that the judgment of the Supreme Court be
reversed, and that a venire de now be awarded,
for the trial of the issue joined between the par-
ties in the said court ; and that the costs in
this court abide the final decision of the cause.
Judgment of reversal.*
Reversing— ante, 128.
Cited in— 12 Wend., 515: 20 Wend., 413 ; 28 Wend.,
396, 530; 5 N. Y., 160; 64 N. Y..534; 74 N. Y., 297 ; 3
Hun, 360 ; 4 Barb., 518 ; 6 T. & C., 84, 366 ; 5 Duer. 599;
46 Super., 530 ; 7 W. Dig., 291 ; 1 Peters, 191 ; 10
Peters, 96 ; 9 Wall., 202.
52 1*] *GEORGE MONELL, Appellant,
v.
WILLIAM LAWRENCE, JOHN WOODS,
AND WILLIAM W. SACKETT, Respond-
ents.
Real Property — Mortgages — Purchase of Equity
of Redemption — Payment to Solicitor of Mort-
gagee— Ordzr to Stay Sale under Mortgage —
Sale by Master witJwut Notice of Stay — Sale
Valid — Practice.
L., a mortgagee, filed a bill against S. and others,
for the sale of the mortgaged premises, and to which
suit M., who had purchased a judgment against the
mortgagor, was a party. After a decree for a sale
had been entered, by the consent of the solicitors of
all the parties, M. sued out an execution on his
judgment against S., under which his interest in
the mortgaged premises was sold by the sheriff at
auction, and M., having become the purchasers, at
the sheriff's sale, of the equity of redemption,
offered, before the day fixed by the decree for the
sale, to pay to the solicitor of L. all the principal
and interest due on the mortgage, it' L. would assign
the mortgage to him, which L. refused to do. M.,
the next day, paid to L.'s solicitor the principal and
interest due on the mortgage, and took a simple
receipt for the amount, without expressing it to be
in satisfaction of the mortgage, and the parol evi-
dence that it was made as a deposit, and not for the
redemption of the mortgage ; M., afterwards, and
before the day of sale, obtained an order to stay the
sale ; but the master having no notice of this order,
proceeded, and sold the premises at auction, under
the decree, and executed deeds to the purchasers.
Held, that the' sale was valid and effectual, and that
the rights of the innocent and bonafide purchasers
could not be affected by the order staying the sale.
It seems that all persons are bound to take notice
of decrees in chancery, as well as judgments at law,
but not of interlocutory orders.
It seems that if a party is present in court, and has
knowledge of any order or proceeding of the court,
and does an act contrary to it. it is a contempt. A
decree, entered by consent of the solictitors or
counsel of the parties, cannot be set aside on motion,
1.— For reversing, 10, viz : Bishop, Bloom, Coch-
rane, Crosby, Keys, P. W. Radcliff, Stewart, Swift,
Tabor and Van Schoonhoven, Senators ; and for af-
firming, 8, viz : Arnold, Atwater, Hasrer, Prender-
gast, Rouse, Tibbits, Van Buren, and Van Bryck,
Senators.
2.— See Fisher's Executors v. Duncan et al., 1
Hem ing & Mumford, in S. C. of Virginia, 563, S. P.
488
unless there be fraud or collusion between the solic-
itors or counsel.
Where a decree is entered by consent, there can
be no rehearing : but the party, in case of fraud or
collusion, must seek relief by an original bill. In
consequence of the Statute direction (sess. 36, ch. 95,
sec. 11) relative to sales of mortgaged premises by a
master, under a decree of chancery, it is not neces-
sary that the report of the master, as to the sules,
should be confirmed, before deeds are executed to
the purchasers. The rule of the English Chancery,
on this subject, is not, therefore, applicable.
Citations— 1 Johns. Cas., 145 : 2 Johns., 378 : 5 Johns.,
72 ; 2 T. R., 366 ; 5 Ves., 87 ; 1 Pet. Adm., 179, 180 ; 2
P. Wins., 483; 1 Vern., 286; 3 Ves., 488; Amb., 229.
THIS was an appeal from an order of the
Court of Chancery.
On the 18th of September, 1812, the respond-
ent William Lawrence filed his bill in the Court
of Chancery, for the sale of certain mortgaged
premises, situate in Newburgh, in Orange
County, which had been mortgaged to him,
the 1st of August, 1810, by the respondent
William W. Sackett, to secure the payment of
$3,500, with interest. The bill stated that the
appellant, Monell, was the owner of a judg-
ment obtained by Daniel Austin and David
Andrews, against Sackett, in the Supreme
Court, in October Term, 1811, for $i;il4;
Monell had also another judgment against
Sackett, obtained in the Supreme Court, in
October, 1812, for $375. In June, 1812, Ed-
ward Griswold also obtained a judgment in
the Court of Common Pleas of Orange County,
against Sackett, for about $90.
Some time in July, and before the 30th day
of that month, Sackett executed two bonds,
with warrants of attorney to confess judgment,
to John Woods, the respondent, his maternal
brother, for about $4,800, on which a judg-
ment was entered up, the 3d of August, 1812 ;
and on the 30th of July, 1812, Sackett, and his
wife, conveyed the mortgaged1 premises and
other lands to Woods, in fee ; Sackett being
then insolvent, and in prison. A separate in-
strument was, at the same time, executed by
Woods, to Sackett, declaring that the lands so
conveyed to him were in trust, for the benefit
of all the creditors of Sackett, and the over-
plus, if anv, in trust for Sackett.
*Sackett", Monell, and Woods, who [*522
were all parties to the bill, answered sepa-
rately.
Sackett, in his separate answer, admitted the
facts stated in the bill, and set out the trust
contained in his conveyance to Woods ; de-
clined to redeem ; consented to a sale of the
premises ; and prayed his rights to the sur-
plus, if any, after paying Lawrence, might be
preserved to him.
Woods, by his separate answer, in like man-
ner, admitted the facts in the biH ; set out the
trusts in the deed to him ; declined redeem-
ing the mortgaged premises ; consented to a
sale ; and prayed that the surplus of the pro-
ceeds, after paying Lawrence and Monell,
might be paid to him, or applied pursuant to
the trusts.
* Monell not having appeared in due time, a
decree, pro confesso, was taken against him ;
but in January, 1813, and after an order of,
reference had been made in the cause, Monell.
by permission of the court below, filed his
answer, in which he consented, and prayed
that the mortgaged premises might be sold in
the month of May then next, and that the
JOHNS. REP., J2_
1815
MONELL v. LAWUENCE.
522"
money arising from the sale might be disposed
of as to the court should seem equitable. He
also, bv consent, filed an additional answer,
setting "forth a judgment obtained by himself
and Hiram Weller, against Sackett, since the
filing the bill of Lawrence.
On the 6th of March, 1813, an agreement
was made, and signed by the solicitors of all
the parties, consenting " that the mortgaged
premises should be sold by a master of the
court, on or after the 15th of May next : that
the proceeds of such sale should be paid into
court ; and that the complainant should receive
the amount of his debt and costs ; and that the
rights of the defendant to the surplus be pre-
served to them respectively ; and a decretal
order was made, pursuant to this agreement,
which was delivered to Jasper Lynch, one of
the masters in chancery, to be executed. The
master, on the 6th of April, reported the sum
of $3,911.46 due to Lawrence on the mortgage,
and advertised the premises for sale on the
19th of May following.
Pending these proceedings, Griswold, the
judgment creditor, and not a party to the bill,
took out execution.and sold SacketVs interest in
the mortgaged premises at auction, and Monell
became the purchaser of the equity of redemp-
jV2.***l tion, for $1,200, *and took the sher-
iff's deed, subject to the mortgage, and
the wife's dower. Monell immediately
commenced an action of ejectment against
the tenant of Woods, and came to New
York, where, on the 7th of May, he offered to
purchase the mortgage of Lawrence, who re-
fused to assign it.
On the 8th of May. 1813. Mr. Burr, solicitor
for Monell. addressed a note to Mr. Jay, solic-
itor for Lawrence, stating that Monell having
purchased the equity of redemption, and being
disposed to pay off the mortgage, it would be
an unnecessary expense to proceed to a sale ;
that Mr. Lawrence refused to re-invest the
amount ; that it would be inconvenient to Mr.
Monell to attend the sale on the 19th, and ask-
ing for a postponement for fifteen days ; and
that he would, in the meantime, if desired, de-
posit with the register the principal and interest
due to Lawrence. To this Mr. Jay answered,
that, to his knowledge, Mr. Lawrence had not
refused to permit Monell to redeem the mort-
gage ; that he (Jay) was " still ready to receive
the principal, interest, and costs, and stop all
further proceedings ;" that he had only refused
to give an assignment of the mortgage to Mon-
ell, for the purpose of defeating a trust for the
benefit of Sackett's creditors, a purpose which
appeared to him iniquitous ; and that he, there-
fore, saw no reason for delaying a sale. On
the same day, Monell called on Mr. Jay, and
offered to pay him the money due on the mort-
gage, and the latter consented to receive it and
cancel the mortgage ; but Monell said he was
advised that he had a right to an assignment
of the mortgage ; that he should apply to the
Chancellor for an order to stay the sale, and
compel an assignment, and would deposit the
money in one of the banks, complaining that
he should lose his interest. Mr. Jay then told
Monell that he might, if he pleased, pay the
money to him, and the sale should be post-
poned to the 3d of June ; and if it then took
place, the money should be refunded with
JOHNS. REP.. 12.
interest. To this Monell assented, and paid
Mr. Jay $3,930.90, who paid over the same to
Lawrence ; but nothing was said about costs.
The following receipt was given to Monell :
" Received, May 8th, 1813, from Mr. George
Monell, one of the defendants in this cause,
three thousand nine hundred and thirty dollars
and ninety cents.
P. A. JAY, Solicitor for Complainant."
*On the 3d of June, notice was given [*524-
by Monell's solicitor, of an application to be
made to the Chancellor, on the 7th of June,
for an order to dismiss the bill of the plaintiff ,
and to direct him to file the mortgage with the
register. The Chancellor refused to dismiss
the bill, but ordered the mortgage to be filed.
On the 22d of June, the solicitor of Monell
gave notice to the solicitor of Lawrence, of a
motion to be made for an order to stay the sale.
On the urgent request of the solicitor of Mpn-
ell, the solicitor Lawrence consented, on the
17th of June, to stay the sale for a fortnight,
| and offered to discontinue the suit, and dismiss
the bill if Monell would pay all the costs ; but
the solicitor of Monell insisted that he had a
right to redeem, without paying the costs of the
j other defendants.
On the 1st of July, 1813, no order to stay the
sale having been received by Lawrence, or his
solicitor, or the master, the premises were sold
at auction in lots, and it was not pretended
that the sale was unfair, or at an under value.
It appeared, however, that the Chancellor had
on the 29th of June, at Albany, made an order
staying the sale until the further order of the
court. A copy of this order was received by
the solicitor of Monell, on the morning of the
2d of July, who immediately showed it to the
master, who informed him the sale had taken
place the day before, but no deed had been de-
livered.
On the 21st of July, 1813, upon the applica-
tion of Monell's solicitor, an order was made
by the Chancellor, that the master should ab-
stain from delivering any deed of the mort-
gaged premises, until the further order of the
court ; and that the plaintiff, Lawrence, show
cause, on the first day of the next term, why
the sales of the mortgaged premises should not
be set aside.
Lawrence showed cause, and on the 10th of
September, 1813, the Chancellor ordered the
sales made by the master to be confirmed, and
that the master should execute the deeds of
conveyance to the purchasers, and apply the
proceeds of the sale conformably to the decree
entered, by consent, in the cause ; and that
Monell pay the costs which had accrued on the
order to show cause.
From this order Monell entered his appeal ;
but no notice of the appeal was given to Law-
rence, or his solicitor, or to the master, until a
month after deeds had been delivered to the
purchasers.
*It has not been deemed necessary [*525
o state, particularly, all the facts contained in
the different depositions which were read, as
such as are material will be found in the
opinion of the judges.
Mr. Burr, for the appellant, contended. 1.
That an equity of redemption may be sold on
*fi- fn., and that, Monell having acquired the
right of redemption by the purchase at the
S25
COURT OF ERRORS, STATE op NEW YORK.
1815
sheriff's sale, his tender of the principal and
interest due to Lawrence, on the 7th of May,
1813, extinguished all right in him to proceed
further on the mortgage ; but he became,
afterwards, a trustee of the mortgage, for the
benefit of Monell. (Manning v. Burgess, 1 Ch.
Rep., 29; 3 Atk., 90, ».)
2. That the payment of the money due on
the mortgage to the solicitor of Lawrence, and
the mortgagee having received the money, on
the 8th of May, was a full satisfaction and dis-
charge of the mortgage ; and all the subse-
quent proceedings were unnecessary, vexatious
and oppressive.
3. That the subsequent sale, by the master,
on the 1st of July, was irregular and unjust.
Judicial proceedings take effect from the
time they are made ; there was no necessity
for notice of the order of the 29th of June to
the" master. It was made after hearing of
counsel on both sides. (3 Atk. , 394, 564 ; 2
Bro. Ch. Cas., 141 ; Mosely, 202.) It was
known immediately to the counsel of Mr. Law-
rence. (2 Harr. Ch. Pr., 141 ; Wyatt's Pr.
Reg., 299.) It is the same at law. The allow-
ance of a writ of error immediately stays exe-
cution.
The Chancellor, in his order of the 10th of
September, proceeded on the ground that the
former order was a final decree. But it was not
so to the extent that it could not be opened ;
for there are many cases in which the proceed-
ings are again opened, after a decree, and even
after a confirmation of the master's report.
(2 Bro. Ch. Cas., 475 ; 4 Bro. Ch. Cas., 172 ;
€ Bro. P. C., 148, old ed.)
But the proceedings of the master, in regard
to the sale, were irregular ; for the report had
never been confirmed. (Wyatt's Pr. Reg. , 379,
380; 11 Ves., 559.) Besides, the authority
of the master was suspended, after the mort-
gage was ordered to be deposited with the
register.
A party may better his title during the pen-
dency of a suit. (11 Ves., 610 ; 5 Bro. P. C.,
292, 298, Tomlin's ed.)
Mr. Henry, contra, contended that, whatever
the rule may be in England, it was not neces-
sary here that the master's report should be
confirmed before he was authorized to -proceed
further. By our Statute (1 N. R. L., 490, sess.
36, ch. 95, sec. 11), full power is given to the
526*] master to sell *mortgaged premises
under decrees of the Court of Chancery, and .
to give deeds to the purchasers. The decree
for the sale had been entered, by consent,
under an agreement entered into between the
parties, on principles of perfect equity ; and
that decree could not be set aside or modified
by motion, or any summary proceeding,
founded on matter arising after the decree
(3 Atk., 809 ; 2 Ves., 488 ; 1 Ves , Jr., 93 ; 3
Bro. Ch. Cas., 74 ; Amb., 229 ; 1 Anstr., 81 ;
1 Bro. P. C., 468, Tomlin's ed.) ; more espe-
cially as Sackett and Woods, the parties to be
affected by such proceeding, had no notice
thereof, and had no opportunity of defending
their rights. Monell should have filed his
original bill, and stated the supplementary
matter. The purchasers at the master's sale
ought to have been brought in as parties, in
order to defend their rights. Monell could
not bring forward this new matter on his mo-
400
tion, and so make himself a witness in his own
cause. Besides, he does not stand before the
court with perfectly clean hands ; nor does he
show any equitable grounds for his claim to an
assignment of the mortgage, having, after the
decree, by consent, procured the equity of re-
demption to be sold, for the purpose of de-
feating creditors, and not only to prevent a
sale of the premises at a fair and just price,
but that equitable distribution of the proceeds
which would, otherwise, take place under the
decree.
The sales of the master were made fairly,
and at adequate prices, and pursuant to the
decree, without any notice of any order by
which his proceedings could be suspended.
YATES. J. The decree in this cause, of the
6th of March, 1813, being by consent, under
an agreement between the parties, it is insisted
that it cannot be modified, or set aside, upon
motion, for matter arising afterwards.
This is a correct principle as to matters
arising subsequently, and so connected with
the subject of the decree as to change the
intent of it, but can never be urged to avoid a
benefit resulting to a party by a subsequent
act not inconsistent with, but in furtherance
of that part of the decree in which the re-
spondent has an interest, and to which (if the
allegation is substantiated) he must have as-
sented.
The object of the respondent's bill, in the
court below, was to effect a sale of the mort-
gaged premises by the master, to recover, out
of the proceeds, the sum due to him ; and
although the subsequent purchase of the
equity of redemption, by the appellant,
*could not destroy the respondent's [*527
priority for the payment of the amount due on
his mortgage, according to the decree by con-
sent (which certainly could not be altered in
that respect), yet the rights of the appellant
and the other defendants, in the court below,
being reserved to them respectively, the ques-
tion as to priority remained open, and was a
subject for future investigation by the court ;
and, until that was settled, the appellant had
a right to better his case, by purchasing the
equity of redemption.
The decision of this cause, however, wholly
depends upon the nature of the payment made
to Mr. Jay, the solicitor of the respondent. If,
then, on an examination of the evidence, it
should turn out to have been in extinguish-
ment of the mortgage, the subsequent proceed-
ings must be nugatory, as founded on an in-
strument which had ceased to operate, and
the order of the Court of Chancery ought to
be reversed ; but if it should be a mere deposit,
the order ought to be affirmed.
From the correspondence between Mr. Burr
and Mr. Jay, no correct conclusion, as to the
nature of the payment, can be drawn. The
former states that' Monell was disposed to re-
deem, and had offered to pay the principal,
interest and costs, but that Mr. Lawrence re-
fused to receive it ; this the latter denies, and
says that he only refused, in behalf of Mr.
Lawrence, to give an assignment of the mort-
gage, and was still ready to receive the amount,
and stop all further proceedings, but without
assigning the mortgage; which, lie said, could
JOHNS. REP., 12.
1815
MONELL v. LAWRENCE.
527
only be required for the purpose of defeating
a trust for the benefit of Mr. Sackett's credit-
ors, a purpose which appeared to him iniqui-
tous ; that, therefore, he saw no reason for de-
laying a sale of the premises ; and the receipt,
subsequently given by him in the same cause
for the amount, does not purport to be in ex-
tinguishment of the mortgage, although that
would be the inference, in the absence of other
testimony on the subject : but it appears, from
the evidence of Mr. Jay, confirmed by the tes-
timony of Jasper Lynch, that this money was
received at the instance of Monell, merely to
save interest, and not with a view to redeem
the mortgage. That this must have been the
case, the subsequent conduct of the parties
sufficiently evinces. It certainly could not
have been the understanding that all further
proceedings should be arrested by it, as the
time of sale was subsequently prolonged, at
f>128*] the request of the appellant and *his
><>li(;itor. The amount paid, too, is confined
to the principal and interest, without costs, a
circumstance manifestly indicative of the char-
acter of the transaction.
I do not think that the situation of Jasper
Lynch affords sufficient grounds to affect his
credibility as a witness, or invalidate his acts
as a master. He was perfectly disinterested,
and expressly declares that he had no connec
tion with the business of Mr. Jay in the Court
of Chancery. His being a partner in other
business (not in that court) could not disqual-
ify him to perform duties in his official capac-
ity, because Mr. Jay was the solicitor ; nor
can the sale made by him be set aside, merely
because the order of the 29th of June had been
made, unless positive notice of the existence
of such order be brought home to him. This
has not been done. The sale, consequently,
is not irregular on that account; and the pur-
chaser ought to be protected, unless it can be
avoided for some other cause. They paid their
money under a belief, and in full confidence
that the title to the property passed to them
at the time the conveyances were executed by
the master, according to the directions of the
statute, which expressly declares that such
deeds shall be as valid as if the same had been
executed by the mortgagor and mortgagee.
The English rule requiring a confirmation of
the master's report is not applicable here. In
England proceedings are different : the mas-
ter opens a book for biddings, and all remains
in an unfinished state, and under the perfect
control of the court until the report of sales
is confirmed. The master, there, has no au-
thority to consummate the sale by executing
a conveyance ; that is done by the parties in
interest only ; and. until a confirmation of his
report, the whole of the business in relation
to the biddings transacted lx?fore him, con-
tinues open for the exercise of the discretion
of the court. Here, the confirmation of the
master's report before the deeds are executed
is not essential ; it has been rendered unneces-
sary by the statute, in giving the master au-
thority to convey to the purchasers. The sub-
sequent confirmation of the report of sales
thus consummated, if the whole has been cor-
rectly and fairly conducted, follows of
course.
It is objected that the master's report of the
JOHNS. REP., 12.
6th of April, stating the sum of $3,911.46 to
be due to the respondent on the mortgage, has
never been confirmed ; and, therefore, the
sales ought to be set a-ide for irregularity.
Such *an objection cannot, at all [*529
events, avail the appellant in thi- CUM-. UN
alleged payment, in extinguishment of the
-.line mortgage, is a sufficient confirmation of
of tins report to prevent an advantage to him
by this omission.
The master had no authority to arrest or
postpone the sale, without due notice of the
order of the 24th of June; and the circum-
stances urged do not warrant the inference
that he had such notice. They arc too slight
to implicate an officer, in whom it would
have been criminal to disregard the order,
by proceeding in the sale, notwithstanding his
knowledge that it had been made. His pro-
ceedings appear to have been fairly and cor-
rectly conducted ; and the sale thus made, by
virtue of the decree, by consent, ought not to
be vacated or set aside. My opinion, accord-
ingly, is, that the order of the Court of Chan-
cery, of the 10th of September, 1818, confirm-
ing the sales, and directing the master to
execute the deeds, be affirmed.
THOMPSON, Ch. J. It will be necessary to a
right understanding of this case, and to arrive
at a correct conclusion as to the rights of the
parties, briefly to state the leading facts in the
cause, and to keep in view dates, and the
course and order of the proceedings. The
respondent, William Lawrence, having a mort-
gage against William W. Snckett, and the de-
fendant Monell having two judgments against
Sackett, and the defendant Wood having a
deed of the mortgaged premises from Sackett,
in trust for all his creditors, the respondent
filed his bill to foreclose the mortgage ; upon
which the parties, by their respective solicitors,
on the 6th of March, 1818, entered into an
agreement that the mortgaged premises' shoald
be sold under the direction of a master in
chancery, on or after the 15th of May then
next, and the proceeds paid into the Court of
Chancery ; out of which Lawrence was to be
paid the sum due him ; and the rights of
Monell, Woods, and Snckett, to the surplus of
such proceeds to be preserved to them respect-
ively. A decree was thereupon entered, pur-
suant to this agreement, and a reference made
to a master to ascertain the sum due on the
mortgage, and to proceed to a sale of the mort-
gaged premises. According to the agreement,
the master advertised the sale for the 19th of
May. After entering the decree, and before
the day of sale, Sackett's interest in the mort-
gaged premises was sold under an execution,
issued upon a judgment in favor of Edmund
Griswold, *for about $90 ; and of [*<>;*O
which judgment Monell had become the pro-
prietor ; ami upon this sale Monell becomes
the purchaser. His object will be seen by
noticing the dates of the several incumbrances.
The mortgage is dated the 1st of August, 1810.
Monell had two judgments in his own name
against Sackett — the one of October Term.
1811, for $1.114 ; and the other of October
Term. 1812, for $875. Griswold's judgment,
under which the sheriff sold, was obtained in
June, 1812; and on the 80th of July, 1812,
491
COUKT OF ERROKS, STATE OF NEW YORK.
1815
Sackett conveyed to John Woods the mort-
gaged premises and other lands, in trust for all
the creditors of Sackett. This deed being prior
in date to Monell's last judgment, his object
probably was to secure himself and overreach
this deed by availing himself of Griswold's
judgment, which was one month older than
the deed. This might have been an honest
struggle to secure his own debt ; and if his
proceedings and conduct in relation to that
sale by the sheriff were fair, his object may
be attained, if he can set aside the sale made
by the master, under the agreement, and the
decree of the Court of Chancery.
The regularity or fairness of the proceed-
ings under the sheriff's sale, are not now be-
fore us ; the appellant, for some reason or
other; appears to have been extremely so-
licitous to become the purchaser of the mort-
gage, and to have the same assigned to him.
Lawrence was willing to receive the money
due him, and cancel the mortgage. This, it
seems, would not answer Monell's purpose,
and he insisted upon having the mortgage as-
signed to him. The objection on the part of
Lawrence against assigning the mortgage was
that it might be used to defeat the trust created
by the deed to Woods, for the general benefit
of Sackett's creditors. The mortgage money
was, in point of fact, paid to Lawrence ; the
mortgage, however, neither canceled nor as-
signed to Monell. And the first and one of
the principal questions in the cause is. whether
this payment was made and accepted in sat-
isfaction and discharge of the mortgage, or
only as a deposit, and so as not to effect ihe
sale by the master. I am fully satisfied that it
must be viewed in the latter sense, and with-
out prejudice to those proceedings. It is un-
iieccessary to scrutinize, minutely, what act-
ually passed between Lawrence and Monell
on the 6th of May, when there was some pre-
tense of a tender of the money due on the
mortgage. The parties, according to their
affidavits, appear to have understood very
53 1 *] differently *what passed on that oc-
casion ; and were it neccessary to decide be-
tween them, we should be bound, according
to the rules of evidence, to give credit to the
statement of Lawrence, as he is supported in
many particulars by the testimony of 'Lynch.
But this must be put entirely out of view ; for
the subsequent arrangement made with Mr.
Jay in relation to the money was a waiver of
anything that might have had the appearance
of a tender. It was the next day that the
money was paid to Mr. Jay; upon which, after
stating the title of the cause, he gave a receipt
as follows : " Received, May 8th, 1813, from
Mr. George Monell, one of the defendants in
this cause, $3,932,90." Nothing is to be col-
lected from the receipt itself as to the terms
and conditions upon which the money was re-
ceived. It was a mere naked deposit, and is
open to explanation from other testimony, to
show the understanding of the parties. It has
been repeatedly ruled in the Supreme Court
that receipts may be explained, and even con-
tradicted, by parol evidence. The grossest
abuses and frauds might be practiced, if bare
receipts were to be deemed conclusive, and not
open to examination. (1 Johns. Cas., 145; 2
Johns., 378 ; 5 Johns., 72.) And the same
492
principle has been fully recognized by other
courts. (2 T. R., 366 ; 5 Ves., 87 ; 1* Peter's
Adm., 179,180.) The parol evidence in this
case, on the part of the respondent.does not con-
tradict the face of the receipt, but is in perfect
harmony with it ; and we must have recourse
to this evidence to explain its meaning, and
ascertain the intent and -object which the par-
ties had in view. Mr. Monell certainly stands
contradicted by Mr. Jay and Mr. Lynch in
many important particulars ; he says he paid
Mr. Jay the full sum due on the mortgage
(though he does not say it was so paid or re-
ceived in satisfaction of the mortgage) ; that
he offered to pay the costs, but they were not
made out ; that he left money with his counsel
to pay the costs, and thereupon left the City
(New York), believing the cause was at an
end, and not having the slightest suspicion
that any further proceedings would be at-
tempted therein. Mr. Jay, after stating the in-
effectual attempts of Mr. Monell to procure an
assignment of the mortgage, says Monell
informed him that he should deposit in one of
the banks the sum due upon the mortgage,
and cause an application to be made to the
Chancellor on the subject. That he (Jay),
partly to oblige Monell, and partly sooner to
obtain the money *due his client, told [*532
him he would receive it, and when a sale took
place he (Monell) should be repaid out of the
proceeds thereof, with interest to the time of
the sale. And thereupon Monell paid him the
money, stating that he did it to avoid losing
the interest on the same. And that Monell
then requested him to postpone the sale until
the 3d day of June, to which he consented.
That the sale was afterwards twice postponed
at the solicitation of Mr. Burr, but whether by
the desire of Monell does not appear. Mr.
Jay further says that when he received the
money he did not consider Monell as having
redeemed the premises, but as making a de-
posit in his hands, to be returned with in-
terest, out of the proceeds of the sale, if a sale
should take place; or to be retained by Law-
rence, if the court should direct an assign-
ment of the mortgage, or the sale should be
prohibited. Mr. Lynch says he was present
when the money was paid, and that Monell re-
quested Jay to receive it, merely to save in-
terest ; and that it was understood that it wa&
to be repaid with interest after the sale ; and.
that Monell requested the sale to be postponed
until some time in June. It is entirely im-
possible to reconcile the affidavit of Monell
with those of Jay and Lynch : for if, as the
former states, he paid the money and went
home, believing the cause at an end, and hav-
ing no suspicion that any further proceedings
would be attempted, why, as the latter states,
did he solicit, and actually obtain, a postpone-
ment of the sale : or why make any agree-
ment for the repayment of his money, with the
interest, out of the proceeds of the sale ?
There are not only two disinterested witnesses
opposed to the affidavit of the party himself , but
the whole course of the transaction furnishes
a very strong presumption that Mr. Monell
must be laboring under some mistake with
respect to the terms upon which the money was
left with Mr. Jay. His great and leading ob-
ject was to obtain an assignment of the mort-
JOHNS. REP., 12 ..
1815
MI >N KI.I. v. LAWRENCE.
gage. This being utterly refused, he contem-
plated, according to his own declarations, an
application to the Chancellor on the subject ;
and it was probably to give him time to make
such application, that he wanted the sale post-
poned. This appears to me to be a fair and
reasonable interpretation of his conduct.
There is nothing contained in Mr. Jay's letter
to Mr. Burr inconsistent with the statement
in his affidavit. But admitting that there is, it
would not affect the present question, for
these letters were written before the final ar-
533*1 rangement *between Mr. Jay and Mr.
Monell, which tnight have been varied ; and
we may reasonably conclude it was varied ;
for Monell thereby was to receive a substan-
tial benefit, not included in the proposition to
Mr. Burr, viz : the interest of his money, de-
posited with Mr. Jay. It is to the consumma-
tion of a contract that we are to look for its
terms, and all previous negotiations are swal-
lowed up and lost in the final arrangement.
From this view of this branch of the case, we
are bound, I think, to conclude that the pay-
ment made by Monell was no redemption, or
•extinguishment of the mortgage, but a mere
deposit of money, to await further proceedings
in chancery, and to be disposed of as agreed
between the parties, on the result of such pro-
ceedings being known. This payment or de-
posit, therefore, could not affect the proceed-
ings of the master, or operate as a stay of the
safe ; and there was no special agreement that
•could have such effect ; and indeed, directly
the contrary is to be inferred, for Monell was
to receive back his money, with interest, after
the sale ; which shows, conclusively, that the
sale was to take place, uuless stayed by order
of the court. And the next inquiry is, whether
Any proceedings have taken place in the Court
of Chancery, which would affect the sale
made by the master. Mr. Jay having from
lime to time consented to the postponement of
the sale, until the 1st of July, application, on
the part of Monell, was made to the Chancel-
Jor, on the 7th of June, to dismiss the bill ;
this was, however, denied ; and on the 22d of
the same month, another notice was given of
-a motion to stay the sale. On the 29th of the
same month, an order was entered, which,
Among other things, directed the sale of the
mortgaged premises to be stayed ; but this or-
der was not served, or any notice thereof re-
ceived, either by the master or the solicitor of
the respondent, until after the sale had actu-
ally taken place. The Chancellor, afterwards,
ordered the master to abstain from giving any
deeds for the mortgaged premises, until the
further order of the court; and thai the re-
spondent should show cause, at the August
Term, why the sales shoufd not be vacated.
But on cause being shown, the sales were con-
firmed, and deeds ordered to be executed by
•the master, and the proceeds of the sales to be
applied conformably to the decree, by consent,
in March last.
It has been contended, on the part of the
-appellant, that the order of the 29th of June,
to stay the sale, suspended the authority of
534*] *lhe master, and that all proceedings
by him, afterwards, were void, although no
notice of the order was given. This position
is, in my opinion, untenable. Had this been
JOHNS. REP., 12.
a final decree, which went to the merits of the
respondent's claim, there might have been
some foundation for the argument ; for all
persons may be found to take notice of de-
crees in chancery, as well as of judments at
law (2 P. Wms., 483 ; 1 Vern., 286); but they
cannot be bound to notice all interluctory or-
ders. It is true that a court of chancery looks
with a jealous eye at the purchase of a right
under litigation, and this for the purpose of
preventing a fradulent evasion of its decrees,
by the parties. But where the sale is by an
officer of the court, to whom no such fraudu-
lent motive could be imputed, the rights of
third persons, who are innocent, bona fide
purchasers, under such sale, ought to be pro-
tected. If a party is present in court, and has
knowledge of any order or proceeding, and
does any act contrary thereto, he is guilty of.
and punishable for, a contempt ; but it by no
means follows that such proceedings are to
affect the rights of third persons, who were
ignorant thereof. Suppose a judgment at law
was obtained against a person, and an execu-
tion in the hands of a sheriff in a remote
county, under which he had duly advertised
for a sale, but before the day of sale an order
to stay proceedings was obtained, but notice
thereof not given to the sheriff, or the plaintiff,
or his attorney, and the sheriff should proceed
and sell; could there be a doubt but that the
purchaser would acquire a valid title ? And
should not a court of equity, equally with a
court of law, protect innocent bona fide pur-
chasers? It would, certainly, be unprecedented
to set aside the sale, without the purchasers
being brought into court, in some way, and
an opportunity afforded them of defending
their rights, their titles having been consum-
mated ; and without their having received any
notice of the order staying the sale, or of the
present appeal, and there being no complaint
of inadequacy in the price paid by them, or of
any unfair practice in the sale. There, is, also,
another objection to the mode adopted by the
appellant to obtain relief in the court below,
even if an application for relief could in any
way be sustained ; it is an attempt to set aside,
upon motion, a decree entered by consent of
parties. This is against the established mode of
proceedings in chancery. The case of Harri-
son v. Rutnsey, 8 Ves.,488, came before the
court upon petition ; and Lord *Hard- [*535
wicke said he would by no means set aside a
decree obtained by consent of counsel on both
sided, for it would be most dangerous, and it
was an established rule not to do it; nor would
he make the precedent. There was, he said,
a good while ago, an appeal of that kind in
the House of Lords, who desired the party to
bring an action against the counsel ; if they
could prove collusion on the counsel, it would
be a different thing ; and, in the case of Brad-
ish v. Gee, Arab., 229, the same Lord Chancel-
lor said, where a decree is made by consent of
counsel, there lies not an appeal or rehearing,
though the party did not really consent ; but
his remedy is against his counsel. But if such
decree was by fraud and covin, the party may
be relieved against it, not by rehearing, or ap-
peal, but by original bill. Independent of
these difficulties, which I consider insur-
mountable, the general equity of the case ap-
498
535
COURT OF ERRORS, STATE OF NEW YORK.
1815-
pears to me to be against the appellant. There
has been no suggestion that the decree by con-
sent was obtained by fraud or imposition,
or that the mortgaged premises were not sold
for their full value : and he is now seeking to
set aside this sale, made pursuant to his own
agreement, for the purpose of vesting in him-
self, solely, the title and to prevent the equi-
table distribution of the surplus among the
creditors of Sackett. In whatever light, there-
fore, the case is considered, I am of opinion
that the order of the Chancellor, confirming
the sales by the master ought to be affirmed.
This being the opinion of a majority of the
court,1 it was, thereupon, ordered, adjudged,
and decreed that the appeal be dismissed, and
that the order of the Court of Chancery be
affirmed ; and that the appellant pay to the re-
spondents their costs in defending the appeal,
to be taxed ; and that the record be remitted,
&c.
Judgment of affirmance.
Cited in— 8 Cow., 589; 13 Wend., 228; 14 Wend.,
118; 16 Wend., 471 ; 57 N. Y., 628 ; 131 Mass., 128.
536*] *PHILIP VERPLANK, Impleaded
with JAMES ARDEN, RICHARD D.. ARDEN,
AND DE WITT CLINTON, Appellant,
v.
ROBERT STERRY, AND LOUISA ANN,
HIS WIFK, Respondents.
Deed — Delivery of by Words or Acts — To Third
Person — Conveyance Voidable May be Made
Valid by Matter Ex Post Facto — Marriage is a
Valuable Consideration.
A deed may be delivered by words, or acts with-
out words, and the delivery may be either to the
grantee or to a third person, without any special
authority, for the use of the grantee. If a deed has
once been delivered, so as to take effect, a second
delivery can be or no avail.
A conveyance, valuable on account of fraud or
covin, may be made valid and effectual by matter
ex post facto.
Marriage is a valuable consideration ; and if the
grantee of a voluntary deed gains credit by the
conveyance, and a person is induced to marry her
on account of the provision made for her in the
deed, such conveyance, on the marriage, ceases to be
voluntary, and becomes good against a subsequent
bona fide purchaser for a valuable consideration.
And it makes no difference whether any particular
marriage was in contemplation at the time of the
voluntary settlement, or that the grantee married
without the consent of her father, the grantor.
Whether a voluntary conveyance, by a father in
affluent circumstances, and not indebted, to trust-
ees, for the use of his daughters, for life, and in
case of their death, for their children, honesty and
fairly made, without any intention to deceive or
defraud any person, is not good against a subse-
quent bona, fide purchaser for a valuable considera-
tion, having notice of such prior voluntary deed.
Qucere.
1. — For affirming, 12. Mr. Justice Spencer, and ten
of the Senators, were for reversing.
NOTE.— Deeds— W hat is a sufficient delivery— Mar-
riage a valuable consideration. See Scrugham v.
Wood, 15 Wend., 545, note.
Marriage is a valuable consideration. Subsequent
marriage may render a voluntary conveyance
valid, even against creditors and subsequent pur-
chasers. In addition to above case of Verplank v.
Sterry, see Whelan v. Wbelan, 3 Cow., 537 ; Wood
v. Jackson, 8 Wend., 9; Mills v. Morris, 1 Hoff. Ch.,
419 ; Oriental Bank v. Ha.sk ins, 3 Met., 340 ; Smyth
v. Carlisle, 17 N. H., 418.
Citations— 3 Dyer, 167 b ; 3 Cruise's Dig., 29, sec.
59 ; 2 Vern., 473 ; 1 Vern., 464 ; 3 D. & E., 529 ; 1 Atk.,
264 ; Law of Vendors, p. 437, 436, 71 ; 5 Ves., Jr., 862 ;
9 East 69, 63; Shep. Touch., 58; 2 HI. Com., 297: 13
Eliz., ch. 5; 27 Eliz., ch. 4 ; Gilb. Ev. by Lofft. 307;
Cowp., 713 ; 2 Bl. Com., 297, n. 1 ; 2 Bro., 149 : 2 Ves..
11.
THIS was an appeal from the Court of
Chancery. The respondents filed their
bill, in the court below, against the appellant,
and the others above named, stating that Louisa
Ann, one of the respondents, is the daughter of
James Arden, by Eliza Arden his wife now
deceased. That during her last illness, and
in contemplation of approaching death, the
said Eliza requested her husband. James Ar-
den, to unite with her in making a suitable
and permanent provision for their daughters ;
to which request he acceded, assuring his dying
wife that the contemplated arrangement for
such provision should never be thereafter dis-
turbed by him. In pursuance and execution
of this arrangement, as it respected the said
Louisa Ann, James Arden and his wife, be-
fore the intermarriage of the respondents, by
a deed duly executed, bearing date the 25th of
November, 1805, for the consideration of their
natural love and affection towards the said
Louisa Ann, and for the further consideration
of $1, paid to them by De Witt Clinton and
Richard D. Arden, parties of the second part,
bargained, sold, and conveyed, to the said De
Witt Clinton and Richard D. Arden, their
heirs and assigns, forever, in joint tenancy, a
certain lot of ground, messuage and dwelling-
house, in Greenwich Street, in the City of
New York, to have and to hold the same, &c.,
upon the trust and confidence, that the said
Louisa Ann should stand seised of the lot and
premises, for and during her natural life ; and
upon the further trust and confidence, that,
in case the said Louisa Ann should die, leav-
ing lawful issue, that then the said trustee
should stand seised of the premises, in trust
for the benefit of such child or children of
he body of the said Louisa Ann lawfully to
be begotten, in fee simple ; and for want of
such child or children, then in trust for the
benefit of all and every, the person and per-
sons, their heirs and assigns, forever, as
*would be entitled to the same by [*«537
the laws of the State, in case the said James
Arden had died intestate, and that deed had
never been made. That the deed was, at or
shortly after its execution, delivered, by the
grantors, into the hands of Louisa Ann, the
cestui que trust therein named. That the prem
ises conveyed were worth $25,000. That after
the execution and delivery of the deed, and
before intermarriage of the respondents, the
said Eliza Arden died, to wit : on the 4th of
August, 1806. That the deed, from the time
of its delivery until the death of her mother,
and a considerable time afterwards, remained
in the possession of the respondent Louisa
Ann ; but, some time in the year 1807, and be-
fore the intermarrriage of the respondents,
James Arden requested the respondent .Louisa
Ann to place the deed under his charge, as-
signing as a reason that she had no place
for keeping it, and that it would be more se-
cure in his custody. That she (Louisa) ac-
cordingly delivered" the deed to him, for safe
keeping only, and without any intention of
JOHNS. REP., 12.
1815
VKHPLANK v. STKKKV.
537
relinquishing or impairing her estate or right
under the same. That on various occasions, j
before, as well as after, the delivery of the
deed to him, he (James Arden) represented
and declared that the premises belonged to
Louisa Ann, and fully recognized her estate
and title thereto, by virtue of the said deed.
That, afterwards, and before the intermarriage
of the respondents, James Arden intermarried
with his present wife, and the respondent
Louisa Ann, being apprehensive respecting
the said deed, urged him to have it deposited
in the custody of some other person ; and he,
accordingly, on the 8th of Jauuarv, 1809, de-
posited it in the posession of De W"itt Clinton,
one of the trustees, with whom it still re-
mained. On the llth of December, 1809, the
respondents intermarried, and have a child
born, and still living. The respondent Robert
Sterry, when the marriage took place, under-
stood and believed that the said Louisa Ann
had a beneficial interest in the trust premi-( -.
according to the conveyance. That the said
James Arden fraudulently executed a deed of
conveyance of the said trust premises, to the
appelfant Philip Verplank, a relation, who,
knowing the interest of the respondents in the
premises, fraudulently accepted such deed,
and claimed to hold the premises by vir-
tue thereof ; they, the said James Arden
and Philip Verplank. thereby intending to
defraud the respondents, and defeat the
538*] said deed in trust for *the said Louisa
Ann, and the estate thereby created. That
the pretended deed to Verplank was dated
the llth of December, 1809, and expressed
to be in consideration of a large sum of
money paid by him to the said James Ar-
den ; but that, in fact, the deed was not
executed on that, but on some subsequent
day, and fraudulently dated anterior to its
actual delivery ; and that if, in fact, it was
executed on the llth of December, 1809, it
was so executed and accepted at an hour sub-
sequent to, and with full knowledge of the
intermarriage of the respondents ; and that the
consideration mentioned iu the deed to Ver-
plank was never truly paid or secured by him
to the said James Arden, from the proper
funds of the said Verplank. The bill prayed
that the right of the respondents to the prem-
ises in question might be established by a de-
cree of the Court of Chancery, and that the
defendants below, or such of them as it might
concern, might account with the respondents
for the rents and profits of the premises, and
pay over the same to them; and that they
might be let into possession of the premises;
and that the same might be decreed to be con-
veyed to them, or, in some effectual way, se-
cured for their benefit ; and for such further
and other relief, &c.
The defendants below answered separately.
The appellant, Verplank, in his answer,
stated that before the execution of the deed of
James Arden and his wife to him, he had heard
that the said James Arden had made some pro-
vision for his daughters out of property situ-
uated in Greenwich Street, but who informed
him he could not recollect, and was wholly
ignorant of the circumstances attending such
provision, or the manner in which such settle-
ment was made ; but that, at the time the deed
JOHNS. KM-.. 12.
from the said J. Arden to him was executed,
he had no knowledge, or notice, that the prem-
ises conveyed to him had been previously
conveyed to the trustees, on the trust, as stated
in the bill of the respondents ; that he became
the purchaser of thepremises, of the said James
Arden, for the sum of $16,000, and that, on or
about the llth of December. 1809, he receive -d
the deed, which was set forth rerbiitim in his
answer, from Arden and his present wife ;
and that for several months prior to the execu-
tion and delivery of the deed to him for the
premises in question, he was in treaty with
Arden for the purchase thereof, and the terms
of purchase were partly agreed on, at least one
month prior to the said llth of December,
1809 ; *and that, at the time of the ex- [*5.'}5>
ecution of the said deed to him. he had no
knowledge, to the best of his recollection, of
the intermarriage of the respondents ; that he
could not recollect the precise day on which
the deed to him was executed, but is positive
that it was executed bet ween the llth and 14th
days of December ; that he actually paid the
whole consideration mentioned in the said deed;
and has, since the execution thereof, received
the rents and profits of the premises in ques-
tion, to his own exclusive use. That he mar-
ried the niece of the said James Arden ; and
he insisted that the prior deed, a convey-
ance in trust for the said Louisa Ann, was
voluntary and void, by virtue of the Act,
entitled "An Act for the Prevention of
Frauds ;" and he denied all collusion and
fraud.
James Arden, in his answer, stated that on
the 25th of November, 1805, he was seised in
fee of the premises in question ; that he, and
his then wife, Eliza, now deceased, being about
that time minded to make some provision for
their daughter, Louisa Ann, and her children,
if she should have any, executed the deed men-
tioned, about, or shortly after, the time it bears
date, in the presence of two witnesses ; and
that he believed that he and his wife may have
used the formal words of delivery of the deed;
that, after it was executed, it remained in his
possession and power, from thenceforth, until
or about the 9th of January, 1809, when hi*
daughter, Louisa Ann, having expressed some
apprehension that the deed, in case of his
death, might be lost or destroyed, he placed
the same in the hands of De Witt Clinton, for
her benefit, stating to him, at the time of so
depositing the deed, in the presence of his
present wife, and his said daughter Louisa
Ann, and her sister, that it was to be under-
stood that the income of the property should
come to him during his life; and that if Louisa
Ann married without his consent or approba-
tion, that then the said deed should not operate,
or that he made use of words to that effect.
That the respondents, af terwards.intermarried,
but without his knowledge, consent, or appro-
bation. That the yearly value of the premises
was from $1,800 to $1,500, which he had
received since the date of the said deed of trust,
until the sale and conveyance of the premises
to Verplank. That considering himself, in
consequence of the said Louisa Ann's marriage
without his consent, as the absolute owner of
i lie slid premises, he did, on or about the llth
of December, 1809, sell and convey the prem-
IM
539
COURT OF ERRORS, STATE OP NEW YORK.
1815
ises to the appellant Verplank, for the consid-
54O*] eration *of $16,000. That the deed to
Verplank was executed on some day between
the llth and 14th of December, 1809, but on
which day he did not recollect; but it was after
the intermarriage of the respondents.
The answer of De Witt Clinton was substan-
tially the same as that of James Arden, in
regard to the deposit of the deed of trust, and
the verbal declarations of Arden at the time ;
but though the daughter acquiesced in her
father's receiving the rents during his life, yet
that she did not acquiesce in the declaration,
that the deed should not operate, in case she
married without his consent.
Richard D. Arden, the other appellant, also
put in his answer ; but knew nothing of the
transaction relative to the deed, or its contents,
except from a copy shown to him by James
Arden.
The material parts of the evidence contained
in the depositions of the witnesses, are suffi-
ciently stated by the judges in delivering their
•opinions.
The cause having been brought to a hearing
in the court below, the Chancellor, on the 3d
of October, 1814, decreed that the deed of con-
veyance from James Arden, and Eliza, his
wife, to DeWitt Clinton and Richard D. Arden,
was duly executed, and delivered on the 25th,
of December, 1805, so as to pass the estate and
interest in the premises therein described, to
the said DeWitt Clinton and Richard D. Arden,
.and to vest the same in them, to the uses and
upon the trusts therein mentioned ; and that
the said deed of conveyance was valid and
-effectual in law accordingly. And that, as it
satisfactorily appeared to the court, that Rob-
ert Sterry and Louisa Ann had intermarried
before the execution of the deed of the same
premises to Philip Verplank, of the llth of
December. 1809 ; and that the said Verplank,
at the time he accepted the said deed last
mentioned, had notice of the said intermarriage,
and also had notice of the said deed of con-
veyance to the said De Witt Clinton and
Richard D. Arden ; it was further decreed that
the said deed from the said James Arden and
wife, to the said Philip Verplank, is void, as
against the said De Witt Clinton and Richard
D. Arden, as trustees, &c. ; and that the same
be set aside accordingly, as against the said
parties. And the said Verplank was further
ordered to bring the said deed of conveyance
to him into court, and deposit the same with
the register, to abide the further order of the
541*] *court; and that any of the parties, as
to that matter, have leave to apply to the court
for further directions.
It was further decreed that Sterry and his
wife, in right of the wife, be let into the im-
mediate possession of the premises, and into
the perception of the rents and profits thereof,
in arrear, and thereafter to accrue, and become
payable ; or that the said De Witt Clinton and
Richard D. Arden be let into possession, as
trustees, &c. ; and in case they, or the sur-
vivor of them, should take possession of the
premises, they, or the survivor, should take
the rents and profits in arrear. and thereafter
to accrue, in trust for, and pay over the same,
from time to time, to the said Robert Sterry
and Louisa Ann, his wife, in right of his wife,
496
during their joint lives, and to the said Louisa
Ann, during her life, in case she should survive
her said husband ; or that the said De Witt
Clinton and Richard D. Arden, or the survivor
of them, should permit the said Robert Sterry
and Louisa Ann, his wife, in right of the
said Louisa Ann, to take the said rents and
profits during their joint lives ; and the said
Louisa Ann to take the same during her life,
in case she survived her husband ; and that,
after the death of the said Louisa Ann, the
rents and profits should be received and ap-
plied according to the uses and trusts, in the
deed of trust before mentioned limited and
declared ; and that the trustees, or the sur-
vivor of them, and any other person claiming
interest therein, under the said deed, be at
liberty to apply to the court for its further
directions in that behalf. And it was further
decreed, that the said De Witt Clinton and
Richard D. Arden should, within twenty days
after notice of the said decree, cause the said
deed to be acknowledged or proved, and regis-
tered according to law, for the greater safety
of the title, &c. And further, that the said
Robert Sterry, and Louisa Ann, his wife, dur-
ing their joint lives, and the said Louisa Ann,
after the death of her said husband, if she sur-
vived him, should be at liberty to use the names
of the said trustees, or the survivor of them, and
to use the said deed, for the purpose of prose-
cuting at law, if necessary, to obtain the pos-
session of the premises, or to recover the rents,
and profits.&c. And further, that the said Philip
Verplank account with the said Robert Sterry,
and Louisa Ann, his wife.for the rents and prof-
its of the premises, from the llth of December,
1809, and that it be referred to one of the
masters, to take the account accordingly ; and
that, in taking the account, the master charge
the said Philip *Verplank with the [*542
rents of the premises received, which might,
without willful default, have been received for
the same ; and that the master make just allow-
ances to the said Philip Verplank for taxes and
repairs ; and that he report thereon to the
court, &c. ; and that the question of costs, and
all further directions, be reserved until the
said report come in.
From this decree, as far as his rights were af-
fected by it, the said Philip Verplank entered
his appeal to this court.
THE CHANCELLOR gave the reason for his
decree. '
Mr. Baldwin, for the appellant, contended :
1. That there was no delivery of the deed
from James Arden and his wife to De Witt
Clinton and Richard D. Arden, at the time of
its execution. The grantees were not present,
and the careless manner in which the deed was
kept, showed that there was no delivery to the
respondents. To make good a delivery of a
deed it must be delivered to the grantee, or to
some person to be delivered to him ; and it
must be put out of the power of the grantor.
(3 Cruise, 29, sec. 52.) If there was any de-
livery it was that which was made in January,
1809, which was on two conditions : first, that
the grantor should receive the rents and profits
during life; and second, that the deed should be
1. — See the reasons at length in the report of the
case in the Court of Chancery.
JOHNS. REP.. 12.
1815
VERPLAXK v. STERRY.
543
inoperative in case Louisa Ann, the c&tui que
trust married without the consent of the grantor,
and this condition has failed. Any declaration
made by the grantor, at the time of the de-
livery, is binding. (I Johns. Cas., 114.)
Whether the daughter assented to the condi-
tion or not is immaterial. The grantor had a
right to annex what condition he pleased to
hi* gift, and the grantee must receive it with
the conditions or not at all.
2. The deed was voluntary and void as
against a subsequent purchaser for a valuable
consideration. (2 Bro. Ch. Cas*., 148 ; 4 Bos.
•&P..332; 2 Taunt., 82; 9 East., 59.) This
was the established rule at law.
8. It appeared from the case that the ap-
pellant was a bonn fide purchaser, without
notice of the deed or intermarriage of the re-
spondents; but that even if the appellant had
notice of the prior deed, or of the intermar-
riage, it could not affect his rights as a pur-
chaser for a valuable consideration. In sup-
port of these positions he cited the following
authorities : Sugd. L. of Vend., 531, 436, 508,
510; 1 Fonbl., 269, 270. 271; 24 Ves., 519; 7
Ves.. 219; 1 Ves., 456; 6 Ves.. 332; 2 Ves., 10,
51. 299 ; 3 Atk., 888; 1 P. Wins., 577 ; 2 P.
543*1 *Wms., 359; Qilb.. Eq. Cas., 11; 3
Cruise, 376; 2 Wils., 257; 2 Bl. Com., 300, 301;
1 Atk.. 489; 2 Atk.. 54, 174; 2 Bro. Ch. Cas.,
291; 1 Ch. Cas., 259; 2 Ch. Cas.. 216; 2 Ves.,
440; Skin.. 423; 1 East., 95 ; 9 Ves., Jr., 190 ;
Roberts on Frauds. 405; 3 Atk., 438; 1 Ves.,
464; Cowp., 278, 705; Cro. Eliz., 445; 1 Ch.
Itep., 196; 2 Dick., 444; 2 Vent., 193; 2 Lev.,
246; 1 Keb.. 486.
Jfowr*. Oriffln and Rigg», contra, contended:
1 That there was a good and valid delivery of
the trust deed on the 25th of December, 180.).
A deed may be delivered to a third person for
the grantee, and there may be a constructive as
well as an actual delivery of a deed. (4 Cruise's
Dig., 28 ; 2 Dyer, 167. b; Shep. Touch., 58;
Cro. Eliz., 7.) It was not necessary that the
deed should be delivered to the trustees; it is
sufficient that it was delivered to the person
interested. (Jenk. Cent., 195 ; 1 Johns. Cas.,
114 ; 18 Vin. Abr., 22, K.) The handing of
the deed in 1809 to Mr. Clinton, could not be
called a delivery in law. It was a deposit
merely. If a deed has been once delivered,
there cannot be a second delivery, and no sub-
sequent acts or declarations can have any opera-
tion or effect. (Co. Lilt., 48, b; Shep. Touch.,
60; 4 Cruise, 29.)
No parol evidence is admissible to explain
this deed ; but it is attempted to attach certain
conditions to the delivery; but after a deed is
reduced to writing, it cannot be explained by
parol testimony. (5 Ves.. Jr., 722; Sugd.. 105.)
Had the conditions been contemporaneous
with the delivery of the deed, they could not
lie proved by parol. (13 Vin.. 28; Shep.
Touch., 58, 59.) At the time of the execution
and delivery in December, 1805. not a word
was said of any conditions ; and in the very
few instances m which, as exceptions to the
general rule, courts have allowed parol evi-
dence to be given, it has been where a mistake
has been satisfactorily proved. There is no
pretense of any fraud in obtaining the deed,
and though there is a suggestion of a mistake,
there is not the least proof of it. A trust estate
JOUNB. REP., 12.
N. Y. R., 5.
is to be regarded as a legal estate, though it
may be necessary to apply to a court of chan-
cery to obtain the rights of the trustees. (2 Bl
Com., 337.)
A voluntary deed is as much respected in
courts of law and equity, as a deed given for a
valuable consideration. (2 Bl. Com., 299, 800.)
A voluntary deed cannot be revoked (4 Cruise's
Dit., 205; 1 Fonbl. Eq., 278, 274; 1 Atk., 625;
1 Vern., 464); and it will be carried into .spe-
cific execution by a court of chancery equally
as one given for a valuable consideration m
Ves., Jr., 656; 2 Vern., 473.)
The bill expressly charges Verplank with
notice of the prior deed, and his answer does
not negative the charge. Notice *ought[*fi44
to be denied in the answer positively and de-
cidedly, even though it was not charged
(Prec. Ch., 226 ; 8 R Wms., 244, n.; 2 Equ.
Cas. Ab.. 682. D, n. b.; 3 Atk., 815 ; 2 Ves..
Jr..l»7; 4 Bro. Ch. Cas., 322; 2 Ch. Cas.,
161; 1 Vern., 185.) The answer in this case,
as it does not expressly deny the notice, must
be deemed impliedly to admit it. Indeed, the
circumstances proved show that Verplank
must have had notice. (2 Fonbl., 151, 155;
Ambl., 811; 1 Atk., 490.)
An honest family settlement is good at com-
mon law, against any subsequent purchaser,
with notice ; but the appellant relies on the
Statute of Frauds. (1 N. R. L., 75, se^s. 10,
ch. 44, sees. 8, 4.) But the object of this Act
was to set aside fraudulent conveyances, not
honest family settlements. Indeed, the 4th
section, which makes such fraudulent convey-
ance a crime, and inflicts a penalty on the
parties to it, shows the spirit and object of the
Act. Though the weight of the English au-
thorities may, at this day, go to support the
proposition that within the Statute of the 27
Eliz., every voluntary conveyance is fraudu-
lent and void a.s to subsequent purchasers for
a valuable consideration, yet it will be found
that, prior to the 19th of April, 1775, it was
held otherwise by judges of great reputation ;
and according to the Constitution, the courts of
this State are not bound by any English adju-
dications subsequent to that period.
That voluntary settlements were not void
merely tor their being voluntary, where there
was 410 fraud, we have the authority of Lord
Hale (Sir Ralph ttory's case, Vent.,"l93. See,
also. Hard res, 398 ; Jenkinx v. Keymer, 1 Lev.,
150; 2 Lev., 161; Isirender \. Jttirfatone, 1
Keb., 486). Lord Rolle (Style, 446). Chief Baron
Gilbert (Gill). L. of Ev., 201, 6th ed., 1801),
Lord Mansfield (Citdogan v. Kennet, 1 Cowp.,
434; Doe v. Rutledf/e, Id., 705), Sir William
Blackstone (2 Bl. Com., 296, 297). Lord Ch. J.
Wilmot (Ruev. .Mitton, 2 Wils.. 356), and sev-
eral writers on the subject (1 Fonbl. Equ., 908,
270, n.; 2 Bl. Com., 297, Christian^ note;
we, also, 1 Bay, So. Car.. 173).
The leading case to the contrary, Er,lin v.
Templar, 2 Bro. Ch. Cas., 1787, and all the
subsequent cases, go on the ground expressly,
that so many estates in England stood upon the
rule that the voluntary settlement was void as
against a purchaser for a valuable considera-
tion, that it was too late and too hazardous to
shake it ; though the judges who so decided
did not hesitate to declare that if it were ret in-
tegra, they should have come to a different
32 497
544
COURT OK ERRORS, STATE OF NEW YORK.
1815.
conclusion. (Sugd. L. of Vend. , 433 ; Doe v.
Waring, 9 East, 64, 71.)
In Doe v. Martyr, 4 Bos. & P., 332, Sir
James Mansfield regrets the decision, in Eoelyn
v. Templar, fhat even a notice of a prior vol-
untary settlement would not defeat a subse-
quent purchase for a valuable consideration.
In George v. Mittank, 9 Ves., Jr., 194, Lord
Eldon held that a provision for debts made in
a voluntary settlement would support it against
all future creditors ; and it is agreed that a
voluntary settlement is good against the grant-
645*J or. He cannot revoke the *deed unless
it contains a power of revocation. (1 Vernon,
100; 3 Atk., 239.) The eifect of this doctrine
is, that though the grantor cannot retain the
land in the tirst instance, he may convey it
away to a third person for some valuable, but,
in fact, nominal consideration ; who may af-
terwards reconvey it to the grantor. The law
in England has been so long read wrong that the
judges there feel themselves compelled to read it
the same way, to support title which had been
obtained under such erroneous decisions ; but
our courts are under no such necessity ; they
are not obliged to yield to the authority of a
decision for which reasons are assigned which
cannot apply to the present case.
In Newtstead v. Searles, 1 Atk., 265, Lord
Hardwicke held that a conveyance by a widow
prior to her second marriage, to trustees, for
the use of the ceatui que trust and her children,
was not a voluntary conveyance within the
Statute of the 27 Eliz. ; arid where the convey-
ance makes provision for future branches
of the family, it is considered such a valuable
consideration as prevents its being voluntary
within the Statute. (Nun v. Wiusmore, 8 T.
R, 521; 9 East, 70.)
But though a conveyance may be deemed
voluntary or fraudulent in its creation, yet it
may become good by matter ex post "facto.
(Sugd. L. of Vend., 436, 437 ; 1 Sid., 133 : 1
East, 92; 9 Ves., Jr., 100; Skin., 423; 1 East,
95.) An after marriage, inconsequence of the
settlement is, on all hands, allowed to be a suffi-
cient consideration to support the conveyance.
(9 East, 69 ; 9 Ves., Jr., 190, 193.) Here the
marriage of the cestui que trust took, place prior
to the purchase of Verplank. The husband
is to be considered in the light of a purchaser.
It is not necessary that the settlement should
have been made with a view to any particular
marriage, nor that the marriage was superin-
duced by the settlement. (Prec. in Ch. 275,
377; 2 Eq. Cas. Abr., 46 ; 9 East, 69; 5 Ves.,
Jr., 862.)
Again ; Verplank was not a bona fide pur-
chaser, for he does not deny that he had heard
of the marriage ; and he knew of the settle-
ment. He is not entitled to the benefit of the
Statute unless he is a bona fide purchaser, and
for a valuable and adequate consideration.'
(Cro. Eliz., 444; Cowp.,705.)
Afr. Baldwin, in reply, insisted on his former
arguments, and said that Lord Ellenborough,
in Doe v. Manning, 9 East, 59, had examined
all the authorities on the subject, and showed
most conclusively, that it was the established
law of England prior to the year 1775, that all
voluntary conveyances were, under the Statute
of the 27 Eliz., considered fraudulent and void
Against bona fide purchasers for a valuable con-
498
sideration. The *Chancellor, in the [*546
present case, admitted that Verplank" was a
bona fide purchaser. It is not pretended that
he had actual notice of the prior deed. All
that is shown is, that he was informed that
Mr. Arden had made some provision for his
daughters in property in Greenwich Street.
In Brown, v. Carter, 5 Ves., 862, the Master
of the Rolls did not go into the consideration
of the effect of the Statutes of Elizabeth on,
the settlement. Though, where a marriage is
in view at the time the settlement is made, it
may be a good consideration; yet, where it is
made without any such view, and some person
should, afterwards, marry the daughter,
against his consent, and who is particularly
odious to him, it cannot be said to be a consid-
eration with the father for making the settle-
ment on his daughter.
YATES, J. The first question arising in this
caxise is as to the execution of the deed of the
25th of November, 1805, from James Arden,
and Eliza, his wife, to De Witt Clinton and
Richard D. Arden, in trust for Louisa Ann,
the daughter of the grantors.
From the testimony of one of the subscrib-
ing witnesses, who proves the execution of
this deed, it does not appear that either of the
trustees was present, or that any condition was
mentioned at the time. If it was intended to-
have been a conditional delivery, it is an unus-
ual departure from the course the grantors
ought lo have adopted, in omitting to state the
condition (if any existed) to the subscribing
witnesses. This omission raises a strong pre-
sumption against the operation of the deed, in
any manner different from the purposes ex-
pressed in it ; and from the unquestionable
possession of this deed by the daughter, sub-
sequently, the inference is irresistible, that the
delivery was to her, she being immediately in-
terested, and that it took place in the presence
of Mrs. Arden, under whose maternal aus-
pices, and at whose particular instance and re-
quest, the settlement on her daughter was
made. It was not necessary for the trustees to
be there personally to receive it. In Taw's Ex-
ecutor v. Bury, 3 Dyer, 167 b, a delivery to a
third person, without speaking of it as the
deed of the party, the deed is held good, and
is. in law, the deed of the defendant, before
any delivery over to the party ; and the refus-
al of the party cannot undo it, as the deed of
the party from the beginning.
*I do not think this transaction is en- [*547
veloped in such mystery as not to admit of a
satisfactory explanation.
It is unreasonable to suppose that this deed
was intended to be subjected to the future con-
trol of the husband. It was executed at the
instance of Mrs. Arden, during her illness, and
in contemplation of approaching death, for
the express purpose of making a permanent
and suitable provision for the support and
maintenance of her daughter ; and her subse-
quent declarations show what her intentions
and expectations were, in relation to the busi-
ness, which, it appears, had given her much
anxiety and uneasiness before it was done. She •
expressed to several of the witnesses her satis-
faction with her husband's conduct in comply-
ing with her wishes, and that she felt easier. .
JOHNS. REP., 12.
1815
VERPLAXK v. STEKRV.
54-;
and better, since Mr. Arden had made a settle-
ment on her daughters.
The idea that he intended, at the time, to
deceive the expiring partner of his bosom,
cannot be indulged for a moment. It appears
he acted openly and decidedly, by leaving the
deed in the possession of the daughter, in the
presence of the mother, to be disposed of as
they might think proper. The manner in
which he afterwards obtained possession of
this deed, is satisfactorily explained by some
of the witnesses, and shows decidedly, that
previous to his taking it from his daughter, he
had assumed no control over it.
Not one of the witnesses who were present
when the deed was signed, mentions that any
condition was stated at the time ; and those on
the part of the appellant, who give evidence
on the subject, appear to have collected their
information from desultory conversations, at
different periods, with members of the family ;
a species of evidence, at all times, dangerous
to be received, to explain the intent, or control
the operation, of a written instrument, even in
a court of equity, on the ground of a mistake,
which, in this case, it is alleged, was made by
Abraham Skinner, who drew the deed ; but
there is no evidence to support the allegation,
except the assertion of Arden himself.
If this mistake had actually taken place, it
is somewhat extraordinary that the appellant
has not availed himself of the benefit of
Skinner's testimony to explain it ; and still
more so, that he (lid not cause it to be recti-
fied ; for, by the evidence of Richard D. Ar-
den, the deed was kept in his father's desk, in
/>48*J *the office below, until it was taken to
his mother's bedroom to be signed. A suffi-
cient length of time, therefore, must have in-
tervened, after it was drawn, and before
it was signed, to enable him to correct the
error. Under these circumstances, I do not
believe the deed was drawn different from Ar-
den's intentions at the time ; but, allowing the
whole of the testimony to have its due weight,
on the ground of mistake, the witnesses on the
part of the respondents, as to conversations
with Arden, ami others of the family, showing
a different understanding with regard to the
transactions, greatly preponderate ; so that,
without noticing the subsequent conduct of
Mr. Arden, I think, from the facts disclosed by
the evidence in the case, there remains no
ground for reasonable doubt, that the deed
was perfected at the time, and that he then in-
tended it should operate, unconditionally, ac-
cording to the terms of it ; and the subsequent
delivery of this deed to Mr. Clinton, upon Ihe
conditions stated at the time, can be of no
avail ; it can afford him no possible tenefil.
He had devested himself of the property the
moment he executed and delivered the deed, in
the first instance ; and, of course, retained no
authority to give it an operation different from
what was contained in it.
A deed cannot be delivered twice ; for, if
the first delivery has any effect, the second
will be void. (3 Cruise's Dig.. 29, sec. 59.)
Nor can this second delivery prevent or limit
its operation, if even it is admitted that the
deed is voluntary. In 2 Vern., 473, "A had
made a voluntary settlement of nn estate, sub-
ject to Home annuities, in trust for his grand-
Jo UN 8. REP., 12.
son and his heirs ; and afterwards, he makes
another voluntary settlement of the same es-
tate, to the use of his eldest son for life, and to
his first, &c., sons in tail, with remainders
over; and, by will, gives a considerable estate
to his grandson." Although it was proved that
A always kept the first settlement in his cus-
tody, and never published it, and it was. after
his death, found amongst waste paper, and the
last deed was often mentioned by him, and be
told his tenants tue plaintiff was to be their
landlord after his death, yet the son could not
be relieved against the first settlement. In
1 Vern., 4tt4, the court say : "A settlement,
though voluntary, is not revocable."
This deed, then, having been duly executed,
and it being evident that its validity could not
be affected by a second delivery, a further
question remains to be determined : whether
*its operation can be defeated by the [*f»41>
subsequent deed from James Arden, and Ann,
his present wife, to the appellant, dated on or
about the llth of December, 1809.
I do not think we are called upon to express
an opinion on the question whether a voluntary
settlement ought not. according to the words
of the Statute, to be fraudulent and covinous,
and for the purpose and intent to deceive, in
order to make it void against a subsequent
purchaser ; but from the facts in this case, it
will be sufficient, according to my view, to de-
termine whether the first deed "is, in fact, a
voluntary convej-ance, or whether this court
are not bound, under the circumstances, to
consider it a deed for a valuable considera-
tion.
It appears, by the declaration of trust con-
tained in it, that a life estate in the premises
was given to Louisa Ann Arden ; and in case
she should die, leaving lawful issue, that then
it should be held in trust for the benefit of
such issue, &c.
In Munn v. Wikmore, 3 D. & E., 529. Lord
Kenyon observes that very small considera-
tions have been holden sufficient to give valid-
ity to a deed, when, in framing family settle-
ments, limitations are made in favor of the
distant branches of a family ; such remainders
are not considered as voluntary, if the object
of the parties in making the settlement was
fair and honest.
The case of Newtttad et at. v. Sfarlc* el al. ,
1 Atk., 204, supports the same principle. It
would seem, from those cases, that the limita-
tion to distant issue would alone be sufficient
consideration to protect this deed ; but con-
nect with it the marriage of Sterry, and I
think its validity cannot be questioned. Mar-
riage of itself is a sufficient consideration.
That Louisa Ann's right to the property for-
warded the marriage is evident ; because Mr.
Sterry, as a discreet and prudent man, must
have felt an interest in the future support and
( maintenance of his family, and the avails of
! this property towards such support might well
have been contemplated by him. This ap-
pears to have been the case, from his conver-
sation with Colonel Hawkins on the subject.
Indeed, proper feelings for the comfort as well
a1* happiness of the object of his attachment,
must have given importance to the immediate
possession of this property : it. therefore,
operated as an inducement to the connection.
iff
550
COURT OF ERRORS, STATE OP NEW YORK.
1815
55O*] *This marriage took place on the
llth of December, 1809, and the deed of Ver-
plank was executed between the llth and 14th
of the same month ; so that the marriage must
at all events have been solemnized before the
deed existed.
Sugden (in his Law of Vendors), in treating
on voluntary settlements (p. 437), says : " If a
voluntary grantee gain credit by the convey-
ance to him, and a person is induced to marry
him On account of such provision, the deed,
though void in its creation as to purchasers,
will, on the marriage being solemnized, no
longer remain voluntary as it was in its crea-
tion, but will be considered as made upon a
valuable consideration. This principle is
recognized in Brown v. Carter, 5 Ves., Jr.,
862, and by Lord Ellenborough, in the case of
Otley v. Manning, 9 East, 69.
If then, it is even admitted that the convey-
ance of the 25th of November, 1805, to Messrs.
Clinton and Arden, was voluntary in its crea-
tion, it is evident it assumed a different char-
acter in consequence of the marriage ; as that
alone must be deemed a valuable consideration,
which gave it a validity not to be affected by
the subsequent deed to the appellant.
The Chancellor's decree being founded upon
the validity and operation of this deed, my
opinion is that the same ought to be affirmed.
SPENCER, J. The first point which claims
the consideration of the court is, whether the
deed from James Arden to Louisa Ann, his
daughter, was so far legally and duly executed
on the 25th of November, 1805, as between
the parties to the deed, todevest the'grantor of
all his estate and interest in the premises
granted thereby.
James Arden, by his answer, admits that,
shortly after the time the deed bears date (25th
of November, 1805), he signed and sealed it,
and believes that he and his wife may have
used the formal words of delivery ; but he in-
sists that the deed remained in his possession
and power, thenceforth, until on or about the
9th of January, 1809, when to relieve the ap-
prehensions entertained by his daughter, that
in case of his death, it might be lost or de-
stroyed, he placed the same in the hands of De
Witt Clinton, one of the trustees, for her benefit
with certain conditions accompanying such
tradition, viz : that the income of the property
should come to him during his life, and that if
551*] his *daughter married without his
consent or approbation, then the deed should
not operate.
The proofs in the case, in my judgment, are
decisive, that the deed was legally and effect-
ually executed, so as to become operative on
the 25th of November, 1805, notwithstanding
the denial and answer of Arden.
Mrs. Braine was present at the execution of
the deed. She proves that it was read over
by Arden, and that thereupon it was executed
in the bedroom of Mrs. Arden ; that being
very intimate with Arden's daughters, and
very frequently with them, she saw the deeds
in their bedroom ; that on one occasion she
heard her cousins read over their deeds ; that
on a particular occasion, James Arden came
into their bedroom and seeing the deeds lying
on the projection of a bookcase or wardrobe,
500
he reproached them with carelessness, and
with their consent took the deeds into his own
keeping.
Mrs. Servant confirms all the material facts
deposed by Mrs. Braine, relative to the cus-
tody of the deeds by her and her sister, and
their being taken by'her father for safe keep-
ing.
Robert J. Livingston proves that Louisa
Ann had the custody of the deed given to her;
that on a particular occasion she produced it
to him, and that he read it and now identifies
it.
That Mr. Arden intended the two houses in
Greenwich Street for his daughters, appears by
the testimony of William Edgar ; and that he
had in his own opinion devested himself, in
favor of his daughters, of these houses, is
proved by Mrs. Talbot, who states that shortly
after the death of Mrs. Arden, as she was
walking in Greenwich Street, she met Mr.
Arden, when Mrs. .Talbot, pointing to the
houses, asked if those were his, to which he
answered : " My daughters' houses, madam ;"
and then said his daughters would be good
fortunes.
The fact admitted by Ardeu's answer, that
he may have used the formal words of deliv-
ery, confirmed by the testimony of one of the
subscribing witnesses, Mr. Hamilton, who
proves the execution of the deed, taken in
connection with the fact that the deeds were
for some time in the custody of the ceslui que
trust, Louisa Ann, and the total absence of all
proof impeaching the force of these facts, can
leave no doubt on the mind, that Arden not
only intended an effectual execution of the
deed, but that every legal formality was com-
plied with. A deed is available if delivered
to the party grantee, or even to a stranger,
without special *authority, if intended [*552
for the use of the grantee ; and a deed may be
delivered by words, or by deeds without
words. (Shep. Touch., 58, and cases cited.)
The subsequent tradition of the deed to Mr.
Clinton; if it became operative before, can
have no effect ; nor was it in the power of Mr.
Arden to impose any conditions upon a grant
which had already become effectual. The ap-
pellant has entirely failed to show that any
fraud or mistake intervened in drawing the
deed. The suggestion is altogether without
support, excepting from his own allegations.
It is, therefore, useless to inquire how far a
deed can be impugned by the admission of
parol evidence.
Admitting for the present, that the deed from
Mr. Arden to his daughter, Mrs. Sterry, was
liable to be defeated by a subsequent deed, on
the ground that it was voluntary, and jn a
legal point of view fraudulent, as againt sub-
sequent bona fide purchasers for a valuable
consideration; we are then to inquire what
operation the marriage between the respond-
ents had in reference to the deed.
It is an undeniable proposition, that a deed
voidable may be rendered valid and effectual
by matter ex pout facto. If a man makes a
feoffment by covin, or without any valuable
consideration, and the feoffee makes a feoff-
ment for valuable consideration, and then the
first f coffer enters, and makes a feoffment for
valuable consideration also, the feoffee of the
JOHNS. REP., 12.
1815
VERPLANK v. STERRY.
552
first feoffee shall hold the lands. (Sudg. L. of
Vend., 436, 437, and cases there cited.)
So, if a voluntary grantee gain credit by the
conveyance, and a'person is induced to marry
her on account of such provision, the deed,
if even voidable as to purchasers, will, on the
marriage being solemnized, no longer remain
voluntary, as it was in its creation, but will be
considered as made upon valuable considera-
tion. (Sudg., 437, and the cases there cited.)
Upon this point the decisions are numerous,
and I have not met with a single case or. dictum
to the contrary. Blackstone (2 Bl. Com., 297)
very correctly defines a valuable considera-
tion to be money, marriage or the like ; and,
he observes, the law esteems them an equiva-
lent given for the grant.
The facts in this case prove, undeniably,
that the marriage between the respondents
preceded the deed from Arden to the appel-
lant ; and that the marriage itself was induced
by the provision secured to Mrs. Sterry by
/>5IJ*] the deed in question. It was *not
necessary to the validity of the marriage, or to
any of the consequences following from it,
that Mr. Arden should have given his consent
to it.
It would be unnecessary to proceed further,
to entitle the respondents to an affirmance of
the decree of the Court cf Chancery ; nor was
it absolutely necessary for the court below to
go into the consideration of the question, how
far forth the deed from Arden to his daughter
would have l>ecn available to her, had not the
marriage between the respondents intervened.
The Chancellor has seen fit to discuss and de-
cide that point, and I do not mean to insinu-
ate that, in doing so, he has at all traveled
out of the record : the case fairly presented
the question, and he has promptly decided it.
Believing his decision incorrect in this particu-
lar, I think this court is bound also to express
its opinion ; under the circumstances of the
case, to give the question the go by, would be
a silent acquiescence in the opinion delivered
in the court below. The point has been fully
and ably argued, and it may save great ex-
pense, and future litigation, to settle it finally.
It is contended that the deed to Mrs. Sterry
having been voluntary, and without any other
consideration than that of blood and natural
affection, it was in the power of the grantor,
by a subsequent deed, founded on a valuable
consideration of money, to defeat the opera-
tion of the first deed, in favor of the second
alienee; although such second alienee knew of
the existence of the first deed, and although,
in point of fact, there was no original intent,
with either of the parties to the first deed, to
defraud any subsequent purchaser.
In the present case, His Honor, the Chancel-
lor, is of the opinion that the appellant is
chargeable with constructive notice of the
deed of the 25th of November, 1805. to Mrs.
Sterry. It may well l>e questioned whether
this conclusion is warranted by the facts. We
have no other proof of the constructive no-
tice than the admissions of the appellant in
his answer. He admits he had heard, before
the delivery of the deed to him, that Arden
had made some provision, by deed, or other-
wise, for his daughters, of property ih Green-
wich Street. This information is loose and
JOHNS. RKP., 12.
inexplicit ; and I cannot say that I am satis-
fied that it was equivalent to a direct notice.
It is not very important, however, whether it
was so or not.
•Our^Statute for the Prevention of [*554
Frauds'has adopted, totidem terbi*, the Statutes
of 18th Eliz., ch. 5, and 27th Eliz., ch. 4. The
former declares void all gifts and conveyances
of lands, tenements, hereditaments, goods and
chattels, had or made, devised and continued
of malice, fraud, coviu, collusion or guilt-,
to the end, purpose or intent to delay, hinder,
or defraud creditors and others of their just
debts, «fcc. The latter declares void every con-
veyance, &c. , of any lands, tenements, or
hereditaments, to be had or made for the in-
tent and purpose to defraud and deceive such
persons as shall purchase the lands, &c. , so
before conveyed. Both statutes leave the con-
veyances and gifts as good between the par-
ties and their representatives. The 18th of
Eliz. avoids the covinous act in favor of cred-
itors. The 27th Eliz. avoids it in favor of
subsequent purchasers for money or other
good consideration.
The 4th section of our Statute, in conform-
ity with the 13th and 27th of Eliz., inflicts a
penalty and forfeitute of one year's value of
the lands upon the party to such fraudulent
transaction, who shall maintain or defend the
fraudulent deeds or conveyances, pronounced
void by those statutes ; the 6th section of our
Statute adopts the proviso to the 27th Eliz. ,
and saves from the operation of the statute
conveyances made upon good consideration,
and bonafide.
If the Statute of the 27th of Eliz. was now,
for the first time, to receive a construction,
it does seem to me impossible that it should
be held to embrace within its purview the
case under consideration.
Mr. Arden, as we must believe, was, in 1805,
a man of handsome and unincumbered fort-
une. In compliance with the earnest desire
of his then wife, he deliberately sits down to
make a suitable provision for his two daugh-
ters, and their issue. The transaction is open,
public, and notorious. No one can believe
that it entered into the hearts or heads of the
father or his daughters, that the deeds he was
executing were with the intent, or for the pur-
pose, of defrauding and deceiving such per-
sons as should thereafter purchase the estate
thus conveyed ; yet this court is called upon
to consider these deeds as void, on the ground
of an original covinous, guileful, and fraud-
ulent design, coevil with the transaction be-
tween the father and his daughters. It would
be with extreme reluctance that 1 should
*consent to brand as innocent and pure f*55JS
a transaction as ever took place with the odi-
ous and detestable crime of fraud.
There may be cases in which a common er-
ror may have been matured into a right ; and
then the error must be submitted to as the
lesser evil. The construction of statutes be-
longs to the courts of law and equity ; and if
a construction has been adopted by the courts,
and confirmed in the one of dernier retort;
and, more especially, if the public act on the
erroneous construction, justice and policy con-
cur in requiring that the error be adhered to,
or otherwise, no man could be safe in hisdeal-
501
555
COURT OP ERRORS, STATE OF NEW YORK.
1815
ings. The adjudications which have taken
place in England since the 19th of April, 1775,
form no part of the common law of this State.
If, since that period, cases have occurred
overruling the anterior decisions, the courts of
this State can pay no otner respect to them,
than as the reasonings of learned and eminent
men. They can have no more influence on
our decisions than the lucubrations of jurists.
The cases which we met with prior to the
above period, and which have turned upon
the construction of the 27th of Eliz., are not
ia harmony ; though I think the preponder-
ance, in weight and number, is decidedly ad-
verse to the doctrine which now prevails in
the courts of Westminster Hall.
Lord Ellenborough, in delivering the opin-
ion of the Court of K. B., in Doe v. Manning
et al., 9 East, 63, has collected the cases. He
states that, in the cases which arose nearest the
time of passing the Statute, the judges seem
to have thought that a voluntary settlement
was only prima facie fraudulent against a pur-
chaser. By a reference to the cases, it will
appear that it was matter of evidence to the
jury, on which they passed, whether a volun-
tary conveyance, as such, was fraudulent.
There are very great names in support of this
doctrine, among which may be mentioned
Lord Hale, Lord Rolle, Chief Baron Gilbert,
and Chief Justice Eyre. Baron Gilbert is ex-
tremely perspicuous and clear in his observa-
tions, and I cannot pass them by without
notice. "A voluntary conveyance (he says)
hath no badge of fraud, unless the party
were then in debt, or in treaty for a sale of the
lands ; for a man may have reason to settle his
estate for the good of his wife and children ;
and if he hath a clear estate, and no intention
to sell, the settlement must be taken to be a
good one ; for that cannot lie imder a suspi-
cion when there is no discovery made of an in-
556*1 tent to use *that settlement to fraud-
ulent purposes at the time of making it."
(Gilb. Ev.,by Lofft, 307.)
There are, undoubtedly, very great names
who have held a contrary doctrine, that con-
veyances merely voluntary are voidable at law,
by a subsequent purchaser for valuable con-
sideration ; and among these may be 'ranged
Lord Hardwicke, Chief Justice De Grey, and
several others. Lord Mansfield undoubtedly
maintains the doctrine inculcated by the judges
who. lived nearest the passing of the Statute
of 27th Eliz., and Lord Ellenborough, in his
opinion in the case cited, does not present the
opinion of this eminent judge in the strong
point of view it merited, in the case of Doe v.
Rutledge, Cowp. , 713, He divides the argument
he there delivered into four heads, and he
specially considers, whether the deed of 1763, a
voluntary deed, with no other consideration
than that of blood for its support, was a fraud-
ulent, covinous deed within the true intent
and meaning of the Statute. He gives a dis-
tinct consideration to the question, whether
the subsequent purchaser was such an one as
was entitled to object to the voluntary deed.
In commenting on the voluntary deed of 1763,
he observes that the 27th of Eliz. contains not
a word impeaching voluntary settlements,
merely as being voluntary, but as fraudulent
and covenous. He notices the title of the
502
Statute, and the enacting part, as making pro-
visions against such practices, as if they were
a crime. He gives a criterion of determining
each case : " One great circumstance," he says,
" which should always be attended to in these
transactions, is, whether the person was in-
debted at the time he made the settlement ; if
he was, it is a strong badge of fraud." The
learned editor of Sir Wm. Blackstone's Com-
mentaries (Mr. Christian) understands Lord
Mansfield in the manner I have done. (2B1.
Com., 297, n. 1.
In Doe v. Manning, 9 East, 71, Lord Ellen-
borough concludes thus: "And we cannot
but say, as at present advised, and consider-
ing the construction put on the Statute, that
it would have been better if the Statute had
avoided conveyances only against purchast-rs
for valuable consideration, without notice of
the prior conveyance.
In Evelyn v. Templar, 2 Bro., 149, Lord
Thurlowsaid, " that although it would have
been as well, at first, if the voluntary convey-
ance had not been thought so little of, yet the
rule *was such, and so many estates [*557
stand upon it, that it cannot be shaken." In
Doe v. Martyr, Sir J. Mansfield, Ch. J., re-
gietted that it had ever been decided that
even notice of the prior settlement would not
defeat a subsequent purchase.
It is a sound and settled principle, that
notice to a purchaser, of a prior fraudulent
deed, will not affect the subsequent purchaser,
and that such subsequent purchaser may avail
himself of the fraud in the first deed ; and the
reason for this is solid, because, if he knew
the transaction, he knew it was void by law;
but to extend this principle to voluntary
deeds, made by a father as a provision for his
children; made, too, by a father not indebted
at the time, and with every act of publicity
usually attending the conveyance of an estate,
would be, in my judgment, to beg the very
question in controversy.
Legal inductions are very properly and
necessarily drawn from legal analogies ; and,
in this view, let us examine the constructions
which courts of law and equity have given to
the 13th Eliz. It is perfectly well settled that,
to impeach a voluntary settlement made on a
meritorious consideration, it is necessary that
the seller should not only be indebted, but
should be insolvent, or in doubtful circum-
stances, at the time. The 13lh Eliz. was in-
tended to prevent the conveyance of property
with a design to defraud creditors. If the
person making a settlement is insolvent, or in
doubtful circumstances, the settlement de-
priving his creditor of the means of satisfying
their debts, comes within the Statute ; but if
the grantor be not indebted to such a degree
as that the settlement will deprive the credit-
ors of an ample fund for the payment of their
debts, the consideration of natural love and
affection will support the deed, although a
voluntary one, against his creditors; for. in
the language of the decisions, it is free from
the imputation of fraud. Lord Hardwicke is
very full and explicit on this point. In Tmcn-
send v. Windham. 2 Ves., 11 he said: "If there
is a voluntary conveyance of real estate, or chat-
tel interest, by one not indebted at the time,
though he afterwards became indebted; if that
JOHNS. REP., ]2.
1815
VKRPLANK v. STERRY.
557
voluntary conveyance was for a child, and no
particular badge of fraud to deceive or de-
fraud subsequent creditors, that will do."
(See, also, 2 Bro. Ch. Cas.. 90; 5 Yes.. 884.)
Both the Statutes, the 18th and 27th Eliz.. con-
tain the general proviso annexed to our« Stat-
ute, excepting from their operation those
deeds only which are bona fide and upon
358*1 good consideration ; *and it is very
clear that Lord Hardwicke. in the opinion
just cited, lays stress on tho circumstance that
the voluntary conveyance was for a* child.
The deed from Ardeu to Mrs. Sterry has these
two circumstances ; it was bona fide, and it had
a good consideration — that of love and natural
affection; and I have no doubt that this deed is
saved by the express proviso of the Statute.
The question naturally occurs, can the late
•decisions in the English courts, on the two
Statutes of the 13th and 27th Eliz., be recon-
••ciled by the principles of just construction?
Under the former, a man out of debt may
make a settlement upon his child, and if he
afterwards becomes indebted, the subsequent
creditor cannot impeach the gift, because it
was not made to deceive or defraud him, nor
-any one el.se ; and. therefore, is not within the
Statute. How, then, can it be maintained,
tiiat if the same father, in consideration of
blood, make a bona fide settlement on his child,
at a time when he is not indebted, this trans-
action shall be deemed void; and that it shall
be taken for granted, contrary to the real truth
and fact, that it was with intent to deceive such
person as should afterwards purchase the es-
tate, even with full notice of the bona fide con-
veyance? As well might it be said that the
settlement on a child is void as to future cred-
itors, as that a settlement on a child is void as
to future purchasers. The settled, and decided
and uniform construction on the 13th of Eliz.,
is entirely opposed to the late English decisions
•on the 27th of Eliz. ; and it would be extremely
absurd to adhere to both. It is manifest, to
me, not only from the regret expressed by the
judges and Chancellors in England, that such
-a construction had taken place in regard to the
27lh Eliz., but from the evident discrepancy
in the constructions of the two Statutes, that
the latter decisions have been influenced by a
sort of judicial expediency, rather than an ad-
herance to the meaning or wording of the
Statute of the 27th Eliz.; it was to avoid the
unsettling of estates. Now, we are not in that
predicament ; we can give a rational and
true construction to the Act, without doing
violence to the meaning of the Legislature, or
our own consciences, or unsettling estates.
If any other consideration was necessary to
bring us to this result, it would be found in
the 4th section of our Act, which is also copied
from the two English .statutes: by that section,
£>59*] a *penalty of one year's value of the
premises is imposed for maintaining or defend-
ing covinous or fraudulent conveyances.
If a subsequent purchaser, with notice, can
.set aside a deed like the one under considera-
tion, it must be on the ground that the anterior
JOHNS. REP., 12.
deed is fraudulent ; and thus a transaction,
which no one can doubt to have been fair and
bona fide, is to be considered criminal, and
punished as a fraud. This would be quite
contrary to another part of Lord Mansfield's
opinion, in Dot v. Rutledge : "that no person
making a voluntary settlement, by way of
provision for his family, was ever considered
in that criminal light."
It has been already observed that the Stat-
ute excepts from its operation deeds made on
good consideration, and bona fide. A settle-
ment may, in its origin, have both these
requisites, and yet it may become fraudulent,
and kept on foot against good faith. "If a
fraudulent use is made of a settlement, that,
indeed (said Lord Mansfield, in Doe v. Rut-
ledye), may be carried back to the time when
the fraud commenced." And I am free to ad-
mit that but for the intervention of the mar-
riage between the respondents, prior to the deed
to the appellant, as the proofs stand before
us, the appellant must have prevailed. Arden's
continuance in the possession of the property;
his receipt of the rents and profits; and, above
all, the ignorance of the appellant that he had
made the settlement, would, as respects him,
have been strong circumstances that a fraudu-
lent use had been made of the deed of settle-
ment, and would have contaminated it. On
the other hand, if the appellant had notice of
the deed of settlement, the possession of the
property by Arden, and his receipt of the
rents and profits, would not have been badges
of fraud, and would not have misled him; and,
in that case, he would not, in my estimation,
have been a bona fide purchaser, entitled to set
aside the settlement.
In affirming this decree, I proceed entirely
on the ground that the marriage between the
respondents furnished a valuable considera-
tion to the voluntary deed from Mr. Arden to
his daughter, Mrs. Sterry, ex pout facto; and
that, as against the appellant, the deed ceased
to be a voluntary one, for good consideration
merely.
In my opinion, the decree of His Honor,
the Chancellor, ought to be affirmed.
*Such being the unanimous opinion [*5OO
of%he court, it was, thereupon, ordered, ad-
judged and decreed that the decree of tho
Court of Chancery be affirmed, with costs to
be taxed, &c. ; and that the record be remitted,
&c.
Judgment of affirmance.
A lliniiinir 1 Johns, ch., 261.
Deed— Delivery and acceptance nec.e-ftsary to pan*
title. Cited in-2Wend.. 31<; 15 Wend., 600; 24 Hun,
2»5: 13 Harb.,233; 35 IJtirb.. 458: *J How. Pr.,396, 420;
1 McLean, 323; IWood & M., 32»: 47 Mo., 238.
Conrideratlon*— Marriage— Natural love and af-
fection. Cited In— 3 Cow., 679; 4 Cow., 603; 2N. Y..
251: 54 N. Y., 440.
Voluntary Conveyance*, when valid an to creditor*.
Cited ln-8 Cow., 436; 24 N. Y., 633; 40 N. Y.. 24«; f»
N. Y.. 346: 7 Bos.. 489; 8 Bos., 176; 4 Sand.. 287; 9 Leg.
Obs., 119.
Also Cited In— 44 N. Y., 31, 9 Allen, 386.
*. • The remaining: oases in error, for 1815, will ap-
peur in the next volume.
IM
[END OF THE CASES IN ERROR, 1815.]
REPORTS OF CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE,
AND IN THE
AND
THE CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK.
BY
iJOHlSJ SO1ST,
COUNSELOR AT LAW.
VOL. XIII
JUDGES
OF THE
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW YORK,
DURING THE TIME OF
THE THIRTEENTH VOLUME OF THESE REPORTS.
SMITH THOMPSON, Esq., Chief Justice.
AMBROSE SPENCER, Esq., Associate Justice.
WILLIAM W. VAN NESS, Esq., Associate Justice.
JOSEPH C. YATES, Esq., Associate Justice.
JONAS PLATT, Esq., Associate Justice.
MARTIN VAN BUREN, Esq., Attorney-General.
CASES ARGUED AND DETERMINED
IN THE
Court for the Trial of Impeachments
AND THE
CORRECTION OF ERRORS
IN THE
STATE OF JNEW YQRK
IN
MARCH AND APRIL, 1815.
WILLIAM BRADWELL AND JOHN BRAD-
WELL, Infante, by THOMAS GIBBONS, their
Guardian, AND BENJAMIN BRADWELL,
an Infant, by THOMAS GIBBONS, his next
Friend, Appellant*,
v.
ELIPIIALET WEEKS, Administrator. &c.,
of JOHN BRADWELL, Deceased, Kcspondent.
Alien Enemy residing in, Enemy'* Country, not
Entitled tt> Share in Personal Estate of Alien
Dying lien.
Where an alien dies in this State, intestate, with-
out issue, during a war with his native country,
leaving personal property, his relations abroad,
though next of kin, being alien enemies residing in
the country of the enemy, are not entitled to dis-
tributive shares of the property, but the whole will
go to his next of kin, resident in this State.*
See S. C., contra (1 Johns. Ch., 206.)
Citations-13 Ves., 71 : 1 Bl. Com.. 372 ; Vattel, bk-
III., ch. IV., sec. 63, eh. V., sec. 76 : Act Cong. July.
1798; 10 Johns., 72; 1 Bl. Com., 371; Doug.,B4l.
THIS was an appeal from the Court of Chan-
cery. John Bradwell, the intestate, a
native of England, residing at Flushing, in
Queens County, Long Inland, died in August.
1812, intestate, without issue, leaving a widow,
and a clear personal estate, after payment of
all debts, &c.. of $6.219.51.
The intestate had four brothers, named Ben-
jamin. Jonathan, Joseph, and Peter ; and in
1802 he removed from England, with his
brother Benjamin, and settled in this State.
Benjamin died about ten years ago, in the City
of New York, leaving three sons, Benjamin,
William, and John, natives of this State, ap-
pellants in this suit. Jonathan, brother of the
2*] intestate, died in 'England in 1802. leav-
ing two children, Jonathan and Ann, who
were still living ; and the other brothers of the
intestate, Joseph and Peter, were also still liv-
ing in England.
In September, 1812, the respondent took out
letters of administration on the estate of the
intestate, and paid to the widow of the intestate
•Bee Fairfax's Los. v. Lea. of Hunter. 7 Cranch..
*B; Orr v. Hodgson. 4 Wheat., 453: Blight's Les. v.
Rochester. 7 Wheat.. 535.
JOHNS. REP., 18.
one moiety of the estate, and to Gibbons, the
guardian of William and John, the two sons
of the intestate's brother Benjamin, deceased,
$539.30, being two thirds of one fourth of the
remaining moiety, and was ready to pay the
other third of the one fourth, as the share of
the other infant son of Benjamin, deceased, to
any person legally authorized to receive it ;
but the respondent retained in his hands the
other three fourths of the moiety of the intes-
tate's estate, which he insisted he had a legal
right to do, to be paid to the two brothers of
the intestate, and to the children of the de-
ceased brother in England, and who claimed
their distributive shares, as next of kin to the
intestate.
The appellants filed their bill in the court
below, against the respondent, as administra-
tor, &c., claiming the whole moiety of the per-
sonal estate of the intestate, and insisting that
Joseph and Peter, brothers of the intestate, in
England, and the children of Jonathan, de-
ceased, also living there, being alien enemies,
war then existing between Great Britain and
the United States, were incapable of taking
under the Statute of Distributions of this
State, and, therefore, not entitled to receive
any portion of the intestate's estate.
This cause was heard on the bill and answer,
when the court below pronounced, the 13th of
September. 1814, the following decree : "That
the plaintiff's bill be dismissed with costs, to
be taxed, to be paid to the defendant by
Thomas Gibbons, the guardian and next friend
of the infant plaintiff," &c. " That the -de-
fendant may, if he thinks proper, pay the dis-
tributive share of the intestate, which belongs
to the infant Benjamin, who is without guard-
ian, into the hands of the register or assistant
register of the court, to be by him put out on
real security or invested in "the United Stales
stock, for the benefit of the infanl, or his
legal representatives, and to abide the further
order of the court respecting the same. And
that such payment, to the register or assistant
register, shall be a discharge to the defendant
of his trust, respecting the said distributive
share of the intestate's estate."
COURT OF ERRORS, STATE OP NEW YORK.
HI5
3*] *The CHANCELLOR assigned the reasons
for his decree, which were the same as those
expressed in the judgment of the court below.
(See 1 Johns. (Mi., 206.)
Mr. Burr, for the appellants. He cited 1
Bl. Com., 372; 1 Hale, P. C., 95 ; Calvin's
cuse, 7 Co., 33 ; Chitty's L. of N., 2 ; 2 Anst.,
203; 2 Str., 1082; 1 Ld. Raym., 283 ; Doug.,
650; Bynkershoek, Quest. Jur. Pub., lib. 1,
ch. 7.
Mr. Riffffs, contra. He cited Parker, 267 ;
Attorney- General v. W heeden et al. ; 1 Bos. &
P., 163; Sparenburghv. Bannatyne. To show
that the bill was defective, as not containing a
sufficient allegation of the persons in England
being alien enemies, he cited 2 Anst., 462, 543;
2 Atk., 397.
YATES, J. The question is, whether the
appellants are entitled to a moiety of the intes-
tate's personal estate, to the exclusion of two
of his brothers, and the children of another
deceased brother, who are admitted to be
alien enemies at the time of the intestate's
death.
The principle that wars ought not to inter-
fere with the personal property of an alien, in
an enemy's country, or with the security and
collection of debts, has, in modern times,
gained ground in all civilized nations. The
latest cases in the English courts concur in the
opinion, that the ancient severities of war have
been much mitigated by modern usages ; this
is to be attributed, in a great measure, to the
more frequent intercourse between citizens of
different nations, by means of commerce, the
successful handmaid in securing an inter-
change of sentiments, whereby more liberal
and enlarged views are necessarily introduced,
contributing, in a great degree, to soften the
estranged and cold feelings of nations towards
each other, and thus promoting the security
and happiness of individual members of every
civilized community. Mankind have a rela-
tive connection, and there ever must exist a
dependence on each other, to which they are
subjected by nature ; and although nations
may not be in the same situation with individ-
uals, in that respect, yet, when there is an in-
tercourse, they ought to be governed by the
same common principles of moral obligation.
In our country, these enlightened and hu-
4*] mane principles have *been recognized,
as appears by the decision of our courts,
founded on the authority of the common law,
and the law of nations. The principle is here
well understood, that an enemy, under the
protection of our government, can sue and be
sued ; and that the prohibition to an alien
enemy, not in the country, to do the same, is
temporary, and continues only during the ex-
istence of the war ; and it is also a doctrine
well established in the English courts.
In a late case, in chancery (Ex-parte Bouss-
maker, 13 Ves., 71), Lord Erskine declared,
that the alien's right of action, in such case,
was only suspended by the war; and if the con-
tract was originally good, the remedy would
revive on the return of peace.
I shall not controvert the correctness of the
principle laid down by Sir William Blackstone,
in his Commentaries, cited by the appellants
(1 Bl. Com., 372): " That alien enemies have
508
no rights, no privileges, unless by the King's
special favor, during the time of war ; but,
conformably to this doctrine, I think it may
well be urged, in this case, that the benefit of
the Statute of Distributions ought to be extend-
ed to the kindred of the deceased, notwith-
standing their alienage, as a consequence re
suiting out of privileges granted to the intestate
by our government before his death.
It does not appear that John Bradvvell, the
intestate, had become a naturalized citizen of
the United States, but that he was an English-
man by birth ; and that he, and his brother
Benjamin, moved from England to the United
States in 1802. The inference, therefore, is,
that he continued an alien, and that he resided
in this country, before the war, as an alien
friend, and, afterwards, during the war, as an
alien enemy, under the protection of the gov-
ernment, and in the enjoyment of privileges
guarantied to him by the law of the land.
Vattel (book iii., ch. iv., sec. 63) says : " The
sovereign declaring war, can neither detain
the subjects of the enemy who are within his
dominions at the time of the declaration, nor
their effects ; they came into his country on
the public faith. By permitting them to enter
his territories, and continue there, he tacitly
promised them liberty and security for their
return." And in ch. v., sec. 76, in the same
book, he says : "War being now carried on with
so much moderation and indulgence, safe-
guards are allowed to houses and lands pos-
sessed by foreigners in an enemy's country.
For the same reasons, *he who declares [*i>
war does not confiscate the immovable goods
possessed in his country by his enemy's sub-
jects ; in permitting them to purchase and
possess those goods, he has, in this respect,
admitted them into the number of his sub-
jects."
In the case of Clark v. Morey, 10 Johns., 72,
it is stated by the Supreme Court that the evi-
dent construction of the Act of Congress of
the 6th July, 1798, is, that where an alien
comes to reside here during peace, no letters of
safe conduct are requisite, nor any license
from the President ; that the license is implied
by the law and usage of nations ; that, if he
came here even since the war, a license would
be implied, and the protection to him would be
continued, until the Executive should think
proper to order him out of the United States.
In this case, it does not appear that the in-
testate has ever, in any way, been molested by
any order of government, but has continued
to reside here, by permission, as before stated,
until his decease. I can see no reason why the
rights he enjoyed, as to the destination of his
personal property, if he had died during peace,
should not (while he thus continued) be se-
cured to him during war. If his relations
abroad were entitled to a distributive share in
the one case, they are equally entitled in the
other. That they would have been permitted
to take their shares before the war, in case of
his death, will not be questioned. Every
member of this court must know that the ben-
efit of that rule of law in England has fre-
quently been experienced by citizens here.
They ought not, perhaps, to be allowed to re-
cover the property while the war continues;
and, in that respect, ought to be placed on the
JOHNS. REP., 13.
1815
BUADWELL ET AL. v. WEEKS, ADM.
footing of an alien enemy, who is a creditor,
not resident here, and consequently, incapable
to prosecute for his debts. But the permission
given to the alien to remain, must, in case of j
his decease, during that period, secure to his ]
alien relatives the ability to take, and, on the
return of peace, to recover their shares of his
personal property, according to the Statute of
Distributions, in the same manner as if no war
had intervened. This cannot be deemed a
violation of the principles laid down in the
books, that alien enemies have no rights, no
privileges, unless by special favor of the gov-
ernment of the country ; because it is a conse-
quence necessarily attached to the special favor
granted, of remaining in the country during
the war.
I am aware that this is extending the conse-
4J*j quential right *of protection in the time
of war further than appears heretofore to have
been done ; for, by the books, it is not carried
beyond the right of suing for debts ; but it is
probable that this question has never been
brought up ; I believe no case, to that effect,
<:an be found. It is not unreasonable, there-
fore, to infer, that no claim like that of the ap-
pellants has ever before been interposed.
Admitting, however, for a moment, that this
reasoning is not warranted by the facts in the
•case, because it does not appear, affirmatively
and explicitly, that the intestate was an alien
•enemy at the" time of his death, nor that he re-
mained here by permission of the government
•(although there can be no doubt of it, accord-
ing to the construction given to the Act of
Congress, in Clark v. Morey, before stated) ;
yet, in order to take a more full and satisfac-
tory view of the subject, I shall proceed to ex-
amine the claims of the appellants on the
ground urged by their counsel.
It has been stated that the people have no
right on the ground of forfeiture, and ought
not to interfere with this property, because
the claimants abroad, having no privileges,
being alien enemies, could not take it.
It must be admitted that the principles, in
relation to real estate, as to the alien's taking
and holding, until office found, cannot apply
to the present case.
An alien can take personal property with
him, when ordered out of the country ; but
the soil is a portion of its dominion, and alle-
giance to the government, on the part of the
owner, cannot oe dispensed with ; they are in-
separable, and the safety of every community
forbids the introduction of a measure which
would inevitably give a permanent influence
to persons not interested in its destinies.
Blackstone (1 Bl. Com., 371) says, if an alien
could acquire a permanent property in lands,
he must owe an allegiance equally permanent
with that property, which would" probably be
inconsistent with that which he owes to" his
own natural liege lord ; besides that, the na-
tion might, in time, be subject to foreign influ-
ence.
The property in question is personal, and
the peculiar situation of it arises out of a state
of hostility, and never can inure to the bene-
fit of the appellants, so as to give them the ex-
clusive right toil. The disability (if it exists
at all) is created for the advantage and securi-
ty of the government, who ought, perhaps,
JOHNS. REP., 18.
*to retain it in the country during the ex- [*7
istence of the war. But it is said the court, in
the decision of this cause, ought to be gov-
erned by policy ; and the relative situation of
the claimants has been adverted to, and the
exclusive ability of the appellants to render
essential services to the country, while in a
state of war. has been urged in their favor.
In Cornu v. Bbicit&urne, Doug., 641, Lord
Mansfield declared that it was sound policy,
as well as good morality, to keep faith with an
enemy in time of war, and that a contract
which arises out of a state of hostility ought
to be governed by the law of nations, and the
eternal rules of justice.
This, indeed, is not a contract ; but, accord-
to the view first taken of the subject, it would
be an advantage claimed, in consequence of
an implied permission given to the intestate,
and could not, according to the rules of jus-
tice, be extended to the appellants, nor en-
forced by the people.
I believe it will be admitted that the sound-
est policy of everv government, in relation to
questions of this kind, is to observe good faith
towards foreigners of every description, more
especially if they continue their residence, by
permission of government, during a war with
their country, and not to allow such permis-
sion to entrap them, or to produce a disposi-
tion of their property different from what
would have taken place in a state of peace,
and thus suffering manifest injustice to be ex-
ercised towards their representatives abroad.
To encourage a foreigner to remain with us
in time of peace, with an understanding that,
according to the law of nations, in the event
of his death, his personal estate shall go to his
representatives abroad, although aliens; yet
if, unfortunately, a war intervenes, during
which he dies, to deprive the same representa-
tives of this property, notwithstanding the
permission of the government to the intestate
to remain in the country until his decease, ap-
pears to me to be repugnant to justice and hu-
manity.
It, assuredly, must operate as a direct dis-
couragement to that commercial intercourse,
so requisite to promote the happiness and
prosperity of our country. According to the
view, then, which I have taken of the subject,
true policy would lead to a course securing to
the alien representatives, abroad, the ultimate
enjoyment of the personal property of their
deceased relative.
I am. accordingly, of opinion that the next
of kin of the intestate, residing in England,
are entitled to their distributive shares *of [*8
his personal estate ; and that the decree of the
Court of Chancery ought to be affirmed.
VAN NESS, SPENCER, JJ., and THOMPSON,
Ch. J. (PLATT, J., being absent), declared
themselves to be of the sa:ne opinion.
P. W. RADCLIFK, STEWART, ATWATER,
TIBBITS, VAN SCHOONHOVEN, VANBRTCK, and
WENDELL, Senators, were also or the same
opinion.
ARNOLD, BRICKNELL, BISHOP, BLOODOOOD,
BLOOM, CANTINE, CLARK, PRENDEROAST,
Ross, SWIFT, and TABOR, Senators, were of
COURT OF ERRORS, STATE OF NEW YORK.
1815-
opinion that the decree of the Court of Chan-
cery ought to be reversed.
The members of the court, who were present,
being thus equally divided in opinion, -the
PRESIDENT (Lieut. -Gov. Tayler) declared his
opinion that the decree of the court below
ought to be reversed.
It was, thereupon, " ordered, adjudged, and
decreed that the decree of the Court of Chan-
cery be rever-T.-:l, and that the respondent pay
to the appellants $87.96, being the amount of
costs ordered and decreed by the Court of
Chancery to be paid by the appellants to the
respondent, and which has been paid accord-
ingly ; and that the responent do account,
under oath, before one of the masters of the
Court of Chancery for the personal estate
of John BradwelL deceased : and that the
said respondent be allowed out of the
said estate the taxable costs of his de-
fense in this suit, in the said Court of
Chancery ; and on this appeal, and all neces-
sary disbursements by him made prior to the
commencement of the said suit ; and that he
pay over the balance to the appellants, or to
the guardians of such of them as may be then
under age, in equal proportions ; and that the
Court of Chancery take all necessary measures
for carrying this order into execution," &c.
Judgment of reversal.*
Rev'sr— 1 Johns, eh., 335.
Cited in-5 Wend., 373 ; 50 N. Y., 635.
9*] *GEORGE CAINES, Plaintiff in Error,
v.
JAMES BRISBAN AND JOHN BRANNAN,
Defendants in Error.
GEORGE CAINES, Plaintiff in Error,
v.
RICHARD ALSOP ET AL., Defendants in
Error.
Set-off— Wlwtlier Restricted to Parties on Record
— Notice Afust be Given under General Issue —
Assignment.
In an action of assumpsit for goods sold, the de-
fendant pleaded that one A carried on business
under the name of the plaintiff ; and that the plaint-
iff, as airent of A, sold the goods ; as such agent,
assigned the debt of the defendant to a creditor of
A, and then pleaded a set-off against A ; the plaintiff
replied that A did not, by the plaintiff, sell the
goods : the replication was held sufficient.
It seetns tnat a set-off cannot be pleaded, but
notice of it must be given under the general issue.
It seems that a set-off is not restricted to the
parties on the record ; but if the plaintiff be only an
agent or trustee, the defendant may set off a debt
due from the principal or cestui que trust.
A plea, stating that A, the person beneficially in-
terested, being an insolvent, within the Act of
April, 1811, by the plaintiff, his agent (under whose
name A sold the goods, to recover the price of
which the action was brought), assigned the debt
duo from the defendant to B, in preference to
other creditors of A, is bad ; such assignment being
valid under the Statute.
1.— The parties who were aliens, it is understood,
applied to the Circuit Court of the United States,
and obtained an injunction in the cause, before any
proceedings were had on the reinittitur to the Court
of Chancery; so that the question will, probably, be
decided, in the last resort, by the Supreme Court of
the United States.
olO
Citations— 1 Johns. Gas., 411 ; 2 Johns. Cas., 121 ; 1
136, n. 4.
IN ERROR, from the Supreme Court.
These were actions of assumpsit. in both of
which the pleadings were similar, and which
were argued together in this court.
The declarations, in both cases, were for
goods sold and delivered, to which the defend-
ant below pleaded :
1. Non assumpsit.
2. That the goods, in the declaration men-
tioned to have been sold to the plaintiff, if any
were so sold and delivered, were certain law
books, and other printed works and publica-
tions: and that before, and at the time of. the sell-
ing and delivery thereof, if any were so sold
and delivered, and before, and at the time of
making the promises, &c., one Isaac Riley
carried on the trade and business of a book-
seller, by the above plaintiffs, under the name,
tyle, and firm of Brisban & Brannan (Alsop,
Brannan & Alsop). but, in truth, for the profit
and on account of Riley, and at his risk ; that
whilst Riley so carried on the trade of a book-
seller, he, by the above plaintiffs, sold and de-
livered the books ; and that after the several
supposed assumptions, &c., and before the
tiling of the bill in this suit, Riley was indebted
to one Thomas Fairchild, or pretended so to be,
in some considerable sum of money; and being
so indebted, or pretending so to be, Riley, by
John Brannan, his agent, as, and under the
name of, acting attorney for the firm of Bris-
bon & Brannan, assigned the demand against
the defendant to Thomas Pairchild, to be col-
lected by Thomas Fairchild, in the name of
the plaintiffs, but, in truth, for, and on ac-
count, and in payment of, the debt due to
Fairchild from Riley, and to enable Riley,
under the *names of the plaintiffs, to [*1O
receive from the defendant the amount, bene-
fit, and advantage thereof ; and that the bill
filed in this suit, was tiled by Fairchild, in
the names of the plaintiffs, for the purpose
of enabling Fairchild to pay and satisfy his
demands, or some portion of them, against
Riley, who is the person that is really, ulti-
mately and beneficially interested in this suit ;
and that before the assignment to Fairchild,
and before filing the bill, Riley was indebted
to the defendant in a large sum of money, to
wit : &c., for work and labor, &c., for money
lent and advanced, &c., on an account stated,
&c.
3. That after the sale, &c., and promises,
&c. , Riley became solely interested in the whole
of the supposed right, title, debt, due or de-
mand of the plaintiffs against the defendant,
and being solely interested, he, Riley, whilst he
continued so solely interested therein, on the
10th of January, 1812, became an insolvent
debtor, within the true intent and meaning of
the Act of the 3d of April, 1811, entitled "An
Act for the Benefit of Insolvent Debtors and
their Creditors." That after Riley became in-
solvent and before the repeal of the Act of the
Legislature, and whilst Riley continued to
claim to be so solely interested in the whole of
the supposed right, title, debt, due or demand
of the plaintiffs, on the 18th of January afore-
said, John Brannan, one of the plaintiffs, in.
JOHNS. REP., 18.
1815
CAJNKS v. BKISBAN ET AL.
10
the character, and by the description of acting !
attorney for the firm of Brisbau & Brannan,
the plaintiffs, but, in truth, by the direction,
and in the behalf, and on account of Riley, |
assigned the right, «fcc., to Fairchild, to be by
him collected in the names of the plaintiffs,
but, in truth, on account of Riley, and in part
payment and satisfaction, when collected of a
debt, or pretended debt due from Riley to
Fairchild ; and that it was so made to pay a
debt due to Fairchild, in preference to other
debts due from Riley, and in contemplation of
applying for the benefit of the Act, when he
was an insolvent debtor within the true intent
and meaning thereof; and with intent to de-
fraud his other creditors, of which Fairchild
had notice; he, Fairchild, not being a creditor
who had before the passing of the Act, im-
prisoned, impleaded, or prosecuted Riley, on
any civil process issuing out of any court
within and under the authority of this State,
for debt or. any contract express or implied ;
that, after the assignment, Riley, according to
due form of law, at Flatbush, in the County of
King's, presented a petition to William Fur-
mun. first judge of the Court of Common Pleas
1 1*] of that *County, praying that his estate
might be assigned, and he discharged from
his debts according to the provisions of the Act
of the 3d of April, 1811; whereupon such pro-
ceedings were had, that the estate of Riley was.
in due form of law, assigned to certain as-
signees and all the right of the plaintiffs, and
of Riley in the supposed debt against the de-
fendant, became vested in law in his assignees;
and William Furman, by a discharge under
his hand and seal, bearing date the 1st of May,
1812, discharged Riley from all his debts; and
that the bill tiled in this suit was filed by Fair-
child, in the name of the plaintiffs, to enable
Fairchild to collect the supposed debt and ap-
Sly the same in payment and satisfying the
ebt of Riley to Fairchild, in preference to
the other creditors of Riley.
To the second plea the plaintiffs replied that
Isaac Riley did not, by the plaintiffs, under
their name, style, and nrra. or otherwise how-
soever, sell and deliver to the defendant the
goods, books, &c., in manner and form, &c.
To this replication the defendant below de-
murred, and assigned for causes : 1. That the
replication does not traverse, or confess and
avoid the matter alleged in the plea, nor
answer it but by way of inference and argu-
ment only 2. Because the matter set forth in
the replication is matter of evidence, and no
material issue can be taken thereto. The
plaintiffs below joined in demurrer.
The plaintiffs below demurred, generally,
to the third plea ; and the defendant joined in
demurrer. The court below gave judgment
for the plaintiffs below on both demurrers, and
the issue on the first plea having been tried,
the jury gave a verdict for the plaintiffs be-
low, and final judgment was entered thereon
in the usual form.
[See the decision of the Supreme Court, and
the reasons assig'ned, in 10 Johns., 45, 396.]
The following are the reasons offered by the
plaintiff in error for reversing the judgment :
1. Because, by the common law, assignments
of debts, or choses in action, are not per-
mitted, and are recognized at law only to avoid
JOHNS. RKP.. 13.
sending the assignee into equity ; in con-
sequence of this, assignment of debts, as be-
ing mere equities, are, when recognized by
law, governed by equitable principles. By
these principles, notice to the debtor is in-
dispensable, to take away from him any of his
rights against his creditor, the assignor. By
•the same principle, until notice of the [* 1 £
assignment of a debt is given to the debtor, it
is, as to him, as if it had never been made ;
and, until the time of notice given, he deals
with his creditor on the same terms and footing
as if there were no assignment ; that the con
sequence of this is, that the debtor's right of
setting off the amount of any credits given by
him to his creditor, continues to the time of
notice of the assignment, and is not regulated,
or governed, by the time of the assignment
made (or its date), but by the time of the notice
of assignment given to him.
2. Because, by the first decision of the Su-
preme Court, the right of set-off, which a
debtor has, under the Statute, against his
creditor, will be taken away by a secret as-
signment of his debt, without notice, when he
may have been dealing with his creditor, on
the faith of paying that very debt, and with-
out which faith he would not have dealt
at all.
3. Because, by the same decision, a wide
door is opened to fraud and deceit, especially
in cases of insolvency, like those before the
court ; for a trader, particularly, might (if a
secret assignment of a debt, without notice, be
good against the set-off of subsequent credit-
ors), by assigning the debts due to him as soon
as-contracted, receive payment of the whole
from his unsuspecting debtor, who might be
obliged to pay the same debt over again to the
assignee, and then have to look for his own
money under an insolvency of sixpence in the
pound.
4. Because, by the same decision, a host of
cases, which have long been considered as the
landmarks of trade, will be overturned, and
the whole system of commercial dealing be
shaken to its very basis.
5. Because, by the first principle of the
second decision of the Supreme Court, against
a debt contracted through the medium of a
factor, who has no claim on the money, a right
of set-off against the principal seems to be de-
nied, though such principal may owe the de-
fendant ten times the amount ; and this merely
because a factor may sue in his own name for
account of his principal.
6. Because, under that pan of the decision
of the Supreme Court, any man who chooses
to trade through the medium of a factor, or
agent, might, by bringing hiu actions in the
name of the agent, render the whole Statute
of Set-off a dead letter.
7. Because the Supreme Court have given,
as a reason for *their second judgment, [* 13
a fact which was immaterial to the issue, and
which, by their first judgment in the above
cause, they determined to be so.
8. Because, by the second decision of the
Supreme Court, it appears that trusts have
been confounded with the uses on which they
are held, and a transfer of the use being sup-
ported to create a complication of the trust,
making thereby a complication of a trust de-
511
COUKT OF ERRORS, STATE OF NEW YORK.
pend, not on a diversity of interest, but a
•change of parties.
9. Because, by the second decision of the
Supreme Court, therightof set-off is construed
to exist only between parties to the record, the
necessary result of which must be, that either
an assignment of a debt, or a contract made
through an agent, though for the benefit of
another, who destroyed the effect of the act ;
and thus, a Statute formed on equitable prin-
ciples be made to operate against equity.
10. Because, by the second decision of the
Supreme Court, it appears, that though the
•construction of the Statute, objected to in the
last and ninth reason, should be relaxed, and
a set-off admitted in favor of cestuis que trust,
still such set-off must, by the judgment of the
court, be limited to cases where the set-off is
less, or equal to the amount of the debt de
manded, and will not extend to cases where
the set-off is of a larger sum than the debt
claimed ; from whence this incongruity will
follow, that a payment may be made with a
small sum which cannot be made with a
larger ; or, in other words, that, against a de-
mand for $100, a set-off of $100 will be a good
bar to a recovery, but a set-off of $150 will not.
11. Because, under the same decision, the
remedial Act for the amendment, of the law is
construed strictly, not according to its spirit.but
its letter, and the particular relief, afforded by
the first section, is made to destroy the general
relief afforded by the tenth ; and thus to oper-
ate as a virtual repeal, in a particular instance,
of a subsequent clause of the same Act, by
which a general and uni versal right is given in
all instances.
12. Because, under the second decision of
the Supreme Court, where a suit must, in or-
der to satisfy the forms of law, necessarily be in
the names of the plaintiffs, a defendant cannot
show in whom the right to the subject matter
of the suit is, in bar to an action prosecuted on
14*] account of a person who has no *right ;
and thus the recovery will be controlled by the
names of the parties, and not by their rights, as
shown on the record.
13. Because, under the second decision of
the Supreme Court, in cases of insolvency or
bankruptcy, where, by the Statute giving re-
lief, the assignees are not authorized to sue in
their own names, their legal right to the debts
assigned can never be pleaded as a bar to a re-
covery on an assignment made in fraud of
their rights, under the Statute ; the result of
which would necessarily be, that a colluding
creditor might recover the whole of the in-
solvent's debts, and, under the judgment of
a court of law, put them into the hands of the
insolvent himself, against his own assignees,
under the Statute, who would have no remedy
but by a suit in equity against the insolvent.
14. Because, under the Insolvent Act of
April, 1811, all suits by the assignees, for the
real and personal estate of the insolvent, must
be in their names ; therefore the second decis-
ion of the Supreme Court is, in that point, er-
roneous in its very foundation.
15. Because, under the Insolvent Act of
April, 1811, assignments made by debtors, who
become insolvent, within the meaning of that
Statute, after its passing are prohibited and de-
clared fraudulent, and are therefore void by
512
operation of law ; yet according to the decision
of the Supreme Court, assignments thus made
against law, are a good basis on which to
ground a recovery at law ; contrary to the
maxim of ex dolo malo non oritur actio; that is,
a fraudulent act can never give a right of ac-
tion.
The following reasons were offered by the
defendants in error for affirming the judgment:
As to the second plea.
1. Because the replication is a full and suf-
ficient answer to the plea. The defendant
pleads that Isaac Riley was indebted to him in
a sum exceeding the plaintiff's demand ; and
that Riley carried on business by the plaintiffs,
in their partnership name, and by them sold
the goods for which the suit is brought to the
defendant. Now, the whole ground of the
claim to set-off comes from the alleged fact
that Riley, though under the name of another,
was, in "truth, the vendor of the goods, and
that, therefore, it was a case of mutual in-
debtedness between him and the defendant.
The plaintiffs traverse the fact that Riley, by
the plaintiffs, or otherwise, sold the goods :
*and whatever might be the indebted- [*15
ness of Riley to the defendant, it is manifest
that that cannot be the subject of set-off against
the plaintiff's demand, unless they acted for,
or on behalf of Riley. The very allegation,
then, upon which the whole claim to set-off
rested, is directly and distinctly denied in as
broad terms as it is alleged ; and this is con-
sistent with the known and established rules
of pleading. The replication may at once deny
the particular fact intended to be put in issue,
and conclude to the country.
2. The plea is, also, in itself a nullity. At
common law, debts could not be set off, but
the party was put to his cross action. Our
Act, which has varied the common law, al-
lows the defendant to plead the general issue,
and give notice of the matter he intends to set
off. It is a rule that where a statute gives a
remedy, not known to the common law, that
remedy alone can be pursued. In this case the
rule should be rigidly inferred. The remedy
given is simple and inartificial, calculated to
expedite justice, and to rescue parties from the
labyrinth of legal subtleties and forms.
3. But even admitting that Riley was a cestui
que trust, for whose use the goods were sold,
yet a court of law cannot recognize and settle
such interfering and complicated trusts as are
unfolded by this plea. The plaintiffs having
openly acted as the owners in the sale of the
goods, the promise inured to them, and they
can rightfully maintain the action in their
names. Riley, at most, then, had only an equi-
table interest; the legal title was in them; and
they, by the direction of the cestui que trust,
have assigned the demand to Fairchild for a
bona fide consideration. A court of law is in-
competent, from its constitution, to prove the
nature of their respective rights.
4. It is not a suit in which our Statute au-
thorizes a set-off, which applies to the case
where two or more persons, having dealings
together, are indebted to each other, and one
brings a suit against the other. The plea dis-
closes no mutual dealings between the plaintiff
and defendant. There never was a time when
the plaintiff could, at law, have availed him-
JOHNS. REP., 13.
18U
CAINES v. BUISBAN ET AL.
15
«eU of this asserted set-off. The original con-
tract was between other parties, and the
plaintiff in this suit was never indebted to the
defendant. No balance could be certified
•against them in favor of the defendant.
As to the third plea :
1O*] *1. This plea proceeds upon the ground
that Riley was fairly indebted to Fairchild,
and that the assignment from the plaintiffs, to
secure that debt, while Riley contemplated
had notice ; his right of set-off, therefore, con-
tinued unimpaired.
The replication of the plaintiffs below is
bad : it is argumentative, does not answer the
plea, is a negative pregnant, and tenders an
immaterial issue.
In the second case (10 Johns., 396), the Su-
preme Court put their decision upon an ob-
jection that never was made ; it was not con-
tended that the agent could not bring the suit,
taking the benefit of the Insolvent Law. of the I but is admitted that either principal or agent
•8d of April. 1811, was void, as giving him an
unjust preference over other creditors. At
common law such assignment is clearly valid ;
for one creditor has a right, if he can, to ob
tain payment or security, in preference to an-
•other. Vigilantibu* non dormienttbu* subcenit
•lex. If the assignment is invalid, it must be
made so by the Act. Now, the Act does not
invalidate the assignment ; it merely pro-
vides, that if the debtor, after being prosecuted
or imprisoned, shall give such p'rererence, he
shall not be entitled to the benefit of the Act.
It is an objection to the discharge of the
debtor, not to the validity of the assignment.
It Is directly the converse of the provisions of
the English Bankrupt Laws, by which the
bankrupt is discharged, but the assignment
avoided.
2. But even if such assignments were, by
the general provisions of the Act, invalidated,
yet this plea is wholly defective, in not stating
that Riley was prosecuted after the passing of
the Act, and made the assignment after the
prosecution. On the contrary, it is expressly
-averred that he was not prosecuted by Pair-
child, and it is nowhere alleged that he was
prosecuted by anyone else. To bring the case
within any of the provisions of the Act, even
as an objection to the intended application of
Riley for a discharge, it was necessary to al-
lege that a preference was given, not only
after a suit commenced, but that such suit
was. in fact, commenced after the passing of
the Act. This results expressly from the last
proviso of the first section.
8. But independently of these grounds, the
•defense in the plea is utterly untenable on any
principle. The defendant admits the debt, and
the plaintiffs are the only persons in law recog-
nized as capable of recovering. The asserted
fraud on Riley's creditors cannot release the
defendant from his liability. Whether the
plaintiffs, after recovery, would hold the
money in trost for Fairchild, or for Riley's
creditors, is a question between them, which
the defendant is neither bound nor admitted
to litigate. It is not pretended that the as-
signees have ever interposed, or forbidden pay-
ment to the plaintiffs or Fairchild.
Mr. Gune*, for the plaintiff in error. The
1 7*] principle of the decision *of the Supreme
•Court, in the case in 10 Johns., 46, RrutHtn A
Hrmut'in v. ('inn*-*, is, that a secret assignment
•of a debt deprives the debtor of his right of
set-off. That position is erroneous : that the
assignment may produce such an effect, it is
necessary that it should be accompanied with
notice . and the assignment is valid, in respect
of the debtor, not from the day of tno assign-
ment, but from the time that notice was given.
The date of the assignment is altogether im-
material. Here, the plaintiff in error never
JOHNS. RKP., 18. N. Y. R.. 5. 38
might have brought it. They say, too, that
the trust is " interfering and complicated ;"
but it is contended that it is a simple trust, and
that Riley, and not Fairchild, is the cestui quo
trutt. But, admitting that Fairchild were the
party beneficially interested, still the set-off
would be good for want of notice. (5 Johns.,
105; 8 Johns., 152.) A set-off must be al-
lowed whe/ever a cross action could be brought,
for a set-off is in the nature of a cross action
(Bull. N. P., 179); and. if Fairchild had an
interest, it should be allowed, in order to pre-
vent a suit in equity. (4 Ves.. Jr., 118; 2
Burr.. 826; 8 Johns., 156.) The court say,
that the Statute of Set-off refers merely to the
parties on record ; but it is contended that it
is unimportant who are the parties to the rec-
ord : we are to look merely to the persons
beneficially interested. (1 T. R., 622, 623; 1
Johns. Cas., 54; Tuttlev. Bebee, 8 Johns., 152.)
It is no objection, as it was considered by the
court below, that the plea shows a demand
larger than the one declared for, and that the
plaintiffs to the record owe nothing. (Ruggle*
v. Keeler, 3 Johns., 263.) Nor is it an objec-
tion that the set-off was pleaded. By the 1st
section of the Act for the amendment of the
law, a set-off is made a defense, and by the
10th section a defendant may plead as many
several matters as he may think necessary to
his defense. By the Ten Pound Act, the de-
fendant is allowed to plead or give notice of
a set-off. Where a larger sum is due from
the plaintiff, it is more proper to plead
than to give notice. (Tidd., 606.) But sup-
posing the plea to be bad, the plaintiffs have
made it good, by replying, without objecting
to .the matter or form, by special demurrer.
As to Fairchild's interest, it appears, from
*the pleadings, that he only had an au- [*18
thority to collect, and nothing more.
As to the second plea in bar ; that plea states
an assignment by Riley to Fairchild, in pref-
erence to his other creditors. It is a principle
applicable to the Insolvent Act of 1811, that
after the passing of that law, if any one should
become an insolvent under the Act, he cannot,
after becoming such insolvent, assign or dis-
tribute any o? his property. One object of
this Statute is to prevent fraud ; it should,
therefore, be construed liberally. The Statute
itself, in the 1st section, prohibits this very
act : it compels the debtor to swear that he has
not made any preference among his creditors,
or any preferential assignment of his property
after he had become insolvent. Every penalty
in a law implies a prohibition (Carth., 252, 60).
and, in the 7th section of the Act, there is a
pi-twlty imposed on preferential assignments.
P his assign ment was made by Riley subsequent
to his becoming an insolvent.
The suit was not brought, as is asserted by
Hi
18
COURT OP ERRORS, STATE OF NEW YORK.
the court below, in the names of the right
Sjrsons, but should have been in the names of
iley's assignees. By the common law, choses
in action could not be assigned, but the Act
enables assignees to collect debts in their own
names. A plaintiff must show that the debt
which he demands is not only due from the
defendant, but is due to himself ; and the de-
murrer to this plea confesses that the debt was
due to Riley. (Bac. Abr., Pleas & Pleadings ;
Hob., 104; Vaugh., 8, 58; Co. Lit., 285.)
After the assignment of Riley's estate, the de-
fendant could pay the debt to no other than
Riley's assignees ; of this assignment he had
complete notice, previous to the commence-
ment of the suit, for a newspaper notice is a
sufficient notice under the Statute. Had the
defendant paid the money, after notice, to the
insolvent, it would have been in his own
wrong, and would have been no defense in an
action by Riley's assignees. (1 T. It., 62; 12
East, 656.)
Mr. Henry, for the defendants in error.
The principles contended for on the opposite
side are not disputed ; it is only necessary to
show that they do not apply to this case.
From the plea, it appears that the defendant
dealt with the plaintiffs as principals ; that the
debt was assigned to Fairchild, for a fair and
valuable consideration, to pay a debt due from
Fairchild to Riley, and that Fairchild was not
19*] a mere agent or attorney to *collect the
money. In the replication, it is denied that
the plaintiffs were agents.
Under the second plea, the defendant could
not avail himself of the set-off : a set-off can
only be between persons dealing together, and
mutually indebted ; and there must not only
be mutuality of indebtedness, but an individ-
uality. (Montague on Set-off, 23.) The Su-
preme Court say : " You shall not impair the
right of a third person by this set-off :" they
say : "You shall not impair the right of the
factor by this set-off, neither will we hear it,
because it will draw into examination the ac-
counts of the factor." (Cowp., 251 ; Montague
on Set-off, 83.) Fairchild claims under the
assignment which was made for a good con-
sideration. Mr. Caines asserts that Riley was
the person really interested ; now, how are the
rights of Fairchild to be tried ? Can the court
award an interpleader ? Or would they ex-
amine into these complicated trusts on affida-
vits ?
The court below considered the plea bad,
because it was a special plea in bar, and not
the general issue, with notice. The right of
set-off was not given by the common law, but
was introduced by statute, and the Statute
having prescribed the mode in which a party
may avail himself of his set-off, he can resort
to no other. This was, no doubt, intended by
the Legislature to save costs, and to avoid the
intricacy and expense of special pleading.
The 10th section of the Act, for the amend-
ment of the law, relied on by the opposite
counsel, does not vary the form ; that section
merely gives a defendant the right of multi-
plying his grounds of defense.
It is said that the replication to the plea
made it good ; it is true that a plea, defective
in matter of form, is cured by the replication ;
but here the plea-is defective in substance. It
514
is not insisted that a set-off is admissible only
between parties to the record ; but the main
fact alleged in the plea is, that the plaintiffs,
sold as factors, and not as principals ; the
replication denies this allegation, and takes an
issue upon the very foundation of the equity
on which the defendant rested.
As to the second special plea ; it will appear,
upon examination, that there is an acknowl-
edgment of a debt due from Riley to Fairchild ;
of course that there was a consideration for
the assignment : but that Fairchild was pre-
ferred to the other creditors. The English
Bankrupt Law, it is true, would render such a.
preference void, but under the Insolvent Act.
of 1811 it is valid as to the creditor preferred,
and the whole penalty rests *upon the [*2<>
insolvent, by precluding him from the benefit
of the Act. There was, then, a perfect right
vested in Fairchild, of which the Act never
intended to devest him. There is no intima-
tion, in any part of the plea, that Riley was
either prosecuted or imprisoned ; therefore the
plea is defective in substance, under the
Statute. It was urged, on the other side, that
the 7th section of the Act imposed a penalty
upon those who took advantage of the prefer-
ence ; but that refers to trusts, and not to as-
signments for the payment of debts. The plea
is also bad, because it does not appear to
whom the assignment was made.
It was contended also, on the other side, that
Riley's equitable interest passed to his as-
signees ; and that they might have sued in
their own names. This is denied ; the as-
signees would have no other right than what
the insolvent himself possessed. Suppose the
insolvent were the assignee of a bond, or a
cestui que trust ; his assignees could not bring
an action in their own names, but could have
the same rights only, to recover the debt, as
the insolvent had. (1 Atk., 193.) The action
was properly brought in the name of the pres-
ent plaintiffs ; and, as was said by the Su-
preme Court, the claim of Fairchild, on the
one hand, and of the assignees of Riley, on the
other, cannot be tried in this suit. Suppose
the money were to be brought into court ;
would the Supreme Court put the assignees of
the insolvent, and the holder of the chose in
action, upon their trial by affidavits ?
Mr. Caines, in reply, denied that the defend-
ant below dealt with the plaintiffs as princi-
pals ; the very words of the plea show that
the plaintiffs were mere agents. The indi-
viduality and mutuality of the parties, there-
fore, existed ; for the parties were the defend-
ant and Riley, who was the only person inter-
ested before the assignment to Fairchild ; and
it does not appear, from the pleadings, that
the plaintiffs had any lien upon the goods or
debts of Riley. In answer to the objection
that the plea does not state that Riley was
prosecuted or imprisoned before the assign-
ment to Fairchild, he said that it was stated
that on such a day Riley became an insolvent,
within the intent and meaning of the Act, and
also that the assignment was made on a day
after that on which he became an insolvent.
CANTINE, Senator. The plaintiff in error
claims to have the*judgment of the Su- [*21
preme Court, in this cause, reversed, on the
JOHNS. REP., 13.
1815
CAISES v. BKIBBAN ET XL.
21
ground that both his special plea-s, in bar, are
good, and well pleaded ; and that the replica-
tion of the defendants in error to the first
special plea is bad, because it traverses what
is merely matter of inducement ; that it ten-
ders an immaterial issue, and is argumenta-
tive.
The Supreme Court determined that both
pleas were bad, and on that determination
their judgment is founded ; on the sufficiency
or insufficiency of the replication they gave no
direct opinion.
Though I cannot subscribe to the correct-
ness of all the reasoning of the court, in sup-
port of their judgment, yet, from the view I •
have taken of the subject, my mind has been
brought to a conclusion in favor of its affirm-
ance.
There appears no good reason against the
right of set-off in this cause, if the plaintiff in •
error can avail himself of that right, under a |
special plea of set off. The Statute allows a !
set-off where "two or more persons, dealing:
together, are indebted to each other, or have
demands arising on contract, or credits, against
each other." Assuming for a fact what the
plaintiff in error averred in his plea that the
goods were sold to him by Riley, through his
agents, Brisban & Brannan. for the profit and
account of the said Riley, and at his risk, it is,
manifestly, a dealing together between Riley
and the plaintiff in error, within the very
words of the Act.
This suit might have been brought in the
name of Riley, as well as in the name of the
present defendants in error ; and, in such case,
no one would have pretended to controvert
the plaintiff's right of set-off: has. then, that
riijlit been impaired by the assignment to Fair-
child, or by the circumstance of the suits be-
ing brought in the names of Brisban & Bran-
nan, the agents of Rilev ? I think not ; this
case presents no interfering or complicated
trusts ; but a simple and direct transmission of
interest from one to another, making only a
change of parties to the same interest. The
assignment to Fairchild could not at all affect
the rights which the plaintiff in error had pre-
viously acquired ; he took subject to the
equities between the original parties; it would
be in the highest degree unjust, and would
render the Statute of Set-off a dead letter, to
permit a creditor to deprive his debtor of his
right of set-off by a transfer of his demand to
a third person ; the Supreme Court have uni-
22*] formly taken cognizance *of the assign-
ment of cubses in action, to avoid driving
parties into a court of equity. In the case of
Andrews v. Becker, 1 Johns. Cas., 411. the de-
fendant pleaded a release of the action from
the plaintiff on the record ; to this there was
a replication, stating that the bond on which
the suit was brought had been assigned to
Adams & Parish, 01 which the defendant had
notice . this replication was held to be good,
and the interest of the assignees protected ; the
same principle is recognized and fully estab-
lished in a number of subsequent decisions.
(WardeU v. Eden, 2 Johns. Cas., 121 ; 8. C.,
1 Johns., 531; Littlefield v. Storey, 8 Johns.
Cas., 425.)
These decisions are certainly agreeable to
equity and common sense ; but upon the same
JOHNS. REP., 18.
principles, and for the same reasons, are we
also bound to protect defendants in their right
of set-off, acquired before a transfer of inter-
est by the plaintiffs on record.
To* limit the right of set-off to the parties to
the record, would greatly narrow down the
beneficial operation of the statute. The for-
mer decisions of the Supreme Court have been
uniformly in favor of extending the benefit of
this Statute to the parties in interest, though
not parties to the record. In the case of John-
ton v. Bloodgood, 1 Johns. Cas., 51, the court
decided that they.would protect the interest of
the eentui que trust against a set-off, which
would have been good against the plaintiff on
the record, had the interest remained in him.
The same principle is contained in the case of
LitUeJuild v. Storey, 3 Johns. Cas., 425. The
case of Ituggls* v. Keeler, 3 Johns. Can., 263,
is analogous to the present ; the court there
permitted the defendant to set off a demand
against one Walker Lewis, in bar of the plaint-
iff's right of action, on the ground of Lewis*
being the party in interest, Ruggles having
assigned the demand to him. And in the case
of Tuttte v. Bebee, 8 Johns., 152. the court per-
mitted the defendant to set off bonds, which
had been assigned to him by third persons,
against the plaintiff. From these decisions,
it is manifest that the Supreme Court, in regu-
lating the right of set-off, have always had re-
gard to parties in interest, though not parties
to the record. On the argument in this court,
it was contended, in behalf of the defendants
in error, that, being factors of Riley, they had
a right to bring the suit in their names, and to
retain, in their own hands, whatever might be
due them from Riley, as having a legal lien
*on those demands to satisfy themselves [*23
first; and, in support of this principle, they
cited Drinkwater v. Goodwin, Cowp., 255, and
insisted that the plaintiff could not, therefore,
set off, in this suit, his demand against. Riley.
It is not necessary to deny that, as factors,
they had a lien on this demand for what Riley
might owe them. To controvert the correct-
ness of the conclusion that the plaintiff's risrht
of set-off was thereby destroyed, let it be con-
ceded that if Riley had been indebted to them
at the time when the goods were purchased, or
prior to the time when the plaintiff in error
acquired any right of set-off, that their lien
would have had the preference of the plaint-
iff's set-off ; it does not follow that if such lien
did not exist the plaintiff would still be de-
prived of a right of set-off. The case of Drink-
water v. Ooodtein is not analogous to the pres-
ent case; there the defendant claimed the
benefit of a payment to the factor of Drink-
water, and showed affirmatively that the fac-
tor was a creditor, having a lien on the de-
mand in controversy. In this case it appears
affirmatively that the factors have no lien ;
because, as agents of Riley, they have assigned
tile demand to Fairchild. "for his use and bene-
fit alone, and to secure to him the payment of
a demand he had against Riley. The assign-
ment, in this case, must, therefore, be consid-
ered in the same light as one made immedi-
ately by Riley to Fairchild, and in which the
defendants in error have no sort of interest
whatever.
The next inquiry is, could the plaintiff in
515
23
COURT OF ERRORS, STATE OF NEW YORK.
1815
error plead his set-off specially in bar of this
action ; or should he have pleaded the general
issue, and given notice of it, as the Act di-
rects ? The remedy by set-off is a creature of
the Statute ; it did not exist at common law ;
the plaintiff in error was bound, therefore, to
confine himself to the remedy as appointed by
the Statute. The Supreme Court, in the case
of Tuttle \. Bebee, before cited, say that this
Statute must be liberally expounded. It is
undoubtedly proper, and for the advancement
of justice, that it should be so construed ; but
there is certainly a wide difference between a
liberal construction of a statute and a total de-
parture from its provisions. A strict con-
struction of the Act would limit the right of
set-off to the parties to the record ; but to an-
swer its beneficial purposes, it is necessary to
extend that right to the parties in interest,
though not parties to the record. Again ; the
Act directs that where the plaintiff is overpaid,
24*] the jury shall find a verdict for *the de-
fendant, and certify the amount due from the
plaintiff, &c. A strict and literal construction
of this branch of the Statute would produce
the difficulty suggested by the Supreme Court
in their decision of this cause. A liberal con-
struction would permit the defendant to set
off as much as was necessary to protect him-
self against the claim of the party in interest,
though not to the record ; and yet the remedy
appointed would be pursued, because exactly
in the form prescribed by the Act ; nor is there
any good reason to suffer a departure from the
form prescribed ; it is not at all necessary to
promote the ends of justice. This form was
undoubtedly appointed to facilitate legal pro-
ceedings, and to disencumber them from the
intricacies of special pleading ; and it affords
as ample and perfect relief as can possibly be
had by means of a plea of set-off. If it had
not been intended to confine a party to the
form prescribed, the provision would have
been, in the alternative, that he might plead
his set-off specially, or plead the general issue,
with notice of it. This appears manifest from
the consideration that our Statute is taken
from one of Geo. II., on this subject, in which
the remedy, by set-off, is thus given in the al-
ternative.
In 1 Saund , 136, note 4, Sergeant Williams,
in speaking of remedies given by statute, says;
"The distinction seems to be this; where a stat-
ute makes unlawful that which was lawful be-
fore, and appoints a specific remedy, that
remedy must be pursued, and no other." And
in the case of Miller v. Taylor, 4 Burr., 2406,
this rule was considered as applicable to civil
cases.
A subsequent section of the same Act gives
to a party a right to plead as many several mat-
ters as he shall think necessary for his defense;
and it was strongly urged that a just and liber-
al construction of this section gives the right
to plead a set-off specially. What was the ob-
ject of that section of the Act? What was the
relief intended to be granted? It was to remove
a difficulty which existed at common law. Be-
fore this Act a parly was not permitted to plead
different defenses to the same action. But it
is not necessary to permit a set-off to be plead-
ed, specially, to carry the objects of this sec-
tion into full and entire effect; every benefit
516
intended to be secured by it, is equally attain-
able by a plea of the general issue with notice;
and because a defendant may now plead as
many matters as he may judge necessary for
his defense, it by no means follows that he
*may also alter a prescribed form. The [*25
Legislature having thought proper to appoint
the mode by which a party shall avail himself
of a set-off, and that mode affording a full and
perfect remedy, it would be manifestly wrong
to permit a departure from it.
But if the plea is good, the replication is so
also; it tenders a full and perfect issue. What
is the fact put in issue by the plea? Why, that
the plaintiff purchased the goods of Riley.
through Brisban & Brannan, his agents, and
that the plaintiff had a set-off against Riley.
Suppose the replication had also negatived the
the averment that Riley was really and ulti-
mately beneficially interested in this suit ; and
the cause had been brought to trial before a
jury; and, on the trial, the plaintiff had failed
to prove that the goods were sold and delivered
to him by Brisban & Brannan, as the agents of
Riley; would it have been competent for him
to prove that Riley was beneficially interested
in any other manner? Clearly not. The in-
terest of Riley, through Brisban & Brannan,
is the fact put on trial by the plea; that fact is
fully answered by the replication, and an is-
sue tendered. The plaintiff 's demurrer, there-
fore, was not well taken.
The plaintiff's last plea is manifestly bad. I
will add one reason to those contained in the
decision of the Supreme Court. The Act of
1811, which prohibits a preferential assign-
ment by a debtor, has this exception in it: "But
this proviso shall not extend to any debtor who
shall have been imprisoned, impleaded, or
prosecuted, as aforesaid, before the passing of
this Act; nor shall such debtor be required to
take that part of the oath which relates to a
preference among creditors."
The plaintiff's plea has no averment thatRi-.
ley was not imprisoned, impleaded or prose-
cuted, before the passing of the Act. If, then,
an assignment, under this Act, to a bona fide
creditor, made by a debtor imprisoned, im-
pleaded or prosecuted, after the passing of the
Act, was void ; yet, if such debtor had been
imprisoned, impleaded, or prosecuted, before
the Act was passed, he had a right, by the
very provision of the Act, to make a preferen-
tial assignment of&bonafde creditor; such as-
signments were left on the same footing as
though this Act had never had existence. The
plea admits that Fairchild was a bonufde cred-
itor; and, for aught that appears upon the
face of this plea, Riley had a just and legal
right to make the assignment *to him. [*26
I am, therefore, of opinion that the judgment
of the Supreme -Court ought to be affirmed.
SANFORD, Senator. Without examining all
the questions which learning and ingenuity
have brought into discussion, in this cause,
my mind rests with satisfaction upon two
points which are decisive.
Whether the second plea is good or bad, I
think the replication is sufficient. The plea
alleges that Riley was the real vendor of the
goods; this allegation is material, and is, in-
deed, the basis of the whole plea. The repli-
JOHKS. REP., 13.
1815
SOLOMONS v. M'KINSTRY.
cation denies that Riley was the real vendor
of the goods, and thus selects a single certain
material fact, from the various matters set
forth in the plea, and puts it in issue. The
other facts are admitted, this alone being de-
nied. The question whether Hiley was the
real vendor or not, appears to me to be a fair
and material issue, and one which must deter-
mine the whole cause.
The third plea is bad in substance. Taking
the facts as they are stated, Fairchild, a cred-
itor, had a right to obtain payment from Hi Icy.
his debtor; and Kiley had a right to pay this
creditor, in preference to others. Riley as-
signed the debt demanded by the suit to Fair-
child, who received it in part payment of Ri-
ley's debt to him. The intention of Riley to
prefer Fairchild to other creditors, and to ap-
ply for his own discharge from his debts, can-
not invalidate this assignment or payment.
Such a transaction is clearly valid at common
law, and is not impeached* by the Statute of
the 3d of April. 1811.
For these reasons, I am of opinion that the
determinations of the Supreme Court, upon
both demurrers, were correct, and that their
judgment ought to be affirmed.
This being the unanimous opinion of the
court, it was thereupon ordered and adjudged
that the judgment of the Supreme Court be
affirmed; and further, that the defendants in
error recover against the plaintiff their dama-
ges, by reason of the delay of the execution,
and also their costs in defending the writ of
error, in this cause, to be taxed, &c. ; and that
the record be remitted. &c.
Judgment of affirmance.
Affirming— 10 Johns., 45, 396.
Cited in- 5 Cow., 235, 388 ; 5 Wend., 353 ; 5 Mason,
213.
27*]*LEVY SOLOMONS, Plaintiff in Error,
JOHN M'KINSTRY, ' Defendant in Error.
Award Mu*t be Final, Certain, and vntftin the
Submission.
An award of payment of a specific sum, by one
purty to the other, is final, and sufficient without a
num.
Where an umpire awarded that the defendant
should pay to tho plaintiff a certain sum, with in-
ten.*t until paid, as the plaintiff appeared to have
a just claim on the defendant for that sum, or even
more, if insisted on;" and, "that should any errors
in addition or calculation of interest be found in
tin- ari-nimt, upon proof thereof being made by the
defendant to the plaintiff, the plaintiff should im-
mediately refund to the defendant the amount
thereof, the amount was held final and valid.
Where an umpire was chosen and appointed, of
and concerning the premises, and it was stated that
he took upon Himself the burden of the umpfnorc,
it is to be intended that he awarded concerning the
subject matter submitted.
Citations— Kyd Treat, on Awards, 170. 371 ; I Keb.,
788, 885 ; 1 Koll.. 3tt! : 2 Mod.. 800.
A WRIT of error was brought to reverse the
judgment of the Supreme Court in this
cause. For the facts in the case, and the judg-
ment of the court below, see the 8. C., report-
ed in 2 Johns., p. 57-62.
NOTB.— Award*— S&nte of — Certainty of — ftnoi.
See Purdy v. Delavan, 1 Cai.,804, note.
JOHNS. REP.. 18.
THOMPSON, Ch. J., gave the reasons for the
judgment of the court below, which were the
same as those stated in the report of the case
in that court.
The cause was argued by Mr. Van Vechten
for the plaintiff in error, and by Mr. Wood-
worth for the defendant in error.
The counsel for the plaintiff in error cited
Kyd on Awards, 206; 1 Ld. Raym., 246; 2
Saund., 62 a; 12 Mod.. 129; 8 Co., 198; Batcole'*
case, 2 Saund., 61, n. 5; 1 Caines, 819; Atk.,
644; 1 Caines, 868; Kyd on Awards, 252. 253;
1 Roll. Abr.. 862 ; 2 Co.. 192; Cro. Jac.. 663.
The counsel for the defendants in error cited
1 Burr., 280; Caines, 819; 7 T. R., 78; 8 Atk..
644.
CANTINE, Senator. On the argument, two
objections were urged against the judgment
of the Supreme Court.
1st. That the award was not confined to the
subject matter of the submission.
ML That it was not final. With the latter
objection, a want of mutuality in the award
was in some measure mixed; but as that was
not much relied upon, and as the opinion of
the Supreme Court places that question on a
footing which cannot be controverted, 1 shall
confine my examinations to the two questions
stated.
The difficulty, in this ca^e, does not arise
from a difference of opinion respecting the
principles on which awards are to be construed,
but in the application of those principles;
for, if the award is not confined to the subject
matter of the submission, or is not final, it is
void.
*Upon this subject much confusion [*28
has arisen from two sources: 1st. From a
difference betweeto the extreme nicety former-
ly observed in the construction of awards,
and the gradual relaxation which has taken
place down to the present time ; and, 2d.
From the almost infinite variety of forms in
which awards are made, arising necessarily
from the circumstance that they are generally
penned by persons not well versed in legal
proceedings, and not unfrequently by those
who are wholly unskilled in the construction
of language : and these causes present a diffi-
culty that, probably, can never be entirely
removed. There ever will be some uncertainty
in the application of the general rules which
govern the construction of awards.
From a careful examination, however, of
the questions which, in this case, are presented
for our decision, there appears to be fewer
and less difficulties than I apprehended when
I first heard the argument ; and I am entirely
satisfied that the judgment of the Supreme
Court is correct, and ought to be affirmed.
The submission, in this cause, was limited
to the copartnership accounts of Levy Solo-
mons & Company ; but the umpire, in his
award, does not aver, that his umpirage was
made "of and upon the matters submitted ;"
it is general, and awards "that Solomons shall
pay M'Kinstry £428 19*. 4<f., as M'Kinstry ap-
peared to have a just claim on Solomons for
that sum, or more if insisted upon." It is con-
tended that here arises an uncertainty, from
the award not being limited to the submission,
which renders it void. If the rule, requiring
that an award shall not go beyond the submis-
517
28
COURT OP ERRORS, STATE OF NEW YORK.
1815
sion, is to be so strictly construed as to make
it necessary that it should be averred, in terms,
to be so limited, then this award would be
clearly bad, because it may; from the compre-
hensiveness of its terms, embrace differences
not submitted ; but the law does not require
this extreme nicety. A more just and reason-
able interpretation of the rule, one more con-
sonant to common sense, and better calculated
to promote the ends of justice, is, that where
the words of an award are so comprehensive
that they may take in matters not within the
submission, yet it shall be presumed that noth-
ing beyond it was awarded, unless the contrary
be expressly shown ; and the correctness of
this Construction is fully established by Kyd,
in his Treatise on Awards, 170, and the au-
thorities there cited ; and, also, in the case of
Hopper v. Hasket, 1 Keb., 738.
29*] *In Ratdiffe v. Bishop, \ Keb., 865, it
was expressly adjudged, that it was not neces-
sary that an award should, in terms, purport
to be "of and upon the premises ;" that it was
sufficient, if, by the submission, it was pro-
vided that it should be made "of and upon the
premises ;" for that, in such case, it must be
intended that the award is limited to the sub-
mission, unless the contrary appear on the face
of it. The submission, in this case, provides,
expressly, that thg award shall be "in and con-
cerning "the said matters in difference," &c.,
in substance, the same as "of and concerning
the premises ;" and no mischief can arise from
the adoption of this rule, because the party
objecting has a right to show, by pleading,
that matters out of the submission are embraced
in the award. In the case of Ingram v. Webb,
I Roll., 362, there was a submission of all suits
and controversies between the parties, respect-
ing tithes of "corn and hay in a certain
parish ;" the award was, that the defendant
should pay the plaintiff £40, and that the
plaintiff should permit all suits and controver-
sies between them to cease. On a suit brought
on the award, the plaintiff averred that there
were not any other suits for tithes ; the defend-
ant rejoined that there were other suits, but
not concerning the tithes ; the plaintiff had
judgment, which was affirmed in the Ex-
chequer Chamber, on the ground that the order,
"that all suits should cease," should be con-
fined to suits relating to tithes, as they only
were within the submission. (2 Mod., 309 ;
Kyd on Awards, 371.)
The award is said uot to be final, because
the umpire alleged that more was due than the
sum awarded, if insisted on, and that M'Kins-
try, therefore, was not bound by it ; and that
this award would not have been a good bar
against a suit he might have brought on the
original demands. It does not appear to me
that this conclusion follows, necessarily, or
that it is even a fair and rational one.
The award was not drawn with technical
nicety, but with sufficient accuracy to com-
municate, distinctly, the intention and mean-
ing of the umpire ; the obvious interpretation
is, that from the evidence produced, he was
satisfied that a greater sum was strictly due to
M'Kinstry than what was awarded ; but as
M'Kinstry did not think proper to insist upon
or claim the whole, he had, with his assent,
given his award for a less sum. As the um-
518
pire had taken upon himself the umpirage, he
was in duty bound to do exact justice between
the parties ; to award *less than he was [*3O
conscientiously satisfied was due to M'Kinstry,
without his assent, would have been palpably
unjust ; the fair, honest, and legal presump-i
tion is, that M'Kinstry consented to the reduc-
tion of the sum ; he was, therefore concluded
by it and it certainly cannot lie with Solomons
to find fault. Another objection was urged
against this award, on the ground that it was
not final, which, on the argument, struck me
as being serious ; but, from subsequent re-
flection, I am convinced that it is as untenable
as the others. The award provides, that
should any errors in addition or calculation
of interest be found in the account, upon
proof of such errors being made by Solomons
to M'Kinstry, the latter should immediately
refund the amount thereof. It was said that
there were several modes of calculating inter-
est, and that the adoption of the one or the
other would produce a very different result as
to the amount. It is true that there are differ-
ent modes which may sometimes occasion a
material variance. But the fair and rational
presumption is, that the umpire adopted the
mode recognized in tne courts of justice in
the country where the contract was made; and,
at all events, as the parties had submitted their
differences to arbitrament, they were con-
cluded by the mode adopted by the umpire ;
by their submission, they constituted him as
much their judge on that question as any
other, and were as much bound by his decision
as they would have been by the judgment of a
court of law; the mode of calculating of in-
terest was not, therefore, among the objects of
revision and correction provided for by the
award ; the errors to be revised were exclu-
sively confined to mistakes which the umpire
might have made in the multiplication or ad-
dition of figures. There was no part of the
merits of the controversy left open, nor did
the umpire delegate any portion of his power
or authority to another. The sum due, the
time for which it should bear interest, and the
manner in which that interest was to be calcu-
lated, he had determined.
This case does not come within the reason
of any of those where awards have been con-
sidered as void in consequence of containing
provisions for refunding a part of the sum
awarded, under certain circumstances. These
cases will all be found to apply only where
the sum to be refunded is part of the princi-
pal, and depending upon evidence, and, there-
fore, entering into the merits of the contro-
versy; and not as in the present case, which
depends upon mere arithmetical calculation.
*Suppose this part of the award had [*3 1
been left out, would it have varied the rights
or remedies of either of the parties ? In that
case, if any errors had been discovered in the
calculation or addition of interest, Solomons
would have been entitled to redress in a court
of equity; but that court could not have in-
terfered to correct any errors in judgment
which the umpire might have committed.
Does the award, as it stands, provide any
mode of relief to Solomons, for errors in cal
culation or addition of interest, other than by
having recourse to a court of chancery ? He
JOHNS. REP., 13.
1815
SOLOMON v. M'KINSTRY.
31
con Id not have maintained an action at law on
the award, until he bad first proved that there
were errors in the calculation or addition of
interest; that is the condition on which alone
he is entitled to call on M'Kin-try to refund.
Proof means legal proof ; and how could he
produce legal proof of th'e existence of such
errors, without first having resort to a court of
equity ? This part of the award is utterly
useless, and might be stricken out without any
prejudice whatever to either party; it is mere
surplusage.
I am for affirming the judgment of the Su-
preme Court.
JOHNS. RF.P., 18.
This being the opinion of the court (BISHOP,
Senator, dissenting), it was thereupon ordered
and adjudged that the judgment of the Su-
preme court be affirmed, and that the defend-
ant in error receive his damages, bv reason of
the delay of execution, and their costs in
this court; and that the record be remitted.
&c.
Judgment affirmed.
Cited in— 5 Wend., 270 ; 12 Wend., 380 ; M Barb..
374; IE. D. Smith, 443; 34 Mich., 198; 11 Allen,
384.
[END OP THE CASKS IN ERROR, 1815.]
CASES ARGUED AND DETERMINED
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK,
JANUARY TERM, 1816, IN THE FORTIETH YEAR OF OUR INDEPENDENCE.
SHORT v. WILSON ET AL.
1. Conveyance in Trust under Contract to
Purchase — -Non- Performance — Revocation of
Trust and Conveyance to Third Party, Valid.
2. Waste against Assignee of Lessee.
A., by his deed, dated January 16th, 1799, conveyed
a lot of land to B. (reciting a contract of purchase
between A. and M., dated August 23d, 1797, by
which M. covenanted to pay one fourth of the pur-
chase money on the 23d of August, 1799, &c-, and
agreed, that if he failed in performance, A. was to
be discharged from making a conveyance), in trust,
to convey the premises to M. or his appointee, when
he should have made the payments and performed
the covenants stipulated in his contract.
A., by B., his attorney, covenanted, the 22 of Sep-
tember, 1799, to convey part of the lot to S., who
paid part of the purchase to B., and the residue to
A., woo conveyed the premises to S., by deed, dated
14th of November, 1801.
M. having: failed to perform his contract, B., by a
deed (dated the 29th of September, 1813, and ex-
ecuted by virtue of a power from A., dated the 16th
of December, 1799), reciting that A. had assigned
the contract of M. to C., in trust, for the executors
of G., conveyed the premises in question to C. It
was held that S. had a good title, under his deed,
notwithstanding the previous contract with M.,
and the deed to B.; as M. having failed to perform
his contract, the trust in B. was at an end, and re-
sulted to A., and B. had no authority to execute a
deed, afterwards, without a new power.
That A. and B. having, subsequently to the deed
of trust, made the agreement with S.. which had
been carried into effect, it was a revocation of the
truet, as it regarded S., and that the subsequent
deed to C. was inoperative on the ground of the ad-
verse possession of S.
An action on the case, in the nature of waste,
lies against the assignee of a lessee.
Citation— 1 Cruise's Dig., 475 ; 2 Fonb., B, 2, ch. 5,
sec. 1 ; 2 Saund., 252, note.
THIS was an action of trespass on the case,
which was tried at the Ontario Circuit, in
June, 1814, before Mr. Justice Van Ness, and
a verdict taken for the plaintiff, subject to the
opinion of the court.
The declaration contained four counts, in
the first three of which the plaintiff. alleged
an injury to his reversion in one hundred acres
of Und, in lot No. 53, in township No. 11, in
34*] the town *of Phelps, by digging and
carrying away gypsum ; the fourth was a
count in trover. The defendant pleaded the
520
general issue, and several special pleas deny-
ing the title, and alleging a title out of the-
plaintiff.
The original title to the land was in Oliver
Phelps, under whom both parties claimed;
and the plaintiff produced a deed from Phelps,
for the premises mentioned in the declaration,
dated the 14th of November, 1801, and ac-
knowledged and recorded the 23d of July,
1803, with a release of dower from the wife
of Phelps indorsed thereon, and acknowledged
the 15th of June, 1804. Phelps, by his attor-
ney, P. B. Porter, had previously agreed, by
articles of agreement, dated the 22d of Sep-
tember, 1799, to convey the premises to the-
plaintiff. On the articles was indorsed a re-
ceipt by Augustus Porter, for part of the con-
sideration money, and a receipt in full, from
Phelps. for the residue. The plaintiff began
to occupy the lot fourteen or fifteen years ago,
and hired one Nicholas Spon to clear some
part of it, who went into possession in the
spring of 1802, under a lease from the plaint-
iff, and continued in possession until Decem-
ber, 1813, when he assigned his right to the
defendants. The lease contained no permission
to dig gypsum; and it was proved that the de-
fendants had dug gypsum, with a knowledge
of the plaintiff's claim, and after having been
forbid by him.
The defendants gave in evidence a deed
from Oliver Phelps to Augustus and Peter B.
Porter, dated July 16th, 1799, and recorded on
the 14th of March, 1800, of several lots, in
which the premises in question, stated to have
been sold to Abraham Van Duzen and Adam
Miller, were included, in trust, to convey the
said lots to the respective purchasers thereof,
or their appointees, when they should have
fulfilled the conditions.and made the payments,
stipulated in certain agreements, or covenants
therefore made between them, the said pur-
chasers, and Phelps.
Adam Miller having failed in the perform-
ance of his agreement, Augustus and Peter B.
Porter, by deed, dated September 29th, 1813,
reciting, among other things, that Phelps had
assigned Miller's agreement to Brooks, the-
party of th'e second part, in trust for the exec-
JOHNS. REP., 13_
1816
SHORT v. WILSON KT AL.
34
utors of Nathaniel Qorham, deceased, and di-
rected the land to be held for the benefit of
the party of the second part, and conveyed the
premises in question to Peter 0. Brooks, ex-
cepting fifty acres out of the northwest cor-
ner thereof, sold by Phelps to Abraham Van
Duzen. The last-mentioned deed was ex-
ecuted by Augustus and Peter B. Porter, by
35*] *virtue of a power of attorney from
Phelps to them, dated December 16th, 1799.
The^ower of attorney recited, that whereas
PhelpsTiad covenanted by indenture with Re-
becca Oorham. Nathaniel Gorham, and John
Call, and as it was his intention to appoint an
agent to transfer and deliver for him such se-
curity a-s was in the said indenture covenanted,
and for the purposes and in the manner therein
stipulated, he therefore appointed Peter B. and
Augustus Porter his attorneys, to transfer and
deliver to the said administrators, or to any
person whom they might appoint, bonds and
notes of the description in siiid indenture, to-
gether with the mortgages or other collateral
securities given to secure the same, to the
amount of $12,500, in the possession of the
-ai-1 attorneys ; and if it should be necessary,
in order to complete the said sura, he empow-
ered them to convey, by sufficient warranty
deeds, all such lots of laud as has been sold to
settlers, for which they had given their bonds
or notes; they holding articles of agreement
for the conveyance of such lands, in case such
bonds or notes should oe assigned to the said
administrators, or any person by them ap-
pointed ; and revoking any conveyance in
trust for said settlers made to Peter B. and
Augustus Porter, of lands to which said bonds
or notes may relate. To the power was an-
nexed a list or schedule of sundry lands
therein stated to have been assigned by Phelps
to Peter C. Brooks, among which was Adam
Miller's bond, dated August 23d, 1797, for
$3,334.12. The assignment to Brooks was in
trust for the heirs or administrators of Na-
thaniel Oorham. The agreement between
Phelps and Miller, for the conveyance of the
premises in question, and other lands, was also
dated the 23d of August, 1727, and was assigned
in the name of Phelps, by his said attorneys,
to Brooks, in trust for the same persons, with
directions to P. B. and A. Porter to hold the
land mentioned in the agreement in trust for
Brooks.
By the agreement, Miller was to complete all
his payments by the 23d of August, 1802, ac-
cording to the condition of his bond, and a
deed to be given on or before the 1st of Sep-
tember, 1802 ; and it was expressly provided
that if Miller failed to perform any, or either
of the covenants, on his part, Phelps was, in
such case, to he fully discharged and acquitted
from making the conveyance.
In 1799 Miller took possession of the prem-
ises agreed to be conveyed to him, and after
3O*] six or eight years being prosecuted *bv
Peter 0. Brooks, on the bond above mentioned,
and being unable to pay the amount due there-
on, for which a judgment had been obtained,
he abandoned the whole of the land mentioned
in the articles. Miller had made no improve-
ments on that part of the lot claimed by the
plaintiff, nor had he made the payments ac-
cording to his covenant. On the 18th of Au-
JOHXS. HEP., 13.
gust, 1814, Brooks conveyed the premises in
question to the defendants, Wilson and M'Nril;
the defendants having been permitted, in De-
cember, 1813, to go on the lands and improve
them.
Mr. Ifi nry for the plaintiff.
Mr. Van Veehten, contra.
THOMPSON, ./., delivered the opinion of the
court :
The premises in question are one hundred
acres of land, at the southwest corner of lot
No. 53, township No. 11, in the town of
Phelps. It was admitted on the trial that the
title was once duly •vested in Oliver Phelps,
from whom the plaintiff derived his title, by
deed, bearing date the 14th of November,
1801. A previous contract for the land had,
however, been made by the plaintiff with Peter
B. Porter, as attorney for Oliver Phelps. The
articles of agreement bear date the22d of Sep-
tember, 1799. The power of attorney to Por-
ter was not produced, but the case furnishes
abundant evidence that Phelps ratified the act
and adopted it as his own ; for he received
part of the consideration money and executed
a deed pursuant to the contract. There would,
therefore, be no doubt of the plaintiff's title
to the lot, if it were not for the previous con-
tract made with Adam Miller, bearing date the
23d of August, 1797, and the deed in tru-t
•riven by Phelps to Peter B. and Augustus
Porter, bearing date the 16th of January, 1799.
A little examination, however, will show that
neither of these instruments will form any ob-
jection to the plaintiff's title to the land. By
the contract with Miller, the deed was to be
given in 1802 ; the consideration money to be
paid by installments, all payable before the
deed was to be given ; and the contract«ex-
pressly provides that if Miller should fail in
the performance of any of the covenants on
his part, then Oliver Phelps was to be fully
discharged and acquitted from making the
conveyance. By these articles, the first pay-
ment fell due the 23d of August, 1799 ; Miller
failed in performing his contract ; this appears
from numerous *parts of the case, and [37
is expressly so recited in the deed from P. B.
and A. Porter to Brooks, under which the de-
fendants claim. Miller having failed in the
performance of his contract, Phelps had, un-
doubtedly, a right to avail himself of the for-
feiture, according to the provisions in the
articles of agreement. There can be no
stronger evidence of his intending so to do
than the sale made of the same land a short
time thereafter (22d of September. 1799), to
the plaintiff in this cause.
The deed in trust given by Phelps to P. B.
and A. Porter, would form no impediment to
the contract made- with the plaintiff, for it was
made through thr agency »nd with the assent
of all parties to the deed in trust, both princi-
pal ana attorneys, the ewtui que tru«t and trus-
tees Peter B. Porter made and signed the
contract; Augustus received part of the con-
sideration money, and Phelps the residue ; and
he also consummated the title by giving the
deed pursuant to the contract. Here, then,
was a revocation of the trust, so far as it
related to this land, with the assent and con-
currence of the trustees and ce«tui yue trutt.
ill
3?
SUPREME COURT, STATE OF NEW YORK.
1816
Besides the trustees had not, under their deed,
any authority to execute the trust. This deed
refers, generally, to the contracts that had been
made by Phelps ; and the trustees were
only directed to give deeds to such pur-
chasers as should fulfill the conditions and
payments, in their respective articles of agree-
ment stipulated, according to the tenor and
effect of such articles. Miller did not fulfill
his contract, and the trust, so far as it respected
him, was at an end, and resulted to Phelps (1
Cruise Dig., 475 ; 2 Fonb., B, 2, ch. 5, sec. 1);
and the trustees had no authority to give a
4 deed without some new power or direction
from the cestui que trust Such, also, must
have been the understanding of all parties at
that time ; for no deed was executed under
these articles until September, 1813, when it
was given to Peter C. Brooks. Nor can the
power of attorney, given by Phelps to P. B.
and A. Porter, on the 16th of December, 1799,
in any manner impeach the plaintiff's title ;
that was a power to transfer certain lands, and
articles of agreement, to secure to Rebecca
Gorham and others the sum of $12.500, and
the bond and articles of agreement with Miller
were assigned to Brooks in trust, to be paid to
the heirs or administrators of Nathaniel Gor-
ham when collected. This power is dated
after the contract made with the plaintiff for
the land in question, and could not prejudice
his rights. Miller's bond and articles were
assigned, among considerable other property,
38*] in trust, for *the heirs or administra-
tors of Gorham ; and nothing appears to have
been done under the assignment for seven or
eight years afterwards, when Miller was pros-
ecuted upon the bond, and being unable to pay
abandoned his whole contract, which was for
much more land than what is now in question ;
the assignment, therefore, to Brooks was not
absolutely inconsistent with the sale of the
one hundred acres to the plaintiff. It may be
operative and effectual as to the residue of the
land included in Miller's contract. The de-
fendants must fail on the issue, which alleges
the title to be in Brooks, for when the deed
was given to him, there was clearly an adverse
possession in Spon, who held under the plaint-
iff. I am, therefore, satisfied that the legal
title to the land in question is in the plaintiff,
and his claim to recover is fortified and
strengthened by the equity of the case being
also with him.
If the plaintiff has made out a legal title in
himself, there can be no objection to his main-
taining this action. Spon was in possession as
his tenant under a lease ; and the defendants,
previous to the time when the waste is alleged
to have been committed, took from Spon an
assignment of his lease ; neither this lease, nor
the assignment, is particularly set out in the
case, but no objection appears to have been
made, upon the trial, to the competency or
sufficiency of the proof of them. We must,
therefore, consider the defendants as the as-
signees of the plaintiff's tenant, and of course
liable to this action. (2 Saund., 252, note.)
We are, accordingly, of opinion that the plaint-
iff is entitled to judgment.
Cited in-29 N. Y., 29 : Deady, 411.
THE NEW YORK AFRICAN SOCIETY
FOR MUTUAL RELIEF
v.
JAMES VARICK ET AL.
Action on Bond — Demurrer — Misnomer of Cor-
poration.
In debt on a bond to the committee, or trustees,
of a corporation, solvendum to the Corporation by
its true name, the Corporation may declare in their
own name, and may allege, that, the bond vra made
to them by the description of the committed &c.
Citations— 3 Wils., 184; 10 Co., 125 b ; 1 Kyd on
Corp., 287.
rpHIS was an action of debt on a bond, and
-L came before the court on a general demur-
rer to the second count in the plaintiff's decla-
ration.
This count stated that the defendants, by
their certain writing obligatory, acknowledged
themselves to be held and firmly bound unto
the plaintiffs, by the description of the Stand-
ing Committee of the New York African Soci-
ety for Mutual Relief, in *the sum of, [*39
&c., to be paid to the plaintiffs when the de-
fendants should be thereunto afterwards re-
quested, with condition, that if Daniel Barry,
one of the defendants, should well and truly
observe and perform the duties enjoined upon
him as Treasurer of The New York African
Society fqr Mutual Relief, he having been ap-
pointed treasurer for one year, then the said
obligation was to be void ; the breach averred
was, that Barry embezzeled $800 which he had
received as treasurer, and absconded with it.
Mr. Riker, in support of the demurrer, cited
Gould v. Barnes, 3 Taunt., 503 ; Tafl v. Brews-
ter, 9. Johns., 334.
Mr. Anthon. contra. He cited Kyd on
Corp., 287 ; 6 Co., 65 a; 10 Co., 125 b; 3'Wils.,
184 ; Willes, 557.
Pei' Curiam. This case comes before the
court on a demurrer to the second count in the
declaration, The action is debt, upon a bond
given by the defendants to the plaintiffs, for
the faithful discharge of the duties of Treasur-
er of the Society, by Daniel Barry. The dec-
laration sets out the condition of the bond,
with an averment of a breach. The second
count states that the defendants acknowledged
themselves to be held and firmly bound unto
the plaintiff, by the description of the Stand-
ing Committee of the New York African Soci-
ety for Mutual Relief &c., to be paid to the
plaintiff, &c. The ground upon which this
demurrer was placed by the defendants' coun-
sel was, that the suit should have been in the
name of the trustees, or committee, and not in
the name of the Corporation. From the de-
murrer books, it does not appear that any trust-
ees are named. There is no oyer of the bond;
and the most that can be collected from the
pleadings, is a misnomer of the Corporation.
By the declaration, however, it appears that
the solvendum is to the plaintiff by the true cor-
porate name, and this is .sufficient. (3 Wils.,
184.) Where a deed is made to a corporation,
by a name varying from the true name, the
plaintiffs may sue in their true name, and aver
in the declaration that the defendant made the
deed to them, by the name mentioned in the
deed. The allegation in the declaration that
JOHNS. REP., 13.
IHIfi
DUNHAM v. DET.
39
the defendants acknowledged themselves to be
bound unto the plaintiff*, by the description.
<fcc.. is equivalent to such averment. (10 Co..
4O*] 125 A; 1 Kyd *on Corp., 287.) The de-
murrer is, therefore, not well taken, and the
plaintiff is entitled to judgment,
Judgment for the plaintiff.
Cited in-17Wond., 42; ION. Y., K: 43 N. Y.,437;
IS Hun, -W»i : i". Itari... 4«,7 ; •> K«lf.. 532; 18 How. (U.
S.), 409 : 3 Wood St M.. 388 : 'Si Ind., 378.
DUNHAM «. DEY.
1. Usury — An Exchange of Notes wttJi Commu-
nion and Interest Amounting to more than Le-
gal Rate, in Usury — Usage does not Avail
against Statute. 2. Surety nuiy Receive Com-
nussion. 3. Post notes.
Whore A receives B's note, on giving B bis note
at ten days, for the purpose of ruisi n« money on B's
note, and pays 1) two and a half per cent, commis-
sion, this is a loan within the Statute of Usury, and
A's note is usurious and void.*
Evidence t hat It was the usage of trade to take
two and a half per rent, commission on the ex-
chanjjv of paper, is inadmissible; for usage is of no
avail, if the transaction comes within the meaning
of the Statute.*
It seems that a person may lawfully receive a
commission for becoming security for another.
It seems that the practice of the banks; of issuing
post notes is not, in itself, usurious.
Citations— Cowp., 113 : ICampb.. 177; 2 Cainph.,
590; 1 Bos. & P., 144.
THIS was an action of assumpsit, brought by
the plaintiff against the defendant, as in
doreer of a promissory note, dated the 8th of
May, 1812, drawn by Matthias & William
Ward, for $750, payable to the defendant ten
days after date. The cause was tried at the
New York sittings, in April, 1814, before Mr.
Justice Yates.
The note in question was one of several
notes executed by M. & W. Ward, dated the
8th of May, 1812, and payable to different per-
sons, at different periods ; in the whole amount-
ing to $9,000. These notes were delivered by
M. & W. Ward to the plaintiff, in exchange
for his notes, payable at different periods, and
amounting to the same sum of $9,000. This
exchange was made on the 8th of May, 181 2 ;
and M. & W. Ward paid the plaintiff, as a
commission for making the exchange, two and
a half per cent., amounting to $225, which
was paid, at the time, in money. It appeared
that M. & W. Ward, when this transaction
took place, were indebted to the plaintiff, for
borrowed money, in the xum of $4,000. On
the 7th of May, "the plaintiff wrote a letter to
one of them, couched in the following terms :
"If the sum borrowed is not returned, or some
person's check left, payable to-morrow, in
•whose signature reliance can be placed, and
that attended to before half past four o'clock,
this day, I shall take steps for the recovery of
' *8«e Kiee v. Muther, 3 Wend.. 62; Powell v. Wat-
ers, 8 Cow., Btifl; Dunham v. Oould (In error), 16
Johns.. 3K7: N. Y. Firemen Ins. Co. v. Ely, 2 Cowen,
67«: liunk of Utica v. Wager, M.,712.
+I)unhum v. Oould (in error), 10 Johns., 307.
NOT*.— Usury Law— Cannot lie eroded by commfe-
tloncn. See Dunham v. Dey, 10 Johns., 387, note.
JOHNS. RKP.. i;i.
it, which may be considered of an unpleasant
nature." The plaintiff, at this time, had a
judgment which had been entered up against
Matthias Ward, on a bond conditioned for the
payment of $20,000.
On the same, or the next day, M. Ward ap-
plied to the plaintiff for an advance in notes
of the plaintiff. The plaintiff asked what se-
curity he would give ; Ward then exhibited a
list of *names of persons whom he [*41
would get to indorse his notes, and gave as a
reason tor wishing the plaintiff's note, that he
could negotiate it better than his own ; and it
was understood that Ward was to negotiate the
plaintiff's notes to raise money, out of which
the debt of the plaintiff was to be paid ; and
it was accordingly paid on the 8th of May.1
It was testified that the application for the
loan of the notes was separate and distinct
from any other transaction.
Evidence was given as to the usage and cus-
tom of merchants ; and several witnesses were
examined, some of whom stated it to be usual
and customary to charge and receive two and
a half per cent., on the exchange of paper, on
advancing a responsibility ; but others knew
nothing of any such custom.
The judge charged the jury, that if they be-
lieved the the transaction between the plaintiff
and Ward to have been for the purpose of
raising money at a greater rate of interest than
seven per cent, per annum, which they were
warranted to infer, from the evidence before
them, then such intention made it intrinsically
a loan, and the transaction was usurious and
void ; that the evidence of usage was not suf-
ficient, and, if proved, that it could not pre-
vail against the existing law.
The jury found a verdict for the defendant.
A motion was made, on the part of the
plaintiff, to set aside the verdict, and for a
new trial.
*Mr. Hoffman, for the plaintiff. Thisis[*42
clearly not a usurious loan, within the words
1.— The notes given by M. & W. Ward, were as fol-
lows:
One note payable at 10 days af ter date (the
note in question), for ----- $750
One note payable at 20 days after date (the
note in question), for 760
one note payable M 30 days after date (the
notoin question), for ----- 750
One note payable at 40 days after date (the
note ill question), for - 760
One note payable at 50 days after date (the
note in question), for ----- 750
One note payable at BO days after date (the
note in question), for - - . 750
One note payable at 70 days after date (the
note in quest ion), tor ----- 750
One note payable at 80 days after date (the
note in question), for .... 750
One note payable at flO days after date (the
note in question), for ----- 750
One note payable at 100 days after date (the
note in question), for - 750
One note payable at 110 days after date (the
note in question}, for - 750
One note payable at 120 days after date (the
note in question), for .... 750
$9,000
For which Dunham gave, in exchange, his notes:
One note at 2 months for ... $2,250
" 8 ..... 2.250
4 ..... - 2,250
5 - - - - .-. •
$9.000
tfct
SUPREME COURT, STATE OF NEW YORK.
181 6
of the Statute ; nor does the transaction show
a shift or contrivance to get rid of the Statute.
It is no more than the charge of a regular
mercantile commission of two and a half per
cent. The banks often issue post notes, pay-
able at distant periods, for which they re-
ceive the amount in cash ; yet no person has
considered such a transaction as usurious,
within the meaning of the Statute. A com-
mission is often paid for becoming surety at
the custom house, or for indorsing bills of ex-
change. There was also, sufficient evidence
of a usage of trade to repel the charge of usu-
ry. All these considerations would have had
weight with the jury, if they had been permit-
ted ^to deliberate upon them; but the judge
was positive in his charge to them that the
transaction was usurious, that the evidence of
usage was not sufficient, and, if clearly
proved, would be of no avail.
Mes»rs. Wells and D. B. Ogden, contra. The
words of the Statute are broad enough to
reach this case ; but it is sufficient if it comes
within the intent and scope of the Statute.
This is a palpable contrivance to raise money
at more than the legal rate of interest. The
case of a surety or guarantee is not analogous.
That is not a loan. A commission for indors-
ing bills of exchange, which pass into foreign
countries, may be allowable as it is merely to
give credit to the bill. So post notes circulate
abroad, and do not return within the times at
which they are made payable. But if these
are usurious practices, they cannot justify
similar practices. To allow them would virtu-
ally be a repeal of the Statute.
In Parr v.Eiiason,! East, 92, an agreement on
discounting a bill to take another bill which
had time to run, as cash, was held usurious.
In Kent v. Lowen, 1 Campb., 177, the very
point was decided by Lord Ellenborough, that
a commission of two and one half per cent, for
accommodating another with an acceptance,
was usurious. The same point was, after
wards, decided by Le Blanc, J., in Ackland
v. Pearce, 2 Campb., 599. "In all questions
of this kind," Lord Mansfield observed in
Floyer v. Edioards, Cowp. , 112, "we must
get at the nature and substance of the trans-
action ; " and that where there is a loan of
money for more than legal interest, "the wit
of man cannot find a shift to take it out of
the Statute." Usage cannot be set up to avoid
the provision of a statute ; the evidence of
43*] usage, therefore, *cannot avail. It be-
comes the duty of the court to frown upon
such usurious practices.
Mr. T. A. Emmet, in reply. The usage is
universal and co-extensive with commerce to
allow a commission, on a lending of a credit,
guaranty or responsibility. True, such a
usage may be made, sometimes, to cover a usu-
rious transaction ; but the only question is,
has there been an attempt to evade the Statute.
The most enlightened writers on political
economy have questioned the utility of statutes
against usury ; believing it would have been
better to have left each individual case to a
court of equity to decide on the good con-
science of the particular transaction. The
legitimate object of the Statute, no doubt, is to
protect the ignorant, inexperienced and needy,
against the oppression of the rich, and the arts
524
of avarice. It ought not to be extended to
commercial dealings between merchants, who
understand each other, who calculate all the
advantages which are to result from their
various operations, and who know their own
interests too well to require any legislative aid
or protection.
This is a question as to a mere mercantile
transaction in the exchange of paper. The
plaintiff had no concern with the purpose for
which Ward wanted th« notes, nor with the
manner he intended to use them. It is a very
interesting and important question to the com-
mercial world, whether such an exchange of
paper is, in every case, to be considered "as a
cover for an usurious loan. To make it usury
there must be a loan, and a sum taken for a
forbearance of payment. This is not a loan ;
it is a mere barter or exchange of notes ; and
there may be a great difference in the value of
the things exchanged In barter, a party may
lawfully take boot. The note or thing is not to
be returned ; it is sold or exchanged ; and i t i&
like the exchange of a chattel. In a bona fide
commercial transaction, a merchant may re-
ceive a commission for lending his name or
credit, and taking the risk of payment ; what
is done with the note afterwards cannot affect
him. In Floyer v. Edwardst the distinction
was taken between a bona fide commercial
transaction, and a mere cover for usury ; the
former will be supported, though it exceeds
the established rate of interest.
These extra allowances, in trade, not being
for the forbearance of a loan, are not within the
words of the Statute ; and the *usage [*44
of trade is not so .much to show that they are
warranted, as to repel the presumption that
might, otherwise, arise, that they were, in truth,
paid as usury, though under the name of com-
missions, with a view to evade the Statute. (1
Bos. & P., 144 ; Ord. on Usury, 3d ed., 58, 59.)
SPENCER, J., delivered the opinion of the
court :
If the case was correctly submitted to the
jury, there is an end of the question ; for,
certainly, they have considered the transaction
as usurious. The plaintiff's counsel complain
that the judge, at first, permitted them to go
into evidence of usage, and then withdrew it
from the consideration of the jury ; and they
now insist that proof of usage was admissible,
to show that the transaction was not intended
as a cover for usury, and that the proof having
been given, the jury ought to have been
permitted to take it into consideration in
deliberating on their verdict. They further
insist that the transaction per se, is not either
within the letter or the mischiefs of the
Statute.
In Floyer v. Editards, Cowp., 112, Lord
Mansfield permitted an inquiry as to the usage
of the trade ; but he said the practice and
usage would avail nothing, if meant as an
evasion of the Statute, for that usage certainly
would not protect usury, but that it went a
great way to explain a transaction, and was, in
that case, strong evidence to show that there
was no intention to cover a loan of money.
These observations were applied to the case of
a sale, and, under the circumstances of that
case, it might have been proper, and probably
JOHNS. REP., 13.
1816
DUNHAM v. DEY.
44
was BO, to inquire into the usage of that partic- !
ular branch of business ; but it cannot be ad- ;
milted, as a general rule, that usage may, in all |
cases, be given in evidence; or that the usage, |
if proved, shall determine whether the Iran sac- !
lion is usurious or not. Every case must, in a '
great degree, depend on its own circumstances;
and Lord Mansfield lays down the rule, in the
case already cited, with much perspicuity and (
force; he says " it depends, principally, on the '
contract being a loaif; and the Statute uses the
words 'directly or indirectly;' therefore, in
all questions, in whatever respect, repugnant
to the Statute, we must get at the nature and
substance of the transaction ; the view of the
parties must be ascertained, to satisfy the
court that there is a loan and borrowing, and
that the substance was to borrow, on the one
part, and to lend, on the other ; and where the
real truth is a loan of money, the wit of man
cannot find a shift to take it out of the Statute.
4<>*]*If the substance is a loan of moneys noth-
ing will protect the taking more than five per
cent. ; aaci though the Statute mentions only 'for
loan of moneys, wares, merchandises or other
commodities,' yet any other contrivance, if the
substance of it be a loan, will come under the
word 'indirectly.'" It is impossible to con-
ceive a more just, sound and lucid exposition
of the Statute of Usury than the one given by
this really great man.
If, then, the evidence before the jury, in-
dependent of the usage, exhibited a transac-
tion; the substance of which was to borrow
on the one part and to lend on the other, at
a greater rate of interest than seven per cent,
per annum, and if this entered into the con-
coction of the bargain, then, undoubtedly,
the transaction was usurious, and the notes
were contaminated by it and void. In this
point of view the usage was properly laid
• out of the case, because it does not go to show
that the negotiation between the plaintiff and
W. «fc M. Ward was not a loan on one side and
a borrowing on the other; but its tendency
was to prove, admitting it to be so, that there
was a usage to lend and borrow at a higher
rate of interest than that allowed by the
Statute.
I perfectly concur in the opinion expressed by
the judge at the trial, that the evidence in this
case warranted the jury in inferring that the
transaction between the plaintiff and M. & W.
Ward was for the purpose of raising money at
a greater rate of interest than seven per cent.,
and that that made it, intrinsically, a loan, and,
therefore, the transaction was usurious and
void.
The testimony clearly shows that the object
of M. & W. Ward, in the exchange of the
notes, was to obtain the plaintiff's notes, for
the purpose of raising money on them, and
that his notes were considered better adapted
to that object than the notes which M. & W.
Ward gave in exchange ; and although the ;
witness declares that the exchange of the
notes was separate and distinct from the money
M. & W. ward owed the plaintiff, yet we
find that the plaintiff's notes were immediately
used by M. & W. Ward, to raise money on, I
and that the plaintiff was immediately paid
the $4,000 due to him. This debt, undoubt-
. edly, was distinct from the exchange of the ,
JOHNS. HKI'., 13.
notes, but we have a right to infer, and can-
not but believe that M. & W. Ward entered
into the arrangement under the pressure of
that debt, and that it was in the contemplation
of the parties that *the plaintiff should [*4O
be forthwith paid, out of the moneys to be
raised on his own notes by M. &. W. Ward.
The judge, to be sure, gave his opinion to
the jury on the evidence ; this, however, does
not derogate from the full weight and effect
of the finding ; the jury had a right to draw
their own conclusions from the evidence be-
fore them, and it is as fully their verdict as if
no opinion had been expressed by the judge.
In a doubtful case, or where the weight of
evidence is against the verdict, I do not mean
to be understood that, on a motion for a new
trial, some stress might not be laid on the cir-
cumstance that tin judge gave his opinion on
the evidence ; but in this case, I clearly think
no argument favorable to the plaintiff can be
drawn from that consideration.
Wrhy was not this a lending on the one part,
and a borrowing on the other, indirectly ?
We have the high authority of Lord Mans-
field that any contrivance, if the substance of
it be a loan, will come under the word "in-
directly." What is the difference between a
man's lending his notes to raise money upon,
taking more than legal interest, and lending
his money? I confess I perceive no other dif-
ference than this, that the borrower of the
notes must, probably, pay more usury to get
them converted into cash ; but the transaction
is, substantially, a lending of money ; and I
agree with the defendant's counsel, that if
this device be tolerated the Statute is judicially
repealed.
This very case has occurred in England,
and been decided by Lord Ellenborough and
Justice Le Blanc, in 1 Campb., 177, and 2
Campb., 599. In the first case, which was a
suit against the maker of a note for £153.-
15s., payable, in ninety days, to Messrs.
Coates&Co., and indorsed to the plaintiffs,
the defense was, that the note had been given
upon a usurious agreement between the maker
and payees ; and it was proved that Coates &
Co. agreed to accommodate the maker with
their acceptance at three months, upon receiv-
ing his note for the same sum at ninety days,
together with two and a half per cent, com-
mission. Lord Ellenborough held that there
was no color for a commission, and that the
two and a half per cent, must be considered
as usurious interest, and the commission a
mere cloak for usury. The defendant had a
verdict, and we do not find that the decision
was ever questioned. In the other case Judge
Le Blanc adopted the same principle, and
although the case was reviewed, his decision,
on that part, was not objected to.
*IIere I might conclude, but it is fit [*47
that notice should be taken of some arguments
used by the plaintiff's counsel, drawn from
what tliey consider analogous cases. It it said
that it is the usage for indorsers of bills of ex-
change, and sureties on custom house bonds,
to take a percentage for advancing their re-
sponsibilities. I see nothing improper in this .
there is no loan of money, directly or indi-
rectly, in either of these caws ; they come
neither within the terms or mischiefs of the
47
SUPREME COURT, STATE OP NEW YORK.
1816
Statute, and they are innocent transactions.
The practice of issuing post notes by the
banks is supposed to justify the taking com-
missions on advancing notes, under the cir-
cumstances attending this transaction. That
practice is extremely well considered in Ham-
mett v. Tea, 1 Bos. & P., 144, and Ch. J.
Eyre draws the distinction, with great accu-
racy, between what will and what will not
render such a transaction usurious. A person
applies to a banker to have a note discounted ;
the banker agrees to discount, and is ready to
pay the money immediately, after deducting
the interest for the time the note has to run ;
the applicant then asks for a post note, pay-
able at a future clay, for his own accommoda-
tion, and this is given him. Ch. J. Eyre
held this not to be usurious, and he consider-
ed it as two contracts, the one for a loan, and
the other independent of the loan, and for a
remittance ; but he held that, had the banker
imposed this remittance on the borrower, as a
term of the discount, it would have been usu-
ry ; and in this opinion the other judges con-
curred. This case shows, I apprehend, the
practice of the banks to be correct ; and it
fully shows that this transaction, in this case,
is usurious, because here the two and a half
per cent, was imposed as a term on M. & W.
Ward, and was part and parcel of the con-
tract.
The plaintiff, independent of the two and a
half per cent., was to derive considerable ad-
vantage from the transaction ; the notes he
took from M. & W. Ward fell due some time
before those he gave in exchange ; but it is
not necessary to inquire, whether that is also
usury, the other point being decisive.
Motion denied.
Affirmed— 16 Johns., 367.
Distinguished— 19 Johns., 161.
Cited in— 3 Wend., 65 ; 7 Wend., 602 ; 2 Hill, 640 ;
4 Hill, 219, 231 : 4 Denio, 266 ; 2 Johns. Ch., 193 ; 2
Sand. Ch., 153; 3 Sand. Ch., 259: 3 N. Y., 357; 31 N.
Y., 617; 2 Lans., 418; 34 Barb., 168 ; Edm., 373; 4
Bos., 329; 3 Le{?- Obs., 313; 5 Leg. Obs., 15; 31 N. J.
L., 207.
48*]
*NIVEN v. MUNN.
Declaration in Slander for False Swearing.
A declaration in slander, for charging' the plaint-
iff with swearing to a lie, as a witness on a trial, in
a justice's court, in which it is not stated that the
justice had jurisdiction, or that the testimony was
given upon a material point, is good ; at least after
verdict. The same certainty is not requisite as in
an indictment for perjury.
Citations— 1 Cai., 347 ; 1 Johns., 505 ; 8 Johns., 74.
THIS was a motion in arrest of judgment in
an action of slander, in which a verdict
was given for the plaintiff.
The declaration contained two counts ; the
first count stated that the defendant, in a certain
discourse which he had of and concerning the
trial of a certain cause between David Munn
and John Wilson, then lately had, before Sam-
uel Barnard, Esq. , a justice of the peace, in and
for the County of Sullivan; and of and concern-
ing the testimony of the plaintiff, who was
NOTE.— Slander— Charge of Perjury. See Hopkins
v. Beedle, 1 Cai., 347, note.
52G
sworn as a witness, by the said Samuel Barn-
ard (he being a justice as aforesaid, and hav-
ing full power and lawful authority to admin-
ister an oath), on the trial of the cause, and
testified as a witness therein, spoke and pub-
lished, concerning the plaintiff, these false,
scandalous, malicious and defamatory words:
" What he (meaning the plaintiff) has sworn
to is a damned lie " (meaning thereby, that
the plaintiff had perjured himself on the trial
of the said cause). 9
The colloquium, words charged, and innuen-
does, in the second count, were the same as in
the first.
Mr. Brackett, for the plaintiff, objected, pre-
liminarily, that the whole record ousrht to be
produced, and not the declaration merely, in
which the defect is alleged. (1 Salk 77 •
Tidd's Pr., 825.)
THOMPSON, Ch. J. It has not been the
practice, in this court, to produce the whole
record, but the declaration only, adding that
a verdict has been found for the party.
Mr. Betts, for the defendant. He cited 1
Caines, 349 ; 8 Johns., 109 ; Hawk. P. C. B.,
2, ch. 25, sec. 57 ; 1 Hawk. P. C., ch. 69 sec
4 ; 1 T. R., 69; 6 Johns., 82 ; 2 Chitt. PI
258 ; 4B1. Com., 137, 138.
Mr. Brackett, contra.
PLATT, /., delivered the opinion of the court:
*This is a motion in arrest of judg- [*49
ment, after verdict for the plaintiff, in an ac-
tion of slander.
I think both counts in the declaration are
good.
To say of another that " he has sworn false-
ly," or that "he has sworn to a lie," is not
actionable, without a colloquium of its being
in a cause pending. (Hopkins v. Beedle, 1
Caines, 347; Stafford v. Green, 1 Johns., 505.)
Here is a colloquium. The words "What
he has sworn to is a damned lie " are averred
to have been maliciously spoken in a discourse
"of and concerning the trial of a certain
cause between David Munn and John Wilson,
then lately had before Samuel Barnard, Esq.,
one of the justices of the peace, in and for the
County of Sullivan ; and of and concerning
the testimony of the said Niven, who was
sworn as a witness on the trial of the same
cause, by Samuel Barnard (he being a justice
as aforesaid, and having full power and law-
ful authority to administer an oath), and testi-
fied as a witness on the trial." All that is
wanting to render this a complete and formal
definition of perjury, is, 1st* That it is not
expressly averred that the testimony of Niven
was in a cause in which the justice had juris-
diction ; and, 2d. It is not expressly stated
that the testimony spoken of was upon a point
material in the cause.
But it was well said, in the cause of Miller
v. Miller, 8 Johns., 74, that "it is not neces-
sary, in order to render words actionable, that
there should be the same certainty in stating
the crime imputed, as in an indictment for
the crime."
The present case, I think, exemplifies the
truth of that proposition. The discourse to
which the words related was sufficiently ex-
planatory to effect the purposes of slander,
and such as could leave no reasonable doubt
JOHNS. EKP. ,
1816
BENNET v. JENKINS ET AI,
— ~T~mr
that it was intended, by the defendant, to ac-
cuse the plaintiff of perjury. Besides, the
averments are to be construed less strictly
after verdict.
The plaintiff is entitled to judgment.
Cited in- 5 Cow.. 506; 11 Wend.. 40 ; 3 Hill. 34; 3
Barb.. 630.
5O»]
*BE^STXET
JENKINS ET AL., Executors of JENKINS.
Cwentint* of Title — Breach of— Damage* — Con-
sideration Money, Interest and Cost* may be
Kecovond.
In an action of covenant by a grantee, who has
been evicted, on the covenants in his deed, the
damages which he is entitled to recover are the
consideration money, with interest tor such time as
he is liable for the mr*nf profits, and the costs of
the ejectment suit against him.*
Citations— 3 Cai., Ill ; 4 Johns., 1 ; 9 Johns., 324.
T>HIS was an action of covenant, on the
L covenants contained in a deed of bargain
and sale, and was tried at the Columbia Cir-
cuit, in 1814, before J/r. Justice Van Ness.
The deed, on the covenants in which the
action was brought, was executed on the 1st
of March, 1799. by the testator to the plaint-
iff, and contained the usual full covenants.
On the 1st of March, 1787, the testator con-
veyed the lot in question to one Coffin, who
subsequently, and before the above-mentioned
deed to the plaintiff, reconveyed it to the tes-
tator, having, however, in the meantime,
mortgaged it to the loan officers of Columbia
County. The plaintiff was evicted under a
judgment and execution in ejectment, at the
suit of Jackson, on the demise of Powers,
who delivered his title from the loan officers
of Columbia County, of which suit the de-
fendants had notice. The jury, under the
direction of the judge, found a verdict for
the plaintiff for the consideration money, six
years' interest and the costs of the ejectment
suit. It was admitted that the plaintiff had
erected a valuable brick house on the prem-
ises, and that the highest measure of damages
would not compensate him for his loss ; a case
was made, stating the above facts, subject to
the opinion of the court on the question as to
the rule of damages.
Mr. E. William*, for the plaintiff, contend-
ed that the plaintiff was entitled to the value
of the premises, at the time of eviction, in the
same manner a- if it had been an action on
the case against the testator, the grantor
knowing, at the time of the conveyance, the
defect in his title, in which case the court, in
Pitcher v. Livingston, 4 Johns., 1-12, intimated,
that in an action grounded on the fraud or
deceit, the plaintiff would recover the full ex-
tent of hi- loss. He claimed, also, interest
from the date of the deed.
Mr. Van Buren, contra. He cited 8 Caines,
111, and 9 Johns., 824.
•Baldwin v. Munn. 2 Wend., 399; Wager v.
Schuyler. 1 Ihid., 553.
NOT*. — Breach of covenants of warranty. See
Staat* v. Ten Eyck. 8 Cmi., Ill, note.
JOHNS. RKP., 18.
Per Curiam. The question submitted to
the consideration of the court, in this case, is,
t<> ascertain the rule or principle *upon [*S1
which the damages are to be estimated. The
action is covenant upon a deed, given by the
u-tator to the plaintiff, dated the 1st of March,
1799, containing, as stated in the case, full
covenants. The testimony shows a breach of
the covenants of seisin, and for quiet enjoy-
ment.
According to the principles heretofore estab-
lished in this court, it is clear that neither the
increased value of the land, nor any improve-
ments made thereon, are to be taken into con-
sideration. (8 Caines, 111 ; 4 Johns., 1.) It
is also settled by these cases that the consider-
ation money, and the costs of the ejectment
against the grantee, are recoverable. The
only point which seems to be in any measure
undecided is as to the time for which interest
upon the consideration is to be recovered, and
even as to that, the rule is easily inferred
from what is said by the court in those cases.
The allowance of interest is to countervail the
claim for mesne profits, to which the grantee
is liable. And, in the case of Stoats v. Exe-
cutors of Ten Eyck, it is said the interest ought
to be commensurate, in point of time, with
the legal claim to mesne profits. In the case
of (Jaulkin, Executor, &c., v. Harris, 9 Johns.,
824, six years' interest only was allowed, al-
though the grantee had been in the enjoyment
of the land, and taken the mesne proffts for
fifteen years. The reason why no more inter-
est was allowed, doubtless, was because the
grantee might protect himself against a re-
covery for mesne profits for any greater length
of time. The time of the eviction in the case
now before us, or how long fthe plaintiff had
been in the enjoyment of the land, does not
explicitly appear. The judgment must, how-
ever, be for the consideration money paid, and
the interest thereon, from the date of the dn-d
from the loan officers to Powers, provided it
does not exceed six years, together with the
costs -of the ejectment suit against the plaintiff.
Judgment for the plaintiff, accordingly.
Cited in-1 Wend., 554 ; 2 Wend.. 405 ; 10 Wend.,
149 ; 14 Wend., 41 ; 24 Wend.. 444 ; 10 Paige, IffiJ ; 6
Barb., 649 ; 2 Leg. Obs.. 207 ; 32 Wis., 095.
MiRAMAN v. HESS.
[*52
Negotiable Paper — Equities Between Indorsee
and Immediate Indorser.
Where, on the indorsement of a note, the con-
sideration passing betwoen the indorsee and lite in-
doraer is not equal to the amount of the note, the
indorsee, in an action against the indorser. can only
recover the consideration which he has actually
paid.*
Citations-1 Esp. Cas., 261 ; 7 Johns., 361 : 2 Cai.,
248.
TMIIS was an action of a**ump*it by the in-
J. dorsee against the indorser of a promis-
sory note ; the cause was tried at the Mont-
gomery Circuit, in 1815, before J/r. Justice
Yates.
•See Wright v. Butler, 6 Wend., 284; Munn v.
Commission Co.. 15 Johns., 44 ; Powell v. Waters. 17
Johns., 176; Baker v. Arnold, 3 Caines, 279.
m
-52
SUPREME COURT, STATE OF NEW YORK.
1816
The note was for $343.25, and was drawn
by one Edward Williams, Jr., in favor of the
defendant and John Yerdan, and by them in-
dorsed to the plaintiff. The defendant offered
to show, in mitigation of damages, that the
transfer of the note, by the indorser to the in-
dorsee, was made on a discount of $90 ; but
the judge rejected the evidence, and a verdict
was given for the plaintiff for the full amount
of the note, with interest.
The defendant moved for a new trial, and
the case was submitted without argument.
Per Curiam. The evidence offered on the
part of the defendant ought to have been re-
ceived, according to the principle which
governed the case of Wiffin v. Roberts, 1 Esp.
Cas., 261, and which was adopted and sanc-
tioned by this court in Brown v. Molt, 7 Johns.,
361. This suit is by the indorsee against his
immediate indorser. And in the case of
Livingston v. Hastie & Patrick, 2 Caines, 248, it
is explicitly laid down that the payee will be
allowed, against the drawer, and the indorsee
against his immediate indorser, to show what
was the real consideration passing between
them. If this suit was by the indorsee against
the maker of the note, it would not lie in his
mouth to say the plaintiff purchased it at a dis-
count ; but as the defendant was the immedi-
ate indorser of the plaintiff, the proof offered
that the note was purchased for $90, under the
face of it, should have been admitted. A new
trial must, therefore, be granted, unless the
plaintiff will remit the $90, and the 'interest
which has been recovered thereon.
Cited in— 15 Johns., 56; 7 Wend., 570; 21 Wend.,
593; 4 Hill, 482; 10 N. Y., 200; 4 Barb., 503; 9 Barb.,
651 ; 13 Barb., 47 ; 36 Barb., 588 ; 63 Barb., 218, 225 ; 4
E. D. Smith, 214; 3 Cranch, C. C., 310 ; 6 Me Lean,624.
53*] *THORPE v. WHITE ET AL.
Contracts — Hiring far Definite Time — Action on
Note 'in Payment of Past Service.
Where there is a contract of hiring for a definite
period of time, at a certain rate per day, and a part
only of the time having elapsed, the parties settle
the amount of the wages which had then been earn-
ed, and the hirer gives his note to the servant for
the amount ; in an action on the note, it is no de-
fense that the payee had left the maker's service
before the expiration of the time for which he had
been originally hired ; although, had there been no
subsequent modification of the agreement, he could
not have recovered wages until he had served the
whole period agreed upon.
Citation— 12 Johns., 165.
THIS was an action of assumpsit, which was
tried at the Albany Circuit, in October,
1815, before Mr. Justice Yates.
The plaintiff produced, at the trial, a promis-
sory note, executed by the defendants, which,
being admitted, the counsel for the defendants
offered to prove, under the notice subjoined
to the plea, that the defendants being the
owners of a cotton manufactory, the plaintiff,
who was a joiner, about three months before
the execution of the note, entered into their
service, and it was agreed that the defendants
NOTE.— Entire contracts— Full performance a con-
dition precedent to recovery on. See M'Millan v.
Vanderlip, 12 Johns., 165, note.
-628
should instruct the plaintiff in the making of
the machinery necessary and proper for the
said manufactory, and should pay the plaint-
iff at the rate of $1 per day for one year, for
his wages in making the same ; in consider-
ation whereof, the plaintiff agreed to work for
the defendants for one year al that rate, and it
was further agreed that the defendants should
settle with the plaintiff at the end of every
three or four months ; that at the expiration
of about three months fuom the time the agree-
ment was entered into, the parties computed
the amount then due for the plaintiff's services,
at the stipulated rate, and the note on which
the action was brought was given for the
amount ; and shortly afterwards, the plaint-
iff left the service of the defendants without
their consent. The evidence being objected
to on the part of the plaintiff, was rejected by
the judge, and a verdict was given for the
plaintiff.
The defendants moved for a new trial, and
the case was submitted to the court without
argument.
Per Curiam. According to the principles
adopted by this court, in the case of M'Millan
v. Vanderlip, 12 Johns., 165, the original con-
tract between the parties was an entire con-
tract ; and if there had been no subsequent
modification, the plaintiff could not have re
covered upon it until the expiration of the
year. But the giving of the note in question,
by the defendants, was, pro tanto, a change or
modification of the original agreement, and
precludes them from setting up the original
*agreement against their own note. [*54
The evidence offered was,, therefore, properly
overruled, and the motion for anew trial must
be denied.
Motion denied.
Criticised— 1 E. D. Smith, 73.
Cited in— 19 Johns., 341 ; 13 Wend., 260; 17 N. Y.,
185 ; 29 N. Y., 378 ; 41 Barb., 545 ; 2 McLean, 186.
WINTER v. LIVINGSTON.
Promissory Note — Failure of Consideration.
A executes certain promissory notes to B, and
procures land, of which he is the cestui que trust, to
be conveyed to B, under an agreement that B, on
the payment of the notes, should reconvey the
land ; the notes not being paid, and B having exer-
cised acts of ownership on the land, by selling, &c.,
he cannot support an action on the notes, there
being a failure of consideration ; and the agree-
ment being void on the non-payment of the notes,
if B elected so to consider it ; and, by exercising
acts of ownei-ship, he had determined his election,
and had a complete title to the land.
S was an action of assumpsit on three
JL promissory notes, made by the defendant in
favor of the plaintiff, dated June 1st, 1803, one
payable eleven months after date, for $10,000,
one payable twenty-three months after date
for $5,000, and the other thirty-five months
after date for $7,549.07. The cause was tried
at the New York sittings, in April, 1815, be-
fore Mr. Justice, Van Ness.
The due execution of the notes having been
admitted, the defendant produced, in evi-
dence, a certain instrument executed by the
plaintiff, which was as follows :
JOHNS. REP., 13.
1816
WILT v. OGDRN.
I
"Know all men by these presents, that I
Joseph Winter, of the City of New York. Esq.,
for myself, «fcc., do covenant and agree to, and
with Edward Livingston, of the same place.
Esquire, that provided he, the said Edward
Livingston -hall well and truly pay to me.
&c., the full amount of three several promis
sory notes (describing them, being the notes
above mentioned), that then, and in such case,
and not otherwise, I will convey to the said
Edward Livingston, and his heirs, in fee sim-
le, a tract of land this day conveyed to me
y Thomas Maule. of the City of New York,
being the residue of a tract of land granted to
him by patent, dated, &c.t after deducting
20.078 acres, conveyed, &c., which residue is
said to contain 25.000 acres ; but it is hereby
expressly declared to be the intent of the parties
hereto, that if the said several notes, or either
of them, shall not be paid at the several times
when they, or either of them, ought to be
paid, that then this covenant shall be void and
of no effect. And it is also agreed that all
such sums of money as shall be received for
sales of the said lands by settlers, by an agent
to be appointed, jointly, by Joseph Winter,
Edward Livingston and Thomas Maule (to
whom the land is mortgaged by J. Winter),
65*] *shall be credited on Winter's bonds
and mortgage to Maule, and on Edward
Livingston's notes above recited. The lands,
on the payment of the notes, to be conveyed
free from incumbrance created by Joseph
Winter, or anyone claiming under him. In
witness," «fec. Signed J. Winter, and dated
the llth of July, 1803.
It appeared that Livingston, the defendant,
being indebted to Maule in a large sum of
money, and Maule holding, for the defend-
ant's use, a tract of land on Lake Champlain
(to which land the defendant was entitled, but
ihe patent had been taken out in Maule's
name), it was agreed between the defendant
and plaintiff, that the plaintiff should become
responsible to Maule for the defendant's debt,
on his receiving a conveyance from Maule of
the said tract, but that the defendant should
have a reconveyance, on his paying to the
plaintiff the sum of $3,125 over and above the
sum due to Maule. The agreement, being the
one above stated, was reduced to writing, and
Winter gave his obligations to Maule for the
sum so due, with interest, payable in six,
twelve, twenty-four and thirty-six months;
and the defendant executed, and deliveied to
the plaintiff, the notes on which the action
was brought, which fell due. except the first,
each one month prior to the time fixed for the
payment of the several sums to Maule. On
the llth of August, 1803. the plaintiff and de-
fendant appointed George Lyon their joint
agent, to contract for the sale of the land, who
removed to and resided upon or near the land,
until 1807. The contracts with the settlers
were made in the joint names of Winter and
Livingston. In October, 1804, the plaintiff
himself went on the land, and, whilst there,
canceled the contracts made by the agent in
the joint names of Winter and Livingston, and
gave deeds and took mortgages for the land
conveyed, in his own name, and from that
time held himself out, and acted as the sole
proprietor of the land, and on the 13th of
JOHNS. REP., 18. N. Y. R., 5.
March, 1807, conveyed large portions of the
tract to two different persons, and assigned
them the bonds and mortgages which had been
taken on the sale of parcels of the land includ-
ed in their deeds. The judge thinking that
the consideration for the notes had failed, the
plaintiff was nonsuited, and it was now moved
to set aside the nonsuit.
Mr. D. B. Oyden for the plaintiff.
*M«**r». Hoffman and Antfwn, contra. [*5B
Per Curiam. The motion for a new trial
must be denied. The facts in the case clearly
show that no consideration has been paid for
the notes. Without going into a minute detail
of these facts, they will, on examination, be
found satisfactorily to show that the defend-
ant being indebted to Thomas Maule in a large
sum of money, a patent for land, to which the
defendant was entitled, was taken out in
Maule's name ; and by a subsequent arrange-
ment between the parties, these lands were
conveyed by Maule to Winter, on his becoming
security for the debt which the defendant
owed to Maule ; and the notes in question
were given as the consideration for the re-
conveyance of the land by Winter to Livings-
ton, according to the covenant entered into
between them. By this covenant, however, it
was provided that the agreement was to be
void, unless Livingston paid his notes as they
fell due. He did not pay them ; and, of course,
the agreement was void, if Winter elected so
to consider it. And the case fully shows that
he availed himself of this forfeiture, for he
went on and sold the land for his exclusive
benefit, and Livingston has, therefore received
nothing for his notes ; and Winter has a com-
plete perfect title to the lands.
Motion denied.
Cited in-5 N. Y., 342 ; 3t Ohio St., 312.
WILT AND GREEN v. OGDEN.
Contract — Non-performance — Defendant, under
General Iswe may Show Offer to Perform.
Where an action Is brought for the non-perfor-
mance of a contract, the defendant may show, un-
der the general issue, that he offered to perform hi*
part of the contract, but was prevented by the act
of the plaintiff.
Where A. sells and delivers goods to B. for which
R is to pay in work and labor, and A brings an ac-
tion against I) on the agreement, which is defeated,
by the proof that li ha<i offered to perform his part
of the ngreeiiH'iit. but was prevented by the act of
A, A will not be permitted to waive the agreement,
and recover back from B the orig inal consideration.
Citation— 1 Chit, on Plead., 472.
THIS was an action of OMgumpsit, which was
tried at the Tioga Circuit, in June, 1815,
before Mr, Justice Vales.
The plaintiffs declared on an agreement or
promissory note, made by the defendant to
>ay the plaintiffs $270, in drawing plaster, at
&4-&0 per ton, from Quiggs, in Ithaca, to Owego,
ind also for goods sold and delivered.
*The execution of the note having [*57
>ecn admitted, the defendant, at the trial, of
'ered to prove that he had been to one Quiurgs,
11 Ithaca, for the purpose of drawing the plus
er but that the plaintiffs had no plaster there.
34 :,•_".»
57
SUPREME COURT, STATE OF NEW YORK.
181$
The plaintiffs' counsel objected to the testi-
mony, on the ground that it was inadmissible
under the general issue, but the objection was
overruled by the judge ; and the defendant
proved that when he called on Quiggs, for the
plaster, he declined delivering it ; that after
wards it was taken away by the plaintiffs,
and, on the defendant's calling again for the
plaster, it had all been delivered. The judge
gave it as his opinion that, upon this evi-
dence, the plaintiff could not recover upon the
note.
The plaintiffs then offered to prove that the
original consideration of the note was for a
pair of hordes, sold by the plaintiffs to the de-
fendant, and, offering to abandon the counts
on the note, claimed to recover the value of
the horses on the other counts ; but the judge
refusing to admit evidence for that purpose,
the plaintiff suffered a nonsuit, with leave to
move the court to set it aside.
The case was submitted to the court without
argument.
Per Curiam. The principal question, in this
case, is, whether the defense set up on the
part of the defendant, and received by the
¥' idge, was admissible under the general issue,
he note upon which the action is founded
was to be paid in drawing plaster from Ithaca
to Owego, and the defense was an offer of
performance on the part of the defendant.
Prom the testimony it very satisfactorily ap-
peared that everything was done by the de-
fendant, which could be required of him,
towards a performance of his contract, and
that the nou-performancc was attributable
solely to the neglect or default of the plaint-
iffs. This defense was proper and admis-
sible under the general issue ; it went to
show that the plaintiffs never had any cause of
action against the defendant. The contract
necessarily implied that the plaintiffs were to
have the plaster at Ithaca, ready to transport.
This was in the nature of a condition pre-
cedent, and, from the evidence, it appears not
only that the defendant went repeatedly for the
purpose of transporting the plaster, the delivery
of which was refused, but that for some weeks
before the expiration of the time limited
for the performance, the plaintiffs had no plas-
ter at Ithaca. Any matter which shows that the
plaintiffs never had any cause of action may
58*] be *given in evidence under the general
issue ; and, at this day, most matters in dis
charge of the action, which show that, at the
time of the commencement of the suit, there
was no subsisting cause of action, may be
taken advantage of under this issue. (1 Chit,
on Plead., 472.) If the evidence was admis-
sible under the general issue, it is not pretend-
ed that it did not amount to a defense against
the counts upon the note itself ; and if so,
there can be no color for the claim of the
plaintiff to waive the note and recover back
the original consideration. Here is no failure
of proof of the special contract : it is proved
precisely as laid in the declaration ; and to al-
low the plaintiffs to waive it, and to recover
back the consideration, would be permitting
them entirely to change the contract, and re-
cover in money when payment was to be made
in the performance of services ; and this, too,
without any default on the part of the defend-
ant.
Judgment of nonsuit must, therefore, be entered
according to the stipulation in the case.
Cited in— 15 Johns., 231 ; 5 Cow., 498; 12 Wend...
388 ; 22 Wend., 582 ; 2 Hill, 480 ; 3 N. Y., 91 ; 5 DueiC
392 ; 1 Leg. Obs., 122 : 2 McLean, 186.
MAURI «. HEFFERNAN.
1. Action by Surety against Principal — Evidence
— Copy of Obligation — Admi»idon» of Prin-
cipal of Authenticity — On Breach of Contract
Surely may Pay without Suit and Recover.
2. Agency.
The defendant entered into an obligation with the
plaintiff, as his surety, at Caraccas, which not be-
ing performed, the plaintiff, the surety, was com-
pelled, by proceedings at law, to pay the amount
for his principal ; in an action by the surety against
the principal it was held that a copy of the obligation
(which, according to the laws of the Spanish colon-
ies. was made before a notary, who kept the orig-
inal and delivered copies to the parties), authen-
ticated according to the laws of Spain, connected
with evidence that the original could not be pro-
cured, and with proof of admissons, by the defend-
ant, of its authencity, and of the breach of the con-
tract, was sufficient without producing the decree
against the plaintiff, and the original obligation.
or a sworn copy of it.
Where a contract has been broken, the surety
may pay the money without suit, and recover
against his principal.
A party who would excuse himself from respon-
sibility, on the ground that he acted as the agent of
another, ought to show that he communicated to
the other party his situation as agent, and that he
acted in that capacity, so as to give a remedy over
against his principal.
Citation— 2 Johns., 452.
was an action of aszumpsit, brought to
-L recover money paid by the plaintiff, as
surety for the defendant. The cause was
tried at the New York sittings, in May, 1815,
before His Honor, the Chief Justice.
The defendant entered into a contract with
the royal administration of tobacco, at Carac-
cas, for the purchase and exportation of a
large quantity (one thousand five hundred
quintals) of tobacco, which was an article of
royal monopoly, and could only be purchased
from the government, or its agents. He, after-
wards, executed a bond or obligation, with the
plaintiff as his surety, to the royal administra-
tion, to secure the payment of the value of
nine hundred and fifty-six quintals and ninety-
three pounds tobacco, described in the bond as
the remainder *of the one thousand five [*5J>
hundred quintals previously contracted for.
The bond was as follows : " In the City of
Caraccas, on the 18th day of. November, in
the year of our Lord 1805, before the chief
notary of the administration of tobacco, and
before the witnesses hereunder written, per-
sonally appeared in his dwelling house, Don
Pedro Edwardo, of this place, merchant, to
me known, who declared that Mr. John Hef-
fernan, citizen of the United States of America,
and resident in the port of Laguira, hath con-
stituted him his attorney for the execution of
this written instrument, which he is to execute
with Don Jose Mauri, his surety, or with his
certain attorney, in his name, to answer for the
value of nine hundred and fifty-six quintals and
ninety-three pounds of dry cured tobacco, now
JOHNS. REP.. 13.
1916
MAURI v. HEHXERNAN.
59
in Puerto Cabello. the remainder of one thous- 1
and five hundred quintals contracted for with
the administration, by said Heffernan, on the
18th day of July, in the present year, for the
value of which" he is to answer in one month
from the date of this instrument of surety,
which said power of attorney he has exhibited
to me, and which is as follows, to wit: (Here
the power of attorney from Heffernan to
Ivhvardo is set forth in hoe terba.) Don Jose
Carbonel, also personally appearing, said that
Don Jose de Mauri, having become surety for
the aforesaid Heffernan, has given to him a
power, constituting him his attorney for the
execution of said written obligation and deed,
which he exhibited to me, and whose tenor is
literally as follows: (Here the power from
Mauri to Carbonel is set forth.) And making
u>e of the faculties by said powers upon them
conferred, in the names of their principals,
they renounce, &c. (the benefit of certain
laws); and Don Jose Carbonel, in the name of
Don Jose Mauri, said, that he recognizes and
constitutes him such security and principal
payer of the sum to which the aforesaid nine
hundred and fifty-six quintals and ninety-
three pounds of tobacco, dry cured, may
amount, binding him jointly with Mr. Heffer-
nan, who to the same is bound by his attorney,
Don Pedro Edwardo, jointly, and in goUdttm,
to be paid, in case of non-compliance with the
stipulations of the contract aforesaid, renounc-
ing, as they have expressly renounced in the
names of their principals, and under the con-
ditions stipulated, which are: first, that the to-
bacco aforesaid shall be exported as soon
as possible. Second. That the said tobacco
shall be examined, weighed, and marked, as
quick as possible, in the stores of the King,
the dangers of robbery and fire being on ac-
count and risk of the royal administration ;
and on account and risk of their principals, the
OO*] damage *which may occur to said article
from their delay in exporting it, together with
storage. Third. That within ten days after the
delivery of said tobacco for loading, the value
of which shall appear from the invoice»to be
made out at the time of the acknowledgment
and delivery must be paid. Fourth. That in
case government should prohibit the entry of
the vessel, which is to come in ballast, to take
off the remainder of the tobacco in Puerto
Cabello, that then all responsibility shall cease,
and the contract shall also be considered null,
and the royal administration be answerable
for the damages thereby occasioned, under
which conditions, and the terms aforesaid.
Don Pedro Edwardo, and Don Jose Carbonel.
renounce, &c. . (the benefit of certain laws).
For the due observance of which the aforesaid
Don Pedro Edwardo, and Don Jose Carbonel,
bind the persons of their principals, their prop-
erty and effects, which they now have, or
which they may in future acquire, granting,
in the names of their principals, full power, as
i-; l>y law required, to the judges and justices
of His Majesty, to compel them to the due ob-
servance and fulfillment of this instrment in
writing, by executive measures, as if judgment
were already given thereupon, renouncing, &c.
In testimony whereof they executed and signed
the same for their principals, in the presence
of Manuel Lopez, Don Pedro Guzman and
JOHNS. REP., 18.
Don Juan Hustado, of this place, and which I
attest. Pedro Edwardo, Jose Cardonel. Be-
fore me, Matteo de Amitesarona, notary of the
Royal Administration."
Six or eight months after the execution of
this obligation, a decree was passed against
the plaintiff, by the Intendant, for the amount
of the tobacco specified in the contract, and by
the influence of the plaintiff's friends, the ex-
ecution of the decree was delayed for two
years; when the plaintiff, being informed by
the King's assessor, that it was impossible
longer to delay the execution, presented a pe-
tition to the Intendant for leave to pay the
amount by monthly installments, ana, in the
meantime, to be allowed to export the tobacco.
On this petition it was ordered that the plaint-
iff be permitted to export the tobacco upon
giving further security for such payments,
whereupon Roman Perez de la Portella was
offered and accepted as security, and Joseph
Paccanius Y. Nicolan (whose deposition was
read at the trial), at the plaintiff's request, un-
dertook to pay the installments as they might
fall due, and he accordingly did pay into the
Royal Treasury, in five different installments,
the sum of $20,518 and seven reals, in dis-
charge of the said obligation ; the last of which
•payments was made the last of August, [*<$!
or beginning of September, 1808. The dis-
charge of the bond was as follows :
"Caraccas, 17th day of September, 1808. On
this day, before me, at the request of Don
Jose Mauri, His Excellency the Intendant,
with the advice of the Assessor-General, or-
dered the instrument in front to be canceled,
said Mauri having paid the sum of $20.518
and seven reals, which thereby appears to be
due by John Heffernan, and said Mauri paid
the sum, as security, according to the repre-
sentation of the Administrator-General ; and
that the same may be no longer of any force,
I note the payment thereof, in conformity
with a decree issued this day ; which docu-
ments will be found in the bundle of vouch-
ers which I sign and attest. Amitesarona,
Notary. It agrees with the original, which is
in the register, under my care ; and to deliver
the same to the concerned, I caused this copy
to be made, which I sign in Caraccas, on the
26th day of September, in the year 1808.
Matteo de Amitesarona, Chief Notary of the
Royal Administration." " We, citizens Jose
Fefis de Arauda, Treasurer to the Army, and
Diego Jugo, Minister of the Revenues, in
this port, and Andres Martinez. Fiscal Notary,
&c., certify, that citizen Matteo Amitesarona,
by whom the preceding documents are author-
ized, is the Chief Notary of the administration
of tobacco, and that to his instruments entire
faith and credit are given, both in courts of
judicature and elsewhere. In testimony where-
of, the present is given, in the port of Laguira,
on the 1st day of November, 1811. JoseFcliz
de Arauda, Diego de Jugo, Andres Martinez."
On the bond and cancelment being produced
at the trial, the defendant's counsel objected
that the original obligation ought to be pro-
duced and proved, or that a copy, sworn to,
and compared with the original, should be
produced. The plaintiff, thereupon, proved,
by Don Mariano Velasquez, who had received
the degree of doctor in the civil law, at Mad-
M1
Cl
SUPREME COURT, STATE OF NEW YORK.
1816
rid, that, by the laws of Spain, and her colo-
nies, all contractsare executed before a notary,
and remain with him of record, who gives to
the parlies certified copies, under his signa-
ture ; that the copies, thus authenticated, are
read in all courts and tribunals where the
Spanish laws prevail ; and if used in the place
where the notary resides, his single attestation
is sufficient ; but, if used in other places, his
attestation is verified by the attestation of two
other notaries, or two King's officers, who cer-
O2*] tify the notary's *handwriting. The
witness staU d that the paper produced was in
due form, according to the laws of Spain, and
her provinces, to entitle it to be read in evi-
dence in the Spanish courts. The Chief Jus-
tice permitted it to be read in evidence. There
was other evidence as to the law of Spain, on
this point, as to the authenticity of these docu
ments, and of the signatures to them, which it
is unnecessary to state.
Paccanius, in his deposition, in addition to
the foregoing facts, stated that being about to
come to the United States, he was charged with
the adjustment of the plain tiff's claims against
the defendant, and soon after his arrival at
New York, had several personal interviews
with the defendant, on the subject, and left
with him the plaintiff's account, containing a
charge of $20,518.87, paid to the royal admin-
istration of tobacco at Caraccas, as security
for the defendant. In these conversations the
defendant did not dispute the justice of the
plaintiff's claims, nor question the accuracy of
any of the items contained in the account, and
acknowledged that the plaintiff had entered
into the contract as security for him ; but in-
sisted that, in all the transactions relating to
the tobacco, he had acted as the agent and on
the behalf of Frederick Baker, and that the
plaintiff ought to look to Baker for payment.
The deponent exhibited to the defendant,
among other papers, which, on examination,
he admitted to be genuine and authentic, the
copy of the bond, &c., which was given in ev-
idence. In the course of the con versa lion, the
defendant told the deponent that he had not
sent a vessel to take away the tobacco, being
apprehensive that she would not be admitted,
oh account of Miranda's expedition.
The deposition of Juan Yellas Y. Ferra con-
firmed the statements, in Paccanius' deposition,
respecting the tobacco contract, and the pay-
ment of it, and mentioned similar admissions
which had been made by the defendant to him;
and also stated that the plaintiff sold the to-
bacco, after he had kept it for a long time, to
a Mr. Denker, of St. Thomas, pursuant to the
advice of respectable merchants. In the year
1807 or 1808, the deponent went to St. Thom-
as, on his own business, and carried with him
an order from Mauri, on Denker, for the price
of the tobacco ; but it was publicly understood,
at that time, that Denker had failed. Denker,
afterwards, however, paid a part to Mauri's
nephew, who was sent by Mauri, for the pur-
pose. The deponent also stated that he had
4>3*] no reason to imagine that *the plaintiff,
when he became surety for the defendant,was
acting in the behalf of John Serra (who was
alleged by the defendant to have been the
principal in the transaction), or that the money
that the plaintiff was compelled to pay, was
632
paid out of the funds of Serra, or that the
plaintiff was, in any manner, indemnified by
Serra.
The plaintiff produced in evidence certain
letters from the defendant to the plaintiff — in
one of which, dated February 7th, 1806, the
defendant says: "I shall dispatch, towards
the end of this present month, a vessel, if cir-
cumstances will permit, for the rest of the to-
bacco that I contracted for in Puerto Cabello ;
but, at all events, I shall take care to indemni-
fy you from your suretyship to the royal ad-
ministration of tobacco." In that of the 6th
of January, 1808, he says : •' I am very sorry
that you and Don Pedro Edwardo have not
annulled the contract that I foolishly signed
for the sake of Don Juan Serra. My friend,
be under no apprehension that you will, in any
manner, suffer in the affair, notwithstanding
that you were the agent or attorney of Serra :
I am, and will be, the only victim." In an-
other letter, of the 23d of June, 1810, he says :
"At your convenience, you will do me the
favor to inform me in what manner the affair
of the tobacco, that they so perfidiously threw
upon my shoulders, was adjusted, and whether
you had to pay anything, and how much ;
for, probably, before many months elapse,
you will see me in your City ; or, otherwise, I
shall find a person, in whom I have full confi-
dence, to see you, for the purpose of settling
and clearing up the unfortunate affair, and of
claiming from the contractors what they owe.
Repetitions are useless ; but you will perfectly
remember the manner in which they deceived
me, when, in presence of yourself and Don
Manuel, the contract was made with Don Juan
Serra, in his own name, and in that of the in-
tendant and Linares, for two cargoes, which I
afterwards sent, consigned to you, as agent or
attorney of Serra, and according to agree-
ments, presuming that they would perform it
with good faith."
On the part of the defendant, the deposition
of Francis Gongales de Linares was read ; the
deponent, stated that he was acquainted with
John,Serra, of Caraccas ; that, in the month
of July, 1805, according to the best of his rec-
ollection, Serra departed on a voyage from
Laguirato Old Spain, and afterwards returned,
but, during his absence, the plaintiff acted as
his agent ; *and that the plaintiff was the | *64
agent of Serra, generally, at Lagnira. [These
facts were confirmed by the depositions pre-
viously read on the part of the plaintiff.] That
the defendant was at Caraccas some time in
the month of June, or July, 1805 ; that, soon
after, the defendant left Caraccas, on a voy-
age to New York ; the object of which was,
as the deponent understood, to take from Ca-
raccas to New York colonial produce, in
which the proceeds of a certain shipment,
made by Baker and English, of New York,
was invested : and that the defendant acted as
the supercargo of the said shipment, and as
the agent of Baker and English. The depo-
nent recollected the arrival of the ship Cathar-
ine at Laguira, from New York, in the sum-
mer of 1805, with, as he understood, a cargo
of dry goods, consigned either to the plaintiff,
or Serra, as his agent ; he did not know who
was the consignor ; the ship was not imme-
diately permitted to enter, but was, for some
JOHNS. REP., 13.
1816
MAURI v. HEKKKUXAX.
64
diiys, prevented, in consequence of the port j
bain?, at Unit time, shut against the admission
of foreign vessels. The deponent remembered
the arrival of the ship Stranger at Laguira,
from New York, with a cargo of merchandise,
some time in the month of July, 1805. which i
was consigned either to Serra. or the plaintiff,
as his agent ; but he did not know who the
consignor was ; nor did he recollect whether
the ports were open on the arrival of the
Stranger, but he thought that they were, and
that she was admitted immediately to enter.
There was a contract between the defendant,
Serra, and the deponent : to which contract
Serra represented to the deponent, the Intend-
ant at Curaccas, Don Juan Vicente de Arce,
was a party, the particulars of which he did
not recollect : but it was, generally, for the
importation of merchandise from tjhe United
Statt-s to Laguira, and the exportation of pro- 1
duce in return ; and it was agreed that, in case
the merchandise, or any part thereof, should \
arrive when the ports were shut, every facility
should be given to Heffernan, by the other
contracting parties, for its immediate admis-
sion. Two days after the contract was entered
into, the deponent declined any further par-
ticipation in it. The deponent stated that the
contract made respecting the tobacco was
entered into for the purpose of facilitating the
admission of the merchandise contemplated to
be imported into Laguira, in pursuance of the
before- mentioned contract. The deponent
understood from Serra, before he went to
Spain, that he had left the plaintiff full powers
O5*] to act *as his agent, generally, and that
those powers had particular reference to the
before-mentioned contract ; the defendant ap-
peared and acted, in these transactions, as the
agent of Baker and English. The cargoes of
the ships Catharine and Stranger were landed,
and put in the plaintiff's stores, and the
plaintiff had the general management in mak-
ing the sales.
The deposition of William M'Conehey was
read, in which he stated that in June, 1805, he
went out as supercargo of the Stranger, on a
voyage from New York to Laguira ; that he
was employed by Frederick Baker and Jacob
Barker, but that the papers were in the name
of Barker. The cargo was consigned to the
defendant, but the deponent was directed to
address himself to John Serra. The Stranger
was not permitted to enter the port until three
•lavs after her arrival : and on the deponent
asking the defendant how he came to be so
fortunate as to get permission for the ship to
••liter, he replied that he was obliged to go
through the formality of making a sham pur-
rh:is(; of tobacco. The cargo was received by
the plaintiff, whom the deponent understood
'o he- acting as agent of Serra. After the
Stranger hail delivered her cargo, she went
round to Puerto Cabello to take in some to-
bacco, as the deponent understood that it was
nc'Tssary to take in some, as a colorable com
pliance with the contract of purchase made by
tin- defendant; and they were not compelled
to take more than five hundred and twenty
<iuintals; and it was frequently intimated to
tin- deponent, by the King's officer, that he
need not take more than he liked. In 1806 the
deponent went again to Cameras, and took
JOHNS. REP., 18.
with him a power of attorney, from the de-
fendant, to himself and Don Pedro Edwardo,
for the purpose of settling, among other mat-
ters, the tobacco contract with the plaintiff.
The defendant, under this authority, offered
the plaintiff $1,000 as a full settlement of all
claims he might have against the defendant,
on the subject of the tobacco contract, or of
the plaintiff's beingsecurity therein; and stated
to the plaintiff that he had, in truth, no claim
on the defendant on that account, as the de-
fendant was only acting as the agent of Baker
and others, and as he. the plaintiff, was acting
as the agent of Serra. The plaintiff, in thi*
conversation, distinctly admitted his knowl-
edge that the defendant had only acted as the
agent of Baker and others, and* that he, the
plaintiff, acted as the agent of *Serra, [*($O
and required $8,000, and two thirds of the
commissions, for the tobacco contract, neither
of which the deponent was authorized to give
(it being usual, at Lnguira, for the Spanish
merchant who does the business to allow the
supercargo one half of the commissions).
The deposition of Moses Hi Hard was also
read, on the part of the defendant, who stated
that about May, 1805, he went, as master of
the ship Catharine, on a voyage from New
York to Laguira, and the defendant accom-
panied him as supercargo. The vessel ap-
peared, by the ship's papers, to belong to
Frederick* Baker, who also employed the de-
ponent, and was informed by Balcer that he
and one John English were jointly interested
in the cargo, which, on its arrival at Laguira,
was to be put into the hands of one John
Serra ; and that the voyage was undertaken
in consequence of some agreement which had
been made between the defendant and Serra.
When the deponent arrived at Laguira, Serra
was there, and about to sail for Europe ; the
plaintiff did the business of the vessel, and dis-
posed of the cargo. The plaintiff was gener-
ally understood, at Laguira. to be the agent of
Serra. The deponent, before he left New
York, understood from Baker, that another
vessel, with a cargo, was also to sail on the
same voyage, under the same contract made
between the defendant and Serra. About a
month after the Catharine arrived, the ship
Stranger also arrived at Laguira, and was re-
fused an entry for two or three days, but was
at length admitted, and the cargo put into the
hands of the plaintiff.
The Chief Justice charged the jury that he
thought the testimony in the cause warranted
the conclusion that the plaintiff had paid tBe
amount of the bond for the defendant ; that it
appeared that in some transactions the defend-
ant had been the agent of Baker and English,
and that in some transactions the plaintiff had
been the agent of Serra ; but that there was not
sufficient testimony to show that, in the tran-
saction relating to the tobacco, the defendant
acted as the agent of Baker and English, or
the plaintiff as the agent of Serra. Besides, if
a party would excuse himself from responsi-
bility, because he acted in the capacity of
agent, he ought to show that he communicated
to the other party his situation as agent, and
that he acted in that capacity only, so as to
give a remedy over against the person whom
he represented to be his principal. That in a
538
67
SUPREME COURT, STATE OF NEW YORK.
1816
O7*] *case like that of the tobacco transaction,
the plaintiffs becoming security for Serra,
was not within the scope of the authority of a
general agent appointed for commercial pur-
poses.
The Chief Justice further charged the jury,
that if they thought that the plaintiff had mis-
conducted himself, or acted contrary to the
custom of the place, in selling the tobacco to
Denker, they must deduct so much from the
plaintiff's demand, because the plaintiff must
conform himself to the usage of the place.
[Evidence was given, on the trial, respecting
the usage as to selling to foreign merchants on
credit, which not being referred to in the
opinion of the court, it was thought unneces-
sary to state.]
The jury found a verdict for the plaintiff
for $14,808.21.
A motion was made to set aside the verdict,
and for a new trial.
Mr. Hoffman, for the defendant, examined
the facts in the case at large, and contended
that in all the transactions relating to the out-
ward and return cargo of the Stranger, the
plaintiff acted as the agent of Serra, and knew
that the defendant acted as the agent of
Baker ; that the tobacco was, in truth, pur-
chased by the plaintiff, as agent of Serra, and
for his benefit, though the plaintiff's name,
and the formality of giving security, were
used, as the best mode of conducting the trans-
action ; that the accounts were incorrectly
stated, without distinguishing what belonged
to the parties as principals, and what as agents.
That it did not appear that the plaintiff had
ever paid Paccanius the money he stated that
he had advanced, so as to be entitled to bring
this action.
That, by selling the tobacco without appris-
ing or consulting the defendant, the plaintiff
took it on himself, and thereby waived any
demand, on account of it, which he might
otherwise have had against the defendant.
That the notarial copies, or certificates, ad-
mitted at the trial, were not legal or proper
evidence. In this country, and according to
the rules of Our law, notarial certificates are
not evidence, except to prove the protest of a
bill of exchange, or proceedings in admiralty
courts.
It is true that in countries where the civil
law prevails, all contracts are made before a
notary, who delivers to the parties copies, cer-
tified by him, under his hand and seal. In
68*] those *countries the copies may be evi-
dence ; but the lex loci, though it may govern
as to the contract itself, is not the rule of evi-
dence by which the contract is to be proved in
the country where the action is brought, and
where the proof of the contractmust be given.
Different countries and states may establish
very different rules of evidence. In Massa-
chusetts and Connecticut the oath of the party
is received in an action of law, in support of
his demand. In Pennsylvania the protest of a
master of a vessel, made before a notary, is
received to prove the loss in an action on a
policy of insurance. But such evidence is not
admissible here.
There ought, then, to have been a commis-
sion taken out to examine the notary; and if
the original contract could not be obtained,
the copy should have been verified, by a com-
parison with the original, all which might
have been shown under a commission. It ap-
pears, also, that the contract was executed by
the plaintiff, by his attorney Carbonel, and the
only evidence of any power of attorney is the
same notarial certificate. The originals are
not exhibited, nor the copies verified. The
notary certifies facts. He does not set forth
the contract in hcec verba. He speaks in the
past tense, and narrates facts. His certificate
is not a record, nor a copy of a record. If
these contracts are, as is said, always kept by
the notary on record, there ought to have been
an exemplification of that record, or a copy
under seal. In cases under the law of nations,
it is true, copies of proceedings of the Admi-
ralty Court, under seal and signature, are ad-
mitted, onnroof of the seal, &c.
Again ; the plaintiff alleges he paid the money
in pursuance of a decree of a Spanish tribunal
at Caraccas. It was essential, therefore, for
him to prove this decree by legal evidence.
The bond was not for any particular sum; and
it was requisite to show how the value of the
tobacco was liquidated, for which the surety
was made liable. If the liquidation was vol-
untary, on the part of the surety, he ought to
show that it was fairly and honestly made.
The only evidence of the decree is this same
notarial certificate, without any oath or verifi-
cation whatever.
Messi-s. Slosson, and (Jaines, contra. 1. As
to the admissibility of the documents offered in
evidence. The powers are set forth verbatim
in the notarial certificate, and which is, in fact,
a copy or exemplification of the record. The
court must be satisfied of the genuineness of
every paper offered in evidence. For this
*object, it is enough to show, first, that [*OO
the original cannot be produced, and next,
that the paper or copy offered, as its substitute,
is true, or properly verified. Though when
the paper is first offered the court may have
doubts of its authenticity, yet if, by the subse-
quent proofs in the cause, its verity is satisfac-
torily established, the court will not direct a
new trial. The granting a new trial is in the
sound discretion of the court, and stands on
different grounds from exceptions taken to the
evidence. In countries where the civil law
prevails, the contracting parties go before a
notary, who takes down their declarations,
and draws up the contract in form, which he
keeps, and delivers copies to the parties, which
are, in truth, originals and counterparts of the
contract. The notary is the proper officer to
give certified copies. This court has said that
the certificate of a clerk was equivalent to an
affidavit (1 Caines, 59; 6 Johns., 286), because
he is the proper officer. In Duncan v. Scott,
ICampb., 101, Lord Ellenborough held that
copies of depositions delivered by a judge's
clerk being in the course of office, were pri-
ma facie evidence, without being proved to be
examined copies. In Miller v. Livingston, 1
Caines, 349, it was held that where the origi-
nals could not be had, copies were admissible
in evidence; it is true such copies must be duly
authenticated. Here we have the confession of
the defendant himself that the documents prcf-
duced were genuine. This confession of the par-
ty is equivalent to the production of the sub-
JOHNS. REP., 13.
1816
MAUUI v. HEFFERNAN.
scribing witness to an instrument. (2 Johns..
452.) The admission of the copy implies the
genuineness of the original. What higher evi-
•uence of the truth of these copies could have
been obtained under a commission? The de-
fendant, having a notarial copy of the same
contract, caunot allege that he is surprised by
the copy produced at the trial.
In Wttlrond v. Van Motes 8 Mod.. 322. it was
•decided that a copy of an agreement regis-
tered in Holland, and attested by a public
notary there, might be given in evidence
for the defendant; especially as the plaintiff
had taken out another copy of the same agree-
ment, and would not produce it; for he would
not be surprised, as he must have known of
the agreement, having himself a copy of it.
2. The deposition of Paccanius fully estab-
lishes the fact of the payment of the money,
by the judicial decision or decree of the court
At Caraccas.
7O*1 *3. If the defendant intended to shel-
I <T himself under the character of a mere agent,
he ought to have shown that he disclosed to
the plaintiff, at the time the contract was made,
the capacity in which he acted; and that he
made known his principal, fully and explicit-
Jy, so as to enable the plaintiff to resort to the
principal. The evidence is, that the defend-
ant, in the case of the Stranger, was the agent
of Baker and Barker, and in the case of the
Catharine, the agent of Baker and English.
If the plaintiff baa applied to Baker and Bar-
leer, they would have said: "This is not our
contract; Mr. H. has blended the business of
others, with whom we have no concern; you
must look to him." The plaintiff could not
sue one set of principals for one part, and an-
other set of principals for another part of the
•contract. But the evidence shows that the de-
fendant did not pretend to act as agent in this
•contract. It was entered into between him, as
principal, and the plaintiff as his surety.
Though a person is an agent, he may still as-
sume individual and personal responsibility re-
lative to the subject of his agency. (1 T. R,
191.)
Where an agent, without disclosing his prin-
cipal, or, which is the same thing, does not
•disclose all his principals, where there are more
than one. makes a contract, he is himself to
be treated as principal. (George v. Claggett, 7
T. R. 359. 360, 361, n.)
Again; the authority and duty of a super-
cargo is to sell one cargo, and invest the pro-
ceeds in another, or return cargo. The entry
of the caigo and vessel at the custom house is
the peculiar duty of the master. The defend-
ant having gone aside from his duty as super-
cargo, to enter into this arrangement of the
tobacco contract, in order to procure an entry,
must be considered as having acted, in that
respect, on his own personal responsibility. (3
Johns. Cas., 70.) If the question of the de-
fendant's acting as a mere agent or not, rested
on facts, it was for the jury to decide; and
they have determined the fact. If it depended
on the written documents produced, those
documents clearly show that he acted as prin-
cipal.
Again; the factor or principal, or owner,
may each sue for the same cause. (1 H. 151 .
•85; Bull. X. P., 130; 3 Caines, 72; Cowp., 255 )
JOHNS. REP., 18.
Where a contract operates on two parties, each
may sue; but if one sues, it is a bar to an ac-
tion by the other; and if the owner, or princi-
pal, does not sue, the factor may bring the ac-
tion.
*As to the sale of the tobacco, the [*71
plaintiff was compelled, ex iiec&uittite, by the
very act of the defendant, to become his agent
as to the tobacco, a perishable article, which
he sold, and gave the defendant credit for the
net proceeds. This cannot be considered as
any waiver of his claims for indemnity under
the contract.
A surety is not bound to stand a suit, but
may pay the money in the first instance, and
then call on the principal. (Sluby v. Champlin,
4 Johns. 461.)
Mr. T. A. Emmet, in reply. The declaration
in this case contains only the usual money
counts. The plaintiff must show that he act-
ually paid money for the defendant, not that
another person paid it. Where owner and fac-
tor both have actions, they must be special ac-
tions on the case.
To understand this case, it is necessary to
examine the facts minutely. [Here the coun-
sel examined and remarked on the facts at
length.] The tobacco contract was subsidiary
to the other, and made in the name of the de-
fendant, but, in truth, for the benefit of Ser-
ra. It was to facilitate the entry of the Stran-
ge'r; and the plaintiff must have known that
the defendant was not acting on his own ac-
count, or for his own benefit. The letter of
the plaintiff shows this. It is said the defend-
ant did not disclose the names of his princi-
pals; but the plaintiff had the invoice of the
cargo, and must have known them.
It is true, in regard to foreign trade, that a
factor may be sued because he is on the spot,
and his principal, or owner, being abroad,
caunot be reached. This rule, however, found-
ed on the convenience of trade, does not apply
where both factor and owner reside abroad.
Again; according to the necessary course of
this trade, carried on at Caraccas, agents there
must act in their own names, and appear as
principals, in order to keep others out of view.
The confessions of the defendant amount to
nothing. They are, in substance, this: "I do
not dispute the items of your account; I put
my defense on higher ground; that I am not
liable at all, having acted merely as the agent
of Baker, to whom you must look."
All subsequent engagements, by letters, are
nude pacts, or, if the defendant is to be made
liable on them, it cannot be in this action, but
on special counts.
Again; the extent of the obligation of the
plaintiff, as surety, *was indefinite and [*72
unlimited. It was absolutely essential, there-
fore, that he should show, by satisfactory evi-
dence, how the amount was liquidated and as-
certained. The decree of the court ought to
have been produced.
Further, there is no evidence that the plaint-
iff has ever paid P. the money he swears he
I advanced. I*, does not say that the plaintiff
j ever paid him a cent.
Then, as to the admissibilitv of the docu-
ments, cr notarial certificates, in evidence. In
Smith v. Spinolla, the very point was decided,
though the case does not appear to be
72
SUPREME COURT, STATE OP NEW YORK.
1816
ed.1 In Dowries v. Mbweman, Bund., 190, 191;
Wynch, 70, it is stated that "a copy of an
agreement between the abbot of Huarrer and
the monks of Lyra was produced in evidence;
to which it was objected, for the plaintiff,
that, by the rules of evidence, it could not be
read, being neither a record nor a public thing.
But the defendant produced a copy of the Stat-
ute of Oxon, that no book, &c., should go out
of the Bodleian library ; and the court gave
leave to read the copy of the agreement in evi-
dence ; though they admitted it not to be with-
in the general rules of evidence, but on the
very particular circumstances of the case."
Here it was expressly shown that the original
could not be obtained (1 Keble, 11?) ; and it
was admitted that to allow a copy, 'even in such
case, to be read, was against the rules of evi-
dence. As to the case of Walrond v. Van
Moses, it is remarkable that it has never been
cited, to that point, in any abridgment of the
law. or in any treatise on evidence ; nor is
there any subsequent case to be found ground-
ed on its authority. Besides, in that case each
party had a copy of the original.
It appears, in this case, that a copy only of
the power was exhibited to the notary, and he
gives a copy of a copy, without any verifica-
tion by the original. Three citizens certify
that the person who gives the certificate is a
notary ; there is nothing more. The original
and the copy do not appear to have been com-
pared.
Under a commission, the party could go into
an examination of all the circumstances attend-
ing the execution of the instrument. But if
notarial certificates, or copies, are admissible,
a party may be surprised at the trial, and have
73*] no opportunity to *show any circum-
stances attending the execution of the instru-
ment, or that it wa« a forgery.
THOMPSON, Gli. J., delivered the opinion of
the court:
The right of the plaintiff to retain the ver-
dict, found in his favor, will depend princi-
pally upon the question, whether there was
competent and sufficient evidence of his hav-
ing become security for the defendant, and
that he had paid the money alleged to have
been paid on that account.
It is unnecessary to examine minutely the
proof that was before the court at the time ap-
plication was made for a nonsuit ; for, admit-
ting there was not evidence enough, at that
time, to warrant a recovery, yet. if the defi-
ciency was afterwards supplied, and there was
proof sufficient to support the verdict when
found, the present motion cannot prevail.
With respect to the instrument, by which it
is alleged that the plaintiff became security for
the defendant, the proof is abundantly suffi-
cient to show that the original could not be
produced upon the trial. According to the
laws of the Spanish Province, where this in-
strument was executed, the original, or the
1.— The judge before whom the cause was tried,
having refused to grant an order to stay proceed-
ings, the counsel delivered to the court a copy of
the case, with a written argument, though the court
do not hear arguments on an appeal from the
judge, or for an order to stay proceedings; and
there being no stay of proceedings, the cause was
not heard in court.
53(J
one actually signed by the parties, remains
with the notary before whom it was executed.
Copies, certified and signed by the notary, are
delivered to the parties ; and such copies, thus
authenticated, are received in evidence in all
the Spanish tribunals.
It is unnecessary definitively to say, whether
the lex loci ought so far to prevail, as to re-
quire these notarial copies to be admitted in
evidence here in the same manner as in the
Spanish tribunals. I am inclined to think,
however, they ought not to be received as suf-
ficient, per se ; but I cannot think they are to
be entirely disregarded, and treated as mere
nullities. They ought to be received as form-
ing a part of the inferior evidence of the exe-
cution of the instrument, when the original
cannot be produced and proved. It appears
to be a part of the official duty of the notary
to give copies ; he is specially intrusted with
that power ; and in giving such copies, he-
acts under his oath of office. The instrument
is executed before him in his official capacity ;
and an official certified copy necessarily implies
that he saw the instrument executed. In what
respect does this differ from an examination
upon a commission ? He can only swear he
saw the instrument executed, and that the
copy furnished by him is under oath. Besides,
we ought to be cautious *in declaring [*74
that we will receive nothing short of the ex-
amination of the notary, under a commission,
as there is no mode of enforcing such exam-
ination ; nor is a sworn copy, proved by a per-
son who has compared it with the original, any
higher or better evidence than that furnished
by the notary, which is a copy under his oath
of office. But the evidence furnished in the
case before us is more satisfactory than either,
arising out of the repeated, uniform, and un-
contradicted confessions of the defendant, con-
tained in his letters, and to witnesses, whose
testimony was before the jury. Paccanius,
who, in behalf of the plaintiff, applied to the
defendant for payment, swears that he showed
him the documents given in evidence, which
purported to be notarial copies of the instru-
ment, whereby the plaintiff became security
for the defendant ; and the cancelment of the
contract, upon the payment of upwards of
$20,000 by the plaintiff, as security for the de-
fendant, in conformity with a decree of the
Spanish tribunal ; that the defendant exam-
ined the papers, and, without any hesitation,
recognized them as genuine and authentic. In
addition to this, he acknowledged to this wit-
ness that the plaintiff had entered into the
obligation on the tobacco contract as security
for him. This witness also exhibited to him an
account, containing the charge of $20,518.87,
paid to the royal administration of tobacco at
Caraccas, as security for the defendant, and
referring to the instrument executed on that
occasion. The defendant did not dispute the
justice of the plaintiff's chum, nor question the
accuracy of any of the items contained in the
account, but insisted only that he acted as
agent, and in behalf of Baker; and that the
plaintiff ought to look to him for payment.
To Serra, another witness, the defendant
acknowledged that the plaintiff was bound as
security for him. This witness also confirms
the testimony of Paccanius, with respect to-
JOHNS. REP., 13..
1816
MACTJI v. HEFFERJJAN.
the defendant not disputing any of the items
contained in the account presented to him.
These acknowledgments furnish evidence of
an express admission that the copies offered in
evidence were genuine and authentic copies of
the original, and serve to identify the instru-
ments beyond all dispute. If anything more
could possibly be wanting, it is furnished bv
the defendant's letters. In the one of the Ttii
of February, 1806. he apprises the plaintiff
that he should send a vessel for the rest of the
tobacco, and adds — but, at all events, I shall
take care to indemnify you for your suretyship
7ft*] to the royal administration of *tobacco.
Again, in his '.etter of the 6th of Fanuary, 1808.
he admits he entered into the tobacco contract,
and tells the plaintiff to be under no apprehen-
sions that he shall in any manner suffer in the
affair. And as late as 23d of June, 1810, he
writes that he had been made the victim in the
affair of the tobacco, and wanted to be in-
formed whether the plaintiff had to pay any-
thing, and how much ; promising either to go
himself, or send some person, for the purpose
of settling the unfortunate affair. If the con-
fessions of the defendant, either by parol or
in writing, are at all to be received in evi-
dence, they are amply sufficient, in this case,
to show a due execution of the instrument
whereby the plaintiff became his surety. This
instrument was not under seal ; so that no ob-
jection on that account can 1x3 made. I see no
objection, nor, indeed, was any made on the
trial, to the admissibility of such evidence. In
the case of Hall v. Pfitlpg. 2 Johns. , 452, it is
said that the confession of a party that he gave
a note, or any instrument precisely identified,
tow high proof as that derived from a sub-
scribing witness.
That the plaintiff has paid upwards of $20,-
000 on account of the breach of the defend-
ant's contract with the Spanish government,
is established not only by the admission of the
defendant, but by the positive evidence of Pac-
canius, who swears that he did. at the plaint-
iff's request, by his orders and in his-behalf,
pay the money into the Royal Treasury in pur-
suance of the decree. It was unnecessary to
prove the decree, as a breach of the contract,
which the defendant made with the Spanish
government, is fullv shown by the admissions
of the defendant. In his letter of February,
1806. he speaks of sending a vessel for the rest
of the tobacco, if circumstances would permit;
and he expressly admitted to Paccanius that
he had not sent a vessel to take away the to-
bacco, being apprehensive she would not be
admitted on account of Miranda's expedition.
If the contract was broken, it was not neces-
sary for the plaintiff to stand a suit. If the
liability of the surety, and a pavment of the
money" by him be showti. it will be sufficient
to warrant a recovery against the principal.
In answer to nil this, it has been urged that
the plaintiff was the agent of Serra. and there-
fore has no right to recover on his own ac-
count, even admitting the defendant's liability
to Serra ; and also, that the defendant was
acting as the agent of other persons and can-
not be made personally responsible, but
76*] 'recourse must be had to his principals.
1 cannot discover from the evidence in the
case, anything to warrant or even to give color
JOHNS. RKP.. 13.
to the conclusion that, with respect to the to-
bacco contract, the plaintiff was acting as the
agent of Serra. The allegation of the defend-
ant to that effect, in his letter of January,
1MB, is too vague to deserve any considera-
tion ; it is at variance with the contract itself,
and with the general tenor of the defendant's
conduct and confessions, and might very well
have been an afterthought in the defendant,
to endeavor to shift the loss from his own
shoulders. Nothing is to be collected from tLe
contract itself to show that the plaintiff acted
in behalf of Serra ; nor is there any evidence
that he represented himself to the defendant
as such agent, when he entered into the secu-
rity. If such had been the fact there can be
no'dotibt that it would have appeared upon
the face of the contract. This the parties well
understood, for they made the contract by their
agents, as appears by the instrument, and the
authority of the agents as set out. It is not to
be credited that if the plaintiff had authority
from Serra to become surety for the defendant,
he would not have appeared in that character
in the transaction. There is no doubt that the
plaintiff was the agent of Serra during his ab-
sence in Spain, and there is considerable testi-
mony tending to show that in the sales of the
cargoes of the Catharine and Stranger, he
acted in behalf of Seira. But these were mer-
cantile transactions, altogether distinct from
becoming security for the performance of a
contract in which Serra, from anything that
appears, had no interest orconcern. If the de-
fendant has procured the plaintiff to become
security for him, in his own name, and he has
| been compelled to pay the money, it very illy
I becomes the defendant now to say he js re-
| sponsible to Serra and not to the plaint iflj Be-
I fore the plaintiff is turned around to Serra for
indemnity, it ought very clearly to appear that
he has a remedy against him. If the plaintiff
ever made the acknowledgment stated by
M'Conchey, as to his being the agent of Serra,
it must have related to a mercantile agency
and not to an authority to become security on
j the tobacco contract. At all events, this was
: matter for the consideration of the jury.
! Serra. who appears from his examination, to
i have been well acquainted with the circum-
j stances in relation to the tobacco contract and
I the payment of the money by the plaintiff, say*
1 he has no reason to imagine that the plaintiff,
when he became surety for the *defend- [*77
ant, was acting in behalf of Serra, or that tin-
money which the plaintiff was compelled to-
pay as such surety, was paid out of the funds
of 'Serra, or that the plaintiff was in any man-
ner indemnified by Serra ; nor is the evidence
sufficient to prove'that the defendant acted as
the aeent of any person in making the tobacco
contract. The contract itself does not recog-
nize him in that character ; nor does the evi-
dence show that at the time of makingthe con-
tract he represented himself as such agent No
power was shown giving him authority to
make any such contract. It is hardly credible
that the plaintiff would have become security
upon the credit of others, without seeing some
authority in the agent to pledge their respon-
Mhility. The defendant has not, even now,
furnished any evidence that he had authority
to make such a contract for Baker or any other
SUPREME COURT, STATE OF NEW YOKK.
1816
person. He went out as supercargo of the
Catharine ; but that did not vest h'im with au-
thority to make the contract for the tobacco.
It was totally unconnected with his duties as
supercargo. Indeed, it is very uncertain now
from the evidence in the case, who were his
principals ; whether Baker alone, or Baker and
English, or Baker and Barker ; and the plaint-
iff would be entirely at a loss to determine who
are his principals.
The correctness of the legal position stated
to the jury, and by which they were to test the
evidence has not been questioned, that if a
party would excuse himself from responsibility
because he acted in the capacity of agent, he
ought to show that he communicated to the
other party his situation as agent, and that he
acted in that capacity, so as to give a remedy
over against the person whom he represented
as his principal. The testimony in this case
furnishes no such evidence. The defendant,
therefore.cannot excuse himself on this ground.
It is unnecessary to travel through the various
items of the accounts ; for, if the defendant is
at all answerable for the money paid on the to-
bacco contract, he is, at least, liable to the
amount of the verdict found by the jury. And
that he is so answerable is, I think, very clear.
The motion for a new trial must, accordingly,
be denied.
Motion denied.
Excuse nn wound of acting as agent. Distin-
guished—19 Barb., 76.
Cited in— 7 Cow., 454 ; 10 Ab., Pr., 221 ; 5 Bos., 512;
4Duer., 84.
Also cited in— 3 Denio, 69; 1 Hilt., 220; 20 Wall.,
134.
78*f *CHAPMAN v. SMITH.
Slander — Pleading — Charge of Perjury — Allega-
tion of Jurisdiction — False Title, Swplusage.
A declaration in slander charging: that in a certain
cause before a court of three justices of the peace,
constituted under the Act Concerning' Apprentices
and Servants, to hear and determine a certain cause
between the people of the State of New York and
the defendant, the plaintiif was examined on oath
administered by the said court, they haying full
power to administer the same, and had given evi-
dence for and in behalf of the people, and that the
•defendant spoke of and concerning the plaintiff
and the prosecution, and the evidence given by the
plaintiff on the trial, and a point material to the
prosecution, these words : " You have sworn to a
•damned lie, and I can prove it," is good ; there be-
ing a sufficient averment of the jurisdiction of the
court, and the false title of the cause may be re-
jected as surplusage.
Citations-2 Tidd's Prac., 827 ; Act Feb. 20, 1801 : 1
Johns., 505 ; 8 Johns., 109 ; 2 Johns., 10 ; 6 Johns., 82 ;
11 Johns., 142.
THIS was a writ of error to the Court of
Common Pleas of Seneca County. The
declaration was for slander, and contained six
counts.
The first count stated that a prosecution had
been depending before a court of three justices
of the peace of the County of Seneca, legally
constituted, agreeably to the Act entitled An
Act Concerning Apprentices and Servants,
passed 20th of February, 1801, to hear and de-
termine, a certain cause between the people of
the State of New York, on the complaint of
Ebenezer Carterline, Jr., and the defendant
below, which prosecution or cause had been
488
lately tried, and the said Smith, the plaintiff
below, had been and was examined on oath,
administered by the court so holden by the
said justices, they having full power and com-
plete authority to administer the same, and
had given his evidence for and in behalf of
the said people ; and that the defendant be-
low, well knowing, &c., and intending, &c.,
in a certain discourse which he had with the
plaintiff below, in the presence and hearing,
&c., spoke to and of and concerning the
plaintiff below, and concerning the said prose-
cution, and concerning the evidence given by
the plaintiff on the trial, and on a point ma-
terial in and to the prosecution, these words :
" You have sworn to a damned lie, and I can
prove it."
The 2d, 3d and 4th counts were the same,
varying only the words charged.
The 5th and 6th counts not being noticed by
the court, it is unnecessary to state them.
The court below gave judgment generally,
for the defendant in error, on the verdict. The
cause was submitted to the court without ar-
gument.
SPENCER, «/., delivered the opinion of the
court :
It is objected that the judgment below being
general, it ought to be reversed for defects in
the four first counts ; and if those counts are
defective, the judgment cannot be supported.
The defects are supposed to consist in this,
that it is not sufficiently alleged that the three
justices had jurisdiction of the matter *set [*7O
forth in the colloquium; and that there is no
averment that the matters sworn to by the
plaintiff below were material. It is alleged in
the declaration, in reference to the counts ob-
jected to, " that a certain prosecution had been
depending before a court of three justices of
the peace of the County of Seneca, legally con-
constituted, agreeably to the Act entitled An
Act Concerning Apprentices and Servants,
passed 20th February, 1801, to hear and de-
termine a certain cause between the people of
the State of New York, on the complaint of
Ebenezer Carterline, Jr., and the said Titus
Chapman, defendant, and which said prosecu-
tion, or cause, had been lately tried at the
town, &c. ; and on such trial the said Elkanah
Smith had been, and was examined on oath,
administered by the court, so holden by the
said justices, they having full power and com-
pleted authority to administer the same, and
had given his evidence for and on the part and
behalf of the said people, at," &c. The dec-
laration then states that the defendant below
spoke and published to, and of and concerning
the plaintiff below, and of and concerning the
said prosecution, which had been so depending
as aforesaid, and of and concerning the evi-
dence by the plaintiff below given, on the said
trial, as such witness as aforesaid, and on a
point material in and to the prosecution, these
false, scandalous, malicious and defamatory
words, that is to say: " You (meaning the said
Elkanah) have sworn to a damned lie, and I
(meaning the said Titus) can prove it."
The other three counts are substantially the
same.
The jurisdiction of the justices is supposed
to be destroyed by the allegation, that they
JOHNS. REP., 13.
1816
THE PKOPLE v. HEKKICK.
79
were constituted to bear and determine a cause '
between the people of the State of New York,
on the complaint of Ebenezer Carterline, Jr.,
and Titus Chapman, defendant : if they had
not jurisdiction, then it is conceded that the
false swearing would not be perjury, and the
words would not be actionable. The averments
that the court was legally constituted, agreeably
to the Act Concerning Apprentices and Ser-
vants, that the plaintiff was examined before
that court on oath, and that they had full
power and complete authority to administer
the same, fully show a jurisdiction in the jus-
tices. By reference to the Act under, and
agreeably to, which it is averred the court of
three justices was legally constituted, it will
appear that they had power and authority
only to decide concer ing the misusage'of an
8O*] apprentice, or servant, by his *master or
mistress, or of misbehavior of the apprentice
towards his master or mistress ; this Act con- j
fers no authority upon three justices to try any [
matter wherein the people of the State are con- j
cerned.
After verdict, we are, I think, warranted in
rejecting, as surplusage, the false title of the
suit. The three justices were convened under
the Act stated, and it was a plain misconcep-
tion that the people of the State were con-
cerned ; but that misconception did not deprive
them of jurisdiction. It was the very gist of
the inquiry in the court below, as we must in-
tend, whether the three justices had power or
not to administer an oath to the plaintiff be-
low ; it having been averred in the declaration,
that the court was legally constituted, and that
they had full power, and complete authority to
adnv'nister the oath, the plaintiff below could not
have recovered a verdict without showing it. It
is a rule of the common law, that surplusage will
not vitiate, after verdict ; utile per inutile non
vitiatur ; and therefore, where, in trover, the
plaintiff declared that, on the 3d of March, he
was possessed of goods which came to the de-
fendant's hands, and that, afterwards, to wit :
on the 1st of March, he converted them to his
own use, it was held to be cured after verdict.
<2 Tidd's Pr., 827, and the cases referred to.)
The case has frequently occurred in this
court, that justices of the peace, in making re-
turns to certioraris have stated that the cause
was tried under the repealed Act of 1808 ;
and we have uniformly held that a mistake of
the Act did not affect their jurisdiction. This
can be considered in no other light than a mis-
entitling of proceedings, before magistrates
authorized by statute to act. Suppose these
magistrates had discharged the apprentice
from his indentures, could it be contended that
they were trespassers, on the ground of a de-
fect of jurisdiction, merely because they
erroneously supposed the people of the State
were parties to the proceeding ? I should sup-
pose not.
In several cases, we have decided, that charg-
ing a person with swearing falsely before a
justice, without a colbM)itium, showing that it
rcfrrn-l to a trial, or other legal occasion, was
not actionable. (1 Johns.. 505 ; 8 Johns., 109;
2 Johns., 10.) But in M'Claughry v. Wetmore,
6 Johns., 82, we say that to charge a person
with taking a false oath in a court has been
held actionable. In that case, it was averred
JOHNS. HEP., 18.
that the plaintiff was duly sworn, and was
testifying to *a point material between [*81
the parties ; and, of course, that averment for-
tified and strengthened the particular case ;
but it is manifest, from the opinion of the
court, that the judgment would not have been
arrested, had that averment not been con-
tained in the declaration ; we expressly said,
that after verdict, we must conclude that the
malice was proved, and that if, under any
circumstances, such words are actionable, the
suit is to be sustained.
In the present case, there is an averment
that the words were spoken of and concerning
the evidence given by the plaintiff below, and
on a point material in and to the prosecution ;
but if this averment had not been made. I
should still be of the opinion, that after verdict,
we must intend that the words were spoken in
relation to material evidence. In Pangbum v.
Railway, 11 Johns., 142, it was decided that
where there is a defect, imperfection or omis-
sion, which would have been fatal on demurrer,
yet if the issue joined be such as necessarily
required, on the trial proof of the facts, de-
fectively or imperfectly stated, or omitted,
and without which it is not to be presumed the
judge would direct, or the jury would have
given the verdict, such defect, omission, or
imperfection, is cured by the verdict. On the
trial, it would have been competent to either
party to inquire in reference to what part of
the evidence given the words were spoken ;
and if it had appeared that they were spoken
of evidence entirely immaterial, it is not to be
presumed that the plaintiff below would have
obtained a verdict. The verdict, therefore,
shows that it must have been proved that the
words were spoken of material testimony.
This principle, in my apprehension, applies,
with equal force, to both objections ; for the
plaintiff could not have succeeded in the court
below, without showing that the justices had
power to administer the oath to him.
Judgment affirmed.
Cited In— 20 Johns., 349; 1 Wend., 477; 11 Wend.,
40, 404 ; 12 Wend., 502 ; 16 Wend., 457 ; Hill & D., 264 ;
5 How. Pr., 175.
*THE PEOPLE t>. HERRICK. [*82
Witnesses — Need not Criminate or Disgrace
Themselves.
A witness, either on the roir dire, or on croes ex-
umirmtion. is not bound to answer any question
which would subject him to punishment, or render
him infamous or disgraced.*
Citations— Peake's Bv.,129, 130: Leach's Cro. Law,
382 ; 4 T. R., 440 ; 4 State Trials, 748 : Sulk.. 153; Bull.
If. P., 292; Gilb. Law of Ev.. 102 ; Coinyn's Di«r. Tea-
timoigne (A. 5); 1 Hawk. tit. Ev., ch. 46, sec. 104; 8
"
AT the Court of General Sessions of the
Peace, for the County of Washington,
Herrick was brought to trial for grand lar-
ceny.
The charge in the indictment was for steal-
ing the property of Roswell Granger, consist-
ing of pillow-cases, shirts, table-cloths, hand-
kerchiefs, &c. The evidence against the
*8cc the People v. Mather, 4 Wend.. 239 ; South-
ard v. Rexford, 6 Cowen, 254.
IM
SUPREME COURT, STATE OP NEW YORK.
1816
prisoner was, that one pillow-case and one
handkerchief were found in his possession.
The prisoner then offered to prove, by Samuel
Hardy, that he (Hardy) was present, and saw
the prisoner purchase the pillow-case and
handkerchief, in his possession, of one Wash-
burn, and pay for them, and that Washburn
had absconded. Hardy, the witness, being
called to the stand, was asked by the public
prosecutor " whether he," Hardy, " had not
been convicted of petit larceny, and whether
he was not then in confinement under that
conviction." The counsel for the prisoner
objected to the question, insisting that the wit-
ness was not bound to answer it ; but the court
overruled the objection ; and the witness an-
swering the question in the affirmative, he was
set aside as incompetent. The prisoner was,
thereupon convicted ; but the court, at the re-
quest of his counsel, delayed giving judgment
until the advice of this court could be obtained,
whether the witness (Hardy) was bound to
answer the question put to him by the public
prosecutor, or not.
SPENCER, J"., delivered the opinion of the
court :
If the witness was not bound to answer the
question, he ought not to have been compelled
to do so ; and being excluded, and the defend-
ant deprived of the benefit of his testimony,
the conviction was illegal.
Mr. Peake (Peake, 129, 130), in his treatise
on evidence, in considering whether a witness
is bound to answer a question, either rendering
him infamous, or disgracing him, says that a
practice of putting such questions, and requir-
ing them to be answered, had continued for a
long time without objection, but that some of
the judges had lately thought that neither
convenience nor authority justify this mode of
examination ; and he admits that the highest
and most enlightened characters in the pro-
83*] fession are *mucb divided on this point,
and that the question was then undetermined.
In Priddle's case, Leach's Crown Law, 382,
old edition, he was examined before Mr. Justice
Duller, when called as a witness, and was
asked, as it would appear, without objection,
whether he had not been convicted of a con-
spiracy, and sentenced to be imprisoned in
Newgate for two years, and, on his answering
in the affirmative, he was rejected. In The
King v. Edward*, 4 T. R., 440, on an applica
tion to bail the prisoner, one of the bail was
asked, whether he had not stood in the pillory
for perjury ; the question was objected to,
as tending to criminate him ; the court over-
ruled the objection, saying there was no im-
propriety in the question, as the answer could
not subject him to any punishment.
There are no other cases in the English
courts which I have been able to meet with,
affirming the right to examine a witness on
imr dire, as to his own turpitude or criminality.
I mean questions, the answer to which directly
implicate the witness in a crime. There is no
pretense for saying, that it ever was decided
that a witness is obliged to answer questions
which would subject him to punishments,
pains, penalties, or infamy. The ground of
the decision, in The King v. Edwards, is that
the witness having been convicted and pun-
540
ished, he did not, by answering the question,
subject himself to any punishment ; and the
same observation is applicable to Priddle's
case.
There are many authorities which go
strongly to uphold the contrary doctrine, that
a witness is not bound to answer questions
which prove that he has been convicted of the
crimen falsi. In Cook's case, 4 S. T., 748 ;
Salk., 153, Oh. J. Treby said, and the other
judges concurred, " men have been asked
whether they have been convicted and par-
doned, for felony, or whether they have been
whipped for petit larceny, but they have not
been obliged to answer ; for, though their
answer in the affirmative will not make them
criminal, nor subject them to punishment, yet
they are matters of infamy ; and if it be an
infamous thing, that is enough to preserve a
man from being bound to answer." It is laid
down as an axiom, by almost all the writers on
evidence, that the party who would take ad-
vantage of the exception, that a witness has
been convicted of the crimen falsi, must have
a copy of the record of conviction ready to
produce in court. (Bull. N. P., 292; Gilb.
Law of Ev., *old ed., 102; Comyn's Dig. [*84
Testmoigne, A, 5 ; 1 Hawk., tit. Ev., ch. 46,
sec. 104, and the cases there cited.)
Since the observations in Peake's text, the
case of The King v. The Inhabitants of Castell
Careinion, 8 East, 77, has occurred ; and there
Lord Elleuborough, with the concurrence of
all the judges, decided that a witness could
not be called on to testify that he had been
convicted of larceny and punished. His Lord-
ship says, '' whether or not the witness were
convicted of felony, would appear by the
record ; and it cannot be seriously argued that
a record can be proved by the admission of
any witness. He may have mistaken what
passed in court ; this can only be known by
the record, and there is no authority for ad-
mitting parol evidence of it."
It may be said that a witnesss may be intro-
duced unexpectedly, and that a party may be
surprised so far as not to have the record of
conviction ready to produce. This is very
probable; but other things are to be considered
than the convenience or interest of parties. It
is against a fundamental principle, that a party
shall accuse himself, and propagate to the re-
motest period his own infamy. The declara-
tion of the party is not the best evidence of
which the case is susceptible ; and it may be
the fact, that the party himself mistakes the
nature of his offense ; for we perceive that
conspiracy, and even barratry will exclude a
person from testifying ; the infamy of the
crime and not the nature of the punishment
working the incapacity.
But the hardship of excluding such ques-
tions is imaginary. If the witness has been
convicted of an infamous crime, his character
is lost ; and it is not to be supposed there are
not witnesses within the reach of the party, to
prove the character of the witness. If the
offense has been committed long before and
the witness, by his good conduct, has re-
gained his standing in society, then it af-
fords no regret that the party objecting
to his competency has not the record of his
conviction. On authority and the fitness of
JOHNS REP.. IS
1816
NORTHRUP V. NlNTURN.
— » *
the rule, we are of opinion that the pro-
ceedings in the court below are erroneous,
on the ground that the witness, Hardy, was
-excluded from testifying.
85*] *NORTHRUP ». MINTURN.
Promissory Note — Illegal Consideration.
A note given for the use of a billiard table is not
illegal, unh-88 it appear that the person to whom
the note was given kept a tavern. (1 N. It. L., 178,
179.)
IN ERROR, on a cerliorari to a justice's
court.
Minturn brought a suit against Northrop
-on a promissory note given by Northrop to
Minturn for $25. The defense was that the
note was given for a gaming debt. In support
-of the plea, the defendant below produced a
witness, who swore, " that at the tine when
the note was given, Minturn admitted that $8
of the note was for a ball-bill, and the residue
for the use of a billiard table ; but that he
knew nothing of Northrop 's gaming."
There was a verdict and judgment for the
plaintiff below for the whole amount of the
note.
Per Curiam. Supposing the true construc-
tion of the evidence to be, that part of the con-
sideration of the note was for the use of
a billiard table, in playing billiards at the
house of Minturn; yet, as there is no evidence
that Minturn then kept a tavern, it was not an
unlawful contract ; there being no evidence
that it was for money lost at play.
The judgment below must be affirmed.
THE PEOPLE
«.
THE JUDGES. <fec., OF THE GENERAL
SESSIONS OF THE PEACE OF THE
COUNTY OF GENE8EE.
Assault and Battery — Civil Suit no Bar to
Criminal Proceeding* — Judgment — Stay of.
On an indictment for an assault and battery, the
trial will not be stayed because a civil suit is pend-
ing, to recover damages for the same assault and
luitti-ry ; though it seems, Judgment after convic-
tion, may In- stayed, until the decision of the civil
suit.
Citations-1 Esp., part 2, 184, Gould's ed.; 2 Burr.,
019.
ON the 14th of May last, at the Court of Gen-
eral Sessions of the Peace of Genesee
County, Henry Markham was indicted for an
assault and battery, and having pleaded not
guilty, and the trial being brought on by the
attorney of the district, Markham's counsel
objected to the trial proceeding, on the ground
that a private suit had been brought against
him in the Court of Common Pleas, to recover
damages for the same assault and battery,
which suit was still pending and undetermined.
8O*J On this ground *the court below refused
to allow the trial of the indictment to proceed
JOHNS. RKP., 18.
and the attorney of the people now applied for
a mandamus, to be directed to the Court of
General Sessions, commanding them to proceed
in the trial of the cause.
Per Curiam. This is an application for a
mandamus to the Court of General Sessions of
the County of Genesee, to compel them to pro-
ceed to the trial of Henry Markham, upon
an indictment for an assault and battery. The
affidavit of the district attorney states 'that the
court refused to proceed to the trial of Mark-
ham, solely on the ground that a private suit
had been commenced, and was then pending
against him, by the prosecutor. This was not
a sufficient reason for postponing the trial of
the indictment. It might be good cause for
suspending judgment, if the defendant should
be found guilty, in order, in some measure, to
regulate the discretion of the court in imposing
the punishment. We think, however, that the
application for a mandamus ought not to be
granted at this time. The indictment was
found at the same term in which the public
prosecutor moved to bring on the trial. The
delay, therefore, has not, as .yet, been unrea-
sonable. The Court of General Sessions,
from what is stated by the district attorney,
were, probably, misled by what is said in
Espinasse's Digest (1 Esp., part 2, 184, Gould's
edit.; 2 Burr.. 919), that it is the practice in
New York, in such cases, to stay the criminal
suit until a decision in the private action. We
are not aware of any such practice, nor do we
think it warranted, if anything more is intended
than a stay of judgment after conviction. The
rules and principles which govern the granting
of informations, are not applicable to the trial
of indictments. Should the court, hereafter,
postpone the trial of the indictment, solely on
the ground of the pendency of the private suit,
it might become necessary and proper for this
court to interfere by mandamus. But, under
the circumstances attending the case, as now
presented to us, we think the application ought
to be denied.
Motion denied.
Cited in-6 Hill, 468.
•CRAWFORD t. MILLSPAUGH. [*87
Promissory Note — Action against Indorser —
Release of Maker, wit/tout Consideration, no
Bar.
If the holder of a note, after the time of payment
and after a suit has been commenced against the
indorser, release th«e maker by writing1, not under
seal, and without consideration, such release is
void, and is no defense in the action against the in-
doraer.
Citation— 2 Johns.. 450.
THIS was an action of assumpsit, brought by
the plaintiff, as second indorsee, against
the defendant as second indorser of a promis-
sory note drawn by Charles Lindsey for $700,
payable to one Jackson, or order. The cause
was tried at the Orange Circuit in September,
1815, before His Honor, the Chief Justice.
The defendant pleaded /"//.« darrien continu-
ance, that the plaintiff released Liudsey, the
541
SUPREME COUKT, STATE OF NEW YORK.
maker of the note, and in support of the plea
produced, on the trial, the following writing :
" It being represented to me that Charles Lind-
sey is insolvent, I do hereby release him from
a certain note of $700, drawn by him and in-
dorsed by Joseph H. Jackson and Peter A.
Millspaugh, of which note I am the holder;
not, however, relinquishing my right to re-
cover from any, or all of the indorsers, upon
said note. Dated September 23d, 1814. A.
Crawford."
A verdict was taken for the plaintiff, for the
amount of the note with interest, subject to
the opinion of the court. The case was sub-
mitted without argumeut.
Per Curiam. It is evident, from the facts
in this case, that the writing set up by the
defendant was made and executed some time
after the note had become due — indeed, after
the commencement of this action, and, conse-
quently, at a period when the defendant was
liable for the amount as indorser ; so that if
this note, in the hands of the plaintiff, as in-
dorsee, could even be considered, or treated,
as a 'parol agreement, it appears that the
promise, on the part of the indorser, was
broken, and could not be discharged by a new
agreement, without satisfaction, unless it be by
deed. The writing upon which this defense is
grounded, is not under seal, and is without
consideration ; it must be deemed a mere
nudum pactum. (Harrison v. Close, 2 Johns.,
450.) It is, therefore, unnecessary to advert to
the conditions showing the intention of the
party, as stated in the writing itself, to decide
whether it could be controlled by such condi-
tion, admitting it to be sufficient in other re-
88*] spects, *because enough appears, from
the facts in the case, to show that it cannot
affect the right of the plaintiff to recover.
Judgment must be entered for tJie plaintiff.
Cited in— 1 Cow., 126 ; 5 Lans., 10 ; 13 Abb. Pr., 104 ;
85111., 361.
HAYWOOD v. SHELDON.
Wager — On, Event of Horse-race — Parlies under
Statute.
An action to recover back a wager laid on the
event of a horse-race, is to be brought in the form
prescribed by the Act to Prevent Excessive and
Deceitful Gaming ; and if the plaintiff, in his declar-
ation, state that the action had accrued to him ac-
cording to the form, and as is prescribed by the
second and third section of the Act to Prevent Ex-
cessive and Deceitful Gaming, he will, nevertheless,
be permitted to show a cause of action arising
under the Act to Prevent Horse- racing.
The action is properly brought by the person who
made the bet, although he acted as the agent or
depositary of other persons.
Citation— I N. B. L., 22, 152.
IN ERROR, from the Court of Common
Pleas of the County of Columbia. The de-
fendant in error brought an action of debt in
the court below for $50, had and received by
the plaintiff in error, to his use, whereby an
action had accrued to him, to have and de-
mand the said sum, "according to the form,
and as is provided in the second and third sec-
tions of an Act of the State of New York,
entitled An Act to Prevent Excessive and De-
o42
ceitful Gaming." At the trial, the counsel for
the plaintiff below offered to prove that the
plaintiff and defendant had bet $50, respec-
tively, on the event of a certain horse-race,
and that the bet having been decided in favor
of the defendant, the stakeholder paid over
the plaintiff's money to the winner. The de-
fendant's counsel moved for a nonsuit, on the
ground that the plaintiff had declared under
the Act to Prevent Gaming, but that his evi-
dence related to an offense within the Act to
Prevent Horse-racing; but the court denied the
motion. The defendant then offered to prove
that the plaintiff, in making the bet, acted as
the agent of other persons, and had himself
bet but $10 of the $50. The court rejected the
evidence, and the jury found a verdict for the
plaintiff.
A bill of exceptions was tendered to the
court below, and a writ of error brought to
this court.
Mr. Van Buren for the plaintiff in error.
Mr. E. Williams, contra. *
YATES, J., delivered the opinion of the
court :
By the 5th section of the Act, entitled An
Act to Prevent Horse-racing, and for other
purposes therein mentioned (1 N. *R. [*89
L., 222), all contracts for money, or other
thing, bet, or staked, on a horse-race, are de-
clared void ; and the person who may have
paid any money, or any other thing, is author-
ized to recover the amount so paid upon the
issue or event of such race, in like manner as
is provided in the 2d and 3d sections of the Act,
entitled An Act to Prevent Excessive and De-
ceitful Gaming (1 N. R. L., 152), which second
section of the last-mentioned Act authorizes
the loser at any game, if the sum lost is of, or
above a specific amount, to sue for, and re-
cover the money so lost, or paid, in an action
of debt ; and that in such action it shall be
sufficient for the plaintiff to' allege, in his dec-
laration, that the defendant is indebted to the
plaintiff in the moneys so lost and paid, for so
much money had and received by such de-
fendant, to the plaintiff's use, without setting
forth the special matter.
The declaration, in this case, is in the gen-
eral form prescribed in the second section of
the last-mentioned Act, which is the correct
and only manner of proceeding to authorize a
recovery. It is true that it also states the de-
mand to be according to the form, and as is
provided in the 2d and 3d sections of the Act
entitled An Act to Prevent Excessive and De-
ceitful Gaming, which, if it has any meaning,
shows the action to be founded on the Statutes;
and it might, perhaps, as well have been
omitted ; but I can discover no reason why
this addition should prevent the court below
from receiving evidence applicable to the 5th
section of the Act to Prevent Horse-racing.
That section expressly declares, that a recovery
in the cases therein stated, of which the pres-
ent is one, shall be had in like manner as is
provided in the 2d and 3d sections of the above
Act, to prevent excessive and deceitful gaming.
The form of declaring is the same, in cases oc-
curring under the sections referred to, in both
the Statutes. The defendant could not be sur-
prised or misled by it ; nor can it be deemed
JOHNS. REP., 13.
1816
THE PEOPLE v. HOLBUOOK.
89
a misrecital. The court below, therefore, cor-
rectly allowed the sections from both statutes
to be read in evidence, and received parol testi-
mony as applicable to the issue joined by the
pleadings in the cause.
The proof offered by the defendant, that the
plaintiff, in making the bet, had acted as the
agent and depositary of other persons, and
that he had himself only bet $10 of the $50,
was properly overruled by the court. It could
OO*J be of no importance, *on the trial of this
issue, what number of persons had intrusted
the plaintiff with the money, and were thus in-
terested in the bet. That was an arrangement
exclusively between the plaintiff and them, in
which the defendant had no right to interfere,
and to which he was no party. He thought
proper to make the contract with the plaintiff
as principal, and not as agent. It is to him
alone that he is responsible. The Statute, in
authorizing the recovery of the money lost,
evidently intended that it should be by the
Berson in whose'name the bet had been made.
e only can be deemed the loser, and, conse-
quently, is alone entitled to the benefit of the
recovery ; and this, from the nature of the
transaction, is the only correct rule by which
the right to the amount lost can, in the first
instance, be tested. The persons having an
interest in the money, if such a claim or right
exists at all, must have it under a different and
distinct contract with the plaintiff, and may
afterwards seek their remedy from him. The
evidence was properly overruled, and the
plaintiff is entitled to judgment on the verdict
in the court below.
Judgment for the plaintiff.
Cited in-3 Wend., 496: 1 Hull. 306 : 7 Leg.Obe., 14.
THE PEOPLE n. HOLBROOK.
1. Evidence — Indictment for Stealing Note* —
Parol Evidence of Content*, Admissible —
" Chattels" may Denote Property and Omier-
fJiip. 2. Practice.
On the trial of an indictment for stealing1 u bank
bill, note, \.-.. under the Statute (1 N. H. I. . 174.
WHS. 24, eli. 88), parol evidence of the contents of the
bills or notes stolen is admissible, without account-
ing for their non-production.
where the indictment stated that the defendant
Stole "four promissory notes, commonly called
bank notes, given for the sum of $50 each, b> the
Mechanics' Hank, in the City of New York, which
were due and unpaid, of the value of $200, tho goods
and chattels of P. C., then and there found," &c., it
was held a sufficient description, without saying
they were the property of P. C. The word "chat-
tels denotes property and ownership.
It seems that a bill of exceptions will not lie in a
criminal case.
Citations- 1 Cam ph. Cas., 143 ; 3 Hos. & P., 143 ; 14
East, 274 ; 2 East. fro. Law, «02, 749 ; 2 East, (XJ1 ; 1
R. L., 174; Stat. Oeo. II., ch. 25; 2 HI. Com., 285.
Till! defendant was indicted, at the General
Sessions of the Peace of Oneida County,
for stealing bank notes. The indictment stated.
" for that (the defendant), with force and
arms, &c., at, &c., four promissory notes,
commonly called bank notes, given for the
sum of $50 each, by the Mechanics' Bank, in
the City of New York, which were then and
JOHNS. REP., 18.
there due and unpaid, of the value of $200,
and four other promissory notes, given by the
same bank, for $20 each, which were then and
there due and unpaid, of the value of $80, the
goods and chattels of Peleg Clark, then and
there being found, feloniously did steal, take
and carry away," &c.
*Other larcenies of bank notes were [*J)1
also charged, in another count in the indict-
ment, which is unnecessary to state.
The defendant was tried and convicted on
the indictment. A bill of exceptions was
taken, at the trial, to the opinion of the court,
overruling an objection to »md admitting
parol evidence of the contents of the notes,
without producing the notes, or accounting
for their non-production in any way.
The district attorney moving to bring on the
argument, on the bill of exceptions, the court
intimated a decided opinion that a bill of ex-
ceptions would not lie in a criminal case. (See
M'Nally's Ev., 825-329) It was then agreed
between the counsel for the defendant and the
attorney of the people, that the questions
arising'should be discussed as on a case made
for the opinion of the court.
Mr. Storr*, for the defendant, contended, 1.
That the indictment was defective in not
setting forth the notes more at large, with
proper averments of the authority of the bank
to issue such notes ; so that it might appear
that these were valid and existing securities.
This objection, he said, applied to both counts.
The Act of the Legislature, authorizing this
corporation to issue notes, gives authority to
issue them only in a particular manner ; and
it does not appear, ftpm the indictment, that
the notes in question were issued according to
the Statute. It is necessary that the tiling
charged to be stolen should be of some value.
(Phipoe's ca.se, 2 Leach's Crown Law, 774 ; 2
East's Crown Law, 599.)
2. The indictment does not state the notes to
be the property of any person ; it merely savs.
being the goods and chattels of P. C. In Rex
v. Oadi & Morris, 2 East's Crown Law, 601.
603, the court in England held that the word
" chattels" might be rejected as surplusage, if
the indictment was sufficient in other respects;
and, in that case, the words used were " prop-
erty and chattels" of S. Bank notes are mere
"choses in action." Should it be said that
this court have decided that bank notes may
be taken in execution, as goods and chattels,
(Handy v. Bobbin, 12 Johns., 220; S. P..
Holmes v. Nvncaster, Ib., 895), yet it does not
] follow that they are to be so considered in
criminal cases. * If they were so, it was idle to
pass the Statute.
8. The notes or securities ought to have been
produced ; or it should have been shown that
they were in the possession of the defendant,
and" could not be produced, before parol evi-
dence *was admited of their contents. [*912
The rule on this subject is the same in criminal
as in civil cases. (6 St. Tr, 58.229; 1 M'Nal-
ly's Ev., 848, 851. 858. 355 ; 1 Leach's Crown
Law, Rex v. Aicklet, 380, 882, 385, 886. n.)
Mr. Kirkland, contra, contended, that the
notes were sufficiently described ; they are
stated to have been made by the Mechanics'
Bank, of the City of New York, and signed by
I the president and cashier, and the sums are
SM
:92
SUPREME COURT, STATE OF NEW YORK.
1816
mentioned. In Milne's case, 2 East's Crown
Law, 602, it was held that an indictment, stat-
ing that the defendant stole "a promissory
note for one guinea," was good. All that is re-
quired, in such case, is, that there should be
convenient certainty in the description. (2
Hawk. P. C., 333, sec. 74; Ibid., 322, sec.
59.)
The Act under which the defendant was in-
•dicted (1 N. It. L., 174, sess. 24, ch. 88), declares
lhat if any person shall steal any bill of ex-
change,&c., or other public security, &c.,for the
payment of money, &c., being the property of
any other person, &c., notwithstanding any of
the said particulars are, or may be, termed in law
a chose in action, it shall be deemed a felony,
of the same nature and same degree as it would
have been if the offender had stolen ' ' any other
goods of the like value," &c. It is clear, from
the language of the Act, that these bills, notes,
<fcc., are to be treated precisely as goods or
chattels, in this respect. Besides, this court
has expressly recognized the doctrine that
bank notes are goods and chattels, but allow-
ing them to be taken in execution. (12 Johns.,
220, 395.)
Parol evidence, in this case, was admissible,
for, from the nature of the case, the thing
stolen is stated to be in the possession or
power of the defendant ; and it cannot he
.necessary to give him notice to produce it. It
is not in the power of the prosecutor to pro-
duce it, and, if the defendant does not, parol
evidence of its contents is admissible.
Per Curiam. We are of opinion that parol
evidence of the contents and amount of the
notes, charged to have been stolen, was prop-
erly received, without accounting for their non-
production. It has been repeatedly decided in
the courts of common pleas, and King's Bench,
in England, that in an action of trover for
bonds and notes, no notice to produce the
thing sought to be recovered was necessary.
.(1 Campb., Cas., 143; 3 Bos. & P., 143.)
Lord Ellenborough, in How \. Hall, 14 East,
274, put the decision on this strong and irre-
fragable ground, that where the form of the
i>3*J action gives the defendants notice to *be
prepared to produce the instrument, if neces-
sary, to falsify the plaintiff's evidence, it is not
necessary to give the defendant notice to pro-
duce the instrument. This reasoning applies
with equal force to an indictment for stealing
an instrument ; it supposed it to be in the
hands of the defendant, and he is apprised, by
the indictment, to produce it, if necessary, to
falsify the proof against him. And Lord
Ellenborough mentions a case before Justice
Buller, where parol evidence of the contents
of a note was permitted, without notice, upon
an indictment.
We think the notes sufficiently set forth ;
being in the hands of the defendant, it was
impracticable to state them in IKKC verba, and
the analogy between trover and an indictment
for instruments again arises ; a general de-
scription is all that is required in trover.
Milne's case, 2 East's Crown Law, 602, war-
rants this indictment. He was indicted for
stealing a promissory note for the payment of
one guinea; and, also, one other promissory
note for the payment of five guineas ; after
644
conviction, a question was reserved for the
opinion of the judges, whether the notes were
sufficiently described in the indictment ; and
all the judges held the indictment well laid,
and the conviction proper. It is true that
Craven's case, 2 East, 601, where the question
again arose, was determined differently by all
the judges; but we think the former decision
more reasonable and sound.
The remaining question is whether the notes
were well described as the goods and chattels
of Peleg Clark. The Statute (1 R. L., 174) en-
acts, " that if any person shall steal, &c., any
bill of exchange, bond, order, warrant, bill, or
promissory note, for payment of any money,
&c., being the property of any other person,
&c., it shall be deemed and construed to be
felony, of the same nature, and in the same
degree, and in the same manner, as it would
have been if the offender had stolen, &c., any
other goods of the like value with the money
due on such bill, &c., or secured thereby and
remaining unsatisfied, and such offender shall
suffer such punishment as he or she ought to
have done, if such offender had stolen, &c.,
other goods of the like value as aforesaid."
In the case of Sadi v. Morria, 2 East's Crown
Law, 749, it was held, by a majority of the
judges, to be improper to lay bank notes to be
chattels; and the Statute of 2 Geo. II., ch. 25,
is like our Statute. The dissentient judges
thought that the Statute *having made it [*94
felony to steal bank notes, in like manner as if
the party had stolen goods of the like value,
the receivers of such property stood in the like
predicament as the receivers of other goods
and chattels ; and East considers the opinion
in Sadi v. Mori-its' case as shaken by the reso-
lution of all the judges in Dean's case, and
other cases, wherein bank notes, by the opera-
tion of the Statute of 2 Geo. II., were holden
to be within the Statute of Anne, against
stealing money, goods, &c.
Blackstone (2 Com., 285) says, "that things
personal, by our law, not only include things
movable, but also something more ; the whole
of which is comprehended under the general
name of "chattels," which, Sir Edward Coke
says, is a French word, signifying goods."
"In the grand coustumier of Normandy (he
observes) a chattel is described as a mere mov-
able, but, at the same time, is set in opposition
to a fief or feud; so that not only goods, but
whatever was not a feud, were accounted
chattels ; and it is in this latter more extended
negativp. sense that our law adopts it ; the idea
of goods, or movables only, being not suffi-
ciently comprehensive to take in everything
that the law considers as a chattel interest."
We are of the opinion that, since the Statute,
it is sufficient to lay in an indictment that the
notes or instruments, mentioned in the Statute,
are the goods and chattels of any person who
is entitled to them ; and that the word " chat-
tels" denotes and signifies, when applied as in
this case, property and ownership ; and that,
consequently, the conviction is right.
Distinguished— 73 N. Y., 355.
Cited in— 17 Johns., 395 ; 19 Johns., 68 ; 30 Johns..
64 ; 3 Wend , 488 ; 13 Wend., 508; 48 N. Y., 485 ; 67 N.
Y., 30; 2 Abb. App. Dec., 425 ; 4 Trans. App., 205 ; 1
Sand., 251 ; 18 Wall.. 185 ; 2 Sura., 106 ; 5 Mason. 550 ;
37 Mich., 433.
JOHNS REP.. 12.
1816
JENNINGS v. CAMP.
94
point is whether a party who enters into a
contract, and performs part of it, and then,
without cause, or the agreement or fault of
the other party, but of his own mere volition,
abandons the performance, can maintain an
action, on an implied awumjuit, for the labor
actually performed ; and it seems to me that
the mere statement of the case shows the ille-
the claim.
_ j which are [*J)O
"where The special contract is still in force, the j considered well established, orecluding the
plaintiff cannot resort to .thi- jreneral counts. (plaintiff below from recovering: 1st. The
a «S5to°SSS«t totiw piai&s'riKht of I contract is open between the parties, and still
action. ! in force ; the defendant below has done no
Citationa-12 Johns., 274, 166; 6 T. R.. 320; 2 Mass., I ac] t°. dissolve or rescind it ; and it was de-
147; 7 Mass., 108; 10 Johns., 36. j cided in Raymond et al. v. Bernard. 12 Johns.,
274, upon a review of all the cases, that, if the
JENNINGS e. CAMP.
1 . Contract*— Special— F\ttt Performance it Con-
dition Precedent to Right of Action. 2. Plead-
ing.
Where a party enters into a special contract, and,
hnviiiir performed part of it, without the consent
or default of the otner party, voluntarily abandons
the further performance of it, he cannot maintain
I
N ERROR, from the Court of Common
Pleas of the County of Madison.
The plaintiff's declaration was in ajutumprit.
and contained two counts. The first count
5)5*] stated an agreement between the 'plaint-
iff and defendant, in the court below, dated
the 1st of July, 1812, by which Camp, the
plaintiff below and defendant in error, agreed
to log up, burn, and clear, fit for sowing, ten
acres of land on a certain lot belonging to the
defendant below, the plaintiff in error, in a
good farmerlike manner, by the 20th of Sep-
tember, and to fence the said ten acres with a
good rail fence, by the 1st of October next ;
and the defendant below agreed to pay the
plaintiff at the rate of $8 per acre, part to be
paid in oxen, &c. ; and then averred perform-
ance.
The second count was a general indebitatu«
for work and labor. The defend-
ant pleaded the general issue, and the jury
found a special verdict, viz.: "That the
plaintiff, in pursuance of the contract and
agreement mentioned in the first count, did
partly clear the land in that count mentioned,
out made none of the fence ; and then, of his
own accord, default and negligence, and with-
out any fault, default or consent of the de-
fendant, abandoned and gave up all further
proceedings towards fulfilling the said con-
tract, ana hath not yet finished or fulfilled
what be undertook to perform by the said
contract ; and whether, under these circum-
stances. it is competent and lawful for the
plaintiff to put an end to the said contract in
the said first count mentioned, and proceed on
a general count for work and labor, and to re-
cover the value of what he did in pursuance
of said contract, the jury are uninformed, and
pray the advice of the court," &c. : and they
assessed the plaintiff's damages, on the second
count of the declaration, at $50. The court
below gave judgment for the plaintiff, and the
cause was submitted to this court without ar-
gument.
SPENCER, J.t delivered the opinion of the
court :
This case does not present the question,
whether, on a failure to prove the special con-
tract, in consequence of a variance between
the declaration and the proof, the plaintiff
may not resort to the general count ; but the
Nor*.— Entire contract*— Full ptrfin-manc* a con-
tlitinit i>recedenl to recovery on.
Vanderlip, 12 Johns.. 106, note.
See M-Millan v.
special agreement was still in force, the plaint-
iff could not resort to the general counts. 2d.
The contract being entire, performance by
the plaintiff below was a condition precedent,
and he was bound to show a full and substan-
tial performance of his part of the contract ;
this was so decided in M'Miilan v. Vanderltp,
12 Johns.. 166. In Cutter v. Powell. 6 T. R.,
320, a sailor, hired for a voyage, took a prom-
issory note front his employer for thirty
guineas, provided he proceeded, continued,
and did his duty, as second mate, from Kings-
ton to Liverpool. Before the arrival of the
ship, he died ; and the court held that wages
could not be recovered, either on the contract,
or on a quantum meruit. The decision was
founded on common law principles. Lord
Kenyon said, that the doctrine that where the
parties have come to an express contract, none
can be implied, has prevailed so long as to be
reduced to an axiom in the law. Ashhuret, ./. ,
very pertinently observed: this is a written con-
tract, and speaks for itself; and as it is entire,
and as the defendant's promise depends on a
condition precedent, to be performed by the
other party, the condition must be perfoVmed
before the other party is entitled to receive any-
thing under it; that the plaintiff had no right to
desert the agreement, and recover on a quan-
tum meruit ; for, wherever there is an express
contract, the parties must be guided by it; and
one party cannot relinquish or abide by it as
it may suit his advantage.
The case of Faxon v. Man*field & Holbrook,
2 Mass., 147, is directly in point. Mansfield
agreed with Holbrook to erect and finish a
barn by a fixed day, when he was to receive
$400, in full compensation : he performed
part of the work, and left it unfinished, with-
out the consent, and contrary to the wishes of
Holbrook. Parsons, Ch. .j., in giving the
opinion of the court, said, on these facts Mans-
field could maintain no action, either on his
contract or on a quantum meruit, against Hol-
brook ; his failure arising not from inevitable
accident, but his own neglect.
*In Whiting v. SuUivan, 7 Mass., 109. [*O7
Parsons, Ch. J., said : " As the law will not im-
ply a promise where there was an express
promise, so the law will not imply a promise
of any person against his own express declara-
tion.>r
JOHNS. UK iv. 18.
N. Y. R., 5.
In Linninodalf v. Livingston, 10 Johns., 36,
we recognized a position, in Buller's JVtri
Priut, " that if there be a special agreement,
and the work be done, but not in pursuance
85 54»
SUPREME COURT, STATE OK NEW YORK.
181$
of it, tlie plaintiff may recover upon a quan-
tum meruit ; for, otherwise, he would not be
able to recover at all." This observation has
misled the court below. Correctly under-
stood, it has no application here. It supposes
a performance of the contract, with variations
from the agreement, probably with the assent
of both parties, or it may mean an extension
of the time within which the agreement was
to be performed, with the like assent. The
position never was intended to embrace the
case of a willful dereliction of the contract,
when partly executed, by one of the parties,
without the assent, and against the will of the
other.
Judgment reversed.
Distinguished-^ N. Y., 200.
Cited in— 13 Johns., 392 : 14 Johns., 327 ; 8 Cow.,
63 : 4 Wend., 276, 606 ; 12 Wend., 388 ; 13 Wend., 261 ;
16 Wend., 636 : 24 Wend., 63: 5 Denio. 408: 3 Johns.
Ch., 179 ; 4 Paige. 569 ; 9 N. Y., 96; 17 N. Y.,-185; 20
N. Y., 429; 45 N. Y., 165; 69 N. Y., 237; 4 Barb., 44;
14 Barb., 177; 66 Barb., 23; 49 How. Pr., 27 ; 4 Abb.
Pr., 434: 2T. &. C., 366; 2 E. D. Smith, 375 ; 3 E. D.
Smith, 656 ; 2 McLean, 186 ; Olcott, 399.
JACKSON, ex dem. CARMAN ET AL.,
v.
ROSEVELT.
Pleading — W/ectment — Action against Heir —
Title of Bona Fide Purchaser under Ifaecu-
tion, not Defeated fur Irregularity in Judgment
or Execution — tflit-riff'x Deed — Uncertainty
Avoids. ,
Where an heir, sued on the bond of his ancestor,
pleads mm ext factum, and the issue is found against
him, this is not such a false plea as will render him
liable de bonis propriis.
A sale, under an execution, to a hona jiilc pur-
chaser, cannot be defeated 1<T error or irregularity
in the judgment or execution, or on the ground
that no levy was made until after the return day.
A sheriff's deed to a purchaser under an execution,
describing the premises sold no otherwi-e than as
"all the lands and tenements of the defendants
situate, lying and being in the Hardenburgh pat-
ent," is void for uncertainty.
Citations— 2 Saunc!., 7, n. 4; Cro. Car., 437; 8 Johns.,
361.
was an action of ejectment for lots
Nos. 2, 7. 12, 17, 22, 26. 27, and half of
No. 21, in the subdivision of lot No. 20, in the
great lot No. 2, in the Hardenburgh patent,
situate in the town of Liberty, in the County
of Sullivan, and in which the parties agreed
on a case for the decision of the court.
On the 20th of April, 1708, letters patent
were issued to the seven proprietors of the
Hardenburgh patent, among whom was Leon-
ard Lewis, from whom the lessors of the
plaintiff ultimately derived their title. On the
flth of September, 1729, the patentees conveyed
to James Graham one equal undivided eighth
part of the tract ; and in 1730 Leonard Lewis,
having previously, by will, dated the 20th Feb-
ruary, 1723, devised his interest in the patent
to his wife Elizabeth, during her widowhood,
O8*] and, *at the termination thereof, to his
eleven children, as tenants in common, in fee,
NOTE.— Sheriff'* deed— Mu»t describe premises with
reasonable certainty. See Jackson v. Delancey,
post, 537, note.
646
of whom Joapsie, the wife of Laurence Vaik
Kleeck, was one. On the 31st of January,
1733, Gerardus Lewis, another of the children
and devisees of Leonard Lewis, conveyed his-
interest in the patent to Laurence Van Kleeck.
In 1749, a partition was made between the pro-
prietors of the patent, by which great lots Nos.
2, 17, 20, 28, and 36, fell to the representatives
of Leonard Lewis, between whom a subdivis-
ion of the part which they held in common,
was shortly thereafter made, and lot No. 20,
in great lot No. 2, was allotted to Joapsie, the
wife of Laurence Van Kleeck.
Joapsie Van Kleeck died intestate, about the
year 1758, seised of the lot No. 20, and leaving
live children, viz : Baltus, her eldest son, and
heir at law ; Leonard, Sarah, the wife of Ja-
cobus Van Kleeck ; Elizabeth, then married
to Jacobus Van Bummel, since the widow of
Henry Ellis ; and Tryntie. Soon afterwards
Laurence Van Kleeck died, seised of the share
in the patent, or some part thereof, purchased
as aforesaid from Gerardus Lewis, having de-
vised all his estate to his five children. On
the 9th of January, 1767, Baltus Van Kleeck
conveyed to each of the other children of Jo-
apsie Van Kleeck one fifth part of the share
which their mother had possessed in the pat-
•ent. Baltus Van Kleeck died in 1786, leaving
the lessors of the plaintiff his heirs at law.
In April Term, 1789, an action of debt
was commenced against Elizabeth Ellis and
Jacobus Van Kleeck, and Sarah, his wife (the-
said Elizabeth and Sarah being the heirs and
devisees of Laurence Van Kleeck), at the suit
of Thomas Marston and John- Marston, execu-
tors of Nathaniel Marston, on a bond, executed
by Laurence Van Kleeck, in the penalty of"
£1,000, conditioned for the payment of £500.
The defendants pleaded non eat factum, on
which a verdict was found against them, and
judgment entered the 5th of March, 1790.
The judgment was in the ordinary form of a-
judgment against defendants sued in their own
right, and has never been reversed, annulled
or set aside. Executions were issued, by which
part of the amount of the judgment was lev-
ied, and finally, a test. fi. fa. was issued to the
sheriff of the County of Ulster, reciting the
former executions, and describing the defend-
ants as "heirs and devisees of Laurence Van
Kleeck, deceased ;" but no further notice was
taken of their representative character, and the
levy *was not restricted to be made de [*91>
bonis testatoris, but of the goods and chattels
of the defendants, and of the lands of which
they were seised on the day of the entry of
the judgment.
By virtue of this execution, the sheriff of
Ulster levied upon all the lands and tenement*
of Elizabeth and Sarah, the heirs and devisees
of the said Laurence Van Kleeck, and con-
veyed the same to John C. Wynkoop, by deed*
of lease and release, dated the 14th and 15th
February, 1792. The deed of release recited
that the sheriff had exposed to sale "all the
lands and tenements of the said Elizabeth and
Sarah, heirs and devisees of the said Laurence-
Van Kleeck, situate, lying, and being in the
patent commonly called, or known, by the
name of the Hardenburgh or Great Patent, in
the County of Ulster ;" and the premises con-
veyed were described as follows : "All the
JOHNS. REP., 18.
1816
JACKSON, EX OEM., KOBEVELT.
.said lands and tenements of Elizabeth and
Sarah, the heirs and devisees of the said Lau-
rence Van Kleeck, deceased, with the rights,
members, and appurtenances thereof, situate,
lying, and being in the suid patent, in the
County of Ulster, with the hereditaments and
appurtenances," &c.
On the 14th March, 1793, AVynkoop com-
menced proceedings for a partition, unaer the
An of March 16th, 1785, of the land thus
purchased by him. In April, 1794, the com-
missioners tiled their partition in the clerk's
oilice of Ulster County, and set apart lot No.
•jo. in the subdivision of great lot No. 2, to de-
fray the expense of the partition. This lot
wa-. accordingly, sold and conveyed by two
of the commissioners, under which sale,
through sundry metne conveyances, the de-
fendant derived his title to the part of the lot
which he possessed.
Mr. P. Rnggle*, for the plaintiff, contended,
1. That John C. Wiukoop. on the 14th of
M:irch, 1793, when he commenced his proceed-
lu-T- in partition, had no right or title in lot
N'->. 20, in great lot No. 2, and that the pro-
:iugs were, therefore, void; and that the
le-sors of the plaintiff, after the death of Bal-
tus Van Kleeck, in 1786, being seised of one
fifth of lot No. 20. in the subdivision of great
lot No. 2, as his heirs at law, must be entitled
to recover.
The proceedings of Thomas Marston and
others, a'^.iinst Elizabeth and Sarah, the sis-
ters of B.iltiH, were against them as heirs and
devisees of Laurence Van Kleeck, when, in
fact, they were purchasers under Baltus, and
1OO*J claimed no title to the premises *by
tlf-«-ent or otherwise. These proceedings be
iriix against them as heirs and devisees, their
•>.\n proper estate could not be taken. (1
nleafs ed., Stat., 408, 409, sess. 10, ch.
'•cs.. 6. 7. See, also, 1 Greenleaf's ed..
236, 237. se.vs. 9, ch. 27, 408, ch. 56, sec.
6.) The Act under which the partition was
made was that of the 16th March, 1785, sess.
i 39; 1 Greenleaf's ed.. Stat., 165.
The plea of nonettf/tctum, of the ancestor, is
not H false plea ; and if it were found false, it
would not vary the judgment ; but the lands
only which defended would be liable to exe-
cution. (2 Saund., 7, »./ 4 Cro. Car., 486 ; 2
Tidd's Pr., 855.) Here was a pretended levy
-ale of lands to which the heirs of Baltus
Van Kleeck had no right, and the proceedings
under the partition could not give any right.
If the deed can have any operation and effect,
it must te on the property devised by Lau-
rence Van Kleeck to his five children.
Again ; the deed from the sheriff is void,
at being too general and indefinite to pass any
to the grantee. It does not appear to
In* intended to convey the premises in ques-
tion. In all sales by sheriffs or other of-
ficers, under execution, the property must be
ascertained bv clear and definite description or
bounds. (2 Johns. Cas., 884; 2 Johns. 248;
11 Johns., 365, 873.)
Again ; the execution issued more than a
.M' i a day after the judgment, without its
twin-.; revived ; and the sale was long after the
return day of the execution ; and it does not
appear that any levy was made before the re-
turn day. (4 Johns., 450.)
.Jons-. REP., 13.
I Mr. Uriffin, contra, contended that Wyn-
koop had a title to support the proceedings in
partition. If heirs and devisees plead falsely,
and knowingly, judgment goes against them
personally. (8 Bac. Abr., 465, Heir, H.) The
judgment might be general, though the lands
only affected by it would be liable to be sold. (6
Johns., 59, Jaehtonv. lloag.) The generality
of the judgment, at most, was an error to be
taken advantage of by the defendants. It did
not render the judgment void. The defendants
having acquiesced, and never brought a writ
of error, the judgment is conclusive, and third
persons, or strangers, cannot allege error. (2
Bac. Abr., Error, B.) Though the judgment
were erroneous, and should be afterwards set
aside or reversed, yet the title of an intermedi-
ate bona fide purchaser, at a sheriff's sale, can-
not be prejudiced. (Manning's case, 8 Co.,
191.) So. an error in the execution will not
vitiate the title of a bona fide purchaser at a
sheriff's sale. (Jackson, v. Bartlett, 8 Johns.,
361.) Nor can the generality of the description,
in the sheriff's deed be objected by a stranger ;
and it being an undivided right, it could not
well be described more 'particularly, [*1O1
without setting out the whole bounds of the
great Hardenburgh patent.
The Act (sess. 8, ch. 39. sec. 4 ; 1 Greenleaf's
edit., L. N. Y., 165) declares, that the commis-
sioners' "deed to the purchaser shall pass as
good a title, for the separate enjoyment of the
same, as if all the patentees or proprietors of
the land had made and executed the same, in
due form of law." The 7th section provides that
any mistakes in drawing the lots, by those hav-
ing no title, A.T., shall not defeat the partition
or title. Purchasers at a public sale, by the
commissioner under this Act, stand on the
same ground with purchasers at a sheriff's
sale, and ought to be equally protected.
YATES, «/., delivered the opinion of the
court :
The first question in this cause, is as to the
validity of the general judgment entered in the
suit instituted by the executors of Nathaniel
Marston, against Elizabeth Ellis and Jacobus
Van Kleeck ; and Sarah, his wife, as heirs and
devisees of Laurence Van Kleeck, under which
the defendant claims his title, derived from
the purchaser at a sheriff's sale, in virtue of an
execution issued on that judgment.
The rule recognized in the books is, that
when the heir pleads a false plea, the plaintiff
is entitled to a general judgment, but that non
ettftictum of the ancestor is not deemed such a
plea, if even it be found, on the trial, that the
ancestor had executed the deed. In 2 Saund.,
7, ». 4, it is expressly laid down that the plea
of non estfaelum of the ancestor is an excep-
tion to the above rule ; that if it be found
false, it does not alter the judgment, but the
lands descended only are liable to execution.
The case of Cbt/ncorthy v. Clnthioorthy, Cro.
Car., 437, supports the same principle.
It is manifest, then, that the judgment on
which the premises were sold to John C. Wyn-
koop, by the sheriff of Ulster County, is erro-
neous, and might have been corrected, on
proper application for the purpose. It cer-
tainly cannot be deemed void altogether, par-
ticularly as against a purchaser at a sheriff's
MI
101
SUPREME COUKT, STATE OF NEW YORK.
1816
sale, because it is the judgment of a court of
general jurisdiction, and the time of entering
it was known to the defendant. It might, at
their instance, have been modified or set aside,
previous to the sale ; but that not having been
done, it remained in force, and was in opera-
tion at the time of sale ; and the title to
lands under it, in the hands of an innocent and
1O2*] boiiafide purchaser, *ought to be pro-
tected by it, unless such sale is rendered ques-
tionable on other and different grounds.
The objections that it took place long after
the return day of the execution, and that it
did not appear that a levy had been made be-
fore the return day, ana that the execution
had not been issued until more than a year and
a day after judgment, cannot affect the sale.
In Jackson, ex dem. M'Crea, v. Bartlett, 8
Johns., 361, this court decided that in an ac-
tion of ejectment against a purchaser under a
sheriff's sale, the regularity of the execution
could not be questioned; and that if an execu-
tion issues after a year and a day, without a re-
vival of the judgment by sci. fa., it is only
voidable at the instance of the party against
whom it issued. In this case, I can see no
reason why the same doctrine should not ap-
ply to the irregularity of the judgment, as well
as the execution. A contrary principle would
be attended with manifest injustice to pur-
chasers. The defendant in the suit knew, or
ought to have known, the consequences which
would inevitably follow their allowing the
judgment to remain. Having appeared and
pleaded, in the suit against them, as heirs and
devisees, and a part of the debt having been
collected from them by the sheriff of Dutchess
County, in virtue of an execution on the same
judgment, before the sale made by the sheriff
of Ulster, it cannot be presumed that they
were not fully apprised of the operation of
the judgment on all the real property owned
by them. Their negligence and acquiescence,
therefore, in not causing it to be set aside in
season, would be conclusive against them, pro-
vided the deed executed by the sheriff of Uls-
ter, to John C. Wynkoop, on the sale under
the judgment and execution before stated, is
sufficient in law, to convey the premises in
question.
The deed contains the following description:
"All the lands and tenements of Elizabeth Ellis
and Sarah Van Kleeck, heirs and devisees of
Laurence Van Kleeck, situate, lying and being
in the patent commonly called and known by
the name of the Hardenburgh patent."
This description is too general : it does not
define the lots, or parts of the lots of land owned
by the defendant named in the judgment; nor is
the allotment in which they are situated men-
tioned; although, by the case, it appears that
the patent had been divided among the propri-
etors, and that such partition was notorious;
for it is stated to have been recorded in the
1O3*] office *of the Secretary of State, and
that it had been confirmed by an Act of the
Legislature. To say, therefore, that a sheriff's
deed for all the lands and tenements of Eliza-
beth Ellis and Sarah Van Kleeck, in this patent,
containing a tract of land evidently one of the
most extensive in the State, and comprehending
a district of country lying in several counties,
is sufficient, would be giving an unprecedented
548
latitude to the officer making a coercive sale,
and by mere operation of law; and might be
attended with consequences destructive to the
rights of the debtor. No estimate of the value
of the lands offered for sale could be made
from this general and indefinite description ;
and without some definite information as to
its situation, there must generally be a sacri-
fice of property, either by the debtor or pur-
chaser. In most instances, if not invariably,
the former would experience the loss. The
officer ought to prevent such a consequence.
The least that can be required of him, in mak-
ing the sale, is so to locate the lands, as to
afford means to the by-standers and bidders of
informing themselves as to the value. That
was not done in the present case. The deed
given by the sheriff of Ulster must be deemed
wholly inoperative, for the want of a sufficient
description of the premises alleged to have been
sold by it. If so, John C. Wynkoop, to whom
the deed was given, had no right to institute
proceedings in partition under it. The com1
missioners, consequently, appointed by the
court, under those unauthorized proceedings,
could not give a title to the purchasers, which
is the source of the defendant's claim.
The 4th section of the Statute for partition
of lands, passed 16th of March, 1785, declaring
that the deed of the commissioners, or any two
of them, to the purchaser of lands set apart,
and sold to defray the expenses of partition,
shall pass to him as good a title for the sepa-
rate enjoyment of the lands so purchased as if
all the patentees or proprietors of the said land
had made and executed the same, in due form
of law, cannot avail in this case. It is true the
premises in question are held under a purchase,
at a public sale, intended, unquestionably, to
have been made by the commissioners, accord-
ing to and under the Act above mentioned ;
but, as before shown, no authority existed by
which John C. Wynkoop could institute those
proceedings, and, of course, the confirmatory
clause in the Act does not apply to the deed
given by them. There is nothing, therefore,
*to preclude the lessors of the plaintiff, [*1O4
as the representatives of Baltus Van Kleeck.
from setting up their claim to the premises in
question.
Laurence Van Kleeck held his lands in the
Hardenburgh patent, by deed from Gerarclus
Lewis, one of the children of Leonard Lewis,
being one eleventh of one eighth of all the
lands in the patent ; and it appears, by the first
partition, that great lots Nos. 2, 17, 20, 26, and
28, fell to the share of the legal representatives
of Leonard Lewis. What lots or parts of lots,
in the subsequent subdivision between those
representatives, were drawn to the share of
Laurence Van Kleeck, is not stated in the case;
nor was it necessary for the purposes of this
decision ; that, however, must appear from the
map of this subdivision, stated to have been
filed in the office of the Secretary of State. He
devised his estate in the patent to his four
children, so that each child held an equal in-
terest in the lands which had been allotted to
him, and of which he died seised.
Joapsie, or Jacobsie, the \\ife of Laurence
Van. Kleeck, also held one eleventh of one
eighth of all the lands in the patent, in virtue
of the will of her father, Leonard Lewis ; and
JOHNS. REP., 18.
1816
HALL v. DEAN.
104
in the subdivision before mentioned, lot No.
20, in the subdivision of great lot No. 2. fell
to her share. She died intestate, seised of that
lot, leaving Baku* Van Kleeck her heir at law.
He conveyed to each of the remaining four
children one undivided fifth part of their
mother's right in the patent, retaining one fifth,
to which his children, who are the lessors of
the plaintiff, are entitled. The premises in
question are comprehended within the above
lot N'o. 20. Judgment must, consequently, be
entered for the plaintiff for one undivided fifth
part of those premises. '
Judgment for the plaintiff.
Sheriff** tale— IrrcaularUie*— Bona flde purchaser
protected. Dtttafubtod— M \\Vnd., 387.
Cited In— 18 \\Vii, I.. 1^4; 10 Paige, 408 ; lLans.,412:
27 Hun, 165: 4 Barb.. 183: 5 Barb.. «W: 1 Boe., 121 ; 4
S;m.l.. 471 : 39 Super.. 537 : 2 E. D. Smith. 493 : 2 Leg.
Otri.. 3titf : 2 McLean, 64.
Sheriff"* Atui voiii for f mie.AnUenoM. Cited in— 18
Johns., 388: ION. Y.. 533: 17 N. Y..380: 23BarbnM
Alao cited in-33 Wend.. 498.
105* J
•HALL v. DEAN.
t — Of Quiet Enjoyment and against
Incumbrances — Outstanding Judgment is a
Breacli of.
Whore grantor covenanted that the grantee should
peaceably and quietly, hold the premises, without
any let. suit. 4c., of the grantor, or of any person
lawfully claiming under him, and that free from all
forni'T IncumbnUMM of what nature or kind so-
:iuule by the grantor: it was held that a judg-
ment atroinst tbe grantor, outstanding at the time of
• •\ ••iitniK' the deed, wasa breach of the covenant;
and that the grantee, having satisfied the judgment,
without waiting until he was evicted, was entitled
t<> n-cover the amount paid from the grantor.
Citations— 3 Johns., 471 ; 5 Johns., 130 ; 7 Johns,,
was an action of covenant. The dec-
L laration stated that on the 30th of March,
1804, the defendant and his wife executed a
certain deed, by which, for the consideration
of $4,625. they conveyed certain premises to
the plaintiff, in fee ; and the defendant, among
other things, covenanted " that the said Joseph
ll:ill. his heirs and assigns, should, and might,
at all times thereafter, peaceably and quietly
have, hold occupy, and enjoy the above-
granted premises, and every part thereof and
the appurtenances, without let, suit, trouble,
molestation, eviction or disturbance, of the
said Daniel S. Dean, his heirs or assigns or of
any other person, lawfully claiming or to claim
by, from or under him, or any of them; and
that free, clear, discharged, and un in cum-
bered, from all former and other titles, charges,
estates, incumbrances, of what nature or kind
soever, had, made, committed, done or suf-
fered, by the said Daniel, his heirs or assigns,
or by any other person or persons whomsoever,
anything having or claiming in the premises."
The plaintiff then averred that John Murray
and Edward Peyer, executors of Jacob Watson,
obtained a judgment in the Supreme Court
against the defendant for $10,800 debt, and
• "» damages, which was docketed, prior to
the execution of i he deed, on the 23d of Feb-
ruary, 1804. which judgment remained and
continued in full force and virtue, and was ft
JOHNS. REP.. 13.
valid existing incumbrance on the premises,
until on the 5th of May, 1804. when the plaint-
iff was forced to pay. and did pay, the sum of
$3,700 for, towards and in satisfaction of, the
said judgment.
To this declaration there was a general de-
murrer and joinder in demurrer. The cause
was submitted to the court without argument.
YATES. J., delivered the opinion of the
court :
If this had been a covenant for quiet enjoy-
ment only, it is clear that a lawful eviction of
the grantee would be necessary to authorize the
action, because such a covenant goes to the
possession, and not to the title (3 Johns., 471 ; 5
Johns., *130); but in this case the cove- [MOO
nant against incumbrances is coupled with it.
The defendant not only covenants that the
plaintiff shall peacefully and quietly occupy
and enjoy the premises, 'but that the premises
shall be free, clear, discharged and unincum-
bered of, and from all former and other titles,
charges, estates, and incumbrances, of what
nature or kind soever, had, made, committed,
done or suffered, by the defendant, his heirs or
assigns or by any other person or persons,
whomsoever. Is it true, then, according to this
covenant, that the premises were thus unincum-
bered when the conveyance was executed ?
The contrary appears to be the case. The
judgment of Murray & Peyer, survivors of
Murray, Peyer & Watson, executors, &c., was
an existing incumbrance at the time. The
allegation in the covenant is not, therefore,
founded in fact. The covenant must be deemed
to have been broken, and without discharging
the incumbrance. the plaintiff would have been
entitled to nominal damages ; but in this case
the judgment was averred to have been paid
by him, which he had a right to do without
waiting until he was evicted. He has, there-
fore, properly resorted to his action on the
covenant, to recover back the amount paid by
him, in extinguishment of the judgment
against the defendant. (7 Johns., 358.)
Judgment for the plaintiff.
Cited io-2 Wend., 406; 10 Wend., 149; 17 Wend.
100: 63 X. Y., 40; 64 N. Y., 402; 22 Hun, 433: 23 Hun.
5 ; 82 Barb.. 265; 1 Duer. 335; 3 Rob.. 212 ; 37 Super.,
82.
JACKSON, ex dem. PHILLIPS,
- *• *
ALDRICH.
Kjfftment — Notice to Quit not Necessary where
the Relation of Landlord and Tenant does not
Exist.
Where A conveys land to B, and B conveys the
same land to C, but A still continues in possession,
C may bring an action of ejectment against A with-
out giving him notice to quit, there being no rela-
tion of landlord and tenant subsisting between
them.
Citations— 3 Johns., 422; 1 Johns., 322,324; 2 Johns..
::•: 4 .Johns.. -M:>: H Johns., 4«: 1T.R..182; 1 Cruise,
273 ; 3 Burr., 1«» ; Co. Litt., 55 a, n. 3 : 10 East, 261 :
1 K. L.. 444 ; 1 T. 1L, 3K7 : 13 East, 210 ; 9 Johns.. 330,
269 ; 10 Johns., 335 ; 7 T. R., 83.
THIS was an action of ejectment, for land in
the town of Cornwall, in the County of
549
IOC
SUPREME COURT, STATE OF NEW YORK.
1816
Orange, and was tried before the Chief Jus-
tice, at the Orange Circuit, in September,
1815.
The plaintiff, at the trial, produced a deed
for the premises in question, from Silas Al-
drich, the defendant, to Harry Garrison, dated
May 10th, 1802, and a deed from Garrison to
the lessor of the plaintiff, dated May 1st, 1802.
It was admitted that the defendant had been
in possession from the date of the first-men-
tioned deed, and was still in possession.
1O7*] *On the part of the defendant, Will-
iam Townsend and Samuel M'Coun deposed
that they were referees appointed by a rule of
the Supreme Court, in a suit brought by the
defendant against Harry Garrison ; that the
referees met and heard the cause, and made
their report in September, 1814; that, upon
the hearing, Aldrich having established a con-
siderable demand against Garrison, the latter,
by way of set-off, demanded rent from Aldrich,
as his tenant, and having established his right
to that charge, to the satisfaction of the refer-
ees, they allowed him, by way of set-off, rent
for the premises in question up to the time of
making their report. On this testimony, the
defendant insisted that, being the tenant of
Garrison, and so of his grantee, he was entitled
to notice to quit. But the Chief Justice being
of opinion that the defendant was not entitled
to notice to quit, the jury, pursuant to his di-
rection, found a verdict for the plaintiff.
A motion was made to set aside the verdict,
and for a new trial.
Mr. Burr for the defendant.
Mr. Storey, contra.
THOMPSON, Ch. J., delivered the opinion of
the court :
In May, 1802, the defendant conveyed the
K remises in question to Harry Garrison, who,
i May, 1812, conveyed the same to the lessor
of the plaintiff. The defendant has continued
in possession ever since his conveyance to Gar-
rison; but how, or in what character, does not
appear. It is now contended that he is en-
titled to notice to quit.
Whatever appears in the case, relative to a
claim for rent by Garrison, after he conveyed
the premises to the lessor of the plaintiff,
must be entirely laid out of view. For it is a
proposition that cannot be questioned, that a
grantor cannot, after the execution of his deed,
lawfully do any act to prejudice the rights of
his grantee. I^or are any declarations, confes-
sions or admissions of his to be admitted
against the grantee. Suppose the proof of-
fered had been that Garrison, after his convey-
ance, acknowledged that the defendant was
his tenant. This, clearly, would not have
been admissible. And if he would not be al-
lowed to say this directly, to the prejudice of
his grantee, he certainly will not be allowed to
1O8*] say the same thing indirectly. *The
lessor was no party to that claim for rent, and
what appears a little extraordinary is, that
Garrison claimed and recovered rent for two
years after he had sold the land. Rejecting,
then, everything in relation to the rent, the
case rests upon the naked facfr that the defend-
ant continued in possession after he conveyed
the land to Garrison, without the least evidence
•whatever that the lessor of the plaintiff even
550
knew that he was there, until he brought the
present action against him.
It is unnecessary to tiavel over all the rases
that have been before this court on the ques-
tion of notice to quit. It may, I think, be
taken for granted, that the doctrine has already
been pushed far enough. To extend it to the
case before us would, in my apprehension, be
going much farther than we have yet gone.
The principle upon which this question turns,
is laid down in Jackson v. Deyo, 3 Johns.,
422 ; the court there say, expressly, that it
never has been decided that a notice to quit
was necessary, unless where the relation of
landlord and tenant existed. This was the
principle which governed the case of Jackson
v. Bryan, 1 Johns., 322, which is, perhaps, as
strong a case as is to be found in favor of the
doctrine. Yet, in that case, it was put upon
the ground that there was a tenancy from
year to year, which was inferred from the
special circumstances of the case; which,
among other things, were, that possession was,
originally, taken by the express permission of
the owner of the land, accompanied with a
promise to pay for improvements.
The cases which have been decided in this
court, on ejectments by mortgagees, will serve
further to illustrate this principle. In Jackson
v. Longhead, 2 Johns., 75, where the action
was by the mortgagee against the mortgagor,
notice to quit was deemed necessary, because
there was a privity of contract as well as of
estate, and a kind of tenancy existed, but what
kind is not stated. It could not have been
anything more than a tenancy at will ; and
therefore, in Jackson v. Fitlter, 4 Johns., 215,
where the action was by the mortgagee against
the purchaser of the interest of the mortgagor,
no notice to quit was deemed necessary ; be-
cause the purchaser was a stranger to the con-
tract between the mortgagor and mortgagee,
and there was no privity of contract or estate.
If this had been an action by Garrison himself,
it would be very difficult to maintain, upon
any principle heretofore settled, that he would
have been bound to give notice to quit. There
was, certainly no relation of landlord and ten-
ant *created by any express agreement; [*1OO
and to presume such relation from the naked
fact that the defendant continued in posses-
sion, would be carrying the doctrine of pre-
sumption beyond what, in my judgment, the
rules of law will warrant.
It may be said that an action for use and
occupation would have lain by Garrison against
the defendant, and that this furnishes the test
with respect to notice to quit. This, certainly,
cannot be the test, for it cannot be pretended
that a mortgagee can maintain an action for
use and occupation against a mortgagor ; yet
he is bound to give him notice to quit. But
no action for use and occupation could have
been maintained by Garrison. In the case of
Smith v. Stewart, 6 Johns., 46, it is said, by
this court, that the statute which gives this
action applies only to the case of a demise,
and where there exists the relation of land-
lord and tenant, founded on some agreement
creating that relation. But where, it may be
asked, is the evidence of any such agreement?
Why presume an agreement for a lease, rather
than any other contract? The mere fact of
JOHNS. REP., 13.
1816
THOMPSON v. DAVIEB.
109
a twelve years' possession, without the pay-
ment, or even claim of rent, would more nat-
urally lead to the conclusion of a reconvey-
ance by Garrison, or that his title had been,
in some way, extinguished. It is irrational,
and against the usual course of dealing be-
tween landlord and tenant, to permit such a
length of time to elapse without payment or
claim of rent. It is true, where there has
been a lease which has expired, and, by the
•consent of both partie*. the tenant continues
in possession afterwards, the law will imply a
t aril renovation of the contract, and a tenancy
from year to year is created by implication.
<1 T. It.. 162.) But. in such cases, there is
something from which a continuance of the
may reasonably be presumed, the prior
relation of landlord and tenant having been
•expressly shown. In the case before us, no
foundation is laid for any such presumption.
The utmost that could be claimed by the de-
fcndant, against Garrison, would be a tenancy
at will ; and this relationship was determined
by the sale to the lessor of the plaintiff. A
tenancy at will is at the will of both parties,
landlord and tenant, and either may determine
hi- will, and quit his connection with the other,
win-never he pleases. This may be done, on
the part of the landlord, either by express
•declaration, or by the exercise of any act of
ownership which is inconsistent with the nat-
ure of such estate. (I Cruise, 273.)
1 1O*1 *The observation which fell from
Lord Mansfield, in Timmin* v. Roioliaon, 3
Burr., 1609, that leases at will, in the strict
legal notion of a lease at will, exist only uo-
tionally. has by some been construed into the
expression of an opinion that no such estates
existed at this day. This, I apprehend, is a
mistaken interpretation of His Lordship's
meaning. The construction given by Mr.
llargrave (Co. Litt., 55 a, n. 3) is undoubted-
ly the true one : " This observation." he says,
" means not that estates at will may not arise
now as well as formerly, but only that it is no
longer usual to create such estates by express
words." (1 Johns., 324, and cases there cited.)
I think I have shown that the case furnishes
no evidence that the defendant was tenant,
from year to year, to Garrison ; and admitting
him to have been a tenant at will, even as
against Garrison, he is not entitled to notice to
quit. That right is lost by the sale, by Garri-
son, to the lessor of the plaintiff ; and there is
no ground upon which he can be required to
give any such notice. The motion for a new
trial must, accordingly, be denied.
SPEMCEU, «/., dissented. I cannot yield my
Assent to the opinion of the court. The plaint-
iff ought either to have been nonsuited, for
tin- want of notice to quit, or, at all events,
the p. lint should have been submitted to the
jury, to decide whether, from the facts, the
<l<'fendant was not in possession as a tenant to
the lessor of the plaintiff. (10 East, 261.)
The defendant, in 1802, conveyed the prem-
'o H. Garrison, who, in 1812, conveyed to
Phillips. The defendant retained the posses-
sion from the time he so conveyed until the
trial. These facts are conclusive, m my judg-
ment, to show that the defendant's possession
was not, and could not be, adverse to Garri-
JOHNS. Hi: iv. 13.
son. but that he occupied by his implied per-
mission and consent. Could not Garrison re-
cover against the defendant, for use and occu-
pation, under the 31st section of the Act Con-
cerning Distresses, Ac. ? (1 R. L., 444.) I
think it does not admit of doubt that he could.
Since the statute, an express as well as an
implied agreement, on the one side to let, and
on the other to take and hold, will support an
action for use and occupation. In the present
case, the defendant conveys the premi>>e« to
Garrison, and retains possession : most mani-
festly, it must be with Garrison's consent ;
*ana, if so, the law confers the right of [* 1 1 1
demanding rent. The alienation by Garrison
to Phillips did not change the relation in
which the defendant stood ; Phillips succeeded
to Garrison's rights and situation. (1 T. R.,
387 ; 1 Johns., 322. Jnehnn v. Bryan.)
It follows that if Garrison could not main-
tain an ejectment without, notice to quit, his
grantee could not.
I shall not travel through all the cases upon
the subject of notices to quit ; it is now the
settled law. both in the English courts and in.
this court, that wherever the relation of land-
lord and tenant exists, or whenever it can be
shown that the defendant entered lawfully
into possession and by the permission of the
owner, and has done no act hostile to him, he
cannot be treated as a trespasser, and subjected
to an action of ejectment, without notice to
quit, or a demand of the possession. (13 East.
210 ; 9 Johns., 330, 269 ; 10 Johns., 335 ; 7 T.
R., 83.)
It is unnecessary, in this case, to go further
than to say the defendant was in possession
with the implied consent of Garrison. It would
nor he difficult to maintain, that he was in as
tenant from year to year, and was entitled to
six months' notice to quit.
There is nothing unreasonable in the doc-
trine of notice to quit. The rights of the land-
lord are not in the least impaired by requiring
it, whilst tenants are not to be treated as tres-
passers, and subjected to costs, without any
fault on their part.
Motion denied.
Cited in— 17 Johns., 1«0 : 7 Cow., 750 : 1 Wend., 344 :
17 Wend., 472 ; 36 N. Y.. 484: 2 Trans. App., 110: 8
Barb., 578 ; 14 Barb., 257 ; 46 Super., 317.
•THOMPSON t. DA VIES. [*112
Sales under Execution — Agreement Tending- to
Prevent Competition, it Void.
A and B having executions against C, of which
A 's execution WHS the elder lien, and C I>«-JIIK In-
debted to D. it was agreed between A and I), that
A should pay D $225 : that, at the sale under the
executions, A should hid off the personal property
of C to the amount of his execution, and that 1 >
NOTE.— Agref.mt.nt not to foul at note on execution,
r«iil. See Doolin v. Ward, « Johns, 1H4. n»tt ; Jonca
v. Coswell. 3 Johns.. 29 : Brisbane v. Adams, 3 N. Y.t
1 •-".': Wilbur v. How, 8 Johns., 444: Hook v. Turner,
22 Mo.. :«{.
I'ttimiiUration — KnpecMlti of neo»ti<il>U instru-
ment — When U m«>/ beffu/uired into. See Baker v.
Arnold, 3 Tat, 279, note ; Frisbec v. HoffnHgle.il
Johns., 50, note. '
H(rtK.— Negotiable paper— Consideration— When
inquired into. /•'<«• full discussion, tux note to Baker
I v. Arnold, 3 Cut, 279.
out
112
SUPKEME COURT, STATE OK NEW YOUK.
181$
should bid off the real property of C to the amount
of B's execution, should dispose of the same, and
after satisfying his own demands against (', should
refund A the said sum of $225. A and D, at the sale,
bid off the property of C in conformity to the agree-
ment, and D disposed of the real estate, and after
satisfying his own demands against C, there was a
sufficient surplus to repay A, and A brought his ac-
tion to recover the money : Held, that although
here was a sufficient consideration to support D's
promise, yet that the agreement itself was void, be-
ing contrary to public policy, as it was an agree-
ment tending to prevent competition at a sale un-
der execution, and thus injurious to the original
debtor.
Citations— 3 Johns. Cas., 29; 6 Johns., 194; 8 Johns.,
444 ; Cowp., 395 ; 6 T. R., 642.
THIS was a motion in arrest of judgment.
The declaration was in assumpstt, and
contained six counts, on a special agreement.
The first count stated, that on the llth of
July, 1808, a fi. fa. was issued out of this
court, at the suit of the plaintiff, against one
Doughty, for $765 debt, and $14.60 damages,
to the sheriff of the County of Dutchess, by
an indorsement on which the sheriff was di-
rected to levy $881.87 debt, with interest, and
$17.91 costs: and that, on the llth of July,
1808, another fi. fa. was issued out of this
court, at the suit of the Bank of Columbia,
against the said Doughty, for $994 debt, and
$15.25 damages, to the sheriff of Dutchess, by
an indorsement on which he was directed to
levy $447 debt, with interest, and $18.56 costs,
which last-mentioned writ was younger than
that in favor of the plaintiff, as to its lien, both
on the real and personal property of Doughty;
by virtue of these writs, the sheriff levied
upon all the personal property of Doughty,
and also upon a certain farm, and exposed the
same to public sale ; that, before the time of
the sale, the defendant, as one of the firm* of
William Davies & Co., an'd the plaintiff, had
indorsed a certain note for Doughty, at the
Bank of Columbia, for the sum of $100, which
note was paid and satisfied to the Bank, by a
note of the same amount drawn by the plaint-
iff and given to the Bank ; that at that time
the defendant had divers large demands
against Doughty, amounting to a large sum,
to wit: the sum of $1,000, or upwards, and the
personal property not being sufficient to satisfy
the plaintiff's execution; and, on the 28th of
September, 1808, the real and personal prop-
erty of Doughty being offered for sale by the
sheriff, it was thereupon agreed between the
plaintiff and defendant, as follows : the plaint-
iff agreed that he would bid, at the sale, for
the personal property, to the amount due on
thejl fa., in his favor, and would permit the
real property to be bid off by the defendant,
under the./?, fa., in favor of the Bank of Co-
lumbia, and that he would pay to the defend-
1 13*] ant *the sum of $225, part of the sum
of $500 above mentioned ; in consideration of
which promises, the defendant agreed to pay
to the plaintiff the sum of $500, or that he
would take up and discharge the note for that
sum, given by the plaintiff to the Bank of
Columbia ; and that he would bid off the real
estate under the execution of the Bank of
Columbia, to the amount due on the same, and
would dispose of the same to the best advan-
tage ; and, after satisfying himself out of the
proceeds, should, put of the residue, repay to
the plaintiff the said sum of $225. And the
plaintiff averred that, in pursuance of the
agreement, he did, on the 28th of September,
pay to the defendant the said sum of $225, by
giving him his note, payable on demand, with
interest, which note has since been paid ; and
did, on the sale, bid up the personal property
to the amount of, and in satisfaction of his
execution ; and that, at the sale, the defendant
bid off the real estate under the execution of
the Bank of Columbia, and the same was con-
veyed to him by the sheriff ; that, afterwards,
and in or about the month of February, 1809,
the defendant sold the real estate for a large
sum of money, to wit : the sum of $3,000, or
upwards ; and the plaintiff averred that all the
demands of the defendant against Doughty did
not amount to the sum which the defendant so
received, by a large sum, to wit : the sum of
$1,500, being a surplus more than sufficient to
pay the plaintiff the said sum of $225 ; by
means whereof, &c.
The second count stated the issuing of the
two executions before the the 28th of Septem-
ber, 1808, and that the execution of the Bank
of Columbia was for the benefit of the defend-
ant, and was younger than that in favor of the
plaintiff, as to its lien, both on the real and
personal estate of Doughty ; that the sheriff
had levied upon the personal and real prop-
erty of Doughty, and offered them for sale on
that day ; and that, at and before the time of
the sale, the defendant had divers demands
against Doughty, amounting, in the whole, to
a large sum, to wit: the sum of $1,000, or up-
wards; and the defendant wishing to purchase
the real estate free of the plaintiff's execution, in
order to secure the execution of the Bank of Co-
lumbia,and the other demands of the defendant,
and the personal property not being of sufficient
value to satisfy the plaintiff's execution, it was.
agreed that the plaintiff should bid off the
personal property at an amount equal to that
due on his execution, in satisfaction and dis-
charge *of the same; and that the de- f*114
fendant would bid off the real estate on the
execution of the Bank of Columbia, and for
the amount due thereon; and that the defend-
ant would sell the real estate, and if he should
obtain for the same enough, over and above
satisfying .all his demands against the said
Doughty, he would pay to the plaintiff the
sum of $225, which had been, before that
time, paid to the defendant by the plaintiff, ou
account of the said Doughty; that, at the sale,
the plaintiff bid off the personal property to
an amount sufficient to discharge his ex'ecu-
tion, and the defendant did thereupon pur-
chase the real estate, under the execution of
the Bank of Columbia, which was conveyed
to him by the sheriff; that afterwards, in or
about the mouth of February, 1809, the de-
fendant sold and disposed of the real estate to
one Barton, for which he received, in property
or money, a large sum, to wit: the sum of
$3,000, or upwards, and that the sum greatly
exceeded the amount of all the defendant'.*
demands against Doughty, by the sum of $1,-
500, being more than sufficient to pay the
plaintiff the sum of $225 aforesaid; by means
whereof, &c.
The other four counts were substantially the
same as the second ; and the usual money
counts were added.
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. KELLOGG.
114
Mr. P. Ruggle*, in support of the motion,
cited 3 Johns. Cas.,29; 6 Johns., 194; 8 Johns.,
444; Cowp., 395; 6 T. R, 642.
Mr. Oakley, contra.
SPKNCEK, J., delivered the opinion of the
court :
This case is not distinguishable from that of
Jones v. C'awccU, 3 Johns. Cas., 29, but by the
circumstunce that Doughty was indebted to
the plaintiff beyond the sum for which he had
obtained judgment and execution, and by the
further circumstance that he was indebted to
the defendant. The consideration for the de-
fendant's promise was a forbearance, on the
part of the plaintiff, to bid, at the sale on the
execution in favor of the Bank of Columbia,
on the lands of Doughty; and also, that the
plaintiff should bid, on the sale of the per-
sonal estate of Doughty, to the amount of his
own execution, which, it is averred, he did,
and that such bid was more than the value
thereof.
115*] *The consideration was sufficient. I
ai^n-e to the position advanced by Rndcliff, J.,
in the case cited: that the foregoing some ad-
vantage or benefit, or parting with a right
which might otherwise be exerted, is a valid
consideration. The plaintiff, here, not only
agreed to forbear bidding, but, having the prior
lien, both on the personal and real estate, he
waived it, on the latter, to his disadvantage, by
bidding more, on the personal property, than
its value; so that here was an actual loss to the
plaintiff.
Whatever may have been the motives of the
parties, in making the agreement, and how-
ever upright their intentions, the question re-
curs, is not the promise made by the defend-
ant void, as contravening established prin-
ciples of public policy? If the consideration
be ever so meritorious, yet, if the act agreed
to be done, and which forms the basis of the
agreement, be unlawful, the promise cannot be
enforced in a court of law.
The judges who delivered opinions in the
case of Jones v. Citxicell held that the law had
regulated sales on executions with a jealous
care, and had provided a course of proceeding
likely to promote a fair competition, and that a
combination to prevent a competilion was con-
trary to public policy, and the interests of the
original debtor, whose property was liable to
be sacrificed by such combinations. The same
principle was recognized in Doolin v. Ward,
6 Johns., 194, and m Wilbur v. How, 8 Johns,,
444. These were cases of sales at auction; but
the principle applies with equal, nay, with
more force, to sales on execution.
It has been urged that the plaintiff was not
bound to bid oq the second execution, and
was, therefore, at liberty to enter into this
agreement. This is not the test of the prin-
ciple. In none of the cases cited was the party
bound to bid ; but being at liberty to bid, he
suffered himself to be bought off in a way
which might prevent a fair competition. The
abstaining from bidding, upon concert, and
by agreement, under the promise of a benefit
for thus abstaining, is the very evil the law
intends to repress. A public auction is open
to every one ; but there must be no combina-
tion among persons competent to bid, silencing
JOHNS. RKP., 18.
such bidders, for the tendency to sacrifice the
debtor's property is inevitable.
The principle is of too salutary a nature to
permit any refinements which go to sap or sub-
vert it; and in England the *judges [*11O
have uniformly held a strict hand over every
attempt at fraud or circumvention at auctions.
(Cowp., 395; 6 T. R., 642.)
The court is, therefore, of opinion that the
judgment must be arrested.
Judgment arrested.
Modified— 15 How. (U. 8.). 519.
Cited In— 1 Pal**'. U.H; inn & D., 198: 3 N. Y., 130:
5 Lans.. 357; 5 Hun, 28« ; tt Barb.. 77; 3 Wood., 4*».
491 ; 1 McLean, 300.
JACKSON, ex dem. FISHER,
v.
CREAL AND KELLOGG.
Ejectment — Tenant* in Common — Improvement*
made by one — Partition — One Entering with
Consent of the Other, not Allowed to set up
Advene title.
Where a person entered into, and improved hind.
by the permission of a tenant in common of the
land, and a partition was afterwards made in 1793, it
was held that the person to wtooso share the land in
question had fallen, could not maintain an action
of ejectment for it, without tendering1 to the ten-
ant the value of the improvements, both before,
and for all the time ?ince the partition, after de-
ducting for the use and occupation of the land.
A person who has entered by the permission of
one tenant in common, cannot, a partition having-
been made, set up an adverse title, in bar of an ac-
tion of ejectment, by the tenant in common, to
whose share the premises had fallen.
Cltations-i Greenl. ed. L. N. Y., 165; 2 Greenl. ed.
L. N. Y., 442.
THIS was an action of ejectment, for part
of lot No. 2, in the seventeenth allotment
of the Kayaderosseras patent. In a partition
of the patent, lot No. 2 fell to the share of the
lessors of the plaintiff, Daniel Campbell and
John Beekman. who were seised thereof, as
tenants in common, until the year 1793, when
a partition was made, and that part of the lot
No. 2, which included the premises in ques-
tion, fell to the share of the lessor of the
plaintiff.
Previous to the above-mentioned partition,
in 1786, Daniel Campbell gave one Gilbert
Weed an instrument in writing in the follow-
ing words: "Whereas Mr. Gilbert Weed has
signed an agreement and obligation for two
hundred acres of land, where he is now im-
proving, in the general lot No. 2, in the 17th al-
lotment, I am willing he should settle on said
land, and I promise to abide by snid agree-
ment. As witness my hand at Schenectady,
the 31st day of July, 1786. Daniel Campbell*'
Weed, having before improved part of the
land, entered by virtue of the said writing,
and it was through him, by various me«ne as-
signments of his right and possession, that the
! defendants derived their claim. The defend-
ants never paid any rent. At the time Weed
sold his possession, there was some rent due.
which he paid to Campbell, but the premises
in question not falling to the share of Camp-
bell, in the partition, he returned the money
to Weed, according to an agreement between
MS
116
SUPREME COUKT, STATE op NEW YORK.
1816
them, by which Campbell was not to give a
lease to Weed of the premises, if, on the par-
tition, they should not fall to the share of
Oampbell.
The case was submitted without argument,
and such judgment and rules to be entered as
the court should think proper.
1 17*] *YATES, </., delivered the opinion of
the court :
The 6th section of the Act for the Partition of
Lands, passed the 16th of March, 1785 (I
Greenleaf's edit. L. N. Y.. 165), states that in
•case, on the partition of any patent or tracts
-of land on which improvements have, thereto-
fore, been made, by any owner or proprietor,
-or by any person or persons, by consent of
any owner or owners, proprietor or proprietors
of any such patents or tracts of land, the per-
son or persons to whose share such parcels of
improved land shall fall, -upon partition of
such patents or tracts of land, shall, before he
or they be permitted to the possession of the
same, pay the respective possessor or posses-
sors thereof the value of the improvements
made thereon ; and the manner of settling and
ascertaining the value of such improvements
by the commissioners for partition, at the in-
stance of the proprietor, is specially pointed
out ; and the value being ascertained, as stated
in the Act, and the amount tendered to the
possessor, the proprietor shall be entitled to
the possession, to be delivered to him in virtue
of a precept to be issued by the commissioners.
On the 10th of February, 1790, an Act passed
amending this law, by which the above sixth
section is extended to improvements made
after the passing of the first mentioned Act ;
And by a subsequent Statute, passed the 3d of
April, 1792 (2 Greenleafs edit. L. N. Y., 442).
the last mentioned Act is further amended,
and a judge of the Court of Common Pleas is
vested with the same powers, before given to
the commissioners, as to ascertain the value
of the improvements ; and the judge and jury
are authorized and required, in every case, to
ascertain and value the use and occupation of
the premises so held, used, and occupied, and
to deduct the amount of such valuation from
the amount of the valued improvements.
The subdivision of lot No. 2, in which the
premises in question are situated, took place in
1793, under the statutes above mentioned,
when the premises fell to the share of the les-
sor of the plaintiff.
From the facts disclosed by the case, it is
manifest that the purchaser under Gilbert
Weed, according to the intent and meaning of
the above statutes, and as claimed by the de-
fendants, are entitled to compensation for the
whole of their improvements, and were au-
thorized to retain possession until such com-
pensation, after deducting for use and occu-
pation, had been tendered to them. They can-
not, therefore, be now deprived of the posses-
1 18*] sion, *without receiving remuneration,
according the rule prescribed, because it was
the duty of the lessor of the plaintiff to have
oaused the valuation to have been made, and
to have paid the amount. Having neglected
to do so, and having allowed the subsequent
improvements to be made, he ought not to be
•exonerated from paying the value of such as
£54
have been made, both before and since the
partition of 1 793, subject to the deduction be-
fore stated. This neglect, while it thus pro-
tects the defendants, cannot bar the recovery
of the lessor altogether, notwithstanding the
possession of twenty years since the partition;
because Weed, under whom the defendants
hold this possession, having originally entered
under Daniel Campbell, a co-tenant with the
lessor, it cannot be deemed adverse. Judg-
ment must, therefore, be entered for the
plaintiff, with stay of execution, until the
defendants shall have been paid and satis-
fied for the value of all the improvements,
after deducting the amount for the use and
occupation.
Judgment for t/te plaintiff , accordingly.
JACKSON, ex dem. YOUNG ET AL.,
v.
ELLIS AND WHITE.
Ejectment — Adverse Possession — Color of Title —
Need not be Valid — Parol Gift.
An entry under claim and color of title is suffi-
cient to constitute an adverse possession, and it is
not necessary that it should be a legal and valid
title.
A, claiming title to land by descent, made aparol
grift of the same to B, under which B entered, and
afterwards A conveyed the land to B: it was held that
if the deed related back to the entry of B, there was
an adverse possession commencing in B; and if it did
not, still, as B,by virtue of the parol gift, became the
tenant at will of A, and his possession was to be
deemed the possession of A, there was an adverse
possession commencinar in A.
Citations— 2 Cai., 183; 9 Johns., 174; 1 Johns. Cas., 36.
was an action of ejectment, brought
J- to recover part of lot No. 1, in the patent
granted to Frederick Young and others, in the
town of Cherry Valley, in Otsego County.
The cause was tried before Mr. Justice Spen-
cer, at the Otsego Circuit.
Both parties claimed under Theobald Young,
who, on the 13th June, 1771, granted the
premises in question to Frederick Young ; un-
der this conveyance, and as representatives of
Frederick Young, it appeared that the plaint-
iff's lessors sought to recover. It was proved
that, about twenty-five years before the trial,
John D. Young, son 'of Theobald Young,
claimed the premises in question as his own,
and gave, by parol, part of it, being one hun-
dred *aeres, to his sister Caty, the [*!!$)
wife of Jacob Garlock. Garlock and wife
went into possession one or two years after,
and lived on the lot until about twelve years
ago, when they sold and conveyed it to one
Walradt, since dead, to whom the defendant
Ellis was tenant. The conveyance from Gar-
iock to Walradt was dated the 7th of March,
1800, and on the llth of March, 1800, John
D. Young and wife conveyed the same prem-
ises to Garlock.
Evidence was given of the attainder of the
ancestors of the plaintiff's lessors, for adher-
ing to the enemies of the State during the Rev-
NOTE.— Adverse possession— What constitutes. See
Brandt v. Ogden. 1 Johns., 156, note.
JOHNS. REP., 18.
1816
v. MANCITTB.
119
olution; but which it is unnecessary to state, as
the decision of the court tumed altogether on
the question of adverse possession.
A verdict was found for the plaintiff, sub-
ject to the opinion of the court, on a case to be
made, with liberty to either party to turn it into
a special verdict.
The case was argued by Mr. Seely for the
plaintiff, and Mr. Morse (Mr. Cody same side),
for the defendants.
The points raised for the consideration of |
the court by the defendants' counsel were :
1. That there had been an adverse posses-
sion for above twenty years.
2. That F. and A. Young were convicted un-
der the Act of Attainder of 1779 ; and that
these convictions (the judgments on which
were signed in April, 1783) were valid, not-
withstanding the preliminary Treaty of Peace
of November 80, 1782.
8. That all the lessors, on whose demises the
plaintiff claims, as well as those under whom
the lessors claimed title, are aliens ; and un-
der this point, two propositions were laid
down : 1. That all persons, wheresoever born,
who were not within the jurisdiction of the
United States at the Declaration of Independ-
ence, are aliens, excepting such persons as
were absent from necessity, or with intention
of returning. 2. That all persons who, pre-
vious to the Declaration of Independence, had
IIIIK lc their election to continue subjects of the
King of Great Britain, and did, within a rea-
sonable time thereafter, leave the United
States, and fly to the British dominions, and
who have not since returned to this country,
but have claimed to be British subjects, are,
in this State, to be considered aliens.
4. Admitting that the rights of the lessors
were saved by the Treaties of Peace between
12O*] the United States and Great Britain, *or
by the principle, that the dismemberment of
an empire cannot destroy a vested right, yet,
inasmuch as the lessors of the plaintiff are
aliens, resident in the country of our late
enemy, at the commencement of this suit,
in 1814, the plaintiff cannot maintain this ac-
tion. (Jackson v. Decker, 11. Johns., 418.)
On the first point, the defendants' counsel
cited 9 Johns., 180 ; Cowp., 207.
The second and third points were argued at
great length ; but as the court have decided
the cause on tin- first point only, it is unnec-
essary to state the arguments.
Per Curiam. In the argument of this case,
several very important questions have been
raised, which it Ix-comes unnecessary, how-
ever, to notice; because, in the opinion of the
court, such an adverse possession has been
shown as to protect thedefcndants against this
form of action. It was admitted upon the
trial that Theobald Young, under whom both
parties claim, was seised of the premises in
question. It appeared in evidence that John
D. Young, son of Theobald, and who claimed
the premises as his. own, by descent from his
father, did, about twenty-five years airo, give
the same to his sister Caty, the wife ol Jacob
Oarlock. That one or two years afterwards,
and at least twenty-two years since, Oarlock
and his wife went into PO^M-MOM under this
gift. That in the year 1800 J. D. Young gave
JOHNS. RKP., 18.
Oarlock a deed for the same, and Oarlock sold
to Walradt, under whom the defendants hold.
It has been repeatedly ruled, in this court,
that an entry under claim and color of title, is
sufficient to constitute an adverse holding. It
is not necessary, for this purpose, that the
title, under which such entry is made, should
be a good and valid title. (2 Caines, 183 ; 9
Johns., 174.) Taking this to be the rule of
law, there can be no doubt that the possession
taken by Oarlock was under claim and color
of title. Although Oarlock entered under a
parol gift, it must be deemed to be either a
possession taken in his own right, and for his
own benefit, or in behalf of J. D. Young, who
claimed the premises by descent from his
father ; and, in either point of view, the nat-
ure of the possession will be the same. If tin-
deed, subsequently given by Young to Oar-
lock, relates back to the original entry, then
the adverse possession commenced in Oarlock
himself. If it does not. then Oarlock, under
the parol gift, became a tenant at will to
*Young, and his possession will be [*12l
deemed the possession of Young. (I. Johns.
Gas., 86.) So that, in whatever point of view
the case is considered, the original possession
taken by Oarlock must be deemed adverse.
The defendants are, accordingly, entitled to
judgment.
Judgment for the defendant*.
Cited in— 18 Johns.. 44 : I Cow., 385 ; 8 Cow., 633 :
12 Wend., 674: 53 N. Y., 298: 5 Lans., 212; 34 Wis..
433 ; 44 Wis., 122.
M'ELROY v. MANCIUS, Late Sheriff of
Albany.
Action against Sheriff— Escape under Execution
—Relief of Debtors under Statute.
Where a plaintiff brings an action against a
sheriff for trie escape of a prisoner, in execution,
the plaintiff's election, to consider him as out of
custody, is thereby determined, and he cannot nv
sort to a remedy wnich would be an acknowledg-
ment of his hrirur in custody.
Therefore, after bringing an action against the.
sheriff for an escape, he cannot oppose the dis-
charge, of the prisoner under the Act for the Relief
of Debtors with Respect to the Imprisonment of
their Persons.
The sheriff cannot avail himself, as a defense of
the acts of the plaintiff, subsequent to thesuitcom-
menced, recognizing tin- prisoner to be still In cus-
tody: such recognition being inoperative, as the
plaintiff, by suing the sheriff, has determined his
election.
It seems that the Mayor's Court of Albany has no
Jurisdiction, under the Act for tin- Relief of Debtors
with Respect to the Imprisonment of their Persons,
in wise of a debtor imprisoned in the County of Al-
bany, under an execution out of the Supreme
Court but that the Common Pleas of Allwnjr
County have Jurisdiction in such ease.
Citations-4 Johns., 460; 7 Johns., 477; 1 K. I...
351, sec. 4.
THIS was an action of debt, for the escape
of one Amos Hubble, a prisoner in execu-
tion, brought against the defendant, the late
sheriff of the City and County of Albany.
The cause was tried at the Albany Circuit, in
October, 1815.
The declaration stated the judgment and ca.
M., in this court, against Hubble, and that he
escaped on the 1 1th of March, 1815. The de
121
SUPREME COURT, STATE OP NEW YORK.
1816
fendant pleaded the general issue, with an
affidavit annexed, that the escape, if any, was
involuntary, and without his knowledge, and
notice of special matter to be given in evi-
dence.
The plaintiff, at the trial, having proved the
case on his part, the defendant offered to prove
that, after the escape of Hubble, he voluntari-
ly returned to the custody of the defendant,
and remained a prisoner in execution, at the
suit of the plaintiff, until the 22d day of
March, 1815 ; that he then was assigned and
delivered to Isaac Hemstead, the present
sheriff ; that, while remaining in his custody
at the suit of the plaintiff, onlhe 6th of April,
1815, Hubble having applied, after due notice
given to the plaintiff, for his discharge, pur-
suant to the Act for the Relief of Debtors
with Respect to the Imprisonment of their
Persons, was discharged accordingly; and that
the plaintiff appeared on that notice, and op-
posed the discharge, thereby acknowledging
him to be still in custody and execution, by
virtue of the ca. sa.\ but the testimony was
overruled by the judge, who declared
122*] *that it did not form a sufficient
ground of defense, and directed the jury to
find a verdict for the plaintiff, which they did
accordingly.
The cause was submitted to the court with-
out argument.
Per Curium. The only question is, whether
the plaintiff's opposition to the discharge of
Hubble was such a recognition of him, as a
prisoner under plaintiff's ca. sa., as would
amount to a legal defense in this suit.
In the case of Rawson v. Turner, 4 Johns. ,
469, it was decided, that if " there has been an
escape, both in the time of the former, and of
the new sheriff, the plaintiff has an election,
either to consider the prisoner in execution,
and so charge the new sheriff for the last
escape, or as out of execution, and charge
the old sheriff." And that. " the bringing a
suit against the one, or the other, is a deter-
mination of his election."
In the case of Dash v. Van Kleeck, 7 Johns.,
477, where, after an escape of a prisoner on
execution, and return into custody, the sheriff
went out of office, and assigned the prisoner
to his successor ; and while in his custody,
the prisoner applied for his discharge, under
the Act for the Relief of Debtors, &c. , and the
plaintiff, not knowing of the escape, opposed
the application, in consequence of which the
prisoner remained in custody ; it was held that
this was not such an election to affirm the
debtor in custody, as amounted to a waiver of
the plaintiff's remedy against the former sheriff
for the escape. These cases show that the
plaintiff may lose bis former right of action,
by resorting to another remedy.
But this case is distinguishable from those
above cited, in this essential feature, viz: that
the act of affirming the prisoner in execution
was done after the plaintiff (by this suit) had
made his election to consider him out of exe-
cution .
A subsequent attempt to obtain another
remedy is no bar to this suit, which was right-
fully commenced, and which determined the
plaintiff's election. Here it appears that the
550
plaintiff failed in his opposition to the dis-
charge of the prisoner ; and such failure may
have been on the very ground that he had
elected another remedy by suing for the escape,
and, therefore, had no right to object to the
discharge of the prisoner.
*Besides, it may well be doubted [*123
whether the whole prpceeding, relating to the
discharge of Hubble, Was not coram nonjudice.
We incline to the opinion that the Mayor's
Court of the City of Albany is not a " court of
common pleas," within the 5th section of the
Act for the Relief of Debtors, &c. (1 R. L.,
351.) The general rule, under this Act (sec.
4), is that each court of record can afford the
relief only to prisoners confined under its own
process; but the 5th section authorizes "the
Court of Common Pleas in the county " in
which, &c., to execute this law in regard to
prisoners confined upon executions issued
from this court. Such a jurisdiction cannot
be vested without express authority ; and, in
this case, I think there is no just ground even
to imply such authority ; because, in the
County of Albany, there is a " court of com-
mon pleas," as in the other counties, entirely
independent of the Mayor's Court.
The order of the Mayor's Court of Albany,
for discharging, or refusing to discharge
Hubble, would, therefore, have been equally
a nullity.
We are of opinion that the- evidence offered on
the part of the defendant was properly overruled /
and that the plaintiff is entitled to judgment.
Cited in— 1 Wend., 404 ; 18 N. Y., 557 ; 15 Hun, 559 ;
38 N. J. L., 281 ; 40 N. J. L., 238 ; 37 Ind., 177.
BRYAN v. SEELY.
Fees of electors of grand assize.
rPHE COURT said that the electors of the
J- grand assize, on a writ of right, were en-
titled to the same fees for attending the court,
&c., as the sheriff, which, in November Term,
1803, were fixed at $3 per diem, for going to-
and returning from the Supreme Court.
Cited in— Blatchf . & H-, 110.
*WIDRIG v. OYER ET ux. [*124r
Slander — Action may be brought for Charging-
Indictable Offense.
To say of a woman, " She procured, or took medi-
cine, or poison, to kill the bastard child she was like
to have; and she did kill, or poison, the bastard
child she was like to have," &c., is actionable.
Citations— 5 Johns., 188.
IN ERROR, from the Court of Common
Pleas of Herkimer County. The plaintiff
brought an action of slander in the court be-
low. The words charged, as spoken by the
wife of Oyer, the defendant, of and concern-
ing the plaintiff, were : " She (meaning the
plaintiff) did, with the assistance of her
mother, procure, and take medicine, or poison,
JOHNS. REP., 13*
1816
BRASDIGEK v. HALE.
124
in order, and with intent, to kill, and poison
to death a bastard child she (the plaintiff) was
pregnant with, or like to have ; and she (the
plaintiff) did kill the bastard child she was
like to have, by means of taking the said med-
icine," &c. The defendants demurred to the
declaration, and the court below gave judg-
ment for the defendant^pn the demurrer.
The only question was whether the words
charged in the declaration were actionable.
Mr. N. Williams, for the plaintiff in error.
He cited Breaker v. Coffin. 5 Johns., 188 ; 8
Co. Inst., 50; 1 Bl. Com., 129., Christian's
note; I Hawk. PI. Cr., b, 1, ch. 81, sec. 16;
Bracton, 1, 3, ch. 21 ; Finch's Law, 186. He
was stopped by the court.
Mr. Skinner, contra, said it was idle to go
back to ancient books, when this court had so
clearly laid down the rule as to what words
were actionable, in Brooker v. Coffin: "That
where the charge, if true, will subject the
party charged to an indictment for a crime in-
volving moral turpitude, or subject him to an
infamous punishment, the words, in them-
selves, were actionable." We admit the sound-
ness of the rule, but with a slight alteration of
"or" to "and," which would make it con-
formable to the cases in Wilson and Saikeld.
(Onslmev. Horne, 3 Wils., 177; 3 Salk., 128.)
The charge, we contend, must not only involve
moral turpitude, but, also, subject the party
charged to an infamous punishment. Procur-
ing an abortion is not, by the law of England,
or of this State, murder, or manslaughter. (1
Hale, P. C.. 433; 3 Co. Inst., 40: Hawk, bk. 1,
ch. 81, sec. 6.) The impossibility of proving
the fact may, perhaps, be the reason why no
case can be found in which such an offense
has been punished in England.
125*] *&er Curiam. We have no doubt
the offense charged is indictable, and its crim-
inalty, or moral turpitude, cannot be ques-
tioned. The words were clearly actionable,
within the rule laid down by us in Brooker v.
Coffin, which we consider as affording the best
criterion for determining whether words
spoken are actionable or not. The judgment
of the court below must be reversed.
Judgment reverted.
Cited in-24 Wend., 356 : 3 Hill, 22; 3 K eyes, 682;
3 Trans. App., 135 ; 36 Barb., 439 ; 5 How. Pr., 175.
BRANDIGEE ». HALE.
Witnesses — Competency of Attorney of Non-
resident Plaintiff— Bond for Costa.
Where an action was brought by a non-resident
plaintiff, and at the trial the plaintiff's attorney was
produced as a witness for his client, and was ob-
jected to on the ground that no security had been
tiled for the costs, and that, therefore, he was in-
terested, and a bond was immediately executed and
t<-iiil«Tf<l to tin- (U-fVndant's counsel, who admitted
the sufficiency of the obligors, but refused to re-
i-.-u i- it, mid it was then tiled with the clerk : it was
held that this was a bond of which the defendant
might have availed himself had a verdict gone in
his favor, and that the competency of the witness
was reston il.
But if the defendant bad not admitted the suffi-
ciency of the obligors, could the judge, at the Cir-
cuit, nave decided upon it. Queen.
JOILNS. RKP., 18.
THIS was an action of assumptit, on three
promissory notes, payable on demand,
made by the defendant to one Jacob Brandigee,
or order, and by him indorsed to the plaintiff,
dated the 18th of April, 1807. for $100 each.
The cause was tried at the Otsego Circuit, in
May, 1815, before Mr. Justice Spencer.
Mr. L. Elderldn, the attorney for the plaint-
iff, was called as a witness on the part of the
plaintiff, and objected to by the defendant's
counsel, because the plaintiff being a non-
resident, and no bona having been filed, in
pursuance of the 14th rule of January Term,
1799, he was, therefore, liable for cost*. These
facts being admitted, a bond was drawn and
executed by three persons, in the penalty of
$200, with condition to pay costs to the de-
fendant, in case a verdict should pass in his
favor, or the plaintiff become nonsuit ; the
bond was tendered to the defendant's counsel,
who admitted the obligors to be abundantly
responsible, but refused to receive it. The
judge then decided that the witness had done
all in his power to exonerate himself from his
responsibility to the defendant, and that he
might be sworn as a witness for the plaintiff,
upon filing the bond with the clerk, which
was done. The witness proved the hand-
writing of the maker and indorser. Evidence
was produced on the part of the defendant, to
show that at a settlement of accounts, which
took place on the 22d of August. 1808, the
notes in question were included, which was
opposed by contradictory testimony [*12O
on the part of the plaintiff ; none of which,
however, is it important to state. The jury
being directed by the judge to find a verdict
for the defendant, if they believed that the
notes were included in that settlement, or if
not, then for the plaintiff, they gave a verdict
for the plaintiff.
The defendant now moved for a new trial,
and the case was submitted to the court with-
out argument.
PLATT, J., delivered the opinion of the
court :
Upon the first question as to the competency
of the witness, we are of opinion that the bond
for costs so executed and filed, would have
been available to the defendant, in case the
verdict had been for him, or the plaintiff bad
become nonsuit ; and as the defendant ac-
knowledged the sufficiency of the obligors, I
think the attorney was properly admitted as a
witness. If the solvency of the sureties had
been denied, it might have presented a ques-
tion of more embarrassment. I think it very
questionable, whether the judge at the Circuit
could determine upon the sufficiency of the
obligors, so as to absolve the plaintiff's attor-
ney from eventual liability for costs. Upon
the second question, as to the sufficiency of
the evidence, I see no just ground to disturb
the verdict. The question or fact, submitted
to the jury, turned, in a great degree, upon the
credibility of witnesses of which they were
the most proper judges.
Judgment for the plaintiff.
»
Cited in-20 Wend., 217 ; 22 Barb., 397 ; 4 Bos.. 638 ;
Blatchf. & II.. 467.
127
SUPREME COURT, STATE OF NEW YORK.
1816
127*] *LYNCH
v.
THE MECHANICS' BANK.
BRONSON v. THE SAME.
BACON
v.
THE MANHATTAN COMPANY.
BACON «. THE CITY BANK.
Original Writ in Assumpsit by Pone, or Attach-
ment, not Amendable — Test.
The original writ in ossumpsit against a corpora-
tion, must be in the nature of a summons, and not by
pone or attachment. And where the original is by
pone or attachment, it cannot be amended, being
conformable to the precipc, but may be quashed on
motion.
Original writs issuing out of this court, pursuant
to the Statute of the 17th of February, 1815. sess. 38,
ch. 38, must be tested like all other process issuing
out of the court, that is, in some day in term.
Citations— 1 Salk., 52 ; Feb. 17, 1815, sess. 38, ch. 38,
THE above and several other suits, were
brought on notes sued by the banks, and
which they had refused to pay in gold or silver
which had been demanded of them, the banks,
generally, having suspended thejr payments
in specie.
The suits were commenced by original writs,
the precipeb for which were filed in the office
ol the clerk of this court, the 22d of July last,
and the writs were sealed on that day, tested
the 13th of May, being the last, day of the
preceding term, and made returnable the sec-
ond Tuesday of August, the second common
return day of the August Term. One of the
writs was as follows: "The people of the
State of New York, by the grace of God free
and independent, to the sheriff of the City
and County of New York, greeting : If Na-
thaniel Bacon shall make you secure to prose-
cute his suit, then put by sureties and safe
pledges, the President and Directors of the
Manhattan Company, that they be before our
justices of our Supreme Court of judicature,
on the third Tuesday of August next, at the
Capitol, in the City of Albany, to answer unto
the said Nathaniel Bacon • For that, whereas
the said President and Directors of the Man-
hattan Company, on the 31st day of October,
in the year of our Lord 1812, at the City and
County of New York, and at the first ward of
the said City, made their certain promissory
note, commonly called a bank note, bearing
date the day and year aforesaid, by which said
note the said President and Directors of the
Manhattan Company promised to pay to a cer-
tain J. Madison or bearer, on demand, $1,000,
to wit : lawful money of the United States of
America, and then and there issued the said
note ; and afterwards, to wit : on the 12th day
of May, in the year of our Lord 1815, at the
City, County and Ward aforesaid, the said
128*] note lawfully came to the *hands and
possession of the said Nathaniel Bacon, who
thereby became, and was, and from thence-
forth hitherto hath been and still is, the lawful
holder, owner%and bearer thereof, and entitled
to the payment of the sum of money therein
specified, to wit: at, &c., by reason of which
558
premises, and by force of the Statute, in such
case made and provided, the said President
and directors of the Manhattan Company, in
consideration thereof, afterwards, to wit : on
the same day and year last aforesaid, at, &c.,
undertook and faithfully promised the said
Nathaniel Bacon, well and truly to pay to
him, the said Nathaniel Bacon, the said
sum of money mentioned in the said note,
according to the tenor and effect thereof,
when they, the said President and Direc-
tors, &c., should be thereunto requested.
And the said Nathaniel Bacon avers that,
afterwards, to wit: on the same day and
year last aforesaid, the said note was shown
and presented by the said Nathaniel Bacon, he,
then and there being the holder, owner and
bearer thereof, as aforesaid, to the said Presi-
dent and Directors, &c. , to wit : at their bank-
ing house, in the City, County and Ward,
aforesaid, for the payment thereof, and they
then and there had notice that the said Na-
thaniel Bacon was then and there the holder,
owner and bearer of the aforesaid note. And
the said Nathaniel Bacon, then and there re-
quired them, the said President and Directors,
&c., to pay to him, the said Nathaniel Bacon,
the said note, the said sum of money mentioned
therein, according to the tenor and effect
thereof (and whereas, &c. , setting out various
other bank notes, in like form). Nevertheless,
the said President and Directors, &c., in no-
wise regarding their several promises and as-
sumptions aforesaid, in form aforesaid made,
but contriving and fraudulently intending,
craftily and subtiley to deceive and defraud
the said Nathaniel Bacon, in this behalf, did
not, nor would at the time the said several notes
were shown and presented to them for pay-
ment thereof as aforesaid, to wit : on the said
12th day of May, in the year 1815, or at any
time afterwards, pay the said several sums of
money, in the said several notes specified, or
any or either of them or any part thereof, to
the said Nathaniel Bacon, but wholly refused
and neglected so to do, and still do refuse to-
pay the same to him, to the damage of the said
Nathaniel Bacon of $9,000, as he says. And
have you then there the names of the pledges
and this writ. Witness, Smith Thompson,
Esq., Chief Justice of the City of New York,
the 13th *day of May, in the year of [*129
our Lord 1815, and of our independence the
39th.
Towt, Attorney. FAIRLIE,"
On the writ were the following indorsements.
" Pledges to prosecute, John Doe and Richard
Roe."
" I certify to the justices within named, that
the President and Directors of the Manhattan
Company, within named, are attached by
twelve pieces of Spanish silver coin, each of
which is commonly called a quarter of a dol-
lar, of the value of twenty-five cents each.
R. Hubbard, sheriff."
The defendants not having appeared accord-
ing to the exigency of the original writs, writs
of dixtringas were taken out, returnable at the
last October Term. On the quarto die post of
the return of the writs of distringas, motions
were made in behalf of the defendants who-
had not appeared, to quash the original
writs.
JOHNS. REP., 13..
1816
LTNCH v. MECHANICS' BANK, ETC.
These motions were argued at great length
by the counsel of the different parties, during
the last two days of the term. The points in-
sisted on bv the counsel for the defendants
were. 1. T"hat the writ ought to have been in
the nature of a summons, and not a /"-/" or at-
tachment, which does not, they -aid . lie against
a corporation.
2. That the writ being an original, ought to
have been tested on the day on which it was
sealed, and not by relation to the preceding
term ; it being the rule of common law that
original writs must be tested on the day on
which the precipe is filed.
8. That the writ, being conformable to the
precipe, could not be amended, there being
nothing to amend by.
4. That these defects in the writs may be
taken advantage of on motion.
It is not thought necessary to give the argu-
ments of the learned counsel at large. The
following is a brief summary of them, with
the principal authorities cited.
Mr. Gulden, for the defendants. The original
against a corporation should be by summons
and not by attachment. (1 Kyd on Corp., 271 ,
1 Tidd's K. B. Pr., 108. 116 ; 2 Impey's
C. B. Pr., 675. n.; 6 Mod., 188 ; Com. Dig.,
Plead.. 2 B, 2.)
Is this writ a summons ? The sheriff has
not treated it as such. He does not say, in his
return, that he has summoned the defendants,
1 ;{<>*]*oreven put them by pledges, &c.; but
that he has attached them by certain pieces of
money. The first process or proceeding by
original, is a summons or warning to appear,
according to the exigency of the writ which,
in personal actions, is by leaving a copy of the
writ with the defendant or at his usual place
of abode. (1 Tidd's K. B. Pr., 103; 8 Bl. Com.,
279; Finch's Law, 305, 352.) If the defend-
ant docs not appear on the summons before,
or on the quarto die pout a di»tr ingot issues. (1
Tidd's Pr.. Ill, 114; Prec. in Chan., 129. 131;
3 H. Bl., 267, 279; Appendix to Tidd's Pr.)
There is not any form of a writ against a
corporation to be found in the Register; but it
is said merely that it is the same as against a
peer.
It may be said that, when the demand is
certain as in debt, detinue, trover, the writ is
prcrcipe quod reddnl, &c., or an optional writ ;
but that, where the demand is uncertain, the
writ is «' te fecerit securum, &c., and an attach-
ment thereon. This is, no doubt, the general
rule which has, however, some exceptions, one
of which is the case of a corporation in the suit
against which, where the writ is /*' te fecerit ne-
curum, «kc., the command is not pone per vadi-
o* ft mln>* plegiot, &c., but to summon by good
nummoners, &c.
Anciently, by the common law, the only
process to compel appearance in actions unac-
companied by force or breach of the peace,
was by summons and distress infinite. The
person of the defendant was never taken. In
later times, as commerce increased, the capias
was introduced. (Sellon's Pr. Appendix, C,
646 ; Tidd's Pr.,122 ; 3 Co., 12 ; 8Bl.Com.,281.j
The course of proceeding by summons and
ili*tringa», against a corporation, is founded in
reason and common sense. A corporation is
an artificial or political person, not a physical
JoiiNb. lii.i-., 13.
being. It cannot commit a breach of the
peace. It cannot, therefore, be supposed to-
have committed a breach of the peace on which,
the process of attachment is founded. (5 Com.
Dig. Plead., 2 B. 2, 45; Edw. III.. 3 a; Bro.
Corp., 43; Cas. Ch., 205.)
Again; it is an established rule in England,
in regard to original writs, that you are strictly
to adhere to form. The party cannot deviate
from the form given in the register ; and if no
form is to be found there, he must apply io
the clerks in chancery ; *and if they [* 1 3 1
cannot give him the form he must apply to
Parliament. (2 Inst., 407; 1 Inst., 546.)
The present writs vary from the language of
the established forms found in the books,
which is if A B, shall make you secure, &c.,
then put by gages or safe pledges ; not as in
the present case, " put by sureties and safe
pledges." Gages are goods and chattels.
Pledgesare sureties or persons of responsibility
who become answerable for the defendant s
appearance and may be amerced. The com-
mand should be put by gages or pledges, not
by both as in this case, by sureties and safe
pledges.
Mr. Shimon, also, for the defendants. The
honk- all agree that an attachment does not
lie against a corporation, and that the proceed-
ing is by summons. (8 Keb., 850, pi. 8; 6
Vin. Abr.. 311, B a, pi. 8; 1 Bac. Abr.. 507.
Corp.; 1 H. Bl., 209; 1 Kyd on Corp.. 272; 1
Tidd's Pr., 116: 2 Cromp. Pr., 144, 25, 61 a,
77, 94, 90; 2 Sellon, 148.) And the summons
is served on the mayor or other head officer of
the corporation. In all actions where the de-
mand is certain as account, covenant, debt,
annuity or detinue, the original writ is called
a precipe ; the defendant being commanded to
do the thing required ; and unless he do so,
and if the plaint ill made the sheriff secure, xi
te fecerit wcti rum, &c., he was commanded to
summons him by good summoners, &c., to
show cause why he had not done it. And be-
ing in the alternative either to do the thing
commanded or show cause to the contrary, it
was called an optional writ. (8 Bl. Com., 274.)
In awumpitit, case, trespass, trover, ejectment,
deceit, conspiracy or actions for wrongs.where
the claims were for unliquidated damages, the
writ is peremptory and is called a « te fecerit
securum, &c., or pone, by which the sheriff is
directed to put the defendant by gages or safe
pledges, to show cause, &c. The writ of n te
fecerit necurum is an attachment ; that is, the
sheriff might either take gage or certain goods
of the defendant, or make him find sureties or
safe pledges, who might be amerced in case of
his non appearance.
In proceedings against peers, the form of a
summons is given by Cromptou (2 Cromp.,
137, 188); and he states the mode of obtaining
a summons against a corporation, the next
process to which is* a dititnnga*. (2 Cromp.,
145.)
*SoinPlowden(Rastall, 4976; Benloe,[*132
1 pi. 293); we find the proceedings on a quart
iiujH'dit. in which the Bishop of Lincoln and
tin- Dean and Chapter, were summoned, &c.
(Plowd.. 498.)
In Fitzherbert's Nat. Brev., 92. 98, we find
forms of writs of trespass on the case, si tt
feceret necurum, &c., both of pone and sum-
lif
132
SUPKEME COURT, STATE OP NEW YORK.
1816
mons ; and he says the form may be varied,
and directs in one case, that it be by summons,
Ac., and not by pone, per vadios, &c. So, in
waste (Id., 55), the process is si te fecerit, &c.,
then summons, and in quod permittat. (Id., 125;
Quo jure, 128.) The writ, in the case of a cor-
poration, therefore, may be so varied and the
sheriff commanded to summon them.
The writ ought to have been tested on the
day on which it issued and not by relation to
the preceding term ; original writs being re-
quired, by the common law, to be tested on
the day on which the precipes are tiled. The
late "Act Relative to Writs and Process" de-
clared that " all original writs heretofore is-
sued out of the Court of Chancery, returnable
in the Supreme Court or Common Pleas, shall
hereafter issue out of and under the seal of the
court in which such writs may be returnable ;
and may be tested in the name of the Chief
Justice first, or senior judge of such court,
observing in other respects, the forms now in
use ; and, further, that the Supreme Court
shall have the like power as is now given to
the Court of Chancery, to devise and make
writs in cases where there are none to be found. "
This Act merely gives to this court the power
of issuing original writs tested in the name of
the Chief Justice; the forms in all other re-
spects are to be observed. If we look, there-
fore, to the practice of the Court of Chancery,
and its officers, to see the mode of making out
these writs (Fleta, lib. 2, ch. 13, sees. 14, 15),
it will be found that they are tested when the
precipes are filed with the cursitor, or clerk,
or when the writs are bespoke. (1 P. Wms.
437; 2 Eq. Cas. Abr., 779, sec. 2.) No writ can
issue without afrit; the teste is matter of rec-
ord, and there can be no averment against it.
<2 Sir., 749, 759, 760.) The original must be
true in all respects ; and if antedated it may be
quashed, on motion, for irregularity. There
is a difference in this respect between an orig-
inal and a latitnt. (2 Burr., 961; Plowd., 491;
Bunbury, 161.) The latter is founded in fiction
and understood to be so; (Fleta lib., 2, ch. 13;
1 Har. Ch. Pr., Introd., p. 5; Harg. Law Tracts,
363; 1 Com. Dig., Abatement; 2 Burr., 960;
Cro. Eliz., 829; 1 Roll's Abr., 200). •
3. The teste of the original is not form, and
being conformable to \kepretipe filed in court,
it cannot be amended for there is nothing to
amend by. (1 Show., 80; 1 Tidd's Pr., 661 ;
Com. Dig. Amend., Y.; 8 Co., 156; 1 Ld.
Raym., 564; 1 Salk., 49,700; 1 Str., 137; 3
Atk., 599 ; 1 Salk., 53 ; 2 Caines, 63.) And
the defect may be taken advantage of oh mo-
tion. (3 Atk., 595 ; 1 Show., 80 ; 2 Str., 749,
758; 2 Burr., 966.)
1 33*] * Messrs. Munro and P. A. Jay, contra.
Corporations cannot appear, except by war-
rant of attorney, under seal ; and until they do
appear, they caanot make a motion. If the
writ is erroneous, the defendant should have
prayed oyer of the writ, and pleaded in abate-
ment, and this must be done within four days
after appearance, or by bringing a writ of
error ; but as the court will not now grant
oyer of original writs, there is no way in which
advantage can be taken of a defective original.
<1 Saund., 318 a, n. 3, and the cases there cited ;
Doug., 227; 7 East, 383,384; 1 Bos. & P.,
646 ; 1 Chitty's PI., 289.)
560
Actions are either ex contractu, or ex delicto •
and the writs, which are actions, are formed
according to this division. In all actions ex
contractu, as account, covenant, debt, detinue,
annuity, &c., the original is a precipe, or sum-
mons, but in actions ex delicto, as trover, deti-
nue, trespass, ejectment, trespass on the case,
assumpsit, <fec., the proceeding is by attach-
ment. (1 Chitty's PI., 280 ; Comyn's Dig. PI.,
C, 12; 1 Tidd's Pr., 36; Finch's Law, 254
303, 305.) Assumpsit, being an action on the
case, is ex delicto, and the original writ, as in
all actions for torts, is the pone or si te fecerit
securum, &c. (Jacob's Law Diet., by Tomlins.,
Voc. Original Writ ; Boote's Suit at Law, 23
25 ; 3 Bl. Com., 274 ; 1 Comyn's Dig., Action
on the Case, C, 1.) Though the original writ
is not now set out in the declaration, yet the
nature of it is always stated ; and the declara-
tion begins with saying the defendant was at-
tached, or summoned, according as the origi-
nal was, either a pone, or attachment, or a
summons. (1 Chitty's PI., 288.) In the books
of entries and pleadings we find various forms
of precipes for declarations by original, on
promissory notes and bills of exchange, which
commence in the following words : " If E. P.
shall make you secure, &c., then put, by sure-
ties and safe pledges, J. B.," &c., precisely in
the form and language used in the cases now
before the court. (1 Went. PI., 273, 281, 293,
301, 317, 370; Lilly's Ent.. 90; 1 Modus In-
trandi, 188.)
We say, then, that, in assumpsit, by original,
the process is pone, or attachment. This is the
general rule ; and it lies on the defendants to
show the exception. Actions have been
brought against corporations for trespass m et
armis, or quare clausum fregit. (Theo. Dig. ,
79 : Y. B., 23 ; Hen. VI., 8 ; 2 Edw. III., 26.)
So it seems that they may break the peace.
*Why may not a corporation be at- [*134
tached as well as an individual ? The law, by
constituting them political persons, and au-
thorizing them to make promissory notes, nec-
essarily subjects them to the same conse-
quences as individuals, for a breach of their
contracts. Attachments are either against the
person or the goods. Though a corporation
has no body, yet it may be attached by its
goods, or property. The command of the writ,
in this case, is to attach by sureties, gages and
pledges. Tidd, who has been cited, says :
" Where no capias lies, as against peers, &c. ,
corporations, or hundreders on the statutes of
hue and cry," &c., the original writ is the first
proceeding ; or where the defendant absconds,
and the plaintiff intends to proceed to out-
lawry. All the precedents, without exception,
of proceedings against hundreders, show the
process to be attachment. (1 Lilly's Ent. ,295 ;
2 Saund., 274, notes; Morgan's Vade Mecum,
469 ; Co.Ent., 248,349, 351 ; Plead. Assist., 457 ;
2 Instruct. Cleri. , 265 ; Hearne's PI., 214, 215.)
The form of a declaration, given in a note
by Sellon(2 Sellpn's Pr., 148), cannot be cor-
rect. It is against the whole current of au-
thorities and precedents.
In the Register (Regist. Brev.,M) is the form
of a writ against an abbot and his co-monks,
which is a pone or attachment. (See S. C.,
Fitz. N. B., 87.) So, in a case in 8 Hen. VI.,
1, pi. 2, against the mayor, bailiff, and com-
JOHNS. REP., 13.
1816
LYNCH v. MECHANICS' BANK, ETC.
134
monalty.&c., of I., Martin. J., says the only
process is by attachment and distress intiuile.
It is very remarkable, that, among the im-
mense number of pleas of abatement, this ob-
jection, in regard to proceedings against a cor-
poration, has never occurred.
In regard to peers, the writs all say, " hav-
ing privilege of Parliament," he is summoned,
tfcc This is founded on the Statute. (16 Vin.
Abr., Parliament. C; 1 Went. PI., 206; 10
\\Yni. PI., 474.) In Lilly (1 Lilly's Ent.,21)
are precedents which show that peers were at-
tached.
\- to the te»te of the writ, it is true that the
general rule in England is, that all original
writs must be tested on the day they are is-
Mi<-'l. It is, also, an invariable rule of this
court, that all writs issued out of this court
must be tested in term. If a writ is tested in
vacation, or out of term, it is void. (20 Vin.
A.l>r., 264, ttute, pi. 9, 10, 11, 13.) The defect,
however, if the writ is erroneous, is amenda-
ble ; and ought, under the peculiar circum-
-tuiices of the case, to be amended. (1 Bos.
A : P 342 ; 1 HI., 462 ; 2 Bl., 9l8 : Cowp., 407,
i:*.VJ 841 ; 7 T. R., 299; 5 Johns., *163,
233.) In M*ter v. Pulliiigton, Fortesc., 186,
though the Chancellor and Master of the Rolls
refused to order the writ to be amended be-
cause it was conformable to the precipe, yet
the C. P. said that the writ being returned
there, the power of the Chancellor over it had
ceased, and that it was amendable by the writ
itself, because it was contradiction and non-
MMI-V!; and they accordingly amended it, by
striking out the objectionable words.
Mr. Welh, in reply (Mr. T. A. Emmet, same
This is the first day that the defendants
were bound to appear in court, and they are
in season to object to the process. They need
not plead in abatement, but may avail them-
selves of the objection on motion. The cases
cited from Saunders. Douglas and East, were
[hi>-r in which the parties had appeared and
pleaded, and so were held to have waived the
irregularity. In Fitzherbert, N. B., will be
found writs of »i te fecerit aecurum, &c., in
which the proceeding was by summons, and
others in which it is by pone or attachment.
We contend that the proper course against a
• corporation is by summons. The writ said to
be found in the Register (RegUt. Bree.,%\) was
that against an abbot, or corporation sole. An
abbot and monks form a corporation of a pe-
culiar kind, where the abbot and his monks,
though they are, as natural persons, dead in
law, yet the abbot, as head of the religious
house, has a political capacity of suing and
being sued alone. (1 Kyd on Corp., Introduce.,
.'.'.) But let the plaintiffs show, if they
can, an instance of a corporation aggregate,
consisting of many persons, capable of being
Mn-tl, wii.>liave been sued by pone or attach-
ment. Kyd (Kyd on Corp., 222-223) has ex-
amined all the cases in the Year Books (38 Ed.
III.. 18 ; 8 Hen. VI.. I ; 9 lien. VI., 36. 20 ;
II. ii. VI.. 9. 4; Hen. VII., 13, 45 ; Edw. III.,
23) in which trespass was brought against a
•corporation, without any objection being
made; and concludes, notwithstanding, that
an action of trespass will not lie against a cor-
poration aggregate. (22 Ass., pi. 67: Bro.,
Corp., 43.)
- JOHNS. Rap., 18. N. Y. R., 5.
j In the case in 8 Hen. VI., 1. the action was
; trespass ; but it does not appear what the proc-
i ess was. One of the judges, to show the im-
l propriety of joining an individual with a cor-
i poralion, observes that, in case of amercement,
j the process would be attachment and distress
\ infinite, and against the individual, process of
I outlawry, which could not be joined. Kyd
(t Kyd on Corp., 271, 272) says, explicitly,
that a suit against a corporation aggregate,
must be by original out of chancery ; and if
the corporation do not appear, *the [* 1 IJO
process to compel appearance, must be by du-
triiigax, against the corporate property, and
that an attachment will not lie against them,
in their corporate capacity. If they have no
lauds or goods, there is no way to make them
appear either in a court of law or equity.
1 he extraordinary remedy, in such ease, is by
appeal to the House of Lords. Tidd and Sef-
lon (1 Tidd, 116 ; 2 Sellon, 148, 149 ; Co. Lit.,
66 ; Bro. Corp., 43) both say, that the process
to compel a corporation to appear, is by dts-
tringas.
In 2 Reeve's Hist, of Eng. Law, 257, 262,
are the ancient forms of writs in debt and cov-
enant, which are, el si fecerit, &c. , tune mm-
in.ii,,, &c.
The case of peers and corporations stands
on the same reason ; because you cannot pro-
ceed against them by capias ; but must sue
out an original « te fecerit securum, &c., sum-
mons and ili*trin<jitx thereon. Not a case has
been shown of a proceeding against a peer, by
any olher process. In the precedents in Lilly,
it does not appear that the defendants were
peers of Great Britain. They were Irish or
Scotch nobles.
As this court has decided, in Pierce v. Crofts,
12 Johns., 90, that a note payable to bearer
might be given in evidence under the general
money count, in an action by the holder, why
resort to the expensive mode of proceeding by
original, in these cases ?
As to the teste of the writ, the late Act could
not have intended to put suitors in a worse
situation than they were in before the Act was
passed. Now, suppose the cause of action
arises in vacation, and the original writ is
tested in the proceeding term, it will appear
to have issued before the cause of action arose.
Must he, then, to avoid this error, wait till the
next term before he takes out a writ ; when,
before the Act, he might have gone to a clerk
in chancery, and obtained a wnt on any day ?
This defect in the writ is fatal. It cannot be
amended. The cases cited of amendments,
are those of metne process, not of original
writs. A bad original is not helped by the
Statute of Jeofails. (11 Mod., 2.) Amendments
cannot be made unless there is something to
amend by ; and here is nothing but the precipe
on flic, and the writ does not vary from the
urecipe. (8 Co., 1566 ; 1 Salk., 49 ; 1 Ld. Ruym.,
564, 565 ; 7 Mod., 250 ; 1 Coin. Dig., 449, D,
I ; 1 Show., 80; 8 Atk., 595. 598; 2 Wils.,
117; 3 Wils.. 342; 9 Mod.. 808; 10 Mod.,
270; 2 Burr.. 966.) No fiction is allowed to
help out an original writ. The Act must have in-
tended to have made this court, in regard to
writs returnable here, the *officinabreti- f*l JJ7
(O/i.instead of chancery; and thisojfid/iabremum
must be always open, in vacation as well as
36 561
137
SUPREME COURT, STATE OF NEW YORK.
181&
term time ; otherwise the Statute of Limita-
tions might run against a demand, in many
cases.
Mr. Munro cited 2 Sellon's Pr., 677; 1
Lilly's Ent., 90; Legge's Outlawry, 62; John-
son's Diet, ad voca. ; Ains worth's Diet, advoca. ;
to show that the words vadio* et plegios are
properly translated by sureties and pledges.
Mr. Emmet, contra, cited 3 Bl. Com., "280,
and Boole's Suit at Law, 19, that "gages"
were goods or chattels, and "safe pledges"
were sureties or responsible persons.
Per Curiam. The two exceptions taken to
the original writ, and upon which the present
motion is founded, are, that it should have
been in the nature of a summons, and not by
pone or attachment ; and that it should have
been tested on the day it was issued, and not
on the last day of the preceding term.
With respect to the first exception, it is un-
necessary to'pursue the very extensive range
taken by the counsel on the argument. If this
was an action against a private person, there
can be no doubt, from the nature of the de-
mand, that the form adopted in this case
would be correct. The demand being uncer-
tain, the general rule is, that where the de-
mand is certain, the original writ is in the
alternative, and is called a precipe, command-
ing the defendant to do the thing required, or
show why he has not done it ; and this is the
process of summons. Where the demand is
uncertain, the writ is called a si tefecerit se-
curum, and is peremptory, commanding the
sheriff to cause the defendant to appear in
court, without any option given him to do the
thing required, as in the precise ; and this is
the process by pone, which directs the sheriff
to put by gages and safe pledges, the defend-
ant to show wherefore, &c. No precedent of
an original writ against a corporation has been
shown. But in all the elementary writers,
and in all the books of practice, which treat
of the proceedings against corporations, it is
laid down as the universal rule, that the proc-
ess must be by summons, and not by attach-
ment ; and such would not have been the
language of the books, if the same form, in
all cases, was to be pursued in proceedings
against corporations as against individuals.
138*] The alteration in the *writ is very plain
and simple : instead of the words "then put
by gages and safe pledges," &c., insert then
summon by good summoners, &c. In this
respect, therefore, the original writ is defect-
ive, and it is not amendable. There is nothing
to amend by. It cannot be considered a cleri-
cal mistake. The writ is conformable to the
precipe. (1 Salk., 52.) The test of the writ
depends entirely upon the construction to be
given to the Statute lately passed on that sub-
ject. (Sess. 38, ch. 38.) This Statute declares
that all original writs which, according to any
law, usage, or custom, have hereto issued out
of the Court of Chancery, &c., shall hereafter
issue out of, and under the seal of the court
in which such writ may be returnable, and be
tested in the name of the Chief Justice, first,
or senior judge of such court, observing, in
other respects, the form now in use ; and
giving to this court the like power which the
Oourt of Chancery had, to make and devise
new writs. This Statute is rather obscurely
worded, and it is a little difficult to say what,
precisely, was meant by the expression " ob-
serving, in other respects, the form now in
use." There can be no doubt that, according
to the established course of proceedings in the
Court of Chancery, with respect to original
writs, they must be tested after the cause of
action arises, and the day they are actually
issued. Although the Statute might well
warrant the construction, that the original
writ was still to have a true test, in the same
manner as when it issued out of chancery, yet
this is not the obvious and necessary 'inter-
pretation to be given to the Act ; and it is
much more fit and proper that it should be
tested like other process issuing out of the
court ; and such was, most likely, the inten-
tion of the Legislature. To assimilate it as
nearly as may be to other process, in matters
that may be considered in a great measure
formal, is less liable to lead to mistakes in the
issuing of the writ. And as it is the universal
and established rule, with respect to all other
process, that is should be tested in term time,
we think it the most fit and proper construc-
tion to be given to the Statute, that it was in-
tended to apply the same rule to the test of
original writs. In this respect, therefore, the
writ is correct, but must be quashed upon the
first exception taken to it.
Motion granted.
Cited in— 19 Wend., 26, 99; 63 N. Y., 119.
*HOYT®. GELSTON AND SCHENK. [*13!>
Injunction to stay Proceedings at Laic — Appeal
from Order Dissolving — Effect of.
Where an injunction to stay proceeding1 at law
was issued on the order of a master in chancery,
and the Chancellor, on motion for that purpose,
ordered the injunction to be dissolved, and the par-
ty immediately entered an appeal from that order,
it was held that the injunction was not revived by
that appeal, so as to operate as a stay of the pro-
ceedings at law.
Although an injunction operates only on the
party, his attorneys, and agents, yet this court will
take notice of an existing1 operative injunction, for
the purpose of promoting the ends of justice, and
preserving harmony between the two courts.
MR. H. BLEECKER, for the defendants,
moved to set aside the verdict taken in
this cause, at the last November sittings, in
New York, on the ground of irregularity.
(See the next cause.)
In June, 1815, the defendants filed their bill
in the Court of Chancery against the plaintiff,
for a discovery, and for an injunction to stay
the suit at law ; and having deposited $100
with the Assistant Register, one of the masters,
on the 5th of June, allowed the writ of in-
junction, which was, accordingly, issued, in
the usual form, to the plaintiff, his counsel,
attorneys, solicitors, and agents. By the 41st
rule of the Court of Chancery, of the 7th of
June, 1806, no injunction to stay proceedings
at law could issue, but by the certificate of
certain masters, specially designated by the
Chancellor for that purpose ; and, unless the
party obtaining it applied to the- Chancellor,
within six weeks after, for an order to con-
JOHNS. REP., lb
1816
HOYT v. GELSTON.
139
tinuc the injunction, it was dissolved, of
course. But by the rule of June 24th, 1814
(75th), the former rule, in this respect, was re-
pealed, and the defendant was allowed, at any
time, as well before as after answer, on due
notice, and upon the matter of the bill only,
to move the Chancellor for a dissolution of
the injunction ; so that an injunction issued
by a master remains in full force and effect
until dissolved by the Chancellor, on motion
for that purpose.
On the 12th of October, 1815, a motion was
made to dissolve the injunction, and an order
for its dissolution was made by the Chancel-
lor ; and on the 26th of October, the defend-
ants in this cause deposited $100 with the as-
.Mt register, and entered their appeal from
the order of the Chancellor. A few days before
receiving notice of the appeal, the plaintiff had
given notice of trial of the cause at the Novem-
ber sittings ; and when the cause was called on
for trial, the counsel for the defendants ob-
jected to the court's proceeding to trial, on
the ground, that as the order for dissolving
the injunction was appealed from, the injunc-
tion must be considered as still operative,
and the proceeding, afterwards, by the plaint-
iff and his attorney, was a contempt ; but the
judge ordered the trial to proceed.
140*1 * Messrs. Van Vechten and Bleecker
insisted that the effect of the appeal was to sus-
pend the operation of the order for the dissolu-
tion, and revive the writ of injunction. It
was precisely the same, in effect, as if no such
order had ever been made. Under the present
rule of the Court of Chancery, the allowance
of a writ of injunction by a master has the same
effect as if it had been by the Chancellor.
Every proceeding in the nature of an appeal
suspends the operation of the order or matter
appealed from; if so, the injunction stands
with the same force and effect as if issued by
the Chancellor himself.
It may be said, perhaps, that the injunction
operates only on the party, his attorney and
counsel, and not on the court; but this court
will not be governed by such a strict technical
notion, and will take notice of injunctions and
proceedings of the Court of Chancery, to pre-
vent any abuse in the administration of justice.
Where an execution was delayed after a year
and a duv, by an injunction, the Court of K.
IJ. took notice of that fact. (2 Burr., 660.)
^F>•. Golden, for the plaintiff, contended that
the master, in this respect, was the mere offi-
cer or instrument of the Chancellor, and to
allow his order for an injunction to remain in
full force, after the order of the Chancellor to
di-solve it, would besetting the servant above
his master. If the plaintiff is wrong in pro-
ceeding at law, it is a contempt of the Court
of Chancery, and the defendants may apply to
that court "for relief; for it is not pretended
that the appeal suspends the power of the
Chancellor to punish for a contempt. The
doctrine contended for, on the other side, as
to the effect of an appeal, would lead to the
greatest abuse.
Per Curiam. There was no irregularity in
proceeding to trial in this cause, by reason of
the injunction heretofore issued by a master.
Tliis injunction had been dissolved by the
JOHNS. REP., 18.
Chancellor. Where there is an existing opera-
tive injunction, we should think proper, as a
general rule, to notice it, for the purpose of
promoting the ends of justice, and of preserv-
ing harmony between the two courts, although
the injunction operates upon the parties only.
By the present rules in the Court of Chancery,
certain masters, designated by the Chancellor,
are authorized to grant injunctions, and which
are binding until dissolved *bv him. [*141
In this case, the injunction had been dissolved,
from which order there was an appeal ; and it
is now urged that this appeal suspends all pro-
ceedings in this court, as much as if the in-
junction was still in full force. To give such
ffect to an appeal from an order dissolving an
injunction, would be very mischievous in prac-
tice, and serve as a great engine of delay. We
must consider the case now in this court as if
no injunction had ever issued. If the parties
have committed any contempt, by proceeding,
application must be made to the Court of Chan-
cery to punish such contempt; but that is a
matter with which this court has no concern.
It is enough for us that there is no existing in-
junction. Suppose application had been made,
in the first instance, to the Chancellor, and he
had refused the injunction, an appeal would
have lain from such refusal; but such appeal
would not tie up the proceedings at law. If
an appeal was to have such an operation, ap-
plications for injunctions might be perverted to
the worst of purposes.
Tlie motion to net oxide the verdict must, there-
fore, be dented.
Overruled— 1 Hill, 651.
Cited in— 7 Johns. Ch., 296: 3 Paige, 382; Abb. Pr.
209; 48 Super., 396; 20 Wis., 271.
HOYT ». GELSTON AND SCHENCK.
Trespass — Bare Possession Sufficient to Maintain
— Lack of Malice by Admission of PCff, Bars
Vindictive Damages — Evidence of Justification
Inadmissible — Sentence of Restitution of Vessel
Conclusite as tn Illegality of Seizure.
Bare possession of a chattel is sufficient to main-
tain trespass against a wrong doer.
An admission by the counsel of the plaintiff, on
the trial of an action of trespass, that the defend-
ant acted without malice, precludes the plaintiff
from claiming vindictive damages, and, therefore,
evidence on the part of the defendant, in the nature
of a justification of the act, is inadmissible by way
of mitigation of damages.
A 8"iit< -n< -c of restitution, in the District Court of
the United States, of a vessel which had been si-i/i-.i
by a collector, is conclusive evidence, in an action
of trespass brought by the owner against the collec-
tor, that the seizure was illegal.
The parts of the island of St. Domingo, respect-
ively under the government of Petion and Chris-
tophe, are not Independent states, within the mean-
ing of the Act of Congress of the 5th of June, 1794,
and, therefore, it is not illegal to fit out a vessel for
the purpose of assisting the one against the other.
Citations— 1 East, 244; 3 Burr., 1503; Willes, 221;
Esp. Dig.. 403; Gould's ed., part 2, 289; 1 Chit. PI.,
168; 2 Saund., 47 (/: 2 W. Bl., 977,1176: 12 Vin. Abr., 95.
A. b. 22, pi. 1 : 5 T. R.. 255 ; Amb.. 756; Pcake's 3d.
ed., 76-8O, L. U. 8., Vol. III., p. 88; 4 Crunch, 272.
was an action of trespass, brought
-L against David Gelston, Collector, and
Peter A. Schenck, Surveyor of the Customs
of the port of New York, for seizing a vessel
503
141'
SUPREME COUKT, STATE OF NEW YORK.
1816
called the American Eagle, with her tackle,
apparel, furniture, ballast, water, salted pro-
visions, and ship bread, on the 10th of July,
1810. The declaration contained several
counts, which it is unnecessary to state, and
the plaintiff laid his damages at $200,000.
The defendants pleaded, 1. Not guilty.
2. That, before the 10th of July, 1810, to
wit: on the 1st of July, the American Eagle,
with her tackle, apparel, and furniture, was
attempted to be fitted out and armed, and five
hundred tons of stone ballast, one hundred
hogsheads of water, &c. , were procured for
the equipment of the said vessel, and were
142*] then and there *on board of her, as
part of her equipment, with intent that she
should be employed in the service of a foreign
state, to wit: of that part of the Island of St.
Domingo which was then under the govern-
ment of Petion, to commit hostilities upon the
subjects of another foreign state, with which
the United States were then at peace, to wit:
of that part of the Island of St. Domingo which
was then under the government of Christoplie,
contrary to the form of the statute in such case
made and provided; and that, on the 6th of
July, James Madison, President of the United
States, at Washington, did direct the defend-
ants to seize, as forfeited to the use of the
United States, the said ship, &c. ; and that,
afterwards, on the 10th of July, in pursuance
of such authority, they seized the said ship.
3. The third count stated, generally, that
the American Eagle was intended to be em-
ployed in the service of some foreign state,
to commit hostilities upon the subjects of an-
other foreign state, with which the United
States were then at peace; and that she was
seized by the defendants, pursuant to the di-
rections of the President.
The defendants subjoined a notice that they
would give in evidence, on the trial, that the
American Eagle, on the 1st of July, 1810, was
fitted out and armed with intent to be employed
in the service of a foreign prince, or state,
to wit: of that part of the Island of St. Domin-
go which was then under the government of
Petion, to cruise and commit hostilities iipon
the subjects, citizens, and property, of another
foreign prince, or state, with which the United
States were then at peace, to wit: of that part
of the Island of St. Domingo which was then
under the government of Chriftophe. And
also, that the said ship was fitted out with in-
tent to be em ployed in the service of some for-
eign prince, or state, to commit hostilities upon
the subjects of some other foreign prince, or
state, with which the United States were then
at peace; and also, that the defendants, as Col-
lector and Surveyor of the Customs, did, on
the 10th of July, 1810, seize and detain the said
ship.
The plaintiff took issue on the first plea, and
demurred to the second and third pleas, and
the defendants having joined in demurrer,
judgment was given for the plaintiff.
The cause was tried on the general issue, at
the New York sittings, in November, 1815, be-
fore Mr. Justice Spencer.
143*] *The plaintiff gave in evidence that
the ship was, at the time of seizure, in the act-
ual, full and peaceful possession of the plaint-
iff; and that, on her acquittal in the District
564
Court, it was decreed that she should be res-
tored to the plaintiff, the claimant. The pro-
ceedings of the District Court of the United
States, for the district of New York, were also
given in evidence; by which it appeared that
the American Eagle had been libeled, on the
ground that she had been fitted out with intent
to be employed in the service of Petion against
Christophe; that the plaintiff had tiled an an-
swer to the libel, and a claim to the vessel, in
which he denied the truth of the allegations in
the libel; that in April, 1811, he made applica-
tion to the District Court to have the ship ap-
praised, and delivered to him, on giving secu-
rity for the appraised value; that the vessel
was appraised at $35,000, and the appraise-
ment filed, which was not excepted to; and
that the sureties offered by the plaintiff, for the
appraised value, were accepted by the court;
that the cause was tried, the libel dismissed,
and the ship decreed to be restored to the
plaintiff; and that a certificate of reasonable
cause for the seizure had been denied. The
plaintiff also proved that the value of the ship,
at the time of seizure, was $100,000, and that
the defendant Schenck seized and took posses-
sion of her by the written directions of Gels-
ton. Here the plaintiff rested his cause; and
the defendants moved for a nonsuit, which
the judge overruled, and delivered his opinion
that the ma tiers given in evidence, on the part
of the plaintiff, were sufficient to entitle him
to a verdict; to which opinion the defendants'
counsel exceptod. The plaintiff then proved
the sale and delivery of the ship to himself.
The defendants offered to give in evidence,
as a defense, or in mitigation of damages, that
the vessel was fitted out to be employed in the
service of that part of the Island of St. Domin-
go which was then under the government of
Petion, to cruise and commit hostilities upon
the subjects, citizens, and property, of that
part of the Island of St. Domingo which was
then under the government of Christophe, con-
trary to the form of the Statute in such cases
made and provided, for which cause the de-
fendants seized her; but the judge overruled
the evidence, on the ground that it was inad-
missible as a justification; and that it was in-
admissible in mitigation of damages, the plaint-
iff's counsel having admitted that the defend-
ants had not been influenced *by any [* 144
malicious motives in making the seizure, and
that they had not acted with any view or de-
sign of oppressing or injuring the plaintiff,
who was thereby precluded from* claiming
damages, by way of punishment or smart
money. The defendants excepted to the opinion
of the judge, and the jury found a verdict
for the plaintiff, for $107,369.43 damages.
The bill of exceptions being returned, ac-
cording to the directions of the Statute, was
argued by Messrs. Van Vechten and H. Bhecker
for the defendants, and Mr. Golden for the
plaintiff.
Mr. H. Bleecktr. 1. The judge before whom
the c.ause was tried ought to have granted the
motion for a nonsuit. Mere possession is not
sufficient to enable a plaintiff to maintain an
action of trespass. He must show property
or title, either general or special, in the chat-
tel. (Bac. Abr., Trespass, C.)
2. The judge ought to have received the
JOHNS. REP., 13.
1818
HOTT v. GELSTON.
144
evidence offered by the defendants, in justifi-
cation, or mitigation of damages. If the ship
was liable to forfeiture, under the law of the
United States, it was the duty of the Collector
to make the seizure, and he was perfectly jus-
tifiable.
The 27th section of the Act of February 18th,
1793 (Laws of U. S., Vol. II.. p. 160). makes it
the duty of the officer of the revenue to go on
board vessels, and to search and examine
whether there has been any breach of the laws
of the United States. The right to seize is in-
dependent of any judicial investigation or de-
cision. To authorize a seizure, it is enough
tinit the vessel is found in the predicament
mentioned in the Act of Congress. By the
An of the 5th of.June, 1794 (Laws of U. S.,
\ ol. III., p. 88; 3 Cong., ness. 1, ch. 50, sec.
3), it is declared "that if any person shall,
within any of the ports, harbors, bays, rivers,
or other waters of the United States, fit out
and arm, or attempt to fit out and arm, or pro-
cure to be fitted out and armed, or shall know-
ingly be concerned in the furnishing, fitting
out or arming, of any ship or vessel, with in-
tent that such ship or vessel shall be employed
in the service of any foreign prince, or state,
to cruise or commit hostilities upon the sub-
j'-rts, citizens, or property, of another foreign
prince or state, with whom the United States
are at peace," &c. — "every such person, so
offending, shall, upon conviction, be adjudged
piiltv of a high misdemeanoj," &c. — "and
14.**] every such ship or *vessel, with her
tackle, &c., shall be forfeited, one half to the
u-r of any person who shall give information
of the offense, and the other half to the use of
the United States." Now, the defendants of-
fered to prove th.it the American Eagle was
fitted out, and armed, &c., with intent to be
employed in the service of one foreign state,
against the subjects or citizens of another for-
eign Mate. Then, were not Petion and Chris-
toplie foreign princes, or sovereigns, and their
territories foreign states, within the meaning
of this Act ? It is notorious that the whole
I->l:ind of Hispaniola, or St. Domingo, has been
independent of France and Spain for above
nineteen years. The mother country has not,
during that period, exercised dominion over
that Island. It is enough that there was a reg-
ular government, de facto, exercised there, in-
dependent of the mother country, to bring the
••vithin the mischief intended to be pre-
vailed by. the Statute. No matter what the
form of the government, or the extent of the
territory, might be, so long as it is a sovereign
and independent State. Petion or Christophe,
in conscimence of this ship being sent to the
one or the other, might have deemed it an act
of hostility, and have fitted out cruisers to
capture the vessels of the United States — an
evil which the Act of Congress was intended
to prevent. Nations, or states, according to
V:Utul (Vat. Droit. de* Gen*.), are societies of
men united together for their mutual safety
and mivunliiu'e. The Island of Hayti contains
near a million of inhabitants. The present
governments are as regular and enlightened as
mo»t of the boasted governments of the world.
That of Petion is modeled after that of the
United States ; and the wisdom and modera-
tion of their President have been highly ex-
JOHNS. REP., 13.
tolled. Christophe is a King, and the mon-
archy is hereditary, and is supported by ordeis
of nobility and officers of state. Each gov-
ernment maintains a regular army of 40.000
men. Parochial schools are established through-
out the whole island of Hayti — an institution
superior to any to be found in Europe. It is
impossible to regard them any longer as col-
onies. (See Edin. Rev. Vol. XXIV., p. 128,
No. 47, Nov., 1814.)
For the objects of the Statute, it is not es-
sential that the government of the United
States should recognize and publicly acknowl-
edge the independence of the government of
cit her of these sovereigns ; the mischief in-
tended to be prevented might equally exist. It
was a measure of policy in our government,
when, at the instance of the French govern-
ment, in 1805, or *1806. it prohibited f*14«
all intercourse with that part of the Island of
St. Domingo, formerly subject to France. It
was dictated by the fear of occasioning a rup-
ture with France. That act', therefore, furn-
ishes no evidence of the real opinion of this
government as to the independence of St.
Domingo. The British government, though
it made no positive declaration on the sub-
ject, has recognized ports or places in St.
Domingo as not under the dominion of France;
and on that ground vessels, carrying on trade
to St. Domingo, have been acquitted in the
Court of Admiralty, as not subject to the pen-
alties of trading from an enemy's colony.
(Manilla, 1 Edw. Adm. 1, Append., A. B, C.)
" When a nation becomes divided," says Vat-
tel (Droitde» Gens., liv. 3, ch. 18, sec. 293, 294,
295), "into two parties absolutely independent,
and no longer acknowledging a common su-
perior, the state is dissolved, and the war be-
tween the 1 wo parties, in every respect, is the
same with that of a public war between two
different nations." They are to be regarded,
by foreign nations, as equally independent.
Though the court gave judgment against the
plea, on the demurrer, which the defendants'
counsel declined arguing, yet, when the ques-
tion is again raised in the same or another case,
the court will not refuse to hear an argument,
and to pronounce a decision on it ; for it may
be presumed that the court decided the de-
murrer on some other point.
3. But it will be said that the decree of the
District Court of the United States is conclu-
sive against the justification set up by the de-
fendants. The defendants were not parties to
that decision, cither in name or interest. The
libel was in the name of the United States,
against the ship called the American Eagle,
her tackle, &c., and the prosecution was
carried on by the attorney of the United States.
It is the duty of the attorney of the United
States to prosecute all offenses against the
laws ; and the revenue officers are required to
make seizure : one half of the penalty goes to
the informer ; but it is not stated in the bill of
exceptions, and it nowhere appears, that the
defendants were the informers. If the decree
of the District Court is to be held conclusive,
it will violate the well-known principle, that
no man shall be condemned unheard. But,
admitting the general rule to be that the sen-
tence of a court of exrlusive jurisdiction, di-
rectly on the point, is conclusive, upon the
MS
116
SUPREME COURT, STATE OK NEW YORK.
1816
same matter coming incidentally in question
in a civil case, in another court, yet there is an
acknowledged distinction between a sentence
147*] of conviction, *or condemnation, and
a judgment of acquittal. (Bull. N. P., 245;
Peake's Law of Ev., 48, 49, 3d ed., and n.; 5
T. R., 255; 1 Harg. La\y Tracts, 472.) An
acquittal does not ascertain any precise fact :
it may be that sufficient evidence was not pro-
duced on the part of the public prosecutor.
" A conviction is conclusive evidence of the
fact, but an acquittal, as Buller observes, is
no proof of the reverse." A verdict on a crim-
inal proceeding, as an indictment for an as-
sault and battery, libel, &c., is not conclusive
in a civil suit for the private injury. The case
of Scott v. Shearman et al., 2 W. Bl., 977,
will be cited on the other side, as to this ques-
tion ; but it will be seen that Mr. Justice Black-
stone, who gave the reasons for the decision,
puts it on the ground that the plaintiff was a
party in interest in the proceedings in the Court
of Exchequer. Lord Coke, in Bunting v. Lep-
ingwel, 4 Co., 29, gives a very quaint reason
for regarding the sentence of the Ecclesiastical
Court as conclusive, namely, cuilibet in ma
arte pento est credendum; it is a reason that
would hardly be admitted at the present day.
The truth is that this notion has grown up in
England, from respect paid to the decisions of
certain courts of peculiar jurisdiction ; as, in
regard to their ecclesiastical courts, Lord
Coke observes : " The judges of our law ought
(although it be against the reason of our law)
to give faith and credit to their proceedings
and sentences, and to think that their proceed-
ings are consonant to the law of holy church."
But, we contend that this whole doctrine, as
to the conclusiveness of the sentences of courts
of peculiar jurisdiction, has been broken down
by the decision of the Court of Errors, in the
case of Vandenheuvel v. The United Ins. Co.,
2 Caines' Cas. in Error, 217-351; S. C., 2
Johns. Cas., 127-168, 451-468. The same rea-
sons, and the same authorities, were urged by
the judges of the Supreme Court, in that case,
in favor of the conclusiveness of foreign sen-
tences, as are stated in support of the conclu-
siveness of the decisions of courts of pecular
jurisdiction ; nay, there were other and
stronger reasons brought forward in favor of
the former, which cannot be applied to the
latter. If, then, by the decision of the court
of last resort, in this State, the whole doctrine
as to the conclusiveness of foreign sentences is
done away, a fortiori, must the rule, as to the
conclusiveness of the decrees of courts of pe-
culiar jurisdiction, be deemed as abrogated.
Mr. Colden, contra. 1. The decree of restitu-
tion shows that the plaintiff had the title as well
as the possession. In the Admiralty Court
148*] *all persons who have any claim or title
are called on to appear and enter their claims,
and the court decides who has the right, and
its decree is evidence of title or property. The
principles on which admiralty courts proceed
are stated in Jennings v. Carson, 4 Cranch., 2-
28. Documentary evidence of title in the
vessel was not necessary ; parol evidence of
acts of ownership would be sufficient. But we
contend that, in this act ion against a tortfeasor,
it is not necessary for the plaintiff to show title
on ownership.
566
[THOMPSON, Ch. J. You need not press
this point.]
2. Then as to the evidence offered in justi-
fication. In reason and principle, it must be-
long to the government, not to its courts, to
declare the facts, as to its political relations,
or whether a foreign people are to be deemed
and treated as an independent nation.
This very point came under the examination
of the Supreme Court of the United States, in
the case of Rose v. Himely, 4 Cranch, 241-272.
Chief Justice Marshall, in giving the opinion
of the court, in that case (March 2, 1808), takes
notice of the arguments urged in favor of
treating the government of St. Domingo as an
independent sovereign ; and that the doctrines
of Vattel had been referred to in support of
the argument. He very justly observes, that
the language of Vattel "is addressed to sove-
reigns, not to courts. It is for government to
decide whether they will consider St. Domingo
as an independent nation ; and until such de-
cision shall be made, or France shall relinquish
her claim, courts of justice must consider the
ancient state of things as remaining unaltered,
and the sovereign power of France over that
colony as still subsisting." It is worthy of
observation that the English Court of Appeals
(March 17th, 1808), and Sir William Scott, in
the High Court of Admiralty (April 1st, 1808),
before whom the same question arose, almost
at the same time, lay down precisely the same
rule, that, as thjere had been no declaration or
act of the government on the subject, their
courts must still regard that island as a colony
of France. (1 Edw. Adm., 1-3 ; App., D, Peli-
can.) " That it always belongs to the govern-
ment of the country to determine in what rela-
tion any other country stands towards it ; that
is a point upon which courts of justice cannot
decide." The same principle was also recog-
nized by the present Chancellor *^Kent), [* 1 4?)
when an application was made to him for an
injunction, in this very cause.
Again ; the Non-Intercourse Acts, as they
are called, of the United States (March 1,
1809, 10th Cong., sess. 2, ch. 91; June 28, 1809,
llth Cong., sess. 1, ch. 9; May 1, 1810, ch. 56),
prohibited all commerce with France and
Great Britain, their colonies and dependencies.
Now, it is a remarkable fact, that, at the very
time these defendants made this seizure of the
American Eagle, for being armed and fitted out
to aid one of these foreign and independent
states, in the island of St. Domingo, against
the other, they had made two seizures, the
schooner James and the schooner Lynx, for a
violation of the Non-Intercourse Act, in trad-
ing with St. Domingo, a colony and depend-
ency of France. It is well known that, in
1809, when the plaintiff's vessel was seized, the
libels, in the two other cases, were pending in
the District Court. Thus these defendants
could blow hot and cold, as best suited their
purpose.
But we contend that the question of forfeit-
ure or not, has been decided by a court of
competent jurisdiction, and all parties are now
concluded by that decision. It is a settled rule
of law, that where a court proceeds in rem, its
decision, as to the property, is conclusive ; and
the right cannot be tried over again. (12 Vin.
Ab., 95, Ev., A, b., 22.) It is said, however,
JOHNS. REP., 13.
1816
HOYT v. GELSTON.
that a sentence of acquittal is not equally con-
clusive ; but Peake, in the third edition of bis
treatise on Evidence (Peake, 8ded., 49, 78, 79,
SO ; 11 St. Tri., 218. 222. 235, 261 ; Amb.. 756 ;
2 Str.. 961), takes further notice of this dis-
tinction, and recognizes the case cited from
Vincr, before Baron Price, that an acquittal in
the Exchequer was conclusive ; and the case
of Litr* v. Digbey, cited by Buller 0V. P., 244).
i- io the same effect.1 (Cooke v. SltoU. 5 T. R.,
255.) The Court of Errors, in reversing the
<lr, isiou of the Supreme Court as to the con-
el usiveuess of foreign sentences, proceeded on
die ground of the great abuse of the general
principle in the English courts of admiralty.
Tln-y never intended, as has been suggested, lo
Mi'mVrt the whole law on this subject. It
would be attended with most oppressive and
mi-chii'vous consequences, if courts of jus-
lif-. of distinct and competent jurisdictions.
\\vre not to respect the judgments of each
• itlicr, directly on the same subject, between
I In- same parties.
If this court now admit the evidence
offered, it will be contrary to their judgment
pronounced on the general demurrer to
1 .">()*] *the plea. And it may be observed,
these defendants applied to this court for
an imparlance in this cause (S. ('.. 8 Johns.,
179), in order that they might reap the benefit
of the decree of the District Court, which they
alleged would be conclusive, if the seizure was
adjudged to have been rightfully made, or for
reasonable cause.
If the evidence was not admissible in justifi-
cation, it is equally inadmissible in mitigation
of damages.
Mr. Van Vechten, in reply, said it was a well-
s'tiled principle, that where subjects revolt
and declare themselves independent, and
maintain that independence, it is no violation
of duty, in a foreign nation, to treat them as
an independent state. We may look to the
government, de facto, without entering into an
examination of the legality of the means by
which it has been established. (Martens, bk. 3,
ch. 2, sec. 10, p. 80.) Surely the governments
at St. Domingo have every claim to be re-
spected as independent.
Aft to the admissibility of the evidence : it is
now the established law of this State, that for-
eign sentences are only priina facie evidence.
The doctrine laid down in the Court of Errors
has been acted on by this court. (9 Johns.,
282.) The principle of that decision applies to
the judgments of other courts. The decrees of
other courts are never conclusive in other
suits, between different parties. These de-
tVini.-uits were not parties to the suit in the
District Court ; they had no claim to put in.
The counsel then proceeded to examine the
reasoning and authorities relative to this rule
of evidence ; but his arguments were, substan-
tially, the same as those of the opening coun-
sel.
SPENCER, ./., delivered the opinion of the
•court :
1.— In a late " Treatise on the Law of Evidence "
MM, t,y Phillips (Ch. 3. sec. 3, p. 254-2BB). where this
«ut)j«-ct is handled, no now cases are cited : and he
.seems to consider the question as to the conclusive-
neaa of a sentence or acquittal, as still undeter-
mined, as the case of Cooke v. Sholl, 5 T. R., 255,
turned on a different point.
JOHNS. HEP.. 18
The bill of exceptions, taken at the trial,
presents two points for the consideration of
the court :
1. Was there sufficient evidence of property
in the plaintiff ?
2. Ought the evidence, overruled at the
trial, to have been admitted either in mitiga-
tion of damages, or as a bar to the suit ?
With respect to the first point, the bill of
exceptions stales that the plaintiff gave in ev-
idence that, at the time or the seizure of the
ship American Eagle by the defendants, she
was in the actual, full and peaceable possession
of the plaintiff ; and that, on the acquittal of
the vessel in the District Court, it was decreed
that she should be restored to the plaintiff, the
claimant of the vessel in that court ; and the
plaintiff then gave in evidence *the [*151
proceedings in the District Court, by which
the above facts fully appeared. In this stage of
the cause, and after the plaintiff had proved
the seizure of the ship by the defendants, and
her value, a motion was made by the defend-
ants' counsel, that the plaintiff should be nqn-
suited, on the ground that there was not suffi-
cient evidence to entitle the plaintiff to a ver-
dict, no right or title having been shown in the
plaintiff to the ship. We are of opinion that
the motion fora nonsuit was correctly over-
ruled. It is a general and undeniable principle
that possession is a sufficient title to the plaint-
iff in an action of trespass, n et armu,
against a wrong-doer. (1 East, 244 ; 3 Burr.,
1563; Willes, 221 ; Esp. Dig., 403; Gould's
ed., part 2, 289.) The finder of an article may
maintain trespass against any person but the
real owner ; and a person having an illegal
possession, may support this action against any
person other than the true owner. (1 Chilly's
PL, 168 ; 2 Saund., 47 rf.) If these principles
are applied to this case, it will appear, at once,
that the evidence of the plaintiff's right lo ihe
ship was very ample. He was not only in Ihe
actual, full and peaceable possession of this
ship, but he was the claimant of her in ihe
District Court ; and she has been awarded to
him by a sentence of that court. The defend-
ants make this objection without a pretense of
right, on their part, as they stand before the
court in the character of tortfeasors.
In the progress of the cause, the plaintiff
proved himself to be the owner of the ship ;
and even if it was admitted lhat the proof
before given was insufficient, a new Irial ought
not to be awarded on the ground of want of
proof of title in the plaintiff, when that very
proof was before the jury, and is now spread
on the record. In no point of view have the
defendants entitled themselves to a new trial
on this part of the bill of exceptions.
Under the second exception, it has been
urged that the matters set forth in the notice
ought to have been admitled in mitigation of
damages, and as a bar to the suit. They were
overruled in both respects ; first, because they
formed no bar to Ihe suit ; and second,
because the plaintiff's counsel had distinclly
slated and admilled that the defendants had
not been influenced by any malicious motives
in making the seizure, and that they had not
acted therein wilh any view or design of op-
pressing or injuring Ihe plaintiff. The presid-
ing judge held lhat such admission precluded
507
151
SUPREME COURT, STATE OP NEW YORK.
1816
the plaintiff from claiming any damages
152*] *against the defendants by way of
punishment or smart money, and that, after
such admission, the plaintiff could recover
only the actual damages sustained ; and he
gave that direction to the jury.
The defendants have no cause of complaint
that the facts set out in the notice were not ad-
mitted in mitigation of damages ; for the ad-
mission made by the plaintiff's counsel was
held to preclude him from recovering anything
beyond the actual damages sustained. If the
matters contained in the notice do not bar the
plaintiff's recovery, he was entitled, at all
events, to recover his actual damages ; and it
is not pretended that he has recovered beyond
that amount.
The question, then, presents itself — and it is
the only grave one in the case — whether the
matters contained in the notice, if proved,
would operate as a bar to the plaintiff's right
of action. This question, in the state of the
present record, we should be justified in refus-
ing to hear discussed. The pleas in bar em-
brace the same matters insisted on in the no-
tice. These pleas have been demurred to, and
have been adjudged to be bad. It is true there
was not an argument upon them, but it was
not a judgment by default. When the cause
was called, the defendants' counsel appeared,
and declined to argue them, whereupon judg-
ment was given for the plaintiff, on the de-
fendants' counsel declining the argument.
This act can be viewed in no other light than
as evincing a consciousness, on the part of the
counsel, that the pleas were not to be sup-
ported ; and it is a well-settled principle of
practice, that no court will hear the merits of
a case discussed after judgment. Virtually,
we have already declared the pleas bad, and
we should be justified in refusing to hear
counsel tell us that decision in the same cause
is incorrect. We were disposed, however, as
it had been suggested that this cause would
not, probably, rest here, to hear the points ar-
gued ; and, on two grounds, we are decidedly
of opinion that the facts stated in the notice, ff
proved, ought not to preclude the plaintiff's
recovery. We believe that the sentence of
restitution in the District Court is final and
conclusive ; that sentence not having been ap-
pealed from, and still remaining in full force.
It appears that this ship was libeled, as for-
feited to the United States, on the ground that
she was fitted out at New York, with the in-
tent that she should be employed in the service
of a foreign state, to wit: that part of the
Island of St. Domingo which was under the
government of Petion, to commit hostilities
153*] upon the *subjects of another foreign
state, with which the United States of Amer-
ica were then at peace, to wit : that part of
the Island of St. Domingo which was then
under the government of Christophe contrary
to the Statute in that case provided.
The plaintiff appeared before the District
Court, as claimant of the ship, and filed his
answer to the libel ; and, on full hearing, the
libel was dismissed, and the ship was decreed
to be restored to the plaintiff ; and a certificate
of reasonable cause for the seizure was denied.
It would seem, at once, to be unjust and im-
proper, in an action brought to recover dam-
568
ages for the seizure of property, after it has
been restored by the sentence of a court of
competent jurisdiction, for any other court,
and especially a common law court, to rehear
the case, and examine again into the propriety
of the sentence, in a collateral manner. It
would impugn a very salutary maxim, Nemo
debet bis vexari pro eadem causa ; and it would
overturn the well-settled principle, that the
judgment of a court of competent jurisdiction
proceeding upon a matter of which it had cog-
nizance, cannot be impeached collaterally, but
that it stands firm until vacated or reversed.
But upon authority, without regarding the
unreasonableness of thex principle contended
for, the sentence in this case is conclusive. In.
Scott v. Shearman et al , 2 W. Bl., 977, tres-
pass was brought against custom house offi-
cers for breaking and entering the plaintiff's
house, and taking away his goods. The de-
fendants gave in evidence a copy of the rec-
ord of condemnation of the Court of Ex-
chequer, condemning a quantity of geneva
(the goods taken from the plaintiff), and the
principal question was whether this was con-
clusive. Justice Blackstone delivered the unan-
imous opinion of the court, that the condem-
nation was conclusive evidence to all the world,
that the goods were liable to be seized, and
therefore, the action would not lie.
In Henshaw v. Pleasance et al,, 2 W. Bl.,.
1176, Le Grey, Ch. Justice, Gould and Nares,
Justices, referring to the case of Scott v. Shear-
man, say it has been uniformly held, for
above a century, that a condemnation of goods,
in the Exchequer, is conclusive evidence
against all the world.
It has been suggested by Peake that a judg-
ment of acquittal does not seem to have so
strong an operation in favor of the party ; but
in reference to a case like the present, we per-
ceive no reason for the distinction, nor can
such a distinction be supported *by [*154
authorities. In an action of trover for a par-
cel of brandy, before Baron Price, Trinity
vacation, 1716. an information in the name of
the Attorney-General, in the Exchequer, and
an acquittal thereupon, and a judgment, were
given in evidence, the brandy being seized,
&c. ; to which the other side objected ; but the
judge refused to admit any evidence against
this determination, or to let the parties in to
contest the fact over again which had been
tried on the information. (12 Vin. Abr., 95,
A b, 22, pi. 1.) In Cooke v Shell, 5T. R., 255,
Lord Kenyon unhesitatingly declared, that a
judgment of acquittal in the Exchequer,being
a judgment in rem, was conclusive as to the
question of the illegality of the caption. In
Meadows et ux. v. Ihe Dutchests of Kingston,
Amb., 756, a bill was filed in chancery, staling
the will of the Duke of Kingston, the devise
by him of his personal estate to the defendant
and his wife ; that it was founded on fraud
committed by the defendant, in imposing her-
self on the duke as a single woman, thereby
inducing him to many her, when at the time
she was the wife of a Mr. Hervey, and incapa-
ble of becoming the wife of the duke, praying
an account of the personal estate of the duke,
&c., &c. The defendant, among other things,
pleaded a suit in the Consistorial Court of
London, instituted by her against Mr. Hervey,
JOHNS. REP.. 1&_
ISKi
RUSSELL v. BARNES.
154
for jactitation of marriage, and a cross allega-
tion by Mr. Hervey, that he was married to
her ; and that, upon hearing the cause, the
judge, by his definite and final sentence, de-
clared that the defendant then was a spinster,
and free from all matrimonial contracts or es-
pousals, more especially with Hervey. This
plea was argued, and *x>rd Chancellor Apsley
held the sentence of the Consistorial Court to
be conclusive ; and he laid down the rule to
be, that whenever a matter comes to be tried
in a collateral way, the decree, sentence or
judgment, of any court having competent jur-
isdiction, shall be received as conclusive evi-
dence of the matter so determined. The only
distinction be admitted was, where the sen-
tence is not ex directo ; if it be not, it seems
not to be conclusive. (Peake, 3d edit., 7&-80,
and note*, where other cases are cited.) In the
present case, the question was direct: Was
this ship forfeited for the causes set forth in
the libel ? The answer of the District Court
is: "She was not." We, therefore, have no
hesitation to say, that, in a case like the pres-
ent, the sentence of acquittal is conclusive that
the seizure was illegal.
155*] *It was suggested, on the argument,
that the decision in the District Court is to be
regarded as the sentence of a foreign court,
and is, therefore, examinahle ; but that court
cannot be so considered. It is a court held in
and for the district of New York. It is a court
constituted under the Constitution and laws of
the United States, and it is just as much a
domestic tribunal as this court.
If, however, the question of the legality of
the seizure could be inquired into, we are
equally clear that the matters relied on by the
defendants cannot avail them. The supposed
ground of the forfeiture of this ship has been
already stated ; it was that she was fitted out
within the United States, with intent that she
should be employed in the service of a foreign
state, to wit: that part of St. Domingo which
was under the government of Petion, to com-
mit hostilities upon the subjects of another for-
eign state with which the United States were
then at peace, to wit, that part of St. Domingo
which was then under the government of
Christopbe.
To work a forfeiture of this ship under the
Act of Congress (L. U. 8. Vol. III., p. 88), it
was incumbent on the defendants to make out
that that part of St. Domingo which was under
the government of Petion, as also that part
which was under the government of Chris-
tophe, were, respectively, independent States,
within the meaning of the Act. On this part
of the case, this court adopt the opinion ex-
pressed by Chief Justice Marshall, in Roue v.
Ilimeley, 4 Cranch, 272. " The Colony of St.
Domingo, originally belonging to Prance, had
broken the bond that connected her with the
parent slate, and declared herself independent,
and was endeavoring to support that independ-
ence by arms. France still asserted her elaint
of sovereignty, and had employed a military
force in support of that sovereignty. A war,
de fitch), then unquestionably existed between
France and St. Domingo. It has IK-CD argued
that the colony, having declared itself a sover-
eign State, and having thus far maintained its
sovereignty by arms, must be considered and
JOH.NB. RKP., 13.
treated, by other nations, as sovereign in fact,
and as being entitled to maintain the same in-
tercourse with the world that is maintained by
other belligerent nations. In support of this
argument, the doctrines of Vattel have been
particularly referred to ; but the language of
that writer is obviously addressed to sover-
eigns, not to courts. It is for government to
decide whether they will consider St. Domingo
*as an independent nation ; and until [*lf»G
such decision shall l>e made, or France shall
relinquish her claim, courts of justice must
consider the ancient state of things as remain-
ing unaltered, and the sovereign power of
France over that colony as still subsisting."
On the trial of this cause, it was proved that
under the Non-intercourse Act, as late as
1809, vessels and cargoes were libeled, on the
seizure of the defendants, for holding inter-
course with St. Domingo, as a dependency of
France ; and that our government have so
considered that Island is a matter of public
notoriety. If these courts are to consider the
sovereign power of France as still subsisting
over that colony, the fitting out of this ship,
as stated in the pleas and notice, was not an
infraction of the Statute ; for neither Petion
nor Christophe were either sovereign princes or
states ; and it was not, therefore, a fitting out
with an intent that this ship should be em-
ployed in the service of any foreign prince or
state, to cruise or commit hostilities upon the
subjects, citizens, or property, of any other
foreign prince or state with whom the* United
States were at peace.
For these reasons we are of opinion that the
motion for a new trial must be refused, and
that the plaintiff have judgment on the ver-
dict.
Judgment for the plaintiff.
Affirmed— 13 Johns.. 561.
PoiweAfion sufficient to maintain trespass. Cited
in-1 Wend., 469; 16 Wend., 356; 51 How. Pr.. 24; 8
Bos., 163.
Eiemi>larn damage*— When not claimed, matter in
mitigation inaamtotUile. Cited in— 2 N. Y., 1«5: 1
Abb. Pr., 300 ; 4 Duer, 259: I E. D. Smith, 303.
Also cited in-2 Wend., 68 ; 1 N. Y., 543.
RUSSELL t>. BARNES.
Practice — Motion for Judgment — Affidavit.
On a motion for judgment, as in case of nonsuit,
for not lirinirinif to trial an issue joined in the City
of New York, the affidavit must state that the cause
could have been tried in its order on the calendar,
or that youngvr issues were tried.
MR. D. S. JONES, for the defendant, moved
for judgment, as in case of nonsuit, in
this cause, for not bringing on the cause to
trial at the last sittings in the City of New
York, and read an affidavit.
Mr. I. Hamilton, contra, objected that the
affidavit did not state that the cause could have
been tried in its order, or that younger issues
had been tried.
Per Curiam. In regard to issues joined in
the City and County of New York, the affi-
davit on a motion for a nonsuit, for not pro-
157
SUPREME COURT, STATE op NEW YORK.
1816
157*] ceeding *to trial, ought to state that the
cause might have been tried in its order on
the calendar, or that younger issues were
tried. We cannot, judicially, take notice of
the fact.
Motion denied.
Cited in— 7 Wend., 515.
JACKSON, ex dern. BARHYDT, v. CLOW.
Pleading — Puis Darrein Continuance — Copy.
Where a plea, puts darrein contimiance, is filed in
term time, a copy of it must be served ; but where
the matter of the plea arises in vacation, so as it can
only be offered at the Circuit to prevent a trial, no
copy is necessary.
TSSUE was joined in this cause the 29th of
-L May, 1815, the venue being laid in the
Bounty of Schenectady. On the 16th of Octo-
ber, in October Term, the defendant filed a
plea, puts darrein continuance, and afterwards,
but before the Circuit at which the cause was
noticed for trial, which was held on the last
day of October or 1st of November, a copy of
the plea was served on the plaintiff's attorney,
who, without regarding the plea, or entering
it on the Nisi Prius record, had the defendant
called, and on his default in not confessing
lease, entry, and ouster, a nonsuit was en-
tered. A certified copy of the plea was ten-
dered at the Circuit, when the cause was
called.
Mr. M'Koun, for the defendant, moved to
set aside the nonsuit, and all subsequent pro-
ceedings, for irregularity, with costs.
Mr. J. V. N. Yates, contra.
Per Guriam. The plea of puis darrein con-
tinuance was put in in proper time ; and the
only question is, whether the defendant was
bound to serve a copy of it at the time. Where
the matter of the plea arises so as to render it
necessary that the plea should be filed in term
time, a copy of it must be served, but where
the matter arises in vacation, so that the plea
can only be offered at the Circuit, in order to
prevent a trial, a copy need not be served.
Motion denied.
158*] *SLOAN 0. WATTLES.
Practice — Alteration of Capias — By Attorney —
By Sheriff.
The attorney may alter the test and return day of
a capias before it is served ; and where the sheriff is
authorized and instructed by the attorney to alter
the return day, in case the writ cannot be served
before, he may make the alteration before bail is
taken or appearance is indorsed.
MR. N. WILLIAMS, for the defendant,
moved to set aside the capias in this
cause, on the ground that the sheriff had al-
tered the return day of the writ.
It appeared that the plaintiff's attorney, on
sending the writ to the sheriff, had instructed
him, in case he did not receive the writ in
time to be served before the return day, to
alter it. The sheriff served the writ, and was
.570
about taking a bond for appearance, when he
discovered that the return day was past ; he
then altered the return day, and served the
writ anew.
Mr. 1. Hamilton, contra.
Per Guriam. The attorney might have al-
tered the test and return of a writ before it
had been served ; and the sheriff was fully
authorized, by the attorney, to make the alter-
ation, in case it should be necessary. We
think the sheriff, in this case, had not pro-
ceeded so far but that he might exercise the
power given to him by the attorney, and that
the motion, therefore, ought to be denied.
Motion denied.
Cited in— 18 Johns., 4 ; 36 N. J. L., 178.
FORBES AND NELSON v. GLASHAN.
Practice — Forcible Entry and Detainer — Notice
— Affidavit of Service of.
The service of notice of inquiry, in a case of
forcible entry and detainer, must be either by affix-
ing a notice in writing on some public and suitable
place on the premises, as the front door of the
house, or by delivering the notice personally to the
party against whom the complaint is made, if on
the premises.
Where the affidavit of service of notice stated
that the party was not on the premises, and that
the notice was " put up on the house in a con-
spicuous place," it was held not to be sufficient,
and the conviction was set aside, and re-restitution
awarded.
Citation— Sess. 11, ch. 6, sec. 3.
R. HENRY, for the plaintiffs, moved to
set aside the conviction of forcibly entry
1
and detainer, in this case, for irregularity, and
that Forbes and Nelson be restored to the lot
and messuage, &c., of which they had been
dispossessed by means of the conviction, or
for such order as the couit might think proper
to grant, in the premises. He read a great
many papers and affidavits, *but the [*159
important point on which he rested his ap-
plication, was the want of due service of no-
tice of the time and place of executing the
warrant of inquiry of the entry and detainer.
The justice, in his return, stated the service
to have been by delivering the notice in writ-
ing to the person against whom the complaint
was made ; but it appeared, from the affidavit
of the person who served the notice, and
which affidavit it was agreed should be con-
sidered as part of the return, that "he, the
deponent, did not find Forbes and Nelson on
the premises, at the time of serving the notice ;
but he put up the same on the house, in a
conspicuous place, and gave notice to a woman,
then in the house, and on the premises, of the
said notice."
Mr. I. Hamilton, contra, cited Shotwett's
case, 10 Johns., 304. See S. C., Clason v.
Shotwell (in error), 12 Johns., 31.
Per Curiam. We consider the affidavit of
the service of the notice, by the consent of the
counsel, as if incorporated in the return. The
Act (sess. 11, ch. 6. sec. 3 ; 1 N. R. L., 96)
directs that a notice in writing of the time and
JOHNS. REP., 18.
1816
FORBES v. GLABHAN.
159
place of the return of the precept of inquiry,
should be "affixed up in some public and
suitable place, upon the lands or tenements."
<&c., "or be delivered to the party against
whom such complaint is made, if such party
be on the premises." The true construction
of the Act is, that the service must be on some
public and suitable place on the premises, or
personally on the party. It should appear
that everything had been done, in the power
of the party, to bring the notice home to the
person who was entitled to receive it. accord-
ing to the intention and direction of the Act.
The affidavit, in this respect, is defective. If
it had stated that the notice had been affixed
on the front door of the house, or in a public
and suitable place, it would have been suffi-
cient ; but we can intend nothing but what is
expressly stated in the affidavit.
JOHNS. RKP., 18.
The proceeding^ therefore, mutt be set aside,
and the possession restored.
The following rule was accordingly entered :
" Ordered, that the conviction of forcible
entry and detainer, in this cause, be set aside,
or quashed, for irregularity ; and that the said
James Forbes and James Nelson be restored
to the possession of the lot and messuage of
which they have been dispossessed by means
of the said conviction."
GENERAL RULE. [»16O
January, 12th, 1816.
ORDERED, that the sixth Rule of January,
Term, 1799, as to preparing, amending.
u
and settling cases, shall extend to cases made
subject to tin- opinion of the court.
571
[END OF JANUARY TERM, 1816.]
OASES ARGUED AND DETERMINED
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW YORK,
nsr
MAY TERM, 1816, IN THE FORTIETH YEAR OF OUR INDEPENDENCE.
GRACIE
V.
THE NEW YORK INSURANCE COM-
PANY.
Marine Insurance — Arrest and Restraint —
Total Loss— Warranty against Illicit or Pro-
hibited Trade.
Insurance on a cargo " from New York to Ant-
werp." During the voyage, the ship was boarded
by a British privateer, and carried into Portsmouth,
in England, and, after a short detention, was re-
leased, and on arriving in Flushing Roads, an
armed force was put on board, and continued until
her arrival at Antwerp, on the 21st of July, 1807,
where she was not suffered to land her cargo, nor
to depart with it, the armed force being kept on
board by the officer of the customs. On applica-
tion by the consignees, leave was obtained from
the French government, through its ministers, to
land the cargo, under the direction of the officer of
the customs, on condition of its being placed in
depot, in the custom house stores, until the decision
of the Emperor of France could be obtained. After
remaining in this state of sequestration until 1810,
the cargo was sold by order of the Emperor, and
the proceeds paid into his catese d'amortissement.
Held, that there was a total loss of the cargo, by
the arrest, restraint, and detainment of the French
government.
THIS was an action on an open policy of in-
surance, dated the 8th of May, 1807, on
the cargo of the American ship Mary, Rich-
ards master, on a voyage ' ' at and from New
York to Antwerp ; if blockaded, to a port not
blockaded," " upon coffee in casks, sugar, and
ashes." " Warranted not to abandon, if capt-
ured, until condemnation, or until after a de-
tention of six months after advice is received
of her capture. The exporter, not the im-
porter." The cause was tried at the New
York sittings, before Mr. Justice Yates, in
May, 1814, subject to the opinion of the court
on a case, with permission to either party to
162*] turn the *same into a special verdict.
The case, however, instead of stating the facts
as they would have been found by the special
verdict of a jury, set out all the evidence, con-
sisting of depositions, letters, &c. , in haec verba.
The following are all the parts of the evi-
dence it is thought material to state :
The master, in his deposition, stated that
the ship sailed on the voyage insured, the 10th
572
of May, 1807. On the 10th of June she was
boarded by an English privateer, and carried
into Portsmouth, In England, where the mas-
ter made his protest ; and being released by
an order of the Court of Admiralty, he sailed
on the llth of July, and arrived in Flushing
Roads on the 14th of July, when they took on
board a pilot. An armed force was put on
board, which continued on board until the ship
reached Antwerp, and until the cargo was
landed. There were two or three ships of
war lying in Flushing Roads at the time the
Mary entered there ; and she could not have
gone to sea again without being boarded by
some of them. The armed force which came
on board inquired of the master whether he
had been in England, and he answered that
he had been captured and carried in there.
Nothing was said about his being allowed to-
enter and land his cargo at Antwerp ; nor
was he warned not to go there, or to any other
port. The master stated that he had no con-
trol over his ship, nor the power of directing
where she should go, until after the cargo was
landed. That when the ship arrived at Ant-
werp, the custom house officers, in conse-
quence of the ship having been carried into
England, kept the armed force on board of
her, and refused to give permission to land
the cargo, until the 25th of August, when per-
mission was received, as he understood, from
Paris, to land the cargo, on condition that it
should be deposited in the stores of the custom
house, which was, accordingly, done. The
armed force on board he believed to be French-
men, but he neither understood nor spoke
French or German. On his cross-examination,
he verified a protest made by him at Antwerp,
and stated that several American ships were
at Antwerp, in the same situation, none of
which left that place with their cargoes. He
never inquired of the consignee or any other
person, whether he could depart with his car-
go, but waited for orders for landing it, and
did land it, in pursuance of orders received
from the consignee, on the 25th of August,
and returned to New York with the shin in
ballast. The *clerk of the consignees, [*163
and a custom house officer, also, took an ac
count of the landing of the cargo ; and the
JOHNS. REP.. 13.
1816
OKACIK v. NEW YORK INS. Co.
163
clerk gave a receipt on his set of the bills of
the lading. That he had no communication
with the custom house officers at Antwerp be-
fore landing his cargo ; he did not remember
whether he entered his ship or not, before he
had orders to land his cargo ; that he knew
nothing of any permission from Paris to land
it ; that he acted in pursuance of orders from
the consignees, by whom he was directed to
land it. lie did not know for what purpose
the armed men were put on board, but sup-
posed it was to guard the vessel ; nor did he
recollect their number, nor whether the same
men who came on board at Flushing con-
tinued to Antwerp ; -they might have been the
same or others. He knew nothing of any ar
rangement between the consignees and the
French government about landing the cargo,
nor of the terms or conditions on which it
was landed. That he did not know the
reason why he did not state, in his protest,
that the vessel was taken possession of by an
armed force in Flushing Roads, but supposed
that he did not think it necessary. Several of
the master's answers, in this respect, to the
•questions put to him, appeared confused and
inconsistent.
Jacob Ridgeway, who was the American
Consul at Antwerp, and resided there from
1801 to 1808. and, afterwards, at Paris, until
1810, deposed that the Mary, and several other
ships, which he specified, arrived at Antwerp
in 1807, and had either been boarded by En-
glish vessels, or touched at English ports, and
some of them were consigned to his house.
That they were not permitted to depart with
their cargoes ; and demand, for that purpose,
was made to the Director of the Customs, and
afterwards to the Emperor of France through
the minister, but without effect. The whole
of their cargoes were put into depot, or the
stores of the custom house, and were, after-
wards, sold by the special order of the Emper-
or, and the proceeds placed in his caixse
<famorti*sement, or sinking fund. That the
Mary was consigned to Parish & Co., and he
did not believe that she could have departed
without a special order from the Emperor,
and he did not believe that any such order
could have been obtained ; and his impression
was, that the consignees did endeavor to ob-
tain such permission, through the agents of
the government. The cargo of the Alary was
placed, by the order of the Director of the
Customs, in the depot, or custom house stores,
1O4*] and under the direction *of the officers
of the customs. The consignees could not
either sell or deliver the cargo ; it was sold
by order of the Emperor. The custom house
officers said they could not permit any Ameri-
can vessels, which had been boarded by British
vessels, or touched at British ports, to depart,
without the special leave of the Emperor ; and
he believed the Mary could not have left Ant-
werp, with her cargo, without such special
permission. He- did not know whether force
was used in landing the cargo, but believed it
was landed by direction of the custom house
officer. The cargoes of all the seven vessels
mentioned by him, including the Mary, were
landed and placed in depot, <fec., under seques-
tration ; ami contrary, he believed, to the
wishes of the consignees. As to the vessels
JOHNS. REP., 18.
consigned to his house, he spoke positively.
Repeated applications for permission to de-
part, with their cargoes, were made without
success. There was no prohibition, in this
respect, as to vessels which had not been
boarded by British ships of war, or touched
at British ports
The consignees, in their letter to the plaint-
iff, of the 23d of July, 1807, after mentioning
the arrival of the Mary, say " they are going
to send all her papers to Paris, in order to ob-
tain leave to land her cargo." " The cargo
will remain under the control of the custom
house, until a decision, which we have no
great hopes of being shortly given." In their
letter of the 10th of August, they write : "We
are yet without any decision." &c., " nor have
we obtained leave to land the Mary's cargo."
In September following, they again wrote :
"Inclosed you will find a printed note, by
which you will see that our government is ful-
ly determined to enforce the execution of the
decree of the 21st of November." " Not long
after we wrote you last, we bad leave to land
the Mary's cargo." " We are apt to imagine
that something is still to be determined in re-
gard to such vessels whose cargoes have been
landed, by permission of the Director- General
of the Customs, authorized by the Minister of
Finance. Are those cargoes to be admitted, or
not ? Are they to be admitted under certain
restrictions or conditions, or are they to be
sent back?" In their letter of the 14th of
April, 1808,, they say: "We have not discon-
tinued a moment doing everything we could to
obtain the admission of the sequestered car-
goes per the Perseverance and Mary ; but all
without success." "We still flatter ourselves
that, whatever may be the decision which
may be pronounced hereafter, in regard to the
American cargoes *seized in our ports, [* 1 05
in consequence of the decrees of the 28d of
November and 17th of December, 1807, there
will be an exception made in favor of those
which, like yours, have, previously to these
decrees, been admitted, provisionally, by the
Minister of Finance, and the Director-General
of the Customs." "We have petitioned to be
admitted to re-export those cargoes ; but we
do not suppose it will be granted."
In their letter of the 30th of May, 1808, they
wrote : " We continue in the same uncertainty
as to the sequestered cargoes ; no decision hav-
ing yet been given " On the 4th of August,
1808, they again wrote : "We have the honor
to inform you, that, by an imperial decree
lately issued, it is ordered, 1st. That the car-
goes entered into our ports, before the decrees
of November and December, 1807 (which com-
prehend those under sequestration), be sold
immediately by* public sale, and the proceeds
he paid into the cainse d'amortumemtnt. 2.
That an inquiry shall be made, in order to
prove that the goods are not British property.
3. That the Emperor reserves to himself the
right of pronouncing on the result of such in-
quiry."
It appeared, from subsequent letters, that,
after exhibiting the fullest proofs of American
property, and various applications, no release
of the cargo could be obtained ; but it was, in
June. 1810, sold by order of the Emperor, and
the proceeds paid into the eaiue (Camortiiae.
67:1
165
SUPREME COURT, STATE OF NEW YORK.
1816
ment. On receiving information of the sale,
the plaintiffs, on the 13th of July, 1810, made
a formal abandonment to the defendants for a
total loss.
Messrs. D. B. Ogden and 8. Jones., Jr., for
the plaintiffs. They cited Speir v. New York
Ins. Co. , 3 Johns. . 88 ; Mumford v. Phoenix
Ins. Co., 1 Johns., 449, 460; Brown v. TJie
Phcentz Ins. Co. , 4 Binney , 445 ; 5 Binney, 403,
Savaye v. Pleasants.
Messrs. T. A. Shnmet and Wells, contra.
PLATT, J. The plaintiff claims as for a total
loss, under a policy of insurance upon the
cargo of the ship Mary, on a voyage "at and
from New York to Antwerp ; if blockaded, to
a port not blockaded." "Warranted free from
seizure, for or on account of any illicit or
prohibited trade."
On her voyage, the ship was captured by an
16G*] English privateer, *and carried into
Portsmouth, where she was liberated by a de-
cree of admiralty, and then pursued her voy-
age.
On the 21st of July, 1807, she arrived at
Antwerp, and moored off the City.
About the 1st of September, 1807, the cargo
was landed at Antwerp ; and, I think, the only
question is, whether, at the time it was so
landed, it was under the " arrest, restraint, or
detainment " of the French government.
But the 7th article of the Berlin decree (21 si
of November, 1806), it was ordained that " no
vessel coming directly from England, or from
English colonies, or having been there since
the publication of the present decree, shall be
received into any port."
To go into a French port, for the purpose of
requesting a special permission to land a cargo
upon a full explanation that the vessel had
come directly from an English port, would not
be a violation of the Berlin decree, whether
such application were successful or not. For,
if the French government refused permission
to land the cargo, the legal consequence was
that the vessel had a right to depart with her
cargo, and seek another market ; and if per-
mission for landing the cargo was granted,
with a full knowledge that the ve|pel had
come from an English port, such consent (by
the Emperor himself, as in this case) would be
a revocation of that decree, in regard to that
particular ship and cargo.
The 8th article of the Berlin decree provides,
accordingly, that " every vessel contravening
the above clause, by means of a false declara-
tion, shall be seized ; and the vessel and cargo
confiscated, as if they were English prop-
erty."
1 can, therefore, see no ground to suppose
that the cargo of the Mary was seized and con-
demed for a violation of the Berlin decree ; es-
pecially as the decree of condemnation does
not allege that as the cause. If the assured had
committed an infraction of the Berlin decree,
why was the ship permitted to depart ? The
penalty of that decree was a forfeiture of the
vessel, as well as her cargo.
It is observable that the condemnation of this
cargo was not until after the Milan decree of
the llth of November, 1807, although the
sequestration was long before that decree.
The Milan decree declares all foreign vessels
574
lawful prize, *which have submitted [*167
to be searched by an English ship, or have
come from an English port.
The fair presumption is, that, in condeming
this cargo, the Emperor exercised a special
arbitrary power, ex post facto, inasmuch as the
case of The Mai-y was exactly within the pol-
icy of the Milan decree, although s>he came
into the French port fifteen months before the
date of that decree.
There is, therefore, no evidence of a breach
of warranty, on the part of the assured, against
" illicit and prohibited trade."
But if the landing of the cargo were the
voluntary and unconstrained act of the con-
signees, having the free election, either to send
away the cargo or to land it, then it is clear
that the defendants are not liable, because their
risk terminated upon the safe and unrestrained
landing of the goods insured, at the port of
destination.
That the cargo was sequestered, and, after-
wards, sold by order of the French government,
is undeniable ; and the only material inquiry
is resolved into a question of fact, viz : was the
seizure, or sequestration, in this case, before
the landing of the cargo ?
The testimony of Richards, the master, upon
his direct examination, is clear and explicit,
that when the Mary arrived in Flushing Roads
there were two or three ships of war there ;
that an armed force was put on board the
Mary ; that they inquired of him whether he
had been in England ; that he informed them he
had been captured and carried in there; that the
armed force continued on board until the arrival
of the ship at Antwerp, and until the landing
of the cargo ; and that he never had the control
of the ship, nor the power of directing where
she should go, until after the cargo was landed;
that, on the 25th of August, 1807 (he under-
stood), permission was given to land the cargo,
on condition that it should be deposited in the
stores of the custom house ; and it was landed
and deposited accordingly.
The credit of the master is in some degree
impeached by his confused and incoherent an-
swers to the cross-interrogatories ; but it is
strongly corroborated by the testimony of
Jacob Ridgeway, then American Consul, resid-
ing at Antwerp.
He swears that at the time when the Mary
lay at Antwerp, with her cargo on board, there
were six other American vessels, with their
cargoes, also lying there, all having, like the
Mary, *touched at an English port on [*168
their voyage to Antwerp ; that four of those
vessels were consigned to himself ; and the
other three, including the Mary, were con-
signed to David Parish & Co. He further
swears "that the said vessels which came ad-
dressed to his house, and which had touched
at English ports in their passage out, were not
permitted to depart with their cargoes ; that he
demanded permission for the departure of their
cargoes ; the first demand was made to the
Director of the Customs, and afterwards to the
Emperor of France, through the medium of
his minister, all without effect." He further
testifies that, "to the best of his knowledge
and belief, the whole of the cargoes of those
seven vessels were put into the depot or custom
house stores, and were afterwards sold by a
JOHNS. REP., 13.
1816
GRACIK v. NEW YORK LNB. Co.
168
special order of the Emperor, and the funds
arising from the sales placed in bis cause
cTamortigsement.
With regard to the ship Mary, he says: "I
do not believe it was possible for her to have
departed from Antwerp, with her cargo, for
any other port, without the special permission
of the Emperor of France. I do not believe
that any such permission could have been ob-
tained ; and the impression of my mind is,
that the consignees (of the Mary) did make
efforts to obtain such permission. ' Mr. Ridge-
way further testifies that "the cargo of the
Mary was deposited, by order of the Directors
of the Customs, in the depot, or custom house
stores, and under the control of the custom
house officers. The consignees could not, to
the best of his knowledge and belief, either
sell or deliver said cargo ;" and " this cargo
was sold by special order from the Emperor ;"
that " the reason assigned by the custom house
officers, for not permitting American vessels
that had either been boarded by British ships
of war, or touched at British ports, to depart
with their cargoes, was, that they could not
do it without the special permission of the
Emperor." He further adds, that "the cargoes
of the seven vessels were all landed and put into
the depot, under sequestration, as he believes,
contrary to the wishes of the consignees."
Ridgeway's official station afforded him the
best means of knowing, and it was his duty,
as American Consul, to ascertain the truth on
that point. He swears that, on inquiry at the
proper office, he was told that " American
vessels, having touched in England," &c.,
could not be permitted to depart with their
cargoes, without special permission of theEm-
1 (it)*] peror. I consider *this declaration as
strong evidence, in itself, of " restraint" upon
this vessel, to which the language of the pub-
lic officer was expressly applicable. " Arbi-
trary restraint of princes" is often exercised in
an equivocal and insidious manner ; and it
may not be the less certain, although the evi-
dence of it be not frankly and palpably ad-
dressed to our senses. The testimony of
Ridgeway, although less positive and direct,
in regard to the Mary, is positive proof, to
show that the three cargoes consigned to him
were under arbitrary restraint ; and that fact
alone greatly strengthens the credibility of
Captain Richards, who swears, positively, as
to the like restraint upon the cargo of the
Mary ; all those cargoes being in the like pre-
dicament.
The extracts of letters from David Parish &
Co., to the plaintiff, are not inconsistent with
the testimony of Captain Richards and that of
Mr. Ridgeway. These letters do not expressly
state when, and how, the seizure of this cargo
was made ; but they speak of it as "under
sequestration," before the decree for its sale ;
and, if sequestered, when did that take place ?
It remained in the depot, under the entire con-
trol of the government, from the moment of
its landing until the decree of sale; and whether
the sequestration took place as soon as the ves-
sel arrived in the Scheld, or at Antwerp, as
may be inferred from the testimony of Rich-
ards and of Ridgeway. or whether the cargo
was sequestered while in the very act of land-
ng, it was equally covered by the policy.
JOHNS. REP., 13.
It is worthy of remark, that the letters of
David Parish & Co. were written while they
were within the reach of the strong and des-
potic arm of Napoleon ; and that all their let-
ters were liable to his inspection ; which may
account for their writing as little, and as
seldom as possible, of the violent acts of the
French government : especially as they were,
during all that time, most humbly supplicating
the clemency of Napoleon, in regard to this
very cargo. It would, therefore, have been
impolitic and unsafe to write the plain truth,
that these goods were seized as soon as they
came within the power of the French gov-
ernment ; not for the violation of any law, but
as an act of capricious and arbitrary despotism.
From the whole tenor of their letters, how-
ever, I cannot entertain a doubt that, if inter-
rogated expressly upon the poiht, they would
have sworn, in accordance with the other wit-
nesses, that the cargo was held under the con
trol of the government, so that it could neither
be *landed, nor exported by the owner, [* 1 7O
at any time after its arrival at Antwerp.
It appears that the cargo was landed upon
the express application and request of the con-
signees; under a condition that it should re-
main in the depot, under the control of the
custom house, until the Emperor's decision
should be made. But if the cargo was under
arrest or sequestration while it remained on
board the ship, in port, the benefit of this
policy was not waived, nor lost, by consenting
to the landing of the cargo under the restric-
tion imposed. The petition to land the goods,
under such circumstances, was a request mere-
ly to modify the restraint, already imposed by
the government, by removing the sequestered
cargo from the ship to the storehouse ; both
equally within the territory and control of the
French government. The fair and legitimate
object of that modification, undoubtedly, was,
that the ship might depart : to which there was
then no impediment.
I think the decided weight of evidence es-
tablishes the fact that the cargo of the Mary
was lost to the assured by the "arrest, re-
straint, or detainment" of the French govern-
ment, without any breach of warranty against
" illicit or prohibited trade" on the part of the
assured ; and, therefore, the plaintiff in en til led
to recover.
YATES, and VAN NESS. JJ. , were of the same
opinion.
THOMPSON. Ch. J. The decision of this case
depends entirely upon the question of fact,
whether there was a voluntary landing of the
cargo.or whether it was landed under the coer-
cion of the force stated by the master to have
been put on board. If the facts in the case will
warrant the conclusion, that the Mary was
seized by a military force, and the cargo landed
under such constraint, and against the consent
of the consignees, I should entertain no doubt
that *the underwriters were liable for the loss.
This was not a seizure or detention for or
on account of any illicit or prohibited trade.
There was no attempt whatever to trade, or
to do any act in contravention of any mu-
icipal regulation. A mere entry into the
port of Antwerp was no breach of that war-
ranty. Nor could there be any pretense to
575
170
SUPREME COURT, STATE OF NEW YORK.
1816
charge the assured with a violation of the Ber-
lin decree.
That decree declares that " no vessel coming
directly from England, or her colonies, or bav-
1 7 1*J ing been there since the publication *of
the decree, shall be admitted into any port of
French dominions : and that every vessel that,
bv a false declaration, contravenes the fore-
going disposition, shall be seized, and the ship
.and cargo confiscated as English property."
There was no pretense that there was any at-
tempt, on the part of the assured, to obtain
an entry in violation of this decree. If, there-
fore, this cargo was forcibly taken from under
the control of the master and consignees, it
was a lawless and arbitrary act, and the loss
would come under the general peril of arrests
and detention of princes. But if, on the con-
trary, the conclusion to be drawn from the
facts in the case is, that the consignees, finding
that the Mary came within the Berlin decree,
and that they could not procure an uncon-
ditional entry and landing of the cargo, volun-
tarily consented to have the same deposited in
the stores of the custom house, for the pur-
pose of procuring a dispensation of the decree,
and permission to sell the cargo, the under-
writers are not responsible for the subsequent
loss. If the consignees choose to speculate upon
the chance of obtaining a relaxation of the de-
cree, they must do it at the risk of the assured,
and not of the underwriters. And, with re-
spect to this question of fact, very considerable
doubt mav well be entertained. Aluch depends
upon the" credibility of the master, who cer-
tainly appears, in the case, to have exposed
himself to very considerable suspicion ; and I
very much regret that such a case is presented
to the court for decision : it more properly be-
longed to the determination of a jury. This
is enforced by the circumstance that there is a
provision for turning the case into a special
verdict, which certainly cannot be done, if my
understanding of the point on which the cause
will turn be correct. The jury must find that
fact ; and not merely state the evidence of the
fact. The conclusion is to be drawn by them,
and not by the court. But, as the parties have
seen fit to submit the case to the court, in its
present shape, it becomes necessary to weigh
the evidence, and draw such conclusion as, in
my judgment, it will warrant.
The testimony of the master, and the infer-
ence to be drawn from the letters of the con-
signees, would certainly seem to warrant very
opposite conclusions. The master states that
on the Mary's being moored off the City of
Antwerp, an armed force was put on board,
and continued there until after the landing of
the cargo; that the control of the ship was entire-
1 7 2*] ly *taken from him ; and that this armed
force was kept on board by the custom house
officers, in consequence of the Mary's having
been carried into England. He states nothing
of this, however, in his protest, and gives no
satisfactory explanation why he did not.. An
attentive examination of the testimony of
Ridgeway would seem to warrant the conclu-
sion, that the custom house officers would not
permit vessels that had touched in England to
depart without the special permission of the
Emperor ; he, as consignee in several cases, had
failed in obtaining such permission. There is
no evidence, however, that such permission
was asked, in this case, until sometime in the
year 1808. But none of the letters from the
consignees seem even to hint that there was
any compulsion in landing the cargo ; and it
is hardly conceivable, if that had been the case,
that the consignees would not have mentioned
so important a circumstance. The drift of all
their letters is to show that they were using
every exertion to obtain permission to land the
cargo. The Mary arrived on the 21st of July,
and the cargo was not landed until the 25th of
August. On the 23d of July the consignees
write : "We are going to send all her papers
to Paris, to obtain leave to land her cargo."
And on the 10th of August they again write,
that they have not yet obtained leave to land
the Mary's cargo ; not an intimation of any-
difficulty of sending away vessel and cargo, or
of asking leave for that p'urpose. On the llth
of September they inclose a printed note, an-
nouncing the determination of the French gov-
ernment to enforce the execution of the Berlin
decree, although the vessel might have been
forcibly carried into England ; and that a Port-
uguese vessel had already been sent away.
They then say : ' 'Not long after we wrote you
last, we had leave to land the Mary's cargo,
which was done in three days, without any
molestation ;" and they ero on to slate, that
"something is still to be determined in regard
to vessels whose cargoes have been landed by
permission of the Director-General of the Cus-
toms. In the letter of the 14th of April, 1808,
after speaking of seizures under the Milan de-
cree, they say: "There will bean exception
made in favor of those which, like yours, have,
previously to those decrees, been admitted
provisionally by the Minister of Finance."
And in this letter, for the first time, they speak
of having made application to be permitted to
re-export the cargo. From an examination of
these letters, it is difficult, if not impossible, to
resist the conclusion, that the cargo of the
*Mary was landed, at the earnest and [*1 73
pressing solicitatation of the consignees, who,
finding that they could not obtain an uncon-
ditional entry, procured the cargo to be ad-
mitted provisionally, as they term it ; to re-
main in custody of the custom house officers,
until the determination of the Emperor should
be known on the subject ; and this may ac-
count for there having been put on board a
military force, by the custom house officers,
for its safe keeping. The captain says it was
landed on condition that it should be deposited
in the stores of the custom house ; and was
landed in pursuance of orders from the con-
signees, who gave him a receipt for the same.
A clerk of the consignees and a custom house
officer both attended to take an account of the
cargo. All this shows, very evidently, that
the landing was under and pursuant to some
arrangement made by the consignees, and not
by any compulsion ; the consignees, probably,
'calculating upoa their exertions and influence
to obtain a relaxation of the decree ; and that
it would be better to procure a provisional
landing than to send back the cargo at that
time, thinking, probably, that this course
might be resorted to after every other attempt
should fail. For, in their speculations on the
result, with respect to cargoes in this situation,
JOHNS. REP., 13.
1816
PAIN v. PACKARD.
173
they, in their letter of the llth of September,
consider them in one of three predicaments ;
either to be admitted unconditionally, or un- 1
-der certain restrictions, or to be sent back, j
And thus we see the reason why no mention '
is made of an application to re export the car-
go until April, 1808 ; all attempts, probably to
effect anything better, had failed, and this was
resorted to as the lust alternative. If I were
sitting as a juror to weigh the evidence in this
•cause, and draw inferences from the facts stat-
•ed, I should be bound to say the weight of evi-
dence is in favor of the conclusion that the
cargo was landed voluntarily, under an ar-
rangement between the consignees and the of-
ficers of the French government, with a view
to some future negotiations with the Emperor;
and that, of course, the underwriters were not
responsible for the loss. But I think, as I sug-
Kc-tni upon the argument, that it is a cause
which belongs to a jury to decide, and ought
4o be sent back for that purpose.
SPENCER, J., was of the same opinion.
Judgment for the plaintiff.
174*] *PAIN
9.
PACKARD, Impleaded with MUNSON.
Principal and Surety — Exoneration of Surety by
f-'iiliireof Haider to Proceed against Princqxil
— Solvency of Principal.
It an obligee, or holder of a note, who la request-
«d by the surety to proceed without delay, and col-
lect the money of the principal, who is then
solvent, negleet-i to proceed against the prin-
cipal, who, afterwards, becomes insolvent, the sure-
ty will tx- exonerated.
In an action against A and H on their joint note,
payable to C, on demand, A pleaded that he signed
the note assurety for li, and requested C to proceed
immediately to collect the money of B, who was
tlii-n solvent; but C neglected to proceed against B
until he had become insolvent, and had absconded,
whereby tho money, as against B, was lost. On de-
murrer, this was held to be a good plea in bar of
the plaintiff's action against A.
Citations— 7 Johns., 336; 10 East, 34.
THIS was an action of autumpttit, on a prom-
issorv note made by Packard & Munson,
in which Packard alone was arrested, theotber
defendant being returned "not found." The de-
fendant Packard pleaded, 1. Non a»»ump*it. 2.
That he signed the note, which was for $100,
payable on demand, as surety for Munson ;
that he urged the plaintiff to proceed immedi-
ately in cwlecting the money due on the note
from Munson, who was then solvent ; and
that, if the plaintiff had then proceeded imme-
diately to take measures to collect the money
of Monaco, he miirht have obtained payment
from him ; but the plaintiff neglectea to pro-
NOT«.— Remedial of Surety— At to whether he mau
• compel cr&litor tn xue. principal. See King v. Bald-
win, 17 Johns.. 384, note ; S. C.,2 Johns., eh. 554
II. n i. k v. ltni>t,4 Hill, (ft); Dun. Neg. Inst., see
\:ci.>,witr. 1. See, also. Warner v. Ueardslev, H \V. -ml.
613: Trim Me v. Thorn. 18 Johns.. U2 : \\Vlls v. Mann
45 N. Y., 3S7; Blaek Klver Bank v. Page. 4 1 N. V.
4.M; Huffman v. Hulhert. i:t Wend.. 377 : Ludlnw v
Sun. nid, 2 Cai.. 1, ni it > ; and rla.wiftttl lint of citation*
to same case, 2 Cai., 05.
JOHNS. UEP., 18. N. Y. R., 5.
ceed against Munson, until he became insolv-
ent, absconded, and went away out of the
State, whereby the plaintiff was unable to col-
lect the money of Munson. 3. The third plea
was like the second, except that the defendant
alleged a promise, on the part of the plaintiff,
that he would immediately proceed to collect
the money of Munson, and a breach of that
promise, by which the defendant was deceived
and defrauded, and prevented from obtaining
the money from Munson, &c.
There was a demurrer to the second and
third pleas, and a joinder in demurrer, which
was submitted to the court without argument.
Per Curiam. The facts set forth in the plea
are admitted by the demurrer. The princi-
ples laid down in the case of The People v. Jan-
men, 1 Johns., 336. will warrant and support
this plea. We there say, a mere delay in call-
ing on the principal will not discharge the
surely. The same principle was fully and ex-
plicitly laid down by the court, in the case of
Tallmadge v. Brush. (Not reported.) But this
is not such a case. Here is a special request
by the surety, to proceed to collect the money
from the principal ; and an averment of the
loss of the money, as against the principal, in
consequence of such neglect. The averments
and facts stated in the plea are not repugnant
or contradictory to the terms of the note. The
suit here is by the payee against the makers.
The fact of Packard having been security only
is fairly to be presumed to have been known
*to the plaintiff. He was, in law and [*175
equity, therefore, bound to use due diligence
against the principal, in order to exonerate the
surety. This he has not done. There can be
no substantial objections against such a plea.
It may be said the surety might have paid the
note and prosecuted the principal ; but al-
though he might have done so, he was not
bound to do it. If he had a right to expedite
the plaintiff in proceeding against the princi-
pal, and chose to rest on that, he might do so.
In the case of the Trent Nan. Co. v. Hurley, 10
East, 34, the plea was similar to the present,
and not demurred to. The defendant must,
accordingly, have judgment on the demurrer.
Judgment for the defendant.
Approved— 17 Johns., 390 ; 25 N. Y.. 558 ; 67 N. Y..
90: 5 Hun, 103; 2 Col. T.,617, 618.
Limited— 45 N. Y.. 330.
Disapproved -8 Wend.. 198: 4 Hill, ftVS; 2 Johns.
Ch., 563 ; 2 McLean, 452. 457 ; 25 Hun, 45, 199 .'30 Mich.,
148.
Distinguished-15 Johns., 434 ; 3 Wend., 26. 218 ; ft
Wend.. B12: 10 Peters, 28B, 267.
Cited in-« Wend.. £» : 13 Wend.. 376 ; 14 Wend.,
171 : 21 Wend.. 504 ; 5 Denlo. 513 : 2 Ed w.. 5rt ; 3 N. Y.,
455 ; «4 N. Y., 484 ; 4 Lans., 197 : 12 Hun. 531 ; 56 How.
Pr., 443,447; 44 Super., 184; 3 Cranch. C.C.,147; S Mc-
Lean, 76.
NELSON «. DUBOIS.
Negotiable Paper— Note Signed in Blank— Stat-
ute of Fraud* — Indorsement by Stranger at
Titne Note given — Indoner Equally Retpon-
»ble itith ^
If a promissory note, payable to bearer, or not.
negotiable, is indorsed in blank, the holder may
NOTK.— ffegotialtle paper— Lial>Ultti of indoncr.
See Herrlck v. Carman, 12 Johns., 157, note.
87 577
175
SUPREME COURT, STATE OF NEW YORK.
write, over the name of the indorser, a guaranty,
or promise to pay the note, so as to take the promise
out of the Statute of Frauds : and this may be done
at any time before, or at the trial.
Where A sold a horse to B, at the request of C, and
on his promise to guaranty the payment of B's note
for the money, and B grave, a note payable to A, or
bearer, in twelve months, which C indorsed in blank:
this was held to be an original undertaking by C, as
surety, who was equally responsible as if he had
signed the note with B.
Citations— 8 Johns., 29 ; 11 Johns., 221 : 12 Johns.,
160 ; 3 Ma*s., 274 ; 4 T. R., 470 ; 5 Mass., 358 : 9 Mass.,
314 ; Doug., 514 ; 1 H. Bl., 313 : 5 Cranch, 151.
IN ERROR, to the Court of Common Pleas
of Orange County. Nelson brought his
action in the court below against Dubois. The
first count in the declaration was on a promis-
sory note made by the defendant and one
Benjamin Brundige, dated the 15th of Novem-
ber, 1811, whereby they, jointly and severally,
promised to pay to the plaintiff, or bearer, $65,
one year after date, for value received. The
second count stated, that whereas, in con-
sideration that Nelson, at the special instance
and request of Dubois, would sell and deliver
to one Benjamin Brundige, on credit, a certain
horse, which he had occasion for, Dubois un-
dertook, and promised to Nelson to be account-
able to him for the said horse ; and averred
that the plaintiff did, then and 'there, sell and
deliver to Brundige, the said horse, at a rea-
sonable price, then and there agreed upon, to
wit : the sum of $65. The third count was,
that whereas, on, &c. , at, &c., in consideration
that the plaintiff would sell and deliver to one
B. Brundige a certain other horse, which he
had occasion for, on a credit of one year, and
take his note payable at that time, he, the de-
fendant, undertook and promised to guaranty
to the plaintiff the payment of the said note ;
and the plaintiff averred that, confiding in the
17G*] promise, &c., of the *defendanl, he
did, &c. , sell and deliver to the said B. B. the
said horse, at and for a certain reasonable price,
agreed on between them, to wit : the sum of
$65, on a credit of one year, and took his note
therefor, payable at the expiration of that time;
and though, &c.
The note produced at the trial was signed by
B. Brundige, payable to the plaintiff, or bearer,
for $65, with interest, and indorsed in blank
by' the defendant. The plaintiff offered to
prove that B., the maker of the note, on the
day it was made, wanted to buy a horse of the
plaintiff, which the plaintiff refused to sell him,
unless the defendant would become his secur-
ity ; that the defendant, thereupon, agreed to
become security for B, and wrote the note
himself, and indorsed it, and delivered it to the
plaintiff ; and said that he considered himself
bound to pay the note, and guarantied the
payment of it to the plaintiff ; and the horse
was then delivered to B. It was agreed by the
counsel, that the guarantee of the defendant
should be considered as filled up, and written
up above the signature of the defendant on the
note. The plaintiff, also, offered to prove that
B was then a minor, and possessed of very little
property, and the credit was given to the de-
fendant ; and that, after the note became due,
it was presented to the defendant, who prom-
ised to pay it. This evidence was objected to
by the defendant's counsel, and rejected by the
court below, as within the Statute of Frauds;
on which the plaintiff became nonsuited, and
tendered a bill of exceptions to the opinion of
the court.
Mr. Boss, for the plaintiff in error, contended
that the evidence offered by the plaintiff ought
to have been received ; that the promise of the
defendant was an original undertaking, and
not within the Statute of Frauds. (Leonard v.
Vredenburgh, 8 Johns., 29; Bailey & Bngertv.
Freeman, 11 Johns., 221.) The indorsement
in blank, by the defendant, authorized the
plaintiff to write, over his name, a promise to
pay, or a guarantee. It is a letter of credit.
(Doug., 514, Herrifikv. Carman, 12 Johns., 160;
3 Mass., 274; 5 Mass., 358.) This may be
done at the trial ; and it made no difference
whether the note was negotiable or not. The
indorsement is equivalent to a new drawing.
Mr. Story, contra, insisted that though there
was a consideration, there must be a promise,
in writing, at the time ; that the promise or
guarantee must be written by the indorser, at
the time, to take it out of the Statute. It is
not competent for the plaintiff *to fill [*1 77
up the blank, at the trial, for that purpose.
Parol evidence is inadmissible to prove the
guarantee.
SPENCER, /., delivered the opinion of the
court :
Under the third count in the declaration, the
evidence offered was admissible, unless, in-
deed, the promise is within the Statute of
Frauds. A declaration may count, as on a
promise by parol, and it may be supported by
a promise in writing, if it comport with the
promise stated.
Since the cases of Leonard v. Vredenburgh,
8 Johns., 29, and Bailey & Bogert v. Freeman,
11 Johns., 221, it cannot be questioned that
there was a consideration for the defendant's
promise. The case, then, turns on this point:
Was the promise within the Statute of Frauds?
If what was said by me, in delivering the
opinion of the court in the case of Herrick v.
Carman, 12 Johns., 160, be law, then the de-
decision of the court below was erroneous.
Although what was then said was deemed per-
tinent to that case, it may not have been neces-
sary to the decision of the cause ; and this
court, therefore, are not to be considered as
compromitted by it. The facts, in that case,
are the same as in this, with the difference only,
that it did not appear that Herrick indorsed
the note for the purpose of giving Ryan, the
maker of the note, credit with Lawrence, Car-
man & Co. It was then, and still is, my
opinion that, had he done so, he would have
been liable to them or any subsequent indorsee,
and that Herrick's indorsement might have
been converted into a guarantee to pay the note,
if Ryan did not. In the present case it did ap-
p'ear, clear and affirmatively, that the plaintiff
refused to sell the horse, for which the note
was given on Brundige's responsibility, and
that the defendant put his name on the note as
guarantee for Brundige's payment of it, when
it fell due ; and that, but for the defendant's
undertaking, as guarantee, the plaintiff would
not have parted with his property.
In saying what I did, in Herrick and Carman,
I reposed myself, principally, on the cases of
Josselyn v. Ames, 3 Mass., 274, and Bixfwp v.
JOHNS. REP., 13.
1816
SHAW v. WHITE.
177
Huyicard, 4 T. R. , 470. In the former of these
cases, the plaintiff sued on a note of hand not
negotiable, given by John Ames, and payable
to defendant ; and it was averred that the
defendant had guarantied the payment of the
178*] *note to the plaintiff. The facts were
that John Ames was indebted to the plaintiff
upon a note, and, on demand of security, he
offered Oliver Ames as security ; the old note
was given up, and anew one taken, made pay-
able by John to Oliver, and upon which Oliver
indorsed his name in blank. The court held
that the plaintiff might write an undertaking
by Oliver, to pay the note, above his name,
and then might maintain his action.
In Bishop v. Hnyieard, Lord Kenyon admits
that, in a suit by a prior indorser against a
subsequent one, a case might happen in which
the plaintiff might recover, if his name were
used for form only, and the note, though nom-
inally payable to the plaintiff, was substantially
to be paid to the defendant.
The case of Hunt v. Adams, 5 Mass., 358.
bears strong analogy to this case. There, one
Chaplin gave a note to the plaintiff's intestate
for $1,500. The defendant signed, underneath
the note, an acknowledgment that he was
holden as surety for the payment of the note.
It was objected that it was a collateral under-
taking to pay the debt of another. Parsons,
Ch. «/., with the concurrence of the other
judges, held that the defendant was an origi
nal party to the contract, Chaplin, as princi-
pal, and the defendant as surety. He relied
on the fact, that the signatures of the promisers
were made at the same time, and that, in effect,
it was the note of both ; and that the consider-
ation to the surety was the credit given to the
principal by the promisee.
The case of White v. lloicland, 9 Mass., 814,
is expressly in point. In that case one Taber
gave a note to the plaintiff for $250, payable
on demand. On the back of it was a promise,
by Coggeshall and the defendant, jointly and
severally, to pay the note to White. It ap-
peared that the amount was loaned by the
plaintiff to Taber, on his Agreeing to give his
note with two indorsers ; and that the note
was given with that intent, but made payable
to White instead of Coggeshall, the first in-
dorser. The court held that the plaintiff was
entitled to recover, and that the effect of the
defendant's signature was the same as if he
had subscribed the note on the face of it, as
surety ; and that he was answerable as an
original promiser, equally with Taber. It is
evident that the promise was filled up over the
names of the indorsers. In RuaseU v. fstng-
ttH/e, Doug., 514, Lord Mansfield held that the
1 7J)*j indorsement *of a name on checks, in
blanks, without sum, date, or time of payment
being mentioned in the body of the notes, wa«
a letter of credit for an indefinite sum. In
Cottin* v. Emmett, 1 II. Bl., 818, Lord Lough-
borough held that signing a party's name to a
bliink paper, and delivering it to B to draw a
bill of exchange, for such sum, payable at such
time, and to such person as B should see fit,
was a binding instrument.
In the case of VuAett v. Patton, 5 Cranch,
151, circumstanced very much like the one
before us, ' '//. ./. Marshall, in delivering the
opinion of the court, which appears to have
JOHNS, ll}. r . 18.
been unanimous, said the paper was indorsed
with the intent that a promissory note should
be written on the other side, itiul that he should
be considered the indorser of that note ; and he
is now concluded from saying or proving that
it was not filled up when he indorsed it ; it
would be to protect himself from the effect of
his promise, by alleging a fraudulent combi-
nation between himself and another; and in
that case, the exception was taken, that the
Statute of Frauds and Perjuries avoided the
agreement, but the court held it did not.
I confess I do not perceive that this case is
at all within the Statute ; the defendant's
promise is not to pay on the default of Brun-
dige, but is an original undertaking as suretv ;
and the defendant is as much holden as if lie
had signed the body of the note.
VAN NKSS, J., dissented.
Judgment reversed, and cause remitted, dx.
Commented on— 31 Mich., 154.
Followed— 10 N. Y., 490.
Overruled -3 Hill, 335 ; 7 Hill, 421 ; 19 N. Y . 229 •
10 Barb., 404 ; 17 How. Pr., 888.
guestioni-d— 2 Hill, 84.
Distinguished— 21 X. V., 421; 11 Barb.. 585.
Cited in— 14 Johns., ail ; 17 Johns:, 329 : 8 Wend.,
151 : 10 Wend., 250 ; 17 Wend., 217 ; 22 \Vend.. £57 ; i
Hill, 93 : 5 Hill. 486 : 4 Denio, MS ; 6 Barb.. 2>»7 : 39
Barb., 018 : 16 How. Pr., 341 ; 37 How. Pr., 320 : 2 Abb.
Pr., 353 : 7 Abb. Pr., 401 ; 2 Abb. N. C., 80 ; 6 Abb. N.
S.,314: 2 Hall, 150; 1 Sweeny, 341; 4E. D. Smith, «57-
1 Peters, 502 ; 5 How. U. 8., 292 ; 54 Ind., 590.
SHAW, Widow, t>. WHITE.
Dower — html* Aliened during Coverture.
The widow is entitled to dower in lands aliened by
the husband during' the coverture, to one third of
the value of the lands at the time of alienation.
Citations— 2 Johns., 484; 11 Johns., 512; 1 N. R.
Li., 60.
DOWER for lands, in Granville, in Wash-
ington County. The husband of the de-
mandant, being seised in fee of about two
thousand acres of land in G, sold and conveyed
them, in fee, in 1765, to John Lake, under
whom the defendant acquired a regular title
in fee. The husband died within two years
after the deed to Lake, leaving the demandant
his widow. At the time *of the con- [**18O
veyance, the premises were new lands, and
unimproved, but have been since highly im-
proved and cultivated by the defendant.
The questions raised for the consideration
of the court, and submitted on the case, with-
out argument, were : 1. Whether, and what,
the demandant is entitled to recover. 2. How
the recovery is to be regulated in relation to
the improved value of the premises.
Per Curiam. The rule by which the recov-
ery, in this case, is to be regulated, will be
found laid down in the cases of Humphrey v.
PMnney, 2 Johns., 484, and Dorchetter v. Cov-
entry, 11 Johns., 512. The case is rather ob-
scure as to the precise question submitted to
the court. There can be no doubt the de-
mandant is entitled to recover ; and, under the
Slrttute relative to such cases (I N. R. L., 60),
that recovery must be one third of the prem-
ises, in value, as at the time of the conveyance
by the husband. The widow does not have
•It
180
SUPREME COURT, STATE OF NEW YORK.
1816
the benefit of the improvements, or of the in-
creased value or appreciation of the land.
The value, as is suggested by the court, in
Humphrey v. Phinney, must be ascertained,
either by the sheriff on the writ of seisin, or
by a writ of inquiry, founded on proper sug-
gestions. The demandant must, accordingly,
have judgment for one third of the premises,
in value, as they were at the time of the alien-
ation by her husband.
Judgment accordingly.
Disapproved— 3 Mason, 373.
CittHim— 10 Wend., 485 ; 4 Barb., 23 ; 53 Barb., 435 ;
36 How. Pr., 343 ; 4 Bradf ., 18.
JACKSON, ex dem. POTTER,
v.
LEONARD ET AL.
Ejjectment — Mortgage — Loss from Misconduct of
Agent.
L., having, by his agent, B-. agreed to purchase a
farm of F. for $2,000, advanced the money to B , for
the purpose of completing the purchase: and B.
paid to P. $1,000, and gave his bond to F. to pay off a
prior mortgage, for the like sum, to P., retaining
the $1,000 unknown to L. Held, that though P.
knew of B.'s retaining the $1,000, instead of pai ing
off the mortgage, and had agreed with B. that the
mortgage should be paid by land, for the purchase
of which he had entered into an agreement with B.,
which agreement, however, was not performed by
B. ; yet his title under the mortgage was not affect-
ed by the arrangement, there being no fraud on his
part; but that L. must bear the loss arising from
the misconduct of his own agent.
TVJECTMENT for lot No. 88, in Manlius.
JU tried before Mr. Justice Van Ness, at the
Onondaga Circuit, in June, 1815. A verdict
was taken for the plaintiff, subject to the
18 1*] opinion of the *court on a case con-
taining the following facts : Both -parties
claimed under Lebbeus Foster ; the plaintiff,
under a mortgage from Foster to the lessor of
the plaintiff, dated the 14th of March, 1806,
for securing the payment of $1,000 lent, in
which it was expressly agreed that, for the
use of that sum, Potter should have the use of
the premises for two years ; and if the money
was not paid at that time, Potter was to keep
possession until it was paid, and have the use
of the premises for the use of the money. To
the execution of this mortgage Charles B.
Bristol was a subscribing witness. The mort-
gage was not registered.
The defendant gave in evidence an absolute
deed, with warranty, from Foster to Leonard,
dated the 20th of January, 1808, and duly re-
corded on the day of its date.
Charles B. Bristol, who had been discharged
under the Insolvent Act, was sworn as a wit-
ness for the defendant. He testified that he
made the purchase of the premises of Foster,
in the name of Leonard, and for bis benefit,
for $2,000 ; that, previous to the purchase,
Leonard viewed the lot, while Potter was in
possession. The witness stated to Foster that
Leonard had sent, by him, the $2,000 for the
land, and he paid Foster $1,000, and gave a
bond conditioned to pay $1,000, due on the
mortgage to Potter, who was then in posses-
sion of the premises ; retaining the other
580
$1,000, which was unknown to Leonard. The
reason assigned for retaining the $1,000, by
the witness, was that he was in treaty with
Potter for the sale of three hundred acres of
land in Pompey, at $9 per acre ; being part of
six hundred acres which the witness had con-
tracted to purchase of James Sackett ; and
Potter proposed that the $1,000, due from
Foster, should be applied towards the first
payment for the land in Pompey, which was,
accordingly, agreed to be done. Potter re-
moved from the premises, and went into pos-
session of the land in Pompey ; and the witness
took possession of the premises for Leonard.
The agreement was not in writing, though in-
tended to be so. Potter was to discharge the
mortgage. The witness was unable to fulfill
his contract with Sackett, and gave it up, relin-
quishing what he had paid, about $350, at the
instance of Potter, who said he could make
another contract with Sackett ; and it was not
until after he had made a contract with Sack-
ett that Potter said anything about the mort-
gage money.
*Foster, also, was a witness for the [*182
defendant, and testified that he made the con-
tract for the sale of the laud to Leonard, with
Bristol, for $2,000, and executed the deed to
Leonard. That Bristol paid $1,000 in cash,
and gave his bond, conditioned to pay Potter
the amount of the mortgage, and to indemnify
the witness against it ; that it was in conse-
quence of the advice and request of Potter
that he took the bond. Potter told him that
he was about making a purchase from Bristol
of land in Pompey, and in that way he was to
be paid the $1,000, and the witness to be dis-
charged from it. That, not long since, he was
surprised by being told by Potter, that some-
thing had taken place between him and Bris-
tol, in consequence of which he should have
to come back to the witness for the $1,000.
Mr. Randall, for the plaintiff, contended :
1. That Bristol, the agent, having notice of the
mortgage to Potter, it must be deemed equiva-
lent as notice to Leonard, his principal. (4
Cruise's Dig., 353, 362; 9 Johns., 163; Sug-
den's Law of Vend., 498 ; 2 Ves., 440.) And
having such notice of the existence of the
prior mortgage, he is equally bound as if the
mortgage had been duly registered. (10
Johns., 457, 460 ; 4 Dallas, 145.)
2. That parol evidence of a discharge of the
mortgage was inadmissible. A fee cannot be
conveyed or transferred, unless by an instru-
ment under seal. (2 Johns., 430 ; 12 Johns.,
76.) There can be no implied surrender with-
out a consideration. (Burr., 1930 ; 1 W. Bl.,
617 ; Burr., 211.) And nothing appears to
have passed between the parties.
Mr. Van VecJiten, contra. That the agree-
ment was not reduced to writing was the fault
of Bristol and Potter. Their neglect to reduce
it to writing must be considered collusive and
fraudulent, as it respects Leonard. If the
agreement had been in writing, it will not be
pretended that the parties would not have been
bound ; and shall they be permitted to object
to their own fraudulent neglect ? Can this
agreement be void, as it regards third persons
who are to be affected by it ? Will not the
court consider that as done which ought to
have been done ?
JOHNS. REP., 13.
M'LEAN v. HUGARIN.
182
Again ; here was a part performance of the
contract, which takes it out of the Statute.
Potter went into possession of the land in
Pompey, under the agreement, which was so
far executed as to render the payment com-
plete. How can it be said that Potter received
no consideration ? Leonard furnished the
money to pay off the mortgage. Potter was
183*J to remain in possession in *lieu of re-
ceiving the interest, and when the mortgage
was paid off, he was to give up the possession.
He did deliver up the possession to Bristol for
the use of Leonard ; and the inference is irre-
sistible that the mortgage was paid. A mort-
gage may be discharged by parol. (2 Burr.,
§78, 979; 11 Johns., 538.) Suppose it had
been given up ; the possession by the mort-
gagor is, prima facie, evidence of the mortgage
having been paid. That a certificate of the
payment is necessary to cancel the registry, is
quite a different thing. As it respected the
rights of the parties, the mortgage was dis-
charged.
SPENCER, «/., delivered the opinion of the
court :
No objection has been made to the non-reg-
istry of the mortgage, and it would have been
unavailing ; for Bristol, the agent of Leonard,
in taking the deed and making the purchase,
had full notice of the mortgage ; and this was
full notice to Leonard.
The legal title is manifestly in the lessor of
the plaintiffs ; and it must prevail, unless he
has done some act which precludes him from
resting on his mortgage. It has been urged
that Potter's agreement with Bristol, that the
$1,000 advanced by Leonard to Bristol, for
the purpose of discharging the mortgage,
should be retained by Bristol, and that the
amount due on the mortgage should be paid
by Bristol, by the contemplated conveyance
by Bristol to Potter of land contracted for
with Sackett, was such an interference on the
part of Potter, and operated so injuriously and
fraudulently towards Leonard, that Potter
cannot now insist on his mortgage.
It cannot be doubted that, in consequence
of Bristol's appropriating to his own use the
$1,000 placed in his hands by Leonard, to pay
off the mortgage, the latter has been defraud-
ed of that amount ; but the question still re-
turns, who has been the culpable cause of the
loss ? I cannot perceive that Potter is charge-
able with any direct or constructive fraud.
He knew, indeed, that Leonard had sent to
Bristol $2,000 ; half of which was to be paid
to Foster for his right to the equity of redemp-
tion, and the other half in discharge of the
mortgage. The agreement between Potter and
Bristol may have operated to prevent the lat-
ter from paying off the mortgage ; but it does
not appear that Potter expressly agreed that
Bristol should retain the $1,000 intended to be
applied to the payment of the mortgage; nor
does it appear that Potter knew that this re-
tainer was concealed from Leonard.
1 84*] *The fact is, that the injury to Leo-
nard is entirely attributable to the conduct of
his own agent, Bristol ; and it would l»e unjust
that this loss should be sustained by Potter,
whose conduct appears to have been fair, can-
did, and upright.
JOHNS. REP., 18.
If it could be made out that Potter derived
some benefit from Bristol's renouncing his
contract with Sackett, it does not occur to me
that the defendants can avail themselves of
that to invalidate Potter's mortgage. Nothing
can produce that effect but a direct and pos-
itive fraud on the part of Potter, or an actual
payment of the mortgage. Of the latter there
is no pretense, and f see no evidence to war-
rant us in saying that Potter has been guilty
of such a fraud as to be estopped from setting
up his mortgage.
It is very questionable whether Potter de-
rived any l>enetit from the contract between
Sackett and Bristol. Sackett testifies that he
made no agreement with Potter, nor made him
any offer of the land, before Bristol relin-
quished his contract.
There is nothing that can affect Potter's,
right under his mortgage.
Judgment for the plaintiff.
M'LEAN t. HUGARIN.
Justice Court — Improper Set-off — Bar — Parol
Evidence — Return to Certiorari.
Where an improper set-off has been admitted in a
cause in a justice's court, and tried, the record, in
such former action, is a bar to an action brought on
the subject of such set-off.
Parol evidence is inadmissible to contradict the
certificate of a justice as to the proceedings in a
cause before him.
Where the return to a cerllitrari stated the certifi-
cate of a justice of a former trial, authenticated ac-
cording to the Act, but not appearing to be under
the seal of the C. P., otherwise than that the < lerk
had stated, "Witness tny hand and seal," it was held
that it was to be inferred that it was under seal.
Citations-1 R. L., 398, sec. 21 ; 5 Johns., 351 ; 11
Johns., 166.
IN ERROR, on certiorari to a justice's court.
The defendant in error.'who was plaintiff
in the court below, brought an action of trover,
to recover the value of a spinning-wheel. The
defendant pleaded the general issue, and a
former action for the same cause, in which
the present plaintiff, being defendant, set off
the present demand, which was tried in that
action.
The certificate of the justice, of the proceed-
ings on the former trial (authenticated accord-
ing to the Act, except that it does not appear
that the clerk affixed the seal of the C. P., but
it is only stated, " Witness my hand and seal")
being produced, the plaintiff below offered
testimony to show that the demand for the
spinning-wheel was withdrawn, and not sub-
mitted to the *justice.; this evidence [*185
being admitted, and the fact being proved, the
justice gave judgment for the plaintiff below.
Per Curiam. The certificate of the former
trial between these parties was sufficiently au-
thenticated. It is necessarily to be inferred
that it was, in fact, as it purports to have been,
under seal, as required by the statute ; at all
events, no objection was made to its admission
upon the trial ; and it cannot, now. be called
in question. Although the demand, in this
case, sounds in tort, and might not. in strict-
ness, have been admissible as a set-off on the
o81
185
SUPKEME COURT, STATE OF NEW YORK.
1816
former trial, yet if it were admitted without
objection, and has been once tried, that judg-
ment is conclusive with respect to this matter;
and the only question is. whether testimony
was admissible to contradict the justice's cer-
tificate of the former trial. This, certificate
clearly shows that this same matter has once
been tried.
The Act authorizing the giving of such cer-
tificate (1 R. L., 398, sec. 21), declares that it
shall be good and legal evidence to prove the
facts contained in such exemplifications. In
the case of White & Hall v. Hawn, 5 Johns. ,
851, this court decided that parol evidence of
a former trial was inadmissible. In Posson v.
Brown, 11 Johns., 166, the same principle was
recognized; and it was there said that, although
the proceedings and judgment before a justice
may not be technically a record, yet the ma-
terial parts are in writing, and ought to be pro-
duced ; that parol evidence was not the high-
est and best evidence : that the statute direct-
ing the manner in which such proceedings are
to be authenticated, seems to regard them in
the nature of a record. If, then, as has been
settled by this court, parol evidence is inad-
missible to prove the proceedings of a former
trial, it must follow, as a necessary conse-
quence, that such evidence is not admissible to
contradict the written evidence of such pro-
ceedings. The judgment must, therefore, be
reversed.
Judgment reversed.
Improper set-off once attoived and tried, bar to ac-
tion thereon. Cited in— 3 Wend.. 157 ; 16 Wend., 584 ;
6 Barb., 33 : 13 Barb., 161 ; 10 Bos.. 147.
Parol evidence inadmissible to contradict justice's
certificate. Cited in— 7 Wend., 105; 3 N. Y., 175; 6
Barb., 610, 627 ; 20 Barb., 268.
186*] * JOHNSON v. HUNT.
Military Duty — Mail Contractor not Exempt
from — Action against President of Court-
Martial.
A contractor for carrying the mail is not exempt
from militia duty_. The exemption extends only to
persons engaged in the actual conveyance of it.
In an action against the president of a court mar-
tial, to recover back a fine, the objection cannot be
made that the person who warned the plaintiff to
appear on parade, and before the court-martial,
was not duly appointed a sergeant, even if the ob-
jection could be taken before the court-martial.
Citation— Sess. 32, ch. 145, sec. 2.
IN ERROR, on a certiorari to a justice's
court.
Hunt, the plaintiff in the court below,
brought an action against the defendant below,
the present plaintiff in error, as president of a
court-martial, to recover back a fine of $5,
which had been imposed upon and collected
of the plaintiff below, as a delinquent. The
plaintiff, when he appeared before the court-
martial, claimed an exemption, as being a con-
tractor to carry the military express mail from
Canandaigua to Batavia, but he was not em-
ployed in the actual transportation. The per-
son who warned the plaintiff to attend parade,
and appear before the court-martial, had never
received any warrant, or power, from the com-
mandant of the regiment, to act as sergeant.
582
This objection was not made before the court-
martial, the plaintiff being ignorant of the fact.
The justice gave judgment for the plaintiff be-
low.
Per Curiam. The plaintiff below being a
contractor for carrying the mail, did not ex-
empt him from military duty. The exempt-
ion in the Act (sess. 32, ch. 145, sec. 2) of all
stage drivers who are employed in the care
and conveyance of the mail, &c., evidently
extends to the actual carriers of the mail only.
The objection that the sergeant who warned
the plaintiff below to appear on the parade,
and before the court-martial, was not regular-
ly and duly appointed, cannot be made here.
If it could have been made at all, it should
have been made before the court-martial. The
plaintiff having appeared before the court-mar-
tial, must be deemed to have waived any ir-
regularity in the summons. The sergeant was
an officer, de facto, and, so far as strangers are
concerned, his acts must be deemed valid.
Judgment reversed.
*BATTE Y v. BUTTON. [* 1 8 7
Arbitration — Mutual Promissory Notes as Se-
curity for Sum Awarded, are Valid — Notes
Transferred before Due — Dissent by one of
Three Arbitrators — Award Valid.
Where, on a submission to arbitration, the parties
mutually execute promissory notes to one another,
as security for the payment of the sum which may
be awarded, and the arbitrators, having awarded in
favor of A, the one party, delivers to him the note
of B, the other party and A indorses the note
to C, to whom B is compelled to pay the amount,
and B seeks to recover back from A the sum so
paid to his indorsee, on the ground that the award
was void ; B cannot recover against A: if he could
have insisted on the invalidity of the note, as a de-
fense to an action by C, or if such defense were
then inadmissible, he must show that he could not
have availed himself of it, by averring that the note
was transferred before it fell due.
Where, on a submission to three arbitrators!, one
dissents from the award of the other two, who ex-
ecutes the award without the dissenting arbitrator,
such award is valid.
THIS was an action of assumpsit. The first
count of the declaration stated that one
Henry Osborn had been sued, and arrested by
virtue of a warrant issued by one Henry De-
lord, a justice of the peace of the County of
Clinton, at the suit of the defendant ; in which
suit the defendant claimed the sum of $8;
whereupon the plaintiff, as the agent of Os-
born, and the defendant, agreed to submit the
matter in controversy to the decision of Henry
Delord and Henry Grun ; and, in case they
could not agree, after due examination and
consultation in the premises, that then they
should choose a third person to arbitrate in
conjunction with them, in the premises; where-
upon they chose William Stewart, and the
parties, Battey and Button, mutually executed,
each to the other a note dated at Peru the 6th
of February, 1808, for the sum of $250, pay-
able to each other or order, with interest, two
months after date ; and it was agreed that, in*
case the arbitrators should make an award
against either party, the note executed by such
party should be indorsed by the arbitrators, so
as to leave due thereon the sum which they
JOHNS. REP., 13.
1816
GALE v.
should award such party to pay the other ; and
the note executed by the party in whose favor
the award should be made be delivered up and
canceled ; that the arbitrators having met and
heard the proofs, two of them, Grun and
Stewart, awarded against the said Henry Os-
born the sum of $382.75; and thereupon in-
dorsed upon the note executed by Battey the
sum of $17.25 ; that -Delord, the third arbitra-
tor, dissented from the award ; and that the
defendant, afterwards, indorsed the said note
to Ross & Platt, to whom the plaintiff was
compelled to pay the said $232.75, with inter-
est.
To this was added a count for money lent,
money paid, and money had and received.
The defendant demurred, specially, to the
first count in the plaintiff's declaration, and
the plaintiff joined in demurrer.
Mr. G'rary, in support of the demurrer.
188*] *Mr. Z. R. Shepherd, contra.
Per Guriam. This case conies before the
•court on a special demurrer to the first count
in the declaration. It is unnecessary, however,
to notice the special causes of demurrer, for
the count is bad in substance. If the arbitra-
tion note, which the plaintiff had paid to the
defendant, was void, payment of it should
have been resisted, if the defense was admissi-
ble, and if not, the declaration, in this case,
should show why it was not. It was, there-
fore, a material averment, that the note was
transferred before it fell due, so as to show
that tin- dcfi-nse could not have been set up
against the note in the hands of an innocent
indorsee, to whom it was transferred before it
fell due.
But the objection taken to the validity of
the note is not well founded ; to wit: that the
award between Button and Osborn was void,
because not signed by all the arbitrators. This
was not necessary. The submission was to
two, and in case they could not agree, they
were to choose a third person to arbitrate, in
conjunction with them, upon the premises.
The declaration alleges that such third person
was chosen. This mode of submission neces-
sarily implies an authority to two, to make an
award. To require the award to be signed by
all. would involve a manifest absurdity. The
two were authorized to choose a third only in
case of their disagreement; and yet, after they
had disagreed, and chosen a third, all must
agree, according to the argument on the part
or the plaintiff. The first count in the decla-
ration is, therefore, bad on this ground, which
strikes at the root of the plaintiff's cause of
action.
The defendant must, accordingly, have judg-
ment upon the demurrer.
Cltod in-43 Barb.. 318 ; 4 DUCT. 328 ; CO Mo.. 31.
18»*J
*GALE AND STANLEY
O'BRIAN.
Pleading and Prattiee — Declaration — General
Demurrer — Special Demurrer.
A declaration on n bond, conditioned for the per-
formance of covenant*, commencing in debt, after
JOHNS. l!i i- . 13.
187
setting forth the condition, and assigning breaches
and concluding as in covenant, and with demand-
ing damages, is, it seems, good on special de-
mum -r.
But it is certainly good on a general demurrer.
See 12 Johns., 21«, S. C.
Citation— 12 Johns.. 210 ; 1 Saund., 58.
THIS was an action on a bond in tin- penalty
of $1,000, conditioned for the performance
of a covenant therein contained. The decla-
ration commenced by demanding $1,000,
which the defendant owed to, and unjustly
detained from, the plaintiff ; it then set forth
the penalty of the bond, with the condition,
in which the defendant's covenant was con-
tained; and having assigned breaches of the
covenant, concluded thus: "Therefore, the
said Thomas O'Brian his covenant with the
said James Gale and Ashbel Stanley hath not
kept, although often requested so to do, but
has broken the same ; wherefore the said
James Gale and Ashbel Stanley say, they are
injured, and sustained damages to the value
of $1,000, and thereof they bring suit."
To this declaration there was a general de-
murrer and joinder in demurrer. The cause
was submitted to the court without argument,
at a former Term, May, 1815 (12 Johns., 216),
and judgment was given for the plaintiff.
By consent of parties, the cau-c wa^ again
brought before the court, and argued by Mr.
Cantine, in support of the demurrer, and Mr.
Powers for the plaintiff.
Mr. Cantine contended that the judgment
ought to be in debt, but no judgment in debt
could be given on this declaration; it must be
in covenant, and this is a good ground for a
general demurrer. The attorney of the plaint-
iff, in drawing the declaration, appears to have
followed the precedent in 2 Chitty on PL, 154,
except the conclusion, which, in that prece-
dent, is in debt instead of covenant.
This is a misjoinder, which renders the dec-
laration bad in substance. (1 Chitty on PL,
206; 2 Bos. &P., 224.)
Mr. Powers, contra. The court (12 Johns.,
216) have already decided the very point. The
objection is matter of form, and can only be
taken advantage of, if at all, by u special de-
murrer. By the 7th section of the Act for the
Amendment of *the Law (1 N. R. L.. [*1»O
120) the court, in cases of demurrer, are re-
quired to give judgment according to the right
of the matter, without regard to form, unless
the particular defect be shown, specially, as
the cause of demurrer.
Sergeant Williams.in his note (5) to 2 Saund
ers, 190, says, expressly, that a wrong conclu-
sion to a declaration is not matter of substance,
but mere form, and must be specially shown
for cause of demurrer. The declaration i.-> in
the form recommended by Williams, in his
note (1) to 1 Saund., 58; it sets forth the bond
and the condition, and then assigns the
breaches, concluding in covenant. (Hob.,
233,6 Johns., 67.) If the conclusion be wrong,
it is like a title defectively set forth, which is
only a fault in form. (1 fidd. Pr., 647.)
Mr. Cantine, in reply. Sergeant Williams,
in his note to 2 Saund., 187 c. corrects his mis-
take in the note referred to in 1 Saund., 58, in
saying that the declaration might conclude as
in covenant; and the court, in giving judg-
190
SUPREME COURT, STATE OP NEW YORK.
1816;
raent on the demurrer, in this cause, in 12
Johns. , 216, did not advert to this correction,
but relied on the authority of Williams, in his
first note.
Per Curiam. This case has now been ar-
gued, and we find no reasons to induce a
change of opinion from that formerly given,
when the case was submitted without argu-
ment. (12 Johns., 216.) The court did not
then advert to the second note to 2 Saund. ,
187; in that note Mr. Williams corrects what
he had said in his note to 1 Saund., 58, and he
seems to think that the conclusion of the dec-
laration in covenant, after an assignment of
breaches, is incorrect. We agree that it is not
a neat technical conclusion ; but it does not
follow that it furnishes a cause of demurrer.
Nothing short of a special demurrer can reach
the supposed imperfection in the conclusion of
the declaration; for, certainly, it is not matter
of substance; and, we think, even a special
demurrer would not avail.
The declaration is in debt. It demands the
penalty of the bond in the debet etdetinet, and it
sets out the bond truly, and after setting forth
the condition, it avers a breach of the cove-
nants. Legally and technically speaking, the
stipulations in the condition are covenants, on
which an action of covenant might have
been brought; but calling those stipulations
covenants did not render the action an action
19 1*] of covenant; it° *quality had been fixed
before, by demanding the penalty as a debt, in
the usual way.
Judgment for tJie plaintiff ,
8. C., 12 Johns., 216.
PIERCE «. SHELDON.
Practice in Justice Court — Plaintiff Son-in-law
of Justice — Action Against Constable.
Whether it is a valid objection to a justice of the
peace trying a cause, that one of the parties is his
son-in-law. Qucere.
An action against a constable, for not serving: or
returning an execution in a justice's court, must be
debt ; if the action be brought in any other form,
the judgment will be reversed.
Citation— 1 R. L., 395.
IN ERROR, on certiorari to a justice's
court.
This was an action of trespass on the case,
brought by Sheldon, the plaintiff below,
against Pierce, a constable, for the amount of
an execution delivered to him to be served,
and which he had neglected to serve, or return,
within the time limited. The defendant be-
low insisted that the proper form of action
was debt, and that the justice had no right to
try the cause, because he was the father-in-law
of the plaintiff. Both these objections were
overruled, and judgment was^ given for the
plaintiff below.
Per Curiam. Whether the justice was le-
gally disqualified, on the ground that the
plaintiff below was his son-in-law, is, perhaps,
questionable; but the gross indecency of an
exercise of his judicial power, in such a case,
should induce this court to scrutinize his pro-
ceedings with a jealous eye. •
584
This suit was brousjht under the 13th sec-
tion of the Twenty-five Dollar Act (1 R. L.,
395), which provides a remedy, expressly, "by
action of debt." The objection to the form of
action was, therefore, well taken, and the
judgment ought to be reversed.
Judgment reversed.
Justice of Peace— Objection to on ground of rela-
tionship. Cited in— 17 Johns., 138; 77 N. Y.,'112; 28-
Barb., 504: 51 How. Pr., 452.
Action against officer for failing to serve or return-
process. Overruled— 7 Wend., 227.
Cited in— 9 Wend., 236 ; 10 Wend., 372.
*PAWLING AND EUNICE, HIS [*192'
WIFE, late EUNICE STANTON,
v.
WILLSON AND SMITH, Executors of BIRD.
Practice — Debt — Judgment of Court of another
State — Only Prirna Facie Ecidence of Debt
— Attachment — Divorce — Decree in another
State — Maintenance of Children — Contribu-
tion.
A judgment of a court in another state is to be
considered as a foreign judgment, in every respect,.
except in the mode of proving it, and is only
prima facie evidence of a debt.
And such judgment, when founded on proceed-
ings by attachment against the goods of the de-
fendant, he not being within the jurisdiction of
such state, is not even prima facie evidence of a
debt.
A divorce of persons domiciled in this State, de-
creed in another state, is invalid here.
But if the parties, although domiciled here, were
married in the State in which the divorce was de-
creed, whether it might not, under those circum-
stances, be valid. Qucere.
But, admitting such decree to be valid, if it made
no provision with regard to the children of the mar-
riage, and there was no agreement between the par-
ties as to their maintenance, the mother cannot-
(the guardianship of the children haying been de-
creed to her), it seems, support an action against the
father for their maintenance ; she can, at most, sue
him for contribution only.
Citations— 1 Cai., 460 ; 1 Johns., 432, 424 ; 8 Johns.,
173, Kirby, 119 ; 1 Ball., 261 ; 5 Johns., 37 ; 9 Mass,,
462; 3 Wils., 297; 9 East, 192 ; 2 Dall., 73; 1 Johns-
('as., 372: ILd. Raym.,56: 1 Dow., 117; Harg. Co.
Lit*., 79 t>, n. 44 ; 2 H. Bl., 410; 3 Mass., 158.
was an action of debt, on a judgment.
JL recovered in the Superior Court of the
State of Connecticut, by Eunice Stanton, be-
fore her marriage with the plaintiff, Pawling,.
against the defendants, executors of John
Bird, deceased. The defendants pleaded non
NOTE— Constitutional law. 1. Foreign judgments.
2. Divorces obtained in other States— How far conclu-
sive.
1. Under the Constitution and Act of Cono-reas,..
judgments of state courts have in other states the
same faith and credit as in the state whore rendered.
See Hitckcock v. Aicken, 1 Cai., 460. note; Vanden-
heuvel v. United Ins. Co., 2 Johns. Cas., 451, note.
Where from the record it appears that the court
did not acquire jurisdiction or the subject matter
or the person of the defendant, or if this can be
shown without contradicting the recitals in the rec-
ord, the judgment will be treated as void. See notes
above cited; also, Fiiiton v. Garlick, 8 Johns., 37;
Holbrook v. Murray, 5 Wend., 161; Bradshaw v.
Heath, 13 Wend., 407 : Hoffman v. H< >ff man, 46 N. Y.,
30: S. C., 7 Am. Rep., 299; Kerry. Ken-. 41 N. Y.,
272; Andrews V.Montgomery, 19 Johns., 162; Ad-
ams v. Adams. 51 N. H.. 388 ; S. C., 12 Am. Rep., 134 ;.
McLanrine v. Monroe, 30 Mo., 462 ; McCauley v.
Hurgroves. 48 Ga., 50: S. C., 15 Am. Rep., 660:
People v. Dawell, 25 Mich., 247 ; S. C., 12 Am. Rep..
260; Hood v. State, 56 Ind., 263; S. C., 26 Am. Rep..
JOHNS. REP., 13.
1816
PAWLING v. WILLSON.
detinet. accompanied with notice that they in-
tended ty insist upon the Statute of Limitations,
in bar of the plaintiff's action. The cause was
tried at the Albany Circuit, in April. 1815. be-
fore Mr. Justice Platt.
On the trial, the plaintiffs produced, in evi-
dence, a record of a judgment in Connecticut,
duly authenticated, and commencing with the
writ, in which was included the declaration,
as follows: "To the sheriff of the County of
Litchfield. &c. &c. &c. By authority of the
State of Connecticut, vou are hereby com-
manded to summon Ebenezer Willson and
Benjamin Smith, both absent and absconding
debtors, out of this State, to parts unknown
to the plaintiff, executors of the last will and
testament of John Bird, Esq., late of Trov. in
the County of Rennsselaer. and State of New
York, deceased, to appear before the Court of
Common Pleas, to be holden at Litchfield,
within and for the County of Litchfield. afore-
said, on the fourth Tuesday of September, A.
D. 1807; then and there to answer unto Eunice
Stanton, of Colchester, in the County of chit
tenden, and the State of Vermont, in a plea,
that to the plaintiff, the defendants, in said ca-
pacity, render the sum of $900. which, to the
plaintiff, the said John, deceased, while in life,
justly owed, by book, to balance book ac-
counts, as by the plaintiff's book, ready in
court to be produced, fully appears: which
debt the defendants have never paid, though
often requested and demanded, which is to the
damage of the plaintiff the sum of $1,000, and
for the recovery thereof, with just costs, the
plaintiff brings this suit.
Hereof fail not, and of this writ, and of
your doings thereon, make due return accord-
ing to law. And you are, at least fourteen
days before the sitting of said court, to leave
a true and attested copy of this writ with Uriel
193*] Holmes, Esq., of *said Hartland, and a
like copy with Uriel Holmes, Jr., Esq.. of said
Litchfield, who are debtors to the defendants,
in their said capacity; and also, a like copy
with Seth P. Beers, Esq., of said Litchfield,
who is both debtor and attorney to the defend-
ants, in their said capacity.
Dated at Litchfield, the 2d day of April,
A. D. 1807."
Seth P. Beers appeared for the defendants,
and pleaded; and judgment having been given
in the Court of Common Pleas of Litchfield
County for the defendants, on a demurrer to
the plaintiff's declaration ; and the cause being
' removed, by appeal, into the Supreme Court
for the County of Litchfield, an issue of fact
' being joined, a verdict was found for the
; plaintiff . and judgment was thereupon ren-
dered, that " the plaintiff shall recover, of the
| goods and estate of the said John Bird, de-
; cea-sed, in the hands of his executors, the said
I sum of $617.21, damages, and her cost* of
' suit, taxed at $35.65. and that the execution
j may Issue accordingly."
The plaintiffs proved that after the recovery
' of the above judgment, and before the cora-
i menccment of the present suit, Eunice Stan-
! ton intermarried with the plaintiff Pawling.
| The plaintiffs further proved that about two
years previous to the trial Smith, one of the
defendants, conversed with the witness, R. M.
Livingston, respecting the judgments recover-
ed by Mrs. Pawling in Connecticut, and stated
that, since the marriage of the plaintiffs, Paw-
ling had called on him (Smith) for payment,
and that he was willing to pay, but was ap-
prehensive that it would not protect him in
case there should be a failure of assets ; that it
had been proposed to arbitrate, but he bad,
for the same reason, declined it ; an amicable
suit was proposed, as the witness understood.
The witness further testified that Smith ap-
peared anxious to make payment, but for the
reason assigned ; and that it was not pretend-
ed that any payment had been made on either
of the said judgments. Here the plaintiffs
rested their cause, and the judge ruled that the
evidence was sufficient to take the case out of
the Statute of Limitations.
The defendants produced in evidence an-
other exemplification of the record, in the suit
in Connecticut, between them and Eunice
Stanton, containing, not only all that was
comprised in the copy which was given in
evidence by the plaintiffs, but also a variety
of additional matter, among which was the
execution *issued on the judgment, to [*1 J)4
levy the amount thereof on the money, goods,
chattels, or lands of John Bird deceased, in the
hands of his executors, the defendants. To
this execution the sheriff returned that he*
had made demand of Uriel Holmes for money
or goods, in his hands, belonging to the de-
fendants, executors of John Bird, to satisfy the
execution and his fees, but that he refused
showing anv. And a return was made of a
like demand on, and refused by Uriel Holmes.
Jr., and Seth P. Beers. The record likewise
comprised a statement of the evidence, being,
31 : Ky. Co. v. Trimble. 10 Wall.. 367 : Board of Pub-
lic Works v. Columbia College, 17 Wall., 521.
As tn whrther the recitnlJt in the record may he
contratllcteA tit xhow irviiif of JurimUclinn, there Is a
conflict of authority. See note to Hitchcock v.
Aicken, 1 Cal., 4410. for authorities on both sides.
That such recitals may be contradicted, see, also,
Shu-buck v. Murray, 5 Wend.. 148; 8. C.. 21 Am.
I).... i;j; II,,.,. i v. State, 56 Ind..2«3; S. C.. 28 Am.
Hep., 21 ; McKay v. Gordon, 34 i\. J.. 288.
A i',n njn jinli/inint in ()/«•« fo «ui// <lrff>i*C which
cmilitlx. miulf t'> it where rendered. Christmxs v.
Russell, 5 Wall., 200; Cheever v. Wilson, 9 Wall..
108; Hampton v. McConnel, 3 Wheat., 234; Mills v.
Duryea, 7 ('ranch, 481: Dank v. Dulton, 9 How..
&ii: Wernwag v. Pawling. 5 GUI. & J.. 500: 8. C..
26 Am. Dec., 317: Fletcher v. Kerrel, 9 Dana. 372;
8. C.. 35 Am. Dec., 143; Dodge v. Coffin. 15 Kuns..
3B7.
2. Dintrce obtained in itthe r states.
liona Me reni(tencet>f either h'jjtlHimtitr wife within
anyitUitc irlvea such state* the right to determine the
JOHNS. REP., 13.
status of such person and to pass on any question
which may be raised as to 1:1- continuance in the
marriage relation. But if the party g(x>s to a state
<>thrr than his domleil for the purpose of procur-
ing a divorce, his residence there is not Ixma fate*
and confers no jurisdiction on the courts of such
Mat,', and any divorce thus obtained is fraudulent
and void as to the other party. Jackson v. Jackson,
1 Johns.. 424: McGiffert v. .NicGittVrt, 31 Barb. 89:
Hoffman v. Hoffman, 4ti N. V., 30 ; 7 Am- Rep., 299 ;
Horsey v. Dorsey, 7 Watts, 349: Hanover v. Turner,
14 MHSS.,227 ; Chase v. Chase. 8 Gray, 157 : Greenlaw
nlaw, 12 N. H.,200; Lelth v. Leith. 39 N.H..
20 ; People v. Dalwell. 25 Mich., 247 ; Elder v. Ke«-l,
82 Pa., St.. 308; 1 Am. Rep., 414; State v. Arin>trc.ng,
» Min., 2J»: Hood v. State. 58 Ind.. 2»B: 31 Am. Kep..
-M: Sewitll v. Sewall. 122 Mass.. I5tt; 23 Am. Rep.,
2»»: Litowich v. Litowich. 19 Kans.. 4.r>l ; 27 Am.
Kep.. 145. Cooley Con. Llm., 5th ed.. 49tt-.ri01 ; Story
Conf. Law. p. 313. See. also. People v. Hakcr, 78 N.
V.. 7«: :ti Am. Kep.. 274; Cox v. Cox. 19 Ohio St^.
502; 2 Am., Rep., 415.
194
SUPREME COURT, STATE OF NEW YORK.
1816
apparently, a bill of exceptions taken at the
trial of the cause. The bill of exceptions set
forth, in the first place, an account, to recover
the amount of which the action was brought,
in which the executors of John Bird were
charged with various suras of money for the
nursing, boarding, clothing, &c., of William
and Maria, two infant children of the said
John Bird, the total amount of which was
$617.21. It stated, in the next place, that it
was agreed, on the trial, that the said Eunice
was married to Bird on or about the 4th of
October, 1789, and continued to be his lawful
wife until on or about the last day of May,
1797. The bill of exceptions further set forth
a decree of the General Assembly of the State
of Connecticut, passed at a general assembly,
held on the 3d Thursday of May, 1797. This
decree recited the petition of the plaintiff
Eunice, in which a divorce was prayed for, on
the ground of the ill treatment of her by her
husband, John Bird ; it then recited as follows:
. " That the said John hath been served with a
•copy of the said petition, according to the cus-
tom and usage of the said Assembly, and the
petitioner, and the respondent, having several-
ly appeared, by their counsel, learned in the
law, and having been, with their proofs, fully
heard by this Assembly, on the merits of the
said petition, this Assembly do find the facts
stated in said petition to be true ; and it
being proved to this Assembly that the said
Eunice, since the date of the said petition,
hath been delivered of a son and daughter,
which are now remaining with said Eunice ;
and it also being made to appear to this Assem-
bly that the son of the said Eunice and John,
in said petition mentioned" (born previously
to the commencement of these proceedings),
"hath been, since the date of said petition,
forcibly wrested by the said John from the
said Eunice, and carried to parts unknown
to the said Eunice." Then followed the decree,
in these words : " Therefore, it is resolved,
19o*] by this Assembly, that the *said Eunice
be, and she is hereby divorced from the said
*John. And it is further resolved, by this
Assembly, that the said Eunice be, and she
is hereby constituted sole guardian of said
son and said daughter, which have been, as
aforesaid, born since the date of said petition,
until they shall, respectively, attain the age
of twenty-one years. And it is further re-
solved by this Assembly that the said John
Bird shall, within six months from the 1st day
of June, in the year of our Lord one thousand
seven hundred and ninety-seven, pay to the
said Eunice $3,000, as her part and portion of
the estate of the said John, in lieu of all claims
of dower." The bill of exceptions further
stated that it was agreed that Eunice accepted
of the guardianship of the infants mentioned
in the account, who were the same children as
were mentioned in the decree, and are the
children of John Bird and Eunice ; that the
whole of the account accrued for supporting
said children, which, it was agreed, was fur-
nished, and without any request from John
Bird, who never made an express promise to
pay the same while they lived with the plaint-
iff. The bill of exceptions further stated a
release, executed by the plaintiff to John Bird,
which, after reciting the decree of the General
Assembly, stated that the said Eunice Bird,
"For the consideration of $1,500, secured, to
her full satisfaction, by four promissory notes,
executed and delivered to her by Doctor Seth
Bird, all bearing date, &c., and for the follow-
ing sums, &c., did, by these presents, release,
and forever discharge, the said John Bird from
all claims, demands, and dues, from, or by
force of, the above-recited decree."
The defendants gave in evidence the exem-
plification of another record, which com-
menced with a scire facias, directed " to the
sheriffs of the respective Counties of Hartford
and Litchfield," &c., and proceeded as follows:
" Whereas, Eunice Stan ton, of Colchester, in
the State of Vermont, brought her action to
and before the Court of Common Pleas, holden
at Litchfield. within and for the County of
Litchfield, on the fourth Tuesday of Septem-
ber, in the year of our Lord one thousand eight
hundred and seven, against Ebenezer Willson
and Benjamin Smith, both absent and abscond-
ing debtors, out of this State, to parts to the
plaintiff unknown, as the}7 were and are execu-
tors of the last will and testament of John
Bird, Esq., late of Troy, in the County of
Rensselaer, in the State of New York, de-
ceased, *by writ, dated the 2d day of [*196
April, in the year of our Lord one thousand
eight hundred and seven, which writ, accord-
ing, to the command therein given, was duly
served on Uriel Holmes, Esq., of Hartland, in
said Hartford County, and on Uriel Holmes,
Jr., of Litchfield, in said Litchtield County,
who were and are debtors, and indebted to the
said Ebenezer and Benjamin, in their said
capacity ; and also, on Seth P. Beers, Esq., of
said Litchfield, who then was and still is, both
attorney and debtor to the said Ebenezer and
Benjamin, in their said capacity; which action,
by continuance and appeal, came duly to and
before the Superior Court, holden at Litchfield,
within and for the County of Litchfield, on the
first Tuesday of February last past, when and
where the parties appeared ; and on trial duly
had, the said Eunice did recover judgment
thereon against the said Ebenezer and Benja-
min, by the consideration of said court, for
the sum of $617.21 debt, and for the sum of
.$•35.65 costs of suit, as appears of record ;
which writ, the return of service thereon, and
the record of said judgment of said Superior
Court, and of the said court of Common Pleas,
are in the words and figures following, to wit:"
(Here the whole of the record, including the
execution and return in the suit of Eunice
Stanton against the defendants, as before
stated, are set forth in hac rerba ; the wire
facias then proceeds): " And the said Ebenezer
and Benjamin were, at the said times of the
said dates of the said writ, and of the said in-
dorsements, absent and absconding debtors out
of this State; and the said Uriel Holmes, Esq.,
and Uriel Holmes, Jr., Esq., were jointly in-
debted to the said Ebenezer and Benjamin, as
executors as aforesaid, in and by a debt due to
the said John, while jn life, of more than
$2,000, which still remains unpaid ; and the
said judgment still remains in force and unsat-
isfied. The said Eunice, therefore, says that
the said judgment ought to be affirmed against
the said Uriel and Uriel, Jr. ; and that she
ought to have judgment, and a writ of execu-
JOHNS. REP., 13.
1816
PAWLING v. WILLBON.
196
tion, against the said Uriel Holmes. Esq., and
Uriel Holmes, Jr., Esq., for the amount of
«aid judgment and the fees of service thereon,
for the detention thereof. These are. there-
fore, by authority of the State of Connecticut,
to command you to cause the said Uriel
Holmes. Esq., and Uriel Holmes, Jr., Esq.,
Ac., to know that they appear before the
Superior Court, &c.. to show cause, &c." The
197*] defendants *Uriel Holmes and Uriel
Holmes, Jr., appeared by their attorney, Seth
P. Beers, and pleaded, " that neither they nor
either of them were, at any of the times stated,
debtors of the said Ebenezer and Benjamin, in
their said capacity, in and by a debt due to
the said John, while in full life, to the amount
of more than $2.000, nor in any sum whatever;
nor were the said Ebenezer and Benjamin, in
fact, at any of the times stated in the said writ
a'xcnt and absconding debtors out of this
State, as the plaintiff, in her writ, hath alleged
as on file;" issue being joined on this plea, the
court were of opinion, and found that the de-
fendants were not " debtors of the said Eben-
ezer and Benjamin, in their said capacity, in
and by a debt due to the said John, while in
full life, to the amount of more than $2,000,
nor in any sum whatever ; nor were the said
Ebenezer and Benjamin, at any of the times
stated in said writ, absent and absconding
debtors out of this State, as the plaintiff in her
writ hath alleged. Whereupon it is considered
and adjudged that in this case the defendants
shall recover their costs," &c.
The record of the *cire facias further stated
that it was agreed by the parties thereto that
Willson and Smith had never resided in Con-
necticut, but had always resided at Troy ; that
J. Bird had, for many years previous to his
decease, resided at Troy, where he died ; that
his will had been proved in New York, but
never in Connecticut; and that it was proved
that Uriel Holmes, and Uriel Holmes, Jr.,
were indebted, to the amount of more than
$2,000. to Seth Bird, of whom John Bird was
the residuary legatee and sole executor.
The defendants, also, gave in evidence an
•exemplification of an Act of the State of Con-
necticut, enacted in Mav, 1726, entitled "An
Act for the Recovery of Debts out of the Es-
tate or Effects of Absent or Absconding Debt-
ors;" and of certain Acts supplementary there-
to. The material parts of the Act of 1726 are
as follows : "Be it enacted by the Governor
and Council, and House of Representatives,
in General Court assembled, That it shall and
may be lawful for any creditor to cause the
lands, goods or effects of his absent or ab
sconding debtors, not residing within this
State, to be attached, in whosesoever hands or
possession the same are or may be found: And
the attaching of any part therefore shall se-
cure, and make the whole that is in such per
son's hands liable, in the law, to respond the
198*| judgment to be recovered upon *suoh
process, and shall be subject to be taken in
execution for satisfaction thereof, as far as the
value thereof will extend ; and the person in
whose hands any such lands, goods or effects
are. shall, accordingly, expose the same.
2. That, when no lands, goods, or effects,
of any absent or abscoudintr debtor, in the
hands of his attorney, factor, agent, or trustee,
JOHNS. REP., 18.
shall be exposed to view, or can be found
or come at, so as to be attached, it shall and
may be lawful for any creditor to bring his
action against his absent or absconding debtor,
for the recovery of his dues ; in which case
the creditor, -by some proper officer, shall
leave an attested copy of his writ, at least
fourteen days before the time of trial, with
such absent or absconding debtor's attorney,
factor, agent or trustee, or at the place of his
or their usual abode; which service shall be a
sufficient citation for the creditor to bring for-
ward his action to trial, unless the debtor be
an inhabitant of this State, or hath for some
time dwelt therein; in which case a like copy
shall be left by such officer at the dwelling
house, lodging, or place of his last or usual
abode.
3. That such an attorney, factor, agent or
trustee, upon his desire, shall be admitted to
defend his principal, in snch suit, through the
course of law, according to the nature of the
action. But if the debtor be not in this State,
and no attorney, factor, agent or trustee ap-
pear, to defend in the suit, the court shall con-
tinue the action to the next court ; and then, if
needed be, shall continue the same once more
to the next court (that such attorney, &c.,
may have an opportunity to notify his prin-
cipal); and then, without special" matter al-
leged and allowed in bar, or abatement, the
action shall come to trial, and judgment be
rendered for the plaintiff, and all The goods or
effects which are in the hands of such attor-
ney, factor, agent or trustee, to the value of
such judgment (if so much there be), shall be
liable, and subjected to execution granted
upon such judgment for, or towards, the sat-
isfying the same; and, from the time of serv-
ing the writ or summons as aforesaid, shall be
liable, and be secured in law in the hands of,
and may not, otherwise, be disposed of by
such attorney, factor, agent or trustee.
4. And if such attorney, factor, agent or
trustee, after the time of his being served with
a writ or summons, as aforesaid, taken out
against his principal (being an absent or ab-
sconding debtor), shall transfer, remit, dispose
of or convert any of the *goods or [*199
effects of such debtor, in his hands at the
time of such service, within what shall satis-
fy the judgment given as aforesaid, or that
Baal] not discover, expose or subject the
goods or effect of such debtors, in his hands,
to be taken in execution for and towards the
satisfying the judgment so far, as what in his
hands or possession will extend, shall be liable
to satisfy the same of his own proper goods
or estate, as much as if it were his own proper
debt; and a writ of scire facias may be taken
out from the clerk of the court where the
judgment was given, to be served on such at-
torney, factor, agent or trustee, requiring
him to appear before such court, and to show
cause, if any he have, to the contrary thereof;
and upon default of appearance of such at-
torney, factor, agent or trustee, or refusal to
disclose, upon his oath (which oath such court
is authorized to administer), what goods or
effects of the debtor are, or were in his hands
or possession, then judgment shall be entered
up against him of his own proper goods or es-
tate, as though it was his own debt, and exe-
199
SUPREME COURT, STATE OF NEW YORK.
1816-
cution shall, in usual form of law, be granted
thereon.
5. That the debts due to any such absent or
absconding debtor shall be considered as his
effects, in the hands of the person from whom
the same are due, who s .all be .considered as
his agent or trustee, and be obliged to account
for the same under oath ; and recovery may
be had against him in the same manner as for
goods or chattels of such absconding debtor."
The 1st section of the additional Act of
October, 1807, is as follows: "That whenever
a scire facias shall be brought on said Statute
to recover a debt 'due to, or the goods and ef-
fects of an absent or absconding debtor, in
ca«e any person or persons, either jointly or
severally, claim such debt, as assignee or as-
signees thereof, or such goods or effects, as
owner or owners thereof, the defendant, in
such scire facias, having notice or knowledge
of such an assignment, ownership or claim,
may give notice, in writing, signed by proper
authority, and duly served, to such claimant
or claimants, or his, her or their attorneys,
that such scire facias is pending, and that such
claimant or claimants may, if he, she or they,
see cause, appear and defend against such
scire facias ; and thereupon, unless such
claimant or claimants shall, within such time
as the court, before whom the scire facias was
pending, may direct, give to such defendant,
sufficient security to the approbation of such
court, to indemnify him against all costs arising
in such scire facias, such defendant may suf-
fer judgment by default, or otherwise," &c.
2OO*] *The defendants also gave in evi-
dence, by consent, the deposition of Seth P.
Beers, who stated that Uriel Holmes, and
Uriel Holmes, Jr., on being warned on the
scire facias against them, gave notice thereof
to the deponent, who was the agent of the de-
fendants, VVillson and Smith ; that the de-
ponent, in conformity to the provisions of the
Statute of October, 1807, above mentioned,
one of the Acts, in addition to the Act respect-
ing Absent or Absconding Debtors, gave se-
'curity, on behalf of VVillson and Smith, to
Uriel Holmes and Uriel Holmes, Jr., to in-
demnify them against the costs which Jiad ac-
crued or might accrue, on the writs of scire
facias, which security they accepted ; and
thereupon the deponent appeared, and was ad-
milted, by the court, as attorney for Will son
and Smith, to defend in the proceedings on
scire facias, in the names of Uriel Holmes,
and Uriel Holmes, Jr.; and that a defense
was accordingly made, and judgments were
rendered in favor of the defendants on said
writs of scire facias; that the defenses so made
were made solely for the benefit, and in be-
half of \Yillson and Smith; and that the de-
ponent appeared as attorney, and defended by
their request.
A verdict was then taken for the plaintiffs
for the amount of the debt and costs recov-
ered by the judgment in Connecticut, with in-
terest, subject to the opinion of the court, on
a case containing the facts above stated.
Mr. Woodworth, for the plaintiffs. Though
the process in the original suit, in Connecticut,
should be regarded as a nullity, yet, as the de-
fendants appeared and contested the cause,
through all its stages, .they must be concluded
588
by the judgment. No doubt the Statute of
Limitations may be pleaded in bar to an action,
of a judgment given in another state ; but
a subsequent acknowledgment, or admission-
of the debt, is sufficient to take the case out of
the Statute. (Sluby v. Champlin, 4 Johns.,
463.)
The decision of the cause, on a motion for a.
new trial in the Supreme Court of Connecticut,
will be found in 3 Day, 137. It cannot be said
that the judgment was unduly or irregularly
obtained. This court in Taykw v Dryden, 8-
Johns., 179, have said that a judgment in
another state is presumptive evidence of a just
demand, and it is incumbent on the defendant,
in an action on the judgment here, to impeach
its justice by positive proof of its irregularity
or unfairness. The case of Kilburn v. Wood-
worth, 5 Johns., 37, may be cited for the de-
fendants, but it is not in *point ; for [*2O1
there the defendants never had any notice
whatever of the suit, and were out of the State
where the judgment was given. Here the de-
fendants regularly appeared and went to trial;
and it is a settled principle that a defendant
cannot take advantage of any defect or irregu-
larity in the process, after he has appeared
and pleaded. By appearing, he admits the
competency of the plaintiff, the regularity of
the process, and the jurisdiction of the court..
(Tidd's Pr., 90, 572 ; 1 Str., 155 ; 1 East, 78.)
The case of the plaintiffs against the gar-
nishees, in which they failed, is reported in 4
Day, 87.
^Messrs. H«nry and Buel, contra. In the suit
against the garnishees, the Supreme Court of
Error, in Connecticut, decided that the proc-
ess, by foreign attachment, as it is called,
could not be sustained against executors or
administrators, to recover a debt due from,
their testator or intestate. They refused to-
enforce the original judgment.
1. We contend that the Statute of Limita-
tions is a bar in this case (11 Johns., 168, Bin-
sell v. Halt); and that there is not sufficient evi-
dence to take it out of the Statute. If all the
words of Smith, as stated by the witness Liv-
ingston, are taken together, and fairly under-
stood, they do not amount to an admission of
debt, but merely of the existence of certain
judgments in Connecticut. A person acting
in a representative capacity does not stand in
the same situation as a person acting in bis-
own right. He has no personal interest in the
question. He may be unable to decide whether
he ought to pay or not ; and may very well
say : "I would pay the debt, if I could do it
properly and safely."
There ought to be evidence sufficient to
authorize a jury to infer a promise to pay.
(Danforth v. Culver, 11 Johns., 146.) The
Statute of Limitations is a very beneficial
statute, and ought to be favored. Courts have,
certainly, gone too far, in taking cases out of
the Statute. (2 Saund., 64, note ; 2 Salk., 421,
422; 3 Taunt., 380.)
2. The judgments in Connecticut were in
rem. They were founded on proceedings in
the nature of a foreign attachment, authorized
by certain statutes of that state, the first of
which was passed in 1726. The object of those
statutes is to enable a creditor to obtain execu-
tion against the goods or property of an absent
JOHNS. REP. ..13*
1818
PAWLING v. WILLSON.
201
and abscondingdebtor. (Kirby., 311 ; 5 Johns.,
37: 1 Dal., 281.)
It is admitted that the domicil of the defend-
ants has always been in this State. A person
cannot be recognized as an executor, or in his
representative capacity, out of the State in
2O2*] which *the letters testamentary or pro-
bate are granted. (11 Vin. Abr., 58, pi. 6,
7; I Dall., 458; I Vern.. 397.) They could
not be recognized in Connecticut, as the execu-
tors of John Bird, unless there had been a pro-
bate of the will in that state. They could not
be made executors de ton tort. The very nature
of the proceeding excludes the idea of its being
against the person. It is the property of the
•debtor, in the hands of the garnishee, which is
the object of the suit. He may appear and de-
fend the action throughout. Such a judg-
ment could not be enforced in Connecticut ; a
fortiori, it could not be enforced here. The
judgment given on the tetre facia* against the
garnishees, shows it could not be enforced
there , that amounts to a reversal of the orig-
inal judgment. We have a right to show the
judgment to be irregular, or unduly obtained,
or illegal and unjust, or to impeach it, for
error on the face of the record.
But it is said the .appearance of the defend-
.ants has cured all irregularities. Appear-
ance cures matters of form only, not of sub-
stance. The want of an original writ is not
•cured by an appearance. An appearance can-
not alter the nature of the action or process, or
convert a proceeding in rem into a general ac-
tion in rem et peraonam. It was necessary for
the defendants to go to Connecticut, to' pro-
tect the goods or property attached there, in
the hands of their debtor or attorney. The
court of that state could have no jurisdiction
against their persons ; and the principle of the
decision of C h. J. Parsons, in Bitttett v. Briggg,
•9 Mass.. 482, 489, where the whole doctrine,
as to the effect of judgments in other states, is
considered, applies. No faith or credit is to
•be given to a judgment where the court had no
jurisdiction. The want of jurisdiction is a
radical defect, which cannot be cured by ap-
pearance, and may be taken advantage of, or
given in evidence, under the general issue, in
an action on the judgment. (1 Chitty's PI.,
462, n. b- 6 East, 583; 1 East, 352; IT. R.,
608; SCaines, 129 ; 2 T. R.,644;8T. R.,442.)
Again ; the judgment in Connecticut was
illegal and unjust. An action does not lie to
compel a father to maintain and educate his
child. The law cannot coerce a parent to do
more than to keep his child from becoming a
charge on the town. (Per Spencer, J., 6
Johns., 593 ; 1 Bl. Com., 448, 449; 2 W. Bl ,
1825 ; 4 East. 84.) The moral obligation of a
fattier to support his children furnishes no
.ground for an tuuumpirit. The mother cannot
be said to have been the agent of the father ;
.for she was, by the law of Connecticut, con-
stituted the guardian of the children, and had
the care and custody of them.
2O:J*j *The mother, morally and legally, i«
• equally hound as the father, to take care of and
maintain the children. She could not. there-
fore, maintain an action against the father.
Dower is intended for the maintenance of the
• children as well as the wife (Co Lilt., 83 ; Brae-
ton, bk. 2, ch. 89); and the allowance to the wife
JOHNS. REP., 18.
was in lieu of dower. On no principle, then,
could the action have been supported in this
State.
It is questionable whether it is the policy of
tin- Constitution of the United States, that the
courts of one state should decide on the rights
of citizens of other states. The courts of the
I'nited States have original jurisdiction in all
controversies between citizens of different
states, when the matters in difference exceed
the value of $500.
Again ; the divorce granted by the Legisla-
ture of the State of Connecticut.'in the case of
Mrs. Bird, was a nullity. It is admitted that
her husband, John Bird, was domiciled, and
actually resided in this State, for many years
previous to., and at the time of his death. Mrs.
Bird left her husband and went to reside with
her parents in Connecticut. Her domicil still
continued the same as that of her husband. (1
Johns., 424 ; 5 Ves., 157.) Can the Legislature
of another state dissolve the marriage ties of
our citizens ? As well might they pass laws to
dissolve every other contract between citizens
of this State. Does not the Constitution of
the United States declare that no state shall
pass any law impairing the obligation of con-
tracts?"
Mr. Woodteorth, in reply, insisted that an
acknowledgment of the debt, by an executor
or administrator, had the same effect to pre-
vent the operation of the Statute of Limita-
tions, as if made by the testator or intestate.
The judgment, in this case, is in the usual
form of a judgment against executors, that is,
to obtain satisfaction out of the goods of the
testator, in the hands of his executors.
The amount of the decision of the Supreme
Court of Connecticut, in the suit on the *rire
facin*, is, that they would not aid the plaintiffs
to obtain satisfaction out of the particular prop-
erty in the hands of the garnishee. They do
not question the regularity or justice of the
original judgment.
But, he said, he relied on the case of Taylor
v. Bryden as decisive, It placed the doctrine,
as to the effect of judgments of the courts of
other states, on a fair and .unobjectionable
ground. *Let the defendants show, if [*2O4
they can, that the judgment has been unduly
or unfairly obtained.
PL ATT, J., delivered the opinion of the
court :
This is an action of debt, on a judgment in
the Superior Court of the State of Connecticut,
in favor of Eunice Stanton (formerly the wife
of John Bird, and now the wife of Albert
Pawling), against Willson and Smith, as ex-
ecutors of Bird. The plea is non dttintt, with
notice that the defendants would rely on the
Statute of Limitations to bar the rhiiii.
The material facts disclosed in the case are,
that, in the year 1797, and for several years prior
thereto, John Bird, and Eunice, his wife, re-
sided at Troy, in this State ; that in May,
1797. Mrs. Bird left her husband at Troy. went
to Connecticut, and upon her petition to the
Legislature of that State, procured a statute
divorce from her husband ; John Bird appear-
ing there by counsel, and opposing the applica-
tion on its merits.
The Statute granting the divorce constituted
Mi
204
SUPREME COURT, STATE OF NEW YOUR.
1816
Mrs. Bird sole guardian of her two infant
children ; who are admitted to be the children
of John Bird by that marriage.
After the divorce, Mrs. Bird resided in Con-
necticut, and, while there, expended $617.21
in nursing, schooling, and clothing those in-
fant children. Those expenses were incurred
during the lifetime of John Bird, but without
any request or interference on his part ; and
he continued to reside at Troy until he died.
In 1808, Eunice Stanton (formerly Mrs. Bird,
and now wife of Albert Pawling) recovered a
judgment in the Superior Court of Connecticut
against Ebenezer Willsonaud Benjamin Smith,
executors of John Bird, for the expenses of
nursing, schooling, and clothing those two in-
fant children. Those executors then resided
and have ever since lived at Troy ; and never
were inhabitants of Connecticut. Letters of
administration upon the will of John Bird
were granted in this State, and not in Connec-
ticut.
The judgment in Connecticut was in a suit
against these defendants, as executors of John
Bird, and as persons " absent and absconding
out of that state to parts unknown," under a
Statute of that State, entitled " An Act for the
recovery of debts out of the estate or effects of
absent or absconding debtors."
2O5*] *The defendants were never served
with process, nor even notified of the proceed
ings against them ; but, according to the pro-
visions of that Act, the process was served by
delivering a copy to Uriel Holmes, Uriel
Holmes, Jr., and Seth P. Beers, respectively,
then residing in Connecticut,who were averred
in the process to be " debtors" to the defend-
ants ; and Beers is also styled "attorney" for
the defendants.
It appears that, under authority given by
that Statute, Beers, one of the garnishees, ap-
peared as attorney, and defended the suit, by
S leading the general issue for these defendants;
ut, for aught that appears, without their con-
sent or privity. The plaintiff Eunice Stanton
was thereby put to prove her demand ; and
succeeded in obtaining a verdict and judgment
for $617.21 daoiages, and $35.65 costs, to be
recovered ' ' of the goods and estate of the said
John Bird, in the hands of his executors."
Execution was, accordingly, issued upon that
judgment, and the sheriff returned nutta buna;
and that the garnishees refused to pay, &c.
A scire facias then issued against the gar-
nishees, to show cause why they should not
pay the debt and costs ; to which they appeared
and pleaded that they were not debtors of
these defendants. Upon which fact issue was
joined ; and upon that issue judgment was
rendered in favor of the garnishees, and they
recovered costs. In this proceeding by scire
facias against the garnishees, it appears that
the executors of John Bird interfered so far as
to employ an attorney to defend the garnish-
ees.
The defense set up under the Statute of Lim-
itations has 'been obviated by the testimony
of Richard M. Livingston. We are, therefore,
called upon to consider the whole grounds of
this action.
1st. It is well settled that a judgment in an-
other state (one of the United States) is to be
considered here as a foreign judgment, in ev-
55)0
ery respect, except in the mode of proving it,
which is regulated by statute of the United
States. It is only prima facie evidence of a
debt, and may be impeached when attempted
to be enforced here, as unjust, or unfair, or
irregular. (Hitchcock & Fitch v. Aickin, 1
Caines, 460 ; Jackson v. Jackson, 1 Johns., 432;
Maylor v. Bryden, 8 Johns., 173.)
*2d. It is also well settled that a [*2O6
judgment in another state, founded on pro-
ceedings by attachment, against the goods of
the defendant, he not being within the juris-
diction of such state, is not even pAma facie
evidence of debt, in our courts. It is regard-
ed as a proceeding in rem merely. To con-
sider it as a ground of action here, per se,
would be contrary to the first principles of
justice. As a proceeding in penonam, the
foreign court, in such case, had no jurisdic-
tion. (Kibbe v. Kibbe, Kirby 119; Phdps v.
Holker, 1 Dal., 261 ; Kilbum v. Woodworth, 5
Johns., 37; Bissell v. Briggs, 9 Mass., 462;
Fisher v. Lane, 3 Wils., 297; Buchanan v.
Bucket; 9 East, 192.)
In this case, the defendants were domiciled
at Troy, in this State, at the time of the pro-
ceedings against them in Connecticut. Tke
notice, or summons, was served on certain
persons in Connecticut, whom the plaintiff
chose to denominate "debtors of the defend-
ants ;" and, for aught that appears, the de-
fendants never heard of those proceedings
until after the judgment against them, on
which the plaintiffs now rely. It is not true
(according to the case), as the counsel for the
plaintiffs assumed on the argument, that the
defendants appeared and litigated the plaint-
iff's claim in the suit against them in Connect-
icut. The appearance was by the garnishees,
pro forma, who were authorized, by the law
of that state, to enter an appearance, and de-
fend the suit for their supposed creditors, with-
out their knowledge or consent. The record
states that " the defendants appeared by Seth
P. Beers, their attorney," and pleaded, &c. ;
but. in the absence of all other evidence on
that point, this must be construed to mean,
that an appearance and plea were entered by
virtue of the power expressly given to the
garnishees for that purpose by the Statute.
An "attorney" on whom process may be
served under that Statute, means a general
agent, or a person employed by the defend-
ants to conduct other suits ; not an attorney
previously appointed by the defendants to ap-
pear for them in ihe particular suit, whenever
it might be commenced against them. There
is no evidence that the defendants ever inter-
fered or took any notice of those proceed-
ings, until the scire facias against the garuish-
ees. Then, and not before, it appears by the
testimony of Mr. Beers, they employed an at-
torney, and conducted the defense for the
garnishees.
*I am, therefore, of opinion that the [*2O7
judgment against the defendants in personam
was without jurisdiction, and, therefore, void.
So that this record, on which the plaintiffs
rely, is not even prima facie evidence of a debt.
• Whether, as a proceeding in rem, it was
authorized by the Statute of Connecticut
(now before us) against executors or persons
sued in aulre droit, in any case, is very ques-
JOHNS. REP., 13.
1816
PAWLING v. WILLSON.
207
tionable. (M'Coombe v. Executor* of Hudson,
2 Dal., 73; Jackson v. Wttlsiwrth, 1 Johns.
Cas., 372.)
Besides, it appears that judgment was final-
ly rendered in the Superior Court of Con-
necticut, in favor of the garnishees, on the
rery ground that they were not debtors, or
trustees of these defendants.
The provisions of the Statute of Connect-
icut are analogous to the proceedings by at-
tachment against absconding debtors, accord-
ing to the custom of London ; and in the
case of '" Mutters v. Lewis, 1 Ld. Raym. , 56,
it was decided that " garnishment can only
be where the garnishee is liable to the ac-
tion of the defendant."
Can it be possible, therefore, that even in
Connecticut these defendants would be held,
in any respect, liable, on the ground of those
judgments ? It has there been judicially de-
termined, and the records expressly show it,
that the defendants were out of the jurisdiction
of that State ; that the process was served on
the garnishees only ; and will it be contended
that those proceedings can have any validity
any where, for any purpose ; when it also ap-
pears, by these very records, that neither of
the persons proceeded against, as garnisbees,
did. in fact, stand in the relation of " attorney,
factor, agent or trustee" of the supposed ab-
sconding debtors ?
Such a doctrine would be unworthy of the
enlightened jurisprudence of that respectable
State ; and, a fortiori, it would be unjust to al-
low such proceedings, under a foreign juris-
diction, to form the~basis of a legal claim in
our own courts.
If the defendants had actually appeared in
the suit against them, as absconding debtors,
it would not, in my judgment, have altered
the character of that record. Such appearance
and defense must be deemed to have been
made merely to protect the pledge, which was
the legitimate object of that proceeding.
But. admitting the record to be valid in
12()8*J Connecticut, as a proceeding *in per-
somim, other important questions have arisen
upon the evidence disclosed in this case.
Are we to acknowledge the validity of the
divorce, in Connecticut, between John Bird
and his wife, they being, at that time, domi-
ciled in this SUte ? For, if they were not le-
gally divorced, it follows that the wife could
not sue her husband, nor the executors of her
husband, upon any promise, express or im-
plied, between the husband and wife.
In the case of Jnchton v. Jacknon, 1 Johns..
424, a citizen of this State married a wife in
this State, and after living here together about
a year, the wife left her husband, went into
the State of Vermont, and there obtained a
decree of divorce, according to the law of that
state, on the ground of cruel treatment, the
husband continuing to reside in this State.
This court decided that the wife could not ac-
quire a domicil distinct from that of her hus-
band ; that the proceeding on the part of t lie
wife was an evasion of the law of this State,
which does not allow of a divorce, except for
adultery . and that no action could be main-
tained for alimony on such decree.
The rule has since been recognized in the
case of Tovty v. Lindsay, 1 Dow, 117, iu the
JOHNH. I5i.iv . 13.
I English House of Lords. In that case the
I marriage was contracted at Gibralter, "with-
in the pale of the English law : " the parties
were, afterwards, domiciled in England ; and
then went to Scotland, and were there di-
vorced a vinculo. Though the House of Lords
remitted the cause for a review on the whole
matter, yet they, evidently, admit the principle
that an English marriage could not be any-
where dissolved, except by an Act of Parlia-
ment ; and Lord Eldon observed that it had
been so decided, lately, by the unanimous
opinion of the twelve judges of England
(folly's case) ; though the parties, therefore,
may have been, at the time of the divorce, in
Scotland, and domiciled there bona fide, yet
such a divorce would not dissolve a contract
of marriage made in England. (See, also,
Harg. Co. Lilt., 79 b, n. 44 ; Hub. Dectmflictu
le</>im, Opinion of Eyre, Ch «/.; 2 H. Bl., 410 :
3 Mass., 158.)
But this case is distinguishable from that of
Jackson v. Jackson. 1 Johns., 424, in one strong
feature. Here the marriage (as may fairly be
inferred from the evidence) was contracted in
Connecticut ; and both parties, although dom-
iciled in this State at the time of the divorce,
appeared and litigated the question of divorce
in Connecticut. In the case of Jackson v. Jatk-
son, *the parties were not only domi- [*J£(M>
ciled here, but the contract of marriage was
made in this State.
The investigation of this cause has led me
to examine thus far the question of divorce ;
but whether the Connecticut decree of divorce,
in the case of John Bird, is obligatory here,
appears to me to be a question not necessarily
involved in the decision of this cause. I, there-
fore, forbear to express an opinion on that
difficult and important point, until a case shall
require our decision upon it.
But if the validity of the divorce be admit-
ted, then, in judgment of law, the obligation
to support the children of that marriage was
equal upon both the parents ; there being no
special contract between the parties, nor any
provision on that subject in the Statute grant-
ing the divorce. The only provision in re-
gard to the children (and that was made upon
the express application and request of Mr-.
Bird) was, that the father should be devot-
ed of the custody and control of them, and
that the mother should be their sole guard-
ian.
The mother l>eing under equal natural ob-
ligation with the father to maintain her off-
spring, and no positive law of Connecticut
being shown on that subject, I can see no legal
ground to authorize a recovery by the mother
against the father, for the maintenance of the
children. At most, she can have a right to
sue him for contribution only. •
Upon the whole case, I am of opinion that
the judgment is not even prima facie evidence
of u debt, being without jurisdiction, as a pro-
ceeding in personam ; and,
2d. Admitting the jurisdiction of the Su-
perior Court of Connecticut, and admitting,
also, the validity of the divorce, yet the judg-
ment in favor of the divorced wife against the
executors of her former husband, for the whole
maintenance of their common children, was
contrary to law.
191
•509
SCPREME COURT, STATE OF NEW YORK.
1816
The defendants are, therefore, entitled to
judgment.
Judgment for the defendants.
Judgment of another state only prima facie evi-
dence uf debt. Overruled— 19 Johns., 162; 6 Wend.,
451.
Cited in— 15 Johns., 142 ; 4 Hill, 601 ; 1 Sand. Ch.,
147 ; 6 Barb., 617 ; 7 Barb., 258 ; 1 Hall. 161.
Foreign divorce, validity. Distinguished— 13 Wend.
422.
Cited in— 76 N. Y., 87 : 12 Barb., 647 ; 28 Barb., 26 ;
25 Mich. ,262.
21O*] *DYGERT «. COPPERNOLL.
Practice — Certiorari — Set-off not Admissible in
an Action Founded on Tort — Evidence.
Where, on the plea of a former judgment, in
which the present plaintiff being defendant, ought
to have set off his demand, the justice, by whom
that judgment was rendered, appears as a witness,
and produces his minutes or the judgment, in
which there is an ambiguity as to the form of the ac-
tion, the evidence of the justice is inadmissible to
show that the action was founded on contract, if it
appear that he has in his possession the original
written declaration, which is evidence of a higher
nature.
A set-off is not admissible in a justice's court in
an action founded on tort.
JN ERROR, on certiorari to a justice's court.
The defendant in error brought an action
• of assump»it in the court below against the
plaintiff in error, in which the latter pleaded
.a former trial between the same parties, in
which the defendant in error, the plaintiff be-
low, ought to have set off the present demand.
The justice before whom the former action was
tried appeared as a witness, and produced his
minutes ; from which it appeared that a judg-
ment had been rendered in a suit of Dygert v.
Coppernott, stated thereon to be a plea of tres-
pass on the case, but without specifying
whether it were founded on tort or contract ;
he also stated that the original declaration was
ki writing, which he had left at home ; and
on its being proposed by the defendant below
that he should explain from memory what was
the ground of that action, in order to ascertain
whether the set-off might legally have been
made, the evidence was overruled, and judg-
ment given for the plaintiff below.
Mr. M'Koun for the plaintiff in error.
Mr. Dodge, contra.
Per Curiam. No set-off can be allowed, ex-
cept it be against a claim founded in contract,
express or implied. The minutes of the former
judgment are equivocal and uncertain as to
the cause of action. Trespass on the case
may be for tort or contract ; and, to explain
that ambiguity, the written declaration wuich
the justice had left at home was the best evi-
dence ; and, therefore, the parol evidence to
that point was properly excluded.
The judgment ought to be affirmed.
211*] *MILLON t>. SALISBURY.
Bailment — Bailee for Hire.
Any damage befalling a chattel while in the
hands of a bailee without his misconduct, and while
the chattel is employed in the use for which it was
692
bailed, must be sustained by the bailer. So, if a
horse be hired to go a journey, and during the due
prosecution of the journey, without any ill treat-
ment by the hirer, become lame, the hirer is not
answerable for damages.
IN ERROR, on certiorari to a justice's court.
Salisbury, the plaintiff below, brought an
action against Millon for the hire of and in-
jury done to a horse belonging to Salisbury.
The defendant below hired the horse to
go from Cocksackie to Schodack, and the next
day after his arrival at the latter place, the
horse was found to be lame in one foot ;
and the lameness increasing, the defendant
below was obliged to leave the horse there
and hire another with which to return. About
four weeks after the horse was brought home,
and showed signs of gravel workine out above
the hoof. There was no evidence of improper
treatment of the horse ; but, notwithstanding,
a verdict and judgment were given for the
plaintiff below.
Per Curiam. Millon being a bailee for hire,
and chargeable with no ill treatment, and hav-
ing employed the horse to no other use than
that which was expressly agreed on, and paid
for, he is not liable for such an injury as the
plaintiff below complains of.
As to all accidents naturally incident to the
use of the horse, in the manner contracted for,
the law imposes the risk on the bailer. In-
justice has been done and the judgment ought
to be reversed.
Judgment reversed.
Cited in-8 Barb., 382 ; 44 Barb., 488-
'VANDENBURGH
v.
VAN BERGEN.
[*212
Grant — Election — Necessary to Consummate
Title — Cannot be Exercised by Hetrs or As-
sign*— Property in Stream is Indivisible.
A, in 1734, granted to B a certain sawmill on the
Cocksackie Creek, with the ground and stream of
water thereto belonging. "And also the full liberty
and license to erect and build another mill on any
other place, at or on the same creek, with like lib-
erty of ground and stream of water." Held, that
though B, in his lifetime, would have had a right to
have erected a mill on the creek, and to have over-
flowed, so far as was reasonable and necessary, the
land of C adjacent to the creek, and subsequently
purchased of A; yet that B never having elected a
place f»r another mill, or exercised his right to
erect such other mill during his lifetime, it became
extinct at his death, and the right could not be
claimed or exercised by his heirs or assigns; the
privilege of election not being coupled with an in-
terest so as to vest absolutely, at the time of the
grant. The grant of an undivided moiety or share
in a stream of water does not authorize the grantee
to appropriate or use the stream to the injury of
others jointly interested in it. The property in a
stream of water is indivisi le.
Citations— Co. Litt., 145, a. ; Com. Dig., tit. Elec-
tion.
rp HIS was an action on the case, for over-
1 flowing the plaintiff's land, by means of a
mill dam erected by the defendant across the
Cocksackie Creek. The cause was tried at the
Green Circuit the 26th of September, 1.S15.
The plaintiff proved that he possessed a farm
JOHNS. RKP.. 18.
1816
VANDENBURGH v. VAN BERGEN.
212
•contiguous to the west bank of the Cocksackie
Creek, extending along the same one fourth of
a mile, a considerable part of which adjoining
the creek, was low land. That in 1810 the
defendant erected on hisown land, about three
fourths of a mile below the plaintiff's land, a
sawmill and dam on the creek, which he had
<jver since kept up ; and that the creek, in con-
sequence, when swelled by rain, overflowed
several acre* of the plaintiff's land.
The defendant, to show his right to erect I he
-dam, gave in evidence, 1. The patent of Cock-
sackie, dated the 23d of May, 1687, to John
Brouck and Martin Garretse, which included
the plaintiff's farm and the place where the
mill (him was erected ; 2. A deed, dated the
29th of June, 173-1, from John Brouck to one
of his sons, Casparus Brouck, for certain lands
in the Cock«ackie patent, not including the
plaintiff's farm or premises overflowed ; which
•contained the following clause : "Also, all
my full share, right, and title of, in and to a
certain sawmill, standing and being on the
Cocksackie Kill or Creek, in the said county,
with the ground and water stream of the said
creek thereunto belonging ; and full liberty
and license to erect ami build another mill on
Any other place at, or on the same creek, with
.like liberty of ground and stream of water."
Under the last part of this clause, the defend-
ant claimed his right of erecting the dam in
question.
Casparus Brouck died leaving an only child,
.a daughter, who married John H. SVidbeck.
The defendant further gave in evidence : J3. A
release from John H. Widbeck and his wife,
•dated the 16th of February, 1768, to John V.
Douw for land in Cocksackie patent, with the
privilege of erecting a mill, &c., as in the
former deed. 4. A release from Douw to John
H. Widbeck, dated the 17th of February, 1768,
for the same land with a like clause, as to the
privilege of erecting a mill dam. 5. A
21JJ*]*release from Widbeck and wife, dated
the 14th of April, 1781, to Anthony Van Ber-
gen and Henry Van Bergen, which, after re-
•citing the deed from Brouck, of the 29th of
-June, 1734, released "all his right, title, inter-
•est, claim and demand whatsoever, of. in and
to a certain fall, situate, lying and being in a
tract of land granted to Martin Garretse and
John Brouck, in a certain creek or kill known
by the name of the Cocksackie Kill, and priv-
ilege of erecting a mill thereon, with the
ground and water stream of the said kill, and,
.also, an acre of ground adjoining the said fall."
6. A quitclaim dated the 8th of January, 1725.
from two of the sons of Martin Garretse to
their brother Petrus, for all their right in the
;it. 7. A release dated the 20th of Octo-
ber, 1784, from Henry and Peter Van Bergen.
two sons of Petrus Van Bergen and Harmanus
Cuvler, and Elizabeth, his wife, the daughter
of Petrus to their brother Anthony, for certain
lands ; and also, of an undived moiety of the
fall. &c.. and an acre of land adjoining, de-
scribed in the deed from Widbeck and wife to
Anthony and Henry Van Bergen. 8. Another
deed from Anthony Van Bergen, Peter Har-
manus Cuyler and wife, to Henry Van Bergen,
dated the 20th of October. 17S4* for an undi-
vided moiety of a certain mill." &c. "And.
.also, an undivided moiety or half part of, and
JOHNS. RKP., 18. N. Y. R., 5.
| in one other fall in the Cocksackie Creek, and
j of and in the one acre of land adjoining to the
same fall, on the north side of the kill," &c.
"And, also, an undivided moiety or half part
of any mill or mills which may hereafter be
erected within the limits of lot No. 19, on or
near the uppermost fall in the kill, and of an
| acre and a half of land contiguous to the said
! mill or mills, with liberty of passing," &c.
9. The will of Anthony Van Bergen, dated
February 10th, 1792, devising to his son Peter,
among other things, "All the privilege and
other liberties lam lawfully entitled to, of and
in the Cocksackie mill rights," &c., in fee.
It was admitted that Peter, the devisee, was
dead, and that the defendant was his son and
heir at law.
10. A deed from Henry Van Bergen and
wife, to the defendant, dated 8th December,
1808, for three parcels of land on the southerly
side of Cocksackie Creek, describing them,
"and the privilege of the water of the same
creek and the land thereby covered, and also
the free use of any mill or mills which might
thereafter be erected," &c.
*The plaintiff proved an uninterrupted[*214
~*\on of his farm for above sixty years un-
der Mantie Brouck, daughter of John Brouck,
one of the patentees. It was also proved that no
dam or mill had ever been erected on the fall
where the dam erected by the defendant is
built until the one made by him, and that the
sawmill referred to in the different deeds, was
situated lower down the creek.
The jury found a verdict for the plaintiff for
$120 damages, subject, by consent, to the
opinion of the court on the question of the right
of the defendant to overflow the land of the
plaintiff.
Mr. Brnnk, for the plaintiff, contended that
the clause in the deed of the 29th of July, 1734,
amounted to no more than a bare license to
erect a mill, and was in its nature revocable,
and had been revoked by the death of the
grantor.
The farm claimed under J. Brouck was sold
or disposed of by him ; for the possession of
M. Brouck had been long enough to authorize
the presumption of a grant. The license,
therefore, was determined bv the sale of the
laud. (5 Com. Dig., 806 ; Plead., 8, M. 35.)
Again ; this right or license was an incor-
poreal hereditament, 4 Johns., 81, and no place
was designated by the grantor in which it
was to be exercised. Unless, then, Casparus
Brouck, in his lifetime, elected a place on
which to erect the mill and dam, or to exercise
the right, it was gone forever at his death.
But, admitting that this privilege could de-
scend, or be transferred with the land, it gave
no right to overflow the plaintiff's land. It is
evident that the grantor intended that C.
Brouck should elect a place where he might
erect a mill, without injury to others ; there
were several mill seats on the stream ; it could
not be intended that he should have the con-
trol of the whole or might overflow all the ad-
jacent land.
The deed to II. B., of the 20th of October,
1784, contains several restrictions. The right
H limited to the erection of one mill, ami in
a particular place.
Again the defendant derived no title to this
n 593
214
SUPREME COURT, STATE OF NEW YORK.
1816
fall to Casparus Brouck. A place was selected
for a mill by Widbeck, in his lifetime, and
the election of the mill seat being once made is
final and conclusive.
In Tlwmpson v. Gregory, 4 Johns., 81, the
court held that where a grant of land con-
tained a reservation of a right to erect mills on
215*] the *premises, and to overflow as much
of the land as might be necessary for the mill,
the right, until it was exercised, was to be con-
sidered as an exception, and void for uncer-
tainty. No estate in fee, in the mill seat, was
granted, because no place was designated.
And where nothing passes to a grantee before
election, there the election must be made in
the lifetime of the parties. (Co. Litt. , 145 a ;
Hob., 174; Duer, 281 ; Vin. Abr., Elect., A,
pi. 1.)
Again ; admitting the right to have origi-
nally existed, yet a release or extinguishment
of it is to be presumed from the long and un-
interrupted possession, without any claim or
exercise of the right. (7 Johns., 556; 10
Johns., 301, 377.)
Mr. Van Vechten, contra, contended that
the right of erecting a mill or mills on the
premises was connected with the freehold
granted. The grant operated as well on the
mill seat, or ground on which the mill was to
be erected, as on any other part of the prem-
ises conveyed. Every grant is to be construed
according to the subject matter and intent of
the parties. That is certain which may be
made certain by the election of the party
capable of enjoying the right.
But it is said that the right of election was
lost by the death of the grantee. But there is
a distinction ; as where the interest vests im-
mediately by the grant, there the election may
be made by the heir or executor of the grantee.
(Co. Litt., 145 a; Com. Dig., Elect., B.)
As to the doctrine of presumptions : The
court must look at the right as it is, and the
principle on which the doctrine of presump-
tion rests. It is founded on the supposed ac-
quiescence of a party in the usurpation of
another for a certain length of time. The
possession from which the presumption arises
is in collision with the right. There must be
acquiescence in acts done in hostility to the
right to afford the legal presumption of a re-
lease or extinguishment of it. Here, nothing
of that kind is pretended or shown. The
situation of the property and the facts do not
afford any such presumption. The court, in
Thompson \. Gregory, did not say that such a
grant would be inoperative and void.
But it is said the deed of Casparus Brouck
gave no right to overflow the adjacent land.
Where a thing is granted everything necessary
to its enjoyment passes. If the right to erect
a mill could be of no use without the privilege
216*] of overflowing *the land, it must be
considered that this privilege was intended to
be given. (Shep. Touch., ch. 5, sees. 1, 2, pp.
89, 90, 91, notes 1, 2, 3, 4.)
Mr. Van Dyck, in reply, was stopped by the
court.
PLATT, J., delivered the opinion of the
court :
This is an action on a case for overflowing
the plaintiff's land, by means of a mill dam,
$94:
erected by the defendant on the Cocksackie
Creek.
The defendant claims a right to maintain the
dam, and to do the acts complained of, partly
under a conveyance, in fee simple, from John
Brouck (one of the patentees) to Casparun
Brouck, dated the 29th of June, 1734, for an
undivided moiety ; and partly under a convey-
ance, in fee simple, from Henry Van Bergen
and others to Anthony Van Bergen, dated the
20th of October, 1784, for the other undivided
moiety.
The first deed conveys a sawmill on the
Cocksackie Creek, " with the ground and
water stream thereto belonging," "and full
liberty and license to erect and build another
mill on any other place at or on the same creek,
with like liberty of ground and stream of
water." The latter of said deeds conveys (re-
ferring to another deed) " an undivided
moiety of, in and to a certain fall, situate,
lying, and being in a tract of land granted to
Martin Garretse and John Brouck, in a certain
creek or kill, known by the name of the Cock-
sackie Kill, and privilege of erecting a mill
thereon, with the ground and water stream of
said kill; and also one acre of ground adjoin-
ing said fall."
The defendant deduces all the interest and
estate granted by the said deeds, by a chain of
conveyances down to himself ; and it appears
that about four or five years ago he erected a
mill dam, now complained of, upon his own
land, at a fall on said creek where no mill or
dam had ever before been built.
The plaintiff proves a continued and unin-
terrupted possession of his farm for the last
sixty years derived from Mantie Brouck, a
daughter of the patentee.
I am of opinion that the defendant has failed
in his attempt to show a right to overflow the
plaintiff's land.
The deed from Van Bergen (dated the 20th
of October, 1784) for their "moiety, does not,
in the terms of it, profess to grant any privi-
lege in the water beyond the limits of the mill
I site or falls intended to be conveyed by that
deed. The right of building a dam at that
place must be exercised in such a manner
*as not to injure the previous rights [*2 17
of other persons. Besides, the grant .of an
undivided share in a stream of water would
not authorize the grantee to appropriate or
modify the stream to the injury of others, who
have a joint interest in it. The property in a
stream of water is indivisible. The joint pro-
prietors must use it as an entire stream, in its
natural channel. A severance would destroy
the rights of all.
As to the right claimed under the deed to
Casparus Brouck in 1734, it was a "liberty and
license" to erect a mill on any part of the
creek, and to use and convert the stream of
water in a reasonable manner for that purpose;
and it does not appear that the present dam is
unreasonably high, or unusually constructed.
Casparus Brouck himself would, undoubt-
edly, have had a right to do the very act. now
complained of against any person claiming
title under a subsequent conveyance from John
Brouck. The question, therefore, is, whether
the privilege granted, or the license given
by the deed to Casparus Brouck, has expired
JOHNS. REP.. 13.
CLAYTON v. PKK DUN.
217
or been extinguished. According to Co. Litt.,
146, A, and Vin., tit. Election ; Com. Dig.
tit. Election. " where an interest vests im-
mediately by the grant, election may be made
by the heirs," &c. So, " where an election is
coupled with an interest, such election is de-
scendible." But " if nothing passed or vested
in the grantee before his election, it ought to
be made in the life of the parties." When
election creates the interest, nothing passes
till election." ' ' A f eoff ment of a house and
seventeen acres of laud, parcel of a waste, the
feoffee, and not his heirs, must elect, or else
the grant is void."
Tested by these rules, I am clearly of opinion
that the grant or license to build a mill any-
where on the Cocksackie Creek, with the land
and water necessary for that object, vested no
interest or estate absolutely in the grantee, at
the time of executing the deed. The right was
potential merely ; it could vest only upon the
location and election to be made by the grantee.
It appears there were at least four mill sites
on that creek. It is certain that Casparus
Brouck. in his lifetime, was not actually
vested with the title to any particular mill site
by virtue of that general grant. His election
and location was necessary to consummate the
title. He never exercised his right ; and by
his death it became extinct.
2 1 8*] *The election, in this case, was not
" coupled with an interest," in the sense of
Lord Coke. He means an election coupled
with an interest which vests absolutely at the
time of the grant. As if there had been a
grant of a definite mill site coupled with the
privilege of flowing. Then the interest in the
principal subject of the grant would have
vested immediately; and the appurtenant right
of flowing would have followed it to the heir,
who might elect to exercise the privilege of
flowing whenever he pleased. The plaintiff is
entitled to judgment.
Judgment for the plaintiff.
Cited in-13 Johns. 528 : 51 N. Y.. 251.
CLAYTON 9. PER DUN.
Justice oj the Peace — Actually Keeping a Tav-
ern, although Unlicensed — Disqualified.
A Justice of the peace who, in fact, keeps a tav-
ern, alt h< >n krh he have no license for that purpose,
is disuutilined from trying a cause.
Ana it is immaterial whether the suit were Insti-
tuted before or after he commenced keeping' tav-
ern.
Appearing and going to trial will not, in such
case, confer jurisdiction on the justice.
Citation— 8 Johns.. 409.
IN ERROR, on certiorari to a justice's
court.
It appeared that after issuing the warrant,
and before the day of trial in this cause, the
justice removed with his family into a house
which had been occupied as a tavern, under
an agreement with the former occupant that
he, the justice, might " continue the tavern in
the said house, until the license could be re-
newed." The cause was tried in that house a
few days after the justice had taken possession
JOHNS. REP., 18.
of it. The tavern sign of the former occu-
pant was still kept up and travelers called as
usual, and drank spirituous liquors, and paid
for them . but the justice returned that he did
not consider himself as keeping a tavern.
Judgment was given for the now defendant,
who was defendant in the court below.
Per Curium. The evidence clearly shows
that the justice kept a tavern in fact ; and
whether he had or had not a license for that
purpose, he was equally disqualified for try-
ing causes as a justice. Nor is it material that
the suit was instituted before be became so
disqualified ; nor would it cure the defect if
the plaintiff below did appear and consent to
the trial, because such consent could not con-
fer jurisdiction. Low v. Rice, 8 Johns., 409,
on the last two points, is decisive.
The judgment must be reversed.
Cited in— 21 Wend., 66: 24 Wend.. 541: 3 N. Y., 552 :
2 Barb., 325 ; 41 Barb., 207 ; 9 Leg. Obs.. 50.
*LORD 9. KENNY. [*21»
Contract* — Sale of Chattel— Return and Retti*
sion — Secret Injury.
Where, after the sale of a chattel, it is agreed that
the vendor may, within a reasonable time, return it,
and receive back the price, if returned in as good
condition as at the time of delivery, and the vendee
afterwards rescinds the contract, and returns the
chattel to the vendor, who receives it without ob-
jection, and gives back the price, the latter is con-
cluded, I iy his own act, from maintaining: an action
iitfiiinst the vendee for any deterioration of the
chattel not arising from a secret injury.
IN ERROR, on a ^certiorari to a justice's
court.
The defendant in error brought an action in
the court below against the plaintiff in error,
for injury done to a horse.
The plaintiff below had agreed to sell a
horse to the defendant, and received his note
for $120 as the price of the horse ; but it was
afterwards agreed that the defendant might,
if he chose, within a reasonable time, deliver
back the horse to the plaintiff, in as good con-
dition as when he received him. and take up
his note. The defendant below accordingly
did, afterwards, rescind the contract by re-
delivering the horse, which the plaintiff took
without objection as to the condition in which
he then was. and gave up his note to the de-
fendant. The plaintiff below, afterwards,
brought the present action to recover dam-
ages, on the ground that the horse when re-
turned was not in as good plight as when sold
and obtained judgment.
Per Curiam. As the deterioration in the
value of the horse was not on account of any
secret injury, and as the plaintiff below vol-
untarily took back the horse, and delivered up
the note to the defendant, without any objec-
tion or reservation as to the condition in which
the horse then was, the law holds the plaintiff
concluded by that act, because he thereby re-
scinded the contract of sale unconditionally.
If he had then set up the claim which he
now attempts to enforce, the defendant might
Mi
219
SUPREME COURT, STATE OP NEW YORK.
1816
have chosen to keep the horse and abide by
the first contract, which he had a right to do.
Injustice has been done and the judgment
ought to be reversed.
Judgment reversed.
Cited in— 57 N. Y.. 648 : 4 Daly, 37.
22O*] .*WILLIAM SHELDON
v.
JEMIMA SHELDON ET AL., Executors of
JOSEPH SHELDON, Deceased.
Covenant — To Sell Property under Judgment —
Person Holding Judgment and Selling under
Execution May Purchase at Sale — Holder is
Not Trustee.
Where A confesses a judgment to B, and B cove-
nants to sell the property ot A under that judgment,
and apply a sufficiency of the proceeds to the pay-
ment of A's debts, and account with him for the
remainder, B may himself become a purchaser at a
sale under an execution isssued on such judgment;
for the legal and equitable title in the property re-
maining in A until the sale, B is not a trustee as to
that property ; nor is B accountable to A beyond
the sum for which the property was sold to him.
Citations— HJohns., 455; 3 Ves., Jr., 750; 1 Cruise,
551.
THIS was an action of covenant, which was
tried at the Albany Circuit, in April, 1815,
before Mr. Justice Platt.
This action was founded on the following
instrument, under seal, executed by the de-
fendants' testator : " Whereas, William Shel-
don is indebted to me in the sum of $125, and
whereas the said William hath this day duly
executed to me a bond, and warrant of attor-
ney to confess judgment thereon, which bond
is in the penal sum of $8,000, conditioned for
the payment of $4,000 ; and whereas it is
agreed that under that judgment I shall sell all
the real and personal property of the said
William, and apply a sufficiency of the moneys
arising therefrom to the payment of all his
honest debts, and account with him the said
William for the remainder thereof : Know,
therefore, all men by these presents, that I,
the said Joseph, do covenant, promise, and
agree to and with the said William, that I will
well and faithfully, on my part, keep and per-
form the before-recited agreement ; and to in-
sure a faithful performance thereof, I bind
myself, my heirs, executors, and administra-
tors, and each and every of them, in the penal
sum of $4,000, to him the said William, his
heirs, executors, administrators and assigns.
In witness," &c. The breaches specially as-
signed on this covenant were that the defend-
ants' testator had not applied a sufficiency of
the money arising from the sale of the plaint-
iff's estate to the payment of his honest debts ;
and that the testator or his executors had not
accounted with the plaintiff for the money
arising from the sale of the plaintiff's real and
personal property remaining in their posses-
sion after paying all his honest debts.
Judgment was duly entered on the bond
and warrant of attorney mentioned in the
596
covenant, and an execution being issued there-
on to the sheriff of Renaselaer, the property
of the plaintiff, which was situated in that
county, was sold fairly and without collusion
to the defendants' testator as the highest bid
der, for about the sum of $1,200: and the tes-
tator paid the honest debts of the plaintiff to
more than $1,500. The *plaintiff of- [*221
fered to prove that at the time of the execu-
tion of the covenant, and of entering the judg-
ment, the plaintiff owned property of the val-
ue of $4,000 ; but the evidence was objected
to on the groud that the only proper inquiry
was for what the property sold under the exe-
cution, and the judge, being of that opinion,
rejected it. The plaintiff next offered to prove
that the testator, after the purchase at the
sheriff's sale, had sold part of the property at
a much higher rate than he gave for it, with
the proceeds of which he had paid the honest
debts of the plaintiff above mentioned ; but
the judge ruled that the testator was not bound
to account to the plaintiff beyond the amount
for which the property sold under the execu-
tion. The plaintiff submitted to a nonsuit,
with leave to move the court to set it aside,
and grant a new trial.
Mr. S. A. Foot, for the plaintiff, contended
that the defendants' testator being a trustee,
could not himself become a purchaser. It is
a settled principle in equity, that if a trustee
become a purchaser of the trust estate, the
cestui que trust has a right to set aside the
sale and have the property resold. Should
it be said that this was a judicial sale, it
may be answered that the trustee cannot
avail himself of the benefit of such sale,
for he can derive no profit or advantage
whatever from his trust ; and if it is for the
interest of the cestui que trust, a court will
always avoid the sale. (Campbell v. Walker, 5
Ves., 678; Whidicote v. Lawrence, 3 Ves., 740;
13 Ves., 600.)
The only question is, whether the plaintiff
can avail himself of this principle in a court
of law. The testator, by his covenant, stipu-
lated to perform certain duties as a trustee,
and he is here called upon to answer for a
breach of that covenant, or in other words,
for a violation of his trust. In a court of
equity the cestui que trust might either set aside
the sale, or call on the trustee to account for
the profits. Now, the trustee in this case, has
purchased for $1,500 property worth $4,000,
and he is called on to account or pay the dif-
ference. The inquiry as to the value of the
property at the trial was in this view proper.
Mr. Bliss, contra, contended that by declar-
ing for a breach of the covenant in this case,
the plaintiff affirmed the sale. This is dis-
tinguishable from the ordinary case of a sale
and purchase by a trustee. No third person
was ever interposed in this case. It *was [*222
a judicial sale by the sheriff, the public law
officer, so that all idea of collusion or fraud
is excluded. Indeed, the parties by their con-
tract, contemplated a sale by a sheriff. In
Jackson, ex dem. OUlespie, v. Woohey, 11 Johns.,
446, the court said that a guardian, ad litem,
might purchase the estate of the infant, sold
by the commissioners for making partition.
And in Damson v. Gardner, 1 Cruise's Dig.,
551, 552. Lord Hardwicke said a trustee might
JOHNS. REP., 13.
1816
BARNEY v. DKWKY.
222
purchase at open sale, at auction, before the
master.1
THOMPSON, Ch. «/., delivered the opinion of
the court :
The first question which arises upon the
motion to set aside the nonsuit granted in this
case is, whether the testator, Joseph Sheldon,
could legally purchase the property sold under
the execution, in his favor, against the plaintiff
in this cause. The objection which has been
urged against this right is, that he was a
trustee for the plaintiff of the property sold,
and therefore disqualified from becoming a
purchaser. It would be a sufficient answer to
this objection, that it forms no part of the
breaches assigned in the declaration. But it
is not true, in point of fact, that the testator
stood in the character of trustee to the plaintiff.
Neither the legal nor equitable title to the
property was transferred to him. It remained
entirely in the plaintiff, and was under his
UU;{*J 'absolute control until the sale made
under the execution. The testator only cove-
nanted that he would sell the property under
the execution, to be issued upon the judgment
confessed, and apply a sufficiency of the
money arising therefrom to the payment of
the plaintiff's honest debts, and account to him
for the remainder. Under such circumstances
there could be no possible objection to the tes-
tator's becoming a purchaser, at a public sale
made by the sheriff. And, indeed, it may
well be questioned, whether the rule applies
at all to such public sales, there being no
chance of practicing any fraud upon the cestui
que truitt, by purchasing the property under
its real value. (11 Johns., 455.) But the rule
itself is not as broad as was contended for by
the plaintiff's counsel. In Whichcote v. Law-
rence, 8 Ves., Jr., 750, the Lord Chancellor
says the rule is laid down, not very correctly,
in most cases where you find it. It is stated
as a proposition, that a trustee cannot buy of
the ce#tui que trust ; certainly, says he, that
naked proposition is not correctly true ; the
real sense of the proposition is not that the
sale is ip»o jure null, but that he who under-
takes to act for another, in any matter, shall
not in the same matter act* for himself.
Therefore, a trustee to sell shall not gain
any advantage by being himself the per-
1.— This Is a manuscript case, decided July 21, 1743.
Tin- position of Lord Hardwicke is not supported
by subsequent adjudications, nor by the reason and
policy of the general rule relative to the incapacity
of a trustee to purchase the trust estate. It does
not depend on the sale being public or private, or
whether it Is advantageous or not to the trustee.
The principle rests on a deeper and broader founda-
tion. It is the danKer of temptation from the fa-
i-iiity utul advantages afforded by the situation that
creates the disability. "The wise policy of the
law," say the learnea counsel, in the ease of The
York Buildings v. M'Kenzie. 8 Hro. P. O., 68, Appen.
1, " has. rh'Ti-t'oro, put the sting of disability into
toe temptation, as a defensive weapon against the
strength of the danger, which lies In that situation."
See, also. Be-part* James, 8 Ves., 343. " No trustee,"
says Lord Eldon, In Kf-part« Lacey, ti Ves.. Jr., 635,
".. "shall buy the trust property, until he strips
himself of that character, or. by universal consent,
haa acquired a ground for becoming a purchaser."
And in the case Er-ixirtc Ben net, 10 Via., 385. he
again observes that if a trustee can buy, in an
honest case, he may in a ease having that appear-
ance, but which from the Infirmity of human t--sii-
inony may Ix- growl v otherwise." See, also, Which-
oote v. Lawrence, 3 Ve»., 740; Campbell v. Walker,
JOHNS. RKP., 18.
son to buy. And in Davixon v. Gardner,
cited 1 Cruise, 551, Lord Hardwicke said the
Court of Chancery will not suffer a trustee to
purchase the estate of the ce«ti que tnt»t during
his minority, though the transaction be fair
and honest ; but that the rule against trustees
purchasing did not extend to trusts for persons
of full age. And where there is a decree for sale
of the et»ti que tru*t'» estate, and an open bid-
ding before the master, then the court has per-
mitted the trustee to purchase ; for that is an
open auction of the estate.
The next question is. whether the testator
was bound to account to the plaintiff for more
that the amount produced by the auction sale.
The decision of this point is, necessarily, in-
volved in the answer given to the first ques-
tion. For, if the testator might legally become
a purchaser at the auction, the avails of the
sale thus made must be the amount for which
the testator was accountable ; and the plaint-
iff can surely have no reason to complain of
such sale, as it was made according to his own
agreement and stipulation. The *cove- [*224
nant upon which the present action is founded
provides that the real and personal estate of
the plaintiff should be sold under the judg-
ment ; and if that was a fair bona fide sale,
which, indeed, has not been at all questioned,
there can ue no ground for calling on the de-
fendants to account for more than the avails
of such sale. And the case shows that the
testator did apply such avails to the payment
of the plaintiff's debts, as by the covenant he
was authorized and required to do. There
has, therefore, been no breach of the cove-
nant, and the plaintiff was properly nonsuited.
The motion must, accordingly, be denied.
Motion denied.
Criticised— 4 Sand. Ch., 49.
Cited in -14 Johns., 415 ; 3 Wend., 517.
BARNEY t>. C. DEWEY.
Sale— Of Chattel without Title— Eviction by
Rightful Owner.
In an action on the case for falsely affirming that
a chattel belonged to the defendant, whereby tin-
plaintiff was induced to buy it, and was afterwards
evicted by the rightful owner, it is unnecessary
5 Ves., Jr., 678 : Sugden's Law of Vend.. 3d ed., 391-
401: 1 Maddock's Chan., 91-03.- This subject was
discussed in the ease of BerKen ct al. \. Bennet, 1
Calnes' Cases in Error, 1-21 : and Kent, J.. who de-
livered the opinion of the Court of Errors, says:
"It is a sound and established rule of equitable
policy, that a trustee cannot himself be a purchaser
1 of the trust estate without leave from chanciT\ ;
and the reason of the rule is to bar more effectually
' every avenue to fraud. This rule was recognized
by this court In the case of Monroe et at. v. Allaire"
(ITOfl.) And after taking noticeof some distinctions
' taken in that case, he savs, "admitting the rule to
be absolute and universal, still it is agreed that the
if >fni iiue triiat must come in a reasonable time to
set aside the sale, or he will not IK? heard." See, also.
Manning v. Manning. 1 Johns. Ch., 533. So Lord
Louyhborotyh, in \Vhichcote v. Lawrence, and
Lord Alvanlcy. in Campbell v. Walker, without
considering the purchase by a trustee as ii>xnj»re,
I void, say that he always purchases subject to the
equity of having the sale set a«ide, if the ce»t\ii que
trii*t. in a reasonable time, choose to say he is not
satisfied with it.
Nor*.— Sola— Warranty of title. See Defreeae v.
j Trumper, 1 Johns., 274, note.
597
234
SUPREME COURT, STATE OP NEW YORK.
1816
to set forth the contract between the parties, or
any consideration moving: from the plaintiff to the
defendant, or the price paid, as that is onJy a matter
relating to the liquidation of damages.
Even in the case of a (rift, the donor would be
liable for a false affirmation as to the title.
A recovery from the vendee by the rightful
owner, is conclusive evidence against the vendor.
If the declaration state that the vendor gave evi-
dence on the trial of the suit, in which such re-
covery was had, in favor of the true owner of the
chattel, this is tantamount to an averment of notice
of the pendency of the suit.
Citations— 6 Johns., 182 ; 1 Johns., 517 ; 1 Chit. PL,
296.
THIS was an action of trespass on the case.
The declaration contained one count, in
which it was stated that the defendant, on the
1st of July, 1811, at the town of Fort Ann, in
the County of Washington, intending to de-
ceive and defraud the plaintiff, did encour-
age him to buy a certain bay horse, then
in the posession of the defendant, of the value
of $150, and falsely, &c., affirmed that the
said horse belonged to him, the defendant,
and that he had a right to sell and dispose of
him as his own, and thereby caused the plaint-
iff to purchase the said horse, which the de-
fendant delivered as his horse ; and that the
plaintiff, confiding in the defendant's affirma-
tion, purchased the said horse of him, the said
defendant, and satisfied him therefor ; whereas,
in truth, at the time of said affirmation and
delivery, the defendant was not owner of the
said horse, and had no right to sell him, but
the horse belonged to one Thaddeus Dewey, and
the defendant well knew the same ; and that
the said Thaddeus Dewey, afterwards, brought
an action of trover in the Common Pleas of
the County of Washington, against the plaint-
iff, for the value of the said horse ; that the
plaintiff retained an attorney and two counsel
to defend the same ; but that, at the May Term
of the said Court of Common Pleas, the said
225*] *Thaddeus Dewey recovered against
the plaintiff $113.80 damages, and $89.16 costs
and charges, which sums of money the plaint-
iff has paid and satisfied ; that the plaintiff
procured the attendance of several witnesses
at the said trial ; and that the defendant did
then swear, in behalf of Thaddeus Dewey, that
the horse did, at the time of delivery, belong to
Thaddeus Dewey, and that he, the defendant,
had no right to part with him ; by reason of
which testimony, the jury found a verdict
against the plaintiff. By reason of which
false, &c., assertion and affirmation, &c.
To this declaration the defendant demurred,
specially, and showed for causes of demurrer,
1st. Because it is alleged that the defendant
caused and procured the plaintiff to buy the
said horse, by affirming that the said horse be-
longed to the defendant, without setting forth
the contract between the parties, or any con-
sideration moving the plaintiff to buy of the
defendant. 2d. That no contract was set
forth, or that the plaintiff gave the defendant
any valuable consideration. 3d. Because the
plaintiff hath founded his right of action upon
the fact of an action brought against him by one
Thaddeus Dewey, for the value of the horse
and his recovery thereof. 4th. Because the
plaintiff hath spread upon the record the pro-
ceedings in the action against him by Thaddeus
Dewey, and the testimony given by the defend-
ant therein.
598
The plaintiff joined in demurrer.
Mr. D. Russel, in support of the demurrer.
He cited Cro. Eliz., 292; Hob., 69, 77, 41 ;
Cro. James, 533; 1 Cro., 79, 144; Doug.,
620; 9 Johns., 291.
Messrs. Skinner and Z. R. Shepherd, contra.
They cited 2 T. R., 345; 5 T. R, 143; 2
Wils., 319; Lord Raym., 909; Powell on
Cont., 344, 345; Rob. on Frauds, 116; 1
Campb., 242 ; 2 Johns., 550 ; 1 Chitty's PI.,
332, 386 ; 1 Johns., 517 ; 3 T. R., 51 ; 6 Johns.,
181 ; 2 Caines. 216.
SPENCER, J., delivered the opinion of the
court :
The defendant has demurred, specially, to
the declaration, for three causes : 1st. That it
does not set forth the contract between the
parties ; 2d. That it does not state any con-
sideration moving from Barney to buy the
horse of Dewey ; 3d. That the plaintiff founds
*his right of action on the recovery [*226
had against him by a third person ; and 4th.
Because the declaration contains the evidence
of facts, and not the facts themselves.
None of the objections are well founded.
The declaration is not very technically drawn,
but it contains every essential requisite ; it is
a mistake to suppose that the action is founded
on a contract ; it is for a fraud. Fraud or de-
ceit, accompanied with a damage, is a good
cause of action ; and the late Ch. J., said, in
Upton v. Vail, 6 Johns., 182, that this is as
just and permanent a principle as any in our
whole jurisprudence. It was not requisite to
set forth the contract between the parties, or
any consideration ; it is enough to state the
fraud and deceit, and the damages.
Had the defendant given the horse to the
plaintiff, affirming him to be his, and had the
plaintiff been, afterwards, prosecuted for the
horse, and subjected to costs and damages, he
might have maintained an action for the fraud
and damage.
The fact of a recovery in the action against
the plaintiff, by Thadeus Dewey, on the ground
that the horse was not the property of the de-
fendant, was not only a proper averment in
the declaration, but it would be conclusive
against the defendant, if proved. (Blasdale v.
Babcock, 1 Johns., 517.) There is no allega-
tion of notice to the defendant of the
pendency of the suit brought by Thaddeus
Dewey, but there is an averment of a fact
tantamount. It is alleged that the defendant
was a witness on that trial, and proved, him-
self, that he did not own the horse when he
sold him to the plaintiff. With respect to the
omission to state the price paid for the horse,
it is only a matter relating to the liquidation
of damages ; and it is a principle that, after
showing a right to damages, it is matter
proper for the jury, and is not necessary to be
shown to the court in the first instance. (1
Chitty's PL, 296.)
I perceive no substantial, or even formal
objection to the declaration.
Demurrer overruled.
Cited in— 13 Johns., 403; 19 Johns., 299; 6 Cow.,
354 ; 9 Cow., 25 ; 7 Wend., 385 ; 24 Wend., 103 ; 10
Barb., 446; 25 Barb., 33; 42 Barb., 42; 49 How. Pr.,
110 ; 6 Daly, 257 ; 1 Leg. Obs., 331.
JOHNS. REP., 13.
1816
Louw r. DAVIS.
227
227*]
*LOUW v. DAVIS.
Practice — Waiver of Caute of Action — New Suit
for Same Caute — Not Burred — Venire m
Justice Court.
If the plaintiff, on trial, waive any particular
cause of action, and afterwards bring a new suit
for the same cause, the record in the former action I
is not a bar to the new suit.
A venire, in a justice's court, must be executed
by a constable of the town from which the jury is
summoned, and in which the cause is tried.
Hut it S.M-IH.S that a venire directed to any cou-
ntable of tin- county, if executed by the proper con-
HtaMe, Is a mere defect in form, for which the
Judgment will not be reversed.
IN ERROR, on wtiorari to a justice's court.
Davis, the plaintiff in the court below,
brought an action against Louw, the defend-
ant below, for negligence in not defending a
Miit brought against him, the plaintiff, in the
Court of Common Pleas of Seneca County.
\ -,ire was issued in the cause, directed to
any constable of the county, and was executed
by a constable of the town of Ovid, but the
jurors were taken from the town of Romulus,
where the cause was tried. There was a chal-
lenge to the array, which was overruled by
tin- justice. The defendant pleaded a former
trial for the same cause of action, and judg-
ment in his favor. From the record produced
in evidence, it appeared that the former action
wa- for the same cause, but that the plaintiff
therein withdrew all his demands, except one
for $5, for a fee in the suit which the defend-
ant was employed to defend. There does
not appear to have been any decision by
the justice as to the effect of the record as
a bar. A verdict was given for the plaintiff
below.
Per Curiam. With respect to the effect of
the former trial, there appears to have been no
decision made by the justice ; and it might be
fairly inferred from this circumstance that the
defense on this ground was not persisted in ;
but there could be no objection to the plaint-
iff's waiving any claim for the negligence ;
this was a distinct cause of action, and found-
ed in tort. The other objection, however, is
fatal. The statute requires the tenire to be
directed to a constable of the city or town
where the cause is to be tried, commanding
him to summon, &c. The direction of a venire
is different from that of a summons and exe-
cution : these are directed to any constable of
the county. Perhaps the mere direction of
the venire might have been considered matter
of form, if it had been served by a constable
of the town where the cause was tried ; this
the Act seems to require ; probably because
constables of the town are more likely to be
acquainted with persons who are fit and
proper jurors. But, whatever may have bee'n
lili H*| the reason for such a 'provision, it is
too plain and explicit to admit of any other
construction. The judgment must, therefore,
be reversed.
Judgment reverted.
Cited in -SO Barb., 366; M Ind., 41S.
. REP., 18.
KILLMER v. CRARY.
Practice — Adjournment — Affidavit of Third
Person to Obtain.
The admission of the affidavit of any other per-
son than the party himself, for the purpose of ob-
taining: a second adjournment, on account of the
absence of material witnesses, rests in the sound
discretion of the justice; and if it do not appear
thitt that discretion has been abused, his judgment
will not be reversed.
N ERROR, on certiorari to a justice's court.
I
The plaintiff in error, who was the defend-
ant in the court below, having, on the return
of the summons, obtained an adjournment,
appeared on the day to which the cause was
adjourned, by attorney, and requested another
adjournment on account of the absence of
material witnesses. The application was op-
posed by the plaintiff below, and one of the
grounds of opposition was that the attorney
could not make the affidavit that the witnesses
were material ; upon which the attorney stated
that the defendant was sick and could not at-
tend. The justice examined a witness as to
that fact, and concluded, from what the wit-
ness stated, that the defendant could have at-
tended, and refused the affidavit of the attor-
ney. The parties then proceeded to trial, and
a verdict was found for the plaintiff below,
the defendant in error.
Per Curiam. The only question in this case
is whether the justice ought to have received
the affidavit of the attorney as to the absence
and materiality of the witnesses. This was, in
some manner, a matter resting in the sound
discretion of the justice ; and from the evi-
dence returned, as to the inability of the de-
fendant to attend the court, we cannot say
that there was such an abuse of this discretion
as to justify the setting aside the judgment.
It is clear that the defendant might have at-
tended court. The cause of his inability al-
leged was a complaint in his face, arising, as
the witness at first supposed, from intoxica-
tion ; afterwards he thought it was occasioned
by poison ; he had but a day or two before
walked ten miles. As the first adjournment
was at the request of the defendant, and. for
anything that appears, for as long a time as
he wanted in order to prepare for the trial,
*and a- the dispensing with theaffida- [*22J)
vit of the party himself was a question proper
for the justice, and resting in sound discre-
tion, we think the judgment must be affirmed.
Judgment affirmed.
JACKSON, ex dem. BEEKMAN ET AL.,
HAVILAND.
Ejfctmem — Judgment — Mu»t be Enforced within
Period Laid in Demise — Statute of Limita-
tion*— Advene Possession.
Where a person, having recovered a judgment in
ejectment, neglects to enforce it within the period
laid in his demise, his right of entry under that
judgment is altogether gone; and if there have
NOT*.— Advene jnuettton. See Brandt v. Ogden,
1 Johns., 168, note.
IS*
229
SUPREME COURT, STATE OF NEW YORK.
1816.
been an adverse possession for twenty years, dur-
ing which such judgment was recovered, it will not
avail him to take the case out of the Statute of
Limitations.
Citation— 2 Burr., 667.
THHIS was an action of ejectment for land in
1 Queensbury, in the County of Washing-
ton, which was tried at the Washington Cir-
cuit, in June, 1813.
The plaintiff claimed under the patent of
Kayaderosseras, to John Tatham and twelve
others, dated November 2, 1708. The share
of John Tatham passed, by his will, to his
wife, Mary Tatham, who, on the 13th of Octo-
ber, 1715, conveyed the same to Elias Boudi-
not, who, on the 1st of March, 1717, conveyed
to George Clark, from whom it descended to
his heir, George Clark, the younger, prior to
the year 1768. On the 14th of March, 1768,
George Clark, the younger, conveyed the
same to Dirck Lefferts and Peter Remsen ; in
1771 partition was made of the patent of Kay-
aderosseras, by which it appeared that lot No.
13, in the 25th allotment, fell to the share of
John Tatham ; and by deed of partition be-
tween Lefferts and Remsen, dated the 18th of
May, 1771, lot No. 1, in the subdivision of lot
No. 13, was conveyed to Lefferts, in severally,
of whom the lessors of the plaintiff are the
heirs at law. The defendant was in posses-
sion of about one hundred acres in lot No. 1,
of lot No. 13, in the 25th allotment of the
Kayaderosseras patent.
In 1788 or 1789 one John Eddy was in pos-
session of the premises in question, on whom,
as tenant in possession, a declaration in eject-
ment was served, in which Dirck Lefferts was
the lessor of the plaintiff. A default was en
tered therein against the casual ejector, on the
7th of May, 1790. The demise in the declara-
tion was laid on the 10th of May, 1788, for
fourteen years, and the judgment was signed
on the 27th of May, 1811.
23O*] *The defendant claimed the prem-
ises under the patent of Queensbury to Jacob
Haviland and others, dated the 20th of May,
1762 ; and by a partition of the patent, dated
in November, 1762, lots Nos. 102 and 42 were
conveyed to Jacob Haviland. In 1765 Asaph
Putnam took possession of lot No. 102, con-
taining two hundred and fifty acres (of which
the premises claimed by the plaintiff, as with-
in the Kayaderosseras patent, are part), under
Jacob Haviland, and continued in possession
twelve years, until 1777, when he was driven
off, with the rest of the inhabitants, by the in-
vasion of Burgoyne's Army. Whilst Putnam
was in possession, he built a log house and
burn ; there were one hundred and fifty acres
inclosed, and forty or fifty acres cultivated.
Abraham Wing succeeded to the possession,
under a lease from Haviland ; and Henry
Martin next came into possession, in Septem-
ber, 1784, under a lease from Moses Sage, the
son-in-law and agent of Haviland, and con-
tinued until April, 1787, when John Eddy
came into possession. On the 6th of July,
1786, Haviland conveyed all his right in the
Queensbury patent to Moses Sage, and Sage,
on the 14th of July, 1787, conveyed lot No.
102 to John Eddy, who, on the 6th of Novem-
ber, 1794, conveyed the same to the defend-
ant.
600
The judge directed the jury to find a ver-
dict for the defendant, which they, accord-
ingly, did.
Mr. J. Emott, for the plaintiff, contended
that the effect of the recovery in the former
action of ejectment was to destroy the contin-
uity of possession, and to give the title to the
plaintiff for fourteen years. If so, then there
is no adverse possession on the part of the de-
fendant. The former ejectment related to the
same property, and was against Eddy, under
whom the defendant holds. That judgment
gave the plaintiff, as against JCddy and those
claiming under him, a term of fourteen years
from 1790. If a single link in the chain of
possession be broken, the whole effect of it is
defeated, as it regards the Statute of Limita-
tions, and there must be a new commencement
of possession. Though the record was not
made up until long after, owing to the negli-
gence of the plaintiff's attorney, the judgment
could not be considered as abandoned.
A judgment of a court, directly on a point
before them, is a conclusive bar. The merits
of it can never be overhaled, except *by [*23 1
writ of error. (2 Burr., 1009 ; Co. Litt., 39
a, 106 a.) In proceedings in rem, or real ac-
tions, the judgment is conclusive on the right
of property. (Booth, 71 ; 2 Bl., 361.) For
example, a judgment by default, in a common
recovery, vests the property absolutely in the
common recoverer. (2 Bl. Com., 357.) A
recovery in an action of ejectment, by default,
or after verdict, is the same thing ; it is now a
proceeding in rem, the thing only, the term,
being recovered, not the mesne profits. (Good-
title v. Tombs, 3 Wils., 118-120.)
After judgment in ejectment the plaintiff
may enter. (1 Burr., 88.) He may, before a
writ of possession is executed, maintain an ac-
tion for the mesne profits. He may, before
possession, sell his right, without being guilty
of champerty. In an action for the mesne
profits, the recovery in ejectment is conclusive
as to the right of possession. So that, in the-
eye of the law, the judgment gives to the
plaintiff the possession itself. (1 Johns. Cas.,
283 ; 1 Burr., 88, 89 ; 2 Burr., 668 ; 3 Johns.,
483 ; 9 Vin. Abr., 353, pi. 3; 1 Salk., 258 ; a
Wils., 120 ; Runn. on Eject., 400.)
Messrs. Skinner and Woodwortli, contra, in-
sisted, 1. That the plaintiff had not shown a
title. When Clark conveyed to Remsen and
Lefferts, and when Remsen conveyed to Lef-
ferts, Putnam was in possession, claiming un-
der the Queensbury patent. The deeds, there-
fore, were void for champerty. (1 Johns., 345;.
9 Johns., 57.)
2. If the lessors of the plaintiff ever had a
legal title, it is lost by the adverse possession
of those under whom the defendant claims for
more than twenty years. It is admitted that
there has been no actual possession by the
plaintiff's lessors for above forty years. To-
prevent the operation of the Statute of Limi-
tations, there must be an actual entry, so as to-
destroy the continuity of possession. (4 Johns. ,
390.) There niust be an actual entry within
the twenty years. The confession of lease,
entry, and ouster, when there has been a non-
suit, will not prevent the operation of the stat-
ute. Where the statute once commences to-
run, it is not prevented by any intervening
JOHNS. REP., 13.
JACKSON, EX DEM., v. HAVILAND.
231
circumstances, as bankruptcy, coverture, &c.
(Esp. Dig.. 148; 1 Str., 558; 1 Johns., 176; 3
Mass.. 263 ; 3 Binney, 385.)
In an action for ine*ne profits, the plaintiff
must show that the writ or possession has been
executed, or that he has obtained the actual
possession. (2 Burr., 665.) After a judgment
by default, the practice is to produce the judg-
ment, and prove the writ of possession rxr-
cuted. (Runn. on Eject., 157 ; 2 Cromp. Pr.,
222.) It is true where the defendant has ap-
peared, and confessed lease, entry, and ouster,
that is not necessary ; but in case of a judg-
ment by default, which is the present case, the
writ of possession executed must be produced.
(Bull. N. P., 87 ; 1 Impey's Pr.. 428 ; 2Sellon,
225.) It would be absurd to allow the plaintiff,
in an action of trespass, to recover without
showing an actual possession.
232*] *In Baron v. Abeel, 3 Johns., 481,
and in Beiuon v. Mattdvrf, 2 Johns., 369 ; 11
Johns., 461, the defendant, after the recovery,
had surrendered the possession.
If the plaintiff had taken possession under
the judgment, still the defendant might have
brought his action the next day, to recover
back the possession. If there were no previous
title in the lessors of the plaintiff, what is to be
the effect of the judgment ?
In Jackion, ex dem. Frost, v. Horton, 3 Caines,
197, in which the limitation of five years, un-
der the Act of the 28th of March, 1795, was
set up in bar after the ejectment, the defend-
ant died before trial, and after the five years
had expired, and another action was immedi-
ately brought : though the question was not
decided, the court being equally divided ; yet
two of the judges (Livingston, ./. , and Spencer,
./. ) were of opinion that the Act was to be
taken according to its terms, and that the
plaintiff could not recover; the other judges
thought the case within the spirit and equity
of the exceptions.
The 3d section of our Statute (sess. 24, ch.
183) declares that no entry shall be made on
lands, but within twenty years after the title
accrued ; and that no claim or entry shall be
sufficient, within the meaning of the Act, un-
less an action shall be commenced thereon
within one year after making the entry, and
prosecuted with effect ; and by the 5th section,
in case of the reversal of a judgment, the
plaintiff must commence a new action within
one year after the reversal. It seems to be the
meaning of the Act, that the suit should be
commenced in one year, its object being to
make parties vigilant in regard to their rights.
Here there was a lapse of twenty two years be-
fore the suit was brought.
Mr. Emott. in reply, said that the Statute of
Champerty did not apply to this case.
Again ; the earliest commencement of ad-
verse possession was in 1765; from that time
to 1790, when the ejectment was commenced,
deducting seven years for the period of the
Revolutionary War, there were only eighteen
years. The demise was laid in 1788, for four-
teen years, and, until after the end of that term,
the S'tatute would not begin to run. It makes
no difference that the judgment was not per-
fected, or roll signed, until 1811. The roll
is only evidence of the judgment by default in
1790."
JOHNS. REP., 13.
*The books of practice, it is true, dif- [*233
fer as to the necessity of executing a writ of
possession, and the reason of the difference it
is not easy to understand The effect of a
judgment by default is precisely the same as
that of a judgment after appearance. In the
one case, the defendant, by his default, admits
the right of the plaintiff. In the other, it is
found for him by the verdict of a jury. After
the term has expired, the plaintiff may bring
his action for the me*ne profits.
PI.ATT, J., delivered the opinion of the
court :
The plaintiff deduces a regular chain of title
under the patent of Kayaderosseras, granted
the 2d of November, 1708, to John Tat ham
and twelve others ; and the defendant also
shows a regular deduction of title under the
patent of Queensbury, granted the 20th of
May, 1762, to Jacob I la vi land and others. Each
of the patents (by reason of an interference)
covers the premises in question. On this gen-
eral view, the plaintiff claiming under the old-
est patent, would, of course, be entitled to re-
cover. But the defense is rested on two
grounds: 1st, that the conveyance from George
Clark to Dirck Lefferts and Peter Remsen,
dated the 14th of March, 1768, under which
the plaintiff derives title, was void as it regards
the premises in question, by reason of an ad-
verse possession.
2. That the plaintiff's claim is barred by the
Statute of Limitations.
In support of these objections, the defendant
proved that on the 9th of November, 1762, a
deed of partition was executed by the patentees
of Queensbury, whereby lot No. 102, of that
patent (including the premises in question), was
released to Jacob Haviland.
The defendant further proved that in 1765
or 1766 Jacob Haviland put a tenant (Asaph
Putnam) on that lot. containing two hundred
and fifty acres ; that Putnam continued on the
lot for ten or twelve years, occupying and im-
proving it as tenant under Jacob Haviland ;
and that the farm has ever since (with the ex-
ception of a few years during the war) been
successively occupied bv Abraham Wing, one
Martin. John Eddy, and the defendant, under
the title of Jacob Haviland ; that there was a
log house and barn built by Asaph Putnam,
and forty or fifty acres of the lot were cleared
and reduced to cultivation before the Revolu-
tionary War.
*On the part of the plaintiff, it is con [*234
tended that his title is protected from the ope-
ration of the Statute of Limitations, by the
judgment in ejectment against John Eddy. It
appears that, in 1788 or 17H9, an ejectment suit
was commenced in this court for Dirck Lefferts,
as lessor of the plaintiff, upon a demise of
fourteen years, from the 10th of January,
1788. against .John Eddy, then in possession of
the premises ; that in A'pril Term, 1790, a rule
for judgment by default, against the casual
ejector. \\a- entered ; and that on the 27th of
May. 1811. a judgment roll was entered up
and signed in that suit, being nine years after
the demise in the declaration had expired. The
plaintiff must fall on both points.
The possession of Asaph Putnam, on the
14th of March, 1768 (the date of the convey -
1411
234
SUPREME COURT, STATE OF NEW YORK.
1816
ance to Lefferts and Remsen), was of the whole
lot No. 102, in the allotment of Queensbury
patent, containing two hundred and fifty acres,
as tenant under Jacob Haviland, one of the
patentees of Queensbury. He occupied ex-
clusively under that title. No question had
then arisen as to the interference of the patent
lines of Kayaderosseras and Queensbury ; and
I think it would be absurd, as well as unjust,
to consider Putnam, in 1768, as a tenant in
common with George Clark. There existed
between them no privity of contract or estate,
and they claimed under separate and independ-
ent titles. I, therefore, consider it immaterial
whether George Clark attempted to convey the
whole title in severally, or only an undivided
share ; because no act which he could do tow-
ards Lefferts and Remsen, could change the
character of Putnam's possession. If that pos-
session were adverse against the whole title of
Kayaderosseras, it must be equally so against
an undivided share of that title. I am, also,
clearly of opinion that the proceedings and
judgment in the ejectment suit against John
Eddy afford no support to the plaintiff's title.
The action of ejectment is only a possessory
remedy in favor of a person having a right of
entry ; it does not establish and conclude the
question of title, as in real actions
It is true the lessor in ejectment may enter
after judgment without a writ of possession ;
and the judgment is evidence of his right of
entry, as between the parties and privies, so as
to protect him against an action of trespass, so
long as the effect of the judgment continues.
But here the lessor of the plaintiff has waived
his right of entry under the judgment against
235*] Eddy, and *has slept until the term of
the demise has expired ; and, I think, he now
stands in the same relation to the defendant as
if he had never attempted a legal remedy by
the former suit.
In the case of Aslin v. Parkin, 2 Burr., 667,
<fcc., Lord Mansfield says: "A judgment in
ejectment, like all others, only concludes the
parties as to the subject matter of it ; and
therefore, beyond the time laid in the demise,
it proves nothing at all."
A party having title may enter peaceably,
without the aid of the law ; that is, without
judgment or suit ; and having so entered with-
out force, his possession enures according to
his title. The remedy, by ejectment, is in-
tended merely to enable a party having title to
enter by force, under a writ of possession,
which he could not lawfully do without such
writ. In this case, there has been no actual
entry with or without writ of possession. The
lessor of the plaintiff might have availed him-
self of the arm of the law to put him in pos-
session ; but he neglected to do so until the
authority for that purpose expired ; and he is
now in the same predicament as if that author-
ity had never existed.
I have no doubt that the possession of the
defendant, and those under whom he claims,
has been adverse ever since its commencement.
On every ground, therefore, the defendant is
entitled to judgment.
Cited in— 6 Cow., 260 ; 5 Lans., 284 ; 2 Hun, 57 ; 4
Hun, 812 ; 20 Hun, 490 : 4 T. & C.. 284.
<502
IVES v. IVES.
Trespass — Agreement to Convey — Does not Im-
port License to Enter — Entrance with Force.
An agreement to convey, containing words of
bargain and sale in prcesenti, does not transfer the
title.
An agreement to sell land does not import a
license to enter, but, at most, gives an implied per-
mission to occupy as tenant at will.
If a person having title to land enter with force,
he is not liable to an action of trespass.
Citations— 3 Johns., 388, 424 ; 9 Johns., 35, 331 ; 1
Johns. Cas., 123: 4 Johns.. 150.
THIS was an action of trespass quare clausum
fregit, for breaking and entering the
dwelling house of the plaintiff, and tearing out
the doors and windows, and pulling down the
oven and chimney of the house. The defend-
ant pleaded, 1. Not guilty. 2. Liberum tene-
mentum. 3. That the defendant committed
the supposed^trespass by the license of the
plaintiff.
To the second plea the plaintiff replied that
by a certain agreement, in writing, the defend-
ant bargained and sold the premises to the
plaintiff, and thereby agreed to give him a
good and lawful deed of the same ; by virtue
of which agreement the *plaintiff was [*236
possessed thereof, and continued possessed
thereof, until, &c. To the third plea the
plaintiff replied de injuria sua propria.
To the replication to the second plea there
was a general demurrer, and joinder in demur-
rer, which was submitted to the court without
argument.
Per Curiam. According to the decisions
in Jackson, ex dem. Ludlow, v. Myers, 3 Johns. ,
388, and Jackson, ex dem. Green, v. Clark, 3
Johns., 424, the agreement set forth in the
plaintiff's replication, although containing
words of bargain and sale, in prcesenti, imports
in law, nothing more than an agreement to
convey, as an executory contract, and does
not, ipso facto, transfer the title.
By the decisions in Suffern v. Townsend, 9
Johns., 35, and Cooper v. Stower, 9 Johns., 331,
a contract to sell does not, in itself, contain a
license to enter ; or, at most, it gives an implied
permission to occupy as tenant at will merely.
It is also well settled that the person having
title, that is, having a right to enter, is not
liable, in an action of trespass, for entering
with force, although liable to indictment for a
forcible entry. ( Wilde v. Cantillon, 1 Johns.
Gas., 123 : Hyatt v. Wood, 4 Johns., 150.)
The defendant is entitled to judgment.
Judgment for Hie defendant.
Agreement to convey does not transfer title. Cited
in-29 N. Y., 32 ; 35 N. Y., 514 ; 19 Abb. Pr., 457 ; 1
Rob., 96.
Trespass— One having title and entering by force,
not liable for. Cited in-9 Wend., 201 ; 73 N. Y., 534 ;
1 Lans., 242 ; 14 Hun, 163 ; 52 Barb., 211.
KERR «. SHAW AND SHAW.
Warranty of Quiet Enjoyment — To Constitute
Breach, Must be Actual Ouster — Considera-
tion
A warranty in a writing not under seal, for the
quiet enjoyment of land, must express the consid-
eration on which it is founded.
JOHNS. REP., 13.
1816
OLMSTKD v. STEWART.
236
A recovery in ejectment against the covenantee,
in not a breach of the covenant for quiet enjoyment ;
but there must be an actual ouster by writ of pos-
session.
Citations-S Johns., 210. 471 ; 5 Johns., 120.
THIS \vsi» an action of assumpnit, founded
upon a written agreement, dated the 9th
of December, 1811, by which the defendants
bound themselves to the plaintiff, in the penalty
of $1,000, as follows : That he, the plaintiff,
should have and hold a peaceable possession
of a certain farm, distinguished and known by
lot No. 10, in great lot No. 23, in Hardenburgh
patent, &c., which the said Kerr is to have
2IJ7*] possession *of one hundred acres on the
west part of said farm, and to possess the same
peaceably, with paying the rent due thereon ;
whereby we warrant and defend against all
and every person, except the lord of the soil.
The conditions of the above are as such that
the said Kerr is to call on the lord of the soil,
and take a lease in his own name, as soon as
may be convenient, within the term of sixty
days, then the above to be void, and of no
effect." %
The plaintiff .proved, at the trial, that the
consideration of this agreement was $450, paid
by the plaintiff, for which William Shaw, one
of the defendants, on the same day, assigned
to the plaintiff his right and title to the one
hundred acres of land described in the agree-
ment. This evidence, being objected to on
the part of the defendants, was admitted by
the judge, reserving the point. The plaintiff
then produced a judgment against William
Shaw, in the Supreme Court, docketed in
March, 1809,on which an execution was issued
and the land in question sold by the sheriff of
Greene, on the 10th of November, 1810, and
conveyed to E. Williams, who brought an
action of ejectment against the plaintiff, and
recovered judgment on the 6th or November,
1818 ; but the premises had never been yielded
up, and no writ of possession had ever been
issued. The plaintiff admitted that he had
not called on the lord of the soil for a lease, as
required by the condition annexed to the agree-
ment.
The counsel for the defendants objected to
the sufficiency of this evidence to entitle the
plaintiff to recover. But a verdict was taken
for the plaintiff, subject to the opinion of the
court. The case was submitted to the court
without argument.
Per Curiam. The agreement upon which
this action is founded is very inartiflcially
drawn, but it amounts, substantially, to a
promise or warranty of quiet enjoyment, by
the plaintiff, of the lot of land therein described
against all persons except the lord of the soil.
But according to the case of Sears v. Brink, 3
Johns., 210. the contract is void under the
Statute of Frauds. The agreement is not
under seal, nor is there any consideration ex-
pressed in the writing to support the promise ;
and in the case referred to it is decided that
the consideration, as well as the promise, must
be in writing ; and that parol evidence is not
admissible to prove the consideration. But if
2U8*] this 'objection was removed, there is
not enough shown to entitle the plaintiff to re-
cover in this action. If the agreement is to be
JOHNS. REP.. 18.
considered equivalent to a covenant for quiet
enjoyment.no sufficient breach has been shown.
This covenant is broken only by an eviction or
actual ouster. It relates to the possession
only, not to the title. There must, therefore,
be a disturbance of the possession in order to
amount to a breach of such a covenant. The
case of Waldron v. ATCarty, 8 Johns., 471, is
very strong on this point. In that case the
land. when sold and conveyed, was incumbered
with a mortgage, which was afterwards fore-
closed in chancery and sold, and purchased in
by the grantee in the deed ; and this was held
to be no breach of the covenant for quiet en-
joyment. The same principle is adopted and
confirmed by the case of Aorts v. Carpenter, 5
Johns., 120, where the court say it is a techni-
cal rule that nothing amounts to a breach of
this covenant but an actual eviction or dis-
turbance of the possession of the covenantee.
In the case before us there is, to be sure, a
judgment against the plaintiff, and nothing
wanting but a writ of possession to constitute
a breach of the promise. But this being a
technical rule, applicable to this covenant, the
covenantor ought not to stop short of an actual
ouster, if he means to rely upon his covenant ;
he has no right to make any compromise until
an actual breach has been shown. The de-
fendants are, accordingly, entitled to judg-
ment.
Judgment for the defendants.
Warrant \i of quiet enjoyment in writing not under
seal must state consideration. Cit«d in— 37 How. Pr.t
319 ; 6 Abb. N. S., 313 ; 1 Sweeny, 340.
Covenant of quiet enjoyment, action for breach of—
what must l>e snoiw. Overruled— 'A Denio. 214 ; 85 N.
Y., 512 : 5 Lans., 200.
Distinguished- 13 Hun, 565.
Cited m-2 Wend.. 584, n.; 7 Wend., 285 ; 4 Hill,
, 644 ; 5 Hill. 601 ; 46 N. Y., 372 ; 74 N. Y., 93 ; 6 Barb.,
I 170; IDuer. 197.
OLMSTED v. C. STEWART.
1. Negotiable Paper — Promissory Note — Parol
Evidence of Actual Consideration. 2. Judg-
ment against Evidence.
of C, and A, at^the same time, states to If that there
was not so much due C as the amount of the note,
to which statement B makes no objection, and B
afterwards, as holder of the note, hqjngs an action
tigainst A, A will be allowed to show what was
really due from him to C, and thus reduce the
amount to be recovered by B,who dm* not stand in
the situation of an innocent holder of a note, taking
it before it becomes due.in a regular course of busi-
ness.
IN ERROR, on certiorari to a justice's
court.
The suit in the court below was on a prom-
issory note executed bv Olmstead, the defend-
ant below, payable to Enos Stewart or bearer.
C. Stewart, the plaintiff below, as agent of E.
Stewart, had presented an order on the defend-
ant for the amount *of an account due [*2IJJ>
E. Stewart, and for which it was alleged that
the note in question was given. The defend-
ant produced witnesses to prove that the order
on which the note was obtained was a forgery;
but the justice, from his own inspection, de-
cided that the note was genuine. The defend-
ant then offered to prove that when he gave
003
2J9
SUPREME COUKT, STATE OF NEW YORK.
1816
the note he stated to the plaintiff that there
was not as much due as he gave the note for ;
that he had mislaid his papers ; that he would
give the note, and let it lie until he could find
his papers ; and then offered to prove that
there was only due E. Stewart $6.80, which
he had tendered. The evidence was rejected,
on the ground that the note became the prop-
erty of the plaintiff before it fell due ; and the
justice gave judgment for the plaintiff below
for the amount of the note.
Per Curiam. The judgment in this case is
clearly against evidence, with respect to the
handwriting of Enos Stewart to the order.
Two witnesses swore that they did not believe
it to be his writing ; and that he uniformly
wrote his name Steward, instead of Stewart ;
and the only evidence opposed to this was the
opinion of "the justice from comparing this
writing with other writing admitted to be gen-
uine. Whether the judgment ought to be re-
versed, on this ground, may be questionable.
But the testimony offered to show that there
was not so much due E. Stewart as the amount
of the note, ought to have been received.
The plaintiff does not stand in the character of
an innocent holder of a note, coming into his
hands in the regular course of business, before
it fell due. He took the note himself, and
without making any objections to the state-
ment made by the defendant ; he must, there-
fore, be considered as receiving it subject to
the examination to be made by the defendant
as to the state of the accounts between him and
E. Stewart. The note must be deemed to have
been given with this express understanding
and reservation. If the note had been taken
by the plaintiff himself, it would have altered
the case. The judgment must, therefore, be
reversed.
Judgment reversed.
Cited in-5 Wend., 23; 14 N. Y., 442 ; 46 Ind., 42.
24O*] *OSGOOD v. DEWEY.
Landlm'd and Tenant — Action for Use and
Occupation — Estoppel.
An action for use and occupation lies where the
holding is upon an implied as well as an express per-
mission of tha landlord.
A tenant who, after the expiration of and pay-
ment of rent under a parol demise, continues in pos-
session without any new agreement with the land-
lord, cannot, in an action against him for the use
and occupation of the premises, subsequent to the
expiration of the former term, dispute the title of
the plaintiff : and his subsequent holding1 will be
deemed to have been by the implied permission of
the original lessor.
Citation— 1 Esp., 57.
IN ERROR, on certiorari to a justice's
court.
The defendant in error brought an action
against the plaintiff in error, in the court be-
low, for use and occupation.
Dewey.the plaintiff below.demised.by parol,
certain premises to the defendant below, for
one year, ending the 31st of December, 1809,
at the rent of $9, which the defendant paid,
and continued in possession for three years,
without any new agreement, and without pay-
004
ing rent. The action was brought to recover
rent for those three years, and judgment was
given for the plaintiff below.
Per Curiam. There can be no doubt that
this action lies as well where the holding is
upon an implied as upon an express permission
of the landlord. The parol lease for the year
1809, and the payment of rent under it, are
acts which estop the tenant from disputing
the title of his landlord ; and. although no new
agreement was shown, in regard to the tenancy
for the last three years, the continued possess-
ion of the tenant, holding over, is characterized
by the previous lease, and must be deemed as
holding by implied permission of the original
lessor. (Harding v. Crethorn, 1 Esp., 57.) The
judgment must be affirmed.
Judgment affirmed.
Cited in— 1 Wend., 135 ; 7 Barb., 208 : 15 Barb., 36 ;
25 Barb., 248: Edm.,225; 4 Bos., 93; 6 Duer, 498; 5
Rob., 261 ; 7 Rob., 416 ; 2 Daly, 301 ; 2 Hilt., 543 ; 43
Mo., 178.
CHIPMAN v. MARTIN.
Landlord and Tenant — Recovery on Covenant to
Pay Rent — Satisfaction — Distress.
A recovery on a covenant for the payment of rent
is not, without actual satisfaction, an extinguish-
ment of the rent, and the lessor may, notwithstand-
ing such recovery, distrain for the rent in arrear.
Citations— 1 R. L., 436 ; 3 East, 258 ; 2 Binn., 152.
THIS was an action of trespass on the case,
brought on the 9th section of the Act
Concerning Distresses (1 R. L., 436), to recover
double damages for making a distress when no
rent was due. The cause was tried before Mr.
Justice Platt, at the Washington Circuit, in
June, 1815.
The defendant had, bv deed, executed on
the llth of December, *1809, granted [*241
certain lands in the town of Hartford, in the
County of Washington, to Chauncey Stewart,
in fee, reserving an annual rent of $93.61 ; the
first payment of which was to be made on the
llth December, 1811, and on that day in each
succeeding year, with power to the grantor to
distrain in case of non-payment. The deed
was, afterwards, assigned by Stewart to the
plaintiff, who went into possession. A judg-
ment was recovered in the Court of Common
Pleas for the County of Washington, which
was docketed on the 17th of March, 1813, by
the defendant against Stewart, in an action of
covenant, for $209.74. The breaches assigned
were for the non-payment of all the rent due
before the llth of December, 1811. On or
about the 26th of June, 1813, Chauncey Stew-
art, as bailiff of the defendant, distrained on
the premises, and took property to the value
of $250. Stewart was at the time and had long
been insolvent.
It was a question on the trial, to which a
considerable part of the evidence related,
whether the plaintiff had sufficiently connected
Chauncey Stewart with the defendant, as his
agent, to render the one liable for the acts of
the other ; but the judge was of opinion that
it was sufficiently made out ; and also that the
judgment in favor of the defendant against
JOHNS. REP., 13.
1816
CHIPMAN v. MAUTIX.
241
Stewart was an extinguishment of the rent
•charge, and that it was not necessary, in order
to produce that effect, that the judgment
should be satisfied. The jury, accord! n-ly.
found a verdict for the plaintiff for double the
value of the property distrained.
A motion was made to set aside the verdict,
and for a new trial.
Mr. D. Riuael, for the defendant, contended
that the judgment against Chauncey Stewart
was not an extinguishment of the right to dis-
train for the non-payment of the rent. The
lessor has three remedies, all or either of which
he may pursue, until satisfaction is obtained.
It is analogous to the remedies possessed by a
mortgagee. By the law, »s it stood at the time
judgment was obtained against Stewart, the
action on the covenant was an inferior remedy
to that by distress. That a subsequent remedy
should merge or extinguish a previous one, it
should be of a higher or superior nature. (1
Koll. Abr.. 470, 471, 640; 1 Burr., 9; 6 Co.,
44 ; Cro. Eliz., 804 ; 1 Dall., 418.)
Again ; even admitting that the security ob-
242*] tained by the judgment 'extinguished
the remedy by Distress, it cannot operate to
extinguish the right. If the right remains,
that is a sufficient protection against the 9th
section of the Act (1 N. R. L., 436) on which
this action is brought.
In Drakf v. Mitchell, 8 East, 251, one of
three joint covenantors gave a bill of exchange
for part of the debt, on which bill a judgment
was recovered ; but the judgment was held to
be no bar to an action on the covenant against
the three. Lord Ellenborough said : "A judg-
ment recovered in any form of action is but a
security for the original cause of action, until
it be made productive to the party ; and there-
fore, until then, it cannot operate to change
-any other collateral concurrent remedy which
the party may have." The action of covenant,
and the remedy by distress, are concurrent
remedies. (Bantleon v. Smith, 2 Binney, 146.)
Messrs. Skinner and Cowan, contra, contend-
ed that the remedy by distress was extin-
guished by the judgment in the action of
•covenant for the rent ; or that, at least, by that
action, the lessor had determined his election,
and could not proceed afterwards to distrain.
The acceptance of a bond for a parol contract
will extinguish their contract. (8 Johns. Gas.,
180 ; 2 Johns., 471.) So, if rent be reserved by
deed, though giving a bond by the lessee for
the rent will be no extinguishment of it, yet a
judgment obtained on the bond will be an ex-
tinguishment of it. This doctrine is to be
found in Higgens' case, 6 Co., 45, and is laid
down by Bullcr (Bull., N. P., 182), and Wood-
fall (Woodf. Tenant's Law, 412, 614.)
So, if the grantee of a rent charge (and this
is a rent charge) purchase part or the land,
the rent charge is extinct. (Littleton, sec. 222.)
If he resort to his personal remedy, by writ of
annuity, he shall be held to his election, and
cannot resort to his other remedy, by distress.
(Co. Litt., 144ft, 145 a, 1456.)
Suppose the party had taken his remedy by
distress, in the first instance, could he. in case
the cattle had escaped, have resorted to his
action of covenant for the rent ? The reme-
dies are alternative, not cumulative. (1 Chittv's
PI., 214; 1 Salk., 248; 1 Ld. Raym., 719.)
JOHNS. RKP., 18.
Analogous to this is the clause of re-entry for
non-payment of rent ; where, if the lessor
bring his action of covenant for the non-pay-
ment of the rent, he waives his right of entry
for the forfeiture. (Runn. on Eject., 80;
Crompton v. Munshul, M. 8.) A party cannot
maintain two actions on the same contract, or
instrument, but must make his election, and
be bound by it. The case put of a bond and
mortgage is different ; there are separate and
distinct remedies, by distinct instruments, and
operating differently, ^he point raised [*24.'i
here was not decided in Bantleon v. Smith, 2
Binney, 146; but the opinion of the Chief
Justice, is in favor of the plaintiff. He says :
" Nothing is plainer than that a man cannot
distrain for rent where no rent is due." Now,
the rent being extinguished by the judgment,
as rent, none is due ; but the lessor has his lien
on the land for the amount of the judgment.
In»tcad of rent in arrear, for which he might
distrain, he has a judgment debt which binds
the land, and the payment of which may be
enforced by execution. He has the land itself
for his security, instead of a remedy by dis-
tress.
Mr. Russell, in reply, said that the lease, in
this case, contained a clause of re-entry for
the non-payment of rent, in the usual form.
The case of an annuity, cited from Co. Litt.,
is distinguishable from the present. That was
the grant of an annuity, or yearly rent, to a
person, for which the land of the grantor was
charged with power to the grantee to distrain.
There the grantee had, also, at his election, the
personal remedy by writ of annuity. But
where land is granted in fee, reserving rent,
with a clause of distress, he cannot have a
writ of annuity.
THOMPSON, Ch. J., delivered the opinion of
the court :
This action is founded upon the 9th section
of the Act Concerning Distresses for Rent (1
R. L., 436), which declares that if any distress
and sale shall be made, for rent pretended to
be in arrear and due, when no rent is in arrear
or clue, the party so distraining, or for whom
such distress shall be made, shall be liable to
an action on the case, by the owner of the
goods distrained, who shall recover double the
value of such goods.
The lease by which the rent in question is
reserved, was given by the defendant to Chauu-
cey Stewart, and by him assigned to the de-
fendant. A judgment has been obtained upon
the covenant in the lease, against the original
lessee, for the same rent for which the distress
was made. But no execution has been issued
upon this judgment, or satisfaction in any
way obtained, and Stewart is insolvent. The
principal Question in the case is. whether this
judgment does, in any manner, take away or
impair the remedy by distress; and I am satis-
tit-il it does not. We must bear in mind that
the present action is to recover a penalty, and.
of course, all the rules applicable to the con-
struction of penal statutes are to be adopted.
Under such *rules of construction, it f*244
cannot be said that the rent was not due and
in arrear; nothing short of actual payment or
satisfaction, will meet the good sense and
sound interpretation of this statute. Thedoc-
244
SUPREME COURT, STATE OF NEW YORK.
1816
trine of extinguishment does not apply to this
case. The particular cause of action, for
which a judgment is obtained, is extinguished
or merged in such judgment. No action of
covenant could be brought against Stewart, for
the same rent for which the former judgment
was obtained. If Stewart had still remained
in possession, and the distress been made on
his goods, the unsatisfied judgment would, in
my opinion, have formed no obstacle to the
legality of such distress; much less color is
there for setting up a judgment against an in-
solvent, to discharge the present plaintiff from
the rent. The principle which governed the
decision of Dake v. Mitchell, 3 East, 258, is
very much in point. It is there held that a
judgment is but a security for the original
cause of action, until it be made productive in
satisfaction; and until then it cannot operate
to change any other collateral concurrent rem-
edy which the party may have. The judg-
ment, if Stewart was solvent, could only be
considered as additional security for, and not
as satisfaction of the rent; that still exists, and
is due and in arrear. Like the case of a bond
and mortgage, a judgment upon the bond will
not preclude the mortgagee from bringing his
action of ejectment, and recovering possession
of the land. All the principles applicable to
the case before us are noticed, and involved in
the decision of Bantleon v. Smith, 2 Binney,
152, which go fully to establish that the de-
fendant, in this case, had a double remedy for
his rent, one upon the covenant in the lease,
and one against the land; and that nothing
short of actual satisfaction will discharge
either. The direction of the judge to the jury,
that the judgment against Stewart was an ab-
solute payment and extinguishment of the
rent, was incorrect, and a new trial must be
granted, with costs to abide the event of the
suit.
New trial granted.
Cited in— 4 Cow., 575 : 5 Wend., 131 ; 5 Hill, 652 ; 1
Denio. 410; 38 Barb., 665; 1 Blatchf., 329; 2 Paine,
197 ; 48 Ind., 482.
245*1 *THE OVERSEERS OF THE POOR
OF THE CITY OF HUDSON '
THE OVERSEERS OF THE POOR OF THE
TO.WN OF TAGHKANAC.
Apprentices— Voidaf}le Indenture Owes Settlement
in Town — Town Cannot Object to Validity of
Indenture.
A binding by a voidable indenture, and a service
under it for two years, gives the apprentice a set-
tlement in the town in which he served ; and it is
not competent for the town to object to the validity
of the bindinjr.
Citations— 1 Roll Abr., S>8 ; Van SchaicK's Colon.
Law, 752; 3 Johns., 173; Burr., Sett. Cas., 91, No. 28.
TWO justices of the peace of the town of
Taghkanac, in the County of Columbia,
had made an order for the removal of Eliz-
abeth Heydon and her four children, paupers,
from that town to the City of Hudson. From
this order the overseers of the poor of the City
of Hudson appealed to the Court of General
Sessions of the Peace of the County of Colum-
bia, which, at its session in May, 1814, con-
60«
firmed the order of the justices. From the re-
turn to a ceriiorari to the Court of Sessions,
the following facts appeared:
About forty years ago one Catreen Race, an
iahabitant of the town of Livingston, in the
County of Columbia, charged one Adam Hey-
don, a freeholder and inhabitant of Hudson,
with being the father of a bastard child with
which she was then pregnant. Heydon mar-
ried her, but refused to cohabit with her, and
she continued to live in Livingston, and he in
Hudson, where he still resides. Three months
after their marriage, Catreen Race was deliv-
ered of a male black child (both parties being
white persons), which Heydon refused to ac-
knowledge. The child went by the name of
William Heydon, and was, when about two
years old, bound out by his mother, who alone
signed the indenture, to one Phillips, a me-
chanic, and inhabitant of Livingston, until he
should arrive to the age of twenty-one. The
child continued with Phillips, under the in-
denture, six years in the town of Livingston,
and about twenty months more in that part of
Livingston which is now Taghkanac, and then
removed with his master into the State of New
Jersey, where he completed his term of service;
and then returned to Taghkanac, where he
married and died, leaving a widow and four
children, the paupers in question.
Upon these facts the court below decided
that William Heydon, being born in lawful
wedlock, was the child of Adam Heydon; that
his residence followed his father's," and was,
therefore, in Hudson; and that, having trained
no legal settlement elsewhere, his widow and
children were chargeable to Hudson. The ad-
mission of evidence as to the color of William
Heydon, *and his offspring, was ob- [*246
jected to, but the objection was overruled by
the court below.
Mr. Bay, for the plaintiffs in error, con-
tended that the fact of non-access by the hus-
band, which was to be proved like all other
facts, was sufficient evidence of the illegiti-
macy of a child born after marriage. So the
fact of the child being black was, unless the
laws of nature were reversed, equally strong
to prove its illegitimacy.
Being illegitimate, the child follows the con-
dition of the mother.
Here was no interference by the overseers of
the poor, at the time the child was born, near-
ly forty years ago. The husband refused to
have any concern with it. The mother was
obliged to support the child, and, if necessary,
she might bind him to service. It is true that
the contracts of a feme covert are void as to all
things in which the husband can have any in-
terest. This case is peculiar. It is probable
that such an instance never before existed.
The husband denied that the child was his,
and refused to interfere in the care of it. If
the indenture was void, it was only as against
him. If he assented to the indenture, the
overseers of the poor could take no advantage
of any informality in it. From his silence and
acquiescence, his assent to the act must be pre-
sumed. The town can take no advantage of
any defect in the indenture. It was so decided
in the case of Rex v. The Inhabitants of St. Nic7i-
olas, in Ipswich, reported in Burr. Sett. Cas.
91, case 28.
JOHNS. REP., 13.
1816
WYLIE v. HYDE.
346
Again; under the colonial law, the settle-
ment of the child followed the place of its
birth.
Wr. E. Williams, contra, contended that
William Heydon, being born of the wife of
Adam Heydon, a freeholder and inhabitant
of Hudson, must be deemed to have belonged
to Hudson. The domicil of the wife is that of
the husband. The court below were the best
judges as to the color of the children, whether
it was of that degree of blackness as to render
it certain or probable that Adam Heydon,
was not the father of William Heydon. This
court cannot have the same evidence before
them.
Then, was there a valid indenture of Will-
iam Heydon to service? The binding must be
by writing, and by the father of the child, or
by the overseers of the poor. The mother, be-
1247*] ing *a married woman, had no power
to sign the indenture. True she is the natural
parent and guardian; but the law has declared,
in the case of bastardy, that the overseers of
the poor, for the purpose of binding to serve,
shall be the parents of the child. The indent-
ure, to be legal and valid, must be such an one
AS. if necessary, could be enforced.
YATES, J., delivered the opinion of the
court :
If the return had stated that Catreen Race,
a white woman, had been delivered of a mu-
latto child, instead of a black child, there
could be no question on the subject of illegiti-
macy, because it would have appeared impos-
sible for Adam Heydon, a white man, to have
been the father; and the law, in such case, would
pronounce the child a bastard; the presump-
tion in favor of its legitimacy being destroyed
by satisfactory prooi rendering it impossible
to be the husband's child. (1 Roll. Abr., 358.)
Though the description of the child is not as
definite as it might have been, yet I am in-
clined to think that enough appears, accord-
ing to the common acceptation of the language
made use of in the return, to show the real
situation of it; for it must be admitted that, in
common parlance, a black child means a ne-
gro, or mulatto child, and giving either of
those significations to the terms used in the re-
turn, would produce the same result as to its
illegitimacy; but whether Catreen Race was
delivered of a legitimate or a bastard child, is
rendered immaterial, as respects the liability
of the overseers of Hudson, because the
return states that the child was bound out
in the present town of Livingston, to one
Phillips, with whom he remained in that place
six years, and then went with his master to
that part of Livingston called Taghkanac, and
continued there twenty months, or until he
went with him to New Jersey. His last place
of residence, therefore, in this State, was Tagh-
kanac; but the binding, and first habitation,
under the indenture, were in the town of Liv-
ingston. By the colonial law (Van Schaick's
«•<!.. 753), if any person was bound an appren-
tice by indenture, or by deed, writing, or con-
tract, not indented and inhabited in any city,
town, parish, precinct, or district, such bind-
ing and inhabitation was adjudged a good
settlement. The child, in this case, was bound
in the present town of Livingston, and the
JOHNS. REP., 18.
binding and inhabitation together had taken
place in the same town, and not in Taghkanac;
so that, according to the principles contained
*in the decision of this court (3 Johns., [*iJ4H
193). with regard to the effect of the division
of towns as to subsequent paupers, the town
of Livingston would be chargeable with the
maintenance of the paupers in question; and
if William Heydon could even be deemed legit-
imate, yet the apprenticeship stated was suf-
ficient, under the above colonial law, to ex-
onerate the overseers of Hudson; for it cannot
be doubted that the binding of the child,
by the mother, under the circumstances of this
case, must be deemed competent to create a
settlement under the above Act; because the
indentures of apprenticeship, although not
signed by Adam Heydon, continued operative
during the whole term of service, from the
time the child was two years old, until he ar-
rived at the age of twenty -one years; so that
Heydon's assent, in fact, proved unnecessary,
and his subsequent acquiescence (if it had been
necessary) is conclusive evidence of such as-
sent.
If Adam Heydon had objected to the bind
ing, and rendered the contract or indenture
inoperative, for any period of time during the
apprenticeship, the overseers of the tow'n of
Taghkanac might have been justified in the
attempt to make the overseers of the poor of
Hudson chargeable; but the full and entire
service having been rendered, according to the
indenture, the objection taken by them ought
not to prevail; it is sufficient that there has
been a substantial compliance with the intent
and meaning of the Act of the colony. Ac-
cording to the principles laid down by Lord
Hardwicke. in Rex v. Tlte Inhabitant* of St.
Nicholas, in Ipswich (Burr. Sett. Cas., 91, No.
28), the town cannot be allowed to take advan-
tage of the alleged defect in the indentures.
It is enough that no interruption, for so long
a term of service as this case presents, has
taken place; and the binding and inhabitation
of the apprentice, under the contract and
indentures, according to the colonial law.
created a settlement which the return states to
have been in the town of Livingston. The
overseers of Hudson are, therefore, exonera-
ted from the the maintenance of his widow
and children, the paupers in question. The
judgment of the court below must, conse-
quently, be reversed, and the order of the jus-
tices quashed.
Order of the Session* quashed.
Cited in— 6 Cow., 588; 6 Cow., 669.
*WYLIE v. HYDE AND HYDE. [*24»
Practice in Justice Court — Special Verdict-
Judgment — Priority of Execution* — Depend*
on Actual Levy — Advertimnent.
The jury, in a justice's court, cannot find a special
verdict; nor can the Justice render any judgment
on such verdict.
The priority of executions in a justice's court, de-
pends not on the time of delivering the execution
to the constable, but on the time of actual levy.
It is sufficient, if a constable levy on un execution,
and advertise for sale, within twenty days after he
has received the execution, but sells at the expira-
GOT
SUPREME COURT, STATE OP NEW YORK.
1816
tion of the twenty days, provided the sale were
made before the return day of the writ; and such
sale will be valid ag-ainst an intermediate levy and
sale on another execution.
And the advertisement may be made on a day
subsequent to the levy, provided both were within
the twenty days.
Citations-2 Cai., 1&5; Sellon, 495; 3 Cai., 140; $35
Act, sec. 13.
IN ERROR, on certiorari to a justice's court.
This was an action of trover for a sleigh,
brought by the defendant in error against the
plaintiffs in error. The jury in the court below
found a special verdict, which stated that on
the 6th of August, 1813, the plaintiffs below
recovered judgment before a justice of the
peace, against Samuel Burnam, for $23.60;
that on the 6th of September, 1813, execu-
tion was issued thereon, and delivered to a
constable, who, on the 23d of September, lev-
ied on a sleigh, the property of Burnam, and
the same day advertised it to be sold on the 29th
of September then instant; at which day it was
sold at public vendue to the plaintiffs below,
but no indorsement was made on the execution
at the time of such levy; that on the 13th of
September, 1813, one Lynch recovered a judg-
ment before the same justice, against Burnam,
for $16.31; and that an execution was issued
thereon, and delivered to another constable,
by consent of Burnam, who made a levy on
the same day on the before-mentioned sleigh,
and indorsed the levy on his execution on that
day; and on the 2d of October gave notice that
the sleigh would be sold on the 9th of that
month, when it was. accordingly, sold, atpub-
Jic vendue to Wylie, the defendant below;
that notice of the prior levy was given by the
second constable to the constable who had the
first execution before his levy was made, and
he gave such notice to the plaintiffs below, be-
fore the sale, who directed him to sell; and at,
and before the second sale, notice was given
by the plaintiffs to the defendant of the prior
purchase; that the sleigh was never removed
from Burnam's barn until after the sale to the
defendant below, who then converted it to
his own use; and that the judgments and exe-
cutions, and the proceeding thereon, werefowa
fide, and without fraud; and that the value
of the sleigh was $25. On the verdict' being
presented to the court, the defendant below
objected to a special verdict being received ;
but the justice overruled the objection, and re-
ceived the verdict, on which he gave judg-
ment for the plaintiffs below for the value of
the sleigh, and costs.
25O*] *YATES, J., delivered the opinion of
the court :
I am inclined to think that no judgment can
be rendered on a special verdict in a justice's
<;ourt. The Act constituting those courts is
silent on the subject. The 29th section of the
Act for Regulating Trials by Issues and for
Returning Able and Sufficient Jurors, does
not apply to justice's courts. It ordains that
no jury, upon any trial thereafter to be had,
shall, in any case, be compelled to give a gen-
eral verdict, so that they find a special verdict,
and show the truth of the fact, and require the
aid of the court or justices.
By this, as well as the preceding sections of
the Act, it would appear that the rendering of
special verdicts is not extended to inferior
608
tribunals ; and according to the principles laid
down in Day v. Wilburn, 2 Caines, 135, the
privilege not having been specially given by
statute to jurors in justices' courts, it cannot
be exercised in those courts. That case states
that proceedings under the Ten Pound Act are
to be regulated entirely by that Act, and that
the Act Relative to Common Informers does
not apply to such proceedings.
This court have decided that a demurrer to
evidence is a proceeding inappjicable to a jus-
tice's court, because justices are not, generally,
acquainted with the science of law (3 Caines,
140); yet, should special verdicts be allowed in
such a court, the same legal knowledge would
be requisite to enable a justice to render judg-
ment on such verdict, because, in one instance,
the facts are admitted by the party, and, in
the other, they are found by the jury ; and the
only question in either case is a question of
law, to be determined by the justice. Besides,
it might be attended with unavoidable injus-
tice to a party ; for a special verdict might
be so defective that no judgment could be ren-
dered thereon. In such cases the practice of
other courts (Sellon, 495) (having the power)
is to award a venire Jacins de now. This a jus-
tice cannot do. The party, consequently,
would be without a remedy in that cause, and
would be obliged to commence a new action ;
it therefore appears to be manifestly unfit
and improper that special verdicts should be
allowed in justices' courts. But admitting
that the special verdict, in this instance, could
be received, the judgment rendered on it would
be erroneous.
It appears that the constable, under whom
the plaintiffs in error claimed, levied on the
sleigh the 13th of September'; and the constable,
under whom the defendant in error claimed,
*levied on the 23d of September. This [*25 1
was sufficient to entitle the plaintiffs in error
to recover in the court below, if the sub-
sequent proceedings of the constable were cor-
rect. The prior delivery of the execution in
favor of the defendant in error could not alter
the effect, because the date or time of issuing,
or delivery to a constable of executions issu-
ing from a justice's court cannot be material,
in determining what property is held by it.
Each town and city has a number of constables
in it, and if such a rule prevailed, it would
create the greatest confusion. The time of
making the levy only can control the right to
the property, and that alone can create the lien;
it then, and not before, is properly in custody
of the law.
The thirteenth section of the Twenty-five
Dollar Act declares that in case any constable
to whom any execution shall be delivered shall
not, within twenty days after receiving such
execution, levy the same on the goods and
chattels of the person against whom such exe-
cution shall be granted, and in ten days there-
after pay the debt, he shall be holden to pay
the amount of the execution. According to
this section, if the constable make the levy,
and advertise within twenty days, and sell
within the life of the execution, it is sufficient.
The execution in favor of the plaintiffs in er-
ror wa j delivered, and the levy made, on the
13th of September ; the constable advertised
on the 2d of October, within the twenty days,
JOHNS. REP., 13.
1816
TIFFANY v. DKIGGS.
251
and sold on the 9th, clearly before the return of I been allowed by the justice. It was, there-
the execution ; the proceedings were, there- ' fore, unimportant whether the court, of which
fore, perfectly regular ; and tin- «>n>table who . he was an attorney, was in session at the
made the second levy had no right (especially time the summons issued, or when the trial
after notice given) to sell the property ; and j took place : it is manifest that the proceedings
tlie above, in part, recited section of the Act is ! of the justice were erroneous in extending to
explanatory of, and must control the preced- ; him a privilege to which he was not entitled,
ing section of the Act, which ordains that the : The judgment must, therefore, be reversed,
•constable, after taking the goods and chattels
in his custody by virtue of such execution, I
shall immediately give public notice by ad-
v. rtisement, signed oy himself, &c.; it is evi-
dent that the term " immediately," thus used.
C in not be so constructed as to intend that, be-
( au<e the property first levied had not been
immediately advertised, the lien thereby
created should be destroyed, and that the
second levy should prevail. It is enough if the
advertisement is within twenty days, so that the
sale may be made at auv time before the re-
turn of the execution, 'f he judgment must be
reversed.
Judgment of rmeraal.
Cited in— 2 Cow., 423 ; 7 Wend., 390 : 13 Barb., 118.
1
] "TIFFANY v. DRIGGS AND LYNCH.
Practice in Justice Court — Joint Suit against At-
torney and Another — Abatement.
Where an attorney is sued in a justice's court,
Jointly with another defendant, he cannot plead in
abatement that the court, . of which be is an at-
torney. is then sitting.
Citation-1 N. R. L.. 387.
•
N EKROR, on certiorari to a justice's court.
rue plaintiff in error brought an action of
<uutitmp»it against the defendants, in the court
below, for work and labor ; the defendants
pleaded that Lynch, one of the defendants,
was an attorney of the Supreme Court, which
was then sitting. The plaintiff objected that
the Supreme Court was not sitting when the
•summons was issued, but the justice decided
that this was immaterial, and the plaintiff hav-
ing no further answer, the justice gave judg-
ment for the defendants.
Per Curiam. The first section of the Act for
the Recovery of Debts to the value of Twenty-
five Dollars (1 N. R. L., 387), gives cognizance
to a justice of the peace of all actions not ex-
<vrding $25, as well against attorneys and
other officers of any court of justice in this
State (except during the sitting of such court),
us others.
Before the passing of this Statute, it must
be conceded that an attorney in no court of
justice could be allowed to plead his privilege,
when prosecuted, jointly with others ; and the
above section does not enlarge this privilege so
as to extend it to such a case. It evidently in-
tends no more than that an attorney shall not
avail himself of the privilege be was entitled
to be/ore the passing of the Act, except during
the sitting of the court ; and the law remains
unaltered when he is sued jointly with an-
other.
Lynch having been prosecuted jointly with
Driggs, his plea of privilege ought not to have
Judgment reversed.
Cited in-3 Cow., 368 ; 45 N. Y., 453 ; 2 Sweeny, 812
•TIFFANY, qui tarn, &c.,t. DRIGGS. [*253
Penalty for Selling Strong Liquor* — Declara-
tion— May Unite Offense — Effect of Convic-
tion.
In an action to recover the penalty iriven by the
7tb section of the Act to Lay a Duty on Strong
Liquors, Ac. (Bess. 24, ch. 164), the plaintiff may
unite, in his declaration, any number of offenses,
but he can only recover the penalty for a single of-
fense; and a conviction in such actions is a bar to
nil prosecutions for offenses of the like nature com-
mitted before such recovery.
It is unnecessary for the plaintiff to prove the
precise day of committing the offense: and it will
be sufficient for the justice, in making up the rec-
ord of conviction, to insert the day laid in the dec-
laration, although no particular day was proved.
Citations— 7 Johns., 133;
sec., 8.
1 R. L., 181 ; $25 Act,
F
ERROR, on certiorari to a justices' court.
The plaintiff in error, who was also plaintiff
in the court below, declared, in debt, as well
for himself as for the overseers of the poor of
the town of Rome, against the defendant, for
selling, on the 1st of January, 1814, one gill of
gin, to be drank in the store of the defendant,
without having entered into such recognizance
as is required by the Act to Lay a Duty on
Strong Liquors, and for Regulating Inns and
Taverns ; and for selling like small quantities
of liquors to the plaintiff and others, on each
day in that month ; and for selling to the
plaintiff, on the 1st of Januray, 1814, one quart
of gin, without having the license required by
the said Act ; and for the like offenses on
every other day in the same month ; and con-
cluded with demanding $25 of debt, for the
penalty of one of the said offenses.
At the trial, the plaintiff offered to prove
that some time in the month of January, 1814,
the defendant sold, at his storehouse, half a
pint of gin to Job Sherman (one of the per-
sons to whom the defendant was charged in
the declaration to have sold liquor), to be drank
in his storehouse, without having entered into
the recognizance required by the Statute.
This testimony was objected to, unless the
witness would specify the particular day of
selling. The justice decided that the objection
was well taken, and nonsuited the plaintiff.
YATES, J., delivered the opinion of the
court :
This court have decided that the Act to Lay
a Duty on Strong Liquors, and for Regulating
Inns and Taverns, inflicts but one penalty for
the offense of selling liquors without a license,
be recovered in one action.
JOHNS. REP., 13.
N. Y. R. 5.
39
( Wathburn v.
609
SUPREME COURT, STATE OF NEW YORK.
1816-
M'Inroy, 7. Johns., 134.) The 18th section of
the same Act(l R. L., 181) ordains that when-
ever any suit shall be commenced, and a re-
covery had, for a penalty incurred by selling
strong or spirituous liquors, without license,
such recovery shall be a bar to all prosecutions,
for offenses of the like nature, committed be-
fore such recovery.
254*] *It appears by the return of the jus-
tice, that the evidence offered on the part of
the plaintiff went to show that the liquor, as
stated in the declaration, had been sold by the
defendant some day in January, 1814. This
ought to have been deemed sufficient, because,
by the above section of the Act, the recovery
would have been a bar to all previous offenses ;
and the particular day of the month was not
material or necessary to support the declara-
tion. It was enough that the evidence went
to prove one offense in the month of January,
as no more than one penalty could have been
recovered for any unmber of the like nature
previously incurred.
I am aware that, by the 8th section of the
Twenty-five Dollar Act, the form of the record
of conviction is giver*, and that the justice is
thereby required to insert the day when the of-
fense was committed ; but this does not render
it necessary that the evidence should state the
day with greater certainty than was done in
the present case, because proof of any day be-
fore the commencement of the action was suf-
ficient ; and the trial in this instance was in
January, 1815 ; and the witness stated the of-
fense to have been committed in the preced-
ing January, so that I can see no reason, ac-
cording to the most rigid construction of the
Act (being a penal statute), why the justice, in
making up the record of conviction, would not
have been authorized to insert any day in the
month of January, 1814, according to the dec-
laration and the evidence before him in sup-
port of it; and being thus enabled to comply
with the form prescribed by the Act, it is evi-
dent that the plaintiff ought not to have been
nonsuited on thegronnd that no particular day
was proved. The judgment must, therefore,
be reversed.
Judgment reversed.
Cited in— 15 Wend., 217 ; 3 Hill, 528 ; 46 N. Y., 659.
255*] *SLINGERLAND
v.
SWART, former Sheriff of the County of
Schoharie.
Sheriff — Cannot Levy on Goods and Chattels
after Return Day — Holding two Executions —
Application of Proceed* — Rule of Court —
Sheriff Chargeable with Interest — Assumpsit.
Where a sheriff has two executions njrainst the
same defendant, and having levied part of the
amount of the prior execution, proceeds, after the
return day of that execution, to make another levy,
he must apply the sum thus made in satisfaction of
the junior execution ; the latest period which the
law allows for the service of a writ being the day
on which it is returnable.
If the plaintiff, in the junior execution, obtain a
rule, directing the sheriff to pay over the money to
him, he is not bound to proceed by attachment, but
610
may maintain an action of assumpstit against the
sheriff.
And after such rule of the court, and demand
made by the plaintiff to pay him the money, the
sheriff, being clearly in default, is chargeable with
interest from the time of demand.
Citations— 2 Cai., 244 : 4 Johns., 450.
THIS was an action of aattumpsit, and was-
tried at the Schoharie Circuit in Novem-
ber, 1815.
The plaintiff gave in evidence exemplifica-
tions of two executions in the Supreme Court,
and the return thereto. 1. Afi. fa., tested the
13th of October, 1813, and directed to the
sheriff of Schoharie, against Joseph Becker
and Philip Serviss, for $4,000 of debt, recov-
ered by Sliugerland, the plaintiff in this cause,
and $14.43 damages and costs ; the judgment
was docketed on the 12th of October, 1813,
and the execution was returnable on the 15lh
of January, 1814. By an indorsement on the
execution, it appeared that it was received in
the sheriff's office on the 4th of January, 1814,
who was directed to levy debt, to $1,948.90 ;
plaintiff's costs, $14.43 ; and defendant's costs,
$3.31, with interest and fees. 2. A Ji. fa.,
tested the 13th of October, in the 28th year of
our independence, directed to the sheriff of
Schoharie, for $6,000 debt, recovered by
Samuel Lawyer, and $14.62 damages and
costs ; the judgment was docketed on the 22d
of October, 1813 ; the execution was return-
able on the first Monday of January, 1814.
This execution was received in the office of
sheriff on the 19th of November, 1813, and was
indorsed to levy $3,000 debt, $14.62 plaintiff's-
costs, and $3.31 defendant's costs, with inter-
est and fees. «On this execution was indorsed
a receipt, dated the 9th of December, 1813, for
$902.46 ; and also, another receipt, dated Jam!
ary 22d, 1814, for $446.87. 3. The returfc of
the defendant to these two executions, which,
was as follows : " I do humbly certify and
return, that the execution hereto annexed, it*
favor of Samuel Lawyer, was received by me
on the 19th of November, 1813 : I received
direction from the plaintiff, at the same time,,
not to proceed until further orders from him.
On the 3d day of January, 1814 (the return
day thereof), T was directed by the plaintiff,
and, likewise, did levy on certain goods be-
longing to *the defendant, in the de- [*2£>6
fendant's store, which were, afterwards, sold
by me for $446.87, which sum is indorsed by
the plaintiff on said execution. That I went
on that day to another store of the defendant's,,
about four miles from the first store, with in-
tent to make a further levy on said execution,
but did not arrive there until after midnight ;
and, the door being locked, I returned to my
lodgings, with intent, next morning, to go
there again to make seizure. Next morning,
before I started to go to said store, I received
the other execution in favor of Douw B. Sliug-
erland (the plaintiff in this cause), hereto an-
nexed. I then made the seizure of the goods
in said store, and the sales thereof produced
$508, which 1 have on hand ready to bring
into court, or to pay over, as I shall be direct-
ed ; not being advised how to pay over the
same, and humbly ask the aid and direction of
the court in the premises." Signed by Daniel
Douw, under-sheriff, for the defendant.
JOHNS. REP., 13.
1816
SMITH v. WARE
2.-.0
The defendant then gave in evidence a cer-
tified copy of a rule granted by this court, on
the loth of January. 1814, in the cause of
Becker v. Serving, at the suit of Slingerland. by
which proceedings on the execution in that
cause, against Serviss, were stayed until the
further order of the court. Proof of the ser-
vice of this notice on Douw, the under-sheriff.
was given. The plaintiff then gave in evi-
dence an order of this court of the 18th of
January, 1815, by which the former order was
vacated, and the sheriff directed to pay over
to the plaintiff, in that suit, the moneys col-
1 by him. Service of a copy of the order
on Douw, the defendant's deputy, was proved,
mid a demand of the sum of $508, mentioned
in the return to the executions, before suit
brought. A verdict was found by the jury for
tin- plaintiff, for that sum, with interest from
the time the demand was made.
The cause was submitted to the court with-
out arument. XJ|
Per Uttriam. It is not necessary, in this
case, to decide whether Lawyer's execution
was fraudulent and void, so as to give priority
to the plaintiff's, because no more is claimed
of the sheriff than the avails of the property
levied on after the return day of Lawyer's exe-
cution ; and there can be no possible ground
upon which the recovery, to this extent, can
be resisted. It is, certainly, a principle not to
b« questioned, that a sheriff cannot levy an
execution upon goods and chattels after the
957*] return day *is passed. The latest
period which the law allows for the service of
process is the day on which it is returnable.
(2 Caines, 344 ; 4 Johns., 450.) »It is not pre-
tended by the defendant that he has paid over
the money to Lawyer ; and, indeed, the return
made by him. upon that execution, shows he
has not paid it over, He, therefore, has not
been misled, or in any way prejudiced, by the
rule of January Term, 1814. And although
the plaintiff might, under the rule of January
Term, 1815, have compelled the sheriff, by
attachment, to pay over the money to him,
this does not take away his remedy by action.
Nor can there be any objection to the recovery
of the interest, as found by the verdict, after
the order of the court directing the sheriff to
pay over the money to the plaintiff, and a de-
mand made upon him for the same. He was
clearly in default, and ought to be charged
with interest on the money thus wrongfully
withheld. The plaintiff is, accordingly, en-
titled to judgment for $534.00, as found by
the jury.
Judgment for the plaintiff.
Cited in-5 Cow., 815 ; 64 N. Y.. 113 ; 19 Hun, 017.
SMITH tr. WARE.
Real Property — Conveyance of—" Supposed to
Contain " Certain Quantity — Grantor not
if Quantity be /xw*.
Whore land is sold, and described In the deed as
"supposed to contain" a certain quantity, and a de-
flrifiiey U afterwards discovrn-il, tli«-rv Is no obli-
gation on the irrantor to compensate the jfrantoe
.I-ii s - REP , 13.
for such deficiency, and a promise to pay for the
same is without consideration, and will not support
an action of oww/njxril.
Citations-3 Bos. & P., 219.
IN ERROR, to the Court of Common Pleas
of the County of Washington.
This was an action of astumptnt, brought in
the court below by Smith, the plaintiff in
error, against Ware, the defendant in error.
The declaration consisted merely of the money
counts, to which the defendant pleaded non
a»»umpsit.
The plaintiff claimed compensation for a de-
ficiency in the quantity of land of a certain
farm sold by the defendant to the plaintiff.
At the trial, the plaintiff read in evidence a
deed from the defendant to the plaintiff, dated
the 29th of April, 1807, by which the defend-
ant, for the consideration of $419.50, granted
to the plaintiff a certain lot of land, described
as follows : " All that certain piece or parcel
of land, situate, lyinir and being in the County
of Washington, ancf town of Bolton, being
*the west part of lot No. 9, in a tract [*258
of land granted to Wheeler Douglass, by letters
patent, the 18th of AprM, 1794, bounded, &c.,
supposed to contain ninety-three acres." The
plaintiff then proved that a surveyor had been
employed, and paid by the defendant, to sur-
vey the land which had been taken off from
the west end of the lot sold by the defendant
to the plaintiff, by the survey made of the
State Lands, by the direction of the Surveyor-
General, for the purpose of ascertaining the
quantity so taken off ; both parties attended
the survey, and, also, two chain-bearers chosen
by them : the parties pointed out the lines
which were run by the surveyor, and it was
ascertained that the quantity taken off amount-
ed to twenty-two acres, two rods and four
perches ; ana it was ascertained, at the same
time, that the original boundaries would not
include the quantity of ninety-three acres, but
fell short flve or six acres. The plaintiff
offered to prove a recognition, by the defend-
ant, of his liability, and a promise to pay for
the deficiency ; but the evidence was objected
to, and a nonsuit applied for ; and the court
decided that the evidence was inadmissible,
and that the plaintiff should be nonsuited, on
the ground that there was no consideration for
the promise of the defendant. The plaintiff
refused to be nonsuited, and excepted to the
opinion of the court ; and the cause being left
to the jury, a verdict was found for the de-
fendant.
A bill of exceptions was received, and the
cause brought before this court by writ of
error.
Mr. Wendell, for the plaintiff, contended that
the moral obligation to return the money was
a sufficient consideration to support the prom-
ise ; and he relied on the cases of Howe v. Bark-
er, 3 Johns., 506, and lloughtaUng v. Lewis, 10
Johns., 297, as in point.
Mr. Z. R. Sliephtrd, contra, contended that
if the defendant promised under an ignorance
of the law and the fact, he ought not to be
bound. If the court below have decided cor-
rectly, it is sufficient, whether the reasons as-
signed by them for their decision be sound or
not. The covenant can raise no implied as-
sumpsit, and where there is a covenant, at-
611
258
SUPREME COURT, STATE OP NEW YORK.
1816
sumpsit will not lie. (3 Johns., 508, 509 ; 10
Johns., 287 ; 2 Caines, 417 ; 1 Johns., 414, 440.)
If the plaintiff can recover at all, it must be
on the new promise ; and on that the plaintiff
should have declared specially. There is no
consideration for that promise,
259*] *Mr. Wendell, in reply, said that the
case of Howe v. Barker showed that the form
of declaration, in this case, was sufficient for
the plaintiff.
SPENCER, J., delivered the opinion of the
•court :
It cannot be pretended that the defendant
was under any moral obligation to pay for the
deficiency in the quantity of land sold and
conveyed to the plaintiff. There is no pretense
of any fraud in relation to the sale, and the
deed is very explicit in its terms. The land
f ranted was truly 'described, and it is evident
rom the deed, that the parties do not contract,
in reference to any specific quantity of land ;
for the deed states that the tract is supposed to
contain ninety three acres. There would be
no mutuality between the parties, if it were to
say that the defendant was morally bound to
make up any deficient quantity, because it is
very certain that, had there been an overplus,
the plaintiff could not have been compelled to
pay for the excess. We have a right to infer
that the deed contains no covenant, of war-
ranty ; the defendant, therefore, sold, and the
plaintiff agreed to take the land, under a con-
veyance containing no stipulations, either as
to quantity or title. Under these circum-
stances, a promise to pay Tor any of the land
included in the Surveyor-General's survey was
without a consideration.
There is much nice learning in the books,
upon the point of moral obligation, and as to
•what is or is not a sufficient consideration
to uphold a promise. The result of all the
cases on this head is, I think, admirably
summed up in a note to 3 Bos. & P., 249. "An
express promise, therefore, as it should seem,
can only revive a precedent good considera-
tion, which might have been enforced at law,
through the medium of an implied promise,
had it not been suspended by some positive
rule of law ; but can give no original- right of
action, if the obligation on which it is found-
ed never could have been enforced, at law,
though not barred by any legal maxim or stat-
ute provision."
The judgment, in this case, must be af-
firmed.
Cited in-24 Wend., 99 ; 1 Hill, 538 ; 26 N. Y., 610 :
2 Barb., 425; 13 Barb., 369, 508; 20 Barb., 154; 27
How. Pr., 335; 42 How. Pr., 336 ; 2 Sand., 314; 1
Sweeny, 483 ; 38 N. J. L., 387 ; 24 Wis., 207 ; 31 Wis.,
256.
26O*] *BATES v. SHRAEDER.
1. Descent — Reversion Expectant after Determi-
nation of Estate by Curtesy — Next Heirs. 2.
Waste — Does not Lie against Assignee of Ten-
ant by Curtesy.
Where A is seised of a reversion expectant on the
determination of the life estate of a tenant by the
curtesy. as son and heir of B, the wife of the tenant
by the curtesy, and in whom was the fee of the
612
land, A does not become a new sf irpes, or stock of
descent ; but a person claiming- the reversion must
deduce his title immediately from B, the person
who was last actually seised in fee of the land.
Therefore, the eldest son of the eldest uncle of A
will not inherit, but ,the brothers and sisters of B,
and their representatives, are the next heirs, ac-
cording to the provisions of the Statute of Descents.
An action of waste does not lie by the heir against
the assignee of the tenant by the curtesy, but only
against the tenant himself.
Citations— 1 Inst., 54 ; 2 Inst., 301 a ; 3 Co., 23 ; Sess.
36, ch. 56, sees. 6, 7.
IN ERROR, on certiorari to the Court of
Common Pleas of the County of Dutchess.
This was an action of waste. The declara-
tion stated that Elizabeth Graham was seised
in her demesne, as of fee, in certain premises,
in the town of Fishkill, which are described
by nietes and bounds, and contained twenty-
five acres ; and being so seised, she married
Duncan Graham, and, during the coverture,
they had a son born, John Graham, by which
marriage, and birth of a son, Duncan Graham
became entitled to the premises as tenant by
the curtesy, the reversion being in the said
Elizabeth and her heirs ; that Elizabeth Gra-
ham died, whereby her son, John Graham, be-
came entitled to the reversion of the premises,
as heir to his mother ; that John Graham died
without issue, and without leaving any brother
or sister, or any legal representative of such
such brother or sister, and that the plaintiff be-
came entitled to the reversion as heir at law of
John Graham; he, the plaintiff, being the old-
est son of John Bates, deceased, who was the
oldest brother of Elizabeth Graham, and the
oldest uncle of John Graham ; that Duncan
Graham, duriag the continuance of his estate
as tenant by the curtesy, in the year 1809, as-
signed his estate in the premises to the defend-
ant, who, being in the possession thereof, did
wrongfully and unjustly make waste, sale,
and destruction, in the whole of the said
premises, by destroying and changing the nat-
ure of the land, &c. ; by felling timber, &c.,
and felling divers trees, &c. , to the disinher-
ison of the plaintiff, and against the form of
the Statute in such case provided.
To this declaration there was a general de-
murrer, and joinder in demurrer.
Mr. J. Tallmadge, in support of the demur-
rer, contended that John Graham did not con-
stitute a stock of descent ; for, as the tenant by
the curtesy was still living, the descent was
supended ; and for this, the case of Jackson v.
Hendricks, 3 Johns. Cas., 214; 2 Bl. Com.,
209, 227, n. 13, 212; 2 Woodes, 252-254; 2
Wils., 47; 2 Co. Litt., 241 b.. was an
*authority in point. In the action of [*261
waste, the plaintiff must set forth his title spe-
cifically and definitely. (2 Saund., 234; 6
Com. Dig., Waste, C, 4, 518.)
Again ; the heir at law cannot bring this ac-
tion against the assignee of the tenant by the
curtesy, for the privity remains between the
tenant by the curtesy and the heir. (7 Bac.
Abr., 267, 268, Waste, H; 2 Inst., 800, 301,
302 ; Fitzherb., 129, F, 128,' A ; Co. Litt., 54
a, 316 a.) Our Statute (1 N. R. L., 62, sess.
10, ch. 6, sec. 3) for preventing waste, is a
transcript from the Statute of Gloucester. 6
Edw. I., ch. 5 ; and though the Statute gives
a remedy for the grantee of the reversion,
against the tenant or his assignee, yet no
JOHNS. REP., 13.
1816
BATES v. SHRAEDER.
261
remedy is provided where the heir keeps the
reversion against the assignee of the tenant.
(1 Cruise's Dig., 124 ; Curtesy, ch. 2, sec. 32 ;
2 Bac. Abr., Curtesy, E.)
Should it be said that the 33d section of the
Act for the Amendment of the Law, which
gives an action of waste, or trespass, to the re-
mainderman, or reversioner, for any injury
done the inheritance, notwithstanding any in-
tervening estate for life, or for years (1 N. R.
L., 527, sess. 38. ch. 56, sec. 33), supplies a J
remedy for this case, it may be answered that
by the" construction given to that section of the
Act by the court, in the case of Lin'ngnton v.
Haywxxl. 11 Johns., 429. the difficulty of the |
intervening estate only is removed, as between
the remainderman or reversioner and the ten-
ant ; and the* action of waste lies only against
the tenant, though trespass may be brought
against a stranger.
Mr. P. Ruggle*, contra, contended that the
title was sufficiently set forth. The declara-
tion avers that the plaintiff was the eldest son
of John Bates, who was the eldest brother of
E. Graham, and the oldest uncle of John Gra-
ham, though it is silent as to there being other
brothers or heirs. If the defendant meant to
avail himself of the existence of such a fact,
he should have traversed the facts in the dec-
laration. It was not a matter to be pleaded in
abatement. (Com. Dig., Abatement, E, 8, E,
10.)
The Statute of Descents (Sess. 9, ch. 12,
sec. 4; 1 N. R. L., 52) provides that nothing
therein contained shall be construed to bar or
injure the right or estate of a husband or ten-
ant by the curtesy, or a widow's right of dow-
er. Admitting the doctrine as to descents, still
there is that reversionary interest in the plaint-
iff which entitles him to this action.
It is true that the action may be maintained
by the heir against the tenant by the curtesy,
notwithstanding he has assigned his interest ;
but the heir has his election to bring his action
against the assignee. Coke (Co. Litt. , 24 a;
6 Com, Dig., Waste, C. 4) says : "If the heir,
either before the assignment had granted, or
after the assignment doth grant, the reversion,
&c., the stranger shall have an action of
>2*] *waste against the assignee, because, in
both cases, the privity is destroyed ; in all oth
er cases the action or waste shall be brought
•gainst him that did the waste (for it is in the
nature of a trespass), unless it be 'in the case
of a ward." The lord may elect the assignee
of the tenant to be his tenant.
This case comes within the Act which gives
the remainderman or reversioner an action of
waste and trespass for any injury done to the
inheritance, notwithstanding an intervening
estate for life or for years.
Suppose a recovery in an action against
Duncan Graham, for the place wasted, and
treble damages, what remedy would he have ?
The plaintiff elects to bring his action directly
against the person who has done the injury,
and who ought to pay the penalty.
YATKS, J., delivered the opinion of the
court :
This is an action of waste, brought by the
plaintiff against the assignee of the tenant by
the curtesy. The declaration states that the
JOHNS. REP., 18.
plaintiff's right of inheritance to the locu* in
quo is derived from John Graham, as the per-
son last seised. It also states the previous
seisin of Elizabeth Graham, his mother, who
died, leaving her husband tenant by the
curtesy, from whom the defendant holds the
premises by assignment ; that John Graham
derived his inheritance from the mother ; and
that both died without lawful issue. The
waste is specially stated, and it then concludes
that the plaintiff is injured, and has sustained
damages to the value of $2,000; and, therefore,
he brings suit, &c.
To this declaration there is a general de-
murrer and joinder ; and in support of the de-
murrer it is insisted that John Graham was
not so seised as to form a new stock of de-
scent, and that the plaintiff is not heir at law ;
and if he be such heir, that waste does not lie
by him against the assignee of the tenant by
the curtesy.
From the facts set forth in the declaration,
it docs not appear thai this is a case not pro-
vided for in our Statute to regulate descents ;
and the common law governs only in cases
not provided for by that Act. It is stated
that the inheritance is claimed through John
Graham, the son, who died in the lifetime of
his father, the tenant by the curtesy. There
can be no doubt that this tenancy suspended
the descent, so that the inheritance could not
*be transmitted during the continu- [*2<JIJ
ance of that estate, as no stock of descent,
during its existence, could be found by John
Graham. And as it does not appear, by the
declaration, when the mother died, or whether
she left any other brother or sister besides the
plaintiff in this cause, a sufficient title to the
inheritance is not shown to sustain the action.
But admitting that the plaintiff is entitled
to the inheritance, it is clear he cannot seek
redress from the present defendant. (I Inst.,
54 ; 2 Inst., 301 a.) At common law, the as-
signee of the tenant by the curtesy cannot be
sued in waste. The action ought to have
been brought against the tenant himself by
the heirs ; and the books state that thereby he
shall recover the lands against the assignee,
for the privity which is between the heir and
tenant by the curtesy. (Walker's case, 3 Co.,
23.) So, if tenant in dower, or tenant by the
curtesy, grant over their estate, yet the privity
of action remains between the heir and them,
and he shall have an action of waste against
them for waste committed after the assign-
ment ; but if the heir grant over the reversion,
then the privity of action is destroyed, and
the grantee cannot have any action of waste
but only against the assignee ; for between
them is privity in estate ; and between them
and the tenant in dower, or the tenant by the
curtesy, is no privity at all ; so that, in law, if
the assignee is suable in waste, there must be
a privity of estate ; unless, then, the action
against the assignee is warranted by the stat-
ute, it is improperly brought in this instance.
The section in the Act (sess. 36, ch. 56) does
not authorize this action, for, according to
the decision in Livingston v. Haytcood, it gives
the reversioner or remainderman and action
of waste or trespass for any injury done to the
inheritance, notwithstanding an intervening
estate for life or for years ; it gives the action
613
263
SUPREME COURT, STATE OP NEW YORK.
1816
of waste where waste is the appropriate rem-
edy, ana trespass where trespass is the ap-
propriate remedy, but does not alter the law
as to the requisite privity of estate between
the heir and the tenant by the curtesy, so that
the principle continues the same as to his as-
signee, who, without such privity, is not
liable in waste.
The 6th and 7th sections of the Act for Pre-
venting Waste contain no authority for this
action ; the 6th gives the right of action to the
heir at any time during or after his minority,
and the 7th section declares tenants for life,
264*] or for another's life, *f or term of years,
or any other term, liable to waste after grant-
ing their estates, if they take the profits.
Neither of those sections can be so construed
as to alter the law on the subject, so as to give
the heir an action of waste against the assignee
of the tenant by the curtesy. It would seem
that such an action can be brought in no case,
except where the heir h»s ganted over the re-
vision ; because, as before stated, by the grant
the privity of the action is destroyed, and the
grantee cannot have any action of waste but
only against the assignee ; for as between
them there is privity in estate ; but no such
privity, after the grant, exists between the
assignee and the tenant by the curtesy. It is,
therefore, evident that the action of waste, in
this instance, cannot be maintained by the heir
against the assignee. The law is decidedly
against it ; and the principles in relation to
tenants by the curtesy ought to be strictly ap-
plied, in an action like the present, because
the judgment operates as a penalty, the re-
covery being not only for the place wasted,
but treble damages. The defendant is, con-
sequently, entitled to judgment.
Judgment for the defendant.
Cited in— 16 Johns., 99; 12 Wend., 72: 2 Denio,
25 ; 10 Barb., 401 ; 11 Barb., 64 ; 3 T. & C., 61.
MARTIN ET AL. v, WILLIAMS.
1. Pleading and Practice — Debt — Declaration
Containing Good and Bad Counts — Assign-
ment of Breaches in Replication. 2. Award —
May be Void Pro Tanto — An Award can-
not Require One Party to do an Illegal Act.
Where there is a general demurrer to a declara-
tion containing both good and bad counts, judg-
ment will be given for the plaintiff.
So, where several breaches are assigned ifl a dec-
laration, some of which are well assigned, and
others not, and the defendant demurs generally,
judgment will be given for the plaintiff.
So, where the plaintiff assigns breaches in his
replication, some of which are well assigned, and
others not, and the defendant demurs generally,
judgment will be given for the plaintiff.
Where part of an award, which is void, is not so
connected with the rest as to affect the justice of
the case, the award is void only pro tanto.
An award requiring one of the parties to the
submission to cause a third person, whom it does
not appear he has any right to dispossess, to de-
liver the possession of land to the other party, is
void.
Citations— 3 Cai., 89 ; 6 Johns., 65 ; Kyd. on Awards,
280.
THIS was an action of debt. The plaintiffs
declared on a bond, dated the 2d of Au-
614
gust, 1814, in the penalty of $10.000. The
defendant craved oyer of the bond, the con-
dition of which recited that a contention sub-
sisted between the parties respecting the title
to two hundred acres of land, being part of
lot No. 84, in the town of Whitehall, in the
County of Washington ; and that two actions
of ejectment were proceeding in this court, on
the demise of the plaintiff — the one against
Stephen Wood, as tenant in possession of
some part of the said two hundred acres, and
*against Wait Webster, as tenant in [*265
possession of some other part thereof ; and an
action of trespass for the mesne profits against
Reuben Pratt, against, whom a recovery had
been had in an action of ejectment, on the
demise of the plaintiffs, for part of the said
two hundred acres ; and an action of eject-
ment on the demise of the defendant, against
the said Reuben Pratt, as tenant in possession
of some part of the said two hundred acres ;
which said title and actions, and the subject
matters thereof, and all difference, contention,
and demands, concerning the same, and the
profits of the said land, the parties have
agreed to refer to the award of three persons
named therein ; and that it was agreed that
the arbitrators, in hearing the proofs and alle-
gations, and in making their award, should
proceed and govern themselves according to
the rules of law and equity as far forth as the
same might be applicable to the subject mat-
ter of the submission; and that the arbitrators
should award costs to be paid by the parties
respectively, against whom they should de-
termine, having respect to the several actions
above named ; and that the arbitrators should
meet on the 12th of September, after the dale
of the bond ; therefore, the condition was,
that if the defendant, his heirs, &c., should
observe, &c., the award, &c., which the said
arbitrators, or any two of them, should make
in writing, under their hands and seals, ready
to be delivered to the parties, on or before the
1st of March next, then the obligation to be
void, &c. And the defendant then pleaded
that the arbitrators mentioned in the condition
of the bond, or any two of them, did not
make their award in writing, under their
hands and seals, of and concerning the prem-
ises, and ready to be delivered to the parties,
on or before the 1st of March, 1815.
The plaintiffs replied that the arbitrators
mentioned in the condition of the bond met at
Salem, in the Count}7 of Washington, on the
23d of February, 1815, and that two of the ar-
bitrators made their awards in writing, unuer
their hands and seals, ready to be delivered,
whereby they awarded as follows : 1st. That
the title of the two hundred acres of land in
question (setting forth their boundaries) belong-
ed to the plaintiffs, as heirs at law of Moses Mar-
tin, deceased, and not to the defendant, as heir
at law of John Williams, deceased; also that the
said actions should be discontinued ; and that
the defendant cause the said Wait Webster to
deliver up to the plaintiffs the possession of
*so much of the said two hundred acres [*2<>6
as was in his possession on or before the 7th of
April then next ; and that the defendant should
pay the plaintiffs $63, being the profits of so
much of the land as was in the possession of
Webster; and $72.35, being the costs of the
JOHNS. REP., 13.
1816
MAKTIN ET AL. v. WILLIAMS.
266
action of ejectment against Webster ; and that,
in like manner, he cause Su-phen \Vood to de-
Jiver up his possession to the plaintiffs, and
pay them $189, for the profits of the land, and
$72.85, the costs of the action of ejectment
•against Wood ; and also, that the defendant
-should pay to the plaintiffs $242. for the prof-
its of so much of the two hundred acres as
was in the possession of Reuben Pratt, and
$27.29, the costs of the action for ine*ne profits
against Pratt ; and that the defendant should
pay to the plaintiffs $10.45, the costs of de-
fending the action of ejectment, on the demise
of the defendant, against Pratt ; and that the
defendant should pay to the plaintiffs the sum
of $92.12, being the cost of the arbitration ;
the said several sums to be paid by the first day
of April then next, with interest. Of this award
the defendant had notice ; and the plaintiffs
aver that the two hundred acres of land, sub-
mittiHl to the arbitrators, are the same two hun-
dred acres described in the award ; and that
they were claimed by, and belonged to, some
of the plaintiffs, as heirs at law of Moses Mar-
tin, deceased, and to the others in the right of
ilu-ir wives, being also heirs at law of Martin ;
.•HI 1 that the defendant claimed as heir at law
of John Williams, deceased ; and that Wood
.and Webster held under the defendant, and
were his tenants; and that the actions of eject-
ment against them were brought by the plaint-
iffs to recover possession of so much of the
said two hundred acres as were in the posses-
sion of Wood and Webster; and that those ac-
tions were defended by the defendant in this
-uit ; and the plaintiffs further aver that, after
the making of the award, the said several ac-
tions, pending in the Supreme Court, have
ceased, and been no further prosecuted by the
plaintiffs, or either of them, or either of their
means, consent, or procurement ; nevertheless,
the plaintiffs further aver, &c. ; assigning
breaches, in which the words of the award are
pursued, and the performance by the defend-
ant, of all the particulars of the award, sever-
ally negatived.
To this replication there was a general de-
murrer, and joinder in demurrer.
!2«7*J *.«/-. Z. R. Mifpherd, in support of
the demurrer, contended that the averments in
the replication were not supported by the
.award. The plaintiff has endeavored to' sup-
port the award by averring facts dehors the sub-
mission. An award is in the nature of a judg-
ment, and must be expounded by itself. (Bac.
Al>r., Arbit. and Award, E; 9 Johns., 38; 2
Johns., 62.) It cannot be aided by the aver-
ment of matters extrinsic.
Again ; if any part of the award is bad, it is
fatal on demurrer, though the plaintiff, in his
replication, assign breaches to the whole. (2
Caines, 235 ; 2 Wils., 267 ; Doug., 684.)
The a ward, in this case, is neither certain nor
final. It does not appear what land, or how
much, the tenants respectively held, so that it
•could be known how much was to be given
up.
The award imposes a duty on the defendant
which he cannot lawfully perform, namely,
that he should cause the tenants to quit the
possession. The arbitrators first award that
i la- defendants have no right to the land, and
next, that they should turn the tenants out of
.JOHNS REP., 13.
j possession. An award that a stranger to the
j submission shall do an act, is void. (1 Roll.
Abr., 240.) On the same principle, an award
that the party shall cause a stranger to do an
act, must be void.
Again ; the award directs the defendants to
pay the costs of a certain suit brought by them
against Pratt ; but it ought to appear that the
plaintiffs had some interest in the thing award-
ed.
Jfr. Crary, contra, contended that the aver-
ments in the replication were merely to render
that certain in the submission, or award, which
might otherwise be uncertain. They go to
support the award, and do not contradict it ;
and the rule is, that an averment may. in some
cases, be admitted to support an award. (K yd
on Awards, 205; 1 Ld. Raym., 612.) It is
enough if there is anything in the submission
to justify the averment. Even if the aver-
ments are not supported by the submission and
award, it is very questionable whether the de-
fendant can take advantage of it. He ought
to have craved oyer ; and, after setting them
forth, he may have demurred. (1 Chitty on
PL, 415, 416; Ld. Raym., 1135; 2 Saund.,
60, ft. 3, 066, n. 1 ; 8 Johns.. 410.)
In Adtimx v. }\'ilt»nf//tbi/, 6 Johns., 65, the
court said, that if, in an action of covenant,
some of the breaches were well assigned, and
some not, and there was a demurrer to the
whole declaration, the plaintiff shall have judg-
ment for the breaches which were well as-
signed.
Though things in the realty ma}' be submit-
ted to arbitration, they cannot be recovered on
the award. (Ld. Raym., 114, 115.) But the
plaintiff *will recover damages on the [*ii<>J>
assignment of the breaches ; and the value of
land is the measure of damages.
If one person submit for another, he is bound
by the submission. (Ld, Raym., 246 ; 2 Caines,
The award that the suits shall be no further
prosecuted is final, and a perpetual bar. (Pur-
dy v. Delacan, 1 Caines, 304.)
Mr. Sftepherd, in reply, said that a party
could not pay a sum in lieu of the duty award-
ed. The award ought to have been in the al-
ternative, either to give possession of the land
or to pay so much money, being the value of
it. The case of P<rpe v. 'Brett, 2 Saund., 293,
and note, 1; 1 Roll. Abr., 259, pi. 9, supports
the position, that where an award in any part
is void, so that one of the parties cannot have
the benefit intended, the award is void in the
whole.
Per Curiam. Several exceptions have been
taken to the award ; such as, that it is uncer-
tain, not final, and requires the defendant to
do impossible acts, in obliging strangers to
give up the possession of lands to the plaint-
iffs.
It will not be necessary to discuss or con-
sider, with great minuteness, several of the
points insisted on. If it be conceded that the
award is void, so far as respects the defend-
ant's causing Webster and Wood to deliver up
possession of the lands they held, on the ground
of uncertainty in regard to the extent of their
I><>--r — i..n-. .-mil on ih< ground lh:it the tie
fendant is required to cause strangers to the
615
SUPREME COURT, STATE OP NEW YORK.
1816-
award to do acts, still it does not follow that
the whole award is bad, or that the demurrer
is well taken. It is a principle thoroughly set-
tled, that, if a declaration contain good and
bad counts, and there is a general demurrer to
the whole, judgment must be for the plaintiff.
(3 Caines, 89.) Again ; if the plaintiff, in his
declaration, assign breaches.and some of which
are well assigned, and some not, on a demurrer
to the whole declaration, the plaintiff shall
have judgments for the breaches which are well
assigned. ( Adams v. Willoughby, 6. Johns., 65.)
This latter rule is strictly applicable to this
case; for the plaintiffs had their election, either
to bring an action of debt on the award, or
to pursue the method they have adopted ;
in which case Kyd (Kyd on Awards, 280) says
the whole question arises on the replication
"as on an original declaration." The princi-
ple that a replication bad in part is bad in
whole, is not applicable to such a case. The
269*] principle *means substantial, constitu-
ent parts of a replication, and does not reach
a case where the question relates merely to
the damages a party is entitled to recover.
Testing this replication by these rules, it is
clearly good ; the recitals preceding the sub-
mission, and the very object of the submission,
show, satisfactorily, that the parties were re-
spectively claimants, as owners of the two hun-
dred acres of land stated in the submission.
The suits, in relation to which the arbitrators
awarded, were distinctly submitted ; the sub-
ject matter of these suits, the profits of the
land, and all differences, contentions, and de-
mands concerning them, and the costs of those
suits. It was not necessary to aver that the
persons mentioned to be in possession were
the tenants of the defendant ; that is to be in-
ferred from the recitals and submission ; but
if they were not tenants, the defendant, claim-
ing to be the owner of^the land, saw fit to sub-
mit the title, the inesne profits, and the cost* of
the specified suits, and he is bound by the
event.
It was urged that if the award were void in
requiring the defendant to dispossess the ten-
ants, then, inasmuch as that part of the award
which directed the suits to cease would also
fail, the award would.be void in toto, for want
of mutuality.
The delivery of possession is wholly discon-
nected with the cessation of the suits ; they
are terminated by the award, and, consequent-
ly, this award does not fall within the princi-
ple that that part of the award which is void
is so connected with the rest as to affect
the justice of the case between the parties ;
and, therefore, the award is void only pro
tanto.
We are of opinion that the award is void as
respects the delivery of possession by the ten-
ants, for it does not appear that the defendant
has the right or power to dispossess them ; he
is, therefore, required to cause strangers to the
award to do acts which he cannot control.
Judgment for the plaintiffs accordingly.
Cited in-1 Cow., 122 : 2 Cow., 649 ; 7 Wend., 56 : 22
Wend., 129 ; 1 Denio, 428 ; 4 N. Y., 575 : 35 N. Y., 295 ;
17 Hun, 155 ; 20 Barb., 415 ; 1 E. D. Smith, 442 ; 43 N.
J. L., 46T.
61
*SCHERMERHORlSr v. HULL. [*27O
1. Apprentice — Discharge by Justice — Action to-
Recover Value of Services of Apprentice. 2.
Evidence. 3. Paupers — Children of.
The discharge of an apprentice by an order of
three justices, does not affect the validity of the in-
dentures so as to prevent the master from setting*
them up S3 a defense in an action against him to-
recover the value of the services of the apprentice.
Where a person is relieved, on his own applica-
tion, by an overseer of the poor, without a previous-
order for that purpose, this is sufficient to author-
ize the overseers of the poor to bind out the chil-
dren of such person as poor apprentices : the- want
of the order only comma1 in question on the settle-
ment of the overseer's accounts, and not invalidat-
ing the indentures of apprenticeship, at least so far
as to prevent the master from using them as a de-
fense in an action to recover the value of the ser-
vices of the apprentice.
Citations— 1 R. L., 136, 138, 139.
TN ERROR, to the Court of Common Pleas.
-L of the County of Columbia.
This was an action of assumpsit, which was
tried at the May Term of the court below, in
1815, and was brought to recover the value of
the services of two of the plaintiff's children,
a boy and girl, who went into the defendant's
employ-in the latter part of February, 1812, and
continued with him until July, 1814, when
they absconded from the defendant. To bar
the plaintiff's right of action, the defendant
offered to show indentures of apprenticeship
by the overseers of the poor of the City of
Hudson, with the consent of the Mayor and
Recorder, binding these two children as poor
of the City of Hudson, to the defendant, in
the usual form. It appeared that the plaintiff
applied to one of the overseers of the poor of
Hudson, for assistance, who, considering him
a proper subject for relief, furnished him with
a load of wood, in February, 1812, and other
articles in the years 1812, 1813 and 1814 ; but
no order for this purpose had ever been given
by a magistrate. It further appeared that in
February, 1812, the defendant applied at the
plaintiff's house, in Hudson, to hire the chil-
dren ; that the children and parents consented,
and that he took them from thence ; that, on
the 3d of March following, the children were
bound to the defendant by the overseers of
the poor, without the knowledge or consent of
their parents. In July, 1814, the son was dis-
charged, by an order of three justices, from
his indentures ; the defendant appealed to the
Sessions, but abandoned his appeal ; and a
habeas corpus being allowed for the daughter,
the defendant gave her up, with her indent-
ures.
The admission of the above evidence was
objected to on the part of the plaintiff, but the-
objection was overruled by the court, who
charged the jury that the plaintiff was entitled
to recover for the services of the children, only
from the time of their going to the defendant,
in February, until the date of the indentures,
in March ; and the jury, accordingly, found a
verdict for the plaintiff for $5. to the ad-
mission of the evidence, and the charge of the
court, the plaintiff excepted, and *a [*271
writ of error having been brought, the case
was submitted without argument.
YATES, J., delivered the opinion of the
court:
JOHNS. REP., 13.
1816
LABAOH ET ux v. CANTINE ET AL.
271
The discharge of the apprentice by the jus-
tices, under the statute, cannot affect the val-
idity of the indentures as to any time of ser-
vice rendered previous to their interference ;
and the master, upon that ground, cannot be
prevented from defending himself in a suit
like the present, by showing thai there could
be no indebtedness for such services, because,
at that time, they were his indented appren-
tices.
The Act Concerning Apprentices and Serv-
ants (1 R. L., 138, 189), gives power to three
justices, or to the mayor, recorder, and alder-
men, of any city, or any three or more of them,
to discharge an apprentice from his indentures,
upon complaint by him made, touching any
misusage, refusal of necessary provisions or
clothing: cruelty, or other ill treatment; those
acts arising after the indentures are in opera-
tion, and the subsequent decision of the jus-
tices, &c., cannot deprive the master of the
benefit of the services before rendered.
The 4th section of the above-mentioned Act
(1 R. L., 186), g^ves authority to the overseers
of the poor, with the consent of the Mayor
and Recorder of Hudson, to bind out any child
who is, or shall be, chargeable, or whose par-
ents are, or shall become, chargeable to the
City, or shall beg for alms.
The evidence, in this case, shows that the
father of the children applied to the overseers
of the poor for relief, and that, in February,
1812, a load of wood had been given to him;
and, by the account annexed to the case, it
would seem, that assistance had been afforded
to him both before and after the date of the
indentures ; it is, however, urged that the
overseer of the poor, in extending the relief
asked for, had not obtained a previous order
from a justice, and, therefore, all this was
done by him without authority, which was
necessary to make the children paupers under
the Act ; and unless they were so, no power
existed to bind them out. I do not think that,
under the Act, those indentures were executed
by persons having, no authority ; the Act gives
the power when alms are asked ; and the
father (if not a legal pauper) asked and re-
ceived alms for himself and the children, and
this alone was sufficient to warrant the binding
at least so far as to prevent a recovery by the
272*] father for *the services of the children
at any time after date of the indentures, and
before the children were discharged by the
justice. The father, at the time, was a pau-
per in fact, and had been relieved by the over-
seers of the poor ; and his neglect to obtain the
order was an affair between him and the Cor-
poration of the City of Hudson, and would
have been a sufficient reason for them not to
have allowed the account ; the order is only
required to prevent imposition in expenditures
of this nature, and if the Corporation will al-
low the account, it is sufficient ; the plaintiff
and bis family having been relieved at the ex-
pense of the City, by an overseer of the poor,
on his own application, they were paupers
within the meaning of the Act. The court be-
low did right in receiving the indentures in
evidence, and charging the jury that the
plaintiff was entitled to recover the amount of
the services rendered before the binding, and
no more ; and the verdict has been given ac-
JOHNB. REP., 18.
| cording to the charge. The judgment in the
: court below must be affirmed.
Judgment affirmed.
Cited in— 30 N. Y., 191 ; 60 N. Y., 391.
LABAOH ET ux.
V.
CANTINE ET AL., Heirs and Devisees of
CANTINE.
Pleading — Action Again»t Heirs and Denote*
Plea of Riens per Descent — Verification.
Where, in an action of debt against heirs and dev-
isees, the defendants plead ritiut per descent, the
plaintiff replying that they had aaset« by descent
i before exhibiting1 the bill, may conclude with a
1 verification.
Citations-1 R. L., 316; 1 Saund., 103,106; 1 Chit.,
615 ; 1 Johns., 516 ; 2 Saund., n. 4 ; 2 Chit. PI., 473,
617.
TUIIS was an action of debt, on a bond exe-
-L cuted to the wife of the plaintiff, Labagh,
when sole, by John Cantine, brought against
the defendants, as heirs and devisees. The
defendants pleaded that they have not, nor
at the time of the commencement of this suit,
nor at any time before or since, had any lands,
tenements, or hereditaments, by descent or
devise, from the said John Cantine, deceased;
and this they are ready to verify, &c.
The plaintiffs replied that they ought not to-
be barred, «fec., because they say that the de-
fendants, after the death of John Cantine, and
before the day of exhibiting the bill of them,
the plaintiffs had divers lands or tenements,
by descent or devise ; and this they are ready
to verify, &c.
To this replication the defendants demurred
specially, showing for cause of demurrer, that
the replication denies the whole *of [*27U
the defendants' plea, yet concludes with an
averment and prayer of judgment for debt
I and damages, whereas it ought to have con-
! eluded to the country, £c. The plaintiffs
joined in demurrer.
Mr. Cantine, in support of the demurrer,
contended that the rule of pleading was, that
where there was an affirmative on one side.and
a negative on the other, and no new matter
alleged, the plea must conclude to the coun-
try. (1 Saund., 103, n. 1 ; 1 Johns., 516; 2
Johns., 428, 462.)
Mr. Van Vechten, contra, contended that
the plea was according to all the precedents. Tc-
a pica of riens per descent, the plaintiff may re-
ply, either that the defendant had assets by
descent, at the time of the commencement oY
the suit, or between that time and the death of
the ancestor. (1 Chitty's PI., 559 ; 2 Chitty's-
PI., 617, 618.) The Act (1 N. R. L., 317, se*s.
36, ch. 93, sec, 2) is like the Act of 3 and 4
W. & M., ch. 5 ; and the replication given by
the statute concludes with a verification (£
Saund.. 7. n. 4; 1 Richards' C. P.. 522; 2 Rich-
ards C. P., 295-297), and the defendant, in
his rejoinder, must take issue on the allega-
tion. This case is an exception to the general
rule of pleading, as to the conclusion.
Mr. Cantine, in reply, said that in England
01?
273
SUPREME COURT, STATE OF NEW YORK.
1816
there may have been a reason for this form of
replication, which does not apply here. There,
though the judgment be general, only half the
lands could be taken. (2 Roll. Abr., 71, 72;
Sir Win. Jones, 87 ; Dyer, 373 ; 3 Co., 12 a.)
Here all the lauds are liable. By rejoining to
the replication, nothing new could be put at
issue which was not fully put at issue by the
plea.
SPENCER, J., delivered the opinion of the
court:
The defendants have demurred specially to
the replication, because it concludes with an
averment, when it should have concluded to
the country.
The defendants are sued as heirs and dev-
isees of John Cantine, under the Statute. (1
R. L., 316.)' The plea states " that they have
not, nor at the time of the commencement of
this suit, nor at any time before or since, had
any lands, &c., by descent or devise, from the
said John Cantine, deceased;" concluding
with a verification. The plaintiffs reply, ac-
cording to the Statute, " that the defendants,
after the death of the said John Cantine, their
father, and before the day of exhibiting their
274*] *bill against the defendants.had divers
lands, &c.. by descent or devise, from their
father ; " concluding with a verification.
If the pleadings were tested by the princi-
ples applicable to pleadings in other cases, the
demurrer must prevail (1 Saund. , 103, 106 ; 1
Chitty, 615, and 1 Johns., 516); for it is a
general and established rule, that when there
is an affirmative on one syie, and a negative
on the other, the conclusion should be to the
country.
Cases of this description, however, seem to
be an exception. The 2d section of the Act
before referred to, is a transcript of the 3 and 4
W. & M., ch. 5, sec. 5 ; and it renders heirs
who ahene the land before suit brought liable
for the value. The 4th section of our Statute,
which is a transcript of the 6th section of the
same British Statute, authorizes the heir to
plead rietis per descent at the time of the com-
mencement of the action, and the plaintiff may
reply, that the heir had lands, &c., from his
ancestor before commencement of such action.
These statutes were intended to remedy the
common law rule, which was, that, if the heir
had bonafide aliened the lands, which he had
by descent, before the commencement of the
action, he might discharge himself by plead-
ing that he had nothing by descent at the time
of suing out the writ or filing the bill. A
replication under the Statute, would not pre-
cisely meet a plea that the heir had nothing by
descent at the time of the commencement of
the action ; and consequently, it has been held
that such a replication, to such a plea, must
conclude with a verification (2 Saund., n. 4) ;
and so are the precedents. (2 Chitty's PI., 473,
617.) In this plea it is alleged that the defend
ants had not, at the time of the commence
inent of this suit, nor at any time before 01
.since, any lands, &c., by descent, &c.
It would seem that a replication that they
had assets before the commencement of the
suit under the Statute, though it negatives one
of the periods stated in the plea, must, never
theless, conclude with a verification. The
propriety of this might well be doubted, but
t is sanctioned by the most approved prece-
dents, and we think it proper to adhere to
hose precedents.
Judgment for the plaintiffs, with leave to amend
on payment of costs.
*MARTIN v. STILL WELL. [*275
Slander — Keeping Bawdy House.
Charging the plaintiff with keeping1 a bawdy
house is actionable in itself, this being an indictable
offense, involving moral turpitude.
Citation— 5 Johns., 191.
HTHIS was an action of slander. The declara-
-L tion contained six counts. In the first four
counts the plaintiff alleged a special damage,
in the proof of which she failed on the trial.
In the fifth count, the words charged to have
been spoken by the defendant were: ''Mrs.
Martin (the plaintiff) kept a bawdy house in
George's Street," meaning a certain street in
the City of New York ; and in the sixth count,
the words charged were, " she kept a bawd}7
house in George's Street." At the trial, before
Mr. Justice Plait, at the Essex Circuit, in June,
1815, a verdict was found for the plaintiff on
the last two counts ; and it was now moved to
arrest the judgment, on the ground that the
words were not actionable.
Mr. Skinner, in support of the motion.
Mr. Z. R. Shepherd, contra.
Per Curiam. In Brooker v. Coffin, 5 Johns. ,
191, on demurrer to the first count in the dec-
laration. &c., the words were: "She is a
common prostitute, and I can prove it ; " and
this court decided thai those words were not
actionable. The law, as to what words are
actionable, is settled in that case, and the fol-
lowing rule was laid down as the safest, and
one which the cases warranted, viz: " In
case the charge, if true, would subject the
party chargedlo an indictment for a crime in-
volving moral turpitude, or subject him to an
infamous punishment, then the words would
be, in themselves, actionable."
If this'rule is to govern the decision in this
cause, then the present motion must be denied,
because there is no doubt that keeping a bawdy
house is a common nuisance, and that the per-
son keeping it is liable to an indictment. The
words here, as laid in the 5th and 6th counts
of the declaration, are: "Mrs. Martin kept a
bawdy house in George's Street." "She kept a
bawdy house in George's Street," which words
NOTE.— Slander — Words actionable per se. See,
generally, Buys v. Gillespie, 2 Johns., 115, note ;
Van Rensselaer v. Dole, 1 Johns. Gas., 279, note ;
Hopkins v. Beadle, 1 Cai., 347, note.
Words charging an indictable offense, are action-
able perse. Brooker v. Coffin, 5 Juhns., 188: Wild-
rig v. Oyer, 13 Johns., 124 ; Burtch v. Nickerson, 17
Johns., 217 : Case v. Buckles', 15 Wend., 327 ; Biasell
v. Cornell, 24 Wend., £54 ; Young v. Miller, 3 Hill,
21; Gosling v. Morgan, 32 Pa. St., 273: Smith v.
'Smith, 2 Sneed, 473: Smith v. Gafford, 31 Ala., 45;
Kimmis v. Stiles, 44 Vt., 351 ; York v. Johnson, 116
Mass., 482; Griffin v. Moore, 43 Md., 246; Davis v.
Brown, 27 Ohio St., 326; Fowles v. Bowen, 3 N. Y.,
20 : Coleman v. Playsted, 36 Barb., 20 ; Herning v.
Power, 10 M.& W., 570; Brayne v. Cooper, 6 M. &
W., 250.
JOHNS. REP., 13.
1816
COOK v. HOWARD.
275
(if true) would have subjected her to an in- [
dictment; and, although the punishment for
this offense could not have been infamous, yet, !
1276*] according *to the above rule, it would j
have been for a crime evidently involving '
moral turpitude; thejse words are, consequent- j
1 v, in themselves actionable, and the motion in
arrest must be denied.
Motion denied.
Cited in— 24 Wend., .156; 3 Hill, 23 ; 3 Keyes. 581 : 3
Trans. App.. 134: 4 Barb.. 511; Si Barb., 3D.; 38 Barb.,
H9; 5 How. Pr., 175.
COOK r. HOWARD.
Capture of Projierty during Buttle — Title Vests
only after Termination — Property of U. 8.
Taken by Officer without Authority — Trtttfttt
Will Lie.
A capture, and an Immediate recapture, does not
deveet the property of the original owner.
Property taken in a battle on land does not vest
in the captor, at least until after the termination of
the battle ; and if it be taken during1 the battle, the
title of the original owner is not devested.
Plunder taken from the enemy, in a war on land,
belongs to the sovereign of the captor.
Where a horee, belonging-ing to the United States,
was taken by the enemy, and shortly after n-tjikt-n
liv the plaintiff, who continued in the possession un-
til it was taken from him by the defendant, an olH-
cer in the Army of the United States, acting un<l>-r
the orders of a superior officer; it was held that the
plaintiff could maintain an action of trespass
against the defendant to recover the value of the
horse no authority from the United States to take
the horse, having been shown by the defendant;
and it is to be presumed, until the contrary be shown,
that the Unit«-«l states never intended to interpose
any claim to the property.
In trespass, de lutnis aportatls, the defendant can-
not show property in a stranger, although it is oth-
erwise in trover.
Citations-2 Burr., «B; Vattel, bk. 3, ch. 9, sec.
164; Doug., 614, a .; 11 Johns., 529, 132.
IN ERROR, to the Court of Common Pleas
of the County of Niagara.
This was an action for trespass, de bonis as-
portatu, for taking a horse belonging to the
plaintiff. The defendant pleaded, 1. Notguilty.
2. That the horse was the property of the United
States, and that one Major Garner, of the 25th
Regiment of the United States' Infantry, and
senior officer and commandant, commanded
the defendant, being a captain in the said reg-
iment, to take the horse, and deliver him to
the quartermaster of the regiment; that the
defendant took the horse, by virtue of such
order, aud delivered him to the quartermaster,
which are the same, &c. To the second plea,
the plaintiff, protesting, &c., replied, that the
defendant took the horse of his own wrong,
and traversed that the United States were law-
fully possessed the said horse.
The cause was tried in the February Term.
1815, of the court below, and it was proved
on the trial that the horse in question had.
previously to the 19th of December, 1813,
been delivered to one St. John (who then acted
as a wagon master), by a deputy, or Assistant
Quartermaster General of the United States;
that, on the 19th of December, when the
enemy drove the inhabitants from Lewiston,
the horse was taken from St. John, by an In-
dian in the service of Great Britain; that, im-
JOIINS. RKP., 18.
mediately *after taking him, the In- [*27 7
dian, on the horse, pursued the plaintiff, who.
with others, was fleeing from the enemy; that
the plaintiff discharged a gun or musket at
the Indian, who fell from the horse (as was be-
lieved) dead; that the plaintiff shortly after
took the horse, and kept him in his possession
until the month of April, 1814. when the de-
fendant, being an officer of the United States
Army, acting in pursuance of an order from
an officer commanding a detachment of United
States troops, stationed near where the horse
was kept, took the horse from a stable, and in-
formed the plaintiff that he had taken the
horse as the property of the United States.
The court below charged the jury that the
defendant could acquire no property in the
horse until adjudication by a court of the
United States, and that the defendant was jus-
tified in taking the horse; the commandant of
the detachment having a right to give the
order which he did. The jury found a ver-
dict for the defendant below; and a bill of ex-
ceptions having been tendered, b}' the plaint-
iff, to the opinion of the court, the cause was
removed into this court by writ of error.
Mr. N. Williams for the phintilT in error,
contended: 1. That by the capture and recapt-
ure, the property in the horse by the common
law, became vested in the plaintiff. There is
a difference between the law of nations and
the common law, on this subject. By the lat-
ter, the subject was entitled to goods taken
from an enemy of the King, in time of
war. (1 Wils., 213, Murroughv. Comyns, per
Wright, J.; Regist., 102ft; Bro., tit. Property,
pi. 18, 38.) He who takes such goods fr^m
the enemies of the King, which were before
taken from an Englishman, shall have it, as a
thing gained in battle, and not the King, the
admiral, nor the party to whom the property
was before, because the party did not come
freshly the same day it was taken from him,
and before sunset, and claim it. (18 Yin. Abr.,
67, tit. Property, D.pl. 3, note; Br. Forfeit, pi.
57; Id., Chattels, pi. 22; Id. Property, pi. 88;
7 Ed. IV., 14; S. C., cited 1 Vent., 174.) This
is the common law of England. It is also the
law of war. in ancient and modern times. It
is a principle of public policy. The question
is to be decided rather by the common law
than the law of nations; but the law of nations,
on this subject, is no less clear and decisive.
A recapture is considered as a capture from the
last possessor, and the last captor acquires the
right of property in the goods taken. It is
true most of the writers lay it down that the
right of pontliminium, in regard to movables,
continues during twenty-four hours after the
capture; and such seems to be the generally re
ceived principle, *though some writers [*478
even contend that the booty must be carried in-
fra prasidM, before the property is changed.
(2 Azuni. Mar. Law.. 275, 276; Vattel, B, 3.
ch. 13, sec. 196; Martens. B, 8, ch. 8, sec. 11.
12; Chilly's L. of N., 98.) Valid says that
the properly, in movables, is acquired the
very moment Ihey come into the power of the
enemy, and if he sells them lo neulrals, ihe
first proprietor has no right to reclaim them.
The space of twenty-four hours, as well as
the custom of Ihe sea, in this rcspecl, is an in-
stitulion of the pactitious or conventional law
278
SUPREME COURT, STATE OP NEW YORK.
of nations, or of custom, or, in short, of the
civil law of certain states. It is not, then, a
principle of the universal law of nations, that
the goods must remain twenty-four hours in
the possession of the captor before the property
is changed. And the civil or common law of
England, has settled this question as to goods
taken from an enemy on land. Blackstone (2
Bl. Com., 401) lays down the rule already men-
tioned, that "if an enemy take the goods of an
Englishman, which are, afterwards, retaken
by another subject of the kingdom, the former
owner shall lose his property therein, and it
shall be indefeasibly vested in the second taker,
unless they were retaken the same day, and
the owner, before sunset, put in his claim of
property." And this, he says, was agreeable
to the law of nations, as understood in the time
of Grotius, even as to captures at sea. The
only case to be found in any writer, is that
mentioned by Vattel, of the "town of Lierre,
which was taken and retaken on the same day.
(See Thuanus' Hist., lib. 13.) The claim put
in, in this case, was not until six months after
the recapture.
2. As to the necessity of condemnation,
it is not denied, in regard to maritime captures,
that it may be necessary to confirm the prop-
erty in the captor. Such appears to be the law
as understood in England (Chitty's L. of N.,
98, 99; Flad. Oyen, 1 Rob. Adm., 134; 3 Rob.
Adm., 236-238) and in this State. (1 Johns.,
482.) But, as to captures on land from a
public enemy, they are not the proper sub-
jects for judicial proceedings, by libel and
condemnation. No maritime court can have
jurisdiction in such a case. (3 Bl. Com., 106,
108.) In Le Caux v. Eden, Doug., 614, note,
Lord Mansfield observed that "as to plunder,
or booty, in a mere continental land war, with-
out the presence or intervention of any ships,
or their crews, it never has been important
enough to give rise to any question about it.
It is often given to the soldiers on the spot; or
wrongfully taken by them, contrary to mili-
tary discipline. If there be any dispute, it is
2 7 9*] *regulated by the Commander-in-Chief .
There is no instance in history or law, ancient
or modern, of any question, before any legal
judicature, ever having existed about it in this
kingdom."
Suppose, however, that an adjudication of
some court is necessary to confirm the prop-
erty of the captor; shall not his possession be,
in the meantime, protected? He has, at least,
an inchoate right of property, which cannot
be devested by the force. (1 Wils, 212.)
3. But what authority had the defendant, in
this case, to seize the horse? Has every mili-
tary officer power to take by force, from the
possession of a citizen, the property even of
the United States? It would be a most dan-
gerous and oppressive power, if it existed ; but
the authority of the defendant to touch this
property is wholly denied. If any officer had
that power, it must be a quartermaster of the
Army, who has the superintendence of the
public property, in war, of the United States,
and who gives security for the faithful per-
formance of his duty. If, then, this defend-
ant had no authority to seize, he has been
guilty of a trespass.
Messrs. Hawley and Parker, contra. The
€20
capture of the horse, in this case, was followed,
almost immediately, by a recapture. The
capture by the hostile Indian did not transfer
the property to him. This case must be de-
cided by the law of nations. Grotius (Grot.
deJure. B. etP., lib. 3, ch. 6, sec. 3) lays down
the rule on the subject: "Things are said to be
taken in war, when they are so detained, that
the first owner has lost all probable hopes of
recovering them, and cannot pursue them."^
And he explains that when, in other places, it
is said that goods taken belong immediately to
the captors, it is to be understood that they
continue so long in their possession that the
hope of recovering them is gone. The rule
as to twenty-four hours' possession, he calls a
new or modern doctrine. Bynkershoek rec-
ognizes the same rule, that the property is*'
not changed, until the owner has lost the spes
recuperandi; and that is not until the property
is carried into a place of safety. (Bynkershoek,
QucKst. Jur. Pub., lib. 1, ch. 4.) Puffendorf
(Puff. L. of N. and K, lib. 8, ch. 6, sec. 20}
also, accedes to the rule of Grotius: and Vat-
tel (Liv. 3, ch. 13, sec. 196) when he says that
the propertjr of movables belongs to the
enemy the moment they come into his power,
adds, but such things must be actually and
truly in the enemy's power, and carried to a-
place of safety.
*Blackstone (2 Bl. Com., 401,402) [*28O
does not differ from Grotius, as to the law of
nations laid down by him and other writers.
He does not, however, state the case from the
Year Book (7 Edw. IV., 14) correctly, and it
is the same case which is cited in Brooke. The
condition is, that the original owner must
come freshly or promptly, the same day, to
claim his property of the captor. Nothing is
said of the recaptor. In Goss v. Withers, 2-
Burr., 685, may be found all the law on the
subject, and also the case from the Year Book,
in its original language. Lord Mansfield says-
that the general proposition, that what is-
taken from an enemy immediately becomes
the captor's, is to be understood when the
battle is over ; and that is not until all im-
mediate pursuit has ceased, and all hope of re-
covery is gone. But he says that the rule has
been made still more favorable to the owner,
in the case of maritime capture, and the prop-
erty is not changed until there has been a sen-
tence of condemnation ; and this principle
was adopted by this court, in the case of
Wheelwright v. Depeyster, 1 Johns., 471. The
possession of the horse, in this case, by the
Indian, was temporary ; the battle was not
over ; the conflict still continued. If the prop
erty were not devested by the capture, the
jus postliminii still remained in the United
States, the original owner. This right takes,
place, according to Vattel (Droit des Gens. , liv.
3, ch. 14 sec. 206), "as soon as the things
taken by the enemy fall into the hands of sol-
diers belonging to the same nation, or are
brought back to the army, within their sove-
reign's territories, or the places under hi&
command."
Again ; admitting that the Indian acquired
a property in the horse bjr the taking, the re-
taking by the plaintiff inures to the govern-
ment of the United States, whose servant or
agent he is, and under whose authority he
JOHNS. REP., 13.
1816
COOK v. HOWARD.
280
acts. For Puffendorf and Vattel both lay it
down.^hat all things, booty as well as immov-
ables, taken from the enemy, belong to the
sovereign making the war. (Puff. L. of N.
and N.. bk. 8, ch. 6, sec. 21 ; Vattel, 1, 8, ch.
9. sec. 164.) Soldiers are but instruments in
liis hands for asserting his rights.
This principle was recognized by Judge
Toulman, of the Mississippi Territory, in the
case of The. United States v. Tit* Schooner Active,
tried before him.
This principle equally applies to a recapture,
281*] notwithstanding *the cases cited from
1 Wilson and the Year Book ; for war is the
act of the sovereign or government, whose ex-
clusive right it is to carry it on. No individ-
ual can have the right ; and if a citizen takes
*Up arms, he acts in subordination to the sove
reign.
But it is said that the defendant had no au-
thority to take the horse from the plaintiff. It |
is enough that he acted in pursuance of the
orders of his commanding officer. It is the
duty of every officer of the Army to take care I
-of the public property, and a request from the
Quartermaster may be presumed, or the de-
•m la n t may be considered as quartermaster,
pro hoc vice.
Mr. N. Williams, in reply, said that the
•case before Judge Toulman was that of a capt-
ure by soldiers, which was different from the
present case of a taking by a private citizen.
When war is»declared, every citizen is at war
with the enemy ; and was it ever heard that
the government has claimed goods taken from
any .enemy by its citizens ? Captures on land
from an enemy, eo iwtanti, change the prop-
erty. The law as to maritime captures is not
applicable to this case ; and Lord Mansfield,
in OOSHV. Withers, observes that writers have
drawn lines by arbitary rules ; and many ar-
bitary circumstances, deemed necessary by
them to change the property, have been ex-
ploded. That was a case of insurance, and de-
cided on the rule as to maritime captures.
But admitting the loss of the spe* recuperandi
to be the criterion, it must depend on circum-
stances ; and if this case be tried by that rule,
what means of recovery could there be, when
the Indian was in full possession of the horse,
and the owners had abandoned it ? It is a
principle of the civil law, and of thejew gen-
tium, that what we take from an enemy in war
becomes instantly our own. (Just. Inst.Jib.
2, tit. 1, sec. 17, Cooper's ed., p. 73.) How is
the doctrine of the things taken being carried
infra pr(t*idia of the enemy to be applied to
our Indian warfare ? But we rest on the com-
mon law ; and according to the case cited
from the Year Book, in Ooss v. Wittier*, and to
be found in all the abridgments, the owner
282*] must, promptly, or *freshly, and be-
fore sunset, pursue and claim his property, or
. his right to it is forever gone. The law must
be the same, whether it be a caie of recapture
•or capture. The principle and the reason of
it are the same. As between our citizens, the
•common law must be the rule of decision.
THOMPSON, Ch.J., delivered the opinion of
the court :
If the right of the plaintiff below to main-
tain this action depended upon the abstract
JOHNS. UK I-.. 12.
question as to the right of property, I am sat-
isfied that he must fail. It is necessarily to be
inferred, from the bill of exceptions, that the
property in the horse was. at the time he was
taken by the enemy, duly vested in the United
State-. And it is very clear that it was not
devestf-l by anything that took place at the
time he was taken by the Indian. It is a
proposition not to be controverted, that no
right .could arise from the recapture, unless
the property had vested in the captors.- What-
ever difference of opinion there may have
been among the writers on public law, as to
the time when or what is necessary to take
place, in order to vest the property in the
captors, no approved jurist has gone so far as
to maintain that a mere capture is sufficient
for that purpose. It has been generally held
that the property must be carried infra prot-
Mi'din, or remain twenty-four hours in the
hands of the captors, or that the apes recuper-
andi must be gone, or that an actual condem-
nation must take place. But in the case be-
fore us, there could hardly be said even to
have been a capture. In ffoss v. Withers, 2
Burr., 698, Lord Mansfield observed that noth-
ing can be said to be taken until the battle was
over ; and this is not until all immediate pur-
suit has ceased, and all hope of recovery has
gone. That was not the case here. The in-
terval between the capture and recapture must
have been very short, and during the continu-
ance of the battle. The property in the horse
could never, under such circumstances, be
considered as vested in the captors. If so,
the recapture could not vest it in the plaintiff.
But, admitting the right of property had
vested in the captors, the better opinion is,
that, upon the recapture, it would have be-
longed to the United States. The rule laid
down by Vattel (bk. 3, ch. 9, sec. 164) is the
rational one. He says, as the towns and
lands taken from the enemy are called con-
quests, so all movable things constitute the
booty, and this booty, naturally, belongs to
the sovereign making war, no less than tin-
conquests ; *for he alone has such [*28U
claims against the enemy as to warrant him to
seize on his goods, and appropriate them to
himself. His soldiers are only instruments in
his hands, and whatever they do is in his
name, and for him, and he may grant them
what share he pleases. Lord Mansfield, in
Le Caux v. Eden, Doug., 614 n, said, that as
to plunder or booty in a mere land war,
without the intervention of ships or their
crews, it never had been important enough to
give rise to any question about it. It is often
given to the soldiers upon the spot, or wrong-
fully taken by them, contrary to military dis-
cipline ; and if there beany dispute, it is regu-
lated by the Conunandcr-in Chief . He asserts
that there is no instance in history or law, an-
cient or modern, of any question, before any
legal judicature, ever having existed about it
in England ; and jn- goes on to observe, that
it does not come within the prize jurisdic-
tion.
I have thought proper thus briefly to notice
the general question as to the right of property,
as it was gone into, very much at length, upon
the argument, though it is unimportant as to
the decision of the present case ; for, admitting
»!'_' 1
283
SUPREME COURT, STATE OP NEW YORK.
the plaintiff was not the owner of the horse,
the defendant had no right to take him out of
his possession. He, certainly, was not the owner;
and if the horse belonged to the United States,
the defendant showed no competent authority
to take him from the plaintiff. The defend-
ant, it is stated, was an officer of the United
States Army, acting under the orders of an
officer commanding a detachment of United
States troops. Who this officer was, his rank
or standing, does not appear. It is not pre-
tended or intimated that he belonged to the
Quartermaster's department, to which the care
and charge of the public property more prop-
erly belong. But the mere fact of his being an
officer, commanding a detachment of troops,
could not vest him with the power of taking
the property belonging to the United States
wherever it might be found. It does not even
appear that this officer had any command or
part in the battle at the time the property was
taken Had any question at the time arisen
about it, perhaps the commanding officer, upon
that occasion, would have been justifiable in
taking possession of the horse in behalf of the
United States. But the plaintiff had had the
peaceable possession of the horse for five or
six mouths ; and the interference of the de-
fendant was the act of a mere stranger. He
showed no authority from the owner ; nor does
284*J it appear that the conduct *of the de-
fendant has ever been ratified or sanctioned by
the United States, or that the horse had ever
come into their possession. What has become
of him has not been shown. It is true the
defendant professed to act in behalf of the
United States; but, from anything that appears,
this was a mere pretext, and the property was
appropriated to his own private use. If this
horse belonged to the United States, as booty
or otherwise, who can say, or has a right to
say, according to the doctrine of Vattel, that
the sovereign shall not give him to the soldier
who took him, for his gallant conduct on that
occasion ? This was a matter resting in the
discretion of the government, with whom it
belonged to inquire after, and reward merit ;
and until the contrary be shown, the fair pre-
sumption, under the circumstances of the case,
is that the government never intended to inter-
pose any claim to this horse. In an action of
trespass, de bonis asportatis, it is not competent
for the defendant to show property in a stranger
to excuse the trespass and justify the taking.
If a person has the peaceable possession of a
chattel, this gives him a right, as against every-
body but the rightful owner. In an action of
trover, the defendant may show title in a third
person. (11 Johns., 529.) But it is expressly
laid down by this court, in Derrick v. Chapman,
11 Johns., 182, that the possession of a chattel
is prima facie evidence of right, and that a
mere stranger could not deprive the party of
that possession, without showing some author-
ity, or right derived from the owner, to justify
the taking. The judgment of the court below
must, therefore, be reversed.
Judgment of reversal.
Cited in— 1 Wend., 489 ; 12 Wend., 33 ; 13 Wend.,
143 ; 16 Wend., 358 ; 17 Wend., 92 ; 6 Bos., 161 ; 1 Duer,
367 ; 4 Duer, 438 ; 7 Rob., 173 ; 16 Ind., 240.
*RUGGLES
v.
LAWSON ET AL.
1816
[*285
Deed — Escrow — After Condition Performed,
Dates from First Delivery.
Where a deed is delivered as an escrow, and either
of the parties dies before the condition is performed,
and afterwards the condition is performed, the deed
is valid, and takes effect from the first delivery.
Where A having executed a deed of lands, in con-
sideration of natural love and affection to two of his
sons, and delivered it to C to be delivered to his sons
in case A should die without making1 a will, and A
having died without a will, C delivered the deed to
the sons : Held, that this was a valid deed, and took
effect from the first delivery.
Citations— Shep. Touch, 59 ; 2 Mass.. 447 : 9 Mass..
307.
THIS was a suit in partition, tried before Hia»
Honor, the Chief Justice, at the Orange
Circuit, in September, 1814.
The plaintiff, in his petition, set forth that
he was seised, in fee, as tenant in common, of
an undivided moiety of the premises in ques«
tion ; and that Daniel Lawson and others,
defendants, as heirs at law of Robert Thomson,
Jr., deceased, were each seised of an equal and
undivided twentieth of the premises, and the
widow of Robert Thomson was entitled to her
dower in the one third of the said ten twenti-
eths of the premises, of which the heirs of the
said Robert Thomson were so seised. Several
of the defendants put in pleas of confession,
and consented to the partition. Robert Thom-
son and Nelson Thomson, two of the defend-
ants, pleaded non tenent in simul, and gave
notice, under the plea, that they would pr.ove,
at the1 trial, that they were entitled, in their
own right, to one half of the premises, and
that they claimed title to the same, by. virtue
of a conveyance to them, dated the 15th of
November, 1811, from their father, Robert
Thomson (setting forth the deed at length).
At the trial, it was admitted that the plaintiff
was seised, in fee, of an undivided moiety of
the premises.
Robert and Nelson Thomson, two of the
defendants, gave in evidence the deed set forth
in the notice accompanying their plea. The
deed was given for natural love and affection
of the grantor to his two sons, and for the
further consideration of one dollar, and con-
veyed an undivided moiety of the premises.
David Mason, a witness, proved, that, in June,
1814, the grantor, being sick, took from his.
chest the deed in question, among other deeds
to his children, which he delivered to the wit-
ness ; and, at the same time, directed him, in
case he should die before making his will,
which he had requested the witness to draw
up for him, that he, the witness.would deliver
the deeds to his children, respectively ; the
witness having retired, for a short time, to-
prepare the will of the grantor, on his return
found him dead ; and about a month after his^
decease, the witness delivered the deeds to the
grantees named therein.
A verdict was taken for the plaintiff, subject
to the opinion of the court on a case, which
was submitted to the court without argument.
*Per Curiam. The only question in [*286
this case relates to the effect and operation of
the deed from Robert Thomson, Jr., to his two
JOHNS. REP., lo.
1816
ArsTiN ET AL. v. HALL.
286
Bonn, Robert and Nelson. This deed was duly
executed by the grantor, in his lifetime, and
delivered to a third person, to be delivered to
the grantees, in case the grantor should die
before having made and executed his will.
The grantor did die without having made any
will, and the deed was, after his death, deliv-
ered to the grantees. If this deed is to be
considered as an escrow, the estate, under the
circumstances stated in this CUM-, passed to the
grantees, upon the delivery after the death of
the grantor. It is a well-settled rule with re-
spect to an escrow, that, if either of the parties
die before the condition is performed, and,
afterwards, thecondition is performed, the deed
is good, and will take effect from the first de-
livery. (Shop. Touch., 59.) It may, however,
be questionable whether this deed is to be
*viewed as an escrow ; the grantees had nothing
to do, on their part, in order to make the deed
absolute, which is usually the case where a deed
i- delivered as an escrow. The delivery here
was. at all events, conditional, and to become
absolute upon an event which has taken place;
and, a-, in the case of an escrow, the deed will
take effect from the first delivery. This prin-
ciple is very fully laid down and illustrated in
tin- cases of Wheelwright v. Wheelwright and
Hatch v. Hatch, 2 Mass., 447, and 9 Mass., 307.
The grantee* in thi* deed are, therefore, enti-
tled to a moitty of the premise*, and partition
must be made accordingly.
Cited in— 15 Wend., 663; 30 Wend., 47: 8 Hill, ftt3 ;
\'., 10B; 17 Barb.. «; lit Barb., 245 ; 05 Barb.,
:t»L'; if, Barb.. 7:1 : u-J lie >w. i'r., :c«» ; 4 Abb. Pr., 319;
1 T. & C.. 3T> ; 1 McLean, Xtt; 1 Wood. & M., 333 : 32
Mich., 888.
A I" STIN ET AL. r. HALL.
Tretpa** — Tenants in Common Must Join —
Release by One Bars Suit.
Whore several plaintiffs must join in brin/rin^a
personal action, a relcas..* by one joint plaintiff is a
bar to the action.
So, in an action by tenants in common for a tres-
pass on land of which they are the co-heirs, a release
by one of the plaintiffs is a bar to the action.
Tenants in common must join in an action of
trespass </uare claiuum frcgtt.
rPHIS was an action of trespass, quare claus-
L vmfregit, against the defendant and one
Kly, for entering upon the lands of the plaint-
iffs, expelling them from thence, and taking
the issues and profits.
The defendant pleaded not guilty, and
Itberum tenementum ; and the plaintiffs new
assigned the locus in quo on which the trespass
was alleged to have been committed. To the
new assignment, the defendant pleaded, 1.
Not guilty. 2. A release, under seal, from
Edward Austin, one of the plaintiffs, in con-
sideration of the sum of six cents, of all ac-
tions, and causes of action, and demands,
liS7*] *which the said Edward Austin, or
which he and any other persons had against
the defendant and Ely (except his share of his
father's personal propcrty.to whom the defend-
ant was administrator); and, particularly, all de-
mands on account of ' any trespasses done by
the defendant to any real property owned or
claimed by the naid Edward Austin, and the
other heirs of his deceased father ; and also,
JOHNrt. II 1.1'., 13.
the suit lately commenced against the defend-
ant and Ely by the said Edward Austin and
his co-heirs. And the defendant averred that
the real property mentioned in the release was
the same as that described iu the new assign-
ment of the plaintiff; that the said Edward
Austin, and the other heirs of his deceased
father, were the plaintiffs in this suit; and
that the suit mentioned in the release and the
present action were the same. 8. A release,
in like manner, from Joseph Austin, another
of the plaintiffs. To the second and third
pleas there was a general demurrer, and
joinder in demurrer.
Mr. Z. R. Shej>herd, in support of the de-
murrer, cited Cro. Eliz., 411; 2 Cro., 68; Cro.
Litt., 197*; 1 Salk., 260; Cro. Ja., 281; 2>BI.
Rep., 1077; 2 Burr., 6«8.
Mr. D. Russell, contra, cited Cro. Eliz., 648;
Bac. Abr., Release, O: 6 Co.. 85; 1 Lev., 272;
1 Ld. Raym., 648, 649; Co. Litt., 285 a.
Per Curiam. The declaration, in this ca«e.
is for a trespass on iand, and an eviction of
the plai.ntiffs ; and for the damages sustained
by reason thereof this suit is brought. The
action is, strictly, a personal one, and the
plaintiff were bound to join in it. The re-
lease, therefore, by two of the plaintiffs, is a
bar to the action, and the defendant is entitled
to judgment.
Judgment for the defendant.
Distinguished— 29 Barb., 121.
Cited iii 15 Johns., 482 ; 11 Wend,, B«3: 5 Hill, 58 ;
28 N. Y., 228; 37 N. Y., 273; 4 Trans. App., 242: 14
Barb., «11 ; 17 Barb., 155 : 19 Barb., 065 : 17 Abb. Pr..
218; 4 Abb. N. 8., 344 ; IT. & C., 405 ; 37 Ohio St., 140.
•LAURENCE v. HOPKINS. [*J>88
Statute of Limitations — To Avoid Statute, Ex-
press or Implied Promise Necessary.
To take a demand out of the Statute of Limita-
tions, there must be a promise express or implied.
And no promise can be inferred from a declara-
tion of the defendant that hu was not holden to
pay anything, and that the contract could not be
enforced at law, and that he never would pay any-
thing as it was an unjust debt.
An offer by a defendant to compromise a suit,
which is rejected, cannot be made use of to take
the case out of the Statute of Limitations.
THIS was an action on a joint and several
promissory note, of which the defendant
was one of the makers, dated the 7th of Oc-
tober 1803, payable to Ebenezer Whiting, or
order, four years after date, for $125.52, and
indorsed by the payee to the plaintiff. The
defendant pleaded the general issue, and non
assumpsit infra set annos, to which the plaint-
iff replied. The cause was tried before Mr.
Justice Platt, at the Schenectady Circuit, in
November, 1815.
The plaintiff was nonsuited at the trial
upon a variance between the note given in evi-
dence and the declaration. The parties, in
making up the ca«e, agreed to submit to the
court the following testimony in relation to
NOTE. — Statute nf Limitations— Kew promise.
An ni-hn<'\rl«liiiiicnt mutt )>e c(iuii*altnt to a prom-
ise to take the debt out of the Statute. Danfoith v.
Culver, 11 Johns., 140, note.
•sa
288
SUPREME COURT, STATE OP NEW YORK.
1816
the defense of the Statute of Limitations ;
which was, that the defendant, in a conversa-
tion with one witness, stated that he had been
lately sued upon a contract made with Whit
ing, and that, by the terms of the contract, he
had never considered himself holden to pay
anything; and that his counsel had advised
him that the contract could not be enforced at
law ; and that, in a conversation with another
witness, upon the witness mentioning that he
had attempted to settle with the plaintiff, upon
the note, and had offered him $25 on behalf
of the defendant, to be in full of the note,
which the plaintiff refused to accept, the de-
fendant replied, that he was sorry any such
offer had been made, as he never would pay
one cent on the note, as he considered it an
unjust debt.
The case was submitted to the court with-
out argument.
Per Curiam. , The evidence is not sufficient
to take the case out of the Statute Limitations.
It neither shows an express or implied promise
to pay the debt; but, on the contrary, it ap-
pears that the defendant uniformly considered
the demand as unjust from the beginning, and
that he was under no obligation to pay it. To
infer a promise to pay, in direct opposition to
the defendant's denial of the justice and fair-
ness of the debt, would be trifling with the
Statute. The proposition to give $25 to set-
tle the demand must be laid out of the case,
because that was a mere peace-offering, and
being rejected, it cannot prejudice the defend-
ant.
Judgment for the defendant.
Cited in-15 Johns., 520 ; 20 Johns., 588 ; 15 Wend.,
190; 6 Johns. Ch., 291 ; 4 Barb., 179.
289*] *TOMB qui tarn, &c.(
SHERWOOD.
Conveyance of Real Property Held Adversely —
Party Liable whether Title is Good or Bad —
Certificate of Survey or- General — Value Re-
coverable.
Where a person undertakes to sell land which is
held adversely to him, it is immaterial whether his
title or claim were good or bad, and the parties to
such sale will be equally within the Statute against
champerty and maintenance.
So, where a person obtained a certificate from the
Surveyor-General of the State, that he purchased a
lot of land, and the land was then sold under an
execution against him, and he, afterwards, assigned
the certificate ; it was held that the assignee was li-
able to the penalty of the Statute^.
And the value to be recovered is not only that of
the land actually occupied and cultivated, but of
the wholt^ lot of which it is parcel, and which is
claimed in connection with it.
Citations— Co. Litt., 369 a & b; 2 Hawk., bk. 1, ch.
86, sec. 10; Bac. Abr., Maintenance, E.
THIS was an action of debt brought against
the defendant on the 8th section of the
Act "to Prevent and Punish Champerty and
NOTE.— Real property— Grant of lands held ad-
versely, void. See Whitaker v. Cone, 2 Johns. Cas.,
58, note ; Jackson v. Todd, 2 Cai., 183, note ; Jackson
v. Sharp, 9 Johns., 163, note ; Jackson v. Wheeler,
10 Johns., 164, note.
624
Maintenance" (N. R. L., 172), for buying the
pretended right, or title of one Mooney, to the
south half of lot No. 50, in the late Oneida Res-
ervation, in Sullivan, in the County of Madi-
son. The cause was- tried before Mr. Justice
Van Ness, at the Madison Circuit, in Julv
1815.
A certificate of sale, dated the 7th of Au-
gust, 1806, was issued by the Surveyor-Gen-
eral of the State to Mooney, which stated that
he had purchased a piece of land in the town
of Sullivan, distinguished as lot No. 50, in the
northwesterly part of the late Oneida Reserva-
tion, containing two hundred and thirty-one
acres ; on which lot $125 were paid, the sum
of $875 remaining due. This certificate
Mooney, for the consideration of $50, as-
signed to the defendant, in fee, on the 17th of
April, 1814. The south half of the said lot
was levied upon and sold, under a judgment
and execution against Mooney, to one Job
Williams, and the deed from the sheriff was
dated the 5th of November, 1807. Williams
permitted Mooney to remain in possession af-
ter the sale, for about one year, on his promis-
ing to surrender the possession to Williams,
and deliver him the certificate. He delivered
the posseession, but retained the certificate.
On the 4th of September, 1810, Williams con-
veyed to one Foot, in fee, and Foot conveyed
to the plaintiff, and Samuel, his son, by deed,
which was not dated, but which was proved
to have been delivered in the fall of 1813.
After the plaintiff's purchase, the defendant,
by threats to dispossess the plaintiff, obtained
from him a judgment bond for $200, as a con-
sideration for relinquishing the certificate to
him, and the like sum from one Peck, the
owner of the north half of the lot. It was
proved that the defendant, at the time he took
the assignment from Mooney, was fully aware
of the nature of his title. There were about
twenty acres of the land in question improved.
The house and improved land were worth
$400; the value of the south half of the lot
was $1,000.
*The jury found 'a verdict for the [*29O
plaintiff, subject to the opinion of the court as
to his right to recover, and as to the amount of
the recovery — whether the verdict should be
for $400 or $1,000.
Mr. Storrs, for the plaintiff, contended that
the purchase made by the defendant was
of a pretended right or title, within the Statute,
The Act of the 6th of April, 1803 (sess. 26, ch. '
106, sec. 7, Vol. III.. Laws 365, Webster's ed.),
required the Surveyor-General to give to each
purchaser a certificate containing a description
of the land purchased, and the price ; on the
production of which, with an indorsement of
the payment of the purchase money, he was
entitled to a patent. This is a " promise, grant
or covenant to have a right or title," which
the Act to Prevent Champerty and Mainten-
ance (1 N. R. L., 172, sess. 24, ch. 87, sec. 8),
prohibits any person out of possession from
buying or selling. It is not necessary that it
should be a fee. The Statute extends to any
right or title. (2 Hawk. P. C., 420, bk. 1, ch.
86, sec. 12; 4 Co., 26 ; Co. Litt., 369.) A lease
by a person having a mere covenant for a con-
veyance is within the Act. (15 Vin. Abr.,
149, Maint., B, pi. 7, p. 157, E, 25.)
JOHNS. REP., 13.
1816
TOMB v. SHEKWOOO.
290
Mr. Randall, contra, contended that if the
defendant had been guilty of any offense, it
was against the 1st section of the Act against
maintenance. The certificate of the Surveyor-
General was a mere chose* in action, and the
purchase of it was not buying any right or
title. It conveys nothing. It is a mere engage-
ment that, on the performance of certain things,
the person shall be entitled to demand a patent.
The Commissioners of the Laud Office alone
could give any title ; and by the 9th section of
the Act. if the purchaser failed in completing
the payments, all previous sums paid are for-
feited and the laud may again be sold. A
bond, or covenant for a convyance, does not
give a right of entry on the land. (9 Johns.,
§5, 881.) In England there are no cases in
which the action has been sustained, unless
where the purchase has been such as, priintt
fitcie, conveyed the title. The certificate was
not under seal and could convey no title.
Every right includes a title. (Co. Litt., 845 6.)
Huru was a mere assignment of the certificate.
Again ; as to the amount of the recovery.
The plaint ill was proved to be in possession of
about twenty acres of improved land. The
residue was vacant. The defendant could be
liable only for lands he knew to be in the pos-
session of another, or for such land as was im-
proved ; nor for vacant land or such as was in
ii!H*J *the constructive possession of the
plaiutitf. The conveyance of a title to land
held adversely, is void only as to the land pos-
sessed adversely, and is good as to the residue;
and the defendant in an action on the Statute
for buying a pretended title is answerable for
no more than the value of the land in actual
possession. (I Johns., 346; 5 Johns., 500, 501;
7 Johns., 281.)
Mr. Storr», in reply, said that by "title" was
not meant a fee. It is the means by which the
party is to acquire the possession. It includes
any right or Interest whatever. Possession of
a part, with a claim to the whole of a tract of
land, is -a sulBcient adverse possession of the
whole. (1 Caines, 84, 358.)
VAN NESS, J. The plaintiff was in posses-
sion of the laud under a deed in fee given upon
a valuable consideration, occupying and im-
proving it as his own ; and while he was thus
in possession, and, which is equally important,
while Mooney was out of possession, the de-
fendant purchased the equitable interest
claimed by Mooney under the Surveyor-Gen-
eral's certificate. It is material to .observe that
long before the defendant's purchase, Mooney
voluntarily surrendered the possession of the
land to Williams, under whom the plaintiff
claims, after having been Williams' tenant for
a year. Two questions arise upon the merits
of this case. 1st. Whether the purchase by
the defendant was of a pretended right or title
within the Statute ; and, 2<l If it is, what
shall be the amount of the recovery, $400 or
$1,000.
1st. The words of the Statute are, that no
person shall buy or sell any pretended right or
title, or make, or take any promise, grant or
covenant, to have any right or title of any per-
son to any lands, Ac. Under this Statute, it is
well settled that it is immaterial whether the
right or title purchased or sold be good or bad;
l for if it be ever so good, if the vendor is not
in possession nothing passes by the deed, and
; the case comes within the Statute. It has
| also been held that the sale of a copyhold
estate, or giving a lease for years when the
vendor or lessor is not in possession, is
within the (Statute. Lord Coke says: "The
words of the Statute be, 'any pretended right,'
and, therefore, a lease for years is within the
Statute; for the Statute saith not 'the right' but
'any right,' apd the offender shall forfeit the
whole value of the land." And again ; "Also
the Statute speaks of any right or title to any
*land. A customary right.'or a pretense [*2i>i!
thereof, to lands holden by copy,,is within this
Statute." (Co. Litt.. 369 a and b.) The Statute
intended to prohibit the sale of pretended
rights by which the possession of another might
be disturbed. And it appears to me that a pur-
chase like the present is fully within the mean-
ing and spirit, as it indisputably is within the
words of the Act. The defendant, by getting
possession of the Surveyor-General's certificate
and the assignment of it by Mooney, had it in
his power, perhaps, to defeat the plaintiff's
right or, at all events, to give him great trouble
and vexation in perfecting his title. It was a
dormant and abandoned claim of Mooney,
which the .defendant bought for the express
purpose of harassing the plaintiff and to dis-
turb his right and possession. The case shows
that, by virtue of this very purchase, the de-
fendant extorted a considerable sum of money
from the plaintiff by threatening to dispossess
him.
2J. We have more than once decided that
when a person entered, and was in possession,
under an agreement to purchase an entire lot
or piece of land, and cultivated and improved
a part, claiming the whole as his own, that he
was to be deemed to be in the actual possession
of the whole; and that a deed given by a
stranger, though he had a good title, was in-
operative. The assignment in this case is of
the whole lot described in the Surveyor-Gen-
eral's certificate ; and there is no pretense for
saying that Mooney was in possession of any
part of it. He had, in fact, actually surrender-
ed the possession to Williams long before the
defendant purchased from him his pretended
right. The defendant was fully apprised of
the actual situation of the lot, and bought it
with full knowledge of the plaintiff's rights.
I do not see, therefore, upon what ground it
can be contended that the defendant is not lia
ble for the value of the entire lot, if he is liable
at all. I am of opinion, therefore, that the
plaintiff is entitled to judgment for $1,000, l»e-
ing the value of the whole lot, as found by the
jury.
THOMPSON, Ch. J., and YATES, J were of
the same opinion.
SPENCER. J., dissented, observing that the
case presented facts establishing a fraud rather
than an offense against the Statute. It is con-
ceded that, be the title ever so valid, if the
lands be held adversely to that title it would be
champerty to purchase *such valid [*!2J)t'{
title ; but if the title purchased be valid, and
the land is held under or subservient to that
title, it would not be champerty. It is held
not to be sufficient to show that the seller had
JOHNS. REP. 18.
N. Y. K.. 5.
40
025
293
SUPREME COURT, STATE OF NEW YORK.
181ft
not been in possession a year before, without
averring that he had a pretended right or title,
because that is the point of the action. (2
Hawk., bk. 1, ch. 86, sec. 10.)
The intent of the Statute was to prevent any
person having a disputed title from conveying
it to strangers. (Bac. Abr., Maintenance, E.)
Here we are warranted in saying, that the
plaintiff knew that the lands had been taken
up by Mooney, under the Surveyor-General's
certificate, and that it was sold under the. fi. fa.
against Mooney, in subserviency to that right;
and we must say that the plaintiff acquired by
his purchase the bare right of possession, sub-
ject to the right of the State. This is, then,
not a case within the purview of the Statute :
the right of the State was not a pretended
right ; for the plaintiff held under the State
without any title, and not having acquired by
his purchase a right to grant.
Again ; the defendant taking an assignment
of the Surveyor-General's certificate was not
taking a promise, grant or covenant, to have
any right or title ; the operation of law might
be that he would obtain a grant by the produc
tion of the certificate and the payment of the
price of the land, yet it was not in itself a
promise, grant or covenant that he should
have the land. This is a penal Staiute, and to
bring the defendant within it he must be
brought within the very terms. I cannot view
the case as within either branch of the Statute,
and, therefore, think the defendant is entitled
to judgment.
PLATT, J., was of the same opinion.
Judgment for tJie plaintiff.
294*J *DE RIDDER v. M'KNIGHT.
Contracts — For Sale of Chattels — Completion of
Contract in Question of Fact — Sale of Ponder-
ous Articles with Land— Delivery of.
Whether a contract for a sale of chattels has been
completed, is a question of fact for the jury, and
the plaintiff ought not to be nonsuited on the
ground that the contract was not fully made out.*
Where, on a sale of land, the vendee also agrees to
purchase certain ponderous articles on the prem-
ises, and then enters into possession of the land, the
articles sold still remaining upon it, this is a suffi-
cient delivery.
IN ERROR to the Court of Common Pleas
of the County of Washington.
The plaintiff in error, who was also plaint-
iff in the court below, brought an action of
aixumpxit against the defendant to recover the
price of a set of grist mill stones. On the trial
in the court below, one Barber testified that,
on the sale of a farm by the plaintiff to the de-
fendant, the defendant applied to the plaintiff
for the purchase of a set of grist mill stones,
which it was understood did not pass with the
land : that the plaintiff informed the defend-
ant that he had bargained with one Tifft for
the sale of the stones, but agreed that if Tifft
would relinquish the bargain, the defendant
should have them at the price agreed to be
given by Tifft, which the witness understood
to be about $70 ; that the defendant solicited
*See Rafelye v. Mackie.6 Co wen, 250: Outwater
v. Dodge, 7 Id., 85.
626
the plaintiff to obtain Tiff t's relinquishment,
and agreed to pay for that purpose, if de-
manded, a sum not exceeding $5. The wit-
ness stated that he understood from the con-
versation, that if the plaintiff procured Tiff t's
relinquishment, the defendant was to take the
stones according to the agreement.
Powell, another witness, testified as to a
conversation between the parties at the time
of executing the deed for the premises above
mentioned, in which the plaintiff asked the
defendant if he intended to take the mill stones;
that the defendant answered he would rather
not ; but that it was then agreed that the
plaintiff should procure Tifft's relinquishment
of the bargain for which the defendant should
pay, in addition to the price of the stones,
which was declared to be $75 ; that the de-
fendant agreed to accept a horse in payment,
provided the horse suited him.
Brewer, another witness, testified that in
the spring subsequent to the autumn in which
the defendant purchased the plaintiff's farm,
the defendant requested the witness to inquire
of the plaintiff whether he had obtained Tifft's
relinquishment of the bargain : that the plaint-
iff informed him that he had obtained it,
which the witness mentioned to the defend-
ant, who expressed his satisfaction ; that the
defendant, afterwards, requested the witness
*to ask the plaintiff whether he was [*295
willing to receive payment in a horse. The
witness also stated that the mill stones had re-
mained on the premises since the farm was
purchased by the defendant, and were there
still.
This evidence having been produced on the
part of the plaintiff, the defendant's counsel
moved for a nonsuit, on the ground that there
was no bargain, in fact, made between the
parties, and that if there were, it was void by
the Statute of Frauds. The court below there-
upon directed the plaintiff to be nonsuited ;
and a bill of exceptions being tendered to the
opinion of the court, it was removed 'into this
court by writ of error.
Mr. Wendell, for the plaintiff in error, con-
tended that there was a sufficient delivery of
the articles sold within the Statute of Frauds.
(Elmort v. Stone, 1 Taunt,, 458 ; Bailey & Bo-
gartv. Ogden, 3 Johns., 399; Rob. on Frauds,
174-183.)
Mr. Crary, contra, insisted that there was
no contract of sale concluded between the
parties ; but if there were any contract, it was
void by the Statute, there being no memoran-
dum, in writing, signed by the parties, nor
any delivery by the vendor and acceptance
by* the vendee. (3 Johns., 399.) The Statute
applies as well to executory as executed con-
tracts. (Bennetv. Hull, 10 Johns., 362.)
VAN NESS, J., delivered the opinion of the
court : .
Whether the bargain between the parties
for the sale of the mill stones was completed,
or whether it was only in fieri, was a question
of fact which ought to have been submitted
to the jury for their decision. The evidence
that the negotiation had been closed, and that
the defendant had agreed to purchase, is pretty
strong, and the jury would have been war-
ranted to have found for the plaintiff The
JOHNS. REP , 13.
1810
AISEEL v. RADCLIKF.
greatest difficulty in the case is, whether it ap-
pears sufficiently that the plaintiff had pro-
cured a relinquish inent from Tifft, who had
previously agreed to purchase the mill stones.
From the testimony of Brewer it appears that,
at the defendant's request, he inquired of the
plaintiff whether he had procured such relin-
quishment, who said he had : and that when
he informed the defendant of it, he " ex-
2J>O*1 pressed his 'satisfaction with the
same. The fact that the mill stones have re-
mained continually in the plaintiff's posses-
sion, without any claim on the part of Tifft,
or any other person, affords a strong presump-
tion that Tifft had renounced any pretentious
he might have had to them. The agreement ;
between the plaintiff and Tifft, in fact, pre !
sen led no legal obstacle to the sale to the de- '
fendant, because there is no evidence of any !
delivery to TU^. nor that he ever paid any
part of the ^••side-ration money. Indeed,
from the bill ^exceptions, it is evident there
was neither delivery nor payment. These re- ;
marks serve to show the propriety of submit-
ting all the evidence to the jury, in order that '
they might have drawn the proper conclusions j
from it. If there was an absolute contract on j
the partof the plaintiff tosell, and on the part of <
the defendant to buy, the delivery was abun- j
dantly sufficient. The articles sold were pon-
derous, and there has been the only delivery of
them which was practicable. They were left on
the land purchased by the defendant, which ,
was in his possession, and there they have !
since remained, in his power, and subject to !
be used by him whenever he pleased. The !
presumption, perhaps, is, that he has kept
tin-in in pursuance of the purchase made by j
him ; for if he did not. why did he, shortly j
after the time he sent Brewer to the plaintiff
to inquire about Tifft's relinquishment of his
purchase, request Brewer to ask the plaintiff
whether he was willing to receive payment for
the stones in a horse ? The court are, there-
fore, of opinion that the judgment below ought
to be reversed, and that a wnire de noro be is-
sued by the court below.
Judffinent below reversed.
Cited in-tt Hill, 213; 39 N. J. L., 8.
*ABEEL AND ABEEL
v.
W. RADCLIFF.
landlord and Tenant — Lessee Holding Over —
A$sumpsit Lies for Use arid Occupation — Cov-
enant to Let — Renewal of— SMuteof Frauds.
An action of oMwmpfttt for the use and occupation
of land, will lie against a lessee by deed who holds
over after the expiration of the time.
And such action lies against a tenant, holding
under a covenant contained in the expired lease,
for a renewal.
A covenant in a loose, on the part of the lessor, to
let thelot,at the expiration of the term, to the lessee,
without mentioning any price for which it was to
foe let, is not a covenant Tor a perpetual lease, or
for u perpetual renewal of the lease, and can at best I
IM- i -x tended to a single renewal for the term for ,
which the original lease was given.
Itut it is not eapable even of the latter construc-
tion, and is altogether void for uncertainty.
Every agreement which is required to be In writ-
Ing by the Statute of Frauds must be certain in it-
self, or ca|>able of being made so by a reference to
JOHNS. REP.. 18.
something else, whereby the terms can be ascer-
tained with reasonable precision, otherwise it can-
not be carried into effect.
Citations-5 T. R., 471; 4 Esp., 59; 6 Johns., 46; 12
Vea., 4«tt ; 1 Scho. & Lef ., 22 ; 11 East, 14* : 1 Atk.. 12;
3Johri8.,35»: 2 Bro. C. C.. 318 ; Free, in Chan., 374.
500; Gilb. Eq. Cas., 35 ; 2 Vern.. 415; 1 Ves., Jr., 279.
THIS was an action of asuumjm't brought to
recover the rent of certain premises, situ-
ate in the village of CatskiU and County of
Greene. The declaration contained two counts,
one for the use and occupation of the premises
in question, the other a quantum ineruit there-
on. The plea wa« the general issue.
On the 1st of April, 1793, the plaintiffs, being
the owners of the premises above mentioned,
by an indenture of that date, made between
them and one David Van Bergen, demised
the premises to Van Bergen for the term of ten
years, then next ensuing, at an annual rent of
£4 10*. The following covenant was con-
tained in the indenture: "Provided, never-
theless, that the parties do hereby agree, that,
at the expiration of the above term, the par-
ties of the first part shall, if convenient, take
and pay for the buildings on said lot at the
appraisal of three indifferent men to be chosen
by the said parties, or let the said lot for a
yearly rent to be fixed by three indifferent
men, in like manner to be chosen by the said
parties. It 'is, nevertheless, to be observed
that the said party of the second part
shall not put on said lot any more buildings
than a house and barn, which buildings only
are to be appraised and paid for." The lessee
took possession under this indenture, and the
premises, after sundry mesne assignments,
came into the possession of the defendant.
The rent claimed by the plaintiffs was what
had accrued si rice the assignment of the lease
on the 10th of June, 1808. On the expiration
of the term, the plaintiffs refused to have the
buildings appraised, but offered a renewal of
the lease for some short period of time; but
the defendant insisted that he was entitled to
a perpetual lease of the premises, and the
plaintiffs offered to give a lease for a term not
exceeding ten years, which the defendant re-
fused. The parties thus differing as to their
rights and liabilities, no rent was paid by the
defendant. It was agreed by the parties that
the rent of the premises for ten years, from the
first of April, 1803, when the lease expired,
ought to be estimated at $25 per annum, and
the rent on a perpetual lease at $50 per an-
num. And, for the purpose of deciding all
the rights and 'liabilities of the parties [*2 J>8
on the facts above stated, certain stipulations
as to the mode of enforcing the decision of the
court were subjoined to the case, which it is
unnecessary to state.
Mr. E. Williams, for the defendant, contend-
ed: 1. That the defendant, and those under
whom he claims, having entered and held the
premises by virtue of a lease under seal, and
the plaintiffs having refused to give a new
lease according to the covenant, that is, a per-
manent lease, the present action, for use and
occupation, could not in- maintained ; but the
plaintiffs' remedy was on the contract.
3. That the plaintiffs, by their covenant of
renewal, were bound to give a permanent
lease, or one for the longest term known or
recognized in the lav«t Such a lease is the
627
298
SUPREME COURT, STATE OF NEW YORK.
1816
only one that can afford reciprocity, and give
effect to the contract. To show that this was
the true construction of the covenant, he cited
the following authorities, as establishing prin-
ciples analogous : 3 Atk., 33, 475 ; 2 P. Wms.,
19ti ; 1 Bro. P. C., 522 ; 2 Bro. Ch. Cas., 636,
6H9 ; 3 Bro. Ch. Cas. . 63 ; 4 Bro. Ch. Cas. ,
415 ; 2 Ves., 498 ; 3 Ves., Jr., 295, 298, 378 ; 6
Ves., Jr., 232; Cowp., 819.
Mr. Cantiiie, contra, contended that the or-
iginal lease having expired, to support this ac-
tion it was enough to show that the relation of
landlord and tenant existed. The plaintiff
could not sue on a lease which had expired,
for rent accruing subsequent to its expiration.
Here was an under tenant, against whom the
plaintiff has a right to this action for the use
and occupation. (8 T. R, 327.)
It is said here is a covenant, or agreement
under seal ; but this is merely an agreement
to give a lease, not an actual lease, and as no
lease has been made out, or delivered pursu-
ant to the agreement, the plaintiffs are entitled
to this form of action. (Elliot v. Rogers, 4 Esp.
N. P. Cas., 59.)
As to the main point, what lease the plaint-
iff was bound to give, that must depend on
the construction of the covenant. If the in-
tention of the parties is to be regarded, it is
very evident, from the whole lease, that they
never contemplated a renewal for a longer
time than a year, or until the building could
be appraised and paid for.
VAN NESS, J., delivered the opinion of the
court :
The first question is, whether the plaintiffs
299*] can recover in this form of *action.
I think they can. The demise' for the first ten
years had expired before the defendant be-
came the assignee ; and the rent, for the re-
covery of which this suit is brought, is for the
use and occupation of the premises since that
period. There can be no doubt that assumpsit
will lie against the tenant who holds over ; in
such cases the law creates a tenancy from year
to year, and the tenant cannot be turned off
without a previous notice to quit. (Doe, exdem.
~
The defendant cannot be said to hold under
the lease ; the covenant for a new lease never
having been executed upon the expiration of
ten years. After that period the defendant
must be considered as holding under the cove-
nant for a renewal : this case, then, is very
analogous to that of Elliot, Executor of Thomp-
son, v. Rogers. 4 Esp., 59. This was assumpsit
for use and occupation : the plaintiff's testator
had agreed, by deed, to give the defendant a
lease, and it being objected that the action
could not be maintained, Lord Kenyon held
that if there had been a demise by deed, the
plaintiff could not maintain assumputt ; but
that the agreement was not a lease, but only
an agreement for a lease ; that the defendant
did not hold under the deed, and that the ac-
tion was, therefore, maintainable. The cove-
nant for a renewal of the lease, in this case,
never having been executed, no action could
be maintained upon it to recover the rent in
question. This case is clearly distinguishable
from that of Smith v. Stewart, 6 Johns., 46,
inasmuch as the defendant there entered under
G28
a contract to purchase the fee of the land,
though I thought the action was maintainable
even in that case.
It is submitted to us, also, to decide for
what term or estate the plaintiffs were bound
to give a new lease, under the covenant stated
in the original lease. The defendant contends
he is entitled to an estate in fee, rendering such
rent as shall be fixed by appraisement. This
pretension is altogether inadmissible. The ob-
ject of the parties, probably, was to give the
lessee a new lease for such a term as would re-
imburse or indemnify him for his expenses in
the erection of a house and barn, in case the
plaintiffs did not elect to pay for them at the
expiration of the ten years. It is clear that an
estate in fee was not contemplated by either of
the parties. The words are, that the plaint-
iffs are "to let the said lot," &c. The word
"let" is strictly applicable *tc^a lease, [*3OO
and not to a deed in fee ; and^«ase is for life
or for years, or at will, and j(|ays for a less
time than the interest of the lessor in the prem-
ises. In England it is not unusual to insert a
covenant in a lease, for a perpetual renewal,
upon certain specified terms; but none of the
cases upon this subject (several of which have
been cited for the defendant) show this to be a
covenant of that description. In all the cases
cited, as well as some others, a perpetual re-
newal was agreed to be given, either by ex-
press words or necessary implication or 'con-
struction, neither of which exist in the case
before us. Construing the words of this cove-
nant per se, as we are bound to do, I think
the plaintiffs, at most, would not be bound to
give, any other than a new lease for the same
term as that for which the original lease was
given, namely, for ten years. But I am of
opinion that this covenant is totally void for
uncertainty. How far this uncertainty might
be obviated by a bill in the Court of Chancery,
to which the decision of this point properly
appertains, I do not know; but proceeding
upon the naked agreement, it is impossible
to collect from it for what term the parties
contemplated the new lease should be given.
It is possible that it may be a good agreement
for one year, but the words that the land is
to be "let for a yearly rent, to be fixed," &c.,
seem to imply that a longer term was con-
templated. As I have before remarked, it
probably was the intention of the parties to
permit the lessee to occupy the land until he
should be paid for the buildings erected by
him ; but the agreement is too loose and vague
to justify giving even such an effect to it.
Every agreement which is required to be in
writing, by the Statute of Frauds, must be cer-
tain in itself, or capable of being made so by a
reference to something else, whereby the terms
can be ascertained with reasonable precision,
or it cannot be carried into effect. The cases
to this point are numerous and decisive, as will
appear by a short reference to some of them.
In Blngden v. Bradbear, 12 Ves., 466, there was
a bill for the specific performance of an agree-
ment for the purchase of land, and the Master
of the Rolls observed that an auctioneer's re-
ceipt may be a note in writing, or memoran
dum, within the Statute ; but, then, the receipt
must be certain within itself, or by reference
to something else, so that it may be known
JOHNS. REP., 13.
1818
BKECKKR v. VROOMAN.
300
what the agreement was. That one material ;
particular tlid not appear in the receipt, name
30 1 *] ly, *the price. The plaintiff must show i
a complete written agreement, and the bill was j
dismissed.
In Clinan. v. dmke, 1 Scho. & Lef., 22, there
was an agreement for a lea.se in which the
term for which the lease was to be made was
not mentioned, but the complainant (who filed
the bill for a specific performance of the corn-
tract) was to pay a yearly rent of two guineas
for the first year, aiid £2 $*. for the remainder
of the term. The Lord Chancellor of Ireland
held that the agreement being silent as to the
term to be demised, the defendant was not
bound to perform the contract. This case, in
its leading features, is very like the present,
and appears to have been settled upon great
deliberation. In Sxig>x>d v. Mutle & Iswird,
Prec. in Ch., 560. a like bill was filed on a
written agreement which did not specify the |
terms, and the bill was dismissed. The same '
doctrine will be found in a great variety of
other canes, as well at law as in equity ; and
the rule which I have mentioned appears to be
settled upon the firmest basis. (Bt>i/<lett v.
(),-u minond, 11 East, 142; Clark v. Wright, 1
Atk., 12; BttiUy £ Boyert v. Ogden, et <d., 3
Johns., 399 ; Taicneyv. (Jrotcther, 3Bro. C. C.,
318; Syinondxon v. Ticeed, Prec. in Chan.,
874 ; Gilb. Eq. Cas., 35 ; Broinley v. Jeffrie*, 2
Vern., 415; u/tdeneoodv. Uitchcox, 1 Ves., 8r.,
In the case before us, the parties have
omitted to state the term for which the new
lease was to be given ; and unless the court
makes a contract for them, the defendant is
without a remedy, at least upon the case now
presented to us. From what has been said, it
follows that the plaintiffs are entitled to judg-
ment, for $95.65. The stipulation in the case
is, that $25 per year shall be considered as a
fair rent upon a lease for ten years; I presume,
however, it was intended that the same rent
should be allowed in case the court should be
of opinion that the plaintiffs were not bound
to give a new lease.
Judgment for tfie plaintiff*, accordingly.
Assmnpsit /or it*- ami iicc.upatinn will lie again*!
tenant In >l<lt tig over. Cited in— 15 Johns., 507; 1 Wuud.
135; Edm., ii">: 2 Hilt., 543.
Statute itf Frawl*—Cla,u*f# rnld for uncertainty.
Cited ln-21 Wend., 063; Hill & D., UK): 6 Johns. Ch..
218 : * Stand. Ch., 248 : Hoffm., Ill : 7 N. Y., 474; 25 N.
Y.. 161; 45 N. Y., 446; 49 N. Y.,504; 79 N. Y., 163: !»
Hun. 78: 4 How. Pr.,2SU; 30 How. Pr.. 427: 1 Sweeny,
.' Hilt., 1W9.
Alao cited ia-2 Abb., N. S., 144 ; 10 Allen, 325.
BEECKER & BEECKER.
VROOMAN.
raud in .Srxfe of Chattel — Mitiga-
tion of Damage».
In an action for the price nfucluitti-l. the defend-
ant may prove a deceit in the sale, und that the
chattel was of no value, und thus defeat the plaint-
iff's action : or if the uiisouiidncss produced merely
11 i' irtiul diminution of the value, he may show
that part in mitigation <>f dumaws.
i nations -7 Bast, 4HO, n.: 2 Taunt.. 2; 1 Cnmpb.,
190; HJohns., 548.
IN ERROR to the Court of Common Pleas
of the County of Madison.
JOHNS. REP., 18.
^ This was an action of asxitmjmt brought by
Vrooman, in the court below, against the
plaintiffs in error, to recover the price of a
horse and a mare sold by Vrooraau to the plaint-
iffs in error. w.ho pleaded the general issue,
with notice of special matter to be given in
evidence. The plaintiff below having proved
the sale of the mare to the defendants below,
for the price of $35, the counsel for the de-
fendants offered to prove that, at the time of
the sale, the mare was sick and diseased, and
the plaintiff, well knowing this fact, repre-
sented her to be sound and healthy. This
testimony was objected to by the plaintiff's
counsel ; and the defendants'" counsel admit-
ting, on being interrogated by the court, that
he was not prepared to prove that the de-
fendants had entirely lost the mare, but offered
to prove that the mare was of very trifling
value, and was sick and diseased, and that the
plaintiff had defrauded the defendants in the
bargain; the court rejected the evidence, and
ruled that evidence of fraud was only admis-
sible where it went to the entire cause of ac-
tion, and could not be received in mitigation
of damages, by showing a partial loss. The
jury, under the direction of the court, found
a verdict for the plaintiff below for $39.27 ;
and a bill of exceptions having been tendered
by the defendants, it was removed into this
court by writ of error.
The case was submitted to the court with-
out argument.
VAN NESS, J., delivered the opinion of the
court :
The defense offered in the court below was
improperly excluded. The defendant below
apprised the plaintiff of his intention to rely
for his defense, at the trial, upon the fraud ;
and the established rule now appears to be,
that, in cases like the present, fraud may be
given in evidence as a defense, and will be an
answer to the whole demand, or in abatement
of the damages, according to the circum-
stances of the case. This is the true, as
*well as a salutary rule, and well cal- [*3O3
culated to do final and complete justice be-
tween the parties, most expeditiously and least
expensively, (Hasten v. Button, 7 East, 480.
n. ; Lewi* v. Catgrave, 2 Taunt., 2 ; Father v.
Sftmitndn et al., 1 Campb.. 190 ; Runyan v.
Nichob, 11 Johns., 548.) The judgment must,
therefore, be reversed, and a venire de now
issued in the court below.
Judgment below reversed.
Cited in-18 Johns., 144; 8 Cow., 84; 9 Cow., 309;
2 Wend., 432 ; 4 Wend.. 4!U : s W.-ml.. 117; 24 Wend.,
103; 1 Hill. 4W; 1 Fxlw., 308; 2 N. Y.. 158; 52 N. Y.,
402; 111 mi. s:i; 4 Barb.. 43; 10 Barb., 57: 3T. AC.,
77; 1 Hilt., 77.
GENERAL RULE.
SUPREME COURT, May 10th. 1816.
ORDERED, that after the next August Term,
no cause to be entered on the calendar
of enumerated motions, unless a note of the
issue be filed in the clerk's office of this Court,
in the City where the court is to be held, be-
fore the Friday next preceding the Term.
» 629
OF MAY TERM, 1816.1
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW YOKK.
AUGUST TERM, 1816, IN THE FORTY-FIRST YEAR OF OUR INDEPENDENCE.
WATTS «. TAYLOR.
Action of Debt to Recover Penalty— Gouts — Bail.
In an action of debt to recover the penalty given
by the 14th section of "the Act Concerning1 Dis-
tresses, Rents," &c., the defendant may be held to
bail.
Citations— 1 R. L., 437, sec. 14 ; 1 H. Bl.. 13.
THE defendant was arrested and held to bail
in an action of debt, brought to recover
the penalty given by the 14th section of " the
Act Concerning Distresses. Rents, &c." (sess.86,
ch. 63 ; IN. R. L., 434-487), which declares
that if any tenant, or lessee, shall remove and
convey away, &c., his goods or chattels, from
the demised premises, leaving the rent unpaid,
&c., he shall forfeit and pay to the landlord or
lessors or his heirs or assigns, &c. , double the
value of the goods carried off or concealed, to
be recovered in any action of debt, in any
court of record.
The Recorder of the City of New York
having ordered the defendant to be discharged
on filing common bail,
Mr. Sedgwick, for the plaintiff, now moved
to vacate the order of the Recorder, and that
the defendant be held to bail. He cited 2
T. R., 154; 1 H. Bl., 10.
I5O6*] *Mr. Goodenow, contra, contended
that this was an action on a Penal Statute,
in which, according to the settled rule of
practice in the English courts, the defendant
.could not be held to bail. He cited Tidd's
Pr., 152 ; Yelv., 53 ; Gilb. C. P., 37.
Per Curiam. This is a motion to vacate the
order of the Recorder of New York, for dis-
charging the defendant on common bail. The
action is founded on the 14th section of the
Statute "Concerning Distresses, Rents, and Re-
moval of Leases" (I R. L., 437), for removing
goods from the demised premises, leaving the
rent unpaid. This is not a popular action. The
penalty is given to the landlord or lessor, and
is double the value of the goods carried off.
The right of action vests in the party aggrieved,
as soon as the grievance is committed. And
Gould, J., says, in the case of Ward v. Snell,
1 H. Bl., 13, an action for such penalty is
like an action on a bond to recover a debt
already due, and the plaintiff, if he recovers
in such case, is entitled to costs. The defend-
ant was properly held to bail ; and if there be
630
any complaint with respect to the amount, the
Recorder, or Judge, at his chambers, can miti-
gate the bail.
Motion granted.
ROSS v. DOLE.
Practice — Action for Erecting Nuuance — Costa —
Set- Off of Damages.
In a special action on the case for erecting a nui-
sance, the plaintiff having recovered $45 only, and
there being no certificate of the judge that the title
to land came in question ; it was held that the
plaintiff could not recover costs, but must pay costs
to the defendant.
But the plaintiff was allowed to set off the dam-
ages recovered, against the costs, notwithstanding
any lien which the defendant's attorney claimed to
have on the costs.
THIS was a special action on the case, for
erecting a nuisance, in which the plaintiff
recovered $45 damages ; and the question on
the present motion was, whether the plaintiff
could recover costs, or must pay costs.
Mr. Ross for the plaintiff.
' Mr. Buel, contra.
*Per Curiam. This was a special [*3O7
action on the case for erecting a nuisance.
The plaintiff has recovered $45, and the
question now is, whether he is entitled to re-
cover costs, or is bound to pay costs to the de-
fendant. No certificate has been procured
from the judge who tried the cause, that the
title to land came in question. Nor, indeed,
is it a case in which the title to lands could
come in question. Although the defendant
might have a claim to the house occupied by
the plaintiff, he has no right to endeavor to
drive him out, by erecting a nuisance. He
must try his right in a regular course of
judicial proceedings. And this we know he
once attempted to establish, but. failed. The
offer of the defendant to show a title was
properly overruled by the judge. The motion,
on the part of the plaintiff, for costs must be
denied. He is bound to pay costs to the de-
fendant, but the plaintiff has a right to set off
the damages recovered against the costs, not-
withstanding the lien which the defendant's
attorney claims to have on these costs.
Cited in- 4 How. Pr., 170.
JOHNS. REP., 18
1816
WHITE ET AL. v. SKINNER.
307
WHITE ET AL. t>. SKINNER
Agency — liuml — Executed without Authority,
Binds Agent PerwiuMy — Pleading.
A person who seals a bond, as attorney for
another, without authority, is personally liable, as
if In- hud covenanted in his own name.
When: the defendant to an action of covenant
pleaded, that the plaintiffs, himself and others, were
amociab-d as copartners under a certain firm, and
that he with U and C wen- appointed agents and di-
rectors for the Company, and that In- executed the
agreement In his capacity of agent und director, and
not otherwise, without averring orsettinK forth his
authority, the plea, on demurrer, was held bad.
Where a person seals a deed, or executes a cove-
nant, in i»ehalf of others, he is bound to aver or set
forth and prove the authority under which he
acted. It is not enough to crave oyer of, and set
forth, the instrument executed by him, in his plea.
Citations-7 T. K., 307; 3 Johns. Cas., 180; 2 Cai.,
354 ; 5 East, 148 ; 4 Mass., 505.
THIS was im action of covenant. The dcc-
larution set forth nn agreement, undersea!,
dated the 25th of April, 1815, bv which the
plaintiffs covenanted to make and furnish, at
the Qranville Cotton Factory, a quantity of
machinery, of a certain description, one half
of which 'was to be delivered in October, 1815,
and the other half on, or before, the 1st of
.May, 1816 ; and that the defendant, in and by
the said agreement, covenanted to pay the
plaintiffs for the said machinery $15,120. in
various installments; one of which, or $900.
was to be paid on the 80th of May, another of
$500 on the 29th of June, and another of $500
on the 29th of July, 1815 ; and breaches were
assigned for the non-payment of these several
i!i<tallraents.
3O8*J *The defendant craved oyer of the
contract, which was set forth in hrvc rerba, by
which it appeared to bean agreement between
the plaintiffs of the one part, and Reuben
Skinner (the defendant), William Raymond,
Jr., and Abner Hitchcock, as directors of the
Granville Cotton Manufactory, of the other
purl; and by which the persons named, of the
second part, engage, in behalf of the Com-
pany, to pay to tlie plaintiffs the sums of
money mentioned in the agreement ; but the
contract was signed and sealed by the defend-
ant alone, in the following manner : " For the
directors, Reuben Skinner (L. S.)" The de-
fendant then pleaded : 1. Non estfactum. 2.
A special plea in bar, that the plaintiffs, and
several other persons, had previously associat-
ed themselves with the defendant.'as copart-
iierx, under the firm of " The Granville Cotton
Manufacturing Company," and had appointed
the defendant President, and a director and
agent, and William Raymond. Jr., and Abner
1'. Hitchcock, directors and agents of the said
Company ; and that the said agreement was
executed by the defendant in his capacity of
director and agent for the said Company, and
not otherwise, or in any other capacity'what-
«ver ; of which the plaintiffs had notice, &c.
To this second plea there was a demurrer
and joinder in demurrer.
Mr. fiuel, in support of the demurrer, con-
t« in led that the defendant having signed the
agreement with his own name merelv, and nf-
fixed a seal, it was his own act and deed. It is
NOTE. -Bond* hy agent*— When agent prr#tnaUv
liable on. Sue Taft v. Brewster, 9 Johns., 334. note.
JOHNS. REP , 18.
not enough to exempt him from a personal lia-
bility, that he described himself in the deed as
agent or attorney contracting in behalf of
another. (1 Chilly's PL, 24 ; 8 Johns. Cas.,
180; 2 Caines, 254; 2 Johns., 218; 7 T* R.,
207.)
The defendant having craved oyer, and set
forth the deed, it is part of his plea ; and it
appearing by the oyer lhat it was executed by
the defendant himself, the plea is bad. (1
Saund., 816. 817 ; 1 Chilly's PL. 420.) If an
agent executes a deed for a principal, he ought
to sign the name of the principal. (6 T. R.,
176 ; 9 Co.. 76 b; 2 Ld. Raym., 1418 ; 1 Sir.,
705 ; 2 East, 142.)
Again ; a person who docs an act in the
name of another, without authority for the
purpose, is personally responsible. (3 Johns.
Cas.. 70. 180 ; 4 Mass., 5H5 ; 9 Johns., 334 ; 3
P. Wms., 279 ; 1 Fonb. Equ., 920 b ; 4 Burr.,
2108.) Now. no authority is set out in the plea.
Me**r». Coaeit, and Skinner, contra, con-
tended thai the dcfendanl was not bound to
set out Ihe power under which he acted in his
plea. The plea alleges the fact that he aciol
merely as agent, *and the demurrer [*.'{<){)
admits the fact. Certainty to a common inter-
est is sufficient, and it was not necessary to
state the manner in which the defendant was
constituted an agent. A bailiff or servant may
plead that he acled in lhat capacily. This i - a
proper plea in bar. (1 Chilly's PI.. 434.) If
the defendanl was agent for Ihe whole nnn,
the plaintiffs are bound by his acts. They can
never maintain any action againsl the defend-
ant for this cause. In the case of Ilodgaon v.
Dexter, 1 Cranch, 345. in the Supreme Court
of the United States, the lease was signed and
sealed by the defendant, in his own name
merely, though in the body of the instrument
he was described as Secretary of War, and he
covenanted for himself and his successors.
The defendant there craved oyer, and pleaded
in bar thai he execuled Ihe lease in his official
capacity, and, on demurrer, the plea was held
good. In Ummn v. Wvkey, 1 T. R.. 674, the
Court of K. B. said it made no difference
whether the contract were by deed or parol.
where it appeared to have been made by the
defendant as a public agent, and not on his
private account.
In the present case, it appears from Ihe oyer
lhat the defendant was agent merely, and the
plaintiffs, knowing Ihe fact, took it from him
as acting in that capacity. On the face of it,
then, Ihe plaintiffs have no right of aclion
againsl Ihe dcfendanl.
Again ; if Ihe defendanl had no power lo
bind the Granville Cotton Manufactory, then
the deed was void ; then the plainliffs should
have broughl an action on the case against the
defendant for the fraud or injury, and not
have sued on the instrument, as if it were
valid. If a person, acting a.s agenl, exceeds
his aulhority, he is liable, not on Ihe contract,
which* he had no authority to make, but for
the wrong he has done. The action is ex de-
licto, not ex eontrtictu. But there can be no
pretense of fraud in the dcfendanl ; and where
lliere is good faith, the acts of an agenl are lo
be favorably and literally construed. (1 Johns.
Cas., 110. 174 ; 2 Caines, 810.)
Again ; il appears thai the plainliffs were
•ti
309
SUPREME COURT, STATE OF NEW YORK,
181ft
partners with the defendant in the association.
They cannot sue themselves ; they must go
into a court of equity for redress, if they have
sustained any injury.
Jar. Buel, in reply. The case of Hodgson v.
Dexter was that of a government agent ; and
there is a clear atid settled distinction between
public and private agents. (1 Chitty's PL, 24 ;
1 T. R.. 172, 676 ; 5 East, 148.) The plaintiffs
have not covenanted with the Granville Cotton
31O*J Manufactory, but the *defendant ; and
it was because they could not contract with
that Company that they entered into the cove-
nant with the defendant.
If one of several partners executes a deed,
or covenant, in the name of the firm, it is his
own deed. It is not denied that the defendant
was an agent of the Granville Cotton Manu-
factory. But there is a distinction between an
attorney in fact and an agent. The former can
be constituted only by deed. (1 Bac. Abr.,
Authority, A; Co. Litt.,48; 1 Salk., 96.) The
authority of the latter may be by parol or im-
plied. An attorney must always use the name
of his principal ; an agent or factor may do
the business in his own name. If the defend-
ant had been an attorney in fact, and had exe-
cuted the deed in his own name, it would have
been void. (Bogert v. Debusssey, 6 Johns., 94.)
The deed is the act only of the person who af-
fixes the seal, though other persons are named
as the covenantors. (1 Str., 503; 1 Saund.,
291 ; 7 T. K., 207 ; 2 Caines, 254 ; 2 Bos. & P.,
338.) But, where a person acts as an agent,
contracts made by him are not void for want
of authority, but he is personally liable. The
plaintiffs, as partners, or the Company, have
no concern with this covenant. It is the indi-
vidual act of the defendant. It is to be pre-
sumed that he was indemnified for his under-
taking.
Again ; on what principle are the plaintiffs
to be sent to a court of chancery ? They have
an express covenant, on which they have ade-
quate remedy at law. Matter of defense in
equity cannot be set up at law. (1 Chitty's PL,
460 ; 7 East, 153 ; 3 East, 344.)
PLATT, J., delivered the opinion of the court:
The law is well settled that one person can-
not seal for anolher, without express author-
ity, and it is also settled that if a person exe-
cute a bond as attorney for another, without
authority, such person so assuming to act is
personally bound, as though he had covenant-
ed in his own name simplv. (7 T. R., 207 ; 3
Johns. Cas., 180; 2 Caiues, 254; 5 East, 148.)
The case of Tippets v. Walker etal., 4 Mass.,
595, is similar to the present in almost every
feature. There a committee of a turnpike
corporation covenanted in their own names, as
a committee, to pay for making a road for the
Corporation, and the question was whether
they were personally liable. Ch. J. Parsons, in
delivering the opinion of the court, says : " If
any individuals, who are agents for the Corpo-
ration, or of any officers of it, will voluntarily
stipulate with workmen for their payment, it
is reasonable that they should be holden to
311*] their contract. *A case of this kind is
not like a contract made by an agent for the
public, and in the character of an agent, al-
though it may contain an engagement to pay in
632
behalf of the government. For the faith and
ability of the State in discharging all contracts
made by its agents in its behalf, cannot, in a
court of law, be drawn in question."
Testing the defendant's plea by these rules,
I think it is bad, and the demurrer is well
founded.
The defendant represented himself, and as-
sumed to act, a« the agent of the directors of
the Manufacturing Company. He is now sued
in his private individual capacity; and to ex-
onerate himself, he was bound to aver and
prove that he had authority to seal for his co-
directors.
The covenant is not to be regarded as a nul-
lity. The plaintiff relied on this specialty se-
curity. If it does not bind the directors, for
whom the defendant represented himself as
agent, then it is personally obligatory on the
defendant alone. And it is incumbent on the
defendant, not on the plaintiffs, to aver and
prove the authorization, if any, by which the
defendant contracted for Raymond and Hitch-
cock, or for the Company. Whether he had
such authority is a fact for which the defend-
ant alone is responsible ; and he has no right
to call on the plaintiffs to prove either the
negative or affirmative. The plea is, there-
fore, bad, because it contains no such aver-
ment, upon which the plaintiffs might have
taken issue. If the defendant is not person-
ally bound, he ought, by his plea, to have
shown that upon this covenant the plaintiffs
had a right of action against some other per-
son.
That the plaintiffs were stockholders, or
partners, in this Manufacturing Company,
affords no ground to defeat their claim under
this covenant.
The plaintiffs are entitled to judgment on
the demurrer.
Judgment for tlie plaintiffs.
Cited in— 19 Johns., 64, 531 ; 1 Cow.. 536; 7 Cow..
454: 8 Cow., 585: 3 Wend., 99; 8 Wend., 485, 499: 12
Wend., 55, 358 : 17 Wend., 42 ; 19 Wend., 231 ; 9 N. Y.,
586 ; 19 N. Y., 315 : 26 N. Y., 123 : 28 N. Y., 269 ; 40 N.
Y., 67 : 1 Laos., 387 ; 7 Hun, 364 : 9 Barb.. 529 ; 19
Barb., 76 ; 28 Barb., 650 ; 30 Barb., 222 ; 35 Barb., 205 ;
43 Barb., 475; 6 How. Pr., 2; 26 How. Pr., 423; 1
Duer, 406; 1 Hall, 283.
*PUTNAM v. PAYNE. [*312
Dangerous Animals — Killing Ferocious Dog
Running at Large is Justifiable — Also Dog
Bitten by Mad Animal.
Any person is justified in killing a ferocious and
dangerous dog, which is permitted to run at large
by its owner, or escapes through negligent keeping,
the owner haying notice of its vicious disposition.
Any person is justified in killing a dog which has
been bitten by another mad animal.
But whether that could lie a justification for
killing more useful and less dangerous animals^
Quaere.
IN ERROR, on a certiorari to a justice's
court.
The defendant in error brought an action,
in the court below, against the plaintiff in
error, for killing his dog. It was proved at
the trial that the dog was very vicious, and
frequently attacked persons passing in the
streets, in Lansingburgh, where the parties re-
JOHNS. REP., 13.
1816
SWIFT v. HOPKINS.
313
Hided. The plaintiff below had frequently
been notified of the ferocious acts of his dog,
and had been requested bv the neighbors to
kill or confine him. The dog in question had
been bitten, a few days before he was killed,
by a mad dog. There being a very great
alarm in the village of Lansingburgh, on ac-
count of mad dogs, the inhabitants petitioned
the trustees to pass by-laws for restraining
dogs, and killing those "that should be found
at large : and the trustees accordingly passed
a law, declaring it lawful for any person to
kill any dog which should be found at large
in the village. It was also proved that the
plaintiff below called upon the defendant, and
informed him that a certain other dog in the
village was mud, and requested him to go and
-In »ii it ; that the defendant accordingly took
his gun for that purpose, and, in passing
through the village, met the plaintiff's dog
running loose, and shot him dead. Judgment
was given for the plaintiff below.
Per Cnriam. It is unnecessary, in this case,
to decide whether the act complained of
could In- justified under the by-law of the Cor-
poration.
The defendant was fully justified in killing
the dog, under the circumstances of the case,
upon common law principles. The dog was,
generally, a dangerous and unruly animal,
and his owner knew it ; yet he permitted him
to run at large, or kept him so negligently
that he escaped from his confinement. Such
negligence was wanton and cruel, and fully
justified the defendant in killing the dog as a
nuisance. The public safety demands this
rule. It is little better than "mockery to say
that a person injured by such an animal might
sue for damages, or for penalties.
313*] *But, in addition to this, the dog
hat! lately been bitten by a mad dog. This,
in itself, was sufficient to justify any person
in killing him, if found running at large. We
do not mean to say that this would be allowed
as a justification for killing more useful, and
less dangerous animals, as hogs, &c.
Judgment reversed.
Cited in-4 Cow.. V&: 17 Wend., 500: 21 Wend..
408; £) Wend.. ;V.!i: 73 N. Y., 199; 17 Barb., MB; 4
Fark.:firi; 38 \VLs.. 300 ; 100 Muss.. 141.
SWIFT r. HOPKINS.
Contract — TuMic Agent — Private Contract.
Where It does not appear thatanajrent, in innkin?
a contract, acted expressly, or ostensibly, as a pub-
lic iijrrnt . it will be doomed a private contract.
IN KRROK, on ctrtiorari to a justice's cour».
Hopkins, the defendant in error, brought
an action against Swift, the plaintiff in error,
in the court below, for services performed,
money paid, &c. ; and it was proved, at the
trial, that the plaintiff below, being paymaster
of a regiment of militia, in the town of Paris,
and being at Albany, on the subject of pay
due the militia, was employed bv the defend-
ant to go to certain persons in Madison and
Oneida Counties, to procure cer'uin certifi-
cates relating to the payment of the nJMiti*,
and to bring them to Albany, which was done
by the plaintiff. It did not appear what was
the defendant's office, or whether he had any
when he so employed the plaintiff ; but after
obtaining the certificates, he was at Paris, and
there paid the militia. The defendant admit-
ted that he had employed the plaintiff to do
the service, which he had performed to his
satisfaction; and on being asked by the plaint-
iff why he did not pay him, he replied that
he could not make it a charge against the gov-
ernment. Judgment was given for the plaint-
iff below, the defendant in error.
Per Curtain. Unless the contractor shows
distinctly that, in making the contract, he ex-
pressly or ostensibly acted as a public agent,
it must be deemed "a private contract. The
return does not show that Swift assumed to
act in an official capacity when he made this
contract ; and the reason assigned by him for
refusing to pay, was, that he could not make
a charge of it against the government, is de-
cisive to show that it was a private contract.
Judgment affirmed.
Cited in-2 Wend., 376 : 6 W. Dig., 447.
NOTE.— PuMfc officer*— PerwwoJ lialiUUu of on <
contracts. See Oil! v. Brown, 12 Johns., 385. note, '
and other nntr* there cited.
JOHNS. REP.. 13.
*VAN VALKENBURGH ET AL., [*314
Assignees of MAGEE,
t>.
ELMENDORF, Gent., one, &c.
Referees — Under Insolvent Act — Refusal of One
to Act.
Where three assignees have been appointed under
the Insolvent Act of the 3d April, 1811 (since repeal-
ed), one of whom refuses to act, and no other is ap-
pointed in his stead, the two who enter upon the
execution of the trust may maintain actions for
debts due to the insolvents in their own names,
without joining the third.
THIS was a motion to set aside the report of
referees appointed by a rule of court, in
an action of assumpsil brought by the plaint-
iffs, as assignees, tinder the Insolvent Act of
April, 1811, of Magee, an insolvent debtor.
At the hearing at Catskill, in the County of
Greene, the plaintiffs gave in evidence the
proceedings relating to the discharge of Ma-
gee, by which it appeared that J. Pinckney,
the Commissioner under that Act for the
County of Greene, had ordered an assignment
of the insolvent's estate to the plaintiffs in
conjunction with one Henry M'Kinstry ; that
an assignment was made to the three, but that
the plaintiffs only had acted, M'Kinstry hav-
ing refused to act. The defendant objected
to the plaintiffs' claim, on the ground that, as
the assignment was made to M'Kinslrv, to-
gether with the plaintiffs, they could" not
maintain the suit in their own names alone.
The objection, however, was overruled, and
the referees reported in favor of the plaintiffs.
Mr. Van Vechten for the defendant.
Mr. Can tine, contra.
Per Ouriam. By the first section of the Act
688
314
SUPREME COURT, STATE OF NEW YOKK.
1816
for the Benefit of Insolvent Debtors and their
Creditors, passed 3d April, 1811, the Commis-
sioner is directed to order an assignment of
the debtor's estate " to three discreet and suf-
ficient persons," naming them. By the 4th
section of that Act, it is directed, that upon
"producing a certificate under the hands and
seals of the assignees, or any two of them,"
that the debtor has executed an assignment of
all his estate, &c., then the Commissioner
shall discharge the debtor ; and, by the 17th
section of the same Act, it is provided " that a
majority of the assignees in any case to be ap-
pointed, as in and by this Act is directed, shall
have power and authority to do all acts and
perform all duties required of such assignees."
We incline to the opinion that a true con-
struction of that Act is, that the Commissioner
shall appoint three persons as assignees ; but
315*] *that any two of them, by executing the
certificate, and accepting the trust, are compe-
tent to perform all the duties. The law does
not seem to require that there shall be three
acting trustees. It is made the duty of the
Commissioner to make a new appointment as
often as a vacancy occurs among the assignees ;
but in this case the vacancy occasioned by the
refusal of M'Kinstry was not supplied by a new
appointment, and the office of commissioner
was abolished before this suit was instituted.
So that if the two assignees cannot act, the
trust must remain unexecuted. It accords with
the letter, and, we think, with the spirit of the
Statute, to uphold the acts of two of the as-
signees, where a third has been regularly ap-
pointed, and refuses to act.
The motion to set aside the report must be
denied.
Motion denied
Cited in-1 Hill, 126.
THORNE v. PECK.
Evidence — Parol Order.
In an action against an agent for money alleged
to be due to the plaintiff, the defendant may give
in evidence a parol order from his principal' not to
pay the money.
N ERROR, on certiorari to a justice's court.
I
The defendant in error brought an action
in the court below against the plaintiff in error,
who was captain of a company of militia dur-
ing actual service, in the year 1814, for his
wages and rations as a drummer in the com-
pany. The defendant below acknowledged
that he had received money for the pay and
rations of his company ; and the plaintiff be-
low had served in the company for a consider-
able time, and then deserted, but within ten
days returned again, when the defendant be-
low refused to take notice of him, or to call
his name at roll-call. The defendant below
offered to prove that the Paymaster-General
gave him a verbal order not to pay any money
to any man who had deserted, which evidence
the justice refused to hear, on the ground that
the order ought to have been in writing, and
that a verbal order was insufficient. The de-
fendant then produced a written order, direct-
634
'^f-y^f
ed to him from the colonel of his regiment,
commanding him to pay over all the money in
his hands for *back rations to the [*316
quartermaster of the regiment. Judgment was
given for the plaintiff below.
Per Curiam. The verbal order of the Pay-
master-General was obligatory on Captain
Thome, who, for the purpose of paying the
men, acted merely as the agent of f he "Pay-
master-General, and subject to his control.
The justice erred in rejecting that evidence,
and the judgment ought to be reversed.
Judgment reverted.
JACKSON, ex dem. E. STEVJENS,
v.
F. STEVENS.
Ejectment — Conveyance witlwut Title — Title Af-
terwards Acquired — Estoppel.
Where a person, having no title to land, conveys
to another, and afterwards purchases a title to the
same land, he is estopped from maintaining an ac-
tion against his grantee for the land ; but the title
subsequently acquired will inure to the benefit of
his grantee and the confirmation of his title.
THIS was an action of ejectment for a lot of
land in the town of Dover, in the County
of Dutchess, which was tried before Mr.
Justice Van Ness, at the Dutchess Circuit, in
August, 1815.
Both parties ultimately derived their title
from Lewis Hunt, who lived on the farm in
question, until his death, in 1776 or 1777.
Hunt left two daughters, his heirs at law —
Susannah, who married Elkanah Briggs, and
Mary, wuo married Saimiel Stevens. Stevens
died about four years before the trial, and
after his death, Mary, his widow, married
Justus Blanchard. The following deeds were
given in evidence at the trial :
1. A deed, with warranty, dated the 24th of
December, 1795, from Elkanah Briggs, and
Susan, his wife, to Samuel Stevens, in fee, for
the consideration of £930, for an undivided
half of the farm. This deed was not acknowl-
edged by Susan Briggs until the 20th of Oc-
tober, 1815.
2. A deed, with warranty, from Ebenezer
Stevens, the lessor of the plaintiff, and Eliza-
beth, his wife, to Justus Blanchard, in fee,
dated the 15th of July, 1813, for the consider-
ation of $2,800, for an undivided half of the
farm. This deed, also, purported to convey
'.' all the estate, right, title, interest, claim or
demand, which the said Ebenezer Stevens had
to the premises, either in law or equitv, from
the last will and testament of Samuel Stevens,
deceased." No will, however, was shown, nor
*any other evidence of title in the lessor [*3 1 7
of the plaintiff as derived from Samuel Stev-
ens.
3. A deed, without warranty, from Elkanah
Briggs, and Susannah, his wife, to Ebene/er
Stevens, the lessor of the plaintiff, in fee, dated
the 4th of April, 1814, and acknowledged the
same day, for the consideration of $1,000 for
all the farm.
4 A deed, with warranty, from Justus
Blanchard, and Mary, his wife, to Thomas
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. STEVENS.
317
Stevens, the defendant, in fee, dated and duly
acknowledged on the 2 1st of April, 1815, for
the consideration of $1,250, for the whole of
the farm.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on the facts
stated.
Mr. P. Rugyle*, for the plaintiff, contended
that the conveyance from E. Brings and Su-
sannah, his wife, to the lessor of the plaintiff,
vested in him a legal right to an equal and un-
divided moiety of the premises in question ;
and that the possession of Samuel Stevens, or
of those claiming under him, could not be ad-
verse, as the deed from Briggs and his wife,
of the 24th of December, 1795. though not ac-
knowledged by her, vested in S. Stevens a
particular estate in the premises during their
joiut lives.
Again ; the lessor of the plaintiff is not
estopped, by his deed, of an undivided moiety
of the premises to Blanchard, from claiming
the other undivided moiety, by an after pur-
chase, against him. or those claiming under
him. The case of Jtickwn, ejc dem. Danforth,
12 Johns., 201 ; and see Jack-ton v.
Jiull, 1 Johus. Cas., 90, does not proceed on
the ground of an estoppel. The principle there
decided is, that a person shall not be permitted j
to claim in opposition to his own deed, by al- 1
l»:ging that he had no estate in the premises at
the time of giving the deed.
An estoppel is where a person is concluded .
by his own act or acceptance, to say the truth.
An estoppel is reciprocal, and binds both part-
ies, and it ought to be certain to every intent ;
and therefore, if a thing is not directly and
precisely alleged, it will be no estoppel. So, if
an interest passes from the party, there shall
•be no estoppel. A party shall not be estopped
to aver a thing consistent with the record or
deed. A man cannot be estopped by accept-
ing a deed of his own land. (Com. Dig., Estop-
pel, A, 1, B, E, 3, E, 4, E ; 8 Co. Litt,, 352
ft, 352 b ; 4 Bac. Abr., 189, Leases for years.
O ; 1 Roll. Abr., 877. pi. 3; Co. Litt.. 45 a.
3 1 8*J *The plaintiff, by hisdeed to Blauch-
ard, can be concluded only as to that moiety.
It would be carrying the doctrine of estoppel
very far to say that a person who has conveyed
one moiety of an estate should be estopped as
to the other moiety subsequently acquired by
him. The party is not estopped beyond the
estate he held. (10 Johns., 292. 358.) The
grantee must resort to the covenants of war-
ranty, if the grantor has no title. Tenants in
common, iy all actions, real and mixed, must
sever, because their estates are several, and
they claim by several titles. There is no unity
but that of possession. (Jackson v. lirndt, 2
Caines. 174, 175, 176.) If the plaintiff should
now be estopped from recovering the moiety
subsequently purchased, his first deed would
operate to convey the whole estate instead of a
moiety.
Mr. J. Tallmadrje, contra, contended : 1.
That there was an adverse possession for twenty
years. (Jackmn v. frar*, 10 Johns.. 435.)
2. That the lessor of the plaintiff was
estopped by his deed to Blanchard. A man is
never allowed to claim in opposition to his
own deed, or to say he had no title. An after-
acquired title is good, by relation, and estab-
JOHNS. REP.. 18.
lishes and makes good all intermediate con-
veyances. (Jackson v. Hull, 1 Johns. Cas., 90;
12 Johns., 201.) And in Jackton.ex dem. Benson,
v. Mattdorf, 11 Johns., 91. the Chief Justice
lays it down that a deed, with warranty, is
sufficient to pass any title subsequently acquired
by the grantor. (Co. Litt., 265 a ; Yin. Abr.,
Estoppel, 2. pi. 9, A a. pi 8, B a. pi. 8. pi.
15; Co. Litt., 47 A; 1 Salk.,276; 2 Lord
Raym.,1551.)
8. By the 5th section of the Act Concerning
Uses (sess. 10, ch. 87), it is declared that every
estate, feoff ment. gift, release, grant, &c.. by
persons of full age, &c., are good and effect-
ual against theseller, feoffor, donor or grantor,
and their heirs, and all persons claiming under
them. The Statute of Uses comes in the place
of livery of seisin ; there was a transmutation
of the possession by the deed of Briggs and his
wife to E. Stevens. The deed was effectual
to pass an estate in fee ; and if not, the stil^e-
quent acknowledgment is a confirmation, by
relation, so as to make good all intermediate
acts of the gnmtee.
4. Briggs and his wife were concluded by
their deed from conveying to the lessor of the
plaintiff. Samuel Stevens held adversely, and
any subsequent conveyance by Mrs. Briggs
would be void. The grantor must have power
to deliver the possession, and actuallv deliver
it. (9 Johns.. 57.)
5. Again ; the deed of Briggs and wife was
a discontinuance *of the estate, and [*J?1O
she must have entered before she could have
power to convey. The Statute (1 N. R. L.,
162, sess. 24. ch. 169, sec. 2) which declares
that no act of the husband shall prejudice the
wife or heirs, saves only her right of entry, ac-
cording to her right or title, as if no such act
of the husband had been done or suffered. A
conveyance by the husband, with warranty,
works a discontinuance of the wife's estate,
and she must enter before she can convey.
(Co. Litt, 326 a, 330. n. 284 ; 2 Bac. Abr.,
Discontinuance, G; 2 Roll., 81; Cro. Car.,
320 ; Vin. Abr., Baron and Feme. E a, pi. 9.)
Mr. Oakley, in reply, insisted that the po^r^
sion of Samuel Stevens was not adverse, be-
cause he must have taken possession accord-
ing to his title His possession was that of
Mrs. Briggs, and so continued throughout.
Mrs. Briggs was estopped, by her deed of
the 4th of April, 1814, duly acknowledged, to
set up the prior deed of the 24th of December,
1795. and her subsequent acknowledgment of
that deed, in October, 1815, cannot make it
good by relation. In Jackvnn v. Hallncay, 7
Johns.. 81, it was decided that the wife, hav-
ing joined her husband in executing a lease in
1806, duly acknowledged by her, had put it
out of her power to affirm a prior lease by her
husband in 1795.
As to adverse possession, it must have been
so from the beginning, otherwise it cannot
avail.
The wife could not join in any warranty or
make a personal covenant, and a deed, with a
warranty by the husband, cannot affect her
rights, or work a discontinuance of her estate.
There can be no discontinuance, unless it cre-
ates an adverse possession, so as to render an
actual entry necessary, which was clearly not
the case here. When the statute says the wife
635
319
SUPREME COURT, STATE OF NEW YORK.
1816
may enter, it means that her right of entry is
saved, and she may enforce it by an action of
ejectment. The notion of an actual entry by
her is obsolete.
As to the principal point raised in the cause,
whether the deed to Blanchard is an estoppel,
we contend that the cases cited do not rest on
the strict doctrine of estoppels. The principle
is, that a party having no interest at the time
of his conveyance, but acquiring a title after-
wards, shall not be allowed to say he had no
title when he first conveyed. It does not appear
how the title was vested in Samuel Stevens.
The deed from E. Stevens to J. Blanchard
purports to be a conveyance of all the estate
acquired under the will of Samuel Stevens.
When Blanchard professes to take such an
3 2O*J interest, *can he ever allege that the
estate was acquired in a different manner ?
Per Curiam. The deed from Blanchard and
his wife, of the 21st of April, 1814, unques-
tionably conveyed to the plaintiff a good title
for an undivided half of the farm, Mary never
having executed any other deed. The ques-
tion is. whether the plaintiff shows a title to
the other half.
It appears that the lessor of the plaintiff, in
1813, having no title from any source, exe-
cuted a deed with warranty to Justus Blanch-
ard, for an undivided moiety of the farm, and
also all his interest under the will of Samuel
Stevens, for the consideration of $2,800 ; and
that, on the 4th of April, 1814, about nine
months afterwards, he obtained, for the con-
sideration of $1,000, a conveyance, without
warranty, of the whole farm from Briggs and
his wife.
. There appears to be nothing to hinder the
application of the rule of estoppel. Ebenezer
Stevens professedly conveyed an undivided
half of the farm, and all his other interest
under the will, without showing what it was,
to Blanchard, who conveyed to the defend-
ant. Now, in the absence of all other proof,
it must be intended that the subsequent pur-
chase made by Ebenezer Stevens, from Briggs
and his wife, was designed to confirm the
deed which he had before executed to Blanch-
ard.
Judgment for defendant.
Cited in-2 Cow., 230: 3 Cow., 301 ; 5 Wend., 525; 1
Paige, 450 ; 18 N. Y., 583 ; 41 N. Y., 95 ; 30 Barb., 624.
PRATT v. MALCOLM.
Bill of Exceptions — Signatures of Two Justices.
A bill of exceptions signed by two justices only
of the Court of Common Pleas, is not such a bill of
exceptions as this court will judicially take notice
of, or grant a writ to require the justices to come
in and confess or deny their seals.
MR. STORRS, for the plaintiff in error,
moved that the judges of the Court of
Common Pleas of Madison County, who had
signed the bill of exceptions taken in this
cause, come in and acknowledged their seals,
and that a writ be directed to them for that
purpose. (1 N. R. L., 326, sess. 36: ch. 4,
sec. 6.)
Mr. Foot, contra, objected that only two of
the justices had signed the bill of exceptions ;
whereas three justices, at least, *were [*32 i
necessary to constitute a court of common
pleas, so that this was not a legal bill of ex-
ceptions, or one of which this cour't could take
notice.
Mr. Storrs, in reply, contended that if one
of the justices refused to sign the bill of ex-
ceptions, the others might do it ; that this was
so laid down by Cook in his reading on the
English Statute, which was similar to ours
(2 Inst., 427 ; 2 Lev., 237); and in the case of
Maneyetal. v. Leach, Burr., 169£, 1742, 1750,
Pratt, the Chief Justice of the C. P., alone
sealed the bill of exceptions, and came into
the Court of K. B. to acknowledge his seal,
pursuant to the writ directed to him for that
purpose.
Per Curiam. The application, in this case,
is for a writ directed to the judges of the
Court of Common Pleas of Madison County,
requiring them to come into this court to con-
fess or deny their seals to a bill of exceptions.
Upon examining the bill of exceptions, it pur-
ports to have been sealed by only two judges.
This we think is not sufficient. Not less than
three judges can form a court of common
pleas. And as the bill of exceptions is not a
part of the record, the decision complained of
should at least appear to be made by a number
which we can judicially notice as constituting
a court. To permit a bill of exceptions to be
sealed by one judge only, would be liable to
great abuse ; for although, regularly, a bill of
exceptions must be tendered at the trial, yet it
is, in practice, usually reduced to form, and
sealed afterwards, and often in vacation. We
think, therefore, that this is not such a bill of t
exceptions as we can notice, so as to justify
the granting of the motion.
Motion denied.
*SCIDMORE «. SMITH. [*322
Harboring and Seducing Servant or Slave,
Action Lies for.
An action on the case lies for seducing and har-
boring the servant or slave of the plaintiff, notwith-
standing the penalty given by the "Act Concerning
Slaves and Servants 'r (2 N. R. L., 206), which is a
cumulative remedy.
IN ERROR, on a cerlioran to a justice's
court.
Smith, the defendant in error, brought an ac-
tion of trespass (as stated in the return) in the
court below, against the plaintiff in error, to re-
cover damages for seducing and harboring his
manservant. It was objected that action should
have been debt, under the loth section of the
"Act Concerning Slaves and Servants" (2 N.
R. L.. 206), but the exception was overruled,
and judgment was given for the defendant in
error.
Per Curiam. The statute penalty for har-
boring slaves or servants is cumulative, and
does not destroy the common law remedy.
Judgment affirmed.
Cited In— 16 Barb., 501: 30 Barb.. 612.
JOHNS. REP., 13.
1816
DENSTOX v. HENDERSON.
DEN8TON t>. HENDERSON AND CAIRNS.
Bill of Exchange — Promi*c by Third Party to
Pay Is nudum pactum — Dishonored Bill —
Offer to Pay— When too Late — Measure of
Damage*. •
A bill of exchange was drawn in the United States
ill1"" A. of London, on which the defendants were
indoraers ; before the bill became due B, the agent
of the defendants, offered (', the holder of the bill,
to pay it in case A did not, for the honor of the de-
fendants ; and C promised to let him have the bill
for that purpose : the bill not having been paid by A,
an'l I) being Informed of the clrcumstanue.requcsU-d
C t<> let him have the bill, and that he would pay it ;
this (.'declined, and said that the bill had been put
into the postoftlce to be returned to America : it
was held that B ought to have been ready in Lon-
don to take up the bill when it became due ; that
bis offer to pay when the rights of the parties had
become fixed was of no avail; that the previous
promise of C to let him have the bill in order to pay
it was ini'liun pactum. and that, under the circum-
stance's of the case, the plaintiff was nut precluded
from recovering twenty per cent, damages on the
amount of the bill.
The plaintiff, in action on a foreign bill of ex-
chrnge. is entitle to recover the amount of the bill
according to the rate of exchange at the time of
notice of its dishonor to the defendant, with twenty
per cent, damages, calculated on the nominal
amount of the t>i 1. and with interest on those two
sums from the time of notice.
THIS was an action of a**umpsit. brought
by the plaintiff against the defendants,
as indorsers of a bill of exchange for £750
sterling, drawn by Robert Patton, Jr., of
Alexandria, on Inglis, Ellice & Co., of Lon-
don, in favor of Robert Patton. dated the 28th
of July, 1812, and which had been duly pro-
tested for non-payment, and notice thereof
IJ-3*] given. The cause was *tried before
Mr. Justice Spencer at the New York sittings,
in November, 1815.
, The defendant read, at the trial, the deposi-
tion of Edward Frears, of Birmingham, taken
under a commission, who stated that he and
bis partner. Edward Cairns, Jr., were the
correspondents and agents of the defendants,
and that they had directions from the defend-
ants to pay a'll bills of which they were the
drawers or indorsera, which were not duly
honored by the drawers, and particularly bills
of exchange drawn onlnglis, Ellice & Co., of
London ; and that, in consequence of such or-
ders, they had paid several bills of exchange
for the honor of the defendants. The depo-
nent, understanding, on or about the 10th of
November, 1812, that a bill drawn on Inglis,
Ellice «fe Co., on which the defendants were
indorsers, had been refused acceptance, ap-
Elied several times to William Wallis, the
older of the bill, to inquire whether the bill
had been accepted; and at those times in-
formed Wallisthat if the bill was not paid,
the deponent and his partner would pavit, and
requested him to let them have the bill in case
of it« not being paid by the drawers, which
he promised to do. The deponent, under-
standing that the bill would become due about
the 23d' of December, 1812, wrote to Inglis,
Ellice & Co.. requesting to be informed when
the bill would become due, and stating thai the
deponent and his partner had directions to
pay bills for the honor of the defendants : to
which letter no answer was returned until the
23d of that month, when a letter was received j
from Inglis, Ellice & Co., informing him that i
Jouxs. REP.. 13.
the bill had been presented for payment, and
refused. Immediately on receiving this letter
the deponent called on Wallis, taking with
him a check upon his bankers to pay the bill
and expenses, and told him that if he would
let him have the bill, he would pay it ; Wallis
then said to him: " Do not you think the dam-
ages would be as good "in my pocket aa
theirs ?" (meaning the defendants). The de-
ponent said : " But you know, Mr. Wallis,
I told you we had instructions to prevent
this ;" to which Wallis said : " I am satisfied
with the indorsers," or words to that effect,
and informed the deponent that he had put
the bill into the postofflce to be sent to Amer-
ica. The deponent stated that after a letter
had been put into the postoffice the postmas-
ter would not return it to any person. The de-
fendants had, at thetime, funds, in thehandsof
the deponent and his partner, with which the
bill *mi«rht have been paid: they were [*JJ24
prevented from paying the bill in London, as
they might have done, by not hearing from
Inglis, Ellice & Co. in time.
The plaintiff proved that at the time the
bill of exchange was returned, the rale of ex-
change between England and America was
sixteen per cent. In-low par. and that at the
time of the trial, it was eight per cent, above
par, and the counsel for the plaintiff insisted
that the plaintiff was entitled to recover the
amount of the bill at the rate of the exchange
at the time of the trial. The judge, however,
expressed his opinion that the plaintiff was en-
titled to recover the amount of the bill at the
rate of exchange when the same was re-
turned, with damages, and no more. A ver-
dict was then taken for the plaintiff, for the
amount of the bill, deducting sixteen percent.,
with twenty per cent, damages, calculated
upon the face of it, and interest on both those
sums, from the time that the bill was returned,
subject to the opinion of the court on a case
mane, with liberty for the court to increase the
verdict, or, if the plaintiff were not entitled to
damages, to diminish it.
Mr. D. B. Ogden, for the plaintiffs. He cited
Dash v. Graven, 12 Johns., 17 (in error).
Me*rr*. Golden <k Hoffman, contra. They
cited Thompnon v. Robertson <f Botrne, 4 Johns.,
27: Durkin & Henderson v. Cranston, 7 Johns.,
442.
Per Curiam. The facts stated afford no
ground of defense in this action. Wallis pur-
sued the strictly regular course to charge the
indorsers. If the agents meant to carry into
effect the agreement with Wallis, they should
have stood ready to pay and take up the bill
in London when it was payable. They never
tendered payment in London, nor did they do
so at Birmingham, until the rights of the par-
ties were fixed. Indeed the agreement with
Wallis was nudum pactnm ; the agents were
not compcllablc to pay at any time. When
Wallis committed the dishonored bill to the
postofflce, it was uncertain whether the agents
would or would not choose to pay it ; and
when they offered to pay, it was upon a condi-
tion which it was impossible for him to com-
ply with the delivery of .the bill. The jury
gave the value of the bill at the rate of ex-
change at the time of the notice to the in
SUPREME COURT, STATE OP NEW YORK.
1816
dorsers, with twenty per cent, damages, on
325*] the *nominal amount of the bfil, and
interest on both sums from the same time :
this was right.
Judgment for the plaintiff, according to the
verdict.
Cited in— 4 Wend., 613; 18 Abb, Pr., 45; 6 Rob.,
117.
WARDELL v. FOSDICK AND DAVIS.
Real Property — Sale of Land not in Existence —
Fraud.
An action on the case for a deceit lies for fraud-
ulently soiling: land which had no real existence,
notwithstanding any covenants in the deed, which
the plaintiff may treat as a nullity.
Citations— 2 Cai., 193 ; 1 Day Com., 250; Com. Dig.,
Action in the Case of Deceit, A, 8.
rpHIS was an action of trespass on the case for
JL a deceit in selling to the plaintiff, for a
valuable consideration, land which had no ex-
istence. The cause was tried before Mr. Justice
Spencer, at the New York sittings, in Novem-
ber, 1815.
The following are the material facts in the
case:
William S. Corlies, of the City of New York,
and Mary, his wife, by indenture dated the 1st
of January, 1809, conveyed to the defendants,
in consideration of the sum of $550, a certain
tract of land described as lying in the town-
ship of Moab, in the County of Lu/.erne, and
State of Pennsylvania, containing four hun-
dred and fifty acres, in lot No. 14, in the said
township. The deed contained covenants of
seisin, quiet enjoyment and warranty. Some
time after the execution of the deed, Fosdick,
one of the defendants, called on Corlies, and
told him that he had been in the State of Penn-
sylvania, and had examined the records there,
and could find no such town or land as were
described in the deed; and said that Corlies had
broken the covenants in the deed, and threat-
ened to prosecute him. Some time after this,
Corlies received a note from Mr. Bostwick,
who then acted for the defendants as their at-
torney, informing him that he had been in-
structed by the defendants to bring a suit
against him for the consideration money men-
tioned in the deed. Corlies again called upon
Bostwick, in consequence of another note, who
said that he must sue him, but offered that if
he would give a note for $125, with a good
indorser, he would give up the deed ; but this
Corlies said he was not able to do. Corlies,
sometime afterwards, met Davis, the other
defendant, who told him that he had sold
the land ; and Corlies never heard anything
more from the defendants on the subject.
After the conversation above mentioned be-
326*] tween Fosdick and Corlies, the *de-
fendants conveyed to the plaintiff, by the deed
dated the 25th April, 1811, for the considera-
tion of $450, the tract of land lying in the
township of Moab, being the same as was
conveyed to them by Corlies, and covenanted
only that they had .done no acts to impeach
the title. The defendants, on the same day,
executed an assignment to the plaintiff of the
638
deed from Corlies to them. A verdict was found
for the plaintiff, subject to the opinion of the
court.
Mr. Edwards, for the plaintiff, contended :
1. That the defendants, having themselves ex-
amined and ascertained the fact that there was
no such land in existence as they offered to
sell to the plaintiff, were bound to disclose that
fact to him, and the suppression of it was a
fraud and deceit, for which this action properly
lies. (1 Roll. Abr., 90 ; 9 Hen. VI., 53 b • Cro.
Eliz., 44 ; 1 Fonb. Eq., 366; 1 Ves., 96; Nels.
Ch. Rep., 118; Setxas v. Wood, 2 Caines, 58,
Spencer, J. ; Niven v. Belknap, 2 Johns., 573.)
The covenants in the deed were broken as soon
as they were made. (Pitcher v. Livingston, 4
Johns., 1.)
3d. That, if any objection could have been
made to the action, it cannot now be made, as
the proof fully supported the third count in
the declaration, and the defendants can only
avail themselves of the objection on a motion
in arrest of judgment, or by writ of error.
Mr. Baldwin, contra. The cases cited are
those of sales of personal property, where
there is an implied warranty as to title. They
do not apply to a sale of real estate, where the
purchaser must rely on his covenants as to the
title. The cases decided in chancery are those
in which a party applies for the specific per-
formance of an agreement of sale, and the
court will not help him if he has not acted
fairly. To support this action, there must
have been an industrious concealment, by the
vendor, of a fact unknown to the purchaser,
or the defect must be latent. If the defect
were patent, or could have been discovered by
a vigilant man, equity will not help the pur-
chaser. (Sugd. L. of V., 2, 195 ; 2 Ld. Raym.,
1118, 1119 ; i Salk., 210 ; 3 T. R., 51, 56.) The .
rule in regard to the sale of land, is caveat
emptoi*. The fact, whether there was any such
land in existence or not, must be regarded as
patent ; for, by a reference to the records of
the State of Pennsylvania, it might have been
easily ascertained whether there was any such
place or land as that described. Again ; how
can Davis, the other defendant, be charged
with fraud ? The evidence of concealment,
or of false affirmation applies only, if at all,
to Fosdick.
*Mr. Slogan, in reply, insisted that [*327
the action was sustainable. The principle laid
down in the books is, that if a vendor prac-
tices deceit or conceals a fact, which goes to
the essence of the contract, an action lies. The
cases which support this doctrine are numer-
ous, and relate to the sale of lands. (Sugd.
L. of V., 1-6 ; 1 Lev., 102 ; 2 Caines, 103 ; 4
Johns , 12 ; Co. Lit., 384 a, n. 332, ad finem ;
1 Com. Dig. , 230, Action on the Case for a
Deceit, A, 8 ; 1 Sid., 146.) In Lymeyv. Selby,
Ld. Raym., 1118, the court put their decision
on the ground of a concealment by the vendor
of a matter of fact. Here the defendants had
previously examined and ascertained the fact
of the non-existence of the land or township,
and to avoid responsibility they referred to
Corlies, and exhibited Corlies' deed with full
covenants and warranty.
" Silence," in this case, as is said by Roberts,
"was treacherously expressive." (Rob. on
Frauds, 130; 2 Johns., 589.) The non-exist-
JOHNS. REP., 13.
1818
v. GRIFKEN.
327
ence of the township or land, is not a patent
defect. Though the plaintiff might be bound
to know the towns of this State, which are of
record, yet he is not under the same obligation
in regard to towns in other states.
Can the assignment of the covenants in Cor-
lies' deed destroy the plaintiff's right of action
for the deceit ? The assignment Is tantamount
to the defendants' own covenants; and it is
settled that the action for a deceit is collateral
to the action on the covenants in the deed of
the vendor. This action is for the damages
caused by the deceit ; the covenants are for
the security of the title. The covenants were
broken when they were assigned. The assign-
ment was a mere chose in action or a lawsuit.
If a covenant is to be a bar to this action it
must be a perfect substitute. The case of
Lyntey v. SeQty shows that this action lies,
notwithstanding the covenant in the deed of
the vendor. And in Pitcher v. LMngtton, Van
Ness, J., seems to take it for granted that the
action lies in such case. The action for a
deceit is a distinct and substantive cause of
action. One covenant cannot be pleaded in
bar of an action on another covenant, for the
damages recovered may be different. (2 Vent.,
217 ; Benntt v. Irwin, 8 Johns., 863.)
Several other points were raised and dis-
cussed by the counsel, but it is unnecessary to
state them as they were not noticed by the
court.
Per Curiam. The evidence is sufficient to
support the allegation of fraud against both
the defendants, and there appears no legal ob-
jection to this form of action. Where the
parlv has been induced by such a fraudulent
328*] representation, to *pay his money, and
accept a deed, it is immaterial whether anv
or what covenants are contained in the deed*.
The purchaser so defrauded has a right to
treat the deed as a nullity, and may maintain
an action on the case for the deceit. (Front v.
R/tymond, 2 Caines, 193 ; Bostieick v. Lewis, 1
Day, 250 ; Com. Dig., Action on the Case for
Deceit. A, 8.)
Judgment for the plaintiff.
Cited in-« Cow.. 354 ; 17 Wend., 196 ; 2 Paige, 392 ;
1 N. Y., SOS : 63 N. Y., 654 : 25 Barb., 33 ; 15 How. Pr.,
&1 ; 5 Abb. Pr., 104 ; 45 Wis., 305.
SPAFFORD ». GRIFFEN.
Ktemption from Impritonment on Execution —
Refusal to Indorse Kremption.
A person who has a family but is not a freeholder,
to exempted from imprisonment on an execution
issuing out of a justice's court, although he reside
in a different county from that in which the judg-
ment was rendered.
But the justice's refusal to Indorse the defend-
ant's exemption on the execution, is no ground for
reversing the judgment.
Citatlona—1 N. R. L., 383. sec. 11.: 2 Johns. Gas. 49.
IN ERROR, on eertiorari to a justice's
court.
Judgment having been given in the court
below against the plaintiff in error, he claimed
exemption from imprisonment, on the ground
that he had a family, and was not a freeholder ;
4. »HNS. Rep.. 13
but it appearing that he was an inhabitant of
another county, the justice refused to grant it,
and execution was issued against him in the
usual form.
Per Curiam. The proviso in the llth sec-
tion of the Act (1 N. R. L., 393) provides
" that if the defendant shall, on the hearing
of the cause, prove that he has a family in
this State, for which he provides, and is
not a freeholder, then the justice shall, at the
time of issuing execution, indorse such proof
thereon," which shall exempt the defendant
from imprisonment, upon his paying by
monthly installments, &c.
It appears that the justice in this case, im-
properly refused to indorse that proof upon
the execution ; but his mistake or misconduct
in not making that indorsement, is no ground
for reversing the judgment. Whether an
action will lie against the justice or the plaint-
iff below for that omission, is a question not
now before us. (Percival v. Jones, 2 Johns.
Cas., 49.)
Judgment affirmed.
•RAYMOND t>. SMITH. [*329
Plea of Nul Tiel Record.
Under the plea nul ttel record, the defendant can-
not give notice of special matter to be offered in evi-
dence at the trial.
THIS was an action of debt on a judgment,
in which the defendant had pleaded nul
tU'l record, with notice that he should give in
evidence, under that plea, his discharge under
the Insolvent Act.
Mr. Sedgieiek, for the defendant, moved to
set aside the judgment which had been ob-
tained on the issue, so as to allow him to avail
himself of the matter of defense stated in the
notice. He read an affidavit of merits.
Mr. Shepherd, contra.
Per Curiam. The plea of nul tiel reford is not
that general issue intended by the Statute, un-
der which the defendant is authorized to give
notice- of the special matter of defense of
which he intends to give evidence at the trial.
The Statute has reference to such issues only
as are to be tried by the country. The de-
fendant ought to have pleaded his discharge
specially.
Motions denied.
Cited in-1 Wend., 70; 2 Sand., 443: 1 E. D. Smith.
425.
PAIN t. PARKER.
Declaration in Libel — Amendment.
In an action fnr a libel, the declaration was al-
I.I\M tl to !><• amended, 84) as to change the venue : it
r< stitin iti the sound discretion of the court, under
tin- circumstances of the case.
MR. VAN BUREN, Attorney-General, and
Mr. Root, for plaintiff, moved to amend
the declaration in this cause, so as to change
the venue. The action was for a libel ; and
32W
SUPREME COUKT, STATE OP NEW YORK.
1816
the cause having come on to trial, the jury
were discharged.
Mr. Skerwood, contra. He cited Barnes, 479,
489 ; 1 Wils., 173 ; 2 Str., 1162, 1202 ; 3 Johns.,
453.'
33O*] *Per Curiam. The practice of the
Court of King's Bench, in England, is to al-
low the plaintiff to amend by changing the
venue. It rests in the sound discretion of the
court, and is not an ordinary motion to change
the venue. Under the special circumstances
disclosed in this case we think proper to allow
the venue to be changed to the County of Al-
bany.
Motion granted.
JACKSON, ex dem. ERVING ET AL.,
v.
BUSHNELL.
Practice — Security for Costs.
It is too late, after trial, to move that the lessors
of the plaintiff, who were infants, file security for
costs, nunc pro tune.
MR, HENRY moved that the lessors of the
plaintiff tile security for costs, nunc pro
tune. The lessors were infants, and that fact
was known to the attorney of the plaintiffs
when the suit was commenced. The cause
had been tried, and a verdict found for the de-
fendant.
Mr. Parker, contra.
Per Curiam. This motion must be denied.
The defendant comes too late, after verdict,
to ask for security for costs. Had the applica-
tion been made before trial, the court would
have ordered the proceedings stayed until se-
curity for costs were filed.
But we can find no practice to warrant us in
directing it to be done in this stage of the
cause, nunc pro tune.
Motion denied.
Cited in— 13 Abb. Pr., 474.
331*] *HANCOCK v. STURGES.
Inspection of Flour under Statute — What Flour
is Intended.
The Act for the Inspection of Flour, &c. (sess. 36,
cb. 27, 2 N. K. L., 3:JO) does not apply to flour pur-
chased out of this State, to be consumed in another
state (where it has been inspected and branded),
and brought to New York, and there shipped, with
a view to be forwarded to its place of destination.
Citation— 2 N. R. L., 320, sec. 8.
S was an action of assumpsit, for money
J. had and received to the use of the plaint-
iff, and was tried at the New York sittings, in
October last, before Mr. Justice Platt, when a
verdict was taken for the plaintiff, subject to
the opinion of the court on the following case.
In the autumn of the year 1813, while the
British cruisers were hovering on our coast,
and occupying Long Island Sound, the plaint-
iff, a citizen of Hartford, in the State of Con-
necticut, purchased at Baltimore, in Maryland,
fifty-nine barrels of flour, which was duly in-
spected at Baltimore, and branded " Super-
640
fine;" and which was brought by land to the
City of New York, with the intent of carrying
the same to Hartford, where the same was in-
tended for consumption. When the flour ar-
rived at New York, the agents of the plaintiff,
thinking there was less risk in navigating the
Sound than there had been some time before,
determined to send the flour by water to New
Haven, to be forwarded from thence to Hart-
ford ; and with that view, the flour was put
on board of a ship, without having been in-
spected in New York. The defendant, being
an inspector of flour, though informed of the
circumstances and the intention of the plaint-
iff, seized the flour, as forfeited under the in-
spection laws of this State, and sold it at auc-
tion for $427.75, which, with the interest,
amounted to the sum given by the verdict.
The case was submitted to the court without
argument.
Per Curiam. The circumstances under which
the flour in question was put on board the sloop
for transportation, did not make it necessary
to have it inspected. The leading objects of
the Statute (2 N. R. L., 320) is to preserve the
character of flour manufactured in this State,
or purchased here for exportation. The pro-
visions in the Statute accordingly embraced
the two cases of flour manufactured here for
exportation, and that purchased here for ex-
portation ; neither of which reaches the pres-
ent case. The 8th section of the Act under
which the seizure in question must have been
made, must be construed with reference t^ the
general object and other provisions in the Stat-
ute. It declares *that if any person [*332
shall lade or attempt to lade, on board any
vessel, with intent to ship or export the same
direct out of this State, any flour not branded
as aforesaid, he shall forfeit the same. This
was not a direct shipment or exportation
out of this State. The flour was merely in
transitu, from Baltimore to Hartford, and did
not come within the mischief intended to be
guarded against by this Statute, any more
than if the transportation had been by land
through this State. This flour had been in-
spected in Baltimore, and there branded. Our
Statute requires that flour manufactured for
exportation shall be packed in casks of certain
specified dimensions, and be branded with the
initials of the Christian and surname of the
manufacturer and quality of the flour, before
the same shall be offered for inspection ; and
unless the cask is made and branded, and the
flour packed as required by the Act, the in-
spector is not authorized to give it his brand.
Indeed, the Act, throughout, shows that its
provisions could not have been intended to ap-
ply to flour situated like that now in question.
The plaintiff must, accordingly, have judg-
ment upon this verdict as found by the jury.
Judgment for the plaintiff.
GUY v. OAKLEY.
Bailment — Sale of Goods by Consignee without
AutJwrity — Amount of Liability.
Where a consignee sells the goods of his principal,
under an agreement, made without the consent of
his principal, that the amount of the sale should be
JOHNS. REP.. 13.
1818
PRATT v. HULL.
832
set off against the debt due from his principal, the
consignee, acting beyond the scope of bis agency, is
liable to his principal for the value of the goods;
and if he had directions from the consignee to sell
them only at a certain price, which price he obtain-
ed by making the beforo mentioned agreement,
which was more than the ordinary market nrlce, he
will be liable according to the rate at which they
were sold.
THIS was an action of assumvtit, brought to
recover the price of thirty-three kegs of to-
bacco belonging to the plaintiff, and consigned
to the defendant for sale.
The tobacco in question was, in October,
1818. consigned by the plaintiff, a merchant
residing at Richmond in Virginia, to the de-
fendant, a commission merchant in New York,
to be sold on commission. The plaintiff, in a
letter to the defendant, dated November 1,
1813, says that he was in hopes that the to-
bacco would sell for twenty cents, and that
J{.'t.'{*] two kegs of it were *of a quality that
sold in Richmond for fifty cents a pound; "still,"
he adds, "you must do the best with it you
can, and I shall be satisfied." In a subsequent
letter of the plaintiff to the defendant, dated
the 14th November. 1818, written in reply to a
letter of the defendant, in which he remarks
upon the quality of the tobacco consigned to
him, the plaintiff says ; " I do not wish the
part which was considered by you as the worst,
sold for less than fifteen cents, and that which
is good at eighteen to twenty cents. These
prices, I think, may be obtained in the winter,
and I do not like to lose by an article after
taking so much trouble to get it to market."
This fetter the defendant answered on the 20th
November. 1818, promising to observe the
plaintiff's instructions.
On the 9th November, 1813, the defendant
sold two kegs of tobacco at eighteen cents per
pound, and on the 1st of February, 1814, an-
other keg at fifteen cents per pound, for all
of which the defendant has been paid. On
the 12th of February, 1814, the defendant sold
and delivered to a purchaser the residue of
the tobacco, part of it at eighteen cents, and
part at fifteen cents, amounting in the whole
to $778.71, under an agreement made, without
the knowledge or consent of the plaintiff, with
the purchaser, that the amount of such sale
should be credited on a certain promissory
note made by the plaintiff, and held by the
purchaser, as agent of one John Parkhifl, for
$1,099.20 ; in coasequence of which the pur-
chaser allowed a price higher than the then
ordinary market price. Parkhill had since of-
fered to allow the plaintiff a credit on the note
to the amount of the sale, which the plaintiff
refused.
A verdict was taken for the plaintiff, subject
to the opinion of the court on the above case.
Mr. P. W. Radcliff for the plaintiff.
Mr. T. A. Emmet for the defendant.
Per Curiam. The plaintiff must have judg-
ment upon the verdict as found, without any
deduction. The tobacco was put into the
hands of the defendant as a commission mer-
chant, with instructions not to sell under a
certain price. The defendant, in his character
of commission merchant, had no authority to
make any stipulation that the avails of the to-
3J-J4*] bacco should be *credited upon the
plaintiff's note, which was held by Parkhill.
He probably supposed he was doing an act
which would meet the approbation and sanc-
tion of the plaintiff. But this was a hazard he
took upon himself ; it was not within the scope
of his agency. If the sale had been made by
the defendant, under his first instructions, by
which he was vested with discretionary
powers, as to price, there would, under the
circumstances of the case, be some strong rea-
son for making him responsible only for the
market price of the tobacco. He, no doubt, acted
in good faith ; and, as he supposed, for the
best interest of his principal. But the plaint-
iff, by his subsequent orders, limited the de-
fendant as to the price, and he had no right to
sell under it , and he having in fact sold at
such price, he must be responsible to the plaint-
iff for the amount of sales at that rate.
Judgment for tlie plaintiff.
Cited ln-6 Cow., 134 : 1 Blatchf ., 295.
JOHNS. UK i1.. 18.
PRATT c. HULL.
Nontuit where No Question of Fact Exist*.
A court of common pleas may compel a plaintiff
to be nonsuited against his consent, when. In their
opinion, the evidence offered by him is not suffi-
cient to support his action, there being no question
of fact to be decided.
Citation— 12 Johns., 296.
IN ERROR, to the Court of Common Pleas
of the County of Steuben.
Hull, the defendant in error, who was
plaintiff in the court below, brought an action
of assumpsit against Pratt, which was tried in
January last. After the plaintiff below had
gone through his evidence, and rested his
cause, the counsel for the defendant below
moved for a nonsuit, on the ground that the
evidence given on the part of the plaintiff was
not sufficient to maintain the action. -The
court below, being of that opinion, directed
the plaintiff to be called and nonsuited ; but
his counsel refused to submit to a nonsuit, in-
sisting that the court could not compel the
plaintiff to be nonsuited, but that he might, if
he thought proper, have his cause submitted
to a jury. The court thereupon permitted the
cause to go to the jury, who gave a verdict for
the plaintiff for $178.45. The defendant hav-
ing tendered a bill of exceptions to the opinion
of the court below, the case on the bill of ex-
ceptions was submitted to this court without
argument ; and it was agreed that if the court
should be *of opinion that the plaintiff [*335
could be nonsuited against his consent, and
that he ought to have submitted to the direc-
tion of the court below, then the judgment
should be reversed, otherwise to be affirmed.
Per Curiam. The question presented by the
writ of error, in this case, is whether a court
of common pleas has a right to direct a plaint-
iff to be nonsuited, when, in their judgment,
the testimony offered by him is not sufficient
to maintain the action, or whether it is the
right of a plaintiff to have his cause submitted
to the jury. The answer to this abstract ques-
tion cannot admit of a doubt. This must be a
power vested in the court. It results, neces-
N. Y. R., 5.
41
641
335
SUPREME COURT, STATE OP NEW YORK.
1816
aarily, from their being made the judges of
the law of the case when no facts are in dis-
pute. What the evidence before the court
was, or whether they were correct in their
judgment or not, are questions not now before
us. We must assume that there was no dis-
pute about the facts before the court, or any
weighing of testimony falling within the prov-
ince of the jury ; and, therefore, it was a pure
question of law, whether, under a given state
of facts, the plaintiff was, in law, entitled to
recover. And unless this was a question for
the court, there is no meaning in what has
been considered a salutary rule in our courts
of justice, that to questions of law the judges
are to respond, and to questions of fact, the
jury. If, in this court, a judge at the Circuit
should improperly nonsuit a plaintiff, that
nonsuit would be set aside, and a new trial
granted. And in the Common Pleas, a bill
of exceptions would lie to the opinion of the
court, as such opinion would be upon a mere
matter of law, arising upon facts not disputed.
In the case of Clements v. Benjamin, 12 Johns.,
298, it was decided by this court that a justice
of the peace had a right to nonsuit a plaintiff,
when, in his opinion, the testimony offered
did not support the action. If this be a power
vested in these inferior magistrates, it surely
ought not to be denied to the courts of com-
mon pleas. The judgment of the court below
must, accordingly, be reversed.
Judgment reversed.
Cited in— 19 Johns., 158; 1 Cow., *53; 6 Wend.,
303; 4 N. Y., 549; 8 N. Y., 43, 74; 25 N. Y., 362; 2
Barb., 361 ; 17 Barb., 144 ; 18 How. Pr., 28 ; 9 Abb.
Pr., 87 ; 37 Super., 14 ; 2 Wood. & M., 535.
336*] *JACKSON, ex dem. LUDLOW and
KETCHAM,
v.
SOWLE AND SOWLE.
Ejectment — Patent — Boundary of.
The northern boundary of the patent to Sanders
and Heermance forms the southern boundary of
the Nine Partners Patent, and there is no interme-
diate space, or gore, between the two patents.
THIS was an action of ejectment, for land
lying in the County of Dutchess. The
cause was tried at the Dutchess Circuit, in
August, 1814, before His Honor, the Chief
Justice, and a verdict was taken for the plaint-
iff, subject to the opinion of the court on a
case containing the following facts :
On the 24th of October, 1686, a patent was
granted by the government of the Province of
New York to Sanders and Heermance, for
twelve thousand acres of land. Questions
having afterwards arisen as to the quantity of
land which was intended to be granted to pat-
entees, a number of persons who had pur-
chased under that patent applied to the Gov-
ernor and Council for a confirmation of their
titles, which petition being granted, a warrant
of survey, to the Surveyor-General of the
Province, was issued, dated the 23d of Janu-
ary, 1770, directing the farms of the petition
ers, among whom was one David Reed, to be
surveyed, and on the 4th of June, 1772, a
642
patent was issued to David Reed for a lot of
land described as follows : " All that certain
lot and parcel of land situate, lying and being
in the County of Dutchess, within our Prov-
ince of New York, bounded on the north by
a line of marked trees run by the Nine Part-
ners ; on the south by a line of marked trees
known by the name of the Indian line ; and
on the east by a tract of land granted to Rum-
bout & Company, beginning at a, walnut tree,
with stones round it, in a line of trees marked
for the westerly bounds of the aforesaid tract
granted to Rumbout & Company known by
the name of the parallel line, and runs from
the said walnut tree, along the aforesaid In-
dian line of marked trees, north, forty-nine
degrees west, twenty-seven chains north, fifty-
four degrees west, twenty-three chains, to a
forked white-oak tree standing on the east side
of the Twede Fly, and to the northward of a
small hill; thence north six chains and seven-
teen links, to the aforementioned line of
marked trees known by the name of the Nine
Partners line; thence along said line, south,
eighty-three degrees, east, sixty-six chains and
sixty links, to the aforementioned parallel line,
the westerly bounds of Rumbout «fe Company;
thence *along said parallel line, south- [*337
erly, as it runs, to the place where this lot first
began ; containing one hundred acres of land,
and the usual allowance for highways." The
lessors of the plaintiff derived their title from
Reed.
The defendants claimed title to the premises
in question under the patent to Caleb Heath-
coat and others, commonly called the Great
Nine Partners Patent, dated the 27th of May,
J697, for a tract of land described as follows :
"A certain tract of vacant land situate, lying
and being on Hudson's River, within our
Dutchess Count}', bounded on the west by the
said Hudson's River, between the creek called
by the Indians Aquasing, and by the Chris-
tians the Fish Creek, at the marked trees of
Pauling (including the said creek), and the
land of Myndert Harmense (Heermance) and
company; then bounded southerly by the land
of the said Myndert Haimense and company,
so far as their bound goes; then westerly by
the land of the said Harmense and company,
until a southerly line run so far south until it
comes to the south side of a certain meadow
wherein there is a white oak marked with the
letters H T; then southerly, by an east and
west line, to the division line between this our
Province and our Colony of Connecticut, and
so easterly by the said division line, and
northerly by the aforesaid Fish Creek, as far
as it goes; and from the head of the said creek,
by a parallel line, to the south bounds, east
and west, reaching the aforesaid division
line."
The case made for the opinion of the court
contained a great deal of obscure and contra-
dictory testimony, relating principally to the
possessory title set up by the parties. It is
thought that the above statement, as to the
paper title, on which alone the court founded
their decision, with such facts as are alluded
to in the opinion of the court, will sufficiently
explain the points of the case. It was con-
tended, on the part of the plaintiff, that the
land in question was included in a tract called
JOHNS. REP., 13.
1816
VKOOMAN v. LAWYER.
837
the Gore, alleged to lie intermediately between
the patent of Sanders and Heerraance aud the
Nine Partners patent ; and, on the other hand,
it was insisted that the premises were compre-
hended within the Nine Partners patent.
The case was argued by Mr. J. Eininott for
the- plaintiff, and by .\f?**r*. P. Ruggle* and J.
for the defendants.
3.'I8*J *Per Curium. The plaintiff sets up
a right to recover on two grounds : 1st. Upon
his paper title. 3d. On his possession.
It is manifest there can be no gore between
Sunders and lleermance's patent and that
called the Nine Partners patent ; the latter is
bounded on the former. All the evidence
shows (and it has not been pretended on the
argument) that the premises do not lie within
Sanders and lleermance's patent ; it is equally
certain that a line called the Indian line is the
well-known northern boundary of that patent ;
indeed, in the patent to Reed, this line is ex-
pressly recognized. The description of the
land granted by the Nine Partners patent
strongly corroborates the location given by the
defendants. The south line is not a straight
line ; the Sanders and Heermance patent is a
southerly boundary, so far as it goes, and then
it becomes a westerly boundary, which could
not happen unless there was a deviation in the
line. The line set up by the plaintiff as the
south line of the Nine Partners patent is a
straight line, which is in direct opposition to
the expressions in that grant.
It appears, pretty satisfactorily, how the line
set up by the plaintiff, as the south line of the
Nine Partners patent, came to be run as it
was. The proprietors, many years since, laid
out a tier of water lots on the river, extending
four miles back. These were straight lines,
extending beyond where the south line of the
patent changed its course, and, therefore, not
affecting the land lying to the south of this
line ; and the Sanders and Heermance patent.
confessedly, not extending north of the Indian
line, gave rise to the idea that the intermediate
lands were a gore, and vacant, when, in truth,
there could be no such thing.
If it were not satisfactorily explained how,
and for what purpose, this line was run, it
might be deemed a location by the patentees
of their south boundary, but the facts in the
case preclude this conclusion . for it appears
that they have claimed and exercised acts of
ownership over what is called the gore. It
follows that the plaintiff has failed in showing
a paper title to the premises, inasmuch as the
premises are comprehended in an older patent
u> the Nine Partners. If other considerations
were accessary to evince the plaintiff's want of
title, it is a strong circumstance that, since the
erection of towns in this State, the tract of
land called the Great or Lower Nine Partners,
has been the boundary recognized by the Legis-
IJ;5J>*] lature. between the towns *of Pough-
keepsie and Clinton, and the lands in question
are described in the designation as lying in
Clinton.
An to the possessory right, it would be ex-
cessively uninteresting, if not disgusting, to go
through and present the confused mass of evi-
dence in relation to it. Suffice it to say, that
none of the possessions, prior to those of the
JOHNS. Ur.iv. 13.
defendant's father and of Thorn, are definite
; or continued, but are wholly vague, equivocal
and uncertain ; sometimes the possession is
under the Nine Partners, and sometimes under
: Reed and Ludlow. and sometimes the pouses-
I sorsare mere intruders. Such a heterogeneous
I possession ought not to prevail against a clear
| paper title, in opposition to that of the lessors,
! as no immediate privity is pretended between
; the lessors and the defendants.
Judgment for t/ie defendant*.
VROOMAN D. LAWYER.
Injuries by Domestic Anitnal*.
The owner of a domestic animal is not liable for
Injuries which it may have committed, unless he
bad notice that it was accustomed to do mischief.
Citations 1 Ld. Harm., 109; 2 Ld. Kaym., 1683: •
Salk.. 6tC5.
|~N ERROR, on certiorari to a justice's court.
The defendant in error, who was plaintiff in
the court below, brought an action against the
plaintiff in error in the court below ; and
proved that the bull of the latter had gored hi*
horse ; but there was no evidence that the bull
had ever before done similar acts, or that he
had ever before been unruly. The justice gave
judgment for the plaintiff" below, the defend-
ant in error.
Per Curiam. The judgment is clearly
wrong. If damage be done by any domestic
animal, kept for use or convenience, the owner
is not liable to action on the ground of negli-
gence, without proof that he knew that the
animal was accustomed to do mischief. (1 Ld.
Raym.,109; 2 Ld. Rayrn., 1583; Bturendin v.
Sharp, 2Salk.,662.)
Judgment reversed.
Cited in— 1 Denio, 498 ; 4 Denio, 179 ; 1 N. Y., 516 ;
8 Barb.. «36 ; 88 111., 133 ; 99 U. 8., 654.
*THE PEOPLE, ex rel. BRINKER- [*34O
HOFF,
NELSON.
Real Property — Indictment for Forcible Entry
and Detainer — Purchaser tinder Fi. Fa. Mutt
Resort to Ejectment to Obtain Actual Posses-
sion.
An Indictment for a forcible entry and detainer
under the Statute (sess. 11, eh. 6 : 1 N. R. L., 98), must
act forth a seisin or possession within the purview
of the Act, or whether the estate of the relator be a
f reehold or a term of years ; and on the traverse,
the allegation as to his estate must be proved by the
reliitor.
Though the defendant cannot Justify the force,
by showing a title in himself, he may controvert
the fuels, by which the relator attempts to show a
tit I. • in himself.
A purchaser under a.rt./a. at a sheriff's sale, has no
right to enter on the premises, unless they are
vacant. The sheriff can deliver the leiral posses-
sion ; but in order to obtain actual possession, the
purchaser must resort to his action of ejectment.
Citations— 1 N. R. L., 98; Stat. 21 Jac.. ch. 15: 7
Mod* 123: 1 Cai., 125; 2 Cat., 98; 1 Johns., 43; II
Johns., 509 ; 3 Tidd, 941, 950.
'PHIS was an indictment for forcible entry
1 and detainer. The proceedings before the
«48
340
SUPREME COURT, STATE OF NEW YORK.
1816
justice were removed into this court by cer-
tiorari ; and the traverse was tried at the
Dutchess Circuit, in August, 1815, before Mr.
Justice Van Ness. The inquisition taken be-
fore a justice of the peace of Poughkeepsie,
found " that Stephen Brinkerhoff, of Pough-
keepsie, blacksmith, long since lawfully and
peaceably was possessed of, and in, one mes-
suage, with the appurtenences, in Pough-
keepsie, aforesaid, in the county aforesaid,
and his possession so continued, until Arnold
Nelson, late of the town of Poughkeepsie,
laborer, on the 8th of May instant, with strong
hand and armed power, into the messuage afore-
said, with the appurtenances aforesaid, did
enter, and him, the'said Stephen, thereof dis-
possed, and with strong hand expelled ; and
him, the said Stephen, so dispossessed and ex-
pelled from the said messuage, with the ap-
purtenances aforesaid, from the said 8th day of
May until the taking of this inquisition, with
like strong hand and armed power did keep
out," &c.
At the trial, the relator proved that he and
his family had lived in the house about two
years, and that, in May, 1815, Benjamin Her-
rick, Arnold Nelson, John Lewis, and Clapp
Raymond, who was a deputy-sheriff, were at
the house with wagons with furniture, which
they were putting into the house, when Brink-
erhoff, who had been absent, came home, and
forbade Nelson from taking possession, or
entering the house, or doing anything on the
premises ; Raymond, the deputy-sheriff, ar-
rested Brinkerhoff on a ca. sa., and took him
away. Mrs. Brinkerhoff was in the house, and
staid there some time. There were no arms or
force used, nor any violence. The witness
knocked at the door, and was asked to walk
in. The relator was absent, and his wife in
bed. The business appeared to have been ar-
ranged by the deputy-sheriff, who took Brink-
erhoff on the execution ; and he delivered all
the possession he supposed he had a right to
do, by law, to Herrick, who then gave posses-
sion to Baldwin, and he delivered the possession
to Nelson, who staid there.
341*] *The defendant moved to quash the
indictment for various defects, and particu-
larly because the interest of the relator in the
premises was not set forth ; but the judge de-
cided that the defendant could only take ad-
vantage of any insufficiency in the indictment,
on a motion in arrest of judgment. The de-
fendant offered in evidence a judgment of this
court, in favor of Leonard Davis, against
Brinkerhoff, and a fieri facias issued thereon,
under which the premises in question were
sold at the sheriff's sale to Herrick, and a deed
executed to him by the sheriff ; and to prove
that Raymond, the deputy-sheriff who made
the sale, on receiving the money, made the
entry on the premises, and delivered the pos-
session to Herrick, as stated by the witness of
the plaintiff ; and that Herrick accordingly
entered, and which was the entry complained
of by the relator. The evidence thus offered
was overruled by the judge, who directed the
jury to find a verdict against the defendant,
and the jury found accordingly.
A motion was made, 1. In arrest of judg-
ment ; and 2. For a new trial ; because the
judge improperly overruled the evidence of-
644
fered by the defendant to show a title in him-
self, and a right to enter.
Mr. J. Tattmadge, for the defendant, con-
tended that the indictment contained no de-
scription of any estate in the relator. The
tenant must allege that he was disseised, and
for that purpose he ought to set forth his
seisin, or the nature of his estate, so that it.
may appear that he was seised at the time.
(People v. Shaw, 1 Caines, 125 ; People v. King,
2 Caines, 98 ; 1 Ld. Raym., 610 ; 4 Com. Dig..
Fore. Ent, and Det., D, 4 ; 3 Bac. Abr., Fora
Ent. and Det., E.) The indictment is, in this
respect, clearly defective.
Next; the evidence offered by the defendant
ought to have been received. The deed of the
sheriff showed the plaintiff's right of entry.
The sheriff had authority to transfer the pos-
session to the purchaser. It is his duty to de-
liver the possession to him, if required; other-
wise, few persons would be willing to become
purchasers at a sheriff's sale. There are no En-
glish adjudications on this point, because, in
England, the fee of the land is never sold on
execution. In M'Dougallv. Sitcher, 1 Johns.,
42. the court held that a purchaser of real estate,
under a fieri facias, might enter and take pos-
session in a peaceable manner. After the sale
of the land to the sheriff, the tenant becomes,
quasi, a tenant at will to the purchaser. (Jack-
son, exdem. Kane, v. Sternbergh, 153.)
*Mr. Oakley, contra. The sheriff [*342
has no authority to deliver the actual posses-
sion on a fi. fa. He cannot turn the tenant
out, and put the vendee in, but the purchaser
must resort to his action of ejectment. (2
Show., 85; 3 Keble, 243; 3 T. R., 295; 2
Wm. Saund., 69, c, n. • 2 Tidd's Pr., 960 ; Bull.
N. P., 104.)
Then, as to the sufficiency of this indict-
ment. In the case of The People v. Leonard, 11
Johns., 504, the court say, that on an indict-
ment for a forcible entry and detainer, the
title to the premises does not come in question;
and it is enough to entitle the relator to judg-
ment, if he shows that he was in peaceable
possession at the time of the defendant's forci-
ble entry. There need be no more alleged in
the indictment than is sufficient to enable the
plaintiff to recover ; and that is a peaceable
possession in him at the time. There is in
Wentworth's Entries, Went PI., 148, a prece-
dent of this form of indictment.
Mr. P. Ruggles, in reply, observed that in
Hyatt v. Wood, 4 Johns., 150, Spencer, J., in
delivering the opinion of the court, lays it
down that no man can recover, upon a claim
of right to property, against another whose
rights to the subject matter are superior to
those of the person so claiming damages for a
violation of his supposed rights. It is true
that was a civil action ; but the principle is
equally applicable to this case.
It is admitted that possession is evidence of
seisin ; but that does not dispense with the ne-
cessity of alleging a seisin. As in trover, the
plaintiff must allege a conversion, though a
demand and refusal may be sufficient evidence
of it.
SPENCER, J., delivered the opinion of the
court :
The defendant moves in arrest of judgment,
JOHNS. REP., 13.
1816
GODFRY v. VANCOTT.
343
and for a new trial, on the ground that the |
evidence offered on his part, which went to
show a title in himself to the premises, was
overruled.
The inquisition does not state that Brinker-
hoff was either seised of the premises, or that
he had a term of years therein, yet to come
and unexpired : it states only, " that Stephen
Brinkerhoff of Poughkeepsie, aforesaid, black-
smith, long since lawfully and peaceably, was
possessed of and in one messuage, with the ap-
purtenances in. &c., und his possession so con-
tinued until Arnold Nelson, late of, &c., on
the 8th day of Muy instant, with strong hand
and armed power, into the messuage aforesaid,
with the appurtenances aforesaid, did enter,
343*] and him, the said *8tepheu, thereof
dispossessed, and with strong hand expelled,"
•fee.
There can be no doubt that this indictment
i- bad in substance. The 6th section 'of the
Statute (I N. R. L., 98) to prevent forcible en-
tries and detainers, enacts that the Act " shall
extend as well to tenants for years and guard-
ians as to such as have' estates of freehold."
The Statute of 21 Jac., ch. 15. extended the
remedy of the former statutes of forcible entry
and detainer. to lessors for years and copyhold-
ers ; and in the case of the Queen v. Taylor, 7
Mod., 133. where the indictment was upon the
Statute of 8 Hen. VI., ch. 9, it did not allege
that the party had been seised, and disseised
by force ; and upon a motion to quash the in-
dictment. Holt, Ch. «/., with the concurrence
of the whole court, after stating the extension
of the statutes by the Statute of 21 James, ch.
15, observes : " The present case is upon the
Statute of Hen. VI., upon which you must
always allege a freehold and seisin in some-
body, and if it be an entry upon a lessee for
years, you must say the entry was made into
the freehold of A, in the possession of B, and
so he disseised A ; and of necessity, there must
be a disseisin of the freehold laid." The gen-
eral position of Lord Holt is warranted by all
the cases, that the indictment must set forth
a seisin or possession, within the purview of
the Statute. The party must be shown to be
dispossessed of a freehold, or to be disseised
of a term of years, yet to come and unexpired.
Tenants at will or sufferance, are not protected \
by the statute, and yet if it were not essential !
to allege the estate, and bring it within the j
reach of the statute, tenants of that description i
might avail themselves of the remedy afforded i
by the statute, contrary to its plain intendment.
It is unnecessary to cite further cases from '
English reports. The point has been decided j
in this court repeatedly. (Sfuta ads. The Peo- 1
pie. 1 Caines, 125. and The, People v. King. 2 ;
Caines, 98.) In the last case the late Chief j
Justice mentions also the case of \Beebe ads.
The People, not reported.
As to, the second point, the case of The Peo-
ple v. fjeonard, 11 Johns., 509. decides that the
right and title of the defendant cannot be gone
into ; that the Statute was made to prevent
persons from doing themselves right by force.
As it respects the relator's title, I do not mean
to be understood, that he is to give precise
technical proof, that he has a seisin of a
344*] *freehold, or a term for years ; any
evidence from which either of these estates
JOHNS. REP., 18.
may be inferred would he sufficient. But
upon the traverse, he must show every ma-
terial allegation in the indictment to be true ;
and the estate we have seen is material, and it
necessarily must be proved. Whatever must
be proved, may be disproved, and it follows,
naturally, that though the defendant shall not
justify the force, by showing a title in himself
derived from an independent source, or even
from the relator him-. -If. he may controvert
the facts by which the relator attempts to make
out his estate, and may show that he has not
such an estate as would enable him to main-
tain the prosecution. It was urged, on the
argument, that it appearing that Herrick hud
purchased the premises, upon a fi. fa. against
Brinkerhoff, he had a right to enter under that
purchase, and take possession. Had the
premises been vacant, I agree that he might
have entered without any danger from the
Statute ; but they were not vacant ; and not-
withstanding what fell from Mr. Ju*tice Liv-
ingston, in M'DtntgaUv. Sitcher, 1 Johns., 48,
I am decidedly of the opinion that the entry
was unlawful.
Tidd says, speaking of the eleffit (Vol. II,
p. 941), it was formerly usual for the sheriff
to deliver actual possession of a moiety of the
lands, but that he now only delivers legal pos-
session, and in order to obtain actual possession
the plaintiff must proceed by ejectment ; and
he states the practice to l>e the same upon an
extent. (2 TSdd's Pr., 950.) Our practice is,
not for the sheriff to deliver possession ; he
has no authority for doin<* so ; he is com
manded merely to sell ; and the purchaser has
no more right to enter after his purchase than
he has to enter upon any other lands in the
actual possession of another, and to which he
has title.
Indictment quashed.
Cited in— 4 Cow., 579 ; 9 Cow., 892 ; 2 Wend., 511 ;
9 Wend., 52, 202 : 1 Lans., 234 ; 1 Hall, 246.
*L. & C. GODFRY
VANCOTT.
[*345
Practice — Bond of Arbitration — Co*tt.
In an action of debt on a bond, for the penal sum
of $500, conditioned to abide the award of arbitra-
tors, judK'nent in form being entered up for the
plaintiff for the penalty, though the jury assessed
the damages to f 13 only, the plaintiff was held en-
titled to recover his full costs.
Citations— 2 Johns. Cas.,206 ; 2 Cal., 107 : 10 Johns.,
219.
IN ERROR, to the Court of Common Pleas
of the County of Sullivan. .
The plaintiffs in error brought an action of
debt in the court below against the defendant
in error, on an arbitration bond, for the penal
sum of $500, conditioned to abide by and per-
form the award of the arbitrators named
therein ; and assigned to several breaches.
The defendant pleaded non t*l fartnm. At
the trial the jury found a verdict on the issue
for the plaintiff, and assessed damages at six
cents ; and, on the first breach assigned, the
jury assessed the damages at $12.94, and on
645
345
SUPREME COURT, STATE OP NEW YORK.
1816
the second breach at six cents ; the damages in
all amounting to $13.6. Judgment was en-
tered up, in form for the plaintiff, for the
penalty of the bond. The defendant objected
that the damages recovered being less than
$25, the plaintiff could not recover costs, but
was bound to pay costs to the defendants ; and
the plaintiff insisted that, having recovered a
judgment for $500 of debt, they were entitled
to full costs. But the court below decided
that the plaintiffs were tiot entitled to costs,
but must pay the defendant his costs, which
should be set off against and deducted from
the amount of the damages assessed by the
jury. To this opinion of the court the plaint-
iffs tendered a bill of exceptions, on which the
writ of error was brought.
The cause, on the return of the writ of error
and bill of exceptions, was submitted to the
court without argument.
Per Curiam. This case comes before the
court on a writ of error to the Common Pleas
of Sullivan County ; and the only question
presented for decision is, whether the plaintiff
below was entitled to recover his costs, or was
bound to pay costs to the defendant. The
action was debt on the penalty of $500, in a
bond, with a condition to abide by and perform
the award of arbitrators. The damages
assessed by the jury under the breaches as-
signed were under $25 ; the judgment, how-
ever, was entered for the penalty, and the court
below decided that the plaintiffs were not en-
346*] titled to recover costs of the *defendant.
This was incorrect. The plaintiffs were en-
titled to recover costs ; the judgment being
upon the penalty. The damages assessed, to-
gether with the costs, regulates the amount to
be recovered on the execution ; but the judg-
ment being in form upon the penalty, the costs
follow of course. The judgment is the test,
by which the right to costs is determined ; this
has been the long and well-settled rule of con-
struction given to the Statute relative to costs.
(2 Johns. Cas., 206 ; 2 Caines, 107 ; 10 Johns.,
219.) The judgment of the court below must
accordingly be reversed.
Judgment reversed.
Cited in— 2 Cow., 412 ; 6 Cow., 58 ; 12 Wend., 141 :
19 How. Pr., 388 ; 8 Abb. N. S., 21.
JACKSON, ex dem. SCHENCK ET AL.,
•o.
WOOD.
Ejectment — Ancient Patents — What Matters En-
titled to Great Weight in Locating.
In ancient patents, where the description of the
land is vague, and the construction somewhat doubt-
ful, the acts of the parties, the acts of the govern-
ment,and of those claiming under adjoining patents,
are entitled to great weight in the location of the
grant.
The south boundary of the Rumbout patent is an
east and west line.
The south boundary of the Rumbout patent is the
north boundary of the Phillips patent, and there is
no gore or unpatented land between those patents.
THIS was an action of ejectment for lands in
the town of Fishkill, in the County of
640
Dutchess. The cause was tried before Mr. Jus-
tice Van Ness, at the Dutchess Circuit, in
August, 1815.
The lessors of the plaintiff claimed under the
Rumbout or Fishkill patent, dated the 17th of
October, 1685, to Francis Rumbout, Jacobus
Kipp, and Stephanus Van Cortlandt. The
defendant, whose only right consisted in a
possession of ten or twelve j'ears' continuance,
resisted the plaintiff's claim, on the ground that
the premises were situated in a gore, or piece
of unpatented land alleged to lie between the
Rumbout and Phillips patents.
By the Rumbout patent was granted " All
that tract or parcel of land lying and being on
the east side of Hudson's River, at the north
side of the Highlands, beginning from the south
side of a creek called the Fishkill, and by the
Indians Matteawan; and from thence, north-
ward, along said Hudson's River, rive hundred
roods b'eyond the great Wappins Kill, called
by the Indians Mawenawasigh, being the north-
erly bounds; and from thence into the woods
four hours going, that is to say, sixteen English
miles, always keeping five hundred roods dis-
tant from the north side of said Great Wap-
pinger's Creek, however it runs, as also from
the said Fishkill or creek. Matteawan, along
the said Fish Creek into the woods *at [*347
the foot of the said high hills, including all the
reed or low lands, at the south side of said
creek, with an easterly line four hours going,
that is to say, sixteen English miles into the
woods ; and from thence northerly to the end
of the four hours going, to wit : sixteen En-
glish miles, on a line drawn at the north side of
the five hundred roods beyond the Great Wap-
pinger Creek or kill called Mawenawasigh."
Madame Britt was the heir at law of Francis
Rumbout. Francis Britt was her heir at law,
who, on the 10th of May, 1794, conveyed his
part of the patent, which was the south third
of the patent, to Henry Schenck, of whom the
lessors of the plaintiff are heirs at law. The
Rumbout patent is bounded on the south by
the Phillips patent.
The patent to Adolph Phillips, dated the 17th
of June, 1697, contained the following de-
scription : "A certain tract of land in our
Dutchess County, situate, lying, and being in
the Highlands, on the east side of Hudson's
River, beginning at a certain red cedar tree,
marked, on the north side of the hill, commonly
called Anthony's Nose, which is, likewise, the
north bounds of Colonel Stephanus Cortlandt's
land, or his manor of Cortlandt ; and from
thence bounded by the said Hudson's River,
as the said river runs, northerly, until it comes
to the creek, river, or run of water, commonly
called and known by the name of the Great
Fishkill, to the northward and above the said
Highlands, which is likewise the southward
bounds of another tract of land belonging unto
the said Colonel Stephanus Cortlandt and com-
pany ; and so easterly along the said Colonel
Cortlandt's line, and the south bounds of
Colonel Henry Bcekman, until it comes twenty
miles, or until the division or partition line
between our Colony of Connecticut, and our
said Province; and easterly by the said division
line, being bounded northerly and southerly
by east and west lines, unto the said division
line between our said Colon}- of Connecticut,
JOHNS. REP., 18.
1816
PKNFIELD v. CARPKNDER.
347
and this our Province aforesaid; the whole
being bounded westward by the said Hudson's
River, northward by the land of Colonel Cort-
landt and company, and the land of Colonel
Beekman; eastward by the partition line be-
tween our Colony of Connecticut and this our j
Province, and southerly by the manor of Cort-
landt, to the land of the said Colonel Corllaudt.
including," &c.
The boundary between the patents to Hum-
bout and Phillips forms the boundary of the
towns of Fishkill and Phillips. The farms in
that part of the alleged gore, which was in the
;i48*J *vicinity of the premises in question,
were held under titles derived from bchenck.
I n another part of the gore were persons who '
held merely by possession, without claim of |
title ; and the gore had always been claimed;
by S.-hmck as being within' his part of the :
Humbout patent. In 1785 there was an arbi-
trillion between Schenck and mtiny of the
settlers, and, when it was decided, all who
were parties to the arbitration took under
Schenck, or moved off.
The case made for the opinion of the court
contained a great deal of evidence relating to
the actual location of the Rumbout patent,
which it would be very difficult to render in-
telligible, and of which it is not thought neces-
sary to attempt to give a statement. A verdict
was taken for the plaintiff, subject to the opin-
ion of the court.
M<u*rt. K. William* and ./. Tallmadye for the
plaintiff.
Mr. Oakley contra.
THOMPSON, Ch. J., delivered the opinion of
the court :
If the Rumbout or Fishkill patent was now,
for the first time, to receive a construction and
location. I should very much incline to adopt
that which has been given to it by the defend-
ant's counsel. Upou this abstract question,
however, the court do not mean to express any
opinion. But in grants of such antiquity,
where the description of the land is vague
and the construction somewhat doubtful, the
acts of the parties, the acts of government, and
of those claiming under adjoining patents, are
entitled to great weight, in the location of the
grant. It ought, also, to be noticed, in the
outset, that the defendant in this action does
not pretead to claim or set up any title to the
premises in question, but rests entirely upon
his possession, and that not of more that ten or
twelve years continuance ; and this possession
held under the idea that it was not conveyed by
any patent, but formed a part of a gore between
the Rumbout and Phillips patent. This pre-
tension must be laid out of view as altogether
unfounded. Phillips' patent, which lies on the
south, is expressly bounded on the south line
of this patent, which makes it impossible that
there should be any vacant land between the
two patents. ConstVuing the Rumbout patent,
per *?, there is nothing in it which requires the
south bounds to be an east and west line.
.'$!{>*] *The more natural construction
would be that the southern boundary was
formed by the Fish Creek, and the lowlands mi
the south side thereof, without extending at all
up the hills : and this location would best
satisfy the general description given to the
.1 01 i\s. RKP.. 13.
land intended to be included in the patent, to
wit : lands lying on the north side of the High-
lands ; whereas, the south line, set up on the
part of the plaintiff, extends several miles upon
the hills, beyond the lowlands. But in the
patent to Phillips, which was only twelve
years later, the north line of the land granted
is not only described as being the southward
bounds of the Rumbout patent, but this line
is expressly designated as an east and west
line. This may be considered a cotemporane-
ous act of the government, showing their con-
struction of the former grant ; but this, it is
true, would not have been binding upon the
patentee, if the interpretation was not warrant-
ed by the terms of the grant. That construc-
tion, however, has always been acquiesced in
by the proprietors of the Phillips patent ; and
no pretension ever appears to have beeiroet up
to a line north of the one as claimed by the
lessors of the plaintiff. The suggestion of the
defendant's counsel, that the Phillips patent
might have been intentionally so located, as to
leave out a part of the land covered by it, does
not appear to be warranted by any evidence in
the case. And there is nothing showing any
act of the proprietors of the Rumbout patent
whereby they have recognized a line running
along the foot of the hills as their south line.
The various Acts of the Legislature, from the
year 1787 to the present day, dividing this part
of the country into precincts and towns, and
in which the line, as now set up on the part of
the plaintiff, has been recognized as the true
line between the patents, is a strong corrobor-
ation of this construction. There are manv
other facts in the case which might be noticed,
tending to the same conclusion. And what-
ever doubts there might have been, originally,
as to the true location of the south line of this
patent, it is too late now to call it in question.
It was not pretended, on the argument, that, if
the Rumbout patent covered the premises in
question, the plaintiff was entitled to recover.
Judgment must accordingly be given for the
plaint! IF.
Judgment for the plaintiff.
Cited in -16 Wend., 310.
*PENFIELD v. CARPENDER. [*35O
Practice — Improper Evidence — Co*t*.
Improper evidence should not be admitted to K<>
to th" jury, and it isiint siiiliriiTit. nitrrwiinls. to di-
rect them to disregard it.
In a judgment for the defendant, in a justice's
court, it is improper to include costs which accrued
on the part of the plaintiff.
IN ERROR, on a certiorari to a justice's
court.
The action in the court below was to re-
cover damages for sheep, belonging to the
plaintiff, killed by the defendant's dog. At
the trial, a witness was called, on behalf of the
defendant, to prove a conversation between
him and the defendant, in which the latter had
denied that he was the owner of the dog ; the
testimony was objected to, but the justice de-
cided that the witness might go through with
his testimony, and that he would then inform
the jury what part was admissible and what
not. And the justice informed the jury that
Ml
SUPREME COURT, STATE OF NEW YORK.
1816
the testimony was inadmissible, and that they i
ought not to take any notice of it as testimony.
Another witness was, in the same manner.per-
mitted to swear as to hearsay respecting the
ownership of the dog ; and the justice then
told the jury, as before, that what the witness
had sworn was not evidence. A verdict
was found for the defendant ; and the justice
included in the defendant's judgment all the
costs which had accrued on the part of the
Slaintiff, viz : summons, constable's fees, swear-
ig plaintiff's witnesses. &c
Per Curiam. The admission of such testi-
mony was illegal and dangerous, and no sub
sequent caution or advice by the justice, that
the jury ought to disregard what the witnesses
had sworn, can cure the irregularity. The law
forbids such testimony, because it may have
an influence upon honest jurors, who are un-
conscious of the impressions which they re-
tain, notwithstanding the effort of the court to
obliterate them.
The taxation of costs was also illegal.
Judgment reversed.
Cited in— 15 Johns., 195 ; 2 Cow., 437 ; 4 Denio, 156 ;
3 Barb., 615 ; 7 Barb., 587 ; 3 T. & C., 332 ; 2 Daly, 519 ;
3 Co. R., 245.
351*] *THE PEOPLE ?>. CASBORUS.
Practice — Second Indictment for Felony after
Arrest of Judgment.
The arresting of judgment, after a conviction on
an indictment for a felony, is not a bar to a second
indictment for the same offense, although the sec-
ond indictment is precisely similar to the first.
Citations— 1 Johns., 66.
rPHE defendant was indicted at the Court of
\- General Sessions of the Peace held in and
for the County of Rennselaer, in February
last, for stealing certain promissory notes.
The defendant pleaded, in bar, that at the pre-
ceding November Term of the Court of Gen-
eral Sessions, &c., he was indicted for felony,
and was tried and convicted by the jury ; and
that afterwards, on a motion in arrest of judg-
ment, the Court of General Sessions arrested
the judgment, and discharged the defendant
from that indictment. To this plea the dis-
trict attorney demurred ; and at the Court of
Oyer and Terminer, held in the County of
Rennselaer, the plea in bar was overruled by
the court, and the defendant was afterwards
tried, in that court, upon the plea of not guilty,
and convicted of the felony charged in the in-
dictment, and sentenced to imprisonment for
seven years in the State Prison.
The Court of General Sessions arrested the
judgment on the first indictment, on the ground
of its being defective ; and the present indict-
ment, on which the defendant was tried and
convicted, was, in every respect, precisely
similar to the first.
SPENCER, J., delivered the opinion of the
court :
The defendant, on his arraignment, pleaded
that he had before been indicted, tried, and
convicted, for the same felony ; that, upon his
motion, the judgment had been arrested, and
that he had been discharged from that judg-
ment. It is admitted that the former and pres-
ent indictment are in every respect similar.
To this plea the district attorney demurred ;
the plea was overruled, and the defendant was
thereupon tried and convicted, and sentenced
to imprisonment in the State Prison.
It was decided in the case of The People v.
Barret & Ward, 1 Johns., 66, that a person,
after an acquittal, might be indicted and tried
the second time, if the first indictment was er-
roneous, so that no good judgment could be
given upon it ; and where a court of compe-
tent jurisdiction arrest a judgment at the in-
stance of the defendant, it must be intended le-
gally, that the indictment was vicious, for the
judgment cannot be reviwed *on a writ [*3«52
of error ; as an arrest of judgment is a mere
refusal, on the part of the court, to give judg-
ment, every court is bound to pay that respect
to a court of co-ordinate jurisdiction, as to
presume its judgment to be according to law,
when it is presented for consideration collat-
erally.
The effect of arresting a judgment is the
same as quashing an indictment ; the latter
happens before the trial, the former after ; and
in this case it appears to me that as no writ of
error could be brought upon the decision of
the Court of Sessions arresting the judgment,
that proceeding is not a bar to any other for
the same matter. In analogy to civil cases,
the arrest of judgment cannot be pleaded in
bar to another prosecution for the same mat-
ter, because there is no judgment of the court
susceptible of review.
It is stated here that the two indictments are,
iu every respect, similar ; but this is not so
pleaded, and if it had been, the consequence
would be the same ; as already observed, in
this collateral way, we must presume, from
the judgment being arrested, that the indict-
ment was erroneous, and if erroneous, then a
conviction would not bar another good indict-
ment. It is in vain to say, either that the for-
mer indictment was good, or that this, being
like it, must be holden to be bad also, because
the other was adjudged to be bad. We must
take it as a settled point that the other indict-
ment was bad, however the fact may be ; and
we are not to be told that this is a bad indict-
ment, merely on the authority of the Sessions.
We must see if it be bad, and this is not even
pretended.
For these reasons, I think the plea o/autrefois
acquit was properly overruled, and such is the
opinion of the court.
Cited in— 1 Hill, 659 ; 25 N. Y., 421 ; 26 N. Y., 187 ; 24
How. Pr., 403; 30 How. Pr., 322, 325 ; 5 City H. Rec.,
105 ; 18 Wall., 174 ; 2 Sum., 41 ; 97 TJ. S.,521.
*THE PRESIDENT, DIRECTORS [*353
AND COMPANY OF THE MECHANICS'
BANK, IN THE CITY OF NEW YORK,
THOMAS HAZARD.^
Pleading and Practice — Negotiable Paper — Ac-
tion, against Maker and Indorser — When Pay-
ment by Indorser No Defense to Action against
Maker — Bail.
In an action on a recognizance of bail, under a plea
of payment, evidence of payment of a less sum than
the amount of the judgment is inadmissible.
JOHNS. RFP., 13.
1816
PRESIDENT, ETC. , MECHANICS' BANK v. HAZARD.
Nor could payment of a leas sum be pleaded, al-
though accepted in full satisfaction.
Where suite are brought against the maker and
indoraer of a promissory note, and the ind'irser
pays the amount, and it is agreed between the hold-
er and in.li.i-s.-r that the suit against the maker shall
be protecpted for the bene§tof the Indoner, the
maker cannot avail himself of the payment by the
indoraer as a defense in the suit airaiiist him.
And the payment l»y tlie imlorser haviiiK been
made after judgment against the makerof the imt.-,
bis bail cannot avail himself of the defence in a suit
on the recotrnizance.
Citation— 9 Johns-, 333, 327.
THIS was an action of debt on a recogniz-
ance of bail. The original suit was
against John Hazard, on a promissory note, in
which judgment was obtained as of January
Term. 1812, for $1,094.08 damages and costs.
The defendants pleaded, 1. Payment by the
principal before the commencement of the
-uit against the bail, to wit : on the 1st of
April, 1812. 2. That the plaintiffs recovered
their judgment against John Hazard, as the
maker of a promissory note, dated the 16th of
April, 1811, payable sixty days after date, to
Johnson Patten, or order, for $987.17, and
indorsed by him to William G. Miller, Jr. , and
by Miller to the plaintiffs , that Miller, being
liable as such indorser, afterwards, and before
the commencement of this suit, to wit : on the
1st of April, 1812, paid and satisfied to the
pliiintiffH the amount of the judgment. The
plaintiffs replied to both pleas, denying the
facts stated in them. The cause was tried be-
fore Mr. Justice Spencer, at the New York sit-
tings, in November, 1815.
I; was proved that at the time the suit
against John Hazard was commenced, suits
were also commenced against Patten and Mil-
ler. On the 22d of November, 1811, Miller of-
fered his own note, with an indorser, at sixty
days, for $1,500, to be discounted by the plaint-
iffs; the note was discounted, and out of the
net proceeds thereof) the plaintiffs, with the
consent of Miller, retained $1,017.31 for the
principal and interest then due on the note,
and agreed with him that the respective suits
against Hazard and Patten should proceed for
his benefit ; the note given by Miller, after
having been once or twice renewed, was paid,
but Miller never paid the plaintiffs the costs
of the suit against him, or the costs in the
other suits. Judgments having been recovered
against Patten and Miller, Patten on the 8th
of February, 1812, paid the principal and in-
terest then due on the note to the plaintiffs'
attorney, who, by the directions of the plaint-
iffs, paid over the money to Miller and Patten;
at the same time paid the costs in the suits
IJ*>4*] against *himself, Miller and Hazard ;
and it was agreed by the plaintiffs' attorney,
on the behalf of the plaintiffs, who afterwards
ratified his act, that the suit against J. Hazard
should proceed for the benefit of Patten, and
if a judgment should not be perfected therein,
by reason of the non-payment of the costs,
which Hazftrd had before been ordered by the
court to pay. as a condition of being allowed
to plead his discharge under the Insolvent Act,
pui* darrcin continuance, after nn inquest had
been taken against him, and which he had not
vet paid, the judgment should be held for the
benefit of Patten ; or, if those costs were paid
by Hazard, they were to be repaid to Patten.
JOHNS. REP.. 13.
Judgment was afterwards entered up against
Hazard. There was never any regular assign-
ment of the judgment to Patten ; but the pres-
ent suit was prosecuted at the expense and for
the sole benefit of Patten, the plaintiffs having
been satisfied with the full amount of the prin-
cipal and interest due them, with the costs of
their several suits.
A verdict was taken, subject to the opin-
ion of the court, for the plaintiffs, for $260..r>7.
being the interest on the judgment against
John Hazard, from the time the defendant be-
came fixed as bail, and six cents routs.
Mr. T. A. Emmet, for the plaintiffs, con-
tended : 1. That the parol evidence of the
payment and satisfaction of the judgment re-
covered against John Hazard was inadmissi-
ble, the judgment being unpaid and unsatis-
fied of record. Under neither of the pleas
ought parol evidence of any payments to the
plaintiffs, prior to January, 1812, to have been
admitted ; as it would only lend to falsify the
judgment obtained against John Hazard. And
if the payment was of such a nature as to di-
minish or extinguish the demand of the plaint-
iffs against him, it ought to have been taken
advantage of in the original suit. (9 Johns.,
392.)
2. That the defendant could not maintain
either of his pleas, by proving payment of a
less sum than the amount of that judgment
and the costs. (9 Johns. ,333; 2 Lev., 212; Styles,
824.)
3. That the payment made by William G.
Miller, Jr., in part discharge of the demand
against himself, could not. under the circum-
stances of the case, be applied by John Haz-
ard or the defendant towards the 'payment of
the judgment against the former.
4. That Miller having repaid the amount
paid by him to the plaintiffs by Johnson
Patten, before judgment was perfected
*against John Hazard, Patten was en- [*#55
titled, as against John Hazard, to stand in
the place of Miller, so as to have the bene-
fit of any agreement he had made with the
plaintiffs. (2 Johns. Cas., 229-281; 2 Vern.,
608; 11 Ves., 22 ; Cla*on v. Mmrix, 10 Johns.,
524, 536, 539.)
5. That Patten, by virtue of his agreement
with the attorney of the plaintiffs, and of his
settlement with Miller, had a right to have the
suit then pending against John Hazard carried
on for his own benefit ; and to perfect this
right, no assignment of the judgment was nec-
essary, nor could, in fact, any assignment of it
have been made, as at the time of that agree-
ment and settlement, no judgment had been
perfected against John Hazard.
6. That there can be no impediment to the
recovery of the plaintiffs at law ; and if there
In- :my questions of equity between the par-
ties affected by, or interested in that judgment,
this court will leave them to their remedy in
a court of chancerv.
7. That the defendant cannot stand in a
better situation, as bail for John Hazard, than
the principal himself could have done on an
execution issued upon the judgment.
8. But, at all events, the plaintiffs are en-
titled to have the verdict entered for the
amount of the costs in the respective suits
against John Hazard, Miller and Patten.
649
355
SUPKEME COURT, STATE OF NEW YOKK.
1816
Messrs. Golden and Drake, contra, contended
that the plaintiffs, having taken issue on the
fact of payment, were too late to object to the
evidence and ought to have demurred ; and if
so, there is an end to the cause ; for if the
payment is the only issue between the par-
ties, the defendant must have judgment on the
evidence. But it is said this suit is prosecuted
for the benefit of the surety, Patten. In or
der, however, to avail himself of the privilege
of a surety, he ought to have averred the fact
of sureti.ship, and put it on record. (1 Chit-
ty'sPl., 347, 352.)
Under the pleadings in this cause, evidence
of the assignment of the judgment in the orig-
inal suit was wholly inadmissible (3 Johns. ,
425; 1 Johns. Cas., 411 ; 7 T. It., 690, n. b;
1 Bos. & P., 447), the issue being only as the
payment, and if admissible it was insufficient.
If there was any assignment, it was to Miller,
not to Patten ; but there was none. This
court allow an assignee to stand in the place
of the assignor to preserve a specific lien ; but
here the plaintiffs attempt greatly to extend
that privilege. The plaintiffs could not make
an assignment which would put Patten in
their situation. There was no privity between
the plaintiffs and John Hazard, but there was
£J5O*] a privity bet ween *Hazard and Patten.
The plaintiffs are indorsees. The judgment
was obtained against Patten in January, 1812;
and whether docketed or not, can make no
difference ; and the money was paid to the
plaintiff s . after that time. The note was not
payment until actually paid. The plaintiffs,
therefore, having received full satisfaction,
this suit cannot be maintained in their names
for the benefit of Patten. From the mere fact
of indorsement, the court will not infer that
suretyship which would give Patten this pe-
culiar privilege. Bail are sureties, and entitled
to all the privileges and advantages of sure-
ties. (10 Johns., 594.) . In this respect, there-
fore, the defendant stands on the ground of
equal equity, at least, with Patten.
Again ; the agreements and arrangements
made by the plaintiffs, and their attorneys,
with Miller and Patten, without the privity or
consent of the bail or principal, altered and
extended the responsibility of the bail, and
thereby operated as a discharge of the bail
from all responsibility. ( Ludlow v. Sim-
ond, Caines' Cas., in Error, 1 ; 1 Ves., 339 ; 2
2 Ves., 569 ; RatJibone v. Warren, 10 Johns.,
587.)
Mr. Emmet, in reply, said that if the prin-
cipal had paid the judgment, it would inure to
the benefit of his surety ; but where the pay-
ment is collateral only, or by one of two sure-
ties, it may or may not, recording to circum-
stances, operate to the benefit of the other
surety. Why may not a surety avail himself
of a contract, by which he may protect him-
self by buying in the rights of a prior creditor?
Will the court consider that as a payment
which the parties themselves did not intend
as a payment ? In regard to the plaintiffs,
this is a case of trust, rather than an assign-
ment, arising on the payment of money un-
der a specific agreement. If the plaintiffs ac-
cepted the note as payment, at the time, it is
not competent for another person to say it was
not payment.
650
THOMPSON, Ch. J., delivered the opinion of
the court :
This is an action of debt against the defend-
ant, on his recognizance of bail for John Haz-
ard. Judgment against the principal was ob-
tained in January Term, 1812, for $1,094.08.
The defendant pleads, 1st. Payment, by the
principal, of the judgment, before the com-
mencement of this suit, to wit : the 1st of
April, 1812. 2d. Payment by William G.
Miller, who was an indorser upon John Haz-
ard's note, and who had become liable to pay
the same, the time of payment being the same
as in the *first plea. The plaintiffs take [*357
issue upon the pleas ; and the first question
which arises is, whether the proof supports
the pleas, or either of them. There is no evi-
dence, in any manner, showing payment by
the principal. Under the second plea, how-
ever, it appears that Miller, on the 2d of No-
vember, 1811, procured a note to be discounted
by the plaintiffs, and that $1,017.31 of the
money was to be applied to the payment of
the principal and interest due upon the note,
on which the suit against John Hazard was
pending. Miller's note was renewed several
times ; and when it was paid does not appear —
probably not until after the judgment was ob-
tained against John Hazard. This proof did
not support the plea. It did not show a pay-
ment of the full amount of the judgment. Had
the plea set out the true sum paid, it would
have been bad on demurrer, and, of course, no
defense. And, if so, it followp, of course,
that the fact itself is no bar ;.for, in case of
demurrer, the fact is admitted. In the case
of Dederick v. Leman, 9 Johns., 333, it was
decided by this court, that a plea of payment
of a less sum than was due on a bond, al-
though accepted in full satisfaction, was not
good, either as a plea of payment, or of ac-
cord and satisfaction. And besides, the pay
ment made by Miller was before the judgment
obtained against Hazard ; for, although made
by Miller's note, discounted by the plaintiffs,
it was received by them as payment, and the
sum due on Hazard's note was, doubtless,
passed to Miller's credit. The understanding
of Miller that if his note was not paid, the
plaintiff would have had a right to retain the
money, if any, collected from John Hazard,
could not materially affect the transaction. It
was a payment at that time, subject, however,
to be reimbursed, out of an uncertain fund,
upon the event of the note's not being paid.
In strictness, therefore, the facts given in evi-
dence do not show a satisfaction of the judg-
ment against John Hazard. There was, at all
events, no payment of the costs due on that
suit ; and the next question that arises is,
whether the defendant can avail himself of that
payment pro tanto ; and I am inclined to think
he cannot. It was not a payment made
by, or in behalf of John Hazard, nor of which
he could, in any manner, avail himself ; and,
if he could not, his bail cannot. The payment
was made under an express agreement that the
suit against John Hazard should proceed for the
benefit of Miller, his indorser. Had the plaintiffs
remained the real parties to *the suit, [*358
perhaps the defendant might, in some way,
in equity, certainly, if not at law, have availed
himself of such payment, according to what
JOHNS. REP., 12.
1816
WILSON v. FINNKY.
was said by this court in Wattle* v. Laird, 9
Johns.. 327. But the plaintiffs, by their agree-
ment with Miller, became mere nominal par-
ties : and we have a right so to consider them,
and look at and protect the real parties in in-
terest. All considerations of hardship must
be laid out of view. They apply with as
much force to the indorser* of John Hazard at>
to his bail ; and when a loss must fall upon
one of two innocent persons, each has a right
to claim protection under whatever strict and
rigid rules of law are to be found in his favor;
and according to which the plaintiffs are, in
ray opinion, entitled to recover the full
amount of the judgment and interest ; and
this is the opinion of the court.
Judgment for the plaintiffs.
Cited in-38N. Y., 653; 48 N. Y., 308.
WILSON P. FINNEY.
lit it'l in fiit — Return of Property.
Where A delivered six sheep to B. on an ajrree-
ntent that, at the end of a year, B would deli\ 1-1- A
an equal number of sheep of equal value, it was
held that the property in the sheep was changed,
and that B was bound to deliver six sheep of equal
value to A at the expiration of the year, although
part of the sheep had been taken under an attach-
ment against A.
IN ERROR, on certiorari to a justice's court.
Some time in June, 1812, the plaintiff in
error, who was also plaintiff in the court be-
low, delivered to the defendant six sheep, in
consideration whereof the defendant promised
and undertook to return and deliver to the
plaintiff, at the expiration of one year, an
equal number of sheep, of equal value, and
also one pound of wool per head for each sheep.
The defendant had neglected to deliver the
sheep according to his agreement. It further
appeared that four of the sheep had been given
up by the defendant, as the property of the
plaintiff, on an attachment issued against him,
in favor of one of his creditors, on the cred-
itor indemnifying the defendant. A verdict
and judgment were given for the defendant in
the court below.
Per Guriam. This judgment cannot be sup-
ported. There is no color for depriving the
plaintiff of a recovery for the value of two
sheep, as there is no pretense that more than
four were taken under the attachment against
JI51)*] him. Hut the plaintiff *was entitled
to recover for the whole number. The prop-
erty in the sheep, delivered by the plaintiff,
was changed, and duly vested in the defend-
ant. He was under no obligation to return the
same sheep, but only those of equal value.
They were at his absolute disposal and risk.
Judgment reverted.
Cited in-2 T. & C.. 38SS.
JOHNS. REP.. 13.
KETCH UM & SWEET
G. B. EVERTSON.
Contracts — Covenant to Give a Deed — Does not
Imply a Warranty Deed — Nor Joinder of Wife
— Voluntary Abandonment by Vendee — Can-
not tiecoter for Part Performance.
When- u person agreed to sell land to another,
and covenanted "to idve u deed of the premises" to
him, ut a certain time ami place, the tender of a
mere quitclaim deed, without covenant or war-
ranty. is a performance of the covenant: nor is it
necessary that the wife of the vendor should join in
the deed,
A party who has advanced money, or done any
act in part performance of an agreement, but re-
fuses to proceed to the completion and execution
of the contract, the other party having peri'unu.-d,
or li.-invr ready to perform, everything agreed to be
done on his part, cannot recover hack the money
he has advanced, nor is he cut it led t<> compensation
for what he may have done in part performance:
and after such refusal to proceed, or voluntary
abandonment of the contract, by the vendee, the
vendor is at liberty to sell the land to another.
Citation— Li Johns., 274. 436.
was an action i of a**ump*it. The dec-
-L laration contained the usual money
counts, and a count upon an itmmul compu-
On the 8th of March. 1811, the parties at
Poughkeepsie entered into a written agree-
ment, by which the defendant contracted to
sell to the plaintiff a place called "the Four
Corners, in the town of Washington, and the
lands included in a mortgage given by Ebcne-
x.cr llaiirht toNehemiah Rogers and Daniel R.
Lambert, dated the 18th of June. 1809," for
the consideration of $6,000, part of which, viz:
$700. was to be paid on the 1st day of May,
ensuing the date of agreement, and the residue
of the purchase money, over the sum of
$4,000, to be secured by a mortgage, by the
plaintiffs, to Rogers and Lambert, to be paid
in three annual "installments, and the residue,
to wit: the sum of $4,000, due to the heirs of
Nicholas Evertson, deceased, either to remain
under the mortgage, then existing, or a new
mortgage to be given by the plaintiffs, as the
defendant should elect;' the whole business to
be transacted, and the defendant to give a deed
of the premises to the plaintiffs, on the 1st day
of May then next, at the office of Rudd and
Kvert-son, in Ptonghkeepsie.
The plaintiffs entered into possession of the
premises under this agreement. On the 1st of
May, 1811, a quitclaim deed for the premises,
to the plaintiffs, executed by the defendant,
but not by his wife, was left at the office of
Rudd and Evertson, in Poughkeepsie, ready
to be delivered to the plaintiffs, who did not
call for it until in the month of October follow-
ing, when *Ketclmm requested the de- [*JJ<>()
fcndant to give up the contract-, observing that
hi-, partner (Sweet) had failed; but the defend-
ant refused to rescind the agreement. Ketchum
then objected that the deed was a mere quit-
claim. and did not contain the usual covenants
NOTK. Knttrr cunt rafts. See M'Millan v. Van-
derlip. 12 Johns., 1(15, imti .
('•"irmi/if f<> (/ire a tUetl— Doe* not <tnp?i/ a war-
ranty. See Van Eps v. Schenectady, 12 .Johns., 438,
nut, .
tf1
360
SUPREME COURT, STATE OP NEW YORK.
1816
of seisin, &c., or warranty, nor was it signed
by the wife of the defendant. The defendant
said the boundaries were according to the
mortgage of Rogers and Lambert, under
which the plaintiffs had purchased; that the
deed was pursuant to the agreement, and the
only one he intended to give; and having per-
formed everything he was bound to do by the
contract, he should not give it up; but that he
was willing to rectify any mistake about the
boundary. Ketchum then tendered a deed to
the defendant, with covenants and warranty,
who refused to execute it. Ketchum then said
he considered the contract as at an end, and
demanded the $700, which, it appeared, had
been paid by the plaintiffs on the 8th of May,
1811, and was applied to pay the interest on
the mortgage to N. Evertson, and the costs
due to the attorneys of Rogers and Lambert.
The plaintiffs quitted the premises in February
following, and in March the keys were ten-
dered to the defendant, who refused to take
them.
In 1813 the defendant sold the premises to
Stephen Allen, for the consideration of $4,560,
by a quitclaim deed.
It appeared that the propercy was about to
be sold under the mortgage to Rogers and
Lambert, and that Rudd and Evertson, attor-
neys for them, requested the defendant to buy
in the property at the sale, in order to save
something on that mortgage, there being a
prior mortgage to N. Evertson; and that the
defendant, accordingly, became a mere nominal
purchaser; that the sum of $6,000, which the
plaintiffs agreed to pay, was not enough to
satisfy both mortgages ; and that the plaintiffs,
before they made the contract, knew how the
defendant acquired the title.
The judge was of opinion that the plaintiffs
were entitled to recover. The defendant claim-
ed a deduction for two years' value of the prop-
erty, for the time the plaintiffs had kept him
out of possession, which was rejected by the
judge. The jury found a verdict for the plaint-
iffs for the $700 and interest.
A motion was made to set aside the verdict,
and for a new trial.
36l*J *Mr. P. Rnggles, for the defendant,
contended: I. That the defendant was a mere
trustee in the business, without any interest,
and that his cestuis que trust, jf any person,
were alone answerable. There was a resulting
trust to Rogers and Lambert, who advanced
the purchase money, or what was equivalent.
They must be considered as the real owners.
The defendant is a mere nominal purchaser, at
their request, and for their benefit. (1 Johns.,
45, n. ; Jackson v. Stcrnbergh, 1 Johns. Gas., 153;
3 Johns., 216; 11 Johns., 91.) It is not neces-
sary for the wife of a trustep to join in a con-
veyance; for she cannot claim dower in the
trust estate. (1 Cruise's Dig., 334, sec. 24;
Susrd. Vend., 218, 219; 2 Yes., 631, 638; 2
Freeman's 43; 71 Co. Litt., 31.)
2. The deed executed by the defendant was
according to the contract; he was not bound,
by the terms of the agreement, to give a deed
with covenants or warranty; and, being a mere
nominal owner, he could never have intended
to bind himself to warrant the title. (12 Johns. ,
436.)
3. The defendant, as agent or trustee, had
652
paid over all the money he had received, be
fore the contract was rescinded, and he cau-
not, therefore, be now called on to pay it to
the plaintiffs. (7 Johns., 179; 1 Chitty's PI. 25.)
4. The plaintiffs have voluntarily rescinded
the contract, and have, therefore, no right to
recover back what they have paid in part per-
formance.
5. But even if the plaintiffs were entitled
to recover, the evidence offered by the defend-
ant to reduce the amount of damages claimed,
ought to have been received. The plaintiffs
had the use of the property, and ought to pay
for that use. There was no necessity of plead-
ing, or giving notice of this. The defendant
had a right to sell the property, after the plaint-
iffs refused to accept the deed.
Mr. Oakley, contra. 1. The deed tendered
by the defendant was not such a deed as the
plaintiffs were entitled to, under a fair con-
struction of the contract. He had, therefore,
a right to regard the contract as rescinded. He
was entitled to a deed with the usual covenants.
It is true that the court, in the case of Van Eps
v. The City of ScJienectady , 12 Johns., 436, have
recently decided that an agreement to execute
a deed of land was satisfied by a deed without
warranty or covenants, a decision of which I
was not before aware; but I did suppose that
the grantor, under an agreement of this kind,
was, at least, bound to covenant against his
own acts (Sugd. Vend., 296; 2 Bos. & P.,
588); but the deed offered was a mere quit-
claim, without any covenant whatever.
*Again; the deed was not executed [*362
by the wife of the defendant. In Jones v.
Gardner, 10 Johns., 266, the court held that
the tender of a deed not signed by the wife of
the grantor, and which did not embrace all
the land of the farm sold, was not a perform-
ance of a covenant to convey. It is true that
a court of equity would relieve against a claim
of dower by the wife of a trustee. But the
defendant had held the premises for some
time, and was the legal owner. It was a re-
sulting trust, resting in parol, and it would be
hard to oblige the vendee to preserve evidence
of that trust, to repel, at any time hereafter,
a claim of dower.
2. The defendant, having, by his sale of the
premises to Allen, put it out of his power to
convey to the plaintiffs, has voluntarily aban-
doned the contract with them, and ought to
refund the money he has received. (Gillett v.
Maynard, 5 Johns., 85.) The cases as to a
vendor's power to resell the property and claim
of the first vendee, the difference in price re-
lates to personal, not to real estate.
The doctrine as to an agent paying over the
money to his principal, cannot apply here.
The defendant has not, in fact, paid over any
money. A mere promise to pay over is not
equivalent to an actual payment. (Cowp., 565.)
Besides, in such cases, there should be notice
that the money has been paid over.
3. The defendant, acting as an agent or
trustee generally in regard to this business,
and contracting personally, is liable on his per-
sonal contract. (Com. on Cont., 252, 253; 5
East, 148; 2 Keb., 136.) The agreement con-
tains no mention of any trust, nor any refer-
ence to a principal, but is wholly in the name
of the defendant, and he might, in equity,
JOHNS. REP., \'A.
Hit)
KKTCHUM v. EVKBTSON.
362
have been compelled to a specific performance
of the contract. He does not appear in the
character of an agent; he was the sole legal
owner of the property, and appeared as prin-
cipal in the transaction throughout.
4. As to the claim for the use and occupa-
tion; where a party refuses to perform a con-
tr.irt, and voluntarily abandons it, he virtually
abandons all collateral benefits or advantages
derived from use, or occupation, or improve-
ment. It is as if the contract had never been
made. This principle was laid down in the
case of Oillet v. Maynard.
Xr.D. R. Odgen. in reply, said that this was,
in truth, an action brought by a party who
had violated, or voluntarily rescinded, his
contract to recover back the money he had
paid; but that a party could never make a
oreach of his own contract the foundation of
IJOJf*] *an action. That the defendant was a
trustee was a fact known to all the parties;
ami the execution of the deed by the wife of
the defendant was, therefore, wholly imma-
terial. The boundaries of the land being ac-
cording to the mortgage, the plaintiffs were
bound to accept the deed. If so, they cannot
maintain this action. After their refusal, the
defendant had a right to sell the land. He
sold it for $1,500 less than the sum which the
plaintiff stipulated to give; and he might well
call on them to pay that difference, rather
.than be subjected to'an action for the money
they had advanced. The payment of the mon-
ey received on the prior mortgage was for the
benefit of Rogers and Lambert, and equivalent
to a payment directly to them.
SPENCER, J., delivered the opinion of the
court:
The plaintiffs seek to recover of the defend-
ant $700, paid upon a contract for the convey-
ance of a farm; and it is contended that the
defendant has violated the contract in several
respects: 1st. In this, that the deed executed
by the defendant contains no covenants of
warranty; 2d. That the defendant's wife has
not executed and acknowledged the deed; and,
8d. That the boundaries specified in the deed
do not embrace ail the lands constituting the
farm at the Four Corners.
It appears that the defendant executed a
deed of the lands, included in a mortgage
given by Haight to Rogers and Lambert, which
deed was ready to be delivered at the office of
Rudd and Everison, in Poughkeepsie, on the
1st day of May. 1811 ; but the plaintiffs did not
then, or on any subsequent day, receive the
same, and perform the covenants which were
simultaneously to be observed; the plaintiffs
insisting on the preceding objections. It also
appears that the plaintiffs, who had taken pos-
session of the farm contracted to be sold,
abandoned the possession, and refused to per-
form their part of the contract; and that, sub-
sequently, the defendant sold the same for a
less sum than the plaintiffs had contracted to
give. These are the material facts in the case,
and I apprehend there is no ground for the
plaintiffs' recovery.
The defendant stipulated to give a deed of the
premises contracted to be sold to the plaintiffs;
this covenant is fulfilled, by executing a con-
veyance of the property without warranty or
JOHNS. REP., 13.
personal covenants. The case of Van Ep» v.
The CorfM/ratiim *of Seheneetady, 12 [*«<i4
Johns., 436, decides this point. If other rea-
sons were necessary to show the propriety of
that decision than those stated in that case,
they at once suggest themselves. Courts of
law can exact no more of parties than the per-
formance of their contracts, according to the
intention manifested by the terms used by
them. When, therefore, it is agreed that a
deed shall be given, nothing more can be ex-
acted than an instrument sufficient to pass the
estate of the party who is to give a deed. If
it be required that the deed should contain
covenants of warranty, nothing is more simple
than the insertion of that stipulation in the
contract. Courts are not to amend or alter the
contracts of parties; and to construe an agree-
ment to give a deed of a piece of land, to be
also an agreement to insert a warranty, would
be exacting more than the agreement specifies.
A deed does not, ex n termini, mean a deed
with covenants of warranty, but only an in-
strument with apt terms conveying "the pro-
perty sold.
These observations equally apply to the sec-
ond point. The defendant alone was to give
a deed ; the agreement is silent as to the de-
fendant's wife uniting in the conveyance, and
it would be an entire interpolation to say that
the defendant agreed that his wife should join
in the deed. Had the agreement been that the
defendant should, by deed, vest the title to the
lands sold in the plaintiffs, then the plaintiffs
would have had a right, if the entire legal title
was" in the defendant, so that the wife might
have been endowed of the land, in case of her
survivorship, to insist on her joining in the
deed. It is not necessary to say that the
defendant had such an estate, as that the wife
might have been endowed, the agreement not
giving rise to that question. The agreement
evidently contemplates that the deed to be
given by the defendant shall be for the place
called the Four Corners, as included in the
mortgage given by Haight to Rogers and Lam-
bert; a deed, then, adopting the boundaries
and description in the mortgage, was a compli-
ance with the contract; and it is admitted that
the deed executed was according to the mort-
gage.
The defendant, then, has complied with his
agreement in all respects; and yet the plaintiffs,
who have paid $700 on the contract, and have
totally refused to perform tlieir part of the
contract by accepting the deed, and giving a
mortgage, seek to recover back the money
thus paid, on the ground that the defendant
has sold the farm, and thus rescinded the con-
tract.
*Where there is no agreement sub- [*3O5
sisting between th'e parties, but the same has
been put an end to, by the election or refusal
of the defendant to perform it, in general, the
other party may recover back any money paid
bv him in part performance. This was so de-
cided in Raymond etal. v. Bearnard, 12 Johns.,
274.
It may be asserted, with confidence, that a
party who has advanced money, or done an
act in part performance of an agreement, and
then stops short, and refuses to proceed to the
ultimate conclusion of the agreement, the other
653
365
SUPREME COURT, STATE OF NEW YORK.
1816
party being ready and willing to proceed and
fulfill all his stipulations, according to the con-
tract, has never been suffered to recover for
what has been thus advanced or done. The
plaintiffs are seeking to recover the money ad-
vanced on a contract, every part of which the
defendant has performed, as far as he could by
his own acts, when they have voluntarily and
causelessly refused to proceed, and thus have,
themselves, rescinded the contract.
It would be an alarming doctrine to hold
that the plaintiff might violate the contract,
and because they chose to do so, make their
own infraction of the agreement the basis of
an action for money had and received. Every
man who makes a bad bargain, and has ad-
vanced money upon it, would have the same
right to recover it back that the plaintiffs have.
The defendant's subsequent sale of the land
does not alter the case; the plaintiffs had not
only abandoned the possession, but expressly
refused to proceed, and renounced the contract.
To say that the subsequent sale of the land
gives a right to the plaintiffs to recover back
the money paid on the contract, would, in ef-
fect, be saying that the defendant could never
sell it, without subjecting himself to an action
by the plaintiffs. Why should he not sell ?
Tlie plaintiffs renounced the contract, and per-
emptorily refused to fulfill it; it was in vain,
therefore, to keep the land for them. The
plaintiffs cannot, by their own wrongful act,
impose upon the defendant the necessity of re-
taining property which his exigencies may re-
quire him to sell; this would be most unrea-
sonable and unjust, and is not sanctioned by
any principle of law. There must be a new
trial, with costs to abide the event of the suit.
New trial granted.
Distinguished-8 How. (U. S.), 469: 52 Md., 681.
Cited in— 6 Cow., 22; 9 Cow., 51; 4 Wend., 606; 5
Wend., 637; 9 Wend., 133; 12 Wend., 388; 13 Wend.,
260; 16 Wend., 636; 5 Denio, 408; 1 Edw., 6: 20 N. Y.,
428; 43 N. Y., 223 ; 55 N. Y., 304; 6 Hun, 473; 1 Barb.,
130; 4 Barb., 44, 358; 5 Barb., 422; 47 Barb., 578: 40
How. Pr., 70, 301; 51 How. Pr., 5; 6 Bos.. 438; 35 Vt.,
193; 5 Wall., 507; 10 Bank. Reg., 320; 103 Mass., 359.
366*] *WHEELER c. BAILEY.
Officers — Prisoner on Execution — Voluntary Es-
cape.
Where an officer having a defendant in execution,
A promised that if the officer would release the de-
fondant, he would pay the amount of the execution
if hefailedtoredeliverhimto the officer on a certain
day, and the officer accordingly released him: it was
held that this was a voluntary escape, and that the
officer could maintain no action against A on the
non-performance of his promise.
TN ERROR, on certiorari to a justice's court.
The defendant in error brought an action in
the court below against the plaintiff in error,
and declared, for that he, the plaintiff below,
as constable, had in his custody one Charles
Billings, by virtue of two executions, and the
defendant, in consideration that the plaintiff
would release and discharge Billings, and that
Billings would go to work for him, the de-
fendant promised the plaintiff that he would
pay him the amount of the executions and
654
costs, if he failed to deliver Billings into the
custody of the plaintiff the next Monday
morning; and the breach alleged was that the
defendant had failed in the performance of his
promise. The allegations of the declaration
were substantially made out in evidence on the
trial; but there was no proof that the plaintiff
below had paid the executions or sustained
any damage. A verdict and judgment were
given for the plaintiff below, the defendant in
error.
Per Curiam. The conduct of the constable,
in permitting Billings to go at large, amounted
to a voluntary escape, and he had no authority
to take any security for the redelivery of Bil-
lings to him; the promise of the defendant
was, therefore, void. Had it been an absolute
engagement to pay the amount of the execu-
tions, it might have altered the case; but the
undertaking of the defendant amounted only
to his becoming security for the redelivery of
Billings into his custody, a contract which the
law would not justify his making; and it does
not appear that he has sustained any damage
whatever by the non-performance on the part
of the defendant. The judgment must, ac-
cordingly, be reversed.
Judgment reversed.
*JACKSON, ex dem. KLOCK ET AL., [*367
RICHTMYER.
Ejectment — Partition — After Forty-nine Years,
when not Invalidated — Agreement Executed by
Person WitJiout Authority — Ratification by
Acts of Parties — Possession — Conveyance to
Third Person — Presumption.
Where a partition was made in 1764, under the
Colonial Act of 1762, and on the trial in 1813, the
map and field book which had been filed pursuant to
the directions of that Act were produced in evi-
dence, but the balloting book could not be found ;
it was held that after such a lapse of time, and the
act of the parties recognizing the partition, it would
not be invalidated on account of the want of the
balloting book.
And an agreement relating to the partition, exe-
cuted by a third person in the name of one of the
parties, who it did not appear had any authority to
execute it, was held to be ratified by the subse-
quent acts of the party in whose name it was
made.
Where a person who recovers in an action of *
ejectment takes possession and conveys the land
to a third person, for a valuable consideration, who
enters such entry and possession aifords strong
prima facie evidence of right.
Citation— 3 Johns., 269, 375.
THIS was an action of ejectment to recover
part of lot No. 4, in the 6th allotment of a
tract of land in the town of Minden, and
County of Montgomery ; granted by letters
patent, dated the 13th of November, 1731,
to Abraham Van Home, William Prevost,
Philip Livingston and Mary Burnet. The
cause was tried before Mr. Justice Platt, at the
Montgomery Circuit, in August, 1813.
At the trial the plaintiff gave in evidence an
exemplification of the letters patent to Van
Home and others, for eight thousand acres of
land ; also a release from William Prevost,
one of the patentees, to Philip Livingston, an-
JOHNS. REP.. 13.
1816
JACKBOS, EX DEM., v. RICHTMYER.
867
other of the patentees, dated the 1st of No-
vember, 1784, of his undivided fourth part of
the eight thousand acres or tract described in
the patent. Philip Livingston, bv his will
dated the 15th of July, 1748, devised his inter-
est in the tract of eight thousand acres to John
Livingston and others, who by deed daUnt the
8(1 of February, 1761, conveyed to George
Klock and Jellis Fonda, in fee, an undivided
moiety of the land contained in the patent, ex-
cept one thousand acres conveyed to David
Schuyler. The plaintiff further gave in evi-
lii-nei- a deed from David and Samuel Van
Home, heirs at law of Abraham Van Horne.the
patentee, dated the 3d of February. 1761, to Jellis
Fonda and George Klock, of an undivided
fourth part of the lands in the patent, except
five hundred acres conveyed to David Schuy-
ler. It was admitted that George Klock died
in 1787. and that the lessors of the plaintiff are
hi- heirs at law; and that the defendant was
in possession of part of lot No. 4, in the sixth
allotment of the above-mentioned tract.
The defendant then gave in evidence a re-
lease dated the 22d of November. 1763, of the
sixth allotment, from Philip Livingston, Will-
iam Livingston. Walter Rutherford, John
Duncan, and William Burnet Brown, styling
themselves part owners of the land in the said
patent, to three Indians and their heirs, in trust
for themselves and all the rest of the native In-
dians belonging to the Canajoharie Castle, and
their heirs forever. The defendant next gave
JJO8*] *in evidence a bill of discovery, filed
in chancery by John Lansing. Jr., and others,
including the present defendant, against the
lessors of the plaintiffs, and their answers
thereto. Jacob G. and George G. Klock, two
of the lessors, in their answer, admit that lands
of certain Indians of the Mohawk tribe were
included in the sixth allotment of the said
patent, and that the Indians were greatly dis-
contented on account of this grant ; but they
deny that their father, George Klock, at any
time, ever assented to the release to those In-
dians, but refused to execute it. They admit
that proceedings in partition, were had some
time about the year 1764, and that Isaac Vro-
man, Ryuier Mvnder.se, and Joseph R. Yates,
were appointed commissioners for that pur-
pose, who divided the tract into six allotments,
and distinguished them numerically, and com-
pleted the map and field book on or about the
9th of October, 1764. The defendants say that
they are ignorant from what motives or opin-
ions the commissioners acted, nor do they be-
lieve that any particular instructions were
given by the proprietors of the patent, or by
any of them, to the commissioners, to proceed
to a subdivision of the sixth allotment, differ-
ing from those given for the partition of the
other parts of the tract ; but believe that they
proceeded to a subdivision of the sixth allot-
ment only from motives of duty. They admit
that a draft of the lots into which the sixth
allotment was subdivided, was duly made by
the commissioners : and that, on such drawing,
lot No. 1, in the said sixth allotment, was drawn
to the share of the patentee, Philip Livingston:
lot No. 2 to the share of the patentee, Abra-
ham Van Home; No 8 to the share of the
patentee, Mary Burnet ; and No. 4 to the share
of the other patentee, William Prevost. They
JOHNS. RKP., 18.
deny that lot No. 1 was assigned to their ances-
tor, George Klock, as his full portion in the
sixth allotment ; but that, the opposition of
the native Indians having ceased, Jellis Fonda
and George Klock took possession of lot No. 1
as part of their share in the sixth allotment ;
and in conformity to an adjustment between
themselves, George Klock released to Jellis
Fonda one fourth of lot No 1, and Fonda re-
leased to Klock three fourths; and Klork,
having possessed himself of lot No. 1, sold and
conveyed his three fourths thereof to Johannes
Luke. They admit that the Indians continued
on the land until 1779 ; and that, after they
removed, some of the tenants and others, re-
siding on the lands, at the request of the de
fendants, entered *into some agree- [*#<$*>
incuts in writing for leases to be given when-
ever the defendants should obtain a patent for
the land, or have their titles confirmed bv the
State ; and they say that the reason of the
last-mentioned stipulation in the agreement,
was because they were ignorant of the extent
of their rights in the sixth allotment. They
say that they have heard, but whether true or
not they are unable to tell, that Jellis Fonda
did obtain an instrument, or deed (dated, as
charged in the bill, the 6th of July, 1789), from
some of the Indians of the Upper Mohawk
Castle, for the sixth allotment, which instru-
ment they insist to be invalid. They admit
that Jellis Fonda, and the following persons,
to each of whom, as was charged in the bill.
Fonda conveyed an undivided fifth part to
John Lansing, Jr., Abraham Van Vechten,
Abraham G. Lansing, and Christopher P.
Yates, commenced actions of ejectment against
them, and recovered possession, of which suits
the defendants had notice, but judgment was
obtained by default therein, by the negligence
of the attorney. The defendants say that they
claim, in the ejectment suits now pending, the
half of lots Nos. 2 and 4 in the sixth allotment,
and admit that their father, George Klock,
was a party to the partition before mentioned.
They state that no part of the one thousand
acres excepted in the deed from the deviser- <>f
Philip Livingston to Fonda and Klock, and
the five hundred acres excepted in the deed
from Abraham Van Home, were contained in
the sixth allotment. From the field book of
the partition referred to in the answer, it ap-
peared that the first, second, third, and fourth
allotments were subdivided into eight lots each;
and the fifth and sixth allotments into four lots
each ; that, on the balloting, lots No*. 1 and 2
of the first allotment, lots Nos. 1 and 8 of the
second allotment, .Nos. 1 and ."> in the third
allotment, Nos. 1 and 3 in the fourth allotment.
No. 8 in the fifth allotment, and No. 1 in the
sixth allotment, fell to the share of Philip Liv-
ingston. Lots Nos. 8 and 7 in the first allot-
ment, Nos. 8 and 4 in the second allotment,
Nos. 2 and 8 in the third allotment, lots Nos. 2
and 6 in the fourth allotment, No. 2 in the fifth
allotment, and No. 4 in the sixth allotment.
fell to the share of William Prevost. Lots
4 and 8 in the tir-t allotment, lots Nos. 1 and
'2 in the second allotment, Nos. 6 and 8 in the
third allotment, Nos. 4 and 7 in the fourth
allotment, and No. 2 in the sixth allotment, fell
to the share of Abraham Van Home. LON-
Nos. 5 and 6 in the first allotment, Nos. 5 and
870
SUPREME COURT, STATE OF NEW YORK.
1816
37O*] 6 in the second allotment, *Nos. 4 and
7 in the third allotment, Nos. 5 and 8 in the
fourth allotment, No. 4 in the fifth allotment,
and No. 3 in the sixth allotment, fell to the
share of Mary Burnet.
The answer in chancery of other of the
lessors of the plaintiff, was read, containing
the same allegations as the answer of Jacob
G. and George G. Klock, and further insisting
that there had been no subdivision of the sixth
allotment, previous to the Revolutionary War,
except on paper, and that, subsequent to the
war, only lot No. 1 had been run out, by actual
survey.
The defendants gave in evidence a release
from George Klock to Jellis Fonda, dated the
27th of February, 1767, by which he released
to him his interest in certain lots in the patent,
among which was lot No. 1 of the sixth allot-
ment, describing the lands, as having been
divided and laid into lots, in September, 1764,
by Isaac Vroman, Esq., one of the commis-
sioners appointed to make partition, as ap-
peared by his map and field book, filed in the
clerk's office of the County of Albany; also an
agreement, dated the 26th of January, 1763,
between George Klock, of the one part, and
John Duncan and Walter Rutherford, of the
other, that Klock should convey to Duncan
and Rutherford one half of all his share in the
Canajoharie patent, which he bought in com-
pany with Jellis Fonda, at the same rate, and
with the same warranty it was conveyed to
him.
The defendant further gave in evidence the
following agreement : " The proprietors in
the Canajoharie patent having agreed to divide
the said patent amongst them into patentees'
shares, the following persons met at New
York, the 27th day of November, in the year
1764, to wit: Jacob G. Klock, in behalf of
the father, George Klock: Isaac Vroman, in
behalf of Jellis Fonda, the first holding three
fourths, and the other one fourth of patentees'
shares; Philip Livingston, who holds three
eighths of a share; Isaac Vroman, for John
Duncan, who holds five eighths of a share;
William Livingston, who holds three eighths
of a share, and Walter Rutherford, who holds
five eighths of a share. They accordingly
drew for the different shares, when Philip
Livingston and John Duncan drew the pat-
entee share that belonged to Abraham Van
Home ; William Livingston and Walter Ruth-
erford, the share that belonged to W. Prevost ;
and George Klock and Jellis Fonda, the share
that belonged to Philip Livingston. They
37 1*] have, accordingly, *agreed that what-
ever lands shall be drawn by the commission-
ers to the patentee rights above mentioned
shall belong to and be the property of the
subscribers, in the shares above specified, and
mutually agree to sign releases accordingly."
This agreement was signed with the other par-
ties by "Jacob G. Klock for George Klock."
The original map and field book of the par-
tition were produced in evidence, and it was
proved that neither the balloting book, nor
any other papers relating to the partition,
could be found in the proper offices. By the
map and field book it appeared that partition
of the tract was made by Isaac Vroman, Ry-
nier Mynderse, and Joseph R. Yates, com-
656
missioners appointed by virtue of the Act of
the late Colony of New York, passed January
3d, 1762, and that the map and field book had
been filed, as the law required, on the 9th of
October, 1764; and that, by the partition, the
tract was, pursuant to the directions of the
Act, divided into six allotments, and each of
those allotments subdivided into four or eight
lots, the sixth allotment being subdivided into
four lots, each containing eight hundred and
fifty acres, and numerically distinguished in
such map and field book from one progres-
sively ; and that the whole of the tract was
balloted for to the patentees named in the
patent. It was thereupon admitted, on the
part of the plaintiff, that No. 1 of the sixth
allotment was drawn as and for the share of
Philip Livingston, and No. 3 of the same
allotment, as and for the share of Mary Bur-
net, to which latter lot the plaintiff disclaimed
all title ; and also admitted that all the lots
drawn on the ballot to the share of the pat-
entee, Philip Livingston, were held under title
derived from Klock and Fonda.
The defendant then gave in evidence a re-
lease from William Burnet Brown, describing
him as the son and heir of Mary Burnet, to
Adam Garlock, Solomon Moyer, and John
Pickarcl (who, or persons claiming under
whom, still had possession), dated 19th of April,
1765, for the lots drawn to the share of Mary
Burnet, in the first five allotments ; also, a
partition deed between the last-named grantees,
dated October, 24th, 1766 ; and a release from
John Duncan and Walter Rutherford, to Jel-
lis Fonda, dated the 28th of June, 1765, which
recited that George Klock and Jellis Fonda
were seised of an undivided sixth eighth part
of the lands contained in the said patent, as
tenants in common; and that Jellis Fonda, be-
ing so seised, conveyed an *undivided [*372
moiety of his share to Philip Livingston, of
the City of New York, merchant, and Will-
iam Livingston, of the same place, attorney at
law; and the other moiety to Walter Ruther-
ford and John Duncan ; that partition of the
tract was made in 1764, and that it was agreed
by the owners of the patent or their attorneys,
in the presence of the commissioners, before
the allotment of the land, that the part and
shares thereunder described for Jellis Fonda
should fall in with the part and share of lots
drawn for Jellis Fonda and George Klock,
and then conveyed to the said Jellis, in fee,
in his actual possession then being, by virtue
of a bargain and sale, for one year, bearing
date the preceding day, and by" force of the
Statute of Uses; one full third part of all that
land conveyed to Walter Rutherford and John
Duncan, by Jellis Fonda, lying partly in lots
Nos. 1 and 2 of the first allotment, partly in
lots Nos. 7 and 8 of the second allotment,
partly in lots Nos. 1 and 5 of the third allot-
ment, partly in lots Nos. 1 and 3 of the fourth
allotment, and partly in lot No. 3 of the fifth
allotment, all which lots were drawn in be-
half of the said Jellis Fonda and George Klock.
The defendant also gave in evidence a con-
tract under the hands and seals of Jacob G.
Klock, one of the lessors of the plaintiff, and
Moses and Abraham Van Campen, dated the
17th of March, 1788, by which the former
agreed to sell the latter No. 1 of the fourth
JOHNS. REP.. 13.
1816
JACKSON, EX DEM., v. RICHTMYER.
372
allotment of the said patent, in fee. Also, u
conveyance, in fee, from George Klock to
Johannes Luke, dated the 21st of July, 1784,
for his three fourths of lot No. 1 in the fourth
.allotment. Also, a partition deed between
Jellis Fonda, John Lansing, Jr., Abraham G.
Lansing, Christopher P. Yates. and Abraham
Van Vechten. of the whole sixth allotment,
except lot No. 1, dated the 1st of September,
1790. Also, the will of Jellis Fonda, dated
the 27th of May, 1791, empowering his exec
ulors to sell and convey his real estate ; and
a conveyance from the executors to the de-
fendant and John Richtmyer, dated the 9th of
May. 1792. for one hundred acres of land re-
leased to Fonda in the sixth allotment, pur-
suant to the partition of 1790, being the prem
ises in question. Also, two agreements exe-
cuted by the lessors, Jacob G. Klock and
George G. Klock, the one to David A. Schuy-
li-r, dated the 10th of January, 1791, and the
tit her to Robert Gardner, dated the 29th of
September, 1790, by which they promised to
give leases of two parcels of land in the sixth
allotment, when they should obtain a title or
vontirmation from the State.
.'J7t'{*l *Parol evidence was also offered by
the defendant, further to show a possession,
in conformity to the original partition of the
patent, and by the lessors of the plaintiff to
show a possessory title in themselves. The
jury, under the direction of the judge, found
a verdict for the plaintiff for three eighths of
the premises, subject to the opinion of the
court on a case containing the above facts.
The cause was argued by Jfe*»r*. Kirkland
and Wwdieorth for the plaintiff, and by M&ara.
Vun Vechttn and Henry for the defendant ;
but as the argument related principally to the
evidence of title and possession, and the points
are fully discussed in the judgment delivered
by the court, it is thought unnecessary to
state the arguments of the counsel.
VAN NESS, J., delivered the opinion of the
•court :
The lessors of the plaintiff, having deduced
a title to an undivided portion of the lands
.granted to Van Home and others, by the let
NT- patent of 1763, are entitled to recover, un-
!.-,> a valid partition has been made of these
lands among the proprietors ; and the prin-
cipal question presented by the case is, whether
-u liriciit evidence of such partition has been
shown on the part of the defendant. It seems
to be admitted that a partition has been duly
made of all the lands described in the letters
patent, except those contained in the sixth
allotment, comprehending the premises in
<|iir-tion ; but it is argued that this allotment
is still to be considered as undivided. I am
at a loss to discover any solid ground for this
distinction. The partition was made under
the Colonial Act of 1762, and all the proceed-
ings to establish a perfect partition under that
Act have been produced, except the ballot
book, which cannot, at this day, be found.
From the proceedings that have been dis-
covered, and which are set forth in the case,
the commissioners, as well as the parties, evi-
dently intended to divide the whole patent ;
and that they did so divide it, is cxjmMsly set
forth in their field book and map . and there
JOHNS. RKP., 13. N. Y. R., 5. 42
is not a single fact or circumstance, that I
have lieen able to discover, showing that the
sixth allotment was not as much the subject
of partition as any of the other allotments.
That allotment, as well as the other live, was
laid out into lots, and upon the balloting. No.
1 was drawn to the share of the patentee,
Philip Livingston; No. 2 to that of Abraham
Van Home; No. 8 to *that of Mary [*374
Burnet; and No. 4 (comprehending the prem-
ises in question) to that of William Prevost.
After the commissioners had laid out the
whole tract into six allotments, and subdivided
the first four allotments into eight lots, and
the remaining two into four lots, the parties to
the partition met at the City of New York, to
proceed to a ballot pursuant to the Act. By
a written agreement between the proprietors
and the parties to the partition, on that occa-
sion, dated the 27th of November, 1764. it ap-
pears that their respective interests were ascer-
tained and settled as follows, to wit : George
Klock and Jellis Fonda owned one of the
patentees' shares (Klock three fourths, and
Fonda one fourth thereof), Philip Livingston
three eighths of a share, John Duncan live
eighths, William Livingston three eighths,
W. Hutherford five eighths, making three
fourths of the whole tract ; Mary Burnet, or
her heirs, holding the remaining fourth. The
proprietors having agreed " to divide the said
patent amongst them, into patentee shares,
they accordingly drew for the different shares,
when Philip Livingston and John Duncan
drew the patentee share that belonged to
Abraham Van Home, William Livingston and
W. Rutherford the share that belonged to
William Prevost, and George Klock and Jellis
Fonda the share that belonged to Philip Liv-
ingston ; and they accordingly agree, that
whatever lands shall be drawn by the com-
missioners to the patentee rights above men-
tioned, shall belong to and be the property
of the subscribers" (to the said agreement)
" in the shares above specified, and mutually
agreed to sign releases accordingly." It was
objected to this agreement, in the course of
the argument, that tin-re was no evidence to
show that Jacob G. Klock was authorized to
sign the agreement in behalf of his father,
George Klock. It is true there is no express
evidence of this fact, but that he was duly
empowered to represent his father, is most
atisfactorily proved by his subsequent ratifi-
cation of this act, to which I will presently
advert. By the map and field book duly filed
pursuant to the Colonial Partition Act, it ap-
pears that " partition of the said tract of land,
granted by the letters patent aforesaid, was
made by I. Vroman, R. Mynderse, and Joseph
R. Yates, Commissioners appointed by virtue
of the Act of the late Oolony of New York,
passed the 3d of January, 1762; and that the
said map and field book had been filed as the
law required, on the 9th of October, 1764;
md that, by the said partition, the said tract
was, 'pursuant to the directions of [*U7f»
the said Act. divided into six allotments; and
each of those allotments subdivided into four
or eight lots, and the said sixth allotment,
each containing eight hundred and fifty acres:
numerically distinguished in such map
and field book from No. 1, progressively ; and
•SI
875
SUPREME COURT, STATE OF NEW YORK.
1816-
that the whole of the said tract was balloted
for to the patentees named in the said letters
patent." It further appears by the case that
the plaintiff, at the trial, "admitted that lot
No. 1, of the sixth allotment, was drawn as
and for the share of the patentee, Philip Liv-
ingston; and lot No. 3, as and for the share of
the patentee, Mary Burnet, to which latter lot
the plaintiff disclaimed all title." It is thus
clearly shown that a partition, in fact, was
made of the whole tract contained in the let-
ters patent ; and that George Klock and Jellis
Fonda owned, at the time, but one patentees'
share, being one fourth of the whole tract ;
and I now proceed, as briefly as the subject
will permit, to show that, whatever imper-
fection may exist in the evidence of a valid
partition, under the Colonial Act, owing to
the non-production of the ballot book (if, in-
deed, any such imperfection exists), is amply
supplied by the subsequent acts of the par-
ties, and particularly by those of George
Klock.
It was admitted at the trial, or is proved
either by the answer to the bill in chancery
or by other written or oral testimony: 1st.
That the lands in the first five allotments al-
ways have been, and still continue to be held
according to this petition.
2d. That all the lots drawn on the said bal-
lot to the share of the patentee, Philip Liv-
ingston, now are, and for a long time have
been held under a title derived from George
Klock and Jellis Fonda.
3d. That William Burnet Brown, claiming
to be heir at law of Mary Burnet, ratified the
partition, by selling and conveying to Adam
Garlock and others, in 1765, and AVI thin a few
months after the partition was completed,
"the lots drawn to the share of the patentee,
Mary Burnet, in the aforesaid partition, in
the firct five allotments of said patent;" and
that Garlock and his co-granlee^s, the follow-
ing year, made partition of these lots among
themselves, all of which have ever since been
held under a title derived from Garlock and
his associates.
4th. That in April. 1766, George Klock and
Jellis Fonda entered into a written agreement
to divide all the lots drawn by them on the
general partition, and in strict and exact cou-
376*] formity *thereto. By this agreement,
George Klock took, among other lots, precise-
ly three fourths of lot No. 1, in the 6th allot-
ment, and Fonda one fourth ; and, at this
time, no right or title to any other part of the
sixth allotment was suggested or pretended by
George Klock ; nor, indeed, was any such
claim made until after the time the Indians
left it.
5th. That on the 27th of February, 1767,
George Klock carried the last-mentioned
agreement into effect, by releasing to Fonda
his interest in the lots therein mentioned and
designated ; and describing the lands released
as having been divided and laid out into lots,
in September, 1764. by Isaac Vroman, Esq.,
one of the Commissioners, and the surveyor ap-
pointed to make partition of the laud contained
in the patent of Van Home and others, as ap-
pears by his map and field book, filed in the
clerk's office, in the County of Albany.
6th. That George Klock, in July, 1788, sold
658
and conveyed three fourths of lot No. 1, in
the sixth allotment, to Johannes Luke, under
which deed it has been held ever since. These
are some of the many equivocal acts by which
the partition of 1764 is recognized and ratified,
not only by George Klock, but by others of the
parties to it. Many more might be added,
equally explicit and important, were it neces-
sary. From those which have been adverted to,
the authority of Jacob G. Klock to sign his
father's name to the agreement of November,
1767, is placed beyond all doubt. And it is
equally clear that George Klock not only ad-
mitted the validity of the partition of 1764, of
the first five allotments, but also, particularly
that of the sixth allotment. A partition thus
made, acted upon and ratified, and under
which rights have been acquired by pur-
chasers, from the parties to it, ought not to be
disturbed. The court is bound to presume
that everything has been done which was re-
quired to be done, to give it validity. The
partition, then, being fully proved and estab-
lished, the lessors of the plaintiff must fail,
inasmuch as the defendant has shown a sub-
sisting title to be out of them; and it is in this
respect, chiefly, that the present case is dis-
tinguished from that of Jackson ex de.m, Klock
etal., v. Hudson, 3 Johns., 375.
The counsel for the plaintiff, however,,
claims that the lessors of the plaintiff are i-n-
titled to recover upon their possessory title ;
and it therefore becomes necessary to say a
few words in relation to that point. The pos-
session which has been attempted *to [*I>77
be shown, commenced some time after the
Revolutionary War. It was a mere naked
entry, unaccompanied with any title, and, in
fact, without the color of title. It may well
be doubted whether this possession was of
such a nature as would have conferred any
right, even if it had endured twenty years,
upon those who took it, or whether it would
have taken away any right from the true
owner. Within twenty years, however, an
action of ejectment was commenced against
the persons then in possession, under some of
the heirs of George Klock ; and the lessors of
the plaintiff, in that action, having obtained a
judgment by default, turned thepossesors out,
and entered into possession under a Jutb. fac.
jxtxsexswnem The defendant is a bonafide pur-
chaser, fora valuable consideration, from the
persons who thus obtain possession under that
judgment. Although it is true, as was said
by this court in the case of Jackson ex dem.
Wright et al., v. Dieffendorf & Zoller, 3 Johns.,
269, that no right is definitively determined by
a judgment in ejectment, yet it is equally true,
that when a party enters under such a judg-
ment, and then conveys to a third person for
a valuable consideration, who enters under
his deed, that such an entry and possession af-
ford as high and solemn prima feme evidence
of right as can well be exhibited; and higher
and better evidence of title than the mere
naked occupancy of these lands, indisputably
belonging to other persons, by the representa-
tives of George Klock. The lessors of the
plaintiff, in their answer to the bill in chan-
cery, do not put their right to recover upon
the ground of possession They rely, exclu-
sively, upon the title which they claim to be
JOHNS. REP., 13.
1816
SCOTT v. SHAW.
377
vested in them, under the letters patent, and [
that title having failed, they are not entitled
to recover at all.
SPENCER, «/., having been formerly con-
cerned for the lessors of the plaintiff, in a suit
relative to the same title, did not sit to hear
the argument, and gave no opinion in the
cause.
Judgment for the defendant*.
Affirmed— 16 Johns.. 314.
378*] *SCOTT r. SHAW.
Practice— Statute Relating to Special Bail —
Sheriff Entitled to Poundage, Wlien.
Where a defendant has been taken under a en. sa,,
and discharged from custody on the ground that no
previous fl. fa. had been issu«-<l on tin-
special bail in the action), the sheriff is,
notwithstanding, entitled to poundage; as he has
mi-urn <i the risk of being mack- liable foran escape,
in an action for which be could not have availed
himself of the irregularity as a defense.
And it makes no difference that the defendant,
after his discharge, confessed a new judgment to
the plHintiff for the amount of the former judg-
ment, on which satisfaction was entered, and that
a r<i. MI. having been regularly issued on the
second judgment, the sheriff bad been paid his
poundage thereon.
Citatlon-1 N. R. L., SOS.
JN this case, the question submitted to the
court, without argument, was, whether
Simon Fleet, late sheriff of the City and
County of New York, was entitled to pound-
age on the ca. sa. issued in this~cause, under
the following circumstam
The plaintiff having recovered a judgment
against the defendant in this cause, in which
special bail had been tiled, his attorney inad-
vertently isssued a ca. sa., when no fi fa. had
been previously issued and returned, pursuant
to the proviso in the 7th section of the "Act i
Concerning judgments and Executions" (sess.
38, ch. 50; 1 N. R. L., 502). The defendant,
having been arrested on the ca. sa., was. in
consequence of the irregularity, discharged
from custody, but without paying any fees.
It being apprehended that the discharge might
be deemed an extinguishment of the judg-
ment, the defendant confessed a new judg-
ment in favor of the plaintiff for precisely the
same amount as the former one, and satisfac-
tion of the first judgment was entered on
record pro forma, but no payment or satisfac-
tion was actually received, it being so ex-
pressed in the satisfaction piece, which was
special. ' Upon this new judgment, a fi. fa
and ca. sa. were afterwards regularly issued,
and upon the second ca. mi. the defendant was
again arrested and taken into custody. The
sheriff received his full poundage and other
fees upon the second en. sa., and claimed
poundage and other fees upon the first ca. sa. ;
his claim to caption and jail fees was admitted,
but the demand of poundage resisted.
SPENCER, «/., delivered the opinion of the
court:
The Act prohibiting the issuing a <vi. sa. (1 N.
R. L., 502) upon judgments rendered in actions
wherein special bail has been filed, until after
JOHNS. REP.. 18.
&fi.fa., does not render a ca. sa. issued before
&fi. fa. void; it is only voidable at the in-
stance of the party against whom it is thus
issued. The sheriff certainly incurred the
risk of liability for an escape on the first ca.
sa., for he could not set up, in an action
against him for an escape, that the ca. sa. had
issued irregularly ; the sheriff, therefore,
gained a perfect title to his poundage, unaf-
fected by the subsequent discharge of the
prisoner. It is no answer to the sheriff's
claim *for poundage, that he has re- [*379
ceived poundage upon another judgment be-
tween the same parties, and for the same
original debt; it is, legally speaking, a new
debt, as far as the sheriff is concerned. The
allowance of poundage is for the risk in-
curred, and that risk is in proportion to the
amount of the sum to be levied; and as the
sheriff was exposed to two risks, he is entitled
to the poundage on both executions.
Cited In— 19 Wend., 190: 8 Paige, 471: 56 N. Y., 284;
24 Hun, 256; 1 Abb. Pr., 434; 4 Bos., 389.
A. K. PATTERSON t. M. PATTERSON.
Promise to Reward for Services by Will.
The plaintiff, after he had come of age, lived with
and worked for his father, the defendant, who said
he would reward him well, and provide for him in
his will : held, that the plaintiff could not maintain
an action to recover campenMttoii for his services
during the lifetime of his father.
Citations:; Johns, 200 ; 1 Esp. A'. P., 187.
A MOTION was made to set aside the report
of referees in this cause. The plaintiff is
a son of the defendant, and was born in 1773,
and lived with and worked for his father on
his farm until 1810 ; except that for one or
two years during that time he had the farm on
shares. In 1805 or 1806 the defendant said he
intended to reward the plaintiff well ; that he
was old, and that the plaintiff must continue
with him as long as he lived, and he would
reward him well ; and that he should have
the farm, paying legacies to his other children.
In the autumn of 1810 the defendant ten-
dered to the plaintiff $750, as a compensation
for his services for fifteen vears, and requested
him to sign a receipt; which the plaintiff de-
clined doing, and did not take the money.
One of the witnesses stated, that about five
years ago, the defendant said he intended to
give the plaintiff $750 for his services, and
had provided for it in his will, and that he
should share equally with the other children.
In his will, dated 22d of March. 1810, which
was produced and proved before the referees,
to be duly executed, it appeared that the de-
fendant had ordered $750 to be paid to the
plaintiff ; but if he should receive it after the
date of the will, or before the testator's death,
it was to be deemed a discharge of the bequest ;
and he gave all his real and personal estate to
his wife for life, and, after her death, to bis
seven children, equally to be divided between
them ; and in a codicfl to the will, he declared
that the sum directed to be paid to the plaintiff
was to be in full compensation for all his
labor ai.d services on the farm, since he came
of age.
659
380
SUPREME COURT, STATE OF NEW YORK.
1816
38O*] *VAN NESS, J., delivered th'e opin-
ion on of the court :
The plaintiff is entitled to a reward for his
service, because the evidence repels the idea
that they were to be performed gratuitously.
(Jacobson v. Tfie Executors of J^e Grange, 3
Johns., 200 ; Le Sage v. Couxsmaker et al., 1
Esp. a. P., 187.) But from the testimony of
John Patterson, as well as of several other
witnesses, it is evident that the plaintiff was to
be compensated for his services by a provision
to be made for him by his father (the defend-
ant), in his will ; and" of course, that no claim
for compensation was to be made in his father's
lifetime. The defendant is bound to make,
and. it is to be presumed, will make such a
provision for the plaintiff by his will as will
do him perfect justice, and which may be per-
fectly satisfactory to him; or which, in judg-
ment of law, may amount to a satisfaction.
Should the defendant wholly overlook the
plaintiff in his will, this would be such an act
of injustice that there can be no doubt the
plaintiff might maintain an action, and recov-
er a reasonable compensation for his services.
This suit, however, is premature, and cannot
be supported. The report of the referees
must, therefore, be set aside.
Motion granted.
Criticised-20 Hun, 471.
Followed— 53 Ind., 345.
Cited in— 13 Wend., 464; 2 Hill, 579 ; 64 N. Y., 594;
10 Hun, 322; 5 Barb., 472: 65 Barb., 645; 3 Bradf.,
205 ; 46 Mich., 64 ; 26 Wis., 644.
BROOKS ET AL., Overseers of the Poor of
the Town of Tioga,
v.
READ ET AL, Overseers of the Poor of the
Town of Seneca.
Pauper — Removal by Order of Two Justices —
Order Qua»Jwd — Legal Settlement.
A B, a pauper, was removed, by an order of two
justices, from the town of T. to the town of S. On
appeal, the order was quashed, and the overseers of
1 . directed to pay a sum of money to the 'overseers
of 8., on account of the expenses of the pauper, in-
termediate between the time of the removal and
quashing the order. At the time the order was
quashed, the pauper could not, by reason of ill
health, be reconveyed to T., but was supported, for
some time thereafter, at the expense of the over-
seers of 8. Held, that the overseers of S. could not
maintain an action of osswmpsit against the over-
seers of T. to recover the amount of those subse-
quent expenses, there being no previous request or
express promise to pay them ; and admitting1 that a
moral obligation would be a good consideration for
an implied promise, here was no moral obligation
on the part of the overseers of T., us it did not ap-
pear that the pauper was legally settled in T. ; for
the order of Sessions quashing the original order of
removal, does not prove that the pauper was settled
in T., but only that he was not settled in 8.
Whether the provision of the Act for the Relief
and Settlement of the Poor (sess. 36, ch. 78, sec. 15),
giving a summary remedy to the overseers of the
poor of one town, who have supported a pauper of
another town, who, by reason of sickness, could not
be removed, against the overseers of that other
town, is cumulative, or takes away the common
law remedy. Qucere.
Whether, if A B had had no legal settlement in
this State, the overseers of 8. could have maintain-
ed an action against the overseers of T. for the ex-
penses incurred subsequently to quashing the order
of removal. Qiu&re.
660
Whether a moral obligation will support an action
on an implied a&fumpsit. Quaere.
Citations- 3 Esp., 91 ; 3 Bos. & P.. 247 ; 2 East, 505 ;
1 N. R. L., 284.
IN ERROR, to the Court of Common Pleas
of the County of Tioga.
*The defendants in error, who were [*381
the plaintiffs in the court below, brought an
action of indebitatus assumpsit, in the court be-
low, for meat, drink, board, washing, lodging,
medicines, medical assistance, attendance and
other necessaries, provided at the special in-
stance and request of the defendants, as over-
seers of the poor of the town of Tioga, for one
Robert M'Phee, and for money paid for the
use of the defendants. The defendants plead-
ed the general issue. The cause was tried at
the May Term, 1815, of the Court of Common
Pleas of Tioga County.
• On the 2(1 January, 1813, an order was made
by two justices of the County of Tioga, and
directed to any constable of the town of
Owego (now the town of Tioga), which order
recited that Robert M'Phee had come to the
town of Owego, not having obtained a legal
settlement therein, and had become a charge
to that town; and adjudicated that his last set-
tlement was in the town of Seneca, in the
County of Ontario, and directed his removal
thither. The overseers of the poor of the
town of Seneca appealed from this order to
the Court of General Sessions of the Peace of
the County of Tioga, which, in the May Term,
1813, of that Court, quashed the order of re-
moval, and also ordered the overseers of
Owego to pay to the overseers of Seneca the
sum of $71.40, to reimburse them for the
money which they had expended for the relief
of the pauper, between the time of his removal
to Seneca and the determination of the appeal,
and also $32.93 for their costs. It was proved,
on the part of the plaintiffs, in the court be-
low, that M'Phee was, at the time of the re-
versal of the order of removal, in such a state
of health that he could not be taken back to
Tioga ; and that from the 5th day of May,
1813, when the Older of removal was quashed,
to the 20th of September, 1814, when he was
conveyed to Tioga, the plaintiffs below had
expended the sum of $199.23 for his mainte-
nance ; and that they had also paid $24 for re-
moving him to Tioga. A witness on the part
of the plaintiffs below proved that in June,
1813, he went, at the request of the then
overseers of the town of Tioga, to the town of
Seneca, for the purpose of receiving the
pauper ; but that being so ill that he could not
be removed on horseback, the only means of
conveyance with which the witness had been
furnished, the witness refused to take him,
and left him in the charge of the overseers of
Seneca, as before. The plaintiffs below having
rested their cause, the defendants moved for a
*nonsuit, which was overruled ; they [*382
then offered to give evidence of certain facts
(which it is unnecessary to state), but the court
rejected the testimony, and a verdict and
judgment were given to the plaintiffs below.
The defendants below, the present plaintiffs
in error, tendered a bill of exceptions to the
opinion of the court below, which was re-
moved into this court by a writ of error. The
cause was submitted without argument.
JOHNS. REP., 18.
1316
THE PEOPLE v. BERNER ET AL.
SPENCER, J., delivered the opinion of the
court :
If it be admitted at all, it must be with great
hesitation, that, if even the pauper's legal set-
tlement was in Tioga, the maintenance of him
by Seneca, without the request, and without
any promise by the pverseers of the poor of
Tioga, will give them a right to maintain an
action of aaxumpxit. The cases of Wiminnn* v.
WUinot, 8 Esp., 91, and of Wennal v. Adnry,
:{ Bos. & P., 247, certainly favor the idea that,
in such a case, an action of a*#umjmt could be
maintained, on the implied promise resulting
from the legal and moral obligation, on the
part of the town where the pauper is legally
settled, to provide for and maintain him. The
case of Atkins ei al. v. Rimcell et <tl., 2 East,
503, is directly to the contrary : in that case
Lord Ellenborongh held, that though a moral
obligation was a good consideration for an ex-
press promise, it had never been carried far-
ther, so as to raise an implied promise in law,
and he said there was no precedent, principle
or color for maintaining the action.
But in the present case, there is no proof
that the pauper was legally and rightfully
settled in the town of Tioga ; the legal pre-
sumption is against the fact ; for the order ap-
pealed from adjudicated the pauper's settle-
ment to be in the town of Seneca, declaring it
not to be in Tioga. The subsequent reversal
of that order proves only that the settlement
was not in Seneca, and Tioga has been sub-
jected to all the consequences provided by the
Act for making the order, by being adjudged
to pay the costs, and the expenses incurred in
providing^ for the pauper, intermediate the
order and the reversal of it by the Sessions.
The Act (1 N. R. L., 284) has provided for
such a case. It authorizes overseers of the
poor of a town, where a pauper is taken sick,
so as to be incapable of being removed, to give
notice to the overseers of the poor of the town
38.'J*J where he is legally *settled. of the
name, condition, and circumstances, of such
poor person, requiring them to take care of,
«fcc., such poor person; and, in case of neg-
lect, it gives a summary process to levy all
sums of money necessarily expended in his
maintenance.
I will not say that this is not a cumulative
remedy, or that it takes away a common law
right to maintain an action of ammmpitit for
the expenses incurred. But, in the present
case, if I he objection could be surmounted,
that here this is no promise, on the part of
Tioga, to pay these expenses, nor request to
keep the pauper, the foundation of the action
fails ; there appears to be no moral obligation
arising from the pauper's settlement in Tioga,
because the fact does not appear to be so.
It inny be said that Tioga was the cause of
the expense incurred by Seneca, in this, that
the- pauper was illegally imposed on Seneca,
and it was bound to provide for him to pre-
vent his perishing. Tioga has paid the pen-
alty of that act, by being subjected to the
charges of maintaining the pauper between the
time of making the order and its reversal, and
the costs therein. I give no opinion whether
an action on the case could not be maintained
by the overseers of Seneca against the over-
seers of Tioga. for these subsequent expenses,
JOHNS. RKP , 18.
provided it should appear that the pauper had
no legal settlement within this State ; that
would present a different question. This ac-
tion, under the circumstances of the case, is
not maintainable.
Judgment retorted.
Cited ins Cow., 667 ; 15 Barb., 540 ; 18 Barb., 108.
THE PEOPLE t>. BERNER, BORST ET AL.
Sureties — Not Exonerated by Negligence of Cred-
itor in Culling upon Principal, if no Injury
Iletult*.
The negligence of the creditor in calling upon the
principal, does not exonerate the surety, unless he
has been damnified by such m>frligence.
In an action against the sun-ties of the commis-
sioners, for loaning money of the County of 8., for
the default of their principals in not paying over
money which they httd received for interest ; it was
held that the sureties were not exonerated by the
negligence of the Comptroller in not calling upon
their principals after numerous defaults, unless an
injury resulted to them from his negligence.
Citation— 7 Johns., 832.
rPIIIS was an action of debt on a bond exe-
J- cuted by the defendants, to the people of
the State of New York, dated the 8th of June,
1808, in the penal sum of $24,936, and condi-
tioned that Hermanus Bouck and Jeremiah
Brown, two of the defendants, should well
and truly perform the office and duty of com-
missioners for loaning money for the County
of Schoharie. The breach assigned was, that,
on the 1st of June, 1814, the *defend- [*384
ants Bouck and Brown had in their hands
$3,119.33, which they had received for inter-
est, and which they had neglected and refused
to pay over to the plaintiffs. The defendants,
Berner and Borst, pleaded, 1. Non ettfactum.
2. That Bouck and Brown had not received
the above-mentioned sum, and that they had
paid into the treasury all the moneys which
had come to their hands, for interest, accord-
ing to the directions of the Act. The issues
joined between the plaintiffs and the defend-
ants Berner and Borst, were tried before Mr.
Justice Yates, at the Albany Circuit, in Octo-
ber, 1815.
It was proved that on the 1st of July, 1814,
there was a balance due to the State for inter-
est, received by the defendants Bouck and
Brown, of $3,119. No suit, other than the
present, had been commenced for default of
the first, or of any subsequent payments, nor
had any notice been given by the Comptroller
to the sureties of any such defaults. A verdict
was taken for the plaintiffs for the above-
mentioned sum, with interest, subject to the
opinion of the court on the above case, which
was submitted to the court without argument.
Per Curiam. The defense set up by the
defendants Berner and Borst cannot prevail.
The principles adopted by this court in the
case of The People v. Jaiiten, 7 Johns., 882, do
not apply here. Although there may have
been negligence on the part of the public offi-
cers, in omitting to call these commissioners
to account sooner, that omission, from any-
thintr that appears, has not, in any manner,
prejudiced the security. There must not only
•n
384
SUPREME COURT, STATE OF NEW YORK.
1816
be negligence on the part of the creditor, but
an injury resulting therefrom to the security,
in order to exonerate them. It does not ap-
pear that the commissioners are insolvent, or
unable completely to indemnify, and save
harmless, their security. Independently of
this circumstance, however, the situation of
these commissioners is not analogous to that of
loan officers. There is no board whose duty
it is annually to inspect and pass their accounts.
The general duties of the commissioners, and
of the Comptroller, are pointed out. But it is
not made the duty of the Comptroller to report
to the Governor, or any other person, the defi-
ciency of the commissioners. The judgment
must, accordingly, be entered for the plaint-
iffs.
Judgment for the plaintiffs.
Cited in— 3 Wend., 26 ; 4 Wend., 574'; 58 N. Y., 549 ;
30 Barb.. 614 ; 39 Super., 45 ; 2 Wood. & M., 62 ; 40
Mo., 217.
385*]*lN THE MATTER OP BRADSTREET,
an Insolvent Debtor.
Insolvents — Order for Assignment — May be Va-
cated for Fraud of Petitioning Creditors —
Surprise — Assignment by Insolvent.
When an order has been made for the assignment
of an insolvent's estate, under the 9th section of the
Insolvent Act (1 N. R. L., 464), the officer granting
the order cannot afterwards vacate it, unless there
has been surprise on the opposing creditors, or they
have been misled by the opposite party.
Where the counsel for the op posing creditors was,
while going to the office of the Recorder of New
York to oppose the insolvent's discharge, met by
one of the attorneys for the petitioning creditors
and insolvent, and detained by him in conversation
and by the perusal of papers relating to the opposi-
tion, and in the meantime the other attorney had ap-
peared with the petitioning creditors before the
Recorder, and obtained an order for the assignment
of the insolvent's estate; it was held that underthese
circumstances the Recorder ought to vacate the
order.
The officer before whom the proceedings under
the 9th section of the Insolvent Act are had, should
be satisfied that two thirds of the creditors had re-
quested that an assignment of the insolvent's estate
should be made ; although if it appear, after the as-
signment hsis been made, that two thirds of the
creditors had not assented, the assignment is, not-
withstanding, valid.
If the creditors do not attend in due time to op-
pose, their assent is presumed, and that they have
waived their opposition.
The assignment having been made hy the insol-
vent himself, under the 9th section of the Insolvent
Act, he is to be discharged, on conforming with the
directions of the Act, in respect to petitioning cred-
itors ; he must therefore make out, under oath, an
account of his creditors, and a just and true inven-
tory of his estate, and deliver over his estate to his
assignees ; but he is not bound to advertise anew.
Citation— 1 N. R. L., 464.
THE following facts were submitted by the
parties to the court for their opinion, and
were to be considered in the nature of a re-
turn to an alternative mandamus directed to
the Recorder of New York, requiring him to
sign the insolvent's discharge, or show cause
to the contrary.
On the 23d December, 1815, one of the
creditors of the insolvent applied to the Re-
corder, under the 9th section of the Insolvent
Act, to compel the insolvent to assign his
property for the benefit of all his creditors.
062
Regular notice having been given, such of the
creditors as appeared before the Recorder, at
the time appointed by the notice, proved their
debts, and requested their assignment. The
order to assign was made, and in a few min-
utes thereafter, certain opposing creditors ap-
peared, and applied to h^ve the order vacated.
The following facts are stated in the affidavit
of Mr. M'Coun, who acted as counsel for the
opposing creditors. The deponent received a
letter from Boston, inclosing certain affidavits
to oppose the insolvent's discharge. On the
morning of the 27th February, 1816, at the
time appointed for the creditors to appear,
while going to the Recorder's office, he was
met by Mr. Fay, one of the attorneys for the
petitioning creditors and insolvent, who re-
quested the deponent to stop and let him look
at the affidavits before submitting them to the
Recorder, at the same time observing that per-
haps some arrangement might be made to
satisfy the creditors. The deponent thereupon
showed him the affidavits, and read him part
of the letter accompanying them; and Fay
consented to adjourn the business until the
Monday following. The deponent then pro-
ceeded with Fay to the Recorder's office,
where they were informed by the Recorder
that he had just granted Mr. Van Wyck (the
other attorney for the petitioning creditors
and insolvent) an order for the assignment of
the insolvent's *estate. Fay then ex- [*38O
pressly admitted that he had detained the de-
ponent, and that but for his detention the
deponent would have been in time to make
his opposition; and declared that there should
be no difficulty about it, and that he would
go after Mr. Van Wyck. Shortly after, Fay
and Van Wyck returned to the Recorder's
office, and, after some conversation, they
agreed, as the deponent understood, to open
the case, and then proceeded to object to the
affidavits that they were not made before a
proper magistrate. The Recorder, to give the
deponent an opportunity to show that they
were properly taken, adjourned the proceed-
ings until the next day, when the deponent
having shown, to the satisfaction of the Re-
corder, that they were taken before a compe-
tent magistrate, Fay and Van Wyck objected
that they were not certified under the seal of
the magistrate ; upon which the Recorder in-
timated that if that were a good objection,
he would be willing to allow furtker time to
have the affidavit properly certified ; where-
upon Van Wyck declared that, if such were
to be the case, he would not consent to give
up the order of assignment which he had ob-
tained ; and there was, accordingly, an end
to all further discussion before the Recorder.
The next day Fay met the deponent, and de-
nying that there had been any collusion be-
tween him and Van Wyck, told the deponent
that he had determined that the order should
be vacated, and the case opened for a hearing,
and that he had prevailed upon Van Wyck to
consent ; soon after the deponent saw Van
Wyck, who told him that he would consent to
submit the case to the Recorder, when Mr.
Sedgwick (on whose behalf the deponent had
acted in this affair) should return, and let him
decide whether he would open it or not. To
this the deponent replied that such a submis-
JOHNS. REP., 18.
1816
IN THE MATTER OF BRADSTKEET.
386
sioii of the case would be of no avail, as the '
Recorder had already said that he could not ',
open the case for a hearing, unless they would
consent to give up the order absolutely ; and j
that it was the deponent's wish, and was the
only way in which, in his opinion, the busi- !
ne«.s could be conducted, to submit the case to
the Recorder in the same manner as if no j
order had been made. Van Wyck replied, to ;
the best of the deponent's recollection: "Very j
well, we will do so ; and we will let the busi- :
ness rest until Mr. Sedgwick's return : in the
meantime, if any assignment is made by the
insolvent, it shall be conditional." From
these conversations with Fay and Van Wyck,
the deponent understood that they had con-
387*] sented »*to give up and vacate the
order of assignment, and open the caes for a
rehearing.
To the case was annexed a paper signed by
Mr. Fay, in which he stated that he desired
that the order might be vacated, and that the
opposing creditors might be allowed to come
in; "it being, nevertheless, hereby expressly
declared that the petitoning creditors and the
insolvent, since the conversation at the Re-
corder's office aforesaid, have objected, and
now object, to vacating such order, and to the
coming in of the creditors."
The case was argued at the last term by
Mr. R. Sedgutiek for the opposing creditors,
and Mr. T. A. Emmet for the insolvent.
THOMPSON, Ch. J., now delivered the opin-
ion of the court :
The counsel, in the argument of the case,
have made two questions for the consideration
of the court. The first relates, particularly,
to this case, to wit : whether the Recorder,
under the circumstances stated, has the power
and ought to vacate the order for assignment
in nil- by him. The second is a more general
question, involving the construction of the 9th
section'of the Insolvent Act (1 N. R. L., 464,),
concerning which a diversity of opinion, as
well as practice, has prevailed.
With respect to the first question, it is un-
necessary to decide whether the Recorder,
after having made an order for the assignment,
would have a right to vacate it, when there
was no surprise upon opposing creditors, or
anv circumstances attending the proceedings
calculated to mislead them ; I am inclined to
think, however, he could not. But a recur-
rence to the particular circumstances disclosed
in this case, shows very clearly that the coun-
sel for the opposing creditors was prevented
from making opposition to the order for as-
signment, by the conduct of the counsel for
the insolvent ; whether it was by design or
not, is unnecessary to say. The willingness
of the counsel to have the order vacated would
seem very strongly to counteract any un-
favorable conclusions from such conduct.
We have no hesitation, however, in saying
that the Recorder, under the circumstances
disclosed to him, had the power, and it was
his duty to vacate the order. The decision
of this point puts an end to the present case.
388*] as it opens the proceedings to *let in
the creditors to oppose the assignment. The
other question ir:vde on the argument might
not arise. But for the purpose of settling the
JOHNS. REP.. 13.
construction to be given to this section of the
Act, and of having a conformity in the pro-
ceedings under it, it has been thought proper
to express an opinion upon the other question
also.
This section applies to the case of an adver-
sary proceeding against the insolvent, founded
upon the supposition that he is wasting his
property ; but there is too much reason to be-
lieve that the proceedings, under this section,
are commenced uiid carried on at the instance
of the insolvent, calculating upon the inatten-
tion of his creditors, and that he may procure
his discharge without obtaining the assent of
creditors, whose debts amount to two thirds
of all the debts owing by the insolvent, and
thus evade what is the' clear and manifest
policy of the Statute. The point immediately
in controversy, is the meaning of that part of
the section which declares that if the insolvent
shall make such assignment in ten days, "and
shall conform to the directions ot this Act,
with respect to petitioning debtors, such in-
solvent shall be thereupon discharged, in like
manner as if he had petitioned for his dis-
charge, in conjunction with the creditors,
pursuant to this Act." The insolvent is sup-
posed to have made the assignment ; and what
else he has to do, is the question. The clause
refers to his duties in other parts of the Act,
and requires of him to conform to its direc-
tions with respect to petitioning creditors.
This, however, in good sense and sound inter-
pretation, must be understood as extending
only to such things as have not already been
done. He is not, therefore, bound to advertise
anew. That has been done. And, under this
section, before any order is made for the as-
signment, the judge or officer before whom
the proceedings are had, must be satisfied that
two thirds of his creditors have requested an
assignment to be made. A notice for the pur-
pose of the creditors appearing to assent to, or
oppose such assignment, having been given,
the law presumes that the creditors have ap-
peared, or have waived any opposition to the
assignment. We must assume, therefore,
that two thirds of the creditors have actually
appeared and requested the assignment, and
made the necessary affidavit ; and of course,
nothing more is to be done by the creditors.
As yet the proceedings are presumed to have
been hostile to the wishes of the insolvent, and
if he *still holds out, the officer before [*38»
whom the proceedings are had is directed to
make the assignment. The insolvent, how-
ever, in such case, is not discharged from im-
prisonment or from his debts. But if the in-
solvent, in this stage of the proceedings, chooses
to step in and make the assignment himself,
and conforms, as above stated, he is discharged,
both from imprisonment and from his debts ;
and this conformity, I apprehend, must be by
making out an account of his creditors, and a
just and true inventory of his estate, and de-
livering over his estate to his assignees. These
are acts which the Statute prescribes to be
done by the insolvent, and which have not
been done, or presumed to have been done, by
any proceedings which have as yet taken
place under this section of the Act. This in-
ventory and account ought to be rendered
under oath. The proceedings are founded
663
389
SUPREME COURT, STATE OP NEW YORK.
181S
upon the allegation or apprehension that the
insolvent is wasting or embezzling his proper-
ty ; and if willing to repel this by truly and
honestly giving up his estate, he is entitled to
his discharge. An account of his creditors
ought to be given, that the assignees may
know who are entitled to dividends. By such
account of the creditors, and the debts owing
to them, it will, probably, in most cases, ap-
pear that less than two thirds in amount have
requested the assignment to be made. But
this cannot defeat the discharge — the creditors
should have appeared pursuant to the notice ;
and after the order for the assignment is duly
made, it is too late to call that matter in ques-
tion. I am aware that this mode of proceeding
is liable to very great abuse, by the insolvent's
procuring one of his creditors to proceed
against him under this section of the Act, and
by the negligence of creditors in not appearing
pursuant to such notice. But most of this
abuse or fraud grows out of the inattention of
creditors ; and the officer before whom the
proceedings are had might, perhaps, if he sus-
pected, or had any evidence of collusion, take
measures to guard against it. He must be
satisfied that creditors to two thirds in amount
of the insolvent's debts do request the assign-
ment to be made. If creditors will not appear
in due time, and make opposition, if any they
have, they have themselves only to blame.
The proceedings under this section of the Act
are, perhaps, not so well guarded to prevent
fraud as might be desirable ; but we must
give a construction to the Act as we find it ;
and the one I have mentioned seems to be
39O*] most conformable to its letter and in-
tention. I am, accordingly, of opinion that in
proceedings under this section of the Act,
after the order for the assignment is duly
made, and the assignment executed, the in-
solvent is entitled to his discharge, upon
making out, upon oath, a true inventory of
his estate and account of his creditors ; not-
withstanding it may appear, by such account,
that two thirds of his creditors have not re-
quested the assignment to be made ; and this
is the construction adopted by the court.
Cited in— 16 Barb., 322.
WEBB v. DUCKINGFIELD.
Marine Law — Seaman's Wages — Forfeiture of
by Absence.
Where a seaman who had signed shipping articles,
by which he engaged not to absent himself from
the vessel, without leave, "until the voyage was
ended, and the vessel discharged of her cargo," on
the vessel's arriving at her last port of discharge,
and being there safely moored, refused to remain
and a«si-t in discharging the cargo, but absented
himself without leave; it was held that by such
desertion, he had forfeited his wages.
Though the master has no right to insert in the
shipping articles any stipulation, or agreement,
repugnant to the laws of the United States, yet he
may add any provisions consistent with the laws
relative to seamen.
Citations-1 Pet. Adm.. Dec., 139; 1L. TJ. S., 140; 12
Johns., 166 ; 13 Johns., 94.
IN ERROR, on certiorari to the Justice's
Court of the City of New York.
Duckingfield brought an action in the court
604
below against Webb, to recover his wages as
a seaman on board of the ketch Maria, of
which Webb was master, on a voyage " from
Savannah to Rotterdam, or one more port in
Europe, and from thence to her port of dis-
charge in the United States." The plaintiff
below performed his duty on board the vessel
during the voyage, and until she arrived in
New York, her last port of discharge, and
was safely moored in port, when he left her,
refusing to remain on board, or to assist in
discharging the cargo, though he and the rest
of the crew were requested to remain. The
plaintiff below never returned to the vessel,
and the master was obliged to hire persons
to discharge the cargo. The mate on the day
the plaintiff below left the vessel, and on each
day until the cargo was discharged, made the
following entry in the log book : "All the crew
absent without liberty." The court below being
of opinion that, asthe voyage was ended by the
arrival and safe mooring of the vessel in her
port of discharge, the plaintiff below could
not be deemed a deserter, so as to incur a for-
feiture of his wages ; and further, that to-
create a forfeiture, the name of the particular
seaman who was absent without leave must be
entered in the log book ; and they, therefore,
gave judgment for the plaintiff below, for
$180, being the amount of wages due to him
on the day he left the vessel. The articles
signed by the parties contained the fol-
lowing *clauses : "The said seamen [*3J)1
severally promise, &c., not to neglect or
refuse doing duty by day or night, nor shall
go out of the said vessel, &c., until the said
voyage be ended, and the vessel be discharged
of her loading, without leave first obtained of
the captain or commanding officer on board.""
"That no officer or seaman, belonging to the
said vessel, shall demand or be entitled to his
wages, or any part thereof, until the arrival of
the said vessel at her above-mentioned port of
discharge, and her cargo delivered." '"Pro-
vided, nevertheless, that if any of the said
crew disobey the orders of the said master, or
other officer of the said vessel, or absent him-
self, at any time, without liberty, his wages
due at the time of such disobedience or ab-
sence, shall be forfeited, and in case such per-
son or persons, so forfeiting wages, shall be
reinstated, or permitted to do further duty, it
shall not do away such forfeiture."
Mr. Anthon for the plaintiff in error.
Mr. Van Wyck, contra.
VAN NESS, J., delivered the opinion of the
court :
All the seamen belonging to the ship, whose
last port of delivery was New York, deserted
her at that place, as soon as she was moored,
and refused to assist in unloading the cargo ;
and the question is, can they recover their
wages up to the time of the desertion or not.
The determination of this question has nothing
to do with the mate's making an entry in Ilie
log book of the desertion. " Such entry, if it
had been made, would have been prima facie
evidence of that fact ; but as it is fully proved
by the other testimony, that is sufficient, with-
out the log book. The reasons for making"
these entries in the log book are accurately
stated by Judge Peters (Vol. I., of his Adm.
JOHNS. REP., 13.
1816
Cl NMNGHAM V. SPIER.
391
Dec., 139), and have no application to this
cause. By the 6tb section of the Act of Con-
gress for the Government and Regulation of
Seamen in the Merchant Service (1 L. U. 8.,
140), it is enacted " that, as soon as the voyage
is ended, and the cargo, or ballast, be fully
discharged at the last port of delivery, every
seaman, or mariner, shall be entitled to the
wages which shall be then due, according to
his contract," &c. From this, as well as the
reason and propriety of the thing, the contract
with a seaman continue in force until the cargo
ilDii*) is finally discharged, and if *he leaves
the ship, without justifiable cause, before that
is accomplished, he has no right to recover any
part of his wages. The shipping articles con-
tain an express stipulation by which the wages
are forfeited, in this case, in the very event
which has happened ; but the counsel for the
seamen supposes this stipulation to be illegal,
because it forms no part of what is provided
shall be contained in the contract between the
master and crew, by the 1st and 2d sections of
the Act before referred to. The master has no
right to insert any stipulation or agreement,
repugnant to or inconsistent with the Statute ;
but there can be no objection to supcradding
any provisions harmonizing with it. Such is
the provision in question, which only follows
the 6th section of the Act, which may be con-
sidered as a legislative definition of what shall
be deemed to be the termination of a voyage,
ao as to entitle the seamen to their wages." The
principle upon which the two cases of .\fMiUan
et ai. v. Vanderlip. 12 Johns., 166, and Jen-
ninfft v. Camp, 18 Johns., 94, were decided, is
strictly applicable to this case. The judgment
below must be reversed.
Judgment reversed.
Cited in-aOX. Y., 300; 3 Keyes. 654; 2 Abb. App.
Dec., 444: 4 Trans. App., 450; 37 How. Pr., 468;
Uiut< -I. f. & H., 285, 410 ; Gilp.. 213.
CUNNINGHAM v. SPIER.
Warranty — Transfer of Stock of Corporation as
Paid up without Warranty — Fraud.
Where A transferred to B stock In a Turnpike
Com|>anv, which, at the time of the transfer, ap-
pean-d, by the books of the Company, to have IMTM
fully paid up by a credit of interest on the amount
before paid in, pursuant to u it-solution of the di-
reetors, and this resolution was, after the. transfer,
repeated. Mid tta stockholders called upon to pay
in the amount before allowed for Interest, in con-
sequence of which R paid to the Company that sum
on the shares transferred to him by A; it WHS held
that II could not maintain an action to recover the
amount from A. tin-re being neither fraud or a
warranty.
THIS was an action of assumprit for money
paid. The cause was tried before Mr.
Juttict Platt. at the New York sittings, in De-
cember, 1815.
Tht- pi liniilT gave in evidence a receipt
signed by tin; defendant, which was in the fol-
lowing word* : " Received. New York. 18lh
of April, 1 HOT. of Mr. William Cunningham.
in c:i*h and notes, $5,075, in full for one huud-
s. RKI-.. 18.
' red and forty-five shares in the Newburgh and
| Cochecton Turnpike Road. Paid $35 for each
share."
*At a meeting of the directors of the [*UO&
Newburgh and Cochecton Turnpike Company,
on the 12lh of Dec-ember, 1803, it was resolved,
" that the treasurer place to the credit of each
stockholder the interest, at fourteen per cent.,
of all money by them advanced to the Com-
pany, up to the 1st day of January. 1804, mid
that the said interest be cast, and placed to
each person's credit every six months there-
after." This resolution was rescinded on the
26th of December, 1804. and revived again by
a resolution of the 14th May, 1805 ; and on the
18th of September, 1806. it was resolved, "that
the half yearly dividend of interest should in
future be credited to the holders at the expira-
tion of the half year." This last resolution
was. by a resolution of the 17th of Januar}',
1807, discontinued from the preceding 1st of
January ; and on the 2d July, 1808, it was re-
solved, " that whereas, by a resolution of a
former board of the directors of the Newburgh
and Cochecton Turnpike Road Company, a
dividend of 14 per cent., upon the capital
stock of each stockholder, was allowed and
deducted from the money due by them to said
company on said stock ; and whereas, by an
Act entitled An Act to Prevent Usury, it is
unlawful for any person to take more than
seven per cent, per annum, and whereas, by
an Act entitled An Act to Establish a Turn-
pike Company for Making and Improving a
Road from the Village of Newburgh, on the
Hudson River, to Cochecton, on the Delaware,
a dividend of fourteen per cent, is in no case
allowed excepting from the clear profit and in-
come of said road. Thereupon, resolved, that
said resolution is contrary to an exception con-
tained in the 3d section of said Act, which
provides that the President and Directors of
said Company shall make no laws inconsistent
with the Constitution and laws of this State,
and that it now is, and always had been void,
and of no effect. Resolved, that the treasurer
be authorized to ask, and demand, of and from
every stockholder, all moneys or stork yet due
bv them to the Company, agreeably lo the
above resolve for rescinding the resolution,
allowing credits on said stock, by fourteen per
cent, anticipated interest."
It was proved that the stork mentioned in
the receipt from the defendant to the plaintiff,
consisted of one hundred and thirty shares,
which stood in the books of the Company. h>
the name of the defendant, and fifteen shares,
which stood in the name of one Lock wood.
*and were sold by the defendant, and [*JJJ>4
which were charged to the phiinlifT.in the honks
of the Company, at $35 per share. After the
sale by the defendant to the plaintiff, there
was a'balance due from the plaintiff to the
Company, of $1.388.06, part of which $1,1*1.-
20, had been credited to the defendant on his
shares, prior to the sale to the phiinliff. under
the resolution of the Company direct ing the
treasurer to place to the credit of each stock-
holder the interest, at fourteen per cent., of
all moneys therein advanced to the Company.
In consequence of the resolution of the 2d of
July, 1808. the treasurer of the Company
called upon the plaintiff to pay the sum of
Mi
394
SUPREME COURT, STATE OF NEW YORK.
1816
$1,388.06, or otherwise the shares would be-
come forfeited ; the defendant gave his notes
for this sum, which were paid as they became
due; to recover part of which, to wit: $1,-
181.20, the present action was brought, the
residue of the above mentioned balance being
on account of other transactions between the
plaintiff and the Company. It was proved by
George Monell, who was treasurer of the Com-
pany, at the time of the transfer from the de-
fendant to the plaintiff, that he had informed
the plaintiff of the manner in which the de-
fendant's stock account had been paid up and
settled; which was by his being credited with
fourteen percent., pursuant to the resolution-
which was afterwards rescinded; by the books
of the Company, as they stood at that time,
the account of (he defendant for stock appeared
to have been fully paid up.
A verdict was taken for the plaintiff, by
consent, subject to the opinion of the court on
a cause containing the above facts.
Messrs. D. B. Ogden and Wilkins for the
plaintiff.
Messrs. Wells and Slosson, contra.
Per Cariam. There is no ground upon
•which this action can be sustained. The de-
fendant cannot be charged with any fraudu-
lent misrepresentation with respect to the
value of the stock. The receipt given by him,
to (he plaintiff, for the money, is fairly to be
understood as stating that $35 had been paid
upon each share. But the manner in which
this payment had been made was known to the
plaintiff before he purchased the stock, accord-
ing to the testimony of Monell, who swears
that he informed the plaintiff how the stock
395*] account of *the defendant was settled
up and paid, by the allowance of fourteen per
cent, upon the money paid in ; and by the
books of the Company the defendant "stood
credited with $35 paid upon each share. If
the plaintiff was, therefore, acquainted with
the situation of this stock, and the manner in
which the $35 had been paid up, he was as
competent to judge of the legal effect and ope-
ration of such payment as the defendant. He
was not misled as to facts, and there can be no
reason why the defendant should take upon
himself the risk of any subsequent order of
the directors. Whether they had a right to
pass the resolution for crediting the stockhold-
ers with fourteen per cent., upon the money
paid in; or whether, after having done so,
they had a right to rescind that resolution, are
questions with which the defendant has no
concern ; that is a matter between the plaintiff
and the directors. The plaintiff purchased
the stock with his eyes open, knowing as much
with respect to the stock as the defendant did.
There is no evidence to warrant any charge of
fraud or deception practiced by the defendant;
nor is there any warranty with respect to the
stock. There is, therefore, no principle upon
which the defendant can be made responsible
for the loss upon the stock. Judgment must,
accordingly, be for the defendant.
Judgment for tlie defendant.
Cited in-20 Johns., 203 ; 17 Wend., 270.
MONELL AND WELLER v. COLDEN.
Real Property — Sale of— False Representation in
Respect to Privileges Annexed to Land Sold —
Damages Recover able for.
Where a person is induced to purchase land by a
false representation that a certain privilege is an-
nexed to the land, but which is not included in the
deed, he may maintain an action on the case against
the vendor.
Where a person was induced to purchase and give
a higher price for a lot of land upon a navigable
river hy a fraudulent representation that he would,
as proprietor of the land, be entitled to a grant
from me Commissioners of the Land Office of the
land covered with water adjacent thereto, and the
purchase being completed, the purchaser, on apply-
ing for a grant from the Cotninissioners,discovered
that the adjacent land under water had previously
been granted, and that the title to it was out of the
State ; it was held that the purchaser might main-
tain an action on the case for the deceit.
It seems that the measure of damages, in such
case, is the difference between the value of the land
conveyed, and the sum which the purchaser was
induced to pay by the fraudulent representation.
Citations— 6 Johns., 182 ; 13 Johns., 226; 4 Taunt,,
786.
THIS was an action on the case for a fraud-
ulent representation in the sale of land.
The declaration contained six counts. The
*first count stated that the defendant, [*3i>6
on the first of June, 1818, claiming to be seised
in fee of a certain lot of land, situate in the
village of Newburgh, in the County of Orange,
bounded, &c. (here the boundaries were set
forth, one of which is the high water mark on
the west side of the Hudson), containing 146,-
206| square feet ; that, on the same day, a
conversation was had between the parties, of
and concerning the sale of the said land, by
the defendant, to the plaintiffs; and of and
concerning the value of the land, and of the
rights, privileges and benefits appurtenant
thereto; and of and concerning the amount
demanded by the defendant for the sale of the
land and of the rights, privileges and benefits
appertaining thereto ; and that the defendant,
in the said conversation, and in order deceit-
fully and fraudulently to induce and persuade
the plaintiffs to purchase, did falsely and
fraudulently affirm, that in case the plaintiffs
became the purchasers of the land, they
would, by virtue thereof, become entitled to
make an application to the Commissioners of
the Land Office for the lands under the water
of Hudson River, adjacent to the said land,
agreeable to the provisions of the laws of this
State ; and the plaintiffs, giving faith to such
affirmation, and not knowing to the contrary
thereof, agreed with the defendant to purchase
the land, and give him therefor the sum of
$20,500 ; that the defendant, on the same day
and year aforesaid, in pursuance of the agree-
ment, and in further prosecution of his said
false and fraudulent intent, did fraudulently
and wrongfully demand and receive from the
plaintiffs the said sum, for the consideration
money for the land and thereupon did, by in-
denture of bargain and sale, bearing date the
day and year aforesaid, executed by the de-
fendant and his wife, grant to the plaintiffs,
their heirs and assigns, the said land, together
with all and singular the privileges, advant-
ages, hereditaments, and appurtenances what-
soever, unto the said land belonging, or apper-
taining ; whereas, in fact, long before the
JOHNS. REP.. 18.
1816
MOSELL V. COLDEN.
making the agreement between the parties, to
wit : on the 25th of June, 1743, all the right
and title of the King of Great Britain, then
supreme lord and proprietor of the land
under the water ol all navigable rivers
in this State, to all the land under the j
water of Hudson River adjacent to the I
before-mentioned and described premises, had j
been duly granted by letters patent, under the i
S'eat seal of the then Colony, unto one Alex-
97*] ander Colden, *and*his heirs and as- 1
signs, and which the defendant, before, and ;
ai the time of making'the agreement with the
plaintiff s, well knew ;" whereby the plaintiffs
were not entitled to make application for such
land under water, and could not obtain the
same ; and so the plaintiffs say, that by reason, j
Ac., they were deceived, &c., and have lost all |
the use, benefit and profit arising from the
right and title to the said laud under water,
and have sustained great damage.
The second count stated that the defendant,
on the 1st of June, 1810, was seised in fee of
all that certain other lot, &c,, and proceeded,
in all respects, similar to the first count.
The third count stated that, by the llth sec-
tion of the Act, entitled " An Act Concerning
the Commissioners of the Lund Office, and the
Set i Icments of Land," passed the 24th of March,
1801, it is enacted, "That it shall be lawful
for the said Commissioners to grant so much
of the lands under the waters of navigable
rivers, as they shall deem necessary, to pro-
mote the commerce of this State ; provided,
always, that no such grant shall be made to
any person whatsoever, other than the proprie-
tor or proprietors of the adjacent land ; and
provided, also, that every applicant for such
grant shall, previous to his or her applica-
tion, give notice thereof, by advertisement, to
be published in one of the newspapers printed
in this State, for six weeks successively, and
shall cause a copy of such advertisement to be
put up at the court bouse of the county in
which the lands lay, so intended to be applied
for; and if there be no court house in the
county, then at such place as the Commission-
ers direct ;" that, on the 1st of June, 1810, a
certain other conversation was had between the
parties, of and concerning a certain other lot.
lying, &c., containing, &c., which lay adjacent
to, and was in extent, along the Hudson River
(a certain navigable river in this State), two
hundred and sixty-four feet ; that the defend-
ant, in order to induce the plaintiffs to pur-
chase the said last-mentioned lot, did affirm
and represent that the defendant was the
owner of the lot in fee ; and did, also, falsely,
fraudulently, and deceitfully, affirm and rep-
resent that whosoever was the owner, in fee,
of the lot. would, by an application to the
Commissioners of the Land Office, under the
Act aforesaid, receive a grant of so much land,
under the water of the Hudson, as lay adja-
cent to the said lot; and that he, the defendant,
would assist the plaintiffs in procuring such
31)8*] *grant, in case the plaintiffs became
the purchasers of the lot from the defendant ;
and that the plaintiffs, giving faith to such
affirmation, and not knowing to the contrary
thereof, agreed to purchase. &c., and by an
indenture of bargain and sale, the defendant
and his wife granted, &c., together with all
JOHNS. REP., 18.
and singular. &c. ; whereas, in fact, the Com-
missioners of the Land Office could not grant
any land, under water, adjacent to the said lot,
the same having been long before, to wit : more
than twenty years before that time, duly
granted to one Alexander Colden, and all the
right of the people of the State was vested in
the said Colden, his heirs and assigns, all
which premises the defendant, at the time of
making the false and fraudulent affirmation,
well knew, and the defendant had no right or
title from Colden, his heirs or assigns, which
he well knew; and so the plaintiffs say, &c.,
concluding a* in the first count.
The fourth count, after setting forth the
Act of the Legislature, the conversation be-
tween the parties, sale and conveyance, as in
the third count stated that the plaintiffs, on
the 1st or January. 1818, at Albany, applied
to the Commissioners of the Land Office for a
grant of the land under water, which applica-
tion was refused by the Commissioners, they
having no right to grant the same, which the
defendant well knew ; and that the said land,
under water, had long before, to wit : on the
25th of June, 1743. been duly granted to one
Alexander Colden, his heirs and assigns,
which the defendant well knew ; and that tin-
right and title to the same was out of the peo-'
pic of the State, and not vested in them, which
the defendant well knew. And so, &c.
The fifth count stated that the defendant
was seised, in fee, of, &c., bounded, &c.: and
that, by the llth section of an Act Concerning
the Commissioners of the Land Office, and the
settlement of lands, passed, &c.. it is enacted,
•fee. (as in the third count) ; that the Hudson
River is a navigable river; and the owner, in
fee, of the said lot, was, by virtue of the said
Act, entitled, by an application to the Com-
missioners of the Land Office, and by con-
forming to the directions of the Act, to a grant
of the land under water, adjacent to the lot,
provided the same had not been before grant-
ed by the Commissioners, or by other legal
authority, to some former owner of the land
adjacent thereto, or other person ; that on the
25th of June, 1743, a patent was issued by the
Colony of New York, under the then existing
laws, to Alexander Colden, then being pro-
prietor of the *land above high water, [*39i>
adjacent thereto, in fee, for a certain space of
ground under the water of the Hudson River,
one hundred feet into the same, from high
water mark ; the whole length of the lands
held by Colden, in a certain tract in Ulster
County, beginning on the north side of Quas-
saick Creek, and extending northerly up Hud-
son's River, upon a straight line, two hundred
and nineteen chains, being part and parcel of
the space of ground and soil of Hudson's Riv-
er, so granted to Alexander Colden; and being
the land under water adjacent to the lot grant-
ed by the defendant to the plaintiffs, by rea-
son whereof the right and title to the saia land
under water was vested in Alexander Colden.
his heirs and assigns, and was out of the peo-
ple of this State, and could not be granted by
the Commissioners of the Land Office ; that,
at the time of the grievance hereinafter men-
tioned, the title to the same was vested in Cad-
wallader R. Colden, and not in the defendant,
or any other person under him ; that the piece
667
399
SUPREME COURT, STATE OP NEW YORK.
1816
of land before described was wortli $500 ; but
in case the land under the water, adjacent
thereto, had still been vested in the people of
the State, it would have been worth the sum
of $30,000 ; that the plaintiffs, believing that
the land under water had not been granted to
any person, but was still vested in the people
of 'the State, and not knowing to the contrary
thereof, and being desirous of purchasing the
lot of land, principally with intent to obtain
from the Commissioners of the Land Office a
grant of the land under water adjacent there-
to, in order to improve the same by the erection
of docks, stores, houses, and other buildings
thereon, afterwards, to wit : on the 1st of
June, 1810, applied to the defendant to pur-
chase the lot of land from him, and informed
him that they intended, in case they purchased
the land, to apply to the Commissioners of the
Land Office for a grant of the land under
water adjacent thereto, with intent to improve
the same, by the erection of docks, stores,
houses, and other buildings ; and that there-
upon a conversation was had between the par-
ties of and concerning the said land under
water, the defendant well knowing the object
of the plaintiffs in making the purchase ; and
that the land, exclusive of the right to obtain
a grant of the land under water, was of little
value ; and that the land under water had
been granted to Alexander Colden, and did not
belong to the people of the State, nor to the
defendant, and that the plaintiffs could not
obtain a grant thereof ; the defendant, in or-
4OO*] der, fraudulently, to procure *to him-
self the moneys of the plaintiffs, and to de-
fraud them of the same, and fraudulently to
induce them to "purchase the lot of land for a
larger sum than the same was truly worth; and
in order to have the plaintiffs to believe, that
they, by the purchase, would be enabled to
obtain a grant of the land under water, in the
said conversation, did fraudulently conceal
from the plaintiffs the fact that the land under
water had been granted to Alexander Colden,
and did not belong to the people of the State,
nor to the defendant ; whereas, in fact, the
said land under water had, on the 1st of June.
1743, been duly granted to Alexander Colden,
and the right thereto was out of the people of
the State, and was not vested in them, nor in
the defendant, but in one Cadwallader R.
Colden. And so, &c.
The sixth count stated that the defendant
claimed to be seised, in fee, of a certain lot,
situate, &c., bounded, &c., and that in a con-
versation, &c. (as in the first count), the de-
fendant, to induce the plaintiffs to purchase
the said lot, did affirm and represent, that he
was the owner of the lot in fee; and did, also,
fraudulently, affirm and represent, that who-
soever was the owner of the lot, would, by an
application to the Commissioners of the Land
Office, receive a grant for so much land under
the water of the Hudson River, as lay adjacent
to the lot, to wit : two hundred and sixty-
four feet in extent, and that he would assist
the plaintiffs in procuring such grant, incase
they became the purchasers of the lot; and the
plaintiffs giving faith, &c., agreed to pur-
chase, &c., and the defendant granted, &c.,
together with all and singular, dbc.; that the
plaintiffs, on the 1st of January, 1815, did ap-
ply- to the Commissioners of the Land Office,
for a grant of the land under water, according
to the provisions of the Act in such case made,
and the application was refused, the Commis-
sioners having no right to grant the same,
which the defendant well knew ; that it had,
on the 1st of June, 1743, been duly granted to
Alexander Colden, his heirs and assigns,
which the defendant well knew ; that the
riffht to the same was out of the people of the
State, and was not vested in them, which the
defendant well knew ; and that all the right
of Alexander Colden was vested in Cadwal-
lader R. Colden, and not in the defendant,
nor any person under him, which the defend-
ant well knew. And so, &c. The plaintiffs'
damages were laid at $30,000.
There was a general demurrer to the whole
declaration, and a joinder in demurrer.
*Mr. P. Buggies, in support of the [*4O1
demurrer, contended :
1. That the false affirmation, and fraudulent
concealment, alleged in the plaintiffs' declara-
tion, related wholly to property which formed
no part of the subject matter of the contract set
forth, and could not, therefore, be a ground of
action. There was no averment of want of
value, or deficiency in quality of the land sold.
If the land covered with water was an appur-
tenant, it passed with the land sold ; if not,
there was no fraud.
2. The affirmations charged to be false and
fraudulent, were nothing more than a state-
ment of a public act of the Legislature, equal-
ly known to both parties.
3. The transfer of the title from the State
was a matter of public notoriety, and had ever
been a matter of record, and about which
there could not be that kind of concealment
which, in contemplation of law, amounts to
fraud. The vendee must take care to have a
warranty ; otherwise, he buys, at his peril.
The maxim is, caveat emptor. (Sugd. Vend.,
195; Cro. Ja., 196.)
4. The alleged concealment consisted in an
omission merely to inform the plaintiffs
whether the State or an individual owned the
land under water, which, in either case, could
only be obtained by the plaintiffs, by pur-
chase, if at all ; and there is no averment that
they could not obtain it from the present
owner, with equal ease, and on as good terms,
as from the State; nor is it averred that they
have not already obtained it.
5. The declaration affords no rule for esti-
mating the damages, in case the plaintiffs are
entitled to recover.
6. The whole contract, both as to the sub-
ject to be conveyed, and the consideration,
was reduced to writing, and contained in the
deed, which cannot now be varied by any
parol evidence. (3 Johns., 506.)
Mr. Burr, contra. The court must take
into consideration all the proof that can be
given in evidence under the averments. A
grant or patent for laud on record is not no-
tice to a purchaser.
Though a false affirmation as to the value of
the thing sold, may not afford ground for an
action, yet a false representation of facts,
which has led the purchaser to make an er-
roneous estimate of the value, does furnish
foundation for an action by the purchaser.
JOHNS. REP.. 13.
1816
BKADLEY v. OSTEKUOCDT.
403
Thus, in the case of a false affirmation as to
4O2*1 the *rent, which lies within the knowl-
edge or the vendor, a remedy lies against him
for the fraud. (1 Salk.,211; 2 Ld. Raym.,
1118; iSid., 146.)
So, a fraudulent concealment is ground for
an action by the party injured ; and the rule
is the sum-, in regard to fraud, in law, as in
equity. (1 Ves., 127 ; 8 Atk., 383 ; 6 Mod..
84; 8 Johns., 71.)
THOMPSON, Ch. J., delivered the opinion of
the court :
The declaration in this case contains six
counts, varying in some small, and mostly im-
material circumstances, the plaintiffs' cause of
action. To this declaration there is a general
demurrer, which admits the facts therein stat-
ed. If, therefore, any of the counts set forth
facts sufficient to make out a cause of action,
the plaintiffs are entitled to judgment. With
out noticing each count separately, it will be
sufficient to state, generally, that the facts al-
leged are, substantially, that a conversation
was had between the parties relative to the
purchase, by the plaintiffs, of the defendant,
of a certain piece of land at Newburgh, ad-
joining the Hudson River, upon which conver-
sation the defendant, for the purpose of indue
iiiur the plaintiffs to purchase the same, and to
enhance the value thereof, fraudulently repre-
sented that he was the owner of land, and, as
such, had, by the laws of the State, the priv-
ilege of having a grant or patent for the land
under water, adjoining to the land to be sold ;
and that, if the plaintiffs would purchase the
land, he would aid and assist them in obtain-
ing a grant for the land under the water. The
declaration states that, upon such conversation,
an agreement for the purchase was made for
the land, described by metes and bounds, and
all the privileges and appurtenances to the same
belonging. It is then averred that, many years
before, a patent for the land under the water had
been granted to one Alexander Golden, and was
then vested in one Cadwallader R. Golden, and
was not in the people of this State, or in the
defendant, and that all this was well known to
the defendant. It is also averred that the
principal inducement with the plaintiffs to
purchase the land was to obtain the water priv-
ilege, for the purpose of erecting storehouses
and docks, and that the value of the land,
without this privilege, was very greatly dimin-
ished ; and that the plaintiffs had, pursuant to
the directions of the Act for that purpose,
made application to the Commissioners of the
I . ui' 1 Office for a grant of the land under the
4OJJ*] water, opposite to the *land so sold,
and were refused the same by reason of the
previous grant to Alexander Golden.
These facts being admitted, by the demurrer,
a» tfue. I cannot see why they do not show a
good cause of action. They show a most pal-
pable fraud practiced upon the plaintiffs in the
sale of the land, and by which fraud they have
been essentially and materially injured. If no
representation had been made on the subject
by the defendant, both parties would have
been equally chargeable with a knowledge of
the law, ami the public records of the State.
But, according to the declaration, the defend-
ant knowingly and falsely misrepresented the
JOHNS. RKP., 18.
fact, with respect to the situation of the land
under the water, and if so, he is chargeable
with all the damages resulting from such false
representation. That a deed has been given,
caninii :>flect the plaintiffs' claim for the fraud.
Tin- I. -ilte representation was not respecting
ain ihii.._ io be included in the deed, but with
respect to a privilege which the plaintiffs were
to acquire, in consequence of owning the land
on the shore adjoining the river. The law,
which is a public statute, prohibits the crant-
ing a patent for land under the water, except
to the owner of the land on the shore adjoin-
ing thereto. And it is a fact of public notori-
ety, that such grants are made almost as mat-
ter of course, and without any consideration,
except the mere patent fees. One count in the
declaration contains an averment that the land,
without this privilege, would not be worth
more than $500J>ut that, with the privilege,
it would be worth $30,000. The declaration
gives a rule for damages as certain as any de-
claration in such case, founded upon fraud,
can give. It states the facts, and the damages
arising therefrom are matter of inquiry upon
the trial. What is the value of the privilege
of which the plaintiffs are deprived, may be
matter of uncertainty ; but the value of the
land sold, independent of this privilege, may
be easily ascertained, and the difference be-
tween that and the price paid ought, at all
events, to be refunded. But the extent of the
damages, or the rule by which they are to be
ascertained, are not now subjects of inquiry.
If the action can be sustained under such a
state of facts, that is sufficient for the present;
and, in my judgment, it can be maintained.
The facts, as stated, clearly show that, by the
false and fraudulent misrepresentations of the
defendant, the plaintiffs have been deceived,
and materially *injured. (6 Johns., [*4O4
181; 13 Johns., 236 ; 4 Taunt., 786.) I am,
accordingly, of opinion that the plaintiffs are
entitled to judgment.
Judgment for the plaintiffs.
Cited In— 6 Cow., 354 : 7 Wend., 385 ;' 11 Wond., 412 ;
17 Wend., 197; 1 Denio, 428: 1 Barb. Ch., 134; 1 N.
Y.. 308 ; 25 Barb., 33. 240 ; 54 Barb., 367 ; 15 How. I'r.
51 ; 6 Abb. Pr.. 1&4; 45 Wis., 305,
BRADLEY e. OSTERHOUDT.
Pleading — Catena nt.
Where the plaintiff in an action of covenant, as-
signs a particular breach, a ureneral plea of perform-
ance, purauimr the words of the covenant, is bad on
general demurrer.
So, where the covenant was to convey a farm, and
the plaintiff assigns for breach, that, before execut-
ing the conveyance, the defendant it-moved from
the premises a cider mill which was annexed to the
freehold, the defendant must answer particularly
the breach assigned.
THIS was an action of covenant. The dec-
laration contained two counts. The first
count set forth an agreement made the 8th of
August, 1811. by which the defendant cove-
nanted that, provided the plaintiff should, on
or before the 1st of May. 1813, pay him the
sum of $1,800, he would, by the said 1st of
May, convey to the plaintiff, by good and suf-
ficient deeds, a full and unincumbered title,
and with the usual covenants of seisin and
•H
404
SUPREME COURT, STATE OF NEW YORK.
1816
warranty, extending to the title, and, also, to
the quantity of land in the agreement after-
wards stated, a house and certain lands de-
scribed in the agreement; and covenanted, also,
that he would not, in the meantime, cut any
wood or timber from the lands, except for
firewood; and that he would not feed the lands
in the spring of the year 1813; and that he
would not remove the straw and manure made
thereon, nor work any quarries on the land ;
and the plaintiff, on his part, covenanted to
pay the sum of $2,937.50, $1,800 of which was
to be paid on or before the 1st of May, 1813,
another part of which was to be paid by satis-
fying a mortgage on the land, and indemnify-
ing the defendant therefrom, and the residue
'to be paid at subsequent specified periods ;
and that the plaintiff would secure the per-
formance of his contract by a mortgage of
the lands to the defendant. The plaintiff then
averred performance of the covenants in the
agreement contained, on his part to be per-
formed, and that the defendant had executed a
conveyance in pursuance of the agreement,
and then assigned two breaches ; first, that
there were, long before, and at the time of the
date and execution of the agreement, to wit :
on the 8th of August, 1807, standing on the
farm, and annexed to the freehold, and mak-
ing part of the farm, a cider mill, and a cider
press, and all the parts and apparatus for
4O5*J grinding apples and *makiug cider, the
whole covered by a thatched roof, and being
of the value of $100 ; and that, on the 22d of
December, 1812, the defendant removed the
same from the farm to some place unknown
to the plaintiff, and never hath returned the
same to the farm or to the plaintiff, and so the
plaintiff saith, that the defendant hath not
conveyed the farm to him according to the
true intent and meaning of the said covenant
and agreement. The second breach was for
carrying away fifteen loads of straw, made on
the farm.
In the second count, the plaintiff, after stat-
ing the agreement, and averring performance
of the covenants on his part, assigned, for
breach, the removal of the cider mill, press,
and appurtenances.
The defendant craved oyer of the agreement,
and pleaded that by the 1st of May, 1813, he
did convey to the plaintiff, by a good and suf-
ficient deed, a full, unincumbered title, and
with usual covenants of seisin and warranty
extending to the title; and, also, to the quan-
tity of the land in. the agreement specified, ex-
cepting such incutnbrances as are therein ex-
cepted ; and that he did not cut any wood ex-
cept for firewood ; and that he did not feed
the lands in the spring of 1813 ; and that he
did not remove from the farm the straw and
manure made thereon, nor work any quarries
on the land.
To this plea there was a general demurrer
and joinder.
Mr. (j. H. Ruqgles, in support of the demur-
rer. He cited Cro. Eliz., 7 ; 1 Sid., 48; 3
Com. Dig., Condition, M ; 1 H. Bl., 270 ; Com.
Dig., Pleader, C, 58 ; 10 Johns., 267 ; 1 H. Bl.,
258, 259 ; 3 East, 38.
Mr. J. Tallmadge, contra. He cited 3 East,
38 ; 6 Johns., 5; Howes v. Barker, 3 Johns.,
576 ; Houghtaling v. Lewin. 10 Johns., 297.
670
Per Curiam. This is an action of cove-
nant upon articles of agreement, by which the
defendant covenanted to convey to the plaint-
iff, by a good and sufficient deed, a full, unin-
cumbered title to a farm and piece of land
therein specified. The plaintiff, in his dec-
laration, assigns, as a breach of the covenant,
that the defendant, after the making and ex-
ecution thereof, and before the giving of the
deed, removed from the premises a cider mill,
*which is averred to have been an- [*4O6
nexed to the freehold, and making a part of
the farm, and so the defendant hath not con-
veyed to him, the plaintiff, the said farm of
land, according to the true intent and meaning
of the said covenant. The defendant, after
craving over of the agreement, pleads that he
did, within the time therein specified, convey
to the plaintiff, by a good and sufficient deed,
a full, unincumbered title to the land in the
said articles specified. To which plea there is
a general demurrer. This plea is bad. A pa'r-
ticular breach having been assigned in the
declaration, the plea should have answered it.
Whether the covenant to convey the farm
would also embrace the cider mill, might de-
pend on circumstances. When the declaration
avers that it was annexed to the freehold, and
making a part of the farm, the plea should
have answered this breach. If the defendant
relied on the acceptance of the deed as a ful-
fillment and discharge of the covenant, he
ought, to have so pleaded. The general plea
of performance is not a sufficient answer to
the special breach assigned. The plaintiff is,
accordingly, entitled to judgment, with leave,
however, to the defendant to amend his plt-a.
Judgment for the plaintiff.
Cited in— 20 Johns., 30.
JACKSON ex dem. PRESTON ET AL.,
v.
SMITH.
Ejectment — Possession — Under Deed Given with-
out Right in Grantor is Adverse to Owner* —
Deed by Owners during Advei-se Possession Is
Void — Purchase of Outstanding Title.
Where the defendant, having purchased a lot of
land, and received a deed for the whole lot, in which
the grantor stated himself to be the heir of the
patentee, and he entered into possession under that
deed, and it afterwards appeared that the grantor
had title to one ninth part of the lot only, as a ten-
ant in common ; this was held not to alter the char-
acter of the defendant's possession, so as to prevent
its being adverse ; but that he must be deemed to
have entered under his deed, as sole owner in fee of
the whole lot.
Possession of land by a purchaser under a deed for
the entire lot, giyen without right in the grantor, is
adverse to the rightfui owners, though tenants in
common with the grantor; and a subsequent deed
executed by them, during such adverse possession,
is inoperative and void, and subsequent releases by
them to the grantor of the defendant, or the person
under whom he derives title, inure to the benefit of
the defendant.
NOTE— Real property — Adverse possession— What
constitutes — Grant of land 'held adversely, void.
Brandt v. Ogden, 1 Johns., 166, note; Whitaker v.
Cone, 2 Johns. Cas., 58, note; Jackson v. Todd, 2
Cai. 183, note ; Jackson v. Sharp, 9 Johns., 163, note ,"
Jackson v. Wheeler, 10 Johns., 164, note.
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. SMITH.
406
A person in possession of land claiming title, may I
purchase in an outstanding title, to protect that poe- I
session.
> Citations— 10 Johns., 166 ; 12 Johns., 490, 207 ; 8
Johns., 13B. 479 ; 1 Johns.. Gas.. 81 : 5 Johns.. 489.
THIS was an action of ejectment for lot No.
7, in the township of Ovid, and was tried
at the Seneca Circuit, in June, 1815. before
Mr. Justice Van Ness.
The lessor of the plaintiff gave in evidence
the letters patent for lot No. 7, in Ovid, to
Jacob Van Gelder. bearing date the 13th of
September, 1790, to which was attached a cer-
tificate from the Secretary of State, that the
patentee's name was entered in the ballot book,
and that he was described as a dead soldier,
formerly belonging to the 5th Regiment (God-
4O7*] win's *Company). and that from the
list of dead soldiers on file in the office, it
appeared that the patentee died the 18th of
January, 1779.
The plaintiff proved that the patentee served
as a soldier in the New York line of the Army,
and died about eighteen months before the end
of the Revolutionary War, and left nine chil-
dren, to wit : Jacob (the eldest). Reuben, Will-
iam, Klijah. Mary, Abigail, Elizabeth, Mercy,
and Sally, all of whom were born before their
father enlisted as a soldier.
The plaintiff also gave in evidence a deed
from Jacob, William and Elijah, three of the
children of the patentee, to William Preston,
for the lot in question, dated the 15th of March,
1798, for the consideration of $1,000, and re-
corded the 14th of May, 1798 ; also, a deed
from William Preston, for the same lot, to
David Matthews, dated the 4th of October,
1798, for the consideration of $1,500, and re-
corded the 27th of June, 1799 ; also, the last
will of David Matthews, dated the 29th of
August, 1810, by which he devised an undi-
vided moiety of the lot to John Matthews, his
only son, and the remaining moiety to his son
John, and to Robert Morris, and Garrit Wen-
dell, in trust, for certain purposes stated in the
will ; and also, a deed from Elijah Van Gelder,
David Van Gelder, and Abigail, his wife ;
Solomon Van Gelder, and Mercy, his wife ;
Elizabeth Philo. Sally Van Geldef, and Joseph
Van Gelder, and Mary, his wife ; to William
Preston, for the same lot, dated February the
13th, 1798, and recorded the loth of May,
1814.
The defendant gave in evidence, 1. A deed
from Reuben Van Gelder, styling himself ad-
ministrator and heir of Jacob Van Gelder to
Stephen Thorne, dated the 13th of October,
1791, for lot No. 7, in Ovid, for the considera-
tion of $40 ; the deed was recorded the 16th of
September, 1813, and contained no mention of
any order of the Court of Probate, or of a sur-
rogate, to authorize the sale. 2. A deed, with
wafYanty.from Stephen Thorne to Peter Smith,
for the same lot, for the consideration of £140,
dated the 14th of February, 1794, recorded the
17th of December, 1795. The admission of
this deed was objected to, because in the cer-
tificate of acknowledgment indorsed it was not
stated that the judge before whom it was taken
had personal knowledge of the grantor, or had
received satisfactory proof of his identity ; but
4O8*] the objection was 'overruled. 8. A
quitclaim deed from Jacob, William, and
JOHNS. UK I-.. 18.
Elijah Van Gelder to Reuben Van Gelder. for
the consideration of £16, dated the 7th of Jan-
uary, 1792, proved the 6th of May. 1791, by Ste-
phen Thorne. a subscribing witness, and re-
corded the 25th of January, 1802. 4. A quit-
claim deed of the same lot'from Sarah, Mercy,
Mary, and Abigail Van Gelder, and Elizabeth
Wichill, to Reuben Van Gelder, for the consid-
eration of $5, dated the 22d of January. 1812.
5. A deed from Solomon Van Gelder, Elijah
Van Gelder, and Joseph Van Gelder. to Reuben
Van Gelder. of the same lot, for the considera-
tion of $5, dated the 19th of August, 1813; and
6. A deed from Peter Smith, the elder, to the
defendant, dated the 8th of December, 1807.
for two hundred and fourteen and one fourth
acres, part of the said lot.
The defendant proved that he and his father
had lived on the lot twenty-four years ; and
the witness stated that in July or August, 1792,
Stephen Thorne came to his house, and said
he owned the lot, and the witness went
with him to the lot, when Thorne told the de-
fendant and his father that he owned the lot;
and the father of the defendant then purchased
the lot of Thorne, but the witness did not know
whether a deed was given, or how the business
was done. It was further proved, on the part
of the defendant, that, when Preston first at-
tempted to purchase the lot of the heirs of the
deceased soldier, he was told that Reuben had
sold the lot to Thorne. The witness saw Thorne
pay money to Reuben, and all the other heirs
received a share of the money ; but the witness
did not know whether they were present at the
sale to Thorne.
A verdict was taken, by consent, for the
plaintiff, subject to the opinion of the court on
the above case.
Mr. Wendell, .for the plaintiff, contended : 1.
That the deed from Reuben Van Gelder to
Thorne passed only the share of Reuben, or
one ninth part of the lot, or of the rights of his
father as a soldier. The 1st section of the Act
(1 N. R. L., 303) concerning the Military
Lands, declares all lands patented to officers or
soldiers, who have died previous to the 27th of
March, 1783, to have been vested in them at
the time of their deaths respectively ; and the
7th section provides that the Act Regulating
Descents shall apply to and govern all cases
provided for in the 1st section, except where
the lands were, on the 5th of April, 1803. held
*by bona, fide purchasers or devisees [*4O5>
under any person who would have been heir at
law of the patentee, if that provision had not
been made. The children of Jacob Van Gelder,
the patentee, took as tenants in common, and
the lot was not held by Jacob, as the eldest
son and heir at law of his father. Again ;
Reuben described himself as the administrator
and heir of Jacob. As administrator.be could
have no right to convey. As heir of Jacob
(not being the eldest son) he could be entitled
only to one ninth. The entry of Thorne, under
the deed, was only as tenant in common, claim-
ing one ninth . so there could be no adverse
poMession.
2. The deed from Jacob, William and Elijah,
to Reuben, of the 17th of January, 1792, was
antedated and void. Nothing was seen or
heard of this deed until nine years after its
apparent date, when it was proved by Stephen
671
409
SUPREME COUKT, STATE OF NEW YORK.
1816
Thome ; but that deed could inure to the use
of the grantee only.
3. The prior registry of the deed of William
Preston would destroy the operation of that
deed ; for there is no evidence of a notice to
Preston of its execution. Such notice must be
direct and positive. (Jackson v. Given, o Johns.,
137.)
Again ; an adverse possession makes a con-
veyance by the person out of possession void
&» against third persons ; and though such
adverse possession may prevent the operation
of the deed so as to enable a person to recover
in the name of the grantee, yet the title remains
good in the grantor. (Jackson v. Brinkerhoff,
S Johns. Cas., 101; Williams v. Jackson, 5
Johns., 489.) Outstanding titles may be pur-
chased in, to support atitle. (Jackson v. Demont,
9 Johns., 55; Jackson v. WJieeler, 10 Johns.,
164.)
Mr. E. Williams, contra. The defendant and
his father have enjoyed the premises, under a
claim of title, for twenty years before bringing
the action.
Mr. Wendell. The fact is, as will appear
from the pleadings, though not stated in the
case, that the suit was commenced six months
before the Statute could attach.
Mr. Williams. If the possession was adverse
in 1798, at the time the deeds were given, under
which the defendant claims, those deeds are
void. Now, the fact is, that the defendant and
his father were in possession in 1794, under the
deed of Thorne, to whom Reuben Van Gelder
had conveyed. There was, therefore, a legal
4 1 O*] incapacity in any person out of pos-
session to convey the lot. No matter what was
the character or extent of the conveyance from
Reuben Van Gelder to Thorne, if the defend-
ant purchased the fee of the whole lot, and held
it as tenant in fee of the whole. He has con-
tinued in possession ; the heirs of Jacob were
not in a situation to make a legal conveyance ;
Reuben, the grantor, claimed to be heir to his
father, who died in 1779, when, by the law of
the State, as it then existed, the oldest son took
the whole estate as heir at law. The posses-
sion taken under this deed was a possession of
the whole. The antedating of the deed of the
7th of January, 1792, if it were proved, would
not be material here ; but there was no proof
of the fact.
The prior registry of the plaintiff's deed can
have no effect ; if it was void in its creation, it
can gain no preference by a registry. Then
the defendant shows that he has the title of the
heir at law of the patentee, and continued pos-
session under it.
Again ; the 7th section of the Statute relative
to military lands, as to the application of the
Statute of Descents, except the case of bonaf.de
purchaser holding on the 5th of April, 1803.
Now, at that time, the father of the defendant
WHS a bona fide purchaser in possession.
In Jackson v. Demont it was held that a re-
lease from the lessor, after issue joined, in an
action of ejectment, will protect the defendant
against the lessor ; and in Jackson, ex dem.
Bonnet & QoodyKar, v. Foster, 12 Johns., 488;
Jackson, ex dem. Bonnel, v. Sharp, 9 Johns.,
163, it was held that the plaintiff could not re-
cover on the demise of a lessor, who had re-
leased his interest to the defendant.
ft!
Mr. Van Vechten, in reply, contended that
the character of the possession of the defend-
ant and his father, since 1794, must be in con-
formity to the title they then acquired ; and
whatever may be the form of the deed from
Thorne, if he could convey only an undivided
ninth part, the conveyance must be construed
and take effect according to the rights of the
grantor. The grantor did not describe himself
as heir at law, but only as administrator and
heir. When a person having right enters into
possession of land, the law intends that he en-
tered according to his right. Then, he insisted,
the character of the possession of the defend-
ant was that of a tenant in common of one
ninth part ; and so *could not be adverse[*4 1 1
to the other heirs or the tenants in common of
the remaining eight parts. It appears from the
Nisi Prius record, that the process was return-
able in January, 1812, so that the Statute of
Limitations could not prevail. The court will
go far to protect the rights of tenants in com-
mon from an ouster by an adverse possession
under a co-tenant. ( Van Dyck v. Van Beuren
& Vosburgh, 1 Caines, 84.)
Again ; in Jackson, ex dem. Potter, v. Hub-
bard, 4 Caines, 82, this court held that under
the Act of the 8th of January, 1 794, for the Reg-
istry of Deeds in the Military Tract, a prior
deed not deposited in the clerk's office was
void against a subsequent bona fide purchaser,
whose deed had been deposited. The defend-
ant was bound to take notice of the deed to
Preston ; whatever is sufficient to put a party
on inquiry is good notice. Where a purchaser
cannot make out a title but by a deed which
leads him to another fact, he shall be presumed
to know that fact. (2 Fonbl. Equ., 155 ; 2 Ch.
Cas., 246.)
Again ; a sound construction of the Act of
1803 decides the character of the possession.
It provides for a compensation for improve-
ments made by settlers under color of title.
The possession is to be transferred to the true
owner, on making payment for the improve-
ments. This shows that the Legislature in-
tended to protect the titles to lands under de-
ceased soldiers, and at the same time, to pro-
tect those who entered under color of title ;
thus doing justice to all parties, and giving the
land to its true owner.
YATES, J. , delivered the opinion of the
court :
The important inquiry in this cause is, as to
the character, duration, and effect of the de-
fendant's possession ; and it involves the fol-
lowing questions : 1st. Whether the premises
have been held adversely for twenty years
before suit brought ; and, 3d. If adverse (al-
though not for that period), what the legal
operation of such possession is, with regard to
the conveyances introduced by both parties, as
evidence of title.
The deed of September, 1791, from Reuben
Van Gelder to Stephen Thorne, for the whole
lot, cannot control the possession of the de-
fendant and of his father, so as to make it the
entry and possession of a tenant in common,
merely because it gave title to no more than
one ninth part of the lot.
The grantor in this deed states himself to be
the heir of the patentee, and the conveyance is
JOHNS. REP., 13.
1816
VAN BRUNT ET AL. v. SCIIKNCK.
411
for the whole lot ; and it may well be inferred
that Thorne, at the time, supposed that it gave
412*] *him title to that extent, and that he
purchased accordingly. It afterwards appear-
ing that Reuben was a younger son. coula not
alter the nature of the defendant's possession.
If Reuben had been the heir at law of Jacob
Van Gelder, the soldier, Thorne, would have
held the whole lot under the Statute of the 5th
of April, 1803, as a !»>n<i fitlt purchaser.
The conduct of Reuben, subsequently to the
conveyance made by him, confirms, in a great
degree, what has been stated to have been the
intention of all the parties when it was exe-
cuted. The consideration received was divided
between all the children. They, therefore,
supposed the sale made by Reuben sufficient to
pass the entire lot, or they never would have
accepted of their proportion of the considera-
tion received for it ; and Thorne, supposing
himself to have obtained a good title, did not
hesitate to dispose of it to a person who en-
tered as owner of the whole lot.
If. therefore, it is conceded that Reuben's
: conveyed one ninth part only to Thorne,
and that if he had entered under it, such entry
would have been according to his right as ten-
ant in common, and that nis co-tenants could
not have been disseised, because the possession
would not have been adverse to their rights ;
still, this cannot change the character of the
defendant's possession, nor the previous pos-
session of his father. Neither of them had any
knowledge of this deed. The father pur-
chased, by warranty deed, from Thorne, who
represented himself to be the sole proprietor of
the lot. As early as July or August, 1792,
while the defendant's father was on the lot.
Thorne went to view it, and avowed himself
to be the owner, and sold it for £140. From
that period, in strictness, the adverse posses-
sion commenced. At all events, it commenced
from the date of Thome's deed to the elder
Smith, which was in February, 1794. It is ev-
ident, therefore, that the doctrine in relation
to the possession of tenants in common, does
not apply to this case. It might as well be
urged as applicable to a conveyance made by
a stranger of any lands held in common. And
it will not be questioned, that the possession of
a purchaser under such a deed, given without
right on the part of the grantor, would, not-
withstanding, be adverse to the rightful
owners, although held by them in common.
But, in the present case, no such tenancy did,
in fact, exist. The patent had issued to a de-
ceased soldier ; and it may well be questioned
4 13*] whether an equitable title even *could
pass to his children. The Statute to regulate
descents as to property, in that situation, was
not passed until nine years subsequent to the
sale made by Thorne to the father of the de-
fendant ; so that the possession taken by him
must be deemed adverse to all the world.
(,1tifk*m v. Wheeler, 10 Johns., 166 ; Jaciuon
, v. flatter, 12 Johns., 490.)
It is not stated in the case at what time this
suit was commenced, but the plaintiff's coun-
sel, in the course of the argument, mentioned
that it appeared from the files in the clerk's
office that the declaration was returnable in
January Term, 1812. If that is so. the posses-
sion has not been adverse for a period suffl-
JOHNS. REP., 18. N. Y. R. 5.
cient to bar the plaintiff's right to recover on
that ground ; for, before Thorne went to view
the lot, it is not pretended that Smith claimed
it, or that he held it in the right of any one.
He, doubtless, during that period, possessed it
as a mere intruder ; but the adverse posses-
sion, subsequent to February, 1794, when he
had purchased it from Thorne, who then as-
sumed to claim the whole lot, and having
taken his warranty deed, was sufficient to de-
feat the conveyances obtained bv William
Preston in 1798. The conduct of Thorne, af-
terwards, could not alter the operation of this
possession. There is no evidence that Smith
had any knowledge of it ; and such conduct
may well be attributed to the interference of
Preston with the title, because the lot had been
conveyed by a warranty deed to the elder
Smith, so that Thorne was interested in secur-
ing Smith's possession. The deeds, then, from
William Van Gelder, Jacob Van Gelder and
Elijah Van Gelder, to William Preston, of the
15th of March, 1798, and of the other children
to him, dated the preceding February, being
rendered inoperative, the plaintiff, of course,
cannot be benefited by the demises of William
Preston. John Matthews, Robert Morris and
Garret Wendell; and the conveyances, subse-
quently executed by all th« children to
Reuben, must inure to the benefit of the de-
fendant, who held .umler Reuben, through
Thorne ; because the facts in the case suffi-
ciently show that those conveyances were ob-
tained for the purpose of granting or securing
Thome's title under Reuben ; and Smith being
Thome's grantee, he, and those claiming under
him, had a right to protect themselves under a
title thus obtained, in the same manner as
though he had purchased from the children
himself. It is an established rule of law, that
a party in possession claiming title may pur-
chase in an outstanding title. (Jackson,
*ex dem. Humphrey, v. Given, 8 Johns., [*4 14
139;1 Johns. Cas., 81 ; 5 Johns., 489 ; 8
Johns., 479; 12 Johns., 207.) There, there-
fore, can be no recovery on the demise of the
other children of the patentee, as they have
parted with their right in the premises to
Reuben, which, as before stated, inures to the
benefit of his grantee and those claiming
under him. The defendant is entitled to judg-
ment.
VAN NESS, J., dissented.
Judgment for the defendant.
Cited in— 10 Wend.. 418; 24 Wend., 227; 3 Paipe,
549; 4 Paige, 300; 4 Sand. Cb.. 725; 53 N. Y., 806; 5
IHrteri. 4:H. 4.35. 444; 3 How. (U. S.l, tl«9; 33 Ohio St.,
403 ; 21 \Vis., 337 ; 24 Wis.. 329; 29 Wis.. 260.
VAN BRUNT KT AL. t>. SCHENCK.
Tre*pa*» — For Seizure of Vesnel by Officer of
(JuttnrM — Liable for Afnue after Seizure —
Certificate of Probable Cause — Tresptuter ab
initto.
When a vessel has been seized by an officer of the
customs, who, after the seizure, 00111111(18 .m abuse
of the an: hority vested in him. and the vessel is then
acquittal in tli«- District Court, but a certificate of
proliahlc (Mu-i- »dven, the officer, although liable
for the particular act of abuse, is protected, by the
oTtitiiMt. . troin Ix-ini.' miulc a trespasser a/> initi<>.
The. abuse of an authority (riven by law, makes
the HbiiKcr a trespasser ab initlo, but not the abuse
of an authority in fact.
43 078
414
SUPREME COURT, STATE OK NEW YOKK.
1816
Citations— 11 Johns., 377 ; 1 N. K. L., 436 ; 20 Vin.
Abr., 528, pi. 4.
was an action of trespass for seizing
-L and taking a schooner called the Nancy,
against the defendant, who is surveyor of the
port of New York. At a former trial of this
cause, a verdict had been found for the plaint-
iff, which, in August Term, 1814, was set
aside, and a new trial granted (see 11 Johns.,
377) ; and the cause was again brought to trial
at the New York sittings, in April, 1814, be
fore Mr. Justice Van Ness.
It was stated in the libel filed in the District
Court of the United States against the schooner
Nancy, that the defendant, on the 6th of Oc-
tober, 1809, seized the vessel as forfeited to the
use of the United States. It was proved, on.
the part of the plaintiff, that while the Nancy
was so under seizure, the defendant admitted
that he had used the vessel in transporting his
furniture, from his house at Hell Gate to New
York, and offered to pay the plaintiffs for the
useof her, but they declined acceptingany pay-
ment for the use of her, and referred the de-
fendant to their attorney. It was also proved
that the witness personally attended to the
conducting of the trial of the suit in the District
Court.
It was proved, on the part of the defendant,
that all seizures, by whomsoever made, are
stated in the libel to be made by the surveyor;
who had an interest in them, and that the de-
fendant was the only officer who took an ac-
tive part in preparing the causes for trial.
William Van Beuren, a witness for the de-
4 1 5*J f endant, *testified that he seized the.
Nancy, for a breach of the embargo laws, and
immediately reported the seizure to the defend-
ant, who approved of what he had done. The
witness did not recollect whether he had any
particular instructions from the defendant to
seize the vessel in question, but he had a gen-
eral order to seize all suspicious vessels. . The
witness also stated that the defendant applied
to him to procure a vessel to bring his furni-
ture from his country seat to New York, and
that the witness, not being able to procure any
vessel for that purpose, urged the defendant
to take the schooner and pay the owners for
the use of her ; that the defendant at first de-
clined, but afterwards assented to it ; and the
witness went in the schooner to the country
seat of the defendant, and returned with the
schooner in the afternoon of the same day in
which she was taken away.
It appeared from the proceedings in the
District Court against the schooner Nancy,
that, on the 5th of December, 1809, an order
was made, by consent in the cause, that the
vessel should be sold by the marshal, and the
proceeds paid into court ; and that, the cause
having been heard in the District Court, the
court, afterwards, on the 8th of January, 18J.O,
decreed that the libel should be dismissed ; that
there was probable cause of seizure, and that
the amount of the sale of the vessel, after de-
ducting costs, should be paid to the claimants.
The vessel was sold by the marshal for $320,
and the sum of $122.75 was paid to the claim-
ants in pursuance of the order of the court.
When the cause was about to be submitted to
the jury, the judge stated that, under the de-
cision of the court in this cause, on the motion
674
for a new trial, he should feel himself bound
to charge the jury against the plaintiff's right
to recover ; the plaintiffs then submitted to a
nonsuit, with liberty to move the court to set
it aside.
The cause was argued by Messrs. Wells and
Brinckerhoff for the plaintiffs, and by Mr.
Baldwin for the defendant.
THOMPSON, Ch. J., delivered the opinion of
'the court :
This case, as it now appears before the court,
differs essentially from the former. (11 Johns.,
377.) Van Beuren, who, in fact, made the
seizure, testifies that he had general orders to
seize all suspicious *vessels. From [*416
whom these orders were received he does not
state. But he says he reported the seizure to
the defendant, who approved of what he had
done. This was a complete ratification and
adoption of the act of seizure, and puts the
defendant in the same situation as if he him-
self had made the seizure ; and the question
then arises, whether the subsequent use of the
vessel, by the defendant, made him such a
trespasser, ab initio, as to make him responsi-
ble for the full value of the schooner at the
time of seizure. The decision of this question
will, I think, depend entirely upon the legal
effect and operation of the certificate of rea-
sonable cause of seizure, given on the acquittal
of the vessel. Independently of this certificate,
the case would fall within the rule, that the
abuse of an authority given by law makes the
abuser a trespasser ab initio. The reason of
this rule, and why it does not apply equally to
an abuse of an authority in fact, does not seem
very satisfactorily explained in the books. It
is sometimes said that the law intends from
the subsequent tortious act that there was,
from the beginning, a design of being guilty
of an abuse of the authority. At other times,
it is made to rest upon the general reasonable-
ness of the rule, that where the law has given
an authority, it should, in order to secure such
persons as are the objects of the authority
from the abuse thereof, make everything done,
void, when it is abused, and leave the abuser
in the same situation, as if he had done every-
thing without any authority. But whatever
may be the reason of the rule, it is founded, in
some measure, in fiction, and this fiction must
not be made to work injustice in the face of
the express provision of the Act of Congress
(March 2, 1799), which declares that where
there is a certificate of reasonable cause of
seizure, the person who made the seizure, or
the prosecutor, shall not be liable to action,
suit or judgment, on account of such seizure.
This certificate does not shield the person
making the seizure from responsibility, for
damages which may be occasioned by any sub-
sequent abuse of his authority. It only goes
to protect him from an action on account of
the seizure. That is, if there was reasonable
cause for the seizure, the person making it
shall not, for such act, be deemed in any man-
ner responsible. But to make the defendant
a trespasser ab initio, is making him responsi-
ble for the act of seizure, for which the Statute
declares he shall not be answerable. This
construction gives *f ull force and effect [*4 1 7
to the certificate of reasonable cause, and still
JOHNS REP., 13.
1816
IN TUB MATTER OK MAKOARET ELIZA WAI.DROX.
417
the seizing officers liable for all injury
occasioned by an abuse of their authority.
Any other construction renders this certificate
a nullity. The seizing officer is, by this cer-
tificate, put in the situation of a person who is
guilty of an abu.^e of an authority in fact, who
docs not thereby become a trespasser ab mitio.
but is liable to make satisfaction to the owner
of the property for the abuse of his authority.
The object which this Act of Congress had In
view is very analogous to the one provided for
by our Statute as to irregular distresses (1 N.
K L., 436), which declares that when any
distress shall be made for rent justly due, and
any irregularity or unlawful act shall be after-
wards done, the party making it shall not be
deemed a trespasser •/'' initio, but the party
aggrieved may recover full satisfaction for the
special damages sustained, and no more, in an
action of trespass on the case.
To make the defendant responsible for all
damages which the abuse of his authority has
occasioned, and no more, will be doing ample
justice to both parties, and affording that pro-
tection to public officers contemplated by the
Act of Congress. But to make the defendant
liable to the full value of the vessel at the time
of seizure, by a fiction of law, which mav,
perhaps, make him a trespasser ab initit>. would
be carrying the fiction farther than reason and
justice would warrant. I should incline to
think a special action on the case, for the act-
ual damage sustained by the use of the
schooner, would lie, and would be the fit and
appropriate action. The reasonable cause for
the seizure, which the certificate shows, ought
to be considered as making that act lawful, and
the injury to the plaintiffs is, therefore, medi-
ate and consequential, and so not a proper case
for an action of trespass. •
There is another fact disclosed in this case,
which did not appear in the former, and which
would seem to furnish an answer to the claim
set up in this action, for the value of the
schooner. By an order of the District Court,
madu with the consent of the proctor for the
claimants in that court (and who are the plaint-
iffs here), the vessel was sold, and the money
paid into court, to abide the event of the suit.
This money, by the decree dismissing the libel
filed in the cause, was ordered to be paid over
to the claimants, which has been done, as
4 1 8*] 'appears by the receipt of their proctor,
bearing date the 7th of January, 1810. This
ought to be considered an affirmance of the
proceedings, and an election to take that which,
by the consent of parties, was made the sub-
stitute for the vessel. (30 Vin. Abr., 528, pi.
4.) Independently, however, of this circum-
stance, I think the defendant cannot be made
a trespasser ab inilio, but is only liable in a
special action on the case, for whatever dam-
.i.:'- the plaintiffs have sustained by the use of
tin- vessel by the defendant, contrary to his
duty as a public officer ; and that the motion
to set aside the nonsuit, must, accordingly, be
denied.
VAN NESS, J., dissented.
Motion denied.
Cited la-4 l>. •ni... 381 ; 2 N. Y., 483; 15 Abb. N. 8.,
70.
JOHNS. REP., 13.
IN THE MATTER OK MARGARET ELIZA
WALDRON.
Habeas Corpus — Directed to Bring up Infant
—Infant mu*t be Freed from Improper Re-
*tranU—Di*crelion of Court at to whom De-
livered.
Where a habetu wrptw is directed to u private per-
son to briny up an infant, the court are i>< mini, tx
(HbitofwtiUtB. U> »-t the infant free from improper
restraint: but whether they ahull direct it to be de-
livered over to any particular person, rests in their
discretion under the circumstance* of the cast*: and
that although the person makiiur the application be
tin- father of the infant.
Where an infant was In the custody of Its
-
f ut her, and it appeared that it would be more for
the U-nent of the infant to remain with its imna-
i father than to be put -under tne care of the father
i and no improper restraint was shown, the court re-
fused to direct the infant to be delivered t<» the
father.
Citations— 3 Burr., 1436 ; 5 Binn.. 620 ; 10 Ves., Jr..
50.
\ HA BE AS CORPUS was issued in this case,
IX in May Term last, to Andrew M'Gowan.
to bring up the body of Margaret Eliza Wald-
ron, an infant, alleged to be detained in his
custody. It appeared, from the affidavits
which were read to the court, that John P.
Waldron had married the'daughter of Andrew
M'Gowan, and that having become embarassed
and insolvent, M'Gowan. in February, 1813,
took his daughter to his house, without her or
her husband's consent, as was alleged on the
part of Waldron. but positively denied bv the
affidavits on the opposite side. Mrs. Wafdron
lived with her father until her death ; and
during her residence with her father, Margaret
Eliza Waldron wa« born, who has al ways Deen
supported by her grandfather. Waldron used
to visit his wife shortly after her removal to
her father's, but had discontinued his visits
for a long time previous to her death, and had
not visited his child, being deterred, as he al-
leged, but which was denied by the other side,
by the unkind and repulsive treatment which
he met *with from M'Gowan and his [*419
family. M'Gowan is a man in very affluent
circumstances, and abundantly able to edu-
cate and maintain his granddaughter ; and it
appeared that Waldron was insolvent, and
unable to pay certain trifling debts which he
had contracted, although it was alleged that
his mother, with whom he lived, was compe-
tent and willing to support him and his
daughter. It appeared, also, that the infant's
mother was the only daughter of M'Gowan,
and the infant the only remaining grandchild
in the family; and would, most probably, re-
ceive the greater part of the property of her
grandparents, on their death.
Mr. Van Wyck, in behalf of the father,
moved to have the infant discharged from the
custody of her grandfather, and delivered to
her father. In support of the motion, he
cited The King v. Delatal, 1 W. Bl., 412, and
The King v. De Manntcille, 5 East, 220.
Mex#r». T. A. Emmet and Smith, contra, con-
tended that this was not the proper writ for the
father in this case ; that the writ of habeas cor-
n»» was for the benefit of a prisoner unlaw-
fully detained in custody, ana granted on his
application. The writ is solely for the benefit
of the person wrongfully deprived of his lib-
erty, and for the purpose of obtaining his lib-
419
SUPREME COURT, STATE OF NEW YORK.
1816
erty ; third persons never apply for it, except
in the case where the party is so confined that
he cannot himself make the application. Here
there is no pretense that the child is forcibly
detained, or in any degree deprived of its lib-
erty : on the contrary, it is under the care of
its grandparents, in whose house it was born,
and who have taken the whole charge of its
nurture and education.
The only case in which this writ has been
abused, or wrongfully applied to a case where
the party was not under restraint, is that of The
King v. Johnson, 1 Str., 579, and that case
was afterwards overruled as not law. (1 Str.,
982, King v. Smith.) All that the court is
bound to do is to see tha.t the party is not
wrongfully imprisoned or detained against his
will. If he is so, they will set him at liberty ;
and if of sufficient age, leave him to go where
he pleases. This writ is not to be made the
engine of parental authority. Where a child
was thirteen years old, he was allowed to ex-
press his wish, and the Court of K. B., in the
exercise of its discretion, refused to order
42O*] *him to be delivered over to his father.
Where the child is of such tender years that it
cannot form a proper judgment, this court
will exercise its judgment for the benefit of
the infant, and do what, in its conscience, it
thinks most for the interest of the child. It is
in the sound discretion of the court to alter
the custody of the infant or not. The inter-
est and welfare of the child are alone to be
viewed on this writ. The rights of parental
authority, or claims of guardianship, are to be
tried in a different way. (Bac. Abr., Hab.
Corp., B, 13.)
The Court said they would take time to ad-
vise until the next term, and remand the child
in the meantime to the custody of the grand-
father, with the view that the mattter might
be amicably adjusted, so as to render any in-
terposition of the court unnecessary ; and they
strongly recommended to the father .to let his
child continue with its grandparents.
Cur. ad. vu.lt.
No compromise, or agreement, having taken
place between the parties claiming the custody
of the child.
THOMPSON, Ch. J., now delivered the opin-
ion of the court :
Upon the return to the habeas corpus, which
has been allowed in this case, the question pre-
sented to the court is, whether they are bound
to deliver over the child to her father. From
the affidavits which have been laid before the
court, little doubt can be entertained that it
will be more for the benefit of the child to re-
main with her grandparents, than to be put un-
der the care and custody of her father ; and if
this court has any discretion in such case, it
will, no doubt, be discreetly exercised, by per-
mitting the child to remain where she is.
The general principle applicable to* cases of
this kind, is laid down by Lord Mansfield, in
Rex v. Delaval et al. , 3 Burr. , 1 436, that in cases
of writs of habeas corpus, directed to private
persons to bring up infants, the court is bound,
676
ex debitojustitice, to set the infant free from an
improper restraint. But they are not bound
to deliver the infant over to any particular
person. This must be left to their discretion,
according to the circumstances that shall ap-
pear before them. In the present case, the
child cannot be considered under any improp-
er restraint ; *she was born at the [*421
house of her grandparents, and has always
lived with and been brought up by them.
There is nothing appearing, in any manner, to
show that she is kept there against her will
and consent. The case of the Commonwealth
v. Addicks et ux., 5 Binney, 520, is very much
in point, and a strong corroboration of the
principle that it is a matter resting in the sound
discretion of the court, and not matter of right
which the father can claim at the hands of the
court. It is to the benefit and welfare of the
infant to which the attention of the court
ought principally to be directed ; and this can
be much better guarded and protected by the
Court of Chancery, under its peculiar jurisdic-
tion, than by this court upon habeas corpus.
(10 Ves., Jr., 59.)
We think, therefore, that it will be a due ex-
ercise of the discretion with which the law has
invested us, to deny the present application ;
leaving the father to pursue his remedy, if any
he has, in the Court of Chancery, where ques-
tions of this kind more properly belong ; there
being no actual improper restraint of the in-
fant. We think proper, however, to suggest,
that the father ought, on all suitable occasions,
to be permitted to see the child, taking it for
granted that he will not attempt to take her
away from the care and custody of her grand-
parents, except by the aid of some judicial
proceeding.
Motion denied.
Cited in— 18 Wend., 641 ; 25 Wend., 73 ; 4 Johns. Ch.,
83: Hoffm., 500; 6 Barb.. 388; 27 Barb., 16; 17 How.
Pr.,517; 17 Abb. Pr., 398, n.; 1 Duer, 721; 11 Leg.
Obs., 236 ; 3 Mason, 486 ; 32 Ohio St., 308 ; 19 Wis.,
278.
*GENERAL RULE. [*422
August 22d, 1816.
ORDERED, That whenever special bail shall
be regularly excepted to, bail thus excepted to,
or such other persons as become special bail
in lieu of, or in addition to, the said bail, to
which exceptions have been taken, may justify
before those officers authorized by law to take
recognizance of bail in actions depending in
this court, due notice being first given to the
opposite party of the time and place, and' be-
fore whom such bail will justify ; to the end
that the sureties in any such recognizance of
bail may be examined concerning the value of
their estate, and their personal circumstances ;
unless one of the judges of this court shall, be-
fore such justification, by order, direct the jus-
tification to be in open court ; reserving to
either party aggrieved, when such justification
is not made in open court, a right of appeal to
this court from the decision of such officer
making such examination of the sureties, on
an affidavit of the facts, and on regular notice
of a motion to set aside any such justification.
JOHNS. REP., 13.
[END OF AUGUST TERM, 1816.]
CASES ARGUED AND DETERMINED
IK THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK,
OCTOBER TERM. 1816, I.V THE FORTV-FIRST YEAR OP OUR INDEPEXDE^CP.
MARSHALL r. MOTT.
Practice — Affidavits Before Public Officers out of
Slate — Read tcften.
In collateral matters arising: in the progress of a
suit, as on a motion for a commission to examine
witnesses abroad, affidavits taken before nia«is-
tratt-s or public officers out of the State may be
read.*
MR. GARR, for the plaintiff, moved for a
commission to take the examination of
witnesses abroad, in this cause. He offered to
read an affidavit for this purpose, taken before
the Chief Judge of the Court of Sessions for
Suffolk County, in the State of Massachu
setts.
Mr. Weyman, contra, objected that the affi-
davit, not being before a proper officer, could
not be read in this court.
Per Curtain. Where the party resides out
•of the State, we have been liberal in allowing
affidavits taken abroad to be read in all collat-
eral matters arising in the progress of a cause.
Affidavits taken before the Mayor of Philadel-
phia, before American Consuls, and other pub-
lic agents in foreign countries, have been often
read in this court, in support of similar appli-
cations.
Motion granted .
424*] *BURTUS v. M'CARTY ET. AL.
Action on Recognizance of Bail — Jurisdiction.
Actions on recognizances of bail, taken in suits
brought in courts of common pleas, must be
firmiK-lit in tin- rourt of tli" county in which the
suit was oriirinally commenced, if the parties who
enter into the recognizance reside within its Juris-
diction and not in this court.
Citations— 7 Johns., 318 ; 9 Johns., HO : 12 Johns.,
460.
MR. PAINE, for the defendants, moved to
•et aside the execution, judgment, and
all proceedings in this cause. The suit was
on a recognizance of bail, taken in the Court
•See Tucker v. Ladd, 4 Cowen, 47.
JOHNS. Ki.r 18.
of Common Pleas of Rensselaar County. The
defendants, who were special bail for the de-
fendant in the original suit, both resided in
Rensselaer County, where they entered into the
recognizance, and where they were arrested
in this suit. The capias was returnable in
August Term, and the principal was surrend-
ered by his bail into the custody of the sheriff
of Rensselaer on the 9th August, and notice
thereof given to the plaintiff's attorney on the
same day.
Mr. Foot, contra.
Per Uuriam. The suit on the recognizance
of bail must be brought in the county where
the original suit was commenced. In Davit
v. Gittet, 7 Johns., 318. the bail had removed
out of the county, so that they could not be
there personally served with process. In Has
well v. Bates & Lewis, 9 Johns., 80, which
was an action on a bail-bond taken in a court
of common pleas, the bail also resided out of
tihe county ; and in Gardiner v. Puchan A
Olcott, 12 Johns., 459, which was also an ac-
tion on a bail-bond, the principal resided out
of the county, though the bail lived within the
county, in which the original suit was brought.
Kuril court has it own rules of practice as to
proceedings against bail, and it would be in-
convenient for this court to be inquiring into
the rules of practice of the different courts of
common pleas. In the cases which have been
mentioned, the party would have been without
remedy, unless this court had taken cogni-
zance of the suit against the bail; and having
taken cognizance of the cause, we afford the
same relief as the Court of Common Pleaf
Here the parties are within the jurisdiction of
the court of the county in which the original
suit was commenced, so that they can be
served with process out of that court on their
recognizance. They must, therefore, be sued
in the Court of Common Pleas.1
Motion granted.
Cited in— 6 Wend., 300 : 13 Wend.. 34 ; 1 Hill, 605 ;
3 Hill, 560 ; 1 Denio, 633: 7 Peters, 286.
1.— See Stelnhurjrh v. Biarelow, 3 Wend., 42: Davis
v. Packard. 6 Wend., 327.
«77
425
SUPUEME COURT, STATE OF NEW YORK.
1816
425*] -BUNTING v. BROWN.
Damages for Breach of Contract for Non-de-
livery of Goods — Bail without Judge's Order —
Affidavit.
In an action for damages for the non-delivery of
goods, pursuant to contract, the defendant may be
held to bail without a judge's order; but if a defend-
ant is arrested, and held to bail, in an action not
bailable, an affidavit of the cause of action, subse-
quently made, will not support the arrest.
Citation— 1 N. R. L., 344.
THIS was an action on the case, to recover
damages for the non-delivery of a quanti-
ty of salt, which the defendant had sold to the
plaintiff, and contracted to deliver to him at
Turk's Island. The defendant was arrested,
and held to bail, without a judge's order.
The plaintiff, being summoned before the Re-
corder of the City of New York, to show cause,
&c., made an affidavit of the cause of action ;
but the Recorder; being of opinion that the de-
fendant could not be held to bail without an
order of a judge for that purpose, previously
obtained, ordered him to be discharged, on
filing common bail, and the bail-bond to be
canceled.
Mr. Qarr, for the plaintiff, moved" to vacate
the order of the Recorder.
Mr. E. W. King, contra.
Per Curiam. Where the action is not bailable,
an affidavit of the cause of action, made sub-
sequent to the arrest, will not support the
holding to bail. But this suit was on a con-
tract on which the defendant might have been
held to bail originally without a judge's order.
If the sum in which the defendant is' held to
bail be too large, application may be made to
a judge to mitigate it.
Motion granted.
Overruled— 1 Hill, 3T4.
WATERMAN v. VAN BENSCHOTTEN.
Action for Slander — Removable by Habeas Cor-
pus — Damages — Costs.
If, in action of slander, commenced in a court of
common pleas, and removed into this court by
naheax cnrpta, the plaintiff here recovers less than
$50 damages, he is entitled to no more costs than
damages. (1 N. R. L., 334, sess. 36, ch. 90, sec. 37.)
was an action of slander, commenced
J- in the Court of Common Pleas of Otsego
County, and removed into this court by habeas
corpus, in which the plaintiff here recovered
$10 damages only, and the Recorder of Albany
taxed the costs at $10.
426*] *Mr. Starkweather, for the plaintiff,
applied for a re-taxation of the costs.
Mr. Campbell, contra.
Per Curiam. The motion must be denied.
The 6th section of the Act (1 N. R. L., 344)
declares that in all actions of slander prose-
cuted in the Supreme Court, if the jury shall
assess the damages under $50, the plaintiff shall
recover no more co^ts than damages. There
is no saving here, as is to be found in the 4th
section, with respect to causes removed from
inferior courts. It is probably a casus omi$ms\
678
but Sis cost are only given by statute, we have
no discretion to allow them against the express
provision of the Act ; nor can we construe the
word " prosecute " as applying only to such
suits as are originally commenced in this court.
The same word is used in the 4th section, yet
the saving was deemed necessary as to cr.uses
removed from the courts of common pleas.
Besides, the last proviso of the 4th section de-
clares that nothing contained in that section
shall extend to certain actions mentioned,
among which is that of slander ; so that we
must construe the 6th section by itself, or as
if the 4th section had not been inserted in
the Act. If so, there can be no ground for
any distinction between actions originally com-
menced here, and those removed from an in-
ferior court by habeas corpus.
Motion denied.
JACKSON ex dem. WATSON,
v.
SMITH.
Ejectment — Title by Fine — When Sufficient to
Suppoi-t Ejectment.
A fine and five .years non-claim are evidence of
title in the cognixee, against all persons not under
any legal disability ; and a fine alone is sufficient to
support an action of ejectment against a person
who has entered during the five years, without
title.
Citations— Cruise's Dig., tit. Fine; 2 Inst., 713:
Bract., A & B : 5. Cruise's Dig., 121.
TIHIS was an action of ejectment, brought
for the recovery of Lot No. 13, in the
township of Camillus, which was tried before
Mr. Justice Van Ness, at the Onondaga Circuit,
in June. 1815.
At the trial, the plaintiff gave in evidence
a deed from Timothy Downs (who was de-
scribed therein as the heir at law of Patrick
Downs, to whom a patent for the lot in ques-*
tion had been *granted) to the lessor [*427
of the plaintiff, for the premises, dated the
16th July, 1793 ; also a fine sur cognizance de
droitcome ceo, &c., levied in this court between
Hunlock Woodruff, plaintiff, and Elkanah
Watson, the lessor of the plaintiff, deforceaut,
on Tuesday, the 13th of August, 1805, of the
premises in question, and which was regis-
tered in the clerk's office of the County of On-
ondaga, on the 12th of September, 1805, and a
release, dated the 10th of August, 1805, of the
premises, from Hunlock Woodruff to the
lessor of the plaintiff.
The defendant gave in evidence that lie went
into possession of the premises under a con-
tract for the sale thereof to him by one Joseph
Brush, in the year 1807, at which time the
land was wild and uncultivated ; and that he
had continued in possession ever since, and
made improvements.
A verdict was taken for the plaintiff, subject
to the opinion of the court on the above case.
Mr. H. Bleecker, for the plaintiff, contended
that the plaintiff, having shown a good title,
pnma facie at least, was entitled to recover ;
that a fine was a solemn assurance of record,
and equivalent to a judgment. (5 Cruise's
Dig., 120, Fine ; 3 Co., 78 fr.) The fine, in this
JOHN8. REP.. 13.
BlOELOW V. JOHNSON.
42?
case, bound all parties, and strangers also,
after five years, and the defendant's deed was
subsequent to the fine.
Mr. Sabin, contra, insisted that the defend-
ant, having entered within five years after the
tine was levied, was within the saving clause
of the Act (1 N. K. L., 358. sess. 86. ch. 58.
sec. 7). He cited Jackson, ex dem. fcott. v.
Iluntly, 5 Johns., 59, 63, 64. as analogous in
principle. That the entry alone was sufficient,
without bringing a suit, there being no one in
actual pos.ses.sion of the premises.
Mr. BleecJcer, in reply, contended that no en-
try could be effectual to avoid a fine but by a
person having right. ^5 Cruise's Dig., 233,
242, tit., 85, Fine; Bracton, 4366; Dyer, 215
b.) A tine can be avoided only by reversal in
error, by pleading, or by averment of fraud.
It. was not necessary that any person should be
in possession at the time the fine was levied, it
being a conveyance of record. (5 Cruise, 137,
140.) It is valid until duly avoided. If the
land was vacant, the effect must be to put the
cognizee in possession according to his right.
The saving of the Act is only to persons hav-
ing right, and the defendant does not show a
right.
4ii8*] *PLATT, J.t delivered the opinion
of the court :
Levying a fine at common law, and as reg-
ulated by statute, is a judgment .of the court
upon the agreement of the parties, which not
only transfers the right of the vendor, and all
claiming under him, but also extinguishes the
rights of all others who omit to make their
claim in due season. (Cruise's Dig., tit. Fine.)
Lord Coke likens it to a sale of personal
property in market overt, which is not only
good and valid between the contracting par-
ties, but is also binding on all strangers who
have any right to the things sold. (2 Inst.,
713.) At common law, all persons were con-
cluded, unless they made claim during the pro-
cess of levying the fine. (Bract., 436, A and
B ; 5 Cruise's Dig., 121.) But in the reign of
Edward I. the law was altered so as to allow
a year and a day to all persons to claim, in
order to avoid a fine. Our Statute allows five
years to claim against a fine ; and expressly
affirms the common law, in declaring that a
fine levied pursuant to the forms regulated by
the Statute, " shall be a final end, and con-
clude, as well privies, as strangers to the
same," excepting persons under disabilities.
<fec. It operates, not merely as a shield to a
person in possession under a doubtful title,
but as an absolute conveyance, or investment
of title, per ne, after five vears' acquiescence.
This fine must, therefore, be conclusive
against the defendant, for although he entered
within five years, yet he has shown no title in
himself; and the plaintiff is entitled to judg-
ment.
Judgment for the plaintiff.
BIGELOW t>. JOHNSON.
Selling Liquor without Liceime — Statute Itegu-
lation.
In an action on the 7th section of the Act to Lay
a Duty on Strong Liquored K. L.. 178), where the
offense charged in the declaration is the selling of
JOHNS. REP., 18.
strong or spirituous liquors without a license, con-
trary to the tlret clause in that section of the Stat-
ute, ttie plaintiff cannot proceed for the offense
•MOOed in the subsequent clause, viz: selling
liquors to be drank in the house of the seller without
entering into a n-cojrnizance.
When- a I'enal Statute gives no form of declaring,
On plaintiff must set forth specially the facts which
constitute the offense.
TN ERROR, on certiorate to a justice's court.
Johnson, the defendant in error, brought an
action of debt, in *the court below, [*42!»
against the plaintiff in error, and declared gen-
erally for the penalty of $25. for selling strong
and spirituous liquors, contrary to the 7th sec-
tion of the Act to Lay a Duty on Strong Liq
uors, &c. The plaintiff, being called upon for
the particulars of his charge, specified certain
small quantities of liquors sold to particular
persons: the defendant then pleaded the gen-
eral issue, and at the trial the plaintiff proved
his specific charges, and also that the liquor
so purchased was immediately drank by the
purchasers in the defendant's store. The de
fendant produced in evidence, and relied upon
it as his defense, a regular license from the
commissioners of excise, permitting him to
retail spirituous liquors under five gallons.
The justice overruled this defense, and gave
judgment for the plaintiff below for the pen-
alty demanded, with costs.
Per t'tirittm. The 7lh section of the Act
provides " that if any person shall sell by re-
tail any strong or spirituous liquors, without
having a license, or if any person shall sell any
strong or spirituous liquors, to be drank in his
or her house, outhouse, yard or garden, with-
out having entered into a recognizance, every
person who shall be guilty of either of the
offenses aforesaid, shall, for each offense, for-
feit the sum of $25." Here are two distinct
offenses described, viz : one of selling by re-
tail without license, and the other, selling liq
uor to be drank in the house, &c., without
recognizance.
It is a well-settled rule, that in declaring for
offenses against penal statutes (where no form
is expressly given), the plaintiff is bound to
set forth specially the facts on which he relies
to constitute the offense. No form is pre-
scribed by the Statute in this case ; and the
plaintiff here declared against the defendant
for selling spirituous liquors by retail to A and
B, contrary to the 7th section of the Act. This
declaration does not embrace the offense of sell-
ing liquors to be drank in tile house. &c., with-
out recognizance ; or, at least, it is equivocal.
The defendant was not apprised that the latter
offense would be charged against him ; and as
to the first offense, his license was a complete
answer.
Judgment reverted.
Cited in-4 Denio, 471 ; 8 How. Pr.,432: 12 Abb. N.
S., 407 : 1 Sti.-ld . j»0; 1 Blatchf.. 155; 40 Mich., 189.
•BALDWIN r. PROUTY. [*43O
Evidence of Judgment after Death of Justice.
It is sufficient evidence of a Judgment recovered
before a Justice of the pi-ace wno is since dead, for
the party to prove the death of the justice, and to
«79
430
SUPREME COURT, STATE OF NEW YORK.
1816
produce the original minutes of the judgment, in
the handwriting of the justice, with proof to verify
those minutes.
Citation— 2 Johns., 177.
1
N ERROR, on certiorarito a justice's court.
The plaintiff in error, who was the defend-
ant in the court below, pleaded, by way of
set-off, a judgment recovered by him against
the plaintiff below, before another justice ;
and the plaintiff having, at the trial in the
court below, proved his demand, the defend-
ant in support of his set-off, offered to prove
that the justice, before whom the judgment in
his favor was obtained, was dead ; and also
offered the original minutes of that judgment,
in the handwriting of the justice, with proof
to verify those minutes ; but this evidence was
excluded, and judgment was given in the court
below for the defendant in error, for the
whole amount of his claim.
Per Curifun. The judgment was a good
ground of set off ; and the evidence offered of
the existence of that judgment, was the best
that the nature of the case would admit. The
justice, therefore, erred in rejecting the evi-
dence, and the judgment ought to be reversed.
Judgment reversed.
DORR v. MUNSELL.
Action on Bond — Consideration — Fraud in Em
dence under Non est Factum.
In an action of debt on bond, the defendant can-
not plead a failure of consideration, or that he was
induced to give the bond by a fraudulent represen-
tation of the value of a thing, which afterwards
turned out to be of no value : as where the consid-
eration of the bond was a transfer of a patent right
to which the plaintiff was not entitled as the orig-
inal inventor.
Fraud may be given in evidence under nan est
factum, only where it relates to the execution of
the instrument.
THIS was an action of debt on a bond in the
penalty of $400, dated the 21st Septem-
ber, 1810. The defendant craved over, and
set forth the condition of the bond, which was
for the payment of three sums, each of $66.67,
in one, two and three years from the date ;
and then pleaded, 1. Non est factum. 2. That
the bond was fraudulently obtained by the
plaintiff, by representing himself to be the
original inventor and patentee of an improve-
431*] ment in a machine for shearing *cloth,
containing a new mode and principle of draw-
ing and moving the cloth in the machine while
in the operation of being sheared ; and that the
same had not been invented by, or patented to,
any other person previous to the date of the
letters patent granted to the plaintiff by the
President of the United States. The defend-
ant tiien averred that the said mode of draw-
ing cloth, while in the operation of being
sheared, was patented on the 22d November,
1805, to one Kellogg, and to one Samuel G.
Dorr on the 29th October, 1792 ; and that the
defendant was not the original inventor and
patentee thereof. That the defendant, in con-
fidence of the representations of the plaintiff,
made the bond in the declaration mentioned,
and received therefor, from the plaintiff, a
(JSO
conveyance of his right to make and use the
said machine for fourteen years, in the County
of Cayuga, and in the township of Marcellus,
in the County of Onondaga, excepting the
town of Aurelius, in the County of Cayuga.
3. Generally, that the bond was obtained by
fraud.
To the second plea the plaintiff demurred,
and assigned special causes of demurrer, which
it is unnecessary to state, as the opinion of the
court was founded on the insufficiency of the
plea in substance; and to the third plea, he
replied tendering an issue thereon. The cause
was submitted to the court without argument.
SPENCER, J., delivered the opinion of
the court :
The plea demurred to is bad. It set's up a
fraudulent representation of the plaintiff's
patent right ; and in substance, it is a denial of
any consideration for the bond. At law the
defendant cannot avoided a solemn deed on the
ground of a want of consideration. That in-
quiry is precluded by the very nature of the
instrument. The case of Vro-man v. Phelps, 2
Johns., 177. is directly in point, that a fraud-
ulent representation of the quality and value
of the thing sold forms no defense in a suit on
a specialty.
In some of the elementary writers, it is
stated that fraud may be given in evidence
under the plea of non est factum. This must
be confined to cases where the fraud relates to
the execution of the instrument, as if a deed
be fraudulently misread, and is executed un-
der that imposition : or where there is a fraud-
ulent substitution of one deed for another, and
the party's signature is obtained to a deed which
he did not intend to execute. The case of
Hayne v. Maltby, 3 T. R., 440, does not apply.
There *the suit was on the covenant [*432
which was the instrument of the fraud, and
Lord Kenyon evidently meant to exclude the
idea that the defense would have been ad-
mitted, had there been a covenant to pay a
sum in gross
Judgment for the plaintiff.
Cited in-5 Cow., 508 ; 8 Cow., 293 : » Cow., 311 : 4
Wend., 473; 8 Wend., 618: 2 Hall, 446; 19 How. (U.
S.), 223; 3 McLean, 306 ; 79 111., 97.
THE PRESIDENT, &c., OF THE BANK
OF UTICA
DE MOTT.
Promissory Note — Indorser — Residence of — No-
tice of Nonpayment.
Where the indorser of a promissory note resides-
in a different place from that in which it is payable,
notice of the non-payment must be sent to him in
the place in which he is actually resident, and if di-
rected to a wrong place, without showing that due
diligence was used to ascertain his residence, but
without success, he will be discharged.
Citation— 1 Johns., 294.
NOTE.— Negotiable paper— Notice to indorser— Due
diligence. See, generally. Stewart v. Eden, 2 Cai.r
121, note ; Reedy v. Seixas, 2 Johns. Cas., 337, note ;
Tnnno v. Lague, 2 Johns. Cas., 1, note ; Ireland v.
Kip, 11 Johns., 231, note: Bryden v. Bryden, 11
Johns., 187, note.
JOHNS. REP., 13.
1816
PALMEK v. HAND.
432
THIS was an action of assumptit against the
defendant, .as indorser of a promN-<>ry
note. The cause was tried at the last Oneida
Circuit.
The note on which the action was founded
was drawn by one William Low, for $375. and
payable to the defendant or order,.at the Bank
of Utica, one hundred and twenty days after
date, and was dated the 6th Dec., 1814. There
was no town or place mentioned in the note
where it purported to have been made. The
note not being paid on the day on which it be-
came payable, it was proved, by a bookkeeper
in the Bank of Utica, that, on the evening of
the same day, he put the usual notice to an in
dorser into the postofflce at Utica, directed to
the defendant, at Canandaigua, where, from
the best information he could get, he supposed
the defendant resided. The witness also stated
that he inquired of the cashier and some of
the directors as to the place of residence of the
defendant; and that he was in the habit, in all
cases, where the place of residence of the in
dorsers of a note was uncertain, of making
inquiries of such persons as he supposed were
best acquainted with their place of residence;
that, on this occasion also, be found in the
Bank a canceled note drawn by the same Low,
and indorsed by the defendant, which note
was dated at Canandaigua, and the body of it
in the handwriting of a person whom he knew
resided at Canandaigua, but thr- note offered
in evidence was not in the handwriting of the
same person. Neither the maker of the note
nor the defendant had ever lived in Utica, and
it did not appear that the defendant had ever
admitted that he had received notice. The
4JJ3*J *defendant proved that he resided at
Ovid, in the County of Seneca, and had lived
there for ten years past: the maker of the note
also lived at Ovid, at the time when it was
given.
The jury found a verdict for the plaintiff for
the amount of the note, with interest, subject
to the opinion of the court on the foregoing
facts. The case was submitted to the court
without argument.
SPENCER, J., delivered the opinion of the
court :
The defendant is sued as indorserof a prom-
issory note, payable at the Bank of Utica.
When the note fell due, notice of its non-pay-
ment was given by a letter put into the post-
offlce at Utica, directed tn the defendant, at
Canandaigua. It was proved that the defend-
ant lived at Ovid, in the County of Seneca,
and had resided there for ten years past. The
excuse for the misdirection of the notice is,
that the bookkeeper, who gave it, was informed
by the cashier and some of the directors of
the Bank, that the defendant resided at Can-
andaigua.
The notice is bad. The defendant was en-
titled to information of the non-payment of
the note, and that he was looked to for pay-
ment. He had a permanent residence, for ton
years, in a different county. With ordinary
diligence, the place of his abode might have
been ascertained: and it must )»• the plaintiff's
loss, not the defendant's, that the notice was
not given. It is an essential part of the con-
tract, that the indorser shall be notified of the
JOHNS. RKP., 18.
non-payment of the note, that he may take
measures accordingly; and if any loss has hap-
pened from the want of notice, it must be borne
by the party on whom the burden of giving due
notice is thrown by law, and who has been
guilty of laches.
The case of Chapman v. Lip*combc dc Pouxll,
1 Johns., 294, was peculiarly circumstanced.
There was great diligence used in that case to
find out the defendant's residence, and the bill
was dated at Norfolk, to which place one of
the notices was directed. Here the note was
not dated at any place, and the inquiry was
very limited.
Judgment for the defendant.
Distinguished— 4 How. (U. 3.), 349.
Cited in— 16 Johns.. 221: 3 Wend., 410: 4 Wend., 401:
5 Wend.. 588; 24 Wend., 234, 360; 16 N. Y.,240; 4 How.
(U. 8.). 349.
*PALMER v. HAND. [*434
Sale* — Goods to be Paid for on Delivery — Lien
for Purchase Price — Sale by Vendee.
Whore (roods are sold to be paid for on delivery,
if, on the delivery beintr completed, the vendee re-
fuses to pay for them, the vendor has a lien for the
price, and may resume the possession of the geods.
And if. durintr the delivery, and before it is com-
pleted, the purchaser sells, or pledges them to a third
person, for a valuable consideration, but without
notice to the original vendor, the lien of the latter
will not be affected, and he may recover them from
such subsequent purchaser.
THIS was an action of trover, tried before
Mr. Justice Spencer, at the Albany Circuit,
in April. 1816.
The plaintiff was the owner of a faft, con-
sisting of plank, joist, and boards; and whilst
coming down the North River, in the autumn
of the year 1815, with the raft, one Potter
came upon the raft, and offered to buy it; the
price was agreed upon; it was also agreed that
the plaintiff should deliver it at one of the
docks in Albany, and be at the expense of tak-
ing it out of the water. Potter then applied
to the defendant, who kept a lumberyard in
Albany, to purchase the lumber which the
plaintiff had agreed to sell him; but Potter
and the defendant not being able to settle the
bargain, it was agreed that the defendant
should take and sell the lumber. The plaintiff
arrived with his raft, the next day, and brought
it to the defendant's dock, and there inquired
of one of the witnesses in the cause for Potter,
and asked if Potter was not to have more
hands to take out and pile the lumber, and said
that he had sold it to Potter. He then left the
raft, and went into the City, and at 4 o'clock
in the afternoon, at which time all the raft was
taken out of the water, and nearly all piled, a
few culling pieces excepted, the" plaintiff re-
turned and forbade any more to be piled, say-
ing that Potter had gone off. The defendant,
mi (lie same day. advanced to Potter, on ac-
count of the deposit of lumber, $100; and
also gave him an order on Wilder & Hustings,
for $150. in goods, which were, in the evening
of the same day. delivered to him. There was
no formal delivery of the lumber to Potter,
who, it was conceded, was a cheat, and had
absconded. The plaintiff proved a demand on
681
434
SUPREME COURT, STATE OK NEW YORK.
1816
the defendant to restore the lumber or pay for
it, and a refusal. The jury found a verdict
for the plaintiff, subject to the opinion of the
court on a case containing the above facts.
Mr. Van Vechten, for the plaintiff, cited
Roberts on Frauds, 165, 166, 167, 169; 1 Mod.,
137; 2 Caines. 44; 2 Johns., 17; 3 Johns., 399;
435*] 6 T. R., 54; 7 T. R., *66, 440; 3 T. R.,
469; 3 Bos. & P., 232; 3 East, 99; 2 T. R., 71 ;
3 Caines, 185.
Mr. Henry, contra,
PLATT, /., delivered the opinion of the
court:
This is an action of trover, for a quantity
of plank and scantling. It appears lhat
the plaintiff was owner of a raft of lumber,
and while descending the river opposite to
Lansingburgh, he contracted with one Potter
for the sale of the lumber, to be delivered
to Potter, by the plaintiff, on one of the docks,
in Albany, at a price agreed on, to be paid on
delivery. Potter then went to the defendant,
who keeps a lumberyard and dock at Albany,
and agreed to deliver to him the lumber of that
raft, to be sold by the defendant on commis-
sion for Potter.
Next morning, about sunrise, the plaintiff
arrived with the raft, and fastened it to the
defendant's dock. The plaintiff then told the
workmen employed there that he had sold the
lumber to Potter. One or two men began im-
mediately to pile the plank, &c., on the de-
fendant's dock, and the plaintiff "asked if
Potter was not to have more hands to take out
and pile the lumber." The plaintiff then went
into the City, and did not return again till 4
o'clock .P. M. , at which time the lumber was
almost all piled on the defendant's dock. The
plaintiff then forbade the piling of any more,
saying that Potter had absconded.
While the men were piling up the lumber,
about 10 or 11 o'clock A. M. of that day, the
defendant advanced to Potter $100, and also
gave an order for $150 worth of goods, in favor
of Potter, on account of the deposit of lumber.
The plaintiff, afterwards, demanded the lum-
ber, which the defendant refused to, deliver.
There is no doubt that, upon a contract to
sell goods, where no credit is stipnlated for,
the vendor has a lien; so that if the goods be
actually delivered to the vendee, and upon de-
mand then made, he refuses to pay, the prop-
erty is not changed, and the vendor may law-
fully take the goods as his own, because the
delivery was conditional.
As between the vendor and vendee, in this
case, I incline to the opinion that the property
in the lumber was not so vested in the vendee
as that the vendor could not legally have re-
436*] sumed it *when he came, in the after-
noon, and forbade the piling of any more
of it.
The contract with Potter was for the whole
raft, to be delivered on the dock. The vendor,
therefore, had no right to demand payment for
any part until the whole was delivered; and it
appears that he came to the place of delivery,
at 4 o'clock in the afternoon of the day on
which the raft arrived at the dock, whilst the
lumber was still in the course of delivery, and
signified his determination not to consider the
sale as absolute. He said that Potter had ab-
682
sconded, and ordered the men not to, pile any
more of the plank, &c. As 'betwee'n Palmer
and Potter there was no such delay or acquies-
cence on the part of the vendor, as would be
evidence of a credit given for the money. If
the vendor was there, and demanded payment,
as soon as'the whole lumber was piled on the
dock, that was enough to preserve his lien; and
such, I think, is the fair construction of the
evidence.
The plaintiff, in this case, seeks .to enforce
his lien against a person who has bona fide re-
ceived the property as a pledge for money and
goods advanced to Potter, to nearly the
amount of its value. Those advances were
made by the defendant while the lumber was
in a course of delivery on the dock, and be-
fore the plaintiff asserted his claim to it. But
there is no evidence that the plaintiff had any
knowledge of the negotiations between Potter
and the defendant, in regard to the lumber,
until after the plaintiff had made his election
to rescind his contract with Potter. This is a
contest, then, between two honest men, who
shall be the dupe of a swindler. The strict
rule of law must, therefore, be applied; and
the defendant cannot be allowed to stand in a
more favorable situation than Potter would
have been in, if 'he himself had withheld the
possession of the lumber, without paying the
price when demanded.
We are, therefore, of opinion that the
plaintiff is entitled to judgment.
Judgment for the plaintiff.
Distinguished— 6 Cow., 115. .
Cited in-8 Wend., 261; 15 Wend., 225; 22 Wend.,
664; 1 Ed w., 144; 5 N. Y., 4B; 18 N. Y., 555; 28 Barb.,223;
47 Barb., 650; 48 Barb., 169; 7 Bos., 580; 3 Duer, 316: 5
Duer, 340; 2 Hall, 568; 1 Daly, 27; 1 E. D. Smith, 198;
4 Wash,. 594; 44 Mo., 84; 32 N. J. L., 469.
*THE PEOPLE v. DUNLAP. [*437
Administrators — Action Against Surety — Non-
payment of Judgment Against Administrator
— Surety Liable to Creditors for Maladmin-
istration.
In an action against the surety on an administra-
tion bond, it is sufficient for the plaintiff to state
that goods, chattels and sums of money, of the de-
ceased, to a large amount, to wit: the amount of,
&c., had come into the hands of the administratrix,
which she had converted and disposed of to her own
use, &c., the creditor not being presumed to know
precisely what goods, &c., the administratrix had,
and this fact lying more properly in the knowledge
of the defendant.
The non-payment of a judgment obtained against
the admin|stratrix may be assigned as a breach of
the condition of such a bond.
The surety in an administration bond is liable for
a maladministration of the effects of the deceased,
and the condition of the bond is not to be restricted
merely to the exhibiting of an inventory within six
months from the date, into the office of the surro-
gate of the county.
And such bond may be put in suit against the
sureties at the instance, and for the benefit of a
creditor.
Citations-1 Salk.. 316; Cowp,, 140; 3 Atk., 248; 1
N. R. L., 447, sec. 10 ; 2 Mass., 117 ; 1 Wash., 31.
was an action of debt on an adminis-
-L tration bond against the defendant, as
surety. The declaration stated that the de-
fendant, together with Anne Dunlap and
JOHNS. REP., 13.
1816
THE PEOPLE v. DUNLAP.
437
William Harrowell, did, on the 8th of Febru-
ary, 1798, by his certain writing obligatory,
acknowledge himself bound to the people of
the State of New York, in the sum of $860 ;
the condition of which bond wa-s, among other
things, that if the said Anne Dunlap. adminis-
tratrix of Samuel Dunlap, deceased, did make,
or cause to be made, a true and perfect inven-
tory of all and singular the' goods, chattels
ana credits of the deceased, and exhibit, or
cause it to be exhibited, into the office of the
surrogate of the County of Montgomery, at or
before the expiration of six months from the
date of the bond, and the goods, chattels and
credits of the deceased, should well and truly
administer, according to law, and should,
when requested, make, or cause to be made, a
just and true account of administration, then
the obligation to be void. The breaches as-
signed were, that Anue Dunlap had not made
an inventory and exhibited the same within
six months, into the office of the surrogate,
and had not well and truly administered, ac-
cording to law, the goods. &c., of the de-
ceased, but that goods, chattels and sums of
money of the deceased, to a large amount, to
wit : the amount of $.">00 had come into her
b:inds. which she had converted and disposed
of to her own private use and benefit, and had
neglected and refused to pay the just debts of
the deceased, and particularly a judgment ob-
tained against the administratrix in favor of
•one Samuel Dickson. as hereinafter mentioned.
And the plaintiff assigned for further breach,
that the intestate, being indebted to Samuel
Dickson in the sum of $100, brought an action
against the administratrix in the Court of
Common Pleas of Montgomery County, where
in the defendant pleaded plene adminixtravil ;
and on the trial in that Court, in January
Term, 1813, a judgment was given in favor
of the plaintiff for $53.78, to be levied of
the goods and chattels which were of the
intestate, at the time of his death, in the
hands of his administratrix, to be adminis-
tered : on which judgment &Ji. fa. was issued
438*] to the 'sheriff of Montgomery, to levy
of the goods and chattels of the intestate,
which was returned nuWi bniut ; and the
plaintiffs averred that that judgment remained
unsatisfied, and that divers goods and chattels
of the intestate came into the hands of the ad-
ministratrix more than sufficient to satisfy the
judgment, to wit: of the value of $500, yet the
administratrix did not well and truly adminis-
ter the same, and did not pay the judgment of
Dickson with the avails of the goods, &c , but
converted the same to her own use.
The defendant, having craved oyer of the
condition of the bond, and set it forth, plead-
ed, as to the breach for not exhibiting an in-
ventory within six months, that an inventory
had been made and exhibited ; and as to the
other matters in the declaration contained,
specially assigned for causes of demurrer, that
it did not appear by the declaration that the
defendant had ever been cited to render an ac-
count of her administration before the surro-
gate of Montgomery or the Court of Probates ;
and that the declaration did not state, with
sufficient certainty, wherein the defendant had
neglected to administer, and that the plaintiffs
had alleged the non payment of the judgment
JOHNS. RKP., 18.
in the declaration mentioned, as one of the
breaches of the condition of the bond.
The plaintiffs replied, taking issue on the
defendant's plea, and joined in demurrer.
Mr. C. M. Lee, in support of the demurrer,
contended : 1. That the assignment of the
breach, as to the converting of goods and
chattels, &c., by the administrator, to his own
use. amounting to $500, &c., was too general
and indefinite for the defendant to take issue
thereon. The nature and kind of goods, &c.,
ought to have been particularly specified.
(Cro. Eliz., 837; 2 Lev., 179, 195 ; 2 Vent..
174, 262; 2Saund., 879.)
2. That the non-payment of the judgment
debt to Samuel Dickson was improperly as-
signed as a breach. The payment of debts is
no part of the condition of the bond, which is
merely for a due delivery to the surrogate of a
true inventory or accotfnt. (Toller's Law of
Exec'rs, 495, 496; Com. Dig Adm., C., 8;
Lutw.. 882; 1 Salk., 316 ; 4 Burns' Eccl. L.,
428, 430, 443 ; Cowp., 140; 3 Atk.. 248.)
8. That a (kcftttacit cannot be assigned as
breach of the bond.
Mr. Talent, contra, insisted that if there was
any defect in the assignment of the first
breach, it was matter of form, and ought to be
taken advantage of by a special demurrer.
What goods or chattels have been taken and
applied to his own use, must *be [*4JJ1>
known to the defendant, but the plaintiff or
relator cannot be supposed to have that
knowledge. (P. M. 6. of U. States v. Cochran,
2 Johns., 413.)
As to the other objections ; it is true that
Lord Holt, in the case of the Archbishop of
Canterbury v. WiU», 1 Salk., 315, 316, said that
the creditor shall not take an assignment of
the bond, and assign for a breach the non-pay-
ment of a debt to him, or a dfvastavit ; and
that the words "well and truly administer"
are to be construed the bringing in the account
by the administrator. This is the case relied
on by Toller, and is referred to in Bacon's
Abr. (2 Bac. Abr., old edit., 409), as deciding
merely that executors are not, of themselves,
bound to take notice of debts. In the case in
Lutwyche, of The Archbishop of Cant. v. Brown,
there was a demurrer to the replication ; and
the report of the case contains nothing
but the pleadings, with a note, that judgment
was given for the plaintiff, which was after-
wards reversed in the Exchequer Chamber, on
the ground that the non-payment of a debt
was not a breach within the condition of the
bond. There is no discussion of the law on
the subject.
In the case of the People v. Peaxc, 2 Johns.
Cas., 376, which was an action on an adminis-
tration bond, the breach assigned was a detox-
tacit, and the objection that such a breach
could not be assigned, appears never to have
been made. In the courts of other stales,
where actions have been brought on similar
bonds, for the benefit of creditors, no doubt
has been entertained that the suit would lie in
case of a deta*tftvit. (1 Wash.. 31 ; 9 Mass.,
114, perSewell. -/.; Id., 119. 870; 1 Bny, 32«.)
Mr. 1st, in reply, said that, as to the cases
decided in the courts of other states, it did not
appear that thev had similar statutes on the
subject. Our Statute (I N. R. L., 444, 448,
CMS
439
SUPREME COURT, STATE OF NEW YOUK.
1816
sess. 36, cb. 79, sees. 11, 12) gives another and
effectual remedy. The judge of the Court of
Probate or surrogate has power to call admin-
istrators to account, and to compel them to
settle and make distribution of the intestate's
estate ; and in case of neglect or refusal to
perform what is required of them, they may
be imprisoned. In the State of Massachusetts,
a creditor was expressly authorized, by
statute, to bring an action on the bond, in such
case.
SPENCER, J., delivered the opinion of the
court :
The defendant's counsel have made three
objections to the declaration.
44O*] *1. That the breach, in stating that
goods, chattels and credits of the deceased, to
the value of $500, have come to the hands and
possession of the administratrix, is bad, in not
setting forth the kind of goods specially ;
2. That the non-payment of the judgment
cannot be assigned as a breach of the condi-
tion ; and,
3. That no action can be maintained for not
duly administering the goods and chattels of
the intestate.
As to the first point ; in trespass or trover,
it is necessary, undoubtedly, to state, with
sufficient certainty, the goods taken or con-
verted ; bu'> in these cases, the plaintiff is pre-
sumed to know his own goods, and the par-
ticulars of those for which he sues. In the
present case, the plaintiff is not to be pre-
sumed to have knowledge of the. goods, chat-
tels and credits of the intestate. In looking
into precedents (3 Chitty, 609) of replications
to the plea of plene adminixtravit, I have not
met with an instance in which the goods are
specially mentioned. They are all general,
"that the executor or administrator had divers
goods and chattels which were of the deceased,
at the time of his death, in the hands of the
representative to be administered, of great
value, to wit:" &c. There is no reason why a
declaration founded on the maladministration
of the administrator should be more special
than a replication to a plea of pUne adminis-
travit. I consider the true reason why the
amount need not be precise to be, that the
creditor, not being presumed to know precise-
ly what goods and chattels the executor or ad-
ministrator had, may state, generally, that he
had them of great value ; the fact alleged
lying more properly in the knowledge of the
defendant than the plaintiff. (3 East, 85 ; 8 T.
R., 459 ; 2 Saund., 411, in note.)
The second point does not strike me with
any force; I think it proper to state in the
breach the debt actually unpaid, and for
which the suit is brought. No reason has
been assigned against this, and its propriety is
manifest ; the judgment set forth ascertains
the debt in a conclusive manner, and the
sheriff's return of nulla bona on the execution
is evidence that there were no goods or chat-
tels of the intestate out of which the same
could be satisfied.
As to the third point. Lord Holt is made to
say, in the case of The Archbislwp of Canterbury
v. Wills, I Salk., 316, that though, by the
words of the condition, the administrator is to
administer well and truly, that shall be con-
684
strued in bringing his account, *and [*44 I
not in paying the debts of the intestate, and,
therefore, a creditor shall not take an assign-
ment of the bond, and sue it, and assign for a
breach the non-payment of a debt to him, or a
deca&tamt committed by the administrator, fur
that would be needless and infinite. This
case is referred to by the elementary writers,
almost exclusively, to maintain the proposition
that a creditor of the intestate cannot cause
the administration bond to be put in suit for
not well and truly administering. I do not
believe that to be the law now, even in En-
gland. In the case of The Arclibisliop of Canter-
bury v. House, Cowp. , 140, a suit was brought
upon such a bond at the instance of a creditor,
and by the consent of the Archbishop, and the
very point was taken, on a motion to stay pro-
ceedings, that he could not authorize a credit-
or to put the bond in suit, but only the next of
kin. Lord Mansfield, after stating the condi-
tion of the bond, and that it was agreed that
the ordinary might permit his name to be
used at the instance of the next of kin, says :
"In like manner, if such application is made
by a creditor, I see no reason why he should
not have the same privilege ; and I know of
no authority which says that the ordinary can-
not empower him to put the bond in suit ; it
is ex debito justitice that he ought to do so ; for,
though a creditor has no concern in the latter
part of the condition, namely, the distribution
of the surplus money among the next of kin,
yet he is most materially and principally inter-
ested in the administrator's delivering in a
true inventory, and in the due administration
of the effects ; " and all the judges concurred
in refusing the motion. In the case of Oreeu-
side et al. v. Benson et at., 3 Atk., 248, Lord
Hardwicke sanctioned a writ and judgment
upon a bond of administration, at the instance
of a creditor, and made it the basis of his de-
cree. Our Statute (1 N. R. L., 447, sec. iO)
requires the judge of probate and the surro-
gates, upon granting admininistration, except
in certain specified cases, to take of the person
to whom administration shall be granted suffi-
cient bonds to the people of this State, with
two or more competent sureties, in such pen-
alty as such judge or surrogate shall think
reasonable, respect being had to the value
of the estate. The condition prescribed is,
among other things, well and truly to admin-
ister, according to law, the goods, chattels and
credits of the deceased ; the same section pro-
vides, in case the bond shall become forfeited,
that it shall be lawful for the judge of probate
or surrogates granting administration to cause
*the same to be prosecuted, at the re- [*442
quest of the party grieved by such forfeiture.
The question recurs — what is a forfeiture of
the bond ? Most certainly an unfaithful ad-
ministration of the estate of the intestate, in
not applying the goods, chattels and credits
of the deceased to the payment of his debts ;
the law enjoins it on an executor or adminis-
trator to collect the estate of the testator or in-
testate, to convert it into money, to pay the
funeral expenses first, then the debts he owed,
and then legacies; after which, in case of in-
testacy, the residue is to be distributed among
the next of kin, according to the Statute. A
conversion of the effects of the intestate to the
JOHNS. REP., 13.
1816
BUTTERWORTH V. SoPER.
442
private use of the administrator, leaving the
debts unpaid, is a violation of the trust re-
posed in the administrator, and a breach of
the condition of the bond in not administering
the goods, chattels and credits according to
law. And we have seen that the judge of pro-
bate or surrogate, in case the bond becomes
forfeited, may, at the request of the party ag-
grieved, cause the bond to be prosecuted ; and
a creditor of the intestate is a party emphatic-
ally aggrieved by a maladministration of the
estate, by which he has lost the means of get-
ting his debt paid. How it could ever have
entered the mind of any person that the con-
dition of such a bond was satisfied by merely
exhibiting an inventory within six months, is
to me very extraordinary.
The penalty of the bond and the sufficiency
of the sureties are to be taken in reference to
the value of the estate of the intestate, and it
is made a distinct and substantive part of the
condition that the estate, thus committed to
the administrator, shall be administered ac-
cording to law ; and, undoubtedly, one of the
primary objects of the Legislature, in author-
izing the granting of administration and taking
a bond, was to secure the payment of debts
due the intestate. And yet we are told the
condition is performed by the mere act of ex-
hibiting an inventory, so far as respects the
sureties. It is true the surrogate has power
to call the administrator to account, and to
make distribution, after the debts, funeral
charges and all expenses are first allowed, and
he may coerce obedience by imprisonment :
but" the surrogate has no jurisdiction over the
sureties ».n any other way than, by directing
their bond to be sued. All this is no satisfac-
tion of a creditor's debt, and in case of the
wasting the estate, and the insolvency of the
administrator, the creditor is remediless, unless
443*] *he can obtain a remedy on the bond
against the sureties. I have not the least
doubt that, upon a just construction of the
condition of the bond, in reference to the
requisition of the statute, as to the manner of
taking it, and the authority to cause it to be
sued at the request of the party aggrieved, the
sureties are answerable for the wasting of the
estate by the administrator, and the non-pay-
ment of the debts of the intestate, if there be
assets.
Were it necessary to cite authorities in sup-
port of this construction, it will be seen that
my view of the case is sanctioned by the cases
in"9 Mass., 117, and in 1 Wash., 81.
The plaintiff must have judgment on the
demurrer.
Judgment for the plaintiff.
Cited in -fl Hill. 678; 2 Edw., 63; 12 Barb.. 576; 28
Uurb., 361 ; 28 How. Pr., 320 ; 2 Kob., 564 ; 2 Sand., 84.
TN ERROR, on certioran to a justice's court.
The defendant in error brought an action of
trespass in the court below against the plaint-
iff in error, and declared, for that he had,
without authority, issued a written order com-
manding a constable to levy a fine for the de-
linquency of the son of the plaintiff below, as
a soldier in the militia ; in pursuance of which
order, the constable took and sold the^ cow of
the plaintiff. The defendant below pleaded
the general issue, and the plaintiff having
proved his declaration, the defendant offered
to prove that he issued the warrant for collect-
ing the fine, in pursuance of the sentence of a
regimental court martial. The plaintiff ob-
jected that this Justification was inadmissible
under the general issue, and the justice gave
judgment for the plaintiff below.
Per Curiam. There is no error, and the
i judgment must be affirmed. The Statute au-
i thorizing such defense under the general issue
does not extend to this case.
Judgment affirmed.
Cited in— Hemp.. M.
BUTTERWORTH «. SOPER.
Trespass — Against Militia Officer.
In an action of trespass against an officer of the
militia, who has issued a warrant for collecting a
fine for delinquency, pursuant to the order of a
regimental court-martial, the defendant cannot
give this special matter in evidence us a justifica-
tion, under the general issue.
JOIINR. REP., 18.
*SUYDAM AND WYCKOFF [*444
KEYS.
Taxation — Support of Common Schools — Non-
residents not Liable for — Trustees and Col-
lector, when Trespassers.
Persons not inhabitants of a town are not liable
to be taxed for the support of common schools in
that town (1 X. R. L., 261) : and if a tax be assessed,
and levied upon the property of such non-resident,
not only the trustees who issue the warrant, but
also the collector who executes it, are. trespassers.
The trustees having but a special and limited au-
thority, the officer is bound to see that he acts
within the scope of their legal powers.
But an officer may justify under erroneous pro-
ceedings, where there is no defect of jurisdiction.
Citations— 1 N. R. L.. 261 ; 1 Cai., 91 ; 10 Co., 76: 1
H. Ml.. 68 ; 4 Taunt., 634.
THIS was an action of trover, to recover the
value of four barrels of flour, which had
been levied upon and sold by the defendant,
by virtue of a warrant from the trustees of the
twelfth school district in the town-of Munroe.
directing the defendant to collect from the
plaintiffs the sum of f48, which had been as-
sessed on them, for the purpose of building a
school house.
The plaintiffs were the owners of mills, and
other property, in the town of Munroe, where
their business was conducted by an agent, but
they actually resided in the City of New York.
The agent cf the plaintiffs had, before the sale
of the flour, sold to the defendant timber,
which was applied towards building the school-
house, and at the time of the sale the defend-
ant credited the plaintiffs with the price of the
timber on <he assessment, and sold the flour
for the balance, which was $25. The agent
of the plaintiffs forbade the sale, and denied
the justice of the demand. The defendant
NOTE.— Ministerial officers— How far proce** pro-
tects. See Warner v. Shed, 10 Johns., 138, note, arid
other tifitn there cited.
444
SUPREME COURT, STATE OF NKW YORK.
181ft
justified under the warrant, before mentioned,
under the hands and seals of the trustees of the
said school district, directing him to collect
from each of the inhabitants of the district the
several sums of money written opposite to their
names in the tax list annexed to the warrant,
and in case of neglect or refusal, to levy on
the goods and chattels of the delinquent. The
jury found a verdict for the plaintiffs for $40,
subject to the opinion of the court on the above
case.
Mr. Ross, for the plaintiffs, contended that
no person but a resident inhabitant of the dis-
trict was liable for the school tax, under the
Act. (35 sess., ch. 242, sec. 8; 1 N. R. L., 261.)
Though the plaintiffs had real estate in the
district, the tax was no lien on the land.
The levying of this tax being illegal, and
there being a want of jurisdiction, the parties
concerned in the collecting of the tax are tres-
passers. (Smith v. Shaw, 12 Johns., 267.)
Mr. Storey, contra, insisted that admitting
the assessment to have been improperly made,
yet the defendant was not liable to this action.
In Henderson v. Brown, 1 Caines, 92, this
445*J court decided that trespass *would not
lie against an officer for executing a warrant
of distress, though the assessment was erro-
neous.
As to the principal point, he urged that the
plaintiffs, though not actually residing within
the district, yet having property there, were
liable to the assessment under the Act. Sir
Edward Coke, in his Commentary on the 22
Hen. VIII, ch. 5, relative to the repairs of
bridges, by the inhabitants of the shire, says
that as to the words "inhabitants of the said
shires," that though a man dwells in a foreign
county or town, yet if he has lands or tene-
ments in his own possession or manurance in
the county where the decayed bridge is, he is
an inhabitant within the meaning of the Stat-
ute; so, if a man dwelleth in a foreign shire,
or town, and keeps a house and servants in
another shire or town, he is an inhabitant in
each shire, &c., within the Statute: HcMtalio
dicitur a habendo, &c. And he gives the same
construction to the word "inhabitants", in Jef-
frey's case, 3 Co. 66, 67, relative to the poor rates.
So, in Leigh v. C/uipman, 2 Saund., 423, Chief
Justice Hale gave the same construction to the
word, in a case arising under the Statute of
Hue and Cry; and in Atkins v. Davis, Culde-
cot's Cases, 315, the proprietors of the London
Bridge Water Works, who had only their offi-
ces, wheels, and works, within the ward in
which they had been assessed, under the Stat-
ute of 27 Eliz., ch. 13, sec. 5, were adjudged,
in the Exechequer Chamber, to be inhabitants
of the ward, on the authority of Lord Coke
and Lord Hale.
PLATT, J., delivered the opinion of the
court : •
This is an action of trespass, for taking four
barrels of flour from the mill of the plaintiffs,
in the town of Munroe, in Orange County.
The defense is a justification, by virtue of a
warrant under the hands and seals of the
trustees of the school district (which included
the mills of the plaintiffs), for collecting a tax
which had been voted by the freeholders and
inhabitants of the district, for the purpose of
building a school house, according to the pro-
visions of the 8th section of the Act for the Es-
tablishment of Common Schools. (1 N. R. L.,
261.)
By that section of the Act, the freeholders
and taxable inhabitants of the school district
are authorized to vote a tax, for that purpose,
"on the resident inhabitants of such district;"
and to choose three trustees, who are required
"to make a rate bill or tax list which shall raise
the sum voted on all the taxable inhabitants of
said district, agreeably to the levy on which
the town tax was levied the preceding year,
and annex to said tax list, or *rate bill, [*446
a warrant," to the collector of the district to
collect the tax accordingly.
In this case, the amount of the tax was reg-
ularly voted by the freeholders and inhabitants
of the district; and the trustees made out a
warrant to the defendant as collector, with a
rate bill or tax list annexed, in which the
plaintiffs are set down as inhabitants of the
said district (according to the form prescribed
in the Act), with a tax of $48 assessed to them.
The case admits that the plaintiffs were not
resident in that district, but actually resided
in the City of New York.
There is no doubt that, according to the true
construction of the Common School Act. no
persons are liable to be taxed for any of the
purposes mentioned in the 8th section of that
Act, except actual inhabitants of the school
district. The words "resident inhabitants"
and "taxable inhabitants" of the district are
used synonymously in that section.
The tax was, therefore, illegally imposed on
the plaintiffs, by the trustees of that school
district. The only question of any difficulty
is, whether the collector who executed that
warrant can legally claim protection under it.
I incline to the opinion that the collector (as
well as the trustees) is a trespasser.
The authority of the trustees was special and
limited; and in assuming a right to tax the
plaintiffs, they exceeded the powers vested in
them by law. The rule is wisely settled, that
in such cases the subordinate officer is bound
to see that he acts within the scope of the legal
powers of those who command him.
Experience has shown that the safety of
private rights will not admit of a relaxation
of this rule; and the uniform current of En-
glish authorities has supported it with jealous
caution. The principle is sometimes harsh in
its application; but in order to be efficacious
and certain, it is necessary that it should be
uniform. Lawless power is never so danger-
ous as when exerted by public officers accord-
ing to the forms of law. The remedy for sucl^
abuses ought to be direct and ample. It is,
therefore, insufficient to allow an action against
the trustees only; they may be insolvent, or
beyond the reach of process, while the officer
who is the immediate trespasser is fully able to
respond.
The case of Henderson et al., v. Brown, lk
Caines. 91, is clearly distinguishable from the
present case. That was an action of trespass,
against a collector for levying a distress for a"
tax on the theater in New York; which had
been assessed- as a dwelling house, when it
*ought to have been assessed as land [*447
with the theater upon it. There was no want
JOHNS. REP., 13.
1816
JACKSON v. STONE.
447
of jurisdiction, nor excess of jurisdiction, in
that case. It was an erroneous, and not a void
iiH-nt; and therefore the collector was
justified.
In the case of TJie Marshal*ea, 10 Co., 7'J. Sir
Edward Coke, in exemplifying the distinction,
in this respect, between a proceeding eoram
Mnjudtce, and a proceeding tncerno ordine, or
erroneous, says: "If the Court of Common
Pleas, in a plea of debt, doth award a capias
against a duke, earl, &c., which, by the law,
doth not lie against them, and the same ap-
peareth in the wit itself, yet if the sheriff arrest
them by force of the capias, although that the
writ be against law. notwithstanding, inas-
much as the court hath jurisdiction of the cause,
the sheriff is excused. ' In that ca.se, a capias
was an irregular process. The proceeding
should have been by summons and distringa*;
yet, as the court had jurisdiction, in actions of
ilrl>t, against peers of the realm, the sheriff was
justified under the capias, although peers were
not amenable in that mode.
ID this case, the property of the plaintiffs
was not taxable in any degree, nor under any
modification. The power of assessing the tax
is expressly limited to the property of "resi-
dent inhabitants of the school district;" and it
i> admitted that the plaintiffs are not persons
of that description. The cases of Harrison v.
Bulcock, dc., 1 H. Bl., 68, and Mayor v.
Knowles, 4 Taunt., 634, are analogous. We are.
accordingly, of opinion that the plaintiffs are
entitled to judgment.
Judgment for the plaintiffs.
Overruled— 5 Wend.. 178; 7 Wend., 93: 5 N. Y., 382;
2 Abb. (U. S.), 101.
C§edin-19 Johns., 31; 5 Cow., 181; 11 Wend., 94:
1« W.-nd.. 42, 518; 15 N. Y .. 331; 16 N. Y.. 219; « Lans.,
2Htt; 19 Hun. 195; 5 Barb.. 611 ; 19 Barb.. 23: 27 Hurl..,
3<t; 4 Leg. Obs., 223; 5 Mason, 503; Itt Mich., 251.
JAMES JACKSON r>. STONE.
Ejectment — Defendant Giving Possession to Third
Party — Mesne Profits.
Where, during the pendency of an action of
ejectment, the defendant gives up the possession to
a third person, and afterwards the plaintiff recov-
ers judgment, such third person is liable for the
iin*nt pn iin - ; the recovery in ejectment is conclu-
sive evidence against him, and he cannot set up a
title in himself as a bar.
THIS was an action of trespass, for mexne
profits, which was tried before Mr. Justice
Plait, at the Green Circuit, in September,
1815.
The plaintiff, in this suit, commenced two
actions of ejectment, in 1810, on the demise of
448*J Joseph Alwood, against Samuel *Bald-
win and Benjamin Baldwin, for lands in
Windham, in the* County of Greene, in which
judgments were recovered, in October Term,
1813, whereon writs of possession were issued,
which were executed in December following.
Previously, however, to these judgments be-
ing obtained, the defendant had purchased
from one Scott about twenty acres of the
premises, for which he had received a deed in
lee, with warranty, and called UJXHI the Bald-
wins to deliver to him the possession of the
land contained in his deed, which they agreed
JOHNS. RKP., 13.
to do, on his allowing them the appraised
value of their improvements ; they were ap-
praised; the defendant not being present, at
$140, and the Baldwins abandoned the pos-
session of about twenty acres to him, and re-
mained in possession of the residue until they
were turned out by the writs of possession be-
fpre mentioned. The defendant, on this
trial, showed a perfect title to the premises
which he claimed.
A verdict was found for the plaintiff, sub-
ject to the opinion of the court on a case to be
made, which was now submitted to the court
without argument.
Per Curtain. The defendant, as respects the
title to the premises, stands in the same situa-
tion as the Baldwins, from whom he took the
possession of the parcel of land for which the
action of ejectment was brought. The de-
fendant in an action of ejectment cannot, by
giving up the possession to a third person, af-
ter the commencement of the suit, defeat the
effect of the recovery. It is perfectly well
settled that a recovery in ejectment, as far as
respects the right to mesne profits, is conclu-
sive of the title, as to the land possessed by
the defendant when the action was brought,
into whose hands soever it may subsequently
pass, by transmutation of the possession from
the defendant in ejectment.
The plaintiff must have judgment.
Cited In— 8 Cow., 294 ; 8 Wend., 594 ; 66 N. Y.. 418 ;
67 N. Y., 515; 44 Ind.. 295.
*ALDER P. GRINER. [*44»
Venue in Transitory Cases^-Declaration on
Written Instrument — Variance.
Where, in a declaration upon an instrument in
writing, no venue is stated in the body of the dec-
laration, but only in the margin, and no place is
alleged at which the instrument was executed, it is
no variance if the instrument produced in evidence
bears 'Int.- at a different place from that in which
the venue is laid.
Itseeuis that it would have been otherwise, had a
place been stated in the body of the declaration.
Citations— Cowp.. 176 ; 3 T. R., 387 : 11 East, 118.
THIS was an action of covenant which was
tried at the New York sittings, in April,
1816, before His Honor, the Chief Justice.
The declaration set forth articles of agree-
ment, made the 30th of April, 1810, between
the plaintiff and defendant, by which the lat-
ter agreed to work for the plaintiff, as a glass-
man ; and the brcuch was that the defendant
would not work for the plaintiff according to
the articles of agreement. A venue was laid
in the margin of the declaration, to wit : "City
and County of New York ;" but there was no
venue stated in the body of it. At the trial,
the plaintiff gave in evidence the articles of
agreement upon which the action was founded,
bearing date the 30th of April, 1810, and
which concluded thus : " Done in Boston,
in the day and year above mentioned." The
counsel for the defendant then moved for a
nonsuit, on the ground of a variance between
the instrument declared upon and that given
in evidence ; as the one must be intended to
have been executed in the City and County of
OS 7
449
SUPREME COURT, STATE OP NEW YORK.
1816
New York, and the latter appeared, on the
face of it, to have been executed in Boston.
The cause, however, was permitted to go to
the jury, who found a verdict for the plaint-
iff.
A motion was made to set aside the verdict,
and for a new trial.
Mr. C. M. Lee. for the defendant, contended
that no venue being stated in the body of the
declaration, the place of the contract must be
referred to that given in the margin (1 Chitty,
PI., 279 ; 9 Johns., 81), which is New York;
and no contract, under this declaration, can
be given in evidence, but one dated in New
York. (1 Chitty, PL, 280, 283 : 2 Wills., 399;
Cro. Jac., 96 ; 1 Cowp., 177 ; 2 Ld. Raym.,
1040 ; 10 Mod., 255.) But the instrument of-
fered in evidence, in this case, was dated at
Boston ; there was, therefore, a fatal variance.
Mr. T. A. .ETmm^.contra.insisted that the aver-
ment of the place was not necessary to give
jurisdiction, for it could not be traversed.
The declaration contains no averment that the
contract was made in New York, and its ap-
45O*] pearing to have been *made in Boston
is no variance. Reference is made to the
margin to help a defect of venue in the body
of the declaration : such reference is never
made to injure the plaintiff. (3T. R., 387.)
The case, then, stands precisely as if no venue
at all was stated, and this is a defect which
can only be taken advantage of on a special de-
murrer. Had it been averred that Boston
was in New York, the court would not have
allowed it to be traversed or contradicted.
Then why not intend, when nothing is said,
that Boston is New York ?
SPENCER, J., delivered the opinion of the
• court :
The instrument given in evidence is dated
at Boston, and there is no venue in the body
of the declaration ; in the margin there are
the words " City and County of New York."
The rule as to venues is, that when a tran-
sitory matter has occurred abroad, it may, in
general, be stated to have occurred in an En-
glish county, without noticing the place where
it really happened ; but if the real place
abroad be stated, which is necessary when the
instrument declared on, bears date there, it
should be shown under a scilicet, that it hap-
pened in an English county. The reason and
effect of this rule is given by Lord Mansfield,
in Fabrigasv. Mostyn, Cowp., 176, thus : "If
a declaration state a specialty to have been
made at Westminister, in Middlesex, and on
producing the deed it bears date in Bengal,
the action is gone, because it is such a vari-
ance between the deed and the declaration as
makes it appear to be a different instrument."
After a trial, a bad venue, or the want of
one, is cured by the Statute of Jeofails ; and
the venue in the margin will help, but not
hurt. (3T. R.,387.)
Had the declaration, in this case, stated the
deed to have been made at New York, we
should, probably, have been bound by author-
ity, whatever may have been our private opin-
ion's as to the wisdom of the rule, to set aside
the verdict on the ground of variance ; but it
is not alleged that the deed was executed in
New York ; the words in the margin are
688
not such a direct averment of the facts as to pro-
duce a variance ; the place stated in the margin
is intended for the venue, or place from whence
the jury are come, but not as a matter of local
description of the execution of the deed. (11
East, 118.)
Motion denied.
Cited in— 2 McLean, 71.
*GRIM
[*451
THE PHCENIX INSURANCE COMPANY.
Marine Insurance — Loss by Fire — Insurers not
Responsible for Negligence not Amounting to
Barratry.
A vessel was Insured, among other risks, against
fire ; during the voyage, a seaman carelessly put up
a lighted candle in the binnacle, which took fire,
and communicating to some powder, the vessel was
blown up, and wholly lost ; it was held that the in-
surers were not liable for the loss.
Insurers are not responsible for the fault, negli-
gence or misconduct of the master or mariners, not
amounting to barratry.
A loss occasioned by the mere negligence or care-
lessness of the master or mariners, does not amount
to barratry, which is an act done with a fraudulent
intent, or ex maleficio.
Citations— 8 East, 138; 2Cai., 71; Marsh, on Ins.,
421 ; Marsh., 445, 446, 456 ; 1 T. R., 330 ; 8 Johns., 227 ;
2 Johns. Cas., 180 ; 8 Mass., 308 ; Park, 24.
was an action on a policy of insurance,
J. on the schooner Melinda, from Philadel-
phia to New York. The policy contained the
usual enumeration of the hazards insured
against, such as perils of the sea, fire, barra-
try of the master and mariners, &c. The ves-
sel, dropped down on the 12th of October, 1811,
below tlje City of Philadelphia, where she took
in 136 kegs of gunpowder, which were all
stowed in the hold ; and on the 14th of Octo-
ber, while she was in the Delaware, 40 kegs
of gunpowder were taken out of the hold, and
36 kegs were put into the cabin, and stowed
close up to the companion way, and some tal-
low, which had been upon deck, was put into
the hold, in the place of the powder so taken
out, which was done, as the witness under-
sjood the captain, to make better stowage. It
appeared that the vessel was very fully laden.
The powder in the companion way, which
leads to the main or forward cabin, reached to
the top which covered the companion. A tier
of casks or hogsheads of gin were placed
against the companion, and across the deck
from one side to the other. The companion
projects above the deck about a foot, and the
binnacle was placed on the quarter-deck, near
the companion way, the plank of which,
toward the binnacle, was about one inch and a
half thick, and that of the binnacle, about an
inch thick. The main or forward cabin was
entirely filled with goods, and there was no
access to it, it being separated from the after
cabin by a bulkhead, extending across the
cabin ; and the people descended to the after
cabin through a scuttle in the deck. The ves-
NOTE. — Barratry — Definitions of — Insurance
against. See Cook v. Com. Ins. Co., 11 Johns., 40
note.
JOHNS. REP., 13.
1816
GRIM v. PIKENIX INS. Co.
451
.-sel, while proceeding down the bay. was
forced back by a storm as far as Bombay
Hook Island, where she came to anchor in the
night of the 10th of October. It rained hard
during the night, accompanied with thunder
-and lightning, and the storm continued until
the morning of the 17th of 'October; and
al>' mi 5 o'clock P. M. the vessel blew up, and
«very person on board perished, except Will-
iam Saxton, a passenger, who had never been
a voyage before. At the trial, he was called
as a witness for the defendants, and a ver-
•dict was taken for the plaintiff, subject to
the opinion of the court, whether, under the
4.">t3*] circumstances *of the loss, as stated
by this witness, the plaintiff was entitled to
recover. In addition to the facts above men-
tioned, the witness stated that a candle was
kept burning in the binnacle every night, from
the time the vessel left Philadelphia until she
was lost. In the night of the 16th of October,
the watch on deck came down into the fore-
•caslle, where the witness was, and told one of
the crew, who was to take the next watch, to
go on deck and take his watch, and to take
care of the candle ; that the candle in the bin-
nacle had burnt down so far into the socket of
the candlestick that the socket had become so
hot he could not put another candle into it,
and had stuck the candle to the side of the
binnacle, it blowing so hard that he could not
keep it burning on the outside. The seaman
•went grumbling on deck, and in about twenty
minutes afterwards the mate came to the fore-
•castle, and cried out to the men to turn out,
all hands, for the binnacle was on fire. They
all got on deck, and the witness immediately
after them ; they looked for the draw bucket,
but the deck was so much lumbered that it
was one or two minutes before it was found.
One of the crew drew a bucket of water
And handed it to the mate, as the witness be-
lieved, who was standing nearest the binnacle ;
and while the mate was in the act of throwing
the water, the explosion took place. The wit-
ness added, that when he first came on deck
there did not appear to be a greater light in
the binnacle than what a candle would give ;
th:it there was a sail which covered the com-
panion way, and as the mate pulled away the
sail, the witness discovered it to be on fire; and
as the mate drew the sail, and threw the water,
the witness heard a rumbling noise, and was
not sensible of anything afterwards, until he
found himself climbing up the mast of the ves-
sel, which was sinking in the water. The wit-
ness said it was the constant usage to bring
powder in vessels employed in this trade, and
to store it either in the cabin or hold, as was
most convenient.
Mr. Slotaon, for the plaintiff, contended : 1.
That the policy, being against fire, covered all
accidents by fire not occasioned by the fraud
of the insured or his agents. Marshall (Marsh,
on Ins., 494 ; 1 Burr.. 841 ; 4 T. R., 206) says
there can be no doubt but that a loss occa-
sioned by fire, which is merely accidental, and
not imputable to any fault .of the master or
mariners, is a loss within the policy. He does
not state whether, by the English law, the in
453*1 surer would be liable if the *fire hap-
pened by the fault of the master or mariners.
Etnerigon (Emerig., torn. 1, p. 434) lays down
JOHNS. RBP., 18. N. Y. It., 5.
the rule that the insurers are liable for losses
by fire ; but he. says that at Marseilles they
are not liable for a loss by fire, occasioned by
the fault of the master or mariners, unless they
have, at the' same time, insured against barra-
try (Pothier, Trait, de* A*»., No. 53): though,
in many other places, he admits the rule to be
otherwise.
. In policies of insurance, expressly against
fire alone, the insurers are answerable for all
losses by fire, though occasioned by the negli-
gence and fault of servants; or, in other words,
for every loss not caused by the fraud of the in-
sured. In losses by fire, it must, in almost ev-
ery case, be occasioned by carelessness or inat-
tention, or some fault or neglect of servants ;
and it is the very object of the contract to
guard the insured against the consequences of
such negligence and faults of others. In the
case of Boyd v. Diibou, 3 Oampb., 133, tried
before Lord Ellenborough. there being no evi-
dence of the cause of the fire, the plaintiff had
a verdict.
In Ooix v. Knox, 1 Johns. Gas., 340, where
the policy was against "all risks," the court
said that they should construe the policy lib-
erally, as applying to all losses, except such as
arise from the fraud of the insured. The same
rule of construction was adopted in Rmlcliff v.
Tlit United In*. Co., 7 Johns. ,46. True it is
a principle in marine insurance that it does
not extend to the acts or faults of the insured,
as bad stowage, and the like, because they are
not perils insured against. So, in case of de-
viation, through fault of the master, that puts
an end to the contract. In these and other
cases, in which the cour^ have held that the
insurer was not liable, it was because the
cause of the loss was not a peril insured
against.
2. Fraud or gross negligence on the part of
the master or mariners is barratry. The stick-
ing the candle on the side of the binnacle was
an act of willful and gross negligence. Sailing
out of port, without paying the port duties,
has been held an act of negligence amounting
to barratry. (Knight v. Cambridge, 8 Mod., 281 ;
S. C.,lStr..581; S. C., 2 Ld. Rayrn.,1349. See
Valleijo v. Wheeler, Cowp., 158.) Barratry may
consist in acts of omission as well as commis-
sion. Neglect of duty, as well as criminal con-
duct,will amount to barratry. It is not requisite^
that the master or mariners should propose
any gain to themselves by their neglect or vio-
lation of duty. (Stamina v. Brown, 2 Str. ,
1173; 1 T. R., 259, 330; 7 T. R..505; 8
Johns., 272; 11 Johns., 40.) Where a person
knows his duty and neglects it, it is that gross
negligence which amounts to fraud ; lota cul-
pa dolo equiparatur.
*Then, admitting the negligence to be[*454
so gross as to amount to barratry, can the plaint-
iff recover under a count, alleging the loss to
be by fire ? A loss by fire is one of the perils
included in the policy ; and the defendant, to
defeat the action, sets up another cause of loss ;
to wit : barratry, which is, also, one of the
perils insure*! against. In lleyin/nn. v. Parith,
2Campb., 149, this very question arose before
Lord Ellenborough, who liold that where the
paint iff declared for a loss by the perils of the
sea and the vessel was proVed to have been
shipwrecked, the plaintiff might recover,
44 689
454
SUPREME COURT, STATE OP NEW YORK.
1816-
tbough the loss was occasioned by the willful
misconduct of the captain amounting to bar-
ratry ; the same principle was laid down by
this court in Garderev. The Columbia, Ins. Co.,
7 Johns., 514. Barratry is no defense to an
action for the loss by the perils of the sea or
by fire.
Messrs. T. A. Emmet and Hoffman, contra,
contended that the insurers were not liable for
a loss occasioned by the negligence or miscon-
duct of the master or mariners. Even if bar-
ratry was not enumerated among the risks, the
insurers would not be liable for a loss in such
a case. Marshall clearly marks the distinction
between the law of England and that of other
countries. In France and other countries
(Marsh, on Ins., 518) barratry is a term more
comprehensive than in the English law.
(Marsh., 518; Casarogis, Disc., 1 n. 77.) By
the law of England, no fault of the master
or mariners amounts to barratry, unless it pro-
ceed from a fraudulent purpose. (3 Cowp.,
183.) In the case of Boydv. Dubois, the cause
of the fire was unknown, and the burden of
proving it to have been occasioned by the
fault of the master or mariners rested on the
defendant, and no fault being shown, the
plaintiff had a verdict. So in Carntthurs v.
Gray, Ib., 142, where the ship and goods were
seized by the Russian government, the de-
fendant undertook to prove that the seizure
was owing to' the omission of the captain to
mention the goods insured in the manifest of
the cargo. In Cleveland \. The Union Ins. Co.,
Mass., 308, the Supreme Court of Massa-
chusetts held that the insurers were not liable
for a loss by capture arising trom the negli-
gence of the master* in leaving the ship's reg-
ister and other papers at the Isle of France,
an intermediate port in the voyage insured.
Whatever may be the law of other countries,
it is settled in England and here, that barratry
is an act done with a fraudulent or criminal
intent, or ex maleficio. (Earl v. Rowc.roft, 8
East, 126.)
In Dcederer v. Del. Ins. Co., Condy's ed.,
Marsh., 524, in note, where negligence seems
455*] to be *suggested as amounting to bar-
ratry, the court merely say that grosg negli-
gence is evidence of fraud. If so it may be
rebutted by other evidence, and must go to a
jury, who are to decide whether there was
fraud or not. It could not be enough to enti-
tle the plaintiff to recover to aver a loss by the
negligence of the master or mariners. (1 Str. ,
581 ; 8 Mod., 231 ; 8 East, 135, per Ld. Ellen-
borough.) There must be fraud or criminality.
In Cook v. Com. Ins. Co., 11 Johns., 40, the
court define barratry to be every species of
fraud, concerning either the ship or cargo,
committed by the master in respect to his trust
as master, to the injury of the owner. In
Phyn v. The Royal Ex. Ass. Co., 7 T. R., 505,
the distinction is taken between a case of gross
ignorance or negligence and fraud ; and the
jury having negatived the fraud, the defend-
ants had a verdict. In Law v. Hollingsworth, 7
T. R., 160. the insurers were held discharged,
on the ground that there was no pilot on
board, which was a breach of the implied war-
ranty in the rjolicy. So in Pipon v. Cope, 1
Campb.. 434, Lord Ellenborough considered
the plaintiff as having been guilty of gross
690
negligence, in suffering repeated acts of smug-
gling which was the cause of the seizure and
loss, and he could not, therefore, recover.
This neglect is to be considered as a breach of
the implied warranty on the part of the as-
sured, to use reasonable diligence and. care in
regard to the property insured.
The word "fire," used in the enumeration
of the risks in this policy, is subject to the
same ruies of interpretation as have been set-
tled in regard to the other perils enumerated ;
and it is a principle pervading the whole law
on this subject, that the insurers are not
liable for a loss occasioned by the fault or
negligence of the insured, his agents or ser-
vants. (Per Kent, J., Vos & Graves v. United
Ins. Co., 2 Johns. Cas., 180-187.) In policies
of insurance against fire only, certain except-
ions are slated with great precision ; but in
policies of marine insurance, no exceptions or
circumstances whatever are stated. The an-
alogy, therefore, between the two kinds of in-
surance does not hold.
Then what are the facts in this case ? Two
acts of negligence are shown, either of which
is sufficient to discharge the defendants ; first,
that of the master in the bad or improper
stowage of the gunpowder in a place so ex-
posed to accident; second, that of the male
and one of the mariners, in putting the lighted
candle against the side of the binnacle. The
plaintiff proves a loss by fire ; the defendants
show negligence and misconduct in the master
and mariners. So in Boyd \. Dubai's, I ord
Ellenborough said that if the defendant could
show that the hemp was put on *board [*4 5C
in a state liable to effervesce, and it did effer-
vesce, and generate the fire, that would prove
such a negligence of the insured as would pre-
vent his recovery for the loss.
-Mr. Wells, in reply, insisted that the plain t-
| iff, prima facie, was entitled to recover, and
f that the defendants, to discharge themselves
from the loss, must show clearly and satisfac-
torily that it has been occasioned by the fault
or misconduct of the plaintiff. The cases
cited by Marshall (Marsh, on Ins., 487, 488,
690, Park, on Ins., 62 ; 6 T. R., 656), to show
for what acts of the insured or his agents the
insurers were not liable, are all cases of ignor-
ance or mistake ; but the present case is an in-
stance of willful and palpable carelessness.
The analogy between marine insurances and
land insurances, against fire only, is in this
respect complete. The master and mariners,
in relation to the owner of the ship, stand in
a similar situation to that of domestic servants
in regard to the master of a house. Everv
event of fire must proceed from the act of God,
as lightning, or from the carelessness and neg-
ligence of those who have charge of the sub
ject. If insurers are not answerable for losses
by fire occasioned by the carelessness of ser-
vants, then they are responsible only where it
is caused by lightning or the act of God. But
the law has not been laid down to that extenj.
Fire is a peril insured Against, and where it is
the proximate cause of loss, it is unnecessary
to look for the remote cause. Whenever a fire
is caused by the carelessness of servants,
master or mariners, the insurer is answerable,
whatever may be the degree of that careless-
ness or neglect. It need not be a willful act
JOHNS. REP., 13.
1816
GRIM v. PHCENIX INS. Co.
456
committed. The omission of a direct and
positive duty is equivalent. It is enough that
the omission of duly be the cause of loss by
one of the perils insured 'against. It can be
no defense to say that the negligence was gross,
and therefore a fraud. Placing the candle
against the side of the binnacle, and leaving it
in that situation, was equally careless as to
have thrown it into the companion way among
the kegs of powder. If it is barratry to set j
fire to the vessel, it is barratry to omit the ,
means of preventing it. by acts in the power
of the party to perform. It is said here was !
bad or improper stowage ; but it was proved
to be the common practice in this trade to |
carry powder in that manner. The loss was !
not occasioned by bad stowage, but by the j
carelessness of the mariners.
It i* said that gross negligence is only evi- ,
457*] dence of fraud ; *but when the fact of \
gross negligence is established, the conclusion |
of law irresistibly follows that it is fraud.
TJie plaintiff must aver fraud, not negligence, j
and when gross negligence is shown the fraud |
is established.
THOMPSON, <Jh. ./., delivered the opinion of ,
the court :
The loss in tins case is alleged to have been j
by fire. The policy contains the usual clause, I
specifying the perils insured against. The
facts in this case briefly are : that the vessel
being partly laden with 'powder, a candle was
carelessly put up by the binnacle, which took
fire and communicated to the powder, and the
vessel was blown up and lost. The question
is, whether the .underwriters are responsible.
On the part of the assured it is contended, in
the first place, that this was a loss by barratry ;
and if not, still, under the general words in the
policy, the underwriters are answerable for all
losses by fire.
It appears to me impossible -to consider the
negligence by which the loss was occasioned
as amounting to barratry. It would be absurd
to suppose the powder was set on fire by de-
sign and the vessel blown up intentionally, as
it must, most probably, have caused the de-
struction of the whole crew.
It is well settled that an act to be barratrous
must be done with a fraudulent intent or er
irvtlefif-io. Barratry is a fraudulent breach of
duty in respect to the owners. This is the
established doctrine, both in- the English
courts and in our own. (8 East, 138 ; 2Caines,
71.) We look in vain for any one fact in the
case indicating a fraudulent intention. It is,
therefore, a loss occasioned by pure negli
gence.
The next inquiry is whether such a loss
comes within the policy. I think it does not.
No adjudged case is to be found directly in
point ; and all that is to be collected from the
elementary writers upon the question is rather
matter of inference. It is laid down by Mar-
shall(Marsh. on Ins.. 421)that a loss occasioned
by tire, which is merely accidental, and not
imputable to any fault of the master or mari-
ners, is a loss within the policy. This is the
rule in England. The inference necessarily to
In- drawn from it is. that when the fire is occa-
sioned by the fault of the master or mariners,
a loss occasioned thereby is not to be borne by
JOHNS. REP., 18.
the underwriters. In France the underwriter
is not held answerable in such case, unless by
the policy he is liable for barratry. But in
France barratry comprehends *every [*458
fault, either of the master or mariners, by
which a loss is occasioned, whether arising
from fraud, negligence, unskillf ulness or mere
imprudence. (Marsh., 443.) In England, if
the loss could be attributed to barratrous mis-
conduct, the underwriter would be held liable.
It has always been matter of surprise that un-
derwriters should insure the good conduct, in
any case of the master and crew, with the ap-
pointment of whom they have no concern (1
T. R, 330 ; 8 Johns., 227); and they would not
be responsible for their conduct were it not
for their express stipulation. The master and
mariners are not the agents or servants of the
underwriters, so as to warrant the application
of the general rules of law in such cases. The
liability of the underwriter for their conduct
depends upon the stipulation in the policy,
which embrace* only the case of barratry. If,
by the general rules of law, underwriters are
responsible for the mere carelessness and neg-
ligence of the master and mariners, it would
seem to follow, as a necessary part of the same
rule, that they would be liable for their fraudu-
lent misconduct ; and of course, it was entirely
unnecessary to insert in the policy any express
engagement to become answerable for losses
by barratry. The very circumstance of as-
suming the risk of barratrous conduct affords
a strong presumption that the underwriters
are responsible only for such misconduct as
amounts to barratry.
Underwriters have no concern with the
competency .or skillfulness of the master or
crew. These are matters which concern the
owners ; and any deficiency in this respect
renders the vessel unseaworthy. If a master,
from ignorance or unskillfulness, or from uny
motive not fraudulent, should depart from the
proper course of the voyage, and a loss happen
thereby, the underwriter would not l>e liable
by reason of the deviation. (Marsh., 446.)
Yhere are many cases of injury and • losses
arising from the fault and negligence 'of the
master and- mariners, where the remedy is
against the master or owners, as by bad stow-
age, wet, and many others. (Marsh., 156.)
Although the insurance is against loss by
fire generally, yet this must be understood as
relating to fire occasioned by some means or
acts for which the underwriters are responsi-
ble. The same rule must be applied to this
risk as to the other enumerated risks in the
policy. In the case of Vo* & Oravet v. The
United Int. Co., 2 Johns. Gas., 180, the insur-
ance was *against capture ; and, al- [*4.r>J>
though the vessel was captured, still the
underwriters were held not to be responsible,
localise the capture was occasioned by the
misconduct of the master, in sailing towards,
with an intention to enter a blockaded port.
Kent, Jmtife, in his opinion, says such an at-
tempt takes awav from the assured his right
to recover ; for lie never can l>e allowed to
indemnify himself upon an innocent party
from the consequences of his- own want of
skill, or from negligence, or folly. The act
of the master must be referred to his princi-
pal, who appoints him; and whenever a loss
459
SUPREME COURT, STATE OF NEW YORK.
1816
happens through the master's fault, unless that
fault amounts to barratry, the owner, and not
the insurer, must bear it. That the risk of
fault in the master (barratry excepted) is not a
risk enumerated in the policy; and it would be
very unreasonable that the insurer should be
holden, beyond his express undertaking, for
the fault or folly of the master, whom the in-
sured selects and controls. So, in the case of
Cleveland v. The Union Ins. Co. , 8 Mass. , 308 in
the Supreme Court of Massachusetts, the loss
was by capture, occasioned by the negligence
of the master, in leaving the ship's register in
the Isle of France, and the underwriters were
held not to be answerable. Sedgwick, Justice,
said it could not be pretended that this;neglect
was a risk expressly insured against, or any
risk assumed by the underwriter ; and he goes
on to show that the remedy must be against
the owner ; that he is responsible for all losses
arising from the negligence, ignorance or will-
ful misconduct of the master, that do not
amount to barratry. He says, expressly, that
the underwriters are not answerable for a loss
resulting from the gross negligence or ignor-
ance of the master. The observations made in
these cases apply, with great force, to the one
now before us, and go to establish the princi-
ple that underwriters are not responsible for
any fault, negligence or misconduct of the
master or mariners which does not amount to
barratry ; and that their liability, even for
barratry, arises from its being an express stipu-
lation in the policy. Park (24), after enumerat-
ing the perils designated in the policy, ob-
serves that, although the words are so general,
there is a great difference between damage
sustained by goods, from in juries, on board a
ship, and that which occurrs from external
accident; that the insurer is liable for the lat-
ter, but, with respect to the former, as they
46O*] are *ueglects attributable to the master,
the ship, and not the insurer, ought to be
answerable.
There are many losses, occasioned by some
of the perils enumerated in the policy, which
may happen under circumstances that would
not make the underwriters chargeable. These
general terms are used in reference to the es-
tablished rules of law; and it is with an eye
to those rules that they must be expounded.
Insurance against fire is not the exclusive ob-
ject of a marine policy. It is enumerated
among the perils, in reference to the settled
principles of marine law ; and we must look
to that law to ascertain the excepted cases.
None of the observations here made are in-
tended to apply to land insurances against
fire. There the sole object is indemnity
against loss by fire; and the general and set-
tled rules of law, applicable to this subject,
must be resorted to in construing such poli-
cies.
Upon the whole, therefore, the result of my
opinion is, that this cannot be considered a
loss by barratry, but by the carelessness and
negligence of the crew, for which the under-
writers are not responsible; and this is the
opinion of the court. The defendants are,
accordingly, entitled to judgment.
Judgment for the defendants.
Explained— 3 Peters, 234.
Overruled— 11 N. Y., 14; 13 Barb., 243.
«92
Cited in— 12 Wend., 468; 21 Wend., 369; 65 N. Y., 553:
8 Bos.. 55; 38 Super., 526; 4 Daly, 25; 11 Leg-. Obs.,
176; 10 Peters, 517; 2 Wood. & M.. 320; 1 McLean,
277; 2 McLean, 170; 3 Mason. 26: 2 Clitf., 433.
BRONSON v. MANN.
Highways — -Encroachment of Power of Com-
missioners and Justices under Statute — Costs
in Justice Court.
In the case of an encroachment on the highway
(2 N. R. L., 277), where the encroachment is not de-
nied, all the commissioners must confer in regai d to
making an order to remove it, and the majority
may act ; but when the encroachment is denied,
and the fact is to be inquired into by a jury, one of
the commissioners alone may act, and may make
complaint to a justice of the peace ; or, at least, the
want of a joint consultation will not vitiate an in-
quest subsequently found.
The certificate of a jury, finding an encroachment,
is conclusive evidence of that fact, in an action
brought to recover the penalty for not removing
the encroachment.
In a judgment in a justice's court for the plaint-
iff for costs, the costs for subpoenas, issued on be-
half of the defendant, cannot be included.
Citation— 9 Johns .. 360.
TN ERROR, on ccrtiorari to a justice court.
The defendant in error brought an action
in the court below, against the plaintiff in er-
ror, to recover the penalty for encroaching on
the highway, under the 21st section of the Act
for Regulating Highways. (2 N. R. L. , 277,
278.) On the trial, it appeared that the high-
way in question had been duly laid out and
recorded; that two of the commissioners of
highways of the town of Onondaga had noti-
fied the defendant that his fences encroached
on the highway, and requested him to remove
them; *and that, the defendant deny- [*461
ing the encroachment, one of the commission-
ers, on behalf of the board, applied to a jus-
tice of the peace for a precept to* summon a
jury to inquire of the encroachment. Notice
thereof was given to the defendant below,
and he attended the inquest, and assisted in
the examination and survey, and set up stakes
to designate the road. The jury summoned
for that purpose found the encroachment, and
certified it by special metes and bounds, ac-
cording to the Statute ; but the defendant did
not remove his fences within sixty days, as
required by the Act. The defendant objected
to the recovery,pon the ground that it did not
appear that all three of the commissioners at-
tended and consulted together in regard to the
encroachment; but the justice overruled the
objection. The defendant then offered to
prove that, in fact, there was no encroach-
ment; which evidence the justice refused to
hear, and gave judgment for the plaintiff be-
low. In the amount of costs, for which judg-
ment was given, the justice included twelve
cents for two subpoenas, issued on behalf of
the defendant below.
Per Curiam. Where the encroachment is not
denied, and the commissioners, under the 21st
section of the Act, make an order to remove
it. the just construction of the Statute requires
that all should confer, and then a majority
may act; but where, as in this case, the en-
croachment is denied, and the fact is to be in-
JOHNS. REP., 13.
1816
AKNIN v. CHASE.
461
quired of by a jury, the commissioners act in
the character of informers merely ; and the
law requires no order, nor any act of the com-
missioners, after the finding and certificate of
the jury. The omission, for sixty days after
the inquest, to remove the encroachment, con-
stituted the offense. The mere complaint to
the justice was not such an act as required the
united deliberation of all commissioners
(9 Johns., 860); at least omission to hold a
joint consultation in regard to the complaint
will not vitate the inquests which establishes
the fact of encroachment. The complaint was
initiatory.
On the second point, the justice also decided
correctly, in excluding the evidence to con-
tradict the inquisition as to the fact of encroach-
.ment. The finding of the jury was conclu-
sive.on this trial, as to that fact. The judg-
ment for costs, however, is erroneous ; so that
the judgment must be reversed as to costs,
and affirmed as to the penalty recovered.
Judgment accordingly.
Cited in-15 Johns., 195: 5 Wend., 3*1; Paige, 504;
6 N. Y., *); 40 N. Y., 166; 7 Barb., 434; 15 Barb.. 481;
35 liarb., 317.
4O2»] *ANNIN r. CHASE.
Second Adjournment in Justice Court.
Where an adjournment has been granted in a
justice's court, and a day for trial agreed on by the
parties, one of them is not thereby concluded on
showing sufficient cause, from asking for a second
adjournment.
Citations— 2 Johns., 383; 9 Johns., 133.
N ERROR, on certiorari to a justice's court.
I
After issue was joined in the court below,
the defendant in error, who was the plaintiff
below, applied for an adjournment which "was
granted and a day fixed on by the parties. • On
the adjourned day, the defendant below ap-
plied for a further adjournment, and offered
to swear that he had material witnesses absent;
that he had subpoenaed them, and used due
diligence, and expected to procure them, &c.
But the justice decided that, as the parties had
mutually agreed upon a day for trial, they
were now concluded ; and refused on that
ground to grant a further adjournment. Judg-
ment was given in the court below for the de-
fendant in error. •
Per Curiam. Injustice has been done. Ac-
cording to the cases of Eauton v. Coe, 2 Johns.,
383, and Poteert v. Ijockicood, 9 Johns., 133, the
justice should not have refused a second ad-
journment on the ground assumed by him, no
question being made as to security.
Judgment rererxed.
Cited in— 2 Cow., 436.
THE UNION COTTON MANUFACTORY
t.
LOBDELL KT AT..
Joinder of Cause of Action.
A count in debt on simple contract, may be joined
in tbe same declaration with a count in debt on a
judgment, although the pleas are different.
JOHNS. UKI-., 13.
Causes of action, which admit of the same plea,
and of the same judgment, may be joined in the
same declaration.
Citations— 1 Chit. PI.. 197 ; 2Saund., 117, note 2.
THIS was an action of debt. The declara-
tion contained several counts : 1. On a
judgment recovered in this court by the
plaintiffs against the defendants ; and, 2.
Counts for goods sold, money lent and ad-
vanced to, and money paid, laid out and ex-
pended for the defendants, and money had and
received. To this declaration there was a gen-
eral demurrer, and joinder in demurrer.
*Mr. Cady, in support of the demur- [*4<J3
rer. He cited 1 Chitt. PI., 197.
Mr. Henry, contra. He cited Gilb. Hist. C.
P., 6, 7; 1 Chit. PI., 197.
Per Curiam. This rule is invariable, that
causes of action which admit of the same plea
and the same judgment, may be joined ; but
the converse of this proposition is not invari-
ably true. Debt on specialty, or debt on judg-
ment, may be joined with debt on simple con-
tract, although they require different pleas. (1
Chit. PL, 197; 2 Saund., 117, note 2.)
Judgment for the plaintiff.
JACKSON, ex dem. WHITLOCKE,
t.
MILLS.
Ejectment — Deed — Consideration Advanced by
Third Party— Trust May Be Proved by Parol
Deed — Estoppel.
• Where A was interested to the amount of $100 in
a judgment recovered by B against C, and an execu-
tion was afterwards issued at the suit of D, against
C, on a junior judgment, under which execution A
purchased the laird as the trustee of B. and took a
deed from the sheriff, and immediately conveyed
the land to B. by whom the consideration was ad-
vanced, and then an execution was issued upon the
elder judgment for the amount for which A was
interested therein, and levied upon the same prem-
ises, which were sold and conveyed by the sheriff to
A ; it was held that A, having executed the trust by
conveying the land to H. when purchased by him at
the first sale, was not thereby estopped from subse-
quently acquiring a title to the same premises, and
might recover them in an action of ejectment,
against a person holding under B: and that al-
though B forbade the second sale, the conveyance
under it was not inoperative ; at least that it could
not be inquired into in a collateral action, and
could only be determined on a direct application to
this court or to a court of equity.
Where a person takes a deed for land in his own
name, but the consideration is advanced by another,
a trust results in favor of that other person, which
may be proved by parol.
Citation— 1 Johns. Cas., 153.
THIS was an action of ejectment, brought to
recover a house and lot of land situate in
the City of Hudson. The case was tried be-
fore Mr. Justice Spencer, at the Columbia Cir-
cuit, in August, 1815.
The plaintiff claimed under a sheriff's sale,
made by virtue of an execution in favor of
John M. Harder, against one Richard Osborne,
who was the original owner of the premises.
The execution was tested the 18th October,
1816, and the sheriff was thereby directed to
collect $140. The judgment upon which it was
issued was docketed on the 3d August, 1807, and
693
463
SUPKEME COURT, STATE OP NEW YORK.
1816
was for the sum of $680 debt, and $13.56 costs ;
and the deed from Reuben Swift, sheriff of
the County of Columbia, of the premises in
question to the lessor of the plaintiff, bore date
the loth February, 1814. On the bond upon
which this judgment was entered, the follow-
ing indorsement was made at the time of. the
4(>4*] execution of it, to wit : " *$100 of the
within bond to be for the benefit of Thomas
Whitl ocke," the lessor of the plaintiff, to col-
lect which sum with the interest, the above-men-
tioned execution was issued. Prior, however,
to the sale upon that execution, an execution
had been issued against the same Richard Os-
borne, on a judgment in favor of some person
whose name was not stated in the case, but
which was docketed subsequently to the other
judgment, under which the premises were
conveyed by John King, then sheriff of Co-
lumbia, by deed bearing date before the deed
from Swift, the lessor of the plaintiff, who, at
the same time conveyed the premises to Har-
der, under whom the defendant holds. The
property, as was proved by Bingham, the
deputy-sheriff who made the sale, was bid off by
the lessor at the request of Harder and for his
benefit ; and was sold subject to Harder's judg-
ment, of which due notice was given by Har-
der and Whitelocke, and the consideration
money was paid by Harder. At the sale under
the first-mentioned execution, Harder exhib-
ited the deed to himself and forbade the sale.
A verdict was taken for the plaintiff subject
to the opinion of the court on the above facts,
and the cause was submitted to the court with-
ont argument.
SPENCER, J., delivered the opinion of the
court.
The case of Jackson v. Sternberyh, 1 Johns*
Cas., 153, shows that the parol evidence given
by Bingham was admissible, ; and it was
proved that Whillocke was the mere trustee
of Harder in taking the sheriff's deed under
the sale on the junior judgment ; and the deed
from Whitlocke to Harder was the .mere exe-
cution of his trust. Harder only was bene-
ficially interested in that purchase, as it was
made for him and he pai(J the consideration
money. Whitlocke never had any interest
under that deed, and, therefore, his'execution
of the trust could not operate as an estoppel to
any title he might thereafter acquire, in his
own right to the same lands. Independently
of the parol evidence that the first purchaser
was subject to the prior lien, the law would
produce that result. Whitlocke, then, ac-
quired by his purchase under the senior judg-
ment a title paramount to that of Harder's
under the junior judgment, unless Harder's
forbidding the sale will render the sale and
deed under it inoperative. It may be well
questioned whether he could forbid the sale,
rightfully, as Whitlocke was interested in it
465*] to the amount of $100. Be *that as it
may, a sale actually took place, and the title
passed to Whitlocke under it ; and it is too
late to question the sale, at all events in this
collateral way.
The only mode in which that question could
arise would have been on a direct application
to this court or a court of equity, to set aside
the deed. The deed being warranted by the
judgment and execution, we cannot now en-
tertain the question how far the sheriff erred
in selling, although forbidden by the nominal
plaintiff in the execution. The -legal title is
in the lessor of the plaintiff.
Judgment for the plaintiff.
Cited in— 8 Cow., 565; 9 C0w., 274 ; 58 N. Y., 467 :
3 Mason, 363.
FOSTER ET AL.
v.
GARNSEY, Gent., one of the Attorneys, &c.
Attorneys and Counselors — May Be Held to Bail
— Liable for Costs.
The privilege of counselors and attorneys feeing
ken away (except during the actual sitting of
the court), by Statute (1 N. R. L.,416, sess. 36, ch.98,
sec. 12), so that they may be arrested and held to
bail, like other persons ; they stand on the same
ground, also, in respect to costs, and if sued by bill
during term, and less than $50 is recovered, they
are not liable for costs.
Citation— 1 N. R. L.,-418.
THE defendant, who is an attorney of this
court, was sued by a bill in assumpnt and
gave a wgnovit actionem in the cause for $35.83,
besides costs, The plaintiff entered up judg-
ment for the amount of damages confessed
and for the costs taxed by the Recorder of Al-
bany, as in this court, to $39.42.
Mr. DeWitt, for the defendant, now moved
that the judgment, so far as respects the costs,
should be amended, and that the execution, as
regarded costs, should be set aside.
Per Curium. In Snell v. Brooks,, and in
Baird v. Vanderlyn, which came before the
court at the last term, the question arose how
far and in what cases attorneys were liable for
cosfes when parties in a suit. Many of the
cases heretofore decided on that question are
inapplicable as the law now stands. Attor-
neys, like other persons, are liable to be arrest-
ed on mesne process (except during the actual
sitting of the court), and held as common or
special bail. (1 N. R. L., 418-.) Their priv-
ilege, therefore, is substantially taken away ;
and being put on the same footing with other
persons as to arrest, they ought to stand on
*the same ground in regard to costs. [*4-OG
It ought not to be left to the- option of a plaint-
iff to make an attorney pay the costs of this
court, by electing to sue him by bill,- in term
time. Whether, therefore, attorneys are sued
by bill or writ, they must be placed in the
same situation as other persons as to the pay-
ment of costs.'
Motion granted.
Cited in— 1 Cow., 598.
SMITH v. SHARP.
C fumge of Venue.'
Where the venue in a cause is changed, it is not
necessary to serve the defendant with a new dec*
laration, but only with a copy of the rule for chang-
ing the venue ; and the declaration on file may be
altered, at any time, so as to conform to the rule.
JOHNS. REP., 13.
1816
HASSEXPRATS v. KELLY.
466
THE COURT, in this case, Raid that where
the venue in a cause is changed, it is not
necessary to serve the defendant with a copj-
of a new declaration, but it is sufficient to
nerve him with a certified copy of the rule for
Chan-zing the venue ; and he is l>ound to plead
as if the venue had been changed. The plaint-
iff, however, ought to alter the declaration on
file, so as to make it comfonnable to the rule ;
and w-e will order this to be done, at any time,
BO a* make the pleadings on file regular. The
defendant may proceed, on his part, in the
same manner precisely as if the alteration had
been made ; and he cannot avail himself of the
want of the alteration as an excuse, or ground
of irregularity.
HAS9ENFRATS, qui tarn. £c., c. KELLY.
Selling I.<nnl without Knowledge of Sub-
*i*ting Adcvrae, P<m*e**ivn iwt Liable — Kntufl-
«tl«jf. Prettumed — Entering upon Hew Lands —
S-ile by Jfatl Oirner.
A |K>reon who sells and conveys land, without the
kn.i.vli'iUfi- that there is a subsisting adverse posses-
sion. is not liable to the penalty Tor selling apre-
tond"d title under tin- Sth section of the Act to Pre-
vent Champerty and Maintenance. (1 N. li. I... 173.)
The seller of lands is, however, in the first instance,
to be ; in -MI up -I eonusant of the situation of it.
Where a person enters upon new lands without
claim or color of title, and conveys them, by deed,
to a third person, and the lawful owner of the land,
not having notice of these facts, afterwards sells
and conveys the same, he is not liable to the penalty
for telling a pretended title.
Citation*— 1 Plowd., 80, 88 ; 1 Dyer, 748; 9 Johns.,
50: « Johns., 2O2.
THIS was an action of debt, on the 8th sec-
lion of the Statute to Prevent and Punish
Champerty and Maintenance, brought against
4O7*] *the defendant for selling a lot of land
in the town of Sempronius, and County of
Cayuga, which, it was alleged, was, at the
time of sale, held adversely 1o the defendant.
The cause was tried before Mr. Justice Yates,
at the Cayuga Circuit.
The premises in question are part of lot No.
19, in Sempronius, in the military tract, which
was patented to one Christian Kelly, a soldier.
In April, 1810, the plaintiff entered upon one
hundred acres, in the northeast corner of the
lot. and was possessed thereof until the 14th of
April, 1812, when he contracted to sell to
Jacob Brink, who immediately entered, and
has ever since been in actual possession. On
the 10th of August, 1812, the defendant, and
Silena, his wife, by their deed, conveyed the
north half of the said lot No. 19, to Daniel
Hutchinson and Charles Stuart ; but the de-
fendant, at the time of executing that deed,
had no knowledge of the adverse possession of
Havsenfrats or Brink.
A verdict was found for the plaintiff for the
value of the land, subject to the opinion of the
•court. The case was submitted to the court
without argument.
SPKNCER, «/., delivered the opinion of the
•court :
It is admitted that when the defendant gave
the deed, which is the act of champerty com-
plained of. he had no knowledge of the adverse
JOHNS. REP., 18.
possession of Hassenfrats or Brink. In truth,
therefore, the deed was not given for mainten-
ance. Indeed, it does not appear, in point of
/act, that the plaintiff, when he entered and
took possession of the one hundred acres in the
northeast corner of the lot, so entered under a
claim of title ; nor does it appear that when
! he contracted to sell to Brink, two years after-
i wards, that he agreed to sell any other than his
I possessory right. To produce the conse-
i quences of a violation of a Penal Statute ex-
i posing the party to a forfeiture of the value of
| the land sold, it ought to appear, expret-sly,
that there was a person in possession at least,
claiming to own the land. From the facts in
this case that does not appear. The plaintiff
may have been a mere intruder upon the land,
without claim or color of title, and his agree-
ment to sell to Brink may have been merely
for his possession. The court, therefore, are
of opinion that the defendant has been guilty
of no offense within the Statute, and on this
ground, we think judgment should be given
for the defendant. I am prepared to go
further. My opihion would be, that had it
appeared that *the plaintiff sold Brink [*4<J8
by a warranty deed, yet the defendant would
not have been liable to this action under the
circumstances of that case.
The Statute intended to punish persons for
selling pretended rights to land, for the pur-
pose of maintenance ; and when it is evident
that such intention did not exist, there can be
no offense. A contrary argument may be
derived from the Statute, which subjects the
taker or buyer to the same penalty as the
seller, if he knew the sale to have been made
against the provisions of the Act. indicating
that if the taker or buyer did not know it, he
should not incur the penalty ; and as the
; Statute is silent as to the knowledge or ignor-
ance of the seller, it may be inferred that the
Legislature intended to punisji him, without
regard to that fact, on the ground that he is
', chargeable with the knowledge of the state
and circumstances of his own lands. It would
be the legal intendment, undoubtedly, lhat
every man knew the situation of his real prop-
' erty*; but if he ce'uld show that he did not
' know it, it would be very unreasonable to sub-
! ject him to a penalty for an offense perfectly
'unintentional. The deed, under such circum-
stances, would be void and inoperative, and
there is no good reason why an innocent per-
! son, unconscious of offense, should be pun-
, ished beyond that. In the case of Partridge
v. Strange rf- Croker, 1 Plowd., 80, 88; 1 Dyer.
746, an exception was taken to the declaration
that there was no averment that the bargain
and sale was for maintenance: and the court
held it to be a good exception, and that the
plaintiff had not shown the case to be within
; the danger of the Statute, saying that was the
point of the Statute. If it was necessary to
make that averment, it was necessary to show
j a state of facts proving it to be true ; and
where it clearly appears that the bargain and
sale was not for maintenance, the spirit and
intention of the Statute are not infringed. This
was clearly the inclination of the late Chief
Ju*tif«'s opinion in Jacktan v. Demont, 9
Johns., 59, though this precise point was not
then before the court.
695
468
SUPREME COURT, STATE OF NEW YORK.
In the case of Jackson v. Setteck, 8 Johns.,
262, the question was, whether a feme covert,
being the owner of wild and uncultivated
land, was to be considered as in fact possessed,,
so as, on her death, to give to her husband a
tenancy by the curtesy, without an actual
entry, or pedis possessio ; and it was held that
she was. The late Chief Justice, delivering
the unanimous opinion of the court said : "We
must take the rule with such a construction &s
4(59*] *the peculiar state of new lands in this
country requires ; and this may be done with-
out any departure from the spirit and sub-
stance o,f the English law." If we should hold
that the plaintiff was entitled to recover in the
present case, it would be impossible for any
man owning lauds in the unsettled part of our
country to convey them with safety ; for, per-
adventure, some man may have intruded upon
them who would have the hardihood to give
a warranty deed. If, then, it should be ques-
tionable, under the English adjudications,
whether the defendant had not been guilty of
champerty, in deciding this question here, we
must regard the very different state of our
country ; and noticing that it seems to me im-
possible to maintain the proposition that a per-
son shall be punished, as for a crime, when not
only no crime was intended, but the supposed
delinquent had every reason to believe, from
the state of the property, that he might law-
fully sell it.
Judgment for the defendant.
Cited in— 1 Wend., 438 ; 7 Wend., 54 ; 8 Wend., 632 ;
2 Rob.. 495.
GREEN «. ANGEL.
Practice in Justice Court — Suspension of Trial,
when Discontinuance.
Where a justice, in a cause before him, suspended
the trial, after it had been commenced, for twenty
hours, in order to allow one of the parties to pro-
duce further proof, it was held an abuse of discre-
tion, and a sufficient ground for reversing the judg-
ment.
Where the trial of a cause before a justice has,
after being commenced, been suspended fora time,
and when resunied the plaiatiff does not appear,
it is a discontinuance, and the justice cannot pro-
ceed with the trial.
I
N ERROR, on certiorari to a justice's court.
In the course of the trial in the court below,
while the defendant in error, who was also de-
fendant in the court below, was proceeding
with his testimony to substantiate his plea of
set-off, the justice decided that, in order to
sustain his plea, it was necessary for him to
show a judgment and execution before another
justice. The defendant then requested a delay
in the trial, until he could go twelve miles to
procure the evidence required. To this ttie
plaintiff objected, but the justice said that he
would keep the court open, and allow the de-
fendant twenty hours to go and obtain the
testimony. At the time appointed for resum-
ing the trial, the plaintiff did not appear, but
the justice proceeded ex-parte, and heard the
defendant's proof of set-off, and rendered judg-
ment for a balance, in .favor of the defendant.
Per Curiam. The judgment must be re-
696
versed, on two grounds : 1. It was an abuse
of discretion in the justice to allow such an
Unreasonable time for the defendant [*47O
to go abroad for. evidence "during the trial. 2.
The non appearance of the plaintiff, when the
trial was resumed, was a discontinuance of the
suit, and the justice had no right to proceed
any further.
Judgment reversed.
Cited in— 41 How. Pr., 36; 3 Abb. Pr., 108 ; 3 Daly,.
451 ; 1 Hilt, 92.
JOHNSON^. HAIGHT AND MATHEWS.
Notice of Non-payment of Promisswy Note —
Parol Evidence of Contents Admissible.
The contents of a notice to the indorser of a prom-
issory note, of a demand upon and a refusal by
the maker, may be proved by parol, or by produc-
ing a copy made by the witness at the time of mak-
ing the original : and it is not necessary that notice
to produce the original should have been'given.
Payment of a note must be demanded of the-
maker, in order to charge the indorser, upon the
third day of grace, or if the third day falls upon a
Sunday, then upon the second day of grace.
Citations-3 Cai., 174; 1 Cai., 364; Phillips on Ev...
342 ; '2 Cai., 343 ; 16 East, 250.
THIS was an action of assumpsit, against the
defendants, as indorsers of a promissory
note. The cause was tried before Mr. Justice
Yates, at the Seneca Circuit, in June, 1816.
The note in question was executed by Will-
iam Low, dated the 26th of May, 1815, and
payable to the defendants, six months after
date, for $427.19. The plaintiff proved a de-
mand made at the house of the maker of the
note, upon his agent (the maker being absent),
on the 30th of November next after the date
of the note and his refusal to pay. The same
witness who proved the demand and refusal,
also proved that he sent a notice thereof to the
defendants by the next mail, after the demand
was made, and produced, and offered to read,
in evidence, a copy of the notice which was
made at the time of making the original. The
defendant's counsel objected to reading the
copy, unless notice had been given to produce
the original, but the objection was overruled
by the judge, and the copy permitted to be
read. The plaintiff having restedJiis cause,
the counsel for the defendants then moved for
a nonsuit, on the ground that the demand upon
the maker of the note ought to have been made
on the 29th day of November next after the
date of it ; but the judge overruled the objec-
tion, and the jury, by his direction, found a
verdict for the plaintiff.
The case was submitted to the court without
argument.
SPENCER, J., delivered the opinion the-
court :
The first point made by the defendants can-
not be maintained ; *it has been decid- [*47 1
ed in this court that a notice to produce a
paper might be proved by parol. (3 Caines,
174, Turner v. Wilson.) It was held in Peyton
v. HaUet, 1 Caines, 364, that an abandonment
NOTE. — Negotiable paper — Demand and nntice-
when paper fa H* due on Sunday or a leyal holiday..
See Jackson v. Richards, 2 Cai., 343, note.
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. TEKRY.
471
in writing might be proved by parol. Another
ground, equally decisive, is, that the copy of
a notice retained bv a witness is to be regarded
as a duplicate original, and such duplicate is
good evidence, without notice to produce the
other. (Phillips on Ev., 342 )
On the second point, the defendants are en-
titled to judgment. The third day of grace
fell on the 29th day of November, and pay-
ment was hot demanded of the maker until
the 80th. The law is perfectly settled, that a
note must be demanded on the third day of
grace, unless that falls on Sunday, and then it
must be demanded on the second day of grace.
(2 Cainea. 843; 16 East,. 250.) Here there is
no excuse for delaying the demand on the
maker, and there is a palpable want of due
diligence, which discharges the iadorser.
Judgment for defendant.
Cited i n 4 Doe.. 318.
JACKSON, ex dem. M&RRIT, r. TERRY.
Real Property — Conveyance Betiretn Rendering
and Docketing Judgment. Void — Sheriff's
Deed of Isind in Military Tract — Special lie-
turn on Execution.
Where land is conveyed between the rendering
and il< M-ki-t iiitr a jiidvrmrnt against the vendor, to a
purchaser, who has notice of the judgment, with
intent to elude the judgment creditor, such convey-
ance is void, as iiirainsi the creditor.
A sheriff's deed for lands in the military tract
must be recorded ; and if, after land has been sold
on execution, and a conveyance made by the sher-
iff, and before such conveyance Is recorded the
former proprietor conveys it to a Imna fide pur-
chaser for a valuable consideration, who has his
deed first recorded, such subsequent purchaser will
gain a priority.
A special return upon an execution, even if suffi-
cient to pass a title to the land (which, it seems, it
is not), must, in order to give the purchaser under
the execution a priority, be recorded.
. Citations— 1 N. R. L., 309 ; 2 Cai., 61.
THIS was an action of ejectment, for the re-
covery of part of lot No. 82, in the town
of Homer. The cause was tried before Mr.
Jwttico Spencer, at the last Courtlandt Circuit.
At the trial, the plaintiff gave in evidence a
deed in fee for the premises in question, from
Archibald Turner to James Turner, for the
consideration of $400, dated the 24th of Sept.,
1804, which was duly acknowledged on the
same day, and recorded in the proper office,
May 23d, 1803 ; also a deed in fee from James
Turner to the lessor of the plaintiff, dated
April 9th, 1806, for the consideration of $450,
which wax duly acknowledged on the same
day, and recorded in the proper office May
28th, 1806.
The defendant gave in evidence a judgment
47 !2*] recovered in *ihe Court of Common
Pleas of the County of Onondaga. against Arch-
ibald Turner, at the suit of one Hubbard. The
capias in that suit wa-s returnable on the 4th
Tuesday in May. 1804 ; judgment was given
on the 4th Tuesday of September following
for $99.87, and was docketed on the 10th of
January. 1805. A fi. fa. was issued thereon,
returnable in January, 1805, under which i
Archibald Turner's rig'ht to the lot No. 82. in j
Homer, was sold to one Wood, by the sheriff |
JOHNS. REP.. 13.
of Onondaga, who executed a deed to Wood,
dated the fOth of April, 1805, for the consider-
ation of $89.90, which was acknowledged and
recorded in the proper office on the 9th of July.
1806. The./?, fa. before mentioned was filed
in the proper office on the 25th of Sept., 1805,
with a special return thereon, that the sheriff
had sold all the right and title which Archibald
Turner had to fifty acres of No. 82, in Homer
(being the same that Turner lived on), April
the 9th, 1805, to Wood the highest bidder. A
witness on the part of the defendant testified
that shortly after judgment was given in favor
of Huhbard, against Archibald Turner, in
September, 1804, Archibald Turner, in the
presence and hearing of James Turner, in-
quired of the witness if Hubbard had obtained
a judgment against him, and the witness, in
the hearing of James Turner, informed him
that judgment had been obtained against him,
Archibald Turner ; that on the same day
Archibald Turner executed the deed before
mentioned to James Turner, to which deed the
witness on the trial was a subscribing witness.
The witness saw no money paid, nor obliga-
tion executed, by the grantee, 'nor did he hear
the parties say anything respecting payment
of the consideration expressed in the deed.
James Turner was in very poor circumstances,
and unable, as the witness stated, to pay $400;
and Archibald Turner continued in possession
of the premises, after the execution of the con-
veyance, until 1807, when he went away and
left his family, and his family continued to
reside on the land for some time after. Archi-
bald Turner was in possession of the land when
the lessor of the plaintiff purchased it ; but a
witness on the part of the plaintiff testified
that he was present in the spring of 1806
when Archibald Turner hired the land of the
lessor of the plaintiff for one year, -upon shares.
There was some very slight evidence, on the
part of the plaintiff, to show that a consider-
ation actually passed between Archibald and
James Turner, and the defendant attempted
to prove that the Consideration, on [*47&
the purchase by the lessor of the plaintiff, was
paid to Archibald Turner ; but a witness on
the part of the plaintiff testified that he was
present when the lessor of the plaintiff pur-
chased the Jand, who gave James Turner
about $70 in cash, a wagon, harness, and a
pair of horses, and notes for the balance,
which were made payable to James Turner.
A verdict was taken for the plaintiff, subject
to the opinion of the court on the above case.
Mr. Sabin for the plaintiff.
Mr. Cady, contra.
THOMPSON, Ch. J., delivered the opinion of
the court :
From the evidence in this case, it is manifest
that, as between Archibald and James Turner,
a gross fraud was intended. The sale was
made for the express purpose of avoiding the
judgment of Hubbard against Archibald Tur-
ner. But there is no evidence that the lessor
of the plaintiff was in any manner privy to
such fraud. He appears to have been a IXHM
fide purchaser from James Turner, without
any knowledge of the fraud between him and
Archjhald, and of course he is not to be prej-
udiced by it. The right between these par-
It!
473
SUPREME COURT, STATE OF NEW YORK.
1816
ties will, therefore, depend upon the question,
whether, under the Act for Registering Deeds
and Conveyances, relating to the military
bounty lauds (1 N. It. L., 209), a deed from
the sheriff, upon a sale under an execution, is
necessary to be recorded. The judgment un-
der which the defendant derives his title was
docketed, thesale made, and execution returned
and tiled, and a deed given, before the deed
from James Turner to The lessor of the plaint-
iff, but the latter deed was first recorded ; so
that, if the Act applies to such sales, the deed
to the lessor of the plaintiff has priority. The
Act declares that all deeds or conveyances, of
or concerning, or whereby any of the said
lands may be any way affected, in law or
equity, shall be recorded; and that every deed
or conveyance of such land shall be adjudged
fraudulent and void against any subsequent
purchaser, for valuable consideration, unless
the same be recorded before the recording of
the deed or conveyance under which such sub-
sequent purchaser uliall claim.
In the case of Stmondx v. Catlin, 2 Caines,
47 4*] 61, it was *decided by this court, that
the estate of a defendant did not pass at a
sheriff's sale without a deed or note in writing,
to be signed by the sheriff ; and reference
is there made to this very Statute, and the
precise case now before the court stated, to
show the evil that would result from consider-
ing the title as passing by the sale without a
deed ; and it seemed there to be assumed, as
the clear construction of the Statute, that a
sheriff's deed, as well as any other, must be
recorded. There is no good reason why it
should not be so. The object of the Statute
was to enable purchasers to ascertain the valid-
ity of the title, and to determine whether they
could purchase with safety ; and the law re-
fers them to the record for this purpose.
If the sheriff's sale is to defeat the pur-
chaser, he would in vain seek for the evidence
of the title. And if it should be admitted, as
was urged upon the argument, that the return
•on the execution might be so special as to
supersede the necessity of a deed, it would
not 'dispense with the necessity of having it
recorded. This return would then ,be the
evidence of title, and ought to be considered
as falling within the reason of the Act ; it
would be an instrument by which the lands
would be affected ; and all such are to be re-
corded, or deemed void against subsequent
bona fide deeds duly recorded. But although,
in the case of Simondx v. Catlin, it is said that
on a sheriff's sale of land a deed or note in
writing, signed by the sheriff, is necessary to
pass the title, a return indorsed on the execu-
tion never has, as yet, been considered, by
this court, as sufficient for that purpose.
Upon the whole, therefore, we think it will
best comport with the reason and policy of the
Statute, as it certainly does with the letter, to
extend it to sheriffs' deeds as well as to others.
The deed to the lessor of the plaintiff, having
been first recorded, is entitled to priority.
Judgment must, accordingly, be entered for
the plaintiff.
Judgment for the plaintiff.
Cited in— 18 Johns., 529 ; 4 Cow., 605 ;
8 Wend., (526; 9 Paige, 136; 8 Barb., 3
.5*75; 42 Barb., 425.
698
9 Cow., 123 ;
J; 18 Barb.,
*SHEPARD t>. MERRILL. [*475
Action for Slander — Justification — Special Mat-
ter under General Izsue — Truth net Admis-
srible. under General hsue without Notice — As-
signment of Errors.
In an action of slander, for charging- the plaintiff
with having stolen the defendant's slrinjdes, a jus-
tification, stating that the plaintiff had sold the
defendant's shingles without his authority, and
afterwards denied that he knew anything respect-
ing-them, without alleging that the plaintiff took
them privately or feloniously, does not amount to
a charge of larceny, and is bad as a justification ;
nor can those facts be given in evidence in mitiga-
tion of damages.
A notice of special matter, to be given in evidence
under the general issue, although not required to
be in the strict, technical form of a plea, yet must
contain all the facts necessary to be stated in a
special plea.
The truth of slanderous words cannot be given in
evidence under the general issue, without notice,
either as a justification, or iu mitigation of dam-
ages.
Where the record is made up, a general assign-
ment of errors is sufficient.
Citations— 1 N. K. L., 575 ; 10 Johns., 142.
IN ERROR, from the Court of Common
Pleas of the County of Oneida.
The defendant in error brought an action of
slander in the court below against the plaintiff
in error. The declaration contained two
counts ; in the first it was alleged that the de-
fendant had charged the plaintiff with stealing
his shingles ; and in the second count that he
had said that the plaintiff and one Tucker had
stolen his shingles. The defendant below
pleaded the general issue, and gave notice
therewith that he should give in evidence on
the trial, that he, the defendant, "on leaving
a house in Whitestown, demised to the plaint-
iff and Joseph Tucker, left on the premises
two thousand shingles, with direction to one
John Mills to sell the same ; that afterwards
the plaintiff solely, or with the said Tucker,
without any authority of the defendant, sold
the shingles; and on the defendant's inquiring
for the shingles, denied that he knew any-
thing about them, or what had become of
them, and refused to account therefor ;
wherefore the defendant, on coming to the
knowledge of the said facts, related the same,
stating the circumstances, as he was warranted
in doing." »
The cause was tried at the March Term,
1816, of the court below, and the plaintiff hav-
ing made out his case, the defendant offered to
prove, as a justification under the notice, that
the charge of theft was true, and that the
plaintiff had, in fact, been guilty of the charges
made; which being objected to, the court over-
ruled the testimony as a justification, on the
ground that no notice to that effect had been
given. The defendant then offered to prove
the same fact in mitigation of damages, which
the court also overruled. He then offered to
prove the fact contained in the notice annexed
to his plea, as an explanation of the charge,
but offered no evidence whatever to show that
any such explanation was given when the
charges were made ; which being objected to,
the court overruled the same, and the jury
found a verdict for the defendant in error.
A bill of exceptions was tendered by the de-
fendant below to the opinion of the court,
JOHNS. REP., 13.
1816
MEICRITT v. O'NEiL.
475
which was removed into this court by a writ
of error.
47O*] *A preliminary objection to hearing
the bill of exceptions read was made by the
coqnsel for the defendant in error, that the
assignment of errors was general to the whole
record, and not to the bill of exceptions.
THOMPSON, Ch. J. Where the record is
made up, we have not required a special as-
signment of errors to the bill of exceptions,
but have considered the general assignment of
errors as sufficient.
Mr. Taleot, for the plaintiff in error, con-
tended that the evidence offered at the trial
ought to have been received in justification ;
that the notice, though not drawn with the
technical precision or a special plea, was suf-
ficient for the purpose of apprising the plaint-
iff of the ground of defense ; that, if the facts
stated in the notice amounted to felony, or
would justify a jury in drawing the inference
that it was a felonious taking, it was all that
was necessary. (1 Johns. Cas., 279 ; 8 Johns.,
465.) That circumstantial evidence might be
given in evidence in mitigation of damages.
(Peak's Ev., 257 ; 2 Campb., 251.)
Mr. Storm, contra, insisted that the notice of
justification ought to state a felonious taking,
or circumstances amounting to felony ; that
thN notice contained no allegation of a felony,
«ut stated merely a breach of moral obligation,
r of an implied contract. Truth cannot be
given in evidence, even in mitigation of dam-
ages, without notice. (Runyan v. Niwtt*, 11
Johns., 547.)
SPENCER. J., delivered the opinion of the
court :
The court below properly excluded the evi-
dence offered on the trial. Notice, under the
Statute, must apprise the opposite party of
every material fact intended to be given in
evidence. The Statute (1 N. R. L., 515)
authorizes a defendant to plead the general
issue, and to give any special matter in evi-
dence, which, if pleaded, would be a bar to
the action, giving notice with the plea of the
mutter or several matters, so intended to be
gi.ven in evidence.
The true way to test the sufficiency of a
notice, is to inquire whether the matters con-
tained in jt, if pleaded specially, would be
good on general demurrer. Applying that
test to this case, the answer is obvious. The
declaration alleges that the defendant below
charged the plaintiff below with a theft ; and
477*] the *notice states that the plaintiff be-
low sold the defendant's shingles, without
authority, and that he afterwards denied that
he knew anything about the shingles. This
by no means imputes a larceny, but rather
the telling a lie. It is not stated that the
shingles were taken privately or feloniously ;
ami if they were not, a subsequent denial of
taking them would not make the taking felon
ions. A notice need not partake of the form
and strict technicality of a special plea, but
it must contain the substance of a plea ; or,
otherwise, what was intended for the ease and
accommodation of one party would operate
most injuriously to the other, by surprising
him with facts which he could not expect to
meet. The case of Laurence v. Kniet, 10
JOHNS. REP., 12.
Johns., 142, contains the principle which I
have endeavored to elucidate.
No principle is better established than that
the truth of slanderous words cannot be given
in evidence under the general issue, either as
a defense or in mitigation of the damages.
The facts offered to be proved on the trial
of this case, under the notice, and in mitiga-
tion of damages, were irrelevant, and there-
fore, correctly excluded.
Judgment affiriiittl.
Limited -38 Conn., 48.
Cited in— 17 Johns., 218; 8 Wend., 572: 24 Wend.,
357 ; 28 Wend., Ifltt ; 3 Hill, 259 ; 4 N. V., 166 ; « Hurb.,
58 ; 13 Barb., 223.
MEKRITT*. O'NEIL.
Tre«]Hut»—Imjwnnding Reastx Damage Peasant.
If a person impound lieasts, taken rtamtivr feamnt
before the damages have been ascertained by the
fence viewers, he is liable to an aetion of trespass
by the owner.
And it is no defense to such action that the
owner of the lieast is himself the pound muster, if
the distrainer lias actually put them into his cua-
tody as pound master.
Whether it would be a defense if they had not
been delivered to the owner, as pound master.
Qumre.
Citations— 2 Johns., 191 : 10 Johns., 253.
IN ERROR, from the Court of Common
Pleas of the County of Ulster.
The plaintiff in error brought an action of
trespass, de bonin iisportatis, against the de-
fendant in the court below, for taking aqd
driving away his hog. The cause was tried
at the December Term, 1815, of the court be-
low.
On the trial, it appeared that the plaintiff's
hog came, on Sunday, into the cornfield of
the defendant, and that the defendant drove
it into his barnyard, and kept it there until the
next morning, and then drove it to the house
of the plaintiff, who was pound master for the
town of Hurley, where both the parties re-
sided, and told him that he had brought the
hog to be impounded for having done damage
the day before in his corn, and directed the
plaintiff to impound the hog. The plaintiff
*then turned the hog into his barnyard, 1*478
which was used as the public pound tor the
town of Hurley, and told the defendant that
the hog was impounded, and the defendant
then went away. The defendant, after the
hog had been delivered to the plaintiff, called
the fence viewers to appraise the damage done
by the hog, which they appraised and certi-
fied at $4, beside their fees; and the plaintiff,
afterwards, as pound master, advertised and
sold the hog for $4.
The court below having expressed their
opinion that the plaintiff ought not to recover,
he excepted to their opinion, and submitted to
a nonsuit. A bill of exceptions was tendered
to the judges of the court below, which was
sealed by them, and removed into this court
by writ of error.
Mr. W. Dtier, for the plaintiff in error, con-
tended that, as the damages had not been as-
sessed before the hog was impounded, the
defendant was a trespasser nb initio (2 N. R.
L., 184; 2 Johns., 191 ; 10 Johns., 254, 869).
and the circumstances of the plaintiff himself
«99
473
SUPREME COURT, STATE OP NEW YORK.
1816
being the pound master, could make no differ-
ence. As a public officer, be was bound to
keep all cattle, &c., brought to him to be im-
pounded. The pound master is a mere depos-
itary. (Cowp. , 476.) He is not a ministerial
officer, like a sheriff. The person distraining
is the active party; the pound master is
merely passive, and is to keep the beast as in
the custody of the law.
Mr. C. H. Euggles, contra, insisted that the
object of the Statute was to give greater force
and effect to the common law remedy of dis-
tress, in order to compel the owner of the
beast,* who is a wrong doer, to make satisfac-
tion to the party injured ; but the very purpose
of the Act would be defeated, if the party dis-
training was obliged to put the distress or
pledge into the hands of the wrong doer him-
self ; the Act never could have contemplated
such a case. If a en. sa. issue against a
sheriff, is he to imprison himself ? In Day v.
Brett, 6 Johns., 22, which is analogous in prin-
ciple, the court said, in case of a ca,. sa. against
the sheriff, the coroner was bound to make his
own house the prison ; it being a casus omissus
in the Statute. So the present must be re-
garded, also, as a casus omissus, and the party
distraining is to proceed as at common law,
and keep the beast in his own custody. (3 Bl.
Com., 6,7: Co. Litt., 47 b.)
Again ; if a distress is taken irregularly,
470*] the owner of the beast *may retake it
(Co. Litt., 161); and if it comes again into his
possession, he may keep it ; and if it is in the
possession of the owner lawfully, he cannot be
made a trespasser ab initio. If the taking of
the beast was void as a distress, the pound
.master was not bound to keep and impound it.
It is precisely as if the defendant in error had
exercised his right of recaption. In the case
referred to in Cowper, the owner of the beast
and pound keeper were different.
Per Curiam. This case comes before the
court on a writ of error to the Common Pleas
of Ulster County ; and the question arises upon
a bill of exceptions taken at the trial. It was
an action for trespass, for taking, damage feas-
ant, a hog of the plaintiff, 'and impounding it,
before having the damages ascertained. This
has been repeatedly decided by this court to
be irregular and unlawful, and to render the
party impounding a trespasser. (2 Johns.,
191 ; 10 Johns., 253.) It has been attempted,
however, to take this case out of the principle
which governed former decisions, because the
plaintiff here is himself the pound keeper, and
the defendant not bound to put the distress
into his custody. But, under the facts in this
case, the defendant cannot claim any benefit
from this distinction, if any exists, 'because he
did put the hog into the pound, notwith-
standing the plaintiff was the keeper; and it
was received and treated as a beast impounded,
and the defendant cannot be permitted to say
the plaintiff was not bound to receive the hog,
or he to deliver it to him. The court below,
however, decided that the action could not be
maintained, under such circumstances, and
nonsuited the plaintiff. In this they erred,
and the judgment must be reversed.
Judgment reversed.
Cited in— 7 Cow., 632.
700
*VAN VALKINBURGH [*48O
0 ***
WATSON AND WATSON.
Parent Must Supply Necessaries — Third Person
Cannot, when Child Lives with.
A parent is bound to provide his infant children
with necessaries; and if he neglect. to do so, a
third person may supply them, and charge the pa-
rent with the amount.
But such third person must take notice of what is
necessary for the infant, according1 to his situation
in lite ; and where the infant lives with his parent,
and is provided for by him, a person .furnishing"
necessaries cannot charge the parent.
Citations-1 Esp., 17, 211 ; 2 W. Bl., 1325.
N ERROR, on certiorari to a justice's court.
I
The defendants in error brought an action
in the court below against the plaintiff in error,
for necessaries furnished by them to his infant
son. On the trial, it appeared that the son of
the defendant below came to the store of the
plaintiff's below, and purchased a coat for him-
self ; but there was no evidence that it was
done with his father's consent. The defend-
ant proved that his son lived in his family,
and was comfortably and decently clothed, ac-
cording to his circumstances. A verdict and
judgment were given for the plaintiffs- in the
court below.
Per Curiam. A parent is under a natural
obligation to furnish necessaries for his infanfr
children ; and if the parent neglect that duty,
any other person who supplies such neces-
saries is deemed to have conferred a benefit on
the delinquent parent, for which the law raises
an implied promise to pay on the part of the
parent. But what is actually necessary will
depend on the precise situation of the infant,
and which the party giving the credit must be
acquainted with, at his peril. (Simpson v.
Robertson, 1 Esp., 17; Ford v. Fothergill, Id.,
211.) In the case of Bainbridge v. Pickering., 2
W. Bl., 1325, Gould, /., says, with great pro-
priety : " No man shall take upon him to dic-
tate to a parent what clothing the child shall
wear, at what time they shall be purchased, or
of whom : all that must be left to the discre-
tion of the father or mother." Where the in-
fant is sub potentate parentis , there must be a
clear and palpable omission of duty, in that
respect, on the part of the parent, in order to
authorize any other person to act for and
charge the expense to the parent. In this case
there is no ground to charge the father with
any neglect of duty in providing necessaries
for his child, and the judgment must be re-
versed.
Judgment reversed.
Cited in— 5 Wend., 562 ; 11 Paige, 188 ; Hoffm.. 59 ;
55 N. Y., 261 ; 26 Hun, 149 ; 10 Barb.. 485 ; 13 Barb.,
507; 24 Barb., 6*5; 2 Bradf., 289; 1 Hilt., 109, 157.
*WHEELOCK
v.
BRINCKERHOFF.
[*481
Practice in Justice Court — Security by Non-resi-
dent Plaintiff.
The security required to be given by a non-resi-
dent plaintiff, in commencing1 an action before a
JOHNS. REP., 13.
1816
HASTINGS v. WOOD.
481
Justice of the peace, by a warrant, may be a deposit
of money with the Justice.
And where, in an action of trespass, $5 were de-
posited as security, it was held sufficient.
Citation-1 N. R. L.,388.
TN ERROR, on certorari to a justice's court.
The plaintiff in error, who was also plaintiff
in the court below, brought an action of tres-
pass, drboni»a*portatis, against the defendant,
and, being a' non-resident, the suit was com-
menced by warrant, on his depositing $5 with
the justice, as security. Upon the return of
the warrant, the defendant inquired of the jus-
tice whether the plaintiff had given security,
and was informed, generally, that he had,
without stating the nature of the security.
The cause was then adjourned, and at a sec-
ond meeting, the defendant inquired respect-
ing the security, and was then told that $5 had
been deposited for that purpose. This was
objected to by the defendant, and the plaintiff
refusing to give other security, the justice non-
suited him. The plaintiff, afterwards, offered
to give other security, but the justice decided
that it was then too late.
Per Curiam. The Act (I N. R. L., 888) de-
clares that if a non-resident plaintiff tenders to
the justice security for the payment of any
sum which may be adjudged against him, he
shall be entitled to have a warrant against the
defendant. The nature of the security is not
designated, and there can be no good reason
why the deposit of money should not be
deemed competent security ; and if so, the
sum deposited was sufficient. It was to as
great an amount as could be adjudged against
the plaintiff ; the action being trespass, there
could be no set-off, and the costs are limited to
$5, except under some special circumstances,
which we are not to intend existed in this case.
The judgment must, therefore, be reversed.
Judgment reterted.
482*]*HASTINGS v. WOOD AND CURTIS.
Trespa*» — Property Converted by Government.
In a declaration in trespass on the case, it was al-
leged that the defendant, by false representations,
procured certain cattle belonging to the plaintiff to
be seized by a custom house officer, under pretense
that they were about to be smuggled into Canada,
and then proceeded to state that, in consequence of
those representations, the cattle were converted and
<lis|io*-<l of to the use of the United States; it was
held that after a verdict for the plaintiff, it could
not be intended from this allegation that the cattle
were condemned as forfeited to the United States.
IX ERROR, from the Court of Common
Pleas of the 'County of Franklin.
This was an action of trespass on the case,
brought by the defendants in error against the
plaintiff in error. The declaration contained
two counts : 1. A count in trover, for five
yoke of oxen and five cows. 2. A special
count, which stated that the plaintiffs below
were possessed, as of their own property, of
one yoke of oxen and one cow, which were
feeding on the commons and public highway
of the town of Constable, and that the de-
fendant took up the said cattle, and impounded
JOHNS. REP., 18.
them upon his own premises : and while they
were in his possession, insinuated, represented,
and affirmed, to one Danforth, then an inspec-
tor of the customs for the district of Cham-
plnin, that they were intended to be smuggled,
and liiid been smuggled into Canada ; by
reason of >vhich false representations, Dan-
forth was induced to seize the cattle, as for-
feited to the use of the United States, and, as
inspector of the customs, did seize them, still
being in the possession of the defendant, and
at his instance ; in consequence of which false
and malicious representations, they were con-
verted and disposed of to the use of the United
States.
The cause was tried at the June Term, 1815,
of the court below. At the trial, the plaintiff
having closed his evidence, the defendant
moved for a nonsuit ; but the court permitted
the cause to go to the jury, who found a ver-
dict for the defendants in error. The counsel
for the plaintiff in error excepted to the opin-
ion of the court, and the bill of exceptions,
with the record and pleadings, were removed
into this court by writ of error.
Mr. Wendell for the plaintiff in error.
Mr: Walworth, contra.
Per Curiam. This case comes before the
court on a writ of error to the Common Pleas
of Franklin County. The record is accompa-
nied by a bill of exceptions. But the counsel
on the argument abandoned all objections
growing out of the bill of exceptions, and re-
lied entirely upon an alleged defect in the
second *count in the declaration. This[*48i5
is a special count, for having fraudulently pro-
cured certain cattle belonging to the plaintiff
to be seized by a custom house officer, under a
pretense that they were about to be smuggled
into Canada, contrary to the laws of the
United States ; and alleged that, in conse-
quence of such fraudulent conduct, the said
cattle were converted and disposed of to the
use of the United States. This, as is contended
on the part of the defendant, is equivalent to
an averment that the cattle were condemned as
forfeited to the United States, and of course,
that the plaintiff had no interest or title to
them. This allegation will not fairly warrant
the construction that the cattle had been con-
demned as forfeited, but only that, by the rep-
resentations of the defendant, they had been
seized and taken possession of by an officer of
the United States, under a pretense of their
being forfeited, and by such seizure were con-
verted and disposed of to the use of the United
States, and the plaintiff thereby deprived of
them. We ought not to pretend, after verdict,
that there was any proof or suggestion upon
the trial of a condemnation. The judgment of
the court below must, accordingly, be affirmed.
Judgment affirmed.
NELSON v. SWAN.
Pleading — Common Money Count* — Bad Countt
Cannot be Joined with.
Where there is a demurrer to the whole declara-
tion, and one of the counts is bad. that count can-
not be referred to for the purpose of helping out
and aiding another count.
701
483
SUPREME COURT, STATE OF NEW YORK.
1816
The common money counts may be united in one
count, in which may also be comprised a count for
goods sold in the like general form.
But a count, generally, for certain lands sojd and
conveyed by the plaintiff to the defendant, without
any particular description, is bad, and cannot be
joined with the common counts.
Citations— 4 Johns., 283 ; 2 Saund., 122, n. 2.
rPHIS was an action of assumpsit. The dec-
J- laration contained two counts: 1. The
first count stated that the plaintiff was pos-
sessed of thirty acres of land, in lot No. 139,
in the Oneida Reservation, which was adver-
tised for sale, by virtue of mortgage to the
people of the State of New York; and that, in
consideration that the plaintiff had bargained
and sold the same to the defendant, for a cer-
tain stipulated sum agreed upon, and that the
plaintiff would accept the same, exclusive .of
$96. the defendant promised to pay the plaint-
iff $96, provided that, at the public sale of.
the land, it should be bid up only at such a
sum that the defendant should find it for his
interest to purchase ; and the plaintiff avers
that, at the sale of the land, it was bid up for
such a sum that the defendant found it for his
interest to purchase and receive the title to the
same, and actually did purchase and receive
the same, by means wliereofi, &c.
484*] *2. The second count stated that the
defendant " was indebted to the said plaintiff
in the sum of $20W, current money of the
State of New York, for certain lands sold and
conveyed by the said plaintiff to the said de-
fendant, at his special instance and request ;
also, in the further sum of $200, of like cur-
rent money, as well for divers goods, wares
and merchandise, sold and delivered by the
said plaintiff to the said defendant, at his like
instance and request ; also, as well for money
paid, laid out and expended by the said
plaintiff, to and for the use of the said defend-
ant, as money lent and advanced by the said
plaintiff to the said defendant, at his like
special instance and request ; also, as well for
work and labor, care and diligence done, per-
formed, and bestowed, by the said plaintiff, in
and about the business of the said defendant,
at his like special instance and request, as on
an account stated between them, in considera-
tion whereof, &c."
The defendant demurred to the whole dec-
laration, and assigned several causes of de-
murrer, of which it is only necessary to notice
those that apply solely to the second count, the
first count being admitted to be bad. These
were: 1. That the* causes of action stated in
that count could not be joined. 2. That a
general count, indebitatus assumpsit, ought to
be confined to a union of the money counts
alone. 3. That the stating an indebtedness for
"certain lands," and "on an account stated,"
is too vague and uncertain. 4. That no prom-
ise to pay the sum of $200 for the land is any-
where alleged. The plaintiff joined in de-
murrer.
Mr. Starrs, in support of the demurrer. He
cited Bailey & Bogert v. Freeman, 4 Johns. , 280.
Mr. Talcot, contra. He cited 1 Chitty's PI.,
643 ; 1 Saund., 108; 2 Saund., 379 ; 2 W. Bl.,
410; 2 Chitty's PI., 7; Yelv., 175.
THOMPSON, Ch. J. , delivered the opinion of
the court :
702
This is a special demurrer to the whole dec-
laration, which contains two counts. It was
admitted, on the argument, by the plaintiff's
counsel, that the first count could not be sup-
ported ; but it was contended that the second
was good; and the demurrer being to the
whole declaration, the plaintiff was entitled to
judgment. The *second count is im- [*485
perfect, unless helped by reference to the
first ; and when the demurrer is general, and
one count is bad, nothing in that count can be
resorted to for the purpose of helping out and
aiding another count. We must look at the
other count as if the defective one was struck
out of the declaration. Independently of this
difficulty, however, the second cannot be sup-
ported. The special cause of demurrer is,
that the count embraces several causes of
action, some of which are too generally stated.
It has been decided in this court, in the case
of Bailey & Bogert v. Freeman, 4 Johns., 283,
that the common money counts may be united
in one. in the manner adopted in the declara-
tion before us ; and this is conformable to the
established practice in England. The decision
in this court went no farther than as to the
money counts. But this does not appear to
be the limit according to the English practice
and precedents, nor can there be any good
reason urged why it should be. In the case
in Saunders (2 Saund. ,*122, n. 2), to which we
refer as sanctioning the practice, the count
for goods sold and .delivered is blended with
the money counts, under this general form.
The generality of the statement of the several
causes of action in one count would be excep-
tionable, as tending to a surprise upon the
defendant, were it not for the practice of fall-
ing on the plaintiff for a bill of particulars, by
which the defendant is better apprised of the
particluar cause of- action than he would
be by a more special count. But, in this
case, the count also embraces a cause of
action for land sold and conveyed, gen-
erally, without any particular designation
or description. This is going farther than
is warranted by any precedents that have
fallen under my observation, and further
than ought to be sanctioned. Land sold
and conveyed is a good consideration for
a promise; but, in such case, according to the
precedents, the land sold is particularly and
specially described in the declaration ; and it
is most advisable to adhere to the precedents,
and not introduce too great laxity in pleading.
The defendant must, accordingly, have judg-
ment upon the demurrer, with leave, however,
to the plaintiff to amend his declaration.
Judgment accordingly.
Cited in— 9 Allen, 390; 40 Mich., 34.
*WOOD v. BULKLEY. [*48(i
Promissory Note — Variance — Setting Aside Ver-
dict— Record.
A promissory note was alleged in the declaration,
to have been drawn by the defendant, by the name
of " Christopher TJulkley ;" and the note produced
in evidence was signed r' Christ. Bulkley ; it being
proved that this was the defendant's usual mode of
signing his name, it was held that there was no va-
riance.
JOHNS. REP., 18.
1816.
TAYLOR v. BETSKOUD,
48S
A defendant cannot allege at the trial that there
is a variance between the copy of the declaration,
as served and the JVfxi Priu* record : the judjre
must be jroverned by the record alone, and If there
is a material variance, the party must apply to the
court to set aside the verdict.
THIS was an action of a*»ump»it upon a
promissory note, made by the defendant,
and payable to the plaintiff. The cause was
tried before Mr. Justice Yates. at the Ononda-
ga Circuit, in 1816.
The declaration contained but one count,
which was on a promissory note, drawn by
the defendant, " by the name and description
of Christ. Bulklev." The defendant's coun-
consent of the plaintiff in error, who, how-
ever, knew that the justice was going, and did
not object to it. A verdict and judgment was
given in the court below for the defendant in
error.
Per Curiam. The only error necessary to
be noticed in this case is, that the justice
went into the room with the jury, at their re-
quest, privately and apart from the parties,
to answer certain questions proposed to him
by the jury. This we have repeatedly held to
be erroneous, unless done with the consent of
the purties. Whether the information given
by th'.1 justice were material, or had auv infill-
, . _•• . « • - - u y i ii' i ti -i n t '><ii iiitii<ii(*!,\'iiifi\i<»uvnjiiu-
sel objected to the admission of the note, on > en(>e ' the verdjc( of thc ju ,s a'matter
the ground of a variance between the signa- ( wh|ch 'W(? w|,, n<* tnquitt faito. In the prcs-
ture of the note and the name stated in the | ent ,t cannot fair} he inf(,rml ,hat the
declaration; but the judge overruled the ob- , p,aln,,ff in error,rave his consent, unless from
iect.on. and the plaintiff proved that the de {,)R circumsta'nces that he know ,,mt the 1ns.
fondant usually signed his name in the same : |ice Wfts ffoi ,n to the . and d|d no,-ob.
manner.** in the note in question. The de- , jec, Rut ,bis ., not enou ,u The practif.e J8
fendant s counsel offered to prove a variance Jdanj,eroU8 and improper, and ought to be
between the copy of the declaration served I unrded against . and t|ie consent „,,,,„, not
and the Aw 7V* MX record, as to the name of
to be matter of inference/as it mav be liable
the defendant. The judge refused to receive fo abus(? [{ ht ,0 a ifflrmntive-
the testimony, and a v.-rdu-t was found for the ,y ^ u ww don<. wjth UM, co^sent of parties
If they are present, it may be easily ascertained
whether they will give it or not, and then the
door will be shut against abuse, by reason of
misunderstandi'iiir. or wrong conclusions
amount of the note.
The defendant now moved for a new trial,
and the cause wus submitted to the court with-
out argument.
' Per Curiam. The motion for a new trial
must lie denied. There was no material vari-
drawn from circumstances ; and. upon this
ground, the judgment must be reversed.
Judgment reversed.
Followed— 4 Donio, 115.
I.imit.-.l 1 Hill. C,'.
T)istlnaruish«'d— 30 Barn., 277.
< 'itc-d in-1 Cow., y* ; 13 Wend.. 275 : 24 Wend.,
ance between the note set out in the declara
tion and the one produced in evidence. The
signature of the defendant , by the abbrevia-
tion of Christ, for Christopher, was proved to
be the usual and ordinary way in which he
signed his name. According to the case, there i i«7 : •« N. Y., «tl : 18 Hun. 367 : 8 Barb. 5fir, : 55 B«rb ,
is in point of fact, no variance between the «H : 51 How. Pr., 474 ; 41 Super., 176; 124 Mass., 569.
A"w* Prins record and the copy of the declara-
tion, as served on the defepdant, even if such
proof could have been admissible. But this
was riot matter that could be inquired into
upon the trial. The judge at the Circuit must
be governed by the Nififriut record, and Any
variance, if material, must be made the sub-
ject of an application to the court, and the
verdict would, no doubt, be set aside, if the
defendant was prejudiced by such variance.
But no such variance appears to exist in this
case, according to the defendant's own allega-
tion.
New trial denied.
Cited in-1 Wend., 218; rt6 N. V., 564.
487*] TAYLOR r. BETSFORD.
Justin Not to Deliberate Privately with Jury.
A Justice cannot deliberate, privately and apart
from the partlt-s, with the Jury, in a trial before
him. unless with the consent of the parties; which
consent cannot be inferred from their silence, but
must be made to appear ullirmativcly, otherwise
the Judgment will be reversed.
IN ERROR, on certutrari to a justice's court.
. When the jury in the court below retired
to delilx-rate upon their verdict, the justice, at
the request of the jury, went into the room
with them, to answer certain questions pro-
posed to him by the jury, but was not accom-
panied by the parties, nor had obtained the
JOIINS. REP., 13.
•JACKSON, ex dem. SMITH, [*488
v.
VROOMAN.
Ejectment — Grantee in Posite»inon — Not a Party
to Partition — Kight* against Purchaser — Ad-
rerxe Pox*e*»ion.
Wherp land was conveyed, and the RTantec rn-
tered into possession, and afterwards proceeding
were had in partition, in relation to the same prvm-
Ises to which the irrantee was not a party, and the
premises were sold by commissioners appointed by
the court, and com i 'yd by them t<> the purchaser;
it was held that the first jrrantee was not precluded,
by the proceedings in partition, from controvert-
iiiir the rijrht of the sutwi|iicnt purchaser. and that,
his possession neinjr adverse, the deed from the
commissioners was void.
Cltation-l N. R.'L., 610, sec. 5.
THIS was an action of ejectment brought to
recover part of lot No. 106. in Klock and
Nellis' patent, situate in the town of Palatine,
in the County of Montgomery. The cause
was tried l>efore .!//•. Justice Yates, at the
Montgomery Circuit, in August, 1815.
The plaintiff claimed under proceedings and
judgment in partition, in the Court of Com-
NOTB.— Real property — Grant of land held ad-
Fur full (U*ru>tK(iin. «ee Whltnkerv. Cone, 2 Johns.
Cas.. 58. nnte : Jackson v. Todd. 2 Cal., 183, note;
Jacktmn v. Shurp, '.' Johns., 163, note ; Jackson v.
Wheeler, 10 Johns., 164, note.
703
488
SUPREME COURT, STATE OP NEW YORK.
1816
mon Pleas of the County of Montgomery,
under which the premises in question were
sold by commissioners appointed by the order
of the court, who conveyed the same to the
lessor of the plaintiff, by deed, dated the 19th
January. 1814. The defendant claimed under
a conveyance of lot No. 107, from George Ten
Eyck to himself, dated the 7th of April, 1810,
and proved that the premises in question were
comprehended within the boundaries of that
deed ; that he took possession under that
deed in about a month after its execution, and
had since continued in possession. The judge
decided that the possession of the defendant
being adverse, the deed to the lessor of the
plaintiff was void, and the jury accordingly
found a verdict for the defendant.
The plaintiff now moved for a new trial,
and the cause was submitted to the court with-
out argument.
Per Curiam. The premises in question are
claimed as being a part of lot No. 106, in
Klock and Nellis' patent, and the lessor of the
plaintiff makes title to the same, under pro-
ceedings in partition, by which it appears that
lot No. 107 was ordered to be sold, and a deed
was given for it by the commissioners, bear-
ing date the 19th of January, 1814. No part
of the. proceedings are particularly set out.
But it is not pretended that the defendant was
a party to those proceedings ; and he claims
title to the same premises, under a deed from
George Ten Eyck, bearing date the 17th of
April, 1810, by which the premises in question
are described as lot No. 107, in the subdivision
of the patent, and are further described by
metes and bounds, so as to include the prem-
ises in question ; it also appears that soon after
489*] the deed was given, the defendant *en-
tered into possession of the premises, and has
continued in possession ever since. The deed
given by the commissioners is conclusive only
upon all the owners named in the proceedings, or
who have received the notice required by the
Act (1 N. R. L., 510, sec. 5), and those claim-
ing under such persons. But from anything
that appears, the defendant is a total stranger
to such proceedings, and is protected under
the proviso to the 3d section of the Act,' which
declares that such partition shall not preclude
any person not named therein, and who shall
claim any right or title to the premises in ques-
tion, from controverting the title or interest of
the parties between whom such partition has
been made. The testimony shows, very clear-
ly, that the premises were held adversely by
the defendant at the time of the sale by the
commissioners, and their deed, of course,
could not pass any title. The verdict found
by the jury for the defendant was correct, and
the motion for a new trial must be denied.
Motion denied.
Cited in-2 Barb., 159.
BANCROFT ET ux. v. WARD WELL.
Landlord and Tenant — Use and Occupation —
Lies Only against a Tenant.
An action for use and occupation can only be
maintained where the relation of landlord and ten-
ant exists between the parties ; and it will not lie
704
against a person who has come in under the plaint-
iff as a purchaser from him.
Citation— 6 Johns., 49.
JTUI1S was an action of assumpsit, for use and
J- occupation, which was tried before Mr.
Justice Van Ness, at the Oneida Circuit, in
June, 1816.
The premises in question were situate in the
town of Rome, in the County of Oneida, and
were part of certain lauds which had been held
by one Hawes, under a lease for three lives,
who died leaving several children, his heirs at
law, and a widow, who was now the wife of
the plaintiff, whose dower was assigned to her
in severalty by the heirs, which the plaintiff
had improved and leased, reserving the rents,
for several years, until 1812. One Peck, a
witness on the part of the plaintiffs, testified
that the large lot, of which the premises are a
part, was held in different proportions by sev-
eral tenants, among whom was the defendant,
under a lease from John Lansing, Jr. ; that
the witness, by the defendant's orders, had
taken possession of his part *of the [*4{)O
large lot which lay in Rome, and fenced in and
cultivated a certain piece called the 'ryefield,
containing eighteen or twenty acres.which had,
for several years, been uninclosed, and about
one third of which had been assigned to Mrs.
Bancroft; that the next year the plaintiff
(Bancroft) called OD the witness, and said that
he thought .the defendant ought to pay him
something for his right in the lot, or do some-
thing about his claim to it, and wished to sell
it. To this the witness replied that he had no
authority from the defendant to make any
bargain for him; that the witness, at Bancroft's
request, wrote to the defendant, stating, in sub-
stance, what Bancroft had said, and wishing
his directions, to which he shortly after received
a letter in reply, directing him to take posses-
sion, at all events, of the remainder of the same,
including the residue of the land claimed by
the plaintiffs, and that he, the defendant.would
do what was right about it ; that the witness,
accordingly, took possession of a piece of land
called the elder lot, which was then uninclosed,
and cleared it and fenced it. with the consent
of the plaintiffs, under the above-mentioned
arrangement ; that the defendant soon after
arrived from Rhode Island, where he then re-
sided, and on Bancroft's proposing to sell his
wife's right, the defendant said that the plaint-
iffs had no right to the land claimed by them,
and ought to pay him for waste committed
upon it ; that the witness had never heard
Bancroft make any claim for the use and occu-
pation of the premises, but merely wished to
sell his claim in right of his wife's dower; and
that the defendant had improved the land until
the time that this suit was brought. Another
witness for the plaintiffs stated that he was
present at conversations between Bancroft and
the defendant, in which the former never pre-
tended that he had any claim to demand rent of
the defendant, but his only object was that the
defendant should pay him something on a pur-
chase of his claim, and in that way extinguish
it; and that Bancroft said that he supposed
that the defendant would give him something
for his claim, in consequence of the letter
which he had written to Peck; that the defend-
ant replied that Bancroft had committed great
REP., 13.
1816
YORDAS v. HESS.
490
waste upon the land, and that be had no right
to it, and. therefore, he considered himself
under no obligation to give him anything for
his claim, but that Bancroft ought to pay him
for the waste.
Upon this evidence, the judge directed the
41)1*] plaintiffs to be 'nonsuited . and they
now moved the court to set aside the nonsuit.
Afr. SUtrrt, for the plaintiffs, contended that
the Statute intended to afford a liberal remedy
against tenants, and that wherever a tenancy
exists, the action for use and occupation would
lie. That unless there was a contract of sale,
the defendant must be considered as a tenant at
will. That, there being no terms or price or
quantity of land agreed upon, there could be
no contract of sale. That this case was distin-
SuMiable from that of Smith v. Stewart, 6
oli n-.. 46, where the defendant entered under
color of a title that could be enforced in a court
of equity. The defendant is a tenant at will
(Jackxon, v. Bradt, 2 (.'nines, 169). without a
reservation of rent. The plaintiffs are not
bound to treat him as a trespasser. It is enough
that the defendant himself.or by hisagent.occu-
pies the land. (Comyn on Cont., 511 ; 1 Esp.
Cas., 59 : Bl., 328.) If the defendant cannot
in this action dispute the plaintiff's title, it
must be on the ground of tenancy.
Mr. Talcot, contra, insisted that the defend-
ant did not. in any manner, enter into posses-
sion under the plaintiffs, so as to create the
relation of landlord and tenant ; and that the
fjMff of Smith v. Stewart was directly in point.
In Ktrtland v. PmirweU, 2 Taunt., 145, the
Court of Common Pleas, in England, decided
that if a purchaser takes possession under a
contract of sale, which, afterwards, on account
of some defect in the vendor's title, is not exe-
cuted, the vendor cannot recover for the use
and occupation for the time the vendee was in
possession.
Again; this action should have been been by
the husband alone. Though the defendant
cannot dispute the title of the plaintiff in this
action, he may deny that the wife has any in-
terest. The promise, if any, was made to the
husband, not to the wife ; and without an
express promise to her, she cannot be joined.
(1 Salk., 112 ; 2 W. Bl., 1236.) There was no
estate of which she could be endowed. (1
Cruise's Dig., 151.) The husband alone has an
action of debt for rent. (Vin. Abr., Baron et
Feme, 2, pi. 8. note, pi. 12.)
• Per Curiam. This is a motion to set aside a
nonsuit granted at the trial. The action is for
use and occupation ; and the question is,
whether the evidence was sufficient to support
the action. It is a well-settled principle that
this action cannot be sustained, unless the
relation of landlord and tenant exists between
the parties. But the facts in this case furnish
41>«2*| no 'evidence of any such relation.
If the defendant could be considered as holding
at all, under or by permission of the plaintiffs,
it was as a purchaser, and not as a tenant.
Such holding is not enough to maintain this
action, according to the decision of the court
in the case of Smith v. Stewart, 6 Johns.. 49.
There were no facts from which a tenancy
could be inferred, and therefore nothing which
ought to have been submitted to the jury.
JOHNS. REP., 18. N. Y. R.. 5.
The first application made by Bancroft to the
defendant's agent was to sell his claim to the
land in question, and which then lay in com
mon. Neither the letter written by "the agent
to the defendant, nor the answer, intimate any
agreement to take possession as tenant. But
the defendant directs his agent to take posses-
sion, at all event*, and be would do what was
right about it, when he came up. The posses-
sion was afterwards taken, with the consent of
the plaintiffs, and under the above arrange-
ment. The defendant never had consented to
any arrangement, other than to do what was
right about it, and the only proposition made
by the plaintiffs was to sell ; and it was im-
possible, from these facts, to infer any agree-
ment that could create the relation of landlord
and tenant. The motion to set aside the non-
suit must, therefore, be denied.
Motion denied.
154 ; 43 Mo.. 178.
YORDAN v. HESS.
1. U*ury — Promixwry Note for Larger Rum-
Mum Actually Received. 2. Ecidence — Com-
munication* to Attorney after Relation of
Attorney and Client I» at an End, Admit-
A note was drawn payable to A and II, which was
held by C, who wished to sell the note to D, but D
refused to take it, unless indorsed by A and B: A
refused to indorse it, unless he received security for
his indemnification, which it was agreed to give, and
the note was sold to D at a discount of twenty per
cent. It being understood between O and C that
part of the money thus raised should be lent to B.
B drew a note payable to C or bearer, for the amount
actually received by him from C, with an addition of
twenty percent, on that amount, and interest there-
on from the date, which last-mentioned note was
deposited with A, as his security ; in an action by A
against B upon this note, it was held that it was
usurious and void.
An attorney or counsel cannot testify as to com-
munications made by a client, whilst the relation of
attorney or counsel and client subsists. But if. after
that relation has ceased, the former client repeat to
his attorney, voluntarily, and without any artifice
being used by the latter.cominunications previously
made, the attorney is >\ competent witness as to such
subsequent communications.
was an action of as*ump*it, against the
defendant as maker of a promissory note.
The cause was tried before Mr. Justice Van
Ness, at the Otsego Circuit, in June, 1816.
On or about the 6th of March. Ibl3, one
Williams bad made a note for $343.25, payable
to the plaintiff and defendant iu this suit, on
or before the 1st of March, 1814 ; which note
was given for the use of Heury S. Yordan.
Henry S. Yordan *and the defendant [*41)3
then proposed to sell the note to one Braman, at
a discount of about $60, but Braman refined to
purchase it, unless the plaintiff and defendant
would indorse it. and the plaintiff refused to
indorse it. unless he was indemnified. It being
understood between the defendant and Henry
S. Yordan, that the latter should lend the
defendant part of the money to be raised on
j the note, it was agreed that the note which was
to be gi yen by Hess to Henry S. Yordan, should
45 705
493
SUPREME COURT, STATE OF NEW YORK.
1816
be placed in the hands of the defendant as his
security. The discount of the note made by
Williams was effected, and a note was then
executed by the defendant, dated March 6th,
1813, to Henry S. Yordan, or bearer, for $246.-
67, with interest from the date ; and upon this
note the present suit was brought. The plaint
iff, on receiving this note, gave a receipt for it
to Henry S. Yordan, with an agreement to
return it, when he should be indemnified against
his indorsement. The plaintiff had been sued
as indorser of the note made by Williams, but
the suit was compromised, upon his agreeing
to -remain ultimately responsible in case of its
not being paid by the defendant. On this evi-
dence, the defendant's counsel contended that
the plaintiff had not such an interest in the
note in question as to enable him to maintain
an action against the maker of it ; but the
judge overruled the objection.
James Bracket!, a witness on the part of the
defendant, testified that he had heard both the
plaintiff and defendant state that when they
sold Williams' note to Braman a discount of
twenty per cent, was made, and a sum in the
like proportion was added to the note on which
this suit was brought, over and above the
amount actually received by the defendant
from Henry S. Yordan. These facts the wit-
ness learned from the parties in this suit, while
he was their attorney and counsel in suits
brought against them by Braman on Williams'
note ; and the witness stated that after he had
ceased to be their attorney and counsel, he had
twice heard the plaintiff admit that the note
in question was given for a larger sum than
the defendant had actually received ; at one
time he said that the defendant had only re-
ceived $240 ; at another time that he had only
received $220. The testimony of Brackett
was objected to by the counsel for the plaintiff,
on the ground that the disclosures were made
to him while he was the attorney and counsel
for the plaintiff, and that the subsequent dis-
closures were nothing more than a repetition
494*] *of what had been stated to him whilst
he stood in that relation to the plaintiff ; and
that, at all events, the note was not usurious.
The judge, 'however, without deciding on the
admissibility of the evidence, was of opinion
that the facts, if duly proved, constituted a
case of usury, and a verdict was taken, by his
direction, subject to the opinion of the court.
The case was submitted to the court without
argument.
Per Curiam. If the testimony of Brackett
was admissible, it must fully establish the usu-
ry. The plaintiff twice admitted to this wit-
ness that the note was given for a greater sum
than was received by the defendant. That the
money was raised by a sale of Williams' note,
at a discount, furnishes no legal excuse for im-
posing that loss on the defendant. With re-
spect to the testimony of Brackett, it does not
fall within the rule which protects the client
from a disclosure of any communications
made by him to his attorney. The confes-
sions by the plaintiff to Brackett were made
after he ceased to be his attorney ; and although
they were, substantially, a reiteration of what
had been communicated, whilst the relation of
attorney and client existed, yet they appear to
706
have been voluntary disclosures, no way
sought for or drawn out by the witness. An
attorney cannot, after he ceases to be the attor-
ney of a party, disclose what was communi-
cated to him in that capacity. But this is the
privilege of the client ; and if he chooses, after
this relation has ceased, to volunteer any com-
munications, he is not protected, although they
may be, in substance, the same as were given
whilst that relation subsisted. The reason of
the rule, then ceases. If a repetition of the in-
formation should appear to have been drawn
out by any artifice, for the purpose of being used
as evidence, it ought not to be received. But
when it is perfectly voluntary, and unsought
for, there can be no solid ground for exclud-
ing the evidence. The defendant is, accord-
ingly, entitled to judgment.
Judgment for the defendant.
*JACKSON, ex dem. BEEKMAN, [*495
c.
STEPHENS.
Ejectment — Patent — Adverse Possession.
The construction heretofore ffiven to the Kayad-
erosseras patent, is not to be called in question.
The true northwesternmost head of the Kayaderos-
seras Creek is that adopted by the commissioners,
for the division of the patent in 1770; and Baker's
Falls are the "third falls on the Albany Hiver," men-
tioned in that patent.
Where a question of adverse possession was not,
on the trial, submitted to the jury, it will be pre-
sumed to have been abandoned, and cannot be made
a ground of moving for a new trial.
Citations— 3 Johns., Cas., 86 : 1 Johns., 156.
THIS was an action of ejectment brought to
recover part of lot No. 4, in lot No. 1, in
lot No. 13, in the 25th allotment of the patent
of Kayaderosseras. The cause was tried at the
Saratoga Circuit, in May, 1815.
The principal question in this case was,
whether the commissioners, who, in 1770, run
the boundaries of the Kayaderosseras patent,
had taken the true northwesternmost head of
the Kayaderosseras Creek, and had run the
line described in the patent as follows, correct-
ly : "thence northerly to the northwestern
most head of a creek called Kayaderosseras,
about fourteen miles, more or less ; thence
eight miles northerly; thence easterly to the
third falls in Albany River, about twenty miles
more or less." If the location made by the
commissioners was correct, the plaintiff was
entitled to recover the premises in question, to
which he deduced a regular title under the
Kayaderosseras patent. A variety of evidence
was given on the trial, to support and impugn
that location, and to show an adverse posses-
sion in the defendant; which, however, it is un-
necessary to state. A verdict was taken for
the plaintiff, and the defendant moved to have
it set aside, and a new trial granted.
Mr. Skinner for the defendant.}}
Mr. J. Emott, contra.
Per Curiam. The construction to be given
to the Kayaderosseras patent has been too long
and well settled to be again called in question.
The cases of Jackson v. Lindsey, 3 Johns. Cas. ,
JOHNS. REP., 13-
1816
SIIEAK v. MALLORY.
495
86, and Jackson v. Ogden, 1 Johns., 156, show
that the place adopted by the commissioners is
to be deemed the northwesternraost head of
the Kayaderosseras ; and that the course from
thence, eight miles more northerly, must be a
due north course. It is admitted that the
third falls mentioned in the patent ate those
called Baker's Falls ; and running the line ac-
cording to these objects, will, confessedly, in-
clude the premises in question within the pat-
ent. The lessor of the plaintiff, having
49O* l*deduced a regular title to himself, he
is entitled to recover, unless the defendant is
protected by his length of possession. On this
point there might have been some reason to
doubt, had it been made a question upon • the
trial. Whether there had been a twenty years'
adverse possession or not, was matter proper
for the determination of the jury ; and the case
furnishes pretty strong evidence on this point,
at least up to what is called the middle line.
But as the question does not appear to have
been at all submitted to the jury, we must pre-
sume it was abandoned upon the trial, and the
motion for a new trial must be denied.
Motion denied.
Cited in-33 How. Pr., 221 ; 5 Rob.. 271.
SHEAR
e.
MALLORY AND BRYANT, Overseers of the
Poor of the Town of HILLSDALE.
Action by Third Party on Promise.
Although, in some' cases, an action may be main-
taln<-d on a promise, the consideration for which
moves from a third person, by the party in whi»se
favor the promise was made, yet, when neither the
consideration moves from the plaintiff, nor the
promise was made to htm, or for his benefit, an ac-
tion cannot be maintained.
Where a promise" is made to the overseers of the
poor, their successors cannot maintain an action up-
on it, they not being a corporation.
TN ERROR, on certiorari to a justice's court.
The defendants in error, who were plaintiffs
in the court below, brought an action against
the plaintiff in error, on a promise alleged to
have been made by him for the maintenance of
a bastard child, born of the body of his daugh-
ter. It appeared, on the trial, that the defend-
ant below had taken out a warrant against the
putative father of the bastard child, and that
when he was arrested the defendant set-
tled with him, and took his note ; and no fur-
ther proceedings appear to have been had
against the putative lather. It also appeared
that the defendant had, at several times, ac'
knowledged that he had to maintain the child,
and that he had promised one Hojjeboom, who
had married the mother of the child, that if he
would give up the property which the defend-
ant had given the mother, he, the defendant,
would maintain the child, and that Hogeboom
did give up the property. The overseers had
expended more than $25 in the support of the
child. Judgment was given in the court below
for the defendants in error.
Per Curiam. The promise made by the de-
JOHNS. RRP., 13.
fendant below to maintain the bastard child,
cannot be made to inure to the benefit
*of the plaintiffs below. In general, it [*497
is necessary that the consideration on which a
promise is founded should move from the par-
ty in whose favor the promise is made. There
are some cases, however, where a party in
whose favor the promise is made may main-
tain an action, although the consideration
moves from another person ; but in the pres-
ent case, the consideration did not move from
the plaintiffs below, nor was the promise made
to them, br for their benefit. It does not ap-
pear that they were the overseers of the poor
at the time the putative father was proceeded
against, and admitting that the promise to
maintain this child inured to the benefit of the
then overseers, they are not a body corporate
so that their successors can sue in their own
name upon such promise. The judgment
must, therefore, be reversed.
Judgment reversed.
Overruled— 5 Cow., 309.
Cited in— 2 Denio. 5* ; 4 Denio, 98 : 18 Barb.. 686 ; 17
How. Pr.. 295 : 18 How. Pr., 331.
SICKLES v. SHARP.
Penal Statute — Conxtruction of—Fi»hing on
Sunday.
Fishing on a Sunday, in the channel of Hudson
River, between the City of New York and Baker's
Falls, is a violation of the Act to Protect the Fish-
ing in Hudson River. Ac. (Sess. 38, ch. 146, sec. 4.)
A statute penal as to some persons, if it is gener-
ally beneficial, may be equitably construed.
Citations— Sess. 38. ch. 146 : Stat. Geo. 11., ch. 25.
sec. 3.
THIS was an action of debt, to recover
the penalty of $50, given by the 6th sec-
tion of the Act to Protect the Fishing in Hud-
son River, &c., passed the llth April, 1815
(sess. 38, ch. 146), for a violation of the 4th
section of the Act.
It was admitted that the defendant on Sun-
day, to wit : on the 5th May last, fished with a
seine in Hudson River, in the channel thereof,
in the town of Kinderhook, and caught three
hundred shad.
The case was submitted to the court with-
out argument.
SPENCER, «/., delivered the opinion of the
court :
The 1st section of the Act (sess. 38, ch. 146)
prohibits, after the 1st of June, 1815, the use
of set nets or wires for catching fish, -in any
part of the Hudson River, between the City of
New York and Baker's Falls, other than hoop
nets, fikes, or set nets, constructed with buoys,
which are to be used only on the flats, along
the flats and shores, and out of the channel of
the river. The 2d section prescribes the pen-
alty for offending against *the pro- [*4!)H
visions of the 1st section ; and the 3d section
directs the removal of poles already set. The
4th section, upon which this suit is founded,
declares it to be unlawful for any person to
fish with seines, &c.t in any other pan of
Hudson River, or in the waters of this State,
at or below the City of New York, after sun-
707
498
SUPREME COURT, STATE OF NEW YORK.
set on Saturday in each week, until the rising
of the sun on the Monday following ; and a
subsequent section inflicts a penalty of $50 for
the offense.
It has been contended that the 4th section
of the Act prohibits only such fishing upon the
Hudson River, above Baker's Falls, inasmuch
as the preceding sections had mentioned no
other part of the river than that between the
City of New York and Baker's Falls.
The rule that penal statutes are to be con-
strued strictly, when they act on the offender,
and inflict a penalty, admits of some qualifica-
tion. In the construction of statutes of this
description, it has been often held that the plain
and manifest intention of the Legislature
ought to be regarded. A statute which is
penal to some persons, provided it is beneficial
erenerally, may be equitably construed. Even
m cases of felony, courts have regarded the
intention of the Legislature. The Statute of
Geo. II., ch. 25, sec!" 3, enacts that it shall be
felony to steal "any bank notes, and it was ad-
judged to be felony to steal one bank note.
There can be no doubt, in this case, of the in-
tention of the Legislature in passing the Act.
It was to prevent obstructions in the naviga-
tion of the river, to prevent the violation of
the Sabbath, and to allow one day in the week
to the unmolested passage of fish up the river.
It is a fact of public notoriety that shad or
herring never pass above Baker's Falls ; and
to construe the Act in the manner contended
for by the defendant's counsel would render it
a dead letter. But even if a strict and rigid
adherence to the very letter of the Statute
were necessary, it might be urged, in support
of this action, that, as the 1st section of the
Act tolerates fishing with nets in a certain
manner, on and along the flats and shores, the
4th section, forbidding fishing in any other
parts of Hudson River, means the channel of
the river in its whole extent, as contradis-
tinguished from the flats and shores.
Judgment for the plaintiff.
Cited in-5 N. Y., 568 ; 25 Barb., 802; 56 Barb., 51;
2 Rob., 253 ; 2 E. D. Smith. 518 ; 43 Mo.. 52.
499*] *JACKSON, ex dem. LIVINGSTON
ET AL.,
V.
HALLENBECK.
Ejectment — Wills — Patent — Adverse Possession.
A, being the owner of certain lands in the Lunen-
burgh patent, died, after having devised the same
to his wife, during her widowhood, remainder to B
and his other three brothers: a dispute having
arisen between C, the daughter of B, and her hus-
band and the other devisees of A, as to the portion
of land to which she was entitled, her portion was
ascertained and conveyed, in 1772, to C's husband:
and certain peisons were appointed by the deed to
locate and reduce to severally her share, on any of
the lands within the patent in the possession of the
parties of the first part, or their tenants. The de-
fendant entered upon the premises in question
twenty-three years before the trial, claiming title
under the husband of C ; and in an action of i-ject-
ment by persons claiming under A, it WHS held that
there wa- such an adverse possession in the defend-
ant as barred the action, which could not be ivpi-11- d
by showing that he had obtained his possession from
the tenants of the lessors of the plaintiff, or their
708
ancestors, as it was to be presumed, after such a
lapse of time, that the persons appointed to locate
the share of C hail located it upon land in the pos-
session of tenants, as they were authorized to do.
rpHIS was an action of ejectment, brought to
JL recover thirty- four acres of land, in lot No.
124, in the Lunenburgh patent. The cause
was tried before Mr. Justice Platt, at the
Greene Circuit, in September, 1815.
The plaintiff produced in evidence the Lun-
enburgh patent, dated the 25th of May, 1667,
which, by deed, dated the 30th of July, 1750,
was divided between the proprietors, of whom
Johannes Provoost and Abraham Staats had
purchased one third ; and in the partition
forty-three lots had fallen to the share of
Abraham Provoost, Sybrant Van Schaak and
Jacob Roseboom, who were the representa-
tives of Johannes Provoost and Abraham
Staats. The representatives of Provoost and
Staats, by deed of partition dated the 7th of
August, 'in the 24 Geo. II., divided their third
of the patent, excepting thirteen lots, of which
lot No. 124 is one, which it was declared
should remain undivided, one half thereof be-
longing to Provoost, and the other half to
Koseboom and Van Schaak. Abraham Pro-
voost, by deed, dated the 10th of August, 1750,
conveyed his lands, in the Lunenburgh patent,
to his eldest son and heir at law, Johannes,
who died leaving four brothers : Samuel, the
eldest, and heir at law ; Hendrick, Jacob and
Isaac ; and Samuel had issue, Hendrick and
Catharine, of whom there are no descendants
living. Abraham Provoost. one of the lessors
of the plaintiff, is the son of Jacob Provoost,
and is the only one of the family now surviv-
ing. The title of the other lessors of the
plaintiff, as far as can be collected from the
case, it is unnecessary to state.
The defendant gave in evidence the will of
Johannes Provoost, dated November 5lh, 1751,
who devised all his estate to Catharine, his
wife, during her widowhood, remainder to his
four brothers, Hendrick. Samuel, Jacob and
Isaac, in fee. Sarah, who married John Low,
was the daughter and heir at law of Jacob
Provoost. The defendant also gave in evi-
dence a deed, dated June 25th, 1772, from
Catharine Provoost, widow of Johannes Pro-
voost, Samuel Provoost and Isaac Provoost to
John Low and Killian Van Rensselaer, which
recited that disputes had arisen between the
devisees of Johannes Provoost and John Low
and Sarah, his wife, as to her proportion in
the *Lunenburgh patent; and that. [*5OO
for the purpose of settling these disputes, Low
and his wife had, by deeds of lease and re-
lease, bearing date the 3d and 4th of Febru-
ary, 1772, granted to Killian Van Rensselaer
all their interest in the patent, in trust, and to
the uses in the said deed of release mentioned;
the parties then covenanted that the parties of
the second part were entitled, under Johannes
Provoost, and otherwise, to one equal undi-
vided fourth part of one equal undivided
sixth part, and also to one equal sixth undi-
vided part of one other equal undivided sixth
part of the lands granted by the said letters
patent ; and that Robert Yatos, Nnnning
Vischer and Gysbert Marsellis, Jr., and any
two of them, were authorized, will) all con-
venient speed, to locate and reduce t:, several-
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. HALLENBECK.
500
ty the several undivided tract* above granted,
in, from and out of the lands now in the ten-
ure and occupation of the parties of the first
part, their tenants or assigns, and out of the
lands parcel of the said tract, which, by any
former division, had been allotted to the par-
ties of the first part, or to any person under
whom they claim or derive title to the said
tract ; and out of such parts of the said tract
which had on such division been allotted to
the rights of Johannes Provoost, the grand-
father, of his son, Abraham Provoost, or any
persons claiming under them ; and in case of
deficiency, then such deficiency to be taken
out of such lauds as remain in common and
undivided in the said patent. The defendant
then gave in evidence a deed from Killiau Van
Rensselaer to Casper I. Hallenl>eck for lot No.
si. in the patent of Lunenburgh, dated Sep- I
tember 21st. 1774. and the will of Casper I. !
Hallenbeck. dated September 4th, 1795. by
which he devised to the defendant, his son.
It was proved by John C. Hallenbeck, that
the defendant's father was in possession of the
land which he occupied, in lot No. 124, twenty-
three years before the trial, and claimed under
a purchase from Low. It also appeared that
Peter Bastian, a negro, and one Egbertson,
were in possession each of a few acres of the
premises when the defendant's father entered.
They held under Johannes Provoost and paid
their rent in mowing and work, and the de-
fendant' i father obtained the possession from
them. At the time the defendant's father took
p.,--. •-»!,, n ul" tin- pivmi-c- l-.-iac I'rovtuM lived
within a mile and a quarter of lot No. 124,
and Abraham Provoost lived within two miles,
and afterwards within a quarter of a mile.
5O1*] *The plaintiff, on the trial, aban-
doned his claim to that part of the premises
which was original Iv possessed by the defend-
ant's father in lot No. 81, and a verdict was
taken for the residue, subject to the opinion
of the court.
Messrs. E. William* and Fnixer, for the
plaintiffs. They cited 1 Johns., 156; 3 Johns.,
499; 6 Johns., 34; 9 Johns., 174; 10 Johns.,
475.
Messrs. Van Buren, Attorney-General, and
Van Veehten, contra.
THOMPSON, Ch. J , delivered the opinion of
the court :
The premises in question are about thirty-
four acres of land in lot No. 124, in the Lunen-
burgh patent. The case does not disclose who
are the lessors of the plaintiff, and we cannot,
therefore, say whether they have made out a
title in themselves. If, however, the decision
of the case turned upon the question of title, it
might be proper to call upon the parties for
this information. But for the present, we
assume that such title is made out in some of
the lessors, so as to entitle the plaintiff to re-
cover, were it not for the adverse possession
shown on the part of the defendant. From
this testimony, it appears that the first occu-
pants of the premises were Peter Bastian and
Jacob Egbertson; and upon the nature of this
possession, and the manner in which it was
afterwards acquired by the defendant's ances-
tor, will, in a great measure, depend the re-
sult of this suit. From the testimony of John
JOHNS. REP., 13.
C. Hallenbeck it appears that Casper I. Hallen-
beck, the father of the defendant, obtained
possession in part from Bastian, and in part
from Egbertson; claiming the land, however,
under a purchase from John Low. On the
part of the plaintiff, it is contended that Bas-
tiun and Egbertson were the tenants of Johan-
nis Provoost, under whom the lessors of the
plaintiff claim, and therefore, the attornment
to Hallenbeck was void.
To a right understanding of the nature of
the possession, it will be proper to notice the
relation in which Low, under whom the de-
fendant claims, stood to the Provoosts, and
how his right originated. He, it appears, mar-
ried Sarah Provoost, the daughter and heir at
law of Jacob Provoost, who, together with
Samuel and Isaac Provoost, were the devisees
in the will of Johannes Provoost. dated in the
year 1751. There *being a dispute as [*f»O2
to what right Sarah had in the land of her
grandfather, Johannes, the dlher devisees,
Isaac and Samuel, together with the widow of
Johannes, in the year 1772, conveyed to John
Low and Killian Van Kensselaer one fourth of
a sixth, and one sixth of a sixth of the lands
granted in the patent, to be located by Robert
Yates, Nanning Vischer and Gysbert Marsel-
lis, on any lands they should 'think proper,
either in the possession of the parties of the
first part or their tenants; and either on any
lands that had been allotted to Johannes, their
grandfather, or to his son Abraham, and in
case of any deficiency, then to be taken out of
any lands which lay in commop and undivid-
ed. It appears that the possession taken by
Casper I. Hallenbeck, claiming under a pur-
chase from Low, was more than twenty years
before this suit was brought. Under this state
of facts, no great weight is to be attached to the
alledged tenancy of Bastian and Egbertson.
The extent of their improvements was very in-
considerable. Bastian was a negro man, for-
merly owned by Johannes Provoost, and, as
the case states, paid his rent in mowing. Eg-
bertson also paid some trifling rent in work.
He has, however, been dead nearly thirty
years, and Samuel Provoost (to whom the rent
is said to have been paid) nearly forty years,
which makes it, at all events, a very stale ten-
ancy. But admitting they might be consider-
ed tenants of Provoost, it would not necessa-
rily follow that the possession taken from them
by Hallenbeck was fraudulent and void. Low.
also, claimed to derive his title from Johannes
Provoost. in right of hi.« wife Sarah, under the
deed of 1772. And under this deed the per-
sons appointed to locate Sarah's right had au-
thority to make such location upon any part
of the land, whether in the occupation of a
tenant or not; and after such. a lapse of time,
and such a length of possession, it is no more
than reasonable to presume such location to
have been made upon the premises, and pos-
session taken under such right. This presump-
tion is very much strengthened bv the circum-
stance that when Casper I. Hallenbeck took
possession, Isaac and Abraham Provoost lived
near the premises, and no objection appears to
have been made. Under these circumstances,
the tenancy set up in Basiian and Egbertson
is too vague and equivocal to work any preju-
dice to the defendant's possession; and this
709
502
SUPREME COURT, STATE OF NEW YORK.
1816
possession having been taken under claim, of
5O3*] title from Low, and held for *more
than twenty years, the defendant ought not
now to be disturbed, and is, accordingly, en-
titled to judgment.
Judgment for the defendant.
PULVER v. M'INTYRE.
Constable — Escape — What Constitutes.
Where an execution is issued out of a justice's
court, against the body of a defendant, although
the constable has thirty days within which to serve
it, yet if he arrests him during that time, it will be
an escape to suffer him to go at large, which will
not be excused by his having the defendant in cus-
tody at the expiration of the thirty days.
IN ERROR, on certioiari to a justice's court.
The plaintiff in error, who was also plaint-
iff in the court below, brought an action
against the defendant, who was constable, for
the escape of one Johnson. It appeared on the
trial that the plaintiff obtained judgment
against Johnson, in a justice's court, on the
9th of May, 1815; that an execution was issued
on the same day, and put into the hands of the
defendant; whereon Johnson was arrested, and
permitted by the defendant to go at large for
nine days, upon one Miller undertaking that,
at the expiration of nine davs, Johnson should
surrender himself to the defendant, which was
done, and Johnson committed to prison. A
verdict and judgment was given in the court
below for the defendant.
Per Curiam. The judgment must be reversed.
The constable permitting the defendant to
go at large for nine days, was a voluntary
escape, and the plaintiff's cause of action
accrued immediately upon the escape. Al-
though a constable has thirty days in which
to serve an execution against the body, yet,
if he does serve it within that time, he has
no right to permit the defendant to go at
large; and his having him in custody at the
expiration of the thirty days, will uot excuse
the escape. The present action was com-
menced while Johnson was at large, and be-
fore he surrendered' himself to the constable,
pursuant to his agreement.
Judgment reversed.
5O4*] *JACKSON, ex dem. BOYD,
v.
LEWIS.
Ejectment — Witnesses — Impeachment of — Deed
— Proof of Execution — Infancy.
Testimony to impeach the credit of a witness by
showing that she either was, or had been, a com-
mon prostitute, is inadmissible.
Where A and B were subscribing witnesses to a
deed, both of whom were dead at the time of trial,
and the handwriting of A was proved, and also that
he had signed the name of B, and there were two
acknowledgments upon the deed, one of which
stated that he and B both signed as witnesses, and
the other, and later acknowledgment, stated that
A had signed the name of B in his presence, and at
his request; it was held that there was sufficient
proof of the execution of the deed, and that the first
710
certificate could only go to impeach the credit of
A, which was matter for the jury, on the question
whether the grantor had executed the deed or not;
but that the reasonable supposition was that the
officer had made a mistake in the form of the certi-
ficate.
By the 8th section of the Act to Settle Disputes
Concerning the Title to Lands in the County of
Onondaga, infants have three years after their com-
ing of age in which to file their dissent, and are not,
like adults, laboring under no disability, restricted
to two years, but. after filing their dissent, they are
to give notice to the commissioners, to commence
a suit within three years, &c., according to the di-
rections of the 3d section of the Statute. 1 N. R. L.,
213, 215.
Citations— 1 N. R. L., 213; 8 Johns., 429.
THIS was an action of ejectment, brought
to recover lot No. 94, iu the town of Bru-
tus, now Mentz, in the County of Cayuga, in
the military tract. The cause was tried before
Mr. Justice Yates, at the last June Circuit, in
the County of Cayuga.
Both parties derived their title from Bevins,
a soldier; and the plaintiff produced a deed
from Bevins to Benjamin Wallace, dated the
2d of March, 1796, which was duly acknowl-
edged on the day of the date, and recorded
in the clerk's office of the county in which the
land then lay, on the 21st of April, 1706. He
also produced an award of the Onondaga com-
missioners, dated the 29th of August, 1798,
by which the premises were awarded to Wal-
lace; also, a deed from Wallace arid his wife
to the lessors of the plaintiff, which were duly
acknowledged on the 4th of October, in the
same year, and recorded in the clerk's' office
of the County of Cayuga on the 12th of May,
1806.
The defendant produced in evidence a deed
from Bevins to Henry Hart, dated the 9th of
March, 1784, in which a consideration of £10
was expressed, and the subscribing witnesses
to which were Anthony B. Bradt and Reyner
Visger, both of whom were dead at the time
of the trial. The signature of the grantor
consisted merely of a mark. This deed was
duly deposited in the proper office, at that
time, for depositing deeds relating to the
military lands, on the 25th of April, 1795.
The handwriting of Visger, one of the sub-
scribing witnesses, was proved by two wit-
nesses, who were of opinion that the name of
Bradt, the other subscribing witness, was in
the handwriting of Visger. The declarations
of Bevins that he had sold the land to Hart, and
had received in payment a hat, a vest pat-
tern, and a plug of tobacco, were proved by
two witnesses ; the credit of one of whom,
Catharine Bassett, the plaintiff offered to im-
peach, by proving that in her younger days
she had been a public prostitute; but the. evi-
dence was overruled by the court. Herman
Vischer Hart was the heir at law of Henry
Hart, now deceased. He was born on the 7th
of September, 1784, and on the 7th of March,
1808, filed his dissent to the award of the com-
missioners in favor of Wallace. The plaint-
iff's *counsel objected to the dissent [*5O5
given in evidence, on the ground that it had
not been filed within two years after Herman
V. Hart came of age ; but the judges decided
that it was filed in time. The defendant was
in possession of the premises, by virtue of an
agreement with H. V. Hart for the purchase
of the land.
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. LEWIS.
505
Upon the deed from Bevins to Henry Hart
two acknowledgments were indorsed, one of
which was taken before Henry Oothout, a
judge of the Common Pleas of the County of
Albany, on the 19th of April, 1785, and stated
that Visger, appearing before him, and being
sworn, said that he saw Bevins execute and
deliver the instrument, and that " Anthony B.
Bruit, the other subscribing witness, was
present, and did, together with the deponent,
sign his name as witness to the execution
thereof." The other was taken before Jere-
miah Lansing, Master in Chancery, on the 2d
of December, 1794, which stated that Visger
deposed before him " that he saw John Bevins
sign his name by making his mark, and that
he sealed and delivered the same for the pur-
poses therein mentioned, and that he. the de-
ponent, also subscribed the name of Anthony
B. Bradt, as witness, for and by order of the
the said Anthony, who was present."
The plaintiff's counsel, on the trial, object-
ed to the deed being admitted in evidence ;
but the judge overruled the objection, and
charged the jury that the only question for
their consideration was, whether Bevins exe-
cuted the deed to Hart ; and told them that
the only reasonable construction which they
could put upon the acknowledgments was
that the inaccuracies in them were made by
mistake. The jury accordingly found a ver-
dict for the defendant, which the plaintiff
now moved to have set aside, and a new trial
granted. The cause was submitted to the
court without argument.
THOMPSON, Ch. J. , delivered the opinion of
the court:
1. There can be no doubt that the evidence
offered to impeach the character of Catharine
Bassett was inadmissible. It would not be
competent to prove that she was now a public
prostitute, and much less to inquire whether
she was so in her younger days ; the inquiry
should have been as to her character for truth
and veracity. At all events, this should have
been the principal and first inquiry ; but that
«>OO*] was not attempted : the inquiry *as to
any particular immoral conduct is not admis-
sible against a witness.
2. The deed from Bevins, the soldier, to
Hart was sufficiently proved to go to the jury.
The witnesses were both dead, and the hand-
writing of Visger, one of the witnesses, was
fully proved ; and the testimony very satis-
factorily shows that the name of Bradt, the
other subscribing witness, was written by Vis-
ger ; this did not vitiate the deed. One wit-
ness was enough ; the certificate of proof in-
dorsed by Judge Oothout. by which it would
appear that Visger swore that Bradt signed
his name as a witness, could, at all events,
only go to impeach the credit of Visger ; this
was a matter for the jury, and came within
their province, by the submission of the judge
to them of the question whether Bevins exe-
cuted the deed or not. But it ought not even
to be considered as impeaching Visger's
character ; for the reasonable solution was, as
the judge told the jury, that it was the mistake
of the officer in the form of the certificate,
3. The principal question in the case, how-
ever, is as to the dissent, whether Herman
JOHNS. REP., 18. •
Vischer Hart had three years after he arrived
to the age of twenty-one to enter such dissent,
or only two years. If the dissent was not
duly entered, the award in favor of the title
under which the lessor of the plaintiff claims,
was established, and became conclusive by
the award of the Onondaga commissioners.
But with respect to the time which Hart had
to enter his dissent, I cannot see how any
doubt can exist ; it must depend upon the con-
struction to be given to the Act ; and whether
this Act be reasonable and just, or founded
upon sound policy or not, we are not at liberty
to inquire. If it can receive but one interpre-
tation, we are bound to give that to it. By
the 3d section (1 N. R. L., 213), the award is
declared conclusive after the expiration of
two years from the making thereof, unless a
dissent shall be entered, and notice thereof
given to the commissioners, or filed in the
clerk's office of Onondaga County, and unless
the person dissenting, if not in the actual pos-
session, shall, within three years, commence a
suit at law or in equity, to recover the lands,
or establish his right to the same, and prose-
cute such suit to effect. But the 8th section
contains a proviso, that neither this Act, nor
anything therein contained, shall extend or
be construed, to the prejudice of any persons
under the age of twenty-one years, if such
persons shall, within three years after coming
to the age of twenty-one *years, make [*5O7
their dissent, and bring their suit, ana prose-
cute the same to effect, as aforesaid. No
reasonable construction cac be given to this
proviso, without considering it as extending
the time for entering the dissent, in case of
infant claimants, to three years, instead of
two, as is required by the 3a section, in case
of adults. Upon any other interpretation, the
word " three," in the proviso, must be reject-
ed entirely. The Legislature had, undoubted-
ly, a right to extend the time in favor of in-
fants, if they thought proper, and, indeed, it
would seem very reasonable that it should be
so done. Two years, in any case, is but a
short period for entering a dissent ; and the
peculiar situation of the titles to the military
land, only would, perhaps, justify the Statute
at all. But considering the time for entering
the dissent, in cases coming within the pro-
viso, as extended to three years, then this
proviso, and every part of "it. is in perfect
harmony with the 3d section. For everything
to be done, after entering the dissent, by per-
sons coming within the proviso, they are re-
ferred to and are to be governed by the pro-
visions of the 3d section. But to reject an
explicit provision, because reference is made
to other parts of the Act, for matters not ex-
pressly defined, would be against all sound
rules of interpretation. The 8th section ex-
pressly provides as to the time within which
the dissent is to be entered ; but it is not
pointed out how this dissent is to be entered,
or within what time, or where the suit is to
be brought. The concluding words of the
8th section. " as aforesaid," refer to these ob-
jects, namely, make the dissent, as aforesaid,
that is, by giving notice thereof to the com-
missioners, or by filing the same in the office
of the clerk of Onondaga County, and bring
the suit, as aforesaid, that is, within three
711
507
SUPREME COURT, STATE OF NEW YORK.
1816-
years, and prosecute the same to effect, as
aforesaid, that is, a suit cither at law or in
equity, to recover the land, or establish their
title to the same. This is the plain and natural
interpretation of the Statute, and the one
adopted by this court in the case of Jackson v.
M'Kee, 8 Johns., 429: although this point
was not the one then directly before the court.
The motion for a new trial must, accordingly,
be denied.
Motion denied.
Affirmed— 17 Johns., 475.
Cited in— 14 "Wend., 110; 18 Wend., 149; 19 Wend.,
198, 579 ; 6 N. Y.. 104 ; 21 Hun, 379 ; 8 Abb. Pr., 303 ;
9 Abb. Pr., 180 ; 2 Hilt., 512 ; 23 How. (U. S.), 12 ; 49
Ind., 132.
5O8*]
DODGE v. LEAN.
Surety for Seamen Proceeding on Voyage —
Shipping Articles — Statute of Prauds.
Where a person becomes surety to the owner of a
vessel, that certain seamen shipped on board the
vessel sha_ll proceed upon the voyage, and the sea-
men receive wages in advance, which they pay to
their surety as his indemnity ; in case the seamen
desert the vessel before the commencement of the
voyage, the 'owner cannot maintain an action for
money had and received against the surety, to re-
cover back the wages advanced.
Where, in shipping articles of seamen, a person
has signed his name under a column headed, " Sure-
ties," but there is no explanation added as to the
extent of his undertaking, it is not a sufficient
writing1 within the Statute of Frauds, and the un-
dertaking is void.
IN ERROR, on certiorari to the Justices'
Court in the City of New York.
The plaintiff in error brought an action
against the defendant in error in the court be-
low, and declared against him as surety for
George Herrick and George Chapman on a
certain voyage, and demanded $40 on the
ground that the said seamen had not pro-
ceeded on that voyage. The declaration also
contained a count for money had and received.
At the trial, it appeared that the seamen ,above
mentioned had first engaged themselves on
board of the schooner Juliet, for a voj'age to
Petersburgh, Virginia, and back, and that the
defendant had received $10 advance wasres,
for each of them in that voyage, he being their
security ; that the voyage was afterwards
changed by the owners, with the consent of all
the parties, and a new voyage substituted ;
that the two sailors signed two shipping arti-
cles, and that the defendant became surety by
signing his name opposite to the names of the
sailors in the column headed "Sureties," and
received the further sum of $10 for each of
them, making in all $40 received on account
of the shipping articles as security therein. It
also appeared that the words " security until
the vessel sailed" were written after the name
of the defendant, in the column headed
" sureties," by the plaintiff, after the .defend-
ant had signed his name, and without his
privity ; that the defendant delivered up the
seamen to the captain of the Juliet before her
departure ; that they escaped, and were again
twice successively delivered up by the defend-
ant ; that, after each time, they escaped, and
712
.that the vessel finally departed on her voyage
without them.
The court below gave judgment for the
defendant, on the ground that he had not
bound himself as security, by such a writing
as was valid within the Statute of Frauds.
Mr. Van Wyck for the plaintiff in error.
Mr. Anthon, contra.
Per Curiam. The return to the certiorari in
this case is so imperfectly made out that it is
impossible to understand it *without [*5O9
referring to the affidavit upon which the certi-
orari was allowed. From the return it does
not appear how or in what way the plaintiff
had any concern or interest in the transaction.
But, looking at the affidavit, it would seem
that he was owner of the vessel, and advanced
the money. It was not, however, advanced
by him to the defendant upon any contract or
agreement between them ; it was paid as ad-
vance wages to the seamen, Herrick and Chap-
man. And it is to be collected from the re-
turn, the affidavit, and shipping articles,
altogether, that the money was put into the
defendant's hands by the seamen for his in-
demnity for becoming security for them on
the shipping articles. The plaintiff, therefore,
could not recover on his money count. The
money could not, in any way, be considered
as in the defendant's hands for the use of the
plaintiff. The payment was made to the sea-
men by the plaintiff, and the defendant re-
ceived it from them on a contract totally un-
connected with the plaintiff. If he has,
therefore, any remedy against the defendant
on account of the non-compliance by the sea-
men with their contract, it must be on hi&
special undertaking as their surety.
To his right to recover on that ground there-
are several objections. From the return, it
appears that when the defendant signed hia
name in the shipping articles, under the head
" Sureties," it was unaccompanied with any
addition or explanation whatever for what he
was surety; nor does the return in any way ex-
plain the nature or object of the undertaking.
If he was surety that the seamen should be put
on board the vessel, he fulfilled his undertak-
ing. The words written under the defendant's
name, " surety until the vessel sails" appear
to have been written by the plaintiff himself
after the-defendant had signed his name, and
without his privity or consent. They must,
at all events, be rejected, if they do not total-
ly destroy the instrument so far as respects
the defendant ; and, rejecting these words,
there is no proof that the defendant has failed
in his undertaking as surety for the seamen.
But the defendant's promise required a note
or memorandum in writing, within the Statute
of Frauds. It was an undertaking for the de-
fault of others ; and his bare signatupe under
the word "surety" was not a sufficient memo-
randum. It did not, in any manner, show what
his agreement was, or for what he became
surety. The memorandum ought to state, sub-
stantially, what the undertaking of the surety
is. The judgment below must, accordingly,
be affirmed.
Judgment affirmed.
Cited in— 25 N. Y., 161 ; 1 Sweeny, 588.
JOHNS. REP., 13.
1816
MOSFIEK v. HUBB.VRD.
510
5 1O*J *MOSHER, Executor of BRIGGS,
».
HUBBARD.
Adminittratort — Sale of Land by — Secured by
Mortgage — Alignment — Order Drawn upon,
Purchaser — Wften Adminut rotor u Personal-
ly Liable — Statute of Limitation*.
A, the administrator of an intestate estate, under
mi order of the surrogate, sold certain land of the
intestate, and took a bond and mortgage from the
purchaser to secure the consideration ; he after-
wards drew an order upon the purchaser in favor
of 11, for part of a debt due from his intestate to It.
stating in the order that the amount should be cred-
ited on the bond and mortgage: but the purchaser
n-fu-ed to pay the order, as the bond and mortgage
had been assigned to C; it was held that A, having
received the full amount of the bond and mort inure
from the assignee, and being credited for the amount
of the debt to H in his account with the surrogate,
was liable in his individual capacity to B for the
amount of the order, as for money had and received
to his use.
In an action to recover the amount of an order
which had been drawn by the defendant, but which
the drawee bad refused to pay, the defendant
pleaded the Statute of Limitations, ami a witness
testified that after the lapse ot six years, he present-
ed the order to the defendant, who did not pretend
but that the money was due, and said that he did
not recollect paying it, but that he would examine
his papers, and if he had paid it he would write to
the witness, who, however, never received any
communication from the defendant upon the sub-
ject; it was held that this was sufficient evidence
from which to imply a promise by the defendant to
pay the money, if ne should find that it had not
been paid, and thus to take the case out of the
Statute of Limitations.
THIS was an action of awumpisit upon the
common money count*. The defendant
pleaded non atutumpnit and non assumpsit infra
aex anno*. The cause was tried at the Rensse-
laer Circuit in June, 1816.
At the trial, the plaintiff gave in evidence
the following order: "Pay William Briggs
$110, on sight, and the same shall be passed to
your credit on a bond and mortgage which I
hold with Jesse Potter, executed by you. Your
Friend, Ruggles Hubbard. To Mr. Daniel
Eldred. Troy, November 7th, 1808."
The bond and mortgage referred to in the
order were dated the 19th October, 1807, and
were assigned by the defendant and Jesse
Potter, the mortgagees, to Thomas Sampson
and Henry Warren, by assignment, dated the
27th May, 180S, but by a memorandum on the
mortgage, the assignment was stated to have
been delivered on the 15th December, 1808.
Daniel Eldred testified that the order in ques-
tion was presented to him by the plaintiff's
testator in his lifetime, but that he had refused
to pay it because the bond and mortgage had
been assigned to Sampson and Warreii, and
they had told him that he must pay no more
to the defendant ; that he had paid up the
whole amount of the bond and mortgage, and
that the order was never paid out of it.
Jonathan Brown testified that the bond and
mortgage were given to the defendant and
Jesse Potter, to secure the consideration for
the real estate of John Potter, sold by them
under the surrogate's order; that the order in
NOTE.— Statute of Limitntinn* -Nr,\r promt**. See
Danforth v. Culver, 11 Johns., 146, note.
JOHNS. Ui-.r.. IS.
3uestion was given in part payment of a debt
ue from the estate of John Potter to the
plaintiff's testator, and not for an individual
debt of the defendant, as the witness had un-
derstood from the testator in his lifetime. The
witness also testified that he had examined an
account on file in the surrogate's office, in-
dorsed by the defendant, after the date of the
order, in which was stated an 'account [*5 1 1
in favor of the plaintiff's testator, against the
estate of Potter, of about f 190, stated to be
receipted and allowed to the defendant by the
surrogate. The witness also testified that in
April, 1815, he called on the defendant in
Albany, at the request of the plaintiff, and
showed him the oraer in question, which the
defendant admitted that he had given. The
witness then told the defendant that the
plaintiff had found the order among the papers
of his testator, which, the witness had under-
stood from the testator, before his death, had
been lost some time; that he had called upon
Eldred, who said that he had not paid it, and
who wanted to know whether the defendant
had paid it, and if not, he wished to have it
settled. The witness further stated to the de-
fendant that the reason why Eldred had not
paid the order, was probably, because the bond
and mortgage had been assigned about the time
that the order was given; to which the defend-
ant replied that he supposed that that was the
reason. The witness then asked the defendant
if he had any recollection of paying it, but the
defendant answered that he had not; and on
the witness asking what should be done about
it, the defendant said that he was in great
haste, but that he would examine his papers on
his return to New York, and that if he found
that he had paid the order, he would write to
the witness; but the witness testified that he
had never received any letter or communica-
tion from the defendant upon the subject, and
that the defendant did not pretend but that the
money was justly due to the estate of the
plaintiff's testator.
The jury, by the direction of the judge,
found a verdict for the plaintiff.
A motion was now made to set aside the ver-
dict, and for a new trial.
J/r. Mitchill, for the defendant, contended :
1st. That the plaintiffs were barred by the
Statute of Limitations.
2d. That there was no sufficient considera-
tion proved to support an autumpM by the de-
fendant to pay the debt out of his own proper
funds, it being the debt of the intestate Pot-
ter ; and the order itself, without the words
"value received," was no evidence of a con-
sideration. (Rann v. Hughes, 7 T. R.f 350,
note; Bollard v. Walker, 3 Johns Cos., 65 ;
Sears v. Brink*. 3 Johns., 214 5 Johns., 246.)
An executor or administrator can give no pref-
erence to one debt over another of equal de-
gree, except by payment or confessing a judg-
ment
*8. That there was not a sufficient [*512
memorandum in writing^ within the llth sec-
tion of the Statute of Frauds, to charge the
defendant in his own right. (1 N. R. L. 78 ;
5 East. 10 ; 3 Johns.. 214 ; 8 Johns., 33.)
4. That the defendant having effects in the
hands of the drawee, notice of the non-pay-
ment of the order was necessary. (2 Cainea,
71*
512
SUPKEME COURT, STATE OF NEW YORK.
1816
344; 11 Johns., 180; 7 East, 359; 2 H. Bl..
609.)
Mr. Foot, contra, relied on the case of Sluby
v. Champlin, 4 Johns., 461, to show that the
evidence of a promise by the defendant was
sufficient to take the case out of the Statute of
Limitations. And he contended that, at any
rate, there was sufficient evidence to enable
the plaintiff to recover on the count for money
had and received.
Per Curiam. Several questions were raised
and discussed on the argument, which it will
be unnecessary to notice, as the facts in the
case will, in the opinion of the court, support
the recovery on the count for money had and
received. The order drawn by the defendant
upon Eldred, in favor of Briggs, the testator,
was, as it imports upon the face of it, to be
credited upon a bond and mortgage given
by Eldred to the defendant and ^Jesse
Potter. The bond and mortgage was give
to them, as the admisistrators of John
Potter, deceased, for lands belonging to his
estate, and sold under an order of the surro-
gate ; and the order drawn by the defendant
was in part payment of a debt due from John
Potter, to the testator, William Briggs. It is
very evident that this order never was paid by
Eldred, nor credited upon the bond and mort-
gage, as was intended at the time it was drawn;
and the defendant afterwards transferred this
bond and mortgage to Sampson and Warren,
and received the fjull amount thereof, without
•deducting the order ; and in the account sub-
sequently rendered to and settled before the
surrogate by the defendant of his administra-
tion of Potter's estate, he received a credit for
the debt due to Briggs, in part payment of
which the order was drawn. These facts show,
conclusively, that the money has come into
the defendant's hands, and will warrant the
conclusion that he received it to the use of
William Briggs. The settlement of his ac-
count, and claiming a credit for the debt paid
to Briggs, shows that the defendant considered
the money appropriated to the use of Briggs,
and not as money in his hands for the benefit of
the creditors of Potter generally. The plaint-
iff is, therefore, entitled to recover, unless
5 13*] barred by *the Statute of Limitations;
and in the opinion of the court, the evidence
is sufficient to take the case out of the Statute.
In the conversation stated to have taken place
between the defendant and Brown, it was not
intimated by the defendant that he intended
to avail himself of the Statute, but the only
question in his mind seemed to be, whether
the order had not been paid; and he promised
to examine his papers, and if he found he had
paid the order, he was to write to the witness:
but, as the witness testified, he never has writ-
ten. This was sufficient to raise an implied
promise to pay the money, unless, on exam-
ination, it should be found that the order had
been paid, and there is no evidence whatever
of any payment. The motion for a new trial
must, accordingly, be denied.
Motion denied.
' Cited in-15 Johns., 520 ; 33 N. Y., 530 ; 6 Hun, 82 ;
28 Hun, 19; 1 Daly, 188.
714
JACKSON, ex dem. GOLDEN ET AL,.,
v.
MOORE.
Ejectment — Conveyance by Trustee in Partition,
Presumed — Adverse Possession — Infancy.
Where several persons, being possessed of an un-
divided tract of land, in 1765, made partition, and
conveyed the entire tract to A, in trust, to convey
to each of the grantors his proportion in sever-
alty. and the land had been since generally held ac-
cording to that partition : it was held, in an action
of ejectment brought in 1807, by a person claiming
under one of the parties between whom partition
was made, that a conveyance by the trustee, in pur-
suance of the trust, was to be presumed.
A entered into possession of land, under a lease in
fee, in 1775, and in 1778 gave the land to B, by parol,
who continued in possession, claiming under the
lease, until 1798, excepting the period of the war,
anda yearor twoHfter ; and B conveyed the prem-
ises to C, and C to D, who conveyed the same to the
defendant; it was held that this was sufficient ad-
verse possession to bar an action of ejectment by
the person having title to the land, commenced in
1807.
Where an adverse possession begins to run in the
lifetime of the ancestor, and descends to an infant
heir, the latter is not protected by his disability.
Citations— 8 Johns., 171 ; 10 Johns., 475.
THIS was an action of ejectment, brought to
recover lands lying in the Artillery patent,
in the town of Fort Ann, in the County of
Washington, and which was commenced in
August vacation, in the year 1807. The case
was tried before Mr. Justice Van Ness, at the
Washington Circuit, in June, 1810.
The lessors of the plaintiff claimed under
letters patent to Joseph Walton and twenty-
three others, dated the 24th of October, 1764,
for a tract of land containing twenty-four
thousand acres, known by the name of the
Artillery patent. This tract was conveyed by
deed, dated the 25th of October, 1765, by Jos-
eph Walton, Alexander Golden, and the other
proprietors, to Abraham Walton, by which it
was recited that the parties of the first part
having, by sundry mesne conveyances, become
seised of the whole tract, in the proportions
therein stated, had agreed to divide the tract
into two hundred and fifty lots, and to release
the whole to the party of the second part, his
heirs and assigns, to stand seised of the several
lots drawn to the*share of each of the [*514
parties of the first part, for their respective
uses, in fee, and designated the several lots
which had been drawn to the share of each of
the parties of the first part; and the party of
the second part covenanted to execute releases
in fee to each of the parties of the first part of
their respective lots when required. Abraham
Walton died several years before the com-
mencement of this action, and the lessors of
the plaintiff, excepting Golden, are his heirs at
law. Alexander Golden died in 1775, leaving
Richard N. Golden his heir; who died in 1777,
leaving Alexander R. Golden his heir; who
died in 1796, leaving Cadwallader R. Golden,
one of the lessors of the plaintiff, his only
brother and heir. Alexander R. Golden was
about twenty-two years old when he died, and
Cadwallader R. Golden was born in 1775 or
NOTE.— Evidence — Conveyance by trustee after
many years, presumed. Jackson v. Woolsey, 11
John*., 446; Dutch Church v. Mott, 7 Paige, 77;
Grant v. Duane, 9 Johns., 591 ; Brewster v. Striker,
2N. Y.,19; Jackson v. Cole. 4 Cow., 587; Kinsman
v. Loomis, 11 Ohio, 475 ; Newmarket v. Smart, 13
Am. L. Reg., 390.
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. MOORE.
514
1776. It was admitted on the trial that the
patent was generally settled, and held under
and according to the partition made by the
proprietors.
It was proved by the defendant that on the
27th of May, 1767, one June Ragland took pos-
session of one hundred acres of land, on the
north part of lot No. 15, in the Artillery patent
<in which the premises in question are included,
and which, in the partition of the patent, had
fallen to the share of Alexander Golden), un-
der a lease in fee from one Anthony Farring-
ton, reserving a pepper-corn rent. Jane Rag-
land died in 1778, and previous to her death,
gave the land she claimed, by parol, to her son,
James Perkins (she, however, having other
children), who went into possession, and con-
tinued in possession until the war, when he
joined the Army of the United States, and one
or two years dfter the war, resumed the pos-
session for about eleven years. The original
lease to Jane Ragland was burnt with Perkins'
house after the war. In 1787 or 178o Perkins'
possession was in part inclosed by fences,
principally made by the owners of the adjoin-
ing lots upon their outer lines, and the residue
by a fence of brush and lopped trees. Perkins
had, at that time, about thirty acres improved,
and had since extended his improvement to
thirty or forty acres. Perkins, by deed dated
the 80th of August, 1798, conveyed the laud
which he claimed to one Solomon Williams,
who took possession at the time of his pur-
chase. Williams, by deed dated the 20th of
October, 1803, conveyed seventy-three acres,
twelve rods and seventy-five poles to Roswell
Comstock, who. by deed dated the 1st of Au-
fu*t, 1804, conveyed the same to the defendant.
t was admitted that Perkins was possessed of
515*] the *premises, in the manner above
stated, about twenty-one years previous to the
commencement of this suit.
A verdict was taken for the plaintiff, subject
to the opinion of the court on a case containing
the above facts.
Metutrn. Van Vechten and Mitrhill, for the
plaintiff, contended: 1. That the plaintiff had
showed a sufficient title; that if the Statute
executed the uses, then the lessors claimed
under the heirs of Colden; if not, they derived
title under Walton, to eight twenty-fourths of
the premises. But, in either case, they claimed
to hold in severally; and they relied on the
case of Doe, exdem. Clinton, v. Phelp*, 9 Johns.,
169. and Dot, ex dem. Clinton, v. Campbell, 10
Johns., 477; Jackson v. Lunn, 8 Johns. Cas..
292, as in point, to show that after so great a
lapse of time, a title in the whole in Walton
and his heirs, and a conveyance by the trustee,
was to be presumed; and that the lessors had,
therefore, a perfect title to the whole, in sev-
erally.
2. As to the adverse possession set up. the
present rase did not come within the principles
of former adjudications. (2 Johns.. 250; 9
Johns., 163. 174.)
Mr. Z. R. Shepherd, contra, insisted that the
lessors of the plaintiff had not shown title.
In the cases cited the patentees were lessors of
the plaintiff. But what title had Alexander
R. Colden ? The act of eight of the twenty-
four patentees joining in a conveyance to a
special trustee could not affect the rights of the
JOHNS. Hi: I-.. 18.
other patentees. Again ; the defendant has
shown an adverse possession, uninterrupted
for more than twenty years.
Per Curiam. The premises in question are
a part of lot No. 15, in the Artillery patent ;
and the lessors of the plaintiff are Cauwallader
R. Colden and the heirs of Abraham Walton.
The first question that arises is, whether any
title has been shown in the lessors or any of
them. The patent was granted in the year
1764, to Joseph Walton and twenty-three other
persons, for twenty-four thousand acres of
land. In the year 1765, a partition of the pat-
ent was made among the then proprietors ; and
for the purpose of making the partition, a
deed in trust was executed to Abraham Wal-
ton, who covenanted, on his part, to execute
releases in fee to the respective owners of the
lots, according to such partition. This deed
contained a recital that the parlies of the first
part had, by sundry mesne conveyances be-
come seised of the lands granted by the patent
in *the proportions therein mentioned, ^*51O
according to which lot No. 15, including the
premises in question, fell to Alepander Col-
den, who was a party to the deed, and from
whom Cadwallader R. Colden derives his title.
Eight of the original patentees were parties to
this deed ; so that, as to the eight twenty-fourth
parts of the premises, the title was clearly
conveyed to Abraham Walton. It was ad-
mitted upon the trial, that the patent was gen-
erally settled and held under and according to
this partition. These facts after such a lapse
of time are sufficient to presume a title to the
whole of the premises in the heirs of Abraham
Walton, or that he had executed the trust and
conveyed in severally to the respective owners;
and in either case the title would be thus
proved in some of the lessors. The principles
laid down and adopted by this court in Doe v.
Phelps, 9 Johns.. 171, and Doe v. Campbell, 10
Johns., 475, are directly in point, and would
fully warrant a judgment for the plaintiff,
were it not for the adverse possession on the
part of the defendant. The lessor, Cadwalla-
der R. Colden, can claim no benefit from his
infancy ; for the Statute, if it has run at all.
began to run in the lifetime of the ancestor,
and the facts disclosed upon the trial show a
very strong case of adverse possession. As
early as the year 1775, possession was taken of
one'hundred acres of lot No. 15, under a lease
from Anthony Farrington. This lease was
not produced upon the trial, but its loss and
contents were sufficiently proved, and appeared
to be a lease in fee, at a nominal rent. And
although there was no legal transfer of the
lease to Perkins, yet he, in the year 1778. took
possession, claiming under it, and continued
such possession except while it was interrupted
by the war until the year 1798, when he sold
and conveyed to Solomon Williams, who in
1808. conveyed to Comstock ; and in 1804
Comstock conveyed to the defendant. These
facts show, verv satisfactorily, such an adverse
possession as will protect the "defendant against
the present action ; and upon this ground
alone judgment is given for the defendant.
Judgment for the defendant.
Cited ln-86 N. Y., 144 ; 2 Barb., 313 ; 21 Wall., 150 ;
W U. 8.. 168 ; » Wia., 466.
715
517
SUPREME COURT, STATE OF NEW YORK.
517*] *MILLER «. STARKS.
Practice — Attachment — Judgment Set-off — Im-
proper Evidence — Errcr, HV<JD Cured.
Where an attachment has been issued under the
Twenty-live Dollar Act, a id judgment obtained
thereon, and afterwards the defendant in that at-
tachment '..rinirs an action against the plaintiff, the
latter cannot SJt off such judgment, it being pre-
sumed to have been satisfied by the property taken
under the attachment.
Where inproper testimony is produced by one of
the parties and admitted, and afterwards legal testi-
mony of the same fact is produced by the opposite
party, the error is cured.
If one of the parties in a suit is sworn and exam-
ined, at the request of the other party, the latter
cannot afterwards object to it.
TN ERROR, on certiorari to a justice's court.
The defendant in error brought an action
against the plaintiff in error in the court be-
low, which was commenced by warrant, the
plaintiff below having first given the security
required from non-residents. At the return of
the warrant, the defendant below alleged that
the plaintiff was not a non-resident, and not
entitled to have a warrant ; but no plea in
abatement was regularly put in, and the plaint-
iff was sworn at the particular request of the
defendant, as to his evidence, and the objection
was there overruled. Issue was joined be
tween the parties, the defendant giving notice
of a set-off of a book account, and of a judg-
ment recovered by him against the plaintiff
before another justice. The plaintiff having
proved his demand, the defendant offered to
set off the book account, to which the plaintiff
objected, on the ground that the defendant
had taken out an attachment under the
Twenty-five Dollar Act, and had taken his
goods under it, which were then in possession
of a constable, and that judgment had been
given against the plaintiff below ; and offered
the testimony of the justice before whom it
was obtained, which was objected to, but ad-
mitted. The defendant, however, afterwards
himself produced the proceedings and judg-
ment, and offered the judgment as a set-off,
but it was rejected by the justice, and a verdict
and judgment were given for the defendant in
Per Curiam. The only question worthy of
notice in this case is that which relates to the
offer on the part of the defendant, to set off
the judgment which he had obtained against
the plaintiff. This judgment would have been
a good set-off had not the plaintiff's goods and
chattels been taken under the attachment, and
were then remaining in the custody of the
law, for the purpose of satisfying the judg-
ment ; and if so, the judgment, so far as
respects the liability of the plaintiff was sat-
isfied. The constable, upon the attachment, is
required to take and safely keep the property
to satisfy the judgment ; and to allow this
judgment to be set off under such circum-
stances would be making the plaintiff twice
responsible for the same demand. The set-off
518*] *was. therefore, properly rejected.
The admission of parol proof of the proceed-
ings on the attachment was improper; but this
was cured by the subsequent introduction of
the certified copy of the proceedings by the
716
defendant himself. The defendant cannot
object to the plaintiff's having been sworn as
a witness, as it was done at his particular
request. The judgment must, accordingly,
be affirmed.
Judgment affirmed.
Cited in— 1 Abb. Pr., 315 ; 4 Duer, 656 ; 5 Leg. Obe.,
180.
JACKSON, ex dem. SHULTZE ET AL.,
GOES.
Ejectment — Land in Military Tract — Patent —
Evidence — Patentee May Be Proved not the
Claimant, although Same Name.
In an action of ejectment to recover a lot of land
in the military tract, on the demise of P. S., the
plaintiff produced in evidence a patent to P. S., is-
sued in pursuance of the Act of the 6th April, 1790,
" to carry into effect the concurrent resolutions of
the Legislature for granting certain lands promised
to be given as Bounty Lands," &c.; the defendant
pr.ovedthat there was another person of the name
of P. S. in existence, who was too young during the
Revolutionary War to be a soldier, and that the les-
sor of the plaintiff himself had not been a soldier
during the war : and it was held that upon this evi-
dence the defendant was entitled to judgment.
It is competent for a defendant in ejectment to
prove that a person claiming as patentee, although
of the same name, was not the patentee intended
by the grant.
Citations— 12 Johns., 77, 82 ; 10 Johns., 133, 136; 5
Co., 68 h.
was an action of ejectment brought to
JL recover lot No. 39, in the town of Man-
lius, in the County of Onondaga. The cause
was tried before Mr. Justice Yates, at the
Onondaga Circuit, in June, 1816.
At the trial, the plaintiff produced in evi-
dence letters patent, dated the 13th of Septem-
ber, 1790, by which, in pursuance of an Act
of the Legislature, passed the 6th of April,
1790, entitled "An Act to Carry into Effect the
Concurrent Resolutions and Acts of the Legis-
lature for Granting Certain Lands, Promised
to be given as Bounty Lands, and for other
purposes, therein mentioned," the premises in
question were granted to Peter Shultze in fee.
It was proved that Peter Shultze, one of the
lessors of the plaintiff, was now living, and
had, for twenty years past, lived at Rhine-
beck, in the County of Dutchess.
Daniel Petre, a witness on the part of the
defendant, testified that about seven years
ago he saw, at a meeting of the officers of a
militia artillery regiment, at New Hartford,
a man named Peter Shultze, who was a second
lieutenant in the regiment, and resided at
Warren, in the County of Herkimer; and was,
at that time, about thirty-one or thirty-two
years of age.
Timothy Teal, another witness on the part
of the defendant, testified that in August,
1812, he went to Rhinebeck, to see Peter
Shultze, for the purpose of procuring evi-
dence of the fact whether Shultze had ever
been a soldier in the Revolutionary War, .and
was entitled to bounty lands, a suit being then
pending in favor of Shultze, against one Bris-
tol, for the premises in question. *The [*5 19
witness inquired of Shultze if he had a lot of
JOHNS. RET., 13.
1816
JACKSON, EX DEM., v. GOES.
519
land in the military tract, and Shultze said
that an officer up the Mohawk River had
drawn a lot for him. but his attorneys had
told him to say nothing about it. Shultze
further stated that he was never up the Mo-
hawk River, nor at Fort Stanwix. and had
enlisted a man during the war, and should not
have known of his having a lot, had he not
been informed of it by a gentleman, and he
did not know how much of it he should get.
The witness stated that Shult/e appeared to
be about sixty years old.
Samuel Van Orden, another witness on the
part of the defendant, testified that he had,
about ten days before the trial, been employed
by the persons under whom the defendant
held to go to Rhinebeck to ascertain whether
Shultze had been a soldier during the war,
and that Shultze told him that he was chosen
a lieutenant at West Point and at White
Plains, but had never served at the North-
ward, nor had been a private during the war.
When the witness asked Shultze what he had
done with his military lands, he said that one
Tillotson had proceeded to get his land, and
had lost one or two suits ; that he never ex-
pected to get anything.and had not enlisted dur
ing the war, but claimed the land in the ritjht of
a soldier whom he had hired as a substitute.
A verdict was taken for the plaintiff, subjecl
to the opinion of the court on a case contain-
ing the facts above stated.
Afr. Vanderheyden for the plaintiff.
Mr. Loufks for the defendant.
For the plaintiff, it was contended that tie
letters patent to Peter Shultze must be con-
clusive, unless it was issued without competent
authority, or was void on the face of it, or was
prohibited by some statute. (Jackson, ex dem.
Mancius, v. Lawton, 10 Johns., 26.)
In the case of Jackson, ex dem. Houseman, v.
Hart, 12 Johns., 77, 82, it was held that pat-
ents granted to soldiers for military services
did not come within either of these exceptions.
The Commissioners of the Land Office, in issu-
ing these patents, were directed by statute to
adjudicate on the claims, and, thus acting in a
judicial character, their judgment can no more
be declared void than those of a competent
court of law.
If these patents are not void, but voidable
52O*] only for mistake, *then the proper
remedy is by scire fafias, out of chancery, to
vacate them ; on which the patentee, or, in
case of his death, his legal representatives,
must be summoned to show cause.
The consideration of letters patent can no
more be inquired into by a court of law than
the consideration of a deed.
The defendant cannot set up any title in the
State, for such title must be inchoate only, and
it requires certain proceedings in chancery to
revest the property in the State; as, in eject-
ment, the tenant cannot set up the alienage of
the lessor of the plaintiff, before office found.
{Jackson v. Beach, 1 Johns. Cas., 401.) Could
the State take possession of this lot without a
previous application to a court of chancery to
vacate the patent? And if an action of eject-
ment should be brought in the name of the
people, might not a tenant show a title out of
the lessors oy producing the letters patent to
Peter Shultze?
JOHNS. REP., 18.
There can be no necessity, in this case, of
resorting to parol evidence; for it is not pre-
tended that the grant was for any person but
the lessor. There is no latent ambiguity, as
there is no person of a similar name claiming
title to the premises, as was the case in Jack-
ion, ex dem. JKcksonetal., v. Stanley, 10 Johns.,
133, and Jackson, ex dem. Houseman, v. Hart.
Again: the tenant in possession has a mere
naked occupancy, a species of title which the
Chief Justice, in Jackson v. Hurt, contrasted
with that of the defendant.
That it was proved at the trial that the lessor
of the plaintiff confessed he had never served
in the line of the Army, is perfectly immate-
rial; as no consideration of military services
is expressed in the letters patent, that fact
cannot be inquired into in a court of law.
On the production of the letters patent, in
this case, the plaintiff is entitled, prima facie,
to recover. The onus probandi lies on the de-
fendant to show the title to be in the person
under whom he claims. It is no answer to the
plaintiff's claim that there is a person of the
same name with the lessor, without showing a
title to the premises in such person. Besides,
how is it certain that the person proved by the
defendant is not, in truth, the lessor of the
plaintiff ?
For the defendant, it was argued that, on
the principles admitted in the case of Jackson,
ex dem. Houseman, v. Hart, the correctness of
which decision it was not intended to question,
the defendant was entitled to judgment in his
favor. The court there said the patent was
conclusive that the patentee *named [*521
was the person intended by the Legislature;
and that where a person of a different name
claimed the land parol evidence was not ad-
missible to explain that intention. It was
agreed, however, that if there were two per-
sons of the same name, it would be a latent
ambiguity, and parol evidence was admissible
to explain which of the two was intended.
The lessor of the lessor, no doubt, on pro-
ducing the patent, is. prima facie, entitled to
recover; but the defendant having proved the
existence of another person of thesame name,
the burden of proof, as to the identity of the
patentee, is thereby thrown on the plaintiff;
for the plaintiff in ejectment must, emphati-
cally, recover on the strength of his own
title.
By the Act of the Legislature, a certain dis-
trict of country was set apart for the two regi-
ments of this State, serving in the Army of
the United States, and no patents were to be
issued to any other persons. This is a public
Act of which the court are bound to take no-
tice. The patent in question was granted for
a lot of land in the tract described in the Act;
and the intention of the Legislature is thus
made manifest by the Act. The Act and patent
are to be taken together; and it clearly appears
from them, not only that a person of the name
of Peter Shultze was intended, but that he was
a soldier; and if the defendant, on the trial,
shows that the lessor of the plaintiff was not
a soldier, the fact will be sufficient to prevail
over the mere circumstance of a similarity of
name.
PLATT, «/., was of opinion that the plain t-
717
521
SUPREME COURT, STATE OF NEW YORK.
1816
iff was not entitled to recover, and thought
tke case clearly distinguishable from that of
Jackson, ex dem. Houseman, v. Hart, the prin-
ciple of which decision he held to be sound
law.
YATES and VAN NESS, JJ. , declared them-
salves to be of the same opinion.
SPENCER, /. The court being unanimously
of opinion that the defendant is entitled to
judgment, but for different reasons, it is ren-
dered necessary for me to state, very briefly,
the grounds of my opinion.
It is a general and universal rule in this
action, that the plaintiff is to recover on the
strength of his own title, and unless the de-
fendant is estopped from controverting the
plaintiff's title, he may rest on his possession,
and attack the title under which the plaintiff
claims. The grant under which the lessor
522*J deduces *his title was issued under the
Act to Carry into Effect the Concurrent Res
olutions and Acts of the Legislature for Grant-
ing Certain Lands, Promised to be given as
Bounty Lands; and by reference to those Res-
olutions and Acts, it will be seen that the ob-
jects of that bounty were the officers and sol-
diers serving in the Army of the United States,
in the line of this State, to wit: Lamb's Reg-
iment of Artillery and two regiments of infant-
ry. The letters patent to Peter Shultze were,
undoubtedly, intended to vest in him, as a sol-
dier in one of those regiments, a title to the lot
in question as a bounty for his services in that
capacity. It is perfectly clear that the lessor
of the plaintiff cannot be the Peter Shultze to
whom the grant was made, because the lessor
confessedly was not a soldier in the Revolution-
ary War. It is equally certain that Peter
Shultze, who resided, seven years before the
trial, at Warren in Herkimer County, could
not be entitled to military bounty for Revolu-
tionary services; for, according to the case, he
was born about the year 1777, and the war ter-
minated in 1783, at "which time he was about
six years of age. I am of opinion, that inde-
pendently of the existence of Peter Shultze of
Warren, *it would have been competent for the
defendant to show that the lessor of the plaint-
iff, Peter Shultze of Rhinebeck, was not the
patentee, and had no title, merely from the
adventitious circumstance of a similarity of
name with the patentee, to recover possession
of the premises; this opinion, it appears to me,
is warranted by the unanimous judgment of
the court in Jackson v. Stanley, 10 Johns., 133.
In the subsequent case of Jackson v. Hart,
12 Johns., 77, ihough I took no part in that
decision, having been unavoidably absent when
it was argued, I understand from the opinion
expressed, that it was not intended to shake,
muc-h less to overrule, the prior decision in
Jackson v. Stanley. The identity of a grantor,
in many cases, is a latent ambiguity. The deed
is, on the face of it, free from ambiguity; the
extrinsic or collateral matter out of the instru-
ment produces the ambiguity. The case com-
monly put, is, where there are two persons of
the same name, to both of whom the description
in the deed is equally applicable, parol proof
is then resorted to, to show to which of the two
the deed was intended to be given. Lord Che-
nei/es' case, 5 Co., 68 b, is the earliest case on
the subject, and has never been doubted. I
cannot think it was necessary for the defend-
ant to prove that there were two persons in ex-
istence, at the time of the trial, of the name of
Peter Shultze, in *order to be let in [*523
to show that the lessor of the plaintiff was not
the patentee. There, undoubtedly, was such
a man, who served in the Army of the United
States, in the line of this State; this is proved
by the letters patent; then why was it not ad-
missible to the defendant to show that Peter
Shultze of Rhinebeck was a different man? It
seems to me that the proof that there was an-
other Peter Shultze living at the time of the
trial, was making no progress in disaffirming
the pretension set up by the plaintiff, that his
lessor was the patentee, when it clearly ap-
peared that this Peter Shultze could not possi-
bly be the patentee; the only effect of this was to
show, what required no proof, that there are
many persons in the State of the same Christian
and surname.
In this action, whenever the plaintiff intro-
duces a deed conveying the premises to a per-
son of the name of his lessor, it is prima facie
evidence that the lessor is the real grantee ;
the burden of disproving this, and repelling
the presumption, is thrown on the defendant,
and he hiay prove that the deed was granted
to a different person of the same name. If it
be not so, then any man who can find a deed
on record to a person of the same name, may
use it for very mischievous purposes. If the
lessor of the plaintiff is not the patentee, then
he has no title to the lot ; and may not the de-
fendant who is in possession, and can protect
himself against everyone but the true owner,
show all the necessary facts to make out that
the lessor has no title to the premises ? Such
proof does not vary or contradict the deed,
but is perfectly consistent with it. It admits
the grant to have been correct, but shows that
the lessor is not what he assumes to be, the
person to whom it was made, and that he has
no right, not being the patentee, to turn the
defendant out of possession.
Without being influenced at all by the evi-
dence that there was another Peter Shultze in
existence at the time of the trial, or a few years
before, my opinion proceeds on the ground
that the lessor of the plaintiff is proved not to
be the patentee, and I hold that proof to have
been correctly given.
THOMPSON, Ch. J. I concur in giving judg-
ment for the defendant. I had come to a dif-
ferent conclusion, supposing that this case
could not be distinguished from the case of
Jackson y. Hart, 12 Johns., 77. But as I dis-
sented from the opinion of the court in that
case, and my brethren who were parties to it,
thinking it is not in the way here, I feel no hes-
itation in saying the plaintiff is not entitled to
recover. I put it on the *ground, how- [*524
ever, that neither Peter Shultze, the lessor of
the plaintiff, nor the other Peter Shultze men-
tioned in the case, was the person intended as
the patentee ; it appearing, by the case, with-
out entering particularly into the testimony,
that the latter was not born at the commence-
ment of the Revolution, and the former not
coming within the description of the persons
mentioned in the Act of the Legislature under
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. VAN BUREN.
524
which the patent was issued, and to which it fame, and to her heirs and assigns forever. It was
Hf , P7 , held that no title to any particular part of the pat-
refers. That the identity of the patentee is a ent Vt.st(.(, |n M and 8ho«;iot hlivlnir made anv ££
matter that may be inquired into in this collat- : tion in her lift-time, the riifht of election was srone.
eral wav is settled bv the case of Jnckwn v. : and could not be exercised by her heirs, especially
Stanley, 10 Johns., 136, and which case I un- • 9^ ""^ ye"* *T°m th* th*
derbtand it was not intended to overrule by
the decision in Jacknon v. Hart. An inquiry
as to the identity of the patentee, does not, in
any manner, contradict or make void the pat-
ent ; nor does it imply that there is not a per-
Citations—2 Co., 36, 37 ; 13 Johns., 212.
rpHIS was an action of ejectment, tried be-
-L fore Mr. Justice Van Ness, at the Colum-
bia Circuit, in January, 1815.
son in e**e capable of taking under the irrant. j The lessor of the plaintiff is the son and heir
It only goes to show that the person claiming
to be the patentee was not such person. If it
should appear that he was the person intended,
the inquiry must there stop. If the Commis-
sioners of "the Land Office had mistaken their
powers, and made a grant to a person not
coming within the description in the Act. and
the patent was sought to be vacated on that \ ren was seised, in 1720, of an undivided ninth
ground, there can be no doubt that it must be ' part of I)e Bruyn's patent, in the town of
done by some direct judicial proceeding. But Kinderhook. He left six children, to wit :
of Maryche (Maria), a daughter of Peter Mar-
tin Van Buren. who was married to Jerome
Van Valkenburgh. She died before the Rev-
olutionary War, and her husband after the
war. Peter, the lessor's elder brother, died
before the war, without issue.
It was admitted that Peter Martin Van Bu-
an inquiry into the identity of a patentee
would not come within the scope of a Mire fa-
riot. This can only arise when some person
comes forward to assert a right under the pat
Cornelius, Barent, Tobias, Martin, Eytie, and
Maria or Maryche.
Evidence having been given of the existence
and loss of the original will of Peter Martin
ent ; it is then, and then only, that it can be j Van Buren, made in 1722. a copy thereof was
objected to him, that he is not the patentee, j read in evidence, and which contained the fol-
although be may have the same name. It is | lowing clauses : "I give to my daughter Eytie
altogether a mistake that such an inquiry is an Vosburgh, wife of Martin Vosburgh, the
attempt to vacate the patent. It leaves it in house in which she now lives, with five mor-
full force and effect, according to its original j gan of land with it ; and twenty-five morgan
intention and operation. This is not a naked of woodland, and twenty-five morgan of pine
grant to Peter Shultze. The patent refers to ! wood where she pleases to take the same, out
the Act under which it was issued, containing ! of the right of De Bruyn's patent, which I
a description of the persons intended to be j have acquired by deed from Johannes Van
embraced within the bounty of the Legisla-
ture. This may be considered as matter of de-
scription adopted by the patent, and which
necessarily opens the door to let in the inquiry,
whether the person claiming to be the patentee
answers such description. The identity of the
grantee, as well as of the thing granted, must,
generally speaking, partake, more or less, of a
latent ambiguity, explainable by testimony,
dehor* the grant. It cannot be that this in-
quiry is restricted to the single case of ambi-
guity occasioned by there appearing to be two
persons bearing the name of the patentee. I
Alen, for her. her heirs and assigns, forever.'
"Also, I will that my youngest daughter,
Maryche Van Buren, shall have a decent out-
set, so as her sister Eytie has had, &c., and
twenty-five morgan of woodland, and twenty-
five morgan of pine wood, out of the right
of De Bruyn's patent aforesaid, to her, and
her heirs and assigns, forever." The testa-
tor gave to his four sons equal shares of De
Bruyn's patent, except what he had before de-
vised.
The plaintiff read in evidence an Act passed
the 4th of February, *1794, confirm- '"
*can discover no sound reason for such ing a division and exchange of a certain tract
restriction, and I am persuaded that the rule,
thus understood, is too limited to meet all the
cases that may arise, necessarily requiring its
application. It is, therefore, upon the broad
ground that is always open to a defendant in
ejectment to show that the lessor of the plaint-
iff is not the person intended by the patent
under which he sets up his claim, although he
may bear the same name, that I concur in the
judgment for the defendant.
Judgment for the defendant.
Disapproved— 1 Doug., 569.
Cited in— 5 Cow., 239 ; 9 Cow.. 148 ; 19 Wend.. 442 ;
18 N. Y.. 92 : 52 How. Pr.. 284 ; 42 Mo., 843.
JACKSON, ex dem. VAN VALKENBURGH,
VAN BUREN.
Ejttlment — Deri** of Land to be Selected in Cer-
tain Patent — Election mutt Be By, and During
Life of, Devuee.
One hundred acres of land, in a certain patent,
were devised to M., where she pleased to take the
JOHNS. REP., 18.
of land in Kinderhook granted to John Hen-
dricks De Bruyn. The partition was made in
1793, by which lot No. 1, of the third allot-
ment, and lot No. 2, of the first allotment, fell
to the share of Peter Martin Van Buren. The
plaintiff also gave in evidence articles of agree-
ment made in 1792. to which the defendant
was a party, confirming the exchange and au-
thorizing the partition referred to in the above-
mentioned Act.
A written notice, dated the 1st of August,
1813, signed by the lessor", was served on the
defendant, which, referring to the will of P.
M. Van Buren, and the devise to his daughter
Maria, stated that he. the lessor, as heir at law
of the said Maria, gave notice that for the re-
mainder of the land, which was still due un-
der the said devise, he had located upon and
chosen lot No. 1, of the third allotment, mid
fifteen acres of the eastern part of that portion
of lot No. 2, of the first allotment of John E.
Van Alen's division of the said patent, &c., as
is now in his, the defendant's possession ;
which said lots No. 1 and No. 2, upon the
719
SUPREME COURT, STATE OF NEW YORK.
1816
division aforesaid, were allotted to the heirs
and representatives of P. M. Van Buren.
The defendant was in possession of about
half of lot No. 1, and of the eastern part of
lot No. 2, on which the defendant's house
stands.
C. Van Alen, a witness for the defendant
testified that No. 7, of the 7th allotment of De
Bruyn's patent, fell to the share of Peter Mar-
tin Van Buren, containing two hundred and
ninety acres. That the lessor of the plaintiff,
in 1794, after John E. Van Alen's survey,
made a location on fifty-one acres lying west
of the Albany road, as heir of his mother, ac-
cording to the will of P. M. Van Buren, by
cutting a possession fence around it, and de-
claring that he took it under the will ; and
the witness purchased twenty-five and one
half acres of this lot of the lessor, which he
lield under that title ; and the residue was held
by other purchasers, from the heirs of P. M.
Van Buren. The witness had contracted to
purchase of the lessor the whole of the fifty-
one acres, but got a deed for one half only ;
the other half being in possession of persons
claiming under the heirs of P. M. Van Buren,
who refused to let him have it. This was con-
sidered pine land. The lessor got his oak
land in another part of the patent. The wit-
ness advised the lessor, as his location was re-
sisted by the possessors, to give it up. The
Hessor, accordingly, gave it up, and said he
would locate elsewhere, on a lot lying east of
527*] the post road. The land in the *pos-
session of the defendant was considered by
some of the witnesses as oak land, and by
others consisting of oak and pine land.
A verdict was taken for the plaintiff, by
consent, subject to the opinion of the court
on a case agreed upon containing the facts
above stated.
Mr. Van Vecfiten, for the plaintiff, contend-
ed that the right of election given to Maria
Van Buren descended to her heirs, and might,
therefore, be exercised by the lessor of the
plaintiff. (9 Vin. Abr., 359, 361, 362, 363, Elec-
tion, B, C, D., 260, 36 b, 37 a ; Moore, 691 ;
Cro. Biiz., 819 ; 2 Bulst., 7.)
Mi: Van Buren, Attorney-General, contra,
insisted that the right of election must be ex-
ercised in the lifetime of the devisee or grantee,
and was not descendible. (2 Co., 37; Dyer,
287 ; Anders., 11 ; Hob., 174.) That it would
be against justice and good policy to allow it
to be exercised after a lapse of near a century
from the death of the testator. He relied on
the case of Vandenbergh v. Van Bergen, ante, p.
212, as in point.
Mr. Van Vechten, in reply, said that the de-
vise ought to be carried into effect, so far as it
<;ould be done consistently with the rules of
law. The testator clearly showed his inten-
tion that the interest devised should vest ; and
if so. it was a descendible interest. The devise
was to M., and her heirs and assigns. There
was no limitation as to the person who was to
make it : and the cases cited to show that the
right of election must be exercised in the life-
time of the person to whom it was given, were
not applicable. Besides, it was in the power
of the ad verse party to quicken the exercise of
the right of election, as soon as the lessor was
in a situation to make it.
720
YATES, «/., delivered the opinion of the
court:
The devise to Maryche was intended, by the
testator, to be the same (as to the right of elec-
tion) with the one to his daughter Eytie, and
must be governed by the same legal principles.
She had a right; then, to locate the twenty-
five morgan of pine wood land where she
pleased ; and until the location had been made
by her, the lands thus devised in severally
could not be distinguished, or taken from the
residue, owned by the testatt>r in De Bruyn's
patent ; and it remained wholly uncertain to
what part of them she would have this right
in severally, or to which part such right would
attach, until the act was consummated by her;
*for this reason, no estate or interest in [*5528
any particular part of those lands could pass to
her, presently, by the devise, but depended
upon the previous act of election to be made
by her ; and she not having thought proper
to make it in her lifeteme, it is important to
examine whether the right can be extended to
her heirs.
In 2 Co., 36, 37, Heyward's case, it is stated
that when nothing passes to the feoffee or
grantee, before the election to have one thing
or the other, then the election ought to be
made in the lifetime of the parties, and the
heir or executor cannot make the election ;
and Bullock's case of 10 Eliz., 281, is there
cited from Moore, 81, in which it is stated that
if the heir of the feoffee should make the elec-
tion, he would be in as a purchaser ; for
nothing passes to the feoffee before election ;
and by the law he cannot be a purchaser, for
then the words "his heirs" were words of
limitation.
The case of Vandenbergh v. Van Bergen,
ante, 212, is, in some measure, applicable to
this. There the defendant, under a deed for
certain lands in Coxsackie patent, with full
liberty and license to erect and build a mill on
any place at or on the Coxsackie Creek, with
liberty of ground and stream of water, claimed
the right of overflowing the plaintiff's land,
which was held by the grantor at the date of
the defendant's deed ; this court decided, that
though the grantee, in his lifetime, would
have had a right to erect a mill on the creek,
and to have overflowed, so far as was reason-
able and necessary, the land of the plaintiff
adjacent to the creek, which land had been
purchased from the defendant's grantor, sub-
sequent to the date of his deed, yet, not having
elected to erect the mill in his lifetime, the
right became extinct at his death. So here the
right was potential, and rested entirely upon
the location and election to be made by the
devisee. She was not vested in her lifetime
with the title to any particular parcel By vir-
tue of the will, her election and location were
necessary to consummate the title, and she
never having designated the land, the exercise
of the right by the heir is gone, particularly as
the claim is interposed upwards of forty years
after the death of the ancestor. But this need
not be urged in the decision of the present
cause; for, admitting that the right to elect
was not confined 'to the ancestor, and that it
descended to the heir, there can be no doubt
that, in this instance, the heir has, by a pre-
vious election *of other lands, extiu- [*529
JOHNS. REP., 13.
1816
IIlNMAN V. BfUOH.
guished all possible claim to the premises in
question.
It appears, by the case, that in 1794, the
year after John E. Van Alen's survey, the
lessor of the plaintiff elected to locate fifty-one
acres, or twenty-four morgan, at another place,
.as heir of the devisee, according to the will;
that he made an entry on the land, and cut a
possession fence around it. and actually sold
•twenty-five and one half acres parcel of it.
which is now held under that title; but to avoid
a lawsuit with persons claiming under other
devisees, he thought proper to abandon his
•claim to the residue. If he had any right to
make his election, it is extinguished by that
.location as to any other lands owned by the
testator. No acts could be more prominent;
.he openly avowed his intention, took posses-
sion, and sold part of the land. He was con-
sequently obliged, thereafter, to confine his
•claim, under the devise to his mother, to those
binds, and cannot now resort to other property
in the patent belonging to the testator: it
would be extending an unreasonable latitude
to the exercise of a right of this description;
•ui'l in its consequences would be attended
"vrilli fraud and injustice to bonafide purchas-
ers. The election thus made by the heir, there-
fore, independent of the reasons before as-
signed, is sufficient to entitle the defendant to
judgment.
Judgment for the defendant.
HINMAN «. BREES, Sheriff, &c.
Sheriff — Action Against, for Escape — Issuing
of Execution — Delivery and Arrest — Parol
Evidence to Prove, when Admissible — Neglect
to Return and File Ca. Sa. — Irregularity no
Defense — lloic Cured.
In an action of debt against a sheriff for the escape
•of a prison ;r in execution on a en. aa., parol evi-
•denco is admissible to show the issuing1 of the exe-
cution, its delivery to the sheriff, and the arrest of
the party thereon : the defendant having neglected
to return and die the <•</. 8a., and having refused to
produce it at the trial, though due notice for that
purpose had been given to him before trial.
It is the duty of a sheriff to return a writ without
a 'rule of court for that purpose; and he cannot
avail himself of his neglect of duty to defeat the
plaintiff's action.
\\'l> •!-••, on a judgment in a bailable action, a en.
•ta. Is issued without a (I. fa. having been previously
issued, and returned India limui, pursuant to the
Statute, the sheriff, in an action against him for an
escape, cannot avail himself of the irregularity ; but
application mu-t be made to the court to set aside
the ca. sa., on the ground of such irregularity.
THIS was an action of debt for an escape,
brought against the defendant, sheriff of
Rensselaer County. The cause was trier! be-
fore lf>. Justice Spencer, at the Rensselaer Cir-
cuit, in June last. It was admitted that the
plaintiff had obtained a regular judgment
against William Le Barrow, in the Court of
Common Pleas of Rensselaer, in August, 1815,
5JJO*] for $316.35; *and the defendant was
called upon, at the trial, to produce the en. *a.
issued on the judgment, which WHS stated not
to have been returned by the defendant, but
was still in his possession, due notice having
been given to the defendant to produce the
writ. The defendant's counsel refusing to
JOHNS. RBP.. 18. N. Y. R., 5.
produce theea. sa., the plaintiff offered parol
evidence to prove the issuing of the writ, and
the arrest of Le Barrow thereon; the evidence
was objected to, on the ground that the ca. sa.
was matter of record, and the return of it
might have been enforced by a rule of court.
The judge overruled the objection; and a wit-
ness for the plaintiff testified that on the day
preceding the trial, the defendant's counsel
showed him the ca. aa., which was indorsed as
having been received by the defendant the 3d
of November, 1815; and that one of the depu-
ties of the defendant told the witness, the next
day, that the plaintiff delivered the •••/. sa. to
him on the 3d of November, 1815, to be exe
cut dl: and that on the same day, he, the dep
uty-sheriff, arrested Le Barrow, by virtue of
the writ, but who, afterwards, on the evening
of that day, made his escape. The writ was
dated the 2d of September, and returnable the
last Monday of November, 1815.
The defendant then offered to prove that
the action on which the judgment was ob
tained against Le Barrow was a bailable ac-
tion, and that special bail was, in fact, put in,
and no exception made to its sufficiency ; that
the plaintiff, before issuing the ca. sa.. had
sued out and delivered to the defendant &fi.
fa., on the same judgment, dated the 2d of
September, and returnable the last Monday of
November, 1815, and which was not returned
" nulla bona " by the defendant, and filed in
the clerk's office, until the last. Monday of
November, 1815 ; and that IIP other./?, fa. was
ever issued on that judgment, but both of the
said writs were in the possession of the de-
fendant at the same time. This" evidence was
objected to by the plaintiff's counsel, and
overruled by the judge ; and the jury, under
his direction, found a verdict for the plaintiff.
A motion was made for a new trial, on the
part of the defendant, "which was submitted
to the court, without argument, on a case as
above stated.
Per Curiatn. This is an action of debt
against the defendant for the escape of a pris-
oner in his custody, on a ca. sa.; and the
•questions which are presented by the [*53 1
case relate to the sufficiency of the proof of
the execution, and whether it was regularly
issued or not. Notice to produce th« execu-
tion on the trial had been duly given, but it
was not produced ; and whether secondary
evidence of the existence of the execution was
admissible, was one question agitated upon
the trial. It was stated by the defendant's
counsel that the execution had not been re-
turned, but was still in the defendant's posses-
sion. But parol proof of it was objected to,
because the sheriff should have been ruled to
return it, and the execution itself, or an ex-
emplification of it, produced. The objection
was properly overruled, and the parol proof
established the issuing of thecxecution and its
contents. There is no doubt but the sheriff
might have been ruled to return the execution.
It was his duty to have done this without be-
ing ruled, and he ought not to l>e permitted to
avail himself of his own neglect of duty to de-
feat the plaintiff's action on a mere technical
objection.
The irregularity complained of is. that the
46 721
531
SUPREME COURT, STATE OP NEW YORK.
1816
ca. sa. was issued before any ft. fa. had been
returned nulla b&na, according to the Statute,
special bail having been required in the orig-
inal action. Admitting the irregularity, it
was an objection which the sheriff could not
avail himself of in this collateral way ; but
application should have been made to the
court to set aside the execution.
The motion for a new trial must, according-
ly, be denied.
New trial refused.
Cited in^l.5 Johns, 457 ; 8 Cow., 194 ; 1 Wend., 538 ;
19 Wend., 190; 8 Paige, 471; 6 How., Pr., 75; 23
How. Pr., 126 ; 4 Bos.. 389.
JACKSON, ex dem. PETER HARDER ET AL.,
v.
MOYER.
Witts — Ejectment — Construction.
M. devised as follows : " I give and bequeath to
my son, John Henry, my farm on which I now
live, &c., granted to me by several persons, and sev-
eral lots," &c. Held, that a lot of about sixteen
acres, with a dwelling-house thereon, not adjoining
the farm, and which had been let out for many
years as a separate and distinct lot, did not pass by
the devise to J. H.
Citation— 11 Johns., 201.
THIS was an action of ejectment, tried at
the Montgomery Circuit. August 29th,
1815, before Mr. Justice Yates.
The premises in question were sixteen or
twenty acres of land, and a dwelling-house
thereon, in Minden. The lessors of the plaint-
iff are six of the heirs at law of John Henry
53iJ*] Moyer, deceased, *and the defendant,
John Henry Moyer, is the other heir. John
Henry Moyer died, seised of the premises, in
1810, having previously made his will, dated
the 28th of August, 1810, by which he devised
as follows : "I give and bequeath unto my
son, John Henry, my farm, on which I now
live, and being in the town of Minden, &c.,
containing two hundred and nine acres of
land, be the same more or less, ad joining lands
of Henry Moyer, Johannes Miller and others,
granted to me by several persons, and several
lots, together with all the buildings and im-
provements thereon, to have and to hold the
same to him, to his heirs and assigns forever. "
After the death of the testator, the defend-
ant let the premises in question on shares. The
premises are separated from the farm by two
lots belonging to other persons, except in one
part, where it is separated by a small lot be-
longing to Jacob Kellar ; and at this place,
being the nearest to the farm, the distance
from it is half a mile. The testator did not
work the premises as his homestead. The
dwelling house was built by the defendant,
who had the control of the old farm and the
premises for several years previous to his
father's death.
Henry Kellar, a witness, testified that the
testator had not used the premises in question
as part of his farm, but that they had been let
out for about forty years, and did- not, in any
part, adjoin the farm.
A verdict was taken for the plaintiff, sub-
722
ject to the opinion of the court on a case con-
taining the facts above stated.
Mr. Ford, for the plaintiff, contended that
the premises in question formed no part of
the testator's farm, but were a separate and
distinct part of his estate, and he relied on the
case of Jackson, ex dem. Van Vechten, v. Sill,
11 Johns., 201, as in point to show that they
did not pass by the devise to the defendant.
Mr. Campbell, contra, insisted that as the tes-
tator had described his farm as consisting of
several and distinct parcels, the words of the
devise were large enough to include the prem-
ises in question ; and that the evidence showed
that they were under the control and direction
of the defendant, in the lifetime of his father,
in the same manner as the homestead, and
were, therefore, to be deemed parcel of the
farm.
*Per Curiam. The lessors of the [*533
plaintiff are six of the heirs at law of John
Henry Moyer, deceased, and the defendant is.
the only remaining heir. It is admitted that
John Henry Moyer died seised of -the premises
in question. The lessors claim, as his heirs at
law, six sevenths of the premises in question,
and the defendant claims the whole, under the
will of John Henry Moyer ; and the only ques-
tion is, whether the devise to the defendant
extends to the premises. The words of the
devise are: " I give and bequeath unto my
son, John Henry, my farm, whereon I now
live," &c. The premises, as appears by the
testimony, are about fifteen or twenty acres of
land, with a dwelling-bouse thereon, separate
and apart from the farm of the testator which
he occupied, and not used by him as a part of
the farm, but had, for forty "years, been let out
as a separate and distinct lot. Under these
circumstances the premises could in no sense
be considered a part of the farm whereon the
testator lived, and of course not embraced by
the devise. This is a case very analogous to
that of Jacktion v. Sill, 11 Johns., 201, and the
principles then settled must govern the pres-
ent decision. The plaintiff must have judg-
ment for six sevenths of the premises.
Judgment accordingly.
JACKSON, ex dem. SPENCER,
R. BENEDICT.
Ejectment — Debtor — Imprisonment of — Sus-
pends Lien — Priority of Liens.
Pending the imprisonment of a debtor, on a ca.
sa., another creditor obtained a judgment against
him, on which a fl. fa. was issued, and the real es-
tate of the debtor levied on and sold by the sheriff.
The debtor having been afterwards discharged from
imprisonment under the Act for the Relief of Debt-
ors with Respect to the Imprisonment of their Per-
sons (1 N. R. L., 348), afi.fa. was issued on the first
judgment, according to the provisions of the Act.
It was held that the lien of the first judgment was
suspended during the imprisonment of the debtor,
on the ca. sa., and that the new execution could
have no priority to any lien created, or right ac-
quired by others, during the imprisonment; and
the sale under the second judgment was, therefore,
good.
THIS was an action of ejectment for lot No.
7, in Fabius, set down to be tried at he
JOHNS. REP.. 13.
1816
JACKSON, EX DEM., v. BENEDICT.
538
Onondaga Circuit, in June, 1816, and the facts
being agreed to by the parties, the following
case was submitted to the court:
Ebenezer Bebee, on the 9th of July, 1814,
recovered judgment in this court against Gil-
bert Benedict, to whom the premises in ques-
tion belonged ; and who, on the 22d July,
1814. was imprisoned on a ca. »t. issued on
f>;j4*] that judgment, returnable *in August
Terra, 1814. Durine the time he was so im-
prisoned, Samuel S. Baldwin recovered a
judgment against him, in the Onondaga Com-
mon Pleas, on the 18th of October, 1814, on
which judgment Baldwin issued &Ji.fa., by
virtue of which the premises in question were
sold and conveyed by the sheriff to Isaac How-
ell, under whom the defendant claimed. The
deed of the sheriff was dated the 18th March,
1815. On the 29th of May, 1815. Gilbert Ben-
edict was discharged from his imprisomenton
the suit of Bebee, by the Court of Common
Pleas of Onondaga County, pursuant to an
Act entitled "An Act for the Relief of Debt-
ors with Respect to the Imprisonment of their
Persons," passed the 9th of April, 1813. Bebee
then i-Mied a fi. fa. on his ejectment, tested
the 13th of May, returnable in August, 1815,
against the property of Benedict ; and the
E remises in question were levied on and sold
y the sheriff, by virtue of the fi. fa., to the
lessor of the plaintiff, and a deed to him was
executed by the sheriff on the 7th of Septem-
ber, 1815.
The only question was, whether the sale of
the premises in question under the judgment
in favorof Baldwin, was good as against the
lessor of the plaintiff ; and it was agreed that
if the court should be of opinion that it was
good, a judgment of nonsuit should be entered;
otherwise, a judgment was to be given for the
plaintiff.
The cause was submitted to the court with-
out argument.
Per Curiam. Both parties claim title to the
premises in question under judgments against
Gilbert Benedict, in whom the title is admitted
to have been duly vested. The judgment un-
der which the lessor of the plaintiff claims was
first docketed ; and admitting that, in ordinary
cases between judgment creditors, this would
.luiiss. i;> •.!-.. i:;.
give it priority, yet under the circumstances of
this case it must be postponed, and preference
given to the second judgment. On the first
judgment, which was obtained in this court, a
ca. «a. was issued and the defendant. Gilbert
Benedict, was arrested and imprisoned there-
on. Whilst he was so imprisoned, &fi. fa. was
issued on the second judgment, which was
•obtained in the Onondaga Common [*535
Pleas; and the premises in question levied upon
and sold, and a deed given by the sheriff to
Isaac Howell, under whom the defendant
claims. Gilbert Benedict having been dis-
charged from imprisonment, under the Act
Relative to the Imprisonment of the Person, a
fi. fa. was taken out on the first judgment and
the premises again sold by the sheriff and pur-
chased by the lessor of the plaintiff. From
these facts it appears that the plaintiff, in
whose favor the first judgment was obtained,
had made his election as to his execution ; and
having taken the body of the defendant, he
could not afterwards have recourse to his prop-
erty, except in the special cases provided for
by "the Statute, as where the defendant dies in
prison, or where he is discharged under the
Statute, as was the case here. But these are
contingencies which many never occur, and it
would be extremely unjust to continue the lien
on the property after the body has been taken
in execution. It would, in effect, be giving to
a ca. *a. an operation upon the land as well as
the body of the defendant. Taking the body
in execution is a discharge of the judgment
except where otherwise provided by statute,
and the imprisonment of the person must be a
suspension of the lien. The defendant in such
case would have a right to sell his property,
either real or personal ; and the execution al-
lowed by the Statute to be taken out, after the
discharge against his property, cannot claim
priority to any lien created or right acquired
by others, during the imprisonment of the de-
fendant. Judgment of nonsuit must, accord-
ingly, be entered pursuant to the stipulation
in the case.
Judgment of nonsuit.
Cited in-1 Cow., 644 ; 11 Wend., 42 ; 16 Wend., 435 ;
4 Hill, 622 ; 1 PaiK<". 615; 58 N. Y.,477 : 65 Barb.. 523 ;
15 Abb. Pr., 209; 2 Paine, 500.
723
[END OF OCTOBER TERM, 1816.]
CASES ARGUED AND DETERMINED
Court for the Trial of Impeachments
AND THE
CORRECTION OF ERRORS
STATE OF NEW YORK
FEBRUARY, MARCH ANt> APRIL, 1816.
JACKSON, ex dem. BROCKHOLST LIVING-
• STON ET AL., Plaintiff in Error,
v.
ANN DE LANCEY AND ABRAHAM RUS-
SELL, Defendants in Error.
1. 'Wills — Construction of — Intention Governs —
Executory Devise.
2. Fee Does not Admit of a Limitation over.
3. Altornment to One without Title, Void — Ad-
verse Possession.
4. Trust Estates Pass under General Words.
5. Sheriff's Deed — Must Describe Premises with
Reasonable Certainty.
6. Practice — Scire Facias Irregularly Issued,
Voidable only — Lapse of Time.
7. Mortgages — Satisfaction of.
8. Costs.
A, in 1770, being indebted to B by three several
bonds, in order to secure the payment of the same,
executed to B a mortgage on all his lands in the
Province of New York, part of which lands were
referred to by name, and part, comprising the
premises in question, passing under a general
clause, and covenanted that, on default, ,the mort-
gagee, his heirs, &c., might enter. B died, having
directed by her will all her estate in certain patents,
and elsewhere, wheresoever and whatsoever, to be
turned into money by her executors, and to be
equally divided among her five children, who were
to be tenants in common in fee of the realty, until
such sale and distribution. In 1771, before the
death of B, the mortgage had b&come forfeited,
and a judgment had also been recovered by B
against A. A, by his will, executed in 1780. devised
his estate to his wife, and, in case of her death with-
out disposing of the same by grant or devise, he de-
vised it over to his daughter D. In 1788 the judg-
ment against A was revived by the executors of B,
and a scire facias was directed to the heirs of A,
who were summoned, but not to the wife of A, the
tenant for life, who was not summoned; and exe-
cution was issued thereon, and the lands of A sold
and purchased by C, who had married one of the
daughters and devisees of B, and conveyed to him,
who took possession of the premises in question,
under that deed : which, however, it was now ad-
mitted, did not pass the premises. C procured con-
veyances from three of the other devisees of A,
and the tenants of the land in 1790 attorned to C,
and surrendered their possession to him, and agreed
to hold under him. The wife of A having died, after
devising her estate to trustees in trust for her daugh-
ter D ; it was held, in an action of ejectment on the
demise of D, and her trustees, against persons
claiming under C, that C had a right of entry un-
der the will of B as devisee of the mortgage, which
passed by the general words of the will, such ap-
pearing to be the intention of the testatrix, and
that the defendants could set it up as an outstand-
ing title to defeat the plaintiff's action.
A scire facias to revive a judgment irregularly is-
sued, or an execution issued, after a year and a
day, without scire facias, is voidable only, and can-
not be called in question, in a collateral action, so
as to defeat the title of a purchaser under the exe-
cution ; and it seems that after the lapse of twenty
years it cannot be avoided on a direct application
for that purpose.
In a sheriff's deed, nothing will pass under a gen-
eral clause of " all other the lands, &c., of the de-
fendant."
In a sheriff's deed, the land sold must be described
with reasonable-certainty, and he can sell nothing
under an execution which the creditor cannot en-
able him so to describe.
In a devise of all the real and personal estate of
the testator, and if the devisee should die without
disposing of it, then to D this subsequent limitation
is void; because the first devisee took a fee by virtue
of the word "estate," and because the subsequent
limitation was repugnant to the power given to the
first devisee.
Where a person enters upon land without title,
and the tenants surrender their possessions, and at-
NOTE. — 1. Wills— Executory devise— Fee with limi-
tation over. 2. Min'tgage— Presumed satisfied, when —
Passes under general words. 3- Sheriff's deed—Must
be certain.
1. Where the devisee or legatee has a fee, a limita-
tion over »> void. Ide v. Ide, 5 Mass., 500 ; Pickering
v. Langdon. 22 Me., 413; Hall v. Robinson, 3 Jonea
Eq., 348; McRee's Adin'rs v. Means. 34 Ala., 349;
Newland v. Newland, 1 Jones L., 463 ; Bourn v.
Gibbs, 1 Russ. & M., 615 ; Ross v. Ross, 1 Jac. & W.,
154; Jackson v. Bull, 10 Johns., 19, note.
2. Mortgage.
In absence of entry by mortgagee, foreclosure or
payment of interest for twenty years, the mortgage
is presumed satisfied. Jackson v. Pratt, 10 Johns.,
381, note. See, also, above case of Jackson v. De
724
Lancey, 11 Johns., 365.
Mortgages held by devisor pass under general
words, unless a contrary intention appears. See
above case of Jackson v. De Lancey ; Galliers v.
Moss, 9 Barn & C.. 267 ; Braybroke v. Inskip, 8 Ves.,
417: Co. Litt., 205 a. n. 96. But see Wilkins v.
French, 20 Me.. Ill ; Strode v. Russell. 2 Vern., 625;
Atty-Gen. v. Vigor, 8 Ves., 276 ; Casborne v. Scarf e,
1 Atk., 605.
3. Sheriff's Deed.
A sheriff's deed must describe the premises with
reasonable certainty or no title passes. See above
case of Jack*on v. DeLancey ; Jackson v. Rosevelt,
13 Johns., 97; Peck v. Mallauis, ION. Y.,509; Dygert
v. Plette, 25 Wend., 402.
JOHNS. REP., 13.
1916
JACKSON, EX DEM., v. DE LANCET.
537
torn to him, this in not a disseisin or ouster, and the
attornment is void. Such entry and attornment are
not the commencement of an adverse possession.
Trust estates, under which is included the interest
of a mortgagee, who, until foreclosure, is a tru<t--»-
f'»r tin- mortKiwor, will pass undi-r K^ii'-nil words in
the will relating1 to the realty, unless it can be col-
lected from the expressions in the will, or the pur-
poses and objects of the testator, that his intention
was otherwise.
The Uth section of the Act Concerning Costs (1 N.
1C. L., :»>\>, KJ\ iiiK double costs on the affirmance of a
judgment on error, applies only where the writ of
error is brought bv the defendant in the court be-
low. If the plaintiff below bring* a writ of error,
and the judgment is affirmed, he is entitled to sin-
gle coats only.
Citations -3 Cai., 270 ; 8 Johns., 3tt5 ; 7 Johns., 556 :
2 Bay. :««; 2 Ilinn.. 40: 2Sch. & Lef., 5t)6; 10 Johns..
19 : 5 Ves., 339, 341. «. ; 8 VPS., 407 : 8 T. R., 118 ; 10
Ve«.. 101 ; 1 Vern.. 3 ; 2 Ch. Gas.. 51 ; 2 P. Wins., 198 ;
4 Vea.. 147, 149; Co. Litt., SOB 6, n. 96 : 2 Vem., «21 ;
1 Atk., 605: 8 Ves., 43H, 437: 4 Ves., 149 ; 3 Ves., 348;
Star., 13 Car.. I.. 2 Ves.. 44; Mullock on Costs, 280,
S81; 0 Johns., 278; Act on Costs, sees. 12, 14.
rpHIS cause came before this court on a writ
J- of error to the Supreme Court. (See the
CHM; reported 11 Johns., 365, 376.)
«>JJ8*J *The action was for the recovery of
certain lands in Plattekill, in the County of
Ulster. The following facts were found by
the special verdict: William Alexander, com-
monly called Lord Stirling, in his lifetime was
i of a tract of land, supposed to contain
one thousand acres, situate in Plattekill, of
which the premises in question are a part ;
and being so seised, he executed to Ann Wad-
dell, of the City of New York, a mortgage,
dated the 3d of December, 1770, reciting sev-
eral debts due to her, &c.. amounting to
£5,043 1 •>.«., for securing which he mortgaged
certain lands in Orange County, Westchester
County, and in the Counties of Albany and
Ulster, " and all other the lands, tenements,
and hereditaments, belonging to the said Will-
iam, Earl of Stirling, within the Province of
New York." The tract of one thousand acres,
including the premises in question, was not
one of the parcels particularly described, but
passed under the general description above
mentioned, of all the other lands, &c. Ann
Waddell, in January Term. 1771, obtained a
judgment in the Supreme Court on two of the
bonds recited in the mortgage, which was
signed and docketed the 21st of March, 1771.
Ann Waddell died sometime in the year
1773, having made her will, dated the 29th of
March, 1773, in which she directs her execu-
tors, among other things, to collect "all out-
standing debts of every kind, and these, with
all the rest of her estate in the Hardenburgh
patent, and elsewhere, whatsoever and where-
soever, to be turned into mouev, and equally
distributed among her five children, share and
share alike, who were to be tenants in com-
mon in fee of the realty, until such sale and
distribution be made." In April, 1775, the
executors of Ann Waddell revived the judg-
ment by ncire facial, in the Supreme Court,
against Lord Stirling. And after the'death of
Lord Stirling, in the October vacation, in the
year 1787, the executors of Ann Waddell sued
out a tcirefiteitt* on the judgment against the
heirs and terre-tenants of Lord Stirling, on
which Robert Watts and Mary, his wife, and
Catharine* Duer, the heirs of Lord Stirling,
were summoned ; and in January Term, 1788,
judgment passed against them on the tcire
JOHNS. REP., 13.
faciat by default. This writ of wire facias
was directed to the sheriff of the City and
County of New York, and commanded him
" to give notice to the heirs of the said Will-
iam, Earl of Stirling, and also to tenants of
all the lands and tenements in the bailiwick,
which were of the said William, Earl of Stir-
ling, on the 26th of June, 1771 ;" and the
sheriff *returned that he had " made [*oIM>
known unto Robert Watts and Mary, his
wife, and Catharine Duer, which said Mary
and Catharine are daughters and heiresses of
the said William, Earl of Stirling, deceased,
that they should be," &c. ; and further, " that
there were no other heir or heirs of the said
William, Earl of Stirling ; nor were there any
other tenants or tenants of any lunds or tene-
ments which were of the said William, Earl of
Stirling, on the day the said judgment was
rendered, or ever after, in his bailiwick," &c.
A tentatum fieri fticias was issued on the
judgment so revived, directed to the sheriff of
the County of Ulster, returnable in July Term,
1788. On the 10th of June, 1788. the sheriff
of Ulster executed a deed of conveyance to
John Taylor, of the City of New York, mer-
chant, which recited that he, the sheriff, &c..
had seized of the lands and tenements which
were of the said William, Earl of Stirling, &c.,
in the hands of Robert Watts, and Mary, his
wife, and Catharine Duer, as heirs, &c., with-
in his bailiwick, the several tracts, pieces or
parcels of lands, &c., thereinafter mentioned
and described, and the same lands and tene-
ments &c., he did separately expose to sale,
and did sell and dispose of the same, to wit :
the first of the said tracts, &c., for £50, and
the second of the said tracts, &c., for the sum
of £50, to John Taylor, being the highest bid-
der, &c. ; these two tracts were particularly
described in the deed, which among the prop-
erty so conveyed, further stated, "and also,
other the lands, tenements and hereditaments,
whereof the said William, Earl of Stirling,
was seised, on the said 26th of June, 1771, or
at any time afterwards, within the County of
Ulster, whether held in severally or in com-
mon with others;" and under this general
description was included the tract of one thou-
sand acres, containing the premises in ques-
tion, and which were not otherwise or partic-
ularly mentioned and described. Lord Stir-
ling died in the Spring of 1793. leaving two
daughters — Catharine, the wife of William
Duer, and Mary, the wife of Robert WatU»,
his heirs at law, having, on the 29th of Jan-
uary, 1780, made his will, by which be de-
vised "all his real and personal estate what-
soever, to his wife Sarah, to hold the same
to her, her executors, administrators, and as-
signs; but in case of her death, without giv-
ing, devising, and bequeathing by will or oth-
erwise, or assigning the said estate, or any
part thereof, then he devised all such estates,
I or such parts thereof as should *re- [*£>4-O
I main unsold, undcvised, &c., unto his daugh-
j ter Catharine, to hold the same to her, her
i executors, &c.; and appointed his wife, and
: his daughter Catharine, and her husband Will-
! iam Duer, executors of his said will. Sarah,
! the wife of Lord Stirling, died in March,
! 1805, having on the 27th of November. 1804,
, made her will, by which, after several pecun-
725
540
COURT OP ERRORS, STATE OF NEW YORK.
1816
iary legacies, she devised "all the residue of
her estate whatsoever, real and personal, in
possession or action, to Brockholst Livingston
and Matthew Clarkson, and the survivor, in
trust, for the separate use of her daughter
Catharine, then the wife of William Neilson,
during her life, and after her decease, to be
divided among her children ; and appointed
the persons so named as trustees, her execu-
tors. At the time of the death of Lord Stir-
ling, the tract of one thousand acres, of which
the premises in question were part, was pos-
sessed by Nathan Miller, and persons hold-
ing under him, and was so held and pos-
sessed until the entry of John Taylor, and the
attornment to him by Miller and the persons
holding under him. Miller held the posses-
sion, as tenant to Lord Stirling and his repre-
sentatives. Ann Waddell left five children,
to wit : William, who resided in England, her
eldest son and heir at law; Henry; Mary, the
wife of the said John Taylor ; Ann, the wife
of Eleazer Miller; and Sarah, the wife of
Joseph Taylor. On the second of February,
1788, Henry Waddell executed a conveyance,
reciting the mortgage and judgment afore-
said of all his right, title and interest in the
same, to John Taylor; and a similar convey-
ance was executed the 19th of December, 1809,
by Eleazer Miller and Ann, his wife, of all their
right, &c., to the said John Taylor; and on the
25th of December, 1809, Joseph Taylor and
Sarah, his wife, executed a similar conveyance
to John Taylor.
On the 12th of February, 1809, Samuel
Brewster, as attorney of John Taylor, author-
ized Ichabod Williams to take possession of
the tract of one thousand acres in Ulster, and
to bring actions, in the name of Taylor, against
any person in possession. On the 17th of June,
1791, William Clark, Abraham Russell, and
others, tenants in possession of the land, by a
writing under their hands and seals, attorned
to John Taylor, since which time the said
tract has been held under John Taylor and his
heirs. On the 1st of March, 1805, Nathan
Miller executed a lease of the premises in ques-
tion to Andrew Gee, for twenty-one years,
541*] who afterwards *delivered the posses-
sion to the defendant, Abraham Russell.
The court below gave judgment for the
defendants. The cause now coming on to be
heard, the Chief Justice assigned the reasons
for the judgment, which were the same as
those stated in the report of the case. (Vol.
XI., p. 373.)
Mr. J. Duer, for the plaintiff in error, con-
tended: 1. That John Taylor had no right of
entry at the time of the attornment of Russell,
the defendant, to him; and that the attornment
was, therefore, void, and did not affect the
possession of the devisees of Lord Stirling.
(1 N. R. L., 443, sess. 36, ch. 63, sees. 27, 28.)
2. That the proceedings by sci. fa. to revive
the judgment against the heirs, &c. . of Lord
Stirling, were void, as the widow of Lord Stir-
ling, and the tenant of the freehold, was not
made a party or summoned. (Garth., 167;
Com. Dig., tit. Sei. Fa., C, 5 and 161.)
3. Admitting even that the execution was
regular, the premises did not pass by the sher-
iff's deed. The description was too general.
The property sold and described must be iden-
726
tified by a particular description, or by metes
and bounds. (1 Johns. Cas.. 284.)
4. John Taylor was not a mortgagee within
the meaning of the Statute. He had no right
of entry as a mortgagee; for the legal estate in
the premises was not passed by the will of Mrs.
Waddell, but had descended to William Wad-
dell, her heir at law. John Taylor could not
recover the debt at law, nor foreclose the equi-
ty of redemption. (2 Fonb. Eq., 255; 2 Equ.
Cas., Abr., 192; 2 Vern., 66; Prec. in Ch., 15;
Cruise's Dig., tit. Mortg., ch. 1, sec. 17.)
5. The possession of John Taylor was hos-
tile to the heir at law, and to the' rights of the
executors of Mrs. Waddell, and calculated to
defeat the execution of the trust created by the
will. In equity, a mortgage is considered as
mere personal property, or as debt which
passes to the executors. It will not pass under
a devise of the real estate, if there are any
other lands to feed the devise. (2 Vern., 193,
625; 2Fonbl. Eq., 284; 1 Ch. Cas., 283; 2 Ch.
Cas., 51; 1 Bro. P. C., 228; Pow. on Mortg.,
683; 2 Fonbl., 279, note; 1 Atk.. 605; Cm.
"Dig., tit. Devise, ch. 10, sec. 113.) Cases as
to trust estates passing under the general words
of a devise, are not applicable to the present.
The case of Baybrooke v. Inskip, 8 Ves. , 407,
where that doctrine is held, is contrary to
former decisions, and is, at best, a doubtful
authority. A mortgagee, after a forfeiture, is
not a trustee at law, but the legal owner. It is
clear that John Taylor had no right of entry
as mortgagee; and unless he had such right of
entry, the attornment to him was void. If so,
the right of the lessors to recover, against J.
Taylor, is as perfect as *against the [*542
tenant himself. He cannot set up the mort-
gage as an outstanding title, for he has not
the legal possession.
6. John Taylor had not even an equitable
interest. The interest in the mortgage debt
was wholly vested in the executors of Mrs.
Waddell, who alone could sue for and recgver
the debts (1 Ch. Cas., 4, 51; 2 Ch. Cas., '29,
50; Powell on Mort., 614, 1047); when the
legal estate passed to the heir, the equitable
interest passes to the executors. One or more
of the children of the testator cannot seize and
distribute the estate, without the assent of the
executor and the other children. John Taylor
cannot shield himself under the will, when his
object is to defeat the will, by taking away the
equitable interest of the testators, and stripping
the heir at law, William Waddell, of his rights.
The assent of the executors or heir is not found
by the special verdict, and it cannot be pre-
sumed or inferred. (1 Caines, 63; 1 Burr., 126.)
It will probably be contended, on the other
side, that the attornment to Taylor, if void,
was, notwithstanding, such a commencement
of an adverse possession as to bar this action.
But if the attornment were fraudulent and
void, as certainly it was, he having no right of
entry under the will of Mrs. Waddell, and no
assent to be presumed in his favor, it must be
void to every intent. A possession, under
such circumstances cannot be rendered good
by any length of time; for the Statute declares
the attornment to be void and of no effect.
(Sess. 36, ch. 63, sec. 28; 1 R. L., 446.)
But, admitting the posession of John Taylor
to have been adverse, such adverse possession is
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. DE LANCET.
542
not a bar to the recovery of the plaintiff in this '
suit; Catharine Neilson, one of the lessors, being j
entitled to the premises as executory devisee, j
under the will of Lord Stirling, and twenty \
years not having elapsed since her right of
entry accrued. It may be urged that the
executory devise to Catharine Duer was void,
as being repugnant to the absolute ownership I
previously given by the will to Mrs. Alexan- 1
der, according to the decision of the Supreme j
Courr. in Jackson, ex dcm. Brewnter, v. Bull, 10 |
Johns.. 19, but in that case, the first devisee took
an estate in fee, and the limitation over was on
an indefinite failure of issue here; a power was
given by the will to Mrs. Alexander in rela-
tion to the property, but on her dying without
executing that po'wer. the executory devise
was to vest in possession. Mrs. Neilson can- i
not be said to derive her title under the will of !
Mrs. Alexander, for the provisions of it did I
not vary from that of Lord Stirling, but were I
evidently only intended to effectuate it in the
o-43*l most beneficial manner. The case *of
Doe, ex dem. WiUu, v. Martin, 4 T. R, 89 ;
Fearne's C. R. & Ex. Dw., Butler's ed., 228,
supports the doctrine contended for. In that
case, it was held that in a deed to trustees, for
the use of the grantors for life, a remainder to
such children, and for such estate as the
grantors should appoint, did not prevent a
subsequent limitation to the children, in gen-
eral, of the grantors in fee, from beginning a
vested remainder. " A general power of ap-
pointing any estate or interest, ad libitum,"
says Fearne" (P., 230, Butler's ed.), "though
enabling him to limit the fee, does not ascer-
tain any estate to be limited ; therefore, no
limitation of the fee arises until it be actually
appointed under the power. The appointment,
when executed, may not reach the fee ; it may
stop at an estate for life, for years, or in tail ;
and until the appointment be complete, the
power amounts no more to a limitation of the
fee than it does of an estate tail, or any other
ascertainablc interest, equally within the ex-
tent of the power, but in which the execution
of it may terminate, without limiting the
whole fee." This reasoning applies as well
to one kind of indefeasible future interest as
to another ; to an executory devise, as well as
to a vested remainder. The appointment, in
the present case, did not reach the fee, for no
appointment at all was made. Thus the exec-
utory limitation to Mrs. Neilson was valid ;
her estate did not vest in possession until the
death of Mrs. Alexander, and not until then
did the Statute of Limitations begin to run
against her. (4 Johns.. 390 ; Burr., 120.) Be-
sides, the lease for twenty-one years, under
which Russell held, did not expire until
1806 : until the lease had expired, the person
entitled in remainder could not enter, and,
where a forfeiture has been committed, he is
not obliged to enter until the end of the term.
(7 East, 320.)
Metutr*. Oakley and Van Buren, contra.
Without pretending to assert the validity of
the conveyance of the 10th of June, 1788,
from the sheriff of Ulster, they contended that
the defendants had shown a sufficient title and
estate, under the mortgage to Ann Waddell,
to bar the action of the plaintiff ; this mort-
gage being a subsisting outstanding title,
JOHNS. REP., 18.
which they might have set up as a bar, even
if they could not have connected themselves
in interest with it ; still more, when, as in this
case, they do connect themselves with it, and
claim under it part of the land which it
covers. It is true that it did not specify the
premises in question, but the general clause,
" all other the lands, &c., within the Province
of New York," was amply sufficient to pass to
*the mortgagee all the lands not dc- [*<>44
scribed in the deed, which at the time of its
execution belonged to the mortgagor. (Plowd.,
289 ; 4 Mod., 157 ; 2 Roll. Abr.. 49> 57 ; P.,
pi. 45.) Mrs. Waddell, the mortgagee, being
thus possessed of the legal and equitable estate
in the mortgaged premises, on the mortgage
becoming forfeited by non-payment, trans-
mitted her equitable interest to her children
by her will. She directed her outstanding
debts to be collected and distributed among
her five children, and by this assignment of
the debt the mortgage followed as an incident,
and vested in the devisees, in the same man-
ner, and in the like proportions, as the debt
which it was intended to secure. (3 Johns.
Cas., 822.)
But the legal estate under the mortgage
which is a devisable interest (Pow. Mortg.,
438) passed by the general words in the will,
whereby the testatrix devises all the rest of
her estate, whatsoever and wheresoever, to her
children. That this was the intent of the
testatrix, was apparent from her declaration
in the preamble of the will, that she disposed
of the whole of her estate, real and personal,
no part of which could she have meant should
go to the heir at law, with whom she was at
variance ; and the expressions which she has
used are competent to effectuate that purpose ;
the debt was given to her children, and certain-
ly, the testatatrix must have intended that the
security should follow it. General words in
a will, unless peculiarly or technically appli-
cable to real estate, are sufficient to pass mort-
gage lands (2 P. Wms., 198, 201 ; Co. Litt., bk.
3, note 96 ; Cur. Dig., tit. 38, ch. 10, sees. 118,
116, 117. 118; 2 Ch. Cas., 51 ; 3 Ves.. 348,
714), unless it be apparent, from the will itself,
that the intention of the testator was other-
wise ; and the authorities show that any estate
may pass under general words in a will. (Pow.
Mortg., 444. 692, 698 : 6 Cru. Dig., 281 ; 1 Atk.,
605, n. 8; T. R., 122; 5 Ves., 840; Ves.,
41 ; 1 Vern., 4.) If, however, the mortgage
lands did not pass by the will, they descended
to the heir at law, as trustee for the persons
entitled to the debt (Pow. Mortg., 688, 689).
who, as ee»tui qiu trust, had a beneficial in-
terest in the land, and cannot be turned out
of possesion by the title of their trustee (Burr.,
1898: Cowp.,"46: Doug.. 721. 777; 1 T. R.,
787, 758), and it is now admitted, on the other
side, to be a valid subsisting mortgage.
The estate, then, both equitable and legal,
in the premises, having passed by the will to
the children of the testatrix, Henry Waddell,
one of the executors, in conformity to the
authority given them bv the will, conveyed
these premises to John Taylor, who was then
in possession, under the deed from the sheriff
of Ulster. Taylor thus became, at least, ben-
eficially interested — the act of one executor, in
relation to personal property being binding
727
544
COTJHT OF ERRORS, STATE OF NEW YORK.
1815-
upon all (Toll. L. of Ev. , 360). and the assent
of the other to be presumed, it being in uni-
son with his duty — and might have used the
545*] name *of the heir at law to bring an
action of ejectment; or, by an application to
chancery, have compelled a conveyance to
himself ; and he would be the person account-
able for the rents and profits in chancery. The
deed from Henry Waddell, being a general
conveyance of all his interest, conveyed his
right, as executor, although he did not execute
it in that capacity. (Ld. Raym., 1306.) But,
at all events, Taylor, exclusive of the right of
his wife, held the rights of three of the chil-
dren of the mortgagee, and so possessed a
legal estate under which the defendants can
protect themselves in this action ; for the legal
estate must prevail at law (Doug., 722, 777 ; 1
T. R., 735 ; 1 T. R., 684 ; 7 T. R., 46, 47 ; 8
T. R., 122 ; 5 East, 138 ; 2 Johns., 84, 226 ; 3
Johns., 423; 8 Johns., 488), and may be set
up by the tenant as a bar to an action by the
cestui qne trust, or person having the equitable
title. This doctrine is not shaken by the cases
of Hitchcock v. Harrington, 6 Johns., 290, and
Cottins v. Torry, 7 Johns., 278 ; for in neither
of those cases was the mortgage produced by
the defendant, a subsisting incumbrance, and
the court has never said that even a stranger
might not avail himself of an unsatisfied mort-
gage. The entry of Taylor was not an ouster
of the heir at law, and after this lapse of
time, a conveyance from the heir to the party
in possession ought to be presumed. (1
Caines, 90.)
It is not competent for the plaintiffs, who,
in this respect, are strangers, to raise the ques-
tion to whom the legal estate passed, whether
to the heir, the executor or the devisees. It is
perfectly immaterial to them who is entitled to
the possession. Whoever may be in posses-
sion will be held, by the Court of Chancery, a
trustee for the mortgagor, and so accountable
for the rents and profits ; that court, on a bill
to redeem, would not require the executor or
heir at law to account. If, then, the Court of
Chancery, as certainly it would, would make
the person in possession account for the rents
and profits, where was the propriety of insti-
tuting this suit ? The fact of attornment can
make no difference ; it is immaterial to the
plaintiff whether it was made to Taylor or to
the heir at law ; in neither case can his inter-
est be affected ; the party in possession was
still a trustee, and the plaintiff's lessors ought
to have vindicated their rights by a bill to
redeem.
But if the plaintiff is authorized to raise the
question of attornment, we deny that it was
void, and contend that it came within the pro-
viso of the Act which saves an attornment
" made with the privity and consent of the
546*] landlord or lessor, or to any *mortga-
gee after the mortgage is become forfeited."
(Sess. 36, ch. 63, sec. 2 ; 8 R. L., 443.) Taylor
had a right, at least, in part of the land, and,
as tenant in common, he held for all the dev-
isees. He had an equitable interest in the
mortgage debt, which alone was sufficient to
enable him to accept an attornment. An at-
tornment to a cestui que use is valid. (Co.
Litt., 310 a.) And further, as Russell took the
land from Miller, as his tenant, and Miller
728
transferred the possession to Taylor, Taylor
had a legal possession. After the lapse of
twenty-three years, the assent of the landlord
to the tenant, to make attornment, and of the
heir at law to Taylor, to receive it, is to be
presumed.
Though it is not necessary to agitate the
question of adverse possession, it may be con-
fidently asserted that the right of entry of the
plaintiff's lessors is barred by the Statute of
Limitations. Taylor entered under a claim of
title — a claim of title consisting of two
branches ; one good, that is, the mortgage ;
the other bad, the deed from the sheriff of
Ulster ; but, however bad the latter may be, it
is sufficient for the present purpose ; it deter-
mines the nature and character of his posses-
sion, and shows it to have been hostile to the
rights of the lessors of the plaintiff. The at-
tornment to Taylor was available for the same
object ; that attornment, if fraudulent and
void, as an attornment, yet decisively marks
the intent of Taylor to hold the land in oppo-
sition to the former proprietor.
Nor are the excuses which have been offered
on the other side for their neglect in entering,
sufficient. Taylor entered in 1789, under claim
of title, during the life of Mrs. Alexander, and
the Statute began to run from that time, with-
out regard to the disability of Mrs. Neilson :
she must be concluded by the neglect of the
particular tenant. The cases in which the re-
versioner, or remainderman, cannot be affected
by the laches of the tenant for life, and where
the tenant for life has no power to alienate or
encumber. Here Mrs. Alexander had author-
ity to sell, or devise, the land in fee. Such,
sale or devise would have been binding on the
remainderman. If the remainderman, or re-
versioner. be not bound by the acts, he is not
concluded by the laches of tenant for life ; but
where the acts of the particular tenant are ob-
ligatory on him, he must, also, be barred by
his laches. Further, Mrs. Neilson has no other
title than a cestui que trust, under the will of
Mrs. Alexander, and her estate, being a con-
tinuation of that of her testatrix, can *be f*547
in no better plight then it was when in the
hands of the person from whom she received
it ; she takes nothing under the will of Lord
Stirling, for the limitation to her is void, as
being repugnant to the antecedent devise. (10
Johns., 19.) The possession of Nathan Miller,
which was merely found by the jury to have
existed at the time of the death of Lord Stir-
ling, is altogether inoperative (Gilb. Tenures,
90); he was a mere tenant at will ; a lease by
the mortgagor, after a forfeiture of the mort-
§age, is a nullity (Doug., 21 ; Pow. Mortg.,
26, 227 ; Cru. Dig., tit. 15, ch. 2, sec. 5), and
the lease from Miller to Russel could not sus-
pend the right of entry.
Mr. Henry, in reply, said that the points
arising in this case were merely questions of
law, and if John Taylor had no right of entry,
either under the sheriff's deed, or the will of
Ann Waddell, the plaintiff had pursued the
proper course in bringing an action of eject-
ment.
The defendants have, in fact, set up a title
under the sheriff's deed ; else why did they pro-
duce, at the trial, the documents in relation to
the sale under the execution ? This court,
JOHNS. REP., 13.
1816
JACKSON, EX DEM., v. DE LANCEY.
547
therefore, must pass upon that title, which ]
was void, as well because there was no sufli-
cii-nt revival of the judgment, as because the |
premises in question were not described in the j
deed ; they were not known as being intended
to pass by the sale, and, consequently, could j
not have entered into the contemplation of ;
purchasers in calculating the price. Taylor,
then, having no right of entry under the j
sheriff's deed, if he can show no other title,
the attornment to him must be void. An at-
tornment to any other than the legal owner
is void.
Having disposed of this question, he pro- >
ceeded to inquire if Taylor's entry was pro- j
tected by the will. This, he said, was the :
turning point of the case ; and if Taylor had a l:
right of entry at law under the will, the plaint- :
iff must fail. To understand this part of the !
subject, it became necessary to consider the |
nature of the respective interests of mortgagor
and mortgagee.
The mortgagor, even after forfeiture, until
foreclosure, or entry by the mortgagee, is, to '
all intents, the owner, and in the seisin of the
liiii-1 (2 Johns., 75), and may take the rents
and profits without accounting to the mort-
gagee; his widow is entitled to dower out of
it (7 Johns, 278); he may grant it, devise it, j
vote upon it: and an outstanding mortgage, !
not foreclosed, is not a breach of the covenant
of seisin in a deed. (7 Johns., 376. 380.) But the
interest of the mortgagee is merely a personal
chattel (Row. Mortg., 683; Free. Ch., 11; 1 P.
Wins.. 295) which cannot, before foreclosure,
«">48*] be sold *by his creditor under an execu-
tion (4 Johns., 41); he cannot encumber the
equity of redemption by a lease for the shortest
term, even after forfeiture; if he takes possess-
ion of the land, he becomes a trustee to the
mortgagor, and must account to him for the
rents and profits; and after his death, his estate
goes not to his heir, but to his personal represen-
tatives. (Pow. Mortg., 689,690; 2 Vern., 193.)
From a review of the cases in which the
question has been discussed, how far general
words in the will of a mortgagee may include
a mortgage, the following rule may be laid
down as the result: "that no general words
applicable to the realty, will pass a mortgage
interest (which has been shown to be merely a
chattel), where the equity of redemption has
not been foreclosed or released, or the mort-
gagor has not procured the possession." (1
Vern., 4, n.) There are no expressions in this
will that can take the case out of the rule
which is here stated. The testatrix directs her
executors to sell all her estate, and distribute
the proceeds among her five children, who are
to be tenants in common in fee, of the realty,
until such sale and distribution. These are
the only words, if any, that can have effect,
and surely they do not reach the mortgage.
The words " whatsoever and wheresoever"
only apply to the power of the executors to
sell, and had the subsequent clause been omitted
all the lands of the testatrix would in the mean-
time have gone to the heir at law. The power
to the executors to sell could not apply to the
mortgage lands, until after foreclosure; their
authority only extended to such lands as the
testatrix might have sold and conveyed in fee.
The case of HutcJunton v. Savage, Ld. Kay in., 1
JOHNS. REP.. 13.
1306, which has been cited on the other side to
support the deed from Henry Waddell to Tay-
lor, us a grant of his interest as executor, has
no application; indeed, it makes against them;
for it shows that a general grant will not pass
an interest which the grantor possesses in a rep-
resentative capacity, unless he have no interest
of his own upon which it can operate. Since,
then, the legal right to the premises did not
pass to the devisees under the will, it must
have vested either in the heir at law or the ex-
ecutors, and the defendants are now seeking to
connect themselves with the legal estate, in
order, unjustly, to oust the heir of his rights —
an object which no court will sanction.
When the attornment was first made to Tay-
lor, his interest, if any, extended but to two
fifths of the lands, so that there is no room for
presuming the assent either of the executors or
the *beir. But their assent is not found, [*54i>
and therefore cannot be presumed on a special
verdict. (Bac. Abr., Verdict, R.)
Since, then, Taylor had no right of entry un-
der the will of Mrs. Waddell, he cannot con-
nect himself with the mortgage ; he is a mere
stranger, and a stranger cannot set up an out-
standing mortgage in an action of ejectment
by the mortgagor. (6 Johns., 294; 7 Johns.,
282.) No person can avail himself of a mort-
gage but the mortgagee, and those who stand
in his place. The defendant, Russell, entered
as lessee under a title derived from Lord Stirl-
ing, and he cannot be allowed to contest the
right which he has once recognized. (1 Caines,
444; 2 Caines, 215; 3 Johns. , 223, 499 ; 6
Johns., 35.)
The possession acquired by Taylor, being
under a fraudulent attornment, is not adverse
to the plaintiff's lessors ; but, admitting that
it were, still, as Mrs. Alexander did not die
until 1805, and Mrs. Neilson was then a feme
covert, the Statute has not yet begun to operate
upon her rights.
THE CHANCELLOR. The premises in ques-
tion were originally owned by Lord Stirling,
and the lessors of the plaintiff claim title un-
der him. The defendants set up title under
a mortgage which Lord Stirling executed to
Ann Waddell, in 1771. A part of the debt,
secured by the mortgage, was prosecuted at
law. to judgment and execution, and John
Taylor, under whom the defendants held,
took, as purchaser, a sheriff's deed of the
premises under the execution ; and he was,
also at the same time, entitled, under the will
of Ann Waddell, to two fifths of her estate.
If Taylor acquired a title under the sheriff's
deed, of was entitled to the land under the will,
the lessors of the plaintiff cannot recover.
There is nothing in the case to warrant an in-
ference that the mortgage has been satisfied or
discharged ; and in respect to the questions
arising under a special verdict, it is to be con-
sidered as a subsisting incumbrauce.
I am induced to think that «.he title set up by
the defendants under the sheriff's deed cannot
avail them. Two objections are made to that
title: 1. That the scire ftteuu reviving the
judgment was not duly directed and served ;
and, 2. That the premises were not duly sold
by the sheriff. Of these objections one ap-
pears to be solid and the other not.
549
COURT OF ERRORS, STATE OF NEW YORK.
1816
1. The seire facias was directed to the heirs
of Lord Stirling, and served on them ; but that
55O*] service was of no use, for they *took
nothing by descent. Lady Stirling was the
devisee of the real estate ; and she was, conse-
quently, the tenant of the freehold, and ought
to have been the party to the writ. It was
the same thing, as to her rights, as if ex-
ecution had issued and the lands been sold
on the dormant judgment against Lord Stir-
ling, without any revival by «cire facias. Still,
I take the law to be that even the omission
altogether of the scire facias will not, as of
course, render void a sale under execution.
An execution issued on a judgment after a
year and a day without revival, has been
held to be voidable only, and a justification
to the party under it, until set aside. (3 Caines,
270 ; 8 Johns., 365.) The scire facias is intend-
ed as notice to a party to show cause why exe-
cution should not issue, and to give him an
opportunity to plead payment, or other dis-
charge ; and if it be omitted in a case requiring
it, he would, no doubt, be entitled to relief, on
proper application. But in this case the exe-
cution has been permitted to stand to this day
without being regularly questioned by Lady
Stirling, or her representatives. She lived
seventeen years after the execution had been
thus irregularly issued; and it cannot but be
presumed that the service of the scire facias on
her daughters came seasonably to her knowl-
edge; and even ten years have elapsed since
her death, and no attempt appears to have been
made by her heirs or devisees to set it aside.
I presume that the Supreme Court would not
now sustain a motion to set aside the execu-
tion for irregularity, after so great a lapse of
time. That court has once said (Thompson v.
Skinner, 7 Johns., 556) that, after the lapse
of twenty years no judicial proceeding what-
ever ought to be set aside for irregularity;
and it has been denied in other courts (2 Bay,
338), even after twelve years. The objection
is infinitely stronger when the attempt is made
to question the regularity of the execution,
and to set aside the title under it, in this
collateral action. The regularity of the re-
vival of the judgment by the sci. fa. was not
the point in issue in this cause. It was held
in the Supreme Court of Pennsylvania, in
Heisterv. Partner, 2Binney, 40. that a judgment
revived by- sci. fa. after a year and a day, upon
one nihil only, which is the same as no. sum-
mons, may be set aside for irregularity, or re-
versed on error, but that the irregularity can-
not be noticed, collaterally, in another suit;
and that, even if the judgment should, for that
cause, be reversed or set aside, a purchaser at a
551*] sheriff's sale would hold the land. *A
similar doctrine was laid down by Lord Redes-
dale, in Bennetv. Hamill, 2 Sch. & Lef., 566,
where it was held that a purchaser under a
decree should not be affected by error in the
decree, in its not having given a day to an
infant defendant to show cause.
This doctrine appears to me to be very reason-
able, and conducive to the public good. It is
intended to impose upon parties the necessity
of looking into mistakes in proceedings before
they become stale and forgotten; and it tends
to quiet purchasers, by giving security to judi-
cial titles. The first objection, therefore, to
730
Taylor's title under the execution, from the
want of a regular revival of the judgment by
scire facias, falls to the ground.
2. The next objection is, that the premises
did not pass by the sheriff 's deed; and here I
think the objection is well taken.
The sheriff's deed contains a'l the evidence
we have of the sale; and it recites that, by
virtue of the execution, the sheriff seized the
tracts and parcels of lands therein mentioned
and described, and that he exposed the same
separately to sale, and sold each of them to
John Taylor, for £50, making, in the whole,
£100. ' It then states that, by virtue of the exe-
cution, and in consideration of the said £100,
he conveyed the said two tracts of land, by
metes and bounds, to John Taylor. The deed
then adds, by a general clause, these words:
"and also all other the lands, tenements, and
hereditaments, whereof the said William, Earl
of Stirling, was seised within the County of
Ulster." It was under this general clause that
the premises were intended to be conveyed,
whereas it would appear from the deed that
the levy, and the exposure to sale, and the price
bid, applied only to the pieces or parcels of
land which were therein mentioned and de-
scribe'd. It appears to me to be altogether in-
admissible, that the property of a defendant
should be swept away on execution, in this
loose, undefined manner. It would operate
as a great oppression on the debtor, and lead
to the most odious and fradulent speculations.
No person attending a sheriff's sale can know
what price to bid or how to regulate his judg-
ment, if there be no specific or certain designa-
tion of the property. In this case, the price was
given for the land described, and not for lands
which, we are to presume, were then wholly and
equally unknown to the sheriff and the pur-
chaser. It was the same thing to the purchaser
as if no such land existed. *To tolerate [*552
such judicial sales would be a mockery of jus-
tice. It ought to be received as a sound and set-
tled principle, that the sheriff cannot sell any
land on execution but such as the creditor can
enable him to describe with reasonable certain-
ty; so that the people whom the law invites to
such auctions, may be able to know where and
what is the property they are about to purchase.
Perhaps the case may be different if the de-
scription in the mortgage be general, and the
mortgagee sells under a power, and the mort-
gagor will not come forward at the sale and
point out and identify the lands. The sale, in
such a case, depends upon the contract of the
parties; but sales by process of law are under
the protection of rules established for the com-
mon safety; and I see no possible ground to
hesitate concerning the policy or the justice of
the rule in this case. The title, therefore, set
up by the defendants, under the sheriff's deed,
totally fails.
3. There was another ground of defense
mentioned and discussed upon the argument ;
and that was the existence of an adverse pos-
session of twenty years, sufficient to toll the
plaintiff's entry. From the time that Miller
and the other tenants surrendered their pos-
sessions to Taylor to the time of bringing the
suit, above twenty years had elapsed, and if
the Statute of Limitations had begun to run
from the time of that surrender, the lessors of
JOHNS. REP., 13.
1*16
JACKSON, EX DEM., v. DE LANCKT.
552
the plaintiff would undoubtedly have been
barred. Hut it did not begin to run, for rea-
sons which I shall presently mention. It has
been urged that there was a suspension of the
Statute by reason of coverture, rights in re-
mainder, «fcc. This, however, is a mistake.
There was no disability on the part of Lady
Stirling, and she owned the whole estate, in
fee, under her husband's will, at the time of
Taylor's entry. The devise to her was of "all
the real and personal estate, whatsoever, &c. ;"
the word "estate" here carried a fee, and the
further provision in the will, that if she died
" without giving, devising, selling, or assign-
ing it, <fec. ," the estate should go to his daughter
Catharine Duer, was not a good limitation by
way of executory devise, as such a limitation
was repugnant to the power to sell, and conse-
quently, void. This was the decision of the
{supreme Court in Jncknon v. Bull, 10 Johns.,
19, and nothing has been urged to show why
that decision is not to be regarded as correct.
Lady Stirling was then the owner of the equity
of redemption, and Miller was her tenant, at
the time of the surrender of the possession to
5o3*J Taylor. *But the reason why the
Statute of Limitations did not then begin to
run against her, is this, that the surrender was
not, of itself, and without reference to the title
of Taylor, a disseisin or ouster sufficient to set
the Statute in motion. There is no fact found
by the special verdict amounting to an ouster,
unless it be what is termed in the case the at-
tornment of the tenants, in acknowledging to
hold, or accepting leases, under Taylor, histead
of Lady Stirling. But unless Taylor was law-
fully entitled to the possession, thisattornment
could not, in any way, prejudice the rights of
Lady Stirling, and it was of itself null and
void. The Statute on {his subject declares
that no attornment of a tenant to a stranger
shall be construed in anywise to have changed,
altered, or affected the possession of the land-
lord, except the same be made with the con-
sent of the landlord, or in pursuance of a judg-
ment, or made to a mortgage. «fcc. This brings
us to the last and main question in the case,
and that is, can Taylor's entry be protected
under the mortgage from Lord Stirling to Mrs.
Waddell. Every other point of defense hav-
ing failed, the whole cause turns upon the
solution of this interesting question.
The will of Mrs. Waddell sets out with a
declaration that she disposes of her whole
estate, real and personal, and, after some
specific legacies, she directs her executors to
collect all her outstanding debts, and that all
the rest of her estate in Ilardenberg's patent,
and elsewhere, whatsoever, and wheresoever,
be turned by them into money, and be equally
distributed among her five children, share and
share alike, " who are to be tenants in com-
mon in fee of the realty, until such sale and
distribution be made." It is very clear to me,
from this will, that Mrs. Waddell did not in-
tend to die intestate, as to any part of her
estate. She did not intend thai her eldest son,
William (and whom she, evidently, in the same
will, rebukes for his disobedience), should
inherit any part of her estate, whatsoever, as
heir at law, in preference to or in exclusion of
her other children. She meant that the mort-
gage debt of Lord Stirling should go as the
JOHNS. REP., 18.
I rest of her estate went. She probably knew
j nothing of the distinction between a benefi-
; cial interest in the mortgage debt, and a dry,
' technical, legal estate in the mortgaged prem-
| ises. If the distinction was known to her,
I she never intended that her eldest son should
i avail himself of it. If the mortgage was per-
sonal estate, she meant that the executors
should take and distribute it ; and if it was
i real estate, capable of enjoyment, and of being
I devised as such, she meant *it to go f*AJMk
1 as part of the realty to her five children
i equally, as tenants in common. There is no
1 doubt in my mind that this is the fair and ob-
vious intention of the will ; for the language
is plain and unambiguous, and there is no
provision inconsistent with this intention.
We are, however, here met with a difficulty
which is supposed to be insuperable, and on
which the main stress of the argument on the
part of the plaintiff was laid. It is admitted
that the words of the will are sufficient to pass
to the five children all the real estate which
Mrs. Waddell held in her own right ; but it is
said to be a settled rule of law, in the con-
struction of wills, that general words, such as
lands, tenamentsand hereditaments, the realty,
or olher words particularly appropriated to
real estate, will not carry an interest in land,
which the testator holds as mortgagee or
trustee ; that unless the will specially refers to
such an interest, it will not pass by the usual
devise of the real estate ; and that though,
strictly and technically speaking, the mort-
gagee has a legal estate in fee in the mortgaged
premises, yet that estate must descend as un-
devised property to the heir at law, rather
than pass with the rest of the estate by such
general words.
If this be the rule of law, whatever we may
think of it, we are bound to obey it. On this
point I fully agree with the learned counsel
for the plaintiff. No man feels more strongly
than I do the duty incumbent on every mem-
ber of this court to declare the law, truly and
strictly, in all our judicial decisions. We sit
here, not as a branch of the Legislature, but
as a court of justice, and we must not. in any
case, set up the authority of our own " right
reason" as paramount to the law which we are
sworn to administer. But it is unnecessary to
press* these reflections. I have satisfied my-
self, and. perhaps, I may be able- to satisfy
others, that the rule of law is not as was stated
on the part of the plaintiff ; but the rule is,
that the same words in a will which will carry
any other estate will carry also the legal estate
held in trust under a mortgage.
This latter is, upon the whole, the most
convenient rule, though I admit it cannot be
very material, as it respects the interest of par-
ties, which way the rule is settled ; for, who-
ever takes a trust estate, whether it be the heir
by descent, or the devisee by will, he must
take it as trustee merely, and is equally respon-
sible in the one capacity as the other. But, if
the public interest is not much concerned in
settling the rule, there is the *less rea- [*55&
son for refusing to construe the words of a
will according to their ordinary meaning.
Lord Rosslyn has said (5 Ves., 889) that it
would be more convenient that trust estates
should pass by general words, because it is
781
COURT OP ERRORS, STATE OF NEW YORK.
1816
more convenient for those who are concerned
in the trust to find the devisee than the heir ;
and if this be the case in England, the con-
venience is vastly increased with us ; because,
in England, the eldest male is alone the heir at
law, but with us all the children, male and
female, inherit together. And if the benefi-
cial interest in the mortgage debt is given to
the devisee, the inducement is still stronger
to give him the legal estate ; for why should
the legal and the beneficial interest in the
mortgage premises be, unnecessarily, sepa-
rated ? What possible use would there be in
allowing the legal estate in the mortgage to de-
scend in this case to William Waddell, the
heir at law, when he would, as heir, be only a
mere naked trustee for those who were entitled
to the beneficial interest in the mortgage debt
under the will ? It would be far better, on
the score of convenience and simplicity, to
let the legal and equitable interests under the
mortgage go together, as they in fact existed
together in the person of Mrs. Waddell at the
time of her death.
The rule, as now settled, is this, that trust
estates will pass by the usual general words
in a will passing other estates, unless it is to
be collected from the expressions in the will,
or the purposes and objects of the testator,
that it was his intention they should not pass.
This was the rule as declared by Lord Ch.
Eldon, in Braybroke v. Inskip, 8 Ves., 407,
after much examination and reflection. In
that case A held land in trust, and by will de-
vised all his real and personal estates whatso-
ever, &c., to his wife, and it was held by the
Master of the Rolls, and afterwards by the
Lord Chancellor, that the legal estate in the
trustee passed by this general devise. The
Lord Chancellor said this was a question of
intention of the testator, and the weight of
convenience was in favor of the rule. The
will was large enough, and there were no ex-
pressions in it authorizing a narrower con-
struction, and no purpose inconsistent with an
intention to pass the trust estate to the devisee.
He said there was no case establishing a dif-
ferent rule ; and that if there was any such
case, he would abide by it. The rule, accord-
ing to the old cases, unquestionably was, that
a trust estate would pass by general words.
556*] *This is the final decision in the
English courts, on the very point which has been
raised and discussed in this place ; and after
the decided opinion of so laborious and able
a lawyer as Lord Eldon, we may well doubt
whether the learned counsel for the plaintiffs
have not been mistaken in their apprehension
of the rule of law. It is admitted on all hands,
that a mortgagee holds the mortgaged lands in
trust ; and when it is said that a devise of real
property will, ordinarily, pass a trust estate,
all the cases consider it as applying as well to
a mortgagee as to any other trustee ; and, in-
deed, it applies the stronger to that case when
we find that the devise does actually pass the
beneficial interest in the mortgage debt.
The case of Roe, ex dem. Reade, v. Reade, 8
T. R., 118, in the K. B., declares the same
rule. A, having estates, of his own, and hav-
ing another estate which he held as a mere
naked trustee, without any interest, devised
all his estate, whatsoever and wheresoever,
732
after payment of debts and legacies. The
question was here between the heir and dev-
isee, which of them took the trust estate, and
the K. B. put it entirely on the ground of in-
tention. The general words seem, both by
the counsel and the court, to have been ad-
mitted to be sufficient to pass the trust estate ;
but as the testator had here charged all his
lands 'devised with the payment of debts and
legacies, it was decisive evidence that he did
not intend to pass the trust estate by that will,
because he. had no right to charge it with such
payments ; and as the intention in this case
was manifest, for that reason, and that reason
only, the trust estate was held not to pass. So,
in another c&se(Ex-parte Morgan, 10 Ves., 101),
Lord Eldon held that where a mortgagee had
devised all his real estate, charged with an an-
nuity, it could not be considered as his inten-
tion to pass the mortgage estate, because that
estate was not his own. He only held it in
trust for a special purpose, and he had no
right to charge it with an annuity.
Here, then, we have the decisions of the
courts of law and equity in England, uniting
in the rule as I have stated it ; and if we go
back, as Lord Eldon did, to the old cases prior
to the Revolution, and which are to be received
strictly as authority, we shall find them con-
taining and expounding the same doctrine.
I begin with the case of Winn v. Littleton, 1
Vern.. 3 ; 2 Ch. Cas., 51, decided as early a&
1681, by Lord Nottingham, whom Sir Wm.
Blackstone always mentions with the rever-
ence *due to the father of the English [*557
system of equity jurisprudence. The testator,
in that case, was seised of divers lands in his
own right, and divers lands as mortgagee, and
he devised all those lands he held in his own
right by specific designation, and adds, or
elsewhere within the Kingdom of Wales, and
he charged his lands devised with a rent charge
for life. The question was, whether the lands
held in mortgage passed by the will, and it
was held that they did not, because it appeared
not to be the testator's intention, as he made
special mention of his own lands, and not of
the other. But another and a stronger reason
was assigned by the court ; and this was, that
the testator had charged the lands that passed
by the devise with a rent charge for life, and
he could not be thought so improvident as to
grant a rent for so great an estate, and of so
long a continuance as for life, out of mort-
gage lands which were every day redeemable.
This decision places the question, whether a
trust estate will pass by general, words, on the
same ground that it was placed by Lord Eldon,
one hundred and twenty years afterwards. It
is a question altogether of intention, and to be
gathered from the scope and design of the
whole will. If the intention be not otherwise
pretty clearly expressed, and it be not incon-
sistent with the nature of the other provisions
in the will, the understanding is that the trust
estate will pass.
The case of Marlow v. Smith was the next
decision on the point. (2 P. Wms., 198.) It
was decided in the time of Lord Macclesfield,
in 1723. The testator devised part of his es-
tate to-A, and all the rest and residue of his
estate to B. It was held by the Master of the
Rolls, that the land which he held as a bare
JOHNS. REP.. 13.
1816
JACKSON, EX DEM., v. DE LANCET.
trustee passed by these latter words, for the
legal estate was his estate in the eye of the
law ; and there was, it was said, no inconven-
ience in this construction, for the devisee
would be equally a trustee. So again, in the
modern case, Ex-parte Serginon, 4 Ves.. 147,
the Master of the Rolls, afterwards Lord Al-
vanley, and Lord Rosslyn. were both inclined
to the opinion that a mortgage estate would
pass by general words in a will, such as all
the rest, residue and remainder of my estate,
real and personal, of what nature or kind so-
ever.
In addition to this weight of authority, I
might add the opinions of Mr. Butler, in one
of his notes to Coke on Littleton (Co. Li it..
203 b. n. 96), and of Mr. Sanders, in his note
558*] to *1 Atk.. 605. and both these writers
bestow some pains on the question, and each
cites a case, to the same effect, and not else-
where reported.
Then, what are the authorities on which the
counsel for the plaintiff have relied ? We may
well ask this question after the cases which
have been mentioned, and after Lord Eldon
has said that he knew of no case against the
general rule which has been stated. They
rely, in the first place, on a loose observation
in the case of Strode y. Russell, in 1708 (2
Vern., 621). in which it is staled to have been
-agreed by the Chancellor, assisted by the
Master of the Rolls and two judges, that
mortgages in fee, though forfeited when the
will was made, did not pass by the general
words. There is nothing in the case to the
point but this ' single observation ; and Mr.
Sanders, in the note to which I have alluded,
says that this case affords no argument on
either side, as the decree takes no notice of
any mortgages, except those whereof the tes-
tator had, after the making of the will, pur-
chased the equity. The next authority, more
confidently relied on, is an observation of
Lord Hardwicke, in Canborne v. Scarfe, 1 Atk.,
605, in which he says that by a devise of all
lands, tenements and hereditaments, a mort-
gage in fee will not pass, unless the equity of
redemption be foreclosed. This does not ap-
pear to have been the point in the cause, and
it is rather to be considered as an extrajudicial
dictum; and Lord Eldon declared (8 Ves..
436, 437) that he did not believe Lord H. ever
said so. And when this dictum was cited in
another case (4 Ves.. 149), the then Solicitor-
General. Sir John Mitford, told the court that
Lord Northington and Lord Thurlow had
overruled that opinion.
Another case relied on by the plaintiff's
•counsel, is that of The Duke of Leed» v. Afun-
day. 8 Ves., 348, in which the Master of the
Rolls (Lord Alvanley) is made to concur in
opinion with Lord Hurdwicke. We find, how-
ever, that he afterwards declared (5 Ves., 841,
note) that the opinion imputed to him in tins
case was not correct ; and that he did not
mean to decide the question, but made a con-
ditional decree, on account of his doubts. The
last ca*e mentioned is that of The Attorney-
General v. BuUer, 5 Ves., 339. in which Lord
Rosslyn seems to intimate that a trust estate
will not pass by general words in a will ; and
yet, strange as it may appear, he afterwards
said (8 Ves., 487) that' he was overborne in that i
JOHNS. RBP.. 13.
case by some observations *of the At- [*55t>
torney-Oeneral, and that his opinion was
rather with Lord Eldon.
On reading these latter cases, we are almost
involuntarily led to pause, and wonder at the
extraordinary and very unaccountable per:
plc'xitv, doubt and alteration of opinion which
they discover on this point. The learned men
referred to in these cases, do not appear to
me — with all proper humility be it spoken —
to have examined this question with the dili-
gence or the talent worthy of the eminent rep-
utation they bear. If. indeed, they did, the
reports have done them great injustice. Lord
Eldon had studied the question with profound
attention, and he showed it to be perfectly
clear and settled ; but in the other modern
chancery cases on this point, we find nothing
but what tends to expose the inefficacy of legal
learning, and the weakness of human reason.
I have thus finished a review of all the ma-
terial cases on the subject ; and if the court
have had the patience to attend to this dry de-
tail, I presume they must be satisfied that
there is no technical rule of law to withstand
the intention of the will. And when Mrs.
Waddell directed that all the rest of her estate
in Hardenbergh's patent, and elsewhere, what-
soever and wheresoever, should be turned
inlo money, and distributed among her five
children, who should be tenants in common,
in fee of the realty, until such sale and distri-
bution be made, she intended that her legal
and beneficial interest in the mortgage debt
and premises should pass with the rest of her
estate. It follows, then, of course, that John
Taylor was authorized to enter under the
mortgage, in right of his wife and of Mrs.
Miller, two of the daughters of Ann Waddell,
and that the notion of an illegal and fraudu-
lent attornment to Taylor is totally without
foundation. We may consider his possession
as the possession of all the claimants under the
will.
Even if the technical legal estate in the
mortgage had descended to the heir, he would
have oeen but a mere trustee for all the chil-
dren to whom the beneficial interest was de-
vised, and they would have been entitled to
use his name to recover the money, or to fore-
close the mortgage, or to gain possession.
This- was so declared by Sir John blrange.'in
the case of Attorney-General v. Meyrick, 2 Ves.,
44. And though it is not now necessary to
give any opinion on that point, I should in-
cline to think that, even in that case, the
children of Mrs. Waddel *could pro [*5«O
tect themselves in the entry and possession
under the mortgage.
But I need not pursue the subject farther.
I have examined the case on every point, and
am of opinion that the judgment of the Su-
preme Court ought to be affirmed.
This being the unanimous opinion of the
court, it was thereupon ordered and adjudged
that the judgment given in this cause be af-
firmed, and the record remitted, «&c. ; and
that the plaintiff's in error pay to the defend-
nn\> in error their costs, to be taxed, &c.
Per totam Ouriam. Judgment affirmed.
A motion was made, on the part of the
plaintiffs in error, for double costs.
» 738
560
COURT OP ERRORS, STATE OF NEW YORK.
1816
THE CHANCELLOR. The 14th section of
the Act Concerning Costs applies only where
the writ of error is sued out by the defend-
ant below. That section is a transcript of the
Statute of 13 Car. II. ; and such has always
been the construction of it. (Hullock on
Costs, 280, 281.) The decision of the Supreme
Court in Peters & Gedney v. Henry, 6 Johns..
278, is to this point. The 14th section gives
double costs for delay of execution, and that
is understood to apply only when the plaintiff
below recovers. The defendants are entitled
to single costs only, under the 12th section of
the Act.
Per tot. Cur. Single costs only awarded.
Sheriff's deed void for tndefiniteness. Distinguish-
ed—21 N. Y., 204 ; 44 Super., 92. Cited in— 5 Cow.,
484 , 11 Barb., 188 ; 15 Barb., 59 ; 23 Barb., 268 ; 5 How.
(U. S.), 272.
Device— Cotistructlon— Words of limitation— Valid-
ity. Cited in-22 Wend., 139 ; 1 Sand. Ch.. 277 ; 16 N.
Y., 93 ; 2 Lans., 275 : 4 Barb., 327, 614 ; 3 Leg. Obs.,
209; 5 How. (IT. S.), 289, 270.
Sheriff's sale— Irregularities— Bona flde purchaser
protected. Cited in— 1 Lans., 412 ; 19 Barb., 498 ; 39
Super., 537 ; 2 McLean, 65.
Also cited in— 15, Johns., 172; 16 Johns., 572; 27
Hun, 165 ; 2 Abb. Pr., 314 ; 3 Rob., 201 ; 5 Rob., 718 ;
33 Super., 97.
561*] *DAVID GELSTON AND PETER
A. SCHENCK, Plaintiffs in Error,
v. '
GOULD HOYT, Defendant in Error.
1. Practice — Demurrer in Supreme .Court —
Judgment by Default — Points Cannot be
Raised for the First Time in the Appellate
Court — Trespass — One Hairing Possession
May Maintain.
2. Evidence — Admission of Plaintiff's Counsel
of Lack of Malice, Bars Claim for Vindictive
Damages — Sentence of Restitution, Conclusive
that Seizure was Illegal — Justification.
3. Principal and Agent — Decree Against Princi-
pal Binds Agent.
4. Decrees — Bind what Parties.
5. Interest on Judgments.
6. Courts Cannot Recognize Independence of
Revolted Colonies.
Where the plaintiff in the Supreme Court demurs
to the defendant's pleas, who joins in demurrer,
and the cause being called on, the defendant's coun-
sel declines arguing the demurrer, and judgment is,
of course, given for the plaintiff, the defendant can-
not, on bringing a writ of error, object to the pro-
priety of the judgment which had thus passed
against him by default.
No point can be raised in a court of appellate ju-
risdiction which was not argued in the court below.
The actual and peaceable possession of a chattel, is
sufficient to maintain an action of trespass.
An admission of the counsel of the plaintiff on
the trial of an action of trespass, that the defend-
ant acted without malice, precludes the plaintiff
from claiming vindictive damages ; and therefore,
evidence on the part of the defendant, in the nature
of a justification of the act, is inadmissible by way
of mitigation of damages.
An officer of the revenue, seizing goods, as for-
feited, and causing them to be libeled and tried, in
an action of trespass by the owner, can only plead
a condemnation or an acquittal, with certificate of
probable cause.
The judgment or decree of a court of competent
jurisdiction binds only parties or privies.
Where a vessel is seized as forfeited by the sur-
veyor of a port, under orders from the Collector,
734 *
and is libeled in the District Court, the Surveyor
and Collector are privies, as it is to be presumed,
nothing appearing to the contrary, that the seizure
was made in consequence of information given by
them to the government; and they are bound by
the decree ot the District Court. But if they are
not informers, yet they are privies, by virtue of
their office and act of seizure.
A decree against the principal binds the agent,
who must look to the principal for an indemnity.
A sentence of restitution in the District Court of
the United States, of a vessel which had been seized
by revenue officers, is conclusive evidence, in an
action of trespass, brought by the owner against
the officers, that the seizure was illegal.
A decree, in proceedings in rem, of a court of
peculiar and exclusive jurisdiction, whether of con-
demnation or acquittal, is binding upon all persons.
It is not for courts of law to determine whether
a revolted colony has become an independent
state, but for the government alone, and until the
government solemnly recognize its existence as a
nation, courts are bound to consider the ancient
state of things as remaining.
The ports of the Island of St. Domingo, respect-
ively under the government of Petion and Christ-
ophe, are not independent states, within the mean-
ing of the Act of Congress of the 5th of June, 1794.
Where a writ of error is brought on a judgment
for the plaintiff in an action tor a tort, and the
judgment is affirmed, the defendant in error will
not be allowed interest on the judgment.
Citations— Dick., 287 ; 2 Sch. & Lef ., 712 ; 1 U. S.
Laws, 74 ; 4 U. S. Laws, 427. 390, sec. 89 ; 2 W. Bl.,
977 ; 2 BL, 1174 ; 7 T. R., 696 ; 12 Vin., 95, A, bk. 22, 1 ;
5 T. R.,255; Bull. N. P., 244, 245; Lane v. Degberg,
11 Wm. III. : 9 Yes , 347 ; 1 Edw. Ad., 1 ; 4 Cranch,
241.
IN ERROR, to the Supreme Court, on a bill
of exceptions, in which were set forth the
pleadings and demurrer, that judgment was
given for the plaintiff below upon the demur-
rer, and 'the proceedings at the trial, where a
verdict was found for the plaintiff for $107,-
369.43 damages. The proceedings of the
court below, after the trial, upon the bill of
exceptions, were not stated.
The declaration, which was in trespass, con-
tained five counts: 1. That the defendants
below, on the 10th of July, 1810. took and
carried away the goods and chattels of the
plaintiff, of the value of $200,000. 2. That
the defendants, on the same day, took and
carried away a vessel of the plaintiff called
the American Eagle, together with her tackle,
apparel, and furniture, 500 tons of stone bal-
last, 100 hogsheads of water, 130 barrels salted
provisions, 20 hogsheads of ship bread, of the
value of $200,000. 3. For carrying away the
vessel, &c., as in the last count, and damag-
ing, spoiling and converting and disposing
thereof to their own use. 4. For taking and
seizing a certain vessel of the plaintiff, of the
value of $200,000, in which the plaintiff in-
tended, and was about to carry and convey
certain goods and merchandises, for certain
freight and reward, to be paid to him, and
keeping and detaining the same for a long
space of time, and converting and disposing
thereof to their own use, whereby he was pre-
vented from conveying the *said goods, [*5<>2
and lost the profit which would have accrued
therefrom. 5. For seizing and taking posses-
sion of divers goods and chattels of the plaint-
iff, that is to say, a ship called the American
Eagle, together with, &c. (as in the second
count), and continuing in the possession of
the said goods and chattels, and taking and
carrying them 'away. The defendants below
pleaded the general issue, and two special pleas
in bar, alleging the goods, &c., mentioned in.
JOHNS. REP., 13.
1816
GELSTON v. HOYT.
the several counts of the declaration, to be the !
same, and justifying the trespass ; for which,
together with the proceedings on the trial in
the court below, see ante, pp. 141-144.
On the cause coming on to be argued in this
court, the reasons for the judgment of the ;
court below were assigned by Mr. Justice
SPENCKK. (See ante, pp. 150-156, 157.
Mr. II. Bleecker, for the plaintitTs in error. ;
In discussing this case, I shall consider, in the \
first place, the correctness of the judgment
given by the Supreme Court on the demurrer
to the second and third pleas of the defend-
ants below, and shall then proceed to the ex-
amination of the questions arising on the bill
of exceptions.
The Supreme Court erred in the judgment ,
which they gave on the demurrer to the sec-
ond plea. That plea is good: it states that the
vessel was to be employed in the service of I
Petion, one foreign power, against Christophe.
another foreign power, then at peace with the
United States ; and this was sufficient. It was '
unnecessary for us to allege that Christophe ;
and Petion were independent states. The Act '
of Congress (Act June 5th, 1794, sec. 3) speaks
merely of foreign princes and states ; and
whether one or both be independent or not, is
no ingredient of the offense. That Petion and
Christophe were foreign princes and states,
the plaintiff below admitted by his demurrer.
If he intended to avoid the consequences of
such admission, his proper course would have
been to have replied, denying that they were
foreign states recognized by this government,
which would have imposea upon us the neces-
sity of proving them such ; and we were not
bound to set forth the history of St. Domingo
in our plea. But, as the pleadings now stand,
our justification is sufficient, and we are enti-
tled to judgment upon this plea. It may be
said that it contains double matter, to wit : the
instructions of the President ; on that we do
not rely as a justification ; but if the plaintiff
f»ttU*l below *intended to except, on the
ground of duplicity, he should have demurred
specially. The third plea must, also, IK- good
upon this demurrer ; the same answer is given
to the objection of duplicity in this plea as in
the last. If the State or prince be imperfectly
described, it is a matter of form only, and the
plaintiff below should have demurred spe-
cially on that account. It is, at least, a good
title defectively set forth, and the pleading is
sufficient in substance ; the facts of it are con-
fessed by the demurrer. (2 H. Bl., 261; Tidd's
Pr . 647^-649; Com. Dig., Pleader. Q, 7.
Next, as to the bills of exceptions. The
plaintiff below did not show a sufficient posses-
sion of the vessel to enable him to maintain this
action : he was a mere bailee not answerable
to the owner, whoever he was (Bac. Abr.,
Trespass, C, 2), and the acquittal in the Dis-
trict Court which decided nothing as to title,
gave him no other or l>etter title than he had
before. The motion for a nonsuit, therefore,
ought not to have been overruled.
The evidence offered by the defendants be-
low ought to have been received, and the Su-
preme Court erred in deciding that all defense
was precluded by the decision of the District
Court.
A judgment or decree is binding only upon
JOHNS. HBP., 18.
parties or privies. The plaintiffs in error were
not parties to the proceedings in the District
Court ; for those proceedings were not carried
on in their names, nor were they interested
therein in any way ; hence the injustice of
their being precluded by a decision which they
had no opportunity to controvert. The pro-
ceedings in the District Court were instituted
against the vessel in the name and on the behalf
of the United States. The plaintiffs in error
were merely agents authorized by the govern-
ment to seize the vessel, and after seizure their
power and interest ceased and passed into the
hands of the district attorney, who was the
authorized agent to prosecute (3 L. U. S., 279;
1 L. U. S.. 74 ; IGrayd. Dig., 196, 251); and
ought they to be punished for the default of
the district attorney in not making out the for-
feiture ?
It will be said that this was a decree in rem,
and therefore binding upon all the world ; but
proceedings in rem can only have that effect
(if in any case) when they terminate in a con-
demnation : an acquittal of the property is not
conclusive. (Peake's Ev. , 29; Bull. A'. P., 245; 5
T. K, 855.) A decree of an ecclesiastical court
against a marriage is not ref j.udicata ; and
there every person who is interested can make
himself a party while the cause is pending and
before it is concluded. (2 Wils., 124; Harg.
Tracts, 470; 4 Co.. 29 a.) With us a decree in
rein is not invested with that binding efficacy
contended for on the other side ; the subject is
*always open to examination ; such [*5<S4
was the doctrine of this court when it decided
that the decree of a foreign prize court con-
demning a vessel as belligerent property, was
bulprima facie evidence of a breach of the war-
ranty of neutrality in an action between in-
surer and insured. (2 Johns. Cas., 451; S. C.,
2 Caines' Cas., 217.) This decision places us
upon open and elevated ground ; it relieves us
from the necessity of sheltering ourselves un-
der the distinction taken in the English books
between sentences of acquittal and condemna-
tion : it shows that no decree whatever can
operate upon the rights of strangers. And
why should the sentence of the District Court
be an exception to the general rule ? That
court is no more competent to decide on the
legality of a seizure than the Supreme Court.
A judgment in a criminal case is not evidence
in a civil action, because it is re* inter alias
acta. The judgments of foreign courts or of
the courts of other states, may be re-examined
in actions here, between the same parties ; and
the District Court, as regards us. is not a
domestic court, for it is the court of another
government. A decision of this court, or of
the Supreme Court, is not binding upon per-
sons not parties or privies to it ; it is not re*
judicata in an action between strangers (Peake's
Ev., 26 ; Gilb. Ev., 22 ; Bull. N. P., 232) ; and
he who cannot come in as a party to the pro-
ceedings, and defend, or enter an appeal from
the decision, is a stranger. (Ambl., 756; 1
State Trials. 217, 219; Ld. Thurlow's Argu-
ment, Runn. Eject.. 364). In an action by
an executrix, it was held that the defendant
was estopped by the probate from proving the
will forged ; and why ? Because he might
have appealed from the decision of the ordi-
nary. (.1 Lev., 285). The case of Seott v.
785
564
COURT OP ERRORS, STATE OP NEW YORK.
1816
Sherman (W. Bl.. 977). relied upon by the
court below, is inapplicable ; there a condem-
nation in the Exchequer was held conclusive ;
in our case there was an acquittal ; but it has
been sufficiently shown that, whether the
property were acquitted or condemned, the
sentence would be equally inconclusive, as
well because proceedings in rem have not, in
fact, the uncontrollable power attributed to
them, as because the plaintiffs in error cannot
be bound by proceedings to which they were
not parties ; in which they could not have in-
terposed nor asserted a claim, and from which
they could have prosecuted no appeal.
Next, we contend that the facts offered to
be proved by the defendant below, had they
been admitted, were sufficient to establish his
defense ; and in this point are involved the
real merits of the case.
Petion and Christophe were princes and
565*] states, within the *meaning and policy
of the Act of Congress, which was never in-
tended to be confirmed to legitimate princes.
They are princes and states de facto ; they and
their predecessors have existed as such ever
since the year 1791 ; they have asserted and
possessed all. th.e rights of sovereignty, and
have exercised without control, and at length
without opposition, the power of self-govern-
ment. The dominion of either of them is, in
the words of the definition which Vattel gives
of a! nation or state (B. 1, ch. 1, sec. 1), "a
body politic, or a society of men united together
to promote their mutual safety and advantage
by means of their union." Such a union, ac-
cording to that writer, constitutes a state. A
public authority, or, in other words, a sover-
eignty, subsists among them, "to order and
direct what ought to be done by each member
in relation to the end of the association ;" to
this sovereignty every member is subjected
" in everything that relates to the common
welfare. " The public authority or sovereignty
" especially belongs to the body politic or the
state " (Id. sec. 2) ; wherever that, authority is
found, there is a nation or state ; the two ideas
of sovereign power and national existence are
co-extensive and inseperable ; they are con-
vertible terms. Petion and Christophe, or the
governments of which they are respectively the
heads, exercise the sovereignty according to
their respective constitutions. How, then,
can it be said that these sovereignties are not
bodies politic or states ?
When the plaintiffs in error have shown
that Petion and Christophe, or the govern-
ments of which they are the heads, assuming
and exercising, as they do, all the rights of
sovereignty, are foreign princes and states,
they have made out a complete and perfect
justification, and bring themselves within the
letter of the Act of Congress. The same
question arises here as on the demurrer to our
second plea ; and if it were not necessary for
us, in pleading our justification, to allege that
they were independent, neither was it neces-
sary in making out our defense by evidence.
But we are not unwilling to meet the subject
in the point of view which is deemed by the
adverse party the most favorable to them-
selves.
A recognition by one state of the superior-
ity of another, does not destroy the independ-
ence of the former. One state may do hom-
age to another as its feudal superio'r, or may
pay tribute to a foreign power ; but the hom-
age or tribute merely diminishes its dignity,
and still suffers its independence to remain en-
tire. (B. 1, ch. 1, sees. 7, 8.) *But [*566
the governments of St. Domingo have not in
the slightest degree acknowledged themselves
to be dependent on the crown of France.
They have asserted and maintained their inde-
pendence ; and whatever claim of supremacy
the government of France may have made, it
has never been able, effectually, to enforce it,
and the revolted colonies have uniformly re-
sisted it. The mere circumstance of their re-
volting, and going to war with their former
sovereign, rendeis them an independent na-
tion. " A civil war," says Vattel (B. 3, ch. 18,
sec. 293), ' ' breaks the bands of society and gov-
ernment, or at least it suspends their force and
effect ; it produces in the nation two independ-
ent parties, considering each other as enemies,
and acknowledging no common judge ; there-
fore, of necessity, these two parties must, at
least for a time, be considered as forming two
separate bodies, two distinct people. Though
one of them may be in the wrong in breaking
the continuity of the state, to rise up against
lawful authority, they are not the less divided
in fact. Besides, who shall judge them? Who
shall pronounce on which side the right or the
wrong lies '( On earth they have no common
superior. Thus, they are in the case of two
nations, who, having a dispute which they
•cannot adjust, are compelled to decide it by
force of arms." The laws and usages of war,
as recognized by civilized nations, must be
practiced by them towards one another.
" When a nation becomes divided into two
parties," says the same author (Id., sec. 295),
"absolutely independent, and no longer ac-
knowledging a common superior, the state is
dissolved, and the war between the two par-
ties is the same, in every respect, as a public
war between two different nations." Speak
ing of the conduct which foreign nations are
to pursue, in regard to the contending parties,
Vattel (Id., sec., 296), observes : " It Ts not for
them to judge between contending citizens,
nor between the prince and his subjects ; to
them the two parties are equally foreigners,
equally independent of their authority." The
law of nations, then, evinced as it is by the
deliberate opinion of one of the most authori-
tative writers upon that branch of jurispru-
dence, has decided the question in our favor ;
and to that decision this court is bound to con-
form its judgment ; for "the law of nations
(wherever any question arises which is prop-
erly the object of its jurisdiction) is here
adopted in its full extent by the common law,
and is held to be a part of the law of the
land." (4 Bl. Com., 67.) Martens (L. of N.,
80, 81). speaks expressly to the same effect.
He puts this question : *What is the [*567
conduct to be observed by a foreign power
when a " province or territory, subjected to
another state, refuses obedience to it, and en-
deavors to render itself independent ?" His
answer is : "A foreign nation, not under any
obligation to interfere, does not appear to vio-
late its perfect obligations, nor to deviate from
the principles of neutrality, if (in adhering to
JOHNS. HEP., 13.
1816
GELSTON v. HOYT.
567
the possession without examininginto its legal- 1 C. 2; Distress. D, 6; 8 Co., 146; 2 Roll. Abr.,
ity) it treats as sovereign him who is actually I 561, 1, 10, 562, 1, 15, 20, 25; 8 Wils., 20; 1 T.
on the throne, and as an independent nation : R.^12.)
people who have declared, and still maintain
themselves independent."- If the govern-
ment of the United States has, in any man-
ner, or in any one instance, recognized the
The.se pleas, too, are substantially bad, in
presenting a fact which cannot be tried by a
jury, what is or is not a foreign state, is a
question of public law for the decision of the
pivcrnments of St. Domingo as foreign states, court, and to be determined by the solemn
It is sufficient for our defense. (Edw. Adm.,
1.) The record admitted such a recognition,
when the defendant in error demurred to a
plea justifying the seizure under the orders of
the government of the United States. The
giving such orders was an implied admission
by the Executive of that fact.
But if the evidence offered by us, at the
trial, was not a sufficient defense, still it was
admissible in mitigation of damages. The
damages given by the jury were enormous,
and treble the valuation which the plaintiff
him>elf put on the vessel (by which he ought
to be concluded), when he had her appraised
at $35,000.
The record of the judgment of the court be-
low is not made up according to the established
forms of law. The bill of exceptions is in-
serted in the body of the record, and there fs
no other postea or statement of proceedings at
the sittings, where the cause was tried, than
such as is contained in the bill of exceptions.
Mr. Van Buren, Attorney-General, and Mr.
T. A. Emmet, contra. The plaintiffs in error
•did not choose to argue the demurrer in the
•court below, and therefore they ought to be
Rrecluded from raising any question upon it
i this court; for if such a course be sane
tioned, it would have the effect of depriving
the plaintiff below of the benefit of the per-
mission which the Supreme Court would have
granted him, to withdraw his demurrer and
reply.
But the second and third pleas are palpably
bad ; the defendants below have not averred
themselves to be revenue officers, and so have
shown no right to make the seizure. The di-
rections of the President can be no justifica-
o<l8*l tion ; for the government *must act
by judicial process, unless where a particular
power is given by statute. The 7th section of
the Act, under which the seizure in this case
was alleged to have been made, gives the
I'ri'-ident power, " in every case in which a
vessel shall be fitted out and armed, or at-
tempted so to be fitted out and armed," con-
trary to the provisions of the Act, " to employ
such part of the land or naval forces of the
I'ni'ed States or the militia thereof, as shall
be judged necessary for the purpose of tak-
ing possession of and detaining any such -hip
or vessel." The present case has not been
brought within that section ; the defendants
below have not averred that any land or naval
force was employed. The power there given
is a limited power, and should be specially
stated. (1 Esp. Dig., 835.) These pleas are
also bad, because they do not answer the whole
of the declaration; they do not meet the charge
of converting and disposing to the defendant'^
use, and they have thus rendered themselves
trespassers (tb initio; for. by converting the
vessel to their own use, although the original
taking might have been lawful, they become
trespassers ab initio. (Com. Dig., "Trespass,
JOHNS. RBP.. 13. N. Y. R. 5.
acts and recognitions of the government.
(Edw. Adm., 1; 4 Cranch. 272.) The fact,
then, that Petion and Christophe were states,
is not admitted by the demurrer, for it is a
matter of law; and a demurrer admits onlv
such facts as are triable by a jury. The plaint-
iffs in error come with a very ill "grace to assert
the independence of the Island of Hay t i. when,
in 1809, two libels were depending," on their
own prosecution, in the District Court of this
district, against goods alleged to be of the
"growth, produce, and manufacture of a colo-
ny or dependency of France, to wit: St. Do-
mingo," and seized, as imported, or intended
to be imported, into the United States, in con-
travention of the Act of Congress, for prohib-
iting commercial intercourse between the
United States and Great Hritian and France.
(The case of The British schooner Jame*. and of
The 8iredi*h tehooner Lynx. In both cases
the forfeitures were remitted by the Secretary
of the Treasury.) We repeat that a demurrer
admits only facts well pleaded, which are
thereby withdrawn from the jury; but it ad-
mits no matteV of judicial cognizance. (1
Snund.. 49; March., pi. 420; Lutw.,18; Lutw.,
4J1, 422; 2 Leon., 84; 8 Leon., 3; 1 Show., 6;
Poph., 209; Sav., 88; 2 Ro., 22; 1 Leon.. gO.)
The third plea is bad, because too general
and vague, in not setting forth the foreign
states, in the service of one of *which [*f><»1>
the vessel was to be employed against the other.
The justification of the defendants consisted
in a criminal charge against the plaintiff below;
the utmost certainty, therefore, is required in
stating it; but to This allegation it would be
impossible for the plaintiff to know what to
reply. (Str.. 999; Burr., 2451 ; Com. Dig.,
Pleader, C, 76; 2 Saund., 379; 3T. R.. 686.)
The defendants below had but two pleas in
bar of our action; they might have pleaded
that the vessel had been condemned as for-
feited, or that she had been acquitted, and a
certificate of probable cause granted them by
the judge. But by their present pleas, they
have attempted to draw to the jurisdiction of
the State courts, a cause of which they can
have no cognizance. In England, in an action
of dower, on a plea of nt nnque* accoiiplf., the
question of Itiynl matrimnnu, if contracted
within the Kingdom, is always sent to be tried
by the Bishop, in whose diocese the espousals
are alleged to have been had (2 H. Bl., 145);
and thus, in this, and a variety of other cases,
the courts of law tske particular care not to
intrench upon courts of special jurisdiction.
In an action of trespass, de bont# a#f»tr/ntii<,
brought while a suit is depending for the for-
feiture, the defendant may plead the pendency
of the proceedings in the District Court, in
abatement. (5 Johns., 101.)
[During the argument, Mr. Bablirin. for the
plaintiffs in error, oh^-rved that the first count
\va- liad, the verdict being general, for not
specifying what goods and chattels; and that
47 787
569
COURT OF ERRORS, STATE OP NEW YORK.
1816
the fourth count was equally bad for the same
cause, though not so palpably.]
It is in vain that the counsel on the opposite
side endeavor to avoid the effect of their own
mispleading, by fixing the first error upon the
plaintiff. These objections to the declaration
were not made in the court below, nor assigned
for error, and it is too late to start them here.
But these counts, if informal, are cured by
the defendant's pleas in bar, which identify
the goods, and show what the cargo consisted
of. (Com. Dig., Pleader, C, 85; Cro. Car.,
385; Lutw., 1492; Fost., 377; Lutch., 487;
Dyer, 15, pi. 78.) If not aided by the bar,
they are cured by the verdict, and, at the ut-
most, set forth a good title in a defective man-
ner, and the circumstances omitted must have
been proved on the trial, to have entitled the
plaintiffs to a verdict. (1 Johns., 462; 2 Johns.,
561; 5 Co., 34; 2 Saund., 74, n. 1; Cro. Jac.,
435; Com. Dig., Pleader, C. 87; Cro. Eliz.,
276.) It is only insufficient pleading, and that
is within the Statute of Jeofails. The defend-
ants below ought to have taken advantage of
the error, in arrest of judgment, and the court
below would have allowed us to have applied
our verdict to the good counts (2 Johns. Cas.,
17; 1 Johns., 505; Doug., 176; 3 T. R., 659);
57O*] and this court will allow *the amend-
ment to be made, in the same manner as may
be done in the court below. (4. Johns., 499; 7
Johns. , 468). There can be tto difficulty, in
this case, in making the amendment, for all
the facts are set forth in the bill of exceptions,
and make part of the record. It is denied that
one bad count will vitiate a general verdict.
To proceed to the consideration of the bill of
exceptions. The application for nonsuit was
properly overruled at the trial; sufficient evi-
dence of property had been given; it was
enough that we had the possession in order to
maintain an action of trespass. (4 T. R. , 489;
6 Johns., 195; 8 Johns., 432; 2 Saund., 47; 1
Chilly's PL, 168, 171; 2 Roll. Abr., 551, 1, 31,
569, l" 22; Brook., Trespass, 67.) The plaintiff
afterwards proved the sale and delivery of the
ship to himself, and thus established his right
of property.
The main point in this case is, the effect of
the decision of the District Court, which we
contend is conclusive. For it would be mon-
strous that the acquittal should be conclusive
on the District Court, which has exclusive
jurisdiction of the subject matter, and yet not
binding, in a collateral action, on a courl
which has no jurisdiction of it at all. The
decision of every court of exclusive jurisdic-
tion is binding upon all others. The Court of.
Chancery has exclusive power to decree a di-
vorce. If, then, a woman brings a personal
action at law, in her own name, and the de-
fendant pleads the coverture of the plaintiff,
who replies the divorce, the proceedings and
decree of the Court of Chancery are complete
and perfect evidence, in support of the replica-
tion, and they cannot be opened and examined
by the court of law. So, the decision of the
Court of Probates, upon a will of chattels is
conclusive. In like manner, the District Court
has exclusive jurisdiction in cases of forfeit-
ures under the laws of the United States, which
is final, unless appealed from; and even had
our courts concurrent jurisdiction, still thede-
738
cree of that court must be final. On a former
occasion, in this very cause, the defendants'
counsel (Mr, Baldwin), on moving the Supreme
Court for an imparlance, until the libel in the
District Court was. determined, admitted this
very position; and urged, as a reason for grant-
ing the rule, that if the Supreme Court could
entertain this cause, and suffer it to proceed,
it would, in effect, have a control on the Dis-
trict Court of the United States, "which has
exclusive jurisdiction in all such cases " (&
Johns., 180.)
Again ; every judgment not reversed is
binding upon parties and privies. In suits in
rem, in the Admiralty, every person is deemed
a party. Every person having a qualified in-
terest, can *interpose his claim; and [*571
the plaintiffs in error were, strictly and pecul-
iarly, privies to the proceedings in District
Court ; and although they might not be per-
mitted to appeal, yet, as privies, they were
bound by thejn. That they were privies there
can be no doubt ; they made the seizure as
agents of the government of the United States;
as officers of the revenue, they were the lawful
agents particularly designated for that purpose.
That they were informers there can be no
doubt ; that is to be inferred from the libel and
Eroceedings thereon ; the libel states that
chenck made the seizure ; and why was the
seizure made ? Because, as informers, they
were entitled to a moiety of the forfeiture.
But admitting that the plaintiffs in error were
neither parties nor privies to the decree of the
District Court, still, as it was a decree in remr
they are bound by it. A decision in rem, in a
court of record of competent, and especially,
of exclusive jurisdiction, is binding upon
strangers. (W. Bl., 977 ; Ambl., 756 ; Peake's
Ev., 78, 79; Harg. Law Tracts, 451 ; Bull. N.P.,
244, 245; 2 Wils., 124, 128; 5T. R., 256; Brook's
Abr., Estoppel, pi. 2; Fitzh. Abr., Estoppel,
pi. 28.) The court which made the decision is
bound by it ; still more are other courts and
strangers.
The distinction attempted to be taken on the
other side, between sentences of condemnation
and of acquittal, has no existence; it is repelled
by the authorities which we cite. (12 Vin. Abr. t
94; 5 T. R., 255.) Such a distinction would
act oppressively and unjustly upon the party
whose proyerty had been seized. He might
continually be harassed with new seizures and.
prosecutions. If a sentence of acquittal be not
conclusive, why does the statute authorize the
judge to give a certificate of probable cause ?
There would be no necessity for vesting this
enormous power in the hands of a single judge,
if the circumstances which would render the
granting the certificate proper might be ad-
duced as a defense in another court, in a col-
lateral action for the trespass. It is only in
criminal cases that the distinction between a
condemnation and an acquittal subsists: never
in civil cases. In a criminal case, the acquittal
ascertains no fact, and is not even conclusive
upon the court which pronounces it. (Runn.
Eject., 364; 2 Wills, 124, 128; Bull. N. P., 245.)
The doctrine in the case of The Duchess of
Kingston applies only to criminal prosecutions.
Nor have the cases, in relation to the sen-
tences of foreign prize courts, any application
here. Those decisions we cannot and ought
JOHNS. REP., 13.
1816
GELS-TON v. HOYT.
571
not attempt to slmke; but the District Court is
not a foreign court; it is a court established
under the authorit3' of the Constitution of the
United States, which is the supreme law of the
land.
572*] 'Admitting that this court is author-
ized to open and re-examine the decision of the
District Court, and treat the case as if it were
not a re»jit»dicatn. still, the plaintiffs in error
must fail. It is for government alone to decide
whether the states of Hayti are independent.
within the meaning of the Act of Congress;
certainly not for a Jury. The recognition of j
a revolted and rebellious colony, as a nation, is
a matter of high expediency, of pubic policy,
connected with the law of nations, and of
which courts and juries are incompetent to
judge. Considerations of foreign intercourse,
of peace and war, are involved, and if courts
usurp the power of deciding such questions,
they may involve the country in hostilities.
Suppose a vessel had been fitted out in the
ports of the United Slates by Bonaparte, to
suppress the insurrection in Hayti, and had
been seized under this Act, would it not have
been a just cause of complaint on the part of
France? It would be usurpation on the exe-
cutive and legislative functions, for courts of
justice to consider a nation or a prince as
independent before government has recognized
their independence, by some law or treaty or
other public formal act. These are the true I
and only legal evidence of a recognition by the
government of the United States of a new
created foreign power. (4 Crunch, 273 ; Edw.
Adm., 1.) It is absurd to say, that the order
of the President to seize, mentioned in the
pleadings, was such a recognition ; if it were
to be so, it should previously have been made
known, otherwise we should be punished by
an i r post facto law ; but it does not appear,
from the bill of exceptions, that any order was
offered to be given in evidence. The effect of
such an order was discussed while examining
the pleas of the defendants below.
The views, however, of the government have
been disclosed ; their intention has been de-
clared to be, that they would not come in col-
lision with any claims of France to the sove-
reignty of the revolted colonies in St. Domingo.
By the Act of February 28, 1806 (8 L. U. S., 1 1),
"all commercial intercourse beyyeen any
person or persons, resident within the United
States, and any person or persons resident
within any part of the Island of St. Domingo,
not in possession, or under the acknowledged
government of France, shall be and is prohib-
ited." This was only a temporary Act, yet it
serves as an exposition of the policy of our
government, which courts are bound not to
counteract. Courts, both in Great Britain and
in this country, have decided that those colonies
were not independent nations. (4 Cranch, 272;
Edw. Adm.. 1.)
,~>7:{*] "The record was properly made up.
and if there be any informality in it, this court
will amend and overlook it. (Bull. N. P., 317;
2 Esp. Dig.. 591; 1 R. L., 319; 1 L. N. Y.;
Kent & Radcliff's ed., 129; 4 Johns., 499.)
Mr. Baldwin, in reply, insisted that this court
was in duty bound to examine the points arising
on the demurrer, although he refused to argue
them in the Supreme Court.
JOHNS. RKP., 13.
The defendant in error might have received
the -hip at any time upon giving security for
the appraised value; the appraisement was
made at $35.000, and never excepted to, and
yet he does not bond the ship. How could she
be worth $35,000 in April, 1806, and $107,000
a short time before?
[TiiK ( 'HAM KLLOR. The question of dam-
ages cannot be argued here.]
The second plea is good, because Petion and
Cliri-tophe are to be regarded here as princes
or states, within the meaning of the Act of
Congress; and it shows that the plaintiff had no
right of action; for the vessel being seized as
forfeited, his property was immediately de-
1, and he could not maintain an action of
ire-pass (5 T. R.. 112); at least not until the
property was revested in him by the acquittal.
The demurrer admits the allegation in the plea,
that Petion and Christophe were foreign states.
to be true.
Nations acquire independence in two ways:
1. By the consent of the parent state. 2. By
force. Whether independent or not, is a mat-
ter of fact: a recognition of their independence
by the government must also be a matter of
fact. Suppose that Bonaparte had relinquished
his claim to the Island of Hayti, would that
have l>een matter of law ? In" the case of R)»e
v. Ilimdy. 4 Cranch. 241, so much in.si-'cd
upon by the other side, the question of the
independence of Hayti did not arise, and was
not decided in that case. St. Domingo was
then, at least in part, in the possession of
France ; but France has since evacuated the
whole island.
We were not bound to deny the carrying
away and disposing of the property ; it was
unnecessary to have stated it in the count, for
it was mere matter of aggravation ; if the
plaintiff below intended to take advantage
of it, and rendered the defendants trespass-
ers, ab iru'tio, he should have shown the spe-
cial matter in a new assignment. (3 T. R.,
292.) But his proper course was to have denied
the fact that the governments of Petion and
*Christophe were independent States. [*«">74
and so have that mutter tried. It is, however,
unnecessary for us to defend our pleas; for the
first fault in pleading being on their side, we
are entitled to judgment. (1 Chilly's PI., 647.)
The third plea is also good, on general de-
murrer; the plaintiff below should have replied
to it, or demurred specially. (1 T. R., 748.)
That plea was drawn to test the right of the
defendants below, under the 7th section of
the Act, which, although it speaks of employ-
ing land and naval forces, yet implies a seizure
by civil and pacific means — by means of the
revenue officers.
We are not bouud by the decision of the Dis-
trict Court: we were not privies to it. Privies
are persons who. by reason of blood or estate,
come into the place of a party to the judgment;
such are heirs, executors and devisees, and
they may appeal; but we had no right to appeal,
ana therefore are not privies. The mere seiz-
ure of the ship gave no right to the forfeiture;
(11 Johns, 460), and in that point of view we
are not privies. We insist, also, that there is
a substantial distinction between an acquittal
and a condemnation. [Here the counsel ex-
739
574
COURT OF ERRORS, STATE OF NEW YORK.
1816
amined the cases which have already been cited
to this point,] Suppose the plaintiff below
had brought his action of trespass to trial and
failed, before the vessel was libeled in the Dis-
trict Court, could the plaintiffs in error or the
United States have shown that judgment as a
proof of the forfeiture? If not, the parties do
not stand upon equal ground. Besides, the
courts of the United States are not domestic
courts. The evidence offered should, then,
have been admitted; because: 1. The decree of
the District Court was not conclusive; and, 2.
Because the chiefs of St. Domingo are independ-
ent princes or states, within the Act of Con-
gress. And the evidence was admissible in
mitigation of damages, although the plaintiff
below disclaimed to charge the defendants
with malice.
THE CHANCELLOR. The suit in the Su-
preme Court between these parties was an ac-
tion of trespass, in which Hoyt declared
against Gelston and Schenck, for seizing, tak-
ing and carrying away his ship, called the
American Eagle. To this charge the defend-
ants plead, not only the general issue, but two
special pleas in bar ; and to these pleas there
was a general demurrer and joinder, and
judgment for the plaintiff.
On the trial of the general issue, Hoyt gave
575*] in evidence that *at the time of the
seizure of the said ship she was in his actual,
full and peaceable possession ; and that, upon
being seized, she was libeled in the District
Court of New York, on a charge of being fit-
ted out, armed and equipped, With intent to
be employed in the service of Petion, who had
under his government part of the Island of St.
Domingo, against Christophe, who had under
his government another part of the said island.
That, on a trial in the District Court, under
that charge, the libel was dismissed, and the
ship decreed to be restored to Hoyt, the claim-
ant.
On this evidence, a motion was made for a
nonsuit, and overruled.
The plaintiff (Hoyt) afterwards, in the prog-
ress of the trial, proved his purchase of the
ship of the owner; and the defendants of-
fered in evidence, by way of defense, or in
mitigation of damages, under the notice of
special matter, subjoined to the general issue,
that the ship, with her equipment, was fitted
out and armed at New York, on the 1st of
July, 1810, to be employed in the service of
Petion, as aforesaid; and that the defendants,
as being, respectively, Collector andSurvey or of
the port of New York, seized the ship. This evi-
dence was overruled as a justification; and as
the plaintiff thereupon admitted that the de-
fendants had not been influenced by any mali-
cious motives, and had not acted with any
view or design of oppressing or injuring the
plaintiff, it was overruled, also, in mitigation of
damages; for, after that admission, the plaint-
iff could recover only the actual damages sus-
tained ; and with that direction the judge left
the cause to the jury.
To all these decisions of the judge, at the
trial, exceptions were taken ; and upon that
bill of exceptions the cause was brought into
this court.
The first error assigned on the part of the
740
plaintiffs in error is, that the matters contained
in the 2d and 3d pleas in bar, and which ap-
pear upon the record, amounted, in law, to a
justification, and that the judgment on the
demurrer ought to have been in favor of those
pleas. As connected with this point, it is also
urged that the first and fourth counts in the
declaration are bad, and the defects fatal, after
a general verdict upon the declaration at
larpe.
The judges of the Supreme Court have not
assigned reasons for the judgment which they
pronounced on the demurrer ; because, as was
*stated by Mr. Justice Spencer, in be- [*5 7 6
half of that court, "when the cause was called
(meaning the issue joined on the demurrer),
the defendant's counsel appeared, »md de-
clined to argue ; whereupon judgment was
given for the plaintiffs, on the defendant's
counsel declining the argument."
Are, then, the plaintiffs in error to be per-
mitted to come here and argue the questions
arising upon the demurrer, when they declined
the argument in the court below ? This is an
important question, and it meets us in the very
threshold of the case.
I am of opinion that they are precluded, and
for the following reasons :
1. In the first place, it is an unfair pleading,
for it takes from the party demurring an ad-
vantage which he would have been entitled to
in the Supreme Court, if the inclination of that
court had been against him, of withdrawing
his demurrer and replying to the pleas. I
presume this court cannot grant Mich a favor.
If it can, the favor would be overloaded with
costs. I know of no such precedent. It is
not a case of amendment, and not within the
ordinary province of a court merely of re-
view. A party acts against good conscience
if he will not come forward and disc-lose his
reasons, when called upon by the proper tribu-
nal, but reserves himself for another court,
and for the cold, hard . purpose of accumu-
lating costs, or of depriving his adversary of
the opportunity of correcting his error.
2. This point is within the reason of the de-
cision of this court, at the last session, in the
case of Sands v. IJildreth, 12 Johns., 493.
There the appeal was dismissed because the
appellant did not appear in the Court of
Chancery ftfter the cause had been regularly
set down for hearing, on due notice, but vol-
untarily suffered a decree to pass against him
by default. That decision was not founded
on any new principle, and it equally applies to
this case. There is the same rule in the En-
glish House of Lords ; and in Dean v. Abel,
Dickens, 287, an appeal was dismissed with-
out going into the merits, because the party,
at the hearing in chancery, had made default,
and suffered a decree to be pronounced against
him. So, again, in a late case (2 Sch. & Lef.,
712), Lord Eldon said it was well known as an
established rule, that no point not made in the
court below could be made on appeal to the
House of Lords.
3. This is a just and wise rule : for the very
theory and constitution of a court of appel-
late jurisdiction only, is the Correction [*5 7 7
of errors which a court below may have com-
mitted ; and a court below cannot be said to
have committed an error when their judgment
JOHNS. REP., 13.
1816
GELSTON v. Horr.
577
was never called into exercise, and the point
of law was never taken into consideration,
but was abandoned, by the aquiescence or de-
fault of the party who raised it. To assume
the discussion and consideration of a matter
of law, which the party would not discuss in
the Supreme Court, and which that court,
therefore, did not consider, is to assume, in
effect, original jurisdiction. It is impossible
to calculate all the mischiefs to which such a
course of proceeding would lead. Either
Early would then be able, in every case, to
ring his question of law, as new, undiscussed
points, before this mart. This would, indeed,
be leaving the Supreme Court, with its pleni-
tude of power, to enjoy the otium cum digni-
tate in harmless repose ; but this was never
the intention of the Constitution. That court
was created, with all its competence and
organs, to be the great trustee, the tutelary
guardian of the vast body of the common law.
What good motive can a party have, who will
not argue a law question in the Supreme
Court, but insists on bringing it here to be ex-
clusively discussed ? It is according to the
genius of our whole judicial Mtebtubment,
that the court which originally decides a cause
should be subject to review by another court ;
but on the plan pursued in the present case,
this court, though only a court of review, will
be the first and the last, originally and finally,
to decide the law. Why should not a party be
obliged to obtain the opinion of the Supreme
Court before he comes here ? Hew can he
know but that such opinion might have saved
him the expense, and us the trouble of the writ
of error ? It is certainly as much as we can do
well, and I fear more than we can do with dis-
patch, to hear and decide questions of law
after they have been maturely considered in
the Supreme Court, and with the assistance of
all the light and knowledge which can be im-
parted to the subject from the researches of
that tribunal.
4. But a still more decisive objection to our
taking into consideration a question on de-
murrer in the court below, and there refused
to be argued, is to be drawn from that article
in the Constitution which provides for the in-
stitution of this court. It declares that "if a
cause shall be brought up by writ of error on
a question of law on a judgmen^in the Su-
preme Court, the judges of the court shall a-
sign the reasons of such their judgment." In
a case, then, in which the opinion of the Su-
578*] preme *Court was never required or
taken, no reasons can be assigned, and it is
not a case for a writ of error within the pur-
view of the Constitution. This court is en-
titled, as of right, in all cases of error, to the
aid of those reasons ; and if the party will not
condescend to ask for the opinion of the
Supreme Court before he comes here, he can-
not justly complain if we refuse to hear him.
It will be imputable to his own fault or folly ;
and he ought not to be permitted to de-
prive the opposite party, ana this court also,
of the benefit of that investigation which
the Supreme Court is always ready and able
to give to every question properly submitted
to it.
For these reasons, I have thought it to be my
duty to abstain from any consideration of the
JOHNS. Rur., 18.
first point, in the plaintiff's case, respecting
the demurrer to the second and third pleas.
The same objection applies to anew point sud-
denly started in the midst of the argument
here, and never heard of in the court below,
and which was, that the first and fourth counts,
in the declaration were bad. If I had chosen
to have gone into the discussion, I apprehend-
ed I should have no great difficulty ; for the
defects, if any, in the counts, were supplied
and cured by the pleas in bar. which identi-
fied and made certain the goods mentioned in
the first and fourth counts. The matters in
the special pleas were the same, in substance,
with the matters contained in the notice to the
general issue ; so that the plaintiffs in error
have, in fact, lost nothing by the course they
took, as every benefit of the special pleas was
reserved to them by the notice, and the evi-
dence offered under it. That evidence in-
volved the whole merits of the case, and to
those merits I now proceed.
Hoyt was in the actual and peaceable pos-
session of the vessel when the seizure was
made ; and there can be no doubt, from that
fact, that he was entitled to maintain the ac-
tion of trespass, and that the motion at the
trial for a nonsuit was properly overruled. It
would be a waste of time to cite authorities to
so plain and well settled a proposition. The
great point is, whether the matter offered in
evidence by the defendants ought to have been
received. The defendants offered to prove
that the ship was fitted out and equipped in
the port of New York, with intent to be em-
ployed in the service of Petion against Chris-
tophe, and that she was seized by the defend-
ants, as Collector and Surveyor of the Customs,
under the Act of Congress. *When [*579
this evidence was offered, the plaintiff nad al-
ready proved that the seizure was made by
Schenck, under the directions of Gelston, and
had given in evidence the proceedings in the
District Court, in pursuance of that seizure,
and under the very allegations set up by the
defendants, and from which it appeared that
the District Court had, notwithstanding, dis-
missed the libel and restored the vessel, with
the strong opinion that there was not even
reasonable cause for the seizure.
The evidence offered by the defendants be-
low was not admissible in mitigation of dam
ages. After the plaintiff had renounced all
claim to extra damages, and after the pudge
had ruled that he was only entitled to his act-
ual damages, the testimony, in that view, be-
came wholly useless ; for, if entitled to recover
anything, the plaintiff was, finally, entitled to
recover the actual damages he had sustained,
and we are bound to presume, upon the rec-
ord before us, that he recovered no more. The
testimony, if proper in any sense, was a com-
plete bar to the action.
But I am of opinion that it was properly
overruled ; for. after the decree of acquittal
in the District Court, the same question could
not be tried again in the action of trespass .
and the decision that the vessel was not liable
to seizure and forfeiture under the charge al-
leged, was binding and conclusive in the ac-
tion between these parties. The officer who
-ri/rs goods on the ground of forfeiture, and
( au-es them to be libeled and tried, has bir
741
579
COURT OF ERRORS, STATE OP NEW YORK.
1816
two pleas in bar to an action by the owner ;
these are the judgment of the court, if the
goods be condemned, and a certificate of prob-
able cause, if the goods be acquitted. If he
can show neither, he must answer for the
seizure in an action at common law.
This point was discussed at large upon the
argument, and with much talent and research.
I feel myself, therefore, called on to give it a
more particular attention.
It may be admitted as a general principle,
that the sentence of a competent court binds
only parties and privies, and does not bind
strangers who have no interest in the suit, and
who could not be admitted to agitate the case,
nor to bring an appeal. Lord Ch. J. De Grey,
in delivering the opinion of the judges, on the
trial of the Duchess of Kingston, stated this
general rule, but he said there were some ex-
ceptions to it, founded on particular reasons.
58O*] It does not appear to me, *however,
that the defendants below come within the
reason of the rule ; and it seems to be perfect-
ly just, that the acquittal of the ship, in the
District Court, on the charge of being equipped
for the service of Petion, should, as to that
charge, be binding and conclusive in the tres-
pass suit.
I do not consider those defendants as strang-
ers to the prosecution in the District Court.
In the first place, it is to be inferred from the
case that they were the persons who " gave
information of the offense," and consequently,
were the persons entitled to one half of the
Eroceeds of the seizure and forfeiture. The
tatute under which the seizure was made
gives a moiety to the informer. And who,
are we to presume, gave the information in
this case to the government, and caused the
prosecution to be instituted ? Whom could it
be but Messrs. Gelston and Schenck, who vol-
untarily made the seizure upon some observa-
tion or knowledge of their own ? It is in
proof that the ship was seized by the one,
under the written directions of the other.
Some person must have given information to
the government ; some person must have set
on foot the prosecution ; and in the absence of
any other proof which the defendants omitted
to furnish, the necessary amendment is that
the same persons who seized the ship were the
persons who gave the information. We can-
not trace the information to any other source,
and we are not bound to enter the land of
dreams for shadowy beings, when we have be-
fore us the very persons who made the seiz-
ure, who possessed all the knowledge that the
case afforded, and upon whose seizure, as the
libel admits, the whole prosecution was
grounded. The law looks no further than to
the immediate cause of an act ; non remota,
causa sed proximo, spectatur. We have a right,
then, to consider Gelston and Schenck as the
informers, and as being parties in interest to
the prosecution carried on at their instance in
the name of the United States.
But if they were not the informers, they
were, in effect, by virtue of their office and
act of seizure, privies to the prosecution. They
seized in the character of officers of the Cus-
toms, and as assumed agents of the govern-
ment of the United States. A decision against
the principal binds his agent, and the agent
742
must look to the principal for indemnity.
Scaccia, in his book De SententiaetReJudicata,
in a passage cited by Mr. Hargrave in his Law
Tracts (p. 483), after stating the general rule,
that *res inter alios acta aliis nee prodest [*58 1
nee nocet, gives this exception to it, sententia
lata cum eo cujus .prindpaliter interest, et a quo
alii jus habent consecutivum, facit jus quoad
omnes, etiam non intervenientes et non citatos.
There is a close intimacy and sympathy, flow-
ing from the law, between the officers of the
Customs and the government ; and it might as
well be pretended that, if the seizure had been
made by the Secretary of the Treasury, a de-
cision against the United States would not
have bound him. By the Acts of Congress
(Laws of U. S., Vol. I., 74, Vol. IV., 427,
sec. 89), all penalties and forfeitures incurred
under the Revenue Laws are to be sued for in
the name of the United States, by the attorney
for the district ; and the Collector of the Cus-
toms is to cause suits to be prosecuted for all
forfeitures under the JRevenue Laws, and to
receive and distribute the penalties when col-
lected. It is also made the duty (Laws of
U. S., Vol. IV., 390) of the officers of the
Customs to seize all vessels liable to seizure
under any revenue law. This case does not,
indeed, come strictly within the provision of
these laws, but it would be acting against the
truth of the fact, as well as against the justice
of the case, to regard these defendants as
strangers to a prosecution carried on by the
United States under a seizure made by' them
as officers of the Customs. Most undoubtedly
they are to be regarded as agents of the gov-
ernment in the whole of the transaction, and
upon all the principle's of justice, they ought
to be concluded by a decision against that very
government in whose behalf they seized, an9
instituted the suit. The government itself
cannot be sued. There is no remedy but
against its public officers. And if they, cloth-
ing themselves with the powers of the govern-
ment to commit a trespass, are not to be bound
by a decision against the government, and
that, too, in a prosecution brought at their in-
stigation, individuals would contend upon
most unequal terms.
It would operate most injuriously to the
plaintiff below, if the acquittal of his vessel,
in the District Court, was not to be held con-
clusive, on the question of forfeiture, in all
other courts. Let us pursue this point to its
practical consequences. Suppose the Supreme
Court, in this case, had admitted, as a legal
justification, the matter set up as a defense,
and had held, in opposition to the decree of
the District Court, that the vessel was lawfully
seized, and justry liable to forfeiture under
the laws of the United States. What then ?
It is certain that such a decision *cou1d [*582
not work a forfeiture of the ship ; for no other
court but the District Court has authority to
condemn. The only effect of such a decision
would -be to deprive Hoyt of his remedy for
the seizure and detention of his vessel. He
and his vessel are to be deemed innocent as re-
spects the United States, but guilty as respects
the officer who seized. His property is fairly
acquitted by the only court that has authority
to try and condemn. The government in
whose name, and on whose behalf, it was
JOHNS. REP., 13.
1816
GELSTON v. HOYT.
583
seized and libeled, acquiesces in the justness
of the sentence, and files no appeal. But
when he attempts to sue the officer who did
him the injury, a state court, which has no
jurisdiction over the question of forfeiture,
declares in favor of the lawfulness of the seiz-
ure, and right of forfeiture, and thus deprives
him of all redress. Can it be possible that a
doctrine leading to such absurd results, to such
inextricable confusion, is well founded ?
Without entering into a large field of in-
quiry, I apprehend it can be easily and satis-
factorily shown that this is not the rule of law.
The case of Scott v. Shearman, 2 W. Bl.,
977, arose in the English Court of C. B. in 1775.
The case was cited and relied upon in the
Supreme Court. It was an action of trespass
against custom house officers for entering the
plaintiff's house and seizing his goods. The
defendants gave in evidence, by way of justi-
fication, a condemnation of those goods in the
Exchequer. The cause was twice argued, and
underwent great examination. It was then
contended, at it has been here, that the con-
demnation was only conclusive in rem, or on
thi- point of forfeiture of the goods, but not in
a collateral action, if the owner could prove
tliut the goods were, in fact, not seizable, and
had sued the officers seizing for damages. But
the court unanimously held that the sentence
of condemnation was conclusive upon th,e
the action, and gave judgment accordingly.
There can be no doubt thai this decision is a
declaration of the established English law, and
that it was so when our Constitution was made.
When Lord Ch. J. De Grev gave to the House
of Lords, in the Duches* of Kingston's case, the
the opinion of the judges on the effect of a
sentence in the ecclesiastical courts, in bar of
a criminal prosecution, he certainly did not
mean to touch the authority or correctness of
tlii^ decision, which he had pronounced the
o83*l year before. This is still more 'evi-
dent when we advert to the fact that, two years
after the trial of the Duchess of Kingston, he
said (2 Bl., 1174) the determination in this
'cause, that a condemnation of goods in the Ex-
chequer was conclusive against all the world,
had been the uniform law for above a century.
And many years afterwards, we find Lord
Kenyon (7 T. R., 696) declaring that the same
rule had been deemed settled in the early part
of Lord Mansfield's time, and that he always
acted upon it.
The law, then, is to be considered as settled,
clearly, uniformly, and definitely, that if goods
be seized by a custom house officer, and are
libeled, tried and condemned in the Exchequer.
District, or other court having cognizance of
the forfeiture, and the seizing officer be after-
wards sued in trespass for Jaking the goods, he
may plead that condemnation in bar of the
action. So far we have proceeded with perfect
assurance. The next question, then, is, sup-
pose the goods to be seized, tried and acquitted
in the District Court, and the officer be then
sued for seizing the goods, can the officer con-
test the legality of the seizure over again; or
•cannot the owner, in his turn, set up the sen-
tence of acquittal as a bar to that inquiry.
This is the very point and pith of the con-
troversy, and I entertain no doubt it is equally
well settled as the other; and that if the con-
JOHNS. REP., 13.
| demnation is a bar to the action on the one
i hand, the acquittal is a bar to the defense .on
! the other. It would be monstrously unjust
! and repugnant to all principle, if the rule were
j not so. Ought not the parties to be placed
i upon equal ground? And, if the sentence of
i condemnation be conclusive in favor of the
i seizing officer, ought not the sentence of acquit-
tal to oe conclusive against him? The most
obvious dictates of justice will teach every
man of common understanding that the rule,
to be just, should be equal andimpartial in its
operation. In the opinion delivered, in behalf
of all the judges, in the case of The* Ducket*
of King*tr>n, to which I have already referred,
I and to which I again allude, with the more
satisfaction, because it is not only of great
authority, but was very much relied on by the
learned counsel for the plaintffs in error, 'Lord
Ch. J. De Grey lays down this important
maxim, that "the rule of evidence must be, as
it is often declared to be, reciprocal, and that
in all cases in which sentences favorable to the
party are to be admitted as conclusive evidence
for him, the sentences, if 'unfavorable, [*584
are, in like manner.conclusive evidence against
him."
After a principle is so clearly laid down, and
is, in itself, so eminently just, we hardly stand
in need of cases to illustrate it. But we have
a case, as early as 1716, before Baron Price,
preciselyjto the point. (12 Vin., 95, A, b., 22.1.)
It was an action of trover, for a parcel of brandy
which had been seized on some alleged breach
of the Revenue Laws; and on an information
in the Exchequer, in the name of the Attorney-
General, the party and his property were ac-
quitted. The sentence of acquittal was given
in evidence, in the trover suit; and on the other
side, evidence was offered against the sentence,
and to let in the parties to contest the fact of
forfeiture over again, notwithstanding the trial
and decision in the Exchequer. But the
evidence was rejected, and the decision of ac-
quittal held binding.
I entertain no doubt that this decision has
been considered as good and settled law ever
since it was made. It was cited as uncon-
tradicted law, by Mr. Justice Blackstone, in the
elaborate opinion he gave in the case of Scott
v. Shearman, already referred to; and in Cook
v. Sholl, which came before the K. B. in 1798,
Lord Kenyon said he conceived that the judg-
ment of acquittal in the Exchequer, being a
judgment in rem, was conclusive in the subse-
quent action of trover, as to the question of the
illegality of the seizure. The whole Court of
K. B. were, at once, of that opinion, and so
determined the cause; but on a subsequent day,
one of the .counsel said that point was not so
clear, for that there was a distinction as to the
effect of a judgment of acquittal or of con-
demnation in the Exchequer, and he referred
to a passage in Buller's N. P., 245, in support
of his distinction. But the court never recon-
sidered this point, for the cause went off on
other grounds.
We have, then, the decision before Baron
Price, as long as a century ago; we have that
CJIM- Hied in 1775, as good law, by Sir Win.
Blackstone, and we have the decision of the
K. B. in 1793, on the same point. In opposi-
tion to all this authority, there is nothing to
748
584
COURT OP ERRORS, STATE OF NEW YORK.
1816
be cited but a passage in Bailor's N. P., with-
out any adjudged case to support it; and when
we come to examine the passage, we must be
satisfied it cannot have been intended to apply
to a proceeding in rem. The reason assigned
in Buller's N. P. why an acquittal is not con-
clusive in a collateral action, as well as a con-
demnation, is, that an acquittal ascertains no
585*] fact as a *conviction does. This is the
reason assigned. Thus, it is said, if a party
be indicted for bigamy, and convicted, it must
have been a full proof that he was twice mar-
ried, and could not have been on any other
ground;- but if he was acquitted, it might have
been because he had reason to believe his first
wife was dead, though she was not dead; or it
might have been for many other reasons,
without supposing the second to have been a
lawful marriage. All this may be true in that
and like cases; but in a case in the Exchequer,
where the goods are themselves seized and
libeled as being forfeited to the government,
and which is termed a proceeding in rem, the
question of forfeiture is the only question that
can be made, and a decree of acquittal does
ascertain the fact that they were not forfeited,
with as much certainty as a decree of con-
demnation ascertains the fact that they were
forfeited. Indeed, in the next preceding page
in Buller (p. 244) an adjudged case is given
which completely overturns his distinction. It
is the case of Lane v. Degberg, decided in 11
W. III., prior to the decision before Baron
Price. It was an action by a soldier against
his officer for an assault and battery. The of-
ficer justified the act as done in the Army for
disobedience, and gave in evidence the sentence
of a Council of War, founded on a petition of
the plaintiff against him; and the acquittal,
being the sentence of a court of exclusive
jurisdiction in a case arising under martial
law, was held to be conclusive evidence for
the officer in the action for the assault
and battery. Lord Thurlow, who acted
as Attorney-General on the trial of the Duchess
of Kingston, cited this case as good law; and it
appears to me that, in all the learned and pro-
found discussions to which The Duches* of
Kingston's case gave rise, it was never con-
troverted, but it was a conceded point, that a
sentence in rem, pronounced by a court of
peculiar and exclusive jurisdiction, was, as to
the question of rightful seizure or forfeiture
of the property in controversy, binding and
conclusive upon all mankind.
But, admitting that the decision in the Dis-
trict Court was not binding, and the right of
seizure was to be tried over again, I am, then,
of opinion, on the merits, that the plaintiff's
ship was never armed and equipped with any
intent contrary to the Act of Congress.
I am persuaded the plaintiffs in error have
no faith in the soundness of their position. If
they had, why did they not procure an appeal
from the decision of the District Court? The
586*] *whole proceeding was, doubtless, very
much under their control, and their agency
would have been as effectual for this purpose
as it was originally in the institution of the suit.
The government itself has no confidence in
this ground, or it would never have suffered so
important a question to have slept quietly
under the decision of a single judge.
744
The prohibition was against fitting out any
vessel to be employed "in the service of any
foreign prince or state," against "another for-
eign prince or state with whom the United
States were at peace." The evidence offered
was, that the ship was fitting out to be employ-
ed in the service of Petion against the govern-
ment of Christophe.
It is a well-known fact that the part of the
Island of St. Domingo under the government
of those chiefs was, at the commencement of
the French Revolution, a colony of France,
and that the authority of France was after-
wards destroyed by the insurrection of the
blacks. It is equally notorious that France
never renounced her claim to dominion over
that colony; and in 1801, she sent a fleet and
army to subdue it.
It may also be stated, as a further fact, rest-
ing on the same public notoriety, that the gov-
ernment of the United States have never, by
any public act whatever, recognized either
Petion or Christophe, or any other prince or
Emperor, in St. Domingo, as independent
powers, with whom the customary relations
of peace and amity were to be maintained.
The Act of Congress of the 28th of February,
1806, which I believe was cited upon the argu-
ment, is decisive evidence of the sense of the
government. It prohibited all commercial in-
tercourse between the United States and any
person or persons, resident within any part of
the Island of St. Domingo not in possession,
and under the acknowledged government of
France. At that time all the Spanish part of
St. Domingo had been ceded to France, so that
the Act was made on purpose to apply to every
part of the island which might be considered
by France as in rebellion. We have ro con-
cern, at present, with the policy of this Statute.
It is sufficient that it shows the unequivocal
sense of the administration; and my position is
that it belongs to the government, and not to
the courts of justice, to determine our foreign
relations; and especially, to determine the time
when the recognition of new states is called for
upon principles of national policy.
The Act of Congress of 1794, under which
the seizure was *made, did not relate, [*587
when it was passed, to the independent gov-
ernments in St. Domingo; for they did not
then exist; and when they do exist, &o as to
come within the purview of the law, as "for-
eiern princes, or states, with whom we are at
peace," must depend upon the pleasure and the
solemn act of the government itself.
It is a very strange and novel doctrine, that
it belongs to the municipal courts to anticipate
the views, and distract the policy of the gov-
ernment, by being the first to acknowledge
new states, as they may successively arise in
the revolutions of the world. There never
could be more unfit organs for this purpose.
The courts are, by their very constitution,
passive and tranquil, and devoted to the ad-
ministration of domestic justice. They have
no concern with foreign intercourse, and no-
knowledge of the secret springs and compli-
cated policies of nations. Among all the vol-
umes on public law. not a passage is to be
found which bestows such a function upon the
judicial power; and as often as the question
has arisen in the discussions on private right,
,/OHNS. REP., 13.
1816
GELSTON v. HOYT.
587
the judges have uniformly disclaimed the au-
thoritv.
In the case of The City of Berne v. The Bank
of 'England, which came before Ld. Eldon in
1804 (9 Ves., 847), a motion was made to re-
strain the Bank from permitting a transfer of
certain funds belonging to the old government
of Berne, before the conquest anil Revolution
of Switzerland by the acts and arras of France.
The motion was objected to on the ground
that the existing government of Switzerland,
not being acknowledged by the government of
Englami, could not be noticed by the court.
The Chancellor denied the motion, for the
reason that a judicial court cannot take notice
of a government never recognized by the gov-
ernment of the country in which the court sits.
The same point came before the Lords Com-
missioners of Appeals in pri/e causes, in
March, 1806, and they decided that St. Do-
mingo was still, in point of law, under the
dominion of France, and to be considered an
enemy's colony; and that the courts could not
undertake to determine otherwise, as it had
not been otherwise declared by the govern-
ment. This decision of the Lords Commis-
sioners was referred to by Sir Wm. Scott, in
the case of The Manilla, 1 Edw. Adm., 1, and
he considered it as most undoubtedly correct.
These are decisions of the highest authority
in England; and we have a similar decision of
the highest authority in this country.
r>8H*J *In R»M v. Hiinely, 4 Cranch, 241,
it was declared by the Supreme Court of the
United States, that it was for governments to
L— At the conclusion of his opinion. His Honor,
in answer to the argument of toe counsel for the
plaintiffs in error, drawn from the present state of
the governments of St. Domingo, made the follow-
ing observations :
It has been urged, by the counsel .here, that the
governments in St. Domingo were, in fact, and of
right, independent ; that they were administered
with wisdom, and entitled to be acknowledged by
us as independent states. I might, perhaps, be
• !••••! i i>-'l wanting in attention to the learned counsel,
if I passed over in silence these observations, which,
however, I think, would have been more suitably
addressed to the government than to us. The courts
have no business with the question how far and
when it becomes 'proper to acknowledge a foreign
power. It is a matter of policy and not of legal ob-
ligation. The simple fact of the recent erection of an
independent state, cannot form, of itself, and with-
out reference to other views and considerations, a
suffleient basis on which government can act. Noth-
ing can be more transient, as the experience of this
age has taught us, than newly-erected powers in rev-
olutionary times, or in the turbulent state of the
Kuropean colonies. They must give evidence of
stability before they can command confidence.
\viii-n the Act of Congress was passed in 1806, dis-
claiming all countenance of the rebellious powers
in St. Domingo, it was well known to the govern-
ment that Dussalines, under the title of Emperor,
was then reigning as absolute master over nearly
the whole Island. But I am very far from meaning
to cast any blame upon our government for its re-
serve in respect to those powers ; for in what age or
nation do we meet with a more rapid succession of
revolution than this same ill-fated Island has been
doomed to experience?
Without noticing the convulsions which agitated
the Island for the first ten years, which opened a
civi! war of extraordinary violence, and which
threatened to destroy the last vestiges of civiliza-
tion, if not to exterminate the Inhabitants, we find
that, by the year 1801, Touissant had recalled tin-
laws of justice, and assumed and consolidate a
peaceable authority. He had subdued Klgaud and
other brigands. He had besieged and taken the City
of St. Dominirn, and had broken up the last asylum
<>f French <l»mitilon. He had i-Htalilished a wise and
liberal Constitution, and became the protector of
JOHNS. REP., 13.
decide whether they could consider St. Do-
mingo as an independent nation; and until
such decision should be made, or France should
relinquish her claim, courts of justice inu^t
consider the ancient state of things as remain-
ing unaltered, and the sovereign power of
France over that colony as still subsisting. It
was said upon the argument, that this was i<>
be considered as the dictum of the Chief Jut-
tite, and not the opinion of the court, on a
point arising in the cause. But I apprehend
this to be a mistake. The Chief Justice, in
giving the opinion, observed that the relative
situation of St. Domingo and ' France came
necessarily to be considered; and if so, the
decision of that point was materially involved
in the judgment of the court. And, while on
this case, it is worthy of notice, that the decis-
ion here, and the decision before the Lorda
Commissioners of Appeals, were remarkably
coincident in point of time, as both were made
within the same month, and without any pos-
sible influence of the one upon the other.
It appears to me, then, that this great turn-
ing point on the merits of this case, is equally
well supported by reason and authority; and
it is not in my power to entertain any doubt
as to what ought to be our conclusion.
I am, accordingly, of opinion that the judg
ment of the Supreme Court ought to be af-
firmed.1
*This being the unanimous opinion [*58J>
of the court (two of the Senators only being
absent), it was thereupon ordered and ad-
judged that the judgment of the Supreme
the whites, and the encourager of our American
trade. This Black Prince was a man of good sense,
probity, and virtue ; and he imparted consolation
to his subjects for the horrors they had witnessed,
and the miseries they had endured, by a reign of
prosperity and justice, moderation and glory. But
the scene was as fleeting as it was brilliant. After
the arrival of the French army, under Le Clerc, in
1802, he was perfidiously kidnapped, and sent, loaded
with chains, to France, where he was suffered to-
languish and expire in the horrors of a dungeon.
The blacks soon took ample vengeance on their en-
emies. The French army was wasted by incessant
warfare and by pestilence, and the remains of it es-
caped from the Island in 1803, by a voluntary sur-
render to the English. The independence of the
blacks was then re-assumed, and Dessalines became
their ruler, under the title of Emperor of Hayti.
His reign was one career of rapacity, lust and cru-
elty ; and he fell, in 1806, by assassination, provoked
by the overruling principle of self-preservation,
and the impulse of universal indignation at the
monster. His repeated massacres of the whites had
been quietly endured, but, like Doinitian,
-" Pcriit, {Huti/intni < < nlnniliun fxxf MHMMhM
Grpcrnt ; twc nwutt Latninmin <-<nli wmlftiti."
His successors were the rival chiefs Chrlstophe and
Petion, who soon divided the Empire between them:
and from that time to this day, they have carried on
a tierce and implacable war against each other.
Nearly till the white, and, jHThaps. three fourths of
the black population which existed in 1789, perished
in these revolutions: and the fury of the human
passions has converted one of the finest and most
fertile islands on the face of the globe into a region
fruitful only in crimes, and frightful with desola-
tion.
Such is the sad story of these independent powers
in St. Domingo. What future destiny awaits them,
no mortal eye can foresee. The prospect is, indeed,
a little eh'-ered by some wise measures lately pro-
ceeding from one of these chiefs. But, at present,
I think we must all concur in opinion, that the
reeotrnitinn of these powers by the 1'nitcd States, is
a question of serious and complicated policy, re-
(imriiig. at all times, the utmost consideration and
discretion in the government, and very unfit to be-
decided, at any time, by the courts of justice.
745-
589
COURT OF ERRORS, STATE OF NEW YOUK.
1816
Court be, and the same is hereby affirmed; and
that the defendant recover against the plaint-
iffs his double costs for his defense of the said
59O*] *writ of error, to be taxed, and that
the record of proceedings be remitted to the
Supreme Court, to the end that this judgment
be executed.1
A motion was made by the defendant in
error for interest on the judgment to be taxed,
by way of damages, under the 13th section of
the Act Concerning Costs.
Per ioiam Guriam. The allowance of inter-
est on the judgment of affirmance, by way of
damages, rests in the discretion of the court,
and where the cause of action, in the court
below; was a tort, it is not in the course to
allow interest. Interest is, therefore, denied;
1.— A writ of error was brought on the above judg-
ment, from the Supreme Court of the United States,
which was presented to this court after the tran-
script of the proceedings had been sent back to the
court below : and the following return to the writ
of error was made by this court : " State of New
York, ss. The President of the Senate, the Sena-
tors, Chancellor and Judges of the Supreme Court,
in the Court for the Trial of Impeachments and the
Correction of Errors, certify, and return to the
Supreme Court of the United States, that, before
the coming of their writ of error, the transcript of
the record in the cause, in the said writ of error
mentioned, together with the judgment of this
court thereon, and all things touching the same,
were duly remitted, in pursuance of the Statute in-
stituting this court, into the Supreme Court of Judi-
cature of this State, to the end that further proceed-
ings might be thereupon had, as well for execution
as otherwise, as might be agreeable to law and jus-
tice; and in which Supreme Court of Judicature,
the said judgment, and all other proceedings in the
716
but double costs are allowed to the defendant,
under the 14th section of the Act.
Affirming— Ante, 141.
Affirmed— 3 Wheat., 246.
What questions and objections not raised on appeal.
Explaiced— 2 Cow.. 21.
Cited in— 17 Johns., 472 ; 18 Johns., 558 ; 8 Cow.,
662: 2 Wend., 145, 165; 4 Wend., 179; 8 Wend., 227:
54 N. Y., 27; 8 Barb., 352; 5 How. Pr.. 324; 6 Abb.
Pr., 187 ; 3 Sand., 654 ; 3 Daly, 9 ; 1 Hilt., 543 ; 8 Leg.
Obs., 159 ; 1 Doug., 85.
Interest on judgment in action for tort not allowed.
Disapproved— 20 Wis., 611.
Distinguished— 22 Wend., 160.
Cited in— I Cow., 54 ; 2 Wend., 211 ; 43 How. Pr., 285.
Also cited in— 1 Wend , 469 ; 16 N. Y., 224 ; 12 How.
Pr., 55.
*** The remainder of the cases in error, for 1816,
will be found at the commencement of the next
volume.
said suit, now remain of record ; and as the same
are no longer before, or Iwithin the cognizance of
this court, this court is unable to make any other,
or further return to the said writ. All which is
humbly submitted."
In May Term, application was made to the Su-
preme Court, by the plaint ill' below, for leave to
take out an execution on the judgment, the remit ti-
tur from the Court of Errors having been filed with
the clerk of the Supreme Court : a motion was, at
the same time, made on the part of the defendant
below, for leave to annex the transcript of the rec-
ord to the writ of error from the Supreme Court of
the United States ; but no decision was made on the
subject ; the counsel for the parties agreeing that
the transcript of the record should be annexed to
the writ of error, so that the cause might be carried
up to the Supreme Court of the United States, re-
serving the question as to the regularity or propri-
ety of the proceeding, to be determined by that
court.
JOHNS. REP., 13.
[END OF THE CASES IN ERROR, 1816.]
REPORTS OF CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE,
AND IN THE
AND
THE CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK.
BY
CTOHCIN SOUST.
COUNSELOR AT LAW.
VOL. XIV.
JUDGES
OP THE
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW YORK
DURING THE TIME OF
THE FOURTEENTH VOLUME OF THESE REPORTS-
SMITH THOMPSON, Esq., Chief Justice.
AMBROSE SPENCER, Esq., Associate Justice.
WILLIAM W. VAN NESS, Esq., Associate Justice.
JOSEPH C. YATES, Esq., Associate Justice.
JONAS PLATT, Esq., Associate Justice.
MARTIN VAN BUREN, Esq., Attorney- General.
CASES ARGUED AND DETERMINED
IN THE
Court for the Trial of Impeachments
AND
CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK,
IN
MARCH AND APRIL, 1816.
MARY MANN, DANIEL D. TOMPKINS,
HENRY BREVOORT, AND JAMES VA-
R1AN, Appellant*,
v.
MICHAEL MANN, JR., ET AL., Responded.
Will— Construction of — Parol Evidence — The
Word " Moneys" Usually Means Cash —
Practice.
The intention of a testator must be collected from
the will itwlf.
Parol evidence is Inadmissible to explain, vary,
or enlarge the words of a will, except in the case
of a lati-nt ambiguity, or to rebut a resulting trust.
Where the testator bequeathed to his wife all the
rest, residue and remainder of the moneys belong-
ing to his estate at the time of his decease, it was
held that the word " moneys" must be taken in its
ordinary acceptation, and meant only "cash, "and
did not comprehend bonds, mortgages and other
choses in action : there being nothing in the will it-
self to show that the testator intended to use it in
that extended sense.
Nor were the declarations of the testator, or a
reference to the state of his property, admissible to
show a different intent.
A will Is to be so construed that all the parts of it
may be effectual and consistent ; and an ambiguity
apparent on the face of it cannot be removed by
parol proof.
Where a false or inapplicable description is an-
nexed to a subject, certain without the description,
it is to be rejected.
That construction will be most favored which
will prevent a total failure of a bequest, if specific :
but the full force of this rule does not apply to a
residuary clause.
Proofs are allowed to be read in equity, without
prejudice, subject to all just exceptions: but at
law improper evidence ought not to be allowed to
be produced.
Citations— Prec. in Ch.. KM ; 11 Johns., 218 ; 1 N.
R. L., 367.
DAVID MANN, late of the City of New
York, deceased, by his last will and test-
ament, made and published on or about the
9th of March. 1810. after directing hi* just
debts and funeral expenses to be paid, be-
queathed unto his neice. Mary Cornell, $1,000,
to be paid out of his personal estate ; he then
devised unto his wife, Mary Mann, in fee, the
JOHNS. REP., 14.
dwelling-house which he then occupied, and
six acres of land, situate fronting to the Bow-
ery road and Broadway, in the eighth ward
of the City of New York, together with two
other lots, in the said eighth ward, containing
an acre and a half : he also gave and be-
queathed unto his said wife, all the rest, resi-
due, and remainder of the moneys belonging
to his estate at the time of his decease ; and
also, his negro slaves, named, &c., and all his
household furniture, horses, farming stock,
utensils, and riding *chair; which several [*2
devises and bequests were to be in bar of ner
right of dower. He then bequeathed to his
niece Mary, the daughter of his brother Mich-
ael, $500, to be paid to her or to her lawful
issue, in case of her decease, out of the
moneys arising from the sale of the residue of
his real estate ; and in case of her death, be-
fore receiving the same, without lawful issue,
then to her brothers and sisters, equally to be
divided. The residue of his estate, both real
and personal, he devised and bequeathed to
the children of his brother Michael Mann (in-
cluding his said daughter Marv), and of his
late brot hers, George Mann and Matthias Mann,
both deceased, in fee, equally to be divided
among them ; and after empowering his execu-
trix and executors to sell and dispose of the
residue of his real estate, appointed the appel-
lants his executrix and executors.
The respondents, who are the children of the
testator's brothers, and the residuary devisees
and legatees under his will, filed their bill in
the court below, against the executrix and ex-
ecutors, for a discovery and account. The
bill charged, inter alia, that the testator, at the
time of his death, was possessed of a personal
estate of the value of $20,000. over and above
the moneys belonging to him, and beside his
household furniture, farming stock and uten-
sils and riding chair, and the money that
might be due from his brother Michael Mann,
consisting of promissory notes, bonds, mort-
gages, and other securities for money, and
COURT OP ERRORS, STATE OP NEW YORK.
1816
other outstanding debts ; and of slaves and
personal property of various descriptions, un-
known to the respondents ; and that the ap-
pellants, or some of them, had taken posses-
sion of the residuary personal estate, and con-
verted the same to their own use.
The appellants stated in their answers that
they caused an inventory to be made of the
goods, chattels and credits of the deceased,
which contains a true account of the personal
estate of the testator, except that the debt due
from Michael Mann to him, a mortgage to se-
cure the payment of one of the bonds men-
tioned in the inventory, his watch and wear-
ing apparel, and two small debts, were omitted
to be inserted ; that the goods and chattels
mentioned in the inventory, including the spe-
cific legacy to Mary Mann, amounted in value,
at the making thereof, to $1,968; the goods
and chattels not bequeathed to her amounted
in value to $526.50, or thereabouts ; the amount
due upon the several securities for the pay-
3*] ment *of money, including the interest
accrued thereon to the time of making the in-
ventory, amounted to $13,735.80 ; and the
ready money or cash, in the house of the tes-
tator, at his death, amounted to $500 ; that the
securities for the payment of money remained
in the hands of the appellant, Mary Mann,
with the assent of the other appellants ; and
believing the intent of the will to be that those
securities should be the property of Mary
Mann, and knowing from the declarations of
the testator, made to the appellants, Mary
Mann and Daniel D. Tompkins, that such was
his intent and meaning, they declined account-
ing with the respondents touching the said
securities ; that the appellant, Mary Mann,
had paid funeral expenses and debts to the
amount of $545.71 ; and that there remained
unpaid $195.15 or thereabouts ; that the lands
devised to Mary Mann, independent of the
dwelling-house and the barn and outhouses
appertaining thereto, would not rent for an
annual sum exceeding $170, even if laid out
into building lots and rented ; that the testa-
tor supported his family principally from the
income arising from his moneys at interest ;
and that the sum of $500, in his house at his
death, in cash, was received by him shortly
before his death, and was not, nor was any
part thereof, in his possession at the time of
making his will.
Replications having been filed to the an-
swers, several witnesses were examined on the
part of the appellants, to show the intention
of the testator to leave his securities for money
to his wife, apparent from his declarations,
previous to making his will ; and from the cir-
cumstances of his having principally support-
ed his family on the interest accruing from
these securities ; and of his having borrowed
money at various times, and taken up part of
the principal money of one of his mortgages,
for his family expenses ; and from the incon-
siderable annual value of the real property de-
vised to her.
On the 27th of September, 1815, the Chan-
cellor decreed that the parol evidence to con-
trol and explain the will of the testator was
wholly inadmissible ; that it must be read and
expounded by itself, and must operate upon
the personal estate of the testator as it existed
7»0
at the time of his decease ; and directed the
appellants to account before a master for all
bonds, mortgages, notes and choses in action
belonging to the testator at the time *of [*4
his death, to be charged with such sums as
they had received or as had been lost by their
neglect or default ; and to be credited for all
payments, charges and expenses justly charge-
able to the assets of the testator. And it was
further ordered, that, should any of the said
bonds, &c., remain uncollected and undis-
posed of in the hands of the appellants, they
should cause them to be collected, and pay
over the money to the complainants, accord-
ing to their respective interests, reserving the
question of costs, and all other questions, until
the coming in of the report. An appeal was
entered from this decree by the defendants in
the court below. For the reasons of the
Chancellor, seel Johns. Ch., 233-239.
Mr. Van Vechten, for the appellants. It is
contended that according to the true and just
construction of this will, considered by itself,
the bonds and mortgages passed to the appel-
lants. The rules in regard to the construction
of wills are, that they must and ought to be
construed liberally and benignly, not technic-
ally ; but the object, should be to ascertain
the meaning and intent of the party. Where
a doubt arises as to one part of the will, we
may resort to other parts to discover the in-
tent and meaning of the testator. To apply
these principles to the present case : here the
testator bequeathes to his wife all the rest,
residue and remainder of the moneys belong-
ing to his estate at the time of his decease.
Those parts of his will respecting the pay-
ment of his debts, and of the legacies to his
nieces, Mary Cornell and Mary Mann, show
that he intended that all his bonds and other
securities for money should go to his wife,
after the payment of his debts and the legacy
to Mary Cornell. The legacy to Mary Mann
was charged upon his real estate ; which
shows his design to render the bequest of
the personal property ample and beneficial
for the advantage of the legatee ; and the
debts being more than sufficient to absorb the
cash on hand, and the legacy to Mary Cornell
being payable out of the personal fund, the
residuary legacy to the testator's wife must ex-
tend to all the residue of the personal proper-
ty ; otherwise, there will be nothing to which
it can apply. The Chancellor admits, in his
opinion in the court below, that bank notes,
or a deposit with a banker, will pass under
the term " money." What is a bank note but
a chose in action — a promise to pay money to
the bearer ? What right does a deposit of
money in a bank confer *but that of [*5
bringing an action, if it be not paid to the
order of the depositor ? It is a debt due from
the depositary. Surely, then, it must be im-
material whether this obligation, this promis-
sory note, be a security made in one manner
for one purpose, or in a different form and for
another object ; whether it be received from a
private individual or an incorporated company.
The Chancellor admits, too, that a lease for
years will pass under a devise of all the testa-
tor's lands, if he had no fee simple estate ;
that is, that we may include in the real estate
a chattel interest, an interest of a distinct
JOHNS. REP.. 14.
1816
MANN v. MANN ET AL.
specie«F to prevent the devise from being inef-
fectual and nugatory With still more reason,
according to this admission, may we urge that
the words in the will ought to be extended
from property of one description, but of the
same nature and kind to property of another —
from a chattel in possession to a chattel in ac-
tion ; for, unless this construction be adopted,
the bequest will be altogether inoperative.
But if the fair interpretation of the will be
against us, still there can be no doubt as to the
intention of the testator ; the testimony shows
that he did not intend to deprive his wife of
the most productive part of his property, and
which was essentially necessary for her main-
tenance. That the evidence was admissible
for this purpose, it next remains to be proved.
Here there is a doubt arising, dehor» the will,
as to what passed by the legacy ; this is a la-
tent ambiguity, and as such, parol evidence
is admissible to establish the intent of the tes-
tator. (5 Co., 63 ; Rob. on Frauds, 15, 16, 17.)
It is a settled doctrine that parol evidence may
be admitted to explain a latent ambiguity of
the testator, in disposing of his personal prop-
erty, and to ascertain the person to whom, or
the" fund out of which the legacy is to be paid.
(Free. Ch., 229 ; 2 P. Wms., 135, 140 ; 2 Vern..
517, 593 ; 2 Ves.. 276; 1 Bro. Ch., 472, 474 ; 3
Bro. Ch., 468; 1 Dick., 360.) In Beaumont v.
Fell, 2 P. Wms.. 141, Clarke v. Norru, 3 Ves.,
382. and Tnomat v. Thoma*. 6 T. R., 671,
parol evidence was admitted to show a mis-
take in the name cf the legatee or devisee. In
the last-cited case, Lord Kenyon conceded
that declarations of the testator, at the time of
making the will, were admissible in evidence.
In Lord WalpoU v. Lord Lholtnondely, 7 T. R.,
144, Lord Kenyon says, that, " where extrinsic
circumstances, let in by parol testimony, .ex-
plaining the situation of the testator's family,
and of the legatees, introduce a doubt of the
tot at or 's intention, the same kind of evidence
that introduced the doubt may be admitted to
explain it." In Drew v. Davixon, 6 Ves., 397.
the Chancellor admits that parol evidence
<$*] *ought to be received to explain what
is parcel of the premises granted or conveyed.
Mettrs. B. Robinson and 0<ikley. contra. The
words of a will must be construed according
to their legal signification, unless something
appears on the face of the will to render a mere
popular construction necessary. (1 Bro. Ch.,
127.) The term "money," in its strict legal
acceptation, comprises only specie, though, in
common parlance, it includes bank notes ; and
the furthest that the decisions have ever gone
has been to extend it to bank notes, and
money in the hands of a banker ; but to bonds
and other securities it has never been applied,
for these are not money, but the evidences of
debts. (Dom. Civ. Law, b, 4, tit. 2, sec. 4 ;
Arab.. 69 ; 3 Atk., 232 ; 1 Ves.. 273 ; 15 Ves.,
824 ; God. Orph. Leg., 417, 418.) In Fleming
v. Brook, 1 8ch. & Lef., 818, it was held, on
the authority of Moor v. Moor, 1 Bro. Ch.,
127, that a legacy of all the testator's prop-
erty, in a certain house, except a particular
bond, did not, notwithstanding the exception,
pass another bond and other securities, though
bank notes would have passed, they being
guari cash. The words " belonging to my es-
tate," which the testator has added to the leg-
JOHNS. REP., 14.
acy of his moneys, imply nothing more than
a designation of his property in the thing be-
queathed. The will itself, on the face of it,
presents no uncertainty as to the intention of
the testator, and the case shows that there was
a subject actually existing upon which the leg-
acy could operate. The respondents are heirs
t law, therefore to be favored, and an ample
provision was made for the wife, exclusive of
the specific legacy of personal property and
of the realty.
It is a general rule, that parol evidence is
inadmissible to explain, vary or contradict
written instruments. (Rob. on Frauds, 10.)
To this rule there are very few exceptions, the
principal of which is the case of a latent am
biguity. A latent ambiguity is when the ob-
scurity which it is sought to remove, arises
from extrinsic circumstances (Rob. on Frauds,
15, 20, n. 8 ; 2 Vern., 598 ; 5 Yea., 79 ; 1 Ves..
281 ; 2 Atk., 239); as where there are two per-
sons, or two things, to each of which the de-
scription will equally apply, there we may re-
sort to parol proof to explain the doubt. And
so, where the will itself furnishes occasion for
doubt, an inquiry into the situation of the tes-
tator, or his property, has been allowed (1 Bro.
Ch., 472 ; 2 Atk., 373 : 3 Ves., 808) ; or where
there is a mistake in the name of the legatee,
no person of the name mentioned in the will
coming to claim the legacy (Ambl., 175 ; 8 T.
R., 678; 1 P. Wms., 420), there the evidence
is admitted in order to prevent the will from
being inoperative, or, by showing the real
intention to rebut or support *a legal pre- [*7
sumption. (7 Ves., 229 ; 5 Ves., 79 ; 2 Ves.,
28 ; 2 P. Wms., 158.) But it is inadmissible
to contradict the words of the will (2 Ve-.,
216 ; Rob. on Frauds, 12), or to supply an
omission of the testator (2 Vern., 624 ; 1 Bro.
Ch. Cas., 84; 2 Freem., 62 ; Str., 1261 ; 11
Johns., 215) ; nor is any regard to be had to
expressions before or after making of the will,
which, as was said in Strode v. /<'>/.-.*<', 2 Vern.,
634, possibly might be used, by the testator,
on purpose to conceal or disguise what he was
doing, or to keep the family quiet, or for other
secret motives and inducements. The present
case comes within none of the exceptions to
the general rule. In Broicn v. Selieyn, Cas.
temp. Talb., 240, the parol evidence was de-
cisive, that the testator intended that a bond
made to him by one of his' two executors and
residuary legatees should be extinguished ;
but that the attorney who drew the will neg-
lected to mention it, supposing that it would
be released by the obligor's being appointed
executor. Lord Talbot, however, held that
the parol evidence was inadmissible, and that,
under the general residuary clause, the obligor
was accountable to his co-legatee for a moiety
of the sum due. This is a very strong case to
show the jealousy of courts against the intro-
duction of parol evidence ; it was not permit-
ted to the obligor to repel an equitable pre-
sumption, by. at the same time, supporting a
legal presumption in bis favor. So, in Jack-
ion v. S*#, 11 Johns., 205, the evidence of the
counsel who drew the will, to show a mistake
on his part, and thus extend the devise to
other land, was rejected ; and it was there held
that where the intention is clear and certain,
and no repugnancy appears between the dif-
751
COURT OF ERRORS, STATE OF NEW YORK.
1816
ferent parts of the will, it is improper to re-
sort to other parts to ascertain the intention of
the testator. But if there be a latent ambigu-
ity, still the parol evidence is inadmissible, be-
cause the will may have a practical operation
without it. (1 Ves., 415; 1 Eq. Cas. Abr.,
230, pi. 2.) In Dobaon v. Waterman, 3 Ves.,
308,' n. , where the testator gave £700 out of* and not annuities to the amount of the sums
his bank stock, and it appeared that he had no
bank stock, but was possessed of South Sea
stock, the legacy was established out of the
latter fund ; otherwise the will would have
been ineffectual, having no subject upon which
to act ; besides, in that case, the legacy was cer-
tain, and of a specific sum, whereas here it is
uncertain, of the residuum of his moneys,
which must necessarily always be contingent.
In Doe v. Brown, 11 East, 441, and in Jack-
son v. Sill, before cited, the testator had prop-
erty answering to the description in the will,
and therefore, evidence to extend the devise
was rejected ; and this doctrine is fully con-
firmed by the case of Doe v. Oxenden, 3
Taunt., 147. Mansfield, Ch. J., alluding to
8*] several of the cases in which *parol evi-
dence was received, observes : " It is not ex-
] several of the cases in which *parol evi-
ice was received, observes : " It is not ex-
pressly said in any of these cases that it was
necessary to receive the evidence, in order to
give effect to the will, which would not oper-
ate without such evidence. But although this
is not said, yet the rule seems to hold. It will
be found that the will would have had no op-
eration, unless the evidence had been received.
Here, without the evidence, the will has an
effective operation.
Mr. T. A. Emmet, in reply. The testator
himself has shown the construction which he
put upon the word " moneys" ; for, if he did
not intend to leave his wife the bonds and
mortgages, he will have left her nothing pro-
ductive of income. The word "moneys," in
its general acceptation, is used only to express
choses in action ; it is not the plural of
"money," which is a collective term, and
therefore, needs no plural. If such be not
the sense of the term, still the case shows that
the testator has misdescribed the subject be-
queathed ; for, unless it include the bonds
and mortgages, there will be nothing upon
which the legacy can operate.
But the intention of the testator is put be-
yond doubt by the parol evidence ; and the
cases show that there was such an ambiguity as
to authorize the admission of extrinsic proof.
(1 Ves., Jr., 259 ; 3 Ves., 903 n. • 2 Vern., 503.)
In Selwood v. Mildmay, 3 Ves. , 306, the testa-
tor gave part of his bank annuities to his wife,
-and evidence was admitted that he had no
such stock at the date of the will, having pre-
viously sold it and invested in other stock ;
and the cause of the mistake being shown, the
legacy was established out of the testator's
personal property. " I h'ave no difficulty,"
says the Master of the Rolls, " in saying that
a latent ambiguity arises from the testator's
circumstances not being sufficient to meet the
legacy he had given. This is a provision for
his wife which makes it a strong case. The
court would struggle in opposition to a con-
struction against the wife upon a mere mis-
take. There is no ambiguity upon the will.
Then the question is, whether the court is not
bound, by every rule, to admit evidence where
752
there is no ambiguity upon the will." Fon-
nereau v. Poyntz, 1 Bro. Ch. Cas., 472, previ-
ously decided, is strongly to the same effect.
There specific sums in stock were given to the
legatees, and an inquiry into the state of the
property of the testatrix was permitted, to
show that she meant gross sums of money,
named. The Chancellor seemed to think, that
although *the words of immediate de- [*9
scription contained no ambiguity, but were
adapted to express an annual sum, yet that
other parts of the will, and the context, in
general, furnished ground of argument and
a Species of doubt, which warranted the ad-
mission of collateral evidence to explain it ;
and that the statement of the fortune of the
testatrix was applicable to the purpose of such
explanation. Upon this case Roberts (On
Frauds, 33,) observes that it "supplies an ad-
ditional proposition in the theory of evidence,
viz : that where there is neither ambiguitaa
patens nor latens in the particular passage in
controversy, but the words are clear, and
there is a proper subject for their application ;
yet, if there is another subject to which this
application is less direct, and the context of
the will points to this latter construction, the
door is open to the admission of exterior evi-
dence, to second and confirm- this collective
inference against the literal expression of the
particular clause or sentence." In the present
case the will, upon the face of it, raises at
least a doubt as to the application of the term
"moneys" ; and it is not universally true that
evidence may not be admitted to explain a
patent ambiguity in the will. (1 Ves., Jr., 148 ;
Rob. on Frauds, 26.) In Ulrick v. Litchfield,
2 Atk., 372, there was an ambiguity which
was" allowed to be explained by parol proof.
Declarations of the testator, before, at, or
after the time of making his will, are admis-
sible to explain his intention. (Rob. on Frauds,
38, n. 14.) Extrinsic evidence may be admit-
ted to explain the intention of the testator so
as to raise a case of election. (Id., 42.)
THOMPSON, Ch. J. The decision now to be
made does not depend so much upon ascer-
taining and defining the rules and principles
of law involved in the discussion, as in a just
and correct application of those rules and
principles to the case before us. That the in-
tention of the testator is to be sought after,
and carried into effect ; that such intention is
to be collected from the will itself, unaided by
any extrinsic evidence, except in the case of a
latent ambiguity, or to rebut a resulting trust ;
and that no parol evidence is admissible to
contradict, enlarge, or vary the words of a
will, are general rules so well settled that they
may be assumed as elementary principles of
law. A correct application of them to this
case will, in my judgment, lead to an affirm-
ance of the decree.
The particular clause in the will of David
Mann, upon which the question turns, is in
these words : " I do give and bequeath unto
*my said wife, Mary Mann, all the rest, [*1O
residue and remainder of the moneys belong-
ing to my estate at the the time of my decease."
Whether, under this bequest, Mary Mann is
entitled to all the bonds, mortgages, notes, and
JOHNS. REP., 14.
1816
MANN v. MANN KT AL.
10
choses in action, belonging to the estate of the
testator, or only to the cash left, is the ques-
tion between the parties. It was not pretended
by the appellants' counsel that there was any
ambiguity or uncertainty in the term "mon-
eys." Indeed, such a pretense would have
been utterly inconsistent with the claim to let
in pan 'i evidence ; for if there was any such
uncertainty, it would have been a patent am-
biguity, which is, confessedly, not explainable
by extrinsic evidence. But it was contended
that the qualifications accompanying and su-
peradded to the term "moneys," either showed
that the testator intended to use it in a sense
different from the ordinary or legal accepta-
tion, or referred to a fund other than that cre-
ated by his cash.
In examining into the intention of a testa-
tor, in any particular clause of his will, it is,
no doubt, proper to gather all the light that
can be thrown upon it, by comparing and ex-
plaining it with other parts of the will, so as to
make the whole consistent, and all the provis-
ions if possible to harmonize together. But
when we are collecting the intention of the
testator from the will itself, we ought to guard
against the influence which the extrinsic evi-
dence offered may have upon the mind, if such
evidence was inadmissible. In courts of
equity, those parol proofs are generally permit-
ted to be read without prejudice, subject to all
just exceptions. But at law, where the jury
might, and probably would be influenced by the
admission of improper evidence, the production
of it will not be allowed. (Free, in Ch., 104.)
Let us, then, look at the will, perse, as if no pa-
rol evidence had been offered, and see whether
a doubt could exist as to the construction of this
will. If we had never heard that the testator
had money out at interest upon bonds and
mortgages, could it enter into the mind of any
man, upon looking at the clause in the will
under consideration, that "moneys" meant
anything more than " cash "; or that it would
extend to choses in action? It has, however,
been said that the words " rest, residue and
remainder," are relative terms, referring to an
antecedent; and which antecedent must have
been a fund, not coming within the ordinary
acceptation of the term " moneys." That
they are relative terms is undoubtebly true;
11*] but the conclusion "attempted to be
drawn from this by no means follows. The
testator, previous to the clause in question, had
directed all bis just debts and funeral charges
to be paid, and had bequeathed to his niece
Mary Cornell $1,000. His debts and funeral
charges are not directed to be paid out of any
particular fund. The moneys left by him
would be the fit and proper fund to be resorted
to for the purpose, and the one most likely to be
in view by the testator, especially as the funeral
expenses would require an immediate expen-
diture. The words " rest, residue and remain-
der " are, therefore, satisfied, by referring them
to the money as the fund. But the legacy to
Mary Cornell is expressly directed to be paid
out of his personal estate. And it would be a
very strained interpretation to say that the tes-
tator used the words "personal estate " in
the same sense as the term " moneys "; and,
unless he did, this legacy could not have been
intended to be charged upon the money fund.
JOHNS. REP.. 14. N. Y. R., 5.
| His charging this legacy upon the personal
i estate generally, shows that when he used the
i word " moneys " he meant and intended to use
i it in its usual and ordinary acceptation. Sup-
| pose the testator had left cash sufficient to pay
, this legacy, over and above his debts and fu-
neral expenses; and had left other personal es-
tate sufficient to pay the legacy; can there be
a doubt but that the money would have been
considered as a specific bequest, and the legacy
chargeable upon the other part of the persona*!
estate? The words " rest, residue and remain-
der " are, therefore, satisfied by referring them
to his cash, the natural fund for payment of
debts and funeral expenses, where no specific
directions are given.
There is nothing whatever in the will requir-
ing, or even affording a rational conclusion
that the legacy to Mary Cornell was intended
to be charged upon the cash fund. Nor has
the testator, in any part of his will, used the
term " moneys " in any other than its ordinary
and appropriate sense. Thus, in relation to
his demand against his brother Michael, be dis-
charges him from the payment of all moneys
which he shall owe him at the time of his de-
cease. This necessarily and unavoidably refers
to an outstanding debt. When we speak of the
payment of money which one owes, it is impos-
sible to misunderstand or to give any other in-
terpretation to the expression, than as having
reference to a debt due. So, where he speaks
of the moneys arising from the sale of his real
and personal *property. he uses the term [*lli
in its ordinary acceptation. Again; he author
izes his executors to sell his real estate for the
most moneys that can be got for the same,
which is as apt and appropriate a use of the
term as could be made. These are all the in-
stances in which the word "moneys" occurs in
the will, and in no one of them is there an
ambiguous or unusual meaning attached to it;
clearly showing that the testator used the term
understandingly, and not in any doubtful
sense. If so. it is utterly inconsistent with the
sound and settled rules of interpretation to give
to this term a broader operation than its legal
or popular meaning requires.
It was urged, however, in argument, that
the qualification superudded to the term
"moneys" namely: "belonging to my estate."
shows that the testator intended to use it in a
more enlarged sense than its ordinary accepta-
tion; and showing, also, a misdescription of
the fund referred to. If the description was
inapplicable to the subject, or thing bequeat hed,
there would be force in the argument; but
that is not the fact. It is just as fit and proper
to say the moneys (meaning cash) belonging to
my estate, as to say the bonds ahd mortgages
belonging to my estate. The description is
equally applicable to both. The one belonged
to his estate as much as the other. Indeed, if
the description was false and inapplicable to
the subject, the settled rule of construction re-
quires a rejection of the description, when the
thing devised or bequeathed is certain. (11
Johns., 218.) But there is no necessity of ap-
plying this rule. There is no misdescription:
the moneys did belong to his estate; so that,
although the description may be surplusage, it
I is true in point of fact. Is it not reasonable to
i presume that if the testator had intended, by
48 753
12
COURT OP ERRORS, STATE OF NEW YORK.
1816
this residuary bequest, anything more than his
cash, he would have used some more appro-
priate language? The whole will shows that
he understood the force and meaning of terms;
and if he had intended, when he made his will,
to extend this bequest to his bonds, mortgages,
notes and cho.ses in action, it is inconceivable
my moneys
would have been the natural and obvious
phraseology.
There is no force in the criticisms which
have been made upon the word "moneys", as
beine of more extensive signification than
money. In the statute book, and in common
13*] parlance, they *are used indiscriminately,
as conveying the same sense and meaning.
It was very much pressed on the argument,
that unless the word "moneys" was extended
beyond the cash fund, there would be a failure
of the bequest. And in order to give much
force to this argument, it was assumed that
the $1,000 legacy to Mary Cornell was charged
upon the fund of which the testator gave his
widow the rest, residue and remainder. But
I have shown that that is not the case. The
legacy to Mary Cornell is expressly charged
upon the personal estate generally. It is true
that where there is a specific legacy charged
upon a fund of any way doubtful description,
that construction will be most favored which
will prevent a total failure of the bequest.
This is the leading principle which runs
through the cases cited upon this point oh the
argument. But the principle does not apply
here in its full force. There is no specific sum
bequeathed to the widow by this clause in the
will, and there is nothing from which it can be
determined how much he intended to give her.
Where there is a specific sum named, the ex-
tent of the testator's bounty is defined and his
will known, and it is the duty of courts to
search for a construction that will carry it into
effect. A general residuary clause is very
often thrown into a will without much calcu-
lation as to its being very beneficial. It is
certainly a pretty far-fetched inference, that
this was to be the fund for the support and
maintenance of the widow. I can discover
nothing in the will intimating such an object,
particularly by this clause, especially as such
very ample provision had been made for her in
the clauses immediately preceding. There is
no more reason to conclude that the moneys
were intended for her support, than for the
purpose of building houses upon the lots he
had given her. If all his outstanding debts
passed under this clause to his widow, then she
would take all the personal estate; for the
specific legacies to her of his household furni-
ture, farming stock, &c., swallowed up all the
residue of his personal estate; and the subse-
quent clause, giving to the children of his three
brothers the rest, residue and remainder of his
estates, real and personal, would, so far as re-
spected the personal estate, be nugatory. It is
not reasonable to presume . that if he had
disposed of all his personal estate before, he
would have again included it in this devise, and-
mentioned, so emphatically, as one of his
1-1-*] estates. It is one of the settled *rules
in the construction of wills, so to interpret
each part as to give effect to the whole, when
it can be done, which would not be the case if
the widow is to take all the outstanding debts.
The residuary bequest of his personal estate
would be senseless, having nothing to operate
upon, and the testator knowing it to have
been previously disposed of.
Construing the will, therefore, by itself, I
can see no ground for extending the term
"moneys" to all the debts due to the testator;
and it must have this extent, if at all reaching
a chose in action. The term is, if possible, less
applicable to a bond than to an account, espe-
cially if it was for money lent. And, indeed,
if we go beyond the legal or popular significa-
tion of mone3rs, it must be extended to all
claims sounding in contract.
I shall very briefly notice the question as to
the admissibility of the parol evidence. This
is, in a great measure, involved in the con-
sideration of the other question. There is,
certainly, no resulting trust to be rebutted, so
as to let in parol evidence on this ground; and
I have endeavored to show that there is no
latent ambiguity calling for explanation by ex-
trinsic evidence. The testator has used plain,
intelligible and appropriate terms. By apply-
ing the provisions in his will to the situation
of his property at the time of his death, them
is nothing from which it can be inferred that
there is a misdescription of the fund referred
to in this clause in the will. Every provision
in it is satisfied by giving to the words their
usual and ordinary signification. To admit
the parol evidence offered of. the declarations
of the testator, would be a direct infringement
of what has been, for centuries, considered a
settled rule, that no parol evidence can be re-
ceived to supply, vary, contradict or enlarge
the words in a will, except in the cases men
tioued, of which the present is not one. 1
agree with Lord Ellenborough, that it would
be going farther than any case I am aware of,
and a dangerous precedent, to admit evidence
of intent, from extraneous circumstances, to
extend plain and unequivocal words in a will.
The inquiry into the situation of the testa-
tor's property (admitting we were authorized
to notice it) would not, in any manner, explain
his intention with respect to hischOses inaction.
Such intention would still be left to be collected
from the will itself. To receive the verbal
declarations of the testator to contradict or
enlarge the plain and obvious import of his-
written language, would not only be repugnant
to the most sound *and salutary rules of [*lfr
law, and alarming precedent, but would in-
fringe upon the spirit and policy of the Statute,
which declares that no will in writing con-
cerning any personal estate shall be repealed,
or any part thereof revoked or altered by any
words or will by word of mouth only. (1 N.
R. L.. 867.) I am, accordingly, of opinion that
the decree ought to be affirmed.
This being the opinion of a majority of the
court ', it was thereupon ordered adjudged and
decreed that the decree of the Court of Chan-
cery, in this cause, be affirmed, and that the
appellants pay to (lie respondents their costs to
be taxed, and that the record be remitted, &c.
Judgment of affirmance.
1.— Six of the Senators only, dissenting1.
JOHNS. REP., 14.
1816
PARKHCKST ET AL. v. VAN COBTLAJJD.
15
Cited in— 14 Johns.. 40 ; 2 Sand Ch., 422 ; 43 N. Y.,
443; 10 Barb., Hi; 14 Barb.. 48; 16 Abb. N. 8., 204; 2
Bradf.. 422; 1 Tuck.. 442; 30 N. Y. L.. 4«8.
as I can obtain a release from Mr. Clarke's
neire for *aid lot, to give them the preference,
either to purchase or take a lease for said lot
April the 7th, 1797. August. V. Cortland."
That, afterwards, for the further security of
the appellants, and to induce them to make
permanent improvements, the respondent
agreed, that in case of a sale of the land under
such agreement, the price should be the actual
value at the time of the contract (superadding
interest up to the time of the conveyance), or
the value at the time of the conveyance, com-
puted as wild and unimproved land, at the
election of the appellants, the sale to be ou as
liberal credit as the appellants could ask, on
payment of interest annually; and in case of a
lease of the premises, it should be in fee. at
the usual and customary rents of the country.
That upon the making of the contract, the ap-
pellants entered upon the possession, and com-
menced the improvement of the premises; and
have continued thereon to this time, having
cleared one hundred acres of land, set out an
orchard of one hundred apple and other fruit
trees, erected two frame houses, a barn and
sheds, at an expenditure of about $800 That
a partition had been made, and that the appel-
lants applied to the respondent for a perform-
ance of the contract, bv a sale or loaso of the
Statute of Frauds. It was held that the appellants Dremises but W«TP infni w«T'fl,o
having gone on the land and made improvements,11 J68; ,ut were ""formed that some new
this was a part performance, and took the case out c i>stacle uau arisen among the claimants; the
of the Statute; that, although the memorandum respondent, at the same time recoirnizine his
wus in itself uncertain, yet, as a part performance nhlio-utinn ninl,.r tho ««».>
was made the basis of tile claim to a stifle execu- C JS™i underllthe contract, and strongly
tion of the agreement, parol evidence might be | assuring the appellants that he would perform
connected with the memorandum for the purpose 1 it as soon as he should be enabled so to do
of making out the contract: and there being satis- That the respondent proposed to the occuoants
factory evidence of an agreement, independently _* i.._ •__ " . ll
of the memorandum, and the conduct of the re-
8|>oi)dent being a fraud on the appellants, a specific
performance was decreed.
JOHN PARKHURST. GEORGE W. FRED
ERICK PAHKHURST, AND ABEL PARK-
HURST. Appellant*.
t.
AUGUSTUS VAN CORTLAND, Retpondent.
Statute of Fraud* — Part Performance Take»
COM Oat of— Specific Performance — Agree-
ment to Sell or Leate Lands — Ecidence — Parol
Memorandum.
Bill for a specific perforraanoc of an agreement
to sell or lease land. The appellants had entered
upon the land under an iissitrnmriit of a license
given by the respondent to occupy and improve
the land: they afterwards surrendered that license
to the respondent, who gave them a written memo-
randum authorizing1 them to possess the html, and*
promising to give them the preference to purchase
or lease the land. It was proved that, at various
times, the respondent had encouraged the appel-
lants to improve and build on the land, by assur-
ances that no advantage should be taken of their
labor; and that when his title was perfected by a
partition of the land, they should have a lease in
fee. or a deed at the rate wild lands were selling.
The respondent, in bis answer, denied any other
agreement than the memorandum, and relied on the
Citations -3 Ves.. Jr., 712, 320: 1 Ves., Jr., 333; 3
Bro. Ch.. 149 ; 1 Sch. & Lef ., 37. 73. 22 : Rob. on Frauds,
130, 131 ; 2 Sch. & Lef., 552. 347; 12 Ves,, Jr., 4fl«: 1
PI.. 19, 2o5; Gilb. For. Uomanuin, 218; 11 Ves., Jr.,
240; IBro. C. C., »4; 1 Fonbl. Eq., 181; 1 Abr. Eq.
Cas., 875 ; 2 Johns., 589 ; 11 Johns., 220.
IN the month of January, 1809, the appel-
lants filed a bill in the court l>elow against
the respondent, wherein they alleged that in
of his land, in the patent, to take short IcotM,
at the expiration of which the subsisting obsta-
cle to a disposition of the land would be re-
moved, to which the appellants objected that
the measure might prejudice the original con-
i«ju» !•>! ; _ J-M-II. at, lA-i., «>Jw, 0*1 , i- v its* ur-t *w i * t^.,,.t ... . «* u • i * »
Atk., LJ; 14 Johns.. 1; a Johns.,560.5«l. 5W,.v»; Mitf. tract- uP°n wb'ch the respondent renewed his
assurances to perform the contract as soon as
he should be enabled so to do. That upon
these assurances, G. W. F- Parkhurst, one of
the appellants, took a lease of the premises,
except ninety acres and one fourth (before
leased to John Cotter), from the respondent's
certain lands in the western country, who con-
sented to sell or lease the same to the appellants,
but, on account of their being undivided, could
not then perfect the contract; but made and
delivered to the appellants, for their security,
the following memorandum: "Messieurs John
Parkhurst, Frederick Parkhurst, and Abel
1O*J *Parkhurst, have applied to me for
leave to possess my lot No. 4 , in the second
allotment of Oriskany patent, which contains,
by the late James Cockburn's survey, seven
hundred and forty acres. I have, accordingly,
given them leave, and promised them, as soon
NOTB.— Statute of fraud* — Part performance—
Specific performance.
OnirtM »f t'luitu wiU decree a *oeclHr. performance
of a parol contract to convey where there has been
payment or part payment of the purchase money
anil a sunvndcr or »MVW«--|'>M to tin- purchuser.
Phillip* v. Tliomni -it. , .1 ,.,,- Ch.. 131; Itv.m v.
|M\.:;».V Y..:;i:. L,«wrj ir. r • w. . Ifctrb. Ch., 413;
April, 1797. they applied to the respondent for attorney, for three years, at an annual rent of
$80 ; at the same time disclosing to the attorney
the subsisting contract; *and in accepting [* 1 7
the lease, he was finally influenced in no small
degree by a letter from the respondent to his
attorney. In this letter, dated February 26.
1803, which was an exhibit in the cause, the re-
spondent says: "in order, therefore, to enable
me to give a good title to those that I may be
disposed to sell to, I have drawn and delivered
to Mr. Benjamin's son, who at present is
Clarke's agent here, a release for the lots I
have, and mentioned in the ticket I retained,
which I am informed he sent to Europe to be
executed, nnd will, probably, be here in the
course of a few months, when I shall determine
either to sell or give a permanent lease. In the
meantime, I wish you, by virtue of the in-
closed power, to convene the occupiers or
powessors of my lots, and inform them that it
is my desire they respectively take a lease for
Murray v. Jayno. << IJarb., 0IJ; w.-tmorc v. Whit*-, j three years, under such moderate rent as you
^hy^kw^^ -d P-^ the taxe/for
25 Iif. 114: Bowser v. Cravener. W Pa. St., 132; 3j WUli uev 8ua" possess, and covenant to sur-
Washb. Heal Prop., 235. | render the same to me at the expiration of said
JOHNS. RKP., 14.
17
COURT OF ERHORS, STATE OF NEW YORK.
1816
term." The attorney delivered a copy of this
letter to G. W. F. Parkhurst. That the re-
spondent had since recognized the original
contract, and renewed his assurances to fulfill
it; and that, about twenty months after the ex-
piration of the lease, the respondent demanded
a surrender of the premises, upon the penalty
,of paying double rent, declaring in and by a
notice to quit, that the appellants should never,
by his consent, occupy any part of the prem-
ises; against which the appellants, by letter,
remonstrated, and insisted on their rights under
the contract; but the respondent, persisting in
his oppressive proceedings, had instituted
an action of ejectment to recover the premises,
&c. The bill concluded with a prayer for
specific relief, or in such other, way as might
be agreeable to equity.
The respondent answered that the appellants,
having taken possession of the premises, in or
before the year 1796, without his consent, about
the 7th of 'April, 1797, applied to the respond-
ent for lot No. 4, who, after informing them
that he would not sell or lease the lot, for want
of a partition, did, to protect the lot, make and
deliver to them the memorandum set forth in
the bill. The respondent denied that he un-
derstood that the lease to be given was to be in
fee, or for any determinate period, at the cus-
tomary rents; nor did he agree as to the price
of the land, or make any agreement other than
what is contained in the memorandum. He
18*] alleged that the appellants Centered on
the land before they had obtained his consent,
and had been compensated for their improve-
ments by the profits; and he denied that he
had given them the assurances mentioned in
the bill, or that his letter to his attorney was
shown to them by his authority, or that he had
recognized the memorandum, ov given assur-
ances of a permanent lease, since giving the
lease for three years. He admitted the pro-
ceedings as stated in the bill, to remove the
appellants from the land; and that a partition
with George Clarke was completed in June,
1806, and that by the final division of lot No.
4, only subdivision lots 5, 6 and 7, containing
two hundred and ninety-one acres, and a moiety
of lots 2, 3 and 8, containing two huridred and
fifty acres and a fourth, fell to his share. The
respondent, in his answer, claimed the benefit
of the Statute of Frauds, as if it had been
pleaded.
Benjamin Lawrence, a witness, deposed that
on the 8th of July, 1793, the respondent gave
him a written contract authorizing him to oc-
cupy and improve great lot No. 4; which con-
tract, in October in the same year, he assigned
to one of the appellants and Simeon Parkhurst,
for the Parkhurst family. That in the next
April, the appellants settled on the lot and
commenced improvements; and in the ensuing
December the witness informed the respondent
of his assignment to the appellants, and of their
settlement on the land. That Simeon Park-
hurst, who was present, exhibited the contract
to the respondent, and asked how long before
he would give better security; to which the
respondent replied that he would give them a
good title as soon as he could obtain a release
from Mr, Clarke's heirs, either by a durable
lease, on good terms, or sell the lot to them, as
they chose. That Parkhurst preferred a lease,
756
and that the respondent said that he was not
in want of money, but only annual interest.
That Parkhurst informed the respondent that
they hesitated in erecting a barn and other
buildings, on account of the security for the
land not being satisfactory; to which the re-
spondent replied that they might go on and
occupy the lot as if it were their own, and no
advantage should be taken of their labor; that
they should have the lot as wild land was go-
ing in the country at the time he should be
able to give a title. The witness was present
when the memorandum set forth in the bill
was given, and the former license surrendered
to the respondent, at which time the respond-
ent renewed his engagement to sell or lease the
land to the appellants as *soon as he [*19
should obtain a release from Clarke, as land
was going at the time he should be able to pro-
cure the title, and would take no advantage of
their labor. The appellants being reluctant to
erect buildings, and make valuable improve-
ments in the present state of the title, the re-
spondent said that they might go on as if the
land were their own; adding, that the only
obstacle to a title then was, Mr. Clarke's heirs
not being of age. The respondent also stated
that the rest of the occupants should be treated
in the same manner as the appellants.
The statements of the preceding witness
were confirmed by Simeon Parkhurst, who
had transferred his interest in the contract to
the appellants. In the winter of 1803 this wit-
ness was present at a conversation between the
attorney of the respondent, and the appellant,
G. W. F. Parkhurst, relative to a three years'
lease; the latter objected that such lease might
prejudice the former contract; to which the
attorney replied that it would not affect the
contract under the circumstances, and pro-
duced the respondent's letter to him, and gave
a copy of it to Parkhurst. Before the lease
was taken, the appellants employed the witness
to go to the respondent and ascertain his object
in requiring such lease; to which, when stated,
the respondent replied that he owned the land,
with other relatives, and his object was to
make a division, and such lease should not, in
any degree, injure the appellants; that if they
refused the lease, he should dispossess them;
adding that the appellants should have a lease
or deed, according to the former promise, and
that he expected to do it before the short lease
expired. Richard M. Harrison, another wit-
ness, confirmed what had been deposed by
Parkhurst, in relation to this last conversation,
in which, according to this witness, the re-
spondent said that he would, when the partition
was made, sell the farm as wild lands were
selling; and that if the appellants expected to
be well used, they must take a lease from, his
agent.
John Williams testified that in a conversation
with the respondent in 1796, the latter request-
ed the witness to inform the appellants that he
wished them to continue and occupy the hind
as if it were their own, and to make improve-
ments and erect buildings, but not to destroy
any more timber than was absolutely necessary
for the use of the farm; and as soon as he
could settle with Mr. Clarke, he would give
them deeds or leases, at *the rate wild [*S2O
lands were selling; adding that there was no
JOHNS. REP.. 14.
1816
PARKHURST ET AL. v. VAN CORTLAND.
20
other impediment, at that time, than the mi- ;
nority of Mr. Clarke's heirs. It was proved j
that similar assurances had been given by the '
respondent in regard to all the occupants of his i
lands in the Oriskany patent. Several witness- !
<•- were examined as to the value of the im- :
provements, and the annual profits of the lands
occupied by the appellants.
In a letter from O. VV. F. Parkhurst, dated
April 3d. 1806. to the respondent, which was |
an exhibit in the cause, he said that "in regard
to these lands he had in possession that belong ,
to the respondents, he and his brothers would '
wish to have the whole he had taken a lease
of. If he could have a durable lease, he should |
be willing to give a large rent, but if not agree-
able to the respondent to lease, he should be
glad to have the preference of having it on the
best terms which the respondent could give.
That he and his father had laid out a good
deal of property in clearing and building on
the respondent's land, and his parents were old;
and if they should be obliged to leave it, it
would be hard for them; but we lie at your
mercy to do with us as you think most proper.
If the respondent was inclined to sell rather
than lease, he would be glad to purchase, and
make the best payments he could," &c.
The cause being brought on to a hearing
before the late Chancellor (Lansing), a decree
was pronounced for the appellants (after two
successive arguments), to wit: for a lease, in
fee, of the premises, upon the customary rents
of lands, alike situated in the same patent; and
such rent being reported, a final decree was en-
tered, accordingly, in the cause. The respond-
ent afterwards petitioned His Honor, the pres-
ent Chancellor, for a rehearing in the cause,
which was granted; and on a rehearing, the
former decree was set aside, and a decretal
order entered, referring it to a master to state
an account of the rents in arrear and mesne \
profits, received by the appellants, making j
them an allowance for beneficial and lasting •
improvements on the premises. From this
decree the appellants entered an appeal to this
court.
The Chancellor assigned his reasons for his
decree, for which see I Johns. Ch., 279.
Mr. N. Williams, for the appellants. The
repeated encouragement given by the respond-
21*] ent to the appellants to improve *the
land and erect buildings, is a fraud against
which equity will relieve by quieting the appel-
lants in the possession, although all the terms
of the contract do not appear. (Rob. on Frauds,
180-134, 188 ; Rob. Fraud. Con., 528 ; 5 Vin.,
522. pi. 88, 40; 2 Eq. Cas. Abr., 48, pi. 17.)
It is not upon the contract, but on the ground
of fraud that the appellants rest their claim to
relief. Although the agreement may be de-
fective, yet the Statute of Frauds will be no
obstacle to the relief ; for, in the language of
His Honor, the present Chief Justice (2 Caines'
Cas., 109), "to allow a statute, having for its
object the prevention of frauds, to be inter-
posed in bar of the performance of a parol
agreement, in part performed, would evident-
ly encourage the mischiefs the Legislature in-
tended to prevent." The cases are numerous
in which it has been held that a person stand-
ing by and seeing another mak£ improve-
ments, build and expend money upon laud, was
JOHNS. REP., 14.
concluded from asserting title. (1 Eq. Cas.
Abr., £56. pi. 10; 8Eq. Cas. Abr., 522. 528,
pi. 8.) In Doe, ex dein. Winckley, v. Pye, 1
Esp., 864. Lord Kenyon said that "Lord Mans-
field had often ruled that where one person,
having title to premises in the possession of
another, stands by and sees his tenants exer-
cise acts of complete ownership, by making
alterations and improvements, inconsistent
with the right of the landlord, and makes no
objection to it, but permits him to go on for a
length of time, it is evidence to be left to the
consideration of the jury, whether he did not
mean to be bound by it, as an assertion of
right ;" and in this 'doctrine, Lord Kenyon
said that he perfectly coincided. In another
case (6 T. R., 556), Lawrence, J., observed
that he remembered a case in which Lord
Mansfield would not suffer a man to recover,
even in ejectment, where he had stood oy and
seen the defendant build on his land. If such
be the rule in a court of law, it must apply
with equal, if not greater effect in a court of
equity. In the En»t India Co. v. Vincent, 2
Atk., 83, the Chancellor says : "There are sev-
eral instances where a man has suffered anoth-
er to go on with building on his ground, in
which the court will oblige the owner of the
ground to permit the person building to enjoy
it quietly without disturbance." In Stilct v.
Cooper, 3 Atk., 692, a tenant for life gave a
lease for sixty-one years, and the tenant in
tail, lying by during expenditure by lessee,
the lease was confirmed. (But see 5 Ves., 688; 1
Anst., 184.) These &fe not proper cases of part
performance, but of actual fraud ; and, says
Roberts (Rob. on Frauds, 134), the court will
supply an agreement out of the fraudulent
suppressions, as well as misrepresentations, of
the party deceiving. And again, he observed
(Ibid., 135), that parol evidence is let in for the
purpose of suppressing the fraud ; and that
the courts *do not, in such case, execute [*21i
the agreement, for the sake of the agreement,
but they at once presume it, and enforce it for
the sake of disconcerting the fraud. Wood-
deson, in his Lectures (Vol. III., p. 433 ; but
see Ib. 434, 435. 436 ; 9 Mod., 37). also lays it
down as a settled rule, that where there* is a
parol agreement made for a lease, and the les
see enters and builds, the Court of Chancery
will establish it on the foot of fraud in the
lessor, notwithstanding the Statute. In the
present case we have not a mere tacit acquies-
cence alone from which to infer fraud, but it
has been made out affirmatively ; the respond-
ent, for a long series of years, by the strongest
and most solemn assurances, encouraged the
appellants to cultivate and build upon the
land, and he is now seeking, by his own fraud,
to appropriate to himself that property which,
at length, by their labor and at their cast, had
been rendered valuable. It was upon the
ground of fraud that the late Chancellor
founded his decree, and not on part perform-
ance.
It is no objection, nor does it touch the
ground of relief, that the Statute of Frawds re-
quires the written contract to contain the
terms of the agreement ; the Statute prescribes
this only in relation to a naked contract,
wholly unexecuted, where there is no expend-
iture under it, and no intervention of fraud,
757
22
COURT OP ERRORS, STATE OF NEW YORK.
1816
and so were the cases cited by His Honor, the
Chancellor. (1 Johns. Ch., 280.) In Clarke v.
Wright, 1 Atk., 12, and (Jlinan v. Cooke, 1
Sch. & Lef., 22, cited by him, the rule was
taken with the restrictions which I have men-
tioned. The cases of Hottis v. Whiting, 1
Vern., 151, and Deanv. hard, Ib., 159, also
cited by. His Honor (1 Johns. Ch., 285), are
loose notes without particulars, and without
any consideration of the cases on the point,
and Mr. Roberts (On 'Frauds, 134, n. 66) speaks
of these cases as very unsatisfactory.
It is no objection that the relief asked rests
partly on the written contract and partly on
parol, in connection with concomitant acts of
the parties ; for the ground of relief is fraud,
in urging the appellants to make improve-
ments by strong assurances of giving them a
title. The written memorandum and parol
communications are not relied upon as proof
of a contract, but as ingredients in a case of
fraud, which is aggravated by the respondent
having imposed a delusive writing upon the
appellants, affording them no security for
title, while he stimulated them to improve the
land as owners, soon to have a title. "No
man," says Mr. Justice Spencer (9 Johns., 469),
"should be permitted to say to another that he
has led him into an error by holding out false
appearances ; but that the party deceived
23]* must, nevertheless, *bear the loss result-
ing from that error." The cases cited by His
Honor, the Chancellor, upon this point, apply
to a case of pure contract only. The same
answer is given to the cases of Vandervoort v.
Smith, 2 Caines, 155, and Mumford v. M'Pher-
son, 1 Johns., 414, also cited by His Honor (1
Johns. Ch., 282.) to show that all matters
resting in parol were merged in the written
agreement ; in the latter case, the present
Chief Justice observed that it was not pretend-
ed that there was any fraud in the case ; be-
sides, it is a material circumstance, that in the
present instance the encouragement given by
the respondent was mostly subsequent to the
agreement. (2 Ves., 299.) Allen v. Bower, 3
Bro. Ch. Cas., 149, is in point : there Lord
Thurlow referred it to the master to supply,
by parol evidence, the lerm "rent,"&c., which
were wholly omitted in the writing, though
the evidence of fraud was slight, resting on an
expenditure with the owner's consent. The
form of the proceeding, in making a final
decree on a motion to dissolve the injunction,
was admitted to be irregular, but the Chancel-
lor adhered to his opinion on the merits.
That case was afterwards sanctioned by Bul-
ler, /., in Brodie v. St. Paul, 1 Ves., Jr., 333.
In Clinan v. Cooke, 1 Sch. & Lef., 40, 41,
Lord Redesdale says that he should have had
difficulty in admitting parol evidence to sup-
ply the term omitted in a written agreement
for a lease ; yet it is evident that he would
have admitted it, though in a common case of
part performance. There are other author-
ities to the same effect. (Sugd. Vend., 83 ;
1 Bro Ch. Cas., 92 ; 5 Vin., 522, pi. 38.)
It i'not an insuperable objection that the
exact terms of the lease do not appear. There
are numerous cases (5 Vin. Abr., 522, pi. 38 ;
2 Eq. Cas. Abr.. 48, pi. 17 ; 3 Bro. Ch. Cas..
149 ; Pow. Cont., 301) in which the terms of
the contract did not appear, and yet the court,
758
as well for a punishment of the fraud as for
redress, directed a reasonable execution of the
contract, as did the late Chancellor in this
cause, by referring to the customary rent of
lands, in the patent, at the time of the con-
tract. Courts have gone much farther than i?
asked by us ; an owner has been punished for
mere passive fraud, in suffering another to
build on his land, under his eye, without ob-
jection, by depriving him of the property al-
together, and granting a perpetual injunction
against his claim. (1 Eq. Cas. Abr., 356. pi.
10; 3 Eq. Cas. Abr., 522, 523, pi. 3 ; 2 Atk.,
83 ; 3 Atk., 6!»2 ; 1 Esp.. 364 ; 5 Ves.. 688 ; 1
Anst., 184 ; 6 T. R.. 556.) As to the duration of
the lease, we do not rest altogether on parol ;
the respondent's letter to his attorney, men-
tioning the lease as permanent, comes strongly
in aid of the parol testimony, and affords a
guard against fraud : the only essential term
to be supplied is the rent, which may justly
be governed by the customary rents in the
patent.
*It can hardly be conceived that the [*24
respondent's counsel will insist that there was
a want of mutuality in the contract. It is a
rule well settled that under the Statute of
Frauds, the signing of the party to be charged
is sufficient. (3 Johns., 418; Sugd. Vend.,
43 ; Newl. Cont., 171 ; 9 Ves., 351 ; 1 Sch. &
Lef., 19.) And it may be added, that where
there is a part performance, either party may
enforce a performance ; besides, the respond-
ent had all the appellants' improvements, as a
pledge for performance on their part. Whether
the appellant could, have recovered damages
at law is immaterial ; that is no part of the
criterion for granting relief. (Sugd Vend.,
152, 153 ; Newl. on Cont., 109.) So far as the
term "preference" in the memorandum of the
7th April is concerned, the construction put
by the late Chancellor, applying it to a pur-
chase or lease, at the election of the appel-
lants, is reasonable. If applied to the person
of the respondent, it subverts the whole con-
tract, at the respondent's discretion. The re-
spondent's subsequent acts and declarations
preclude him from putting this construction
upon it ; he invariably refers to the comple-
tion of the partition as the period when he
would give a title.
Was the granting a rehearing in this case
proper? Lord Erskine says (13 Ves., 423)
that "a rehearing is allowed that the judg-
ment of the court may not be surprised."
This reason applies only to the Chancellor
making the decree, to enable him to revise his
own opinion, not to his successor who never
gave an opinion. The course here pursued tends
to produce conflicting opinions, and disturb
judicial courtesy. The practice in chancery
to set aside a final decree in the same court
upon the same facts on which it was made, is
an anomaly in the judicial system ; it pro-
tracts a final decision, enhances the expense to
suitors, and may become very oppressive ; it
is submitted that it ought never to be indulged
to a successor, to set aside, upon the merits,
the final decree of his predecessor.
Messrs. P. A. Jay and T. A. Emmet, contra.
A rehearing is a right to which the suitors in
chancery ;£• entitled, and of which they can-
not be devested by a change of the Chancellor.
JOHNS. REP., 14.
1816
PARKHCRST ET AL. v. VAN CORTLAND.
24
The utmost that the respondent engaged to
do \v;i- to give the appellants the preference
to purchase or take leases of the laud, which,
in other terms, wax nothing more than that
when the respondent should be ableaud chose
to dispose of it, at such price and on such con-
ditions as he should think proper to impose,
the appellants should have the refusal . he
25*] never promised *to convey it to them.
But admitting that a deed or lease were prom-
ised, this is not such an agreement as a court
of chancery can carry into execution. An ac-
tion could not be sustained upon it at law.
In general, a party having an agreement has
an election either to come into chancery or
bring an action, but there i« no case in which
a specific performance has been decreed of an
agreement, not so certain as to sustain an ac-
tion at law. (1 Ves., Jr., 820.) The agree-
ment in this case is so uncertain that no per-
formance of it can be decreed. (2 Vern., 415 ;
1 Ves.. 279 ; 1 8ch. & Lef., 22 ; 2 Sch. & Lef..
1. 554; Newl. on Cont., 109; Free, in Ch.,
500 ; 12 Ves., 466.) Before chancery will ex-
ecute an agreement, it is always necessary that
the terms should be clear. (8 Ves., 419, 420.)
It must be complete and perfect ; and when-
ever there is a demand in law or equity, there
must be a certainty of the thing demanded to
1 >!• adjudged or decreed, or at least a mean to
reduce it to a certainty. (Tr. of Eq.. bk. 1,
ch. 8, sees. 6, 7.) And, where one possessed
of land for a term of 2,000 years, granted it to
another without mentioning any term, it was
held void for uncertainty. (2 Vern., 684.) In
Gordon v. Trevelyan, Price's Ex., 64, there was
a negotiation between the defendant and the
plaintiff who held a farm of the defendant at
an annual rent, by letter, for a lease ; the
plaintiff proposed a lease on the same plan
with those usually granted to the other ten-
ants of the defendant, and the defendant
agreed to give him >i lease in the usual way ;
no lease was ever given, and the plaintiff con-
tinued in possession ten or twelve years after
this negotiation, when the defendant gave him
notice to quit, in consequence of which the
plaintiff tiled a bill for an injunction, which
was dissolved, on motion of the defendant.
Thompson, Ch. B. , says: "It seems to me,
that to constitute an agreement fora lease, the
ti-nn and conditions should either be actually
expressed, or the treaty should bear some ref-
erence by which they might be ascertained,
and that otherwise it "is not an agreement of
which a court of equity can decree a specific
performance ;" and Richards, B., says : " It is
impossible for a court of equity to decree a
.-jMM-itir performance of an agreement for a
lease, without having a precise term, expressly,
or by reference, for which it is to be granted."
It has been endeavored to help out the vague-
ness of this memorandum with parol proof.
To add to an agreement in writing, by per-
mittiug parol evidence of what will affect
land, is against the Statute, and against. the
rule of common law prior to it. (Com. Dig.
Ch.. 2. ch. 4 ; Peake's Ev., 116 ; 2 Atk., 888;
Burr.. 65 ; 1 Ves., Jr.. 241, 402 ; 7 Ves., 188 ;
2 Vern., 889 ; Skin.. 54 ; 8 Wils., 275 ; 1 Bro.
Ch. Cas., 92 ; 2 Bro. Ch. Cas., 219 ; 4 Bro.
Ch. Cas.. 477. 514 ; 1 Sch.& Lef., 22.) "If the
agreement, "says Buller, J. (1 Ves., Jr., 838),
JOHNS. REP.. 14.
| *" is certain, and explained in \\ tiling [*2O
signed by the parties, that binds the in ; if not,
and evidence is necessary to prove what the
I terms were, to admit it would effectually break
! in upon the Statute, and introduce all the mis-
! chief, inconvenience, and uncertainty, the
i Statute was designed to prevent." Agree-
• ments within the Statute are not to be part in
i parol and part in writing. (2 Vern., 619.)
And where an agreement is reduced to writ-
! ing, all parol communications in respect to the
j subject are merged in it. (2 Caines. 155 ; 1
! Johns.. 414; 5 V in. Abr., 515, pi. 18, 517 pi
i 26. 1. 26 ; 1 Bro. Ch., 92.) But the parol evi-
dence does not supply the uncertainty of the
memorandum ; it ascertains neither the term
nor the rent. To go into transactions between
other parties, in relation to other lands, and
inquire into the rate at which lands were leased
in the patent, would be a very strange way of
determining an agreement for these parties.
In Allen v. Bower, 3 Bro. Ch., 149, there was
a fixed agreement, a certain, clear bargain ;
but the soundness of that decision has since
been questioned. (1 Sch. & Lef.. 87.) In the
present case, there was an alternative, either
to sell or lease ; but who was to have the
election ? It certainly does not appear that
the appellants had the choice, but, on the con-
trary, the respondent ; and as to the lime or
amount of payment, nothing is settled. Had
the agreement stated by the appellants in their
bill been admitted by the respondent, to the
fullest extent, in his answer, yet, as he insisted
on the benefit of the Statute of Frauds, a spe-
cific performance could not be decreed. (6
Ves., 37.)
The agreement was not mutual (2 Vern.,
415 ; 1 Sch. & Lef., 13, 20, 22 : 1 Ves., 279;
2 Sch. & Lef., 1,554); the appellants were not
bound to take the land at any price ; they were
bound to nothing ; but, according to the ap
pellant's counsel, the respondent was bound to
everything.
Two acts of part performance are alleged as
taking the present case out of the Statute ; the
admission of the appellants into possession of
the land, and their expenditure of money.
The general principle with regard to what
shall constitute a part performance is. that the
acts must be done with a direct view to per-
form the agreement, and tend inceptively to-
wards its accomplishment; and .must, also, be
in prejudice of the party performing them.
(Rob. on Frauds, 140; Amb., 586; 3 Atk., 4.)
An act merely introductory or ancillary to the
agreement, though attended with expense, has
never l>ecn held a part performance. (1 Bro.
Ch.. 412 ; 7 Ves., 841. 846.) It must be some-
thing done as owner of the estate, and which
the party would not have done had he not
considered himself in that light. (2 Bro. Ch.,
561.) This last position, although laid down
by counsel, arquendo, is cited with approba-
tion *by Mr. Roberts. (On Frauds. [*27
141, n.) Here, possession was never given by
the respondent, but was taken by the appel-
lants previous to any agreement ; it, therefore,
could not have been an act tending to a com-
pletion of an agreement ; it could not have
been done by the appellants as owners of the
estate, and the case shows that they never con-
sidered themselves as owners. Such previous
75»
27
COURT OF ERRORS, STATE OF NEW YORK.
1816
act is not sufficient to entitle to a specific per-
formance of a subsequent promise, for the
promise is itself a nudum pactum. (2 Bro. Ch.,
140.) And besides, possession taken in pur-
suance of an alleged agreement is not a part
performance, unless it clearly appear what the
agreement was. (6 Ves., 470.) The same an-
swers will apply to the other part performance
set up by the appellants. The case shows
that they commenced their improvements, and
made their expenditures, before they obtained
any memorandum from the respondent ; they
were made without his consent, were no con-
sideration for a promise, and no agreement
has been made out, other than the memoran-
dum, of which they could be a performance.
There being no agreement, then, as has been
shown, which was binding on the respondent,
" the circumstance," as is said by the Chan-
cellor, in Robertson v. St. John, 2 Bro. Ch.,
140, "of laying out money afterwards, as it
was voluntary, could not vary the nature of
the case." By the agreement, admitting that
there was one, the appellants were to be al-
lowed to possess the land ; they have had the
lawful possession in conformity to it ; their
acts may all be referred to it, and on that
ground proof of any further agreement is in-
admissible. (2 Sch. & Lef., 8.)
The appellants allege that a fraud has been
practiced upon them, and assign that as a
ground of relief. Equity only relieves against
fraud where the person, executing a written
instrument, has, by art, misrepresentation or
deception, been induced to insert or omit stip-
ulations different from what would other-
wise have been his intention : in such case,
parol evidence is admissible to make out the
true state of the contract, and in no other.
(Rob. on Frauds, 79.) But here the appellants
are bound by no contract, and consequently
have been surprised into no act from which
they can seek relief. They, as plaintiffs, en-
deavor by parol proof to enlarge the opera-
tion of a license executed by another, fairly
made, received by them without objection,
and of the infirmity of which they must have
been aware (indeed, they have acknowledged
themselves to lie at the mercy of the respond-
ent), and take advantage of an exception to
28*] the Statute of *Frauds intended for the
benefit of those who oppose the execution of
an instrument fraudulently obtained. It is
said that the ground upon which the court
acts in decreeing the execution of an agree-
ment, is fraud in refusing to perform, after
part performance, by the other party (7 Ves.,
346) ; but it has already been shown that there
was no part performance, and thus the allega-
tion of constructive fraud has been repelled.
There was no agreement that the appellants
should expend money upon the land, but they
did it voluntarily. When they made improve-
ments, they did not do it as owners ; nor had
they any reason to believe, from the agree-
ment, that they certainly would be owners.
What proof is there of actual fraud ? That is
a question purely of intention ; and what de-
ceptive intention has been brought home to
the respondent ? What is to become of the
Statute, if the mere fact of making a promise,
which it declares void, is to raise a legal pre-
sumption of fraud to take the case out of the
760
Statute ? The appellants have been allowed
by the Chancellor all that they were, in equity,
entitled to. Had they gone on the land, after
the express consent of the owners, as lessees
for a definite term, and then erected buildings
and made improvements, at the expiration of
the term they could have recovered nothing
against their landlord for their improvements.
But being mere tenants at will, they have been
allowed the value of their improvements. The
respondent promised that no advantage should
be taken of their labor ; the Chancellor has
given them the benefit of that promise ; further
than that he could not go ; for, to decree them
a conveyance on the parol promise to give a
title, or on the defective, uncertain memoran-
dum set forth in the case, would be to repeal
the Statute of Frauds.
The Chancellor has pursued the only proper
course. In Foster v. Hale, 3 Ves., 712, the
Master of the Rolls says: "The court has
gone rather too far in permitting part perform-
ance, and other circumstances, to take cases
out of the Statute, and then, unavoidably,
perhaps, after establishing the agreement, to
admit parol evidence of the contents of that
agreement. As to part performance, it might
be evidence of some agreement, but of what,
must be left to parol evidence. I always
thought the court went a great way. They
ought not to have held it evidence of an un-
known agreement, but to have had the monev
laid out repaid. It ought to have been com-
pensation. Those cases are very dissatisfac-
tory. It was right to say the Statute should
not *be an engine of fraud ; therefore, [*29
compensation would have been very proper."
A court of equity will refuse to interfere
where, from the nature of the case, the dam-
ages will necessarily be commensurate to the
injury sustained. (2 Sch. & Lef., 553.)
The inclination of courts of equity now is,
to extend no further the exceptions which
have been made to the Statute of Frauds ; and
it has often been regretted that it is already
so much broken in upon. The observations
of Lord Redesdale, in Lindsay v. Lynch, 2
Sch. & Lef., 5, are very pointed to that effect.
" I am not disposed," he says, " to carry the
cases which have been determined, on the
Statute of Frauds, any further than I am
compelled by former decisions. That Statute
was made for the purpose of preventing per-
juries and frauds, and nothing can be more
manifest, to persons who have been in the
habit of practicing in courts of equity, than
that the relaxation of that Statute has been a
ground of much perjury and much fraud. If
the Statute had been rigorously observed, the
result would probably have been that few
instances of parol agreements would have oc-
curred ; agreements would, from the neces-
sity of the case, have been reduced to writing,
whereas, it is manifest that the decisions on
the subject have opened a new door to fraud ;
and that, under pretense of part execution, if
possession is had in any way whatever, means
are frequently found to put a court of equity in
such a situation that, without departing from its
rules, it feels itself obliged to break through the
Statute. And I remember it was mentioned
in one case, as a common expression at the
bar, that it had become a practice "to im-
JOHNS. RFP., 14.
1816
PARKIICROT ET AL. v. VAN CORTLAND.
prove gentlemen out of their estates. It is,
therefore, absolutely necessary for courts of
equity to make n stand and not carry the de-
cisions further." The same opinion has been
entertained by a distinguished judge in this
country. In Grant v. Naylor, 4 Cranch, 235.
Marshall, Ch. «/., observes: "Already have so
many cases been taken out of the Statute of
Frauds, which seem to be within its letter, that
it may well be doubted whether the exceptions
do not let in many of the mischiefs against
which the rule was intended to guard. The
best judges in England have been of opinion
that this relaxing construction of the Stat-
u'e ought not to be extended further than
it has already been carried, and this court en-
tirely concurs in that opinion." The reasons
on which part performance has been held to
take a case out of the Statute are examined,
and their inconclusiveness fully exposed by
:$()*] Mr. *ttoberts. (On Frauds, 133. 185-
137.) If the law lays down certain conditions
on which it stipulates to lend its aid, the party
neglecting to observe these conditions, has no
right to complain that the law will not assist
him. "On the other hand." says that author,
" the public may have a better right to com-
plain, if, by the variable application of a law,
useful only as long as it is uniform, men are en-
couraged to hazard the consequence of neglect-
ing it." He shows that the reasoning, in such
cases, moves in a circle; it assumes the existence
of the agreement from the part performance,
and then applies the part performance to the
agreement, so as to make out the acts of perform-
ance to have been done in pursuance of it.
The gentleman on the other side has cited, in
support of his positions, this writer (Id., 135),
who has exerted himself so successfully to ex-
pose their futility ; but it was only by omit-
ting the most essential part of a paragraph
that he was able to distort it to his purpose.
What was the intention of the Statute ? To
prevent fraud and perjury by requiring cer-
tain agreements to be in writing. Its object,
like that of all other laws, is of a general and
public nature ; it was not designed for the
benefit of the individual availing himself of
it. but for the benefit of the community. It
is in vain to say that it is here unconscientious
to relv upon the Statute ; a thousand defenses
equally unconscientious are admitted every
day in courts of justice, because, their admis-
sion being judged necessary for the general
quiet ana security, a private injury is not suf-
fered to outweigh a public inconvenience. A
party may often shelter himself from the per-
formance of his duty under a law designed as
a protection against fraud and injustice ; but
if he can bring himself within its purview, no
court can examine into the purity of his mo-
tives ; the inquiry is precluded by the all-con-
trolling principle of universal expedience.
Mr. William*, in reply. It is a principle
clearly established, both'by English and Amer-
ican authorities, that where there is a contract
not clearly put in writing, but which can be
explained by accidental circumstances, the
court will decree a specific performance. The
authorities are conclusive that a part perform-
ance will take a parol agreement out of the
Statute (1 Vcs., Jr., 838 ; 2 Caines' Cas.. 108.
109 ; 2 Sen. & Lef., 549 ; Sugd. Vend , 88 ; 2
JOHNS. REP., 14.
Atk., 83) ; still more in the case of "a written
agreement capable of being (3 Bro. Ch., 149)
made good by extrinsic circumstances. The
ground of relief in all *such cases is [*31
fraud (Rob. on Frauds, 129-182), and it i.s
hardly possible to conceive a more flagrant in-
stance of fraud than has been practiced by
the respondent on the appellants. The caw of
Grant v. Naylor, cited on the other side, was
not a case of specific performance, but of la-
tent ambiguity, and is therefore inapplicable.
In Forster v. Hale, the decision of the Master
of the Rolls goes to prove that the principle
which he adopt* as law is contrary to all former
law and authority. In Lord \\f<ilpole v. Lord
Orford, Ves., 419, also cited on the other side,
the real doubt was, that the agreement did not
appear to have been intended to be legally
binding, but was. in fact, designed by the par-
ties to be merely honorary.
THOMPSON, Ch. J. It was not pretended
upon the argument that this was a case com-
ing within the Statute of Frauds, or that any
note or memorandum in writing was neces-
sary for the purpose of making out a valid
and binding contract between the parties.
The appellants, in the Court of Chancery,
bottomed their claim to relief upon a part per-
formance of an agreement alleged by them to
have beeu made with the respondent in relation
to the lands in question. If any authority
was necessary to show that such cases are not
within the Statute of Frauds, we have it in
the case of Brodie v. St. Paul, 1 Ves., Jr., 333.
where Buller, J., sitting for the Lord Chan-
cellor, lays it down as a settled rule in equity
that part performance of a parol agreement
takes it out of the Statute of Frauds. The
object of the bill, in the case now before us,
was a specific performance of an agreement.
This necessarily presupposes the existence of
such agreement, and the- bill, therefore, as it
must in all cases of this description, sets out
what that agreement was. It accordingly be-
came necessary for the appellants to prove the
agreement with all requisite certainty, or to
furnish such evidence as to warrant the court
in presuming the agreement which they
• claimed to be in force. In Footer v. Hale, 3
; Ves., Jr., 712, the Lord Chancellor observed
that he thought courts had gone too far in ad-
i mitting part performance, and other circum-
stances, to take cases out of the Statute of
Frauds. Part performance, said he. might be
evidence of some agreement. but of what, must
be left to parol proof. It would, he thought,
have been better, in such cases, to have the
money laid out or repaid, than to consider
part performance evidence *of an un- [*3ti
known agreement. Here is a full recognition
of the principle that from the fact of part
performance an agreement may be presumed.
' And tin- same Lord Chancellor, in another
case (8 Ves., Jr., 320), observes that the fact
of some agreement may be implied from cir-
cumstances. If, then,* from the fact of part
performance, we are authorized to presume
some agreement between those parties, in re-
lation to the land, what that agreement was
may be collected, with all reasonable certainty,
from the parol proof.
I agree fully with the reasoning of the Chan-
COURT OF ERRORS, STATE OF NEW YORK.
1816
cellor upon the insufficiency of the memoran-
dum of April, 1797, to ascertain and define the
terms and nature of any contract. It is too
vague and indefinite for that purpose; nor,
according to my understanding of it, was it
ever intended for any such purpose. There is
nothing in it which looks like fixing or defining
a bargain, as to the purchase or leasing of the
lands. It purports only to give permission to
the appellants to possess the lands, subject to
some future arrangement, as to the purchasing
or leasing the same; they, however, by such
possession, gaining a preference, or what is
usually called a refusal, of such bargain. If
the appellant's claim, therefore, rested upon
this memorandum alone, as the evidence of the
contract, I should have no hesitation in saying
it could not be supported.
Nor is it to be disputed that where it is nec-
essary to make out a contract in writing, no
parol evidence can be admitted to supply any
defects in the writing. It is a sound and salu-
tary rule that a contract cannot rest partly in
writing and partly in parol ; but the case before
us is not one falling within either of these
rules. It was not necessary that the contract
should be in writing; nor does it require that
the memorandum in writing should be connect-
ed with the parol proof, for the purpose of
making out the contract. If my construction
of the memorandum is right, it does not pro
fess to make any part of the agreement for the
purchase or leasing of the premises. The prin-
cipal object was, to show that the possession
was taken with the assent of the owner of the
land, and that the appellants were not intrud-
ers. That is all the purpose for which it is
necessary to use this memorandum; and if this
permission had been given by parol, it would
have been of equal force with the written
memorandum. But if this memorandum is
nugatory and void for uncertainty, we may
surely reject it altogether, and rest entirely
33*] *upon the parol proof, as it is a case
where no writing was necessary. There are
not, however, wanting the opinions of very
able Chancellorsiu support of the position; and
it is, perhaps, the better opinion, that where
part performance is made the basis of the
claim for a specific execution of an agreement,
parol proof may be connected with written
evidence, for the purpose of making out the
contract.
The case of Allen v. Bower, 3 Bro. Ch., 149,
is directly in point on this question. That was
a bill for specific performance, and the evi-
dence to establish the agreement was partly
written and partly oral. The written promise
of a lease was imperfect, and parol evidence
was admitted, by direction of Lord Thurlow
(after it had been rejected by a master), to sup-
ply the defects in the writing. Lord Redes-
dale, in commenting upon this case, and par-
ticularly upon the question, whether a defect-
ive writing can be supplied by parol, observes
that this cannot be done, when the writing is
set up as the sole foundation of the agreement,
nor unless it be a case of part performance.
(1 Sch. & Lef., 37.) It is fairly to be collected
from his opinion, that in such cases, parol and
written evidence may be let in to make out the
contract.
But laying aside the written memorandum
7<J2
altogether, let us examine the proofs in the
case, and see whether an agreement for a deed
or a durable lease is not satisfactorily made out;
and it ought here to be noticed that the bill in
chancery seems to be framed upon an agree-
ment distinct and independent of the memo-
randum. We have not the bill set out at large
in the case, but according to the statement
given, it appears that after setting out the mem-
orandum, the bill alleges that afterwards, that
is, after the giving of the memorandum, the
respondent, for the further security of the ap-
pellants, and to induce them to make perma-
nent improvements, agreed that incase of the
sale of the land, under such agreement (refer-
ring to the memorandum), the price should be
the actual value at the time of the agreement,
superadding interest up to the time of the con-
veyance; and in case of a lease, the same
should be durable, or in other words, a lease
in fee, at the usual and customary rents of the
country. This agreement, or any other than
what is contained in the memorandum, the
respondent denied in his answer in chancery.
A recurrence to the evidence becomes necessary,
then, to see how far it will support the alleged
agreement. *The memorandum author- [*34:
izing the appellants to take possession is dated
in the year 1797; but it appears they had been
in possession from the spring of 1794, under an
assignment of a similar memorandum, which
had been given by the respondent to Benjamin
Lawrence. This assignment was known to the
respondent in the fail of the year 1794, and lie
recognized the appellants as standing in the
place of Lawrence. The memorandum given
in 1797 was a mere substitute for the other,
and must have a retrospective effect, so as to
sanction and make valid everything done by
the appellants after they came into possession
under the assignment from Lawrence. About
this time it appears that the appellants became
uneasy with respect to their situation, and by
their agent applied to the respondent to give
them more satisfactory or better security. To
this, according to the 'testimony of Lawrence,
the respondent replied that he would give them
a good title as soon as he could obtain a re-
lease from Mr. Clarke's heirs; either by a du-
rable lease on good terms or a sale of the lot to
them, as they chose. The agent preferred a
lease; but still urged to the respondent that the
appellants hesitated about erecting a barn and
other buildings, on account of the security for
the land not being satisfactory. The respond-
ent replied that they might go on, build and
occupy the lot, as if it were their own, and no
advantage should be taken of their labor; that
they should have the lot as wild land was going
in the country, at the time he should be able
to give a title. This witness further proves
that in the year 1797, when what he calls the
former permit to Lawrence was surrendered
up, and one given to the appellants themselves,
the respondent again renewed his engagement
to sell or lease the land to the appellants, upon
the terms before mentioned; and told them
they might go on and erect buildings and make
valuable improvements, as if the land was their
own. The same thing, substantially, was reit-
erated, over and over again, to divers witness-
es, and at various times, down to a period as
late as the year 1803. The appellants were
JOHNS. REP., 14.
1818
PARKHCRST ET AL., v. VAI» CORTLAXD.
34
continually expressing their fears and appre-
hensions about making improvements, on ac-
count of the insecurity of their title; and these
fears and apprehensions were allayed by as-
surances that a title would be given as soon as
partition could be made with Clarke's heirs.
The respondent, at all times, declared that the
want of this was the only impediment to his
35*] giving adeedor*lease; and he uniform-
ly directs the appellants to go on, make im-
provements, use and occupy the land as their
own, and that no advantage should be taken
of them. The appellants, confiding in these
assurances, have continued to make improve-
ments, and expend their money to an extent
which, to them, is a pretty serious amount.
Can it be possible that all this, after such a
lapse of time, furnishes no evidence of an
agreement, either to sell or lease the land to
the appellants? To my mind, it affords the
most conclusive and satisfactory evidence of
such agreement. The use that is* now attempt-
ed to be made of the short lease of 1803 to
rebut the inference to be drawn from this tes-
timony, opens a door to manv animadversions,
that w'ould not, to say the least of them, be
very favorable to the respondent. I shall dis-
miss it, however, with barely adverting to the
testimony of Simeon Parkhurst. who swears
that before this lease was taken assurances
were made, both by the respondent and his
agent, that such lease should not, in any degree,
injure the appellants or affect their contract,
but that they should have a lease or deed, ac-
cording to "the former promise. After such
assurances, this lease must be entirely put out
of view.
Such being the leading facts with respect to
the agreement, and the circumstances under
which the appellants have continued to occupy
the lands from the year 1794. and the encour-
agement held out to them, from time to time,
to make improvements; let us apply the law
to this case, and see the light in which such
cases have been viewed by courts of equity.
I do not think it necessary to take up the
time of the court in traveling through the
numerous reported cases on the subject. The
substance of them, so far as is necessary to be
noticed on the present occasion, is summed
up by Mr. Roberts, in his valuable Treatise
on F*rauds. "The relief," says he (p. 131),
"against the Statute, in these cases, of part
performance, was originally founded on the
fraud and deceit, usually characterizing the
circumstances. There is no satisfactory found-
ation for the doctrine of part performance,
without the intermixture of fraud (p. 132) ;
and upon this ground, where an owner of land
has encouraged another to go on with his im-
provements upon the estate, under a false ex-
pectation of a conveyance or a lease, and this
expectation raised in him by the assurances of
such owner, it is agreeable to the general
course of equitable relief to disappoint the con-
36*] trivance, by compelling the deceiver *to
realize the expectation he has created;" that
is, by compelling him to give such deed or
lease. "This protecting jurisdiction," he
says, " has stretched itself to those cases where
the illusory hope has been raised, not only by
words and assurances, but simply by looking
on in silence, whilst false impressions, which
JOHNS. RKP.. 14.
we are able either to correct or verify, are
inducing a fruitless expenditure on improve-
ments. This equity is strong and salutary,
and the jealousy of 'jurisdiction has shut out
the Statute of Frauds where this principle of
relief applies." Again, he says (p. 134):
"These instances of encouragement, either
tacit or express, to make improvements, incur
expense, &c., are not proper cases of part
performance, but of actual fraud, which
courts of equity have always been forward to
relieve against." "And the court will supply
an agreement out of fraudulent suppressions,
as well as misrepresentations of the party de-
ceiving, who is considered as virtually agree-
ing to make good the expectation he has
raised."
These are rules and principles flowing from
the soundest morality, and sanctioned by the
most weighty considerations of justice and
equity, and are directly in point to the case
before us. The testimony is strong and irre-
sistible, to show that the respondent, from
time to time, encouraged the appellants to eo
on and make improvements, not only under
an expectation, but reiterated promises, that
when he had made a division with or obtained
a release from the heirs of Clarke, he would
give them a deed, or durable lease.
The decree in the Court of Chancery admits
that the appellants are entitled to relief, but
that compensation for their improvements
would be more fit and proper than a specific
performance. Lord Redesdale, who thinks
(2 Sch. & Lef., 552) courts of equity have
gone far enough, if not too far, in decreeing
specific performance of agreements, says the
original foundation of such decrees was, that
damages at law would not give the party the
compensation to which he was entitled ; that
is, would not put him in a situation as bene-
ficial to him as if the agreement was specific-
ally performed. And on this ground, he says,
the Court of Chancery, in a variety of cases,
has refused to interfere, where, from the nat-
uie of the case, the damages must, necessari-
ly, be commensurate to the injury sustained ;
but the cases (Darin v. Tfiorne, 2 Sch. & Lef.,
347) in which the court decrees specific per-
formance of contracts, are generally those
* where damages would not answer the [*37
intention of the parties in making the con-
tract, and a specific performance is, therefore,
essential to justice. Is not the case before us
one of that description ? Would it be as ben-
eficial to the appellant-; to be paid for their
improvements as to have a specific perform-
ance ? Would compensation answer the in-
tention of the parties in making the contract ?
Would they have gone into the wilderness,
and spent the prime Of their lives in clearing
up a farm, and providing themselves with
comfortable dwellings, under an expectation
of being dispossessed, on barely receiving a
compensation for their improvements ? The
earnest solicitude expressed by them, on a va-
rietv of occasions, with respect to further se-
curity of their title, and the repeated applica-
tions to the respondents for this purpose, show,
beyond the possibility of a doubt, that their
intention was to procure for themselves a
permanent settlement. Such cannot be a case
for compensation. A specific performance is.
37
COURT OP ERRORS, STATE OP NEW YORK.
1816
in the language of Lord Redesdale, essential
to justice. Who is to reap the benefit of the
appreciation of the lands: — they who have en-
countered the hardships and privations of a
new country, and whose labor must, in a
great measure, have produced this apprecia-
tion, or he who has kept them under the de-
lusive expectation of a title until the farm is
subdued, and now seeks to deprive them of it ?
The answer is obvious.
No reasonable objection can be made to a
specific execution on account of any uncer-
tainty in the agreement. The proof makes
out a parol contract with all requisite certain-
ty ; to wit : either to sell the land as wild land
was selling in that part of the country in the
year 1797, together with the interest, or to give
a durable lease in fee, at the customary rent at
that time, at the election of the appellants. In
the case of S/ianiion, v. Bradstreet, 1 Sch. &
Lef , 73, Lord Redesdale, in answer to an ob-
jection as to the uncertainty of rent to be re-
served, pursuant to an agreement, said he did
not think it uncertain, for it was capable of
being reduced to certainty. Every executory
contract must contain this species of uncer-
tainty ; but if it contains all that leads to fu-
ture certainty, it is sufficient. If this rule be
sound, the price or rent of the land can be
easily ascertained by a reference to a master.
I am accordingly of opinion that this is a fit
and proper case for a specific performance,
and that the decree of the Court of Chancery
ought to be reversed.
38*] *SPENCER, J., was of the same opin-
ion.
YATES and PLATT, JJ., were absent.
VAN NESS, J., was of opinion that the de-
cree of the Court of Chancery ought to be
affirmed.
BATES, BICKNELL, BLOOM, CLARK, CROSBY,
DAYTON, EL:«ENDORF, HAGER, KEYES, LOO-
MIS, LIVINGSTON, Ross, STRANAHAN, SWIFT
and VER BRYCK, Senators, concurred in the
opinion delivered by the Chief Justice.
VAN VECHTEN, Senator. The appellants
have filed their bill in the Court of Chancery
to obtain a specific performance of an agree-
ment for the title to land in^the Oriskany pat-
ent, which belongs to the respondent.
The respondent, by his answer, denies the
agreement, and insists upon the Statute of
Frauds, against any parol agreement which
might be proved.
From the bill, as well as the testimony in
the cause, it appears that the appellants rely
partly on an agreement by parol, and partly
in writing.
[Here he stated the memorandum and the
evidence of the witnesses.]
I shall consider the case as it stands : 1.
Upon the written instrument ; and, 2. Upon
the parol evidence.
1. What does the written instrument im-
port ? Does it amount to a final bargain for
the land in question upon any specific terms,
of which this court can decree the perform-
ance ?
According to my understanding of its plain
764
language, it is a mere permission for the ap-
pellants to occupy the land, with a promise
to give them the first offer to purchase or take
a lease of it, when the respondent's title in
severally should be perfected ; but it does not
profess to fix either the terms of sale or of the
lease. Can this court execute such an instru-
ment specifically, by decreeing either a con-
veyance in fee or a lease ? I presume not.
A decree for a specific performance must op-
erate upon and according to the terms of the
agreement ; and therefore if the instrument
contains no specific terms, it is not suscepti-
ble of specific execution. The office of en-
forcing performance cannot be exercised when
the matters to be performed *are left [*3i>
unsettled and uncertain by the parties to an
agreement.
Suppose the court decrees a conveyance,
what price, according to the instrument, are
the appellants to pay ? From what time are
the payments to commence ? Are they to be
with or without interest ? Or is the consider-
ation to be paid at the delivery of the deed ;
and in that case, what is the respondent to
receive for the use and occupation of the land
since 1794, when the appellants took posses-
sion ? Or is he to receive no remuneration
for upwards of twenty years' enjoyment of his
land, and to be compelled to part with the
title at the present appraised value thereof,
considering it as in a wild state ? Have the
parties agreed, by the instrument before us,
to this mode of fixing the price, and by whom
it is to be done ? The instrument is totally
silent upon all these points. Let me ask, then,
what are to be the terms of a decree for a deed,
according to the stipulations of the parties as
expressed in their written agreement ?
Again ; should the court decree a lease, for
what term is it to be ? What is to be the an-
nual rent ? How and when payable and from
what time is it to commence ? What cove-
nants and conditions are to be inserted in it,
for the written instrument is silent as to all
these particulars? Will a decree bottomed upon
this instrument, either for a conveyance in fee
or a lease upon such terms as the court shall di-
rect, comport with the legal meaning of a spe-
cific execution of an agreement made and settled
between the parties ? In my opinion, it will be
repugnant to all established principles (Rob-
erts on Frauds, 135, 136) relative to specific
performance ; and that, in order to make such
a decree, the court must first assume the office
of bargainors for the parties, to lay the foun-
dation for it.
It can hardly be necessary for me to detain
the court by citing authorities on this point. I
shall, therefore, mention only a few of the
numerous cases to be found in the books in
support of my positions.
In Blagden v. Bradbear, 12 Ves., Jr., 466,
the Master of the Rolls held that to sustain a
bill for specific performance of an agreement
for the purchase of land, the agreement must
express the price, or, by reference to some-
thing else, must show what it was. In Clinan
v. Cooke, 1 Sch. & Lef., 22, the Lord Chan-
cellor held that a bill for a specific perform-
ance of a *written agreement for a lease [*4O
for three lives, could not be sustained, because
the agreement did not mention the term, and
JOHNS. REP.. 14.
1816
PARKHURST KT AL., ^. VAU CORTLAND.
40
did not refer to an advertisement of the de-
fendant, offering to lease the land for three
lives. So. in Clarke v. Wright, 1 Atk., 12.
Lord Hardwicke declared the omission of the
price in a letter acknowledging a contract for
the sale of land, to be fatal.
2. Is the parol evidence competent to ex-
plain and supply the defect* of the written
instrument ?
By the Statute of Frauds, all contract* con-
cerning the title to lands which are not re-
duced to writing and signed by the parties,
are declared to be invalid. The wise provis-
ions of this Statute would he wholly defeated,
if parol evidence was admissible to enlarge
and support a defective written agreement.
But I need not dwell upon this point here.
This court has recently decided that in the
case (Mann v. Mann, ante, p. 1) even of a
will, a patent ambiguity renders it void, and
that parol evidence, to explain the intent of
the testator, cannot be let in to establish it. If
the law is HO in relation to wills which are en-
titled to the greatest benignity, the reasons
upon which it is founded apply with greater
force to a case like the present.
But, admitting, for argument's sake, that pa
rol evidence is competent, what does it prove ?
According to my understanding nothing
more than that the respondent, in conversing
about his Oriskany land, has repeatedly de-
clared that it was his intention, when his title
was completed, to sell 01 lease it, not only to
the appellants, but to all the occupants thereof,
as wild lands were going ; and that he would
take no advantage of their labor by enhancing
his terms. I cannot collect from this evidence
that he intended, by such conversations, to
make a final bargain relative to the terms of
sale or the conditions of a lease, or to give any
assurance with respect to those terms or con-
ditions, except that he did not mean to avail
himself of the occupant's labor. How, then,
does the parol evidence ascertain the price
to be paid for the land, or the terms of pay-
ment in case of a sale, or the terms and con-
dition of the lease if he should conclude to
let it ? Indeed, the appellants' principal wit-
nesses. Lawrence and S. Parkhurst, differ es-
sentially as to the price spoken of. The
former says it was as wild land was going, when
the respondent should be enabled to give a good
title : the latter testifies that it was the price
41*1 at which the land was *goine when he
should give the title, or the price it was selling
for at the time of the conversation in April,
1797, with the addition of interest from that
time.
There is, however, another decisive objec-
tion to this evidence. The conversations to
which it relates were prior to or at the time
when the written permission of 1798 to Law-
rence was surrendered by S. Parkhurst, and
he accepted the instrument of April, 1797, in
lieu of it. The surrender was made, as Park-
hurst deposes, to obtain a new contract. Why ?
Can any other reason be imagined, except
that he wanted a fuller and more satisfactory
engagement from the respondent? Did he re-
ceive such a one ? No. Why ? Because the
respondent declined to give it. Was there any
deception used to impose the instrument of
1797 upon S. Parkhurst ? He does not allege
JOHNS. Ki.r . 14.
that there was. Does he pretend that he did
not understand its import 1 No ; for he had.
in the fall of 1794, informed the respondents
that the appellants wished for better security
tlinii the instrument of 1793. which was of the
saiiK- tenor. What, then, is the fair infervnce
from this transaction ? Is it not that the in-
strument of 1797 was the fullest which the re-
spondent would give, and that the appel-
lants' agent accepted it understandingly ? I,
therefore, consider all the previous parol con
versations testified to by the appellants' wit-
nesses, as merged in this instrument. And if
they are, it results, conclusively, that the
parol evidence cannot aid the appellants.
If I understood the appellant*' counsel cor-
rectly, he disclaimed to rely upon part per-
formance as ground for their relief in this
case. It cannot therefore, be necessary to
consider that point ; but if it was, the objec-
tion of total uncertainty in the alleged agree-
ment would be decisive against the appellant*.
For though part performance will, in certain
cases, induce a court of equity to enforce a
parol agreement for the purchase of land, it
cannot make an agreement susceptible of spe-
cific execution, when its terms are not specifi
cally ascertained nor ascertainable.
But it was strongly urged in argument that
the appellants are entitled to relief on the
ground of fraud, because they were led on by
the false verbal assurances of the respondent
to make valuable permanent improvements on
the land. In order to try the strength of this
position, it must be examined with reference
to the appellants' bill, and the facts in the
ca«e.
*Tue scope and prayer of the bill are [*4!2
for the specific performance of an agreement.
It sets forth the instrument of 1797 as the
written contract relied on, and refers all the
respondent's verbal assurances to it ; but does
not contain a-single allegation of fraud other
than what is implied bv the charge of the re
spondent's refusal to fulfill his contract. What,
then, is the question of fraud arising upon 4 he
appellant's bill ? None other than what the
law can imply in every case of a bill for spe-
cific performance. I have already shown that
in such cases the decision must turn upon the
validity and sufficiency of the agreement set
forth and proved. But I will here add, that
to entitle a party to relief upon the ground of
fraud, the fraud must be specifically and ex-
pressly charged and put in issue.
This point has been determined by this
court in M'Kernon v. Jaine*, 6 Johns., 560,
561, 564, 565, in which the present Chancellor
and Mr. Justice Spencer delivered the opinion
of the court. The same rule is laid down in
the English books. (Mitf. PI., 19, 255 ; Gilb.
For. Romnmim, 218 ; Clarke v. Tvrttm, 11
Ves., Jr., 240; Johnton v. Child, \ Bro. C.
C., 94 )
Again ; should this be considered a case of
fraud, it may be asked, what relief are the ap-
pellants to have? Will this court decree the
land to them without price ? Would not such
a decree go beyond their claim, and travel out
of the case presented by their bill ? Or will
the court undertake to establish the price and
the terms of payment, or the terms and con-
ditions of a lease to be given by the respond-
Too
42
COURT OP ERRORS,' STATE OF NEW YORK.
1816
ent ? If it will, it must do so arbitrarily, and
without a guide, or it must recur to the agree-
ment set up by the appellants. The first would
violate all the settled principles of justice and
equity, and the latter brings us back to the
question whether the agreement stated by the
appellants has been duly proved, and can be
specifically executed here.
I am aware that there are cases in the books
in which it is laid down that a party's right
shall be concluded bv his fraudulent acts.
But those are cases widely different from the
present. For the purpose of illustration, I
will mention a few of them, and state the
principles on which they are decided.
Where a man who has a title to land and
knows of it, stands by and either encourages
or does not forbid the purchase from another,
he, and all claiming under him, shall be bound
by such purchase. (1 Fonbl. Eq,. 161 ; Rob.
on Frauds, 130.) For he imposed a false ap-
prehension upon the purchaser by his silence,
43*J *when silence was treacherously express-
ive. So, where A encourages a person to
take a long lease from a tenant for life, to
whom A stands next in remainder, and to
build and make improvements, and the tenant
for life dies before the lease is out, a court of
equity will not suffer A to disturb the lessee
until the expiration of his lease. (Haunt rig v.
Ferrers, 1 Abr. Eq. Gas., 875.) Because, to
use the language adopted by His Honor, Gh. J.
Thompson, in Nevin v. Belknap, 2 Johns., 589,
where a man has been silent, when in con-
science he ought to have spoken, equity will
debar him from speaking when conscience re-
quires him to be silent.
Again ; in the same case, when speaking of
a purchaser taking possession, and making
improvements under the circumstances above
mentioned, His Honor says, that to make
those acts available to him, they must be done
as owner of the estate, and which he would
not have done had he not considered himself
in that light.
Hence it will be seen that the class of cases
in which fraud will devest or suspend a man's
title, differ totally from the case now before
us. Here the appellants avow that they en-
tered and made their improvements upon the
faith of an agreement, by which they ac-
knowledge the title to the land to be in the re-
spondent. There has, therefore, been no
fraudulent concealment in the case. The ap-
pellants have not been treacherously led to
purchase the title- from another, nor to enter
upon and improve the laud, considering it as
their own ; for their bill furnishes conclusive
evidence to the contrary.
But after all, what evidence have we to sup-
port any allegation of fraud against the re-
spondent ? It is said that he induced the ap '
pellants to expend their labor and money to
improve his land, by false assurances that he
would give them a good title for it. Is this
true ? To answer the question correctly, we
must again look at the testimony.
In July, 1793, the appellants obtained an
assignment of a written permission given by
the respondent to Lawrence to enter upon and
hold the laud until further orders ; they to
have the preference either to purchase or
lease whenever his title should be perfected.
TtflJ
By virtue of that assignment, they took pos-
session in the spring of 1794, and occupied
the land until April, 1797, when they surren-
dered the written license of 1793, and by their
agent, S. Parkhurst, requested what he'calls a
new contract. *Upon this request, the [*44
respondent gave them another written^ per-
mission, dated the 7th of April, 1797, to pos-
sess the land, and containing a promise that
as soon as his title should be completed by a
release from the heirs of Mr. Clarke, he would
give them the preference either to purchase or
take a lease. Before, and at the time of giv-
ing the last permission, the respondent in sev-
eral conversations relative to the terms upon
which he intended to sell or lease the land, de-
clared that he would sell or lease it to the oc-
cupants, as wild land was going at the time of
giving the title, and that no advantage should
be taken of their labor. But, although the
appellants had, by their agent, S. Parkhurst,
previous to that time, intimated to him their
desire to have better security, he gave and they
accepted the permission of 1797 as their own
written security. This, in my opinion, puts
the allegations of fraud, founded on the above
conversations, at rest. For, according to S.
Parkhurst's testimony, the last permission
must be considered as the new contract. Its
language is plain, and cannot be misunder-
stood. If the appellants were not satisfied
with it. they had an election to reject it ; but
they elected to accept, and therefore are con-
cluded by it. But the evidence does not stop
here. In February, 1803, the respondent
wrote a letter to his attorney (Mr. Platt) re-
questing him to give leases for three years to
the settlers on his Oriskany lands ; and in that
letter he inclosed a list of the settlers, to whom
he says he gave permission, several years be-
fore, to hold during his pleasure, without
any other consideration than their taking care
of and preventing waste on the land. The
bill admits that a copy of this letter was de-
livered to one of the appellants, when he re-
ceived the lease for three years. Surely that
copy gave the appellants full notice of the light
which the respondent considered his engage-
ment to them, and after this notice they ac-
cepted from him, and held under a three
years' lease, with covenants to deliver up the
possession at its expiration.
Again ; when the lease expired in the spring
of 1806, G. W. F. Parkhurst, for himself
and the other appellants, .addressed a let-
ter to the respondent, which unequivocally
admits that he has the absolute disposal of the
land, and explicitly negatives every pretense
of any agreement with them, either for a deed
or a lease upon any terms. What, then, is the
evidence of fraud and deception in this case ?
It is obvious that the appellants *were [*45
ignorant of any in 1806, and the case furnishes
no testimony of a discovery since.
In every point of view in which I have con-
sidered this case, I am fully satisfied that the
appeal cannot be sustained. I am, therefore,
constrained, notwithstanding it may appear
hard against the appellants, to concur in the
decree made by His Honor, the Chancellor.
For to use the strong language of Mr. Justice
Thompson, in the case of Jackson v. Sill, 11
Johns., 220, "it is better to preserve consisten-
JOHNS. REP., 14.
1816
NEW YORK FIREMEN INS. Co. v. LAWRENCE.
45
cy in legal principles, although it may not al-
ways suit the equity of the individual case,
than to make those principles bend to what
may l>e thought the substantial justice of each
particularcase."
ALLEN, BARKER, COCIIRAN, FREY, HASCAL.
RADCLIKK, SBYMOUR, STEWART, TiBBETsand
WENDELL, Senator*, were of the same opinion.
A majority of the court1 being of opinion
that the decree of the Court of Chancery
ought to be reversed, it was, thereupon, or-
dered, adjudged and decreed that the decree
appealed from be reversed, &c., and that the
proceedings in this cause be remitted to the
Court of Chancery, to the end that the dec ree
made therein, in the said court, prior to there-
hearing thereof, and to the making the decree
hereby reversed, muy be carried into full
effect ; and that the respondent pay to the ap-
pellants their costs of this appeal, to be taxed
and allowed by the Court of Chancery."*
Decree reversed.
Reversing— 1 Johns. Ch., 273.
Cited in-2 Wen«l., 224 : 5 Wond.. 648 ; 17 Wend..
168 ; 2 Edw., 62 : 4 N. Y.. 410 ; 14 N. Y., 589 ; 34 N. Y..
313; SLans., 249; 1 Abb. App. Dec., 517; 1 Barb.,
4«7; 43 How. Pr., 430: HI How. Pr., 53 ; 3 Duer. 404 ;
5 DUCT. 283 ; 2 Kob., 304 ; 8 Rob., 235 ; 2 Kcdf ., 410 ;
., 35,36.
4O*J *THE NEW YOHK FIREMEN IN-
SURANCE COMPANY, PUiintiff* in Ei-
JONATHAN LAWRENCE. JR., Survivor
of HENRY WHITNEY, Deceased, Defeiident
in Error.
Marine Insurance- — Detention — Election — De-
tuition — Intention Doe* Not Constitute — Loss.
Goods were insured at and from New York to
Gothenburg, and at und from thence to one port
in the Baltic or North Sea, not south of the River
Jude. The ship having sailed from New York, ar-
rived at Gothenburg on the 17th of July, 1810. where
she remained until the 8th of October, being de-
tained by adverse winds. The master, according to
instructions from the supercanro, sailed from Go-
thenburg to St. Petersburgh, t» which place1 the ves-
sel was proceeding; but meeting with accidents,
was compelled from necessity to put into CarMham
for 1-rpuir.s on the 1st of November, and stilled from
thence again, on the 10th of November, for St.
Petersburg!! : hut on the llth was compelled, by
stress of weather, again to put back to Carlsham,
and was detained by adverse winds until the season
became too late to navigate the Gulf of Finland :
during this detention, the supercargo determined
to send the vessel to Stockholm, for which place
she was cleared, and on the :M of May, SHiled on her
destination to Stockholm and before she came to
tin- dividing point of the routes to Stockholm and
St. Petersbnrgh. was captured by a French pri-
vateer, carried into Daiit/ir, and afterwards con-
demned by the Council of Prizes at Paris. Held,
that then- WIIH an intention to deviate only, and
that the vessel being lost before she arrived at the
dividing point, the insurers were liable.
1.— For reversing, 17 ; for affirming, 12.
2,-See Murry v. Blatchford, 2 Wend.. 221.
NOTE.— Marine Insurance— Deviation— What enn-
*titutfM — Intention <l<»c* nut—What excuse*. See
(iilfertv. Hallett.2 Johns. Cos., 206, note; Patrick
v. Ludluw, 3 Johns. Cas., 10. note; Henshaw v. Ma-
rine Ins. Co., 2 Cat.. 274, m>tc ; Liotard v. Graves, 3
Cai., '-'•': '<"''• ; Suydam v. Marine Ins. Co., 1 Johns.,
81, ii"t>-.
.[••UN- Kt.i- . 14
Citations— Dig., tit. Election, ch. 2 : 1 Roll. Abr..
720, tit. Election. E; Doug.. 14, 16; 7 T. R.. 162;
5 Bos. & P.. 439 ; Park. 226 ; 1 Campb., 454 ; 3 Tyng,
409.
Tin* was an action on a policy of insurance,
by which the defendant in error, and his
former co-partner, Henry Whitney, deceased,
were insured in the sum of $20,000, at a pre-
mium of ten per cent., to return eleven per
cent, if the risk ended at Gothenburg without
loss, upon goods on board the ship Atlantic.
Charles Jayne, master, for a voyage at and
from New York, to Gothenburg, and at and
from thence to one port in the Baltic or North
Sea, not south of the River Jade, with liberty
of discharging the cargo, in whole or in part*,
at either port she might go to. A special ver-
dict was found by the jury in the court below,
whereon judgment was rendered for the de-
fendant in error, in August Term, 1814 ; to
reverse which judgment a writ of error was
brought.
The special verdict stated that the vessel
sailed from New York, and arrived at Go-
thenburg on the 17th of July, 1810 ; that after
her arrival at Gothenburg, the defendant in
error, and his deceased partner, by their agent
duly authorized, on the 28th of July, deter-
mined to proceed with the ship to St. Peters-
burgh, a port in the Baltic, not south of the
River Jade, and gave instructions to the mas-
ter accordingly ; that on the 8th of October,
and as soon as the wind and weather would
permit, the ship departed from Gothenburg to
St. Petersburg!!, and while on her due course
to the latter place, was, on the 1st of Novem-
ber, by stress of weather, and to repair the
damage occasioned by the dangers and perils
of the sea, obliged to put into the port of
Carlsham. where she remained until the dam-
ages were repaired ; and as soon as the wind
and weather would permit, on the 10th of
November, again sailed for St. Petersburg!!,
and on the llth of November, she was obliged,
by adverse winds, and stress of weather, to re-
turn *to Carlsham, where she arrived [*47
on the same day ; that she was detained by
adverse winds until the 1st of December,
when the season became too far advanced to
navigate the Gulf of Finland, and pursue her
voyage to St. Petersburg!! until the naviga-
tion of i In- Baltic should again open ; that
during the detention of the vessel at Carlsham.
the defendant in error and his deceased part-
ner, by their supercargo and agent, deter-
mined to proceed to Stockholm in Sweden,
and not to St. Petersburg!!, and the master
was instructed accordingly ; that on the 1st
of May a clearance was taken at Carlsham for
Stockholm, being a port in the Baltic not
south of the River Jade ; that afterwards, as
#0011 as the openingof the navigation in the Bal-
tic would permit, on the 2d of May, the vessel
sailed towards Stockholm, with a destination
for Stockholm, and not St. Petersburg!!, and
the supercargo remained at Carlsham ; that
while proceeding for Stockholm, she was, on
the 3d of May, captured by a French priva-
teer called the Petit Diabie; that when the
Atlantic was captured, she was in the direct
route, either to Stockholm or St. Petersburg!!,
and whether she had been going to the one or
the other of those places, her course after she
7«7
47
COUKT OF ERRORS, STATE OF NEW YORK.
1816
left Carlsham, and her course also after she
left Gothenburg, and until she was captured,
would have been the same ; the course from
Carlsham, and also the course from Gothen-
burg to St. Petersburg!!, and from Carlsham,
as also from Gothenburg to Stockholm, being
the same to a point at which the Atlantic had
not arrived when she was captured ; that she
was carried by the privateer to Dantzic, her
papers sent to Paris, and with the cargo was
condemned by the Council of Prizes at Paris
on the 10th September, 1811 ; and the follow-
ing was the decree of condemnation : "The
Council decides the prize made by the French
privateer, the Petit Diable, of the ship Allan
tic, under the American flag, carried into
Dantzic, good and valid ; consequently, ad-
judges to the owners and crew of the said pri-
vateer, all the said vessel, as well as the mer-
chandise of her cargo, the whole to be sold at
vendue, according to the forms and in the man-
ner prescribed by the laws and regulations
made concerning prizes." That due prelimi-
nary proof was properly exhibited, and that,
in consequence of the capture and condemna-
tion of the ship and of the goods, wares and
merchandise, the same goods, wares and mer-
chandises, became and were totally lost to the
assured.
An action was brought by the defendant in
48*] error against *the Ocean Insurance Com-
pany, on a policy on goods in the same vessel,
which involved the questions arising in the
present cause; and which was argued in the
court below, and judgment given for the de-
fendant in error; and judgment was also given
in the present cause for the defendant in error,
as standing upon the same ground with Jhe
other cause, and being governed by that decis-
ion. (See Lawrence v . The Ocean Ins. Co., 11
Johns., 241.)
The Chief Justice stated the reasons of the
judgment of the Supreme Court. (See 11
Johns., 259, 263.)
Mr. S. Jones, Jr., for the plaintiffs in error.
It is evident from the face of the policy, that
the right of electing the port to which the ves-
sel should ultimately proceed, was left with the
assured; and it is also evident that the assured
was bound to make his election at Gothenburg.
He had no right to proceed from Gothenburg
to a port of inquiry, but was bound to sail to a
port of discharge. At Gothenburg the election
was made to proceed to St. Petersburg!! and
the subsequent abandonment of that voyage at
Carlsham and the substitution of another dis-
charged the insurers. If a person once deter-
mines his election, it shall be determined for-
ever (Com. Dig. Elec., ch. 2; Cases cited, 11
Johns., 254); certainty in the description of
the voyage is requisite in a contract of insur-
ance. (Marsh, on Ins., 321.) In this case tha
port to which the vessel should proceed on
leaving Gothenburg was to be ascertained at
that place; id certum est quod cerium reddi pot-
ent; and on being reduced to certainty by the
election of the assured at Gothenburg, he had
no power to depart from it, and adopt another
destination. If not bound by his election at
Gothenburg, neither was he bound by his de-
cision at Carlsham, but had an unlimited
power of recalling his last determination, and
of shifting, according to whim and caprice,
768
the ultimate port of destination. How little
would such a permission be consistent with the
precision required by the nature of the con-
tract! The change of vojage made at Carl-
sham was not a mere intended deviation, but it
was an abandonment of the voyage insured.
There are three classes of cases in relation to
this subject: 1. Where there has never been
an inception of the voyage; 2. Where there
has been a deviation, by unnecessarily touch-
ing at an intermediate port; and, 3. Where
there is an entire change and abandonment of
the voyage. In the present case, *il is [*49
urged that there was merely an intended devia-
tion; but there can be no deviation unless the
original object of the voyage remains, and to
which it is intended afterwards to recur; un-
less the termini continue, there can be nothing
from which to deviate; here, one of the termi-
ni w as relinquished, and hence it is contended
that the voyage was abandoned. In the various
cases in respect of deviation (see cases cited, 11
Johns., 253), the termini was unaltered; there
was a digression from the original destination
which was still preserved. WooMridge v. Boy-
dell, Doug. , 16, is extremely like this case. The
insurance was from Maryland to Cadiz, but the
clearance was forFalmouth; and although it
was uncertain whether that was actually the
destination, yet it was certain that it was not
Cadiz, as in this case St. Petersburgh was
made the terminus ad quem by the election of
the assured, which he could not afterwards
vary; and in that case, as in this, the vessel
was captured before she arrived at the dividing
point, the insurer was held to be discharged:
and Lord Mansfield observes that in all the
cases of intended deviation, the -terminus a quo
and ad quem were certain and the same; and
Buller, J., says there cannot be a deviation
from what never existed. In Stocker v. Harris,
3 Mass., 409, cited by Van Ness, J., in the court
below (11 Johns,, 269), the insurance was from
Boston to the Canaries, at and from thence to
any port or ports of South America, at and
from thence to her port of discharge in the
United States. The vessel went to the Cana-
ries, and, under Spanish colors and papers,
from thence to Vera Cruz; and then proceeded
to the Havana, where she was to exchange her
papers, and thence return to the United States.
On her course to the Havana, but before she
had left the track she must have taken if com-
ing to the United States, the ship was captured;
and it was held that the insured was not enti-
tled to recover. Now, although Sewall, </., in
delivering the opinion of the court, speaks of
the voyage to the Havana as a deviation, yet it
is evident that the term was not used in its
strict acceptation (and, indeed, he calls it a dis-
tinct and additional risk), and that the real
ground of decision was the substitution of a
new voyage, which, under the particular cir-
cumstances of that case, did not come within
the permission to visit any ports of Spanish
America. Had it been deemed a deviation, in
the appropriate sense of the phrase, it is evi-
dent that the decision would have been other-
wise, because, at the time of the capture, it
was but intended.
*Blackenhagenv. The London Ass. Co., [*5O
1 Campb. , 454, is also a case of abandonment
of voyage, placed expressly on that ground,
JOHNS. REP., 14.
1816
NEW YORK FIREMEN INS. Co. v. LAWRENCE.
50
and that, too, after the inception of it. The | increased, and that the vessel must keep on
insurance was from London to Revel. On the | directly in the tier to some port within that
voyage it was learned that an embargo had range. The change of destination from St.
been laid there; in consequence, the vessel put Petersburgh to Stockholm did not alter the
back to Copenhagen Roads, and afterwards j identity of the voyage, or substitute a new
lay off Gothenburg six days, and might have | contract, because they were both within the
entered that friendly port, if the master had range of the policy; the termini still continued
thought fit; and while proceeding on her way ' the same. (Cases cited, 11 Johns., 261.)
back to England was lost; as the return to j But suppose that the determination to go to
England was not with a view of finally getting j St. Petersburgh concluded the assured, and
to Revel, for which purpose the vessel ought | that that was the terminus in the policy, still it
to have put into Gothenburg, it was succes-
sively held by Jx>rd Ellenborough and Mans-
field, Ch. J., that the insured was not entitled
to recover. But it may, perhaps, be said that
the original design of going to St. Petersburgh
might be resumed after leaving Carlsham. and
that the assured could have availed themselves
of the /"•••/.<• panittntia. But how and by whom
was this to be done? Certainly not by the su-
percargo, for there was a physical disability on
his part; he was left behind at Carlsham — nor
by the master, for he was morally unable to do
it; his instructions were express to go to Stock-
holm; it was his duty to obey them, and the
possibility of violating a duty is never to be
presumed; still less is the probability of it to
be made a ground of argument. Where the
master has orders, he is not at liberty to exer-
cise his judgment. (7 T. R., 160.)
Mesurs. jfenry&nd. T. A. Emmet, contra. The
port of destination by this policy was left
floating, and the assured were at liberty to go
to whatever port they might find open for
was only an intended alteration or deviation.
There are but two classes of cases on this sub-
ject: 1. Where the voyage has never been com-
menced: and, 2. Where there is a deviation.
This second class includes the last two classes
made by the counsel on the other side; and the
difference between the two sets, into which the
cases are distinguishable, is, that in the first
there is a return of premium, but not in the
second. A substitution or change of voyage
and a deviation are precisely the same thing.
After the voyage has been once commenced
there can be no substitution for a new voyage,
in the sense contended for by the opposite
party ; for it must be of one entire voyage for
another, and that is impossible where one of
thi: termini continues fixed. The language of
Lord Mansfield, in Lavabre v. Wilson, Doug.,
291, shows that he considered the terms as
equipolent. "The true objection to a devia-
tion," he says, "is not the increase of the risk.
If that were so, it would only be necessary to give
an additional premium. It is that the party con
them, and which they might choose to enter. I trading has voluntarily substituted another
Tli..\- mirrKt at anv tima i.K.ct tli.. 1 1 11 i 111 -i ! i > \ .i\--iir«» fur tfiat ti-lit*-li liaa }I..,.TI «neti**A/1 "
They might at any time elect the ultimate
point of destination, subject only to the re-
striction that the insurers were not to run
double or increased risks. The assured were
not bound to elect at Gothenburg, any more
than if Gothenburg had not been namea in the
policy. Suppose the voyage had been direct
from New York to a port in the Baltic, when
would they have been bound to decide? Cer-
tainly not until a choice became absolutely
necessary; and the same rule must apply to the
voyage from Gothenburg as would have applied
to one from New York. The election at Gothen-
burg was not binding upon the assured, but
they were at liberty to elect after sailing from
Carlsham, for it did not create a double risk;
the object of the policy was to leave the ulti-
mate port always open for selection; it was
peculiarly fit that it should be so, on account
51*] of *the unsettled and continually shift-
ing state of that part of Europe to which the
vessel was bound. It was not final, because
the insured were under no obligation to make
it. There was no such stipulation in the poli-
cy; had it been intended that an election should
have been made, it would have been provided
for by the contract; and then the insured, on
making the election, would have been bound
to make it known. Such stipulation was not
necessary for the protection of the insurers;
for after the vessel had passed the dividing
point she could not have retraced her course.
We must look to the contract as it was written,
which shows that the undefined port was
never intended to be filled up, but it was left
open for the assured to go to any port within
the ranee of the policy without previous elec-
tion, only that the risk must not be varied or
voyage for that which has been insured."
Such is evidently the understanding of the
writers on insurance (Marsh. Ins., 183, 185, 186;
Park Ins., 387); and according to Millar (on
Ins., 389), a deviation is a variation from the
policy adopted after the risk has *com- [*52
menced. Roccus (De Assecnrutionious, n. 20)
treats of deviation and change of voyage as
the same thing, and considers both as ansing
subsequently to the commencement of the
risk Si navis mutaverti tier, vel ceperti tecun-
dum viagium, vel convenerit asportare alias mer-
fm in alium locum, vel alias assecurationes fece-
rti pro ditto secundo viagio, tune in casibus pr(f-
dictu* assecuratorespro primo viagio amplius' non
tenentur: nam cum nans diverterit ad extraneos
aclus, dicitur mutasse tier, et plura riagiafecisse,
et primum dicitur mutatmn: Umita tamen si
mutetur tier exjusta causa. And again (Note
52); Periculum intelligitur solum currere assecu-
rator pro illo tiinere convento, et non pro <i>i<>;
nam si navis mutaverti tier, vel a vie recta illins
itineris diverterti, non tenetur ampUut, assenira-
tor; nunc vero Umita si tier mutacerti ex aliqua
justa et necessaria causa, <tc. He also states an
adjudged case (Note 98) in which the defense
was that the ship mutavit tier, and the insured
recovered, because, ex legtiima et necessaria
causa tier ipse diverterit.
ThfUusson v. Ferguson, Doug., 361, was an
insurance on a ship from Guadaloupe to
Havre; and it was questionable whether
Brest was not the real destination; the vessel
was captured before arriving at the dividing
point. One of the points was, that the ship
never sailed on the voyage insured, viz: from
Guadaloupe to Havre, but on a voyage from
Guadeloupe to Brest; but Lord Mansfield
JOHNS. REP., 14.
N. Y. R.. 5.
49
52
COURT OK ERRORS, STATE OP NEW YORK.
1816
says: "The voyage to Brest, was, at most,
but an intended deviation, not carried into
effect;" and it appears that the vessel certainly
sailed from her first port in Guadaloupe for
Havre, and that the intention was afterwards
formed. This case is decisive to show that a
subsequent abandonment of the terminus ad
quern is only a deviation. In Wooldridge v. Bay-
dell, Doug., 16, cited on the other side, the
vessel never did sail on the voyage insured, so
that it was a case of non-inception and not of
deviation. Whether it be intended to relin-
quish the port of destination, or merely to go
out of the course of the voyage, and then re-
turn to it, if the intention be not carried into
effect, but the loss arises before arriving at the
dividing point, the insurer is held liable. The
terminus ad quern is never inquired into, or
kept in view, on the subject of deviation, ex-
cept where there is no inception of the voyage,
or a justifiable deviation. In these two cases
the terminus ad quern is material, and is never
lost sight of in the discussion, but in no other.
(See cases as to deviation, 11 Johns., 253.) In
Stacker v. Harris, 3 Mass., 409, relied on by the
53* J opposite counsel, the intention *to go to
the Havana was formed before leaving V era
Cruz, so that the return voyage was never
commenced; although there are cases in which
an intention to touch at a port out of the Her,
for purposes of "a distinct trade and business"
(3 Mass., 418), has been held an intention to
deviate only ; such were the cases of Foster v.
Wilmer, and Carter v. The Royal Exchange As-
surance Company, Str., 1249, and those cases,
as well as Kewley v. Ryan, 1 H. Bl., 343; Silva
v. Low, 1 Johns. Gas., 184; Hemhaw v. The
Marine Ins. Co., 2 Caines, 274, and ThetMa-
rinelns. Co. of Alexandria v. Tucker, 3 Cranch.,
357, show that the question of deviation is not
affected by its being intended before the de-
parture of the vessel on her voyage. Forbes v.
Church, 3 Johns. Gas., 159, was a case of non-
inception, and a return of premium was di-
rected. In Driscoll v. Passmore, 1 Bos. & P. ,
200, and Driscoll v. Bwil, 1 Bos. & P., 313,
there was an actual but justifiable deviation;
and therefore, according to the distinction
which has been urged, the terminus ad quern
was a proper subject of discussion. What is
said in Narvillev. Barbe, 2 New Rep., 434;
Marsh., 836, that where the terminus ad quern
is changed, it is not a deviation, but an aban-
donment of the voyage, is merely the dictum of
counsel, and can have no weight. In Blacken-
Jiagen v. The London Ass. Co., 1 Campb., 454;
Park. Ins., 226, there was an actual deviation,
an actual abandonment of the voyage. Going
to Stockholm instead of St. Petersburg!! could
not, in this case, materially affect the risk, and
ought not to be allowed to discharge the un-
derwriters. There was always room for a
resort to the locus pcenitentice, for the intention
was still unexecuted, and was not binding. A
man is not permitted to avail himself of the
locus p&nitentice to do an immoral act, but in
every other case he may have recourse to it.
Suppose the master's instructions were founded
upon circumstances which he afterwards dis-
covered to be false, might he not disregard his
orders, and go to the port originally intended?
The clearance to Stockholm was only evidence
of intention; and although the supercargo re-
770
mained at Carlsham, still he might have gone
on board, or sent, and given other instructions;
but as the intention, whether to deviate or to
abandon the voyage, was never carried into
execution, it cannot be regarded by the court.
Mr. D. B. Ogden, in reply, said that the idea
of a floating policy was altogether new; and
insisted that the assured were bound to elect
at Gothenburg, which, when done, was de-
cisive and irrevocable. It was the unanimous
opinion of the Supreme Court that the election
was made at Gothenburg, and was binding.
*The present is not like those cases in [*54
which the insurance has been to a certain place
and a market, as was Majwell v. Robinson &
Ilartshorne, 1 Johns., 333, in which the
policy was on a voyage to Barbadoes and a
market; and it was proved to be the usage of
trade to allow the vessel to go from island to
island, to dispose of her cargo ; but the court
declared that they did not mean to say that the
same construction was to be given to a policy
in any other trade than that to the West Indies.
Here there was no proof of any usage of trade.
The voyage was, then, at and from New York
to Gothenburg, and at and from Gothenburg
to St.Petersburgh, and Carlsham was a port of
necessity; but by making Carlsham a new
starting point on a new voyage, it ceased to
be a port of necessity; and then the true point
in controversy arises, whether the vessel were
lost on the voyage insured or on a new voyage.
The proof shows the latter to have been the
fact. The case of Wooldridge v. Boydell, Doug.,
16, is -in point, and in that case, as in this, the
jury found that the vessel did not sail on the
voyage insured, and was on a distinct voyage
when lost. In Kewly v Ryan, 2 H. Bl., 343,
the court distinguish between that case and the
one last cited, and put their decision expressly
on the ground that the termini of the intended
voyage were really the same as those described
in the policy; and that, therefore, it was to be
considered as the same voyage. The counsel
relied strongly on Stocker v. Harris,^ Mass., 409,
and cited Blackenhagen v. The London As. Co.,
1 Campb., 454. Thellusonv. Fergusson, Doug.,
361, he said, was inapplicable, for there it was
always the intention to go to Havre, and at the
most, to take Brest in the way. He denied that
there can be no substitution of a voyage where
there is no return of premium; nor can it be
contended that the master might have aban-
doned the voyage to Stockholm and gone to
St. Petersburg!!. He was bound to pursue his
instructions (7 T. R, 160), and was out of the
reach of the only person authorized to revoke
them.
THE CHANCELLOR. Two questions arise
upon this case:
1. Whether the determination of the assured
while at Gothenburg to go to Petersburgh was
not binding, so as to render Petersburg!! the
port of destination equally as if it had been
originally inserted in the policy.
2. Whether the determination at Carlsham
to abandon Petersburgh, and go to Stockholm,
and the sailing for Stockholm in preference
*of that determination, and under in- [*55
structions to the master to that effect, was .not
an abandonment of the voyage insured so as
to discharge the underwriter.
JOHNS. REP.. 14.
1816
NEW YORK FIREMEN INS. Co. v. LAWRENCE.
55
1. Liberty was given to the assured to select, !
after the commencement of the voyage, the |
port of destination, and the only limit to bis
choice was, that the port was to be in the ;
Baltic or North Sea, not south of the River
Jade. The time when it was to be made was
not specified; nor do I think it necessary for ,
us now to decide whether the election of the
port of destination might have been deferred
until after the departure from Gothenburg, ,
for the assured did make his election while at '
Gothenburg, and he had a right to make it
there : and being made, it puts an end to the
inquiry. It is a fact found by the verdict, that
the vessel being at Gothenburg, the assured, by '
their authorized agent, did determine to go to |
Petersburg!!, and did instruct the master ac-
cordingly ; and the vessel sailed for Petersburg!!
under that determination. Tins was an exer- ;
cise of the right of election, and being fairly
made and acted upon, it was binding and |
definitive upon the party On this point the i
Supreme Court were unanimous, and on this
point the argument and the law are equally I
decisive. Nor should I have thought it nee- j
essary to have dwelt a moment upon it, if it |
had not been insisted upon by one of the
learned counsel for the defendants in error,
that though the assured, while at Gothenburg,
elected to go to Petersburg!!, and sailed for
that port, and persevered in that election until
the spring following; yet, that the assured was
-till at liberty to elect another port.
The principle of law is, that if a man has an
election to do or demand one of two things, !
and he determines his election, it shall be de-
termined forever. This is so laid down by
Lord Ch. B. Comyns(Dig., tit. Election, ch. 2),
who has always been deemed a great authority.
There is a case given in Holle (1 Roll. Abr.,
726, tit. Election, E) in support of this doctrine.
A man delivers an obligation to A for the use
of B, and B, as soon as he hears of it, refuses the
bond; this refusal is peremptory, and he cannot
afterwards accept it. The modern case of
Laylon v. Pearce, in the K. B. (Doug., 14), is
another illustration of the rule. The defendant
had received of G. £1 6*., on condition that if
a certain lottery ticket should come up a blank
or a prize on the next day, he would deliver to
G. an undrawn ticket, or pay him £20. Lord
Mansfield said, in behalf of the court, that they
were of opinion that if the option had been in
fttt*] G. , and if lie *had made his election to
take the £20, he would have put an end to the
alternative, and have converted the agreement
into an absolute contract for the payment of
money.
The rule seems to be everywhere admitted.
The numerous cases which treat of alternative
obligations assume this an a conceded point,
:n ii I I apprehend it to be most clearly and uni
forinly settled, that if a party has an election ;
reserved to him in a contract, and he once fairly
exercise that right of election. his determination :
is binding. This is the good sense and reason
<>f the thing. If A gives B one of the horses !
in his stable, according to the instance given >
in Coke, B has his election to take which he |
E leases, as no one in particular was designated i
y A ; but having elected one, all will agree ;
that he cannot return it and take another. It
is most convenient, in all manner of dealing, i
JOHNS. REP., 14.
that contracts, uncertain at first, should be re-
duced to certainty as soon as possible, to guard
against the temptations and speculations which
that very uncertainty may lead to. We can see
the injustice of the application of a contrary
doc-trine in this very case.
The determination to go to Petersburg!! is
said not to be binding, and that the party was
at liberty, at any time afterwards, to change
it, subject- to some equitable modifications
which were suggested. But can we say, from
the facts in this case, that the election to go to
Petersburg!! did not determine the fate ol the
voyage? Are we certain the loss would have
happened without the influence of that very
determination? The captain, on the 1st of
December, at Carlsham, gave up the voyage
for the winter, because the season was too far
advanced to navigate the Gulf of Finland. Be
it so; but was it too far advanced to navigate
to Stockholm, which is not in the Gulf of Fin-
land, but is above half a degree of latitude south
of Petersburg!!, and perhaps three hundred
miles of shorter navigation ? For aught that ap-
pears in this case, or that we can know, the vessel
might have gone conveniently and safely to
Stockholm in December, and therefore have
avoided the capture in the ensuing spring. We
have a right to say it was the election previously
made to go to Petersburg!!, and which still
kept its hold on the mind of the party,
that prevented the other destination. The elec-
tion made at Gothenburg probably controlled
and fixed the destinies of this voyage, and
brought on the final catastrophe. Shall the
party, then, be at liberty to say it was a matter
of no consequence, *and that he was [*57
free to change his purpose when he pleased,
and that the underwriter must remain liable
to all the hazard of determinations partly ex-
ecuted and then abandoned? Such a construc-
tion appears to have as little foundation in jus-
tice as in law, and we ought to consider this
case as if Petersburgh haa been the place of
destination inserted in the policy.
2. The second point was the one discussed
at large in the Supreme Court, and on which
there was a final difference of opinion. The
point is whether the determination formed at
Carlsham to abandon Petersburgh and go to
Stockholm and sailing for Stockholm was not,
under the circumstances of the case, an aban-
donment of the cargo insured.
A voyage imports a definite commencement
and end. It is known and characterized by
its termini. They are the recognized tests of
its identity. It Is equally clear that deviation
is applicable only while the same vovage con- •
tinues. Deviation is not a change of the voy-
age, but of the proper and usual course in per-
forming it. The voyage insured is never lost
sight of in cases of deviation, actual or in-
tended. In all the cases of deviation, as Lord
Mansfield observed in WixMridye v. li»y<l,ll,
Doug^., 16, the terminus a qtn> e.t a<i quern were
certain and the same. Thus, a permission to
touch and trade at intermediate ports is under-
stood to be subject to the intention of prose-
cuting the voyage described, to its specified
end. Semper aninut et inttntinne pronequtndi
ciaggium ti*que adjinem detignatum. A voyage
is always deemed the same, whatever be the
deviation, provided the original port of desti-
771
57
COUKT OP ERRORS, STATE OP NEW YORK.
1816
nation be not abandoned. These are the plain
elementary rules in the law of insurance. And
because the question of deviation always pre-
supposes and admits a continuation of the
original voyage, it follows that a mere inten-
tion to deviate, whether formed before or after
the commencement of the voyage, is no devia-
tion, if the intention was never carried into
effect, and the loss happened before the vessel
came to the dividing point.
But if the original place of destination be
abandoned, in order to go to another port of
discharge, the voyage itself becomes changed,
because one of the termini of the original voy-
age is changed. The identity of the voyage is
fone, and a new, distinct voyage is substituted.
Q that case, intention is everything, for on
that depends the fact, whether the original
voyage was or was not abandoned. And if
.£>»*] the intention to abandon *be once clearly
and certainly established (as it is in this case,
by the finding of the jury), it then became
perfectly immaterial whether the vessel was
lost before or after she came to the dividing
point, because, in either case, she was lost, not
on the voyage insured, but on a different
voyage.
In my apprehension, this simple statement
of the law is sufficient to decide this case.
But in order to give these principles more
full and satisfactory illustration, I proceed to
observe further, that an insurance relates only
to the voyage specially described in the policy.
Thus, in Wooldridge v. Boy dell, already re-
ferred to, the ship was insured from Maryland
to Cadiz, but she cleared for Falmouth ; and
the weight of evidence was, that she sailed
for Falmouth without any intention of going
to Cadiz ; and therefore, Lord Mansfield told
the jury that if there was no intention of going
to Cadiz, they must find for the underwriter ;
and they did so, although the vessel was lost in
the Chesapeake, and before she arrived at the
dividing point between a voyage from Mary-
land to Cadiz and a voyage from Maryland to
Falmouth.
A distinction has, however, been set up be-
tween an intention formed before or after the
voyage be commenced, to change the voyage
by dropping the port of destination and select-
ing another. It is admitted by those who
make this distinction, that the intention to
change the voyage, and sailing under that in-
tention, discharges the insurer, if formed be-
fore the commencement of the voyage, and
that it is no matter whether the loss happens
before or after the vessel comes to the divid-
ing point. But it is contended that if the in-
'tention to change the voyage, by changing the
place of destination, be formed after the voy-
age be commenced, it is then to be likened to
an intention to deviate in the same voyage,
and does no harm if the loss happens while
the vessel is still on the common track. I am
persuaded that there is no foundation for this
distinction. The difference between the cases
is, that in the one the vessel is in fact sailing
on the same voyage, and in the other she is in
fact sailing on a different voyage, though she
may be for a while on the track common to
both voyages. The new voyage was in the
act of performance, as much before as it could
have been after passing the dividing point,
772
and the want of attention to this circumstance
has been the source of the error on this sub-
ject. If the voyage be abandoned by abandon-
ing the port of destination *and sailing [*59
for another, there is no reason why the under-
writer should be holden. It is not a case with-
in his contract. There is no dispute about
facts in this case. There never was a clearer
case of an actual bona fide and decided aban-
donment of a voyage insured. In an intended
deviation merely, there is no act done towards
a performance of the intention. The same
voyage continues, and if there be no actual de-
viation, there is no abuse of the contract.
Here the contract was at an end, by the act of
changing the port of destination and sailing
on a different voyage, and the justice and le-
gality of the underwriter's claim to be ex-
empted, strikes me with entire conviction.
It was urged by the counsel that the assured
might have repented of his new voyage to
Stockholm, and have re-assumed his former
one to Petersburg!! before he came to the di-
viding point, had not the capture intervened.
One of the learned counsel for the defendant
in error seemed to place his principal reliance
on this argument ; but the truth is, that there
was no room for repentance in this case, for
the captain was placed under a moral disabil-
ity to make an election or to exercise any dis-
cretion. He sailed under directions from the
agent of the insured not to go to Petersburgh,
but to go to Stockholm, and the agent himself
was not on board to discharge the captain
from this obligation. We are to intend that
every man will do his duty. We know it was
the bounden duty of the captain to follow his
instructions. He was, therefore, .in a moral
sense, unable to go to Petersburgh ; and this
court, it is hoped, will always recognize the
force of moral obligation. An intention to
deviate is nothing ; Because the intention may
be given up before the vessel arrives at the
dividing point ; but if the captain be under
positive instructions to take one course, and
not the other, he has no discretion to act, and
no liberty to repent. This cause alone is suf-
ficient to discharge the underwriter, and so it
was held by the Court of K. B. in Middlewood
v. Slakes, 7 T. R. , 162, where it was laid down
as a principle, that if the captain be tied up
by instructions, so that he is not at liberty to
exercise his judgment at the dividing point,
for the benefit of all concerned, the under-
writer is discharged.
But another, and a more captivating argu-
ment for the defendant, arises. It has been
said that there was no harm done in this case
to the underwriter by the sailing for Stock-
holm, for she was taken on the common route
to Stockholm and Petersburgh ; *and [*(5O
it would have been the same thing, if she had
been actually sailing for Petersburgh. But no
such principle is a safe or just rule of decision.
An actual deviation, without justifiable cause,
is fatal, however short the time, or however
short the distance, or however harmless the
effect of the deviation. Whether it be for an
hour, or a month — for one mile, or one hun-
dred— the consequence is the same. If it be
voluntary and without necessity, it puts an
end to the contract. It is not the increase of
the risk, but the substitution of another risk
JOHNS. REP., 14.
1816
NEW YOHK FIREMEN INS. Co. v. LAWRENCE.
60
that governs the case. These are plain rules
OD the subject of deviation, and they show
that courts do not determine these cases by es-
timates of the greater or the lesser risk. Even
if the risk had actually been diminished by
changing Petersburg!! for Stockholm, the un-
derwriters would have been discharged, and
for this plain, unanswerable reason, that it
was not the risk they undertook. The courts
are bound to measure out justice to parties
according to their own agreements, and not to
make agreements for them.
But are we authorized to say, from the case
itself, that no harm was done by the change of
the voyage ? We cannot adjudge that the capt-
ure would ever have taken place if the vessel
had sailed for Stockholm. She might not
have sailed at the very time that she did, if
she had been bound to Petersburgh. The
Gulf of Finland might not then have been
clear of ice. She might have been obliged to
wait at Carlsham some days longer, and the
privateer might not have been met with. It
is very possible, if not very probable, that the
loss would not have happened if the voyage to
Petersburgh had not been abandoned. It is
this very abandonment of one voyage, and the
substitution of another, that may have pro-
duced the loss. But I forbear to dwell on
such idle considerations. The contract of in-
surance, like other contracts, is governed by
fixed rules, which have respect to the mean-
ing of the parties, and not to calculations of
chances.
The true doctrine, on the whole of this sub-
ject, with great deference to the Supreme
Court, I take to be this: that the alteration at
Carlsham of the place of destination, by
abandoning Petersburgh, and determining to
go to Stockholm, and clearing for Stockholm
and sailing for Stockholm : and binding the
master by positive instructions to go there,
was a new voyage, not within the policy, and
from that time forward it discharged the un-
til*] derwriter. *I deem this to be the clear,
settled sense of the law of insurance in this
country, and in every other country where
the law merchant prevails. There is no de-
cision that contradicts this result, and there is
much in the books to confirm it. Thus, in
NorvOle v. St. Barbe, in the C. B., in 1807 (5
Bos. & P., 439), the counsel for the insurer
laid down these propositions, which were not
questioned either by the opposite counsel or
by the court : " That an intended deviation
would not vitiate a policy, if the loss happens
before the ship arrives at the dividing point.
That in the case of a deviation, the termini of
the voyage remains, though the course by
which the termintu ad quern is sought be
changed. But where the terminus ad quern is
changed, it is not a deviation, but an abandon-
ment of the voyage ; and such an abandon-
ment, at whatever time it takes place, whether
before or after the arrival of the ship at the
dividing point, discharges the underwriter."
The opinion here given in the C. B., and
seemingly acquiesced in. is precisely on the
very point now before this court; and the case
of Blackenhagen v. '/'/,/ London In*. Co., de-
cided the year after (Park, 226; 1 Campb.,
454). appears to me to be a decision on the
same principle. The voyage insured was from
JOHNS. REP., 14.
London to Revel. The vessel arrived in the Bal-
tic, and hearing that an embargo was laid on
all British ships in the ports of Russia, she put
back first to Copenhagen, and then to or near
Gothenburg. This was so far considered as
justifiable and necessary; but the ship after-
wards sailed for England, and in a few days
was lost. There was no point raised about
deviation, but the only question was, whether
the sailing for Ikteland was an abandonment
of the voyage. TTwas admitted, that if going
to England was the best means of finally get-
ting to Revel after the embargo was raised,
and that the party so intended, the vessel
might still have been considered in the course
of the voyage. But Lord Ellenborough, in the
first instance, and the Court of C. B. after-
wards, held, that from the weight of evidence
it appeared that the sailing for England was a
voluntary abandonment of the original voyage,
and the underwriter was discharged. We have
also a decision in this country on the same
question, and to which dicision very great re-
spect is to be given. It is the case o*f Stacker v.
Harris, 3 Tyng, 409, which was decided in the
Supreme Court of Massachusetts, in 1807, and
prior to the case in England. The insurance
*was on the ship America, from Boston [*O2
to the Canaries, and at and from thence to any
ports or ports in Spanish America; and at and
from thence to her port of discharge in the
United States. The ship goes to the Canaries,
and from thence to Vera Cruz, in Spanish
America. So far she was within the policy,
and from thence she would have been pro-
tected on the voyage to the United States.
But at Vera Cruz she takes a cargo and clear-
ance for the Havana, and on her passage to
the Havana, but before she had left the track
she must have pursued if coming to the United
States, she was captured and lost. For the un-
derwriters it was contended that the voyage to
the Havana was a new voyage, undertaken for
purposes of profit, and different from an in-
tent to deviate never executed. The very dis-
tinction was taken between an intent to deviate
on the same voyage, and the sailing on a new
one, and that in the latter case it was immate-
rial whether the vessel had, or had not, arrived
at the dividing point. The court took the same
distinction, and held that the voyage com-
menced from Vera Cruz for the Havana was a
new and distinct voyage, and that the under-
writer was discharged, though the loss hap
pened before the vessel came to the dividing
point.
I cannot but be persuaded, from the reasons
and authorities which have been mentioned,
that this is the true exposition of the law on
this point, and, consequently, that the judg-
ment of the Supreme Court ought to be re-
versed.
VAN VECHTEN, ALLEN, COCHRAN, HAOER,
HASCALL, KEYES and STEWART, Senatort,
were of the same opinion.
BARKER, Senator, was of opinion that the
assured were not bound to make their election
at Gothenburg of the port of discharge; that,
if they were, they did, in fact, sail for St.
Petersburgh; that the subsequent determina-
tion at Carlsham, to proceed to Stockholm, was,
at most, but a mere intention to deviate, the
778
62
COURT OF ERRORS, STATE OP NEW YORK.
1816
vessel being in the regular route of her voyage;
and that as there was no actual deiviation, nor
abandonment of the voyage, the judgment of
the Supreme Court was correct, and ought to
be affirmed.
BATES, BICKNELL, BLOOM, CLARK, CROSBY,
DAYTON, ELMENDORF, LOOMIS, PENDERGAST,
63*] Ross, STRANAHAN, SWIFT, TIBBITS *and
VER BRYCK, Senators, were also of opinion
that the judgment of the Supreme Court ought
to be affirmed; and that being the opinion of
a majority of the court,1 it was thereupon or-
dered and adjudged that the judgment of the
Supreme Court be affirmed, and that the de-
fendant in error recover against the plaintiffs
in error his double costs, to be taxed, &c., and
that the record and proceedings be remitted to
the Supreme Court, &c.
Judgment of affirmance.
Cited in— 20 Johns., 429; 48 N. Y., 630; 55 N. Y.,
123; 57 N. Y.,580; 66 N. Y., 514; 3 Hun, 485; 1 Hun,
678; 5 T. & C., 593; 3 Allen, 250.
SAMPSON SIMSON, Appellant,
v.
JOEL HART, Respondent.
Practice — Set-off of Judgment is ex Gratia in
Courts of Law — Matter of RigJit in Chancery
— New Trial — Jurisdiction — Pleading.
Where A recovered a judgment against B and C,
for an assault and battery, and B recovered a judg-
ment against A for an assault and battery, it was
held, B being insolvent, and C much embarrassed,
that A was entitled to have the judgment recovered
by him against B and C applied in satisfaction of,
or set-off against, the judgment recovered by B.,
and might sustain a bill In chancery for that pur-
pose.
Where the Mayor's Court of the City of New York
had refused to allow a set-off of judgments, it was
held that a bill might be sustained in chancery to
compel such set-off to be made, especially where
new facts, not presented to the court below, were
disclosed, notwithstanding the refusal of that court
to allow it.
Matters set up in an answer, by way of avoidance,
and not necessarily drawn forth by the bill, must,
after a general replication, be proved, or the de-
fendant cannot avail himself of them. And there-
fore, he cannot rely upon them on a motion to dis-
solve an injunction.
A court of law allows set-offs of judgments, ex
gratia ; but a party applying to a court of equity
is entitled to it as a matter of right.
It is not necessary that the judgments should be
in the same right; it is sufficient if the judgment
prayed to be set off, may be enforced at law against
the party recovering the judgment to be diminished
or satisfied by the set-off; as where a judgment, re-
covered by A against B and C, in trespass, is to be
set off against a judgment recovered by B against
A; for the whole amount of the judgment may be
collected from B, who can have no contribution
from C.
A decision of a court of law, upon a summary
application to its equity, is not such a res judlcata
as to preclude chancery from examining the ques-
tion; nor is chancery concluded where a new fact is
disclosed which was not presented to the court of
law. Chancery does not interfere in granting new
trials.
Citations— 2 Bt., 869; Mont, on Set-off, 6; 4 T. R.,
123; 8 T. R.. 69; 3 Cai., 190; 1 Johns., 144: 3 Johns.,
247; 1 Sch. & L., 201; 5 Ves., 610, 108; 7 Ves., 3, 14, 15;
10 Johns., 587: 7 T. R., 455; 1 East, 537; Bull. N. P.,
336: 2 H. Bl., 587; Finch, 472; 1 Johns. Cas., 436; 6 T.
R., 471; 1 Sch. & L., 201.
THE bill of the appellant (who was the
plaintiff in the court below) stated, that
1.— For affirming, 15 ; for reversing, 8.
774
in December, 1813, he obtained a judgment in
the Mayor's Court in the City of New York
against the respondent, and one Ephraim Hart,
for $4,585.43 damages and costs, for an assault
and battery committed by them on the appel-
lant ; and that the respondent, at the same
term of the same court, but after the judgment
of the appellant, obtained a verdict against the
appellant for $500, for an assault alleged to
have been committed by the appellant upon
the respondent. That the appellant, having
obtained an order from the Recorder of New
York to stay proceeding in the respondent's
suit against him, gave notice to the respond-
ent's attorney, that the judges of the Mayor's
Court would be moved, at the next January
Term., that the proceedings in the *cause [*64
wherein a verdict had been given for the re-
spondent, be stayed, upon the appellant un-
dertaking to deduct and allow to the respond-
ent the amount of the damages received by
him, and the costs, when they should be taxed,
by entering a remittitur for the amount of such
damages, on the record of the judgment ob-
tained by the appellant, against the respondent
and Ephraim Hart; which motion was to be
supported by an affidavit of the appellant,
stating the verdicts and judgments as before
mentioned, and setting forth a number of
judgments, docketed against the respondent,
both in the Supreme Court and the Mayor's
C6urt, remaining unsatisfied, in the whole
amounting to a large sum; on one of which,
for $330, a fi. fa. had been issued, and re-
turned nulla bona; and that a like return had
been made to an execution against the re-
spondent, on a judgment in a justice's court for
$17. The bill then stated that on motion to
the Mayor's Court the set-off was refused; that
all the judgments appearing of record against
the respondent, except one, were prior, in
time, to that of the appellant, and set forth a
number of judgments, to a very large amount,
against Ephraim Hart remaining unsatisfied,
all of which were prior, in time, to that of the
appellant. The bill further stated that the re-
spondent was confined within the limits of the
jail in the City of New York, on a ca. sa., and
prayed that the set-off might be allowed, and
that an injunction might issue.
The respondent, in his answer, admitted the
two recoveries and judgments mentioned in
the bill, and stated, in regard to the suit against
the respondent and Ephraim Hart, that the ap-
pellant assaulted the respondent with great
violence; and that Ephraim Hart, being pres-
ent, and being the father of the respondent,
struck the appellant in his defense, and denied
that the respondent struck at all, or that there
was any concert between him and his father;
and alleged that the appellant sued him jointly
with his father, to prevent his being a witness
for his father; and that the respondent's recov-
ery was for an assault and battery committed
on him by the appellant, at the same time that
the assault and battery was alleged to have
been committed by the respondent and his
father upon the appellant. The respondent,
admitted that the suit commenced by him was
commenced after the appellant's suit was
brought, and that the appellant offered to make
the set-off, and applied to the court for that
purpose, which application was resisted by the
JOHNS. REP., 14.
1816
SIMBON v. HART.
65
<$£»*] respondent *on an affidavit stating the
facts in substance, as contained in bis answer,
and was refused by the Recorder. He also ad-
mitted that there were judgments against him,
as stated in the appellant's Dili, for debts justly
due, which he was unable to pay; and that he
was now on the limits of the jail in the City
of New York; that though there are judg-
ments against his father, as stated in the appel-
lant's bill, yet, that he was informed and be-
lieved, that many of them had been, in great
part, paid off; and that he did not believe that
his father was insolvent, but, on the contrary,
that if his father should be so fortunate as to
recover the amount of moneys justly due to
him, he would be fully able to pay all his just
and legal debts. He also admitted that he was
willing to set off one judgment against the
other, if the appellant would discharge the
judgment he held against the respondent and
his lather altogether; but he alleged that if he
should pay the amount of his own judgment
to the appellant, by setting off the same
against so much of the appellant's judgment,
he could not compel his father to refund to
him any part of such payment.
The cause came on to be heard before His
Honor, the Chancellor, on a motion to dissolve
the injunction, which had been granted on fil-
ing the bill, who decided that the bill could
not be sustained, and accordingly granted the
motion. An appeal having been entered by
the plaintiff below, the Chancellor now as-
signed the reasons for his decree, as to which
«ee 1 Johns. Ch., 93-99.
Mr. Baldwin, for the appellant. From an
examination of the circumstances of this case,
it will appear that all the equity lies on the
part of the appellant. The Recorder decided
the question upon the ground that the appel-
lant might collect the amount of his judgment
from Ephraim Hart; but a new fact has since
l>een disclosed, that Ephraim Hart was insolv-
ent, and unable to satisfy it. The Chancellor
rested his decision on the ground that the pro-
ceedings before the Recorder could not be re-
examined in another court; but the authorities
decisively show that those proceedings could
not oust a court of equity of its jurisdiction.
In Kent v. Bridymun,Prec. in Ch., 233, a perpet-
ual injunction was granted against a defendant
who had recovered a verdict at law, on a fail-
ure of the. defendant at law, in making out
the requisite proof, although no other matters
of defense were produced than those which
<Ml*J *were submitted to the jury on the trial.
In BOon v. Hyde, 1 Ves., 327; S. C., 1 Atk.,
126, where the assignees of a bankrupt had
recovered at law sums of money paid by the
bankrupt to the plaintiff, Itona fde. after a se-
cret act of bankruptcy. Lord llardwicke sus-
tained a bill to compel the assignees to
allow payments made by the plaintiff to
the bankrupt, although such allowance was
refused at law; for, he said, that the de-
termination of the case at law was not con-
clusive; that this was a matter of account,
and therefore, though not allowed at law,
chancery having jurisdiction of accounts,
.takes them, notwithstanding the verdict. So,
in Pifkft v. Morri», 2 Wash., 255, a set-off was
allowed in equity after a trial at law, in which
it had been rejected. The counsel also cited
JOHNS. REP., 14.
Ambler v. Wyld, 2 Wash., 36; Taylor v. Okey,
18 Ves., 180; Leehmore v. Hawking, 2 Esp.,
626; Tuttle v. Bebee, 8 Johns.. 152.
Mr. J. V. N. Totes, for the respondent.
Set-offs were not allowed at common law, and
it cannot be contended that the set-off in the
present case comes within the Statute, but the
power which courts of law have assumed and
exercised in relation to mutual judgments
arises from other considerations ; it is consid-
ered as incidental to the due administration of
justice, and as flowing from their right to con-
trol their sui'ors to such a course as is demand-
ed by equity and justice. (Mont. Set-off. 6.)
Such set-offs, therefore, not being required
either by the Statute or the common law, are
not ex tlebito juxtitue, but rest in the discretion
of the court. (1 H. Bl., 657 ; 4 T. R., 123 ;
Mont. Set off, 6, note*.) This course was
authorized by the law and practice of the
court and not the law of the land, and there-
fore does not merit the same consideration as
questions of right ; nor was it admitted with-
out a struggle ; for in the earlier cases the set-
off was refused. (Str., 891, 1203; Bull. N. P.,
336 ; Mont. Set-off, 6, notes.) But, when the
rule was established, it seems to have been
laid under these restrictions : that the judg-
ments should be between the same parlies (8
T. R.. 69) ; or if another person wen- likewise
a party, then that the insolvency of the parties
against whom the set-off was made, should be
clearly shown, or their having absconded be-
yond the reach of process; that it would not
be allowed where the interest of third persons
was involved (3 East. 149) ; and that in every
case the lien of the attorney for his costs
should be preserved. (2 H. Bl.. 588; Mont.
Set off, 14; 2 Caines, 105; 3 Johns., . 247.)
From these positions, this principle may be
deduced, that where the set-off required would
make one of the parties a loser, without the
possibility of reimbursement from his com-
panion, there equity requires that *no [*O7
set-off should be allowed. In Doe v. Darnton,
3 East, 149, Lord Ellenborough expressed a
strong disinclination to extend the power
of setting off debts, on general grounds of
equity, beyond the line which the Legislature
had thought proper to mark out ; and in
Bremerton v . Harris, \ Johns., 144, the Supreme
Court showed a disposition not to allow ju<lir-
ments of different courts t<> be set off againM
each other. Most of the restrictions to the
rule which have been mentioned apply to the
present case ; the insolvency of the respondent
and his father is not clearly made out ; it is
merely inferred; nor is it expressly admitted.
The principle in Doe v. Darnton, 3* East, 149,
also applies; the interest of u third person will
be affected ; for the respondent may, with re-
gard to his father, be considered as a third
party (Barnes, 145 ; 1 H. Bl., 23 ; Mont. Set-
off, 10, 11, notes) ; besides, if the set-off be
allowed, the respondent would be a loser ; he
can have no contribution against his father,
but must bear the whole loss himself. (8 T.
R., 186.) The verdict, too, against the re-
spondent was manifestly unjust, as is ap-
parent from the single consideration, that he
afterwards succeeded at the trial of the case in
which he was plaintiff ; and the answer, which
must be admitted to be true in all its parts
775
67
COURT OP ERRORS, STATE OF NEW YORK.
1816
(Harr. Ch., 309), further shows the iniquity of
it. The appellant committed the first assault;
he admitted the respondent to have had no
agency in it, and to be wholly innocent ; he
made the respondent a party merely to ex-
clude his testimony, and more light being elic-
ited on the second trial, a verdict was found
for the respondent. JTo admit a set-off in such
a case would be Contrary to equity and
justice.
Although the equitable powers of the
Mayor's Court were correctly exercised in this
instance, still, admitting that fhey were not,
it does not follow that the Chancellor had
jurisdiction. It is not sufficient, says Lord
Kedesdale, in Batemanv. Willoe, 1 Sen. & Lef.,
201, to show that injustice has been done,
but that it has been done under circumstances
which authorize the court to interfere ; be-
cause, if a matter had already been investigat-
ed in a court of justice, according to the com-
mon and ordinary rule of investigation, a
court of equity cannot take on itself to enter
into it again. And again, he says that he
could not find any ground whatever for a
court of equity to interfere, because a party
had not brought forward evidence which was
in his power at the trial. The rule laid down
by Lord Redesdale reconciles all the conflict-
ing cases, and gives to each court its proper
and peculiar functions. It shows that where
courts of co-ordinate jurisdiction have passed
upon a subject, no other than a superior
G8*l *court, on appeal or writ of error,
should reverse it. And this rule reconciles
the opinions of Lord Kenyon, in Lechmere v.
Hawkins, 2 Esp. , 626, and Hart v. Lovelace, 6
T. R., 471, which, otherwise, appear hostile
to each other. If a court of law had refused
a new trial, a court of equity would not (no
new matter being disclosed) proceed to review
that decision, although the practice formerly,
when courts of law were more illiberal in re-
spect of new trials, was otherwise. (3 Bl.
Com., 388 ; Cas. temp. Talb., 472.) The rule
now contended for has been expressly recog-
nized byjthis court in Le Guen v. Qouverneur &
Kemble, 1 Johns. Cas., 436 ; in that case, Rad-
cliff, J., says: "The general principle that
the judgment or decree of a court possessing
competent jurisdiction shall be final as to the
subject matter thereby determined, is conced-
ed on both sides, and can admit of no doubt.
The principle, however, extends further. It
is not only final as to the matter determined,
but as to every other matter which the parties
might litigate in the cause, and which they
might have had decided." The various au-
thorities upon the subject are there cited by
the judges in their opinions. A court of
chancery never relieves against a verdict at
law, on the ground of its being contrary to
equity, unless the party were ignorant of the
fact at the trial, or it could not have been
admitted as a defense. (3 Atk., 223; 1 Atk.,
293; Free, in Ch., 221; 2 P. Wins., 426; 2
Wash., 272, 275.) The pleadings show that
the appellants sought relief in chancery, on
the same matter as was laid before the Mayor's
Court, and not on any additional or new mat-
ter, nor under any pretense of mistake or in-
advertence. The Court of Chancery, there-
fore, had no jurisdiction of the cause ; but if
770
it could have entertained jurisdiction, it was
correctly exercised ; for if it were right in the
Mayor's Court to reject the set-off, it was
equally right for chancery to do so; or, if the
propriety of allowing it were doubtful, it
would have been indiscreet for chancery to
have interfered ; because it would have been,
in fact, a direct reversal of the decision of a
competent tribunal ; because it was in a case
of mere tort, and did not require an adjust-
ment of accounts ; and because the verdict
against the respondent was grossly iniquitous.
Mr. T. A. Emmet, in reply. Courts of
equity had a jurisdiction in cases of set-off,
antecedent to the Statutfc, and they still exer-
cise the same inherent jurisdiction in cases
to which the statute does not apply (Mont, on
Set-off. 2. 3, 4, 5 ; 5 Ves., 108 ; 12 Ves., 343) -t
and courts of law, going a little further than
the letter of the statute, by the rule of anal-
ogy, have extended it to cases of judgments,
not only in the same, but in different courts.
(W. Bl., 869 ; 2 H. Bl., 410.) It is said on the
opposite side that such set-offs are merely
*discretionary, and not ex debito justiUa; [*€>U
but this is not true, unless taken in reference
to the court to which the application is
made; it is discretionary as to the court of
law, but ex debito juatiim as to the Court of
Chancery. The appellant has no redress, ex-
cept in chancery ; for the decision of the
Mayor's Court is not subject to an appeal, or
writ of error. That court acted, in this in-
stance, as a court of equity ; and in a sum-
mary manner exercised the powers which he-
long to the Chancellor : courts of common
law, in such cases, ex gratia, afford the relief
which the Chancellor is bound to bestow.
Was the decision of the Recorder such a res
judicata as to conclude the Chancellor from
re-examining the question ? In Tates v. The
People, 6 Johns., 431, the present Chancellor,
then Chief Justice, considers that only as a res
judicata which would be final, and conclude
all other persons, and the same and all other
jurisdictions. If, then, the decision be not
final; if it be not conclusive on the jurisdiction
that made it, it can conclude no other ; but
the Recorder, in this case, was not concluded
from annulling his order and making a new
one. If this had been a res judicata, it could
have been pleaded in bar, but it would have
puzzled any lawyer to have introduced this
matter into a plea. Every plea, says Lord
Hardwicke, in Child v. O'ibson, 2 Atk., 603,
that is set up as a bar, must be ad idem : and
he observes that it is extremely hard to say,
that because the plaintiff failed in a former
case, that when he had made a new case, and
brought a new bill, he should not be allowed
to go on, but be barred by a plea of a former
decree in the same matter. In Brewerton v.
Harris, 1 Johns., 144, the Supreme Court re-
fused to interfere in making the set-off, on the
ground of inconvenience. It has been held,
both by Lord Kenyon (2 Esp., 627), and Lord
Eldon (13 Ves., 180), that after a set off has
been refused at law, the party may obtain it in
equity : and after unsuccessful applications to
the Court of King's Bench, to set aside an an- *
nuity, bills have been sustained in chancery
for the same purpose. (7 Ves., 14, 15 ; 5 Ves.,
612.) The case of Vaulx v. Shelley, Rep. temp.
JOHNS. REP., 14.
1816
SIMBON v. HART.
10
Pinch, 472. shows the power of the Court of
Chancery to set aside verdicts, and other pro-
ceedings, in an inferior court when unjust and
inequitable.
PLATT, J. (after stating the substance of the
bill and answer). According to the construc-
tion which was admitted on the argument, and
which seems to be the most fair and obvious,
the gravamen of the complainant's bill is, not
7O*j that the Mayor's *Court refused to take
cognizance of his application for set-oft* ; but
that it decided wrong upon the merits of that
application.
There in no doubt that the equity powers of
the Mayor's Court and of the Court of Chan-
cery are so far concurrent on this subject, as
that either was completely competent to afford
the relief prayed for in this bill. (Barker v.
Brahim, 2 Bl., 869 ; Montague on Set-off. 6 ;
MitchM v. Oldfield, 4 T. R., 123; Glaister v.
Hewer, 8 T. R., 69 ; 3 Caines, 190 ; 1 Johns.,
144 ; 8 Johns., 247.) Those courts are, there-
fore, co-ordinate, so far as regards this subject
of complaint.
The complainant first elected the Mayor's
Court as his forum, for deciding the question,
of set-off. The parties there mutually sub-
mitted to the jurisdiction of that court ; and
there was a regular decision upon the merits
denying the set-off.
The question now is, whether the Chancellor
was bound to disregard the decision of the
Mayor's Court, and to re-examine and decide
upon the merits of the complainant's bill, as if
the relief had been originally sought in his
court.
The generally proposition, that courts of
concurrent jurisdiction cannot rightfully ex-
amine and reverse each other's decisions, is un-
deniable ; it is founded on principles of ob-
vious policy and convenience ; and to permit
such clashing and intrusive interference,
would be to confound all distinctions between
concurrent and appellate jurisdiction.
The inquiry, therefore, is, whether the case
stated in the complainant's bill falls within the
reason and policy of that rule.
The equity powers of the common law
courts extend only to cases which arise inci-
dentally in suits at law; such as relieving bail,
granting new trials, and setting off judgments. >
These powers are exercised, summarily, in the
courts of law, and, according to the organi-
zation of our judicial system, these decisions,
not forming part of the record, are not the
subject of writ of error. Yet these equitable
powers, haying been found indispensable to
the convenient administration of justice, are
now within the established and acknowledged
jurisdiction of the courts of law.
If, then, it be admitted that the Mayor's
Court had rightful cognizance of the subject ; I
that the question of set-off was regularly sub- •
milled to llml forum, and a decision was there- j
7 1*] upon *made, it seems to me, upon rea- j
son and principle, that this case falls within
the rule which prohibits one court from re- 1
viewing the decisions of another court of com- 1
petent authority, on the same subject.
Whether the exercise of equity powers by j
the Mayor's Court is or ought to be subject to
writ of error, are questions which do not ap-
JOHNS. REP., 14.
pertain to the Court of Chancery, and there-
fore have no relation to the question now be-
fore this court. Nor do I think it material
whether, in technical strictness, the point de-
cided in the Mayor's Court, be " retjudicata ;"
nor whether the claim for relief in that court
was "ex debito ju»titia," or a matter resting
" in discretion." As applied to this case, these
distinctions appear to be little more than a dis-
pute about words. Whether a set-off shall be
allowed in such a case, is, indeed, a jnatter
resting in discretion; but this means fulicial
discretion, regulated by the principles of
equity and justice ; not a wanton, capricious,
or arbitrary determination of the will.
Is is said the order of the Mayor's Court
denying the set-off was not final and conclu-
sive in that court, and 4herefore ought not
to be held conclusive in chancery. But this
is not the test, as between co-ordinate courts
of concurrent jurisdiction ; because each may
re-examine its own decisions, it does not fol-
low that one court can rightfully examine
the decisions of another court of* equal au-
thority.
Whether the forms and practice of the com-
mon law courts, in regard to their equity pow-
ers, allow of summary decisions, by entries in
their minutes only, or whether they require
those proceedings to be entered of record, can-
not, in my judgment, form a criterion of
chancery jurisdiction.
The party claiming the set-off had his elec-
tion : he might have originally sought that re-
lief in chancery, subject to appeal ; or be was
at liberty to seek that remedy by an applica-
tion to the summary discretion of the Mayor's
Court, not subject to a writ of error. He
chose the latter course ; and the convenience of
suitors and interests of justice require that he
should be concluded by his election. A dif-
ferent rule would destroy the comity and re-
spect between the co-ordinate tribunals, which
are essential to harmony in our judicial system,
and highly favorable to the pure administra-
tion of justice. Besides, it would be unjust,
for want of mutuality ; for if the application
*in the Mayor's Court had been sue- [*72J
cessful, it is admitted that such decision
would have been conclusive against the re-
spondent. Is it fit and equitable, that the
complainant shall be allowed to litigate the
question of set-off in the court of law, as a
mere experiment, whereby he may gain, but
cannot lose his object ?
I think the motion for set-off rests on the
same footing as a motion for a new trial, as re-
gards the question now before us ; and the
opinion of Lord Redesdale, in the case of
Battman v. Willoe, 1 Sch. & Lef., 201. is high
authority upon that analogous point. It is
there decided that the Court of Chancery will
not grant a new trial, if it has been denied at
law ; and Lord Redesdale says : " It is not
sufficient to show that injustice has been done,
but that it has been done under circumstances
which authorizes the court to interfere. Because
if a matter has already been investigated in a
court of justice, according to the common and
ordinary rules of investigation, a court of
equity cannot take on itself to enter into it
again."
There is, however, a class of cases wherein
777
72
COURT OF ERRORS, STATE OP NEW YORK.
1816
the courts of law, not having equity powers
adapted to, or not commensurate with the jus-
tice of the case, the Court of Chancery has
rightfully assumed jurisdiction ; although
courts of law had collaterally held cognizance
of the subject (Bromley v. Holland, 5 Ves. ,
610 ; 7 Ves., 3 ; RaMorie v. Warren, 10 Johns.,
587); but those cases are plainly distinguish-
able from the present case.
But it is contended that the complainant's
bill contains new matter, which affords ground
for relief in chancery, and which was not the
subject of decision in the Mayor's Court. The
new fact, so relied on, is, that there are several
unsatisfied judgments against E. Hart, which
were docketed prior to the judgment in favor
of the appellant against Joel and Ephraim
Hart, which fact was not shown upon the ap-
plication in the Mayor's Court.
The bill, however, does not aver that the
complainant believes that Ephraim Hart is in-
solvent ; nor is it pretended that the com-
plainant has come to the knowledge of those
judgments since the application to the Mayor's
Court. The bill does not seek relief against
laches, fraud or mistake ; nor is the Court of
Chancery asked to interfere on the ground of
newly discovered evidence. It is not a new
fact, but merely an additional item of
73*] *evidence tending to show the insecu-
rity of Simson's judgment against Joel and
Ephraim Hart ; which additional fact existed
prior to the motion for set-off, and, for aught
that appears, it was known to Simson, and the
evidence of it completely in his power, at the
time of his application to the Mayor's Court ;
but of which, it seems, he did not then choose
to avail himself.
No doubt a rehearing may enable a party to
come better prepared ; he may give additional
evidence, and urge new arguments, upon the
point in litigation ; but, pitiable, indeed, would
be the condition of suitors if these were
deemed sufficient grounds, not merely for a
new trial, but for a new suit in another court
of concurrent jurisdiction. Vexation, ex-
pense and delay would be infinite under such
a rule. Justice, instead of being seated on a
stable throne, would become an ignis fatuus,
tantalizing and mocking her followers, by con-
tinually eluding their grasp. "Interest reipub-
liae ut sit finis liiium, " is the maxim for this case.
(G-reatkead v. Bromley, 7 T. R, 455 ; Schemer-
horn v. Weatherhead, 1 East, 537.)
The question is not, whether the Mayor's
Court decided wrong ; but whether the Chan-
cellor had a right to correct the proceeding
of the Mayor's Court, if it were wrong.
My opinion is, that His Honor, the Chancel-
lor, properly disclaimed jurisdiction in the
case ; and that the decree ought to be af-
firmed.
VAN NESS, J., was of the same opinion.
SPENCER, J. There are two points for the
consideration of the court : 1. Was the ap-
pellant entitled to the relief prayed for in his
bill, independently of his application to the
Mayor's Court of New York, and had not that
application been made ? 2. Is the decision of
the Mayor's Court such a determination as pre-
cludes a court of equity from entertaining the
question, and affording the relief sought for ?
778
The Chancellor, in assigning his reasons for
dismissing the appellants bill, has not dis-
cussed the first question ; nor was it necessary
for him to do so. That question has been
made, and, holding a different opinion on the
second point, it is necessary for me to consider
both.
The answer admits the judgments as stated,
ajid also the judgments of third persons against
the respondent ; and that he *is unable [* 7 4
to pay them, and is on the limits of the prison.
It does not admit, in terms, the insolvency of
Ephraim Hart, but states that the respondent
does not believe him to be insolvent ; but that,
on the contrary, if he should be so fortunate
as to recover what is due to him, he would
be able to pay all his debts. The answer ar-
raigns the justice of the appellant's judgment
but principally insists that the Mayor's Court
refused to order the set-off. The appellant
put in a general replication to the answer. No
proofs appear to have been made other than
those arising from the bill and answer.
As to the facts which are to guide this court,
we can only consider such as are stated in the
bill and admitted by the answer. The answer
being replied to, the allegations set up in it,
and which were not an answer to the interrog-
atories in the bill, must be proved otherwise
than by the respondent's oath. It is a princi-
ple, about which there can be no dispute, that
matters set up in an answer, by way of avoid-
ance, and not necessarily drawn forth by the
bill, must, after a general replication, be
proved, or the defendant cannot avail himself
of them. Everything, therefore, alleged in
the answer, impeaching the justice of the ap-
pellant's judgment, must be laid out of the
case. Independently of this principle, I do
not think it competent to the respondent to
draw in question, collaterally, the effect of the
appellant's judgment.
In my opinion, we are authorized to draw
the conclusion from the admissions in the
answer, that the respondent was absolutely in-
solvent, and that Ephraim Hart was extremely
embarrassed in his affairs, insomuch that the
appellant's chance of coercing the payment of
his judgment, by execution, was almost hope-
less. Such a state of facts furnished a strong
and substantial basis for the interposition of a
court of equity, on the ground of a meditated
fraud. Nothing could be more unjust than to
leave to the respondent the power of collecting
his judgment of the appellant, against which,
from the insolvent condition of the respond
ent, and the embarrassed state of his father,
the appellant could not indemnify himself, by
collecting any part of his judgment from
them ; and although it is difficult to settle pre-
cisely the extent of the jurisdiction of the
Court of Chancery, one of its acknowledged
and most salutary attributes consists in the
power to put a stop to proceedings injurious
or unconscientious. I have no hesitation in
saying that chancery *had original and [*75
rightful jurisdiction of the suit, and was fully
authorized, by a series of adjudged cases, in
issuing a perpetual injunction against the re-
spondent's suing out, or executing an execu-
tion on his judgment, upon the appellant's en-
tering satisfaction for so much as the respond-
i ent's^judgment amounted to on his judgment ;
JOHNS. REP., 14.
1816
SIMSON v. HART.
75
or, which would have produced the same re-
sult, decreeing that the respondent should ac-
knowledge satisfaction of record, upon the
like terms.
There is no force in the objection that the
judgments are not in the same right ; it is well
nettled " that although the demands, as being
joint and several, are not. strictly speaking,
due in the same right, yet if the legal or equi-
table liabilities or claims of many become
vested in or may be urged against one, they
may be set off against separate demands, and
viet.verM" (Bull. .V. P., 886 ; 2 H. Bl.. 587 ; 4
T. R., 133) ; and in some of the cases this was
done without any pretense of insolvency in
either of the parties.
The objection is equally untenable that the
judgment in favor 01 the appellant, being for
a tort, the respondent's judgment ought not to
be set off, and deducted therefrom, because
there is no contribution among trespassers.
The respondent owes the appellant the whole
of that judgment ; and he could enforce it
against him alone, if he saw fit.
That the Mayor's Court had the power to di-
rect the set-off applied for, cannot be doubted.
The Supreme Court did so in Schermerhorn v.
Schermerharn, 3 Caines, 190. In Bremerton v.
Harris, 1 Johns., 144, it was refused, because
the larger judgment had been obtained in the
Common Pleas ; but so far were we from
doubting of the right, that we intimated that
the Court of Common Pleas would afford the
relief sought for.
In directing a set-off of judgments, courts
of law proceed upon the equity of the Statute
authorizing set-offs ; for, confessedly, the case
is not within the letter of the Act. Their
power consists in the authority they hold over
suitors in their courts ; and it may be fitly said
that the exercise of the power is the exertion
of the law of the courts, rather than any
known, express and delegated power. Suitors
may ask the interference of courts of law, in
effecting a set-off, not ex debito justitwe, but ex
gratia curia. In a court of equity, and in a
case like the present, it is otherwise. It is a
power incidental to that court, and has
7 O*l *been long exercised exclusively ; for it
is only within a few years that courts of law
have undertaken to set off one judgment
against another.
I am not aware that, thus far, I have ad-
vanced any opinion in opposition to that of
His Honor, the Chancellor ; but I am under
the necessity of differing from him as to the
only remaining point. No judge, I am per-
suaded, ever bestowed more pains and labori-
ous research upon causes coming before him
for decision than the present Chancellor. This
consideration has induced me to as careful an
examination of the case as I am able to make,
and the result is. that I cannot assent to the
opinion that the decision on the motion made
by the appellant in the Mayor's Court ousted
the jurisdiction of a court of equity, upon the
principle that it was re* judicata, or on the
ground of comity. This result is founded, not
only on the manner of deciding questions of
that kind on summary motion, but, as I con-
ceive, on authority. The motion itself was a
summary application to the Mayor's Court ;
and it is a fact well known that such motions
JOHNS. REP.. 14.
do not admit of that grave discussion and con-
sideration as questions arising on demurrer, in
arrest of judgment, or for a new trial. Again ;
decisions on summary application can never be
thrown into the shape of a record, and become
the subject of review in any other court. In
the same court these decisions are not consid-
ered so final and decisive as to furnish a bar to
another and further discussion of the ques-
tion. Courts, to prevent vexatious ana re-
peated applications on the same point, have
rules which preclude the agitation of the same
question on the same state of facts ; these
rules are for the orderly conduct of business,
and are not founded on the principle of retju-
dicata. It is not uncommon in courts of law to
deny a motion one day, and on another to
grant it, on a more enlarged state of facts.
Upon authority, it reems to me that the de-
cision of the Mayor's Court was not decisive
of the question. (7 Ves., 14. 15 ; 5 Ves., 108 ;
Rep. temp. Finch, 472.) Were it necessary to
uphold the jurisdiction of the Court of Chan-
cery in this case, the new fact, stated substan-
tially in the bill, that Ephraim Hart was also
insolvent, would seem to put that question
beyond doubt ; for, certainly, the decision on
the summary application ought to have no
greater effect in ousting the Court of Chancery
of its jurisdiction than it would have upon the
court which made the 'decision ; and it [*77
appears to me that even that court, on another
application, by bringing before it that addi-
tional fact, might and ought to entertain the
question a second time. .
I perfectly subscribe to the proposition, that
the judgment of a court of competent juris-
diction, upon a matter within its cognizance,
is final and conclusive, unless appealed from
and reversed or vacated ; but this rule, in my
apprehension, does not embrace this case,
because it has no quality of a judgment.
The jurisdiction of chancery has been nar-
rowed, and very properly so, in many cases.
Since courts of law have adopted more liberal
and enlarged notions, and will grant new
trials, when the circumstances of the case sat-
isfy them that injustice has been done, courts
of 'equity, with great propriety, refuse their
interference in such cases.
In modern times, the comity due from one
court of co-ordinate jurisdiction to another,
has been better understood and more liberally
extended ; and I would not, in the slightest de-
gree, impugn those salutary principles which
preclude one court from re-examining, except
in the regular method of appeal or writ of
error, the judicial decisions of another court
having jurisdiction of the subject matter. The
cases cited and relied on by His Honor, the
Chancellor (1 Johns. Cas., 436 ; 6 T. R., 471 ;
1 Sch. & Lef., 201), meet my most decided ap-
probation ; but, in my judgment, the princi-
ples adopted in those cases do not apply to a
decision upon a summary application, nor to a
case where, from the ascertainment of a new
fact not brought l>efore the court on the origi-
nal application, even the same court might,
with entire propriety, hear a new discussion of
the Question. I do "not, therefore, differ from
His Honor, the Chancellor, in his principles;
I dissent from him only in the application 'of
acknowledged principles to this particular
77
COURT OF ERRORS, STATE OP NEW YORK.
1816
that the
reversed.
case. My opinion, accordingly, is,
decree appealed from ought to be re^
THOMPSON, Ch. J., and YATES, J., were of
the same opinion.
All the Senators, except VAN VECHTEN,
ALLEN, COCHRAN, HASCALL, STEWART and
TIBBITS, who concurred with Mr. J. PLATT,
being of the same opinion, it was thereupon
ordered, adjudged and decreed that the order
of the Court of Chancery be reversed,1 with
costs to be taxed ; and that the proceedings
78*] *be remitted to the Court of Chancery,
to the end that the set-off, in the pleadings in
the cause, may be allowed, and that the same
be proceeded upon according to law.
1 — For reversing1, 21 ; for affirming, 8.
780
Decree reversed.
Reversing— 1 Johns. Ch., 93.
Set-off. Limited— 2 Sum., 634.
Distinguished— 2 Sum., 415.
Cited in-4 Hill, 560; 2 Paige, 584 ; 16 Hun, 360; 54
How. Pr., 486 ; 15 Abb. Pr., 115 ; 2 Abb. N. C., 259 ; 12
Abb. N. S., 137 ; 1 Sand., 697 ; 1 Daly, 291 ; 5 Mason,
206, 209, 212 ; 86 111., 272 ; 39 N. J. L., 241 ; 39 Mich., 21 ;
70 Mo., 543.
Courts of law and equity— Power of one to re-exam-
ine question settled by other. Cited in— 18 Johns., 534 ;
1 Paige, 47 ; 4 Paige, 653 ; 2 Edw., 75 ; 25 N. Y., 311.
Decision made on summary application may be re-
viewed. Cited in— 10 Wend., 40 ; 25 Wend., 78 ; 3 Hill,
416; 5 Johns. Ch., 52; 17 N. Y., 78; 25 N. Y., 208; 74
N. Y., 378 ; 17 Hun, 60 ; 8 Barb., 85, 518 : 52 Barb., 642 ;
4 How. Pr., 170 ; 29 How. Pr., 29 ; 1 Sheld., 76 ; 3 Biss.,
342.
Also cited in— 8 Cow., 395 ; 2 Wend., 224 ; 2 Co. R.,
124; 8 W. Dig., 242; 10 Peters, 211; 1 Bald., 495; 48
Wis., 149.
JOHNS. REP., 14.
[END OP THE CASES IN ERROR, 1816.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK,
*
IN
JANUARY TERM, 1817, IN THE FORTY-FIRST YEAR OF OUR INDEPENDBNCF.
E. CASE v. REEVE ET AL.
Witnesses— Owner Competent in Action Against
Master of Vessel.
In an action brought against a master of a vessel
for negligently running foul of and injuring- the
vessel of the plaintiff, the owner of the vessel, under
the command of the defendant, is a competent wit-
ness for him.
Citations-3 Johns., Cas., 88 : Phillips' Ev., 222.
231 ; Doug.. 499 ; 3 East, 34tt, 366 : 4 T. K., 590 : Rep.
temp. Holt, 134 ; Bull. N. P., 233; Gilb.. 233: 11 State
Trials. 251 ; Peake's Ev., 38 ; 1 Mun., 3»4, 398. 408, 407 :
4 Taunt., 18.
IN ERROR, to the Court of Common Pleas
of Orange County. The defendants in
error, owners of a vessel in the Hudson,
brought an action on the case in the court be-
low, against the plaintiff in error, the master
of another vessel, for negligently running foul
of and injuring the vessel of the defendants in
error. The defendant pleaded not guilty ; and
at the trial in the court below, the defendant
offered Isaac Case as a witness ; who, being
sworn on his toir dire, said that he, the wit-
ness, and Benjamin Case, were the owners of
the vessel that run foul of the other, and that
the defendant below was the master ; that the
witness was under no obligation to pay any
part of the damages which might be recovered
against the defendant ; nor was he, to his
knowledge, any way interested in the suit.
The plaintiffs below objected to the com-
petency of the witness ; and the court below
being of opinion that the witness was not com-
petent, on the ground of interest, he was re-
jected ; and the defendant's counsel tendered a
bill of exceptions in the opinion of the court,
on which the writ of error was brought.
8O*J *Mr. Ross, for the plaintiff in error,
•contended that the witness was competent.
The general rule of evidence is. that if a wit-
ness cannot gain or lose by the event of the
suit, or if the verdict cannot be given in evi-
dence for or against him, in another suit,
the objection goes to his credit, not to
his competency. (Van Nuys v. Ternune, 3
Johns. Cas., 82 ; Phill. Ev., 86, 87.) A wit-
ness who stands in the same situation as the
JOHNS. REP., 14.
party for whom he is called, though under a
strong bias, is not, therefore, incompetent. If
two actions are brought against two persons
for the same assault, one may be a witness for
the other. (T. R., 301 ; 1 Wash., 187 ; 8 Johns.,
377; 8 Johns., 518; 1 Johns., 491.) A mere
contingent benefit, which may result to the
witness from the event of the suit, will not
render him incompetent. (Phill. Ev., 39, 40.)
It must be a legal, fixed interest that will dis-
qualify him. (10 Johns.. 21 ; 1 T. R , 164.)
Mr. Story, contra, contended that the owners
of a vessel being liable for the torts of the
master, who is their agent or servant, a ver-
dict for the defendant, in a suit against the
master, would be conclusive in favor of the
owners, and that so they were directly inter-
ested in the event of the suit. That the plaint-
iffs below had elected to proceed against the
master was no waiver of their right of action
against the owners. In Livingston v. Bishop,
1 Johns., 290, the court held that when two or
more persons were liable for the same trespass,
the prosecution of one was no discharge of the
right of action against the other, unless judg-
ment and satisfaction have been obtained m
the first suit. In the case of Oreen v. The New
River Co. , 4 T. R. , 589 ; Hayes v. Crier, 4
Hi nn., 80, it was decided that in an action
against a master for the negligence of a ser-
vant, the latter was not a competent witness
to disprove his negligence ; and the court said
that in the cases of coachmen and sailors, ver-
dicts against the proprietors or owners might
be respectively given in evidence, in actions
brought by them against their servants, as to
the quantum of damages, though not as to
the fact of injury.
Mr. Ross, in reply, said that the declaration
in this case did not state that the defendant
was in the actual and regular employ of the
owners of the vessel.
SPENCER, J., delivered the opinion of
the court :
This is an action against the master of a
sloop for so negligently managing her that she
ran foul of and damaged the plaintiffs' sloop.
On the trial, Isaac Case, one of the owners of
781
81
SUPREME COURT, STATE OF NEW YORK.
1817
81*] the sloop, of which *the defendant be
low was master, was called as a witness on the
part of the defendant. He was examined on
his voir dire, and stated the above facts, and
further, that he was under no obligation to
pay any part of the damages, nor was he in-
terested in the suit, to his knowledge. The
court below decided that the witness was in-
competent, and excluded him ; and the sole
question now presented is, whether he was
legally excluded.
This court, in Van j^uys v. Terhune, 3
Johns. Cas., 82, on a careful examination of
all the authorities, ancient and modern, laid
down, with precision and accuracy, this gen-
eral rule : " that if a witness will not gain or
lose by the event of the cause, or if the ver-
dict cannot be given in evidence for or against
him in another suit, the objection goes to his
credit only, and not to his competency." It
was admitted by the court that there might be
some technical exceptions to the rule ; but it
was declared to be correct in its general appli-
cation.
The witness, in this case, could not gain or
lose, immediately, by the event of the cause ;
and the inquiry, therefore, will be, whether
the verdict for or against the master of the
vessel, who is to be considered a servant of the
witness, could be given in evidence for or
against him, in a suit to be brought for the
same cause of action.
It is a general if not universal principle,
that a suit between two persons shall not bind
or affect a third person, who could not be ad-
mitted to make a defense, to examine wit-
nesses, or to appeal from the judgment. (Phill.
Ev., 222.) A verdict or judgment in one ac-
tion, upon the same matter, directly in ques-
tion, is evidence for or against privies in blood,
privies in estate, such as the feoffee or lessee
and privies in law, as the lord by escheat, ten-
ant by curtesy, tenant in dower, and others
who come in by act of law in the post. The
witness was neither privy in estate or law.
The case which bears most strongly in favor
of the admissibility of the witness is that of
Kinnersley v. Orpe, Doug., 499. It was an ac-
tion of debt for a penalty given by statute, for
killing fish in the plaintiff's fishery. The de-
fendant was Dr. Cotton's servant ; the master
claimed a right to the fishery, and a former
action had been brought against another ser-
vant of Dr. Cotton, to try the right to the fish-
ery, and in that action a verdict had been
found for the plaintiff; and the trespass had
been repeated by Dr. Cotton's express orders.
82*] The plaintiff produced *no other proof
of his right than the record of the former ver-
dict and judgment. The judge ruled that the
record was admissible and conclusive, on the
ground that both defendants had acted under
the authority of Cotton, who was the real de-
fendant in both cases.. A new trial was moved
for and granted, Buller, /., observing that the
court thought the record in the former cause
admissible, but that it was not conclusive. In
Outram v. Morewood, 3 East, 346, 366, the case
of Kinnersley v. Orpe came under review, and
Lord Ellenborough observed " that it was ex-
traordinary that it should have been for a
moment supposed that there could have been
an estoppel in such a case." "The doubt/'
782
he says, "seems rather to be, whether the
former record was at all admissible in evi-
dence against the defendant who was no party
to the former action." In the case of Green v.
The New River Co., 4 T. R, 590, it was de-
cided by the court, that in an action against
the master for the negligence of the servant,
the servant could not be a witness without
being released : for in case of a recovery
against the master, the verdict might be given
in evidence in a suit by the master against the
servant, to ascertain the quantum of damages,
though not as to the fact of negligence. Mr.
Phillips, in his treatise on evidence, a work of
great merit, says that it is not easy to reconcile
with the general rule of evidence the case of
Kinnersley v. Orpe; and certainly Lord Ellen-
borough strongly doubts the authority of that
case. It appears to me, that it is reconcilable
with the rules of evidence, on this ground
only, that both suits were substantially against
Dr. Cotton himself, inasmuch as the acts of
trespass were committed by his express direc
tion, for the very purpose of trying the right
to the fishery ; he defended both suits, and
though there were, nominally, different de-
fendants, substantially, Cotton was the real
defendant.
The witness, as part owner of the vessel of
which the defendant was master, is undoubt-
edly responsible for his acts of commission or
omission ; but he is responsible on the sole
ground that the defendant was his servant,
and was, at the time, in the performance of
his duty as servant : and it is very certain that
the verdict against the defendant could not be
given in evidence against the witness as master
and owner, either to establish the fact of neg-
ligence or the quantum of damages. The case
already cited of Green v. The New River Co.,
is an authority for both these propositions ; for
though, in that case. *the verdict against [*83
the master for the negligence of the servant
was held to be admissible only as evidence of
special damages, to show the amount of what
the master was, by process of law, compelled
to pay for the negligence of his servant, it was
decided not to be evidence of the fact of neg-
ligence. Where there is a recovery against
the servant, and satisfaction is not 'obtained,
and a suit is afterwards brought against the
master, the verdict against the servant cannot
be evidence of the quantum of damages, be-
cause, as between the master and servant, the
latter has no right of action against the former.
If, then, the verdict against the servant can-
not be given in evidence in a suit against the
master, it is, I think, well settled, that an ac-
quittal of the servant cannot be given in evi-
dence by the master in a subsequent suit to be
brought against him : for no record of convic-
tion or verdict can be given in evidence but
such whereof the benefit may be mutual ; that
is, such as might have been given in evidence
either by the plaintiff or the defendant. The
rule is this, that no person can derive benefit
from a verdict who would not have been prej-
udiced by it, had it gone contrary. (Rep.
temp. Holt, 134; Bull. N. P., 233; Gilb., 232;
Duchess of Kingston's case, 11 State Trials;
Phill. Ev., 231 ; Peake's Ev., 38; 1 Mun., 394,
398, 403, 407.)
There is another principle applicable to this
JOHNS. REP., 14.
1817
THOMPSON v. BUTTON.
83
case: if the acquittal of the servant might be
given in evidence in a subsequent suit against
tlie master, which I am clearly of opinion it
could not, that acquittal being procured by tin-
evidence of the master, that, of it-elf, would
collide the giving the verdict in evidence.
Thi- principle was laid down and adopted by
the Court of C. B. in JVwr v. Vutling, 4Taunt.",
18. In any view, therefore, the witbeas ought
to have been admitted ; the relation in which
he stood affecting his credit, not his compe-
tency.
Judgment reversed.
Cited In— 0 Cow., 375 ; 18 Wend., 594 : 24 Wend., 53 :
:.' I). -1110,44; 4 Denio. 304; 4 Paige, ti2fi ; :i llarh.. 174:
i:. Hail... .>'.>: is Marl... 1! : 2il Uarb.. 5KJ; M Harb..
405; 7 Bos., 41:!; 1 Hall, i«i: :i Daly. 4Ni; 7 \V. In...
\V 1. \ M.. 1 .-•.'::.' Hill.. :*C ; Hamp.. 55; 11
Mliitehf., :{7li, :m ; 39 Mo., 2M : *« Ind., 378.
84*] 'THOMPSON v. BUTTON.
Replevin — Plea, non cepit — Good* taken by Offi-
cer from Possession of Defendant in Ereeution ,
Cannot be Reptevied.
In an action of replevin, the defendant pleaded, 1.
.V»»i <•> i>U ; '2. An avowry averring the (foods taken
were the property of the defriulant, to which the
plaintiff replied, and took issue, &c. The Jury hav-
ing found a verdict for the plaintiff generally, on t In-
isnuc of nun ceplt, without any finding as tOUMOthor
issue, the court gave judgment according to tin- ver-
dict. Goods taken by a sheriff in execution, out of
the possession of the defendant in the execution, be-
ing in the custody of the law, cannot be replevied ;
but if the officer, having an execution against A, un-
dertakes to execute it on goods hi the possession of
B, It may bring replevin for them.
Citations-2 Burr.. «*»; Hob., 54; 9 Mass.. 316; 7
Johns., 142.
IN ERROR to the Court of Common Pleas
of Washington County.
Button brought an action of replevin for
cattle, &c., against Thompson, in the court be-
low. The defendant pleaded, 1. Non cepit.
2. An avowry, <fcc. . that on the 6th of February,
1816, one Samuel Morrison recovered judgment
against one David Whitney, before a justice of
the peace, &c., on which an execution was
issued against the goods and chattels of the
said Whitney for f 26.87 ; and that the said
execution was delivered to him, the defendant,
as a constable, &c., to be executed, &c., and
so, being constable, he, by virtue of the execu-
tion, seized and levied on the said one yoke of
oxen, vVc. . as of the proper goods and chattels
of the said David Whitney, to satisfy, &c., the
said execution, according to law. And the
defendant averred that the said goods and
chattels were the proper goods and chattels of
the said Whitney, &c., without this, that the
property of the said goods, &c., or any part
V ,, i.. /;. ,,-', .-,,' .,.11, ,,./ ., --,, , ,-.
7n aeneral, the <u-tlou of replevin doe* not
lir '<>r HIHKI.I in tin i- nut ni I a uf <in ottin-r. (Jurcleiier
v. Campbell, 15 Johns., 401; Hills v. Martin, I1.'
.I..IIIIH., SJ; Hall \ . Tuttle. X \VemI., \"t\ lilslev v.
StuliliM, 5 Mass., -*! : Cem-ge v. CliamlH-rs, II
Si W., 150.
Hut replevin lit* aoainxt an officer for goods taken
uiuler process against 11 ihinl party. .Imiil v. Fox,
;•( '..»•.. iV.i; Mill- v. Martin, 111 Johns., 7 ; Clark v.
Skinner, 20 Johns.. 4M>; Hall v. Tuttle, -' Wend..
47.".; Commonwealth v. Kennard, « 1'iek., Ml ; Kals-
ton v. Illaek, 15 Iowa, 47 ; Small v. Hutehins, 20 Me.,
•iVi ; Monty v. Arne»on,25 Iowa, 383.
JOHNS. liKP., 14.
thereof, at the time when. &c.. was in the said
Mutton, the plaintiff, «fec. Wherefore, he
prayed judgment, and a return of the Niid
.•roods, &c. 3. An avowry, A:e., that the de-
fendant, as constable, took the goods, &c., by
virtue of the said execution, «&c. Wherefore,
he prayed judgment, and a return of the goods,
&c.
To the first avowry, the plaintiff replied that
the -roods, &c., were not the proper go<..
David Whitney, but were the proper go. >d-. Are. ,
of the plaintiff. &c., on which issue was taken.
To the second avowry the plaintiff demurred,
and the defendant joined in demurrer ; and the
court below gave judgment for the plaintiff on
ihi- demurrer; and on the issue of non ci^it,
the jury found a verdict for the plaintiff, ami
a— e— ed the damages at six cents, on which tin-
court below gave judgment. Nothing was
said in the record as to the issue joined on the
first avowry.
Mr. Z. R. Shepherd, for the plaintiff in error,
contended that replevin would not lie for goods
taken in execution. Baron Gilbert so lays
down the law. (Gilb. on Replev., 154, 3d ed.)
It is true he makes an exception *as to [*8J>
executions issued by courts of inferior juris-
diction ; and cites the case of AyltHbury v.
Harvy, 3 Lev., 204. But in Rexv. JfowfctafM.
Str., 1184, the court granted an attachment
against the under sheriff for replevying goods
distrained on a conviction for deer stealing ;
so that the case relied on by Gilbert has been
overruled. Judgments in the courts of jus-
tices of the peace are as absolute and final as
those of any other court, until reversed for
error. A justice of the peace may punish for
a contempt. In Alexander v. Mahon, 11 Johns,
185, 186, the court held that where goods are
taken in execution, the landlord cannot distrain
for rent in arrears ; for the goods being, by the
seizure under the execution, in custody of the
law, it would be, ex vi termini, repugnant that
it should be lawful to take them out of that
custody. (Wood. Ten. Law, 389, 2d ed.)
Again ; issue was joined on the second
avowry, whether the property of the goods
was in the plaintiff or not ; and the jury have
not found the fact ; they only find for the
plaintiff on the issue of non ?,-/n't. It appears,
by the record, that the other issue between the
parties has not been tried ; the judgment below
was, on this ground also, erroneous.
Mensr». Skinner and Martindale, contra, con-
tended that to support this action it was onlv
necessary to show possession by the plaintiff,
and a wrongful taking by the defendant ; and
they relied on the case of P<inf/?i>/r/, v. /'<//;/</</,,
7 Johns., 140, in which it was decided that re
plevin lies for any tortioiis taking of property
out of the possession of another. The cn-e of
.I//./-'///*//-/- v. Million is different from the pre-
ent ; there the property of the goods was ne\er
in the landlord. The reason and policy of tin-
law i- in favor of the remedy by replevin in
this ca
The omission in the record, as to the second
i->ue. \\.i- matter of form, and will not, there-
fore, render the judgment erronenu-.
!//•. Sfn />/i,-,,/, in reply, said that the pro-
visions of the Act to Prevent Abuse.- and Delay
in Actions of Replevin (1 X. R. L., 91, sess.
11, ch. 5, sees. 3, 5) showed that the LegNh-
85
SUPREME COURT, STATE OF NEW YORK.
1817
ture considered replevin as a remedy only in
cases of distress. There is nothing in the
Statute to countenance the notion that it in-
tended to give this remedy in the case of goods
taken in execution, and in the custody of the
law.
THOMPSON, C h. J., delivered the opinion of
the court :
This case comes before the court on a writ
86*] of error to the Common *Pleas of Wash-
ington County. The action was replevin, for
certain articles alleged to have been taken by
Thompson, the defendant below, who pleaded
the general issue, and also avowed the taking,
under and by virtue of an execution in his
hands, as constable, on a judgment recovered
by Samuel Morrison, against David Whitney.
The judgment and execution are duly set forth
in theavowry, with an averment that the goods
were the property of the said David Whitney,
the defendant in the execution. There is also
a second avowry without any averment as to
the right of property. To the first avowry
issue is taken. To the second there is a gen-
eral demurrer and joinder, and judgment for
the plaintiff below on the demurrer ; and a
verdict for the plaintiff upon the general issue ;
but no verdict appears to have been found
particularly upon the issue as to the right of
property.
The first question is, whether this omission
will render the judgment erroneous. The case
of Hawks v. Crofton, 2 Burr. , 698, is very much
in point to show that this omission is to be
deemed matter of form, and does not vitiate
the judgment.
That was an action of trespass, assault and
battery, to which the defendant pleaded not
guilty, and non assault demesne, on which issue
was joined. Upon the trial, the jury found
the defendant, generally, guilty, and no ver-
dict, particularly, on the other issue. The case
came before the K. B. on writ of error, and the
judgment was affirmed. The court said that
where the intention of the jury is manifest and
beyond doubt, the court will "set right matters
of form, and the mere act of the clerk ; and
the rule as laid down in Hob., 54, is recognized
as correct, that though the verdict m#y not
conclude formally and punctually in the words
of the issue, yet, if the point in issue can be
concluded from the finding of the jury, the
court will work the verdict into form and make
it serve. The same rule is recognized by the
Supreme Court of Massachusetts, in Hodges v.
Raymond, 9 Mass. , 316. In the case before us,
it is very evident that the jury would not have
found the defendant guilty upon the general
issue, if he had made out his justification, ac-
cording to the avowry. The intention of the
jury cannot, therefore, be mistaken ; and the
omission to enter a verdict applicable particu-
larly to the second issue is mere matter of form.
The next question is, whether the plaintiff
87*] below could *sustain an action of replev-
in, as the property was taken and held by the
defendant under an execution. This execu-
tion, as appears by the record, was against
David Whitney ; and we are warranted, also,
from the record, to assume that the property
was taken by the defendant below, out of the
possession of Button, the plaintiff below, and
784
not out of the possession of Whitney, the de-
fendant in the execution. As a general prin-
ciple, it is, undoubtedly, true that goods taken
in execution are in the custody of the law, and
it would be repugnant to sound principles to
permit them to be taken out of such custody,
when the officer has found them in, and taken
them out of the possession of the defendant,
in the execution. The utmost extent to which
the case of Pangburn v. Patridge, 7 Johns.,
142, can be carried, is to permit replevin to lie
where an action of trespass might be brought.
But if an officer, having an execution against
A, undertakes to execute it upon goods in the
possession of B, he assumes upon himself the
responsibility of showing that such goods were
the property of A. And if he fails to do this,
he is a trespasser by taking them. The case,
then, falls within t*e principle in Pangburn v.
Patridge.
The judgment of the court below must,
therefore, be affirmed.
Judgment affirmed.
Limited— 20 Johns., 469 ; 3 Wend., 281 ;
Cited in— 15 Johns., 403 ; 19 Johns., 32 ; 9 Cow., 263;
1 Wend., Ill : 2 Wend., 478 ; 3 Wend., 675: 6 Wend.,
272 ; 16 Wend., 351 ; 1 Denio, 112 ; 3 N. Y., 507 ; 80 N.
Y., 343; 8 Barb., 215 ; 19 Abb. Pr., 316; 9 Bos., 594: 1
Rob., 634 ; 80 111., 556 ; 41 N. J. L.. 258 ; 4 Cranch C. C.,
64 ; Hemp., 67.
THE OVERSEERS OF THE POOR OF
WALLKILL
v.
THE OVERSEERS OF THE POOR OF
MAMAKATING.
Pauper — Residence — Payment of Taxes — Volun
tary Payment by Collector.
To gain a settlement in a town, by residing there,
and being charged with, and paying taxes in such
town for two years, it must appear that the taxes
have been actually paid by the pauper, or by an-
other, at his request. It is not enough that the per-
son has paid a tax one year, and that the collector
has paid his tax the next year, without his request
or authority. Such payment by the collector be-
ing voluntary, would give him no right of action
against the person charged with the tax.
Citation— 1 N. R. L., 279.
ON appeal from the order of the Court of
General Sessions of the Peace of Orange
County. Two justices had given an order to
remove Bainsley Stevens, a pauper, and his
family, from the town of Wallkill, to the
town of Mamakating. The pauper, in the
years 1810 and 1811, resided in Mamakating,
and was assessed in that town, in 1810, for a tax
of ten cents, which he paid ; and in 1811 he
was assessed a tax of forty-eight cents, in the
same town, which the collector paid for him,
but without *the request of the pauper, [*88
who then had property sufficient to pay the
tax. He afterwards removed to Wallkill, and
there became chargeable to the town. The jus-
tices, in their order, adjudged that his last place
of settlement was in Mamakating. It was. not
pretended that he had acquired a settlement
there in any other way than by being assessed,
and paying the tax above mentioned. On an
appeal from the order of removal to the Court
of General Sessions, that court, in May Term,
JOHNS. REP., 14.
1816
KANE v. SANGER.
1816, reversed the order of removal given by
the justices.
The case was submited to this court without
argument; and the only question was, whether,
by such a payment of taxes, the pauper had
acquired a settlement in Mamakating.
Per Curium. This is an application to re-
verse the order of the Court of Sessions in
Orange, by which they reversed the order of
two justices, removing certain paupers from
Wallkill to Mamakating. The question is,
whether the pauper had gained any settlement
in Mamakating by the payment of taxes. In
1810 he was taxed and paid ten cents. In
1811 he was assessed forty-eight cents, but
did not pay it ; the collector, however, paid it
for him, but without his request. A settle-
ment, by payment of taxes, is gained by being
charged" with and paying such taxes, for the
space of two years. (N. It. L., 279.) There was,
in this case, a payment of taxes for one year
only. The payment by the collector was not at
the request of the pauper, nor under circum-
stances that would have enabled the collector
to maintain an action. It was a mere volun-
tary payment. If the pauper had property out
of which the collector could have raised the
tax, he should have resorted to it. It does not
appear that the collector ever applied to him
for the tax, and it never can be permitted to a col-
lector voluntarily to pay another man's tax, with-
out ever calling upon him for it, and then turn
about and sue him. And, unless the pauper
could have been made liable to the collector,
he could not be said to have paid it. The or-
der of the Court of Sessions must, therefore,
be attlrmed.
Order of Session* affirmed.
Cited in— 17 Johns., 92.
»KANE t>. SANGER.
Heal Property— Breach of Covenant after As-
signment— Action must be by Assignee — Mort-
gage — Pleading — Variance — Notice — Dam-
age*— Costs.
An action for a breach of covenants running
with the land, must be brought by the assignee of
the land, or of part of it, pro tantn, if the breach
were subsequent to the assignment, unless the
grantor convoyed with warranty.
Where A, the grantee, by deed, with covenant
for quiet enjoyment of two lots of six hundred
MM each, conveyed one hundred acres of the one
lot to B, C, D and E. respectively, with warranty,
and the remaining two hundred acres of the same
Jot to F, ami one half of the Jot was afterwards re-
• covered in ejectment by persons having a para-
mount title ; it was held that A was entitled to recov-
er 1(81111)1 his grantor for the eviction of B, C, D and
E, as he was thereby deprived of his remedy on the
bonds and mortgages given by them for the con-
sideration, but not the costs of the ejectment suits,
as they had been satisfied as to them by the grantor;
nor for the part conveyed to !•', as that was by deed
without warranty ; and Judgment was given for A
for one sixth of the consideration expressed in the
original deed, with six years' interest.
A conveys land to It, with covenants, and It con-
veys it to C, and takes a mortgage for the considera-
tion ; C, the mortgage being unsatlfltled. cannot re-
lease A from the covenants in his tired ; for, by the
mortgage, the seisin was revested in It.
In an action for a breach of a covenant for quiet
enjoyment, the defendant pleads non e»t fiictum,
JOHNS. REP., 14. N. Y. R., 5.
with notice denying an eviction, the defendant is
bound to prove that there was no eviction, as the
pleadings merely put the deed in issue.
A luitier must state truly the fact* intended to be
given in evidence, but if a variance be not material
to the right of the cause, it will be overlook. .1.
Citations— 2 Johns., 4; 2 Mass.. 400; 3 Com. Dig.,
2»ti ; 1 Lev., 10U, 250 ; Th. Kaym., 80 ; Co. LIU., 885 <K
Shep. Touch., 199.
THIS was an action of covenant brought to
recover damages for an eviction of the
plaintiff's grantees, in four equal undivided
eighth parts of lot No. 64, in the township of
Camillas. The cause was tried before Mr.
Justice Yates, at the Onondaga Circuit, in
June. 1816.
The declaration stated a convevance from
the defendant to the plaintiff, dated the 20th of
February, 1798, by which the defendant, in
consideration of the sum of $8,210, conveyed
to the plaintiff, in fee, lots Nos. 52 and 64, in
the township of Camillus, each containing six
hundred acres, with a covenant for the quiet
and peaceable possession ; that the plaintiff, by
virtue thereof, was possessed of the premises,
and continued possessed, until Timothy
Ketchum, David Paddock, Chester Marshall,
William Paddock, Jesse Wood, James Ran-
som, Charles H. Toll and Nehemiah Hand,
with the consent of the plaintiff, entered into
the possession of lot No. 64, and held it under
the title of the plaintiff, and continued to pos-
sess it until, on the 19th of April, 1804, Josiah
Church and others, having at and since the
tfme of making the deed to the plaintiff, law-
• ful right and title to four equal undivided
eighth parts, entered into the same by lawful
process of ejectment, and evicted the posses-
sors therefrom; whereby the plain ill has not
only lost the possession of those four eighth
parts, but has been obliged to expend a large
sum of m6ney in endeavoring to defend the
possession.
The defendant pleaded non est factum, and
gave notice that he would give in evidence,
upon the trial, that after the conveyance to the
plaintiff, and before the commencement of this
suit, to wit : on the 7th of June, 1815, all the
titles to lot No. 64 was conveyed, in fee, by
the plaintiff, to Timothy Ketchum, Chester
* Marshall, James Ransom, Jesse Wood [*9O
and William D. Paddock ; and that, on the
same day, the defendant paid to the said
Timothy, Chester, James and Jesse $2,000. in
satisfaction of the breaches of covenant men-
tioned in Hie declaration, as far as related to
them ; and that neither William D. Paddock,
Charles H. Toll, David Paddock and Nehe-
miah Hand were evicted by any title para-
mount, nor had they any title to any part of
the lot. The defendant further gave notice
that he would give in evidence a release from
Timothy Ketchum, Chester Marshall and Jesse
Wood, to himself, dated the 7th of June, 1815,
of all demands on the defendant's covenant,
and of the covenant itself, as to their quanti-
ties of land, and all claims for mesne profits or
costs, and a similar release from James Ransom,
dated the 4th of July, 1815 ; that the plaint-
iff had not been damnified by any recovery
against the persons mentioned in his declara-
tion, other than the said James Ransom, Ches-
ter Marshall, Timothy Ketchum and Jesse
Wood ; and that the defendant had paid them
50 785
90
SUPREME COURT, STATE OP NEW YORK.
1817
the amount of the damages sustained in con-
sequence of such recovery, to wit : the sum of
$1,000 ; and that, before the eviction alleged
in the plaintiff 's declaration, on the 1st of May,
1812, the plaintiff sold and conveyed two
hundred acres of lot No. 64 to one Thomas
Morris ; and that no demand had been made
by Morris upon the plaintiff, in consequence
of any eviction of such portion of the lot.
The plaintiff, at the trial, proved the re-
covery in ejectment, as stated in the declara-
tion, and that the costs of the ejectment suits,
recovered by the plaintiff therein, amounted
to $820.46 ; that the costs of the defendants
therein amounted to $162.76,, and that the
present action was brought by the direction
and for the benefit of Morris.
It was proved, ou the part of the defendant,
that in 1805 and 1806 the plaintiff, by deeds,
with warranty, conveyed to James Ransom,
Chester Marshall, Timothy Ketchum and
Jesse Wood, each one hundred acres of lot No.
64, and took their bonds and mortgages for
the consideration money ; that on the 10th of
June, 1806, he released to Morris all his right
and title to the lot, together with the bonds
and mortgages of the purchasers ; and that on
the loth of July, 1812, Morris conveyed one
hundred acres of the lot to David Paddock, by
deed, with warranty. The defendant gave in
evidence the release set forth in his notice, and
91*] *also the payment of $129.55 to Timothy
Ketchum, being, together with the sum men-
tioned in the release, the full amount of tfle
plaintiff's bill of costs in the suit against
Ketchum.
The judge declined giving any opinion on
the evidence, but received it with liberty to
the parties to object, on the argument of the
case, to the admissibility and effect of the
whole or any part of it ; and a verdict was
taken for the plaintiff for $2,172.74, being one
fourth part of the consideration mentioned in
the deed to the plaintiff, with six years' inter-
est, together with the costs in the ejectment
suits, including $50 for counsel fees. It was
agreed that if the court should be of opinion
that the plaintiff was entitled to recover, judg-
ment should be entered for such sum as .the
court should direct.
Mr. Cady, for the plaintiff. The question
that would seem to arise on the first view of
the case is, whether a party, after he has
aliened land, can maintain aii action of cove-
nant in a deed running with the land. But
this case, it will be found on examination,
may be decided without discussing or deciding
that question.
The defendant has pleaded non est factum,
and given notice of special matter to be offered
in evidence at the trial. The notice states that
the plaintiff conveyed all his right and title to
the lot to five persons. The proof is that he
conveyed to four persons one hundred acres
each, and the residue to another person, not
named in the notice. Here, then, is a material
and fatal variance between the notice and
proof. The rule as to a plea applies equally
to a notice allowed to be given instead of a
special plea.
Mr. Talcot, contra. If the court should be
against the defendant on the ground of a
variance, they will, no doubt, allow him to
78«
amend his notice. But there is no necessity
to ask that favor. The evidence is sufficient
to support the notice. Every part of the
notice being inpari materia, ought to be taken
together, and a consistent interpretation given
to the whole.
In Delavergne v. Norris, 7 Johns., 358, it was
decided, that unless the grantee paid off the
incumbrance, he could not in an action of
covenant, recover more than nominal dam-
ages ; and that if he does not choose to wait
until he is evicted, he may satisfy the mort-
gage *and resort to the covenant. In [*92
Guthrie v. Pugsley, 12 Johns., 126; Morris
v. Phelps, 5 Johns., 49 ; 10 Mass., 454 ; 8 Mass.,
243; 4 Mass., 631, it was held that where
there was a failure of title or breach of the
covenant, as to part only, the plaintiff might
recover damages pro tanto. He may then show
an eviction as to part, since he can recover
damages only for so much.
If the defendant pleads non estfactum only,
the other facts cannot be controverted ; but
though the other facts in the declaration are
admitted by this plea, it does not preclude
evidence of the damages. (Peake's Ev., 266-
285.) So, in an action on the case against an
administrator, though the plea of plene admin-
istravit admits the debt, yet the plaintiff must
prove his debt, otherwise he is entitled only to
nominal damages. (Shelly' s case, 1 Salk., 296 ;
1 Show., 81.)
Again ; notwithstanding there should be
any failure of title, the bonds given by the
mortgagors might be recovered at law. ( Vroo-
man v. -Phelps, 2 Johns., 177.)
But the plaintiff having conveyed the land
with warranty, he has devested himself of all
title to the covenants, which passed with the
land to the grantees ; and Ra.nsom, Ketchum,
Marshall and Wood, having released to the de-
fendant all claims and demands on his cove-
nant, no action can be maintained by them.
(2 Johns., 5; 2 Mass., 60 ; Cro. Charles, 503;
2 Roll. Abr.. 411, Release, B; Bac. Abr., Cov-
enant, 73.) This is conclusive as to the four
hundred acres, and as the residue was con-
veyed to Morris by a mere quitclaim, there i&
no possibility of the plaintiff's being made
liable on the ground of any defect or failure
of title.
Again ; to sustain this action, it is absolutely
necessary that there should be an eviction.
We deny the evidence as to all except four,
and in regard to them we gave evidence in
mitigation, of damages. A mere recovery of
judgment in ejectment is no eviction. (13
Johns., 236.)
We contend, therefore, that if the. notice
were struck out of the case, the plaintiff is.
entitled to nominal damages only. The
plaintiff is entitled to recover no more than
the reasonable costs' which have arisen in as-
certaining the title ; and those costs have been
satisfied.
Mr. Cady, in reply, insisted that the plaintiff
was not . bound to show an eviction ; for the
plea of non est faclum put in issue only the
deed, and admitted all the other facts averred
in the declaration. By the pleadings, there-
fore, the whole burden of proof rested on the
defendant, in support of his notice. Every
necessary fact, on the part of the plaintiff, is
JOHNS. REP., 14.
1817
K A M-. v. SAJJOER.
93*] admitted by the *plea. Though a notice
need not be technical in form, it must be sub-
stantially correct and proved an stated. (Late-
renct v. Knie*. 10 Johns.. 140.)
SPENCEK. J., delivered the opinion of the
court :
Objections have been made to the plaintiff's
right of recovery for any sum. First, it is
contended that by the conveyance** to Ketch-
urn, Marshall, Ransom and Wood, and to
Thomas Morris, the plaintiff has devested him-
self of all right to maintain any action on the
covenant for quiet enjoyment. It has been
decided in this court, in Greenby & Kellogg v.
Wilcojf, 2 Johns., 4, that a covenant of seisin,
broken the instant it was made, could not be
assigned. It is a general rule, that where
covenants run with the land, if the land is
assigned or conveyed before the covenants are
broken, and afterwards they are broken, the
assignee or grantee can alone bring the action
of covenant to recover damages ; but if the
grantor or assignor is bound to indemnify the
assignee or grantee, against such breach of
covenant, there the assignor. or grantor must
bring the action. (2 Mass., 460.) Here the
covenant being broken after the conveyance
by the plaintiff, his grantees would be enti-
tled to bring the action, were it not for
the consideration that he conveyed to the
first four named persons by deeds with war-
ranty.
A "second objection is taken, that the plaint-
iff has shown no eviction. It would, no
doubt, have been incumbent on the plaintiff
to have shown an eviction, if the state of the
pleadings had required it or put it in issue.
The plea of non eat factuin dispenses with the
proof of the averments in a declaration founded
on a deed. It puts in issue only the execution
of the instrument declared on. Under the
notice accompanying the plea, the eviction of
Ketchum, Marshall, Ransom and Wood is not
questioned ; but the notice denies that William
D. Paddock, Charles H. Toll. David Paddock
or Xchemiah Hand were evicted by any title
paramount, or that they, or either of them, had
any title to any part of lot 64. There is no
evidence that they were or were not evicted.
As the proof of this fact was not thrown on
the plaintiff by the form of the pleadings, and
as the defendant assumed the proof that they
ware not evicted, he was bound to give evi-
dence from which that fact could be legally
inferred, and I perceive no evidence from
which we can draw the inference.
Objections are made to the proof of the
94*J facts set up in the *notice : first, on the
score of variance; and second, that the facts
thus given notice of could not be pleaded in
bar, 'and therefore could not avail the defend-
ant under a notice.
It is true that the proof does vary from the
facts stated in the notice. The notice sets up
that the plaintiff conveyed, before the com-
mencement of this suit, all his right and title
to lot 64, in Camillus, to Ketchum, Marshall,
Ransom, Wood and William D. Paddock ; the
proof is that he conveyed to the four former
four hundred acres, one hundred aeres to each
and the residue to Thomas Morris. Here, then,
is a variance, and a notice must state truly the
JOHNS. REP., 14.
facts intended to be given in evidence ; but I
perceive nothing material in this.
The only remaining points are, whether the
plaintiff on the proof given was entitled to
recover any damages, and if any, to what
amount. There is no evidence that the plaint-
iff has been subjected to the payment of any
of the damages or costs recovered in the eject-
ment suits. The foundation of the suit is,
that the defendant has broken his covenant for
auiet enjoyment, and the plaintiff is thereby
deprived of his remedy on the bonds and
mortgages taken from the purchasers, and is
subject to the payment of the costs recovered
against his grantees.
If the plaintiff's grantees have been evicted
by title paramount as to one moiety, and if the
right to recover damages therefor did not pass
to the grantees, in • consequence of the plaint1
iif's warranty to them, then, with respect to
the consideration money and interest, I do not
see that there can exist any solid objection to
the plaintiff's recovery to that amount. The
right to recover the costs, in aggravation of the
damages, is very questionable, putting out of
view the payment of them in favor of the
suits, by the defendant, to the persons imme-
diately affected, and who were solely liable for
them to the plaintiff in the ejectment suits.
The deed to Morris for two hundred acres of
the lot is a quitclaim ; and this deed being be-
fore the breach of the defendant's covenant,
the right to recover damages, pro tanto, was
vested in Morris, and as to that portion of the
lot the plaintiff cannot recover. An assignee
of part of the estate can maintain the action of
covenant pro tanto. (3 Com. Dig., 262; 1 Leo.,
250; 1 Lev., 109; Th. Rayra., 80; Co. Lit.,
385 a; Shepard's Touch.', 199.) To avoid
circuity of action, a release from the plaintiff's'
grantees to the defendant might have been
available, but for the *mortgages given [*9*>
by Ransom, Marshall, Ketchum and Wood.
These mortgages reinvested the plaintiff
with the seisin of the lauds conveyed to them;
and consequently, they could not release the
defendant's warranty, because, in judgment of
law, they ceased to be assignees upon the exe-
cution of the mortgages.
The defendant has shown (and this he might
do under the general issue, when the inquiry
became a mere question as to the extent of the
damages), that he has paid the costs to the de-
fendants in the ejectment suits, and therefore
the plaintiff cannot be subjected to them ; and
as to the costs, in the other suits, the plaintiff
not having shown that he has paid -them, I am
of opinion that he cannot recover them. It ap-
pears to me that to allow the plaintiff to recover
one sixth part of the consideration money and
six years' interest, consists with perfect equity.
The plaintiff has paid the defendant for the
lot ; the four purchasers have not paid any-
thing, as it appears they gave mortgages which
are not stated to be satisfied. To suffer the
defendant to acquire their releases for the pur-
pose of defeating the plaintiff's recovery, might
be to defraud the plaintiff out of the money he
has advanced. The court are of opinion. that
judgment must be given for the plaintiff ac-
cordingly, for one sixth pact of the considera-
tion expressed in the deed, with six years' in-
terest.
787
95
SUPREME COURT, STATE OF NEW YORK.
1817
Judgment for the plaintiff.
Overruled— 5 Cow., 139.
Cited in— 4 Wend., 523; 10 Wend., 184; 15 Wend.,
509: 17 Wend., 144; 19 Wend., 337; 3 Hill, 188.; 1
Paige, 414 ; 1 Barb., 405 ; 2 Hall, 488 ; 8 Daly, 203.
THE UNITED STATES OF AMERICA
V.
DODGE ET AL.
Bonds for Duties to the United States — Jurisdic-
tion of State Courts.
Bonds given for duties to tke United States, may
be sued in the State Courts, which have (by the
Judiciary Act of the United States) concurrent
jurisdiction with the courts of the United States, of
all suits at common law, where the United States
are plaintiffs.
Citations— Sess. 1, 1st Cong., ch. 20, sees. 9, 11; sess.
3, 5th Cong., ch. 128, sees. 62, 65.
THIS was an action of debt on a bond, given
.by the defendants, for the payment of
duties to the Collector of the District of Cham-
plain. The bond was given in the form pre-
scribed by the Act of Congress for the Collec-
tion of Duties, passed the 3d of March, 1799.
The only question was, whether this court had
jurisdiction of the cause.
The case was submitted to the court without
argument.
Per Curiam. The question submitted in
this case is, whether this court has jurisdic-
tion of the action. We are not able to dis-
96*] cover *where any doubt can exist upon
this question. The action is upon a bond
given by the defendants to the United States,
conditioned for the payment of certain duties,
and is in the form prescribed by the Act of
Congress. (Sess. 3, 5th Cong., ch. 128, sec.
62.) On failure of payment of the duties,
bonds thus taken are directed to be prosecuted
(sec. 65) in the proper courts having cogni-
zance thereof. By the Act to Establish the
Judicial Courts of the United States (sess. 1,
1st Cong., ch. 20, sees. 9 and 11), it is declared
that the courts of the several States shall have
cognizance, concurrent with the courts of
the United States, of all suits at common law,
where the United States are plaintiffs in the
suit. Judgment must, accordingly, be for the
plaintiffs.
Judgment for tlie plaintiffs.
Explained— 2 Paine, 310.
Cited in-1 N. Y., 543 ; 67 Barb., 306 ; 1 Wood. & M.,
70.
JACKSON, ex dem. VAN ALEN and VAN
ALEN,
AMBLER.
Award by Commissioners under Statute — Ex-
tent of Submission — Certainty to a Common
Intent Sufficient— Part Void — Residue Sus-
tained.
By an Act of the Legislature, passed the 8th of
June, 1812, commissioners were appointed to settle
disputes and controversies between persons claim-
ing land under the patent to De Bruyn, and the pos-
sessors of land within that patent, who having made
their award as directed by the Act ; it was held that
the award could not be invalidated as against law,
because a previous decision of the Court of Errors
had fixed the boundaries of the De Bruyn patent
differently from the commissioners, this being
within the scope of the authority given by the Act ;
or, because it was not co-extensive with the sub-
mission, which empowered the commissioners to
award upon other claims than those derived from
the patent, as it did not appear that such other
claims had been brought before .them ; that it was
not uncertain in awarding lauds to the parties ac-
cording to their respective possessions, without
further defining them, this being capable of being
reduced to certainty ; that it was not uncertain in
the statement of the bounds of the patent, no uncer-
tainty in the lines run having been made affirma-
tively to appear, and the commissioners having
viewed the land, and annexed a map of it to their
award, which might be referred to, to elucidate any
obscurity; and tnat, although the commissioners
had exceeded their powers, by awarding as to lands
without the De Bruyn patent, yet, that this did not
vitiate the whole award.
An award cannot be impeached on the ground
that it is against law, especially when the question
has been referred to the arbitrators by an Act of
the Legislature.
An award must decide on all the questions con-
tained in the submission, otherwise it will be void ;
but then it must appear that the points decided
upon were actually in controversy between the
parties.
Where part of an award is void, by reason of the
arbitrator having exceeded his power, it does not
vitiate the residue.
Certainty to a common intent is sufficient in an
award.
An award referring to certain extrinsic circum-
stances, is sufficiently certain.
Where a submission has been sanctioned by an
Act of the Legislature, it cannot be drawn in ques-
tion, unless the arbitrators have exceeded their
powers or executed them imperfectly.
Citations— 8 Johns., 495; Kyd, 185, 237, 238, 172; 3
Cai., 167; 9 Johns., 212; 7 East, 81; 1 Cai., 314, 315;
Vin. Abr., Grant ; Co. Litt., 4, 6; Bac. Abr., tit. Grant,
H,2.
THE plaintiff in this suit having recovered a
judgment against the defendant, in an ac-
tion of ejectment, in order to revive the same,
issued a scire facias, tested the 26th of October,
1814, returnable during the same term, against
the defendant ; to which the defendant ap-
peared, and pleaded that between the rendi-
tion of the judgment and the issuing the scire
facias, the lessors of the plaintiff died, leaving
heirs at law entitled to the premises recovered;
who, in conjunction with the plaintiff's at-
torney, on the 8th of June, 1812, with all
persons claiming any interest *or estate [*9 7
in a tract of land hereafter mentioned, of
which the premises in question are parcel,
united in an application to the Legislature, -
praying them to pass the Act hereafter men-
tioned ; that the Act was, accordingly, passed;
that on the 9th of April, 1813, on further ap-
plication of all the parties interested in the
tract, another Act was passed, as hereafter set
forth ; that the commissioners appointed by
the first-mentioned Act, accepted the appoint-
ment, and performed the duties required of
NOTE.— Awards— Requisites— Construction — Part
Void.
Awards must be within the sub mission, certain to a
common intent, and final. See Purdy v. Delevan, 1
Cai., 304, note.
An award void in part and good in part, may be
sustained as to the part which is good, where the parts
are so distinct as not to be dependent on each other.
788
In addition to the above case of Jackson v. Ambler,
see Dake v. James, 4 N. Y., 568 ; Martin v. Williams,
13 Johns., 264 ; McBride v. Hogan, 1 Wend., 3« ; Day
v. Hooper, 51 Me., 178; Banks v. Adams, 23 Me., 259;
Rixford v. Nye, 20 Vt., 132; Chase v. Strain, 15 N.
H., 535;. Rogers v. Tatum, 25 N. J. L., 281; Wynn
v.Bellas, 34 Pa. St., 160; Carson v. Early wine, 14
Ind., 256; Blossom v. Van Amringe, 63 N. C., 65;
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. AMBLER.
97
them ; that they caused the lands to be sur- j
v.-v.-.l, and on the 4th of June,"1814, made and i
published their award under the hands and !
seals of two of them, and delivered the same "
to the parties ; that the commissioners, from
time to time, entered their determination in a !
book kept by them for that purpose, and on i
the 6th of June, 1814, caused the same to be
filed in the office of the clerk of the County of i
Columbia, there to remain of record. The" |
plea then sets forth the two Acts of the Legis- i
fature, and the book and award of the com- !
missioners. The Act of the 8th of June. 1812, j
was entitled " An Act for Settling Disputes >
and Controversies Between Persons Claiming
Certain Lands in the Town of Kinderhook, j
under a Patent granted to John Heridrix I)e j
Bruyn, and the Possessors thereof." It will
be necessary, for the full understanding of the
case, and of the opinion of the court, to state
the preamble and principal enacting clauses of
this Act, which were as follows :
" Whereas divers disputes and controversies
have subsisted between the persons claiming a
tract of land granted by patent to John HeU-
drix De Bruyn. in sixteen hundred and eighty- j
six, of the one part, and Peter Cooper, Daniel
Frier, Andrew Sergaman, John Niver, Jr.,
Thomas Watson, Thomas F. Tobias, Reuben
Bullock, John Goedemoet, Cornelius Watson,
Marcus Niver, Michael Niver, Jacob Goede-
moet and the heirs of Henry Ham, deceased,
and others, who are in the possession of land
in the town of Kinderhook, in the County of
Columbia, of the other part, relative to the
right and title to the said lands so possessed,
and which are claimed by the said parties of
the first part, by virtue of the said patent :
And whereas the said disputes and controver-
sies cannot be finally determined without a
number of lawsuits attended with great delay
and expense to the parties : And whereas
divers of the parties are infants, and some
under coverture, by means whereof it is diffi-
cult, if not impracticable, to have a determina-
tion of the disputes and controversies conclu-
1)8*] sive *and binding, without the aid of the
Legislature f And whereas the agents and at-
torneys of the said parties have agreed to
unite in an application to the Legislature for
an Act appointing commissioners finally to
determine the right and title of the said par-
ties to the lands possessed by the parties of the
second part .in the said town of Kinderhook.and
claimed by the said parties of the first part,
and all disputes and controversies relative to
the same ; and that Jacob Radcliff and David
B. Ogden, of the City of New York, and
Thomas Rudd, of the town of Poughkeepsie,
Esqrs., be the commissioners for that purpose:
And whereas the said agents have made their
joint application, by petition to the Legisla-
ture, the prayer of which it appears reasonable
to grant : Therefore,
1 Be it enacted by the people of the State
of New York, represented in Senate and As-
sembly, That Jacob Radcliff. David B. Ogden
and T"homas Rudd, be and are hereby appoint-
ed commissioners to settle the said disputes
and controversies.
It. And be it further enacted, That it shall
and may be lawful for the said commissioners
to hear and examine all disputes and contro-
versies between the said parties respecting the
title to the said lands, the rights and remedies
of the parties, and all claims made bv them to
the said land or to any part thereof, by any or
either of them; and finally, to determine such
disputes, controversies and claims ; which de-
termination shall be absolutely binding and
conclusive, and shall, to all intents, construc-
tions and purposes whatsoever, absolutely
vest the right, title and interest of every part
of the said lands in such person or persons,
and for such estate or estates, and in such
way and manner as shall be named and speci-
fied in such determination ; and if such right
or title of the parties of the first part shall,
by the said commissioners, be found to exist,
then they shall ascertain and determine
whether the remedy hath been barred or de-
feated by length of time, or other means what-
soever.
V. And be it further enacted. That if the
said commissioners shall determine the title to
the said lands, or any part thereof, to be in
the persons claiming under the said patent,
then the said commissioners shall view the
lands, or so much thereof as they shall de-
termine to belong to the said parlies of the
first part, and shall cause a survey to be made
of the same, and of the parcels claimed by
every person whose possession shall fall with-
in such determination ; and also, that the said
commissioners, *after such view and [*9O
survey, and after taking all relative circum-
stances into consideration, and after hearing
the proofs and allegations of the parties, if
any be offered, shall award and determine
what shall be paid by the possessors to the
proprietors for the same, and at what time and
manner the same shall be payable.
VI. And be it further enacted, That before
the commissioners shall enter upon the duties
of their office, the attorney for the parties of
the first part shall deliver to the said com-
missioners the names of all such persons as
claim to be proprietors of such lands as are
possessed by the parties of the second part,
within what is claimed to be the bounds of
said patent ; and the attorney for the parties
of the second part shall also deliver to the
said commissioners the names of all such per-
sons as claim to be possessors, owners or occu-
pants of any lands so possessed within the
disputed lines, and all persons whose names
are so given shall be, and hereby are declared
parties to this Act, as freely and effectually as
if they were named herein.
VII. And be it further enacted. That the
moneys awarded by the commissioners afore-
said, shall be paid at the time and in the man-
Walkt-r v. Walk«T, 88 Oa., 140; Parmalec v. Allen. '
38 Conn., 115; Barrows v. Capen, 11 Cush., 37: Rey-
nolds v. Reynolds, 15 Ala., 3«8: Caton v. MacTa- '
visb, 10 Gill Sc J., 198; Garitee v. Carter, 16 Md.,308; i
Cowan v. MuNt-Hey, 10 In-d.. 5; Darling v. Darlliur,
16 Wig.. 044; Lee v. Elking, 18 Mod., 585: Slminonds
v. Swalne. 1 Taunt.. 54».
W here an a *ard,th<mgh matte up of nereral portfc * |
TOIINS. REP., 14.
< a tin . and not 'in UK nature dMtiittlc, and is void in
part, it is void in tatn. Cook v. Carpenter. 34 Vt., 121 ;
Adams r. Adams, 8 N. H., 82: Hubbell v. Bissell.TS
Crry.S'.l; Maw" V. Addis. 14 N. J. 1... :C£i; Sw. .-I \ .
MiitthcwnnnTl R. I.. 420; Culliper v. Gllliam,» Ired..
126; Black v. Hit-key, 48 Me.. 545; Gibson v. Powell.
5 Smcdue & M., 712 ; Buckley v. Ellmaker. 13 Serg.
8t R., 71 ; Bonner v. Cbarlton, 5 East, 130.
99
SUPREME COURT, STATE OF NEW YORK.
1817
ner by them directed, to such person or per-
sons as shall be by them appointed ; and upon
payment of the amount of the moneys pay-
able by the possessor to the proprietors, the
possessor shall hold and be seised, and be
deemed to hold and be seised of an estate in
fee simple in the said lands so possessed by
him as aforesaid, and the right and title of all
persons claiming under the said patent to be
extinguished ; but if it shall happen that the
moneys shall remain due and unpaid, in whole
or in part, at the end of the time appointed by
the said award, then the proprietor or pro-
prietors, or his or their agent, may proceed to
a sale of the lands of the delinquent possessor,
or any part thereof, at public auction, in the
manner, and after the notice usual in the case
of mortgages, with clause of sale; and such
sale shall be a bar, both in law and equity, to
the possessor, and all who shall claim by,
from or under him or them : Provided, never-
theless, that if on such sale more money shall
be made than is sufficient to satisfy the sum
due, with reasonable costs, the sum remain-
ing shall be paid to the possessor or delin-
quent.
IX. And be it further enacted, That all de-
terminations, to be made by virtue of this
Act, shall be made within one year from the
passing thereof ; and that the commissioners
1OO*J shall, from *time to time, enter their
determination in a book to be kept by them
for that purpose, and after signing and seal-
ing the same, such book shall be lodged in
the office of the clerk of the County of Colum-
bia, there to remain of record.
X. And be it further enacted, That all and
singular the trusts, powers and authorities
hereby granted to the said commissioners,
shall and may be executed by any two of the
said commissioners.
XII. And be it further enacted, That noth-
ing'in this Act contained shall be taken or
construed to impair any right or title to the
said lands, which the said parties of the first
part may set up, on the hearing before the
said commissioners, other than that derived
from the said patent : but they shall be at full
liberty to avail themselves, on the said hear-
ing, of all and every right, title, or claim,
which they may have to the said premises, or
any part thereof, whether derived from the
said patent, or otherwise."
By a subsequent Act of the Legislature,
passed in 1813, the time for making the de-
termination of the commissioners was extend-
ed to two years from the passing of the first
Act. The book of the commissioners stated
their meeting ; that the attorneys of the par-
ties delivered to the -commissioners the names
of the claimants and possessors respectively,
which are set forth in the book ; that the
commissioners, at the request of the parties,
and in company with their respective attorneys
and counsel, viewed the disputed premises,
and examined the several lines set up by the
parties, as the lines of the patent to De Bruyn,
and examined the various landmarks shown
by the parties ; that on the 16th, 17th, 18th
and 20th of September, 1813, they heard and
examined the disputes and controversies be-
tween the parties, respecting their title, rights
and remedies, and after the hearing, made
and published their final order, award and de-
termination of and upon the premises.
The parts of the award material to the ques-
tions arising in this case are as follows :
"Second. We, the undersigned commission-
ers, do order, award and determine, that the
patent to John Hendrix De Bruyn shall be
located as follows, to wit : beginning at
David's Hook, upon the- east side of Hudson
River ; thence running down along the east
side of said Hudson River to the kill or creek
called France Peterse Clavers Saw Kill, to the
place *where the said creek empties [*1O1
into Hudson River, which general course
from the said David's Hook to the said saw
kill, is south, nine degrees thirty minutes
west ; thence from said saw kill easterly along
the line run by John E. Van Allen, as the
south line of the said De Bruyn's patent, so
far east as that a line parallel with the general
course between the two river stations, to wit :
a line north, nine degrees thirty minutes east,
wilk strike the west margin of the small lake
to the eastward of Suyer's Lake, called Dick-
opper Lake, passing said west margin of said
lake, on a continuation of said course, till you
intersect the south line of the Gardinier patent ;
thence westerly along that line to David's
Hook aforesaid.
Third. We do order, award and determine,
that all lands possessed by the said parties of
the second part, or by any persons for or un-
der them, lying east of the east line of the
patent to John Hendrix De Bruyn, as above
located and described, to wit : east of a line
to be run from the south line of the Gardinier
patent to the south line of De Bruyn's patent,
as run by John E. Van Allen, on a course
south, nine degrees and thirty minutes west,
touching the west margin of Dickopper Lake,
shall remain to them, the said parties of the
second part, their heirs and assigns, according
to their respective positions, forever.
And we, the said commissioners, having
established the lines of the patent aforesaid,
granted to John Hendrix De Bruyn, as afore-
said, hereby determine that the title to part of
the said lands was in persons claiming under
said patent. We, the said commissioners,
have viewed the lands so by us determined to
belong to the said parties of the first part, and
we have caused a survey to be made of the
same by David Brooks, Esquire, by us ap-
pointed for that purpose, a map or diagram
whereof is hereunto annexed, and we have
caused survey,- as aforesaid, to be made of the
several parcels claimed by every person whose
possession did fall within such. our determi-
nation.
And we, the said commissioners, after such
view and survey, and after taking all relative
circumstances into consideration, and after
hearing the proofs and allegations of the part-
ies, do. Fourth, award, order and determine,
&c. We do further award, order and deter-
mine that, as to the following piece or tract of
land held and possessed by Andrew Spicker-
man, *bounded as follows : beginning [*1O2
at a point in our said east line, about twenty-
five links north of the outlet of the Dickopper
Lake, being in the south line of the Gardinier
patent, as claimed by them, and running
thence north, nine degrees and thirty minutes
JOHNS. REP., 14.
1817
JACKBON, EX DEM., v. AMBLER.
103
east, along our east line, fourteen chains ninety-
seven links, to a stake in the north line of the
De Bruyn patent, as claimed by them; thence
along said north line, &c. And we do further
award, order and determine, that as to the
following piece or tract of land held and pos-
sessed by John Niver, being part of the farm
called the Ambler Farm, and claimed hereto-
fore by Albert Pawling, and possessed by
Ambler under him, bounded, &c. , containing
thirty-seven acres, exclusive of the post road ;
that the said John Niver is the possessor of the
said tract of land last above described, the
title whereof is vested in the persons claiming
under the patent aforesaid grunted to John
Hendrix De Bruyn. We do, therefore, award
and determine, that tbece shall be paid by the
said John Niver, to the said proprietors, the
sum of $30 per acre, on or before the 1st day
of November next, which sum we order and
direct to be paid to Peter Van Schaack, to be
received by him for the proprietors, according
to their respective shares or interest in . the
premises, and that from and after the payment
of the sum aforesaid, he. the said J. Niver,
shall hold and be seised of an estate, in fee
simple, in the said lands so possessed by him,
as aforesaid." The award was executed on
the 4th of June, 1814. by Theron Rudd, and
David B. Ogden, two of the commissioners.
The defendant then, in his plea, avers that
as I" the premises mentioned in the record, he
had left the possession thereof, and that one
John Niver had become the possessor thereof,
and defended the same before the commission-
ers ; and as to part of the premises called the
Ambler Farm, they adjudged that Niver was
the possessor thereof, ana ordered that he
should pay. on or before the 1st of November
then next, the sum of $30 per acre, to Peter
Van Schaack, for the proprietors ; that as to
the residue of the premises mentioned in the
record, they awarded that the heirs of the les-
sors of the plaintiff had no estate or interest
therein, but that the possessors, their heirs and
assigns, should continue to hold and enjoy the
same, according to their respective possessions,
forever ; and that Niver, before the 1st of
November, to wit : on the 1st of October, 1814,
tendered to Van Schaack the sum ordered to
1O3*1 be paid by him, which Van *Schaack
refused to receive, and which he always has
been, and still is, ready to pay. .• r
To this plea there was a general demurrer,
and joinder in demurrer.
The case was argued by .\fr. Van Buren,
Attorney-General, and Mr. Van Vechten for
the plaintiff, and by Messrs. T. A. Emmet and
K. Willinmx for the defendant ; but the points
and authorities are so fully discussed by the
court, that it is thought unnecessary to state
the arguments of the counsel.
SPENCER, •/. . delivered the opinion of the
court : .
This case has been very ably and elaborately
argued, and has received all the examination
in our power to give it. It cannot, at this day,
be controverted that courts of justice are
liberal in their construction of awards ; many
cases in which they were formerly held to be
void, as uncertain, or wanting mutuality. 'have,
for a long series of years, been overruled ; and
JOHNS. REP., 14.
we have no reason to regret the change. Ar-
bitrations are domestic tribunals ; the arbitra-
tors are chosen by the parties themselves, and
frequently mingle in their decisions their own
knowledge of the matters in dispute. Gener-
ally speaking, their awards, though intelligi-
ble, are not drawn up with technical accuracy;
their ends are mainly honest, and tend to ter
minate intricate disputes with. very little ex-
pense to the parties ; for all these reasons they
ought to be viewed indulgently.
The commissioners, as the Act under which
they derive their appointment styles them,
have been selected by the parties, and this se-
lection has been sanctioned by the Legislature;
the reasons which induced this are stated in
the preamble to the Act. Divers disputes and
controversies had subsisted between the per-
sons claiming a tract of land granted to John
Hendrix De Bruyn in 1686, of the one part,
| and others who are named in the preamble,
and who were in possession of land in the town
of Kinderhook. of the other part, relative to
the right and title to the said lands so possessed,
and which were claimed by the said parties of
j the first part, by virtue of said patent, which
I said disputes and controversies could not be
finally determined without a number of law
suits, attended with great delay and expense
to the parties. It then states that divers of the
parties were infants, and some under covert-
ure, by means whereof it was *diracult, [* 1O4
if not impracticable, to have a determination
of the disputes and controversies conclusive
and binding without the aid of the Legislature.
It then sets forth that they had agreed to unite
, in an application to the Legislature for an Act
' appointing commissioners finally to determine
the right and title of the said parties to the
lands possessed by the parties of the second
part, and claimed by the parties of the first
i part, and all disputes and controversies relative
| to the same.
On this state of the case, the Legislature
passed the Act drawn up by the parties, vesting
the commissioners named by them with powers
which will be adverted to ; the commissioners
have heard the parties, and two of them have
united in a determination, the validity of which
is drawn in question by the demurrer to the
defendant's plea.
The three general objections to the decision
of the commissioners are :
1st. That they have not decided according
to law.
2d. That their decision is not co-extensive
with the subject matter submitted.
3d. That it is uncertain, and not final.
The first objection has been urged, in refer-
ence to the decision of the Court for the Cor-
rection of Errors, upon the extent and bound-
aries of De Bruyn's patent. It was, probably,
decided in that case (8 Johns., 495) that a line
along the west branch of the Fish Lake in its
whole extent was the eastern boundary of the
patent ; I say probably, because the manner of
collecting the decisions in that court, unfortu-
nately, in almost every case, where several
opinions are given, leave it doubtful what is
the decision in any given case. Admitting it,
however, to have been so decided, that decis-
ion was only applicable to the facto then before
the court. It was the law of that case, and
791
104
SUPREME COURT, STATE OP NEW YORK.
1817
could not conclude the party upon a different
state of facts. It is manifest, from the pream-
ble of the Act already stated, as well as from
its body, that the parties to the Act intended to
refer the question, as to the extent and bound-
aries of the patent, to the final decision of the
commissioners. The 2d section of the Act
declares it to be lawful for the commissioners
to hear and examine all disputes and contro-
versies between the said parties to the title to
the said lands, the rights and remedies of the
parlies, and all claims made by them to the said
land, or to any part thereof, by any or either
1O5*] of them, and finally to determine *such
disputes, controversies and claims ; and that
their determination shall be absolutely binding,
and shall, to all intents, constructions and pur-
poses whatsoever, vest the right, title and in-
terest of every part of said Jands in such per-
son or persons, and for such estate or estates,
and in such way or manner as shall be named
or specified in such determination.
The 6th section is, if possible, more explicit ;
it enacts that before the commissioners shall
enter upon the duties of their office, the attor-
ney for the parties of the first part shall deliver
to the commissioners the names of ajl such
persons as claim to be proprietors of such
lands as are possessed by the said parties of the
second part, within what is claimed to^ be the
bounds of said patent ; and the attorney for
the parties of the second part shall also deliver
to the said commissioners the names of all
such persons as claim to be possessors, owners
or occupants of any lands so possessed within
the disputed lines.
There was nothing in controversy between
the parties but the boundaries of De Bruyn's
patent. It was conceded, by the preamble to
the Act, as well as its provisions, that the
parties of the first part were legitimate claim-
ants of De Bruyn's patent ; no deduction of
title was to be made out ; the names were to be
furnished to the commissioners of those who
claimed to be proprietors on the one side, and
on the other of those who claimed to be pos-
sessors, owners or occupants of lands within
the disputed lines ; and the whole determina-
tion proceeds on the ground that nothing was
in dispute but the boundaries of the patent,
and whether the remedy was lost in those
cases where the possessions fell within the line
established by the commissioners.
It is a novel objection, that an award is
against law where it decides upon a compli-
cated question of boundary, and where that
very question was the principal matter sub-
mitted.
Where an arbitrament takes place by the
mere act of the parties, it cannot be made an
objection to an award that it is against law.
(Kyd.,185, 237, 236, and 3Caines, 167, Sliepard
v. Watrous.) In Cranston et al. v. Executors
of Kenny, 9 Johns., 212, a motion was made
to set aside an award, where the submission
was, by the act of the parties, without any rule
or order of the court, for a mistake in law ;
and on a review of all the cases, we denied the
motion.
If, then, we cannot notice the objection
1O6*] when the submission *is by the act of
the parties, much less can we do it when to the
act of the parties is superadded an Act of the
792
Legislature, and the very point submitted i&
the question of law in reference to which, it is
alleged, the decision is against law.
The .second objection, that the award is not
co-extensive with the subject matter submitted,
is founded on this, that by the 12th section of
the Act "the parties of the first part were ta
be at full liberty to avail themselves on the
hearing of all and every right, title or claim,
which they might have to the said premises or
any part thereof .whether derived from the said
patent or otherwise ; and that it does not ap-
pear, by the award, that such rights have been
heard and adjudicated upon, and that if such
rights do exist, the parties of the first part are
hereafter precluded, by the award, from set-
ting them up. Tb bring this case within that of
Randall v. Randall, 7 East, 81, it has been in-
sisted that an ita quod clause is to be inferred
from the Act of the Legislature, so as to render
it a part of the submission that the commis-
sioners should, at all events, decide upon the
rights of the parties of the first part, under the
said 12th section. The case referred to does
decide that where there is a reference of two
distinct matters of difference, and the arbitrator
omits to decide one of such distinct matters,
the whole award is vitiated. But it expressly
appears, in that case, that the arbitrators haicL
not decided upon one of the matters specifically
submitted.
This objection is untenable. I admit the
law to be "that the award must comprehend
everything submitted, and must not be of par-
cel only." Upon this rule Kyd (172) observes
(and he is supported by the cases he refers to)
that it must be understood with a considerable
degree of limitation ; for, though the words of
the submssion b'e more comprehensive than
those of the award, yet, if it do not appear
that anything else was in dispute between the
parties beside what is comprehended in the
award, the award will be good; as if the sub-
mission be of all actions, real and personal, and
the award' be only of actions personal, it shall
be presumed that no actions real were depend-
ing between the parties. So, he says, it will
be sufficient if the thing awarded necessarily
includes the other things mentioned in the
submission, and this he illustrates by putting
a case.
In the first place, it was not submitted abso-
lutely to the commissioners to decide upon the
rights of the parties of the first part, independ-
ently of their claim under the patent to De
*Bruyn. Their claim under the patent [*1O7
was the primary object of the submission; and
the 12th section of the Act. without directly
asserting that they had any other claim, was
inserted for the purpose of giving them a right
to urge claims otherwise acquired or existing.
They were to be at "full liberty to avail them-
selves on the hearing" of such other claims :
whether the commissioners took such other
claims into consideration or not was to depend
upon the fact whether they were brought for-
ward or not. Unless they were brought for-
ward, they were not to be decided upon. It
does not appear, then, that anything was in
dispute between the parties in regard to any
such claims besides what is comprehended in
the award; and then, upon one of the distinc-
tions laid down by Kyd, the award is good.
JOHNS. REP.. 14.
1817
JACKSON, EX DEM., v. AMIU.KK.
107
But again; the award necessarily includes every
such claim, and decides upon it. 1. It is an
award upon the premises, and this involves
everything submitted. 2. It determines and
fixes the location of De Bruyn's patent. 3. It
decides that all lands, pooMned by the parties
of the second part, east of the east line of the
patent, as ascertained by them, shall remain to
them, the parties of the second part, their heirs
and assigns, according to their respective
possessions forever. 4. It decides that the
title to parts of the lands included within
De Bruyn's patent, as established and located
by them, was in persons claiming under said
patent.
The commissioners then state that they have
viewed the lands so by them determined to be-
long to the parties of the first part, and have
caused a survey to be made of the same by Da-
vid Brook's, by them appointed for that pur-
pose, a map or diagram whereof, they annex to
their report; and that they had caused a survey,
as aforesaid, to be made of the several parcels
claimed by every person- whose possession fell
within such their determination; and then they
proceed (5th) to award, in some cases, that
though the parties of the first part had right,
their remedy was lost ; and as to such they
award in favor of- the possessors ; and where
the right and remedy existed in the parties of
the first part, they award and fix the compen-
sation to be paid agreeably to the Act.
From this statement, it is manifest that if the
parties of the first part brought forward any
claims under the right reserved to them in the
12th section of the Act, such claims have neces-
sarily been decided upon; and if no such claims
were brought forward, then there is no dispute
in relation to them.
1O8*] *Under the third head, that the
award is uncertain, and not final, three excep-
tions have been taken, which will be consid-
ered in their order:
1st. It is contended that the award is uncer-
tain in this— that it awards the land possessed
by the parties of the second part, east of the
east line of the patent, as located by the com-
missioners to the parties of the second part,
according to their respective possessions, foi-
ever.
The particular uncertainty is supposed to
consist in not defining the extent of their pos-
sessions, or the nature or quality of them.
I am of opinion that the award, in this re-
spect, is an excess of power on the part of the
commissioners, and therefore void. The recit-
al, and the whole provisions of the Act, relate
to the claim by the parties of the first part
under De Bruyn's patent, and as respects the
parties of the second part, to the possessory
right of the parties of the second part, as to
what was thus claimed to be within the bound-
aries of that patent. The first great question
to be decided by the commissioners was, as to
the boundaries and extent of that patent. The
second was, whether any of the possessors had
acquired a right to hold their lands, admitting
them to be within those boundaries; and the
next, admitting the possessions to be included
by the patent, and that the remedy of the
parties of the first part was not barred, was,
what price should be paid for the lands thus
circumstanced. We nowhere find an intention
JOHNS. REP., 11.
expressed in the Act to give the commissioners
cognizance of any question as to the title of
lands without the boundaries of the patent of
De Bruyn. If I am right in this construction,
it does not affect the decision of the commis-
sioners as to the extent of the patent, or as to
the lands included within it, upon the maxim
that utii, per inutile non ntiatttr ; and in this
point of view, the plaintiff cannot complain of
the award for this excess of power, for it does
not appear that he is injured or affected by it;
and if it did affect him, it being void, it works
no injury to him.
Admitting, however, that the award is not
void, on the ground that the commissioners
have exceeded their powers, and that the
award, in this respect, is to be deemed an exer-
cise of the power given to the commissioners
under the 12th section of the Act, I am of the
opinion that the award is certain to a common
intent, and that is sufficient. In Purdy v.
Delavan, 1 Caines, * 814. 815, Justice* [*1OJ>
Livingston and Kent lay it down, that certainty
to a common intent, consistent with fair and
probable presumption, is all that is required,
under the rule that an award must be certain
and final. There can be no doubt, when the
Act and award are duly considered, that the
commissioners meant, in awarding the lands
east of the east Hne of De Bruyn's patent to
the parties of the second part according to their
respective possessions, the actual possessions
of those persons; and it was truly observed on
the argument that a deed conveying Innd as
actually possessed by a person, would inure to
the benefit of the grantee, as fully as if it des-
cribed the lands by metes and bounds. (Vin.
Abr., Grant, Co. Litt., 4, 6.) An actual pos-
session, i/'/iixi pedii poMessio, is susceptible of
clear and definite proof, and no lands can be
conveyed by any possible mode of expression,
dispensing with the necessity of parol proof to
locate it. We cannot require more certainty of
description in an award than what the law re-
quires in describing land conveyed by deed;
nor are we to intend, for the purpose o'f avoid-
ing this award, that there is any uncertainty in
these possessions. They may, for aught we
know, be included within the most definite
and permanent inclosures; and, if necessary to
support the award, we ought to intend that to
be the case.
2. It is insisted that there is a fatal uncer-
tainty in settling the exterior boundaries of
De Bruyn's patent.
The award determines the location of that
Rtent to be as follows: "Beginning at
ivid's Hook, upon the east side of the Hud-
son River, then running down along the east
side of .said Hudson River, to the kin or creek
called France Peterse Clavers Saw Kill, to the
place where the said creek empties into Hud-
son River ; which general course, from the
said David's Hook to the said saw kill, is south
nine degrees and thirty minutes west; thenc'e
from said saw kill easterly, along the line run
by John E. Van Alen, as the south line of said
De Bruyn's patent, so far east as that a line
parallel with the general course between the
two river stations — to wit: a line north nine
degrees thirty minutes east — will strike the
west margin of the small lake to the eastward
of Buyer's Lake, called Dickopper Lake, pass-
VM
109
SUPREME COURT, STATE OP NEW YORK.
1817
ing said west margin of said lake, on a con-
tinuation of said course, till you intersect the
south line of the Gardinier patent; thence
westerly along that line to David's Hook
aforesaid."
It has been argued that the line run by John
1 1O*] E. Van Alen, *and the south line of the
Gardinier patent, are uncertain. This we
cannot say ; for aught that appears, both their
lines may be as well known, and as perfectly
certain, as any lines ever run. There may be
marked lines at every rod's distance, or the
most durable monuments. It ought to have
appeared affirmatively that there were no such
lines, or that they were indefinite and vague.
We are bound to" notice, too, that the commis-
sioners have viewed the lands, so determined
by them to belong to the parties of the first
part, and caused a survey to be made of the
same, and that they have annexed to their
proceedings a map or diagram thereof. This
map being thus referred to, may be taken into
consideration as part of the description of the
boundaries, and by way of elucidating any-
thing obscure in it. (Bac. Abr., tit. Grant, H,
2.) If a grant be made of such liberties as
such a town enjoys, the grant is good, being
capable of being reduced to certainty ; for
when the act of disposal relates to another
thing, that thing, in a manner, becomes part
of the disposition, and the standard referred to
being certain, the grant, by relation thereto,
becomes certain. If so, then the map or dia-
gram renders these two lines perfectly and
mathematically certain. The courses, accord-
ing to the compass, are marked out upon it
from the stations on the river.
But it is contended that it appears by the
award itself that the line of the Gardinier pat-
ent is uncertain in this, that in describing the
land held and possessed by Andrew Spicker-
man, they begin at a point in the commis-
sioners' east line, which is described by them
as being in the south line of the Gardinier pat-
ent, as claimed by them ; and running thence
north nine degrees thirty minutes east, along
their east line fourteen chains ninety-seven
links, to a stake in the north line of the De
Bruyn patent, as claimed by them, &c. .Thus,
it is urged, admitting that there are two lines
of the Gardinier patent, and that one of them
is south of the line of the Gardinier patent
mentioned by the commissioners in fixing the
exterior lines of the patent.
• This objection has more plausibility than
any which has been made, but I think it
equally destitute of solidity. The commis-
sioners, in establishing the outlines of the De
Bruyn patent, as we have already seen, recog-
nize the south line of the Gardinier patent,
'and make that the north line of De Bruyn's.
In Spickerman's case they recognize one of the
stations of the land awarded to him to be " in
the south line of the Gardinier patent, .as
111*] *claimed by them;" thus evidently
distinguishing between the real south line of
the Gardinier patent, and one to which they
laid claim. Without involving any absurdity,
there may be these two lines, and if there be,
it is plain that the commissioners have consid-
ered the most northerly of the two as the true
line. It is to be observed that the authority
and power of the commissioners did not ex-
794
tend to the settlement of De Bruyn's patent
lines, so as to affect or conclude the rights of
other persons holding and claiming under ad-
joining patents. They had no concern with
the clashing claims of any other patentees. If
the exterior lines established by the commis-
sioners were so definitely specified, either by
the terms they make use of in the award itself,
or by reference to the map, as to fix the rights
of the parties, then it seems to me that we
must have the most demonstrative proof that
they have afterwards set afloat that location,
in designating the possessions of the persons
which fell within the lines they established.
The point itself charges the commissioners
with glaring absurdity. The Gardinier pat-
ent, as I have already observed, may have had
two lines ; the one a real and true line, to
which all the possessions under it conformed ;
the other to which they had set up a claim, in
contradistinction to the true and real line ; and
they are thus spoken of and referred to by the
commissioners. The mention, then, of this
claimed line of the Gardinier patent cannot
and ought not to be . understood as in the
least affecting the preceding location of the
patent.
Another difficulty, equally unsolid, has been
started. It is urged that the line intended as
the north line of De Bruyn's patent, instead of
being designated as the south line of the Gar-
dinier patent, which the commissioners recog-
nize as the northern boundary of the De
Bruyn patent, is inscribed on the map " as the
north line of De Bruyn's patent, as laid down
by John E. Van Alen;" thus, it is contended,
creating an uncertainty in the northern bound-
ary of the patent. When the commissioners
state in their award that they have caused a
survey to be made, and have annexed a dia-
gram to their award, they assert, as strongly
as possible, that the lines they lay down corre-
spond with the award ; and we must intend
that Van Alen's line, thus marked on the map,
is the south line of the Gardinier patent.
It was suggested on the argument that this
arbitrament having been sanctioned by an Act
of the Legislature, the court *could [* 1 1 2
not rightfully draw in question the decision
of the commissioners. I accede to this, in so
far as the commissioners have executed the
trust confided to them ; but had it appeared
that they exceeded their powers, or imper-
fectly executed them, we should have been
bound to deny to their decision any valid ef-
fect. In deciding the questions raised, we
ought to give a fair and liberal interpretation
to the award ; we can take no notice of the
original merits of the case ; these the parties
have seen fit to submit to these commissioners,
and their determination must be final and con-
clusive, unless substantial grounds are shown
to invalidate it ; and we think there are none
such. The defendant, therefore, must have
judgment on the demurrer.
Judgment for the defendant.
Cited in— 17 Johns., 431 ; 5 Cow., 300 ; 7 Cow., 187 ;
5- Wend., 270; 1 Barb. Ch., 184; 4 N. Y., 575; 5 N. Y.,
486; SON. Y., 231; 62 N. Y., 400; 74 N. Y., 113; 14
Hun, 143 ; 16 Hun, 267 ; 17 Hun, 155 ; 7 Barb., 444 ; 13
Barb., 663 ; 15 Barb., 528 ; 16 Barb., 580 ; 20 Barb., 415 ;
7 W. Dig., 215; 34 Mich., 198.
JOHNS. REP., 14.
1817
RUGOLKS v. HAI.L.
112
RUGGLES r. HALL.
Practice — Material Witness Absenting Him»df —
Witness Insolvent — New Trial Granted.
Where a material witness had been regularly sub-
p«enaed by the defendant, and attended at the Cir-
cuit, and shortly before the cause was called on
absented himself without the knowledge or consent
of the party or his attorney, and his absence was
not discovered until after the Jury was sworn, by
which means a verdict passed against. the defend-
ant, the court granted a new trial, it appearing that
as well the witness as the persons answerable over
to the defendant were insolvent.
was an application, on the part of the
JL defendant, to set aside a verdict taken for
the plaintiff, at the Ontario Circuit, in July,
1816, and for a new trial, on affidavits sub-
mitted to the court, without argument, from
which it appeared that the action was brought
upon a prommissorv note, held by the plaint-
iff, executed by the defendant, payable to
Thaddeus Oakes, or bearer, which was deliv-
ered to Samuel Hildreth, for the purpose of
being negotiated in New York, to enable one
Samuel Allen to purchase merchandise ; goods
were, accordingly, purchased of Smith &
Waters, merchants in New York, and the note
delivered to them ; after it fell due Allen paid
Smith & Waters between $400 nnd $500, on
account of the note, which left « balance due
of less than $100. Hildreth, by whom the de-
fendant expected to prove the payment, and
whose affidavit was taken, in which he stated
an admission made to him by one of the part-
ners of the firm of Smith & Waters of the
payment, was subpoenaed as a witness to at-
tend on the first Monday of July, at the court
house in Canandaigua, and attended at the
court house from day to day, until about 1
o'clock in the afternoon of the fourth day of
July, when he left Canandaigua. and went
home, without the knowledge or consent of
1 13*] *either of the parties, their attorneys
or counsel. It is unnecessary to state the ex-
cuses which he alleged, in "his affidavit, for
his departure. The cause was called on about
three hours after, and the jury were sworn
before the defendant's attorney discovered
that Hildreth was not attending, and a verdict
was taken for the plaintiff for about $600.
Allen, for whose use the note was made,
Smith & Waters, and Hildreth, the witness,
were insolvent, and unable to answer to the
defendant for the damages which he had sus-
tained. In the counter affidavits of -the plaint-
iff, declarations of Hildreth, inconsistent with
the allegations of his affidavit, were stated,
but it is unnecessary to particularize them.'
The case was submitted to the court with-
out argument.
Per Curiam. This is a motion to set aside a
verdict obtained at the last Ontario Circuit, on
the ground that Samuel Hildreth, a witness
siibrKBiiaed, and who had been attending on
the part of the defendant, unexpectedly ab-
sented himself about the time the cause was
called on to trial, his absence not being known
until after the jury was called. The affidavit
of the witness accompanies this application,
and shows very clearly the materiality of his
testimony. There are some affidavits which
state declarations of his, somewhat at variance
JOHNS. RKP., 14.
with this affidavit. It is to be observed, how-
ever, that these were declarations not made
under oath ; besides, the witness has had no
opportunity of explaining them, which, per-
haps, he may be able to do upon the trial. At
all events, it will be a question of credibility
for the jury. The witness is insolvent, and
unable to respond in damages, and unless the
defendant can be let into a new trial, he is
without redress. The persons to whom the
payment was made, upon the note in question,
are also insolvent, and no remedy is to be had
against them to recover buck the money. The
defendant cannot be charged with such negli-
gence as to preclude himself on that ground.
Knowing that the witness had been attending
for several days, the defendant had good rea-
son to believe he was still there, and his sud-
denly absenting himself was matter of sur-
prise. A new trial must be granted, on pay-
ment of costs.
Jfetc trial granted. l
•ANDERSON P. DRAKE. [*114
Promissory Note — Not Payable at any Particu-
lar Place — Demand, to be Made at Hi» Resi-
dence.
Where a note is not payable at any particular
place, and the maker has a known and permanent
residence within the State, the holder is bound to
make a demand of payment there, in order to
charge the indorser.
As where a note was dated at Xew York, but the
maker, before it was payable, removed to Kingston
in Ulster County, and this was known to the holder,
a demand of payment or inquiry for the maker in
the City of New York was held not to be sufficient
to charge the indorser.
But where a note was dated at Albany, and the
maker had removed to Canada, a demand of pay-
ment at Albany was held sufficient.
Citations— 2 Cai., 127 ; 4 Johns.. 385 ; 5 Binn., 542 ;
Str., 1087 ; 2 H. Bl., 509.
THIS was an action of assumprit. brought
against the defendant as indorser of a
promissory note, stated to be made on the 29th
of November, 1814, at New York, by one Ben-
jamin Dickenson, by which he promised to
pay to the defendant, or order, six months
1.— See Alexander v. Byron, 2 Johns. Cas.. 318.
NOTK. — Demand— Where made when maker or ac-
centor ha* removed.
W here the maker or acceptor has rrmored to an-
other state or country, a demand made at his last
place of residence is sufficient to charge indorsers.
Taylor v. Snyder, 3 Den., 145; Adams v. Leland, 30
N. Y.,309; Herrick v. Baldwin, 17 Minn.. XV: c,-n-
tral Bank v. Allen, l«Me.. 41; Dennie v. Walker. 7
N. II.: 1»9: Reid v. Morrison. 2 Watts. & S., 401;
(Jrafton Bank v. Cox. 13 Gray,- 503: Wheeler v.
Field, f, M«-t., :.".«>; Meiiruder v. Bank of Washing-
ton, 9 Wheat., 59S: Cromwell v. Hynson, 2 Esp., r.'ll:
Bateman v. Joseph, 12 East. 433; 3 Kent Com., 96;
I>;ui. NVg. Inst., 8 U4o. But see Gist v. Lybrand, 3
Ohio. 307: liemiie v. Walker. 7 N. H., 199; Foster v.
Julien, 24 N. Y., 28: Eaton v. McMahon, 42 Wis.,
487.
Where he removes. f«» another itace in the *amr
State, demand must be made at his new residence
or place of business! In addition to the above case
of Anderson v. Drake, see. La. Ins. Co. v. Sham-
burgh, 7 Mart. (N. 8.). 280.
S. e, generally. Stewart v. Eden, 2 Cai., 121, note:
Jackson v. Richards, 2 Cai.. 343, note : Reedy v.
Selxas, 2 Johns. Cas., 337, note.
114
SUPREME COURT, STATE OP NEW YORK.
1817
after date, $300. The declaration contained
two counts ; the first count stated that on the
1st of June, 1815, the plaintiff "showed and
presented, and caused to be shown and pre-
sented, to the said Benjamin Dickenson, the
said note, &c., and required him, then and
there, to pay the same, which he refused,"
«&c. The second count stated that on the 1st
day of June, &c., "diligent search and in-
quiry was made after the said Benjamin Dick-
enson at New York, &c., in order that the
note might be shown and presented to him for
payment, and that the said Benjamin Dicken-
son could not, on such search and inquiry,, be
found, nor could any person be found to pay
the same," &c.
The defendant pleaded, 1. Non assumpsit.
2. To the second count, specially, that the
maker of the note, on the 7th of December,
] 814, removed from the City of New York to
the town of Kingston, in the County of Ulster,
where he has ever since continued to reside ;
that the plaintiff well knew, at the time the
note became due, and during all the time from
the 7th of December, 1814, until the com-
mencement of his suit, that the maker did so
reside in Kingston, yet the plaintiff did not
and would not demand payment of the note
of the maker at the ' time it was payable,
though he was often requested by the defend-
ant so to do, to wit: on the 28th of May, and
on the 1st of June, 1815.
To this plea there was a general demurrer
and joinder.
Mr. J. Strong, in support of the demurrer,
contended: 1. That as the note was dated in
New York, and the parties resided there at the
time it was made, it must be presumed, no
particular place being designated for the pay-
ment, that it was payable in New York.
2. That the removal of the maker from New
York to any other place did not render it
1 15*] necessary for the holder to follow *him
for the purpose of demanding payment ; and
he relied on the case of Stewart v. Eden, 2
Cai. , 121-128, for the support of these positions.
Messrs. Anthon and Stosson, contra. The
note declared on was not payable at any par-
ticular place. The averment in the declara-
tion is, that the maker was not found in " the
City of New York, in the third ward of the
said City." The plaintiff ought to have
averred that the maker was not to be found
in the City of New York, nor elsewhere in the
State of New York. Such are the precedents.
(Carth., 509 ; 1 Went. PL, 307.)
Notice to the indorser, without a previous
demand on the maker, is a nullity. Bayley
(On Bills, 58; Str., 1087) lays down the rule
to be, that if the maker has removed, the
holder must endeavor to find, out to what
place he has removed, and make the present-
ment there. If the maker removes out of the
State, the holder is excused from seeking him
further than his last place of residence.
(Sanger v. Stimpson, 8 Mass. ; 5 Binney, 541 ;
Thompson v. Kelchum, 4 Johns., 285.)
Here the holder says that the maker had re-
moved to Kingston, within the State. He
knew, therefore, where he was to be found,
and it was his duty to have followed him and
demanded payment of him personally, or at
his actual place of residence. It is part of the
796
contract that the holder is to use due diligence
to get the money of the maker, before he calls
on the indorser. The distinction is between
the case where the maker or drawee has never
lived at the place where the note or bill states
him to reside, or has absconded, and the case
where he has removed ; and unless he has re-
moved out of the State, the holder must en-
deavor to find him out and make the present-
ment. (Chitty on Bills, 125, 2ded.; 1 Esp.,
511.) The acceptor or maker is liable every-
where, and the bill or note may be presented
wherever he can be found, where it is not ex-
pressly made a part of the contract that it
should be paid at any particular place. (2
Campb., 656 ; 3 Taunt., 415 ; 2 H. Bl.f 509.)
THOMPSON, Ch. J., delivered the opinion of
the court:
This case comes before the court on a de-
murrer to the second plea. The defendant be-
ing sued as an indorser of. a promissory note,
pleads specially that the maker of the note had
shortly after the making thereof, and before it
became payable, removed from the City of
New York to Kingston, in Ulster County,
there permanently to reside, which was well
known to the plaintiff ; and that no demand
had been made upon the maker. The demur-
rer *admits the truth of these allega- [*1 16
tions. And the question presented is, whether
a demand upon the maker at Kingston was
necessary, in order to charge the indorser.
It does not appear from the declaration that
the note was made payable at any particular
place ; nor is there any allegation from which
we are to infer that the note, upon the face of
it, appears to have been made in New York.
The case, however, was argued by the defend-
ant's counsel upon the admission of that fact ;
and our opinion is founded on the supposition
that the note appears, on the face of it, to have
been drawn in New York, that being, at the
time, the place of residence of the drawer;
though before the note fell due he removed to
Kingston, in Ulster County, there permanent-
ly to reside.
Whether, under such a state of facts, a de-
mand on the maker at Kingston was neces-
sary, or whether it was sufficient if made in
New York, where the note was drawn, is the
point to be decided. Had the note expressly
been made payable in New York, a demand
there would have been sufficient, notwith-
standing the removal of the drawer. Living-
ston, J., in delivering the opinion of the court
in Stewart v. Eden, 2 Caines., 127, says, the
note being dated in New York, the maker and
indorser are presumed to have contemplated
payment there. This, however, was not the
point directly before the court ; and it is evi-
dent, from a subsequent part of the opinion,
that he did not intend to be understood that
New York would have been the place to de-
mand payment of the maker, or to give notice
to the indorser, in case of a permanent re-
moval from the City. In Thompson v. Kelchum,
4 Johns., 285, the note was dated at Montego
Bay, yet it was not deemed payable there ;
otherwise parol evidence would have been in-
admissible to prove it was payable at New
York. Such evidence would have been re-
pugnant to the written note, if the inference of
JOHNS. REP., 14.
1817
DCNN v. RECTOR, ETC., ST. ANDREW'S CHURCH.
116
law was that it was payable at Montego Bay.
This point was, in some measure, before the
Supreme Court of Pennsylvania, in Pinher v.
Efoans, 5 Binney. 542. It was there con-
tended, in argument, that the place where the
bill was drawn and dated, must be taken to be
the residence of the drawer, and that the hold-
er was not bound to look for him elsewhere.
But the Chief Justice said he knew of no such
principle, and that the proper place to give
notice to the person entitled to receive it, was
at his permanent residence.
1 17*J *Mr. Riijley, in his treatise on bills
(58), states the rule to be, that if the drawer or
maker cannot be found at the place where the
bill or note is payable, and it appears that he
never lived there, or has absconded, the bill
or note is to be considered as dishonored ; but
if he has only removed, the holder must en-
deavor to liinl out to what place he has re-
moved, and make the presentment there.
This is, in some measure, supported by the
case of Collins v. Butler. Str., 1087. This rule,
I apprehend, cannot be correct to the extent
there laid down. The settled law now is, that
a demand of payment at the place where the
note is made payable is enough to charge the
indorser. This is so decided in the case of
Saunderson v. Judge, 2 H. Bl., 509, and by
this court in the case of Steioart v. Eden ; but,
according to Mr. Bayley, the holder must fol-
low the maker to the place of his removal.
The general rule is, that the holder of a note
is bound to make use of all reasonable and
proper diligence to find the maker, and de-
mand payment, where no particular place is
appointed for such payment. And in deter-
mining what shall be considered reasonable
diligence, due regard must be had to the se-
curity of indorsers, as well as to the unembar-
rassed circulation of negotiable paper. The
laying down precise rules, however, on this
subject, is attended with some difficulty. In
a case decided in this court (but which is not
reported), the drawer of the note had removed
to Canada, the note was drawn and dated at
Albany, though not made payable at any par-
ticular place, and it was hem that a demand
in Albany was sufficient to charge the indors-
er. I can find no distinction in Ihe books as
to the place being within the jurisdiction of
the court, which varies the rule on this sub-
ject ; nor do I see any substantial reason for
any such distinction. It is necessary, howev-
er, that some rule should be settled, and. I am
inclined to think, that where a note is not
made payable at any particular place, and the
maker has a known and permanent residence
within the State, the holder is bound to make
a demand at such residence, in order to charge
the indorser. Whoever takes such note is pre-
sumed to have made inquiry for the residence
of the maker, in order to know where to de-
mand payment, and to assume upon himself
all the inconvenience of making such demand
and the risk of the maker's removing to any
other place before the note falls due. As the
demurrer, therefore, in this case, admits the
118*] 'permanent residence of the maker
to have been at Kingston when the note fell
due, and that known to the plaintiff, he was
bound to demand payment of the note at that
place ; and not having done so, the indorser is
JOHNS. REP., 14.
discharged. The defendant must, according-
ly, have judgment upon the demurrer.
Judgment for the defendant.
Cited ln-18 Johns., 322 : 3 Dento, 143 : 1 N. Y., 328 ;
16 N. V.. 238; 24 N. Y., 30; 5 B*rb.. 511 ; 31 Barb.,
406; 5 Duer. 84; 4 Le?. Oba.. 16; 33 Mo., 572.
DUNN
».
THE RECTOR. WARDENS AND VES-
TRYMEN OF ST. ANDREW'S CHURCH,
in Richmond County.
Practice. • .
AumnnitKlt lies on an implied promise, against a
Corporation.
Citations— 7 Crunch, 297-307 ; 12 Johns., 231.
IN ERROR, to the Court of Common Pleas
of the County of Richmond.
The plaintiff in error brought an action of
iixxtiiti/ixit in the court below, against the de-
fendants in error, for work and labor, &c.
The defendants pleaded the general issue. At
the trial, the plaintiff proved, by parol, that
he had performed services for the defendants,
as clerk of the church of the defendants, and
in which divine service was performed by the
rector ; and that the defendants had paid, him
money on account of such services ; but a bal-
ance still remained due to him. This evidence
being objected to, the records of the Corpora-
tion were produced, from which it appeared
that the defendants had paid to the plaintiff
money at different times, on account of his
services ; but no resolution was entered on the
minutes or records of the Corporation, ap-
pointing the plaintiff, particularly, clerk of
the Church. The defendant's counsel moved
for a nonsuit, which was opposed by the
plaintiff's counsel, on the ground that the evi-
dence was sufficient to show that the plaintiff
had performed services for the defendants, at
their request, express or implied ; but the
court below declared their opinion, that un-
less the plaintiff could prove, by the records
of the Corporation, that he had been, by a res-
olution, duly appointed to perform the services
of clerk in that particular Church, he could
not maintain this action ; and he was, accord-
ingly, nonsuited. A bill of exceptions was
tendered to the court by the plaintiff's counsel.
*On.the return to the writ of error, [*1 19
the case was submitted to the court without
argument
Per Citriam. The sole question arising
upon the bill of exceptions in this case, is,
whether an action of a#»nmprit upon an im-
plied promise can be maintained against a
Corporation. The case of the faink of Colum-
bia v. Paterson's Administrators, decided in
the Supreme Court of the United State* (7
Cranch, 297-807, Feb., 1818), and which is re-
ferred to by this court in Danforth v. The
Schoharie Turnpikf, 12 Johns., 231, goes the
full length of making corporations answerable
upon implied promises. It is there laid down,
that it is a sound rule of law, that whenever a
Corporation is acting within the scope of the
legitimate purposes of the Corporation, all
7»7
119
SUPREME COURT, STATE OF NEW YORK.
1817
parol contracts made by its authorized agent
are express promises of the Corporation, and
all duties imposed upon them by law, and all
benefits conferred at their request, raise im-
plied promises, for the enforcement of which
an action will lie.
The evidence offered in the court below, in
support of the action, showed conclusively
that the services of the plaintiff were per-
formed at the request of the defendants, and
that they have advanced money to him on ac-
count of such services. This was amply suf-
ficient to raise an implied promise to pay, and
enough to maintain the action, according to
the principles sanctioned in the case referred
to, and which we are inclined to adopt. The
judgment? of the court below must, according-
ly, be reversed.
Judgment reversed.
Cited in— 19 Johns., 66 ; 1 Cow., 532; 3 Wend., 97:
7 Wend., 255 ; 15 Wend., 266 ; 21 Wend., 300 ; 25 Wend.,
685 ; 2 Hill, 46, n.; 2 Denio, 473; 30 N. Y., 86 : 15 Hun,
342 ; 43 Mo., 115 ; 12 Wheat., 75.
BROWN, HUSSEY AND ERITH
HOWARD.
Trespass — Joint Defendants Against Whom
There Is No Evidence, may Testify for Co- De-
fendants— Power of Master of Vessel to Pun-
la an action of trespass against several joint de-
fendants, if there be no evidence produced against
some 'of them, to implicate them in the trespass,
they may be struck off the record, and admitted as
witnesses for their co-defendants.
But where there is any evidence against them this
cannot be done.
The command of a superior to commit a trespass,
or other unlawful act, Is no justification to his in-
ferior.
. The master of a vessel may inflict moderate cor-
rection, for sufficient .cause, upon his seamen ; but
should he exceed the bounds of moderation, and be
guilty of cruelty, or unnecessary severity, he will
be liable as a trespasser.
Citations— Phil. Ev., 61 ; Bull., 285 ; 2 Bos. & P.,
234 ; 3 Day's Conn., 285 ; Abb. Sh>p., 125.
IN ERROR, on certiorari to the Justice's
Court in the City of New York.
1 2O*] *The defendant in error brought an
action, in the court below, against the plaint-
iffs in error, for an assault and battery and
false imprisonment on the high seas, on board
the ship Teaplant, on a voyage from Liver-
pool to New York. Brown, the master of the
ship, pleaded not guilty, and son assault de-
mesne, and the other two defendants, who
were mates on board of the same vessel, plead-
ed not guilty, and justified that they acted by
the orders of Brown, the master.
At the trial in the court below, which was
without a jury, five witnesses, who were sea-
men on board of the same vessel, testified, on
the part of the plaintiff below, also a seaman
on board, that while it was blowing very hard,
and the plaintiff and some others of the hands
were engaged in hoisting and belaying the
foresail, the captain took up a mallet, and
after cursing at them, threatened to knock out
their brains if they did not exert themselves
more ; that they were then ordered aft by the
798
captain to hoist the mizzen staysail, who hav-
ing procured a rope about half an inch thick,
violently struck the sailors, and attacked the
plaintiff below, and gave him eight or ten
blows with the rope ; that the plaintiff below
asked him what he meant by. such conduct,
whereupon the captain again attacked him,
and struck him a number of blows, and then
endeavored to force him to go aloft to slush
the skysail mast, a thin spar where there was
nothing to hold by but the mast itself, and
where, from the roughness of the sea, a man
could not go with safety ; that the plaintiff
below said that he had been so beaten that he
could not hold on, and seized and clung to
some part of the rigging, the captain still pull-
ing him with violence, until he forced him
away ; and both, by the violence of the cap-
tain's effort, and the rolling of the ship, fell
upon the deck, the captain upon the plaintiff ;
and the other two defendants being present all
this time, the second mate took the captain off
from the plaintiff below, and the captain then
ordered the two mates to tie the plaintiff
below, hand and foot ; which they did, and
laid him on the quarter deck ; that the plaint-
iff remained bound in this manner, without
the power of moving himself, exposed to the in-
clemency of the weather, in the month of
March, for five days and nights, except during
two nights, when the weather was so very
bad that the captain ordered him to be put
below ; that after this the plaintiff below was
asked by the captain if he would do his duty,
to which, on replying in the affirmative, he
was released, but wasafterwards*con- [*1 iil
fined to his berth for some time by rheumatism,
and that to relieve him the captain ordered
one of the mates to apply some remedy to the
part affected, which was done accordingly.
A passenger, on board of the vessel at the time,
was produced as a witness on the part of the
defendants below, whose testimony varied from
that of the other witnesses principally in this —
that the plaintiff below was compelled, by beat-
ing, to let go of the rigging of which he had taken
hold ; that he then turned round and seized
the captain by the arm or hand, and they then
fell, and, as the witness thought, the plaintiff
below upon the captain ; that when the cap-
tain got up, he had a black eye, which re-
mained for five or six days, and that the lan-
guage of the plaintiff below was very im-
proper. He also stated that the other two
defeadants below interfered in no other way
than tying the plaintiff below, by the order of
the captain. The counsel for the defendants
below then moved that the two mates should
be acquitted, and struck out of the' record,
which the court refused, the weight of evi-
dence being with the plaintiff below ; and the
justice gave judgment for the plaintiff below
for $125.
Mr. Caines, for the plaintiffs in errror, con-
tended that Hussey and Erith, two of the
defendants below, the mates of the ship, ought
to have been struck out of the record, and ad-
mitted as witnesses. (Styles, 401; Godbolt, 326.)
That what they did was in obedience to the
order of the captain ; and they were bound to
yield obedience to the lawful commands of
their superior. "It is a general and sound
principle, that whenever the law vests any
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. BURCHLN.
121
person with power to do an act. and consti-
tutes him a judge of the evidence on which
the act may be done, and at the same time
contemplates that the act is to be carried into
effect through the instrumentality of agents,
the person thus clothed with power is
vested with discretion, and is, quoad hoe, a
judge ; and his mandates to his legal agents,
on hi- declaring the event to have happened, |
will be a protection to those agents ; and it is
not their duty or business to investigate the j
facts thus referred to their superior." (Per ]
Spencer, J., 11 Johns., 158, Vanderheyden v.
Young.)
The master of a vessel has a right to punish
his crew for disobedience, 'and they are not to
judge of the legality of the exercise of that
right, but are bound to submit, and look to
the law for redress against any abuse of power. ;
1 22*] This doctrine was *laid down by Liv-
ingston, J., in the case of Michaelwn v. Denin&n,
8 Day, 294, in the C'ircuit Court of the United
States.
Mr. Anthon, contra. No motion was made
to strike out the two defendants, Hussey and
Eritb, until after evidence had been given on
the part of the defendant. The rule is, that
if no evidence has been given against one of
two defendants, he may, as soon as the plaint- j
iff has closed his case, be a witness for his co- 1
defendant. (Phil. L. of Ev., 61.) The court
below, in this case, no jury being demanded,
were judges of the fact a* well as the law, and
there were live witnesses to one in favor of
the plaintiff. It was proved that the plaintiff
was in the performance of his duty, and tlmt
the mates were privy to the illegal conduct of j
the captain. They were not bound to obey an
illegal order of the captain, and could not
justify themselves by his authority.
THOMPSON, Cli. J., delivered the opinion of
the court :
The question arising upon this return is,
whether the court below ought to have ad- |
milted, as witnesses, Hussey and Erith, two of j
the defendants, and who were offered by the j
other defendant.' There can be no doubt that
in actions for torts, a defendant, against whom
no evidence has been produced, may be ex-
amined as a witness for his co-defendant. But
the rule laid down in the books on this question
is, that if there is any, even the slightest evi-
dence against him, he cannot be discharged as
a party and received as a witness. The want
of evidence against a party, in order to entitle
him to be a witness, should be so glaring and
obvious, as to afford strong grounds of belief
that he was arbitrarily made a defendant to
prevent his testimony. (Phil. Ev., 61 ; Bul-
fer, 285.)
The evidence fully established the fact that
the persons offered as witnesses were actually
concerned in binding the plaintiff below ; and
how far they may be considered as implicated
in the transaction, will, in a great measure,
depend upon the authority of the captain to
treat as he did the plaintiff below.
The return states that all the facts relative
to the transaction took place in presence of the
two defendants, who were offered as witnesses,
and of course, fully known to them at the time
they obeyed the order of the captain in bind-
JOHNS. KEF , 14.
ing the plaintiff's hands and feet with ropes.
If this was an illegal act in the captain, the
mates were not bound to obey him, and can-
not excuse *themselves under such [* 1 *2',l
order. A master has no right to command
his servant to commit a trespass, or do a
wrongful or unlawful act. From the fact*
stated in the return, it appears to me that the
conduct of the captain, to say the least of it,
was harsh and rigorous and altogether un-
justifiable ; and unless we are warranted in
presuming the statement to be, in some de-
gree, colored by the witnesses who were fel-
low seamen with the plaintiff below, the con-
duct of the captain merits severe animadver-
sion.
Although a captain may have a right to in-
flict corporal punishment upon a seaman under
his command, yet it is not an arbitrary a'nd
uncontrolled right : he is amenable to the law
for the due exercise of it. He ought to be
able to show, not only that there was a suffi-
cient cause for chastisement, but that the
chastisement itself was reasonable and moder-
ate. (2 Bos. & P., 224; 3 Day, 2»>.) The
rule on this subject is well laid down by
Abbot. (Abb. on Shipping, 125.) By the
common law, says he, the master has author-
ity over all the mariners on board the ship,
and it is their duty to obey his command-- in
all lawful matters relative to the navigation
of the ship, and the preservation of good order;
and in case of disobedience or disorderly con-
duct, he may lawfully correct them in a rea-
sonable manner; his authority, in this respect,
being analogous to that of a parent over a
child, or a master over his apprentice or
scholar. Such an authority is absolutely nec-
essary to the safety of the ship and of the
lives of the persons on board ; but it behooves
the master to be wry careful in the exercise of
it, and not to make his parental power a pre-
text for cruelty and oppression.
Not being able to discover, from the
return, the least justification for the captain's
treatment of the plaintiff below, and the
mates having been acquainted with the whole
transaction, I can perceive no ground upon
which they can be exonerated as parties, nor,
of course, admissible as witnesses. The judg-
ment below must, accordingly, be affirmed.
Judgment affirmed.
Defendant rw iritnawfnr co-Atfcnaant . Cited In—
l.r. Johns.. 224: 1 Wend., 125; 10 Wend., S92; 4 N. Y.,
549 : 2 Barb., 358 ; 8 Barb., 357.
Also cited in-11 Ahl.. 1'r., 100:23 How. (U. S.),
184, 185 ; 3 Wood. & M., 13-15 ; Blatehf. & H., 429.
•JACKSON, ex dem. BRATTON and [*124
DURHAM,
BURCHIN.
Infanfy — Conveyance of Land by Infant — )fay
be Avoided by Subsequent Conreyance— Notice
to Subsequent Grantee — Maintenance.
NOTK.— Infancy— Disafflrmanc.e nf grant.
When an infant ha* cnnveyeti meant land*, a sub-
sequent conveyance to a st ranker is a disttfti nuance
of the tirst conveyance. Jackson v. Carpenter, 11
Johns., XW ; Jackson v. Todd, *l Johns., 257 ; Bool v.
Mix, 17 Wend., 119; Eagle Fire Co. v. Lent, a Paijre,
rat
124
SUPREME COURT, STATE OF NEW YORK.
1817
Where an infant bargains and sells land to A, and
after coming of age, bargains and sells the same
land to B, this is a revocation of the former grant,
admitting that the first deed was voidable only, and
not void.
A pei-son having conveyed land when an infant,
may avoid his grant by the same solemnity with
which he made it, as if it were a feoffmentwith liv-
ery, by a subsequent feoff ment and livery ; if a bar-
gain and sale, by a subsequent bargain and sale.
Notice to the subsequent grantee, before the exe-
cution of the conveyance, of a prior grant made by
the grantor when an infant, does not render his
deed fraudulent and void ; and if the prior grantee
never was in possession, it is not an act of mainte-
nance. Where an infant con veys land, a bare ad-
mission of that fact by him, when he arrives of full
age, is not an affirmance of his act.
Citations— 11 Johns., 539 ; 4 Cruise's Dig., 107, sec.
29, 106, sec. 23, 228, sec. 42; Perk. Com., sec- 12; 3
Burr., 1804.
THIS was an action of ejectment for lot No.
37, in the town of Manlius, in the County
of • Onondaga, which was tried before Mr.
Justice Yates, at the Onondaga Circuit, in
June, 1816.
The plaintiff gave in evidence letters patent,
dated the 8th of July, 1790. by which the lot
in question was granted to Thomas Featherly,
for his services in the Revolutionary War ;
and he, by deed dated the 16th of April, 1795,
and acknowledged, first before a judge of the
Common Pleas of the County of Herkimer,
and afterwards before a judge of the Common
Pleas of the County of Onondaga. for the con-
sideration of £30, conveyed the same to the
lessors of the plaintiff. The defendant claimed
under a prior deed from Featherly to Charles
Newkirk, dated the 28th of January, 1784, and
duly filed, by which, for the consideration of
£7, he granted to Newkirk the gratuity or
bounty lauds, jto which he then was, or should
or might be entitled on account of his services
in the war ; this deed contained a covenant
for further assurances, and a power of attor-
ney to third persons, to convey the land to
Newkirk, when a patent should be obtained ;
but it was proved that Featherly, at the time
of executing the last-mentioned deed, was be-
tween nineteen and twenty years of age.
Featherly was produced as a witness on the
part of the defendant, who offered to prove
that the witness, before executing the deed to
the lessors of the plaintiff, and after he came
of age, had refused to sell the land to other
persons, because he had already sold it to
Newkirk ; but the evidence was overruled.
The witness then testified that Brayton, one
of the lessors, called at his house, and asked
him if he had been a soldier and was entitled
to laud ; that the witness replied that he had
sold his soldier's land to Newkirk for £7 ;
that Brayton offered to indemnify the wit-
ness, if he would sell him the land, and that
the witness told Brayton that he understood
that he was under age at the time the deed
to Newkirk was given, and that it was void ;
the witness then went to Brayton's house,
where the deed to the lessors was executed,
1 25] atfd a bond *given for the consideration ;
that the lessors afterwards gave the witness a
covenant to indemnify him against Newkirk.
Another witness, on the part of the defend-
ant, testified that he had heard Brayton say
that he had notice of the deed to Newkirk,
either (the witness was not certain which) at
the time Featherly executed the deed to the
lessors or at the time of his acknowledging it.
Declarations of Featherly, at the time of the
execution and second acknowledgment of
the deed to the lessors, contradictory to his
statement on his examination, were given in
evidence by the plaintiff. At the time the
deed was given to the lessors of the plaintiff,
the land was wild and unoccupied, and the
first improvements were made in 1806. A
witness stated that on the night before the
trial, Brayton had said that Dunham, the
other lessor, was dead, and that one Foot was
present at the time ; but Foot, on being sworn,
denied that he had ever heard Brayton or any
other person say that Dunham was dead.
The judge charged the jury, that in order to
give effect to the deed to the lessors of the
plaintiff, it was not necessary that the grantor
should have before done any act showing his
dissent to the deed to Newkirk, and that no-
tice to the lessors of the deed to Newkirk, at
the time it was last acknowledged, and before
they had paid the consideration, could not
render it fraudulent and void. The judge
further charged the jury that it was 'their pe-
culiar province to pass upon the credit of
witnesses ; and he left it to them to say if the
witness Featherly was to be believed ; and
that if they believed that Featherly, when
Brayton first called on him, told him he had
sold his land to Newkirk, then they ought to
find a verdict for the defendant ; otherwise,
they should find for the plaintiff. The jury
found a verdict for the plaintiff.
The case was submitted to the court without
argument.
SPENCER, J., delivered the opinion of the
court :
The defendant's counsel have stated, on the
case, several points, which, they insist, must
prevent the plaintiff's recovery :
1. That the execution of the second deed
was an act of maintenance in Featherly; unless
the first deed had been previously avoided.
2. That no one but the infant himself, or
his representatives, privies in blood, can avoid
a conveyance made by an infant.
*3. That the judge overruled legal [*126
evidence of affirmance of the first deed -by
Featherly after he came of age.
4. .That the lessors of the plaintiff had no-
tice of the deed to Newkirk before their deed
was consummated, which rendered the latter
deed fraudulent as to Newkirk and those
claiming under him.
5. The plaintiff was entitled to recover a
moiety only, one of the lessors being dead at
the time of the demise ; and,
655; Chapin v. Shafer, 49 N. Y., 407; Tucker v.
Moreland, 10 Pet., 58 ; Creisinger v. Welch, 15 Ohio,
156 ; Hoyle v. Stowe, 2 Dev. & B., 320 ; Black v. Hills.
36 111., 379 ; Bond v. Bond, 7 Allen 1 : Worcester v.
Eaton. 13 Mass., 371 ; Whitney v. Dutch, 14 Mass.,
463; Dixon v. Merrjtt, 21 Minn., 196: Roberts v.
Wiggin, 1 N. H.. 75 : Peterson v. Laik, 24 Mo., 541 ;
McGan v. Marshall, 7 Humph.. 121 ; State v. Plaisted,
43 N. H., 413; Skinner v. Maxwell, 66 N. C.. 45.
800
In those states where a grant of lands held adverse-
ly is void, a re-entry is also necessary on occupied
lands. Bool v. Mix, 17 Wend. 133 ; Dominick v.
Michael, 4 Sandf, 374 ; Worcester v. Eaton, 13 Mass.,
375 ; 1 Pars. Cont., 328.
See, generally, 1 Washb., Real Prop., 456 ; Whita-
ker v. Cone, 2 Johns. Cas., 58, note ; Jackson v. Todd,
2 Cai., 183, note ; Jackson v. Wheeler, 10 Johns., 164,
note.
JOHNS. REP., 14.
1817
KKNXEDY v. STRONG.
126
Lastly, that the Statute of Limitations
l»rred the recovery.
The case of Jackson v. Carpenter, 11 Johns,,
HJ539, disposes of several of these points. The
facts in that case are verv similar to the pres-
ent : there the first deed" was executed by the
patentee, a soldier in the Revolutionary War
in 1784, when he was about nineteen years of
.age, and the deed to the then lessors was exe-
cuted in 1796. The deeds in that case, as well
AS this, inured as deeds of bargain and sale.
There had been no entry by the infant after
he became of age, to avoid the first deed ; and
the court held that an entry was not necessary,
but that the second deed was an act of suffi-
cient solemnity and notoriety to avoid an an-
tecedent deed of bargain and sale; and that
the second deed had not only the effect of
Avoiding the first, but also of conveying the
lands to the grantees.
The ancient law, in requiring the entry of
an infant, after he became of age, to avoid a
feoff ment (4 Cruise's Dig., 107, sec. 29), was,
undoubtedly, on the principle that it operated
on the possession, without any regard to the
•estate or interest of the feoffor, and that noth-
ing was wanting to make the feoffment good
And valid but possession, which the livery of
seisin conferred. Thus it was held that if an
infant made a feoffment, and gave livery of
seisin in person, his deed was not void but
voidable ; for there must be some act of noto-
riety to restore the possession equal to that by
which he transferred it. (4 Cruise's Dig.. 106,
sec. 28.)
In the present case, the deed under which
the defendant claims, operated as a deed of
bargain and sale. The bargainor, for thecon-
-ii It-ration of £7, bargained and sold the land
to the bargainee, and became, eo instanti, a
trustee for and seised to the use of the bar-
gainee, and then the Statute of Uses vested the
•estate — the bargain first vesting the use, and
the Statute vesting the possession. And it may
well be doubted whether an infant can execute
127*] avalid deed by that species of *convey-
Ance. (4 Cruise's Dig., 226. sec. 42.) Admit-
ting, however, that the deed is not void but
voidable, it would seem not only on principle,
hut authority, that the infant can manifest his
dissent in the same way and manner by which
he first assented to convey. If he has given
hvery of seisin, he must do an act of equal no-
toriety to disaffirm the first act ; he must en-
ter on the land, and make known his dissent.
If he has conveyed by bargain and sale, then
A second deed of bargain and sale will bo
equally solemn and notorious, in disaffirmance
•of the first. The law does not require idle and
non-essential ceremonies ; and it would be idle
to]require an entry on the premises, in 1795,
when not only this lot, but the whole country
which it was situated, was almost a wilder-
ness.
The second deed to the lessors was neither
An act of maintenance nor of fraud, admitting
that they knew of the deed to Ncwkirk. If
they knew of that deed, and the circumstances
under which it was executed, they knew also
that Fcatherly was not bound by it, and that
he was competent to revoke it and give an-
other deed. I will not say that it might not
have been an act of maintenance had New-
kirk been in possession of the lot, claiming
and holding under that deed ; but he was not.
Perkins (sec. 12) states the law to be that "all
gifts, grants or deeds, made by infants, by
matter in deed or writing, which do take ef-
fect by delivery of his hand, are voidable by
himself, his heirs, and by those who have hw
estate;" and Lord Mansfield (8 Burr.. 1804)
says this is the true rule ; and Shepherd, in
his Touchstone (238), lays down the same rule;
thus admitting, with respect to voidable deeds,
that a privy in estate may avoid an infant's
deed.
I perceive no evidence of the affirmance of
the first deed by the infant after he came of
age.
There was proof of the death of one of the
lessors, and there was also proof contradicting
that evidence. The defendant did not make
this a point at the time, and the verdict of the
jury is general; the plaintiff ought not now to
be restricted in his verdict.
It is an entire mistake to suppose the
plaintiff barred by the Statute of Limitations.
The defendant's possession had not been for
more than nine years prior to the trial.
Judgment for the plaintiff.
Disapproved— 41 Ind., 596.
Cited In— 7 Cow., 181 ; 17 Wend., 130; 1 Edw.. 303;
6» N. Y.. 557 ; 7 Hun, 494 ; 22 Barb., 659 ; 30 How. Pr.,
198 ; 3 Rob., 431 : 10 Pet., 70, 73.
•KENNEDY, Survivor of KENNEDY [*128
and STDYLEY,
v.
STRONG.
Principal and Agent — Trover — Conversion of
Goods Consigned to Agent — Admission — Dam-
ages— Discliarge — Does not Bar Trover.
In an action of trover for the conversion of goods
which the defendant had received from the plaint-
iff, as his factor, the defendant is precluded by his
admissions, made subsequently to the conversion of
property, in the plaintiff, from showing: that the
plaintiff's property in the goods had been (It-vested
previously to his receiving them. But had there
been no such admission, the defendant might have
set up property in a third person.
A discharge under the Insolvent Act of 1811 is no
bar to an action of trover.
The measure of damages in trover is the value of
the goods at the time and place of conversion.
If a factor pledge the goods of his principal for
his own debt, ft is a conversion.
Citation— 11 Johns., 300.
THIS .was an action of trover for one bale
and four cases of merchandise. The
cause was tried before Mr. Juslite Spencer, at
the New York sittings, in November, 1815.
The goods in question were shipped at
Liverpool, in March, on board the ship Oliver
Ellsworth, belonging to Strong & Davis, of
which firm the defendant was a member, for
New York. The goods were to be delivered, pur-
suant to the bill of lading, to the plaintiff and
his deceased partner, Stuyley. The vessel ar-
rived off the harbor of New York in the
JOHNS. REP., 14.
N. Y. R., 5.
NOTE.— liuolvcncu— Discharge.
A discharge due* tutt bar an aftinn nf trover. See
Kip v. Bank of New York, 10 Johns., 03, note.
51 801
128
SUPREME COURT. STATE OF NEW YORK.
1817
month of May, 1811, but did not enter the
waters of the United States; and the master
being informed that the non-intercourse with
Great Britain was again in force, kept her ly-
ing off and on the harbor for some days, until
instructions were given by the owners to
proceed to Havana ; and the defendant went
on board of the vessel, as owner and super-
cargo, and sailed in her to the Havana, having
been intrusted by the plaintiff and his part-
ner with the care of their goods, and directed
to sell them at what price they would com-
mand. The vessel, with the goods on board,
arrived at the Havana in June, 1811. The
plaintiff read in evidence an affidavit made by
thedefendant on the 13th July, 1811, after his
return from the Havana to New York, before
a notary public, in which he stated that he de-
posited the goods in question, for sale, in the
hands of Vincent Gray, merchant, at the Ha-
vana ; that the goods were the property of
George Stuyley & Co., and that the deponent
never had any right or property in them what-
ever, except as agent or consignee, and which
was conferred on him as one of the firm of
Strong and Davis, by virtue of a letter from
Stuyley & Co. ; that he never sold the goods by
virtue of the power contained in that letter,
but that an attachment having been issued
against the property of Strong & Davis, for a
debt contracted by them in the City of New
York, and the deponent having notice thereof,
Vincent Gray became security for the pay-
ment of the amount of the attachment, and
that fhe deponent left the goods in his hands
and returned to New York.
At the time of making this affidavit, the de-
121)*] fendant said that *he had left the
goods in the hands of Gray, to indemnify him
against his liability as security on that attach-
ment. The plaintiff proved that the invoice
price of the goods, with interest, amounted to
$3,942.09.
The defendant then moved for a nonsuit, on
the ground that the plaintiff had no property
in the goods, as they were forfeited to the
United States, and because he had not proved
the value of the merchandise at the Havana
at the time of the conversion ; but the motion
was overruled, and the defendant gave evi-
dence of the value of goods generally, at the
Havana, of a similar kind with the goods con-
verted, about the time of the conversion, but
gave no evidence of the price at which these
goods were sold, nor did it appear that they
ever had been sold. The defendant offered
in evidence his discharge under the Insolvent
Act of 1811, but it was rejected by the judge.
And the jury, by consent of parties, found a
verdict for the plaintiff for $3,942.09; and also
found the value of the goods at the Havana,
at the time of the conversion, with interest, to
be $1,972. The verdict was taken subject to
the opinion of the court, whether the plaint-
iff was at all entitled to recover, and for which
of these two sums the verdict should be en-
tered.
Mr. Slosson, for the plaintiff. The shipment
of the goods, with intention to import them
into the United States, did not, without any
seizure or suit, devest the property by forfeit-
ure. (1 Gallis, 198, 314, 472, 544, 545 ; 1 T.R.,
260; 5T. R., 112.)
802
[THOMPSON, Ch. J. That point has been set-
tled in this court (Fontaine v. Plitxmix It»*.
Co., 11 Johns., 293), and in the Supreme
Court of the United States. (3 Cranch, 337,
356, n.) The forfeiture takes place on the
commission of the act prohibited, and by the
forfeiture, the property is immediately de-
vested out of the owner, before any seizure or
suit.]
But we contend that the defendant cannot
make the objection here. If a prior forfeiture
had been incurred, it might have been remit-
ted by the Secretary of the Treasury ; or he
may have thought proper not to enforce the
Act of Congress. If the United States leave
goods in the hands of the owner, and he de-
livers them to a bailee to do certain acts rela-
tive to them, the bailee cannot object that his
bailor had no property in the goods. Posses-
sion is prima facie evidence of ownership, and
is sufficient against all the world, except the
true owner, and *that, in this case, [*13O
would be the United States. The bailment
was a lawful act, and the bailee is liable under
his implied contract arising from the bailment.
He cannot set up as a defense that the prop-
erty belonged to a third person : nay, the
third person or the United States, makes no-
claim of property. Nor could such claim be
made ; for the property has never been within
the jurisdiction of the United States ; and the
Act authorizing a seizure has expired, so that
if the property were now here, it could not be
touched by the United States. (6 Cranch, 329,
Tlie Rachel v. The United States.) Besides,
the time limited by the Act itself for making
seizures has expired, and no right or power
of seizure can be exercised. The case of Ten-
ant v. Elliott, 1 Bos. & P., 3, fully establishes
the principle for which we contend. It was
held, in that case, that if A has received
money to the use of B, on an illegal contract
between B and C, he shall not be allowed to
set up the illegality of the contract as a de-
fense in an action brought against him for the
money by B.
As to the damages, we claim the amount
of the invoice price of the goods, with in-
terest. In cases of insurance that is the meas
ure of damages. So in cases of embezzlement
of goods by the master of a vessel, the owner
of the goods is entitled to the value at the port
of destination, and they would have been
worth the invoice price in New York.
Messrs Golden and Wells, contra. The plaint-
iff has neither the right of property nor the
right of possession. By the forfeiture under the
Non-intercourse Act, it is admitted that the title
was devested. (11 Johns., 293.) Is the plaint-
iff a special bailee, having a right of posses-
sion ? That is not pretended : his right of
possession is founded upon ownership. But
it is supposed that by a delivery of the prop-
erty to the defendant, a new relation was
created between the parties, which gave the
plaintiff the rights of an owner. The plaintiff
having violated the Non-intercourse Act, his
property was, eo imtanli, gone ; and in trover
the defendant may set up a title paramount to
that of the plaintiff. Being in delieto, he can
never take advantage of any supposed right
between him and the defendant to maintain
an action. In seeking to recover he shows
JOHNS. REP., 14.
1817
STERNS ET AL., v. PATTERSON ET AL.
130
that be has forfeited all right to the goods ;
and without having a right, he cannot sup-
port an action. The United States may bring
detinue before seizure. (Robert* v. Withered.
5 Mod.. 193 ; S. C., 1 Salk.. 213 ; Comb., 3tfl ;
5 T. R.. 112.)
If the plaintiff is entitled to recover, it can
be only for the value of the goods at the time
of the conversion.
i:*l*] *Mr. Motion, in reply. By the late
Treaty of Peace, all the Acto of Congress rel-
ative to non intercourse are wholly abrogated.
Although the property of the plaintiff had be-
come devested by the forfeiture, yet he re-
tained the actual possession, and there is no
other person asserting any claim or title. He
had, therefore, a species of property ; for the
violation of the Act not being willful on his
Ert, he might reasonably expect that the
tiled States would remit the forfeiture, or
never disturb his possession. Being in the
actual possession, he entered into a lawful
contract with the defendant ; on what ground,
then, can the defendant set up a paramount
title, unless it be that he is liable to a third
person who has a superior title ? But there is
now no third person who can have any su-
perior claim or title.
THOMPSON, Vh. J., delivered the opinion of
the court :
The questions are : 1. Whether the plaint-
iff had any property in the merchandise, it
being shipped contrary to the Non-intercourse
Act ; and. 2. As to the rule of damages, if the
plaintiff is entitled to recover anything.
1. I am inclined to think the defendant is
precluded by bis admissions in bis affidavit,
and otherwise, from denying the interest of
the plaintiff in the goods in question. Those
admissions were made after the property of
the plaintiff must have been devested by the
forfeiture, if ever it was so ; and the property
was taken into possession by the defendant as
the goods of the plaintiff ; and I do not sec
why the defendant ought not to l>e estopped
bv such admissions from denying the plaint-
iff's title, as much in a chattel as in lands.
Although the property might once have been
devested by the forfeiture, who can say but
the plaintiff had, by some means, re-invested
himself with the right, or procured a dispen-
sation of the forfeiture ? It would be unjust
to permit the defendant to set up a title in a
third person, after having acknowledged the
plaintiff's right, and received the goods as his.
It would operate as a surprise upon the
owners of goods to permit their agents or
factors to set up such a defense. In the case
of Fontaine v. The Pluxnix liu. Uo., 11 Johns.,
800, there were no acts of the defendants by
which they were precluded from setting up
property in a third person ; and if. in this
case, the defendant had not, by his admissions,
fully recognized the plaintiff as owner, I sec
no objections against his setting up the
132*| 'forfeiture. In trover the defendant
may show property in a third person.
2. The discharge of the defendant under the
Insolvent Act of 1811 did not reach this de-
mand, it being founded on a tort.
3. The rule of damages, I think, ought to
be the value of the goods at the Havana at the
JOHNS. HEP.. 14.
time of the conversion. The letter of in-
structions did not limit the defendant as to
price. He was to sell, at all events, for what
they would command. His pledging the goods
was the wrongful act which constituted the
conversion ; and it is a general rule in trover
that the measure of damages is the value of
the property at the time of tbe conversion.
The plaintiff is. accordingly, entitled to judg-
ment for $1,972.
Judgment for the plaintiff.
Tmver— Defense— Paramount title — Defendant'*
odmfnion*— EMoppel. Distinguished -17 Wis.. 551.
Cited in-19 John*., 79; 13 Wend., 152; 16 Wend.,
358.
Trover— Discharge under in*>lvcnt act 110 bar to
action of. Cited in— 31 How. Pr, 138.
Trover— Meaxurt of Damage*. Distinguished— 2
Abb. N. S., m
Cited ln-5Cow., 614; 3 Hill, 337; 56 X. Y.. 27: 99
N. Y., 450; 2 Abb. App. Dec., 163, n. ; 22 Barb.. 291 ;
«5 Barb., 234 ; 10 Abb. Pr., 207 ; 3 Sand.. 626 ; 2 Hilt.,
.v..:,.
Conversion— Plctlge of property without authority.
Cited in-2 Bos.. 427; 1 E. D. Smith, 25; 1 Blatchf..
293.
FttrfeUure— Cited in— 5 Sand., 638; 10 Leg. Obe.,
150; 11 Wall..3B8; 14 Wall., 57 ; Blatchf. & H., 61.
STERNS ET AL., Assignees of JOHN KEESE,
AND OLIVER KEESE ET AL., Assignees of
STAFFORD,
v.
PATTERSON KT AV.
Pleading — General Demurrer — Departure,
Fatal on.
In an action of asuumpsit for roods sold and de-
livered, tbe defendant pleaded that the goods wen*
exported from the United States, during' the war
with Great Britain, into Lower Canada, and there
sold and delivered to the defendant: the plaintiff
replied that they were exported from the United
States before the commencement of the war. The
defendant rejoined that they wen? exported in vio-
lation of Acts of Congress laying an embargo and
prohibiting exportation ; it was held that the re-
joindur departed from the plea.
Departure is fatal on general demurrer.
Citations-1 N. R. L., 120; Comyn, tit. Plead.. F,
10: 1 Saund., 127, n. 3; 2 Saund.. 84 <i; 1 Wils.. 132; 2
Wils., 96; 4 T. R., 504; Willes. 638, 25, 27.
rPHlS was an action of assumpsit. Tbe declar-
J. ation contained six counts. The first
count stated that on the 1st of January, 1813,
at Quebec, to wit : at Plattsburg, in the
County of Clinton, tbe defendants were in-
debted to the iiLsol vents for divers quantities of
timber, spars, plank and boards, sold and de-
livered to them by the insolvents. The second
count was on a quantum meruit for tbe same,
and the third count for goods sold and de-
livered generally ; then followed other com-
mon counts in aMmmpxit.
Tbe defendants pleaded three pleas, of
which it is only necessary to notice the second,
which was in answer to the first three counts
of the declaration, and stated, that at the time
the timber, &c . mentioned in the declaration,
was alleged to have been sold and delivered, a
public war existed between Great Britain and
the United States ; that the insolvents were
citi/i-ns of the United States, residing in the
County of Clinton, and the defendants were
subjects of the King of Great Britain, residing
in the Province of Lower Canada : and that
803
133
SUPREME COURT, STATE OF NEW YORK.
1817
133*] the said timber, &c., *were sold and
delivered to the defendants at the City of
Quebec, in the Province of Lower Canada,
the insolvents not having any license from the
government of the United States, and contrary
to the laws of the land and their allegiance.
The plaintiffs replied that before the declar-
ation or commencement of the war between
Great Britain and the United States, to wit :
on the 1st of June, 1812, the insolvents, by
the permission of the governments of Great
Britain and of the Province of Lower Canada,
exported the said timber, &c., from the United
States into the Province of Lower Canada,
and remained and continued with the same in
the said Province, by the permission of the
government of the Province, and until and
after the commencement of the war, and until
and after the sale and delivery.
The defendants rejoined that the time of
exporting the said goods from the United
States was during the continuance of the Act
of Congress, entitled "An Act Laying an Em-
bargo on All Ships and Vessels in the Ports
and Harbors of the United States, for a Limi-
ted Time," to wit : on the said 1st of June,
1812 ; and that the insolvents, with intent
to evade, and contrary to the provisions of the
Act of Congress, entitled "An Act to Prohibit
the Exportation of Specie, Goods, Wares and
Merchandise, for a Limited Time," exported
the said timber, &c,, from the United States
by water ; by reason whereof, and by force of
the Statute of the United States in such case
made and provided, they were forfeited to the
use of the United States, and remained so for-
feited at the time of the sale and delivery.
To this rejoinder there was a general de-
murrer, and joinder in demurrer.
The cause was submitted to the court with-
out argument.
SPENCER, J.. delivered the opinion of the
court :
The plaintiff has demurred generally to the
defendant's rejoinder to his replication to the
second plea ; and the questions are, whether
the rejoinder is a 'departure from the plea ;
and if it be, whether, on a general demurrer,
the objection is fatal. There can be no doubt
that the matters of defense set up in the plea
and the rejoinder are altogether distinct and
variant. The plea sets up an unlawful trad-
ing with the enemy, flagranlebello, by the per-
sons whom the plaintiffs represent, and who
were citizens of the United States, and that the
134*] contract which the plaintiffs *attempt
to enforce originated in an act of treason.
The rejoinder sets up a violation of the Non-
intercourse Law as a ground of defense.
The Statute Concerning Amendments and
Jeofails (1 N. R. L., 120) requires the judges,
on demurrer, to give judgment, as the right
of the cause shall appear, without regarding
want of form, not specially shown as cause of
demurrer ; and the question is, whether a de-
parture in pleading is matter of form or sub-
stance. It is said in Comyn (tit.' Pleader, F,
10) that before the Statute of 4th and 5th
Anne, 16, of which our Act is a transcript,
that departure was fatal on general demurrer ;
but that since the Statute, there ought to be a
special demurrer, for notwithstanding such
804
departure, the whole matter appears, where-
on the court may give judgment. Mr. Will-
iams, in his 3d note to 1 Saund., 127, states
the same doctrine ; but in a note in 2 Saund.,
84 d, he corrects himself, and says that a de-
parture in pleading seems to be matter of sub-
stance and bad upon a general demurrer, and
retracts what he had before said to the con-
trary. The cases he refers to in support of
the position that departure is matter of sub-
stance fully warrant that position. (2 Wils 96-
1 Wils.. 122; 4 T. R., 504; Willes, 638, 25, 27.)
Judgment for the plaintiff. '
Cited in— 12 Wend., 33 ; 40 N. J. L., 56.
GARDNER v. THOMAS.
Jurisdiction in State Courts, of Torts, Committed
on the High Seas, Where Both Parties are
Foreigners — Discretion of Court— Pleading.
Courts of this State have jurisdiction of actions
brought for torts, committed on board of a foreign
vessel, on the high seas, where both parties are
foreigners ; for actions for personal injuries are
of a transitory nature, and follow the person or
'forum of the defendant.
And though the injury is laid in the declaration
to be contra pacem, &c., that is matter of form
only, and not traversable.
But it rests in the sound discretion of the court
to exercise jurisdiction or not, according to the
circumstances of the case.
And where an action was brought for an assault
and battery, committed on board of a British ves-
sel, on the high seas, by a seaman against the mas-
ter, both parties being British subjects, and intend-
ing to return to their own country at the comple-
tion of the voyage, the court refused to take cog-
nizance of the cause, but left the injured party to
seek redress in the courts of his own country.
Citations— Cowp., 176 ; 2 Bl., 1058.
IN ERROR, on certiorari, to the Justices'
Court of the City of New York. Thomas
brought an action against Gardner, in the
court below, for an assault and battery com-
mitted on the plaintiff by Gardner, on the
high seas, on board the snow Navigator,
of which Gardner was the master, and the
plaintiff a seaman on *board the same [*1 35
vessel. The defendant below pleaded in bar,
that at the time of committing the supposed
assault and battery, both the plaintiff and de-
fendant were and still are British subjects ;
and that the cause of action, if any, accrued
to the plaintiff on board the said snow Navi-
gator, a British vessel, on the high and open
seas, and out of the jurisdiction of the court
of the said justices, and within the jurisdic-
tion of the courts of the King of the United
Kingdoms of Great Britain and Ireland. To
this plea there was a general demurrer and
joinder ; and after argument, the court below
gave judgment for the plaintiff on the de-
murrer, overruling the plea ; and with leave
of the court, the defendant pleaded the gen-
eral issue, upon the trial of which judgment
was given for the plaintiff.
Mr. Caines, for the plaintiff in error. The
plea of the defendant below was sufficient to
bar the plaintiff's action. It gives another
court in which the matter may be tried, and
1.— See 1 Chitty on Plead., 623, and n. e; Munro
v. Allaire, 2 Caines, 320, 329 ; Spencer v. Southwick,
10 Johns., 259.
JOHNS. REP., 14.
1817
GARDNER v. THOMAS.
135
which has jurisdiction in the case. (The
King v. Johnson, 6 East, 588 ; Rea v. Heyden,
5 T vug's Mass., 24, and notes, p. 35.) Juris-
diction depends on the place or the person.
The assault and battery, in this case, was
committed by one British subject on another
British subject, on board of a British mer-
chant vessel on the high seas. For some pur-
poses, a ship may be considered as part of the
territory 01 the nation to which she belongs.
And if so considered in this case, an action
for the assault can no more be maintained
here than if it had been committed in the
streets of London. In the case of Rafael v.
VereUt, 2 W. Bl.. 1055. which will, probably,
be cited on the other side, the defendant was
a British subject, and when he came to En
gland, within the jurisdiction of the courts of
his country, he was held amenable to the
plaintiff. And in Moynten v. Fabriga*, Cowp.,
261, the parties were both British subjects.
Again ; the action is laid contra pacem; and
though these words may be matter of form,
in a case arising within this country between
two of our own citizens, yet they are substan-
tial, in a case like the present, arising on the
high sea, on board of a foreign ship, between
two foreigners. The peace of this State has
never been infringed ; so the words could
not be proved.
As to the case of Glen v. Hodge*, 9 Johns.,
67, the plaintiff was a citizen of this State,
and went into Vermont to reclaim a runaway
slave ; and though the defendant lived in Ver-
mont, yet by the Constitution of the United
States, the citizen of one state is a citizen of all
1 36*] *the United States. Neither the states
nor their citizens are foreign to each other, in
this respect.
Mr. Anthon, contra. The Act of the Legis-
lature constituting the Justices' Court in the
City of New York (N. R. L., 381, 382, sess.
36, ch. 86, sec. 106), gives to the court juris-
diction of all actions of assault and battery or
false imprisonment, committed by masters of
merchant vessels on any person on board of
any such vessel on the high seas, or in any
foreign port or place where the ship may then
be. This is, no doubt, a portion of the ad-
miralty jurisdiction. The jurisdiction does
not depend on the person of the party, whether
he be a citizen or a foreigner. The only
doubt on the subject was that thrown out by
Lord Mansfield, in Moytten v. Fabriga* ; and
that doubt was removed by the express ad-
judication of the Court of K. B. in Rafael v.
VereUt, that personal injuries are of a tran-
sitory nature, et sequuntur fnrum rei ; and
though the injury is laid contra, pacem regis,
yet that is only matter of form, and not tra-
versable ; and if any doubt could have existed
here, it must be entirely removed bv the de- ]
cision of this court in Olen v. Hodge*, in which |
the doctrine of the cases of Moysten v. Fabri-
ga» and Rafael v. VereUt is fully recognized.
that personal actions are transitory, and
»it'innfitr forum rei ; and the forum rei is
wherever the defendant can be found.
Mr. Cainet, in reply. As to this being a
portion of admiralty jurisdiction, given to the
court below, by statute, that does not alter
the case. No country legislates but for its
own citizens. This country does not pass
JOHNS. REP., 14.
laws for the rest of the world ; or to regulate
the conduct of the subjects or citizens of other
countries. If the Legislature had given the
Court of Oyer and Terminer authority to try
all crimes committed on the high seas, could
murder committed on board of a foreign ship
be tried here ?
In Incledon v. Burge**, 2 Salk.. 626, it was
held that, in trespass, the words contra pacem
regu were substance. An action for an escape
is a transitory action ; but could the sheriff of
London, if he happened to come to this coun-
try, be sued for an escape here ?
YATES, J., delivered the opinion of the
court :
This cause comes up on certiorari to the
Justices' Court in New York. The action was
for an an assault and battery. The defendant
pleaded *that the assault and battery f*137
(if any) was committed on board of a British
vessel upon the high seas, and that the plaint-
iff and defendant were both British subjects,
one the master, and the other a sailor on board
the same vessel. To this plea there was a de-
murrer and joinder, on which judgment was
given for the plaintiff below.
The question presented by this case is,
whether this court will take cognizance of a
tort committed on the high seas, on board of
a foreign vessel, both the parties being sub-
jects or citizens of the country to which the
vessel belongs.
It must be conceded that the law of nations
gives complete and entire jurisdiction to the
courts of the country to which the vessel be-
longs, but not exclusively. It is exclusive
only as it respects the public injury but con-
current with the tribunals of other nations as
to the private remedy. There may be cases,
however, where the refusal to take cognizance
of causes for such torts may be justified by
the manifest public inconvenience and injury
which it would create to the community of
both nations ; and the present is such a case.
In Moysten v. Fabrigas, Cowp.. 176, Lord
Mansfield, in his opinion there stated, is suffi-
ciently explicit as to the doctrine, that for an
injury committed on the high seas, circum-
stanced like the one now before us, an action
may be sustained in the Court of King's
Bench ; he only appears to doubt whether an
action may be maintained in England for an
injury in consequence of two persons fighting
in France, when both are within the juris-
diction of the court. The present action, how-
ever, is for an injury on the high seas ; and
of course, without the actual or exclusive ter-
ritory of any nation.
The objection to the jurisdiction, because it
must be laid in the declaration to be against
the peace of the people, is not sufficient, for
that is mere matter or form and not travers-
able. In Rafael v. VereUt, 2 Bl., 1058, De
Grey, Chief Justice, says that personal injuries
are of a transitory nature, et teqituntur forvm
rei ; and though, in all declarations, it is laid
contra pacem. yet that is only matter of form,
and not traversable.
It is evident, then, that our courts may take
cognizance of torts committed on the high
seas, on board of a foreign vessel where both
piirties are foreigners ; but I am inclined to
806
137
SUPREME COURT, STATE OP NEW YORK.
1817
think it must, on principles of policy, often
138*] rest in the sound discretion of *the
court to afford jurisdiction or not, according
to the circumstances of the case. To say that
it can be claimed in all cases, as matter of
right, would introduce a principle which
might, oftentimes, be attended with manifest
disadvantage, and serious injury to our own
citizens abroad, as well as to foreigners here.
Mariners might so annoy the master of a ves-
sel as to break up the voyage, and thus pro-
duce great distress and ruin to the owners.
The facts in this case sufficiently show the im-
propriety of extending jurisdiction, because it
is a suit brought by one of the mariners
against the master, both foreigners, for a per-
sonal injury sustained on board of a foreign
vessel, on the high seas, and lying in port when
the action was commenced; and, for aught
that appears in the case, intending to return to
their own country, without delay, other than
what the nature of the voyage required. Un-
der such circumstances, it is manifest that
correct policy ought to have induced the court
below to have refused jurisdiction, so as to
prevent the serious consequences which must
result from the introduction of a system, with
regard to foreign mariners and vessels, destruc-
tive to commerce ; since it must materially
affect the necessary intercourse between na-
tions, by which alone it can be maintained.
The plaintiff, therefore, ought to have been
left to seek redress in the courts of his own
country, on his return. The judgment, for
these reasons may be deemed to be improvi-
dently rendered in the court below, and is,
therefore, reversed.
Judgment of reversal.
Cited in— 1 Cow., 548 : 2 Hill, 322; 7 Hill, 100: 12
Barb., 635 : 45 Barb., 332 : 54 Barb., 32 ; 26 How. Pr.,
260; 30 How. Pr., 243 ; 40 How. Pr., 491 ; 8 Abb. Pr.,
330 ; 16 Abb. Pr., 325 ; 9 Abb. N. S., 310 ; 31 N. J. L.,
311 ; 1 How. (U. S.), 249; Abb. Adrn., 331 ; Blatchf. &
H., 189.
SALTUS ET AL.,
THE OCEAN INSURANCE COMPANY.
Marine Insurance — On Freight — Sale in Port of
Necessity — Insured Cannot Recover — Contri-
buiionfor Amount Thrown Overboard — Memo-
randum Articles.
Insurance on freight ; the vessel being obliged to
put into a port of necessity, the cargo, on being
taken out, in order to repair the vessel, was found
to be greatly deteriorated, and in a state not fit to
be reshipped, and was accordingly sold ; the vessel
was repaired so as to be able to prosecute the voy-
age; the insured cannot recover for a loss of the
freight, as the subject, although damaged, still re-
mained in specie.
Insurance on a cargo of flour and corn ; a part of
the cargo was thrown overboard for the preserva-
tion of the ship and lading in a storm, by which the
residue was greatly deteriorated, and the vessel
having put into a port of necessity, was found to be
unfit to be reshipped, and was sold ; it was held that
the insured was entitled to contribution for the corn
thrown overboard, but that the insurer was protect-
ed by the memorandum for any loss on what re-
mained in specie, although it had been reduced, by
sea damage, to less than half its value.
NOTE.— Marine insurance— Memorandum articles.
There can be no recovery on memorandum articles
which arrive in specie. See Neilson v. Columbian
Ins. Co., 3 Cai., 108. note.
806
Citations— 3 Johns., 328 ; 12 Johns., 107 ; 1 Johns.
Cas., 226 ; 1 Cai., 196, 212 ; 3 Cai., 108 ; Marsh., 227 ; 3
Bos. & P., 474.
fPHIS was an action on two policies of insur-
1 ance, the one on the cargo, and the other
on the freight of the ship Nancy (both ship
*and cargo belonging to the plaintiffs), [*139
on a voyage from New York to Lisbon. The
cause was tried at the New York sittings,
in November, 1815, before Mr. Justice Spen-
cer.
The cargo of the vessel consisted entirely of
rye flour and Indian corn ; the policy on the
cargo was an open policy, underwritten by the
defendants, for the sum of $12,000, and con-
taining the usual printed memorandum — that
grain of all kinds, &c., and all articles perish-
able in their own nature, were warranted free
from average, unless general. The policy on
freight was a valued policy, and was under-
written for the sum of $10,000. The ship set
sail on the voyage insured on the 23d of April,
1813, from the port of New York, and put to
sea on the 26th. On the 29th of April she en-
countered a very violent storm, which lasted
several days, during which time the vessel
labored and strained very much. The next
day it was feared that some of the corn had
been wet ; and on the 2d of May, the storm
having increased, the ship heeled so much as
to render the pumps useless, and was after-
wards thrown upon her beam ends, and so re-
mained for several minutes ; and it was, upon
a consultation between the captain, officers and
crew, thought necessary to cut away the main-
mast and fore topmast, which was immedi-
ately done, and the ship righted ; but in a few
hours after came on her beam ends again, and
so remained three or four days ; the next day
the tiller and rudder, with the rudder case and
the rudder braces at the bottom, were carried
away, which caused the ship to leak badly,
she at the same time heeling so much that
pumping was ineffectual. On the 4th of May,
for the purpose of lightening the ship aft, and
in order to raise the stern, where the leak ap-
peared to be, for the purpose of stopping the
leak, a large quantity of flour and corn were
thrown overboard from the run and after hatch-
way, by which means the leak was found, and
principally stopped ; but in consequence of
this the ship was brought so much by the head,
as essentially to injure her cargo by the quan-
tity of water in the forehold. On the night of
the same day the larboard main channels, with
the principal part of the bulwark, with some
of the rails, were washed away, and part of the
cargo was thrown overboard, out of the fore-
hold, in order to lighten the ship forward.
About the 6th of May, the weather moderated,
and jury masts were put up, and a steering oar
made, and on the 18th the vessel arrived at
Newport, in the State of Rhode Island. A
survey of the vessel was there held,*and [* 1 4O
all her cargo was discharged, in order to repair
her, the greater part of which was materially
injured, and some of it had become putrid.
The cargo was not in a state to bear transpor-
tation, and required great care, after being un-
loaded, to preserve it from further deteriora-
tion. The whole of it was sold at Newport ;
and on the 28th of July the vessel was fully
repaired, and in a state to proceed to sea, but
JOHNS. REP., 14.
1817
SALTUS ET AL. v. OCEAN INS. Co.
140
•did nut, however, prosecute this or any other
voyage.
A verdict was taken, by consent of the par-
ties, for the plaintiff for $22,000, subject to
the opinion of the court ; and in case of judg-
ment for the plaintiffs, for either a total or
partial loss, the amount was to be subsequently
4i(l justed.
Mr. Colden, for the plaintiffs. 1. Here was
a total and not an average loss of the cargo,
and the plaintiffs are entitled, therefore, to re-
cover for a total loss, under the memorandum.
The loss, both in quantity and value, is more
than one half of the subject insured, so that
there is, clearly, a technical total loss. But it
will be said that is not sufficient ; that there
must be a physical total loss, or an absolute
destruction of the thing, to entitle the plaintiff
to recover for articles within the memorandum.
This doctrine originated with Lord Mans-
field, in the case of Cocking v. Prater, Marsh
•on Ins., 227 ; Park, 6th ed., 151, and it was
adopted by this court in Le Roy v. Goucerneur,
1 Johns. Gas., 228, and in AT G rath & Higgins
v. Church, 1 Caines. 213. If, however, it can
be shown that the opinion of Lord Mansfield
has been subsequently overruled by the courts
in England, we venture to hope that this court
may be induced to review its former decision.
Lord Mansfield says: " If the commodity
specifically remains, the underwriter is dis-
charged." But if this is not, in principle, an
average loss, it is difficult to discover any rea-
son for a distinction between a physical and a
technical total loss.
ID Bur net v. Ktnxinffton, 7 T. R, 210, Lord
Kenyon says : " With regard to Cocking v.
/•'/YR«£ f. it is sufficient to say, that there was a
stranding in that case. What was there said
w.is, likewise, an obiter dictum ; and I cannot
-subscribe to the opinion there given, that " if
the commodity specifically remain, the under-
writer is discharged.'" And in Dyson et al.
\. Rttocroft, 3 Bos. & P., 474 ; Marsh on Ins.,
•3:iS, Lord Alvanlcy said, that the case of Cock-
ing v. Fraser was the only thing that raised a
«1 >iiln in his mind ; but the authority of that
141*] *case was much shaken by the obser-
vations of Lord Keuyon, in Burnet v. Kensing-
ton. The case of Dyson v. Rowcroft is perfect-
ly analogous to the present, and the reasoning
of Lord Alvanley shows, most clearly, the in-
correctness of the dictum of Lord Mansfield, in
Cocking v. Prater ; and though this court, in
Le Roy v. Oouoerneur, tfQralh v. Church, and
tfeilson v. The Columbian Ins. Co., 3 Caines,
108, decided according to that rase, yet in
Judah v. Randall, 2 Caines' Cas. in Er*. 324.
where the policy was " free of average." «fcc.,
<»n a chariot on deck, and the box of the car-
riage was thrown overboard, the court decided
ili.it as more than half the value of the thing
was lost by the jettison, there was a total loss,
for which the insurer was liable. This case
is not reconcilable with the other decisions ;
and if the case of Dyson v. R-)U>croft is now to
b.T considered as the law, it completely over-
rules I hat of Cocking v. Fraaer. Marshall, in
his Treatise on Ins., 238, does not, in the least
degree, question the correctness of the decis-
ion in Dyson v. Rowcroft, but lays down the
doctrine of that case, as if it was settled law,
that "if. by the perils of the sea, any of the
JOHNS. KKI»., 14.
enumerated articles be so damaged as to be of
no value, though they remain iu specie, this
will be total loss, against which the memoran-
dum will not protect the underwriters."
2. If the plaintiffs are entitled to recover
(on an average loss only), then we say, that on
the principle laid down in the case of ATGrath
& Higgin* v. Church, they must recover for the
whole damage, as it arose in -consequence of
what was done for the general safety.
3. At any rate, the plaintiffs must recover
the value of the goods thrown overboard.
*As to the policy on freight, which is[*142
valued, the plaintiffs claim a total loss, on the
ground that the subject was so deteriorated by
the perils of the sea that if carried to the place
of its destination it would not be worth the
freight.
Mr. Griffin, contra. 1. As to the claim on
the freight policy ; the case of Gruwold v.
The New York Ins. Co., 8 Johns., 821, is con-
clusive. The vessel was repaired in season,
and capable of proceeding on her voyage and
earning freight. The insurers undertake
merely that the vessel shall be in a condition
to earn freight
2. As to the policy on the cargo ; we say,
that as the subject of the insurance specifical-
ly remained, the insurers are not liable, there
not being a total loss within the memorandum.
This point has l>een solemnly and definitively
settled by this court in the cases which have
already been cited, of Le Roy v. Gouverneur,
M'Grath & Higgins v. Church, and Neibon v.
Columbian Ins. Co. The case of Dyson v.
Rowcroft may be distinguished from that of
Cocking v. frascr ; but even if there was any
collusion between them, the latter has been
adopted as the law here. The decision of the
Court of K. B., in the late case of Thompson
v. The Royal Exchange Ins. Co., 16 East, 214.
contains the same doctrine, and confirms the
authority of the case of Cocking v. Fraser.
[THOMPSON, Ch. J. It is important, that
when questions of commercial law are once
solemnly settled, that they should, where no
principle has been violated, remain undis-
turbed. Even if Lord Alvanley doubted or
overruled the doctrine of Lord Mansfield, we
should not think it proper, after the point had
been so solemnly and deliberately settled by
this court, to change the law, to suit the vary-
ing opinions of judges in England.]
Here is no loss of voyage, independent of
the deterioration of the cargo.
8. As to the average loss ; we do not deny
that the plaintiffs are entitled to recover, but
insist that it can be only for their proportion
of the goods thrown overboard, or the jettison.
For the plaintiffs being owners of vessel, cargo
and freight, they can recover only the portion
which the defendants would be bound to con-
tribute to the jettison.
*The plaintiffs, if they claim more, [*143
must show, clearly and conclusively, that all
the damage which happened resulted from the
jettison. (Parkin v. lunno, 2 Campb., 59.)
This, we contend, has not been done. [Here
he entered into a particular examination of the
evidence.]
Mr. Wells, on the same side, was stopped by
the court.
807
143
SUPREME COURT, STATE OF NEW YORK.
181T
Mr. 8. Janes, Jr., in reply. In Saltus v.
The Ocean Ins. Co., 12 Johns., 107-112, the
court consider the state of the cargo as afford-
ing a reason for not hiring another vessel to
proceed with it to its port of destination.
" Admitting," says Mr. Justice Yates, "that it
would be the captain's duty, with an ordinary
cargo, to procure a vessel at Cork to send it
on, no such obligation could possibly exist in
this case, as the situation of the cargo ren
dered a reshipment improper." So, in Dyson
v. Rowcroft, the dangerous state of the cargo
rendered it necessary to throw it overboard,
and the voyage was, therefore, defeated.
As to the general average ; every loss or dam-
age that may fairly be regarded as a conse-
quence of the jettison or the acts done for the
safety of all, ought to be deemed general
average.
YATES, J., delivered the opinion of the
court :
There can be no claim for a total or partial
loss on the policy on the freight, as the vessel
was repaired in season, so as to be in a capaci-
ty to earn freight. She arrived at Newport on
the 19th of May, and a survey was made the
same day, in consequence of which she was
unladen, and immediate measures taken to
repair her; so that by the middle of July she
was (as stated in the case) in a good condition ;
and on the 28th of the same month she was in
a situation to proceed to sea. Being thus
seasonably ready to prosecute the voyage, if
the owners had been disposed to do so, the in-
surers on the freight policy were completely
exonerated.
In* Griswold v. The New York Ins. Co., 3
Johns., 328, this court say, if the owners had
consented, the plaintiff would have been bound
to proceed and run the risk (against which risk
the defendant had insured by the policy) of
losing the freight, by the loss of the cargo, in
the course of the voyage, or of earning freight
by its safe arrival or delivery at the port of
destination, without regard to the state or con-
144*] dition of the *cargo at the end of the
voyage. This is conclusive on this point.
The decision in the case of Saltus v. The
Ocean Ins. Co., 12 Johns., 107, appears to be
in some measure, relied on by the plaintiff's
counsel, but it does not militate against the
principles which must govern the decision of
this cause. On an examination of the report
of that case, it will be found that the situation
of the vessel and the consequent duty of the
master, was the important inquiry. The ques-
tion was whether the master was bound to
find another vessel to carry the goods to the
place of destination elsewhere, out of the port
of distress, or out of a port immediately con-
tiguous ; and it was held that the captain was
not obliged to travel sixteen miles, the distance
between Kinsale and Cork, to procure another
vessel. The counsel for the plaintiff attached
too much importance to the remark made as
to the situation of the cargo, and its reship-
ment. It was mentioned merely incidentally,
as questionable whether, in consequence of
the peculiar situation of the hemp, the master,
who acted in good faith, admitting that it
would have been his duty, with an ordinary
cargo, to procure a vessel at Cork, would not
808
have been justified in not procuring one. The
observation was not necessary, and might have
been omitted ; but it affords no ground to in-
fer that the court meant to decide that a dam-
aged cargo at any time would authorize an
abandonment of the voyage, so as to entitle a
recovery on the freight policy, where an op-
portunity to earn the freight had existed, or
on the cargo policy, notwithstanding the mem-
orandum. On the contrary, the principle can-
not now be questioned, that the fidelity and
vigilance of the captain, in the course of the
voyage, without regard to the diminution in
value of the cargo, where the articles specifi-
cally remain, is the correct test as to the claim
of freight on a policy like the present. In
this case, the vessel was ready for sea, and the
freight might have been earned ; but it has-
not been done. This must be deemed a suffi-
cient protection to the defendants as under-
writers, who cannot be made liable for the
freight, because the deteriorated state of the
cargo rendered a sale necessary.
No claim can be sustained for a total or a
partial loss on the cargo policy. It consisted
of perishable articles included in the memo-
randum, and it was not lost, excepting the arti-
cles thrown overboard to lighten the ship. The
defendants, therefore, *are only liable [*145
to pay their portion in contribution towards
the value of the articles which constitute the
jettison, a principle repeatedly recognized by
this court. (1 Johns. Cas., 226 ; 1 Caines,
196 ; 3 Caines, 108.)
The plaintiffs, however, seek to recover for
a total loss, on the ground that the corn was^
deteriorated to more than a moiety of its value,
but the rules applicable to a technical total
loss do not apply to this cargo. It consisted
of articles within the memorandum, by which
the underwriters are exempted from all aver-
age loss, unless general, so that if there was
a techninal total loss of the cargo, the defend-
ants would be protected by the memorandum.
What shall be deemed a total loss within the
meaning of the policy is the important inquiry.
On this subject the Courts of K. B. and C. P. ,.
in England, are somewhat at variance. In
Cocking v. Praser, Marsh, 227, Lord Mansfield
held that there was no total loss of those arti-
cles as long as they specifically remained, but
that there must be an absolute destruction of
them to make the underwriters liable. In Dy-
son v. Rowcroft, 3 Bos. & P., 474 the Court of
C. P. held that where the cargo was so de-
teriorated as to be worth nothing, there was a
total loss, although it specifically remained.
We have adopted the doctrine of the King's.
Bench. In Le Roy v. Gouverneur, 1 Johns..
Cas., 226, it was held that there must be an
actual total loss, as distinguished from a tech-
nical total loss, in order to make the under-
writer answerable. In M'Orath & Higgins v.
Church, 1 Caines, 212, the above decision is
sanctioned and enforced ; and it is there said
that the memorandum prevents the loss from
being total, unless the article has been burnt,
sunk, captured or otherwise completely de-
stroyed. This case also shows that a total loss,
by reason of the loss of voyage, does not ap-
ply to a case where the cargo consists of article*
within the memorandum. In Cocking v. Frazer
it is said that in common cases where the voy-
JOHNS. REP., 14.
1817
GRAVES ET AL. v. DELAPLAINE.
145
age is obstructed, and not worth pursuing, it
is a total loss, but the memorandum goes on
the idea that the insurer is not to be liable for
any damages, however great, while the subject
exists. In NeiUon v. The Columbian Int. Co.,
8 Caines, 108, it is said that so long as the
corn physically exists, there could not be a
total loss ; and though good for nothing, the
underwriter was not liable, but protected by
the clause in the memorandum. From these
cases it is evident that the plaintiff cannot
14tt*J 'recover on the ground of a total loss,
in consequence of the deteriorated state of the
cargo or the loss of the voyage ; unless, then,
the injury is the necessary consequence of the
jettison, the extent of the recovery cannot ex-
ceed the amount of the contribution towards it.
It appears that on the 30th of April serious
apprehension was entertained with regard to
the situation of the cargo ; for between that
period and the 4th of May, the ship, by the
violence of the gale and sea. was knocked
down upon her beams, and the leak in the
stern was discovered, the masts were cut away,
and the rudder carried off. All this took place
before the articles were thrown overboard.
There are no reasonable grounds to suppose
that the injury to the cargo was the necessary
consequence of the jettison. The defendants,
therefore, can be made liable for no more than
their contribution or proportion towards the
jettison, for which amount, on. being ascer-
tained according to the stipulation in the case,
the plaintiff is entitled to judgment.
Judgment for the plaintiff accordingly.
Cited ln-18 Johns.. 210; 6 Cow., 331; 25 Wend..
618; 44 N. Y.. 219, 441 ; 17 Barb.. 307 ; 3 Bos., 396; 1
Rob., 49H ; 3 Rob., 543; 7 How. (U. 8.), 608 ; 1 Story,
357.
GRAVES ET AL., Trustees, &c.. of WOURALL
& WILLIAMSON, Absent Debtors,
9.
DELAPLAINE.
Contract — Where Illegal and Void, no Action
can be BrougJtt-^Non- Intercourse Law — Bank-
rupt Ditcliarged in a Foreign Jurisdiction,
Cannot be a Witness in Favor of His Trustees.
Where A, a merchant in Great Britain, by his
agent, charters a vessel of II, a merchant in New
\ ork, iliiriiiif the continuance of the Non-inter-
course Law of the United States, for the purpose of
transporting goods from New York to Fayal. there
to be transferred to another vessel to be conveyed
to England. A can maintain no action against B
for any balance of accounts due to him upon this
transaction, the whole being1 illegal and void.
A person who has become a bankrupt, and been
discharged in Great Britain, and against whose
property in this state an attachment has issued,
under the Absent and Absconding Debtor Act, can-
not be a witness in favor of his trustees under that
Act. although he has released his interest in the
surplus of his estate to his assignees in Great Britain,
and to his trustees here.
Citationa-Cowp.. 341 ; 5 T. R., 596 ; 5 Johns., 327 ;
3 Cranch. 242.
rp II IS was an action of astumprit brought by
1 the plaintiffs, trustees under the Absent
and Absconding Debtor Act, for the creditors
of Worrall & Williamson, merchants in Liver-
pool, in the Kingdom of Great Britain, to
recover from the defendant a balance of ac-
JOIINS. REP., 14.
] count alleged to be due from him to Worrall
; & Williamson. The defendant pleaded non
\ nMHinjixit. with notice of set-off. The cause
j was tried before His Honor, the Chief Justice,
at the New York sittings, in April, 18l6.
The agent of Worrall & Williamson, on
the 17th of November, 1809. chartered of the
defendant, at New York, the ship Columbia,
for a voyage from New York to Fayal. at cer-
tain stipulated rates of freight. The charter-
I party contained the following provisions :
" The ship is to be got in readiness *for [*147
sea without any delay, and by the 23d instant,
if possible. On her arrival at Fayal, if the
vessel in which the cargo is intended to be re-
shipped should not be there, the vessel is to
remain with the cargo on board (if the laws
and regulations of the Island of Fayal will
permit it) for thirty days, after which it shall
be discharged without" the least delay ; or,
should the captain deem proper to lay longer
than the thirty days, and the agent or con-
i signee of the cargo at Faval assent to it, $40
per day is to be allowed for demurrage, for
each and every day the ship shall be so de-
tained by consent of the master. It is under-
stood, if the Columbia's cargo is discharged
immediately on her arrival at Fayal, no allow-
ance is to be made for the whole or any part
of the thirty days, above stated, by the owner.
It is also understood, that the freight will be
placed by Worrall & Williamson, of Liver-
pool, to the credit of John F. Delaplaiue, on
learning of the arrival of the Columbia at
Fayal, and that he is hereby authorized to
draw on them for two thirds "of said freight,
he giving Worrall & Williamson orders to
effect insurance on the Columbia's freight
from New York to Fayal. John F. Delaplame
agrees to ship in her a quantity of goods, if I
think proper, equal to four hundred barrels,
to be heavy freight." The defendant shipped
on board of the Columbia two hundred tierces
of flaxseed on his own account. After her
arrival at Fayal, and a considerable delay in
waiting for ihe arrival of a vessel from En-
gland, the defendant's flaxseed, as well as the
residue of the cargo, was put on board of a
I vessel which came from England for the pur-
, pose of taking it, and by which it appears to
have been conveyed to England. It appeared
that the cargo was shipped at New York, with
| the express view of being sent to England by
the way of Fayal. The defendant was charged
in the account current of Worrnll & William-
| son, among other things, with the amount of
• bills drawn on and accepted by them, on ac-
i count of the freight of the Columbia, and was
• credited with the net proceeds of the freight
| of his shipment of Huxseed.
The plaintiffs offered to read in evidence the
I deposition of W. Jones, Jr., taken under a
commission ; and the defendant's counsel ob-
jected, on the ground that the bills of ex-
change mentioned in the debit side of the ac-
count current annexed to his deposition, and
the payment of which the deponent's deposi-
tion was intended to establish, ought first to be
i produced and proved ; but the Chief Justice
j allowed the deposition to be read, subject
| *to all objections. The witness stated [* 1 4H
, that he was, by occupation, a bookkeeper, and
that his knowledge of the payment in the
148
SUPREME COURT, STATE OF NEW YORK.
1817
debit side of the account was by means of his
being the clerk of W. & W. in their counting
house, at the time, in Liverpool, being chiefly
employed in keeping their books.
The items in the debit side were for two bills
of exchange accepted and paid^by W. & W.,
and £98 3s. 4d. paid to Captain Hazard for
primage and cabin freight. The defendant
objected that the bills of exchange ought to be
produced and proved : that he had, previous
to the trial, given notice to the attorney of the
plaintiff to produce them; but the Chief Justice
overruled the objection. To show that the
bills had been paid by the order or on account
of the defendant, the plaintiffs offered the dep-
ositions of Worrall & Williamson, taken un-
der a commission.
It appeared that commissions of bankrupt
had issued against Worrall & Williamson, in
England, and that they had obtained their cer-
tificates of conformity ; and that previous to
their testimony being taken, they had released
to the assignees of their estate, in Great Brit-
ain, and to tlie plaintiffs, their interest in the
surplus of dividends of their estate in Great
Britain, and in the State of New York, re-
spectively. The depositions were objected to
on the ground that the English certificates did
not exonerate the witnesses from their debts
here, and that their evidence went to create a
fund for such exoneration ; and on this
ground they were excluded by the Chief
justice.
The plaintiffs then read in evidence the affi-
davit of the defendant, made by him for the
purpose of resisting the motion made in this
court, in May Term, 1814, for the commission
under which the deposition of W. & W. was
taken. In this affidavit the defendant stated
that he was a native of and resident in the
City of New York, and in November, 1809,
contracted with the agent (De Jough) of W. &
W. to le.t to freight a vessel, Hazard master,
for a voyage to Fayal, and to ship on board a
part of the cargo to be consigned to W. & W. ;
and it was agreed that certain bills of exchange
on W. & W. should be accepted and paid by
them on account of such freight and consign-
ment ; and that the demands of the parties in
this suit rose entirely out of the aforemen-
tioned contract and arrangement; and that the
plaintiffs, in their right as trustees, produced
a claim against him on account of the bill
above mentioned, the payment thereof, and
some charges in respect to the business.
149*] *The plaintiffs also proved, by their
attorney, that before the commencement of
the suit, he furnished the defendant's attorney
with an account current similar to the one an-
nexed to the deposition of Jones.
The defendant then claimed under his no-
tice of set-off, and read in evidence the agree-
ment of charter-party, for the ship Columbia,
dated 17th of November, 1809, not under seal,
and signed by J. De Jough, and the defend-
ant ; and it being objected that W. & W. were
not parties to this instrument, and that it did
not appear to have been made in their behalf,
or by virtue of any authority derived from
them, the defendant, to show that fact, pro-
duced and read in evidence a letter of W. &
W. , addressed to them, dated 3d of January,
1810, in which they say: "Your esteemed
810
favor of the 25th of November last has been
duly handed us by our agent, and it is with
particular pleasure we perceive his having ar-
ranged with you for the charter of the Colum-
bia, Hazard, from New York to Fayal. We
thank you for permitting the freight to pass
through our hands, and we beg you to be as-
sured that your valuation, as stated, will re-
ceive prompt protection whenever they ap-
pear."
The defendant proved the shipment of the
goods, the amount of freight according to the
charter-party, and the demurrage at Fayal,
and the price of flaxseed in Liverpool, at the
time of its arrival there, &c.
The counsel for the plaintiffs objected that
as it was in evidence that the set-off arose un-
der a transaction in breach of the Non-inter-
course Law, which was in force at the time
when the shipment was made, no part of it
could be allowed. The counsel for the de-
fendant then urged, that as Worrall & Will-
iamson were jjparties, through their agent, to
the same transaction, the claim of the plaint-
iffs, being in their right, was not maintainable,
and the Chief Justice ruled accordingly. A
verdict was taken, by consent, for the plaint-
iffs, for the balance stated in the account cur
rent of Worrall & Williamson, with interest,,
subject to the opinion of the court on a case
containing the facts above stated.
Mr. Caines., for the plaintiffs. That the
plaintiffs were duly authorized to sue being a
conceded point on the part of the defendants,
he should proceed (3d) to show that their de-
mand, as stated in the account current, was
proved ; and this second point, he contended.
was supported on two grounds : 1st. That the
judge, at the trial, was not correct in not re-
quiring the production *of the bill of [*15O
exchange in this action, which was not to re-
cover the amount paid on them by the accept-
ors ; and, 3d. Because the payment of them
being proved from the evidence in the case,
their existence, and the order to pay, in behalf
of the defendant, was necessarily included in
the proof.
As to the production of the bills, he said the
instrument itself was never required to be ad-
duced, unless, (1.) When it was the foundation
of the action, that is, declared upon ; (2.)
When it was in the hands or power of the
plaintiff ; (3.) When in the hands of the de-
fendant, and could be called for ; or, (4.)
When in the hands of some third person, who
might, by compulsory process of the court, as
a subpama daces tecum, be obliged to produce
it. None of those principles applied in this
case. The bills must have passed to the as-
signees of the acceptors in England, under the
commission of bankrupt sued out against them
there. They could not be in the hands of the
plaintiffs, whose suit was in hostility to the
assignees of Worrall & Williamson, as it
sought to obtain a portion of the estate of W.
& W. to distribute among the creditors here,
in opposition to the distribution sought to be
made under the English commission. Nor
could the bills be supposed to be in the hands
of the defendants, since they had passed from
him in a course of exchange; nor could a sub-
poana go to the assignees in England.
In the present suit, the action was not on
JOHNS. REP., 14.
1817
GRAVES KT AL. v. DELAPLAINE.
150
the bills, but for the recovery of the money I
paid on them. The payment was a fact col- j
lateral to the bills, a'nd might be proved ;
aliunde. Thin, he Raid, was the rule in all
cases of collateral facts, as payment of rent,
for which a receipt had been given, without
producing the receipt (Runn. on Eject., 289) ;
of the payment of a bill by the admissions of
the plaintiff (1 East, 460) of a bond, by parol,
though an attested receipt was endorsed on it.
(6 Binney. 16.) Had the action been on the
bill, the payment might have been proved
without it (1 Ld. Raym., 742), as all other
facts when collateral, though to establish the
contents of the bill. (2 Campb , 601 : 8 Campb. .
810.) The bills themselves, if produced with
receipts indorsed on them, would have been
no more than priina facie evidence, and fur-
ther evidence might have been required. !
{Peake. 24.)
As to the payment of the bills, that, he said, j
was established by the statement of the de- 1
fendant set forth ia the case, showing their j
existence, and the order of the defendant to ,
pay them. This was also substantiated by the '
deposition of the witness Jones, in his answer :
to the fifth interrogator, unless the words
" and chieflv " were read" "because entirely."
151*] •8. That the testimony of Worrall & I
Williamson wan improperly rejected. Their;
evidence was admissible, ls£ Because they had
no interest in the subject matter of the suit ;
2. Because their testimony could not create a
fund, in exoneration of themselves ; and, 3d.
They were under no liabilities. They have
released all their interest, both to the assignees
in England, and to the trustees under the
attachment. It was a demand arising from a
credit they had afforded ; this credit was the
origin of the demand, and preceded the debt ;
and it must arise where the credit was given,
in England. (Hmhan v. Smith, 2 Campb.,
21.) As the debt of the drawer of the bill
arises where the bill was drawn (Hick» v. Brmcn,
12 Johns., 142), so the acceptor's demand
arises where the acceptance was given. The
acceptance is an engagement collateral to the
bill ; the acceptor becoming liable only by the
acceptance, whereas the drawer's engagement
is on the bill, and the debt of the drawer to j
the payee, indorsee, &c., arises where the bill j
is drawn, by his drawing. When the accept-
ance, as in "this case, is made without funds,
the liability of the drawer, or his debt to the \
acceptor arises only on payment, and that must j
be where the acceptance is given and dis- j
charged. If the acceptance be on funds in the '
hands of the drawee, then it is a debt due from
the acceptor, before the acceptance, in the place ;
where it is given. In either case the accept- i
ance is collateral to and not on the bill. In
tin- present case, the demand arose on payment
of the acceptance, and therefore, in England.
If so, the debt passed to the English assignees
of W. & W., as regulated by their domicil
(.StB v. Wormnek. 1 H. Bl., 690; Philip* v.
Hunster, 2 H. Bl., 402), subject, however, as a
species of property, to attachment by creditors
of the bankrupt in the hands of such of their
debtors as might be in the countrv where the j
attachment was laid, to prevent the transit of i
the debt to the English assignees. (Per Lord i
Loughborough, 2 H. Bl., 412.) By this prin- 1
JOHNS. REP., 14.
ciple, the debtor was in no danger of paying
the same debt twice, because payment under
such attachment, being by coercion of law, is
a discharge to the debtor of the bankrupt
against his assignees, whether the attachment
be before the commission sued out (C'heralier v.
Lynch, Doug., 170), as in the present case, or
after. (Milne v. Morton, 6 Binney, 358.)
Again, their testimony was admissible, because
they were under no personal liabilities in this
country. They were, as stated in the case,
commission, not importing merchants, resident
in England, and had never been in this country.
The presumption, therefore, was that all their
debts arose in England, from whatever place
the goods consigned to them might come.
The debts of commission merchants to the
consignors or consignees *arise where [*lf>!2
the goods are sold, and then not until after a
demand. (Ferru v. Pari*, 10 Johns., 285.)
And therefore, against a debt due by a com-
mission merchant, the Statute of LimiUitions
does not begin to run until after a demand.
(Topham v. Braddock, I Taunt., 572.) There
did not appear to be any debts due from them
which arose in this country ; it must be pre-
sumed, therefore, that no such debt existed.
The attnchment, and proceedings under it,
do not afford even presumptive evidence
against this reasoning. An attachment is not
prima facie evidence of a debt arising in the
place where the attachment issues. For the
purposes of an attachment, a debt due to an
absent debtor is considered merely as a species
of property traveling with the debtor, and
therefore liable, as an incident, for the sake of
the remedy, in the country where the prin-
cipal, the debtor of the absent debtor, resides.
An attachment, by operation of law, gives
corporeality to an in corporeality, and thus, for
the purpose of a kind of preferential justice,
to prevent foreigners from drawing from this
countrv, in satisfaction of their demands,
debts liable to the claims of our own citizens.
Such debts are, by operation of law, stopped
in trtinnitu. But this is no evidence of the
origin of the debt due by the absent debtor.
It is only evidence that the debt attached is
passinir through the country where the attach-
ment is laid. (Cook v. Loraine, 1 Lord Raym.,
347.) An attachment, and a judgment on it,
is not prima facie evidence that the debt arose
there (2 Campb., 21), nor even that there is
any debt existing which was liable to the
attachment. (Myers v. Urieh, 1 Binney, 25.)
The facts in the case standing unrebutted,
warrants the presumption that all the debts of
W. «fe W. arose in England. Their certificate,
therefore, is a complete discharge in foreign
countries (1 East, 6 ; 5 East, 124 ; 12 Johns.,
142) ; and if so, they had no interest in creating
a fund to exonerate themselves from a liability,
which the facts, and the law of the case,
showed did not and could not exist.
Then, as to the defense, by way of set-off :
1st. Under the charter-party." 2d." For money
had and received. The charter party is re*
inter nlio* acta. It is in the name of I)e Jough
alone. It is not even stated that he wits the
agent of W. & W. ; and if he were so, or had
named himself as agent, he alone would be
liable, it being executed in bis own name.
(Mauri v. Heffernan, 18 Johns., 58; Stackpote
811
153
SUPREME COURT, STATE OF NEW YORK.
1817
v. Arnold, 11 Mass., 27; Arfridson\. Ludd,
12 Mass. , 173 , Appleton \. Binks, 15 East, 148.)
The letter of W. & W. did not adopt the char-
ter-party. The styliug him agent was a mere
descriptio persona ; they thank the defendant
for letting the freight of the Columbia pass
through their hands ; had the debt on the
charter-party been theirs, they would not so
153*] *have expressed themselves. Where a
contract is explicit in itself, it cannot, by parol
evidence, or by connecting it with a letter not
expressly referring to it, be varied or extended.
(Grant v. Naylor, 4 Cranch, 224.) Besides, the
charter-party was an illegal contract, and an
express adoption of it is necessary to charge a
third person as a party. Fraud is not to be
presumed. (The King v. Manning, 2 Com.,
642.) So strict is the law in this respect, that
rather than suppose fraud, it will invert its
rules ; and where the omission of an act ren-
ders a transaction fraudulent, it will oblige the
party alleging it to prove a negative ( Williams
v. East India Co., 5 East, 192); a fortiori, ought
he to prove the affirmative.
There was no evidence to support a set-off
for money had and received. W. & W. were
commission merchants or factors, selling on
account of their principals, and it was attempted
to charge them for money had and received by
showing what similar goods sold for. This
cannot be done, unless an account of sales is
denied (Loughboroughv. Kenny, Doug., 132), or
an account only of a part is rendered, and for
the residue is refused. (Schee v. Hassinger, 2
Binney,325; Massinger v.Kintner, 4 Binney,97.)
The account current, a copy of which has
been delivered to the defendant's attorney, ac-
cording to Garr's evidence, states the credits
according to the account rendered. Copies of
these accounts of sales were annexed to the
deposition of Jones, and not admitted, because
not proved ; but they were not offered to prove
any of the items, but merely to show that they
had been rendered, that the defendant might
surcharge and falsify. To let in the evidence
sought for, a delivery to W. & W. , that is, a
receipt by them, ought to have been shown ;
and there was no evidence that the flaxseed
came to hand, unless from the credit 'given
for it.
There was another reason why the set-off
could not be admitted. It arose out of an
illegal act of the defendant, which did not affect
the demand of W. & W., for they were not in
pari delicto ; and because it was not the same
transaction. The delictum of the defendant
was in shipping merchandise in contravention
of the JN ou-intercourse Laws, to which he owed
obedience ; but W. & W. being aliens, resident
abroad, owed no allegiance to this country.
They could not, therefore, be in delicto. To
implicate an alien in the offense against a mu-
nicipal or revenue law, he must take an active
part in breaking it : for if his transactions were
in the course of his business, though he knows
the other deals with him, and intends to apply
the subject matter of dealing in breach of the
law, he is not affected by it, and may recover
154*] *on hi8 Part °f the transaction.
(Holman v. Johnson, Cowp. 341 ; Houriet v.
Morris, 3 Campb., 303.) So, though the. trans-
action be in his own country. (Hodgson v.
Temple, 5 Taunt., 181.)
812
But when the alien steps out of the line of
his business, and aids by packing in an unu-
sual manner, then, and not till then is he parti-
ceps criminis. (4 T. R., 466.) In many cases
the principal can recover when the agent or
servant cannot. (Glark v. Schee, Loft's R. ,
759; S. C., Cowp., 197.) Even in colonies of a
mother country, an agreement made in the
colony, though contrary to the laws of the
mother country, has been enforced in her tri-
bunals ; as in the case of the sale of offices
contrary to the Statute of Edw. I. (Dawes v.
I*indar, 2 Mod., 45 ; Blanchard v. Galdby, 4
Mod., 222.) The importation of a cargo, the
proceeds of an unlawful cargo, has been ruled
to be legal in a citizen ( United States v. Wells,
3 Day, 296); a fortiori, the advance on a cargo,
made by a foreigner in his own country.
Again ; the demand and set-off are not the
same transaction. The whole of the illegal
set-off was a finished act in 1809, before the
acceptances were in existence, for they were
not given until August, 1810. The demand,
therefore, is totally distinct, not arising on the
shipment, but on a personal mercantile credit
given to the defendant. The bills were not
dependent for payment on the funds shipped.
Had the goods been lost, and the underwriters
failed, the defendant would have been liable
for the amount of the acceptances lent him, as
a personal credit Afforded him. Advances
made by a factor are on the joint credit of the
fund and person of his principal. (Burrill v.
Phillips, 1 Ball., 360-363, per Story.) The
means to which he resorted to redeem that
credit, were independent of the debt created by
it, and unconnected with it.
Messrs. Slosson and Wells, contra. 1. The
testimony of W. & W. was properly rejected,
on the ground of interest, the discharge under
the Bankrupt Laws of England not being a dis-
charge from their creditors in this country ;
and the assignment under the Absent and
Absconding Bebtor Act of this State leaving
them still liable, the recovery in this case
would go to diminish their debts in this
country. The evidence clearly shows that
the debt was contracted here. In Van Raugh v.
Van Arsdaln, 3 Caines, 154, this court decided
that a discharge under the Insolvent Act of
another state was no bar to a suit here by a
citizen of this State, for a debt contracted
here, and where the creditor has not given his
assent to the proceedings under such Insolvent
Act. And from their liability here the dis-
charge in England cannot exonerate them ;
neither can any release by them to their as-
signees discharge this liability. They are as
much benefited by creating *a fund to [*155
pay their debts, as by creating a fund which
is to go into their own pockets. It is not a
case of a remote, contingent, or evanescent
interest ; but the interest is certain, direct and
palpable. Neither a bankrupt nor the creditor
of a bankrupt is competent ; for a person can-
not be a witness to create or increase a fund
in which he is to participate. (Phillips' Ev..
54; Phcenixv. Assignees of Ingraham, 5 Johns.,
427 ; 2 Ball., 50; 1 Mass., 238.) If W. & W.
are rejected as witnesses, the plaintiff's right
to recover must rest solely and exclusively on
the evidence of Jones, who was examined
under a commission. He refers to the account
JOHNS. REP., 14.
1817
GRAVES ET AL. v. DELAPLAINE.
155
current ; and every material part of his testi-
mony is derived from the books of W. & W ,
in hfs capacity of bookkeeper. There must be
evidence of the existence of the bills, that they
were drawn by the defendant, and were paid
by the drawees ; their genuineness and iden-
tity ought to have been shown ; but there is
no evidence whatever of the bills. JHere the
counsel entered into a minute examination of
the evidence. ] To supply this defect in the
evidence, W. & W. were offered as witnesses,
and if they were properly rejected, the plaintiffs
cannot recover.
2. This was an illegal contract, and both
parties being in dettcio, neither can recover
against the other. If the 'illegality of the con-
tract is a valid objection to the set-off of the de-
fendant, it is equally so to the claim of the
plaintiffs. The demands of both parties origi-
nated in the same agreement. The charter-
party, shipment and bills are all one connected
transaction, one entire contract. W. & W.
are parties to this contract ; they received the
letter of the 26th November, 1809, from De
Jough, their agent ; and in their letter of the
2d January, 1810, they expressly recognize
and adopt the acts of their agent. That this
is one entire contract, consisting of mutual
stipulations, all originating from one agree-
ment, is clearly and fully proved by the affi-
davit of Delaplaine, which was introduced
and read by the plaintiffs themselves. It is a
contract to* export goods in contravention of
the Non-intercourse Law of the United States.
The plaintiffs, for W. & W., bring this ac-
tion arising on the contract, and when the
defendant offers to set off his demands, they
make the objection that the contract is illegal
as it respects him, though innocent and legal
in regard to W. & W. The defendant, they
contend, must pay them all that they claim
under this contract : but they are not bound
to pay the defendant anything, because he is
in dekcto. W. & W., it is alleged, are British
subjects, and not bound by the laws of the
ISO*] United *States ; but may avail them-
selves of those laws to deprive the defendant
of his rights. Can such a principle be ad-
mitted for a moment ? If the plaintiffs avail
themselves of the illegality of the contract,
they must take it entire, for better for worse.
If it is illegal in part, it is illegal throughout.
(Crawford v. MorreU, 8 Johns., 256.)
No country regards the municipal or rev-
enue laws o'f other countries ; but when a
plaintiff, whether a citizen or foreigner, comes
to ask the court of a country to aid him in en-
forcing a right, arising out of a contract made
in violation of the laws of that country, the
court will refuse its aid. In Holman v. Jofin-
*>n, Cowp., 441, Lord Mansfield says, that it
is not in favor of the parties that the objection
is ever allowed ; but it is founded on the prin-
ciple of public policy that ex dolo malo non
oritur actio. "No court will lend its aid to a
man who founds his cause of action upon an
immoral or illegal act. If, from the plaintiff's
own stating, or otherwise, the cause of action
appears to arise ef turpi causa, or the trans-
gression of the positive law of the country,
there the court say he has no right to be as-
sisted." That was an action for the price of tea,
*old and delivered in Dunkirk, in France, by
JOHKB. HEP., 14.
the plaintiff, a native of that place, who knew
that it was purchased for the purpose of being
smuggled into England, but who had no con-
cern whatever in the smuggling, but merely
sold ilio tea to the defendant, as he would to
any oilier person, in the ordinary course of
business. The contract was complete bv the
delivery of the goods in Dunkirk. But "Lord
Mansfield says : "If the plaintiff had under-
taken to send the tea into England, or had
any concern in running it into England, he
would have been an offender against the laws
of that country." Now, unless the plaintiffs
can show that there is a material distinction
between running goods into a country against
its laws and running goods out of a country
against its laws, the case put by Lord Mans
field is perfectly analogous to the present case,
and the principle laid down by him is conclu-
sive.
It is not pretended that this is not a clear
case of a shipment of goods, in contravention
of the laws of the United States : it is imma-
terial whether W. & W. were citizens or for-
eigners ; though they did not act against their
allegiance, because they owed none, yet they
acted against the laws of this country, and the
contract is, therefore, void. The law looks to
the contract, and avoids it, without regard to
the political character or situation of the
parties. In this respect the parties are in part
deticto.
*In Ilmeton v. Hancock, 8T. R., 575. [*157
the Court of K. B. said that not a case could
be found where money paid on an illegal con-
tract, both being participe* c-riiiiini*, an action
could be maintained to recover it back.
In Monckv. Abel, 8 Bos. & P., 35, which is
analogous to the present case, the Court of C.
B. decided that a foreigner could not recover
back a premium paid by him on a policy of in-
surance, where the voyage insured was in
contravention of the laws of Great Britain ;
and in Vandyck v. Hewett, 1 East, 96. Lord
Kenyon said there was no distinguishing it
from the common case of a smuggling trans-
action. Where the vendor assists the vendee
in running the goods, to evade the laws of tin-
country, they cannot recover back the goods
themselves, or the value of them.
In Han nay v. Ere, 8 Cranch 242, the Su-
preme Court of the United States refused to
enforce an agreement entered into in fraud of a
law of the United States, though the agree-
ment was made between British subjects, who
were, at the time, enemies of this country,
and the object of the agreement was a mere
stratagem of war. The agreement sought to
be enforced in that case was made between
the master and crew of the vessel, and the
plaintiffs, who were the owners of the vessel,
by affirming the transaction, and calling on
the defendant to account, were considered as
parties to the fraud. In fielding v. Pifkin, 2
Caines. 147. this court decided that an action
would not lie on a contract to pay over half
the proceeds of an illegal con tract, 'though the
money arising from it had lieen received by
the defendant. This is a strong case to show
the repugnance of courls of law to lend its aid
to enforce claims arising out of an illegal con-
tract. So, in Hunt v. Knickerbatker , 5 Johns.,
827, where the plaintiffs were managers of a
813
157
SUPREME COURT, STATE OF NEW YORK.
1817
lottery in the State of Connecticut, and having
delivered to the defendant tickets to be sold in
this State, brought an action of assumptsit to
recover the value of the tickets unsold, on the
ground that the defendant had made them his
own by not returning them in time, accord-
ing to his contract, the court held that the ac-
tion could not be maintained, as the contract
being to defeat the intent of the Act of this
State against private lotteries, was illegal ;
and the present Chief Justice, who delivered
the opinion of the court, adopts the principle
laid down by Lord Mansfield, in Holman v.
Johnson, and which was also recognized and
applied in the case of Bdding v. Pilkin, that a
court of justice ought not, in any manner,
to assist an illegal transaction. Indeed, the
158*] *principle is so clearly just and reason-
able as to require no comment or illustration.
Above all, the plaintiffs, who raise the objec-
tion of the illegality of the contract, to defeat
the claims of the defendant, ought not to re-
ceive the aid of the court to enforce it, in sup-
port of their own demands.
The case of T/te United States v. Wells, 3
Day, 296, in which it was decided that a return
cargo of a vessel, which had proceeded to a
foreign port in contravention of the embargo
law of the United States, was not liable to
condemnation, is in favor of the defendant.
In Amory v. M'G-regor, 12 Johns., 287, though
the point was raised as to the legality of a con-
tract to convey goods from Great Britain to
the United States, during the war between the
two countries, yet that question was not con-
sidered by the court, who decided the cause on
a point of pleading. In Clark v. Shee, Covvp.,
147, the parties were not in pan delicto. In
Clugas v. Penaluna, 4 T. It., 466, the plaintiff
was assisting in the smuggling, by packing the
brandy for that purpose, in Guernsey. So, in
Waymell v. Retd, 5 T. R. , 599, the vendor, in
France, by order of the buyer, having packed
up the laces in a particular manner for smug-
gling them into England, and knowing at the
time that they were to be smuggled, was not
allowed to recover the price of them of the
buyer in England. This case is in favor of the
defendant, to repel the distinction raised be-
tween a citizen and a foreigner. The court
held that they would not aid a native of an-
other country in carrying into effect a con tract
made with an English subject to violate the
laws of his country.
3. But supposing that the court will sustain
this action, how does the account stand be-
tween the parties ? The plaintiff has not
proved his demand ; and the defendant claims
to set off his demands against W. & W., for
freight, demurrage and goods. The charter-
party stipulates that W. & W. are to credit
the defendant with the freight ; and the arrival
and delivery of the goods and amount of the
freight were proved ; and the demurrage,
being a stipulated sum, has been proved.
Where goods are delivered to a person to sell
and remit the proceeds, and he neglects or re-
fuses to render a statement of the sales and re-
ceipts, this is evidence to a jury under the
count for money had and received to the use
of the plaintiff. (Schee v. ILissinger , 2 Binney,
325; S. P., Longehamp v. Kenny, Doug.,
137.)
8U
PI,ATT, J., delivered the opinion of the
court :
This is an action of assumpsit to recover a
balance of account for moneys *paid [*159
by Worrall & Williamson, of Liverpool, for
the use of the defendant.
The defendant, under the general issue and
notice of set-off, claimed a balance of account
due to him from Worrall & Williamson. The
statement of the accounts by the respective
parties, taken in connection with the other evi-
dence in the cause, show clearly that every
item of the account was founded upon and
arose out of a charter-party, dated the 17th of
November, 1809, and made at New York, by
the agent of Worrall & Williamson with the
defendant ; whereby it was stipulated that the
defendant should furnish the ship Columbia to
carry a cargo of cotton and other articles, for
Worrall & Williamson, from New York to
Fayal, where the cargo was, by the terms of
the charter-party, to be reshipped on board a
vessel to be provided by Worrall & William-
son ; and the defendant was expressly author-
ized to draw on them for the freight and de-
murrage. The defendant also reserved the
privilege of sending, by the same ship Colum-
bia, some goods of his own, to be consigned to
Worrall & Williamson, and to be sold by
them for his account ; and under that proviso
in the charter-parly, the defendant did ship on
board the Columbia, on his account, two hun-
dred tierces of flaxsecd accordingly. The ship-
ment and voyage expressly contemplated in
that agreement, were, confessedly, in violation
of a statute of the United State.
The charter party forms the basis of all the
conflicting claims of these parties, and that
being an illegal contract, neither party can
sustain an action for the violation of it. The
bills were drawn and paid (if at all) pursuant
to the express stipulations of that original con-
tract ; and, as between the parties to that ille-
gal transaction, melim- ent conditio possidentis.
Although Worrall & Williamson owed no
allegiance to the United States, yet, as they co-
operated in the act of violating our municipal
laws, they cannot have the aid of our courts to
indemnify them for their losses in that specu-
lation. This principle is sanctioned in the
cases of Holman v. Joh nson, Cowp. , 341, and
Waymell v. Seed, 5 T. R., 596 ; Hunt v. Knick-
erbocker, 5 Johns., 327; Hanway v. Eve, 3
Cranch, 242. For the same reason, ex turpt
causa, the defendant cannot be aided in recov-
ering the balance which he claims.
*This ground is decisive on the merits [* 1 6O
of the whole case, according to the evidence
admitted at the trial ; but the question, whether
Worrall & Williamson were competent wit-
nesses for the plaintiffs, remains to be disposed
of.
I think their depositions were properly ex-
cluded. Their discharge under the Bankrupt
Law in England, with their release of the sur-
plus, does not exonerate them from their debts
contracted here. The proceedings against
them as absent debtors are presumptive evi-
dence that they owe debts to creditors residing
here ; and besides, this defendant claims to
have a balance certified in his favor in this
very suit upon a contract made by Worrall &
Williamson in this State. The object of this
JOHNS. REP., 14.
1817
GRAVES ET AL. v. DELAPLAINE.
160
suit is to create a fund for the payment of the
debts of Worrall <fe William-son. They have,
therefore, a direct and certain interest in the
event of this suit, because the sequestration of
their property, as absent debtors, does not ex-
onerate them from their debts ; and their re-
lease to the trustees of the surplus cannot re-
store their competency ; non eonittat that there
will be any surplus. If the plaintiffs recover
JOHNS. REP., 11.
1 in this suit, it will increase the fund for pay-
1 ment of debts, for which Worrall & William-
| son are still personally liable in our courts ;
and if the defendant prevails in his set-off, and
I recovers a balance against them, it will lessen
j that fund, and increu.se their personal respon-
sibility. The defendant is, therefore, entitled
I tu judgment.
Judgment for defendant.
815
[END OF JANUARY TERM, 1817.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW YORK.
IN
MAY TERM, 1817, IN THE FORTY-FIRST YEAR OF OUR INDEPENDENCE.
STRANG «. FERGUSON.
Arbitration — Costs.
Under a general submission, in which there is no
mention of the costs of the arbitration, the arbitra-
tors may, notwithstanding, award as to those costs.
Citations— Kyd on Awards, 100 ; 2 T. R., 644.
THIS was an action of debt on an arbitration
bond, containing a general submission
" of all and all manner of action and actions,
cause and causes of action, &c. , quarrels, con-
troversies, &c., at any time heretofore had,
&c., or depending by and between the said
parties." The arbitrators awarded the costs
of two suits between the parties, to be paid by
the defendant to the plaintiff, and "also, that
the said Ferguson pay to the said Strang all
the legal costs of the arbitration between the
said parties, inclusive of the charges of the ar-
bitrators for their services." The defendant
admitted his liability for the costs of suit men-
tioned in the award, but contended that he
was not liable for the expenses of the arbitra-
tion, that being a matter not submitted to the
arbitrators.
The case was submitted to the court without
argument.
Per Curiam. The only question in this case
is, whether the arbitrators had any authority
to award concerning the costs of the arbitra-
tion. The submission is general ; no express
authority is given on the subject of costs. It
is said by Kyd, in his Treatise on Awards (p.
100), that an opinion long prevailed, that
162*] *under a submission in the common
form, arbitrators had no power with respect to
the costs of the arbitration, because they were
something that had arisen since the time of
the submission ; and many old cases are re-
ferred to in support of that principle. It seems,
however, to be now determined, that the
power of awarding the costs of the arbitration
is necessarily incident to the authority con-
tained in the general submission of the matters
in dispute. (2 T. R.,-644.) The plaintiff is,
therefore, entitled to judgment for $71.20, pur-
suant to the stipulation in the case.
Judgment for the plaintiff.
Cited in— 2 Cow., 652 ; 22 Wend., 128 : 4 Denio, 251 ;
13 Barb., 91.
816
VELIE ET AL., Surviving Executors of BAL-
TUS VELIE,
T).
MYERS, Impleaded with WEEKS and CARMAN.
Pleading— Plea to Scire Facias — Conveyance,
of Land Charged in Execution — Valid under
Statute.
Where a person charged in execution conveys
land in trust to be disposed of for the payment of a
debt, with the privity and consent of the creditor,
such conveyance is good within the 12th section of
the Act Concerning Judgments and Executions (I
R. L., 504). To a scire facias against the heirs and
terre-tenants of a defendant who had died charged
in execution, the defendant who was in possession
of land which was of the original defendant at the
time of docketing the judgment against him,
pleaded that A, the original defendant, being in-
debted to him in the sum of $1,000. and to other per-
sons in smaller sums, with the privity and consent
of the defendant and his other creditors, conveyed
the land in question to B and C, in trust to pay the
debt of the defendant, and apply the surplus in pay-
ment of the other debts ; that the land was not of
sufficient value to pay the defendant's debt, but that
he consented to accept a conveyance of the same in
payment and satisfaction of his debt, and that the
same was conveyed to and accepted by him in pay-
ment and satisfaction; this was held a good plea
under the 12th section of the Act Concerning Judg-
ments and Executions, and that it was unnecessary
to set forth who were the other creditors of A, or
what was the amount of their debts.
Citation— 1 N. R. L., 504.
THE plaintiffs, and other persons since de-
ceased, having, as executors of Baltus
Velie, recovered a judgment against Isaac
Weeks, since deceased, in this court, on the
18th of August, 1800, for $417.24, issued a
scire facias, tested in January Term, 1815,
against the heirs and terre-tenants of Weeks,
by virtue of which Myers was summoned as
terre-tenant of a house and lot in Poughkeep-
sie, the land and tenement of Weeks, on the
day of docketing the judgment, and appeared
and pleaded ; and Weeks and Carman, who
were summoned as heirs, made default.
Myers, in his plea, stated that on the 16th
of February, 1802, Weeks was charged in exe-
cution on the judgment against him, and was
committed to the keeper of the jail in Pough-
keepsie, in Dutchess County, where he was
detained until the time of his death, which
happened on the 31st of July, 1814 ; and that
on the 30th of July, 1814, he was justly in-
debted to the defendant for board, washing,
JOHNS. REP., 14.
1817
VKLIK ET AL. v. MYERS.
and house rent, which he had before that
1O3*J *time, at his own request, received of
the defendant, in the sum of $1,000, which
then remained due ; and that he was also in-
debted to sundry persons other than the plaint-
iffs and the defendant, in smaller sums, whose
debts against him then remained unpaid ; that
on the same day, Weeks, wrth the privity and
consent of the defendant, and his other credit-
ors to whom he was indebted in small sums,
sold and conveyed the house and lot before
mentioned, for the payment of the defendant
and his other creditors, and particularly of the
payment of the defendant ; that the sale was
boiiajult ; and that, for the purpose of making
these payments, Weeks, on the same day, by
deed of bargain and sale, bearing date on that
day, conveyed, in fee simple, to the defend-
ants, Solomon Weeks, and H. Car man, the said
house and lot ; and that this sale was made
for the express purpose and trust of having the
same sold and disposed of by them, for the
paymeut of the defendant the debt due to him;
and that if a surplus should remain, it should
be applied in payment of other debts, to per-
sons other than the plaintiffs ; that the house
and lot were not of sufficient value to pay the
defendant, and could not be disposed of for a
sum sufficient for that purpose; that the de-
fendants Weeks and Carman, finding the value
of the house and lot to be less than the sum
due to the defendant Myers, but that he would
consent to take a conveyance of the same in
satisfaction of his debt, Weeks having no other
property out of which it could be paid, they,
on the 20th of August, 1814, in pursuance ot
the purpose for which the house and lot had
been conveyed to them, and for the payment
of the said debt, by a deed of bargain and sale,
on that day, conveyed the same to the defend-
ant in fee simple, in payment and satisfaction
of his debt, who received the conveyance in
payment and satisfaction of the same accord-
ingly, and is now seised and possessed of the
same under that sale and conveyance.
To this plea the plaintiff demurred and as-
signed for special causes of demurrer : 1.
That the plea did not set forth the names of the
persons other than the defendant Myers, to
whom Isaac Weeks was indebted, nor the
amount of the said debts respectively. 2. That
it tendered several and distinct issues, upon
-rviT.il and distinct facts, all material in the
case. 3. That the averment in the plea that
the premises in question were sold and con-
veyed for the purpose of paying the defendant
ami the other creditors of Weeks, is too mi
lt$4*J certain for the plaintiffs to take *any
issue thereon. 4. That the plea is double and
wants form. The defendant joined in de-
murrer.
Mr. Oakley, in support of the demurrer, con-
tended that the sale to Weeks and Carman was
void under the Statute of Frauds, and the
trust intended to be created by that convey-
ance was incapable of being enforced. The
case did not come within the.clause of the 12th
section of the Act Concerning Judgments and
Executions. (Seas. 36. ch. 50 ; 1 N. It L.,
500, 504.) It certainly did not come within
the letter of the Act, and many evils would re-
sult if the court should go beyond the letter
and extend it by any liberal construction. The
JOHNS. RBP. 14. N. Y. It, 5.
• property in question ^was not exonerated from
the judgment of the 'plaintiffs at the time of
Weeks' death. The legal estate was in trustees
and the trust not then executed. To give to
the Statute so broad a construction as to em-
brace this case, would open the door to fraud.
Mr. Bloom, contra. The Statute has altered
: the common law in this respect. *By the coin-
mon law a ea. sa. was the highest satisfaction
in law, and after the person of the debtor was
charged in execution, his property could not
betaken. (Hob. 52; 6 T. It, 526.) No de-
cision of the English courts on a similar clause
In the Statute of 21 Jac. I., ch. 24, from which
our Act was taken, are to be found ; but the
intent of the Act is manifest, and this case, if
not within the words, is clearly within the in-
tention of the Statute.
THOMPSON. Ch. J., delivered the opinion of
the court :
This case comes before the court on a de-
murrer to the plea to a scire facias to revive a
judgment against Isaac Weeks. The plea is
founded upon the 12th section of the Act Con-
cerning Judgments and Executions (1 N. It L.,
504), and contains, substantially, every neces-
sary allegation to bring the defendant within
the Statute and protect the sale made by Weeks
whilst a prisoner in execution. Some of the
matters set forth in the plea are mere induce-
ment. The substance of it, however, is that
the lands* sought to be charged in execution
had been bona Jide sold by Weeks for the pay-
ment, of debts due from him to some of the
creditors, and that this was done with the
privity and consent of Myers, the creditor, and
in discharge of his debt.
It is no objection to the sale made by Weeks
that it was in trust for the payment of Myers
and his other creditors. The *Act [*lOo
only requires that the sale should be boiMjide
for the payment of his creditors, and the money
paid or secured to be paid to creditors, with
their privity and consent. I do not see how
this can be considered a void trust, if the deed
was, upon its face, an absolute deed. The
consideration was to be paid to Myers, the
creditor, and he could have sustained an action
for the -same. An action of (usumpxit will lie
for land sold and conveyed. The conveyance
is a good consideration for the promise ; and
if the trust was expressed in the deed, it could
be enforced in a court of chancery. But all
objection on this ground is removed, as, from
the facts set forth in the plea, the trust has
been cxeculed, and a discharge given by Myers
of his debt against Weeks. Although the plea
contains many facts, yet they are facts leading
to and establishing the single point, that the
sale was made boiia Jide for the paymeut of the
creditors of Weeks. The plea is, therefore,
good in substance.
The special causes of demurrer are not well
founded. The only one that has the appear-
ance of plausibility is, that the names of the
other persons besides Meyers, to whom Weeks
was indebted, and the amount of debts re-
spectively are not set forth in the plea. But
it m'ust be recollected that the plea states that
the sale was made particularly and specially
for the payment of Myers' debt, and the sur-
plus only to be paid to other creditors ; and
52 817
165
SUPREME COURT, STATE OP NEW YORK.
1817
that the value of the land so conveyed was
insufficient to pay and satisfy the debt due to
Myers. It was, therefore, immaterial who the
other creditors 'were or what was the amount
of their debts. We are, accordingly, of opin-
ion that the defendant is entitled to judgment
on the demurrer.
Judgment for (he defendant.
Cited in— 9 Wend., 618.
166*] *DRAKE ET AL. t>. BARRYMORE.
Pleading and Practice — Trespass — Joint Plea of
Not Guilty — School Officers — Justification.
In trespass against several defendants who jointly
plead not guilty, one of them against whom there
is no evidence, may be acquitted and a verdict taken
against the others.
In an action of trespass against the trustees or
officers created by the Act Relative to Common
Schools, they are not entitled to give evidence of a
justification under the general issue.
Citations— 1 Chit. PL, 75 ; 3 East, 62; Cowp., 610:
2 Cai., 108 ; 1 Saund., 28, n. (2).
IN ERROR, on cerfiorarito a justice's court.
Barrymore brought in an action of trespass
before the justice, against Drake, Corwin and
Curry, for taking and carrying away the
plaintiff's hog. The defendants in the court
below pleaded not guilty. At the trial, the
plaintiff proved that Drake, one of the defend-
ants, came to his house alone and carried away
the plaintiff's hog, without showing any privity
or command of the other two defendants. Cor-
win and Curry, the other defendants, there-
upon insisted that they ought to be acquitted ;
but the justice decided that as they had plead-
ed jointly with Drake, they were to be consid-
ered as all guilty of the trespass proved against
him.
The defendants then offered to prove that
Corwin and Curry were trustees -of a school
district, and had regularly issued a warrant to
Drake as collector of that district, and that he
took the hog by virtue of that warrant. This
evidence was objected to and overruled by the
justice on the ground that it was inadmissible
under the general issue. A judgment was
given for the plaintiff against all the defend-
ants for the value of the hog, with costs. The
return further stated that "the plaintiff then
released and discharged the said Corwin and
Curry of and from the recovery so had against
them."
Per Curiam. The justice erred in deciding
that upon a joint plea of not guilty two of the
defendants could not be acquitted, though
there was no evidence against them. (1 Chitty
PL, 75 : 3 East, 62 ; Cowp., 610.) There is a
distinction in this respect between a joint plea
of the general issue and a joint plea of justifi-
cation. In the latter case, if the plea is not
supported as to all, neither of the defendants
can be protected under it. (Schermerlwrn et al.
v. Trip, 2 Caines, 108 ; 1 Saund., 28, n. 2.)
As to the second point, the justice decided
correctly, that the justification under the col-
lector's warrant could not be admitted under
a plea of not guilty. It is not a case within
the Statute allowing to certain public officers
818
that privilege ; and the Act Relative to Com-
mon Schools, which creates these officers, is
*silent in this respect. The judgment [* 167
must, therefore, be reversed on the first
ground.
In returning that the plaintiff had released
two of the defendants from the judgment, the
justice went beyond his office. The plaintiffs
in error have no opportunity of controverting
that fact or questioning its legal effect. AVe
cannot, therefore, take notice of it on this-
record.
Judgment reversed.
Cited in— 1 Wend., 216.
MARSH «. W1CKHAM AND WICKHAM.
Sales — Distinguished From a Delivery on Com-
mission.
The defendants having received a quantity of
leather from the plaintiff, gave him a receipt in
the words : " Received the following leather, viz ;
&c., which we agree to pay for at the following
rate: one shilling deduction to be made on each
side of upper leather from the price above, and
two shillings per pound from the sole leather,
with the privilege of returning any quantity of the,
said leather which may remain on hand when a set-
tlement is made; " it'was held that this was a sale
to the defendants, and not a delivery to them to sell
on commission, and that parol evidence was inad-
missible to explain the transaction.
THIS was an action of assumpsit, tried be-
fore Mr. Justice Yates, at the Ontario Cir-
cuit, in 1816.
The plaintiff declared on the following re-
ceipt : " Received. Troupville, 13th January,
1813, from Mr. Samuel T. Marsh, the follow-
ing leather, viz : sixteen sides upper leather "
(the numbers and prices of which are set forth),
"twenty-four sides sole leather, three hundred
forty-eight pounds and one half, which we
agree to pay for at the following rate : one shil-
ling deduction to be made on each side of
upper leather from the price above, and two
shillings per pound for the sole leather, with the
privilege of returning any quantity of the said
leather, which may remain on hand when the
settlement is made Wickham & Co.
Amount of upper leather
do.- sole leather
£24 2
34 17
£58 1&
Subject to a deduction of 1«. per side."
The defendants pleaded the general issue,
and gave notice that they would give in evi-
dence, on the trial, that the leather was left
with them to be sold on account of the plaint-
iff ; that they accounted for all that was sold,
and paid the value thereof to the plaintiff; and
that the residue was burnt with the store of
*the defendants, by the enemy, during [* 1 68
the late war between Great Britain and the
United States.
The execution of the receipt was proved,
upon which there was the following indorse-
ment, signed by the plaintiff; "Received,
Sodus. 5th July, 1813, from Wickham & Co., 4
$16.50, being the amount, by computation, of
upper leather sold on the within account.
i The value of sole leather to be paid as soon as
JOHNS. REP., 14.
1817
BllACKET V. M'NAIR.
168
the quantity sold can be ascertained ; and if it
should appear that any greater quantity of up-
per leather had been sold than mentioned
above, the difference to be settled as soon as
ascertained." The defendant offered to prove
that after giving the receipt, and before the
indorsement thereon was made, the store of
the defendants, with the leather, except what
had been sold, was burnt by the enemies of the
country ; and that at the time of making the
indorsement, the plaintiff agreed to accept
payment of what had been actually sold of the
leather, in discharge thereof. This evidence
was objected to, and excluded by the judge,
and the plaintiff having proved a demand of
the leather or of payment, the jury found a
verdict for him for the amount of the leather,
deducting the sum mentioned in the indorse-
ment on the receipt.
The defendants now moved for a new trial.
Mr. Woodrcorth, for the defendants, con-
tended that they were bailees of the property
specified in the receipt, and were not answer-
able for more than they had sold ; or only for
the proceeds not paid over ; and that evidence
offered to show that the property had been de-
stroyed by the public enemy, was admissible.
The notice was sufficient for that purpose ;
and even if there had been no notice, the evi
dence was admissible under the general issue.
The indorsement on the receipt explains the
meaning of the parties, and shows that the
leather was delivered to the .defendants to sell
for the plaintiff, on certain terms ; and that it
was not a purchase by them. (De Fondear v.
Stuttienkirk, 3 Johns., 170.) If there was any
doubt arising on the face of the receipt, it
must be removed by this indorsement.
Mr. Yelcerton, contra, insisted that there
was an absolute sale of the leather to the de-
fendants, subject to a certain deduction from
the price, and with the privilege of returning
what might remain in the hands of the de-
1GJ)*] fendants, when the parties came *to a
settlement of the account. (Shep. Touch.,
224 ; Noy's Max., 88 ; 7 East, 572 ; 2 Cora, on
Cont., 210. 212 ; 2 Bl. Com., 448.) The par-
ticular mode of paying the vendor cannot
change the nature of the contract. Again ;
the indorsement of the receipt is evidence
only that the plaintiff was willing to give a
reasonable lime for the payment or the return
of the leather. The rules of evidence are as
strictly applicable in the case of the notice as in
that of a special plea ; and the evidence of-
fered was not admissible. (8 Johns., 455 ; 10
Johns., 140.) The notice sets forth no agree-
ment on the part of the plaintiff to accept
payment for what had been actually sold of
the leather, in discharge of the contract.
Per Curiam. The point in this' case is.
whether the leather in question was delivered
to the defendants i <> self for the plaintiff upon
commissions, or whether it was an absolute
purchase ; and this must be collected from the
receipt which wa-s given at the time when the
leather was received. This receipt is some-
what obscurely drawn ; but the several stipula-
tions and provisions in it are much more rec-
oncilable with the construction that the
leather was purchased, than that it was re-
ceived by the defendants to sell on commission.
JOHNS. HEP., 11.
The rate at which the defendants were to pay,
or the deduction which was to be made from
the price fixed to the leather, is inconsistent
with the construction that it was a mere de-
livery to sell on commissions. This could not
be the rate of commissions, for the deduction
was to be one shilling on each side of the up-
per leather, and two shillings on each pound
of the sole leather. The privilege which the de-
fendants had of returning what remained un-
sold of the leather, was a stipulation for the
benefit of the defendants in their pavment for
the leather. If it was a delivery to sell on com-
missions, there would have been some provis-
ions as to compensation or rate of commissions.
But there is none, for it appears clearly that
the deduction mentioned in the receipt "could
not have been intended as such. By the re
ceipt, the defendants also stipulate to pay for
the leather at a certain rate : this is not con-
sistent with the motion of its being a bailment.
A certain deduction was to be made in the
price, which must be understood to be the
price of purchase. It must therefore be con-
sidered as a sale, with the privilege to the de-
fendants of returning what remained unsold.
The reason of the particularity in the designa-
tion or description of the leather, might have
been occasioned by the privilege to return
what remained unsold, so *as to pre- [*17O
vent imposition. The parol testimony was in-
admissible. If there is any ambicuity, it is
latent and not explainable. If it was a pur-
chase, the destruction by fire was the loss of
the defendants alone. The motion for new
trial must, therefore, be denied.
New trial refused.
Cited in— 5 Barb., 519 : 28 How. Pr., 141.
BRACKET v. M'NAIR.
Contracts — Transportation of Goods — Damage .
In an action for the breach of a contract to tram-
j port goods from A to B. the difference between the
value of the goods at A, and their increased value
at B, is a proper measure of damages.
THIS was an action of asstimpsit, which was
tried before Mr. Justice Yates, at the
Onondaga Circuit, in June, 1816.
At the trial, a written agreement between the
parties, made on the 19th Ausrust, 1809, was
I produced in evidence, by which the defendant
agreed to forward for the plaintiff four hun-
dred barrels of salt, the property of the plaint-
I iff, then being in store with the defendant,
I marked J. Bracket, to Queenston. for $1 per
barrel for boating, storage and freight of the
! same, from Oswcgo Falls to Queenston ; that
the defendant was to receive the money for
the freight on or before the the 1st day of
| February thereafter, and that he would ship
half of his salt the first trip his vessel should
j make, and the remainder the second trip, or
sooner if possible. It was proved that between
the time of making the contract and the time
when the Collector of Oswego had received in-
formation of the Non-intercourse Act of the
United States, which was on the evening of the
80th of August, the defendant's vessels had
sailed for Niagara or Little York, without tak-
ing any part of the plaintiff's salt. The plaint-
819
170
SUPREME COURT, STATE OF NEW YORK.
1817
iff also proved what was then the price of salt
at Oswego and at Queenston.
The defendant proved, by one Richmond, that
the plaintiff had said that he , forwarded his
salt to Thomas Clark, of Queeuston, in the
year 1809 and by Hugarin, another witness,
that the witness in 1809 carried two hundred
bushels of the plaintiff's salt, by his direction,
to Porter, Barton & Co., of Lewiston, and re-
ceived his pay therefor from the plaintiff.
The defendant then offered in evidence sundry
receipts, signed by James L. Barton, for Por-
ter Barton & Co., and several receipts, signed
171*] by James Kirby, for *Thomas Clark,
for salt, marked J. B. and J. Bracket, and of-
fered to prove the handwriting of the persons
who subscribed them. This testimony was
objected to by the plaintiff's counsel as im-
proper, without the production of the agents
themselves as witnesses ; and the judge re-
jected the evidence. The defendant then
moved for a nonsuit, on the ground that a
breach of the contract was not proved ; but
the judge refused the nonsuit, and charged the
jury that a breach of the contract was suf-
ficiently proved, and that the measure of dam-
ages which the plaintiff was entitled to recover,
was the difference in the value of four hun-
dred barrels of salt at Oswego, and the value
of the same at Queenston on the 1st of Septem-
ber, 1809 ; and the jury accordingly found a
verdict for the plaintiff for $»00.
The defendant moved for a new trial, and
the case was submitted to the court without
argument.
Per Curiam. The testimony m the case
shows that several vessels, under the charge of
the defendant, sailed from Oswego after the
contract was entered into with the plaintiff,
and before any information was received at
that place of the Non-intercourse Law between
the United States and Great Britain ; and no
reason whatever is assigned why. the plaintiff's
salt was not transported. The evidence does
not show, in any manner, a performance of a
contract by the defendant, or any excuse for
the non-performance. The case is very im-
perfectly drawn, or must have been very ob-
scurely explained upon the trial. Whether the
testimony of Richmond and of Hugarin, as to
the transportation and delivery of salt of the
plaintiff's to Thomas Clark, of Queenston, and
to Porter, Barton & Co., of Lewiston, has any
relation to the four hundred barrels mentioned
in the special agreement, is entirely unex-
plained. The defendant, according to the
facts stated in the case, has failed to perform
his contract in the transportation of the salt ;
and if so, the rule of damages adopted by the
judge was no more than giving to the plaintiff
an indemnity for the injury sustained by the
breach of contract by the defendant. He has
recovered no more than the difference between
the value of his salt at Oswego, from whence
it was to be taken, and at Queenston, the
place to which it was to be carried. Whether
the evidence of the handwriting to the re-
ceipts offered in evidence was properly re-
jected is unimportant ; these receipts do not
appear to have any connection with this trans-
172*] action, *from anything disclosed in
this case. The motion for a new trial must,
accordingly, be denied.
820
Motion denied.
Cited in— 21 Wend., 349 ; 8 N. Y., 343 ; 47 N. Y., 33 ;
19 Barb., 47; 22 Barb., 289; 29 Barb., 640; 58 Barb.,
223: 5 Bos., 633: 2 Hall, 401; Abb. Adrn., 219.
FITCH AND BUCK v. FORM AN.
Contracts — Covenant — Release by One of Two
Joint Covenantees, Binding on the Other —
Delivery.
Where A covenants with B and C to do a certain
act by a certain day, and B afterwards, l»y writing
under seal indorsed upon the original agreement,
releases A from a performance within the time men-
tioned in the agreement, or extends the time of
performance ; such release is a bar to an action of
covenant, in which the breach assigned is, the non-
performance of the act by the day mentioned in
the agreement.
It is no objection to such release that it was in-
dorsed upon the agreement, and remained after the
execution of it with the plaintiffs ; for, if a formal
delivery were necessary, it will be presumed to
have been made, and that it remained with the
plaintiffs with the consent of the other party.
A release by one of two joint covenantees is bind-
ing on the other.
Citation — 3 Johns., 70.
rpHIS was an action of covenant, which was
J- " tried before Mr. Justice Yates, at the
Cayuga Circuit, in June, 1816.
The plaintiffs declared on an agreement
dated the 17th July, 1811, between the plaint-
iffs and defendant, by which the latter coven-
anted to pay the plaintiffs $2,500, in case a
certain copper mine in Woodbridge, in the
State of New Jersey, on being opened and
sunk twenty-five feet deep, or otherwise ex-
plored, should be of such richness and quality
as to afford the ordinary profits of copper
mines in Wales and Cornwall, in England,
which are worth working, to be paid in two
equal annual installments from the time the
quality of the mine should be ascertained ;
and the defendant also covenanted to open
the mine, and sink the shaft thereof; and
otherwise explore the mine, in a reasonable
and satisfactory manner to ascertain the quality
thereof, before the expiration of one year from
the first of December next after the date of
the agreement, or in case of his neglect, to pay
the sum of $2,500 absolutely. The breach as-
signed was that the defendant had not ex-
plored the mine before the expiration of one
year from the said first day of December,
whereby he became liable to pay the plaintiffs
the sum of $2,500 absolutely.
The defendant pleaded non estfactum, with
notice subjoined that he would give in evi-
dence on the trial a release under seal, exe-
cuted by Buck, one of the defendants, on the
6th of April, 1813, in the words following: "I
hereby, 6n my part, release the said Joshua
Forman from any liability by reason of the
said mine not being explored, agreeably to the
terms of the above contract, by the 1st day of
December last, and do consent that the time
for exploring and sinking the same be extended
to the 1st day of December next, in considera-
tion of $1 to me paid."
*At the trial, the agreement men- .
tioned in the declaration was produced and
read in evidence, and the defendant proved the
handwriting of Buck to the instrument men-
JOHNB. REP., 14.
1817
CI.UTE v. WIGGINS.
173
tioned in bis notice, which was indorsed upon
the original agreement. A verdict was taken
for the plaintiffs, subject to the opinion of the
court on the case above stated.
Mr. II. liletcktr for the plaintiffs. The re-
lease signed bv Buck was on his own part
only ; it did not* bind Fitch. A co-obligee may
release on his own account. (Bac. Abr. , He-
lease, G.) It is not a general release, in the
names of both the plaintiffs, but of one only
for himself. But admitting that a release by
one of two joint obligees may be pleaded in
bar to a joint action, it must "be by deed or a
technical release under seal. The plea is non
e*t fact um, &i\(\ nothing special can be given in
evidence under it. In an action of covenant,
there is no general issue to entitle the defend-
ant to give notice of special matter to be of-
fered in evidence, pursuant to the Statute. But
if the notice was proper in this ca*e, it must
be treated as a special plea ; and it states the
writing to be a release under seal or a deed.
Now there was no proof of any delivery. which
is essential to a deed. When the covenant was
first produced at the trial, this writing or re-
lease was found indorsed upon it. There can
be no delivery without an acceptance. (1
Johns. Cas., 114 ; 12 Johns., 421.)
Again ; the release contains a condition pre-
cedent, that the defendant should open and
explore the mine before the end of one year
from the first day of December, or pay the
sum of $2,500 absolutely. (Com. Dig., Condi-
tion B, 1; 1 Saund., 820, n. 4 ; 1 Str., 569; 3
Johns., 888; 3 Bos. & P., 574.) The intent
and meaning of the parties must be taken from
the instrument itself. By not opening the
mine within the time limited, the engagement
of the defendant to pay the $2,500 became
absolute.
Mr. E. WUliami, contra. This action is
brought to recover the $2,500, as if it was an
absolute contract to pay that sum as stipulated
damages, 'in case the mine was not opened by
first day of December. But the true construc-
tion, of the instrument is, that the defendant
was to pay the plaintiffs $2,500, when the
value and probable profits of the mine were
ascertained ; and he binds himself, under a
penalty, to open the mine for that purpose by
the first day of December. In Dennis v. Cum-
WI'H*. 8 Johns. Cas., 297, where the defendant
promised, in case he failed to perform his
1 74*] *covenant, to pay the plaintiff $2,000
damages, this court considered it as a penalty,
and not as liquidated damages. So the
Court of C. B., in Astley v. Weldon, 2 Bos. &
P., 346, on a similar agreement, held the sum
stipulated to be paid, in case of a failure of the
party to perform, to be in the nature of a
penalty and not as liquidated damages.
The breach assigned in the plaintiff's dec-
laration is the failure of the defendant to open
the mine by the first day of December. But
the release executed by Buck discharged the
defendant from all liability for damages for
not opening the mine by the first day of De-
cember, and leaves the plaintiffs to their
remedy on the other part of the agreement. It
has been repeatedly decided, that a release bv
one joint owner, partner or covenantee, will
bind the other. (Piernon v. Hooker, 3 Johns.,
68 ; Ruddock' » case, 6 Co., 25 ; 7 Johns., SOT,
JOHNS. RKP., 14.
I 210.) It is not necessary that it should pur-
port to be a discharge by both of the cove-
nantees. It is sufficient if it be the release of
one of them.
If the technical objection, that the release
was never delivered, so as to render it a "valid
deed, is to be sustained, a new trial ought to
be granted, so as to allow the defendant an
opportunity to give further evidence of that
fact. In Jackson, er dem. M'Crea, v. Dunlap,
1 Johns. Cas., 114, Kent, «/.. thought there was
delivery enough of the deed.
TUOMPSON, Oh. J., delivered the opinion of
the court :
It is unnecessary, in this case, to decide
whether the $2,500 mentioned in the covenant
is to be considered as a penaltv, or in the
nature of stipulated damages. Viewing it in
either light, the plaintiffs cannot recover any-
thing under the present declaration. The
breach assigned in the declaration is, that the
defendant did not open the mine and sink the
shaft, and explore the mine by the first day of
December, in the year 1812. But. all claims
on the defendant for any forfeiture or pay-
ment, by reason of the mine not having been
opened and explored by that time, were dis-
pensed with by the instrument indorsed upon
the back of the covenant, under the hand and
seal of Buck, one of the plaintiffs, dated on
the 6th day of April, 1813. It purports to be
a release to the defendant for any liability by
peason of the said mine not being explored by
the first day of December then last past, and
a consent that the time for-exploriug should
be extended to the first day of December next.
This instrument, thus indorsed, must have the
operation, either of an absolute release of all
'liability upon the covenant, or of a [*175
modification of it. bv an extension of the time
withm which the mine was to be explored. In
either point of view, it must defeat the present
action.
The want of an actual delivery of the in-
strument to the opposite party, cannot destroy
its legal operation. It is indorsed upon the
original covenant, and could not be delivered
to and retained by the defendant. Even if a
delivery, pro forma, was necessary, it ought to
be presumed • and that the release was after-
wards retained by the plaintiffs, by mutual
consent of the parties, knowing that it must
necessarily accompany the covenant, wherever
it went, being indorsed thereon ; besides, no
objection on this ground was made at the trial.
This instrument having been signed by only
one of the plaintiffs, cannot alter its legal
operation. They had a joint personal interest,
and the release or modification by one would
bind the other. (8 Johns., 70.) We are ac-
cordingly of opinion that a judgment of non-
suit must be entered, pursuant to the stipula-
tion in the case.
Judgment of nonsuit.
Cited in— 11 Wend., «63; 28 N. Y.,228; 17 Abb. £r.,
218; 1T.4C..406.
CLUTE t. WIGGINS.
Innktepem—LicMe for Goods Stolen of Quest*.
Innkeepers an? changeable for the Roods of their
K»"-M.-. lost or stolen out of their inns; and to render
VJ1
175
SUPREME COURT, STATE OF NEW YORK.
1817
them liable, it is not necessary that the goods should
be delivered into their special keeping ; nor to prove
negligence.
As where a sleigh loaded with wheat, &c., was put
by the guest into an outhouse appurtenant to the
inn, where loads of that description were usually
received, and the grain was stolen during the night,
the innkeeper was held responsible for the loss.
Citations— 8 Co., 32 ; 5 T. R.. 273.
IN ERROR, on cerliorari to a justice's court.
Wiggins, a wagoner, brought an action on
the case against Clute, a tavernkeeper to re-
cover the value of several bags of wheat and
barley, stolen from the sleigh of the plaintiff
during the night, while he was entertained as
a guest in the house of the defendant.
At the trial before the justice, it was proved
that the defendant kept a tavern, in the town
of Half Moon ; that the plaintiff came to the
defendant's house with a load of wheat and
barley, and was there received as a guest for
the night ; that his horses were put into the
plaintiff's stable, and his sleigh. with the wheat
176*] *and barley, "was put into the wagon-
house of the plaintiff, where it had been usual
for the defendant to receive loads of that de-
scription." The next morning it was discov-
ered that the door of the wagonhouse had
been broken open, and all the wheat and
barley stolen from the plaintiff's sleigh.
The justice gave judgment for the plaintiff
for $25 with costs.
Mr. Weston, for the plaintiff in error, con-
tended that the general rule of law as to the
responsibility of innkeepers did not apply to
this case, as Wiggins had deposited his goods
in the wagonhouse, and had not delivered
them into the special and peculiar custody of
the landlord himself. It is true that for the
horse of a traveler the innkeeper is liable, for
he has a profit in keeping the horse (3 Bac.
Abr., Inns and Innkeepers, C, 5 ; 1 Comyn's
Dig. , 229) ; but from keeping the goods he
could derive no benefit. And no negligence is
shown that could make the defendant liable as
a bailee.
Mr. Skinner, contra, insisted that to make
the innkeeper liable, it was not necessary that
the goods of the guest should be actually de-
livered to him to keep. (1 Colye's case-, 8 Co.,
32.) The case of Bennet v. Miller, 5 T. R.,
273, decided by the Court of King's Bench,
was a much .stronger case than the present.
There the servant to the plaintiff came to the
inn of the defendant, and asked the defend-
ant's wife to take care of his goods until the
next market day, which she refused to do, be-
cause the house was full of parcels. The serv-
ant then sat down in the inn and had some
liquor, and put the goods on the floor behind
him ; and when he got up, after sitting a short
time, the goods were missing. The court held
that as the servant was sitting in the inn as a
guest, he was entitled to the same protection
for his goods as any other guest ; and that the
goods need not be in the special keeping of the
landlord, to make him liable.
Per Curiam. The liability of an innkeeper
for such losses, arises from the nature of his
employment. He has privileges by special li-
cense. He holds out a general invitation to
all travelers to come to his house, and he re-
ceives a reward for his hospitality. The law,
822
in return, imposes on him corresponding du-
ties, one of which is to protect the property of
those whom he receives as guests.
*On general principles applicable to [*177
this subject, the defendant is liable for the
loss sustained in this case. He received the
plaintiff as his guest, for the night, with his
loaded sleigh and horses. The sleigh with its
contents, was put into an outhouse appurte-
nant to the inn, "where it had been usual for
the defendant to receive loads of that descrip-
tion." The doors of this wagonhouse were
broken open, from which it may be inferred
that the building was close, and the doors fas-
tened in such a manner as to promise security.
The bags of grain, therefore, may be deemed
to have been infra hospitium ; and being so, it
is not necessary to prove negligence in the inn-
keeper, to make him liable for the loss.
(Colye's case, 8 Co., 32; Bennet v. Miller, 5 T.
R., 273.)
Judgment below affirmed.
Cited in— 21 Wend., 283: 33 N. Y., 574 ; 44 N. Y.,
188 : 5 Barb., 564 ; 12 Abb. Pr., 229 ; 19 Abb. Pr., 193 ;
Edm., 275 ; 3 Rob., 3g6 ; 2 E. D. Smith, 150 ; 4 E. D.
Smith, 92.
DOUGLASS v. CLARK.
Bond of Indemnity — Plea of Non Damnificatus,
Good.
When the condition of a bond recites another
bond, by which the plaintiff and one J. S. were
bound to the United States for the payment of cer-
tain duties due from J. S., and then the condition
is, that if the defendant shall well and truly pay off
and discharge the said bond, and hold the plaintiff
harmless and indemnified from the payment there-
of, the obligation to be void ; this is not to be con-
sidered as an undertaking to pay off the recited
bond, but as a bond of indemnity only ; and there-
fore a plea of rum damnificatiis, in an action upon
such bond, is good.
Citations-1 Saund.. 117, «. 1 ; 1 Bos. & ?., 688.
was an action of debt on bond.
J- ' The condition of the bond, as set forth
in the oyer, was as follows: "Whereas the
said Zebulon (the plaintiff) and Levi Rice here-
tofore executed their bond to the United
States, conditioned to pay the Collector of the
Twentieth Collection District of the State of
New York, the amount of duty payable by
the said Levi Rice, by virtue of the Act of
Congress of the United States, passed the 24th
day of July, 1813, entitled An Act Laying
Duties on Licenses to Distillers of Spirituous
Liquors, on two certain stills of the said Levi
Rice, situate in Lenox, as by the said bond may
more fully appear : Now, therefore, if the said
Sylvester Clark, above bonded, shall well
and truly pay off and discharge the said bond,
and hold the said Zebulon harmless and in-
demnified from the payment thereof or any
part thereof, and from any all costs, damages
and charges thence arising to the said Zebulon,
then the above written obligation to be null
and void ; otherwise, to be and remain in full
force and virtue." The defendant pleaded :
1. Non est factum. 2. Non damnificatus ; to
which last plea there was a general demurrer,
and joinder in demurrer.
The case was submitted to the court with-
out argument.
JOHNS. REP., 14.
1817
SHIPPEY v. HENDERSON.
178
178*] *PerCuriam. Whether this plea be
good or not, will depend upon what is to be
deemed the true construction of this. bond. If
the defendant is to be considered as under-
taking to pay off and discharge the recited
bond, the plea is bad ; but if it be consiilered
a bond of indemnity, and to save the plaintiff
harmless from all damages, by reason of the
recited bond, the plea is good. (1 Saund., 117,
n. 1; 1 Bos. & P.. 688.) We are' inclined to
think the good sense and sound interpretation
of the bond is according to the latter construc-
tion, and that the words "pay off and dis
charge" were thrown in, without being under-
stood to require Ihe defendant actually to pay
off such bond.
This construction is much strengthened by
the circumstance that it appears ' from the re-
cited bond that the defendant was not the per-
son who was to pay the duties. They were
due from Kice, with whom the plaintiff ,was
bound. We are accordingly of opinion that
the defendant is entitled to judgment on the
demurrer.
Judgment for the defendant.
Overrulod-1 Hill. 147.
Cited in— 8 Cow., 085; 7 Wend., 502 ; 8 Wend., 457 ;
2 * md. CH.. 2».
SHIPPEY v. HENDERSON.
Discharge under Insolvent Act — Subsequent
Promise i* Binding — Plaintiff may Declare
on Original Cause of Action.
Where a debt having been barred by the defend-
ant's discharge under an Insolvent Act, he after-
wards promises to pay it, it is proper for the plaint-
iff to declare upon the original cause of action
without noticing the subsequent promise. To a
declaration in assumuxit, the defendant pleaded his
discharge under an Insolvent Act; the plaintiff re-
plied that subsequently to the plaintiff's discharge,
and before the commencement o/ the suit, the de-
fendant assented to, ratified, renewed and con-
firmed the promises mentioned in the declaration.
Ili-lil, that the new promise was sufficiently laid,
and the replication waa not a departure from the
declaration.
Citation-Chitty PL, 40: 3 Bos. & P., 350, n. 7.
THIS was an action of assumpxit. The dec-
laration contained counts for goods sold
and delivered, and for money had and re-
ceived, in which the promises were laid on the
1st of May, 1815. The defendant pleaded :
NOTB. — Contracts — Consideration — Debt Dis-
charged, as far anew promise.
A discharge merely xuspctuts the remedy on the
<» iijin'tl contract, and such contract is a sufficient
consideration for H new promise. McNalr v. Gil-
bert. 3 Wend.. :H4 : Krwin v. Saundcra, 1 Cow., 349;
Dusenbury v. Hoyt. 53 N. Y.. 521 : 13 Am. Hep.. 643 ;
Walt v. Morris. « Wend., 394 ; Fitzgerald v. Alexan-
der, 18 Wend.. 402: Uepuy v. Swart, 3 Wend., 141;
Scouton v. Kislord. 7 Johns., 38 ; Erwln v. Saunders,
1 Cow., 249; Maxim v. Morse, 8 Mass., 127; Katz v.
Moore. 13 Md., 500; Turner v. Chrisman, 20 Ohio,
832 : Lonsdale v. Brown, 4 Wash.. 80.
See. also, Cooke v. Bradley, 7 Conn.. 57 ; Walbridge
v. Harroon, 18 Vt., 448; Patten v. Klllngwood, :C
Me., 103; Franklin v. Beatty. 27 Miss., 34,: Rogers
v.Stephi'iis,2T. K.,713; Hawkes v. Saunders, Cowp.,
290; Fleming v. Hayne, 1 Stark.. 370; Twias v.
Maaaey. 1 Atk.,07 ; Birch v. Sharland, 1 T. K.. 715.
The new )tromi*f mit*t have Iteen motif after the
dlMharue. Stebbins v. Sherman, 1 Sandf .. 5lO.
JOHNS. RKP., 14.
1. Non Astumpsit. 2. That, after making the
supposed promises mentioned in the declara-
tion, and before the exhibiting the plaintiff's
bill, on the 15th of February, 1812, the defend-
ant was an insolvent debtor, within the mean-
ing of the Insolvent Act of April 3d, 1811, and
had been prosecuted, &c. ; that he presented
a petition. &c.; and that on the 16lh of May,
1812, his discharge was granted. To the sec-
ond plea the plaintiff replied that the defend-
ant, after obtaining his discharge, and before
the commencement of this suit, to wit : on the
1st of May, 1815. at, &c., assented to, and
then and there rectified, renewed and con-
firmed the several promises and undertakings
*in the plaintiff's declaration men- [*17w
tioned. To this replication there was a gen-
eral demurrer, and joinder in demurrer. '
Mr. Skinner, in support of the demurrer,
contended that the plaintiff ought to have
declared specifically on the new promise, not
on the original undertaking. It is a general
rule in pleading to set forth the promise as
well as the liability of the defendant; and in
this respect there is no (list i net iqn between an
implied and an express promise ; for the law
does not create the promise in any case, though
it may afford evidence sufficient for a jury to
find a promise. (Bac. Abr., Assumpsit, F ; 6
Mod.. 181; 1 Ld. Raym.. 538; H. Bl., 538, n.a;
7 Chitty PI., 299.) The prior debt or moral
obligation is the consideration for the new
promise. The debt of a bankrupt or insolvent,
who has obtained his certificate, remains due
in conscience, and that is sufficient to sup-
port a new promise, by which the old debt is
revived. (Cowp., 290, 514 ; 2 T. R., 765. 766 ;
Scouton v. Ei>Jord,7 Johns., 36 ; 2 Johns., 279.)
In all such cases the declaration must state the
new assumpsit. There is no cause of action until
the new promise is made. The discharge puts
an end to all legal and equitable obligation;
and there is no existing promise or undertaking
which a court of law will enforce, until it is
renewed by a new promise The obligation in
conscience merely affords the consideration of
the subsequent promise.
The only exception to the rule of pleading
for which we contend, is that of infancy, and
the only authority for that is Chitty. fiut the
contract of an infant is not void, but voidable
only. (8 Burr., 1794.) As to the Statute of
Limitations, it does not destroy the right of
action, but merely suspends it. The debt re-
mains, but the remedy is gone. (5 Burr. , 2628.)
But in that case the new promise must be
stated technically, and the bare acknowledg-
ment of the defendant within the six years,
which is tantamount to a new promise, sup-
ports the issue. (Bryan v. Heneman, 4 East,
599.)
Admitting, however, that the plaintiff might
declare on the original undertaking, yet the
replication which gives the cause of action
ought to state the new promise. The plaintiff
says merely that the defendant afterwards, to
wit: on the 1st of May, 1815, assented to and
renewed and confirmed the promises laid in the
declaration.
Mr. Talcot, contra. The case of infancy is
stronger than the present, as to the necessity of
stating technically a new promise ; for in that
case there never was any promise binding in
823
180
SUPREME COURT, STATE OP NEW YORK.
1817
18O*] *law. Here was a previous promise
valid in law ; an existing cause of action.
There is no departure in this case. The rep-
lication supports the declaration. The word
"renewed" is sufficiently expressive. To renew
a promise is to promise over again.
In Williams v. Dyde (Peake's N. P. Cas.,
68), where a bankrupt had been discharged,
and the plaintiff declared generally on the
original undertaking, and the defendant plead-
ed his discharge, Lord Kenyon held the dec-
laration to be good, and that a subsequent
promise to pay might be given in evidence to
support it. This case was recognized in Leaper
v. Tatton, 16 East, 420, and the principle is
adopted and laid down by Chitty (Chitty's PI.,
40) and other writers. (1 'Selwyn's N. P., 219 ;
1 Cook's B. L., 256; Lawes on Assicmpsit, 241.)
In Maxim v. Morse. 8 Mass., 127, decided in the
Supreme Cour.t of Massachusetts, the plaintiff
brought an action of debt on a judgment, and
the defendant pleaded his discharge under a
commission of bankruptcy, and the plaintiff
replied that the defendant afterwards waived
the benefit of his certificate and promised to
pay the amount of the judgment ; and the
defendant rejoined, denying such promise, on
which issue was taken ; and on motion in ar-
rest, after verdict for the plaintiff, the court
gave judgment -for him, considering the dec-
laration as good, and well supported by the
replication.
THOMPSON, Ch. J., delivered'the opinion of
the court:
The question that arises in this case is,
whether the plaintiff may declare upon the
original cause of action, or whether he is bound
to declare specially upon the new promise. I
think the proper way is to declare on the
original cause of action. I see no reason why
this case should differ from that of infancy, or
that where the action is barred by the Statute
of Limitations.
The discharge under the Insolvent Act does
not make the original contract void ; it is ex-
pressly laid down by Chitty (PI. 40) that where
a debt is barred by a certificate of bankrupt,
a promise made afterwards by the bankrupt
will support an action, and that it is sufficient
in such case to declare upon the original con-
sideration. Such promise can only revive a
precedent good consideration, the remedy
having been suspended by the discharge. (3
Bos. & P., 250, n. 7.)
The new promise is sufficiently laid by the
words "ratified, renewed and confirmed." The
words "renewed, the said several promises"
are peculiarly appropriate, and amply suffi-
cient.
181*] *The replication isnodeparture from
the declaration, but fortifies and supports it,
by answering and removing the bar interposed
by the plea. We are, accordingly, of opinion
that the plaintiff is entitled to judgment.
Judgment for the plaintiff. '
Contra— 5 Cow., 537.
Cited in-3 Wend., 347: 6 Wend., 395: 19 Wend., 403;
12 N. Y., 637; 53 N. Y., 523; 54 N. Y., 427; 24 Hun. 222:
3 Barb., 612 : 4 Barb., 174 ; 2 Abb. Pr., 275 ; 2 Hall, 238;
2 E. D. Smith, 115; 41 Mo., 269.
1.— See Wait v. Morris, 6 Wend., 394.
824
DANA r. DANA.
Indians — Contracts of — Statute.
The Act (sess. 36, ch., 92) Relative to the Indians
within this State (2 R.L., 153) doesnot merely protect
Indians of the Oneida nation from suits on con-
tracts, while residing on the lands reserved to that
nation, but extends to suite against such Indians,
wherever their residence may be ; and ah Indian
sued upon a contract, may plead this Act in bar, and
is not restricted to pleading it in abatement.
Citations— 7 Johns., 290; 9 Johns., 362.
THIS was an action, of debt on an arbitration
bond. The declaration stated the sub-
mission to arbitrators, and {•heir award that
the defendant should pay the plaintiff the sum
of $132.98, and should pay the abitrators the
sum of $7 for their fees ; and the breaches as-
signed are for the non-payment of those sums.
The defendant pleaded in bar, that the plaintiff
ought not to have or maintain his action, be-
cauke the defendant, at the time of making the
writing obligatory in the declaration men-
tioned, was, ever since has been and still is an
Indian residing on lands reserved to the Oneida
Indians, within the purview of the second
section of the Act Relative to the Different
Tribes andNations of Indians within this State,
passed 10th of April, 1813. The plaintiff de-
murred, and showed for cause of demurrer
that the disability of the defendant was pleaded
in bar, whereas it was merely temporary, and
continued no longer than the defendant should
actually reside on lands reserved to the Oneida
Indians; and that the defense was only avail-
able as a plea in abatement. The defendant
joined in demurrer: and the same was submitted
to the court without argument.
SPENCER, J., delivered the opinion of the
court:
The question is, whether the plea is good as
a perpetual bar, or whether it is temporary
disability to contract, and should have been
pleaded in abatement.
It seems to me that the plea is well pleaded.
The Statute provides that no *person shall sue
or maintain any action on any bond, &c.,
against any of the Indians, called the Stock-
bridge Indians, or of the Seneca tribe or nation ;
nor against any Indian *residing in [*182
Brothertown ; or any lands reserved to the
Oneida, Onondaga or Cayuga Indians. The
object and policy of this statutory inhibition
to sue these Indians on contracts made with
them has already been expounded by this court.
(7 Johns., 290, and 9 Johns., 362.) We con-
sidered the Statute as a guard against the im-
position and frauds to which that unfortunate
racQ of men are exposed from their ignorance
and mental debasement. The Statute was not
intended as a temporary protection from suijts,
limited to the residence of these Indians on
theif reservations ; for the Stockbridge and
Seneca tribes are protected from suits on con-
tracts, without reference to their locality ; and
why should not the other tribes receive the
same protection? A fair, liberal and just
interpretation of the Statute affords the same
shield.
Judgment for the defendant. •
Cited in-20 Johns., 720; 17 Wend., 537; 4N. Y., 299.
JOHNS. REP., 14.
1817
HILTS v. COLVLN.
183
HILTS *. COLVIN.
Witnet*e»— Competency ofParol Evidence of Con-
viction for Felony, lnadmi**ible.
To support an objc-ction to the competency of a wit-
ness.becHUSe he had heen convicted of felon v. parol
evidence of the conviction IB inadmissible, although
it be proved that the clerk's office of the county ,
had been burnt down, and the record probably de-
stroyed, for there is higher evidence of the fact ca- :
pabfe of being produced: that is, the transcript de- I
Jivered into the Court of Exchequer by the district ,
attorney, which must be presumed to have been do- ,
livered, such being his duty as a public officer.
Whether the.cojjy of the sentence, Riven by the
clerk to the sheriff, and delivered by him with the
prisoner U» the keeper of the State Prison, would
be higher evidence of a conviction than parol proof. !
V"' . .
Citations— 1 R. L., 415: K. & K., seas. 24, ch. 121,
WO. 6: 1 R. L., 4flB; K. & K.. sew. 24. ch. 146, sec. 2: 13
Johns.: 82.
IN EHROR, to the Court of Common Pleas
of the County of Herkimer.
The plaintiff in error, who was plaintiff in
the court below, brought an action of trespass
on the case against the defendant for deceit in
the sale of a horse. The cause was tried at
the July Term of the court below in 1816.
The plaintiff, to prove his cause of action,
produced one John G. Hilts as a witness, to
whose admissibility it was objected by the
counsel for the defendant that he had been
convicted of grand larceny. To prove this
fact witnesses were called, who testified that
the clerk's office in the County of Herkimer
was burnt down in April, 1804, and that most
if not all the papers and records had b«en de-
stroyed. A witness also stated that John G.
Hilts had previously been convicted, in that
county, of harboring stolen goods, and had
1 8ii*] been sentenced *to the State Prison for
three years or thereabouts. To this testimony
the plaintiff's counsel objected that it was in-
sufficient; that the record of conviction should
be produced, or proof given that it had existed
and been lost; and that then parol evidence
ought not to be received, as the case admitted of
higher proof. The court, however, excluded
the plaintiff's witness, who, having no other
testimony, was nonsuited, and tendered a bill
of exceptions, which was removed into this
court by writ of error.
Mr. Storrt, for the plaintiff in error. There
was no evidence of the witness having been
convicted of larceny. No record of his con-
viction was produced, nor was it shown that
any such record had ever existed. A convic-
tion alone is not sufficient, but a judgment
must be shown ; for on a motion in arrest the
conviction may be quashed, (fjee v. Qantel,
Cowp., 148.) Though the witness admits the
conviction: it is not enough: but the record
must be produced. (8 East, 78; Philips' Ev..
26.)
Again; here was not the best evidence of
the conviction which could have been pro-
duced, for though the clerk's office had been
destroyed by fire, and his records and papers
probably consumed, yet the clerk of the court
is required to give a copy of the conviction to
the sheriff, who must deliver it to the keeper
of the State Prison (1 N. R. L., 275, 85th sess.,
ch. l.«»ec.'16); and by another Statute Relative
to District Attorneys, they are required to certi-
JOHNS. REP., 14.
fy a transcript of every conviction to the Court
of Exchequer at the next term, there to remain
of record. It must be presumed, then, that
such a record of the conviction is remaining
in the Court of Exchequer, which might have
been produced.
Again; there wasnotarrimin/alrior felony,
occasioning a forfeiture of goods, to render the
witness incompetent.
Mr. Ford, contra. The offense was felony,
and the punishment three years' imprisonment
in the State Prison. All felonies render a wit-
ness incompetent; and it is not the punish-
ment but the nature of the offense that creates
that infamy which incapacitates a witness.
(Philips' Ev., 22, 24.)
As to the evidence of the conviction, the
defendant having shown that the office of the
clerk in which the records were kept had
been destroyed by fire, and that the witness
had been previously convicted, was entitled
to produce inferior or secondary evidence.
The list of convictions handed to the sheriff
*with the prisoners was not higher evi- [*1 84
dence. And it was not shown that any certifi-
cate had been sent by the district attorney to
the Court of Exchequer.
SPENCER, J., delivered the opinion of the
court :
The plaintiff below offered one John G.
Hilts as a witness. He was objected to on the
ground of his incompetency, arising from his
alleged conviction of the crime of grand lar-
ceny.
It was proved that there were no papers or
records in the clerk's office of Herkimer prior
to May, 1804, and that, in April of that year,
the clerk's office had been burnt down, and
most or all of the papers had been consumed.
It was offered to be proved that the witness
Hilts had been convicted previous to 1804, for
harboring stolen goods, and sentenced to the
State Prison; which proof was objected to,
but admitted by the court, and made out by
parol; and the witness being excluded, the
plaintiff was nonsuited for want of proof to
sustain his action.
It is insisted that there was higher and bet-
ter proof of Hilts' conviction, and that he
ought not to have been excluded: 1. The copy
of the sentence required to be given by the
clerk of the court to the sheriff, who is re-
quired to deliver the same to the keeper of the
State Prison, with the prisoner. (1 R. L.,
415; K. & R., sess. 24, ch. 121, sec. 5.)
2. The certificate required bv the 2d sec-
tion of the Act Relative to District Attorneys
to be sent to the Court of Exchequer, there to
remain of record, containing the' tenor and ef
feet of every conviction, the name of the per-
son and addition, the offense, the day and
place of the conviction and before whom it
was had, and the judgment given thereon; a
copy of which, under the hand of the clerk
and the seal of the Exchequer, is declared to
be good evidence of such former conviction.
(1 R. L., 462; K. & R., sess. 24. ch. 146, sec. 2.)
Whatever may be thought of the first ob-
jection, the second is decisive. It is always to
be presumed that a public officer has done his
duty, and this presumption stands until it is
disproved. We must then intend that there
82*
134
SUPREME COUKT, STATE OF NEW
1817
was, in the Court of Exchequer, the transcript
pointed out by the Statute; and it follows that
there was higher proof in the power of the
party than that given at the trial below. This
court, in the case of the People v. Herrick,
13 Johns., 82, decided that a party who would
take exception to a witness on the ground of
185*] his conviction of the *crimenfalsi must
have a copy of the record of conviction ready
to produce in court. The judgment below
must be reversed.
Judgment reversed.
Distinguished— 86 N. Y., a58; 62 How. Pr., 151.
Cited in— 19 Wend., 166 : 25 Wend., 467 ; 24 N. Y.,
301; 4 Abb. Pr., 373; 1 Bos.. 243; 8 W. Dig., 445.
THOMAS «. M'DANIEL.
Assault and Battery against Master of Vessel —
Receipt in Full not Conclusive Evidence of Ac-
cord and Satisfaction.
A receipt by a seaman in full of all demands
against the ship, her officers and owners, for wagres,
"and also $1 as a full compensation for everything
else," is not sufficient evidence to support a plea of
accord and satisfaction, in an action of assault and
battery, brought by the seaman against the master
of the ship, especially when the master withheld
the wages until the seaman would sign the receipt,
which he had, at first, refused to do. _
IN ERROR, on certiorari to the Justice's
Court of the City of New York. M'Daniel,
a seaman, brought an action against Thomas,
the master of a ship, for an assault and bat-
tery committed on board of the vessel at sea.
The defendant pleaded not guilty; and also
accord and satisfaction. .
On the trial, the assault and battery were
proved; and the defendant, in support of his
second plea, gave in evidence a receipt in the
following words, viz: "New York, March 30th,
1816. Received from Ca*ptain J. B. Thomas
$60.50, in full of all demands against the ship
Independence, her officers and owners, for
wages; also, $1 as a full compensation for
everything else James M'Daniel. Witness,
Jos. Morrison."
The subscribing witness to the receipt testi-
fied that he explained the instrument to the
plaintiff, by stating that the $1 was intended as
a full compensation for all other claims except
wages, and that the plaintiff, at first, refused
to sign the paper, and waited three or four
days. The defendant then placed the money
and the paper on the table, and told the plaint-
iff that he might sign or not, as he pleased.
The plaintiff then read over the paper and
signed it, and received the money; but noth-
ing was said about assault and battery. A re-
ceipt in similar form was taken by the defend-
ant from each of the crew.
The court below gave judgment for the
plaintiff for $50 damages and costs.
Per Curiam. It is very questionable whether
this receipt ' will bear any other construction
than as an acknowledgment to the officers and
owners of the ship of satisfaction for all
claims *and demands against them [*186
jointly. But admitting that it imports an ac-
knowledgment of satisfaction for all claims
and causes of action against the captain, indi-
vidually, there is strong ground to infer that it
was unfairly obtained by him. It was coupled
with a receipt for the wages of the seaman;
and the evidence shows that his wages, after
being liquidated at $60.50, were withheld by
the captain, during three or four days, because
the plaintiff refused to sign the double re-
ceipt. To a person in the situation of a sea-
man, just arrived in port after a long yoyage,
and probably without a cent of money, this
was a fraudulent constraint on the part of the
captain, from which the law will protect the
seaman. It cannot be doubted that if the
wages had been unconditionally paid, the
plaintiff would peremptorily have refused to
sign the receipt for $1 "for everything else."
The judgment below must be affirmed.
Judgment affirmed.
Cited in— Abb. Adm., 45.
JACKSON, ex dem. ROWLEY & SMITH,
v.
KINNEY.
New Trial — Newly-Discovered^ Evidence — Title
to Lands — Identity of 'Patentee.
. In general, a new trial will not be granted on the
ground of newly-discovered evidence, when it goes
merely to impeach the testimony of a witness at the
former trial. But in causes concerning the title to
military lands, where the identity of the original
patentee is in question; a new trial may be granted,
to give the defendant an opportunity of impeaching
the character of the principal witness tor the plaint-
iff, especially when the defendant has been a long
time in possession.
NOTE.— Receipts— How far conclusive as evidence
of payment.
A receipt is not a contract, and is only prima facie
evidence of payment. McCrea v. Purmort, 16
Wend., 460 ; Shelden v. Atlantic &c. Ins. Co., 26 N.
Y., 460; Russell v. Church, 65 Pa. St., 9; Dodd v.
Mayson, 39 Ga., 605; Button v. Tilden, 13 Pa. St., 46:
Bell v. Bell, 12 Pa. St., 235; Kirkpatrick v. Smith,
10 Humph., 188 ; Fuller v. Crittenden, 9 Conn., 401 ;
Benson v. Bennett, 1 Camp., 394 ; Stratton v. Rast-
all, 2 T. R., 366 ; Parrar v. Hutchinson, 1 Perry & D.,
437.
A receipt in full is not conclusive, except where
the person giving it is in possession of all the facts
and is free from compulsion. 111. C. Ry. Co. v.
Welch, 52 111., 183 ; 4 Am. Rep., 593 ; Pate's case, 4
Ct. Cl., 523 ; Bristow v. Eastman, 1 Esp., 173.
Generally, a receipt in full is open to contradiction,
although given with knowledge. Trull v. Barkley,
11 Hun, 644 ; Foster v. Newbrough, 66 Barb., 645 ;
826
Ryan v. Ward, 48 N. Y., 204 ; McDougall v. Cooper,
31 N. Y., 498 ; Batdorf v. Albert, 59 Pa. St., 59 ; Mid-
dlesex v.Thomas, 20 N. J. Eq., 39; Draughan v.
White, 21 La. Ann., 175 ; Walters v. Odom. 53 Ga.,
286 ; Pauley v. Weisart, 59 Ind., 241 ; Smith v.
Schulenberg, 34 Wis., 41 ; Winansv. Hassey, 48 Cal.,
634.
So far as the receipt contains a contract, it is gov-
erned by the ordinary rules of construction, but
the receipt itself may be contradicted by parol.
Stapleton v. King, 33 Iowa, 28; 11 Am. Rep., 109 ;
Morris v. St. P. & C. Ry. Co.. 21 Minn., 91 : Wilson
v. Derr, 69 N. C., 137 ; Smith v. Holyoke, 112 Mass.,
517 ; Smith v. Holland, 61 N. Y.. 635.
A receipt under seal is conclusive. See O., L. & Y .
Ry. Co., 25 Law T. Rep. N. S., 77 ; State v. Gott, 44
Md., 341. But see Anderson v. Armstend, 69 Hl.,452.
See, generally, M'Kinstry v. Pearsall. 3 Johns.,
319, note.
JOHNS. REP., 14.
1817
OATFIELD v. WARIN«.
186
fPHIS was an action of ejectment, brought to j *answered by sending the cause back to [* 1 88
L recover lot No. 63. in the town of Homer, | a new trial, on payment of costs,
in the County of Court landt, and was tried v ...
before His Honor, the Chief Justice, at the
Courtlandl Circuit, in 1816. Cited in— 5 Cow., 210; 5 Wend.. 128: 2 Denio. 110:
The plaintiff's lessors claimed under a patent ** Barb., 296.
granted in 1791, to one William Hullins, and
produced two witnesses. Swart wout and Sher-
wood, to show that William Rullins, and Will-
iam Rowlev, of whom one of the lessors of
the plaintiff was the son and heir, were the
same person, and that he had served as a pri-
vate during the Revolutionary War. At the
trial, a verdict was found for the plaintiff,
which the defendant now moved to set aside,
OATFIELD r. WARING.
Manumission of Slave by Ttro of Three Tenant*
in Common, Entitles him to Freedom — Request
Inferred.
A request, in order to support a promise, may be
inferred from the beneficial nature of the conside-
and it is the province of the Jury to determine from
the evidence, whether a request can be inferred or
not.
When two of three tenants in common of a slave
without claiming him as his slave ; which is suffi-
cient to authorize the inference that he also had
manumitted him.
Where a person brings an action against another,
it seems that he cannot afterwards claim such de-
fendant as his slave.
All presumptions ought to be made in favor of
personal liberty.
Citations-10 Johns., 244 ; 1 Cai.
284, n. 1.
385,386: 1 Saund.,
on the ground of newly -discovered evidence. I ratj°1n,and tne circumstances of the transaction;
_ * . . ,.,, .. . . : nrirl It in flu- nrnvfnrwor tn<> inri- r.» /)•»*«. *tiiin*» IV. im
and of surpnse at the tnal. The affidavits
which were read on the part of the defendant
were calculated to impeach the testimony of
ShePwnoH the nrinrinnl witness for the nlftint manumit him, this is sufficient to entitle him to his
tMierwood, tne principal witness lor le plaint- | freedom; especially where the third joint owner
iff, by showing that he had made various dec- | has for a long time suffered him to act as a freeman,
larations inconsistent with what he swore to at
the trial ; that he was an habitual drunkard
187*] and a person *unworthy of credit.
Affidavits were read on the part bf the plaint-
iff to support* the character of Sherwood,
and, to repel the allegation of surprise, the af-
fidavit of one Smith was read, which stated
that the defendant and Sherwood did not re-
side more than six miles from one another ;
that the defendant attended the court at which
the cause was tried, and, the deponent verily
believed, well understood that the testimony of
Sherwood was relied upon by the plaintiff. It
appeared that the defendant had been in pos-
session of the lot in question about nineteen or
twenty years, and had made considerable im-
provements.
Mr. Richardson for the defendant.
Mr. T. Sedgwick, contra.
Per Ouriam. This is an application for a new
trial, on the ground of surprise and newly-dis-
covered evidence. The newly-discovered evi-
dence is for the purpose of' impeaching the
character of one of the witnesses examined on
the part of the plaintiff. As a general rule, we
have refused granting new trials on this
ground. We have, however, repeatedly, in
trials concerning the military lots, been more
liberal in granting new trials, owing to the ob-
scurity and multifarious frauds attendant upon
those titles ; and especially when the question
turns upon the identity of the soldier from
whom the title is claimed to be derived. Al-
though the character of Sherwood, the wit-
ness, seems to be rendered infamous, in the
extreme, by the affidavits furnished on the
part of the defendant, yet it is supported very
much by affidavits on the other side. This is
a question, however, that can be much more
satisfactorily decided in open court, when the
witnesses can be seen by the jury, and their
THIS -was an action of assttmprit, brought to
recover a compensation for supporting the
defendant's slave. The cause was tried before
Mr. Justice Van Ness, at the Albany Circuit, in
October, 1816.
It was proved on the part of the plaintiff
that the slave, for whose maintenance the ac-
tion was brought, was the property of the de-
fendant's wife at the time of her intermarriage
with the defendant, in 1810, and had lived
with the plaintiff in the City of Albany, and
been supported by him from the time of the
defendant's marriage until the 31st day of Oc-
tober, 1815, when he was demanded, and the
day after received by the defendant from the
plaintiff. The defendant lived in the City of
Albany, and knew that the slave was kept by
the plaintiff ; but no proof was given of any
express request on the part of the defendant to
the plaintiff to keep the slave, nor of any ex-
press notice given by the plaintiff that he ex-
pected any compensation. It was proved that
the plaintiff was the grandfather of the slave,
and had himself been the slave of the father
of the defendant's wife ; that the wife of the
plaintiff was formerly a slave of the same
family ; that when the plaintiff moved from
the house of his late master, in 1810, the slave
went with him, and that about the same time
the defendant and his wife removed to Al-
bany. In October, 1815, the defendant brought
an action against the plaintiff to recover the
penalty for harboring his slave, befpre a jus-
intelligence and respectability judged of ; and tice of the peace, in which judgment was
besides, it is a qiiestion which properly given for the plaintiff in this suit, on the
belongs to the jury. The ground of surprise is
removed by the affidavit of Smith. Upon the
whole, considering the length of the defend-
ant's possession, upwards of nineteen years,
and that the soldier is represented as having
two names, and as a considerable doubt rests
upon the plaintiff's claim, we are inclined to
think the ends
JOHNS. REP., 14.
ground that the slave had gone and lived with
the plaintiff with the defendant's knowledge ;
that the defendant had never directed the
plaintiff to send the slave home, nor had for-
bidden the plaintiff to keep *him in his [* 1 89
family ; and that no notice had been given by
the defendant to give him up. The defendant.
of justice will be best I after the plaintiff had rested his cause, moved
1S9
SUPREME COURT, STATE OP NEW YORK.
1817
for a nonsuit, on the ground that there was no
evidence of a contract ; and the motion being
denied, produced the will of the father of the
defendant's wife, dated the 19th day of May,
1794, by which he bequeathed all his prop-
erty, of which the plaintiff was part, to his
three children, and died in the month of No-
vember following ; and the three legatees con-
tinued to live together until the marriage of the
defendant in 1810. The plaintiff then, to prove
his freedom, produced a writing dated the 1st
day of May, 1807, under the hands and seals
of the two brothers of the defendant's wife,
by which they certify and agree that the de-
fendant is a free man, and absolutely manumit
and set him free, provided he continued to
serve them and their representatives until the
1st day of May, 1810 ; and it was proved that
the plaintiff had performed the condition. The
defendant again moved for a nonsuit, on the
ground that the plaintiff, being his slave, could
not maintain an action against him ; and the
plaintiff's counsel contended that the manu-
mission before mentioned entitled the plaintiff
to his freedom, and that his slavery, if it ex-
isted, should have been pleaded in abatement.
The judge intimated his opinion to be, that
the slavery of the plaintiff might be taken ad-
vantage of under the general issue ; and with-
out expressing a decided opinion as to the
effect of the defendant's having brought an
action against the plaintiff, ruled that a manu-
mission by two of the joint owners of the
plaintiff amounted to a destruction of the en-
tire interest, and gave him his freedom ; or
that the jury might infer from the evidence
that the plaintiff was the sole property of the
two brothers at the time they executed the
manumission. The judge left it to the jury to
determine from the evidence whether any re-
quest from the defendant to the plaintiff to
support his slave could be inferred. The jury
found a verdict for the plaintiff for $143.
A motion was made, on the part of the de-
fendant, to set aside the verdict, and for a new
trial.
Mr. TUlotson, for the defendant. 1. There
was no express promise of the defendant to
pay for the maintenance of his slave ; nor
have those circumstances been shown, which
19O*] may be regarded *as equivalent. A
moral obligation may be a good consideration
for an express promise ; but it is not sufficient
to raise an implied promise in law. (Atfdns v.
Banwell, 2 East, 505.) The rule laid down by
Lord Kenyon in Scarman v. Casiel, 1 Esp. N.
P. Cas. , 270, that a prior moral obligation was
sufficient to support an assumpsit, was an in-
novation, and has been strongly questioned, if
not overruled. In Wennatt v. Adney, 3 Bos.
& P. , 247, and see note, p. 249, 250 ; Newby
v. Wiltshire, 2 Esp. N. P. Cas., 739, the Court
of Common Pleas held that a master was not
liable, on an implied assumpsit, to pay for the
medical attendance on a servant who had
broken his leg while in his service. Mr. Jus-
tice Spencer, in the case of The Overseers of
lioga v. The Overseers of Seneca, 13 Johns.,
382, seems to doubt whether, admitting the
legal settlement of the pauper in T., and the
maintenance of him in S., without request, or
any promise on the part of T. to pay, assump-
*it would lie ; and he evidently leans to the
828
opinion of Lord Ellenborough, in Atkins v.
Banwell. The English courts, in the cases
cited (Semmim v. Wilnwt, 3 Esp. Cas. , 91 ; &
Bos. & P., 247), proceeded on the ground of
the parish being under a legal obligation to
support the pauper. Here the plaintiff pro-
ceeds on an implied assumpsit, arising from
his keeping the defendant's slave without any
such obligation or showing a request. This
court held, in Dunbarv. Williams, 10 Johns'.,
249, that no action would lie by a physician
for medical attendance on a slave, without the
request of his. master : and that an implied as-
sumpsit could not arise, unless under circum-
stances in which the master would be legally
bound to provide medical assistance. In
Jacobson v. The Executors of Le Orange, 3-
Johns., 199, the plaintiff performed the work
under an expectation of compensation from
the testator, who expressed his intention to re-
ward him, by a provision in his will.
2. Next, as to the manumission of the slave.
Under the will of the father of the defendant'*
wife, she and her two brothers were joint
owners of the slave. The certificate of manu-
mission by two of the joint owners was not
sufficient for that purpose. The execution of
the deed by two would not destroy the joint
interest of the three ; but the wife of the de-
fendant became the sole owner by survivor-
ship. The direction to the jury, that they
might presume that the slave was the prop-
erty of the two brothers, was authorizing an
inference in contradiction to the will of the
testator, by which the slave was given to the
three. Presumptions are not to be admitted
where the evidence of the fact is positive.
It will be said that the suit brought bylhe
defendant against *the plaintiff, before [*li)l
a justice of the peace, is a virtual manumis-
sion of the plaintiff. But the rule of the
English common law in relation to villeins (2
BL Com., 93; Litt., sec. 208) is not applicable
to the case of slaves in' this country. (Lofft,
1-19.)
Mr. Loucks, contra. 1. Whether there was
sufficient evidence of an assumpsit, express or
implied, was a matter for the jury to decide,
and their verdict is conclusive as to the fact.
Labor done or services rendered, in expecta-
tion of a reward; will support an assumpsit.
(Str., 726 ; 3 Johns., 199.) A gratuitous serv-
ice is not to be presumed. It lies on -the de-
fendant to show that it was gratuitous. The
declaration is on the general indebitatus as-
sumpsitf, for services rendered at the request
of the defendant. A request must be proved ;
but it may be either express or implied. The
beneficial nature of the service is not denied :
and where it is a past consideration, the re-
quest may be implied. (1 Saund., 244, n. I ;
1 Chitty's PL, 297 ; 1 Caines, 585 ; Str., 933 ;
Burr, 1671 ; 3 Bos. & P., 294. n. 4; 7 Johns..
87; 5 Johns., 272.) In Hick* v. Bnrhan*; 10
Johns. , 243, the court held that a promise to
pay on a past consideration was good, if 'the
service was laid to be done on request ; and
that if it was not so laid, a request might be
inferred from the beneficial nature of the serv-
ices and the circumstances of the transaction.
In Jacobson v. The Executors of Le Grange, 3
Johns., 199, Van Ness, J., says: "The serv-
ices having been performed for the benefit of
JOHNS. REP'., 14.
1817
JACKSON, EX DEM., v. WRIGHT.
191
the testator, with his knowledge and approba-
tion, the law implies a promise to pay for
them." The defendant knew that his slave
was maintained by the plaintiff, and his si- j
lence is equivalent'to his assent.
2. But it is objected that the plaintiff is a
slave, and cannot maintain an action. In
Well* v. Lane. 9 Johns., 144, it was decided
that a slave might be manumitted by parol ; j
and parol declaration* of the owner of the '
slave that he had purchased her to make her
free, and that he meant her to be free, were
held to be sufficient evidence of a manumis-
sion. There was sufficient evidence to au-
thorize a jury to infer a parol manumission
prior to May, 1807. The plaintiff was absent
from the house of his former master more
than six years, and the principle of the Statute
of Limitations ought to be applied to bar any
claim to him as a slave. The jury were war-
ranted, also, in finding a manumission by
deed from the three joint owners. The de-
fendant's wife was present when her two
brothers executed the deed. In Mackay v.
Sbodgood, 9 Johns., 285, where one of two
11)12*] partners executed a bond, *and the
other was present, and expressed his assent to
it, it was held to be the bond of both.
Again ; the deed of manumission by two of
the joint owners was a destruction of their
joint interest ; and in this respect, there is no
distinction between a sale and a torlious con-
version of the chattel by one of the tenants in
common. ( Wilson v. Reid, 3 Johns., 175; 14
Vin. Abr., 515, 516; PI.. 10-16.) The tenant
whose right lias been violated by 'the sale or
conversion will have his action against his co-
tenant for the conversion of his interest by the
sale.
Again ; the suit brought by the defendant
against the plaintiff was an admission that he
was a free man and ought to conclude the de-
fendant.
SPENCER, J., delivered the opinion of the
court :
The defendant makes two objections to the
verdict :
1st. That the facts proved do not justify an
inference that the maintenance of the defend-
ant's slave was at his request.
2d. That the plaintiff is a slave, and is in-
competent to maintain the action.
The judge submitted it to the jury, whether
a request on the part of the defendant that .the
plaintiff should keep, provide for and main-
tain his slave, had not been made out, and
they find that there was a request.
A request may be inferred from the benefi-
cial nature of the consideration, and the cir-
cumstances of the transaction (10 Johns., 244 ;
1 Caines, 885, 386; 1 Saund., 264, n. 1) ; and
without going into the facts, I am decidedly
of opinion the circumstances well authorized
the conclusion drawn by the jury.
As to the second point. The fact that t he-
defendant had himself sued the plaintiff for
harboring his slave goes a great way in estab-
lishing that he was free ; at all events 'it is a
very solemn concession of the defendant that
he was so.
But the manumission of the plaintiff by two
of three joint owners would of itself make him
.II.IIN- REP., 14.
a free man. No person can be partly a slave
and partly free, or a slave for one third of the
time and free for two thirds : he must be the
one or the other entirelv. The manumission
by the two may be considered a destruction of
the tenancy in common, and a conversion of
the slave, as it regards the proprietor of one
third. But again ; I have no doubt that suf-
fering the plaintiff to act as a free man, with-
out any claim or pretense that he was a slave,
until this suit was brought, would authorize
*the inference of a manumission by [*lf)3
the other tenant in common ; and" all pre-
sumptions in favor of personal liberty and
freedom ought to be made.
Motion denied.
Cited in— 18 Johns., 286; 5 Wend., 582 ; 24 Wend..
99; 3 Barb., 65; W Barh., 828; 13 Barb., 508; 7 Bos.,
460.
JACKSON, ex dem. M'CRACKIN,
v.
6. WRIGHT.
SAME, ex dem. THE SAME,
v.
S. WRIGHT. JR.
Grant of Jiounty Lands without Warranty —
Doe* not Convey Lands Dencnbed, not then
Owned, but Afterwards Acquired.
Where A, a soldier in the New York line, during
the Revolutionary War, by deed, dated in 1794, with-
out warranty, Kranted the military right granted to
him as bounty lands, for his services in the late
war, and afterwards, by an Act of the Legislature,
passed in 1808, two hundred acres of land were
directed to be granted to A, a* a irratuity for his
services and sufferings in the Revolutionary War,
in pursuance of which a patent was issued to A ; it
was held that A's grantee under the deed in 1794, was
not entitled to that land, as the deed only related to
land to which A was entitled under the concurrent
resolutions of the Legislature.
No title,, not in ew*e, will pass by deed of bargain
and sale, unless it contain a warranty, in which case
it will operate as an estoppel.
Citations— Act, April 2, 1808 ; 2d Greenl. ed. Laws,
332 : Co. Litt., sees. 446, 285 a & b ; 3 Johns.. 366.
THIS was an action of ejectment, brought to
recover two hundred acres of land, on the
west side of lot No. 60, in the town of Steel-
ing. The cause was tried before Mr. Justice
Yates, at the Cayuga Circuit, in 1816.
Peter Boise, by deed poll, dated the 5th of
July, 1794, and which was recorded on the
12th of June, 1807, wherein he is described as
late private in the First New York Regiment,
in consideration of £40, granted, bargained,
sold and quitclaimed to the lessor of the
plaintiff, in fee, "all that military right or
parcel of land granted to him as bounty lands,
for his services in the regiment aforesaid, dur-
ing the late war." The deed contained no
covenants or warranty.
On the 2d of April, 1806, an Act was passed
by the Legislature of this State, entitled, " An
Act for the Relief of Peter Boise and others,"
NOTE,— Estoppel — When grantor e#top)>et1 from
Ktttinv up *u6*e</t<enH|/ acquired title. See Jackson
v. Winslow, 9 Cow., 13. note.
82&
193
SUPREME COURT, STATE OF NEW YORK.
1817
by which it was enacted "that it shall and
may be lawful for the Commissioners of the
Land Office, and they are hereby required to
grant letters patent to Peter Boise, late a sol-
dier in the First New York Regiment, com-
manded by Colonel Goose Van Schaick, in the
line of the Army of the United States, and his
heirs and assigns forever, for the quantity of
two hundred acres of land, in the tract set
apart for the use of the line of this State, serv-
ing in the Army of the United States, as a gra-
tuity for his services and sufferings in the late
Revolutionary War ; provided that the grant
shall be to the said Peter Boise, during his life
only, and afterwards to his heirs in fee. In
pursuance of this Act, letters patent, bearing
date the 20th of November, 1806, for the prem-
ises in question, were issued to Peter Boise,
under the great seal of the State.
194*] *The judge ruled that the Act of the
Legislature above mentioned was a private
Act, and that the deed from Boise to the lessor
of the plaintiff, being prior in date to the pat-
ent, did not entitle him to recover. A verdict
was accordingly rendered for the defendant.
The plaintiff moved for a new trial, and the
case was submitted to the court without argu-
ment.
SPENCER, J., delivered the opinion of the
court :
The decision of the judge at the Circuit was
correct, on two grounds :
1. The grant under the private Act of the
2d of April, 1806, to Peter Boise, of two hun-
dred acres of land, part of lot 60, in Sterling,
cannot, in any point of view, be considered as
lands coming within the description and inten-
tion of the parties as manifested by the deed
from Boise to the lessor of the plaintiff. The
deed grants the military right, or parcel of
land granted as bounty lands for services dur-
ing the Revolutionary War; and is dated in
July, 1794. The lands in question were not
granted as bounty land. 1st. Because it is
declared to be a gratuity for services, and suf-
ferings. 2d. The bounty lands referred to in
the deed were such as had been promised by
the State, under the concurrent resolutions of
the Legislature, and would have compre-
hended five hundred acres. (3d Greenl. ed.
Laws, 332.)
2. The deed from Boise to M'Crackin is a
bargain and sale and quitclaim, and he had
then no title to convey in the premises ; and
no title, not then in esse, would pass unless
there was a warranty in the deed ; in which
last case it would operate as an estoppel, for
avoiding circuity of action. (Co. Litt., sees.
446, 265 a and b ; 3 Johns., 366.)
It is a mistake to suppose the deed operative
under the Act (2d Greenl. ed. Laws, 332), for
the conveyances rendered valid under the 5th
section of that Act are such only as were given
for lands granted under that Act.
Motion denied.
Cited in— 1 Cow.. 616; 2 Cow., 330; 9 Cow., 18: 11
Wend., 119 ; 13 Wend., 206 ; 2 Denio, 25 ; 5 Denio,
702 ; 4 Paige, 592 ; 1 Barb. Ch., 553 ; 3 Barb. Ch., 568 ;
1 Barb., 624 ; 4 Barb., 187 ; 33 Barb., 497 ; 63 Barb., 37;
32 Ohio St., 511 ; 11 How. (U. 8.), 322 ; Olcott, 347 ;
Deady, 378.
890
*KIDZIE v. SACKRIDER ET AL. [*195
Practice — Party in Certiorari Suffering Judg-
ment by Default, May Maintain Action
against Justice for False Return.
Where a party brings a certinrari to reverse a
judgment in a justice's court, and the judgment is
affirmed by the default of the plaintiff in error, in
not appearing when the cause is called on the cal-
endar, he may, notwithstanding, bring an action
against the justice for a false return, who cannot
plead that the judgment was affirmed by the de-
fault of the plaintiff.
IN ERROR, to the Court of Common Pleas
of the County of Delaware. The defend-
ants in error brought an action of trespass on
the case in the court below, against the plaint-
iff in error, for a false return to a certiorari.
The declaration stated that the defendant be-
low was a justice of the peace for the County
of Delaware, and on the 19th of July, 1810, is-
sued a summons against the plaintiff, in favor
of David B. Beers and Sally Beers, in a plea
of trespass on the case; that they appeared,
and that the plaintiffs in that suit, declared
against them, for diverting an ancient water-
course, to which the plaintiffs below pleaded.
The declaration then sets forth the proceed-
ings before the justice, and that judgment was
given against the plaintiffs below, for $4 ; that
Solomon M. Sackrider, one of the plaintiffs
below, within thirty days thereafter, made an
affidavit of the testimony in the cause, before
the justice, and of other facts, which affidavit
is set forth ; that a certiorari was thereupon
granted, and the certiorari, with the copy of
the affidavit, delivered to the defendant be-
low. The plaintiffs aver that the affidavit con-
tained a just, true and accurate statement of
the facts and proceedings in the cause before
the defendant, who, Well knowing that it did
contain a true and just statement of such facts
and proceedings, not regarding his duty as a
justice of the peace, but contriving, and
wrongfully and unjustly intending to injure,
preiudice and Aggrieve the plaintiffs, and to
deprive them of the benefit of a just, true, ac-
curate and legal return of the said facts and
proceedings, did falsely and deceitfully return
as follows, well knowing that such return
negatived the affidavit, and that the facts
stated in the affidavit were, in every point,
true and correct. The return is then set forth,
stating the issuing of the summons, the plead-
ings, adjournment, issuing a veni>;e, and that
one Hoit, on being drawn as a juror, was ex-
cused by consent of. the parties ; whereas, in
truth and ;in fact, the above-recited return to
part of the affidavit was, in many respects,
false and variant from the affidavit, and espe-
cially in this, that Hoit was excused by the
consent of the plaintiffs, without taking the
oath required by law ; whereas, in truth and
in fact, the defendant knew the said return to
be false., and *that the facts sworn to [*19O
in the affidavit were true ; and whereas, in
truth and in fact, Hoit was discharged by the
defendant, without taking any oath, and after
the plaintiffs had insisted that he should serve
NOTE. — Judicial officers— When personable liable.
A Justice of the Peace, acting ministerially, is lia-
ble for wrongful acts. Wallsworth v. M'Cullough,
10 Johns., 93, note and other notes there cited.
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. EMBLER.
190
as a juror. Other parts of the return are then
set forth, with averment of their falsity and
variance from the affidavit ; and the plamtiffs
aver that the said affidavit is, in every respect,
true, and that the return of the defendant,
taken collectively, is false, and does not
answer the affidavit in many important points;
but that the defendant, wickedly, <fec., the
same suppressed and misrepresented, whereby
the plaintiffs say they were compelled to sub-
mit the cause to the Supreme Court upon the
facts contained in the defendant's return ;
thereby losing the benefit of the facts con-
tained in the affidavit, so misrepresented and
suppressed, those facts being material and suf-
ficient to reverse the judgment against the
plaintiffs; by means whereof the plaintiffs
have been unable to have the judgment re-
versed ; but on the contrary, the justices of
the Supreme Court have affirmed the same; by
means whereof, &c.
The defendant below pleaded : 1. Not
guilty. 2. That, by the course and practice of
the Supreme Court, a cause in error, on cer-
tiorari, may be noticed for argument by either,
or both parties, and put down upon the calen-
dar for argument ; and when called on, in its
course upon the calendar, the party noticing
it may bring the same on to argument, if the
opposite party appear ; .and if the opposite
party make default of appearance, then the
party noticing the cause for argument, on pro-
ducing due proof of the regular service of the
notice, may obtain judgment by default with-
out arg'iment ; and that the judgment on cer-
tiofan against the plaintiffs was rendered by
the court in pursuance of the said practice,
being noticed by the defendants in error for
argument at the May Term of the Supreme
Court, 1812 ; and proof being made of the ser-
vice of the notice, and the plaintiffs in error
making default of appearance, without any
examination or consideration of the facts con-
tained in the return, whereby the judgment
was affirmed by default, and" whether the re-
turn of the defendant was sufficient to reverse
the judgment, was in no wise determined.
The plaintiffs below demurred to the second
plea of the defendant below, who joined in
demurrer, and the plea was adjudged insuffi-
cient by the court below ; and a verdict hav-
ing been found for the plaintiffs below, upon
1O7*] the issue in fact, and *their damages
assessed upon the issue in law, judgment was
rendered accordingly ; to reverse which a writ
of error was brought in this court by the de-
fendant below.
Mr. Sherwood, for the plaintiffs in error,
contended that an action for a false return
would not lie where the party makes no de-
fense, but suffers judgment to pass by default.
Every person is hound to take care of his own
rights, and vindicate them in due season and
proper order (I* Guen v. Gouterneur rf- Kern-
ole, 1 Johns. Cas., 502); and if he has the
means of defense, and neglects to use them,
lie is forever barred. In case of a false return
of a member of Parliament, an action does not
lie, unless the matter has been heard and de-
termined in Parliament. (Lutwy., 82-89 ; 1
Salk., 502; 6 Mod., 46.)
He next made various objections to the
pleadings, and pointed out several formal de-
JOHNS. REP., 14.
! fects in the record, which he said were not
i helped bv the Statute of Amendments ; but
which it is not necessary to state.
Mr. Van Buren, Attorney-General, insisted
! that none of the cases cited by the counsel for
the plaintiff in error were applicable. That
both the law and the fact were spread upon
the record, and that the declarations contain
sufficient averments to show a good cause of
action. The cases as to false returns by sher-
iffs were not analogous.
Per Uuriam. This case comes before the
court on a writ of error to the Common Pleas
of Delaware County. The action was against
Kidzie, the defendant below, for a false return
made by him, as a magistrate, in a cause of
David Booth Beers and Sally Beers, against
the Sackriders, defendants in the justice's
court, by reason of which false return the
judgment was affirmed. To the declaration in
the Common Pleas, the defendant pleaded that
the judgment of affirmance in the Supreme
Court on the certiorari was by default. To this
plea there was a demurrer ; on which the Com-
mon Pleas gave judgment for the plaintiff that
the plea was bad.
The question here is, whether a party in a
cerliorari, who suffers judgment to be taken
against him by default, can maintain an action
against a justice for a false return.
None of the cases referred to by the plaint-
iff's counsel warrant the position taken by him ;
and it does not seem to be supported by
*any general principles of law. TheP
declaration in this case, as it must in all such
cases, avers the falsity of the return and the
materiality of the matter alleged to be falsely
returned ; and if it was not material, the jus-
tice might have so pleaded as to have shown
this upon the trial. The plaintiffs aver that by
reason of such false return, they were unable
to obtain a reversal of the judgment. This is
sufficient. The judgment of the court below
must, accordingly, be affirmed.
Judgment affirmed.
Cited in— 1 Denio. 582: 1 Barb. Ch., 553.
JACKSON, ex dem. NEWKIRK ET AL.,
v.
EMBLER.
Wills— Life Estate.
A devise of land without words of perpetuity, and
where there is nothinir in the will from which a fee
can be raised by implication, vests only a life estate
in the devisee.
THIS was an action of ejectment, brought to
recover five eighths of a farm in the town
of Montgomery, in the County of Orange,
The cause was tried before Mr. Justice Platt,
at the Orange Circuit, in September, 1816,
when a verdict was taken for the plaintiff for
five eighths of the premises in question, sub-
ject to the opinion of the court.
The lessors of the plaintiff were five of the
heirs at law of Henry Newkirk, .who died
about the year 1798, leaving eight children his
heirs at law, after having made his will, dated
the 19th of June. 1797, in which were con-
198
SUPREME COURT, STATE OP NEW YORK.
1817
tained the following bequests and devises : "I
give, devise and bequeath to my beloved wife,
Agnes Newkirk, during her natural life, one
working horse, one breeding mare, three milk
cows, and six sheep, to be kept on the place."
"I give, devise and bequeath to my son James
Newkirk the two lots of land Nos. 5 and 6
(which are the premises in question), in the last
division of the five thousand acre tract,contain-
insr one hundred and forty acres." "Also, all
the hogs belonging to the place, with giving two
to my wife every year, to fatten with her own
grain for her own use." James Newkirk, by
deed dated the 26th of December, 1805, con-
veyed the premises to Sears, who, in 1807, con-
veyed them to the defendant. James Newkirk
died on the 25th of January, 1815, before the
commencement of this suit.
The case was submitted to the court without
argument.
199*] *Per Curiam. The lessors of the
plaintiffs claim five eighths of the premises as
heirs at law of Henry Newkirk, deceased ; and
the defendant claims under the title derived
from the will of Henry Newkirk, by which
the premises are claimed as devised to his son
James Newkirk. The words of the will are :
"I give, devise and bequeath to my son James
Newkirk the two lots of land Nos. 5 and 6, in
the last division of the five thousand acre tract,
containing one hundred and forty acres."
James Newkirk died before the commence-
ment of this suit ; and the only question is,
whether, under the above devise, he took a fee
or only a life estate. A life estate only passed
under this devise. There are no words of per-
petuity, nor is there anything in the will from
which a fee, by implication, may be inferred.
We are accordingly of opinion that the plaint-
iff is entitled to judgment for Jive eighths of the
premises.
Cited in-20 Wend., 445, 577 ; 69 N. Y., 247 ; 2 Barb.,
135 ; 30 Barb., 335.
THE OVERSEERS OF THE POOR OF THE
TOWN OF SCAGHTICOKE
THE OVERSEERS OF THE POOR OF THE
TOWN OF BRUNSWICK.
Pauper — Settlement of, by Purchase.
In order to acquire a settlement by purchase, a
contract for a conveyance on the payment of the
consideration money is not sufficient, but a title
must have been acquired ; and it must appear that
a consideration to the amount of $75 was actually
paid.
Whether an adjudication in an order of removal
that a pauper's legal settlement was in the town to
which he is removed, be sufficient ; or should it be
adjudged that it was his last legal settlement.
Quaere.
IN ERROR, on certiorari, to the Court of
General Sessions of the Peace for the
County of Montgomery.
Angle Preston, a pauper, was removed from
the town of Brunswick to the town of Scagli-
ticoke, by an order of two justices, dated the
1st day of September, 1815 ; in which it was
adjudged that the legal settlement of her, the
said Angle Preston, was in the town of Scagh-
ticoke. The overseers of the poor of the town
of Scaghticoke appealed from this order to the
832
Court of Sessions of the County of Montgom-
ery, who affirmed the order.
The return stated that a witness testified
that the father of the pauper once lived in the
town of Scaghticoke, where he owned a farm,
and that the pauper lived with him, and was
there married ; and that he supposed her fa-
ther paid £500 for his farm ; but on his cross-
examination, he said that he did not know
that the pauper's father ever paid anything for
the farm.
*Levinus Lansing testified that his [*2OO
father sold to the pauper's father the farm on
which he lived for £600, in the year 1785, and
gave him a bond for the deed, to be given on
the payment of the purchase money ; and that
on the llth day of December, 1792, the pau-
per's father sold it to the witness for £565, but
had no deed for it, and he assigned the bond
to the witness ; and the witness did not know
that he had ever paid anything for the farm.
No other evidence was stated in the return ma-
terial to the point decided by the court.
The return was submitted to the court with-
out argument.
Per Curiam. The two questions in this case
are : 1. Whether the order for removal is not
defective in not adjudging that Scaghticoke
was the last place of legal settlement of the
pauper. 2. Whether the facts in the case show
that Scaghticoke was in reality the last place
of legal settlement.
The ground on which this second point is
attempted to be supported, is the purchase of
an estate in that town by the pauper's father.
The mere contract for the purchase of land
will not satisfy this mode of acquiring a set-
tlement. And although the Act makes use of
the term "purchase," this necessarily implies
that a title must be given. But, at all events,
the consideration to the amount of $75, must
be paid ; and there is no evidence whatever
that the father of the pauper ever paid any
part of the consideration of his purchase. One
witness says he supposed he paid £500, but
the witness did not pretend to know anything
about it ; and the circumstances are very
strong to show that he did not pay it. On the
purchase he only got a bond for a deed, and it
is proved that he never got a deed ; by this
bond the deed was to be given on the payment
of the purchase money. It would, therefore,
seem very reasonable to conclude that he
would have had his deed if he had paid the
consideration. He afterwards sold his bond
to Levinus Lansing. The order of the Ses-
sions must, therefore, be reversed.
Order of Sessions reversed.
Cited in— 14 Johns., 471 ; 16 Johns., 280 ; 19 Johns.,
240.
*JOHN SHARP, Survivor of ROBERT [*2O1
SHARP,
THE UNITED INSURANCE COMPANY
OF THE CITY OF NEW YORK.
Marine Insurance — Action to Recover Premium
— Register Not Evidence of Ownership of
In an action to recover back a premium of insur-
ance, on the ground that the plaintiff had no inter-
JOHNS. REP., 14.
1817
SHARP v. UNITED INS. Co.
201
«st in the vessel at the time the insurance was made,
the reiriater, which was in the mime of other per-
sons, is not even prfma/ocfe evidence to show that
the plaintiff was not the owner of the vessel.
Citation*— t Taunt., 651; 2 Taunt., 5; 2 Campb., 107;
3O0W]h.MO; 3 Taunt.. 176; 8 East, 10; 4 East, 130;
14 East, 236 ; 16 East, 169.
fpIIIS was an action brought to recover back
J- a premium which had been paid by the
plaintiff to the defendants, for the insurance of
the ship Hercules, on a voyage from New York
to Liverpool, and back to New York. The
declaration contained a count for money had
and received, and other common counts in
jixxuiHiwt ; to which the defendants pleaded
the general issue. The cause was tried before
I//-. ./'/.>'/<•< Yates, at the New York sittings, in
November, 1816.
The policy of insurance was executed on or
about the 24th of October. 1810, when' it bore
date (after a written application to the defend-
ants by the plaintiff and Robert Sharp), and
purported to be on account of the plaintiff and
Robert Sharp. A note for the premium,
amounting to $1,801.25, bearing the same date
with the policy, and payable in nine months,
was drawn by Robert 'and John Sharp, and
indorsed by David Dunham ; which note, after
having been twice renewed, was paid on or
about the 2d of April. 1812. In order to show
that the plaintiff, at the time of effecting the
insurance, had no interest in the vessel, a cer-
tificate of registry was produced in evidence,
which was admitted by the defendant's counsel
as sufficient proof of the registry, but its ad-
missibility as proof of the ownership of the
vessel was objected to ; the judge, however,
allowed it to be read in evidence. This certifi-
•cate was dated the 22d day of June. 1809, and
stated that David Dunham, of the City of New
York, had taken the oath required by the Act
of Congress Concerning the Registering or Re-
•cording of Ships or Vessels, and had sworn
that he, together with Robert Sharp, of said
City, merchant, were the only owners of the
ship Hercules. It was admitted that there had
been no change of the registry until after the
termination ot the voyage insured.
The defendant's counsel moved for a non-
suit, on the ground that the register was not
sufficient proof of the ownership of the vessel ;
that there was no sufficient proof of the pay-
ment of the premium by the plaintiff and
Robert Sharp ; that by their application for
insurance and accepting the policy, they had
admitted themselves to be owners ; ano! that
2O2*| the acts of the *plaiutiff and Robert
Sharp and David Dunham, in making the in-
surance and giving and indorsing the note for
the premium, and paying the same after the
termination of the risk, recognized and admit-
ted the ownership of the vessel to have been in
the plaintiff and Robert Sharp at the time of
effecting the insurance. The judge, however,
denied the motion, and a verdict was found
for the plaintiff for the amount of the premium, j
with interest from the date of the policy. The
defendants moved for a new trial.
Mr. S. JOMS, Jr., for the defendants, con-
tended : 1. That the register alone was not
sufficient evidence of ownership in David Dun-
ham and Robert Sharp, at the time the insur-
ance was effected. The Act of Congress for
the Registry of Vessels is solely for the purpose
JOHNS. REP., 14. N. Y. R, 5. {
i of giving them a national character, and con-
stituting them American ships. In England,
the register is not even primafitde evidence of
ownership. In Frazer v. I/opinn* A Long,- 2
Camp. Cas.. 170; 8. C., 2 Taunt., 5, Sir
James Mansfield held that entries in the cus-
tom house books of the persons registered
as owners of a ship were not evidence of
ownership; and in FUnrer v. Young, 8 Camp
240 ; 5 Peake's Ev., 406. Lord Ellenborough
held the same doctrine. So the Court of
C. B., in the case of Pine \. Anderson, 4
Taunt., 652, decided, that in an action on
a policy of insurance, the certificate of registry
was no evidence for the plaintiff that the in-
terest in the ship was in the persons in whom
it was averred, and in whose names the insur-
ance was effected. The property in a ship is
transferred by the bill of sale, and that, with
the certificate of registry or possession of the
ship, must be shown, to support the averment
of interest in the plaintiff. (Hubbard v. Johns-
ton. 8 Taunt., 177 ; 8 East, 10 ; 13 East, 28 ;
14 East, 226.) The name of the true owner is
not always inserted in the register of the ship.
(14 East, 226.) An equitable or qualified inter-
est may be insured ; and proof of such an in-
terest will support the action on the policy.
The question in this case is, what is proper
evidence of an insurable interest ; not what is
a legal or technical ownership.
The certificate of registry was not sufficient
evidence, then, of a want of interest in the
assured to entitle them to a return of the pre-
mium.
2. Acts of ownership are sufficient evidence
of interest ; and the very act of making the
insurance is proof of ownership.
3. It was a fraud in the plaintiffs to repre-
sent themselves as owners, and obtain insur-
ance as such, knowing, at the time,*that [*2O3
it was not the fact. Can a person who effects
insurance, with full knowledge that he has no
interest, recover back the premium on the
ground of a want of interest ?
4. If the registry was evidence, the plaint-
iffs could recover only in proportion to the in •
terest proved by the register. (Murray A
Ogden v. Col. Ins. Co., 11 Johns., 302.)
Mr. Caines, contra, contended that the cer-
tificate of registry was, at least, prima fade
evidence of ownership. It is made so by stat-
ute ; the Acts of Congress Relative to the
Registry of Ships require certain acts to be
done to entitle the party to this evidence of
ownership. The privileges of the American
character, conferred by the certificate of regis-
try, cannot be obtained without an affidavit of
the ownership. (Wood* v. Courier, 1 Dall.,
141 ; L. U. 8., 133, 2d Cong., sess. 2, ch. 1,
sees. 4, 9.) The collector keeps in a book,
a record or registry of the facts, of which the
certificate is an abstract. In the case of the
United Statet v. Johns, 4 Dall.. 412, the Circuit
Court of the United States, for the district of
Pennsylvania, decided that, as it was made
the duty of the Collector to record in a book
all manifests, a copy of the manifest, under
the hands and seals of the custom house offi-
cers, was admissible evidence. Philips, in
his Treatise on Evidence, p. 808, 809. lays it
down as settled law, that the certificate of
registry of a ship, is conclusive evidence of
I 833
203
SUPREME COURT, STATE OP NEW YORK.
1817
want of title against those who are not named
in the register ; that they cannot legally be
joint owners, though the converse of the rule
may not be true. In Curtis v. Pei*ry, 6 Ves.,
Jr., 739, Lord Eldon held4hat where a ship is
registered as the sole property of one of two
partners.she must be deemed the property of the
one in whose name she was registered, as among
creditors, iu a case of bankruptcy. In Murray
v. The Columbian Ins. Co. the register was pro-
duced.
Again ; where no risk has been begun,
whether it be owing to the fault, pleasure or
will of the insured, or to any other cause, ex-
cept fraud, the premium must be returned.
(Marsh, on Ins., 654 ; Doug., 271 ; Cowp., 666.)
Misrepresentation, without fraud, is nothing.
If a vessel is insured as the property of B,
and it turns out that he has no interest, but
the shjp belonged to A, an action lies, to re-
cover back the premium. (Steinbach v. Rhine-
lander, 3 Johns. Cas., 269.)
SPENCER, /., delivered the opinion of the
court :
The plaintiff seeks to recover back the pre-
mium of insurance on the ship Hercules, on a
voyage from New York to Liverpool, on the
allegation that he and his brother Robert Sharp
i2O4*] wore not owners *when the policy was
effected. To prove this, the plaintiff offered
in evidence the register of the ship, dated the
2d of June, 1809, by which it appears, on the
oath of David Dunham, that he, together with
Robert Sharp, were the owners ; the policy
bears date the 24th of October, 1810.
The only question in the case is, whether the.
register is evidence, prima facie, that Robert
and John Sharp were not the owners. The ob-
ject of the register is to show the character of
a vessel, and to entitle her to the advantages
secured by law to vessels of our own country.
It was granted, on the oath of one of the own-
ers, and there can be no reason for admitting
this as proof of ownership, to contradict the
fact set up by the act of procuring an insur-
ance on the same ship, as owned by different
persons. It would be incongrous to allow a
person who applies for an insurance on a ship,
representing himself to be the owner, to set up
the act of obtaining a register, as evidence to
the contrary ; especially after the lapse of sev-
eral months after it bears date. Dunham was
a competent witness, and he ought to have been
examined, or some proof should have been
offered to show how the ownership stood when
the insurance was effected. The oath of the
owner, in obtaining a register, is proof for no
other purpose. The register would not be evi-
dence against Sharp, unless it were shown that
he sanctioned or adopted it. The principles
adopted by the court, in this case, are fully
supported by authorities. (4 Taunt., 651 ; 2
Taunt., 5; 2 Campb., 107 ; 3 Cowp., 240 ; 3
Taunt., 176; 8 East, 10; 4 East, 130; 14
East, 226 ; 16 East, 169.) There must be a
new trial, with costs to abide the event of the
suit.
New trial granted.
Cited in— 15 Johns., 303: 7 Cow., 699; 26 N. Y., 100;
24 How. Pr., 486; 3 Duer, 452; 2 Hall, 20; 1 Daly,
174,305; 6 Wall., 30: 2 Black., 388; 1 Cliff., 381; 1
Wood. & M., 314 ; Newb., 312.
834
TAYLOR ET AL. ®. MARSHAL.
Evidence — In Action to Recover Value of Prop-
erty.
In an action to recover the value of property
which had been taken under an execution against
A, by a person claiming to have purchased the
property of A, evidence of a conversation between
the plaintiff and A, in which the previous sale was
admitted, is not competent evidence of the sale.
IN ERROR, to the Court of Common Pleas
of the County of Courtlandt.
*Tbe defendant in error brought an [*2O5
action in the court below, to recover the value
of a pair of oxen which had belonged to one
Ward, and were taken by Taggart, one of the
defendants below, who was a constable, under
an execution issued in favor of the other de
fendants below, against Ward. The plaintiff
below, produced at the trial one Matilda
Marshal, and offered to prove by her that she
heard the plaintiff converse with Ward about
the cattle, and that it was agreed between
them that Ward had, previously to that day,
sold the cattle to the plaintiff ; but she was-
not present at the time the contract was made.
The defendants below objected to the testi-
mony, but the court permitted it to go to the
jury' and a verdict was found for the plaintiff
below. The defendants below tendered a bill
of exceptions, which was removed into this
court by writ of error.
The case was submitted to the court with-
out argument.
Per Curiam. The case is imperfect in not
stating whether the cattle were in Ward's pos-
session or not when taken on the execution ;.
nor whether the conversation proved by
Marshall was before of after the levying the
execution on the oxen.
We think, however, there is enough to show
that the evidence was improper, and that it
may fairly be intended that the conversation
was after the judgment and execution ; it was
an attempt to prove and set up an antecedent
sale, by the confessions and declarations of the
parties, to the prejudice of the rights of a
third person ; nothing but the fact of the sale,
derived from witnesses present at it, could be-
legally proved.
Judgment reversed.
BRISTOL v. BARKER.
Banks — Unincorporated Banking Associations —
Construction of Statute.
The Act to Restrain Unincorporated Banking As-
sociations (2 It. L., 234), extends only to associations
or companies formed for banking: purposes, and
not to an individual who carries on banking opera-
tions alone, and on his own credit and account.
Citation— 2 N. R. L., 234.
THIS was an action brought to recover the
penalty given by the second section of the
Act of the 6th April, 1813, entitled An Act to
Prevent the Passing and Receiving of Bank
Notes less than *the Nominal Value [*2O(i
of One Dollar, and to Restrain Unincor-
JOIINS. REP., 14.
1817
MACOMB v. THOMPSON.
206
porated Banking Associations. The cause was
tried before His Honor, the Chief Justice, at the
New York sittimrs, in April, 1816.
At the trial, Walter Morton, Cashier of the
Exchange Bank in the City of New York, was
examined as a witness on the part of the
plaintiff, who testified that in the month of
April, 1815. Jacob Barker, the defendant, es-
tablished a banking house in the first ward of
the City of New York, which was denomi-
nated the Exchange Bank : that the defend-
ant has, since the establishment of the Bank,
issued notes in his own name, and has received
deposits and made discounts in the manner
usually done by incorporated banks, and that
he carried on the business of a private banker,
on his individual account and responsibility,
under the name and style of the Exchange
Bank. The plaintiff having rested his cause,
the defendant moved for a nonsuit, which
was granted.
The plaintiff now moved to set aside the
nonsuit, and the case was submitted to the
court without argument.
THOMPSON, Ch. J., delivered the opinion of
the court :
The only question in this case is, whether
the Act to Restrain Unincorporated Associa-
tions (2 N. K. L., 234) applies to an individ-
ual, who may alone, and on his own credit
and account, carry on banking operations.
The Act declares that no person unauthorized
by law shall subscribe to or become a member
of any association, institution or company, or
proprietor of any bank or fund, for the purpose
of issuing notes, &c.. or transacting the usual
business of incorporated banks ; and any per-
son, unauthorized by law, as aforesaid, who
shall subscribe or become a member or pro-
prietor, as aforesaid, shall forfeit $1,000.
It ought, in the first place, to be observed
that this is a penal Act, and therefore, to be
construed strictly. It is very evident, from
the structure of the whole clause in the Act,
that it was intended to extend only to associa-
tions or companies formed for banking pur-
poses. This construction comports with the
title of the Act, which, although no part of
the Statute, shows, in some measure, the in-
tention of the Legislature. No difficulty arises
in giving force and effect to all the words
used in the Act, and still confine their applica-
tion to companies or associations, except as to
the word " proprietor." in regard to which
iiO7*J there appears. *at first view, to be some
little difficulty. But taking the whole section
together, this word may be satisfied, by con-
sidering it used as synonymous with the word
" member ." and the clause may be read and
understood as declaring that no person, un-
authorized by law. shall become a member or
proprietor, with others, of any bank or fund,
&c. This construction is much strengthened
by the last clause in the section, which de-
clares that all notes and securities, «fee., made
or given to any such association, institution or
company, not authorized us aforesaid, shall be
null and void. The word " proprietor" is
here not used. If the prohibition bad been
intended to extend to individuals, this cause
would, doubtless, also have made void till notes
given to any proprietor of any hank or fund.
JOHNS. KEP., 14
We are, accordingly, of opinion that the mo-
tion to set aside the nonsuit must be denied.
Motion denied.
Affirming— Anth., 235.
Cited in- 15 Johns., 37».
MACOMB AND BOUCK e. THOMPSON.
Arbitration — Award — Breach of Covenant in
Paying Sum Awarded — Pleading.
. Where, by articles of agreement, it wassubmitted
to arbitrators, to determine the sum which the de-
fendant should pay to the plaintiff for certain land,
the title of which the defendant acknowledged to
be in the plaintiff, and which the defendant occu-
pied or claimed ; and such amount, on being ascer-
tained to be paid, or secured to be paid, by the de-
fendant to the plaintiff, and the land to be conveyed
to the defendant ; and the arbitrators awarded the
land to be conveyed to the defendant, and that he
should pay the plaintiff, or secure to be paid, a cer-
tain sum ; in an action for a bn-ach of the covenant,
in not imying.or securing to be paid.the sum award-
ed, a plea that the defendant did not occupy the
land which was the subject of the award, is bad, not
being co-extensive with the articles of agreement
on which the plaintiff declared, and which applied
to the land that the defendant claimed, as well as
what he occupied.
Where, in a declaration in covenant, the covenant
is set forth in h(?c verba, concluding with "sealed
and delivered," &c., and the name of the covenant-
or with the letters (L. 8.), but it is nowhere else til-
leged that it was sealed, the declaration is bad on
general demurrer.
THIS was an action of covenant. The dec-
laration contained five counts. The first
count stated that the plaintiffs had caused ac-
tions of ejectment to be commenced in the Su-
preme Court, on the demise of themselves and
two other persons, against the defendant and
six other persons, for land in the town of
Schoharie, being land in the possession and
occupancy of the defendant, and the other six
persons, as his tenants ; that while these suits
were depending, to wit ; on the 22d of Septem-
ber. 1813, by certain articles of agreement,
made between the plaintiffs and the defend-
ant, the defendant admitted and acknowledged
thereby that the plaintiffs had the legal title to
the lot* of land hereinafter mentioned, in the
patent to Lawyer, Zimmer and others, and
the parties agreed that Archibald Croswell,
John Adams and Jabez D. Hammond, should
determine, under their hands, or the hands of
any two of them, on or before the 10th of June
i *then next, the sum that the defendant [*2O8
! should pay. under all the circumstances of the
I case, for the lands so occupied, or claimed by
i the defendant ; and also for costs; which sum
! should be payablejwith lawful interest, in four
I equal yearly installments, to be secured by
j bond and mortgage on the said lot of land, or
i the money be paid within ten days after the
appraisement, as the defendant should elect ;
and that the plaintiffs should, with their wives,
in consideration of such sum so to be ascer-
tained and secured, convey such lot of land,
occupied or claimed by the defendant, to him
in fee ; that the arbitrators undertook the
trust, and did, on or before the time limited
in the articles of agreement, to wit : on the
19th of May, 1814, by writing under their
hands, award that the 'plaintiffs, and their re-
spective wives, convey to the defendant lot
885
208
SUPREME COURT, STATE OP NEW YORK.
1817
No. 3, in the first allotment of Lawyer and
Zimmer's patent ; and that the defendant, in
consideration thereof, secure, by bond and
mortgage, to the plaintiffs, or either of them,
the sum of $3,698.78, of which $3,234 was
the value of the land, and the sum of $465.78
for the taxed costs in the actions of ejectment.
The plaintiffs averred .that they executed a
deed, and tendered the same to the defendant,
according to the articles of agreement, which
he refused to accept, and required the defend-
ant to pay them the said sum of money, or se-
cure the amount, and assigned the breach in
his not paying or securing the same. The
second, third and fourth counts were, as far
as respects the point decided by the court, the
same with the first.
The fifth count commenced with reciting
that certain other articles of agreement were
made and concluded on the 22d of September,
1813, between the plaintiffs of the one part, and
the defendant, Benjamin Wilber, and a num-
ber of other persons, of the other part, at, &c.,
the date whereof is, on the same day and year
last aforesaid, in the words and figures follow-
ing, to wit : the agreement is then set out in
luxe, verba, concluding with the words " sealed
and delivered," &c., which was executed by
the defendant for himself and six others, as
his tenants ; and to the names of the cove-
nantors were annexed scrawls, inclosing the
letters (L. S.); but there was no allegation in
the declaration itself, that the defendant sealed
the agreement, nor was there a profert of the
agreement ; it then recited that the arbitrators
took upon themselves the burden of the
award, and on the 19th of May, 1814, made
their award in writing, under their hands and
2O9*] seals, in the words *and figures follow-
ing, to wit : (here the award was set forth in
JKKC verba). The plaintiffs then averred an offer
to execute a deed to the defendant, and a ten-
der of a draft of a conveyance to him for his
approbation, but that the defendant discharged
the plaintiffs from executing any deed ; and
that the plaintiffs required the defendant to
pay the sum awarded or secure the amount
thereof, and assigned a breach in his not pay-
ing the money or securing the same.
The defendant, after oyer of the articles of
agreement and award, pleaded to the first four
counts of the declaration that at the time of
making the articles of agreement or the award,
he did not occupy the whole of lot No. 3 in
the first allotment of Lawyer and Zimmer's
patent. To the fifth count he demurred gen-
erally, and the plaintiffs joined in demurrer.
And the plaintiffs demurred generally to the
defendant's plea, who joined in demurrer.
Mr. J. V. N. Yates, in support of the de-
murrer.
Mr. 8. A. Foot, contra.
Per Curiam. The declaration in this case is
on articles of agreement entered into between
these parties, relative to submitting to arbitra-
tion certain disputes touching some land occu-
pied or claimed by the defendant. By this
agreement the plaintiffs' title is acknowledged;
and the question submitted to the arbitrators
was, how much should be paid for the land.
The defendant signed for himself and six other
persons, as his tenants ; and by the award, the
836
arbitrators directed the plaintiffs to convey to
the defendant the whole of lot No. 3. The
declaration avers that this was claimed or oc-
cupied by the defendant. To the first four
counts in the declaration, the defendant pleads
that he did not occupy the whole of lot No. 3.
To this plea there is a demurrer, because the
defendant says that he did not occupy.said lot,
whereas he should also have pleaded that he
did not claim said lot. The plea is in this re-
spect defective. The articles of submission
extend to all the land occupied or claimed by
the defendant ; and the declaration avers that
the whole of lot No. 3 was occupied or claimed
by the defendant. If this was denied, the
plea should have been as broad as the submis-
sion *and the averment in the declara- [*21O
tion. The plaintiffs are, therefore, entitled to
judgment on this demurrer.
The defendant demurs to the fifth count, and
the cause of demurrer is the want of an aver-
ment that the agreement was sealed. This, in
the case .of the same plaintiffs against Wilber,
decided this term, has been considered good
cause of demurrer ; and the defendant is, there-
fore, entitled to judgment thereon.
Judgment accordingly.
Cited in— 3 Abb. App. Dec., 442 ; 6 Park., 687.
SHEPHARD t>. LITTLE.
Assumpsit — Parol Evidence — When Admissible
to Prove Consideration Unpaid.
Where the consideration of a conveyance is ex-
pressed therein, and that it was paid by the grantee
or assignee, parol evidence is, notwithstanding1, ad-
missible to snow that it had not been paid.
Where the plaintiff assigned a lease to the defend-
ant, in which the consideration was expressed to be
8500 in hand paid, under an agreement that the de-
fendant should sell the term, and pay himself a
debt due from the plaintiff, and pay over the bal-
ance to the plaintiff ; the plaintiff in an action for
money had and received, to recover the balance
from the defendant, is not precluded by the assign-
ment from showing the circumstances of the case.
Assumpsit will lie to recover the consideration
money of land sold.
Citations— 1 Johns., 139 ; 2 Dl., 1249 ; 7 Johns., 342.
IN ERROR to the Court of Common Pleas of
the County of Oneida.
This was an action of assumpsit for money
had and received, brought by the plaintiff in
error against the defendant in error, which
was tried in December, 1815, in the court be-
low.
At the trial, the plaintiff offered to prove
that being in possession of a certain piece of
land under a lease for years, and his interest
in the same being worth about. $500, and
being indebted to one Babcock in the sum of
about $180, the defendant agreed to advance
to the plaintiff the money to pay Babcock; and
the plaintiff, for his security, agreed to assign
him the lease, which the defendant was to sell ;
and after deducting from the proceeds the
amount paid to Babcock, to pay over the bal-
ance to the plaintiff ; that the plaintiff accord-
ingly assigned, under seal, the lease absolutely
to the defendant ; that the consideration of the
assignment was expressed therein to be $500
in hand paid ; and that the defendant, having
JOHNS. REP., 14.
1817
LAXE v. HITCHCOCK.
210
sold the land, for which he received $500, re-
fused to pay any part thereof to the plaintiff.
The defendant's counsel objected to this evi-
dence, which was rejected by the court, and a
verdict found for the defendant. The plaint-
iff tendered a bill of exceptions, which was
removed into this court by writ of error.
2 1 1*J *The case was submitted, with a ref-
erence to the authorities, without argument.
SPENCER. «/., delivered the opinion of the
court :
The court below proceeded, probably, on
the principle that the assignment contained the
written contract of, the parties, and that it
would be contradicting and varying it to ad-
mit the proof offered. I think they erred in
the application of a well-established rule of
law to the case before them.
If a consideration be expressed in a deed of
bargain and sale, of the slightest pecuniary
nature, it is sufficient ; and it may be doublet)
whether, in an assignment of a leasehold in-
terest under seal, any consideration whatever
is necessary. It certainly is not in a deed of
feoff ment, "accompanied by liverv and seisin.
The case of Schermerhorn v. Vanderheyden,
1 Johns., 139, is referred to, to show that the
court below decided correctly. If that case is
well understood, it warrants no such conclu-
sion. The case of Preston v. Mercian, 2 Bl.,
1249, was cited and relied on by the court. In
that case it was decided that parol evidence
was inadmissible to prove an additional rent
payable by a tenant, beyond that expressed in
a written agreement for a lease, and Black-
stone, Justice, said : " Here is a positive agree- ,
ment that the tenant shall pay £26 : shall we '
admit proof that it means £28, 12*. 6rf.?" But, j
he added, as to collateral matters, it might be !
otherwise ; he might show who is to put the
house in repair, or the like, concerning which
nothing is said; but he cannot, by parol evidence,
shorten the term or alter the rent. In Maigley
v. Hauer, 7 Johns., 342, we refused to admit
parol evidence of a consideration of a different
nature from that expressed in the deed of con-
veyance.
The evidence offered in this case steers clear
of the principles adopted in the cases cited.
Here the plaintiff does not attempt to set up a
different consideration from that expressed in
the deed of assignment. He merely offered to
show that it was not paid, and that the amount
to IK- paid him for the assignment was to de-
pend on an event subsequently to happen, to
wit : the sale by the assignee of the property
assigned.
The foundation of the plaintiff's suit is, in
212*] fact and substance, *no other than a
claim to be paid the consideration money of
the sale of the leasehold interest ; and we have
recognized the principle, that assumpsit will
lie for lands bargained, sold and conveyed,
and in every deed the consideration is specified
and admitted to have been paid in hand.
The date of a deed and whether the consid-
eration was paid or not. are facts open for in-
quiry by parol proof. If notes of hand, which
are of no higher nature than verbal promises,
and are classed among parol contracts, were
given for the consideration money of a con-
veyance of land, could there be any doubt
JOHNS. REP., 14.
that such notes would be recoverable, where
the deed expressed that the consideration was
paid in hand ? Yet it is certain that between
the contracting parties you may inquire into
the consideration of a note. If so. then you
could show that they were given for the land
conveyed, and by showing that the considera-
tion was confessed to be paid by the deed, a
recovery would be defeated by the higher
proof arising from the deed. But this is not
the case ; and though, when one species of
consideration is expressed, you cannot prove
another or different one, and although you
cannot, by parol, substantially vary or con-
tradict a written contract, yet these principles
are inapplicable to a cane where the payment
or amount of the consideration becomes a ma-
terial inquiry. It is well established, by re-
peated decisions in this court, that you may
explain a receipt for money ;' and so you may,
in that respect, the receipt of money confessed
in a deed.*
Judgment reversed.
Distinguished-6 Barb., 108.
Cited in-20 Johns., 340; 7 Cow., 382; 9 Cow., 270;
9 Wend., 818 : 14 Wend., 118 ; 16 Wend.. 468 ; 2 Denio,
315 ; 1 N. Y.. 514 : 10 N. Y., 528; 16 N. Y., 538 ; 28 X.
Y., 380: 43 N. Y.. 552; 70 N. Y.. 59; 13 Hun, 185; 5
Barb.. 321, 457: 25 Barb., 212: 6 Rob., 235; 1 Daly,
470 ; 9 Allen, 390 ; 2 McLean, 546.
*LANE ET ux.
HITCHCOCK.
[*213
Mortgage — Assignment — Sale of Mortgaged Prop-
erty— Action by Assignee Against Purchaser —
Pleading, What Must Show.
In an action by an assignee of a mortgagee against
a purchaser from the mortgagor, subsequent to the
execution of the mortgage for removing buildings
from the premises, after they had been advertised
for sale, under the power in the mortgage, and be-
fore the sale, whereby the premises were rendered
inadequate to pay the money due, and were sold for
a leas sum than they otherwise would have brought;
it must be averred in the declaration, and proved
on the trial, that the mortgagor was insolvent and
had no other property than the mortgaged prem-
ises, out of which the debt could be satisfied ; and
without such averment in the declaration, no proof
of those facts can be introduced.
Citation— 11 Johns., 140.
THIS was an action on the case which was
tried at the Delaware Circuit, in 1816,
before His Honor, the Chief Justice.
The declaration stated that on the 20th day
of March, 1802, William Reside mortgaged to
William II. Ludlow a lot of land in the town
of Delhi, in the County of Delaware, to secure
the payment of $1,001.87, by the 20th of
March, 1803, according to the condition of a
bond, bearing even date with the mortgage,
executed by Reside to Ludlow, with the usual
power to sell, in case of default of payment .
1.— See Tobey v. Barber. 5 Johns., 68 ; Monell v.
Lawrence. 12 Johns.. 531. But see Alner v. George,
1 Cam pi ... 503.
2.— In Kip v. Denniston, 4 Johns., 23, the court
held that when* two trustees had executed a con-
veyance of land. In which was contained a joint ac-
knowledgment of the recept of the consideration
money, it was competent for one of the trustees to
show that the whole of the money went into the
hands of the other, and thus exonerate himself
from liability.
213
SUPREME COURT, STATE OF NEW YORK.
1817
that on the 1st day of June, 1807, the mort-
gaged premises, with the securities relating
thereto, were assigned to Van Rensselaer ; and
that on the 15th of June thereafter, Reside
being indebted to Van Rensselaer in the fur-
ther sum of $1,000, it was agreed between
them, in order to secure the said sum of $1,-
000, that the mortgage should stand as security
to Van Rensselaer for the sum of $2,163.69,
and Reside executed a bond and covenant to
that effect to Van Rensselaer ; that on the 28th
of July, 1808, Van Rensselaer assigned his
interest in the mortgaged premises to the
plaintiffs, who, on the 9th day of April, 1815,
default in payment having been made, adver-
tised the premises for sale at public vendue on
the 2d day of November then next ; yet that
the defendant, well knowing the premises
above mentioned, but intending to injure and
aggrieve the plaintiffs, and to prevent their
having payment and satisfaction of the amount
due upon said mortgage, and the interest there-
on, by a sale of the premises ; and also to lessen
the value of the said mortgaged premises, and
to render them of less value than the amount
charged thereupon, did wrongfully take down,
demolish, waste, despoil and remove and con-
vert to his own use certain tenements of the
value of $1,000, to wit : a house of the value
af $800, and a barn of the value of $200,
being part and parcel of the mortgaged prem-
ises, well knowing that the same were adver-
tised for sale, and were inadequate to pay the
moneys charged and due upon them ; by rea-
son whereof the plaintiffs were prevented from
selling the mortgaged premises, with the ap-
purtenances, for a sum equal to the money
2 14*] due, with interest ; and *that the prem-
ises, with the appurtenances, after the removal
of the said house and barn, were not •worth
and in value equal to the money and the in-
terest due on the mortgage, and were sold for
a less sum than they otherwise would have
been worth and sold for, to wit : the sum of
$1,000. The defendant pleaded not guilty,
with notice that he should give in evidence,
on the trial, that on the 15th of May, 1805,
Reside sold him half an acre of land, being
part of the mortgaged premises ; that the de-
fendant erected a house and barn thereon, at
his own cost and expense, and on the 4th
of May, 1815, took down and demolished the
house and barn, which were no part of the
mortgaged premises at the time the mortgage
was executed.
At the tiial. the plaintiffs proved the mort-
gage and assignments stated in the declaration,
a regular sale under the power in the mort-
gage for $1,000, and the removal of the house
and barn by the defendant previous to the
sale. The defendant proved the conveyance
from Reside, mentioned in his notice, and the
subsequent erection of the house and barn ;
and a witness stated that the farm now was
worth $4,000. The counsel for the plaintiffs
then offered to prove that Reside was insolvent,
and had no other property than the mortgagee
premises out of which the bond and mortgage
could be satisfied, and that the house and
barn were removed by the defendant with a
view to lessen the value of the premises ; bui
the Chief Justice rejected the evidence, anc
ordered the plaintiffs to be nonsuited.
838
The plaintiffs now moved to set aside the
nonsuit, and the case was subihitted to the
:ourt without argument.
Per Curiam. This case is supposed to be
within the principles which governed the de-
cision in Yatet v. Joyce, 11 Johns., 140. That
ase came before the court on demurrer, and
all the averments contained in the declaration
were, of, course, admitted. The declaration,
in that case, averred the insolvency of the de-
fendants in the execution; that they had no
other estate or property than the lands on
which the judgment was a lien ; and that the
plaintiff, by the waste committed by the de-
fendant, was injured, ariti thereby deprived
of recovering a part of his judgment.
In the case now before us, it was offered on
the trial to prove that the mortgagor was in-
solvent, and had no other property than the
"mortgaged premises out of which the | *2 1 5
debt of the plaintiff might be satisfied ; but
there was no averment in the declaration to
warrant such proof. These were material
and indispensable facts, in order to give (he
plaintiff a right of action ; and to allow this
proof without the averment would be taking
the defendant by surprise. He would not
have notice to come prepared to disprove or
explain any testimony that might be given on
the trial on these points. In the case of Tales
v. Joyce the decision is placed on the ground
that the plaintiff was actually damnified by
the fraudulent misconduct of the defendant.
But from the proof in this case, it appears
that the mortgaged premises were worth more
than the mortgage money, at this time, since
the removal of the house and barn. There is
no evidence, therefore, that the defendant in-
tended, or has, in fact, deprived the plaintiff
of the recovery of his money. The evidence
offered was properly excluded for the want of
proper averments. The motion to set aside
the nonsuit must be denied.
Motion denied.
Cited in— 17 Wend., 557 ; 3 Denio, 235 ; 4 N. Y.. 112 ;
3 Barb., 351, 521 ; 3 Rob., 201 ; 120 Mass., 515 ; 39 N. J.
L., 332.
WHITNEY AND BANCROFT
v.
STERLING AND HUNTER, Who are Im-
pleaded with SAMUEL, BROWN and JACOB
BROWN.
Partnership — General Reputation as Evidence
of— Mere Acknowledgment of Other Partners
is not Sufficient to Charge one as Partner.
General reputation, connected with corroborat-
ing1 circumstances, will be sufficient, at least prima
facie, to establish the fact that A was a partner
with B and C.
And if B and C have acknowledged the existence
of articles of copartnership between them and A,
which, upon due notice, they refuse to produce at
the trial, the jury may reasonably infer that, if pro-
duced, they would have shown the fact of a part-
nership.
But the mere acknowledgments of B and C that
A was their partner, would not be sufficient to
charge him.
On a case subject to the opinion of the court, the
same conclusion will be drawn from the evidence
as the jury would have been authorized to make.
JOHNS. REP., 14.
1817
IN THE MATTKR OF CYRUS CHIPMAN.
215
THIS was an action of <utump*it for goods
sold and delivered, which was tried be-
fore Mr. Justice Van Ness, at the Jefferson
Circuit, in June, 1816. The defendants Hun-
ter and Sterling had been taken upon the
f-ilii<i.i : the other two defendant* were re-
turned " not found."
The goods in question were purchased of
the plaintiffs by the direction of Samuel
Brown, on account of the firm of Hunter,
Sterling & Co., of which firm Samuel Brown
was proved to be a partner with the defend-
ants Hunter and Sterling. A witness stated
216*] *that he had heard Hunter and Ster-
ling say thai Samuel Brown and Jacob Brown
were partners with them ; and that Jacob
Brown was publicly and universally reputed
to be a partner of the firm, which the witness
had never heard contradicted by anyone.
The witness also stated that Samuel Brown,
at the same time, had a store in Brownville,
the store of Hunter, Sterling & Co. being at
Adams, in Jefferson County ; and that he uad
often seen Jacob Brown there, examining the
books, accounts and property in the store,
which he appeared to be doing as a partner ;
and that when Samuel Brown took the benefit
of the Insolvent Act, in 1811, the goods in
the store at Brownville were disposed of to
Hunter, Sterling «fc Co., and sent to the store
in Adams. Two other witnesses stated the
acknowledgments of Hunter and Sterling that
Jacob Brown was a partner with them, and
the general reputation of the fact. One of
these witnesses testified that he had requested
Hunter and Sterling to show him the articles
of copartnership, which they refused to do,
alleging that they were indemnified by Jacob
Brown, and that it would be improper to do
so. The defendants were called upon by the
plaintiff's counsel, under a notice duly
nerved, to produce the original articles of co-
partnership of the firm of Hunter, Sterling &
Co., which they refused to do. A verdict
was found for the plaintiffs, subject to the
opinion of the court.
The case was submitted to the court with-
out argument.
Per Curiam. The only question in this case
is, whether the testimony was sufficient to
charge Jacob Brown as a partner with the
other defendants. It is abundantly proved
that the other defendants were in partnership,
and. so far as general reputation would go to
establish the fact, Jacob Brown was also one
of the firm of Hunter. Sterling & Co., to
whom the sale of the goods in question was
made.
There was no objection to the testimony of
general reputation. It must, therefore, be
considered as evidence in the cause, and as
forming a part of the testimony upon which
the jury was to determine the fact of partner-
ship. Nor could any objection have been
made to such evidence. Whether the general
reputation ought to be sufficient, may be ques-
tionable. But such testimony is comment ;
and there are several circumstances in the
case, which go very much in corroboration of
2 1 7*J it. The bare declarations *of Hunter
and Sterling could not be received, to charge
Brown as a partner. But their confessions
JOHNS. REP., 14.
went to establish the fact that the articles of
partnership were entered into between the
parties, composing the firm of Hunter, Ster-
ling «fc Co. Notice had been given to produce
those articles, and the defendants refused to
produce them. This refusal afforded strong
grounds of suspicion, that if produced they
would have shown that all the defendants
were partners ; and the jury would have been
warranted in drawing every reasonable infer-
ence against the defendants, by reason of such
refusal. The two Browns were not before
the court to object to anv of the evidence ;
they, however, will not be affected by the
judgment, unless properly belonging to all the
defendants, jointly, can be found, upon which
to levy the execution. Hunter and Sterling
cannot complain, because the testimony fully
establishes their confessions that the firm of
Hunter, Sterling & Co. was composed of the
four defendants. This being a case subject
to the opinion of the court, we must draw the
same conclusions from the evidence that the
jury would have been authorized to draw ;
and the evidence was enough, at least prima
facie, to establish the partnership. The plaint-
iffs are accordingly entitled to judgment.
Judgment for the plaintiffs.
Limited and Explained— 30 Wend., 88; 22 Wend.,
271 ; 3 Hill, 333.
Kollowed-5 Oill. & J.. 383.
Cited in-10 Paige, M»: 1 Barb. Ch., 541, 11. ; 8
Barb., 349 ; 7 How. Pr.. 272 ; 2 Sand.. 27 ; 5 Peters,
574; 2 How. (U. S.), 4«3.
IN THE MATTER OK CYRUS CHIPMAN, an
Absconding Debtor.
Attachment — Absconding Partner.
An attachment under the Act for Relief against
Absent and Absconding Debtors, may issue against
the property of one of several partners, who ab-
sconds for a debt due by the copartnership, al-
though his copartners are resident within the State.
and capable of being arrested.
S was a motion for a mandamus to the
-L Recorder of the City and County of New
York, directing him to issue a warrant of at-
tachment, in pursuance of the Act of Giving
Relief against Absconding and Absent Debt-
ors. It appeared that the usual proof of the
demand of the creditors, and of the abscond-
ing of the debtor, had been presented to the
Recorder, but that he had refused to issue the
warrant, on the ground that the demand was
against Chipman and others, as copartners,
and that two of the tlrm, of which Chipman
was a member, remained within the State,
*liable to be arrested by ordinary [*218
process of law. It was, however, Mated that
they were insolvent.
Mr. Griffin, in behalf of the application.
contended that the Act was to be beneficially
expounded in favor of creditors ; that in case
of a demand against a copartnership, each
partner is to be considered a debtor for the
whole amount, and that his person and prop-
erty are liable therefor accordingly. That the
Statute in question authorizes the creditors to
attach the property of any absconding or ab-
sent debtor, without limitation, and that the
circumstance that such debtor has partners-
resident in this State can make no difference,
218
SUPREME COURT, STATE OP NEW YORK.
1817
especially where such partners aie insolvent.
That to engraft such a limitation on the con-
struction of the Statute, and to hold that the
presence of one or more of an indebted
firm would protect from arrest the property of
those who had absconded or were absent,
might open a door to fraud and collusion. He
cited Crispe v. Perrit, Willes, 467, where it was
held that the creditor of a firm may, for such
joint debt, take out a separate commission of
bankruptcy against one of the partners ;
which case, as the counsel contended, was
analogous in principle to the one under con-
sideration.
THE COURT were of opinion that an attach-
ment might be taken out against the property
of an absconding or absent partner, for a debt
due by the firm, although other partners be-
longing to the firm were resident within the
State, and capable of being arrested; and they
accordingly directed a mandamus to be issued.
Motion granted.
Cited in— 16 Johns., 107 ; 6 Johns. Ch., 190: 13 N.
Y., 265.
219*1 *THE PRESIDENT, DIRECTORS
AND COMPANY OF THE BANK OF
NEWBURGH fl
SEYMOUR AND SMITH.
Judgment Record — Amendment.
A judgment record was amended by adding- the
name of another defendant, saving- to all persons
the rights they may have, hona Me, acquired in the
estate of such defendant since the docketing- of the
judgment so amended.
MR.^ROSS, for the plaintiffs, moved for
leave to amend the record of the judg-
ment in this cause, by inserting the words
"and Lemuel Smith" after the words
" Wright Seymour" in the warrantof attorney,
and in the memorandum of the record, and by
adding the letter "s"to the word "defend-
ant " wherever it occurred in the record ; and
that the judgment be docketed, nunc pi'o tune,
against the said Lemuel Smith, defendant.
He read an affidavit, stating that the omission
of Lemuel Smith, in making up the judg-
ment, was by the mistake of a clerk in his
office.
Mr. T. L. Ogden, contra.
Per Curiam. We grant the rule, saving,
however, to all persons the rights they may
have, bona fide, acquired either in the real or
personal estate of Lemuel Smith, from the
26th day of October, 1816. when the judg-
ment was docketed against Seymour, until the
time of granting this rule.
Rule granted.
Distinguished— 21 Hun, 511.
Cited in— 1 Barb., 52; 8 Abb. Pr.,
» : 2 Bos., 674.
PECK v. THE EXECUTRIX OF PECK.
Practice — Case Made and Settled after Verdict
— Copy — Service — Judgment.
Where, after a verdict, a case is made and settled,
the party whose right it is to make up the case must
840
serve a copy of it, as settled, on the opposite party,,
as early, at least, as the time allowed for noticing
the cause for argument ; and if the opposite party
also notices the case for argument, and has not been
so served with a copy of the case as settled, he may
take judgment.
MR. BALDWIN, for the defendant, moved
that the rule for a new trial, which had
been granted at the last term, on the motion
of the plaintiff, should be vacated. From the
affidavits read, it appeared that the cause was
tried at the last Onondaga Circuit, when a
verdict was found for the defendant. The
plaintiff's attorney, wishing to move to set
aside the verdict, as against evidence, made a
case, a copy of which he served on the defend-
ant's ^attorney on the 22d day of June [*22O
(having obtained an order for enlarging the
time), to which the defendant's attorney pro-
posed amendments ; and on the 27th of June-
notice was given to the defendant's attorney
that the case would be settled before -V?1.
Justice Yates, before whom the cause was tried.
Both parties noticed the case for argument at
the August Term, but it was not called on ;
and it was noticed again for argument, by
both parties, at the last January Term ; and
the defendant's attorney asked the plaintiff'*
attorney for a copy of the case as settled by
the judge, but he said the papers were with
the judge who tried the cause, and that he did
not know that the case was settled ; in conse-
quence of which the defendant's attorney, on
his notice, did not put the case on the calendar
of causes for argument. The case bad, in
fact, been settlecf, and was in the hands of
the partner of the plaintiff's attorney at the
time. In January Term, the cause was called
on the part of the plaintiff, and no counsel
appearing for the defendant, a rule was en-
tered, by default, for a new trial.
Mr. Goodenow, contra.
Per Curiam. The rule entered at the last
term for a new trial must be set aside, without
costs. The defendant's attorney was entitled
to a copy of the case as settled. Where, after
verdict, a case is made and settled by the
judge, the party whose right it is to make up
the case, must serve a copy of the case as set-
tled on the opposite party, at or before the
time of giving notice of the argument ; and if
the opposite party also gives notice of argu-
ment, and a copy of the case has not been
served on him as early, at least, as the time
allowed for giving notices of argument, he
will be entitled to judgment.
Rule granted.
Cited in-5 Cow., 22 ; 26 How. Pr., 376.
*!N THE MATTER OF JOHN G. MUR- [*22 1
RAY, an Insolvent and Imprisoned Debtor.
Jurisdiction — First Judge of Court of Common
Pleas.
A first judge of a court of common pleas has no
jurisdiction under the 9th section of the Act for
Giving Relief in Cases of Insolvency.
A PPLICATION was made to the first judge
11- of the Court of Common Pleas of Mont-
gomery County, by Gardner, an inhabitant of
JOHNS. REP., 14.
1811
LlNNENDOLL V. DOE.
221
the County, and one of the creditors of Mur-
ray, who had been imprisoned more than sixty
days on execution, within the County, for an
assignment of his estate for the benefit of his
creditors pursuant to the Act for Giving Relief
in Cases of Insolvency, passed the 12lh of
April. 1818. (1 N. R. L, 460, sess. 36, ch.98,
sec. 9.)
The judge, on the 20th of December, re-
ceived the petition, affidavits, &<•., and granted
an order for the creditors to show cause, &c.,
before him, on the 28th of February last, when
Gardner appeared, and produced the necessary
proofs of publication &c. , and prayed an order
for the assignment, no person appearing to op-
pose it ; but the judge refused to grant the
order, -t;itin_r as a reason for his refusal that
on further advice he was of opinion that he
had no cognizance of the cause, nor an}'
authority to grant relief under the 9th section
of the Act.
A motion was now made Jor a mandamus to
be directed to the judge, commanding him to
grant the order, &c.
Per Curiam. The motion must be denied.
The 9th section of the Act mentions only the
Chancellor and justices of this court, to whom
application is to be made for relief in such
cases, and is silent as to the first judge of a
court of common pleas. He has not, there-
fore, any jurisdiction as to cases arising under
that section.
Motion denied.
222*] *LINNENDOLL
».
DOE AND TERHUNE.
Execution — Delay in Selling under — Sale of
Property Present at Sale, Valid— Gift*.
Where A told B that if he would take one of his
mares to horse, and pay for the same, the foal
should be his property, which B did, and afterwards
had the complete and uncontrolled possession of
the foal, although this was not a gift, yet the prop-
erty thereby became vested in B. A delay in selling
property levied under an execution does not render
the sale void in respect of an execution subsequent-
ly taued. Where property is sold under an execu-
tion, part of which is present, and part absent from
the sale, the sale- is valid as to the property which
was present.
THIS was an action of trespass for taking
and Carrying away two horses, the prop-
erty of the plaintiff, which was tried before
His Honor, the Chief Jn*tice, at the Saratoga
Circuit, in September, 1816.
It appeared that when the plaintiff was
about sixteen vears of age, his father told him
that if he woufd take one of his mares to horse,
and pay for the same, the foal should be his
property ; the plaintiff did so, and the foal,
which is a spotted horse, and one of the horses
in question, was always called and considered
as the plaintiff's, although it was kept in his
father's pasture, free • of expense, until the
plaintiff was twenty-one years old. In the
spring of 1811 &Ji. fa. was issued in favor of
one Sinn-maker, against John Linnendoll, the
plaintiff's father, under which his property
was levied upon, among which was a gray
horse, the other horse in question. Before the
JOHNS. RKP., 14.
sale of the property, which did not take place
until April or Slav, 1813, Shoemaker assigned
his judgment to Lansing, who directed a sale
to be made ; at which sale the plaintiff pur-
chased the gray horse, which was bid off in
the same lot with another horse which was ab-
sent, and which was worth little or nothing.
By the directions of Lansing, the plaintiff's
note at ninety days was taken for the articles
| which he purchased, and the plaintiff has
| since paid the note. A witness swore that he
understood from the plaintiff that he was at-
tending the sale to purchase articles which
should happen to go under price, with inten-
tion to let hi? father and his family have the
use of them. The horses in question were
afterwards seized by the defendants under a
Ji. fa. in favor of one Blackleach against the
plaintiff's father, and bought by the plaintiff's
brother, of whom the plaintiff afterwards
bought them for $250. There had been no-
visible alteration in the possession of the gray
horse after the sale to the plaintiff, owing to the
circumstance that John Linnendoll lived with
his son in the same house and on the same
farm after as well as before the sale. The
counsel for the defendants, at the trial, offered
to show that at the first sale the property sold
was not present, and. including the gray horse,
was bid off by the plaintiff for $60, for which
he gave his note ; which evidence the judge
•overruled, unless it was proved that [*2U^
the plaintiff was privy to the fraud, nut al-
lowed the defendants to prove that the horse
was purchased in the same lot with other prop-
erty which was not exposed.
The jury, under the direction of the judge,
found a verdict for the plaintiff for $190.
A motion was made to set aside the verdict,
and for a new trial on a case made, which was
submitted, with a reference to the authorities,
without argument.
Per Curiam. There is no ground whatever
upon which the plaintiff's right to the horse,
called in the case the spotted horse, can be
questioned. None of the rules or principles of
law, in relation to the gift of a chattel, are ap-
plicable to the case. The mode and manner
in which the plaintiff acquired his right ex-
cludes any such application. But, admitting
this is to be considered as a gift, everything
was done that the law required to vest the
property in the plaintiff ; he always had the
complete and uncontrolled possession, and
used and treated the horse as his own.
Nor is there anything to impeach the plaint-
iff's title to the other horse purchased at the
sheriff's sale. The horse was duly levied upon
by the sheriff before the return day of the ex-
ecution ; and although the delay before the
sale was very considerable, yet the wile was
made more than one year before the horse was
taken under the second execution, and posses-
sion was taken and continued by the plaintiff.
There does not appear to have 'been any con-
flicting executions at the time of the sale ; and
no one had a right to complain of the delay,
for no one could have been prejudiced thereby
except the plaintiff in the execution. There
was no irregularity in the sale as it respects
this horse. He was present and open to the
view of purchasers ; and although the sale
841
233
SUPREME COURT, STATE OF NEW YORK.
1817
might have been void as to the other property
not present at the place of sale, it cannot affect
the sale of this horse. He was set up, it is true,
with another old horse worth little or nothing ;
and the whole $60 bid by the plaintiff for all
the property has been paid, and a good title
only acquired to this horse. Blackleach might,
perhaps, have pursued the other property bid
off by the plaintiff, but there can be no ground
224*] for his *taking the horse in question.
There does not appear to be anything fraudu-
lent in the conduct of the plaintiff. The prop-
erty was regularly and fairly advertised, and
the plaintiff had a good right to attend the
vendue and purchase the property with a view
of letting his father and family have the use
of it. The motion for a new trial must be
denied.
Motion denied.
Distinguished— 36 N. Y., 58.
Cited in— 2 Cow., 424; 1 N. Y., 25 ; 1 Tians. App.,
ail ; 46 Mich., 133.
JACKSON, ex dem. BROWN ET AL.,
v.
AYERS.
Ejectment — Covenant — Purchase by one in Pos-
session— Outstanding Title — Estoppel.
Where a person in possession of land covenants
with another to pay him for the land and receives a
deed from him, in an action of ejectment by the
covenantee, he is estopped from settinir up an out-
standing title, or a title in himself, unless he can
show that he was deceived or imposed upon in mak-
ing1 the agreement.
THIS was an action of ejectment brought to
recover land lying in the town of Hoosick,
in the County of Rensselaer. The cause was
tried before Mr. Justice Platt, at the Rensselaer
Circuit, in December, 1816.
At the trial the plaintiff produced in evi-
dence an agreement, executed by '.he defend-
ant and Cross and Chase of the one part, and
Brown, one of the lessors of the plaintiff, of
the other part, dated the 15th of February,
1810, by which Brown covenanted to convey
to the other parties to the agreement certain
lands in the town of Hoosick, of which they
were respectively in the occupation, and the
parties of the first part agreed to pay Brown
each $1,020, in three annual installments, and
the land was to be conveyed on the payment of
the first installment. Itwas proved on the part
of the plaintiff that Brown had offered to exe-
cute and deliver a deed to the defendant which
he refused to receive. The defendant offered
to prove that Nathan Dobkins had possession
of the premises in question forty years ago,
claiming title, and that the defendant was now
in possession claiming title, and had a deed
from the heirs of Dobkins; but the judge ruled
that the evidence was inadmissible. The de-
fendant then offered to prove an outstanding
title in Isaac Rogers at the time of executing
the agreement ; the judge ruled that this evi-
dence also was inadmissible, but that the de-
fendant might show the execution of the
agreement to have been unduly obtained on
the part of Brown, or that Brown had. since
8*2
the date of it, *parted with his title. [*225
The defendant having no evidence of this
nature, a verdict was found for the plaintiff.
The defendant moved for a new trial, and
the case was submitted to the court without
argument.
Per Curiam. The plaintiff in this case rests
his right to recover the premises in question on
a covenant or agreement entered into between
Jonathan Brown and the defendant, by which
the defendant agreed to purchase the lands of
Brown ; the defendant then being in possession
of the same. The defendant offered to prove
that one Dobkins was in possession of the prem-
ises forty years ago, claiming title ; and that
the defendant was now in possession claiming
under him, and had a deed from his heirs. This
testimony was overruled. The defendant then
offered to show an outstanding title in Isaac
Rogers. That was also overruled and verdict
found for the plaintiff.
The agreement entered into for the purchase
between Brown and the defendant was dated
in the year 1810. This agreement to purchase
was an acknowledgment of the title of Brown;
and would estop the defendant from setting up
an outstanding title. The defendant being in
the possession when the agreement was entered
into, could make no difference. He was in as
a mere naked possessor, and must be consid-
ered in the same light as if he had entered
under the agreement. He did not offer to show
that he entered under Dobkins, or how7 long
Dobkins continued in possession ; but merely
that Dobkins had possession, claiming title
forty years ago ; and that he, the defendant,
now claimed title under him and had a deed
from his heirs. When he obtained such deed, or
when he firstj pretended to claim under Dob-
kins, is not stated. • It is most probable that it
was after he entered into the agreement to pur-
chase of Brown; so that, on this ground, the
evidence was properly rejected ; and indeed,
the defendant was estopped, admitting even
that he entered under Dobkins and had a deed
from his heirs at the time he agreed to purchase
of Brown, unless he was in some way deceived
or imposed upon in making such agreement.
The offer to show an outstanding title in Rog-
ers was clearly inadmissible.
Motion for a new trial denied.
Cited in— 17 Johns., 166 ; 6 Cow., 180 ; 7 Cow., 644 : 7
Wend., 404; 5 Denio, 553; 9 Barb., 640; 67 Mo., 53; 17
Wis., 625.
*JACKSON, ex dem. HELMER, [*226
v.
HARTER.
Ejectment — Grants of Lands Comprised in For-
feited Patents — Boundaries.
Where two contiguous patents had become for-
feited to the State, and the Commissioners of For-
feitures granted a lot in one patent to A, and an
adjoining lot in the other patent to B, without ref-
erence in the deeds to the boundaries of the
patents ; it was held that whatever difficulty there
might be as to the true boundary between the
patents, yet as the title to both was in the State,
and the commissioners might grant without refer-
ence to the boundary A, who had the prior grant
of the premises in question, as part of one patent,
JOHNS. REP., 14.
1817
WILSON v. UNITED INS. Co.
22«
was entitled to hold them, although according to
the true location they might be comprehended
within the other patent.
was an action of ejectment which was
J. tried before Mr. Justice Van Ness, at the
Herkimer Circuit, in June, 1816.
The premises in question were claimed by the
plaintiff as part of lot No. 1, in the subdivision
of great lot No. 5. in the general division of
Glen's purchase in the town and County of
Herkimer. The plaintiff gave in evidence a
deed from two of the Commissioners of For-
feitures of the western district, to James Cald-
well, dated the 27th of August, 1788, for the
lot No. 1, which was described therein as lot
No. 1, in the division of lot No. 5, in the patent
to Glen, De Lancey and others, and which had
become forfeited by the attainder of De Lancey,
estimated as containing one hundred and
twenty-five acres. Caldwell. by deed dated
the 16th of July, 1794. couveyea to the lessor
of the plaintiff.
The defendant claimed the premises as part
of lot No. 165, in the first allotment of the patent
of 8ir William Johnson called the royal grant,
and produced in evidence a deed of lot No.
165, from the Commissioners of Forfeitures of
the western district to Peter Bellinger, Adam '
Harter, Michael Myers and Frederick Harter, j
dated the 15lh of February, 1788. which was |
described therein as lot 165 in the first allot-
ment of the patent to Sir William Johnson,
which had become forfeited by the attainder of
Sir John Johnson. Three of the grantees, by
deed dated the 1st of January. 1790, released
their interest to Frederick Harter, the other
grantee. The boundary line between the two
patents had been run by directions of Sir Will-
iam Johnson in 1772, according to which the
premises in question would be included in
Glen's purchase ; and in 1786 a boundary line
between the patents was run by John Van
Alen by order of the Commissioners of For-
feitures. by which the premises fell within the
patent to Johnson. A variety of testimony
was given at the trial as to the true location of
the patents, but which it is unnecessary to
state.
A verdict was found for the plaintiff, subject
to the opinion of the court.
Mr. Ford for the plaintiff.
Mr. Storrt, contra.
227*] *PerCuriam. The lessor of the plaint-
iff claims the premises in question, as being in
lot No. 1, of lot No. 5, in Gleu's purchase.
The defendant claims the same, as In-inir in
lot 165, in the royal grant. There is consider-
able difficulty in ascertaining the true line be-
tween these patents ; but this is not very im-
portant for the purpose of settling the present
question. Both parties claim under deeds
from the Commissioners of Forfeitures. Both
patents had become forfeited, and the title
vested in the people of this State. Whatever
difficulty, therefore, might have existed with
respect to the lines, the Commissioners had a
right to convey, without reference to the divis-
ion line between the patents. They caused
the land to be run out by John E. Van Alen,
and they conveyed according to Van Alen's
survey. The deed to the defendant is the
oldest, and ought to hold the land. Though
JOHNS. REP.. 14.
the deeds of the respective parties mentioned
the lots in the different patents, the plaintiff's,
as being lot No. 1, in the subdivision of lot No.
5, in Glen's purchase, and the defendant's, as
being lot No. 165, in the royal grant ; yet, in
describing the boundaries, no mention in either
deed is made of the line between the two patents.
We are, accordingly, of opinion that the de-
fendant is entitled to judgment.
Judgment for the defendant.
WILSON.
THE UNITED INSURANCE COMPANY.
Marine Insurance — Detention — f^oss by, Where
Vessel is Driven Back by Blockading Squad-
ron.
Insurance on poods on board of an American
ship, from Norfolk to Cadiz : "Warranted free
from British and American capture and detention,
but the usual sea risks to continue, both durinir
capture and after liberation." The vessel, having
on board a British license, was stopi>ed at the
mouth of the Chesapeake by a British blockading
squadron, and ordered back to Norfolk, under twin
of capture and condemnation : she accordingly re-
turned up the Chesapeake, and afterwards gave up
the voyage. Held, that it was a loss by detention
of tin- British, within the meaning of the warranty.
THIS was an action on a policy of insurance,
tried before Mr. Justice Spencer, at the
New York sittings, in November, 1815, where
a verdict was taken for the plaintiff, subject
to the opinion of the court on a case to be
made, with liberty for either party to turn the
same in a special verdict, subject also to an ad-
justment as to the amount, upon such princi-
ples as the court should direct.
The policy, which was dated February llth.
1813, was on the cargo of the American ship
Hibernia, Delano master, at and *from [*2i2J$
Norfolk, in Virginia, to Cadiz. It was in the
usual form of the printed policies of New
York, and contained at the foot of it the fol-
lowing written memorandum : " Warranted
free from loss by British and American capt-
ure and detention, but the usual sea and other
risks to continue both during capture and
after liberation." The declaration averred
that the vessel, while proceeding on her voy-
age, was forcibly, &c. , by persons acting un-
der the authority of the King of Great Brit-
ain, &c., " restrained, hindered and prevented
from proceeding upon, pursuing and making
her said voyage," &c., by reason whereof the
goods. &c., were totally lost. On the 3d of
February, 1813, the ifibernia, loaded with
flour, sailed from Norfolk for Cadi/, and
reached Hampton Roads the 7th day of the
same month, where she found a British squad-
ron of four frigates blockading the mouth of
the Chesapeake. An officer from the blockad-
ing squadron boarded the Hibernia, and hav-
ing examined her papers, ordered In r back to
Norfolk. She accordingly returned to Nor-
folk the next day. The blockade continuing,
she remained at Norfolk until the 3d of
March, when she sailed again from Norfolk,
with a neutra! brig, in the nope of passing the
blockading squadron, and intending to pro-
84.1
SUPREME COURT, STATE OF NEW YORK.
1817
ceed to Cadiz. The Hibernia was again
boarded by au officer of the blockading
squadron, on the 16th of March, who indorsed
on her papers an order to return to Norfolk.
The master, hearing that hulks had been sunk
in the channel near Norfolk, thought it most
prudent to go to Port Hood, in James River,
where the vessel lay until November follow-
ing ; when, to preserve the cargo, it was dis-
charged, and the voyage broken up. The
master, who was examined as a witness, testi-
fied that the enemy did not capture or detain
the Hibernia, but only restrained her from pro-
ceeding on her voyage ; that he might have
gone with his vessel to any port he chose in the
Chesapeake, or any of its waters, within and
out of the reach of the blocading squadron ;
that when he sailed from Norfolk he did not
know of the blockade, n'or until he came in
sight of the blockading squadron ; that the Hi-
bernia was the first vessel turned back by the
blockading squadron. That he had on board
of the Hibernia, when she sailed from Nor-
folk, and until the voyage was broken up, an
American register, a clearance, bill of health,
ii29*] &c., and a British license, on*the face
of which the boarding officer made the indorse-
ment when she attempted to proceed on the
voyage the second time. That the license was
what is called a Sidrnouth license, which he
believed to be genuine, and was furnished to
him by the owners of the ship ; and that he
showed the license to the officer of the block-
ing squadron who boarded the Hibernia, with
a view to her protection. The indorsement
on the license was as follows : "In pursuance
of orders from the Commander-in-Chief, to
place the ports in the Chesapeake under a rig-
orous blockade, you are hereby ordered and
directed to return into the port from whence
you came. Any attempt to violate this order
will subject ship and cargo to condemnation.
March 16, 1813."
Mr. Colden, for the plaintiff, contended : 1.
That there was no capture or detention of the
Hibernia by British or Americans, within the
languag or meaning of the written clause of
warranty ; it was a restraint merely, which be-
ing a peril in the policy not excepted by the
warranty, the plaintiff was entitled to recover.
Detention, he said, was a forcible taking into
possession or custody, but restraint was a mere
hinderance by a superior power from proceed-
ing in the destined course. The Hibernia
found at the mouth of the Chesapeake a force
which prevented her from getting out to sea,
and proceeding on her voyage to Cadiz ; but
it did not capture or detain her, but left her
at liberty to return to Norfolk, or to go to any
other place within the waters of the Chesa-
peake.
2. But it will be said she has falsified her
warranty of being an Amarican ship by hav-
ing on board a British license. This was a mere
pass, to permit the vessel to go to a neutral
port, and was different from what is called a
Sawyer's Uoense, granted for the purpose of
carrying provisions to the enemy. The coun-
sel proceeded to discuss this question, which
he regarded as important, at considerable
length ; but as the court expressed no opinion
upon it, it is thought unnecessary to state the
arguments of counsel. He cited 5 Rob. Adm.,
844
10, ».; 1 Gallis., 513, The Liverpool Packet; Id.,
594, The Julia.
Mr. J. T. Irving, contra, insisted that the
words "detention" and *"restraint," [*23O
used in policies of insurance, must be regarded
a» synonymous terms ; and that there was no
ground for the distinction attempted to be
maintained by the plaintiff's counsel. An em-
bargo is a detention within the policy. (Marsh,
on Ins., 508.) So, where a vessel is arrested
by the government, from any supposed ne-
cessity, it is a detention. To create a loss for
which insurers are answerable, it must be by
a peril acting immediately, not circuitously or
collaterally, upon the subject insured. (Had-
kinson v. Robinson, 3 Bos. & P., 388.) Where
the insurer takes upon himself the risk of
capture, the fear of the assured to encounter
that risk will excuse the insurer from being
answerable for the loss of the voyage. (Lub-
bock v. Rowcroft, 5 Esp., 50 ; Blackenhagen v.
London Ass. Co., 1 Campb., 454.) But the
present case is much stronger : the assured,
by his warranty, took the risk of British capture ;
yet, because he dared not, or would not, en-
counter that risk, he seeks to make the de-
fendants answerable for the loss of the voy-
age.
On the second point, he contended that the
Hibernia, having an enemy's license, had iden-
tified herself with that enemy, and thereby
falsified her American character. (1 Caines,
549.) It is not lawful for a citizen of the
United States to use the license or protection
of the public enemy of his country. (2 Dall., 1 ;
4 Rob. Adm., 11, Vigilantia ; 1 Gall., 594,
Julia; Wheat, on Captures, 165, 168.).
Mr. 8. Jones, Jr., on the same side, was
stopped by the court.
Mr. D. B. Ogden, in reply, said that policies
of insurance, like all other instruments, must
be construed so as to give meaning and effect
to the whole. If " restraint" was synony-
mous with "detention," it was perfectly re-
dundant and useless. Detention implies that
the thing detained is kept within the power of
the party detaining. Restraint may exist,
where the thing is out of his custody or im-
mediate power. The warranty is against
capture and detention, not against capture or
detention. Again ; the sea risks are to con-
tinue during capture, and after liberation.
Per Curiam. There is no difference between
detention and restraint in this case. The ship
was detained and restrained by the British
from proceeding on the voyage insured. Be-
ing warranted free from such detention by the
assured, the plaintiff cannot recover. Had the
vessel been captured, he could not*hav«[*23 1
recovered ; yet he seeks to recover, because he
did not choose to proceed, for fear of capture
and condemnation.
Judgment for the defendants.
ALGER v. WESTON.
License to Keep a Tavern, not Assignable.
A license to keep a tavern is a personal trust,
which cannot be assigned to another : and in an ac-
tion for the penalty given by the 7th section of the
JOHNS. REP., 14
1817
AI.'.KK v. WESTON.
231
Act to Lay a Duty. \ c . and Regulate Inns and Tav- '
ems, the defendant cannot Justify under a license
granted to another person.
IN ERROR, on eertorari to a justice's court. {
The. plaintiff in error brought an action '
against tbe defendant in the court below, to
r.-ri ivrr the penalty given by the 7th section of '
the Act Regulating Inns ana Taverns (1 R. I...
178), for gelling strong and spirituous liquors '
without a license. The fact of selling was •
proved, and the defendant offered as a justifl- '
cation a license which had been granted to one j
Charles C'aswell. This was objected to, but
admitted by the justice ; and it was proved
that Caswefl had taken out a license, and af-
terwards moved nut of the house, and leased
tbe same to the defendant, with permission to
Iiim to sell under his license. Caswell's sign
was taken down, and the defendant's put up.
On this evidence the jury in the court below
found a verdict for the defendant.
Per Ouriam. The verdict and judgment in
this case arc clearly against law, and must be
reversed. The defendant could not acquire j
any right to retail spirituous liquors under
tbe license to Caswell. This license is a per-
sonal trust. The Commissioners of Excise, in
granting it, are not only to take into consider-
ation the place where the tavern is to be kept,
JOHNS. REP., 14.
but more especially the character and ability
of the person who is to keep it. The Commis-
sioners are expressly prohibited, by the Act,
from granting the license to any person who is
not .of good character, and must be satisfied
that i he person applying is of good moral
character, and of sufficient ability to keep an
inn or tavern, and has accommodations to en-
tertain travelers ; and the person so licensed
is required to enter into a recognizance, in the
penalty of $125, *with a condition that [*2;Ji2
he will not keep a disorderly house or permit
gaming therein ; and there is a variety of
other restrictions, calculated to preserve the
reputation of the inn or tavern, and promote
the comfort and accommodation of travelers.
AH these salutary provisions of the Statute
may be evaded if one man be permitted to
keep a tavern under a license to another. The
judgment must therefore be reversed.
Judgment reverted.
Cited in-34 N. Y.. 668.
*»* Mr. Juttife PLATT was absent during
this term, on account of sickness in his fam-
ily.
Mr. Justice SPENCER was absent from Fri-
day, the 9th of May, to the end of the term,
on account of sickness in his family.
845
[END OF MAY TERM, 1817.]
CASES ARGUED AND DETERMINED
SUPREME COURT OF JUDICATURE
OP THE
IN
AUGUST TERM, 1817, IN THE FORTY-SECOND YEAR OF OUR INDEPENDENCE.
VAN ANKIN t>. WESTFALL.
Slander — Charging a Crime Committed in An-
other State — Action lien, tliough Crime CJiarged
is Barred by Statute — Truth of Allegation not
Provable in Mitigation.
An action of slander lies for charging the plaint-
iff with a crime committed in another state, al-
though the plaintiff would not be amenable to jus-
tice in this State.
An action of slander lies for charging the plaint-
iff with a crime the prosecution of which has been
barred by the Statute of Limitations ; and in such
an action, the defendant may justify and prove the
truth of his allegation, notwithstanding the crimi-
nal prosecution may be barred.
The truth of the words spoken is not admissible
in mitigation of damages.
was an action of slander, tried before
- Mr. Justice Platt, at the Orange Circuit,
in September, 1816'.
The words charged in the first three counts
of the declaration, and proved, on the trial, to
have been spoken by the defendant of the
plaintiff, were : the plaintiff is a thief, and
has stolen $50 in cash from Jacob De Witt.
These words were spoken in this State, but had
reference to a transaction which took place in
Pennsylvania, where Jacob De Witt 'resided.
The defendant offered to prove, in mitigation
of damages, that the plaintiff, before speaking
the words, was in company with a number of
other persons, and had been at the house of
De Witt, in Pennsylvania, and that a sum of
money had, at that time, been taken from De
Witt, who charged the persons who had been
at his house with taking it ; that those persons
agreed to indemnify De Witt ; and that the
plaintiff, in consequence of such agreement,
paid his proportion of the loss which De Witt
had sustained. This testimony was overruled
by the judge. The defendant then moved for
a nonsuit, on the ground that the words, as
proved, were not actionable, not charging the
plaintiff with the commission of any crime or
. 234*] misdemeanor *for which he was liable
to be indicted and punished in this State ; but
the judge denied the motion.
The case was submitted to the court without
argument.
Per Curiam. This is an action of slander,
charging the defendant for saying of the
846
plaintiff : "He is a thief, and has stolen $50
in cash from Jacob De Witt." It appeared,
in proof that Jacob De Witt resided in the
State of Pennsylvania ; and that the transac-
tion referred to by the defendant took place in
that state. The plaintiff's right to sustain the
action was objected to, because no crime was
alleged against him for which he could be pun-
ished here. This objection was properly over-
ruled. xUthough the plaintiff might "not be
amenable to our law, had the charge against
him been true ; yet. from anything that ap-
pears, he might have been demanded as a fugi-
tive from justice, and have been punished, if
guilty, in the State of Pennsylvania. But the
right of the plaintiff to sustain the action does
not depend upon the question whether he was
liable to be prosecuted and punished for the
crime charged against him. As when the
Statute of Limitations has run against the
criminal prosecution, it is still slander to
charge the party with the offense ; and the
party making the charge would have a right
to justify, and show the truth of his allegation,
notwithstanding the criminal prosecution
might be barred. The evidence offered in
mitigation of damages was properly overruled.
The testimony was to show the truth of the
charge alleged against the plaintiff, and was
not admissible under the general issue in jus-
tification ; and it is a well-settled rule that the
truth of the charge is not admissible in miti-
gation of damages. The motion for a new
trial must, accordingly, be denied.
Motion denied.
Cited in— 7 Cow., 632 ; 4 N. Y., 166 ; 6 Barb., 56 : 13
Barb., 233; 46 Wis.,297.
*SCHUNEMAN v. DIBLEE. [*235
Martial Law — Imprisonment of Soldier —
Increase of Rigor of Confinement, WJien
Proper.
The martial law is not altogether a written law,
but is composed, in part, of military usage, which
must govern in all well-organized troops, when it
is not unreasonable, or in opposition to special en-
actments.
A soldier who has been arrested and imprisoned,
is not thereby exonerated from such duty as he
JOHNS. REP., 14.
1817
SCHUNEMAN V. I >I IJ1.KK.
235
is capable, under his restraint, of performing ; and \
he may be compelled, by further restraint to per- i
form it.
An officer, whether civil or military, may Increase I
the rijfor of the confinement of a prisoner in order ',
to prevent his escape.
where a soldier had been arrested, and commit- :
ted to the custody of the commandant of a Karri-
win, who ordered him to do certain duty which
was n -ii* imiltl'-. and warranted by military usaw :
it was held that the disobedience of the soldier jus-
tified the officer in causing him to be tied to a irun, I
and that It was a defense to an action for a false '
imprisonment.
THIS was an action for an assault, battery
and false imprisonment. The cause was
tried before Mr. Justice Platt, at the Greene
Circuit, in September, 1815.
The defendant was a major commanding a
battalion of militia which had been ordered
out by the Governor, on the requisition of the
President of the United States, under the Act
of Congress authorizing a Detachment of One
Hundred Thousand Men from the Militia of
the United States. The battalion was sta-
tioned at Fort Ganesvoort, in the fall of 1814,
and was attached to a regiment commanded
bv Lieutenant-Colonel Cadwallader D. Golden.
T*he plaintiff was a private in the same regi-
ment, in Captain Adam's Company, which
was encamped at Greenwich.
On the 8th of November, 1814, Lieutenant-
Colonel Colden, being informed that the men
of Captain Adam's Company had refused to
do duty, and that the piquet guard had re-
fused to turn out, went to the Company, and
endeavored, by remonstrance and expostula-
tion, and by warning them of the consequence
of disobedience, to induce them to return to
their duty, and gave them fifteen minutes to
reflect on their conduct ; but this being found
unavailing, he committed seven men, of
whom the plaintiff was one, to a guard, and
sent them to the defendant, who commanded
at Fort Garisevoort, with orders to receive and
confine them. He then gave them further
time for reflection ; and after five more men
had been arrested, the rest of the Company
returned to their duty. Throughout all this
transaction, the language of Lieutenant-Colo-
nel Golden was that of remonstrance, but that
of the men was contumacious and insolent,
and the plaintiff appeared to act as their ring-
leader— was, on all occasions, the spokesman,
and seemed to take great pains to persuade
them from returning to their duty. When the
prisoners were brought to Fort Gan.se voort,
they were confined in the guard house, which
was a very small wooden building, or shed,
without the walls of the fort, where prisoners
could not lie confined securely, and whence
they had frequently escaped. It was a stand-
ing rule or order of the garrison that prisoners
who hud been committed there for custody,
2IJO*] should do the fatigue *duty of the gar-
rison. In pursuance of this regulation, the
plaintiff, with the other prisoners who were
committed as before mentioned, were required
to sweep the platform of the fort, to dust the
guns and to wash off the gun carriages. For
this purpose they were taken by Captain
Scbuyler, the officer of the guard, from the
guard house and marched into the Fort ; but
when he ordered them to perform this duty,
they all peremptorily refused. Captain
JOHNS. REP.. 14.
Sohuyler reported their refusal to the defend-
ant, who ordered him, if they persisted in it,
to tie them to the guns of the" Fort. After he
had given this order, and Schuyler had left
him to perform it, the defendant called Schuy-
ler back, and directed him to be careful not to
hurt the men, and not to tie them so tight as
to be injured by the cords. On this order be-
ing communicated to them, they still persisted
in their refusal, saying that as long as they
were prisoners, no duty could be required of
them, and intimated that if they were tied,
they would afterwards have redress. Schuy-
ler then tied their hands, and fastened each
man to every other gun, so that he could have
about eight feet to walk in, and. at the same
time, he desired them to tell him if he tied
them too tight ; and on one or two of the men
complaining of bring tied too tight, be eased
the cords. Soon after, one of the prisoner*
complained of being sick, and the defendant
ordered him to be returned to the guard house,
whence he escaped in the course of the day.
\Vhen dinner time arrived, the prisoners were
loosened and suffered to eat their meal, and
were then tied again. At 4 o'clock in the af-
ternoon, they were sent, by order of Lieu-
tenant-Colonel Golden, to the west battery,
where they remained till they were tried and
sentenced by a court-martial. It was proved
to be the constant practice in camps and garri-
sons to compel prisoners to do fatigue duty,
and to increase the rigor of their confinement
if they were disobedient.
The judge charged the jury that when the
assault and battery and imprisonment com-
plained of happened, the plaintiff belonged to
militia called, pursuant to law, into the service
of the United States, who were, as such, in all
respects to be considered as soldiers in the
Army of the United States ; that the whole of
the law martial was not written law ; and it
had, as well as other codes, its lex non ncripta,
which was established by military usage ; and
it could not be supposed that the Articles of
War provided for every case that might occur.
or that the *soldier and officer might
learn from them their relative duties in every
emergency ; that in cases in which they did
not prescribe, the usage in well disciplined
armies must govern ; that if the jury believed,
in this case, that the defendant s conduct
towards the plaintiff was according to such
military usage, then the defendant was not
guilty, although the act complained of was
not in pursuance of the sentence of a court-
martial ; that he thought, from the evidence,
that the defendant was justifiable, and that
nothing appeared to have been done with
wantonness and passion, but that, on the con-
trary, the men had been treated with great
lenity.
The jury, notwithstanding, found a verdict
for the plaintiff for $60 damages. The de-
fendant moved for a new trial.
Me**™. E. \\' ill in HI. i and J. Tallinadge for
the defendant.
Mew*. Van Vechten and Cantine, contra.
Per Ouriam. This verdict is against law and
evidence, and there must be a new trial. It is
not pretended that the plaintiff was not legally
imprisoned by the order of Colonel Colden,
847
23?
SUPREME COUIIT, STATE OP NEW YORK.
1817
and the only act for which the defendant can
be called in question, is the direction given to
Captain Sclmyler to tie the plaintiff to the
guns of the Port, if he refused compliance
with the standing rule or order of the garrison,
that prisoners committed for custody should
perform the fatigue duty of the garrison,
such as sweeping the platform, dusting the
guns and washing off the gun carriages. It
has been insisted that these orders were un-
authorized, and that no services could be re-
quired of a prisoner ; and that the tying him
to the guns was, in itself, a distinct punish-
ment unwarranted by the Rules and Articles of
War.
The court are not of the opinion that the
Rules and Articles of War apply to, or affect
this case, in any degree. On the contrary, we
think that a violation of duty by a soldier,
which produces his imprisonment, does not
exonerate him from the performance of any
other duty which, under his restraint, he is
capable of performing. Were it otherwise,
his criminality would put him in a better situ-
ation than that of a soldier who did his duty
well. An offense can never confer a privilege
to be exempted from all duty ; and confine-
ment is a means used merely to prevent es-
cape ; it certainly does not confer a privilege
238*] to be *idle. The evidence in the case
proves the usage to have been that prisoners
were bound to perform such services as were
required of the plaintiff ; and we concur in
the opinion of the judge who presided at the
trial, that the whole of the law martial is not
written, and that it is composed, in part, of
military usage, which usage must govern in
all well-organized troops, when it is not un-
reasonable, or in opposition to special enact-
ment.
There must exist a right in an officer having
charge of a prisoner to use his discretion in
increasing the rigor of his confinement, ac-
cording to the disposition manifested ; and
this extends as well to military as civil offend-
ers. Suppose a prisoner evinces an intention
to escape, may not the officer increase his re-
straints ? Had the defendant, in the first in-
stance, tied the plaintiff to the guns, by way
of securing him, it would not have been pre-
tended that such kind of imprisonment would
be illegal. The very facts in the case would
have shown the necessity ; for it is in proof
that the guardhouse was insecure, and that
prisoners had escaped from it. If, then, the
defendant would be justified in ordering the
plaintiff to be tied to the guns in the first in-
stance, it will not furnish the ground of an ac-
tion, as for an assault and battery and false
imprisonment, that the plaintiff's conduct in
disobeying his orders and contemning his au-
thority,in a case where the service required was
reasonable and proper, induced the defendant
to do in the last instance, what he might have
done in the first. The defendant's will and
pleasure was his legitimate rule of conduct,
where the exercise of it was not in violation
of the plaintiff's rights, nor against law.
New trial granted ; the costs to abide the event
of the suit.
S48
THE DUTCHESS COTTON MANU-
FACTORY
«.
DAVIS.
1. Corporations — Assumpsit Lies against Sub-
scriber to Capital Stock for Installment.
2. Pleading.
3. A Promissory Note need not contain the words
' 'Bearer" or ' ' Order. "
A person becoming a stockholder of an incor-
porated company, by signing an agreement by
which the subscribers promise to pay the company
$100 for every share set opposite their names, in
such manner and proportion: and at such time and
place as shall be determined by the trustees of the
said company, is liable in an action of assumpsit, at
the suit of the company, for the installments di-
rected by its trustees to be paid.
And such agreement, although without the words
"bearer" or "order," is a promissory note within
the Statute, and no consideration need be averred
in the declaration.
In an action by an incorporated company for man-
ufacturing purposes, the plaintiffs need not aver
that they had been duly incorporated, as the Act
authorizing such incorporations is a public law (1
R. L., 245), and the certificate required by the Act,
on being filed, becomes matter of record.
A person entering into a contract with a corpora-
tion, under their corporate name, cannot object
that they had not been duly constituted a corpora-
tion.
Citations— 9 Johns., 217 : 1 Cai. Gas., 86 ; 1 R. L.,
249; 2 Ld. Raym., 1535; 1 Johns. Cas., 132; 8 Johns.,
378.
THIS was au action of asmmpsit, brought to
recover the amount of certain installments
payable by the defendant on thirty shares,
*subscribed by him in the Stock of The [*239
Dutchess Cotton Manufactory. The declara-
tion contained five counts. The first count
stated that the defendant, on the 1st of Feb-
ruary, 1815. made a certain note in writing,
commonly called a promissory note, his own
proper hand being thereto subscribed, bearing
date, &c., and then and there delivered the
said note to the plaintiffs, and thereby prom-
ised to pay the plaintiffs, by the name and de
scription of The Dutchess Cotton Manufac-
tory, the sum of $8,000, for thirty shares of
stock in the said Dutchess Cotton Manufac-
tory set opposite to his name, in such manner
and proportion, and at such time and place,
as should be determined by the trustees, of the
said Company ; the resolutions of the trustees,
at two several meetings, directing that certain
installments should be paid by the stockhold-
ers, are then stated, by means whereof, and
by force of the Statute in such case made and
provided, the defendant became liable to pay
the same to the plaintiffs, and being so liable,
undertook, &c.
2. The second count stated that the defend-
ant, on the 1st of February, 1815, made a cer-
— Corporations— Assumpsit on subscription
to capital stock— Estoppel.
Assumpsit lies for unpaid installments of subscrip-
tions to capital stock. Union Turnpike Co. v. Jen-
kins, 1 Cai., 381 : Goshen Turnpike Co. v. Hurtin, 9
Johns., 217 ; Rensselaer & W. Plankroad Co. v. Wet-
sel, 21 Barb., 56; B. & N. Y. City Ry. Co. v. Dudley,
14 N. Y., 336; Troy Turnpike & R. R. Co. v. McChes-
ney, 21 Wend., 296 ; Bayington v. Pittsburgh &c.
Ry. Co., 34 Pa. St., 358.
Assumpsit lies on an express* promise, even where
the corporation has power to forfeit for non-pay-
ment, the remedies being cumulative. T. & R. Ry.
JOHNS. REP.. 14.
1817
DCTCHESS COTTON MANUFACTORY v. DAVIS.
239
tain other note in writing, in the words and
figures following, to wit : " We, whose names
are hereunto subscribed, do, for ourselves and
our legal representatives, promise to pay to
The Dulchess Cotton Manufactory the sum of
$100 for every share of stock in the said
Dutchess Cotton Manufactory set opposite* to
our respective names, in such manner and
proportion^ and at such time and place as shall
be determined by the trustees of the said Com-
pany. February 1st. 1815." To which note
the defendant subscribed his name, and op-
posite to his name, so subscribed, set and
affixed the number 30, by means whereof he
became a stockholder, and entitled to thirty
shares of the stock; and became liable to pay
the plaintiffs for the same the sum of $3.000,
being $100 for each share of stock, in such
manner and proportion, and at such time and
place as should be determined by the trustees
of the Company. That on the 7th of March,
1815, the trustees determined that the stock-
holders should pay to the treasurer, on each
share, on the 1st of May, then next, the sum
of $5, and the further sum 'of $5 on each
share on the, 1st of June then next ; and the
plaintiffs aver that at the time of passing
such resolution, as well as at all times since,
Cyrenus Crosby, a stockholder in the said
Company, was treasurer thereof, and resided
124O*] and kept *his office in Poughkeepsie,
of all which premises the defendant had not-
ice; by means whereof, and by force of the
Statute in such case made and provided, the
defendant became liable to pay the plaint-
iffs the sum of $150, on the 1st of May, in
the year aforesaid, being $5 on each of the
thirty shares of stock subscribed and held by
him, and the further sum of $ 150 on the 1st
of June, in the year aforesaid, being other
$5 on each of the said shares of stock, and
being so liable, undertook, &c. And the
plaintiffs further say that afterwards, to wit :
at a meeting of the trustees, holden on the 20th
of September. 1815. it was further determined
that the stockholders should pay to the treas-
urer of the Company, on each share of stock,
on the first Monday of November next ensuing
the day of the resolve, the sum of $10, and
the further sum of $5 on each share on the
first Monday in December then next : the
plaintiffs then aver that Cyrenus Crosby was
treasurer, &c., by reason whereof, and by
force of the Statute in such case made and
provided, the defendant became liable to pay
the plaintiffs the sum of $300, on the first
Monday in November, in the year aforesaid,
being $10, &c.t and the further sum of $150,
on the first Monday in December, in the year
aforesaid, being $5. &c., and being so liable,
undertook, &c.
3. The third count stated that the defendant,
on the 1st of February, 1815, applied himself
to the plaintiffs, and offered them, in case
they would suffer and permit him to Income a
stockholder in the Company, by subscribing
in their book for that purpose, and to take
thirty shares of the stock, that he would pay
them $100 for every share, in such manner
and proportion, and at such time and place as
should be determined by the trustees ; and the
plaintiffs, in fact, say that they permitted the
defendant to have thirty shares on the terms
aforesaid, and to subscribe a subscription book
or paper, with a head and subscription as fol-
lows, to wit : "We whose names are here-
unto subscribed, &c.:" whereupon the defend-
ant subscribed his name in the said book or
subscription paper, beneath the entry afore-
said ; and opposite to his name so sul>8cribed,
set and affixed the number 30, by reason
whereof the defendant became a stockholder,
&c> (as in the preceding count).
The fourth count was for money lent, money
paid and money had and received, and the fifth
count was on an inirimul*computus»ent. [*24 1
The defendant pleaded non atsumpxit, to the
first, fourth and fifth counts, and demurred to
the second and third counts, specially, for the
following causes : 1. Because they set forth
a note in writing, or written agreement be-
tween the parties, as being a promissory note
within the Statute, and set forth no good or
valid consideration on which it was made,
whereas it is not a note within the Statute, and
the consideration ought to have been specially
set forth. 2. Because it is stated, in the l>r-
ginning of these counts, that the assumption
of the defendant was an express assumption,
made at the date of the agreement in writing ;
and in the latter part of these counts respect-
ively, two implied assumptions are stated to
have been raised at different times, to wit : on
the 7th of March, 1815. and the 20th of Sep-
tember, 1815, by reason of the order of the
trustees, and by force of the Statute. &c., and
because the counts contain duplicity in this
respect. 3. Because it is not averred "that any
certificates of stock were ever given or tend-
ered to the defendant, and because it does
not sufficiently appear that the parties were
mutually bound to each other, and that the
defendant acquired any right in the stock of
the Company by his subscription, or that I he
plaintiffs were liable to the defendant for the
stock. 4. Because it does not appear in these
counts themselves, or by reference to any other
part of the declaration, that the plaintiffs are
a body corporate duly organized in pursuance
of law, nor that they have taken the steps
necessary by law to create them a l>ody cor-
porate. 5. Because no sufficient legal consid-
eration is stated for the agreement set forth.
The plaintiffs joined in demurrer.
Mr. Bloom, in support of the demurrer.
This is, perhaps, the first case which hascome
Co. v. Kcrr, 17 Barb.. 581 : R. & W. Plank Road Co.
v. Barton, 10 N. Y,. 457. mite ; Worcester v. Turn-
pike Co. v. Williirtl. 5 Mam.. 80; Gilmore v. Paw. 5
Maw.. 497 : Ooeherr Turnpike Co. v. Hurtin. ft Johns.,
217 : Union Turnpike Co. v. Jenkins, 1 Cai., 381.
-. <M Cai. Cas.,86, note.
In MamachtuetU it t* helil that aasnmpsit dne* not
lit on an implied promise, where the company has
the power to forfeit the stock. Andover and Med-
ford Turnpike Co. v. Gould, 6 Mass., 40 : New Bod-
ford Turnpike v. Adams. 8 Maw., 138; Franklin
GlawCo. v. White, 14 Maw.,286; Katama Land Co.
JOHNS. RKP., 14. N. Y. R, 5.
v. Jermegan, 136 Maw., 155 ; Mechanics', &c., Co. v.
Hall. 1-M Mass.. 272.
A» a ucticral rule, erne who hci* acceted and en-
i-
the }nr(vilege» nf memlHrithip, or has had d<ai
ings with the corporation as eiicn. Is e8top|>ed from
denying the existence of the corixiration. See
1 Union Turnpike Co. v. Jenkins, 1 Cai., 881, note.
I See, also, 8. T. Co. v. Cutler, 96 Vt., 315 ; Worcester
I Med. lust. v. Harding. II Cush., 285: Chester Glass
Co. v. Dewey, lit Maw., 94. But see Wetland Canal
I v. Hathaway, 8 Wend., 480.
54 849
241
SUPREME COURT, STATE OF NEW YORK.
1817
before the court under the Act Relative to Incor-
porations for Manufacturing Purposes (passed
March 22d, 1811 ; 1 N. R. L., 245, 34th sess.,
ch 67); an Act new and containing peculiar
provisions.
1 . The first ground on which this demurrer
is to be supported is, that the contract or sub-
scription, stated in the declaration, is not bind-
ing for want of a consideration. It is a nvdum
pactum. No consideration is stated. There is
no allegation of any stock having been tend-
ered. It is precisely like the case of Jenkins v.
T/M Union Turnpike Co., 1 Caines' Cas. inEr.,
86, in which the Court of Errors held that no
242*] action could be maintained. The *Stat-
ute (sec. 5) provides, merely, that if the pay-
ments called for by the trustees from the stock-
holders are not made in sixty days, their shares
shall be forfeited. The defendant was not a
stockholder ; a mere subscription does not
make him a stockholder ; and no stock, or
certificate of stock, has ever been tendered to
him. In the case of Tfie Goshen and Minisink
Turnpike Road v. Hurtin, 9 Johns., 217, which
will, probably, be cited by the other side, the
defendant actually gave a promissory note for
five shares which had been delivered to him,
and he was thus a stockholder. This court
could not intend to overturn the decision of
the Court of Errors. They say that, in Jen-
kins v. The Union Turnpike Co., the Corpora-
tion was not in esse when Jenkins gave the
note, and they presume that the judgment of
the Court of Errors proceeded on that ground.
2. In the case of The Union Turnpike Co. v.
Jenkins, 1 Caines, 381, 391, this court held
that the counts on the • defendant's subscrip-
tion, as on a promissory note within the Stat-
ute, could not be maintained ; and the second
objection is, that the subscription is here de-
clared on as a promissory note. The plaintiffs
should have declared on the subscription as a
special agreement, and have set forth the con-
sideration.
3. There was no mutuality in the contract.
It does not appear that the defendant was to
give anything, or that the plaintiffs were liable
to him for the amount of the stock.
4. ,The second and third counts do not state
that the plaintiffs have been duly organized,
according to the Act, a body corporate. It
does not appear that they had a legal existence
or capacity to sue. In the case of The Highland
Turnpike Co. v. AfKean, 10 Johns., 154, the
court held it necessary to prove the averments
as to the organization of the Company. The
averments, therefore, must have been deemed
material. In the case of The Worcester Turn-
pike Co. v. WiUard, 5 Mass., 80, the due organ-
ization of the Company is expressly averred ;
and the fact is so stated in the case of The Del-
aware Canal Co. v. Sansom, 1 Binn., 70. The
averments are the more necessary in this case,
as the plaintiffs arc not incorporated by any
particular Act, but under the general Statute.
They ought to show, therefore, that they have
fully conformed to the provisions of that Act.
Mr. J. Tallmadge, contra. 1. The subscrip-
tion or written promise, in this case, may be
24-3*] declared on.asa promissory note *with-
in the Statute. It was not, therefore, neces-
sary to aver a consideration. It was so decided
in the case of The Goshen Turnpike Co. v. Hur-
850
tin, 9 Johns, 217. The words " to bearer" or
"order" need not be inserted in the note to
bring it within the Statute. (BurcheU v. Slo-
cock, 2 Ld. Raym., 1545 ; Smith v. Kendall, 6
T. R., 23; Downing v. Backenstoes, 3 Caines
137.)
~2. But, in fact, there was a consideration, to
wit : the thirty shares set opposite'to his name;
and which, it is to be presumed, he.held.
3. It was not necessary to aver that the de-
fendant had procured certificates of stock. By
his subscription he becomes a stockholder, and
it will be intended that he duly received his
stock.
4. It was not necessary for the plaintiffs to
aver that they were a body politic, and how
and when they became incorporated. Whether
they are corporation or not, is matter of evi-
dence. (Henrique* v. Dutch W. I. Co. , 2 Ld.
Raym., 1535 ; Rob., 211 ; 1 Kyd on Corp., 292,
293.) It need not be set forth, or spread upon
the record. In Jackson, ex dem. The Union
Academy of Stone Arabia v. Plumbe, 8 Johns.,
378 ; see, also, U. 8. Bankv. Hatkins, 1 Johns.
Cas. , 132, the court ruled that when a corpor-
ation sues, they must, under the general issue,
prove that they are a corporation.
Mr. Oakley, in reply, said that the Act under
which this Corporation was formed was gen-
eral. It contained no provisions for the pay-
ment of any installments, &c., but left all those
particular matters to be regulated by the Cor-
poration It provides but one remedy, which
is a forfeiture of the sums subscribed, in case
of non-payment of the installments called for
by the Company,. who, in regard to all other
things, are left to make such by-laws and reg-
ulations as they may think fit.
Again ; the Act (sec. 7) provides that in case
of the dissolution of the Company, the stock-
holders shall be individually responsible. One
person might get into his own hands a majority
of the shares, might enforce the payment of
all the subscriptions, and, having all the prop-
erty of the Company in his power, might
involve the Corporation in debt, and abscond,
and leave those who had honestly paid up their
subscriptions responsible for all the debts.
Thus the greatest injustice and abuse might
exist, if the doctrine advanced on the part of
the plaintiffs is to prevail. This Act, made,
ostensibly, for the encouragement of manufac-
turers, has, in effect, given them a death blow.
Again ; a mere averment that the defendant
was a stockholder, does not make him one.
He must have received the *certih'cates [*244
of stock; and there is no allegation of that, or
that he has paid the money subscribed. It is
said there is a consideration expressed ; that is,
the shares set opposite the name. But men-
tioning the number of shares is merely for the
purpose of ascertaining the amount and extent
of the contract, and so the court held in the
case of The Union Turnpike Co. v. Jenkins.
It is said that this subscription is a promis-
sory note within the Statute ; but it is precisely
like the one in the case of The Union Turnpike
Co. v. Jenkins, which the court have said is
not a note within the Statute ; and unless the
decision of the Court of Errors has been over-
ruled, this cannot be declared on as a note
within the Statute. In the case of The Goshen
Turnpike Co. v. Hurtin, the note was expressly
JOHNS. REP., 14.
1817
COLLIXU v. FERHIS.
244
given for five shares of stock, and the contract
was thus complete on the face of it. These
case-, are, therefore, clearly distinguishable.
Again ; it is not averred that the plaintiffs
were a body corporate duly organized. So far
as precedents in the cases decided are to be
found, this averment is necessary, and the mere
naming themselves a corporation is not suf-
ficient. It is true that in the cases cited from
the reports in Massachusetts and Pennsylvania,
the Acts of Incorporation were public Acts, ami
the judges bound to take notice of them. But
here the plaintiffs, by virtue of a power con-
tained in the general law, are incorporated by
their own act ; and unless they aver that they
have duly incorporated themselves under that
Statute, how is it to be known that they are a
corporation, without having recourse to the
office of the Secretary of State, to ascertain
whether they complied with the provisions of
the general Act ?
THOMPSON, Ch. J., delivered the opinion of
the cpurt :
Since the decision of this court in the case of
The G'M/ien Turnpike Co. v. llurtin, 9 Johns.,
217, the question whether an action will lie at
all upon a promise by a stockholder, in a cor-
poration like the present, to pay his install-
ments, ought to be considered at rest, at least
in this court. We then took occasion to notice
the decision of the Court of Errors in the case of
The Union Turnpike Co. v. Jenkin*. 1 Caines*
Cas. in Er., 86, and concluded, that although
one of the members of the court, in delivering
his opinion, thought that the* only remedy was
a forfeiture of the shares, and all previous pay-
ments, yet, that was not the point on which
the decision turned, but on the ground taken
245*J *by the Chancellor, that the condition
upon which Jenkins was to become a member
of the Company, viz : paying $10, had not been
performed, and that the Corporation was not
considered in e**e at the time of making the
promise by Jenkins.
In the case against Hurtin, we considered
the note, which was like the one set forth in
the declaration in this cause, as a promissory
note within the Statute, though it had not the
words "bearer" or "order" ; and, therefore,
it w:is not requisite that a consideration should
be averred, or appear upon the face of the note.
But in that case, as in this, there is a consider-
ation appearing on the face of the note. It is
a promise to pay $100 for each share of stock
set opposite the defendant's name, to wit :
thirty shares ; and it is to be intended that the
defendant had become a stockholder to that
amount.
The only question of doubt that can arise in
this case is. whether it was not necessary for
the plaintiffs to set forth in their declaration,
by tit and proper averments, that they had been
duly incorporated. But I am inclined to think
it was not. The general Act Relative to In
corporations for Manufacturing Purposes (1 K.
L., 249) directs the certificate, which is to con-
tain the requisite evidence of the Company's
having become a body politic or corporate, to
be filed in the office of the Secretary of State,
and declares that as soon as such certificate
shall be wo tiled, the persons who shall have
signed and acknowledged the same, and their
JOHNS. RBP.. 14.
successors, shall become a body politic and
corporate. This is a public law" ami the cer-
tificate becomes matter of record. The incor-
; poration ought not, therefore, to be considered
a mere private Act, since it was under a general
, law of the State, and the evidence thereof is
made matter of record. But the defendant
having undertaken to enter into a contract
with the plaintiffs in their corporate name, he
thereby admits them to be duly constituted a
Ixxly politic and corporate, under such name.
The case of Henrique* v. Thf Dutch West India
\ Co., 2 Ld. Raym., 1535. is very much in point
I on this question. It is there laid down by the
! counsel, and appears to be adopted by the
j court, that the plaintiffs in error were estopped,
: by the recognizance they had entered into with
1 the defendants in error, from saying there was
i no such Company ; and that where an action
is brought by a corporation they need not show
in the declaration how they were incorporated;
but upon the general issue pleaded by the de-
fendant. *the plaintiffs must prove they [*24O
are a corporation. The same principle was
I substantially adopted by this court in the case
of The Rink of the United States v. Raskins,
1 Johns. Cas., 132, and in Jackson v. Ptumhe.
8 Johns. , 878. The opinion of the court, there-
fore, is, that the plaintiffs are entitled to judg-
ment upon the demurrer.
Judgment for the plaintiffs.
Corporation—Ltahttitti of Stockholder nn su'werip-
tion. Distinguished -14 How. Pr., 489 ; 21 How. Pr.,
163.
Cited in.— 19 Johns., 484 ; 14 Wend., 24 ; 21 Wend.,
230. 275; 3 Sand. Ch., 494; 2 N. Y., 339: 10 N. Y.. MS:
24 N. Y., 316 : 10 Barb., 271 ; 16 Barb., 287 ; 17 Barb..
573 : 33 Barb., 440; 39 Barb., 641 ; 2 Hall. 509 ; 40 Super.,
479.
Proof of incorporation, how made, and when ntcen-
saru, and when not necessary. Criticised— 8 Wend.,
i-l.
Cited in-19 Johns., 303 ; 2 Cow.. 778 ; 0 Cow., 25 : 7
Wend., 541 : 19 N. Y., 121 ; 25 N. Y., 209 ; 10 Hun. 146;
12 Barb.. 575; 38 Barb., 83; 5 How. Pr., 392 : 13 How.
Pr.,272; 17 How. Pr., 490 ; 9 Abb. Pr.. 174; 2 Hull,
196 ; 7 Daly, 401 ; 95 U. S.. «67 ; 24 Mich.. 3»4 ; 33 Mich.,
782 ; 85 Mo., 26 ; 52 Mo., 18 ; 3 Bias., 448; 6$ Wig., 316.
COLLINS ». FERRIS.
Attachment — Trespass against Justice for Issu-
ing— Damages..
Where an attachment is issued under the 23d sec-
tion of the Act for the Recovery of D^bts to the
Value of Twenty-flve Dollars, on the oath of a party
to the attachment, by which the constable is direct-
ed to attach the goods an<l rliat t •!* of the defendant,
his arms and ac-ooutri-m >nts extvpted. In an action
of trespass air.tinst f In- ju-<ti<><> for issuing1 the attach-
ment, by the dt-fondant th'-rein, he cannot recover
iluimiges bocause the constable took and detained
his arms and accoutrements.
Whether a justice, issuing an attachment on the
oath of the plaintifft heroin, is a trespasser. Quewe.
IN ERROR, to the Court of Common Pleas
of the County of Chenango.
This was an action of trespass debonisaspor-
tatis, brought by the defendant in error, against
the plaintiff in error, a justice of the peace of
the County of Chenango, for illegally issuing
an attachment against the defendant*in error
the plaintiff below. The cause was tried in the
October Term, 1816, of the court below.
Hoi
246
SUPREME COURT, STATE OK NEW YORK.
1817
The attachment was issued at the suit of
Thomas and Ephraim Webb, on the -applica-
tion and oath of Thomas Webb, by which the
constable was required to attach the goods and
chattels of the plaintiff below, his arms and ac-
coutrements excepted, and was dated the 21st
of February, 1816. The attachment was issued
by the defendant in good faith, and without
any malice or improper motives. The con-
stable to whom it was delivered attached a
desk and military cap and coat, which were in
the possession of one Crondall, who gave the
constable a receipt for ihe same. On the return
of the attachment, and on proof produced by
Thomas and Ephraim Webb, the defendant
rendered judgment in their favor for $24.96,
with costs; and execution being issued thereon,
the constable sold the desk, but allowed the
cap and coat to remain in possession of Crondall.
The plaintiff below having rested his cause,
the defendant moved for a nonsuit, which was
refused, and the court decided that the defend-
ant was a trespasser in granting the attachment
247*] on the oath of a party, although *he
acted in good faith, and that the plaintiff was
entitled to recover damages for taking the
desk, and also for taking and detaining the
cap and coat ; the jury accordingly found a
1 verdict for the plaintiff below for $28. The
defendant below tendered a bill of exceptions
to the opinion of the court below, which was
removed into this court by writ of error.
The bill of exceptions was submitted to the
court without argument.
Per C-uriam. This case comes before the
court on a writ of error to the Common Pleas
of Chenango County, and the question submit-
ted to this court arises under a bill of excep-
tions tendered to the court below. The action
was trespass, de bonis axportatis, against the
defendant below for issuing an attachment
under the 23d section of the Twenty-rive Dol-
lar Act (I R. L., 398), without having any
other proof of the departure of the defendant
than the oath of the plaintiff in the attachment.
It is unnecssary here to determine whether the
justice, by this procedure, made himserf a
trespasser or not ; for the judgment -must be
reversed for misdirection to the jury, as to the
rule of damages.
In the attachment, the arms and accoutre-
ments of the defendant were expressly except-
ed. But the constable, notwithstanding,
attached a military coat and cap, though the
same were not taken out of the possession of the
former when found. The court below charged
the jury that the plaintiff was entitled to re-
cover against the justice damages for the tak-
ing and detaining the coat and cap. In this
direction the court below erred. The justice
neither commanded nor ratified this act ; but,
on the contrary, all such articles were expressly
excepted out of the attachment. If any damages
are to be recovered for such taking, the justice
cannot be responsible. Recourse must be had to
the constable. Although the damages recovered
on this account were probably small, yet, as it
is very evident the justice acted in good faith,
and under a belief that he was complying with
the requisites of the Act, he is justifiable in
defending himself under all legal objections,
though they may appear somewhat technical.
852
The judgment of the court below must be re-
versed.
Judgment reversed.
Cited in— 3 Cow., 209 ; 8 Barb., 357 ; 14 Barb., 99.
*ABBOTT v. ALLEN ET AL. [*248
Covenant — Conveyance with Coven ant of Seisin —
Breach, When Made if at all— Title Deedis Aeed
not be Delivered to Orantee — Pltading.
In an action of covenant for the breach of a cove-
nant of seisin in a deed, the breach was assigned
by negativing the words of the covenant: the defend-
ants pleaded that they were seized, &c., pursuing
the exact words of the cox enant ; and the plaintiff
replied, merely negativing the covenant, and reiter-
ating the breach assigned in the declaration: it was
held that both the replication and the plea were
good, and that the breach was well assigned in the
declaration.
The defendants were not bound in their plea to set
forth the name of their title; and the plaintiff was
not bound to set forth any particular outstanding
title, he being pre sumed to be be ignorant of the real
state ol the title, and the grantor retaining the
evidences of it.
A covenant of seisin, if broken at all, must be so
at the instant it was made.
A grantor conveying with covenant of seisin is
not bound to deliver the title deeds to the grantee.
Citations— 2 Mass.. 433 : 9 Co., 60 b ; Cro. Jac., 369 ;
T. Raym., 14: 2 Saund, 181 a, n. 19.
THIS was an action of covenant. The dec-
laration stated that on the 18th of April,
1805, by a certain indenture, the defendants, in
consideration of the sum of $2,500, bargained
and sold,' to the plaintiff, in fee, a certain piece
of lard, in the town of Paulings-, and covenant-
ed that they "were lawfully seised, in their
own right, of a good, sure and indefeasible
estate of inheritance, in fee simple, of, in and
to the said premises, with the appurtenances,
and had good right, lawful power and author-
ity to grant, bargain and sell, a liene, release,
enfeoff and convey the same premises unto the
said party of the seeond part, his heirs and
assigns, to his and their only use and behoof,
in manner and form as above written, in the
said deed or indenture." The plaintiff then
aversthatthedefendants, at and until the unseal-
ing and delivery of the said indenture, to wit :
&c. , "were not lawfully and rightfully seised,
in their own right, of a good, sure and inde-
feasible estate of inheritance, in fee simple, of,
in and to the sard premises, with the appurte-
nances, and had not good right, lawful power
and authority to grant, bargain and sell, aliene,
release, enfeoff and convey the Mime unto the
said Enoch Abbott, his heirs and assigns, to
his and their only use and behoof, in manner
and form as above in said deed, indenture or
instrument in writing is covenanted."
The defendants pleaded: 1. KOD esl factitm.
2. That at the time of making the said in-
denture "they were lawfully and rightfully
seised, in their own right, of a good, sure and
indefeasible estate of inheritance, in fee simple,
of, in and to the said premises, with the ap-
purtenances, and had good right, lawful power
and authority to grant, bargain and sell, aliene,
release, enfeoff and convey the same unto the
said plaintiff, his heirs and assigns, to his and
their only use and behoof, in manner and form
aforesaid."
JOHNS. REP., 14.
1817
ABBOTT v. ALLEJC ET AL.
248
Tlie plaintiff replied "that the said defend
antst at the time of making the said indenture
and covenant, were not lawfully and rightfully
seised, in their own right, of a good, sure and
indefeasible estate of inheritance, in fee sim-
ple, of, in and to the .-aid premises, with
the appurtenances, and had not good right
241>*J "lawful power and authority to grant,
bargain, sell, aliene, release. enfeoiT and convey
the same unto the said plaintiff, his fteirs and
assigns, to his and their only use and behoof,
in manner and form aforesaid, AH the said de-
fendants have above in pleading alleged;" and
this he prays may be inquired, &c., and the
said defendants do the like. Arc.
The defendants demurred to this replication,
and alleged for causes of demurrer that there j
was no sufficient breach assigned in the replica- I
tinn; that it did not show in whom the title to
tlic premises vests or is vested, whereby the ]
defendants were not seised, nor had good right
to convey the same ; >ind that the replication
was, in other respects, uncertain, &c. The
plaintiff joined in demurrer.
\fr. J. TtiUiniulge, in support of the demur- \
rer. There is not a sufficient breach assigned
in the replication. We do not mean to say
that the plaintiff must, in his declaration, set
f.irili how the defendant was not seised. The <
words of {he covenant being general, an as- i
ftigmnent of the breach generally, is, priina '•
fitcJe. good ; but when the defendant pleads j
that he was seised. &c., then the plaintiff, in
his replication, must show how and wherein
the defendant was not seised, or point out,
specifically, the gratxiinen of his suit, or the
injury of which he complains, so that the de-
fendant may come prepared to meet him at
the trial. (ILuvxtck v. Field, Cro. Jac.. 171 ;
Sttliit'in v. Brad*h<iu>, Cro. Jac., 804; Muscat
v. B<tUet. Cro. Jac., 369; GyU v. Glass, Cro.
Jac.. 812; 2 Bac. Abr.. 84, 85, Covenant, 1 :
6 Vin. Abr.. Covenant, T. sec. 2.)
The case of Sedffieickv. ILUlenbiick, 7 Johns.,
876, is like the present, and points out the
proper mode of pleading. The plaintiff in
his replication showed how the defendant was
not seised : but the replication, being filled
with immaterial facts and double, was held
bad 'on special demurrer.
In Meredith v. Allen, 1 Salk., 138 ; 1 Saund.,
103 h, «.4 ; see 2 Saund., 181 a, n. 10 ; Comyn,
Dig.. Pleader. C, 4T>, 49; 1 Ld. Ray in.. 106,
168. Holt, Ch. J., lays it down that if the de-
fendant pleads performance of a condition,
though it be not well pleaded, the plaintiff, in
his replication, must show a breach : for then
he has no cause of action, unless he show one.
This marks the true distinction between the
cases where it is necessary to assign a breach
in the replication, and where it is not.
Mr. liloom, contra. The error of the de- 1
fendant's counsel lies in supposing the defend- '
ant's pica to be equivalent to a general plea
of performance, which it is not. 1. The true
I5oO*J rule on this 'subject is laid down in !
Jtabtrl Rnulxhaip'* case, 9 Co., 60. 61, where it }
was resolved, by all the justices, that the as- i
signment of the breach of the covenant was
good, negativing the words of the covenant ; !
"and it lies more properly in 'the knowledge!
of the lessor what estate lie himself has in the !
land which he demises, than the lessee, who is ;
JOHNS. RKP.. 14.
a stranger to it ; and therefore, the defendant
ought to show what estate he bad in the land
at the time of the demise made, by which it
might appear to the court that he had full
power and authority to demise it." 80 in Gale
etal. v. Reed, 8 East, 80; 8 T. R.,459 ; Bac.
Abr., Cov.. 1, where the covenant was to em-
ploy the plaintiffs exclusively, and no other
persons, in making cordage, a breach assigned
that the defendant made cordage for divers
persons, and employed other persons than the
plaintiffs, was held well assigned. This prin-
ciple is fully recognized by Mr. Justice Spen-
cer, in delivering the opinion of the court in
the case of the People v. Dtinbip, 18 Johns.,
437, 440. That was an action on an adminis-
tration bond, and one of the breaches assigned
was, that goods, chattels and sums of money
of the deceased, to a large amount, to wit : the
amount of .<.")< MI. had come into the hands of
the administratrix, which she had converted to
her own use. &c. ; and the objection taken on
demurrer was that the breach was too general
and indefinite for the defendant to take issue
on, but the court held it sufficient, because the
creditor, at whose relation the suit was
brought, was not presumed to know what pre-
cise goods, &c., came to the hands of the ad-
ministratrix.; the fact alleged lying, more *
properly, in the knowledge of the defend-
ant.
In Shun et al. 'v. Farrington, 1 Bos. & P.,
640 ; see Rdrtin v. Webbe, 8T. R.. 459. the gen-
eral way of stating the breach, in the replica-
tion, was held sufficient, as a different mode of
pleading would lead to an inconvenient length;
and the case of Jones v. William*, Doug., 214,
which seemed to countenance a different rule,
was overruled as not law. Where matter
tends to prolixity, a concise manner of plead-
ing ought to be adopted. (Lutw., 421; Cro.
Eliz., 749. 916 ; 2 Johns., 416 ; 5 Johns., 173.)
2. Again ; the replication brings the matter
in controversy, the title of the grantor, to a
single point of inquiry. In Glininter v. Audley,
T. Ray in., 14, 15; PuUinv-. Me/tola*, 1 Lev.,
83, the defendant covenanted that he was
seised in fee simple ; the defendant pleaded
covenants performed; the plaintiff replied
that the defendant was not seised, &c. ; and
the defendant demurred generally, because he
supposed that the plaintiff ought to have
shown of what estate the defendant waa
*seised : he had parted with all his writ- [*25 1
ings concerning the land, in presumption of
law, and therefore it was not like Rrndnhnio's
case, where the covenant was with a lessee for
years, who had not the writings. But the
court resolved that the breach was well as-
signed in the words of the covenant.
In Shnn v. F<trrington, Ch. J. Eyre says :
"It is a rule that issue cannot be taken on a
plea of general performance, because such
plea goes to a multitude of facts, one of which
the plaintiff must select. But where a cov-
enant relates to one fact only, issue might be
taken on the plea of performance without any
objection, were it not for the general rule,
which requires that to such a plea the plaint-
iff must reply."
In Ain/iur'nt v. Manner, 12 East. 263. a case
of replevin, on a distress for arrears of an an-
nuity, it was pleaded that the plaintiff was
Hoi
251
SUPKEME COURT, STATE OF NEW YORK.
1817
not, at the time of granting the annuity, seised
in fee simple, &c., without saying who was
seised ; and the replication was, that the
plaintiff, at the time, &c., was seized in fee
simple, &c., without showing how he was
seised ; and rejoinder that the plaintiff was
not seised in fee simple, &c., without showing
who was seised. No objection was made to
these pleadings ; and the Court of K. B. said
the true question raised by the pleadings was,
whether the grantor of the annuity was seised
in fee simple in possession, at the time of
the grant, within the meaning of the Annuity
Act,
Precedents, also, are to the same effect. In
dower the demandant alleges a seisin in the
husband. The defendant may plead that the
husband was not seised, without saying who
was, and conclude to the court. (10 Went.
PI., 259.) So, in a writ of right, the demand-
ant counts on a seisin in him; or his ancestor,
and the denial of such seisin is the general
issue in which the demandant joins, without
any replication. (Booth, 96 ; 3 Wils., 419.)
Mr. Tallmadge, in reply. In the case of
Glinister v. Audley, the breach was assigned
in the declaration. As reported in 1 Keble,
58, there appears to have been no decision,
the cause having been adjourned. An obser-
vation was made by Twisden, J., that he con-
ceived the title good ; but Mallet, J., was of a
contrary opinion ; and Foster, /. , was absent.
This is the same case mentioned in T. Ray-
mond's Reports.
In Marston v. Hobbs, 2 Mass., 433, decided
in the Supreme Court of Massachusetts, Par-
sons, Ch. J., said that the general rule was,
252*] that *the plaintiff might assign the
breaches generally by negativing the words of
the covenant ; but where the general assign-
ment does not necessarily amount to a breach,
the breach must be specially assigned ; that
the covenants of seisin and of a right to con-
vey, were synonymous and came within the
rule. "The defendant, in his bar, should
regularly maintain his seisin ; and then the
plaintiff, in his replication, should aver who,
in fact, was seised." Such is the rule, also,
in the Superior Court of Connecticut. (2
Root, 14.)
PLATT, /., delivered the opinion of the
court :
It is well settled as a general rule, that in
actions of covenant, breaches may be assigned
by negativing, generally, the words of the
covenant. There can be no doubt that the
breach in this case is well assigned in the
declaration. The plea, in averring seisin and
lawful right in the defendants generally, was
good ; although the defendants might have set
forth in their plea the source and chain of
their title, if they had been desirous of pre-
senting on the record any question of law
which might be involved in it.
It remains then to be considered,- whether
the replication, which in general terms reiter-
ates the breach assigned in the declaration, is
liable to just exception.
In the case of Marston v. Hobbs, 2 Mass. , 433,
Ch. J. Parsons, in laying down some abstract
propositions on this branch of the law, says :
' ' The defendant, in his bar, should regularly
854
maintain his seisin ; and then the plaintiff, in
his replication, should aver who, in fact, was
seised."
That case, however, presented a question of
evidence merely, and not a question of plead-
ing. There was no replication ; and the re-
porter says that " issues, in fact, were joined
on two several pleas in bar ; and on each issue
the question was, whether the defendant was
seised of the premises in fee simple, at the
time of executing the deed declared on."
It is worthy of remark, too, that the cove-
nant in that case was, that the grantor "was
lawfully seised in fee, and had a good right to
convey." In the case now before us, the
grantors covenanted that they were " seised of
an indefeasible estate of inheritance in fee
simple," &c.; and Ch. J. Parsons, in that case,
lays much stress ^on ' the distinction between
the cases.
The decisions in Bradshaw's case, 9 Co., 60
b, and in the cases of Muxcot v. Ballet, Cro.
Jac., 369, and Glinister v. * Audley, Sir [*253
Thos. Raym., 14, appear to me to give the
rule which must govern this case.
The case of Glinister \. Audley was like this
in every essential feature. It was an action of
debt on a bond for performance of covenants ;
the defendant craved oyer, by which it ap-
peared that he had covenanted that he was
seised of an indefeasible estate in fee simple ;
and he pleaded performance of that covenant.
The plaintiff replied that the defendant was
not seised of an indefeasible estate in fee sim-
ple ; to which replication the defendant de-
murred ; and it was resolved that the breach
was .well assigned, and judgment was given
for the plaintiff. (2 Saund., 181 a, n. 19.)
The marked distinction between a covenant
of seisin and those for quiet enjoyment and
general warranty, consists in this, that the
covenant of seisin, if broken at all, must be so
at the very instant it is made ; whereas, in
the latter covenants, the breach depends upon
the subsequent disturbance and eviction, which
must be affirmatively alleged, and proved by
the party complaining of the breach.
A grantor, who gives either of those cove-
nants,-is not bound to deliver to his grantee the
prior deeds and evidences of his title, tlere
the defendants covenanted that they had a
good title. The legal presumption, therefore,
is, that they 'retain or can produce the evi-
dence of that title, if any. The grantee relied
on that covenant ; and until the grantors dis-
close their title, he holds the negative merely,
and is not bound to aver or prove any fact in
regard to an outstanding title. Prima facie,
the grantee is to be presumed ignorant of the
real state of the title. The grantors are not
bound, unless by suit, to explain their title.
It is enough that the grantee suspects the
grantor's title to be defective : he is not bound
to wait in suspense until by possibility he can
rind out in whom the title really is.
The grantors have asserted in their deed that
the title was in them. If that be true, they
can show it ; if it be untrue, then the covenant
is broken ; and it is perfectly immaterial
whether the real title happens to be in one
stranger or another. The grantors -have no
right to shift the responsibility from their own
shoulders by imposing it on the grantee to aver
JOHNS. REP., 14.
1817
THOMAS T. WEED.
253
and prove, at his peril, any particular out-
standing title.
All that it is incumbent on the plaintiff is to
negate the title of the defendants, who plead,
affirmatively and generally, that they had a
254* J *good title ; and the general replica-
tion in this case is sufficient.
This differs from the class of cases where
the plea avers a general performance of the
covenant ; and then the plaintiff is required
in his replication to specify wherein the breach
has been committed ; for instance, in an action
of covenant for not repairing a leased mes-
suage, the declaration may assign the breach
generally, that the covenantor did not repair,
«fcc. : the defendant may then plead generally
a performance of his coevnant ; and the plaint-
iff then is required, in his replication, to spec-
ify wherein the repairs have* been omitted, in
order that the defendant "may be apprised,
with reasonable certainty, what is the object
of the suit. The reasons for requiring such a
special replication are : 1st. That the subject
to which the covenant relates is perfectly
known to the party complaining of the breach ;
and, 2d. The suit has a more general aspect ;
and the subject of the breach is multifarious.
Therefore, the law in such case most reason-
ably requires the replication to specify that a
chimney has fallen down ; that the windows
are broken : that the barn is unroofed ; or that
the fences are prostrate, «fcc.
In this case, the point in controversy is
single and abstract. The question is, merely,
whether the defendants had an indefeasible
title ; and the only evidence in relation to that
title may be exclusively in the power of the
defendants.
To say that in such a case the grantee must
wait until he is evicted, and thereby incur
tin- hazard of the insolvency of his grantor,
would, in many cases, consign an honest pur-
chaser to ruin. It must be understood that we
decide the question of pleading only, without
expressing a definite opinion as to the evidence
which may be requisite to maintain the defend-
ant's plea of seisin, &c. There may, perhaps,
be ground for a solid distinction between a
4MB where the covenant of seisin is accom-
panied by a transfer of actual possession, and
a case where the premises are, in fact, vacant.
The plaintiff is entitled to judgment on the de-
murrer.
Judgment for the plaintiff.*
8. C., 2 Johns. Ch., 519.
Cited in-17 Wend., 180 : 58 How. Pr., 484 ; 5 Bos.,
572; 2 Rob.. 657.
ON eertiorari to a justice's court. Weed
brought an action of debt before the jus-
tice against Thomas, a constable, for not re-
turning an execution, &c. The justice gave
! judgment for the plaintiff for the amount due
j on the execution, with interest. The only
| question arising on the return was, whether
1 the interest was recoverable.
Per Curiam. The remedy by action of debt
for '• the amount of the execution," given by
the 13th section of the Twenty-five Dollar
Act (1 X. H. L.. 895). is in the nature of a
penalty, and the measure of the penalty can-
not be extended beyond the letter of the
statute.
If the plaintiff below had pursued his com-
mon law remedy, by a special action on the
case, for negligence, or by an action, for
money had and received, he would have been
entitled to interest on the sum proved to have
been received by the constable, or actually
lost by his negligence. If the creditor, as in
this case, chooses to avail himself of the stat-
ute remedy, so as to relieve himself from the
necessity of proving actual loss, he must be
satisfied with " the amount of the execution."
Judgment reverted.
Cited In— 8 Cow., 438; 6 Cow., 616; 1 Wend., 117,
401 : 9 Wend., 236 ; 10 Wend.. 377 ; 62 N. V., 309 ; 6
How. Pr., 7B ; 19 How. Pr., 565 ; 11 Abb. Pr., 227 ; 4
Bos.. 390.
255* J "THOMAS t. WEED.
OJflcen — Constable — Action againtt, for failure
to Return Execution.
In an action of debt against a constable for not
returning an execution, under the Act fur Recovery
of Debts, &c. <1 N. 1C. L., 395. we. 13), the plaintiff
is not entitled to interest on the balance due on the
, execution, the remedy given by the statute being
in the nature of a pi-Baity.
Citation— 1 N. 1C. I,.. 395.
1.— In the case of the administrators of Sebeer v.
Kimiinll, the same questions arose on demurrer,
and judgment was given for the plaintiffs.
JOHNS. REP., 18.
BRINK ET AL. t>. RICHTMYER.
Real Property — Patent for Inland Usually
Covered by Water, Valid— Right of Fishery —
Draining Net*.
Where an island commonly called and known by
the name of the Green Flats, was granted by patent,
the grant was held good, although the Green Flats
were usually covered with water, and therefore
not strictly an island, there being no other land an-
swering the description.
And this is a grant, not of the right of fishery,
but of the land : subject, however, to be used a* a
common highway and public fishery, until other-
wise appropriated by the private owner; and it
seems that an action will not lie for taking nsh
thereon.
But the public fishery does not give fishermen the
right of drawing nets upon the flat.
A grant of the exclusive privilege of fishing with
nets on the Green Fiats for ten years, is not a lease
of the fishery, but of the right of drawing nets ui>on
the fiats, such being the purpose for which they
had been used, and this being in the power of the
lessor to grant ; but the fishery on the fiats still con-
tinues common.
Citations— 1 Mod., 105 ; 2 Johns., 176.
THIS was an action of trespass, which was
tried at the Ulster Circuit, for breaking
and entering the close of the plaintiffs, covered
with water, usually called the Green Flats, and
fishing therein.
*The plaintiffs were the lessees of '[*2{»O
! Alexander Cockburn, who derived his lille
under a patent, dated the 5th of January,
1768, to Hugh Patrick, of "all those eight cer-
tain islands, and two flats of land, lying and
: being in Hudson River, &c. ;" and the prem-
| ises in question are thus described : " one
i other Island directly -opposite the mouth of
! the said Saugerties Creek, commonly called
\ and known By the name of the Qreen Flats,
256
SUPREME COURT, STATE OP NEW YORK.
1817
containing forty acres." Alexander Cockburn.
by lease dated 4th of May, 1815, leased to the
plaintiffs, " the exclusive privilege of fishing
with their nets on the westerly side of the
Green Flats in Hudson's River, beginning at
the southernmost station of the Arientie, and
extending southerly down the westerly side of
the said flats ten chains, eighty links, for the
term of ten years next ensuing the date." It
was proved that the Green Flats were usually
covered with water, and were used for the pur-
pose of drawing nets from the channel to the
river. The trespasses .alleged in the declara-
tion were proved, and a verdict was found for
the plaintiffs for $200 damages, subject to the
opinion of the court on a case containing the
facts above stated.
Mr. Tnppen, for the plaintiffs. 1. This
patent would be valid, even if it had been a
grant of a free fishery, or an exclusive right
of fishing in that part of Hudson's River ;
though it is supposed that the power of the
crown was restrained, in this respect, by
Magna Charta; and Blackstone (2 Bl. Com.,
39) has made some nice distinctions as to the
different rights of fishery, in order to remove
the difficulties which had embarrassed the
subject in the minds of many writers. (Sel-
wyn ' N. P.. 983, 984, Piscary.) An exclusive
right of fishing on the seashore, or in a public
river, may exist in an individual. (Bagott v.
Orr, 2 Boss. & P., 472.) The exclusive right
of the owner of the land adjacent to a public
river to fish on the bank is not against Magna
Charta, and is well known and recognized in
several public treaties.
Again ; the premises might be granted as
land under water. (10 Johns., 456, 495.)
Possession, also, has accompanied the title of
the plaintiffs. They have held the Green
Flats, or locus in quo, for above ten years.
They have not lost their rights by any non-
user ; and no adverse possession can be set up
against them.
The patent includes the premises, or locus in
quo. It conveys an island called .the Green
Flats, and it may be called an island or fiat.
It is covered with water, but the herbage or
tall grass is always 'visible, and has given to it
257*] the name of 'the *Green Flats. There
is no other place which answers to the descrip-
tion, or which is susceptible of location under
the patent, but the premises in question.
Though it should contain more than forty
acres, yet, as the quantity is matter of de-
scription only (2 Johns., 37), it does not pre-
vent its location under the patent. Besides,
the flat must necessarily become enlarged, in
the lapse of time, by gradual alluvion. It is
subject to irregular inundations : and there
can be no question as to tide marks. The
public have no right of using it for the pur-
pose of fishing.
• Mr. Suddm, contra. By the words of the
patent nothing could pass under it but an isl-
and. To answer this description, there must
be land uncovered at high water. A patent
does not extend beyond high water mark.
Here is a flat always covered with water, ex-
cept at one small spot, which is dry at high
water. One of the conditions annexed to the
grant in this patent is that a certain portion of
the land should be improved. Now, this flat
is incapable of cultivation, or of that agricul-
tural improvement contemplated by the pat-
e/it. It is clear, then, that no part of it can
be within the patent, except the spot uncov-
ered by water.
But we contend that the right of fishing, ex-
ercised by the defendant in this case, is a com-
mon law right, and cannot, since Magna
Charta, be taken away. Though Blackstone
(2 Bl. Com., 39, 40) says that in all countries
where the feodal polity prevailed, a free
fishery, or exclusive right of fishing in a pub-
lic river, is a royal "franchise, yet he admit*
that since Magna Charta, confirmed and ex-
tended by the charters of Henry III., the
granting of such a franchise is expressly pro-
hibited ; and that a prescription for such a,
right must go back as far as Henry II.
The case of Bagott v. Orr is in favor of the
defendant. It is there admitted that every
subject, prima facie, has a right to take fish in
an arm of the sea or public river, where the
tide ebbs and flows. The doctrine was laid
down by Lord Holt, in express and strong
terms, in Lord Fitzwalter's case, 1 Mod., 105;
and afterwards, in Warren v. Matthews, 1 Salk.,
357; 6 Mod., 73, S. C., he says: "The sub-
ject has a right to fish in all navigable waters,
as he has a right to fish in the sea." These
cases are recognized as clear law by Willes,
Ch. J., in Ward v. Creswell, Willes, 265, and
he says there can be no prescription for such
a right, as appurtenant to certain tenements ;
that a man might as well prescribe for a right
to travel on the *King's highway. That [*258
such is not merely the law of England, but
the law of nations, (Grot, de J. B. et P., bk. 2,
ch. 3, sec. 9; Bract., I, 1, ch. 12, sec. 6; 1ft
Vin. Abr., Piscary, B.) In Carter v. Murcot,
4 Burr., 2162, it was also held that in arms of
the sea and navigable rivers the fishery is
common, being, prima facie, in the King and
public; though it was admitted that a person,
might prescribe for an exclusive right of fish-
ing in an arm of the sea or navigable river,
but he must prove the right, (2 H. Bl.. 182 ;
4 T. R., 437; Rogers v. Allen, 1 Campb., 309.)
The same rules are applicable to sand bars and
flats in navigable rivers ; and whenever gov-
ernment grants such places, the common land
right of going on them for the purpose of
fishing remains, and cannot be taken away.
Mr. Tallmadge, in reply, said that it was
competent in the crown or government to
grant the locus in quo, by the name of the
Green Flats, whether covered at high water or
not; and there could be no doubt that the
premises were intended ; for there was no
other place answering to the description. That
the. objections raised on the other side might
be proper if it was a question solely as to the
right of fishing, but they can have no force in
an action for entering the close of the plaint-
iffs, or infringing their right under the patent.
THOMPSON, Ch. J., delivered the opinion of
the court :
This is an action of trespass for breaking
and entering the plaintiff's close, called the
Green Flats, and fishing thereon. A title to
the locus in quo is made under a patent
to Hugh Patrick, bearing date the 5th of
January, in the year 1768, by which eight
JOHNS. REP., 14.
1817
BAKTLETT v. WYMAN.
258
islands and two tints of land, lying and being
in Hudson's River, are granted to the pat-
entee. The loco* in quo is claimed as an
island, which is described in the patent as
follows: "One other island, directly oppo-
site the mouth of the said Saugerties Creek,
commonly called and known by the name of
the Green Flats, containing forty acres."
Prom the testimony it appears that the land
H.iimcil under this patent is usually covered j
with water, and could not, therefore, in strict- j
II----. be called an island. There does not, i
however, appear to be any island, or other |
land, in any way answering the description in
the grant . and as it is called a tint a- well as
an island, it may be considered as sufficiently
descriptive, and as coming within the patent.
There can be no doubt but this was the land
intended to be granted. There are no words
in the patent showing an intention in the gov-
ernment to grant any fishery. It would,
therefore, seem to be a reasonable interpreta-
2*»1>*J lion of this grant, *to consider it an
ordinary grant of land for agricultural or
other purposes to which land is usually ap-
plied ; subject, however, to be used as a com-
mon highway and public fishery, until other-
wise appropriated by the private owner.
In Lord FitzuxiUer's case, 1 Mod., 105, Hale,
6'A. J., says: "A river which flows and re-
Sows is, prima fade, common to all ; and if
anyone will appropriate a privilege to himself,
the proof lieth on his side ; and there is no
contradiction, in the soil being in one, and the
right of fishing in the river common to all
fishermen." If the injury complained of, in
this case, was the taking fish in the waters
covering this flat or island, I should very
strongly incline to think the action was not
sustainable. The case is not very explicit on
the subject, but it is very fairly to be col-
lected from it that this flat is only used for the
purpose of drawing the nets from the channel
of the river; if so, it is not the fishery that is
claimed under the patent : that still remains
common. And, although the want of the
convenience of drawing nets upon this flat
may virtually exclude others from the fishery,
yet this will "not give a right to use the flat, or
island, adjoining the fishery, any more than
it would the shore when the convenience of
fishermen might require it.
Although the lease from Cockburn to the
plaintiffs purports to grant the exclusive privi-
lege of fishing with their nets on the westerly
side of the Green Flats, within certain bounds
therein mentioned, we are not to construe this
as a lease of the fishery, but only of a certain
part of the island or tfat, for the convenience
to drawing nets ; and thus far it was within
the right and power of Cockburn to grant.
In this point of view, the case comes within
the rules and principles which governed the
court in the case of J<icot>*itn v. Fountain, 2
Johns.. 170. The right being established in
the plaintiffs, and those under whom they
claim, to the flat or island, the trespass and
measure of damages are not controverted.
The plaintiff must, therefore, have judgment
upon the verdict, as found by the jury.
Judgment for the plaintiff*,
Cited i ii i Wend., 23 : « N. V . 561 : 7 Hun. 112 : «2
Rarti., 840.
JOHNS. REP.. 14.
•BARTLETT e. WYMAN. [*26O
Marine Late — Seamen' » Wages — A'cie Article*
for Higher Rate tinder Threatt of Desertion,
Void— Article* Made at Port of Departure,
Only Ijegal Evidence of Contract.
Where a crew has been shipped for a voyage, and
articles have been regularly executed, fixing the
rate of wages, if the crvw, at an intermediate port
on the vi >y. !«•'-, <-niii|n-i the master, by threats or de-
sertion, to enter into new.artieles at a higher rate
of wages, such articles are void, and not binding
upon the master, as they are contrary to the policy
of the Act of Congress of the 3«h of July, 17!*) tl
Laws IT. S.. 134). and if established would be holding
out an inducement to a violation both of duty and
of contract; nor are they binding upon the owners,
the master having n<> authority to make them, they
being already bound by the shipping articles origi-
nally entered into. And such promise is void lor
want of consideration, the seamen having no right
to abandon the voyage.
The written agreement or shipping articles, made
at the port of departure, an* the only legal evidence
of the contract; and a mariner can recover nothing
but what is specified therein.
Citations— Act July 20, 1790: 1 Comyn on Con-
tracts, :Mi; 5 Esp., 85; Peake's A'ixi Priiu, 72; 2 Bos.
& P., 116.
IN ERROR, on certiorari to the Justice's
Court of the City of New York.
This was an action of ammrnpsit for seamen's
wages. The defendant in error, who was
plaintiff in the court below, in the month of
November, 1813, shipped in the port of New
York, on board the letter of marque brig Re-
gent, commanded by the plaintiff in err.or,
who was defendant below, and signed ship-
ping articles in common form, for a voyage
from New York to Charleston or Savannah,
fnom thence to France, and back to the United
States, at $17 per month. Three witnesses on
the part of the plaintiff below, who were sea-
men on board of the brig, testified that some
time after the brig had been in Savannah the
defendant below came forward to the crew,
and observed to them that if they would be
faithful to the voyage, he would give them
$30 per month, or the highest wages out of the
port; and that this was his own offer, and that
there had been no difference or dispute be-
tween him and his crew : that several days after
the promise to increase their wages, some of
the people, among whom was the plaintiff be-
low, met the defendant near the gangway, and
asked him whether he meant to draw and ex-
ecute new articles, to which he replied that
they must content themselves; that he would
do what was right. That some time after this,
the ship's company being ashore, the defend-
ant came to them, and observed that he had
promised to raise their wages, and the highest
wages out of port were beyond all reason; but
considering that they were bound at $17, he
thought he would be doing well by them if he
increased their wages to $30, observing, at the
same time, that he did not know whether his
owners would approve it, but if they did not,
he would pay it out of his own pocket. The
plaintiff's witnesses further testified that about
the 22d of I)eceml>er the defendant below
called all hands into the cabin to sign new ar-
ticles, and observed that he would perform his
promise and give them $30. That the articles
were prepared and read to the crew by one
Hunter, and were for the continuance of the
voyage to France, as in the first articles, and
260
SUPREME COURT, STATE OF NEW YORK.
1817
were dated, as was believed, on the 1st of De-
261*] cember, *at which time their wages
were to commence at $30. That the new arti-
cles were signed by the plaintiff below, and
all the rest of the crew, but not by the captain;
and shortly after the brig dropped down to
the lighthouse, to avoid the effect, as the de-
fendant said, of an embargo which he under-
stood was likely to be laid by Congress. On
the new articles being produced, there ap-
peared an indorsement upon them, which had
been made without the knowledge of the crew,
as follows: "Georgia, Savannah. The seamen
having demanded an increase of wages, and
being apprehensive that they might desert, if
this was not done, these articles were drawn
up as a mere matter of form; it is, however,
understood that the articles signed in New
York are to bind, and those signed here to be
of no avail. 25th December, 1813. A Hunter,
Public Notary." The plaintiff below pro-
ceeded with the brig to France, and returned
to New York in about six months.
On the part of the defendant, it appeared in
evidence that the brig was ready for sea about
the 25th or 26th of December, 1813; that in
the interval between her arrival and the mak-
ing the promise for the increase of wages,
there was a rumor at Savannah that an em-
bargo was about to be laid by Congress, which
occasioned a rise in seamen's wages, and many
sailors, in the port of Savannah, left their
vessels and went on board of others; that, at
this time, the crew came after the captain to
demand new articles, and an increase of wages,
saying that they would not go the voyage un-
less their wages were increased; that the de-
fendant asked them if they thought it just,
but ultimately entered into a new articles, at
an increased rate of wages. The jury found
a verdict for the plaintiff below, the defendant
in error, for his wages according to the new
articles, deducting money advanced and his
proportion of goods embezzled on board of
the brig.
The return of the certiorari was submitted
to the court without argument.
SPENCER, J., delivered the opinion the
court :
The court are of the opinion that the judg-
ment of the court below is erroneous, and that
the defendant below was not bound by the
new articles entered into at Beaufort, for sev-
eral reasons:
1. As being in contravention of the policy
of the Act of Congress of the 20th of July,
1790 (Vol. 1., 134). This Statute requires, un-
262*] der *a penalty, every master of a ship
or vessel, bound from a port in the United
States, to any foreign port, before he proceeds
on the voyage, to make an agreement, in writ-
ing or print, with every seaman or mariner on
board, with the exception of apprentices or
servants, declaring' the voyage, and term of
time for which the seaman or mariner shall be
shipped. In the present case this was done,
and the rate of wages fixed at $17 per month,
for the whole voyage. To allow the seamen,
at an intermediate port, to exact higher wages,
under the threat of deserting the ship, and to
sanction this exaction by holding the contract,
thus extorted, binding on the master of the
85H
ship, would be, not only against the plain in-
tention of the Statute, but would be holding
out encouragement to a violation of duty, as
well as of contract. The Statute protects the
mariner, and guards his rights in all essential
points; and to put the master at the mercy of
the drew, takes away all reciprocity.1
2. It is very clear that the owners are not
bound by the master's contract; because he
had no power to make it. They were already
bound by the shipping articles, and the obli-
gation was mutual. He had no authority to
give more than the sum for which they had
originally stipulated to perform the voyage.
If so, then the exaction of higher wages may
be considered as an undue advantage taken of
the master's situation.
3. The promise to give higher wages is void
for the want of consideration. The seamen
had no right to abandon the ship at Beaufort;
and a promise to pay them an extra price, for
abstaining from doing an illegal act, was a
nudum pactum.
4. The written agreement, at the port of de-
parture, is the only legitimate evidence of the
contract, and the mariner can recover nothing
not specified in the shipping articles, where
those articles have been entered into. (1 Comyn
on Cont., 369; 5 Esp., 85; Peake's N. P., 72; 2
Bos. & P., 116.)
5. In the present instance, the master never
intended to be bound, for he never executed
the new agreement.
On these grounds, the court cannot hesitate
in saying the judgment below must be re-
versed.
Judgment reversed.
Cited in-1 Cow., 549; Abb. Adm., 471; 2 Curt., 380;
Blatchf . & H., 284. 337, 409.
*SKINNER v. FLEET. [*263
Slave — Practice under Writ of Homine Replegi-
ando — Action against Sheriff far Escape of
Slave — Bond Taken by Sheriff without Au-
thority, no Defense — Assignment of Bond —
Damages.
Where a homine replegiando has been issued, and
the party has been claimed as a slave, it is the duty
of the sheriff to return that fact, and he is not au-
thorized to set him at liberty; and he should bring1
the party into court on the return of the writ,
where.he is to enter into a recognizance with suffi-
cient sureties to the person claiming him to be a
slave, to prove his liberty, personally to appear in
court, and to prosecute his suit with effect.
A bond taken by the Sheriff to himself, with sure-
ties for the prosecution of the suit with effect, and
that the party should prove his liberty, and for his
return, if return should be adjudged, is of no avail,
the sheriff having no power or right to take such
bond, and it is no defense irl an action against the
sheriff for the escape of the slave.
Nor is an assignment of such bond to the
plaintiff, a bar to the action against the sheriff, un-
less it appear that it was accepted in discharge of
the suit, or by way of accord and satisfaction. •
Where a slave ran away from his master, who was
an inhabitant of the State of Connecticut, and
came to the City of New York, where he was
found, and was sold by his master to a person who
•was also an inhabitant of the State of Connecticut,
but was then in the City of New York on busi-
ness; it was held that this was not such a sale
1.— See Callagan et . al. v. Hallett & Bowne, 1
Caines, 104.
JOHNS. REP., 14
1817
SKINNER v. FLEET.
263
of a slave brought into the State as nniden.il him
free. Sew. 36. ch. 88, aec. 23; »R. L.. 208.
Citations -1 Johns. Cae-.ffl; 12 Mod., 4S8; K. & K..
1 R. L..W1; 2 Johns. Cas.,80.
TtllS was an action of trespass on the case.
The declaration stated that the plaintiff
was possessed of a negro slave called Primus, .
and that the defendant, being sheriff of the
City and County of New York, by virtue of a [
writ of )iluri<* hoinine reptegiandu, caused '
Primus to be replevied; that the plaintiff
claimed the said slave, but that the defendant,
nevertheless, suffered him to go at large, with-
out surety and pledges for his return, in case
he should make a default, or a return should be
awarded; that Primus did make default, and j
that judgment of nonsuit was awarded against
him ; iiri-1 that Primus, so suffered by the de- j
fendant togoat large and escape, was eloigued. ;
wherebv he could not be returned to the ;
plaintiff . The cause was tried before Mr. Jut- \
tut Yates, at the New York sittings, in No--
vember, 1810.
It was admitted that the defendant had re- J
plevied and set at liberty Primus, mentioned
in the plaintiff's declaration. The material
testimony on the part of the plaintiff was ;
as follows: Edward Chappie wa> the owner
of the slave in question, and was an inhab-
itant of the State of Connecticut. In April,
1802. Primus ran away from him. and was
gone until January. 1804, when Chappie acci-
dentally met him in the City of New York,
and took him into custody. The plaintiff.who
was also an inhabitant of Connecticut, was
then in New York and the master of a vessel
bound to London. The defendant agreed to
take Primus to sea with him as his cook, and
allow his master wages, but told him that un-
less he had some writing to show when in Lon-
don, the boy might claim to be free, and leave
him, and proposed that Chappie should give
him a bill of sale, to be given up on his return
home. A bill of sale was accordingly given,
and Primus went the voyage, and returned
with the defendant to New York ; and in Sep-
tember, 1804, as soon as Chappie had heard of
the defendant's return, he offered to sell him
the boy. and proposed, if he should agree to
it. that he should keep the bill of sale which
he then had, as that instrument conveyed the
t£O4*] *boy to the defendant as a slave. The
defendant agreed to these terms, and sent
Chappie the purchase money, together with
the wages due him. The plaintiff owned and
claimed Primus as his slave, in New London,
for a number of years after that time, and
took him to New York with him when he
went to sea. The plaintiff gave in evidence
the exemplification of the record of a judg-
ment in this court, whereby it appeared that
on the return of the writ of plurie* hutnine
replrgiando. Primus made default in not ap-
pearing, and that judgment of nonsuit was,
therefore, rendered against him. The re-
mainder of the evidence, on the part of the
plaintiff, principally related to the amount of
damages.
It appeared on the part of the defendant that
a bond dated the 23d of October, 1818, in the
penalty of $1,000, had been given by Isaac
Hatch, Joseph Corlies and Reuben Legget, to
Simon Fleet, Esq., sheriff of the City and
JOILNK. Run., 14.
County of New York, the defendant in this
suit. The condition of this bond was as fol-
lows: " Whereas, a writ, commonly called a
homine repltgiundo, hath been prosecuted out
of the Court of Chancery of the State of New
York, directed to the sheriff of the City and
County of N>w York, aforesaid, returnable
before the justices of the people of the State of
New York, of the Supreme Court of Judica-
ture of the same people at the City Hall, in the
City of New York, on the fourth Monday of
October instant, commanding the said sheriff
to cause to be replevied Primus, whom Joseph
Skinner hath taken, and kept; now, there-
fore, the condition of the foregoing obliga-
tion is such that if the said Primus shall
prosecute the said writ with effect, and prove
and substantiate his liberty in the said court,
before the said justices in that behalf, or in
case the said obligors shall well and truly re-
turn or cause to be returned the said Primus,
in case a return of him shall be adjudged, and
shall well and truly save, keep harmless and
indemnify the said sheriff of and from all
manner of damages, costs and charges which
he the said sheriff shall or may suffer, sustain
or be put to, for or on account of replevying
or causing to be replevied the said Primus, by
virtue of the writ aforesaid, then the foregoing
obligation to be void; otherwise to remain in
full force and virtue." Upon this bond was
written an assignment by the defendant to the
plaintiff. The obligors in the above bond
were members of the Manumission Society in
the City of New York. Primus was replevied
*on the 28th of October, and within [*J2OJ>
four or five days thereafter. Hatch, one of the
obligors, took Primus, and tendered him to
Mr. Burr, as counsel for the plaintiff, who re-
fused to receive him. The plaintiff had then
gone to sea. and his attorney received the as-
signment of the above-mentioned bond from
the defendant.
The judge charged the jury that this could
not be likened to a case of property ; but that,
in deciding it, recourse must be liad to the
laws and customs of England in relation to
villeins ; that the sheriff ought to have brought
Primus into court on the nomine replegiando,
and have returned that he was claimed as a
slave; that if they believed the testimony of
Edward Chappie, the sale of Primus was made
by him in New London ; the plaintiff being
then on business in New York, and both be-
ing then, and yet, inhabitants of New Lon-
don, and citizens of Connecticut ; that this
was not contrary to any law of this State, and
Primus did not thereby become free ; and that
the only question for the jury would be as to
the damages.
The jury found a verdict for the plaintiff,
and the defendant moved for a new trial.
Mr. II. Blfttker, -for the defendant. The
regular mode of proceeding, in an action dt
homint rejtlffjM ndo, is this: Upon the writ,
the sheriff replevies and sets at liberty the
plaintiff, unless he be detained for some cause
for which he is not replegiable, in which case
he returns that cause upon the writ. If, for
instance, he is claimed as a slave, he makes
that return. Sureties are, thereupon, taken,
bv recognizance, in open court, or by the sher-
iff, on a writ issued for that purpose, that the
Ho9
265
SUPREME COURT, STATE OP NEW YORK.
1817
plaintiff shall prosecute his action with effect,
and be returned, if return shall be adjudged.
A second writ thereupon issues, called a non
obstaate, commanding the sheriff to replevy
the plaintiff, notwithstanding the defendant's
claim. In case of a replevy on the first writ,
the suit is only prosecuted for damages. On
the second writ, the liberty of the plaintiff is
also in issue. In the first case, the defendant
pleads non cepit. In the second, he pleads
that the plaintiff is his slave.
The sheriff having, in this case, returned
that he had replevied Primus, it must be in-
tended that no claim was made, especially as
no proof of such claim was offered. Indeed,
the return is conclusive.
2GG*] *The declaration charges that the
defendant replevied Primus, without taking
securities. Security is usually given in open
court, but it may also be given before the sher-
iff ; in the latter case, it is not taken on the
plut-ies, but on a subsequent writ specially
awarded. (Fitz. N. B., 66, 155; Rast. Ent.,
402, 404.)
1. If it was the duty of the sheriff to. take
security, he has performed- that duty ; and the
replevin bond having been assigned to and ac-
cepted by the plaintiff in this suit, he cannot
now say that the security is insufficient. That
the attorney of the plaintiff, in taking this as-
signment, acted without the advice of counsel,
can make no difference.
2. It was not the duty of the sheriff to keep
Primus in his custody. When chattels are
replevied, they .are delivered to the plaintiff.
In homine replegiando, the plaintiff is replevied
and he was given up to himself, or, in other
words, set at liberty. (2 Saund., 60 ; 3 Bl.
Com., ch. 8.)
3. We contend that Primus was free. By
the Act Concerning Slaves and Servants,
passed in 1801 (1 K. & R. R. L., 614 ; sec. 5),
it is enacted that "if any person whatever,
within this State, shall, under any color or
pretext whatever, sell as a slave, or transfer,
for any period whatever, any person who shall
hereafter be imported or brought into this State
as a1 slave, every person so imported or brought
into this Slate and sold, contrary to the true
intent and meaning of the Act, shall be free."
It will, perhaps, be said that Primus was not
brought into this State, but came into it
against the will of his master. But it is
answered that the master adopted the act of
Primus, by the sale here ; it was a bringing
into the State, within the purview of the Act ;
and it was so decided in this court in Fish v.
Fisher, 2 Johns. Cas., 89.
Again ; it may be said that this sale was
legal, because made by an inhabitant of
another state to an inhabitant of another state.
In the case of Fish v. Fisher, the vendor was
an inhabitant of New Jersey. Can it make
any difference-that the vendee was an inhabit-
ant of another state ? The Act makes no dis-
tinction. On what ground, then, is such an
exception to be implied V It will be said, be-
cause the Act was made to prevent the in-
crease of slaves in this State, and no such in-
crease will arise by a sale to persons out of the
State. That such could not have been the
only intent of the Act, is manifest from the
next section of the Statute (sec. 6), which pro-
860
hibits the exportation of slaves. The real ob-
ject of the Legislature was, as far as circum-
stances *rendered it practicable and [*2O7
safe, to put an end to an odious and detestable
traffic, held in abhorrence by the most enlight-
ened part of mankind, and in the highest de-
gree opposed to the nature and principles of
our government.
The Legislature could not have intended to
permit a mart to be established in the City of
New York for the sale of blacks, where all
persons might freely buy and sell slaves, ex-
cept the inhabitants of the State. Again ; the
plaintiff has either carried Primus out of the
State or he has not. If he has, then Primus is
free under the llth section of the Act. If he
has not, he has increased the number of slaves
in the State. In Fish v. Fisher the court justly
observe that this Act is penal, and when it acts
on the offender, it is to be construed strictly ;
but that it is also in favor of personal liberty,
and when it operates on the offense, it is to be
liberally expounded.
4. The damages are excessive. The plaintiff
gave $100 for Primus, and the verdict is for
$500.
Mr. Burr, contra. The defendant was bound
to bring the person .into court, where he was to
enter into a recognizance to prove his liberty,
&c.
The security taken in this case was a nul-
lity. The sheriff had no power to take it, and
it affords no justification or excuse to him.
The security must be by recognizance taken in
open court.
The party having claimed Primus as a slave,
the defendant cannot avail himself of the fact
of his being free as a defense in this suit. The
sheriff did not do his duty. He let Primus go
at large, as if he was a free man.
In CovenJwven v. Seaman, 1 Johns. Cas., 23 ;
2 Caines' Cas. in Error, 322, S. C., the bail
were not held to be exonerated by a subse-
quent surrender of the principal, and accept-
ance by the other party.
The question of sale was "submitted to the
jury, and they have found that it was made in
Connecticut.
SPENCER, /., delivered the opinion of the
court:
The defendant has moved for a new trial,
and the questions arising on the case are,
1st. Whether the sheriff performed his duty
on the writ of homine replegiando.
*2d. Whether the assignment of the [*268
bond, and its acceptance by the plaintiff's at-
torney, was a bar to this action.
3d. Whether Primus became free in conse-
quence of the sale to the plaintiff,
4th. Are the damages excessive.
The first point was discussed and decided on
a demurrer to the plaintiff's declaration ; and
the declaration was adjudged a good one. We
considered the case of Covenhoven v. Seaman et
al., 1 Johns. Cas., 23, as having established the
practice and proceedings of this court upon
this writ, in conformity with the course of
proceedings in England, as laid down in Fitz-
herbert's Nat. Brevium, 68 and 155. The party
suing out the writ, and claiming to be free,
should enter into a recognizance in court, with
sufficient sureties to the party claiming him to
JOHNS. REP., 14.
1817
MANN T. SWANN.
268
be a slave, to prove his liberty, personally to
appear in court, and to prosecute his suit with
t-ffi-ct. In Ihe case of Cotenliocen v. Seaman et
at., the suit was on such a recognizance, and
the person alleged to be a slave had not proved
his liberty, or prosecuted his suit with effect,
but had been nonsuited, and the court held
that the suit was maintainable. In Afore v.
Watts, 12 Mod., 428. Lord Holt said : "If a
homine repUginndo be brought, and the defend-
ant claims the party to be his villein, that will
be a good return for the sheriff to make, and
there shall be no replevin until the plaintiff
give security, and that in court, and then there
shall go a writ, reciting the security entered
into in court, to the sheriff to deliver the
plaintiff ; and when the plaintiff comes in
upon that security so entered into in court, he
is not at large, but to find new security that he
shall appear, from day to day, pending the
cause ; and if judgment go against him, he
Khali render himself to the defendant, and he
takes him out of court."
The judge, at the trial, ruled correctly that
the sheriff ought to have brought Primus into
court on the homine repleginndo, and returned
that he was claimed as a slave. Instead of
doing so, it was admitted that he replevied
him, and set him at liberty, as mentioned in
the declaration of the plaintiff ; and the dec-
laration charges that the defendant, as sheiiff
of the City and County of New York, under
the writ of pluries homine repleyiando, volunta-
rily permitted Primus, being in his custody
upon the said writ, and claimed by the plaintiff
!2<M)*] as •his slave, and taken from his pos-
session, to escape from his custody, and go at
large, without sureties, &c.
U appeared, however, that the sheriff took a
bond to himself with sureties for the prosecu-
tion of the writ with effect, and that Primus
should prove his liberty, and for the return of
Primus, if return should be adjudged. This
bond we consider of no avail, as the sheriff
had no power or right to take it ; and conse-
quently, it affords no proof that an escape of
Primus did not take place ; nor is it any
answer to the allegation that the sheriff suf-
fered Primus to escape and goat large without
sureties ; for this means sureties in the mode
prescril>ed by law ; and we have already seen
that this must be by a recognizance in court.
It appears that the defendant assigned this
bond to the plaintiff with the assent of his at-
torney. But it is not stated or proved that it
was accepted in discharge of this suit ; and in
no other way can the assignment bar the
plaintiff's recovery. The bond is not so as-
signable as to enable the assignee to sue in his
name ; and the assignment and acceptance of
the bond are not pretended to have been by
way of accord and satisfaction.
By the Act Concerning Slaves and Servants
(K. & U.. 1 R. L., 814), it is declared unlawful
to sell as a slave or to transfer for any .period,
any person who shall .hereafter be imported or
brought into this State ; and every person so
imported or sold is declared to be free. The
provisions of this Act are, in this respect, sim-
ilar to those of the Act of the 22n of Feb-
ruary. 1788 ; and the latter Act received a con-
struction in this court, in the case of FWi v.
Fisher, 2 Johns. Cas., 89. It was there decided
JOHNB. RKP., 14.
that the elopement of the slave could not be
>aid to be a bringing him into the State ; but
the subsequent disposition of him to a person
residing in this State, instead of reclaiming
him, legalized the change of residence by the
slave ; and thus the slave, by the consent of
his master, became domiciled here, and it was,
in effect, a bringing in the slave contrary to
the Statute.
The facts here are widely and essentially
different. The slave ran away from his master
in Connecticut, and was sold to the plaintiff, a
resident of that State ; and it cannot be said
that the domicil of the slave was changed to
this State, by the assent of his master, or by
the adoption of the act of the slave in coming
here. This case, therefore, is not brought
within the purview *of the Statute, f*27O
nor within any of the mischiefs intended to be
guarded against.
We have no facts before us authorizing us to
grant a new trial for excessiveness of dama-
ges. We must infer from the case that the
plaintiff has wholly lost his slave. His value,
and the damages sustained by the loss, were
questions for the consideration of the jury,
and we are without data on which to pro-
nounce their verdict incorrect.1
Judgment for the plaintiff \
MANN v. SWANN.
Witnesses — Indoner of Promissory Note, In-
competent to Prone Usury.
The indorser of a promissory note 1* an incompe-
tent witness to prove it usurious, in an action by the
indorsee against the maker.
THIS was an action of dssumpsit on a prom-
issory note brought by the indorsee against
the maker. The cause was tried before His
Honor, the Chief Justice, at the New York sit-
tings, in April, 1816. ,
The defense set up was usury ; and one
Westerfield, who was the payee and indorser
of the note, and who had been discharged
under the Insolvent Act, was offered as a wit-
ness to prove that the plaintiff had become
possessed of the note, and had acquired his
whole title to it, by virtue of an usurious con-
tract between him and the witness ; that the
note was made and indorsed on the day of its
date, for the purpose of being discounted by
the plaintiff; and that the note was, on the
same day, discounted by the plaintiff, who
paid the witness the amount of it, after de-
ducting interest at the rate of one per cent.
per iiininii, or upwards, for the time which it
had to run. The Chief Justice ruled that
Westerfield was an incompetent witness to
prove the fact ; and an exception was taken to
the opinion of the Chief Justice, who refused
to reserve the point. The defendant having no
other testimony, a verdict was taken for the
plaintiff for the amount of the note, with in
t«Ti--t.
A motion was made, in In-half of the de-
fendant, to set aside the verdict, and for a new
trial.
1. Catlett v. Pacific Ins. Co.. 1 Wend., ML
861
270
SUPREME COURT, STATE OP NEW YORK.
1817
Mr Caines, for the defendant, contended that
27 1*1 the indorser was a Competent witness
in this case. In Waltonv. Shelly, 1 T. R., 296,
Lord Mansfield relied on the legal maxim,
nemo allegamsuam turpititdinem audiendusest.
But that maxim applies to the parties to a suit,
not to witnesses, as has been justly observed
by Mr. Evans, in his notes on Pothier. (Evans'
Pothier, 418, n. 16.) The general doctrine of
Walton v. SJielly was overruled in Jordaine v.
Lashbrooke, 7 T. R., 601, in which it was held
that the indorser of a bill, dated at Hamburgh,
for the purpose of evading the stamp duty,
might be admitted as a witness to prove that
it was made in England. But the doctrine of
the case of Walton v. SJielly, is applicable only
where the plaintiff is a bona fide holder.
Where the plaintiff is a mala fide holder, the
indorser, or person from whom he received it,
may be a witness. A person is not a" bona fide
holder of an instrument who takes it with
full knowledge of its illegality, or of its being
in violation of a public statute. Parsons, Ch.
J., in the case of Churchill v. Suter, 4 Mass.,
161, considers the question as applying to notes
made by the Statutes against usury and gam-
ing. But a person who is privy to the viola-
tion of a statute cannot be deemed an innocent
holder. In Walton v. Shelly, and in Winton v.
Sa/'dler, 3 Johns. Cas., 185, the plaintiff was
not privy to the usury, and so a bona fide
holder.
The case of Ackland v. Pearce, 2 Camp..
599, shows that the rule laid down in Walton
v.- Shelly is no longer regarded in the English
courts. The plaintiff in that case was a bona
fide holder of a bill, and ignorant of the
usury. Wain, the acceptor of the bill, was
admitted to prove the usury. If the opinion
of Lord Mansfield, in Walton v. Shelly, is not
correct, and this court have been led to adopt
an erroneous rule of decision, it ought not to
stand, and it is not too late to restore the law to
its true principles. In regard to personal prop-
erty, there is little or no danger or inconven-
ience from overruling a prior determination
that has been shown not to be well founded.
It overturns no landmarks; it shakes no titles;
it subverts no principles.
In the very late case of Jones v. Brooke, 4
Taunt., 464, 466, in the C. B., Mansfield, Ch.
J., admits it to be now the established practice
to receive persons, whose names are on bills,
as witnesses to impeach such bills ; but the
witness, who was the wife of the drawee, was
rejected, on the ground that her husband was
interested to defeat the action against the ac-
ceptor, who, in case the plaintiff recovered
against him, would have a right of action
against the drawer.
272*] *The rule of Walton v. SJielly,
which the court adopted in Winton v. Saidler,
contrary, however, to the opinion of Kent and
Radcliff, JJ., has, therefore, been wholly
abandoned in all the English courts.
Mr. Slosson, contra, relied on the cases of
Winton v. Saidler and Coleman v. Wise, 2
Johns., 165, as having settled the law on the
subject. He, therefore, declined entering
into any discussion of the principles of former
decisions.
Per Curiam. The question in this case is,
862
whether the indorser of a negotiable note can
be admitted as a witness to prove it made upon
an usurious consideration, when the plaintiff is
acquainted with the fact of usury at the time
he takes the note. As a general rule, it has
been long the established law of this State that
a party to a negotiable note cannot be admit-
ted as a witness to prove it usurious ; and
there can be no sound reason for varying this
rule, when the holder is apprised of the fact
of usury. Ignorance with respect to the usury
does not protect the holder. It is equally void
in the hands of an innocent bona fide holder as
in the hands of one acquainted with the usury;
and if so, why should the rules of evidence to
get at the usury be different ? it is highly im-
portant that the rules of evidence should be as
general as possible. Multiplied exceptions
and distinctions generally lead to embarrass-
ment and difficulty in the application of the
rule. In this case the indorser was offered as
the witness to prove not only the usury, but
the knowledge of the holder that it was usuri-
ous. The witness was properly rejected,
the motion for a new trial must be denied.
New trial refused.
Overruled— 5 Cow., 23, 153.
. *HALLETT «. NOVION. [*273
Marine Law — Vessel Fitted Out against Coun-
try at Peace with tJie United States — Capture
of American Vessel under Spanish Colors by —
Jurisdiction — Action at Common Law Witt
Lie— Penalty — Trover for Capture and De-
tention of Vessel — Damages.
Where a vessel was fitted out, and a commission
put on board of her, in the United States, for the
purpose of cruising against Spain, with which the
United States were at peace, which vessel, whilst so
cruising, captured an American vessel, then sailing
under Spanish colors, in order to avoid capture by
the British, with whom the United States were then
at war, and took possession of and detained her, it
was held that this was not a question merely of
prize or not, and therefore of admiralty jurisdic-
tion, but that an action of trover would lie at com-
mon law, as the capture was illegal by the munic-
ipal law, the capturing vessel being fitted out in
contravention of the Act of Congress of the 5th of
June, 1794, and her commission consequently void.
Courts of common law have jurisdiction of marine
trespasses, where it is not a question of prize, and it
is not the place, but the nature of the case, which
determines the jurisdiction.
In such cases, it is matter of defense that -the
court of common law has no jurisdiction, and if
that defense involve in it a violation of law, it will
not take away the. jurisdiction.
A statute giving a penalty also implies a prohibi-
tion of the act rendered penal, and such act is con-
sequently void.
In an action of trover for the capture and deten-
tion of a cargo, bound to New York, on the high
seas, it was held that the proper rule of damages
was the value of the cargo at the time and place of
capture, allowing for the same the New York
prices, with such additional damages as would be
equal to the interest thereon, deducting a reasona-
able.preuiium of insurance from the place of capt-
ure to New York: such port of the cargo, or of
the avails thereof, as had been restored, going in
mitigation of damages.
Citations— Doug., 594; Act April 24,1800; Carth.,
252; Doug., 528, 591, n. 1 ; 3 T. R.,344; Cam. and N.,
115 ; 2 Doug.; 602 ; Act June 5, 1794, sec. 3.
NOTE. — Jurisdiction of captures belongs exclusively
to admiralty. See Novion v. Hallett, reversing the
above case, 16 Johns., 327, note.
JOHNS REP., 14.
1817
Hu.I.KTT V. NOVION.
278
TUIIS was an action of trotter for a brig and
-L cargo. The cause was tried before Mr.
Juntiee Platt, at the New York sittings, in
June, 1816.
The plaintiff, being the owner of a brig
called the Jane, sent her, with a cargo consist-
ing principally of flour, to Laguira, where she
arrived in Slay, 1812, consigned to one Shot-
well, who sold the cargo on account of the
plaintiff. About the 1st of October, ensuing.
Smart, the master of the Jane, left her, and
Charles Rise, who had previously been the
first mate, took the command. On account of
the war which had at this time broken out be-
tween Groat Britain and the United States,
Shotwell determined to put the brig under
Spanish colors, and, accordingly, she was
placed under the name of one Domingo Her-
nandez, a Spanish merchant, resident in La-
guira, and her name was changed to Tener- j
iffe, under which name and apparent owner- :
ship she proceeded, in the month of January !
following, to Portn Cavello. On the voyage j
thither the brig was detained for a short time
by the Rosamond, an American privateer, and j
was the next day taken by a British sloop of
war, called the Fawn, the captain of which,
on being informed whither the brig was
lM)und, directed the midshipman to take her
into Porto Cavello, where she was liberated
by the agency of Don Jose Maria del Castillo,
a* Spanish merchant of that place, to whom
she Was consigned, by paying the captors
$500, which was furnished him for that pur-
pose by Shotwell, as the agent of the plaintiff.
Shotwell, who soon after arrived in Porto Ca-
vello, purchased and loaded on board of the
brig, on account of the plaintiff, and with his
funds, a cargo consisting of hides, horns, fus-
tic and indigo. To protect the vessel and
cargo from British capture, they were covered
by Castillo, in whose name the cargo was
shipped, and the papers made out. The name
of the brig was changed to La Hija, and a
Spanish master and crew were shipped : but
Rise continued on board, and acted as the real
1274*1 *master. On or about the 2d of April,
1813. sue set out on her voyage for New York,
consigned by Castillo, by the directions of
Shotwell, to the plaintiff, and was taken again
by the Fawn, and carried to Curacoa, but
was released in a very short time. When the
English were on board or near, Rise did not
act as captain, but on all other occasions he
an,-, | in that capacity, though it is stated, by
one witness, that when she was detained by
the Rosamond. Rise declared himself to be a
passenger. The brig then proceeded on her
voyage, and was, on the 20th of April, capt-
ured by the privateer the San Francisco de
Paula. This vessel was originally named the
Whiting, and had been captured from the
English by a French privateer, and had be-
come the property of the defendant ; and evi-
dence was produced on the part of the plaint-
iff to show that she was the defendant's prop-
erty during the voyage in which the Jane or
La Hija was captured. Thomas II. Blount,
Collector of the district and port of Washing-
ton, in 'North Carolina, in his deposition taken
under a commission, stated thai some time in
the year 1818, or latter end of 1812, a schooner,
called the Whiting, arrived at Washington
JOHNS. REP., 14.
from Newbern, having no papers except her
clearance, and in March or April the defend-
ant came to the witness' office to clear hei
out ; that she was cleared out for Cartbagena,
and that the defendant, with one Lewis Leroy,
gave a bond for the tonnage duty, if any
should be due, as the witness at the time of
her clearance was uncertain whether she was
liable or not, but was afterwards induced to
believe that she was not. The impression on
the witness' mind, from various circumstances,
was that the defendant was owner, and he had
never doubted the fact. Newman, a ship car-
penter in Washington, North Carolina, stated
in his deposition, taken under a commission,
that he was employed by the defendant to re-
pair the Whiting, but agreed to accept one
Leroy, a merchant in Washington, as paymas-
ter. This witness was also impressed with the
idea that the defendant was owner, and stated
that he generally directed as to the repairs, and
appeared to act as owner, but that the ma-
terials were generally obtained from Leroy.
The strongest testimony, on this point, was.
that of Lamotte, which "will be referred to in
the sequel. On the part of the defendant, Le-
roy stated, in his deposition, that he (the wit-
ness) cleared out the Whiting ; that the de-
fendant had told him that he had sold the
Whiting to some Spaniards, and the deponent
understood *that the defendant acted [*275
only as agent for the owners. Another wit-
ness (Guygot), in his deposition, proved the
handwriting of the subscribing witness to an
agreement between the defendant and Don
Juan Pedro Laborda, dated the 2d of Febru-
ary, 1818, by which the former sold the
schooner Whiting to the latter for the sum of
$4,000. The depositions of both Leroy and
Guygot were, at the time of taking them, ob-
jected to on the part of the plaintiff Another
witness, whose deposition was read by the
plaintiff, testified that the defendant gave di-
rections as to fitting out the schooner while at
Washington. Laborda, who was examined as
a witness by the defendant, proved his signa-
ture to the agreement before mentioned be-
tween him and the defendant ; he stated that
he had previously agreed with the defendant
to purchase a schooner of him, but by no par-
ticular name ; nor did he. at that time, know
the name of the Whiting, and bought her
without seeing her. The witness then went to
Carthagena to obtain money to pay for the
vessel, and while there took a commission for
her, for which he gave security in the sum of-
$8,000 ; on his return from Carthagena he
gave the commission to one Captain Auris.
and requested the defendant to attend to fitting
her out.
The Whiting left Washington in the be-
ginning of April, 1818, and while inside of
Ocracock Bar, a commission was produced
and read, and the schooner was then called
the San Francisco de Paula, and shipping
articles were read to the crew, in which the
vessel was called bv that name. It was stated,
in the deposition of John Harris, a mariner on
board of the schooner, that the Carthagena
colors were then hoisted ; that the crew signed
articles for the cruise ; and that when the
articles were read, the captain told the crew
that the commission had been purchased of
868
275
SUPREME COURT, STATE OF NEW YORK.
1817
two gentlemen from Carthagena, who were
then on board as passengers, to which those
gentlemen assented. In order further to prove
the existence of a commission, the defendant
offered to read the deposition of Pedro 'Gual,
with a copy of a paper in the Spanish lan-
guage, purporting to be a commission, thereto
annexed ; the plaintiff's counsel objected to
the reading of this copy, because it was not
duly proved, so that it could be received in
evidence as proof of the original ; nor was
there any proof of the genuineness of such
pretended original ; and because, moreover,
the State of Carthagena, by which the same
purported to have been issued, was not at the
time an independent State, having never been
276*] recognized by the government of *the
United States, or other sovereign powers, as
such ; but the judge admitted the same to be
given in evidence, subject to these objections.
Gual, in his deposition, stated that he was a
lawyer by profession, and well informed as to
the mode of transacting business in Carthagena;
.that the document thereto annexed was au
thentic ; that he was well acquainted with the
handwriting of those persons whose names
were thereto subscribed, and believed them,
with the stamp affixed, to be genuine. The
commission, or letters of marque, purported
to be granted to Don Juan Pedro Laborda,
authorizing him, with his schooner, called
San Francisco de Paula, commanded by Don
Lewis Auris, to cruise against the vessels and
property of the Spanish nation, and her de-
pendencies, and directing him to. carry into
the ports of entry and delivery, within the
State of Carthagena, the prizes that he should
make, and that he should not dispose of them
till the lawfulness of the prize be declared in
due form. It also appeared that a Spanish
vessel, which was- taken by the San Francisco
de Paula, on this cruise, was sent into Cartha-
gena. and there condemned and sold, and the
prize money distributed among the captors.
While the San Francisco de Paula was pro-
ceeding on her voyage to Carthagena, from
Washington, she captured the Jane, as before
mentioned, which was then called La Hija,
and was sailing under Spanish colors. • Rise
stated, in his deposition, that when the brig
was first chased, the privateer had no colors
up ; that she afterwards hoisted American
colors, and on the brig's hoisting Spanish col-
ors, the privateer hoisted French colors, under
which she captured the Jane ; that at the time
of the capture, and before parting from the
Jane, the deponent expressly informed the
captain of the privateer that the brig and car-
go belonged to the plaintiff, and was merely
covered as Spanish property, to prevent capt-
ure by the English; and that, therefore, they
had no right to capture her ; but the captain
refused to give her up, and told the deponent
that he might inform his owner, when he got
to New York, that he had been captured by a
French pirate ; that the deponent was unable
to learn from the captain, or people on board
of the privateer, what was her name, or
whether she acted under any commission ;
and it was not pretended by them that she had
a commission ; and it was his belief that she
had none. Evidence was produced on the
part of the defendant to show that the capture
864
was made under Carthagena colors ; and
it was stated by a witness *that Rise, [*277
after the capture of the brig, told him that he
was only a passenger on board, and had no
interest in her ; and that he heard him say
that she was Spanish property, and sailed with
Spanish papers. Ferrand, one of the lieuten-
ants of the San Francisco de Paula, was put on
board the brig as prize-master, with five men,
and was directed, by Captain Auris, to pro-
ceed to the United States. Rise, with the
greater part of the crew of the Jane, was after-
wards put on shore on the Island of Si, Do-
mingo, whence he returned to the United
States.
Ferrand, after leaving the privateer, en-
deavored to disguise the brig by painting her,
and fabricated papers for her ; and on arriving
at Beaufort, in North Carolina, called her the
San Antonio, and passed himself by the name
of Don Pedro Gonzales ; and other precautions
were taken to prevent discovery. Francis
La Motte, a merchant of Newbern, in North
Carolina, stated, in his deposition, that in the
beginning of May, 1818, a brig, under Spanish
colors, commanded by a person calling him-
self Don Pedro Gonzales, arrived wilh a cargo
at Beaufort ; that she was furnished with
Spanish papers for both vessel and cargo, pur-
porting that she had sailed or cleared from
Campeachy ; that Gonzaies applied to the de-
ponent to take charge of the brig and cargo,
and informed him that he had sailed from
Campeachy, bound for New York, but had
put into Beaufort through fear of English
cruisers ; that the brig and cargo were regu-
larly entered at Beaufort as a merchant vessel
and cargo, in the ordinary course of trade.
That the cargo was landed "and taken to New-
bern, where part of it was sold ; another, part
was shipped, by the direction of Gonzales, to
Norfolk in Virginia, and the residue remained
with the deponent ; that two or three days
after this shipment, the defendant arrived at
Newbern, and stated to the deponent that the
brig and cargo belonged to him, and had been
taken by his privateer, which the deponent
understood was called the Whiting. On the
deponent's expressing his surprise to Gonzales
that he had not been informed of this circum-
stance, Gonzales delivered the deponent a let-
ter from Auris, the captain of the privateer,
wherein the defendant was recognized as own-
er of the privateer, and Gonzales was directed
to consign his vessel and cargo to the depo-
nent, which letter the deponent retained, but
some time after delivered it to an agent of the
defendant, who requested it from him. La
Motte further stated that from the time of the
arrival of the defendant *at Newbern, [*278
he assumed the whole direction of -the brig
and cargo ; that the deponent, by his orders,
forwarded the indigo, which constituted part
of the cargo, to Baltimore ; and that the de-
fendant repeatedly declared to him that he
was owner of the privateer which had taken
the brig and cargo, and claimed them as his
property. The defendant, soon after his ar-
rival at Newbern, directed the deponent to
load the brig with a return cargo for St.
Thomas ; and (he deponent accordingly pur-
chased and loaded her with a cargo. In the
depositions of Leroy and Guygot, before
JOHNS. REP., 14.
1817
HALLETT v. NOVION.
278
alluded to, circumstances and admissions were
stated, tending to show that La Motte knew
the character of the brig Jane before the
arrival of the defendant at Newbern.
The brig having been discovered while at
Hcaufort by Captain Rise, after she had been
loaded with a return cargo, was libeled at the
«uit of the plaintiff, in the District Court of
the United States, for Pamlico district, North
Carolina ; and that court decreed that the brig
Jane, her tackle, apparel, furniture and boats,
and the pieces of fustic wood and horns, part
of the cargo on board of the brig, at the time
of the capture, in the possession of the mar-
shal, be restored to the libelant ; and that he
recover of Gonzales, for damages sustained by
reason of the detention of the brig, $1,000 ;
and that the cargo then on board should be
sold, and that the proceeds, after payment of
costs, should be paid to the libelant towards
the satisfaction of these damages ; and the
court reserved its decision upon the claim of
the libelant for damages for the value of the
cargo at the time of capture. It did not ap-
pear that any decision was ever made upon
the point reserved.
The counsel for the defendant moved for a
nonsuit, on the ground that a trover and con-
version were not proved ; that the cause of
action had been adjudicated upon by the Dis-
trict Court of North Carolina, and that it was
a question exclusively of admiralty jurisdic-
tion. But the motion was overruled, and the
judge charged the jury as follows : First. If
the jury, from the evidence, believed that the
schooner San Francisco de Paula had on board
a commission or letter of marque, under the
government de facto of New Grenada or Car-
thageua, and claimed to act under it in capt-
uring, and also, in the subsequent disposi-
tion of the brig Jane, then the plaintiff was
not entitled to recover, because the question
of prize or no prize, involving the validity of
that commission, belonged exclusively to ad-
279*] miralty 'jurisdiction. Second. If it
were proved that the schooner San Francisco
<le Paula had that commission on board, and
acted under it in capturing the brig Jane ; but
that, instead of treating* her as a prize of war,
as by conducting, or endeavoring to carry her
to a port of the captors, or of their allies, for
the purpose of adjudication before a compe-
tent tribunal, the brig, was, in fact, carried
by the captors into the United States, then at
pence with Spain, in the disguise of a private
merchant vessel, and claimed and disposed of
there, by the defendant, as his private prop-
erty ; th'en the defendant was, in judgment of
law, to be considered a trespasser ab initio,
and the plaintiff was entitled to recover the
value of the cargo, at the time and place of
capture, with such additional damages as
would be equal to the interest thereon ; and in
determining such value, the jury ought to
allow the New York price of the cargo, de-
ducting a reasonable premium of insurance
from the place of capture to New York ; the
restoration of the brig and the avails of the
cargo, or any part or it which the plaintiff
hail received, of course, going in mitigation
of damages. Third. If the jury believed,
from the evidence, that at the time of the capt-
ure, the schooner San Francisco de Paula had
JOHNS. REP., 14. N. Y. R. 5. J
no commission as a letter of marque, then, in
judgment of law, the taking of the brig was
an act of piracy, for which the captors were
responsible criminaliter , in the federal courts
only ; but the private injury was was not
merged in the felony ; and that, as it regards
the civil remedy, this court had jurisdiction,
and the plaintiff was, in that case, entitled to
recover the value of the cargo according to
the rule above mentioned, it being understood
throughout that the plaintiff was bound to
prove property in himself; and that the de-
fendant did, or procured to be done, the in-
jury complained of, or that he adopted the
act of seizure by his subsequent disposition of
the property. With these directions, the judge
left the cause to the jury, who found a verdict
for the plaintiff for $29,687.80 damages. The
defendant's counsel excepted to the opinion of
the judge.
The case was argued on the bill of excep-
tions, at a former term.
Mr. Burr, for the defendant. The plaintiff's
vessel was taken as a prize. It being then a
question of prize or no prize, admitting that
the capture was illegal or piratical, the Court
of Admiralty *has sole ana exclusive [*28O
jurisdiction of the question. The courts of
common law have no jurisdiction at all. This
was laid down as the clear and established law
in the case of Le Uaux v. Eden, Doug., 594,
601, 602. Buller, J., in that case, went into a
full examination of all the authorities on the
subject, and showed, most conclusively, that
such had always been the law. The same doc-
trine was laid down by Lord Mupsfield, in the
elaborate opinion delivered by hnn in the case
of Lindo v. Rodney, Doug., 613, n., and this
doctrine has been repeatedly recognized and
sanctioned, as clear law. by the courts. of this
country. In the case of Donne's Adm. v. Pen-
luillow, 1 Dall., 218. 221, in the Court of C. P.
of Philadelphia, Judge Shippen (1787) held,
that tin MI--II the question before the court was
not directly a question of prize, yet, being a
question arising upon the immediate and nec-
essary consequence of the vessel being taken
as prize, it was solely and exclusively of ad-
miralty jurisdiction. In Ross v. RitlenJwuse, 2
Dall., 160, decided by the Supreme Court of
Pennsylvania (1792), all the judges held the
same language. Simpxon v. Nndeau, Cameron
& Norw. R.. 115, 143, before the Court of
Conference, in North Carolina (in 1801), is a
strong case in point. A French privateer capt-
ured a brig belonging to the plaintiff, an
American citizen, under the pretense of prize,
and carried her into St. Jago de Cuba, and,
without any regular form of condemnation,
sold the brig and cargo. The plaintiff brought
an action of trover against the defendant, the
owner of the privateer. All the judges were
clearly of opinion that the court had no juris-
diction of the cause : it being a question of
prize, or of capture under pretense of prize, it
could only be determined in a court of admi-
ralty.
The same question came before the Supreme
Court of Pennsylvania, in the late case of
Cheriot v. fbnwit, 3 Binney. 220 (1809), in
which it was held that a court of common law
had no jurisdiction of an action brought to
recover property which had been condemned
5 8«5
280
SUPREME COUKT, STATE OF NEW YORK.
as prize, for a violation of a municipal law of
France, interdicting trade with her revolted
subjects in St. Domingo. In that case, the
vessel of the plaintiff, an American citizen,
was captured by two French privateers, and
carried into St. Jago de Cuba ; and there con-
demned as lawful prize by a commissary of
marine or agent of the French government,
under an arrete of the Captain-General of St.
Domingo, by which all vessels found commu-
nicating with the places on the coast occupied
by the rebels, should be seized and condemned,
with their cargoes.
281*] *Mesais. Slosson and D. B. Ogden,
contra. A bill of exceptions does not bring
the whole matter into examination, but only
the particular points excepted to, and where
the opinion of the judge is against the party
who makes the exception. (8 Johns., 507; 2
Caines, 168.) The first part of the judge's
charge, in this case, being in favor of the de-
fendant, does not come in question. We shall
endeavor to show, first, that this court has a
general jurisdiction; and second, that this case
does not make an exception.
1. It is not pretended, if this is a mere ques-
tion of prize or not, that this court has juris-
diction. All the books show that such a ques-
tion belongs solely and exclusively to an ad-
miralty court. But it is equally well settled
that courts of common law have jurisdiction,
generally, in all cases of a wrongful taking on
the high seas. In Lindo v. Rodney, Doug.,
614, 615, n. 1, Lord Mansfield lays it down
that a thing being on the high seas does not ex-
clude the jurisdiction of the common law
courts. Thal^for seizing, stopping or taking
a ship on the high seas, not as prize, an action
lies. It is the nature of the question, not the
locality or place of taking, on which the juris-
diction depends. The authorities are numer-
ous to this point. (See, also, Monty n \. Fahrigus,
Cowp., 179; Nightingale v. Bridges, Carth.,
131 ; 1 Show., 135 ; Hughes v. Cornelius, 2
Show., 232 ; T. Raym., 473; Beake v. Terrill,
Show., 6 ; Le Caux v. Eden, Doug., 604 ; and
the authorities there cited.)
Brown, in his treatise on the law of the Ad-
miralty, 2 Bro. Adm. Law., 107, 116, 122;
Bridginaris case, Hob., 12, 212, 213, after ex-
amining the authorities on the subject, says :
"The proper distinction seems to be, that if
the suit be in rem, for the restitution of the
ship itself, the suit should be in the Admiralty ;
if for damages only, at common law." The
two courts have, in many cases, in regard to
torts committed on the high seas, concurrent
jurisdiction. In Shermoulin v. Sandx, 1 Ld.
Raym., 271, Lord Holt says : " The common
law is the controlling jurisdiction, and the
party must well entitle himself to draw a cause
from it." The common law court is the supe-
rior, having power to grant prohibition to the
admiralty.
Prima facie, then, this court has jurisdiction
of this case. The defendant, to make out his
exception, and to draw his case from this
court, alleges, first, that it is a question of
prize or no prize ; and second, if not, it is a
case of piracy. The exception must be clearly
supported or the defense fails. There is noth-
ing in the Constitution or laws of the United
States that alters or takes away the common
806
law or the rights of parties as they before ex-
isted. The judicial power of the United States
extends to all cases of admiralty and marine
jurisdiction. (Const. U. S., art. 3.) The
Act establishing the judicial courts of the
United States (1 U. S. L., 47 ; 1st Cong.,
1st sess., ch. 20), declares *that [*282
" the District Courts of the United States shall
have exclusive original cognizance of all civil
causes of admiralty and maritime jurisdiction,"
&c., " saving to suitors, in all cases, the right
of a common law remedy, where the common
law is competent to give it."
Is this, then, a question of prize or not ?
What is prize ? It is, in the language of Sir
Wm.' Scott (The Two Friends, 1 Rob., Adm.,
283), " a taking of goods, jure belli, on the high
seas, out of the hands of an enemy." It must
be a hostile capture, in a public war between
two sovereigns or independent states. It is
essential, therefore, that the party alleging a
prize should show a regular commission or au-
thority to seize, as prize, from the belligerent
to an individual competent to receive and act
under such commission. It is a prerequisite
that the defendant should show a valid com-
mission ; and this court must collaterally ex-
amine into the question, not whether there was
a valid prize or not, but whether the quesfion
of prize or no prize arises in the case. Now,
this question cannot arise, if the sovereigns or
states were not at war ; if no commission ex-
isted, or if the person claiming to act under a
commission was legally incompetent to do so.
The court must examine so far as to see
whether the foreign court had jurisdiction.
(Rose v. Hiinely, 4 Cranch, 269 ; Wliedwriyht
v. Depeynter, 1 Johns., 484, 485 ; Talbotv. JKII-
sen, 3 Dall., 159.) It is bound to inquire into
the competency of the authority under which
the plaintiff's property has been taken. We
contend, then : 1. That there was.'in fact, no-
commission. 2. That the government at
Carthagena was incompetent to grant one. 3.
That this defendant was not competent to ac-
cept it.
1. A taking on the high seas by an individ-
ual without a commission, is a trespass. It is
not a capture as prize. A private armed
cruiser, without a commission, is a pirate ; for
it belongs only to the public authority of a
nation to direct its forces and carry on war.
Was there, then, in fact, any -commission on
board the San Francisco de Paula ? [Here
the counsel went into the evidence given at
the trial, and concluded that there was not
sufficient legal proof of the existence of a com-
mission.] In case of a public ship of war, no
commission need be shown ; but here, Novion,
residing in the United States, who were at
peace with Spain and her colonies, fitted out
his vessel, and sailed ostensibly on a mercantile
voyage. There can, then, be no presumption
in favor of his having a commission. From
the report of the case of Ridley v. Eyglesjield,
2 Lev., 25, in Leviuz, it does not appear that
the defendant had a commission, but in the re-
port of the case by *Saunders (2 Sauiid. , [*283
259), it is stated that the plaintiff's ship was
taken by a private Scotch man-of-war as a
prize, supposing her to be Dutch, and carried
into Scotland, and there condemned by the
Court of Admiralty as lawful prize. The
JOHNS. REP., 14.
1817
HALLETT v. NOVION.
2*3
meaning of Lord Ch. J. Lee, in the case of
It">i* v. //.<.«.!/•'/. cited by Lord Mansfield in
Limngnton v. M'Ke/izie, and by Buller, J., in
Le Caux v. Eden, Doug.. 603, undoubtedly is,
that for a taking, without commission, on the
high sea*, trespass lies at the common law ;
but for a taking under a commission as a
prize, the Court of Admiralty alone has juris-
diction. 80 in Vandervoorl v. Thompson,
cited also in I^e Caux v. Eden, the defendant
had letters of marque.
2. Carthagena was not a sovereign power
capable of granting a commission. She is a
colony of Spain in arms against the parent
State ; and it is for our government alone to
decide on the fact of her being a sovereign
State. This point has been settled in this
court, in the case of Hoyt v. Oeltton, 18 Johns.,
189 ; 4 Crauch, 272. The judge, in his charge,
did not leave it to the jury to decide whether
Carthagena was an independent government
de facfa or not. The jury must have believed
that there was no commission on board. Their
verdict negatives the fact of her having a com-
mission.
3. But admitting, for a moment, that Car-
thagena was an acknowledged government de
facto, we contend that the defendant, residing
in the United States, could not, as it regards
this country, accept a commission. He owed
allegiance to the United States. He acted at
his peril, and can derive no benefit or protec-
tion from any such authority. (3 Dull., 183,
154.) The act was illegal, not only as against
the iaw of nations, but as expressly forbidden
by an Act of Congress, passed the 5th of June,
1794 (8 U. S. L.. 89, 3d Cong., 1 sess., ch. 50),
and made perpetual by an Act passed the 24th
of April. 1800. (5 U. S. L.. 128, 6th Cong.. 1
8688.. ch. 35.) This Act declares it to be a high
misdemeanor, punishable with fine and im-
prisonment, as well as forfeiture, for a person,
within the ports of the United States, to tit out
and arm. «fcc., any ship or vessel, with intent
to employ her in the service of any foreign
prince or state, to cruise or commit hostilities
upon the subjects, citizens or property, of an-
other foreign prince or state, with whom the
United States are at peace, or to issue or de-
liver a commission within the United States
for that purpose. If the defendant, then, hud
a commission, it must here be regarded as ut
t.-rly null and void. (3 Dull., 158, 154.) It is
the same as if he had no commission. Can it
284* J be tolerated that a person titling *out a
vessel in one of our own ports, in direct viola-
tion of an Act of Congress, going on 'the high
MM, committing trespasses, seizing the prop-
erty of our own citizens, and bringing it into
our ports, and converting it to his own use.
without ceremony or form of law, shall not be
subject to an action in our courts at the suit of
the party injured ? Even if the vessel hud a
regular commission, would this be suffered ?
If the tirst inception of the business was un-
lawful, must not everything subsequently done
be deemed unlawful here ?
Again . admitting that the defendant hud a
legal commU'i.m :iud acted under it, he did
not proceed witli the prize so at to entitle him
to a condemnation. It has long been the set-
tled law that mere capture alone does not vest
the property in the captor. It must be fol-
!li:r . 14.
lowed by condemnation in the courts of the
sovereign of the captor or his allies ; and un-
til such condemnation the property remains
unchanged. (Avtiettdo v. Cambridge, 10 Mod.,
W; 00M v. Withers, Burr.. 696; The Flad
Over, 1 Rob., 114; The IlendricJc and Maria,
4 Rob., 35 ; Wheelwright v. Depeyster, 1 Johns.,
412.) In order to perfect the capture, and
render it valid and effectual, certain rules of
proceeding in cases of capture have been laid
down and adopted by all civilized nations.
(1 Johns., 482, Answer to the Prussian Me-
morial. See Appx. Chilly's L. of N., 802 ; 3
Dall., 168 ; 4 Cranch. 514.) The caplor must
put the prize in a train for legal adjudication.
He must carry her within the jurisdiction of
his sovereign. The commission produced re-
quires him to do so conformably to the gen-
eral law of nations. Some of the crew must
be left on board to ascertain the character of
the captured vessel, and her papers must, also,
be preserved. If these rules are not observed ;
if the captor does not pursue the course poinled
out by the law of nalions, he shows, by his
conducl, lhal it was not his intention to act
under his commission, or lo seize as prize, but
piratically. The defendant took out all the
crew from the plaintiff's vessel, he destroyed
or suppressed her papers, forged a new set of
papers, sent her, under a false character, inlo
a neulral port, and Ihere proceeded to sell and
dispose of the property, without any form of
judicial proceedings whatever. Here, then, is
not a case of mere irregularity, but the whole
course of the defendant's conduct shows that
he did not intend to capture as prize ; that
he waived his commission.
Admitting that by a seizure of the goods of
a belligerent on the high seas, the hostile cap-
tor acquires an inchoate right of property ; yet,
where neutral property is taken, he acquires
no right whatever ; the property is not at all
changed. He can only retain possession by
force. The moment he lets go his*hold [*285
or abandons his belligerent character, his riirht
as captor ceases. (2 Valin, 121 ; 2 Azuni, 287 ;
1 Emerig., 440 ; 4 Cranch. 294, Binkershoek.
J., B, ch. 4; The Polly cited 4 Rob., 179; 2
Azuni, 273, 274 ; 1 Emerig, 503, 505. 507 ; I
Acton, 88.) If he does not or cannot retain
his hold, the property reverts to the original
owner. Here the defendant, instead of con-
tinuing to exert his hostile power, and of pro-
ceeding to perfect his title to the prize, suffers
the captured vessel to go at large. He aban-
dons his prize. The belligerent occupation
having ceased, the holder, as it regards the
owner, is a trespasser.
In Beake v. Jyrrell, 1 Show., 6. which was
an action of trespass for taking a ship, «fec., the
defendant pleaded that he was captain of a
nriii of war, and took her on the high sea*, as
prize, and carried her into , and she was
there condemned, in the admiralty, as pri/.e.
Holt, Ch. J., said : "It doth not appear how
this ship came to In- a prize : it doth not ap-
pear there was any cause to seize her as such,
nor shown that there was any war." So, in
this case, we say, no war has been shown.
There can be no war except between sovereign
states.
Next, as to the second ground of exception
or defense, that the taking was piratical. It
807
SUPREME COURT, STATE OP NEW YORK.
1817
is not our object to contend that the act was
piracy. There are many acts of depredation
on the high seas which are not piratical. It
does not follow that because the taking was
by force that it was piratical. It may be so
or not, according to circumstances. (8 Dall.,
160.) All we assert is, that the defendant can-
not set up his own piratical conduct as a de-
fense in this action. He cannot allege his own
crime or fraud to shield himself from respon-
sibility. It is a well-settled principle that " no
man shall set up his own fraud or iniquity as
a ground of action or defense." (3 Dall., 158;
3 Bos. & P., 26 ; 3 Cranch, 248.) Nemo alle-
gans suam turpitudinem audiendus est. Could
the defendant plead to the jurisdiction to this
court that he took the property feloniously or
piratically, and therefore this court had no
cognizance of this action ?
But supposing it to be piracy, yet this action
lies. The civil remedy is not merged in the
felony. (1 N. R. L., 499, 36'sess., ch. 8, sec.
20 : 5 T. R. , 175.) Piracy is robbery on the
high seas, and may be punished by any nation.
In~England, originally, the crime was punish-
able only in the Admiralty ; but by the Statute
28 Hen. VIII., ch. 15, it was triable by Com-
missioners of Oyer and Terminer, according
to the course of the common law. (3 Co. Inst.,
ch. 49, 111, 112 ; 4 Bl. Com., 71, 268.) By the
law of the United States, piracy is made triable
by jury before the Circuit Court, and is pun-
ishable with death. The rule, as to the mer-
ger of the private right in the felony, which
is founded on principles of public policy, does
286*] *not apply to a case of piracy, which
is not a common law, but a civil law felony.
(3 Inst., Ill, 112.) After the Statute 28 Hen.
VIII., a pardon of all felonies did not extend
to piracy. At common law, the party robbed
was obliged to bring an appeal in order to have
his goods again; but no appeal lies in a case of
piracy. (4 Bl Com., 362, 363.) The reason
why the civil remedy was merged in the felony
at common law, was to prevent compounding
for the offense, and to compel the party to
bring his appeal. But piracy not being a com-
mon law felony, the reason of the common law
rule does not apply.
It is a settled principle that property in
goods taken by pirates is not changed, but re-
mains in the owner. (2 Burr., 694; 3 Dall.,
160; 16 Viu. Abr., 350, Pirates, ch. 1, sec.
3, sec. 4; Id Mod., 79.) In England, then, as
well as in this country, the offense criminaliter
is considered distinct from the civil injury. If
the right of the owner remains, why not the
remedy ? The private or civil remedy in the
Admiralty Court must be on the instance side
of the court, for a restitution of the goods, or
thing itself. But where, as in this case, the
claim is for a reparation in damages for de-
priving the party of his property, the common
law court is the proper tribunal. In PalacJie's
case, 4 Inst., 152-154, it was resolved by the
Court of K. B., that the goods taken at sea,
being brought within the realm, if the Span-
iard sued for them civiliter in the Court of
Admiralty, a prohibition should be granted ;
for it should be determined by the laws and
Statutes of England, and not by the civil law.
So, in the case of Don Diego Seniento de Acuna,
(the Spanish Ambassador) v. Joliffeetal., Hob.,
868
78, the plaintiff, as Procurator-General for all
the subjects of the King of Spain, having
libeled, in the Admiralty Court, for two ships
and their cargoes, belonging to Spanish sub-
jects, charging that Joliffe and Tucker, Pi-
ratce, in alto mare, more bellico, dictas naves
agressi aunt, et per vim et violentiam , took them ;
and that they were brought into some part of
Ireland, and there came to the hands of Bing-
ley, who converted them to his own use, not
saying where, and who refused to render them
on request, &c. ; the Court of C. B. unani-
mously awarded a prohibition, as regarded the
suit against Bingley. Though the charge was
that the defendants were pirates, yet it was a
mere action of trover and conversion, or for
taking by force and violence, and the proceed-
ing was civil, and not criminal.
The facts proved in this case fully show a
conversion by the defendant, on land, of the
property of the plaintiff.
*Mr. Golden, in reply, insisted that [*287
whether the San Francisco de Paula had a
valid commission or not. or whether the gov-
ernment under which it issued was competent
to grant it or not, were questions belonging to
the Admiralty Court, which had exclusive
cognizance of the principal question, prize or
no prize. Though a court of common law
cannot inquire whether the government issuing
tiie commission is a sovereign and independent
state or not, yet an admiralty court, in decid-
ing the question of prize, may recognize the
authority of a government de facto. But it ap-
pears from the case that the judge, in his
charge, left it to the jury to decide the ques-
tion.
It is sufficient to oust the common law juris-
diction that the taking was under pretense of
prize. No matter whether the capture was
lawful or not. The captured vessel was a
Spanish vessel. The plaintiff had made her
so. She had Spanish papers, a Spanish crew,
and was sailing under Spanish colors ; and she
was captured as Spanish property by a vessel
cruising under a commission from a govern-
ment defafito at open war with Spain. Where
the original cause or question, as a taking on
the high seas, belongs to the admiralty juris-
diction, it continues there, and every incidental
and consequential matter belongs also to the
same jurisdiction. (2 Bac. Abr., 178, 179;
Court, of Adm., B ; Vent., 308 ; 1 Lev., 243 ;
Sid., 367; Roll. Abr., 530; Carth., 475, 476;
3 T. R., 332 ; 1 H. Bl., 476; 4 T. R., 882.)
Next, supposing the taking, in this case, to
have been piratical, we contend that a court of
common law has.no jurisdiction. Piracy is
taking the property of another on the high
seas without authority, animo furandi. What
would be felony if the act was committed on
land, is piracy if done on the high sea. A
pirate is one who roves the sea in an armed
vessel, without any commission or passport
from any sovereign, but solely on his own
authority, and with a view to appropriate to
himself, without discrimination, every vessel
he may meet. (2 Azuni, 351, Part 2, ch. 5,
sec. 3 ; 1 Dall., 247 ; United States v. Tally, 2
East, Cr. L., 796.) In the case of The Helena
the owner of a ship captured by an Algerine
corsair, and sold by the Dey of Algiers, ar-
rested her by a warrant out of the Court of
JOHNS. REP., 14.
1817
HALLETT v. NOVION.
287
Admiralty, as being his property, taking pirat-
ically, and not lawfully.
The capture, being on the high seas, is prima
fade as prize, and the plaintiff must show that
it was a marine trespass, to give the court juris-
diction. The defendant need not plead that
the taking was as prize or piratical. It is
enough that from the cause of action the court
see that it has no jurisdiction. To support an
action of trover for goods taken at sea, the
288*1 plaintiff *must, besides a property in
himself, show that his sovereign was at amity
with the sovereign of the defendant. (4 Inst.,
154.) A marine trespass is where the taking is
not as prize or piratic-ally. What is said in
Stake v. TyrreU, 1 Show., 6 ; 3 Mod.. 194, &
O.j Comberbach, 120, S. C., if taken in refer-
ence to the facts before the court, amounts only
to this, that being a seizure under a municipal
law, and not a prize of war, the Court of K .
B. had concurrent jurisdiction of the cause.1
In Wheelwright v. Depey»ter the question of
prize was not raised or considered. The only
point of inquiry was, whether there had been a
valid condemnation or not, so as to give the pur-
chaser a good title. The rules of proceeding
in case of prize or capture, and the inquiry as
to the validity of the commission of the captor,
are all prize questions.
Again ; the judge referred it to the jury to
decide whether the defendant, in making
the capture, and in his subsequent disposi-
tion of the plaintiff's vessel, acted under
his commission or not. This cannot be cor-
rect. It would be a most inconvenient rule,
and extremely embarrassing to all captors.
If the courts of common law have no juris-
diction of piracy, then that question was im-
properly referred to the jury.
Mr. Slotu>on, to show that using false or
simulated impers, &c., to disguise the real
character of the property, was not a fraud that
would prevent the party from proving the
real ownership, cited 2 Rob., 88, 89; 6 Rob.,
1, The Flora.
(Cur. ad. vult.)
THOMPSON, Ch. «/., now delivered the opin-
ion of the court :
Several very imporant and difficult questions
have been raised and discussed on the argu-
ment, which, according to the view I have
taken on the case, it becomes unnecessary for
me particularly to notice. That the brig Jane
and her cargo were the property of the plaint-
iff at the time of the capture by the privateer,
was very satisfactorily proved ; and the con-
version by the defendant was equally well
established. The only question of doubt in
the case was, whether this court has jurisdic-
tion of the cause, or whether it is a case exclu-
sively of admiralty jurisdiction. That courts
of common law have cognizance of marine
trespasses, is a point nowhere questioned. It
2811*] is not the *place, but the nature of the
question, that will determine the jurisdiction
of the court.
Le (Jnux v. Eden, Doug., 594, is a leading
1.— The case of Beake v. Tyrrell is well commented
on and t-xplaint-d by Jcxx'lyn, arpuendo. in the case
«>f Simpson v. Nanl.-iiii, Cam. and Norw., 136. 137,
138. In which the question of jurisdiction Is very
fully and ably diacuaaed.
JOHNS. REP., 14.
i case on the question whether common law
| courts have jurisdiction when the question is
prize or no prize. It is there expressly admit-
| ted that trespass will lie at common law for
i taking a ship on the high seas ; and the reason
assigned in all the cases on this subject why
common law courts have not cognizance of the
| question, whether taken as prize or not, is be-
j cause prizes are acquisitions Jure belli, and the
\ju* belli, is to be determined by the law of
\ nations, and not by the particular municipal
law of any country. W henever, therefore,
the rights of parties are to be governed by the
! municipal law, and not by the law of nations,
! it would seem to follow, as matter of course,
that common law courts have jurisdiction of
the case. In the Act of Congress establishing
the judicial courts of the United States, there
is a saving to suitors, in all cases, of the right
of a common law remedy when the common
law is competent to give it. If courts of com-
mon la-w have cognizance of marine trespasses,
then, prima facie, this court has jurisdiction,
and it is matter of defense, and to be shown on
the part of the defendant, that this jurisdic-
tion is taken away. When this defense shows
and involves in it a violation of an Act of
Congress, it appears to me to be going great
lengths to yield our jurisdiction. This is
surely a question depending on the municipal
law of this country, and not upon the law of
nations ; and the reason for sending the par-
ties to a court of admiralty ceases. A court of
common law is as competent to try the ques-
tion as a court of admiralty. That" the priva-
teer, in this case, was fitted out in direct viola-
tion of the Act of Congress cannot be denied.
The Act of June 5th, 1794, and which is
made perpetual by an Act of the 24th of April,
1800, makes it a misdemeanor, and subjects to
a penalty any person who shall, within any
ports, harbors, bays, rivers or other waters of
the United States, fit out and arm, or attempt to
fit out and arm, or shall, knowingly, be con-
cerned in furnishing, fitting out or arming any
ship or vessel with intent that she shall be
employed in the service of any foreign prince
or state, to cruise or commit "hostilities upon
the subjects, citizens or property of another
foreign prince or state with whom the United
States are at peace; or shall issue or deliver a
commission within the territory or jurisdiction
of the United States, *for any ship or [*2i)O
vessel, to the intent that she may he employed
as aforesaid. In the case before us, it is very
satisfactorily proved that the privateer Whit-
ing, which captured the plaintiff's brig, was
fitted out at Washington, in North Carolina ;
and that the commission to cruise was put on
board while she was within the jurisdiction of
the United States, which commission author-
ized cruising against the Spaniards, with whom
the United States were at peace.
If it became necessary to inquire whether
the government at Carthagena was competent
to issue the commission under which the priva-
teer acted, this might most properly belong
to admiralty jurisdiction. But whether the
commission issued from competent authority
or not, cannot be a subject of inquiry ; and in-
deed, this is altogether immaterial, for the very
putting it on board, within the jurisdiction of
the United States, was illegal, and the com-
8M
SUPKEME COURT, STATE OP NEW YORK.
1817
mission a nullity. The defendant cannot be
allowed to set up as a justification or excuse
for his trespass an act made penal, and a
criminal offense, under the law of Congress.
To inquire into this matter is not entertaining
the question whether prize or not. This is a
point depending entirely on our own municipal
law, with which the law of nations has no
concern. It is no answer to say that the defend-
ant may be proceeded against for the penalty
and offense prescribed by the Statute. This is
a prohibitory Statute, and every act done
against it is not only illegal, but absolutely
void. It would, in my judgment, be a danger-
ous doctrine, and subversive of all sound rules
and principles, to listen to a defense founded
on a violation of this Act of Congress. Courts
of law will not assist an illegal transaction in
any respect, or permit it to be set up as a pro-
tection. Although this Act contains no express
prohibition, yet it is a well-settled rule that a
penalty implies a prohibition. (Garth., 252.)
I can discover no reason whatever why courts
of common law are not as well adapted to
inquire into a violation of this Act as courts of
admiralty. It is surely not enough to take
away our jurisdiction, barely to pretend that
the taking was as prize. Suppose no commis-
sion had been on board at all, or the captors
were acting under a forged commission, with-
out any pretense that it had been granted by
any government or sovereignty whatever,
would it not be competent for courts of com-
mon law to take cognizance of such inquiries.
A vessel cannot be said to be captured, as prize,
291*] *unlesa the act be done bona fide, and
under a commission, at least prima facie,
valid, and where the responsibility of the gov-
ernment, which must be settled according to
the law of nations, is involved. In such case,
there is a great propriety in, sending a party to
a court of admiralty jurisdiction for redress.
But not so where our own municipal law
furnishes the rule by which the claim and
rights of the parties must be tested. The illegal
fitting out of this privateer, in direct violation
of the Act of Congress, precludes the defend-
ant from setting up the claim or pretense that
the taking was as prize; and it is upon this
ground alone that I place my opinion that this
court has jurisdiction of the cause. All the
facts which show that the fitting out of the
privateer was directly in the face of the Act
of Congress, appear on the bill of exceptions
and we are called upon to pronounce the law
upon those facts. Putting out of view the
question of prize, it it not denied that the
plaintiff has shown enough to entitle him to
recover ; and the rule of damages adopted by
the jury has not been questioned. The opinion
of the court, therefore, is, that the plaintifl
is entitled to judgment.
SPENCER, J., dissented. He observed that
the verdict of the jury being generally for- the
plaintiff, without any special finding of the
facts, the courts must examine the opinion ol
the judge as expressed to the jury ; and if the
law was not correctly laid down, a new tria"
must be awarded, unless, indeed, admitting al
the facts proved by the defendant to be true
the taking of the plaintiff's vessel was a marine
trespass, and not as prize of war.
870
The only. point for our decision is, whether,
as a court of common law, we have jurisdiction
of this case. It cannot be questioned that if
the plaintiff's brig was taken as prize of war,
his court has no jurisdiction. I believe this
proposition has never been doubted since the
cases of Le Caux v. Eden, Doug. , 526, and of
Lindov. Rodney, Doug., 591, note I. In the
latter case, we have the authority of Mr.
Justice Buller, "that there is a current of
authorities from the time of Queen Elizabeth
to the present time, all of which agree that the
admiralty has jurisdiction, not only of the
question of prize or not prize, but of all its
consequences." He cites the case of Rons v.
Heuu/rd, argued at the Cockpit, in 1749, and
determined by Ch. J. Lee, who held, with
the concurrence of the court, "that though
*for taking a ship on the high seas, tres- [*292
pass would lie at common law, yet, when it
was taken as prize, though taken wrongfully,
though it were acquitted, and though there
was no color for the taking, the judge of the
admiralty was judge of the damages and costs,
as well as of the principal matter; and if such
an action was bought in England, and the
defendant pleaded not guilty, the plaintiff could
not recover." Mr. Justice Buller assigns the true
reason why the question of prize or no prize
was solely conusable in the admiralty: "Prizes
are acquisitions jure belli, and the jus belli is to
be determined by the law of nations, and not
by the particular municipal law of any coun-
try." Lord Mansfield held the same doctrine
in Lindo v. Rodney. "A thing," he said,
"being done on the high seas, does not exclude
the jurisdiction of the common law; for seizing,
stopping or taking a ship on the high sea, not
as prize, an action will lie ; but for taking as
prize, no action will lie : the nature of the
question excludes, not the locality." The same
doctrine was reiterated in Smart v. Wolfe, 3
T. R. , 344, and the same principles were rec-
ognized in the Court of Appeals of North
Carolina, in Simpson v. Nardeau, Cameron &
Norwood, 115. In that case, one of the points
relied on arises in this case, that is, as to the
conduct of the captors after the capture; and it
was contended, that by such after conduct the
defendant became a trespasser ab initio. Judge
Hall observes that to ascertain the merits of
that argument, the court must have recourse
to the usages and regulations between us and
France; and that to go in search of these, would
lead the court out of its course; they exclusive-
ly belong to the prize courts.
In the second proposition laid down by the
judge to the jury, he instructed them that if
the San Francisco de Paula had a Carthagenian
commission on board, and acted under it, in
capturing the plaintiff's brig, the subsequent
conduct of the captors in not proceeding
against the brig as a prize, but bringing her
into the United States, under the circumstances
she was brought in, and selling her as the
defendant's private property, would render the
defendant a trespasser ab initio, and the plaint-
iff would be entitled to recover. I repeat it,
that the jury may have founded their verdict
on this part of the direction, and therefore, we
cannot conclude, from the finding, whether
the capture as was prize or not. There is abund-
ant proof in the bill of exceptions that the
JOHNS. REP., 14.
1817
THE PEOPLE v. ANDERSON.
293
293*] schooner had a Carthagenian *com-
mission on board, and thai her captain and
crew professed, in making the capture, to act
under it. They took forcible possession of the
brig, and her captain and crew were taken out.
This appears to me either a capturing as prize
of war or an act of piracy ; and as the jury
have not pronounced it to be the one or the
other, I am relieved from the necessity of ex
amining the question, whether courts of com-
mon law have jurisdiction in cases of piracy;
and thus the poiut to be decided is narrowed
down to this, whether the subsequent conduct
of the captors, admitting the capture to have
been as prize, will render the act of capture a
trespass ub initio, and give a court of common
law jurisdiction.
I can discover no principle of law to warrant
this. If the principal question of prize or no
prize is exclusively of admiralty jurisdiction,
how can it be that a court of common law,
proceeding according to the municipal law,
and not the law of nations, and, confessedly,
having no conusance of the principal question,
shall assume jurisdiction over the principal
question, by the application of its Own peculiar
law to the incidents of the main question?
It is as exclusively appurtenant to the ad-
miralty to determine whether the subsequent
treatment of the prize invalidates the capture,
as it is to decide whether the capture is valid
or not. It requires the same application of the
laws and usages of nations to the posterior
conduct of the captors, in determining whether
the captured vessel has ceased to be prize, as
in the primary question of prize or not. In
the caj»e of Ron* v. Ha**ard, Chief Justice Lee
held that where the captured vessel was ac-
quitted in the admiralty, the court of common
law was equally excluded from jurisdiction,
the sentence not altering the nature of the
original taking; it being a taking as prize, the
common law could not notice it as a trespass.
So here, if the capture was as prize, the com-
mon law cannot notice it as a trespass. Every
principle which excludes the jurisdiction of a
court of common law, on the question of prize
or no prize, equally excludes it in every stage
of the business ; and it does not belong to this
court to apply the principles of the municipal
law to any of the consequences of a pri/e, to
ascertain whether the captured property retains
or h:is lost that character.
I understand my brethren as not contesting
the soundness of the principles I have here ad-
vanced, but that the decision of this cause,
iil) t*] *in favor of the plaintiff, rests on the
fact that the San Francisco de Paula had been
fitted out in the United States, contrary to the
3d section of the Act of Congress of the 5th
of June, 1794 ; and that the original fitting
out being unlawful, the capture of the plaint-
iff's brig must necessarily be so. There is no
doubt that the ntting out of this privateer was
unlawful ; it was a high misdemeanor, sub-
jecting the offender to fine and imprisonment,
and the vessel to forfeiture. But I cannot
perceive that this precludes the question of
jurisdiction. The Act is silent as to the con-
sequences to result from a capture by a vessel
thus fitted out ; and it seems to me that it
cannot be doubted that a vessel, though armed
and fitted out in violation of that Act, may
Jouxs. REP., 14.
take a prize. It is another question, whether
it would be a valid capture ; and in the dis-
cussion of that question, in an admiralty
court of the United States, it might well be
urged, and with an overwhelming effect, that
the capturing vessel had no right to cruise or
capture. This could not be objected against
the captor in the courts of admiralty of any
other nation, for those courts would not carry
into effect the penal laws of another country.
These considerations.however.do not belong to
this court ; it is immaterial what we may
think of the illegality of the capture com-
plained of ; we have no power to entertain
the question or to afford redress ; and the ar-
guments addressed to us are misdirected.
The plaintiff is not without remedy, if his
rights have been invaded ; I only insist that
he has applied to the wrong/orum.
YATES, J., declared himself to be of the
same opinion.
Judgment for the plaintiff.
Reversed— 16 Johns., 327.
Contract f minded upon aw unlawful act, cannot he
enforced. Cited in— 7 Wend., 280 ; 5 Barb.. 28 ; 17
Barb.. 404 ; 37 Hurb.. 2SW : B2 Barb., 487 : 43 How. Pr.,
184 : 34 Super.. 27» ; 6 Leg. Obs.. 415.
Jurimtictiim. Cited in-38 Barb., 214 ; 2 Sand.. 388 ;
5 How. (U. 8.). 500.
Trover— Afea*ure of damaaes. Cited in — 5 Cow.,
614 ; 3 Sand., 026.
Also cited in— 4 Abb. App. Dec., 163, n.; 1 Trans.
App., 321.
THE PEOPLE t>. ANDERSON.
Larceny — Finder of Lost Article* not Guilty of,
for Convention.
A bona tide nndcr of an article lost, as a trunk
containing goods, lost from a stage coach, and
found on the highway. Is not guilty of larceny by
any subsequent act, in secreting1 or appropriating
to his own use the article found.
Citations-3 Inst.. 107 : 1 Hale P. C.. 508 ; 1 Hawk..
203, sees. 1. 2; 2 East, P. C., 6«3: 1 Hawk., ch. 33;
Kelyng. 24: Dull.. 3; 2 East, C. L.. 6fl5, 554, 698. 553,
665; Hawk., P. C.. ch. 33, sec. 9; 1 Bl. Com., 299.
THE prisoner was convicted at the last Court
of Oyer and Terminer, &c., held in the
County of Otsego, of a felony in stealing a
*trunk. It appeared in evidence, at the[*2wS
trial, that the trunk was lost from a stage
coach in the highway, and was there, after-
wards, found by the prisoner, who .took and
carried it away. The counsel for the prisoner
at the trial contended that property lost or
abandoned by the owner, and found by anoth-
er, was not the subject of larceny, and that,
therefore, the prisoner ought to be acquitted.
The Chief Justice reserved the question ; and
charged the jury that whether the prisoner
could be guilty of stealing property thus found
in the highway, was a question of law reserved
for the court, on which the jury were not to
pass ; but he directed them further, that if
they should be of opinion that the prisoner
first took the trunk with intent to steal it,
they ought to convict him ; and that, in com-
ing to that conclusion, they had a right to
take into consideration the' subsequent con-
duct of the prisoner, in relation to the prop-
erty, as well as all the other circumstances
of the ca«»c. The jury, by their verdict, found
871
295
SUPREME COURT, STATE OF NEW YORK.
1817
the prisoner guilty. The prisoner was brought
up on habeas carpus, to receive judgment,
and a case containing the facts above stated
•was handed to the court.
Messrs. Seely and Starkweather for the pris-
oner. It is laid down in all the books on the
subject, that the finder of goods, who subse-
quently appropriates them to his own use, is
not guilty of felony. Coke (3 Inst., 98, 107 ;
Butler's case, 28 Eliz.) says, "that, if a man
finds goods, and conceal or deny them; it is no
felony :" that it is essential to* constitute lar-
ceny, that the taking must be felonious, id est,
cum animo furandi ; "that if one lose his
goods, and another find them, though he con
vert them, animo furandi, to his own use, yet
it is no larceny, for the first taking is lawful."
(3 lust., 108; 22 Ass., pi. 99; 28 Edw. III.,
cor. 265.) This law is recognized by all the sub-
sequent writers on the subject; not a single case
to the contrary is to be found. (Hale P. C.,
61-67 ; 1 Hawk., ch. 33, sec. 3 ; 3 Bac. Abr.,
130, Felony, B; M'Nally'sEv., 586; Kelyng,
24.) East, the last writer on crown law, says:
"If one finds a horse in the highway, which
he takes and carries away, it is no felony ; al-
though it may be attended with all the cir-
cumstances which usually prove a taking with
a felonious intent ; such as denying or secret-
ing it." (2 East C. L., 663, 664.)
This is not a case of constructive felony ;
as where a person applies to the owner to get
possession of a chattel, for a certain specific
purpose, and then takes and converts it to his
own use.
29O*] *Mr. Van Buren, Attorney-General,
contra. It is from 22 Assizes that the dictum
of Lord Coke is derived, and which has been
adopted by Hale, Hawkins and East. But the
cases there found are those of treasure trove
and waif, in which the la.w presumes the prop-
erty to be derelict. If a person comes into
the casual possession of goods lost, he is not
considered as taking them feloniously, unless
the jury are satisfied that the party takes them
up, with an intent to appropriate them to his
own use. It is the intent with which the act
of taking is done, that makes it felony or not ;
and it is the peculiar province of the jury to
judge of that intent. In Pear's case, which
underwent great discussion, the prisoner ob-
tained a horse under pretense of hiring it for a
day, and immediately afterwards sold it ; this
was held to be felony, the jury having found
that the p'risoner hired the horse animo furandi.
(1 Leach C. L., 253, 108; 2 East Cr. L.,.685,
686.) Here the jury, by their verdict, have
found that the prisoner took up the trunk an-
imo furandi, or with intent to convert it to his
own use.
SPENCER, J., delivered the opinion of the
court :
The prisoner was convicted at the last Court
of Oyer and Terminer and Jail Delivery, held
in and for the County of Otsego ; and a ques-
tion of law having arisen on the trial, sentence
was respited, and he has now been brought up
on habeas corpus, to receive the judgment of
this court.
On the trial, it came out in proof that the
articles, for the stealing of which the prisoner
was indicted, were contained in a trunk, and
872
that he found this trunk on the highway. The
court below instructed the jury that if the
prisoner took the trunk with intention to steal
it, they ought to find him guilty ; and that, in
determining that question, they had a right to
take into consideration the prisoner's subse-
quent conduct, as well as all the circumstances
of the case.
We assume it as an undisputed fact that the
prisoner found the trunk bonaf.de, and conse-
quently, that it had been lost by its proprietor;
and we proceed on the ground that if any sub-
sequent embezzlement of the contents of the
trunk would make the act a larceny of those
articles, that then the conviction is correct.
But the court are of the opinion that the bona
fide finder of a lost article, or of a lost trunk
containing goods, cannot be guilty of larceny
by any subsequent act of his, in concealing oV
appropriating to his own use the article, or
the contents *of a trunk thus found. In [*297
Butler's case, in the 28th of Eliz., this doctrine
is fully established. In that case, it was de-
cided that the intent to steal must be when it
comes into the hands or possession of the
party ; for if he hath the possession of it
once lawfully, though he hath animum fu-
randi afterwards, and carry it away, it is no
larceny. (3 Inst., 107.) Again; Lord Coke
lays down the law, as drawn from the Year
Books (3 Inst., 107), to be, that if one lose his
goods, and another find them, though he con-
vert them, animo furandi, to his own use, yet
it is no larceny, for the first taking is lawful.
So, he says, if one find treasure trove or waif
or stray, and convert them, ut supra, it is no
larceny, both in respect of the finding, and
also for that dominus rerum non apparet. The
same doctrine will be found in 1 Hale P. O.,
506, and 1 Hawk,, 208, sees. 1 and 2. In 2
East P. C., 663, it is expressly stated that
where one finds a purse in the highway, which
he takes and carries away, it is no felony, al-
though it may be attended with all those cir-
cumstances which usually prove a taking with
a felonious intent, such as denying or secret-
ing it.
It cannot be doubted that an indictment for
a larceny must charge that the goods were
feloniously taken, as well as feloniously carried
away ; and hence it is an established position,
that if the taking is not an act of trespass,
there tan be no felony in carrying away the
goods. (1 Hawk., ch. 33 ; Kelyng, 24 ; Dalt.,
3.)
There can be no trespass in taking a chattel
found in the highway, and the finder has a
right to keep the possession against every one
but the true owner. How. then, can it be said
that a thing found bona fide, and of which the
finder had a right to take possession, shall be
deemed to be taken feloniously, in conse-
quence of a subsequent conversion, by deny-
ing and secreting it, with an intention to ap-
propriate it to the use of the finder?
It was urged on the part of the people that
the same test ought to be applied in the case
of the finding of a chattel, and its subsequent
conversion to the use of the finder, to ascer-
tain the felonious intention, as has been ap-
plied where goods, and particularly horses and
carriages, have been feloniously obtained, un-
der the pretense that the person applying for
JOHNS. REP., 14.
1817
THE PEOPLE v. ANDERBON.
29;
and obtaining them, would use them foracer-
2i)8*jtain specified purpose, and then *has
gone off with them, and converted them to his
own use. On a slight examination, the cases
will be found to be very dissimilar ; in the
latter case, there must have been an original
felonious intention, and unless this can be
fairly deduced from all the facts of the case,
it is no felony. Where that original felonious
intention exists, although the person having it
has obtained the consent of the proprietor to
let him have the possession for one purpose,
he intended to get it for another and far dif-
ferent purpose ; and he, therefore, never had
the possession for this different and fraudu-
lent purpose, and may be fairly said to have
acquired possession feloniously. It is not so
with regard to a person coming fairly into the
possession by finding. No fraud is practised
on any one "in first acquiring the possession.
It, therefore, never can be a question with a
jury, how far forth a person who found a
chattel, intended to find it fir the purpose of
stealing it. The very nature of the case ex-
cludes a premeditated or already formed in-
tention to steal. That depends, as matter of
fact, upon a variety of circumstances, such as
the value, the facility of concealment, &c.,
which are matters of after consideration.
Hence, we do not find a single case, in the re-
ports of criminal trials, or in the treatise on
criminal law, in which it has ever been inti-
mated that a person actually finding a chattel
has been held to have stolen it, from the cir-
cumstance of denial, concealment or appropri-
ation ; nor from the happening of any of those
facts, which, in reference to the taking of
chattels, ordinarily show a felonious intention.
It is true that there are cases in which, though
the party apparently had the possession of the
chattel, yet the taking has been adjudged fel-
onious. The case of a guest at a tavern, or of
a gentleman's butler, who have taken, the
things committed to their use or care, are
mentioned in the books as illustrative of the
principle, that the mere naked possession for
a special purpose will not protect the party, if
he take it away feloniously. So if a bailee of
a bale or trunk of goods, break the bale or
trunk, and take and carry away a part of the
Soods, with intent to steal them, jt is larceny ;
ut if he carry them to a differe'nt place than
the one agreed upon, and convert the whole to
his use, it is not larceny. East (2 C. L. . 695)
observes that this distinction seems to stand
more upon positive law, not now to be ques-
tioned, than upon sound reasoning ; and he
adopts Lord Hale's reasoning, that the privity
of contract is determined by the act of break-
121)1)*] ing the package, *which makes him a
trespasser, and that, therefore, it makes no
difference whether he takes all or a part only
of the goods after the package is broken.
There can be no analogy beween this case and
that of the carrier who breaks the package, or
opens a trunk animofurandi, because the finder
of goods has them not in virtue of any con-
tract, and violates none in opening a bale or
trunk.
The court believe that it would be an inno-
vation on the criminal law, to consider this as
a case of larceny ; and they, therefore, direct
the prisoner to be discharged.
JOHNS. REP., 14.
THOMPSON, Ch. J., dissented. The facts
upon which the jury founded their verdict
against the prisoner are not before this court ;
nor was it necessary that they should be, for
if the verdict was not warranted by the evi-
dence, application should have been made to
the Court of Oyer and Terminer for a new
trial. The broa'd question, therefore, submit-
ted to this court, is, whether property lost in
the highway can, under any circumsta'nces, be
the subject of a larceny. It was put to the
jury to say whether the prisoner formed the
intention of stealing, when he first found and
took the trunk, and, by their verdict, they
have found that the felonious intent accompa-
nied the first taking. The prisoner must,
therefore, be deemed to have been properly
convicted, unless, by the law of the land,
property lost cannot be the subject of larceny.
In most of the elementary writers on crimi-
nal law, we find this general proposition laid
down, that if one lose his goods, and another
finds them, though he convert them, animo
furnndi, to his own use. yet it is no larceny.
This, as a general rule, is undoubtedly true ;
but it necessarily implies that the finder acts
bona fide, with an intention to take and keep
the goods for the right owner when he shall
be ascertained ; and when such is the object
and intention with which lost goods are taken
up, no subsequent felonious design will con-
vert such taking into a larceny. That the rule
is so to be understood, is very evident from
the reason that is assigned for it, to wit : that
the first taking was lawful ; but if the first
taking was with the fraudulent intention of
depriving the owner of his property, such tak-
ing cannot be said to be lawful. It is the in-
tention with which the act is done that gives
its character. For this reason, though, in gen-
eral, he who has a possession of anything on
delivery by the *owner, cannot com- [*3OO
mit felony thereof ; yet this must be under-
stood only as applying to cases where such
possession is not obtained by fraud, and with a
felonious intent. For it is a well-settled rule,
that if the circumstances under which goods
are obtained, from the owner, by delivery,
were such as to warrant the conclusion that it
was done with intent to steal, such taking
amounts to felony. (2 East, 0. L., 605.) As
where one hires a horse on pretense of taking
a journey ; but, in truth, with intent to steal
him, this is larceny. So, where a carrier sev-
ers part of the goods from the rest, with in-
tent to convert them to his own use, he is
guilty of larceny, for, say the books, he is as
much guilty of "a trespass against the virtual
possession of the owner, by such second tak-
ing, as if the act had been done by a mere
stranger. (2 East, C. L., 554.) Possession ob-
tained by fraud, amounts to a tortious taking,
in the same degree as if taken without any de-
livery at all from the owner. Mr. East, after
referring to and stating a number of cases on
this subject (2 East, C. L., 693), lays down
this general rule, that if a person obtain the
goods of another, by a lawful delivery, with-
out fraud, although he afterwards convert
them to his own use, he cannot be guilty of
felony. But if such delivery be obtained by
any fraud, and with intent to steal, the deliv-
ery, in fact, by the owner, will not pass the
300
VOSBURGH v. BAME.
1817
legal possession so as to save the party from
the guilt of felony.
If the obtaining of goods by delivery from
the actual possession of the owner by fraud,
and with intent to steal, be larceny, no good
reason can be assigned why the taking of
goods from the constructive possession of the
owner, with the like intent, should not be
deemed larceny. The owner, by losing his
goods, is not devested of the property ; and
his general property draws after it the posses-
sion ; so that the goods, although found, are,
in judgment of law, taken from the possession
of the owner. There can be no doubt that
trespass might be maintained for a fraudulent
taking and conversion of goods found in the
highway. No difficulty, therefore, arises
from the rule laid "down in the books, that
every felony includes a trespass. Wherever
actual pos&ssion is gained by fraudulent
means, and with a fraudulent intent, the con-
structive possession, in judgment of law, still
remains in the owner. As if A steals goods
from B, who had stolen them from C, A may
be charged with stealing them from C, the
real owner, because the possession, in fact,
3O1*] *which B had, being fraudulent in
judgment of law, both the possession and prop-
erty always continued in C. (Hawk. P. C.,ch.
33. sec. 9.) The very definition of simple lar-
ceny is the wrongful or fraudulent taking and
carrying away by any person the mere person-
al goods of another, from any place, with the
felonious intent to convert them to his (the tak-
er's) own use, and make them his own prop-
erty, without the consent of the owner. (2
East, C. L., 553.)
The place, therefore, where the goods are
taken, is immaterial. It is the fraudulent and
felonious intent which constitutes the crime ;
and it is worthy of observation that where we
find the rule first laid down by Lord Coke (3
Inst., 107), that he who finds goods lost, and
converts them animo furandi, is not guilty of
larceny, it is accompanied with reference to
treasure trove, waifs, strays and wrecks, which
were considered bona vacantia, and, by the law
of nature, belonged to the first occupant or
finder. (1 Bl. Com., 299.) The rule, probably,
grewr out of the notion that such goods could
not be the subject of a larceny. But there
can be no ground for apply ing any of the rules
of law applicable to such property to goods
lost under the circumstances of this case,
where not only the property, but the construc-
tive possession of the owner, still remained
unaltered by the losing. It is very evident
that Mr. East means to confine the defense to
cases where no fraudulent design accompanied
the first taking, for he says (2 East C. L., 665)
the finder may give in evidence, that he en-
deavored to discover the true owner, and kept
the goods till it might reasonably be supposed
that he could not be found, or that he made
known his acquisition, so that he might make
himself responsible for the value in case he
should be called upon by the owner, for the
purpose of rebutting the implication of a
felonious taking and conversion. If he had
meant to be understood that under no circum-
stances could goods lost be the subject of a
larceny, it would be useless, if not absurd, to
say evidence might be received to rebut a
874
felonious taking ; which, according to the
argument on the part of the prisoner, did not
nor could not exist. Upon the the whole,
therefore, although, upon the trial of the pris-
oner, I had some doubts upon this question,
yet, from an attentive examination of the law,
I am persuaded that the rule under which the
prisoner claims to be discharged has been mis-
applied to his case ; and that the jury having
found that the *original taking of the [*3O2
goods was with a fraudulent and felonious
intent, judgment ought to be given against the
prisoner.
Prisoner discharged.
Cited in-17 Wend., 463 : 1 Hill, 96 ; 1 Denio, 122;
39 N. Y., 461 ; 1 Park, 10 ; 3 Park, 138.
VOSBURGH v. BAME.
Awards — Musi be Final — Do not Bind Strangers
to the Submission — Damages and Coats.
Where A and B submit to arbitration a suit be-
tween C and D, an award in that suit is not binding
upon the parties to the submission.
Where a suit is submitted to arbitration, it is not
sufficient that the arbitrators determine the dam-
ages to be paid by the defendant to the plaintiff
with costs, or award in favor of the defendant, with
costs to be paid by the plaintiff ; they must, also,
direct the suit to be discontinued or released, other-
wise the award is not final.
was an action of debt on an arbitra-
-L tion bond, the condition of which recited
as follows : " AVhereas Lambert Vosburgh,
son of the said Samuel (the plaintiff), has com
menced a suit in the Supreme Court of this
State, against John Bame, son of the said
William (the defendant), and has also, entered
a complaint to the grand jury of the County of
Columbia, against the said William Bame (the
defendant) and John Bame ; and whereas John
S. Vosburgh, also a son of the said Samuel
(the plaintiff), has commenced a suit in the
Court of Common Pleas of the County of Co-
lumbia, against the said William Bame and
John Bame ; and whereas the said William
Bame has commenced a suit in the said Court
of Common Pleas, against the said John S.
Vosburgh and Martin Vosburgh ; and whereas
it has been agreed, by and between each of the
parties respectively, that the said several
causes be submitted. &c." After over of the
condition of the bond, the defendant pleaded,
1. Non est faetum. 2: No award.
The plaintiff replied, setting forth an award:
first, in a suit in the Supreme Court — Lambert
Vosburgh v. John Bame — in which Ihey "re-
port, after having the proofs and allegations
of the parties, that the above defendant, John
Bame, is guilty of the several trespasses, as-
saults and batteries alleged against him, and
they assess the damages at $350, besides costs
Of suit ; and they report, order and determine
NOTE.— Awards. 1. Requisite* of. 2. Strangers.
1. Award* must be within the submission, certain
to a common intent and flnal. See Purdy v. Dela-
van, 1 Cai., 304, nt>te.
2. Award* do not bind strangers to the submission.
Brazill v. Isham. 1 E. D. Smith. 437; 12 N.Y., 9;
Martin v. Williams, 13 Johns., 264 ; Stewart v. Ab-
rahams, 7 Watts, 448 ; Studebacker v. Moore, 3 Binn.,
124.
JOHNS. REP., 14.
1817
FOOT ET XL. V. WlSWALL.
302
that the said John Bame pay to the said Lam-
bert Vosburgh the said sum of $350, besides
costs of suit." Next, in a suit in the Colum- j
bia Common Pleas — John S. Votburgh v. Will-
iam Bame & John Bame — in the same form as
the preceding, in which the defendants are
found guilty, and the damages assessed at $60,
besides costs ; which sum of $60, besides
#O3*] costs they are directed *to pay ; and
lastly, in a suit, also in the Columbia Common
Pleas— John 8. Votburgh & Martin Votburgh
v. \Villiiim Bame — in which the arbitrators "re-
port, after hearing the proofs and allegations
of the parties, that the defendants were not
guilty, &c.. and they order and determine that
the plaintiffs pay to the defendants their costs
of suit."
To this replication the defendant demurred,
and the plaintiff joined in demurrer ; and the
same was submitted to the court without ar-
gument.
THOMPSON. Ch. J., delivered the opinion of
the court :
This is an action of debt on an arbitration
bond. Plea, no award. Replication setting
out the award, and demurrer and joinder.
The question before the court is upon the
validity of the award. The bond purports to
submit to the arbitrators certain suits pending
in court ; one (fsimbert Vonburgh v. John
Bame) in the Supreme Court, and one (John 8.
Votburgh v. William Bame & John Bame) in
the Columbia Common Pleas ; and also a suit
commenced by William Bame v. John S. Vos-
burgh and Martin Vo*bnrgh. in the Common
Pleas of Columbia. The arbitrators, in their
award, set down the title of the several causes
and award in each, in the form of a report of
referees, viz: Lambert Vonburgh v. John Bame,
and assess the damages at $350 besides costs ;
and report, order and determine that John
Bame shall pay to Lambert Vosburgh the said
$350, besides costs of suit. This is no award
between the parties to the arbitration bond.
It does not award that William Bame. the de-
fendant in this cause, should pay anything.
John Bame, who is ordered to pay, is no party
to the submission ; nor is Lambert Vosburgh,
to whom the money is to be paid, any party
to the submission. The suit is not ordered to
be discontinued or released ; and the defend-
ant may be compelled to pay this money, and
still the suit go on against John Bame. The
parties to the suit are said to be the sons of
the parties to the submission ; but it does not
appear that they are minors, or that the sub-
mission was made by their consent. It is an
award, therefore, that cannot bind them. In
the suit of JohnS. Voiibnrgh v. William Bame tt
John*Bame, the plaintiff's damages are assessed
at $60, l>i-Mil.-«. costs, and the award is that the
defendant pay to the plaintiff the said $60,
besides the costs. In this case, John S. Vos-
hurgh is no party to the submission, and his
JJO4*] suit is not*awarded to be discontinued
or released, and the award will not prevent
him from going on. by the payment of this
money to the plaintiff in this cause. In the
other case of John S. Votburgh A Martin Vox-
burgh v. William Bame, the arbitrators de-
termine that the defendants are are not guilty,
and order the plaintiff to pay them costs of
JOHNS. REP , 14.
suit. The same difficulty arises here also.
The defendants in that .suit are no parties to
the submission, and that suit is yet pending,
and the plaintiff may be nonsuited and com-
pelled to pay the costs to the defendant,
although he should pay them to the plaintiff
in this cause. It appears to me therefore, that
the awards are bad ; there is no mutuality,
and they are not binding on the parties to the
suits in which the awards purport to lx> made,
as they are strangers to the submission. We
are. accordingly, of opinion that the defend-
ant is entitled to Judgment.
Judgment for ttte defendant.
FOOT AND REYNOLDS r. WISWALL.
Practice — Negligence — A Mired Que*tion of Late
and Fact — Bill of Exception!.
Negrllgrence ia a mixed question of law and fact :
when the facts have been ascertained by the Jury,
whether they warrant the charge of negligence- or
not, is matter of law.
All questions compounded of law and of fact,
must be submitted to the jury, unless there be a
demurrer to evidence. Whether a verdict is against
evidence or not, is not a point which can arise upon
a bill of exceptions. .
IN ERROR, to the Mayor's Court of the
City of New York.
The plaintiffs in error brought an action of
trespass on the case, in the court below, against
the defendant in error, for negligence, in run-
ning foul of a sloop owned by the plaintiffs.
The cause was tried at the December Term,
1813, of the Mayor's Court, before the Record-
er (Hoffman) of the City of New York.
The injury complained of took place in the
month of June, 1812, at which time the de-
fendant was master of the steamboat Paragon,
and was proceeding in the steamboat from
New York to Albany ; the plaintiffs' sloop
was on a voyage from Cornwall, in Orange
County, to New York, and being becalmed at
the entrance of the Highlands, was drifting
up with the flood tide ; and about midnight,
the night being very dark, the steamboat,
which carried light, was seen to approach,
and was hailed by the persons on l>oard of the
sloop, but they were not heard on board of the
steamboat, which having been engaged in
avoiding another sloop, came very near the
plaintiffs' vessel before she *was dis- [*3O£»
covered. As soon as the sloop was seen, the
direction of the steamboat was changed by
putting the helm hard a-port, and the ma-
chinery was immediately stopped. This, how-
ever, olid not prevent the steamboat from run-
ning foul of her. It was stated by a mariner
on board of the sloop, who was a witness on
the part of the plaintiffs, that the sloop was
j not at the time under the control of the helm,
I and that the collision could not have been
I avoided by any act of the persons navigating
I her. The steamboat, at this time, carried a
; light under her bowsprit, and three light* aloft
on the mainmast ; and persons were on the
lookout to avoid falling in with any vessel.
These and other precautions were constantly
observed on board of the steamboat. There
was no light hoisted on board of the sloop.
305
SUPREME COURT, STATE OF NEW YORK.
1817
The Recorder charged the jury that the de-
fendant was, pi*ima facie, liable for the injury,
and that it lay upon him to show that it did
not arise from negligence on the part of those
who navigated the steamboat ; that the
question of negligence was a question of fact
for the jury, and if they were of opinion that
the plaintiffs' vessel might have been avoid-
ed, or with due diligence might have been
discovered in time to avoid her, the plaint-
iffs would be entitled to a verdict ; for
the circumstance of there being no light
hoisted on board the sloop, would, in such
case, be no excuse for the Defendant ; but
otherwise, that if the injury were occasioned
by the darkness of the night, and the circum-
stance of there being no light kept out on
board of the sloop, there being no want of
care on the part of the defendant, then the
charge of negligence would apply to the
plaintiffs, who must bear the loss of their own
want of precaution.
The jury found a verdict for the defendant ;
and a bill of exceptions having been tendered
to the opinion of the Recorder, it was re-
moved into this court by writ of error.
The bill of exceptions was argued by Messrs.
8. Jones, Jr., and David B. Ogden for the
plaintiffs in error, and by Mr. Golden, for the
defendant in error.
For the plaintiffs in error, it was contended :
1. That the Recorder misdirected the jury.
That whether negligence or not, was a
question of law and not of fact. It was the
3O6*J business of *the jury to find the facts
of the case ; and from the facts thus found,
the court must draw the inference whether
there was negligence or not. That this was
an action of trespass on the case against the
master, the injury alleged being indirect, as
he was not the. immediate agent, being below
when the collision took place.
In the case of The Manhattan Bank v.
Lydig, 4 Johns., 377, it was held that the
question of due diligence in the plaintiffs, in
detecting the fraud of their clerk, was a
question of law, and not for the jury to de-
cide. So, in Sclieibel v. Fairbain, 1 Bos. & P. ,
382, the question of reasonable time, , or of
wrongful neglect in the defendant, was held
to be a question of law, and not of fact.
Again ; the Recorder was incorrect in
charging the jury that the plaintiffs in error
were bound to have lights hoisted on board
their sloop. We contend that the fault, and
all its consequences, rests on the defendant for
navigating in a night so dark that vessels
could not be distinguished, He acted at his
peril ; and the maxim, Sic utere tuo ut alienum
non Icedas, applies. If the defendant was in
fault for navigating in so dark a night, all the
care he took afterwards to avoid the plaintiffs'
vessel will not excuse him.
If the defendant had been at the helm of his
boat at the time, there is no doubt that the
plaintiffs could have recovered in an action of
trespass ; and there is no reason why they
should not be equally entitled to recover in an
action of trespass on the case, or for negli-
gence ; the distinction between the two actions
being purely technical. (Ogle v. Barnes, 8 T.
R., 188, 192 ; Leame v. Bray, 3 East, 593 ; 1
Selwyn, 255.)
876
For the defendant in error, it was argued
that a bill of exceptions does not lie to a judge
of an inferior court for any misdirection as to
facts. The proper remedy is by an applica-
tion to the court for a new trial, on the ground
that the verdict was against evidence. (Gra-
ham v. Carman, 2 Caines, 168.) The judge
told the jury that if there was no want of care
or diligence on the part of the defendant, he
was not liable. That was not against law,
and he left it to the jury to decide, This is an
action on the case ; the plaintiffs charge the
defendant with so negligently, uuskillfully
and carelessly managing his boat, that she run
foul of the vessel of the plaintiffs. If a man
does a lawful act, and without any fault or
neglect on his part, an accident happens to
another, no action lies *against him. [*3O7
(Clark v. Foot, 8 Johns., 421.) The act
causing the injury must be voluntary, and
with some degree of fault, and then trespass
lies ; but if done involuntarily, and without
fault, no action lies. (4 Burr., 2092.) The
case of Collinson v. Larkin 3 Taunt., 1, is in
point. There the defendant's vessel ran foul
of the plaintiff's vessel in the night, at sea, and
the plaintiff brought an action on the case for
negligence. There was a verdict for the
plaintiff, and the court refused to grant a new
trial, though they believed there was fault on
both sides. Mansfield, Ch. J. .said that if he
had been on the jury, he should have made al-
lowances for the darkness of the night, and
attributed the injury to mere accident, and so
found for the defendant.
It is said that the defendant ought not to
have been navigating his boat in so dark a
night ; but were not the plaintiffs navigating
their vessel at the same time ?
Per Curiam. This case comes before the
court on a bill of exceptions, taken in the
Mayor's Court of the City of New York. It is
an action charging the defendant with care-
lessness and negligence in the management of a
steamboat upon the Hudson River, by means
whereof she ran foul of and greatly injured a
sloop of the plaintiffs, whilst navigating the
river. The case was submitted to the jury for
them to decide, whether the evidence would
warrant the charge of negligence or miscon-
duct on the part of the defendant, and the
jury found a verdict for the defendant.
Whether this was a verdict against evidence
or not, is a question which cannot arise upon
this bill of exceptions. If it could, there does
not appear to be anything to warrant such a
conclusion. The question raised upon the ar-
gument, by the counsel for the plaintiffs in
error, is, that whether the defendant was
chargeable with negligence or not, was a
question of law, and ought not to have been
submitted to the jury as matter of fact. This
broad position cannot certainly be maintained.
Whether there was negligence or not, cannot
be considered purely a question of law, and to
be taken from the jury, and decided by the
court. It may be considered a mixed question.
The facts are exclusively for the jury, and
when those facts are ascertained, whether they
will, in judgment of law, warrant the charge
of negligence, is matter of law. But a case of
this mixed character must always be submit-
JOHNS. REP., 14.
1817
COOLIDOE ET AL. V. NEW YoRK FlUEMES IN8. Co.
308
3O8*1 ted to *the jury, unless there is a demur-
rer to the evidence. The case now before us was
very fairly and properly submitted to the jury,
and there can be no grounds for reversing the
judgment.
Judgment affirmed.
Cited in-fl Wend.. 14 ; Hill A D.. 418 : 25 N. Y..
347; «7 N. Y.. 385; 23 Barb.. 048; :» Barb., Htt; 57
Wiirb., d47 ; 3 Rob.. 30; 40 Super.. 358; Olcott, 2BS.
COOLIDOE AND OLIVER
THE NEW YORK FIREMEN INSURANCE
COMPANY.
1. Marine Insurance — Warranty of National
Character, Imports Documents Showing Such
Character — Warranty against Loss by Ameri-
can* or British — Loss tlirough Negligence of
Captors — Insurer not Liable. 2. Evidence —
Copy by Officer without Authority to Make,
Must be Authenticated in Usual Way. »
A copy of the register of a vessel, certified to be a
true copy by the Collector, is not, on proof of the
handwriting of the Collector, evidence to show the
interest of the insured, or a compliance with the
warranty of American property, in a policy of in-
surance ; but as the Collector has only authority to
grant a copy to accompany the vessel, and not to
grant copies generally, a copy given in evidence on
the trial of a cause, must be authenticated in the
usual way, that is, by the oath of a witness who has
compaivd it with the original. A warranty that a
ship is American property, imports not merely that
she is American, but i hut she should be aecom-
IMIII. '1 with the documents requisite to dhow her
national character.
A vessel was insured and warranted free from
loss by the British or Americans, but in case of capt-
ure by either, the usual sea risks to continue, and
was captured by the British, and whilst detained by
them, is lost in consequence of the negligence of the
captors: it was held that if the loss had arisen from
• MA risk, strictly speaking, the insurer would have
been liable, but that as the immediate and proxi-
mate came of the loss was an act of the captors,
which, if done by the insured, would have exoner-
ated .the insurer, the insurer was in this case pro-
tected by the warranty.
Citations— 1 Cai., 545 : 8 Johns., 307 ; 5 East, 99, 398 ;
Act Cong., Dec. 31, 1792 ; 4 Dall., 415 ; Phill. Ev., 292 ;
2 Johns., 80.
This was an action of assumpsit on a policy
of insurance, on the ship Mark and
Abigail, on a voyage from Boston to Cadi/,
underwritten by the defendants. The cause
was tried before Mr. Justice Platt, at the New
York sittings, in December, 1816.
The policy was in the usual form of printed
policies in the City of New York, in which the
ship was valued at $8,000, at four and a half
per cent, premium, and warranted American
property. The following written memoran-
dum was subjoined : "Also warranted free
from loss by the British or Americans, but in
case of capture or detention by either of the
above-named powers, the usual peace sea
risks, including capture by the French and
Algerines, to continue as well during capture
Norm.— Marine 1 tisurance— Warranty of National
.
The warranty of natiimal character imitarls all
eriiltncr cmrntial for the vrntectiim of nuch charac-
ter. All necessary pa|M*rs and documents must ac-
company it. Barker v. Phoenix Ins. Co., 8 Johns-.
307 ; Blagge v. N. Y. Ins. Co.. 1 Cai., 549; Higgins v.
Livermore, 14 Mass., 106; Lewis v. Thatcher. 15
JOHKB. REP., 14.
as after and before ; it is agreed that this
policy shall endure until the cargo shall be
landed." On this policy the defendants un-
derwrote $6,000.
The declaration contained two counts in the
usual form ; in one the loss was averred as
follows : "Before the arrival of the said ves-
sel at Cadiz aforesaid, and in the due course
of the said voyage, the said vessel was, upon
the high seas, near Cape St. Mary's, taken and
carried as prize into the port of Gibraltar, by
the British brig, or vessel of war, called the
Basilisk, George French commander'; that the
said vessel, whilst at Gibraltar aforesaid, was
by force and violence of the *wind» [*3OO
and waves, and by stormy and tempestuous
weather, strained, brdken, damaged, wrecked
and spoiled, by means whereof she was totally
lost." The second count averred the loss to
have happened whilst the vessel was on the
voyage insured, by the perils of the sea.
Among the preliminary proofs which were
exhibited, none of which were objected to as
preliminary proofs, was a paper purporting to
be a register of the vessel, dated the 4th of
April, 1812, granted by the custom house at
the port of Boston and Charlestown, which
was accompanied by a certificate, dated May
3d, 1814, under the hands of H. A. 8. Dear-
born, Collector, and James Lovell, Naval Offi-
cer, and the seal of office, certifying that the
within was a true copy of the register of the
ship Mark and Abigail, as recorded in that
office ; that her certificate of registry, with
which she cleared out at the office for Cadiz,
on the 4th day of December, 1812, was also
a true copy of the same record, and that no
change or transfer of the property in the vessel
had been made at the office since the period of
the clearance aforesaid.
The ship Mark and Abigail sailed on a
voyage insured on the 12th of December, 1812.
with a cargo consisting of salted provisions,
bread stuff and lard, and was at the time of
her sailing tight, staunch and strong, and suf-
ficiently fitted for the voyage. On the 20th of
the month a violent gale commenced, and there
being a very heavy sea the ship labored much,
and leaked to that'degree that it was impossible
to keep her free with pumps going, the water
gaining two feet in the hold. It was consid-
ered necessary to lighten the vessel, and part
of the cargo was, therefore, thrown overboard.
The gale continued until the 30th. during all
which time the ship was occasionally lightened
by throwing over the cargo, and what was
thrown over amounted to about one third part
of the whole. After the gale had subsided tin-
ship still continued to Teak badly, and the
pumps were kept going almost continually.
She continued on her course for Cadiz until
the 24th of January, when she was captured
by the British brie Basilisk, a prize-master put
on board, all hands except the captain, super-
cargo, mate and cook, were taken out, and the
vessel was ordered to Gibraltar, where she ar-
rived on the 27th of January, 1813. The ship
was libeled in the Vice-Admiralty Court at
Gibraltar, but was restored on payment of
costs. From this sentence the captors appealed,
but about the 20th of April the supercargo
•compromised with the captors, and [*31O
she was liberated on the payment of $1,000.
877
310
SUPREME COURT, STATE OF NEW YORK.
1817
From her arrival at Gibraltar to this time, the
captain, supercargo and crew, had not been
allowed to go oil board ; when they came on
board, after her liberation, she was found to
have been very much injured while in the pos-
session of the captors and was a mere wreck.
She had been moored at the new mole in the
Bay of Gibraltar, a situation very much ex-
posed, between other vessels, which had often
run foul of her. On the 23d of April a survey
was had of the vessel by two ship masters and
one ship carpenter, who computed the cost of
repairing her at $7,458. It was stated in the
depositions of the master and supercargo that
it would have been very difficult and expen-
sive, if not impracticable, to repair her at
Gibraltar (but there was contradictory testi-
mony as to this point), and that it would have
been dangerous to proceed in her from Gib-
raltar to Cadiz. She was then taken to Al-
geziras, in the neighborhood of Gibraltar, when
the cargo was taken out, and both vessel and
cargo were sold. The purchasers of the vessel
intended her for a storeship, but she was
broken up for fuel. It appeared that it would
have been more difficult and expensive to have
made the repairs at Algeziras than at Gib-
raltar.
During the trial the plaintiffs called a witness
to prove the handwriting of Dearborn, the col-
lector of Boston, to the before-mentioned copy
of the register of the vessel, and having proved
it, offered to read it as evidence in chief, to
support the averment of interest in the plaint-
iffs, and the warranty of American properly.
This was objected toon the part of the defend-
ants, but it was admitted as evidence by the
judge. The defendants' counsel then moved
for a nonsuit on the ground that the plaintiffs
had failed to give sufficient proof of interest,
but the motion was denied.
A verdict was found by consent, for the
plaintiffs, as for a total loss, subject to a case
to be made for the opinion of the court thereon.
Mr. Colden, for the plaintiffs. The plaintiffs
are entitled to recover for a total loss. The
policy is in the usual form except that the in-
surers, " in case of capture or detention by the
British or Americans, take upon themselves
the usual peace sea risks." Then what is
meant by the usual peace sea risks ? They
3 1 l*]*are those perils which are produced by
the elements without the intervention of hu-
man force, including in this case, capture by
the French and Algerines. War sea risks are
those which result from hostile force. It will
be said, perhaps, that the damage or loss, in
this case, resulted from a war sea risk, inas-
much as the vessel was put in a situation in
which she would not have been placed, had it
not been for the capture. But this could not
be the meaning of the defendants by the clause
in the policy, as they had in view a capture,
and provided, in that event, that they were to
be answerable only for peace sea risks. When
a vessel insured by a limited policy, is led by
a peril not insured against, into a situation
in which she encounters one of the perils
against which she is insured, the underwriters
are liable. (4 Bos. & P., 181; Sco« v. Thomp-
son, 2 Johns., 89, 96; Robinson v. Mar. Ins. (Jo.
Qreenv. Kl/nslie, Peake, 212.)
Again; if the vessel on her arrival at Gibraltar
878
was irreparable from the injuries previously re-
ceived in her voyage, then the insured are en-
titled to recover on that ground, independently
of the damage she afterwards sustained at Gib-
raltar. The depositions taken in the case show
that there were no means of repairing her a
Gibraltar, and she was broken up at Algeziras.
[The counsel then went into particular exami-
nation of the evidence.] If the vessel could
not be repaired, either for want of means or
from any other cause, so as to enable her to
reach Gibraltar, there was a loss of voyage,
which is a sufficient cause of abandonment.
It will, perhaps, be objected that the war-
ranty has not been proved. It is a written
warranty of American property ; not that the
vessel is an American ship. Ownership of
property in a vessel may be proved by parol ;
and Cook, in his deposition, proved that the
vessel belonged to the plaintiffs. Exercising
acts of ownership in directing the loading of a
ship, &c., has been held prima facie, sufficient
proof of ownership in a vessel. (Amery v.
Rogers, 1 Esp. , 208 ; Robertson v. French, 4
East, 130; Peak, 547; Marsh., 709-712; 1 T.
R., 205.) In Barker v. The Phcenix Ins. Co.,
8 Johns., 307, it was held that where a vessel
sailed with a sea letter only, that was suffi-
cient evidence of her being an American with-
out producing a register ; and it was admit-
ted by the counsel i'or the defendants, in that
case, that mere ownership might be proved
by parol.
The document produced in this case was not
properly a copy of the register but a duplicate;
the original register being deposited in the cus-
tom house. Where a public officer is empow-
ered *t,o give copies, his official certifi- [*312
cate to a copy or duplicate, must be deemed
sufficient, especially in cases of this kind.
Messrs. 8. Jones, Jr., and Welly, contra. The
meaning of the warranty is, that the vessel is
American, and so documented as to support
her national character as American. To main-
tain this warranty the plaintiffs must show
that she had such documents on board as would
maintain her American' character. They pro-
duced a paper granted by the custom house,
accompanied with a certificate under the hands
of the Collector ami Naval Officer, and the seal
of office, that the paper was a copy of the reg-
ister recorded in the office. Proof of the hand-
writing of the Collector was the only evidence
offered of this paper. If the register is mat-
ter of record, it must be proved either by an
exemplification produced, or by the oath of a
person who has compared it with the original.
If the plaintiffs rely on the seal, that should
have been proved as well as the handwriting.
It is not the seal of a court but of an officer.
If the paper was an original, the proof was
not sufficient, unless the court had judicial
knowledge of the seal. If it is an exemplifica-
tion, it must be under seal, and that seal must
be proved or known to the court. Office copies
are evidence in the court to which the office
belongs, and who is intrusted to make them
out, but not in another court ; but a copy given
by an officer not intrusted for the purpose,
must be strictly and regularly proved as in
other cases. (Phillips' Ev., 29i, 292 ; 4 Dall.,
415.)
As to the question on the merits of the case,.
JOHNS. REP., 14.
COOLIDGE v. NEW YORK INS. Co.
312
we contend that the plaintiffs have not com-
plied with their warranty. The general risks
are qualified by the warranty, and the policy
is to be construed according to the special
agreement in writing. This agreement must
mean something different from tlie printed
words. The defendants contemplated a species
of sea risk encountered in time of war, but
which is not encountered in time of peace ; yet,
according to the explanation given by the
plaintiffs, there is no difference between a
peace and a war sea risk. If the risk experi-
enced during capture is not such a sea risk as
she could have encountered before or after the
capture, then it is not a peace sea risk. If.
after capture, a storm had arisen, and the vessel
had sunk, it would have been a loss for which
the defendants would have been liable precisely
as in time of peace. But they are not respon-
sible for any loss arising from'the carelessness,
3 13*1 negligence *or misconduct of the cap-
tor*. The exposed situation of the vessel and
the negligence of the captors were, in this case,
the direct causes of the loss sustained. It was
precisely against the perils arising from the
known want of care in captors, that this clause
was intended to guard Ihe defendants. If
other causes, arising out of war, are combined
with sea risks, they are not the hazards for
which the insurers intended to be answerable.
But we contend that the loss at Gibraltar
was not occasioned by a sea risk at all. taking it
in its broadest sense, without any qualifications
as to peace or war. If the vessel had gone to
Gibraltar in the ordinary course of her trade,
she would never have been placed in that ex-
posed situation. If the captors had dismantled
and cut up the vessel, that would not have
been a sea risk. The loss was not owing to
the sea merely, but to the exposed situation in
which she was placed by the captors. If a
master does not properly moor his vessel in
port, and a storm arises, by which she is in-
jured, the underwriters are not liable for the loss.
Then, was the loss owing to the leak and
other sea damages prior -to her arrival at Gib-
raltar ? The evidence in the case does not
show that ; but, on the contrary, that had it
not been for the capture, she would have pro-
ceeded to Cadiz. From Gibraltar to Cadiz,
with a fair wind, the passage is not more than
twenty-four hours. The survey makes no
mention of the leak. To regard that as the
cause of loss was, clearly, an afterthought.
Mr. Coldtn, in reply, said that in the con-
struction of the policy, two kinds of sea risks
were to l>e considered ; the one arising from
the act of man, the other from the act of God.
The latter is the peace sea risk intended.
Suppose the vessel, when going into Gibraltar,
had been tired upon by a fort and sunk ; or
suppose another vessel had, by mistake, fired
upon and sunk her ; these acts would have
been sea risks. There is no evidence that this
vessel was not placed in the same situation as
all other prize vessels ; and unless it can be
shown that she was treated differently, and
with peculiar neglect, the defendants are liable
for the sea risk.
SPENCER, ./. , delivered the opinion of the
court :
The points arising from the case, and to
JOHNS, liter., 14.
which the arguments of the counsel have been
directed, are :
*1. Upon the obligation of the as- [*314
sured to have the necessary documents on
board, showing the national character of the
vessel, and whether there is legal proof that
such documents were on board at the time of
the capture.
2. Upon the construction of the warranty,
that in case of capture or detention by the
British or Americans, the usual peace sea risk
was to continue, as well during capture M
after or before ; and
3. Upon the particular nature of the loss.
The warranty here is, that the ship was
American properly, and there can be no doubt
that such warranty imports not merely that she
should be American property, but that she
should be accompanied, during the voyage,
with all the accustomed and necessary docu-
ments evincing that character, and insuring
respect to it as such, within the laws of nations.
This point has been repeatedly and solemnly
adjudged in this court. (Bltigge v. The New
York IIM Co., 1 Caines, 545 ; and Barke.r v.
Phauix In*. Co. , 8 Johns. , 307. ) This is also t he
doctrine of the English courts. (5 East , 99, 398.)
Was this warranty complied with ? The
plaintiffs gave in evidence a copy of the regis-
ter, under the hands and seals of the Collector
and Naval Officer of the port of Boston and
Charlestown, certified by them to be a true
copy of the register of the ship Mark & Abi-
gail, as recorded in that office ; and that the
certificate of registry with which she was
cleared for Cadiz, in December, 1812, was also
a true copy of the record.
The 9th section of the Act of Congress
of the 31st December, 1792 (Vol. II, 181),
requires the Collector of the district, com-
prehending the port to which any ship or
vessel shall belong, to make and kee'pa record
or registry thereof, and to grant an abstract or
certificate of such record or registry, in the
form prescribed ; and the 10th section, after
requiring the Secretary of the Treasury to pre-
pare and transmit the forms of the certificate
of registry, attested under the seal of the
Treasury, and the hand of the register, directs
the certificates to be signed and sealed by the
Collector before they are issued, and to l»e
countersigned by the Naval Officer, when there
shall be one ; a copy of each of which shall be
transmitted to the Register, who is to cause a
record to be kept of the same.
To prove the ownership of the vessel in the
plaintiff, and to *show that shewas[*31o
documented as an American ship, it was proved,
that the signature of Mr. Dearborn to the cer-
tificate of registry, was his handwriting. This
evidence was objected to, but the objection was
overruled, and the copy was read. The record
required to be kept by the Collector of the
Registry of ships or ves.sels. is such a one, that
a copy of it. compared with the original by a
witness who can testify to its being a true copy,
would lie good evidence of the facts it sets
forth (4 Dall., 415) ; but I have strong doubt
whether the copy produced here is entitled to
be admitted in evidence upon the proof of the
handwriting of the Collector. He U authorised
to grant an abstract or certificate ; but this
accompanies the vessel, and is delivered to the
815
SUPREME COURT, STATE OF NEW YORK.
1817
owner or master, and it is authenticated under
the seal of the Treasury, and the hand of the
Register of the Treasury ; the Collector is not
authorized to grant copies generally. Then
the rule of law applies, which declares that
when an officer is not intrusted to make out a
cop}', and has no more authority than a com-
mon person, the copy must be proved in the
strict and regular mode. (Phill. L. of Ev.,
292.) The proof of Mr. Dearborn's handwrit-
ing cannot alter the case ; for if the copy was
evidence, as emanating from a person intrusted
for that purpose, it would require no other
proof ; and if he is not intrusted by law to give
copies, proof of his hand would not verify the
paper. Besides, here is no proof of the signa-
ture of the naval officer.
It would be proper, and it is certainly
expected, that the court should pronounce an
opinion on the merits of the case ; and it is
believed to be one of the first impression.
The insurers warrant the ship free from loss
by the British or Americans ; but in case of
capture or detention by either, the usual peace
sea risks are to continue. The case occurred
of a capture by the British, and the question is,
whether the loss of the vessel, or her irrepar-
able condition, arose from a usual sea risk
during the capture.
We have decided (Robinson \. Marine Im. Co. .
2 Johns., 89), that where the insurance was
against sea risks only, and a deviation from
necessity had taken place, the deviation excused
the assured, as well in such a case as where
the insurance was general. This decision was
urged as applicable to this case, but it does not
seem to me to be so. If, after the capture, the
ship had been lost by a sea risk, strictly speak -
316*] ing, undoubtedly *the underwriters
would be answerable ; but if the immediate
and proximate cause of the loss is attributable
to an act on the part of the captors, which act,
if done by the assured, would absolve the in-
surers from the loss, then I cannot but think
the insurers would not be liable. This leads
us to the evidence in the case ; and I think it
perfectly clear that the loss is attributable to the
mooring the vessel in a dangerous and exposed
situation in the Bay of Gibraltar, instead of
bringing her into the harbor. Whilst in that
situation, several vessels ran foul of her, and
she was exceedingly injured. The survey,
which has been given in evidence, calculates
the expense of repairs exclusively on injuries
received while she was thus exposed ; and I
think it cannot be doubted that had the vessel
been thus moored by the insured, and no capt-
ure had intervened, the insurers would not
have been liable, on account of the culpable
negligence of the master. To hold that the
defendants are answerable, in consequence of
an act of the captors, so highly culpable and
improvident, when the defendants' liability is
restricted to the usual peace sea risks, would,
in fact, render them responsible for a risk not
a peace risk.
It is manifest, to me that the leaking of the
vessel before the capture did not render her
innavigable ; it is not proved, nor can it be
pretended that it did.
Judgment for the defendants.
Cited in— 2 Wend., 66 : 2 Rob., 548 ; 2 Cliff, 433,
880
THOMPSON v. ASHTON.
1 . Warranty — Breach of Action must be Founded
on. 2. Evidence of usage not Admitted to
Vary General Rules of Law.
No custom or usage is admissible to show that
the sale of any particular article implies a war-
ranty of the goodness of that article.
To recover for the breach of a warranty, the ac-
tion must be expressly founded upon the war-
ranty.
was an action on the case, to which
J- the defendant pleaded not guilty. The
cause was tried before Mr. Justice Vaa Ness,
at the New York sittings, in November, 1816.
At the trial, it was stated by an agent of the
plaintiff, that in November, 1815, he went to
the store of the defendant for the purpose of
purchasing crockery ware ; that the defendant
sold the witness forty-six crates of crockery
ware, according to the printed catalogue
of certain auctioneers, in whose store the
*crockery was for sale, which cata- [*317
logue the defendant said, conformed to the
invoice. The witness did not opeu the crates,
but after they were sent to the plaintiff, sever-
al of them were discovered to be bad, consist-
ing of ware of an inferior quality. That the
witness then offered to return the whole of the
forty-six crates to the defendant, who would
not rescind the sale, and evaded showing the
witness the original invoice, but informed the
witness, at one time, that they had been
shipped by Cheeseborough, and at another
time, said that they were shipped by Ashton
& Ingham ; and when the witness replied, that
in a former conversation he had said that
Cheeseborough was the shipper, the defendant
said that Cheeseborough had shipped the
crockery to Ahston & Ingham, from whom
the defendant received it. It did not appear
that the defendant had any knowledge of the
contents of the crates. Other witnesses were
examined as to the badness of the ware.
The plaintiff then offered to prove that it
was the custom and usage of merchants in this
article, that the purchaser purchased, and the
seller sold on the invoices, without opening
the crates or examining the ware in the crates;
and that it was the uniform understanding, in
the City of New York, in such transactions,
that the exhibition of the invoices amounted
to an undertaking on the part of the seller
that the ware was good and merchantable.
This evidence was objected to by the counsel
for the defendant, and overruled by the judge.
The plaintiff then rested his cause ; where-
upon the defendant's counsel moved for a
nonsuit, which was granted.
The case was submitted to the court with-
out argument.
Per Curiam. It does not appear, from the
case, whether the action is founded upon a
warranty or fraud in the sale of the crockery.
The plea is stated to have been not guilty,
from which it would seem that fraud was
upon the ground on which the action was in-
tended to be supported. But the plaintiff has
entirely failed in making out fraud. There is
some appearance of contradiction in the ac-
count which the [defendant gave, as to the
place where or the persons from whom he
procured the goods ; but nothing which could
JOHNS. REP., 14.
1817
MrilKAY V. BOGART & l\ NKI.I. AMI.
31
be considered a- making out a fraud in the
defendant, or charging him with any knowl-
odge of the quality of the crockery sold to the
3 18*] plaintiff. The 'evidence offered of a
usage or custom, in relation to the sale of
•crockery ware was properly rejected. No cus-
tom in the sale of any particular description
of goods can be admitted to control the gen-
eral rules of law. Such a principle would be
extremely pernicious in its consequences, and
render vague and uncertain all the rules of
law on the sale of chattels. Besides, in this
•case, the evidence offered was to show a cus-
tom that a sale under the circumstances of
the present case, amounted to a warranty.
The action, therefore, should have been
founded on the warranty and not on the
fraud. But th,e evidence would not be ad-
missible under any form of action. The mo-
tion to set aside the nonsuit, must, accord-
ingly! be denied.' -,
Motion denied.
Cited ln-17 Wend., 270; 5N. Y.. 101; 41 N. Y.,
315: IB Hun, 276; 50 Bart?., 296: 1 Hall, 616; 3 E. D.
Smith, 11; 7 W. Dig., 38»; II Allen, 430; 7 Allen, 32 ;
10 Wall, 391.
MURRAY
«.
BOGERT & KNEELAND, Survivors of
MANSFIELD, Deceased.
1. Partnership — Partners Cannot Sue Each
Other at Common IMID — One can Become a
Partner only by Consent of All. 2. Contri-
bution— Judgment Debtor.
Where a party has paid a judgment recovered
against him, for an enure demand, to which a |>er-
snn not party to the suit was jointly liable with
himself, he cannot maintain an action aguinst that
!•• i -•in for contribution.
One partner cannot, without the consent of the
other partners, Introduce a third person as partner
into the concern.
No action at law lies by one partner against an-
other, where there has been no settlement of ac-
•eountft, and promise by the defendant to pay the
balance. •
'PHIS was an action of aasumpsit. The dec-
l laration contained the usual money counts,
and a count on an iiutimul compulawenl. The
<•au.se came on for .trial, before Mr. Juntice
Platt, at the New York sittings, in June, 1816.
The counsel for the plaintiff, on opening the
raiiM-, stated that this action was brought to
recover money paid by the plaintiff for the
use of the defendants, under the following
circumstances. The plaintiff, in connection
with Kane, Mumford >iud thedefeudaut, Mans-
field, in May, 1804, agreed upon an adventure
to the Island of St. Domingo, for which pur-
pose one or more vessels were to be purchased
.and loaded, each party paying one fourth of
the expense, and the return cargoes, or their
proceeds, to be divided in the like proportion.
Two vessels were accordingly purchased and
loaded, and one Forbes was appointed super-
cargo, to proceed with the vessels, and dis-
pose of their cargoes ; and the vessels sailed
about the 28th of May, 1804. On the 18th
JJ19*J *of June, Mansfield sold one half
of his Interest in the concern to the defend-
ants Bogert & Knee-land ; and the vessels hav-
JOIINS. REP., 14. N. Y. R., 5.
ing arrived in New York with their return
cargoes in the month of November, 1804, after
the supercargo's commissions had been taken
out, and delivered him in kind, the residue of
the cargo, as far as was practicable, was di-
vided between the several partners ; Mans-
field, and Bogert & Kneeland receiving one
fourth. The part of the cargoes which was
not divided, and one of the vessels, were sold,
and the proceeds distributed in the like man-
ner. The other vessel was sent back to St.
Domingo, to bring the remainder of the pro-
ceeds 01 the outward cargoes, and on her re-
turn was, with her cargo, sold, and a like di-
vision was made. The parties to the advent-
ure having become indebted to Forbes, for ad-
vances made and expenses incurred by him on
their account, on his presenting his accounts
to the plaintiff, Kane, Mumford & Mansfield,
objections being made to them, he instituted a
suit against the plaintiff, Kane, Mumford &
Mansfield, which was referred, on the appli-
cation of the plaintiff in that suit, and a bal-
ance reported in his favor, and judgment en-
tered up for the same. Mansfield had become
insolvent, and the plaintiff, Kane & Mumford,
were compelled by threats of an execution, to
pay the amount of the judgment, which was
done by each advancing, out of his own funds,
one third of the whole sum, Mansfield being
unable, and Bogert & Kneeland refusing to
pay ; and this action was brought to recover
the proportion due from Mansfield, Bogert &
Kneeland, which had been paid by the plaint-
iff. The plaintiff's counsel, a,fter making this
statement, offered to 'produce evidence in sup-
port of it ; but the defendant's counsel in-
sisted that upon the plaintiff's opening, it
appeared to be a demand growing out of a
partnership transaction, and if recoverable,
could not be enforced at law, and on that
ground moved for a nonsuit. The judge was
of that opinion, and a nonsuit was directed.
The plaintiff now moved to set aside the
nonsuit.
Messrs. S. Jonex, Jr. , and D. B. Ogden, for
the plaintiff. This was not a partnership, but
a joint adventure, in which each party was to
pay a fourth of the expense, and the return
cargoes were to be divided betweea them in
the same proportion. To constitute a partner-
ship, there must be a community of interest
as to profit and loss. Here the return cargoes
were io be divided *between the par- [*312O
ties concerned, in kind, and each might sell
his share as he pleased. The parties did, in
fact, divide the return cargo, in kind, on the
wharf where it was landed. There may be a
joint ownership in goods and chattels, as-well
as in ships, without there being a partnership.
There were expenses incurred in the joint ad-
venture, to which each person was bound to
contribute according to his interest, that is, in
fourths. Forbes, the agent of the parties,
might have brought his action against the as-
signees of Mansfield ; and if they could not re-
sist his claim, neither can B. & K. There be-
ing, in this case, a common liability of all the
parties 'jointly interested, according to their
respective interests, it is a proper case for con-
tribution.
In Merrywatherv. Nixon, 8T. R., 186, an ac-
tion was brought to recover the moiety of dam-
56 881
320
SUPREME COURT, STATE OP NEW YORK.
1817
ages recovered asrainst two defendants, for a
tort, the plaintiff having paid the whole.
Though it was held by Lord Kenyon that an
action for contribution would not lie where
the former recovery was for a tort, yet, it was
admitted that it would lie in case the judg-
ment had been on an action of aasumpsit. In
Osborne et al. v. Harper, 5 East, 225, where
one of three partners, after a dissolution of the
partnership, drew a bill in the partnership
firm, in favor of a person who did not know
of the dissolution and who brought an action
against all the partners, and the other two
partners paid the amount of the judgment, it
was held that they might maintain an action
against the other partner for the amount so
paid by them, in consequence of his improper
act. (Watson on Part., 405.) So where three
persons were assignees of a bankrupt, and two
of them paid the . solicitor's bill, it was held
that each might bring his action against the
other assignee for his proportion of the
money so paid. (Brand v. Boulcott, 3 Bos. &
P., 235.) In the case of Wetmore v. Baker
et al., 9 Johns., 307, where the parties were
jointly concerned in running stage, coaches,
the court held that the defendants were' lia-
ble in an action of atsumpsit for a balance
of their accounts which had been adjusted by
their agent ; and that it was not a case of part-
nership.
But supposing this to be a partnership, there
can be no occasion to go into a court of chan-
cery. There is no need of a discovery, nor is
there any intricacy of accounts. It is a single,
clear and uncontented debt.
321*] *Mr. Wells, contra. If the defend-
ants were not partners, there can be no ground
for this suit ; it depends on the privity of the
parties, and of their being jointly and several-
ly responsible for the debt. B. & K. were not
parties to the judgment ; and could not by
law have been compelled to pay any part .of
the debt recovered. How can an action be
maintained for a contribution to a judgment
to which the defendants B. & K. were not
parties ? It can only lie on the ground that
they were partners with the others in the
original transaction. Can one partner, by
making another person interested in his share,
thereby constitute him a partner with the
others ? B. & K. purchased of Mansfield the
one half of his interest in the vessel and cargo;
owners of vessels are not partners. This was
a sub-contract, and does not involve B & K.
in the consequences of partnership. (Coope v.
Eyre, 1 H. Bl., 37.) They became so far in-
terested in the cargo, which, on its arrival,
was divided among the owners, according to
their respective interests. If Mansfield had
sold to them his whole interest, it would not
have made them partners with Murray, Kane
& Mumford. An action for contribution pro-
ceeds on the principle of a joint and equal lia-
bility for the debt to which the defendant is
called on to contribute. Now, B. & K. were
not parties to this debt or judgment, nor could
they, in any way, have been coerced to pay it.
On no ground, then, either of partnership or
joint liability, are they responsible.
Admitting, however, that a partnership did
exist in the original transaction, the plaintiff
cannot maintain an action at law against his
8H2
co-partners. One partner cannot sue his co-
partner at law, except for a balance of account
stated between them, and an express promise
to pay it. (Casey v. Bruch, 2 Caines, 293.)
Here was no settlement of accounts between
the parties. It was a mere adjustment of the
claims of the supercargo on the concern. In
Wetmore v. Baker, 9 Johns., 307, the parties
came together and appointed a person to ad-
just their accounts, who struck the balance,
and there was an implied assumpsit to pay
the balance so ascertained.
If there was any joint concern of B. & K. ,
it was with Mansfield, and is to be settled be-
tween them.
THOMPSON, Oh. J., delivered the opinion of
the court :
The motion to set aside the nonsuit must be
denied. There is' no principle that can be as-
sumed, under the facts in the case, which will
sustain the action. It cannot be supported on
the principle *of contribution. The f*322
defendants were not parties to the judgment,
•which Forbes recovered against the plaintiff
and others ; nor could they have been made
parties. The contract upon which Forbes re-
covered that judgment was made by him, with
Murray, Kane, Mumford & Mansfield. 'But
whether the defendants could have been con-
nected with them in that suit or not, is imma-
terial as it respects the question of contribu-
tion. They were not made parties, nor did the
defendants in that suit plead in abatement,
that they ought to have been made parties.
That judgment, therefore, shows no privity or
joint responsibility between the defendants in
that judgment and the defendants in this suit ;
nor do the facts in this case make out a part-
nership. Admitting that the transaction, as
between Murray, Kane, Mumford & Mans-
field, was a partnership concern, Mansfield
could not. by selling out a portion of interest
to Bogert & Kneeland, make them partners
against the will and consent of the other par-
ties. This would be a very dangerous princi-
ple to admit into the doctrine of partnership.
Admitting, however, that the 'defendants
were, by the purchase made from Mansfield,
constituted partners in the transaction, another
insuperable difficulty arises against maintain-
ing the action at law ; it is a principle too well
settled to be shaken, that partners cannot sue
each other at common law. There is nothing
in the case showing a settlement of the part-
nership accounts and balance struck, and a
promise by the defendants to pay, so as to
maintain the action on that ground. In what-
ever point of view, therefore, the case is con-
sidered, the plaintiff was properly nonsuited,
and the present motion must be denied.
Motion denied.
Cited in— 1 Wend., 534; 8 Wend., 444; 1 Hill, 338;
25 N. Y., 629; 76 N. Y., 350; 2 Barb., 147; 6 Barb.,
541 ; 8 How. Pr., 336 ; 3 Bos., 574 ; 1 Hall, 187.
*JACKSON, ex dem. KIP, [*323
CORLEY.
Practice — Removal of Cause.s — Certiorari — Ha-
beas Corpus.
. A cause may be removed from a court of com-
JOHKS. REP., 14.
1817
IN THE MATTER OK NAN MICHEL.
323
mon pleas to this court by writ of cerHnrari, as well
as by a htittetu corptw cum rauaa, &e.; and the form-
er is the proper writ for that purpose, in actions of
••jiTtiiii-iit. and when- tin <!• (Vmlant is not in cus-
tody, or bus not filed bail, or indorsed his appear-
ance.
Citation— 1 R. L-, 140.
THIS was an action of ejectment, commenced
in the Court of Common Pleas or Mayors'
Court of the City of New York, in which com-
mon bail was filed and issue joined ; but be-
fore any trial or judgment in that court, a
writ of certiorari was sued out of this court,
directed to the court below, allowed filed and
returned in due formi
The only question submitted to the court
was, whether the action could be removed |
from the Court of Common Pleas to this court
by certiorari.
Per Curiam. There can be no doubt that a
writ of certiorari may issue, and perform the
same office, in every case, as a writ of habeas
corpus. The Statute (1 R. L., 140) puts them
on the same footing, and considers them as
• Dually efficacious in the removal of a cause
from the courts of common pleas and mayor's
courts, into this court. Indeed, a certiorari is
of more extensive use ; for a habeas corpus lies
only where the defendant has been arrested,
and is in prison, or has been let to bail; or
where he has been arrested on process, and tn-
dorsed his appearance on the writ, and where,
as in the action of ejectment, common Iwil has
been filed. In all these cases the certiorari is
equally applicable ; and it is exclusively prop-
er, when the defendant is not in custody, or
has not filed common or special bail, or has not
indorsed his appearance.
It is true that in practice, the writ of cer-
tiorari has seldom been used. This, however,
cannot take away the writ or abridge its
effect.
This cause is, therefore, well removed by the
certiorari which has been issued.
:*24*]*lN THE MATTER OP NAN MICKEL,
a Negro Girl.
Wills— Slave— Manumission of, by Will— Sale
of Same, before Deat/i of Testator Amounts to
Invocation.
The owner of a slave, by his will, dated the 15th of
January, 1813, declared as follows: "I manumit
ami tfive freedom to my nejcro woman Mott and her
daughter Nan, immediately after my decease." The
I'-M itnr, afterwards, sold Nan as a slave, to C., and
died. Held, that the sale of the slave, by the testa-
tor, was, pro inn in, a revocation of his will, and
that she was not entitled to her freedom after his
deceaM.
To render a manumission effectual, there must bo
some certificate or writing delivered by the masfc-r
to the slave, or to some third person for his benefit,
so as to consummate the act of manumission.
f pi IIS case came before the court upon the
I return to a habeas corpus, directed to Sam-
UL-I M'Clallcn, who held and claimed a negro
girl, named Xun Mk-kel, us his slave.
4Ienry Michael, ihe owner of the negro girl,
by his last will and testamejit, dated the :5th
day of January, 1813, declared an follows : " I
manumit and give freedom to my negro
.!•> INS. Rep., 14
woman Mott, and her daughter Nan, imme-
diately after my decease." The testator, how-
ever, soon after the date of his will, sold Nan
as a slave to one Cook, from whom M'Clallen
derived bis title. The testator Michael after-
wards died. The question submitted to the
consideration of the' court, by the consent of
parties, on the facts above stated, was.whether,
under these circumstances, the negro girl Nan
was entitled to her freedom.
Per Curiam. The sale made by the testator
after making his will, was, pro tanto, a revo-
cation of the will. This would certainly be
the operation as to the disposition of any other
property owned by him, and there can be no
solid reason why it should not be so with re-
spect to this wench. It ought to be observed,
that she is not claimed as a slave for life, but
only until she is twenty-five years of age. hav-
ing* been born since July, 1799. A will has no
effect or operation, until the death of the tes-
tator. No person can claim any right or in-
terest under it. It is completely under the
control and direction of the testator. Although
a manumission of a slave does not rest upon
the principles of a contract, but is an act of
benevolence, sanctioned by the Statute and
made obligatory, if in writing ; yet such writ-
ing ought to pass out of the hands and from
under the control of the master. In all the
cases we have had before us on this question,
the certificate of the master has either been de-
livered to the slave, or to some third person for
his benefit, and the act has thereby become
consummated. But in the case before us it
must be considered as only resting in inten-
tion. No act has been done that is binding on
the master. We are of opinion, therefore,
that the girl is not entitled to her freedom.
Judgment accordingly.
Cited in-19 Johns., 54 ; 1 Cow., 130 ; 5 Cow., 483.
*EX-PARTE CALVIN GOODELL. [*325
Mandamus — Peremptory — Lies against Re-
corder for 'Refusing to Record Deed.
A peremptory manrtamu*, in the first instance,
lies to a clerk of a county who refuses to record a
deed presented to him for that purpose, and which
has been duly acknowledged by the grantor, and
the proper certificate of a master in chancery of
such acknowledgment, and proof of the identity
of the grantor indorsed thereon.
MR. TALCOT moved for a peremptory
mandamus to be directed to the clerk of
Madison County, commanding him to record
a deed from John Fiske to Calvin Goodell.
He read 'an affadavit stating that the deed,
which was for certain lands in Madison
County, had been duly acknowledged, and
the grantor identified by the oath of a witness
before a master in chancory, who indorsed the
following certificate on the deed : — "State of
New York ; Onondaga County, ss. On the
llth day of April, 1817, came before me,
John Fiske, the grantor within named (identi-
fied to my satisfaction, by the oath of Michael
Underwood, to me known), and acknowledged
that he had signed, sealed and delivered the
within deed for the uses and purposes within
8M
325
SUPREME COURT, STATE OP NEW YORK.
1817
mentioned. I allow the same to be recorded.
Sanders Van Rensselaer, Master in Chancery.'
That the deed, with the certificate of the mas-
ter in chancery thereon, had been presented to
the clerk of Madison County to be recorded ;
but that he refused to record the same.
To show that a mandamus was the proper
remedy in this case, Mr. Talwt cited Damson v.
Thurston et al.,2 Hen & Mun., 132 ; and thai
the acknowledgment was sufficient, he cited
Jackson, ex dem. ReiUy et al., v. Livingston, 6
Johns., 154, 155, 157, 158.
He said that the mandamus ought to be per-
emptory, in the first instance, because, on an al-
ternative mandamus, the clerk could return
no excuse for not recording it ; and if the
grantee waited the result of an alternative
mandamus, his rights, in this deed, might be
endangered or entirely lost, by a subsequent
deed being put on record in the mean time.
Per Curiam. . The acknowledgment of the
deed, and the certificate of the master, were
.sufficient. Take your rule.
Rule granted.
Cited in-27 N. Y., 386.
326*] *CLARK ». SMITH.
Contract — Special — Unrescinded — Remedy is on.
Where a special contract is still subsisting1 un-
rescinded, the remedy of the party must be upon
the contract ; and he cannot recover under the
common counts a compensation for the work and
labor which he performed under the special agree-
ment.
Citations— 7 Johns., 172 ; 10 Johns., 36 ; 12 Johns.,
274 ; 13 Johns., 94.
IN ERROR to the Court of Common Pleas,
of the County of Cayuga. The defend-
ant in error brought an action of assumpsit, in
the court below, against the plaintiff in error,
and declared for work and labor, and on a
special agreement, by which he undertook to
take charge of the brickyard of the defend-
ant below, the plaintiff in error, and to make
a certain quantity of bricks, for which he was
to receive from the defendant below $80. The
agreement, as set forth in the declaration,
contained a variety of stipulations which it is
not necessary to repeat.
At the trial of the cause, in the January
Term, 1815, of the court below, the plaintiff's
counsel called witnesses to prove the loss of
the written contract, and in the opinion
of the court, failed to prove that fact satis-
factorily. The count on the special contract
was then abandoned, and in support of the
common counts a witness was called, who
testified that the plaintiff had worked in the
brickyard of the defendant ; but on being
asked by the counsel for the defendant if there
was not a written contract between the parties,
under which the defendant worked, he an-
swered in the affirmative. It was then insist-
ed, on the part of the defendant, that the
plaintiff ought not to be permitted to give evi-
dence of work and labor under the common
counts, when it appeared that it had been
done under a written contract, which ought
to be produced as the better evidence. The
884
court, however, determined that the plaintiff
was entitled to go into evidence of work and
labor under the common count, equally as if
no special count had been laid in the dec-
laration. The defendant excepted to the
opinion of the court, and the bill of exceptions
was removed into this court by writ of er-
ror, and submitted to the court, with refer-
ence to the authorities, without argument.
Per Curiam. The question in this case arises
upon a bill of exceptions duly taken to the
decision of the court below. The declaration
in the cause contained the common counts for
work, *laborand services, and a count [*327
upon a special agreement in relation to the same
services. On the trial, the plaintiffs below
did not produce the special agreement, but at-
tempted to show it was lost; and failing to
prove the loss of the agreement, the court
permitted him to go into evidence under the
general counts. This was not admissible ;
there was no pretense on the part of the
plaintiff that the special contract was rescind-
ed, or that the same was still subsisting and
in full force ; nor but that the work and ser-
vices performed were done under and in pur-
suance of the written contract. To "allow the
plaintiff, under such circumstances, to aban-
don the written contract, would be establish-
ing a dangerous principle, by enabling a
party,* at any time, by his own act, to put an
end to his contract when he was dissatisfied
with it. No case has ever gone this length.
Wherever the special contract is still subsist-
ing, and no act done or omitted by the one
party which will authorize the other to con-
sider the contract rescinded, the remedy must
be on the special contract ; and this principle
will be found to run through all the cases on
this subject. (7 Johns., 172 ; 10 Johns.. 36 ;
12 John's., 274; 13 Johns., 94.) The judg-
ment of the court below must, therefore be
reversed.
Judgment reversed.
Cited in— 6 Cow., 17 ; 4 Wend., 275,289; 12 Wend.,
387 ; 16 Wend., 638 ; 24 Wend., 62 ; 16 Peters 333.
*MORRIS v. BRUSH ET AL. [*328
Trespass — Costs and Damages.
In trespass under the Statute (sess. 36, ch. 56,
sec. 29), for cutting- down timber, the plaintiff is en-
titled to treble costs as well as treble damages.
MR. COLLIER, in behalf of the plaintiff,
moved for treble damages and for treble
costs in this case, it being an action of tres-
pass for cutting down timber, &c., brought
under the 29th section of the Act for the
Amendment of the Law (1 N. R. L., 525, sess.
36, ch. 56), in which the jury had found a
verdict for the plaintiff, and assessed the
damages.
The question was, whether the plaintiff was
entitled to treble costs.
Per Curiam. The plaintiff is entitled to
treble costs, as well as treble damages. , t
Motion granted.
Cited in-5 Wend., 81.
JOHNS. REP., 14.
1817
READ ET AL. v. PATTERSON.
READ ET AL., Executors, &c.,
PATTERSON.
Practice — Oyer—Timt to Plead.
A defendant has the same time to plead after
oyer riven, as be had when he demanded it. As if
five days only of the time for pleading remained
enexpired when oyer was demanded, the defend-
ant must plead in five days after oyer is given.
MR. SAMPSON, for the defendant, moved
to set aside the default, and all subse-
quent proceedings in this cause. He read an
affidavit, stating that the declaration was
served on the defendant on the 15th of Febru-
ary last ; and on the first or second day of
March, the defendant delivered to the plaint-
iffs a demand of oyer of the letters testa-
mentary, &c. On the 26th of May following,
the attorneys of the plaintiffs delivered to the
defendant a copy or oyer of the letters testa-
mentary ; and ou the 18th of June the defend-
ants tendered to the plaintiff's attorneys a plea
of the general issue, which they refused to re-
329*] ceive, saying they bad, *some days
before, entered a default against the defend-
ant for want of a plea.
Mr. Henry, contra, objected that the default
was regular ; that the defendant had the same
time to plead, after oyer given, as he bad at
the time he demanded it. (Tidd's Pr., 425,
531 ; 1 Sir.. 7*5; Webber v. Austin, 8«T. R.
356.) When the demand of oyer was made
by the defendant in this case, five days only
of the time for pleading remained unexpired ;
and the plea was not tendered until eighteen
days after oyer was given.
Per Curium. The default was regularly
entered. It can be set Aside only on payment
of. costs.
Cited in-8 Cow., 133.
FLEUROT v. DURAND.
Practice.
If the .plaintiff neglect* to deliver to the defend-
ant the particulars of his demand, pursuant to an
order for that purpose, the defendant is entitled to
move for judgment as in case of rum pros.
MR. HENRY, for the defendant, moved for
judgment as in case of non. pros., on the
ground that the plaintiff had not delivered the
particulars of his demand, pursuant to the
order made and served on him by the defend-
ant for that purpose.
Mr. Burr, contra.
Per Curiam. There appears to be no estab-
lished rule of practice in this respect. As the
particulars of the plaintiff's demand may be
deemed as part of his declaration, we think it
the proper course for the defendant to move
for judgment, as in case of non pros., for want
of the bill of particulars, as he might have
done for want of a declaration. We, there-
fore, grant the rule that the plaintiff furnish
to the defendant the particulars of his demand,
in twenty days, or that a judgment of non
pros, be entered.
Rule granted.
Cited In -4 Boa., 361.
JOHNS. REP.. 14.
*LATTIMORE ET AL. ». HARSEN. [*33O
Contract*— Under Seal— Rebate by Parol, Valid
— Penalty— Xew Promise— Recovery under.
A release, by parol of the parties of one part to a
contract under seal, to perform certain work, from
a further performance of their agreement, made
by one only of the parties of the other part, is
valid.
Where the plaintiffs had entered into an agree-
ment under seal, to perform certain work, under a
penalty, and were afterwards released by the de-
fendant, by imr.il, from a further performance
under the agreement, but who promised them that
if they would go on and complete the work, he
would pay them for their labor by the day, it was
held that as the plaintiffs might have released
themselves from the agreement by incurring the
penalty, there was a sufficient consideration for the
promise of the defendant, and that the plaintiffs
might recover under the substituted agreement.
'PHIS was a motion to set aside the report of
JL referees. It appeared from the affidavits,
which were read, that fhe plaintiffs entered
into an agreement under seal, dated the 14th
of November, 1815, with Jacob Harsen and
the defendant Cornelius Harsen, by which the
former, in consideration of the sum of $900.
agreed to open a cartway in Seventieth Street,
in the City of New York, the dimensions and
manner 01 which were stated in the agreement,
and bound themselves, under the penalty of
$250, to a performance on their part. Some
time after the plaintiffs entered upon the per-
formance, they became dissatisfied with their
agreement, and determined to leave off the
work, when the defendant, by parol, released
them from their covenant, and promised them
that if they would go on and complete the
work, and find materials, he would pay them
for their labor by the day. The plaintiffs had
received more than the sum stipulated to be
paid to them by the original agreement. The
action was brought for the work and labor,
and materials found by the plaintiffs, under
the subsequent arrangement, and the referees
reported the sum of $400.05 in favor of the
plaintiffs.
The case was submitted to the court with-
out argument.
Per Curiam. The only question that can
arise in the case is whether there was evidence
of a contract between the plaintiff and the
present defendant, to perform the services for
which this suit is brought. From the evi-
dence it appears that a written contract had
been entered into between the plaintiff and the
defendant, together with his father. Jacob
Harsen, for the performance of the same
work ; and that, after some part of it was
done, the plaintiffs became dissatisfied with
their contract, and determined to abandon it.
The defendant then agreed, if they would go
on and complete the work, he would pay them
by the day for such service, and the materials
found without reference to the written con-
tract.
•This is the allegation on the part [*331
of the plaintiffs, and which the evidence will
very fairly support. If the contract is made
out, there can be no reason why it should not
be considered binding on the defendant. By
the former contract, the plaintiffs subjected
themselves to a certain penalty for the non-
fulfillment, and if they chose to incur this pen-
331
SUPREME COURT, STATE OF NEW YORK.
1817
ally, they bad a right to do so, and notice of
such intention was given to the defendant,
upon which he entered into the new arrange-
ment. Here was a sufficient consideration for
this promise ; all payments made on the for-
mer contract have been allowed, and perfect
justice* appears to have been done by the
referees, and no rule or principles of law have
been infringed. The motion to set aside the
report, therefore, ought to be denied.
Motion denied.
Explained-7 Cow., 50; 21 Wend., 632.
Cited irt-20 Johns.. 464 ; 11 Wend., 30 ; 13 Wend.,
74; 29 N. Y., 218; 30 N. Y., 307; 36 N. Y., 392; 12
Barb., 377 ; 49 Barb., 258 ; 1 T. & C., 405: 2 T. & C.,
257 ; 5 Duer, 206 ; 6 Duer, 214 ; 3 Bob., 17 ; 3 Daly,
471 ; 45 Mo., 407 ; 34 N. J. L.. 128 ; 16 Peters, 335.
CALDWELL
v.
BLANCHARD AND BLANCHARD.
Practice — Removal of Cause by Habeas Corpus —
Special Bail.
Where a cause is removed to this court by habeas
corpus, from a court of common pleas, the defend-
ant must put in special bail, on the return of the
habeas corpus in this court, in the same manner as
if the suit had been originally commenced here,
though common bail only had been filed in the
court below.
MR. VAN WYCK, for the plaintiff, moved
for a rule to set aside the order made by
the Recorder of the City of New York, stay-
ing proceedings in the cause.
Mr. P. W. Radcliff, for the defendants,
moved to vacate the exception entered on the
bailpiece filed in this cause, and that the
plaintiff file security for costs, and pay the
costs of this application.
From the affidavits read, it appeared that
the suit, which was an action of trover, was
originally commenced in the Mayor's Court of
the City of New York, in which the plaintiff
did not require the defendants to put in special
bail. As the jury were about to be sworn for
the trial of the cause, in the court below, the
defendant filed a writ of habeas coi-pus, and re-
moved the cause to this court. On the return
332*] of the writ of habeas corpus here, *the
plaintiff entered a rule that the defendants ap-
pear in twenty days, or that a procedendo issue.
The defendants accordingly filed special bail,
consisting of one real and one nominal person
and the plaintiff entered an exception to the
sufficiency of the bail piece.
Mr. Radcliff said it would be of no use to
set aside the Recorder's order, as it, of course
must cease or be disposed of this term. Tha'
as special bail was not required in the cour
below, the plaintiff was entitled only to com
mon bail in this court ; that the rule of prac
tice was that if the bail in the court below be
came bail in this court, the plaintiff must take
them ; and that he is not entitled to any other
or better bail than was given in the court be
low. Tidd (1 Tidd, Pr., 342, 343) lays down
the rule to be that " when the defendant is no
in actual custody, at the return of the certio
ran or habeas corpus, he must put in bail, if
called upon, in the court above, which bail is
886
ither common or special, as in the court
)elow."
The defendants are entitled to security for
josts on account of the insolvency of the
plaintiff.
Mr. Van Wyck, contra.
THOMPSON, Oh. J. The defendants waited
until the action was called for trial, in the
:ourt below, before they removed the cause.
Delay is generally the object of defendants in
the removal of causes by Jiabeaa corpus. They
are not, therefore, entitled to favor.
On the removal of a cause from a court of
common pleas, by habeas corpus, to this court,
the plaintiff must begin de novo. The pro-
ceedings are not continued from the inferior
iourt ; it is a new suit, and the plaintiff is en-
;itled to bail in the same manner as if the suit
had been originally commenced here, and
without any reference to the proceedings in
the court below. The motion to vacate the
exception entered on the bailpiece ought,
therefore, to be denied ; the plaintiffs, how-
ever, should be allowed twenty days to perfect
bail in this court. As to the other branch of
the defendant's motion, the plaintiff must file
security *for costs, and until that is [*333
done all further proceedings must be stayed.
YATES and PL ATT, JJ., were of the same
opinion.
SPENCER, J. , said he supposed the practice
in the Court of K. B. and in this court to be
that the bail, on the habeas corpus, was to be
either common or special, as in the court be-
low ; and that if common bail was filed in the
Common Pleas, it was sufficient in this court.
It was immaterial, however, in his opinion,
how the practice was settled, provided the rule
was established ; he should, therefore, concur
in the rule as stated by the Chief Justice.
VAN NESS, J., was of the same opinion, and
concurred for the same reason.
Rule accordingly.
DELAVERGNE
v.
NOXON ET AL., Overseers of the Poor of the
Town Of POCGHKEEPSIE.
Bastards — Settlement of.
A bastard child is settled in the town where it was
born, until it acquires a settlement for itself, and
the justices of such town may make an order for
filiation and maintenance, although the legal set-
tlement of the mother be elsewhere.
The place where they are born is, prima facie, the
settlement of legitimate children, until their settle-
ment by parentage is discovered.
BY an order of two justices of the peace of
the County of Dutchess, residing in
Poughkeepsie, made the 9th of January last,
upon the complaint of the overseers of the
poor of the town of Poughkeepsie, the plaint-
iff was adjudged to be the putative father of a
certain bastard child, born of the body of
Eliza Carpenter, and was ordered to pay to
the overseers $25 for the lying-in of the said
Eliza Carpenter, and the maintenance of the
child to the time of making the order, includ-
JOHNS. REP., 14.
1817
DELAVERGNE v. NIXON ET AL.
333
ing costs, and the sum of sixty and a half cents,
weekly, as long as the child should continue
chargeable. From this order the plaintiff ap-
pealed to the General Sessions of the Peace of
iJ34*] the County of Dutchess, and at *the
trial of the appeal, the only evidence given
was that of Eliza Carpenter, who testified as
to the time of the birth of the child, and that
the plaintiff was the father ; that she lived
with her mother in the town of Poughkeepsie;
that she had resided there a year or more,
previous to the month of November last, when
the child was born, and that she herself was
born in the town of New Marlborough, in
Ulster County. Upon this evidence the court
below confirmed the order with costs. The
case was submitted to the court without argu-
ment.
Per Curitim. This case arises upon an order
made out against the appellant tor the main-
tenance of a bastard child, of whom he -is
charged to be the putative father. The bastard
child was born in the town of Poughkeepsie,
where the mother had lived for more than a
year, with her mother, neither of whom, from
anything that appears, had gained a settle-
ment in the town of Poughkeepsie. The
mother of the bastard child was born in New
Marlborough, in Ulster County.
JOHNS. Hi. i'.. 14.
It is contended, on the part of ihe appellant,
that the mother must be removed to Ulster
County, and the order be made out there ;
that the town of Poughkeepsie cannot be
chargeable with the maintenance of the bas-
tard child ; and that, of course, no order can
be made by the justices of Dutchess County.
This is a mistake. The place of settlement of
tin- bastard child is where it was born ; for the
bastard, not having any legal parents, cannot
be referred to their settlement. The place
where the child is born is, prima facie, the set-
tlement of legitimate children. It if only so,
however, until the settlement to which such
child is entitled by parentage is discovered.
But this rule does not apply to bastard chil-
dren. The settlement of such children is where
they are born, until they gain the settlement
for themselves. And, besides, by the 1st sec-
tion of the Act for the Relief of "Towns from
the Maintenance of Bastard Children (1 R.
L., 306). the justices of the town where the
bastard child is born are expressly authorized
to make an order for the relief of the town.
The order of the Sessions must, therefore, be
affirmed.
Order of Sessions affirmed.
Overruled— 17 Johns., 91.
Cited in-2 Cow., 541.
887
[END OP AUGUST TERM, 1817.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OCTOBER TERM, 1817, IN THE FORTY-SECOND YEAR OF OUR INDEPENDENCE.
JACKSON, ex detn. VAN DYKE AND CEK-
TAIN ONEIDA INDIANS,
9.
REYNOLDS.
Indians — Suit by or against, under Statute.
The Brothertown, Oneida and Stockbridge Indians
can sue and be defended only by their attorney
commissioned for that purpose, pursuant to the
Act. (Sess. 36, ch. 92, sec. 27.)
Citation-2 N. R. L., 153.
IN this, and several other causes, in which
Indians alone were the lessors, a motion
was made by the defendant to strike out the
demise of the Indian lessors in this case, and
in the other cases to set aside the proceedings
for irregularity, with costs, to be paid by the
attorney of the plaintiff.
Mr. Uady, for the defendant, contended that
by the Act Relative to the Different Tribes and
Nations of Indians within this State (sess. 36,
ch. 92, sec. 1, 2, 27 ; 2 N. R. L., 153), the In-
dians, called Stockbridge, Brothertown and
Oneida Indians, could enter into no contract
whatever, nor sue or be sued, except in the
manner prescribed by the Act, or without the
name of the Attorney-General, or of the person
commissioned as their attorney, under the 27th
section of the Act.
Mes»rs. Van Vechten and Sill, contra.
SPENCER, J., delivered the opinion of the
court :
A motion has been made in this case, and
336*] several others to strike out the *names
of the Indian lessors ; and in the cases where
they are sole lessors, to stay the proceedings
indefinitely.
The motion is founded on the principle, that
the Legislature (2 N. R. L., 153) have inhibit-
ed all persons from suing or maintaining an
action on contract against any Indian residing
on lands reserved to the Oneida Indians, un-
der the penalty of treble costs ; and that by
the 27th section of the same Act, the Governor
and Council of Appointment are required to
appoint and commission a person, learned in
the law, to be the attorney of the Brothertown,
Oneida and Stockbridge Indians, making it
his duty, from time to time, to advise and di-
rect the said Indians, in controversies among
888
themselves, and with any other person ; and
to defend all actions brought against any of
them by white persons ; and to commence and
prosecute all such actions for them, or any of
them, as he may find necessary and proper ;
and in the prosecution or defense of any such
actions, such attorney is required to observe
and pursue such advice and directions as shall
be given him, by the superintendents, or per-
son administering the government.
Another part of the same Statute renders it
a public offense, and subjects the party guilty
to a forfeiture of $250, and to be further pun-
ished by fine and imprisonment, to purchase
any lands of any Indian residing within this
State, or to make any contract with any Indian
for or concerning the sale of any lands.
In the exposition of these enactments, we
have considered the Legislature to have de-
clared those Indians incapable of contracting ;
and if they -cannot make a valid contract for
the sale of their individual lands, if they are
not amenable to the law upon any of their cop-
tracts, and if, upon these hypotheses, the gov- .
ernment has them under its protection, and
authorized the appointment of an attorney ta
prosecute and defend all actions brought by or
against any of them, it cannot be doubted that
the only way in which the intention of the
Legislature can be effectuated, is to construe
the Statute as confiding to their attorney the
exclusive right to prosecute and defend all ac-
tions by or against any of the Indians, whose
interests are committed to him.
The power of the Legislature to restrain
these Indians from suing or being def ended ,.
except exclusively by the attorney appointed
for them, is as unquestionable as is the right
to prevent them from alienating their lands,
or declaring them disqualified *from [*337
contracting. Indeed, assuming that they are
incapacitated, from their mental debasement,
to sell their individual lands or to contract, it
would seem essentially just and proper to pro-
vide lor them a person learned in the law to-
manage their suits, and who should be under
the control, and subject to the advice and
amenable to some superior for the fidelity of
his conduct.
If these Indians are left at liberty to employ
any attorney they please, that part of the Act
which gives the Executive the power of advis-
JOHNS. REP., 14.
1817
SCOVILJJE v. CANFIELD
887
ing and directing their attorney is defeated ;
inasmuch as an attorney not specially appoint-
ed for them is not bound to pursue any such ad-
vice or direction, and may disregard it without
incurring any responsibility.
It is desirable, as regards the rest of the
community, that the right should be con-
sidered exclusive, and it is equally important
to the Indians themselves ; because, if left at
liberty to resort to any attorney they please,
they may be involved in ruinous litigation ;
and they may too carelessly vex those against
whom . thev may have resentments. I would
not be understood as speaking disparagingly
of a profession, not only useful, but learned
and upright, but it would be too much to be-
lieve, however honorable, in general, it may be,
that it contains no unworthy members.
The facts are undisputed that these suits
have been brought not in the name nor with
the sanction of the attorney for the Indians ;
and that the Indian lessors are Oneida Indians.
It is true that their attorney has since sanc-
tioned these suits and given his assent to their
prosecution. This will not do ; they must be
prosecuted in his name. Considering, how-
ever, that the suits are brought, and have pro-
ceeded to issue, the court will allow them to
be prosecuted still, on condition that the at-
torney for the Indians be substituted in the
stead of the present attorney.
Rule accordingly.
338*] *SCOVILLE v. CANFIELD.
Choxe in Action — Statute against Purchase of
— Penal Law is Local — Lex Loci — Applies
only to Construction and Effect of Contract.
An Act of the Legislature of the State of Connect-
icut prohibits, and renders penal, the purchase of
any chow in action by an attorney or counselor at
law, sheriff, deputy-sheriff or constable, except in
certain cases; and provides that in any action the
plaint it!' shall be nonsuited, if it were founded upon
a chose in action purchased contrary to the intent
of the star lit'-. In a suit brought in this State on a
judgment rendered in Connecticut, a plea that the
judgment had been purchased by A. B.. a constable
of the town of Sharon in the State of Connecticut,
contrary to the provislons-of the Act, and was pros-
ecuted in the name of the plaintiff, but for the ben-
efit of A. B.t is not a bar: because, admitting that
full effect is to be (riven here to that Statute, still it
does not extinguish or invalidate the debt assigned,
and the plaintiff, on being nonsuited, is not pre-
vented, after disaffirming the sale,. from bringing a
new suit ; but, as the Statute, without affecting the
validity of the debt, operates only on the remedy,
and makes the assignment penal, the doctrine of
the lex loci does not apply.
Justice is to be administered in our courts accord-
ing Ui our own Inws and forms of proceeding, al-
though the action be founded on a contract made in
another state or country : the lex b>cl applying only
to the construction mid effect of the contract.
A penal law is strictly local, and cannot have any
o|x-rntlon beyond the jurisdiction of the country
where it was enacted.
Citations-1 Johns. Cas., 139; 3 Johns.. 263; 1 H.
HI .. 1% ; ( •• > w i > .. 343.
THIS was an action of atxnmptit. The dec-
laration contained a count on a judgment
for $488.32, recovered by the plaintiff against
the defendant, in the Superior Court of the
JOHNS. RKP., 14.
State of Connecticut, holden at Litchfleld, in
February, ISIS* It also contained a count on
an in."/' in n! computassent, and the common
money counts.
The defendant pleaded : 1. The general is-
sue ; and, 2. A special plea to the count on the
judgment, stating, that by the first section of
an Act of the Legislature of the State of Con-
necticut, passed in*1809, entitled "An Act to
Prevent Unlawful Maintenance," it is enacted
as follows : " that no attorney or counselor at
law, sheriff, deputy-sheriff or constable, shall,
directly, or indirectly, buy, or be i* any way
or manner interested in buying any nond, bill,
Kromissory writing, book debt or other chose
i action, unless in payment for estate, either
real or personal, or for services rendered, or
] for a debt or debts antecedently contracted.
| without iutent to evade or violate this Act, on
pain of forfeiting a sum equal to the amount
of the bond, bill, promissory writing, book
debt or other chose in action so unlawful!}'
bought, to be recovered, in any proper action,
by any person who may sue for the same be-
fore any proper court, or by complaint or in-
formation of any informing officer: provided,
that this Act shall not be construed to prohibit
the buying of any bill of exchange, draft or
other chose in action purchased for the pur-
pose of remittance, and not to evade this Act."
That by the 2d section of the said Act it is
further enacted as follows : " That it shall be
lawful for any defendant, in any suit brought
on any bond, "bill, promissory writing or other
chose in action, to file his motion before any
City court, assistant, or justice of the peace, at
the time of his appearance ; and if before any
court of common pleas, on the second dav of
the session thereof, alleging that *he [*3IJJ>
verily believes that the bond, bill, promissory
writing, book debt or other chose in action,
hath been bought contrary to the provisions of
this Act ; and praying the court, assistant or
justice to inquire into the truth thereof, by
common law proof, or by the oath of the
plaintiff, if a resident within this State, or by
the oath of the attorney in such suit, if a resi-
dent without this State, which the court, assist-
ant or justice is hereby authorized to do ; and
if the plaintiff or attorney, in the cases afore-
said, shall refuse to disclose', on oath, regard-
ing the facts alleged in such motion, or if on
such disclosure it shall appear that such bond,
bill, promissory writing, book debt or other
chose in action hath been bought in violation
of this Act, the plaintiff shall be nonsuited."
The plea further stated that at the time the
judgment was rendered against the defendant,
he was inhabitant of the State of Connecticut,
and that the plaintiff then was, and ever since
had IMTH. an inhabitant of that State : that on
the 1st of April, 1816, before the commence-
ment of this suit, at Sharon, in the said State,
one Amos Beecher, an inhabitant of Sharon,
bought the judgment of the plaintiff, and all
hw interest therein ; that this suit is prosecuted
by Beecher in the name of the plaintiff, but
for his own use ; that Beecher was, at the time
of purchasing the judgment, and still is, a
constable in and for the town of Sharon, in
the State of Connecticut, duly and legally ap-
pointed, and that the judgment was bought by
Beecher while he was constable as aforesaid.
339
BRILL v. LORD.
contrary to the intent and meaning of the said
Act, and not in payment for estate either real
or personal, &., but to prosecute a suit thereon
against the defendant, in the name of the
plaintiff, for his own use and benefit.
To this plea there was a general demurrer
and joinder.
Mr. Swift, in support of the demurrer.
Mr. P. Euggles, contra. *He cited 3 Johns.,
263; 1 Johns. Gas., 411; 12 Johns., 343; 2
Caines' Cas. in Er., 322.
SPENCXR, J., delivered the opinion of the
court (afrer stating the pleadings):
The plea cannot be sustained. Were we to
give full effect to the Statute, and consider it
as attaching on the debt assigned, we could
not say that the assignment extinguished or
•34O*J even invalidated *the original judg-
ment. The Act pleaded contains nothing
which in any way impairs the force and effect
of the debt or chose in action assigned ; the
penalty inflicted operates merely on the person
offending against the Act, by buying ; it could
not be the intention of the Legislature to an-
nihilate the debt assigned. This is rendered
very manifest, when it is noticed that the ef-
fect of its being proved or admitted that the
buying the chose in action was in contraven-
tion of the Act, is that the plaintiff shall be
nonsuited ; this not being a bar to another suit,
the parties, even in Connecticut, might dis-
affirm the contract of sale, and then a new suit
might be maintained for the debt before as-
signed.
But there is a greater difficulty still ; al-
though we notice the lex loci, in construing and
giving effect to the contract between the par-
ties, we must administer justice to them, ac-
cording to our laws, and the forms prescribed
by our Legislature, or the usages of pur courts
of justice. This principle was distinctly rec-
ognized and adopted in the case of Lodge v.
Phelps, 1 Johns. Cas., 139, and in Ruggles v.
Keeler, 3 Johns., 263. That part of the Statute
of Connecticut set forth in the plea, which,
under certain circumstances, authorizes their
courts to nonsuit the plaintiff, if it shall ap-
pear that the chose in action has been bpught
contrary to its provisions, was not addressed
to the courts of other states ; and had it been
so, it would have been nugatory and una-
vailing.
There is another decisive answer, as regards
the Act pleaded. The plea admits the validity
of the judgment declared on, and we are called
on by the defendant not to apply the lex loci
in the construction of the contract ; but we
are required to give effect to a law which in-
flicts a penalty for acquiring a right to a chose
in action. The defendant cannot take advan-
tage of nor expect this court to enforce the
criminal laws of another state. The penal acts
of one state can have no operation in another
state. Penal laws are strictly local, and affect
nothing more than they can reach. (1 H. Bl.,
135; Foliotv. Ogden, Cowp., 343.)
Judgment for the plaintiff.
Cited in-17 Johns., 9 ; 2 Hill, 169 ; 1 N. Y., 546 ; 12
Barb., 634 : 12 Abb. Pr., 246 : 2 Abb., N. S., 64 ; 2
Park., 603; 1 Rob., 386; 1 Daly, 185; 1 Tuck., 373; 37
Wis., 323; 31 Wis., 617 ; 7 Bank Reg., 419.
*BRILL v. LORD.
1817
[*341
Practice in Juntice Court — Adjournment to Pro-
cure Testimony — Discretion of Justice.
A justice has some discretion in granting an ad-
journment on the application of a defendant, in
order to enable him to procure testimony ; and if
the plaint ill' will admit the matters expected to be
proved by the absent witness, the adjournment may
be refused.
After such admissions have been offered by the
plaintiff and accepted by the defendant, the latter
is precluded from asking an adjournment to enable
him to procure the testimony of the same witness.
Citatipn-lN. R. L.. 389.
ERROR, 'on certiorarito a justice's court.
r
The defendant in error, who was plaintiff in
the court below, brought an action against the
plaintiff in error, and declared for a reward
offered for a horse stolen from the defendant
below, and for services rendered, and money
expended in obtaining the horse. After issue
joined, the cause was adjourned, by consent,
to another day, and at that day, after the par-
ties had appeared, and the jury were called,
though not sworn, the defendant below, by
his agent or attorney, requested an adjourn-
ment again, on account of the absence of a
material witness, and offered to make oath
and give security, according to the Act. Upon
this the plaintiff proposed to admit what was
expected to be proved by the absent witness,
which being acceded to, the admission was
reduced to writing in the justice's book. The
agent afterwards required some other admis-
sion, but the justice, thinking it was unreason-
able, and that the object was delay, refused an
adjournment ; the cause proceeded to trial, and
a verdict was .found for the plaintiff below,
the defendant in error.
Per Curiam. The evidence before the jury
would not warrant the conclusion of any im-
position having been practiced upon the de-
fendant, in procuring the advertisement offer-
ing the reward ; but. independently of this,
the proof showed services performed sufficient
to support the judgment, and the only ques-
tion in the case is, whether the justice erred in
not granting a second adjournment. We think
that he did not. The object of the adjourn-
ment, as avowed, was to procure the testimony
of a certain witness ; and the plaintiff offered
to admit, and did admit, what it was alleged
the witness would prove. This was, at first,
accepted by the defendant, but, afterwards,
other claims were set up, which convinced the
justice that delay was the object. The justice
must have the right of exercising some discre-
tion on this subject. The Act (1 N. R. L.,
389) requires him to postpone the trial for such
reasonable time as will enable the defendant to
procure testimony or witnesses. If the plaint-
iff will admit the" testimony, no time can be
wanted for that purpose ; besides, *in [*342
this case, the defendant had agreed to go to
trial upon such admissions, and he ought not
afterwards to be permitted to violate such
agreement. The claim to an adjournment
must be deemed to have been waived : the
judgment must be affirmed.
Judgment affirmed.
Cited in-7 Cow., 388 : 3 Hill, 328 ; 38 How. Pr., 453 ;
3 Abb., N. S., 296 ; 7 Abb., N. 8., 384 ; 7 Rob., 27.
JOHNS. REP., 14.
1817
BUTLER v. KELSET.
342
BUTLER P. KELSEY.
Writ of Inquiry— Cottt.
A defendant who attends with his witnesses bo-
fore a sheriff, on notice of executinjr a writ of in-
quiry, is entitled to his costs, if the plaintiff does
not appear, or the writ is not executed.
THIS was an action of slander, in which
there wan a default entered for want of
a plea; and the plaintiff gave notice of exe-
cuting a writ of inquiry of damages before the
sheriff; and the defendant attended at the
time and place appointed, pursuant to the no-
tice, with his witnesses. After waiting a con-
siderable time, the plaintiff did not appear or
proceed in the inquiry, and the sheriff told the
defendant that the writ would not be ex-
ecuted. •
Mr. Bloom now moved that the plaintiff pay
to the defendant his costs of attending be/ore
the sheriff, pursuant to the notice, and the
costs of this application.
Mr. P. Rugglet, contra.
Per Curiam. Rule granted.
Cited in-3 How. Pr., 211.
TALLMADGE t. STOCKHOLM, ET AL.
Practice— Default— Cost*.
A default for want of a plea will always be set
aside, on payment of costs, if there is an affidavit
of merits, and no trial has been lost.
THIS was an action for a libel. After the
declaration and rule to plead had been
served, the defendants obtained an order for
enlarging the time of pleading to the 20th of
September last; and no plea having been put
1*4:3*] within the time limited by *the order,
the plaintiff entered the default of the defend-
ants, for want of a plea.
Mr. Bloom, for the defendants, now moved
to set aside the default, and to enlarge the
time for pleading. He read an affidavit stat-
ing the reason why no plea had yet been put
in; that the venue was laid in the County of
Dutches*, and no trial was lost, as the next
Circuit in that county could not be held before
April next.
Mr. Steffi, contra.
AT Curiam. We have, from time to time,
gradually relaxed the practice as to setting
aside a default for want of a plea; we have
now come to the general rule that a default for
want of a plea, though regularly entered, will
be set aside, in every case, on the payment of
costs, where there is an affidavit of merits, and
no trial has been lost. The payment of costs
is a sufficient penalty on the defendant for neg-
lecting to plead. We grant the motion, there-
fore, on payment of costs.
Rule granted.
Cited in-2 Hun, 282: 48 How. Pr., 140: 0 Abb. Pr.,
102; 4 T. & C..SB2; 2 Hilt., 471.
JOHNS. REP., 14.
THE DUTCHESS COTTON MANUFAC-
TORY
r.
DAVIS.
Practice — Recorder — Authority of.
The Recorder of the City of New York, Ac., as
well as a judgt- of thfe court, may grant an order in
U-nn time, as well as in vacation, for enlarging the
time to declare or to plead.
MR. BLOOM, for the defendant, moved to
set aside the default entered in this cause,
for want of a plea.
The defendant was served with a notice of
the rule to plead in this cause, which expired
the 15th of August last; on the 13th of August,
he obtained an order of the Recorder of the
City of New York, enlarging the time to plead
to the 10th of September, which was duly
served on the plaintiffs' attorney on the 16th
of August. The plaintiffs' attorney, suppos-
ing the Recorder had no authority to grant
such order in term time, and that it was,
therefore, of no effect, entered the default of
the defendant, for want of a plea, on the 18th
of August.
*It appeared that on a demurrer in [*344
this cause, the court gave judgment, on the
15th of August, for the plaintiffs, with leave
to the defendant to plead irwtanter, and take
short notice of trial for the next Circuit in
Dutches* County; and that a Circuit had been
appointed to be held in that county on the 25th
of August. On the 16th of August, the plaint-
iffs' attorney served a copy of the rule for
judgment on the demurrer, on the* defendant's
attorney, and informed him that npt consider-
ing the order of the Recorder enlarging the
time to plead as correct, he should not observe
it, but though the time for pleading had ex-
pired, he would accept a plea if delivered in
four days, and the defendant would take
short notice of trial for the Circuit on the 25th
of August. Not receiving any answer to his
proposal, the plaintiffs' attorney entered the
default of the defendant, for want of a plea,
on the 18th of August. On the 10th of Sep
tember, the defendant's attorney tendered the
plea of the general issue, with notice of set-
off, to the plaintiffs' attorney, which he re-
fused to accept. There was an affidavit of
merits on the part of the defendant.
Jfr. Rugglet, for the plaintiffs.
Per Curiam. The words of the VHIth Rule
of April Term, 1796, seem to import, that an
order for time to declare or to plead cannot be
granted by a judge in term, but that applica-
tion must be made to the court. The practice,
however, is otherwise, and the judges have
been so long in the habit of granting these
orders in term time, as well as in vacation, at
their chambers, that we must adopt it as the set-
tled conduction of the rule. The practice, no
doubt, has grown up from a sense of its con-
venience, and we see no good reason to alter
it. The Recorder of New York, being, by
statute, ex offtcio, a commissioner, vested with
i In- same power as a judge of this court, in
regard to all acts which may be done at his
chambers or out of court, his order to enlarge
the time for pleading, in this case, must be
Ml
345
SUPREME COURT, STATE OF NEW YORK.
1817
deemed equally valid. The motion to set
aside the default is, therefore, granted, but
without costs on either side.
Rule granted.
345*] *SHULTYS v. OWENS.
Pleading and Practice — Similiter — Notice of
Trinl.
Where an issue to the country is tendered, and a
similiter added by the plaintiff, he may notice the
cause for trial immediately, without waiting twenty
days.
A party has no right to strike out a similiter,
merely for delay or to avoid a trial. It must be
done bonafide, for the purpose of demurring.
MR. MARCY, for the defendant, moved to
set aside the inquest taken in this cause
for irregularity, on an affidavit of merits. He
read an affidavit, also, stating that the replica-
tion in the cause, tendering an issue to the
country, was served on the defendant's attor-
ney on* the 13th of August last, and a notice
of trial for the Montgomery Circuit, to be held
on the first day of September, was served at
the same time. The defendant not appearing,
an inquest was taken by default on the first
day of the Circuit.
It appeared that a similiter was added to the
replication when it was served, and that the
cause was noticed for trial as an inquest.
Mr. Johnson, contra.
Per Curiam. We decided,' at the last term,
that the plaintiff, after an issue is tendered to
the country, and a joinder, is not obliged to wait
twenty days, before giving notice of trial, to see
whether the defendant will demur or not; but
he may immediately notice the cause for trial,
at the peril, however, of the defendant's putting
in a demurrer, bona fide, within the twenty
days. The practice of striking out the simili-
ter, merely for delay or to avoid a Circuit, is a
fraud on the IXth Rule of April Term, 1796.
The intention of that rule was merely to give
the party an opportunity of demurring to the
plea, for which purpose only he may, bonafide,
strike out the similiter. The plaintiff was .regu-
lar; but as there is an affidavit of merits, we
grant the rule to set aside the default, on pay-
ment of all the costs.
Rule granted.
Cited in— 18 Wend., 657; 22 Wend., 625; 5 How. Pr.,
305; 8 How. Pr., 252.
346*]
*PECK
v.
HOZIER AND MULOCK.
Discharge from Arrest for Debt — Does not Pre-
clude Arrest for Same Cause in Another
State.
A person who had been arrested in another state,
and discharged from punishment, under the Act of
the Legislature of that state, may be arrested and
held to bail here, for the same cause of action, at the
suit of the same plaintiff.
Citation— 1 Johns., 198.
NOTE.— Once in Jeopardy— What constitutes. See
People v. Barrett, 2 Cai., 304, note.
81)2
THE defendants, at Barbadoes, drew two
bills of exchange on England, which were
indorsed by the plaintiff, and returned pro-
tested for non-payment, to Sherman, Porter &
Co., of New Haven; Mulock being at Boston,
the holders, at the request of the plaintiff,
brought a suit against Mulock. as drawer, in
which he was arrested and imprisoned. After
judgment was recovered against him, execution
issued, and he 'was discharged, in March last,
from the execution, pursuant to an Act of the
Legislature of Massachusetts for the Relief of
Insolvent Debtors. That suit, though in the
names of Sherman, Porter & Co., was for the
sole benefit and at the sole expense of the
plaintiff, who was liable to them as indorser,and
had engaged to indemnify them for bringing the
suit. It appeared from the plaintiff's affidavit
that h§ had since paid the amount of the bill.
The defendant, on his arrival in New York in
September last, was arrested and imprisoned,
at the suit of the plaintiff, for the same bills.
On application to the Recorder, His Honor
ordered the defendant to be discharged, on
filing common bail, on the ground, stated in
the order, that the defendant had been before
arrested and imprisoned for the same cause of
action in the State of Massachusetts, in the
name of Sherman, Porter & Co.. but at the
request and for the sole benefit of the plaint-
iff.
Mr. Slosson, for the plaintiff, now moved for
a rule to vacate and set aside the order made
by the Recorder. He cited Maule v. Murray,
7 T. R., 407; Smith v. Spinolla, 2 Johns., 198;
WJiitev. Canfield, 1 Johns., 117; James v. Allen,
1 Dall., 188; Imlay v. Ettesfen, 2 East, 453;
Nash v. Tupper, 1 Caines, 402 ; Ruggles v. Keeler,
3 Johns., 263; Sicard v. Whale, 11 Johns., 194.
Mr. T. A. Emmet, contra, contended that
this was to be taken as case between the same
parties, and for the same cause of action for
which the defendant had been arrested and
imprisoned in Massachusetts. The maxim
was, Nemo debet bis vexari pi'o eadem causa, and
the defendant, having been once arrested,
ought not again to be held to bail for [*347
the same cause. (1 Tidd. Pr., 184, 185 ; 1 Sel
Ion, 42.) He cited the cases of Miller v. Hall
1 Dall., 229, and Thompson v. Young, 1 Dall.
291, decided in the Supreme Court of Pennsyl-
vania, as in point. In Bale#v. Barry, 2 Wils.,
381, it is said that if the second suit was brought
with an intent to oppress and harass the de-
fendant, the court would certainly discharge
him on common bail. Now, it appears from
the affidavit of Strong, that the plaintiff de-
clared that whether Mulock had property or
not he would pursue him as long as the law
would permit ; and if for no other reason, in
order to punish him.
Per Curiam. The discharge of the defend-
ant in Massachusetts was local, and of his per-
son only ; the debt was not discharged. In
Sicard v. Whale, which was a similar case, we
refused to order an exoneretur on the bailpiece.
The plaintiff is entitled to the remedy which
our laws afford, and the lex loci contractus does
not apply in such case. (Smith v. Spinotta, 12
Johns., 198.) The maxim that no man shall
be twice arrested for the same cause is not uni-
versally true, for where the plaintiff is non
JOHNS. REP., 14.
1817
THE PEOPLE v. FARRINGTON.
347
proesed for want of declaring, or discontinues
his suit on payment of costs, he may arrest the
defendant de now . besides the rule is applica-
ble only to arrests within the same jurisdiction.
We do" not, in this respect, take notice of an
arrest abroad, .or in another state. The ex-
pressions used by the plaintiff in regard to the
defendant were improper, but we do not think
that there is evidence of that oppression and
vexation which should require the interposi-
tion of the court.
Cited In-S Cow.. 832 : 16 Wend.. 442 : 2 Paige. 818 ;
«3N. Y., 305; 5 Hun. 392; 10 How. Pr., 449 ; & How.
Pr., 402: 50 How. Pr.. 37; 4 DIUT, 844: 4 Rob., Til;
1 Daly. 404 ; 2 Mason, 161.
Damage*.
The clerk, on an aseeeement of damages may take
proof of tin; loss of the original paper, on which
the action IB brought.
ON a question referred to the court by the
clerk relative to the assessment of dam-
ages, whether he was authorized to take proof
of the loss of the original paper, and assess the
damages thereon, in like manner as on an ex-
ecution of a writ of inquiry of damages before
a sheriff : THE COURT said the clerk had pow-
er to take such evidence as to a lost paper, and
assess the damages accordingly.
:*48*1 *THE PEOPLE
FARRINGTON.
forgery— Of Order.
Forging an order in these words. "Pay to John
Low, or bearer, S1.500. in N. Myere' bills, or yours,"
is not within the Act to prevent forgery, it not be-
ing an order "for the payment of money or the de-
livery of goods."
THE prisoner was tried at the Court of Oyer
and Terminer, in Dutchess County, in
September last, on an indictment for forging
the following order : "Poughkeepsie, June,
1817 ; To the cashier of Levi M'Kean's ex-
change office, pay to John Low, or bearer, fif-
teen hundred dollars, in N. Myers' bills or
yours. David B. Lint." There was a verdict
of guilty ; and the counsel for the prisoner
having moved in arrest df judgment, on the
ground that the check, or order, set forth in
the indictment, was neither an order for the
payment of money, nor for the delivery of
goods, within the Act to Prevent Forging and
Counterfeiting (36th sess., ch. 44 ; 1 N. R. L.,
405), the prisoner was now brought up, by ha-
beat corpus, for the judgment of the court.
Mr. Bloom, district attorney. He cited Peo-
ple v. HMrook. 13 Johns., 90.
Mr. J. Tatttnadge for the prisoner.
Per Curiain. The language of this order is
too indefinite ; whether Myers* bills or M'-
K can's bills are money or goods, is wholly un-
certain. We are of opinion that it is not an
order for the payment of money nor for the
JOHNS. REP., 14.
delivery of goods. The prisoner must, there-
fore, be discharged.
Pritoner discharged.
MILLER t. MERRILL.
Pleading— Libel and Slander.
A declaration contained a count for a libel, and
counts for slander ; the defendant pleaded to the
whole declaration, that the supposed grievances al-
leged, &c.f or any of them, did not accrue within
two years; the plaintiff replied, setting forth the
rime of commencing the action, and averring that
the causes of action did accrue within two y«-ars,&c.,
and the defendant rejoined, taking- issue on the fact:
and the plaintiff demurred to the rejoinder; the
plea was held bad, as respected the count for a libel;
and being bad in part, it was bad in the whole.
Citations— Com. Dig. PI. E. 3»: 1 Saund.. 337. n. 1:
3 T. R.. 376 ; 1 Chit. PL. 523.
THE declaration in this cause contained ten
counts ; the first count was for a libel
published the »th of April, 1816. The other
counts were for slander ; and the various words
were charged to have been spoken at the same
time.
The defendant pleaded to the whole declar-
ation, that he was not guilty of the said sup-
posed grievances in the said declaration men-
tioned, *or any or either of them at [*34J>
any time within two years next before the ex-
hibiting the bill of the plaintiff, «fec. ; and to
the first count, that the matter charged as li-
belous was true ; and to the last count, also,
be pleaded the truth of the words alleged to
have been spoken. &c.
The plaintiff replied to the first plea, sjetting
out the time of commencing his action, and
averring that the several causes of action did
accrue within two years, &c. : and to the sec-
ond and third pleas, that the defendant, of his
wrong, and without the cause, in his plea, &c.,
did commit the grievances alleged, &c., and
tendered issue to the country.
To the replication to the first plea, the de-
fendant rejoined that the cause of action did
not accrue within two years, <fec. , taking issue
thereon. To this rejoinder the plaintiff de-
murred, and the defendant joined in demurrer;
which was submitted loathe court without ar-
gument
Per Ouriam. The only question is as to the
sufficiency of the defendant's first plea. It is
one entire plea to the whole declaration. As
it respects the count for a libel, the pleapf non
accredit infra duo» annos is bad, for the Stat-
ute of Limitations for an action for a libel is
six years. As an answer to other counts for
slander, the plea is good. But the rule is, that
if an entire plea is bad in part, it is bad for the
whole. (Com. Dig. Plead., E, 86 ; 1 Saund.,
337. n. 1 ; 3 T. R., 376 ; 1 Chilly's PI.. 528.)
The plainliiT, iherefore, musl have judgment.
Judgment for the plaintiff.
CAMPBELL c. BUTLER.
Negotiable Paper — Infarner in Blank — Payee
May Fill up icith Ktpretu Guaranty.
NOTB.— Ifegntialilt napcr—Lial>aity of indoner.
Herrick v. Carman, 12 Johns., 15B, note.
349
SUPREME COURT, STATE OP NEW YORK.
1817
Where A agrees to become security for B on the
purchase of goods from C, and B makes a note to C
for the amount, payable to him or order, on which
A indorses his name in blank, C may fill up the
blank, with an express guaranty or undertaking,
for value received, so as to make the mdorser liable
as on an original promise to pay the money.
Citations— 13 Johns., 175 ; 12 Johns., 159.
IN ERROR to the Court of Common Pleas
or Mayor's Court of the City of New
York, Butler brought an action of assumpsit
against Campbell in the court below. One
James Low was in treaty with Butler (the
35O*] plaintiff below) for the purchase of *a
horse and wagon, which Butler agreed to sell
to Low for $150, provided he could give se-
curity for the payment of the money ; and
Low offered as security to give John Harvey
and William Campbell (the defendant below) as
indorsers of two notes to be drawn by Low, one
for $100 and the other for $50, which Butler
agreed to accept ; and the notes were accord-
ingly drawn and indorsed by Harvey and af-
terwards by Campbell who was not then pres-
ent. The first note was paid, and the action
was brought on the second note for $50.. Har-
vey, who was a witness, testified that he and
Campbell indorsed the notes, to give Low
credit with Butler, upon the purchase of the
horse and wagon, and to secure the payment
of the $150 to Butler.
The note was made by Low, payable on the
1st day of May (then) next, to James Butler or
order ; and when produced at the trial was
indorsed as follows : "For value received, I
undertake and promise to guaranty the pay-
ment of the money within mentioned, to the
within named James Butler. John Harvey."
"For value received, I undertake'and promise
to guaranty the payment of the money within
mentioned, to the within named James Butler.
William Campbell."
It was admitted that the note was indorsed
by Harvey and Campbell, in blank, but being
made payable to Butler (by mistake as he al-
leged) he had, afterwards, for the purpose of
bringing his suit against the indorsers, written
over their names, respectively, the guaranty
above mentioned.
The defendant moved for a nonsuit, w,hich
was refused by the court below, who were of
opinion that the plaintiff was entitled to recov-
er, and directed the jury accordingly, who
found a verdict for the plaintiff. The defend-
ant tendered a bill of exceptions, on which
the writ of error was brought.
Mr. Vanderheyden, for the plaintiff in error,
contended, 1. That Harvey, the first indorser,
was an incompetent witness ; being liable on
the note, he was interested. (3 Johns. Cas.,
185 ; 2 Johns., 145; 10 Johns., 231 ; 1 Mass.,
73; 7 Mass., 70.)
2. The contract proved varied from the one
laid in the declaration. (10 Johns., 418.) The
note was indorsed in blank. By filling up the
indorsement, with this special guaranty, the
contract is varied, and the rights of the de
fendant, as indorser, are materially altered.
The defendant is liable, as a mere indorser, on
certain conditions only, as to due notice, &c.,
351*] but by the guaranty he is made *liable
at all events : and without any recourse against
the prior indorser. The holder has no right
to convert the engagement of a mere indorser
89*
into a guaranty. In Joselyn v. Ames, 3 Mass.,
274; and see 5 Mass. ,545; 6 Mass. ,233; 5 Cranch,
142, the Supreme Court of Massachusetts
would not permit the plaintiff to recover on
such a guaranty ; though they said he might
write over an express promise to pay the mon-
ey, for value received.
[Spencer, J. We have decided this very
point in Nelson v. Dubois, 13 Johns., 175.]
Mr. Henry, contra, insisted that the sale to
Low being on the express condition that he
should find security, and the defendant and
Harvey consenting to become security, they
must be considered as sureties. If they are
not to be deemed guarantors, the contract made
with the plaintiff below will not be fulfilled.
Harvey, the first guarantor, has no interest in
the suit against Campbell.
The plaintiff had a right to fill up the blank,
so as to render the defendant below liable as a
guarantor or surety. It was so decided in this
court in Nelson v. Dubois, 13 Johns., 175, and
Herrickv. Carman, 12 Johns., 159; Collins v.
Emmet, 1 H. Bl., 313; 9 Mass., 314; Doug., 514.
It is for the plaintiff in error to show that the
blank has been filled up improperly, or with-
out sufficient authority.
Per Curiam. The1 question is, whether the
plaintiff below was authorized to write such a
contract over the names of the indorsers of the
note, respectively, and -can sustain an action
upon that contract. According to the decision
in Nelson v. Dubois, and as the law is recog-
nized in He/ rick v. Carman, we think the
plaintiff had a perfect right to recover, as on
an original undertaking to pay, by each of the
indorsers, as guarantors of the note. The de-
fendant in error is, therefore, entitled to judg-
ment.
Judgment for the defendant in error.
Overruled-3 Hill, 235 ; 19 N. Y., 229; 17 How. Pr.,
388.
Cited in— 17 Johns., 329 : 17 Wend., 220 ; 22 Wend,,
357; 1 Hill, 93; 6 Barb., 297; 10 Barb., 404; 11 Barb.,
585 ; 39 Barb., 618 ; 16 How. Pr.. 341 ; 2 Abb. Pr., 353 ;
7 Abb, Pr., 401 ; 2 Abb. N. C., 80 ; 4 E. D. Smith, 667 ;
31 Mich., 154 ; 10 Peters, 496.
*WORT v. JENKINS. [*352
Trespass — for Killing- . Animal — Exemplary
Damages.
In an action of trespass for beating- the plaintiff's
horse to death, the jury may give damages beyond
the value of the horse, or smart money, there being
proof of great and wanton cruelty on the part of
the defendant.
THIS was an action of trespass for beating
the plaintiff's mare, by reason whereof she
died. The cause was tried at the Greene Cir-
cuit, in August, 1816, before Mr. Justice Van
Ness. The mare was proved to be worth $50 or
$60. The judge charged the jury that the plaint-
iff was entitled to recover the value of the mare,
and that if they believed, as he did, that the de
fendant had whipped her to death, it was a case
in which from the wantonness and cruelty of
the defendant's conduct, the jury had a right
to give smart money. The jury found a ver-
dict for $75.
JOHNS. REP., 14.
1817
SHELDON v. SOPKR.
352
A motion was made to set aside the verdict,
for excessive damages, and for the misdirec-
tion of the judge. The case was submitted to
the court without argument.
Per Ouriam. This was an action of trespass
for maliciously and cruelly whipping the
plainl iff's mare to death. The plaintiff proved
the facts charged in the declaration, and with
circumstances of great barbarity on the part of
the plaintiff. We think the charge of the
judge was correct ; and we should have been
better satisfied with the verdict if the amount
of damages had been greater and more exem-
plary.
Motion denied.
Cited ln-8 N. Y., 4flB : 1 Abb. Pr., 300 ; 4 Duer, 250 ;
1 E. D. Smith, 203.
SHELDON t. SOPER.
Mils* — vnder Execution — Particular Designa-
tion Neeettmtry — Trover.
At a sale under an execution, the articles Bold
ii m -t be pointed nut to the bidders, and sold specitt-
itillv and separately.
when- jftxxls are sold under an execution, with-
out any particular destination at the time of sale,
the purchaser acquires no property, and cannot
maintain an action of trover for the (roods.
In an action of trover, the plaintiff must show
property in himself.
Citations— 1 Johns. Caa., «87 ; 14 Johns., 222.
N EHKOK, on certiorari to a justice's court.
' examination of bidders, that they may be
enabled to form an estimate of its value, as
i was held necessary by this court in the case of
Jackson v. Striker. 1 Johns. Cas., 287. Al-
though the sale in that case was of real prop-
erty, yet the same reason and policy apply to
sales of chattels. It was there laid down as a
general rule that nothing ought to pass at a
public sale but what was then known and
| promulgated ; that it was a general and salu-
\ tary principle — one necessary in order to guard
against fraud, and to preserve integrity and
fairness at public auctions — that no property
should pass at a sheriff's sale, but what was,
at the time, ascertained and declared. (14
Johns., 222.) The judgment must, accord-
ingly, be reversed.
Judgment reverted.
Sheriy* gale of goods. Cited In— 17 Johns., 122 :
4 Dcnio. 174 : I N. Y.. 25 : 35 N. Y., 310 : 4 Harb., 4K8 :
3 T. & C.. 212 : 4 T. & C., 823 ; 38 Super. 128 ; 2 E. D.
Smith, 490.
Damage* in cane* of tort. Cited In— 9 N. Y., 174 ; 1
E. I). Smith, 293 ; 10 Leg. Obs.. 90.
Also cited in— 12 Wend., 33.
I
This was an action of trover, brought by the
defendant in error, the plaintiff in the court
below, against the plaintiff in error, for goods
which he claimed by virtue of a purchase at a
353*] 'sheriff's sale under an execution
against one Ellis. It appeared that the deputy-
sheriff, when he made the levy under that ex-
ecution, did not see the property in question,
or know that Ellis owned it. and that at the
time of the sale he did not know that it be-
longed to Ellis ; but he put up some articles,
specifically, and all the other personal prop-
erty, generally, intending therebv to sell the
whole of the personal property of Ellis. The
defendant below set up a claim to tlie property
as a purchaser under a prior execution against
Ellis ; and evidence was given to show that
that sale was fraudulent. It appeared that
when the sale to the plaintiff below was made
Ellis was in possession of the articles claimed
in this suit. The justice gave judgment for
the plaintiff below, the defendant in error.
Per Ouriam. The evidence was pretty strong
to show tli ni the defendant below acquired no
right to the property in question, under the
sale set up by him ; "for, independently of the
question of fraud, the sale, in that case, was
general, of all the personal property of Ellis ;
but in an action of trover it is necessary for
the plaintiff to show property in himself,
which was not done in this instance. The
general sale under the execution would not
pass the property ; the sheriff did not even
know the goods or pretend to sell them specific-
ally, and to sanction such sales would open a
door to innumerable frauds. The property
should I"- pointed out to the inspection anil
JOHNS. RHP., 14.
•JACKSON, ex dem. WYNKOOP, [*354
MYERS.
Ejectment— Partition— All Parties mu*t be Ten-
ant* in Common.
In a partition under the Act (sess: 8, ch. 39, sec.
15; 1 L. N. Y., 170, Greenl. ed.), all the parties must
be tenants in common of all the land intended to be
divided : and if some of the parties had an interest
in some part of the land, but not in another part,
the partition is void.
Citations— 1 Greenl. ed. Laws, 170, sec. 15.
THIS was an action of ejectment, brought to
recover part of a lot, of thirty three acres,
situate in the town of Cat. -kill, in the' County
of Greene. The cause was tried before Mr.
Justice Van Ness, at the Greene Circuit, in
August, 1816.
The plaintiff made title to the premises in
question, by giving in evidence a deed of a
partition between Johannes and Christian
Mvers. of the one. part, and Peter and Tobias
Wyakoop and Hezekiah Wyukoop, the lessor
of the plaintiff, of the other part, bearing date
the 20th of April, 1796, by which the parties of
the first part released to the parties of the sec-
ond part the lot of thirty-three acres, in sever-
ally ; and also a deed to partition between
Hezekiah. Tobias and Peter Wyukoop, by
which the lot is released, in severalty, to the
lessor of the plaintiff. The defendant was in
possession of the premiss in question under
his father, Johannes Myers, one of the parties
to the first mentioned deed, who claimed to be
the owner. Johannes Myers, in 1808. erected
a sawmill on part of the premises; and in 1818.
having built a gristmill on land belonging to
him, he erected a raceway from the sawmill to
the gristmill, passing over the whole of the
premises in question. It appeared that there
had been formerly a sawmill on the same site
as the present mill.
The defendant gave in evidence an agree-
j ment between Rol>ert Van Rensselaer and
I others, of the first part, and Christian Myers
H9.->
354
SUPREME COURT, STATE OF NEW YORK.
1817
and Hezekiah, Tobias and Peter Wynkoop, of
the second part, dated the 21st of April, 1789.
It recited, that whereas disputes, had arisen
relative to the boundary line of the two patents,
under which the parties respectively claimed,
where it intersected a fall whereon a sawmill
stood, in order to prevent future disputes and
animosities, it was agreed that the whole of the
fall of water, at the said sawmill, together
with the mill, milldam, gangways and roads
to and from the waterfall, should belong as
well to the parties of the first part, and their
assigns, as to the parties of the second part,
and to their associates, and to their assigns, to
have and to hold the same as tenants in com-
mon. The defendant also gave in evidence
355*] the *petition, in partition, of Johannes
Myers, to the Court of Common Pleas of the
County of Greene, and the proceedings there-
on. The petition stated that the petitioner
and Hezekiah, Tobias and Peter Wynkoop,
Sophia Folkenburgh and Jacob Becker were
owners and proprietors of a certain undivided
messuage or lot of ground, and milldam, situ-
ate in the town of Catskill, in manner follow-
ing : " The petitioner of one equal undivided
fourth part thereof, and the said Hezekiah
Wynkoop, Tobias Wyukoop and Peter Wyn-
koop, each of about one undivided eighth part
of the milldam, &c. ; and the said Sophia
Folkenburgh and Jacob Becker of an equal,
undivided three eighth parts of the milldam,
Ac. ; and three fourths of the remainder be-
tween them. ' In May Term, 1801, the Court
of Common Pleas appointed commissioners to
make partition, by a rule reciting that the pe-
tition of Johannes Myers was read, setting
forth that the petitioner and others were own-
ers or proprietors of a certain undivided mes-
suage or lot of laud, and milldam, containing
about ten acres, situate in the town of Cats-
kill, &c, The commissioners, on the 4th of
May, 1802, reported that they had " made par-
tition of a part of the premises among the said
Johannes Myers, and Sophia Folkenburgh and
Jacob Becker, and on such partition allotted
to them, respectively, the following lot, piece
or parcel of land, to wit : to the said Johannes
Myers lot No 2, as laid down in the map here-
unto annexed ; and to the said Sophia Folken-
burgh and Jacob Becker lots Nos. 1, 3, and 4,
as laid down also on the map ; and as to the
remainder part of the premises, included in
Lot No. 5 on the map, together with all the
rights and privileges belonging to the milldam,
&c., on the east side of the Catskill or creek,
or the line of the messuage, or the lot of
ground aforesaid, they, the commissioners, re-
port to the said court that a division thereof
-cannot be made without great prejudice to the
owners or proprietors of the same." An order
having been made for the sale of the premises,
they were sold and conveyed to one Dederick,
who, by deed of the 19th of March, 1803, re-
leased the same to Johannes Myers.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court.
Mr. J. V. .D. Scott, for the plaintiff, con-
tended : 1. That the partition was not valid,
356*] as it did not appear that the notice Re-
quired by the Act to be given to the owner of
the intended application, had been given (Act.,
sess. 8, ch. 165, sec. 15, passed 16th March,
896
1785, 3 Johns., 459) ; nor did it appear that the
commissioners appointed by the court were
sworn, according to the direction of the Act.
2. That if the petition was valid in these re-
spects, still it did not embrace the premises in
question. At least part of the premises in
question were not embraced in the agreement
of 1789, and could not, therefore, be affected
by the partition in 1802.
3. At most, the only right the defendant had
was to use the land appurtenant to the saw-
mill ; he had ho right to the raceway for the
gristmill, or to use it for any other .purpose.
(I Burr, 143,626,630 ; 2 Str., 1004 ; Wils., 107;
6 East., 154.) A grant of a right of way gives
only a usufruct of the land. The fee or right
of soil remains in the original owner. (3
Johns., 357.)
Mr. E. Williams, contra, insisted that the
judgment in partition was conclusive, and
bound all the parties to the petition (Cook v.
Allen, 2 Mass. , 462) ; and that the return of
the commissioners, stating that they had been
duly sworn, was sufficient, and the fact need
not be proved by other evidence. (Symons v.
Kimball, 3 Mass., 299.)
Mr. Van Buren, Attorney-General, in reply,
said that this not being a proceeding accord-
ing to the course of the common law, the
judgment was not conclusive. No writ of
error lies where the proceeding is not in the
course of the common law ; though, perhaps,
it might be brought up \>y certiorari. (Salk.,
263 ; 3 Mass., 315.)
SPENCER, J., delivered the opinion of the
court :
Several objections were made, on the argu-
ment, to the partition, which took place in the
common pleas of Greene County ; the right of
the plaintiff to a portion of the premises, about
three eighth parts, being conceded, unless it
was devested by the partition.
Without going into a consideration of all the
objections to the validity of that partition, we
are of opinion that it is invalid and null, in one
respect. It appears, as well from the petition
of Johannes Myers, on whose application the
partition was made, as by the report of the
commissioners, that the lessor of the plaintiff
had no interest whatever in the ten acre lot
which was to be divided, and actually was
divided. He was a tenant in common in the
milldam tract, but not in the ten*acre [*357
tract. Thus a partition was attempted to be
effected of a tract of which none of the Wyn-
koops were owners, together with a tract in
which they had a tenancy in common, by
blending two distinct rights.
This is contrary to the letter and spirit of
the Act. The authority given by the Statute
must be, at least, substantially pursued, and
the 15th sec. (1 Greenl. ed. Laws, 170) author-
izes a partition in those cases only where the
land intended to be divided is owned in com-
mon ; and partition must be made between all
the tenants in common. The parties before
the court must be tenants in common of all the
land to be divided; and here, confessedly, they
were not.
Judgment for the plaintiff.
Cited in— 21 Hun, 151 : 45 How. Pr., 370 : 9 Abb., N.
S., 449.
JOHNS. REP., 14.
1817
FULLER v.- MATTICE.
35?
FULLER t. MATTICE.
WitM*»et— Feet.
No additional fees can be claimed by witnesses, of
the party subpujnaing them, for their <-x|x-n»e8 and
attendant*- at a trial, in a court of record, than
tbo«e specified in tin- fi-<- hill.
A witness attending a trial, in a Justice's court,
from a foreign county, is only entitled to twenty-
ti\ • cents per day, and he cannot maintain an
action for additional compensation against the par-
ty subpoenaing him.
Citations— 1 N. K. L.. 339 ; 1 K. L., 5S4.
TX ERROR, on certiorari to a justice's court.
The defendant in error brought an action
against the plaintiff in error, the defendant in
the court below, for his services as a witness
in a foreign county ; and it appeared at the
trial that the plaintiff below was subprenaed,
from the County of Schoharie, to attend a trial
at a justice's court, in the County of Greene ;
that be was absent three days, and had re-
ceived seventy-five cents. The justice gave
judgments for the plaintiff for $3.75, allowing
him $1.25 per day, for his reasonable expenses,
in going to, remaining at, aud returning from
the place of trial.
Per Curiam. The only question in this case
is, whether a witness, who is subpoenaed to at-
tend a trial, in a justice's court, is entitled to
recover from the party subpoenaing him any-
thing for his expenses beyond the twenty-five
cents, allowed by the Statute. The Act (1 N.
R. L., 339) declares, that no greater or other
costs shall be allowed or taken in actions
brought by virtue of that Act, than is therein
mentioned ; and among other things, foreign
•witnesses, attending and sworn, are allowed
twenty-five cents per day. The Act Relative
to the Fees of Witnesses attending in courts of
record, within this State, is a little more ex-
358*] plicit, and "declares that the witness
shall be entitled to receive, as a compensation
for his attendance and expenses, the daily allow-
ance specified in the fee bill. (1 R. L., 254.)
The construction which has always been given
to the last-mentioned Act is, that nothing be-
yond such allowance could be claimed ; and
we think that the same construction must be
given to the provision for witnesses in the Act
in question. The judgment must, according-
ly, be reversed.
Judgment reverted.
8HERKILL AND 8HERRILL t>. CROSBY.
Real Property — Sale for Arreart on Mortgage —
Redemption — Paroi Agreement Void Under
Statute of Fraud«.
Where land has been sold by the loan officers for
the arrears due on mortgage, the property of the
owner Is altogether devested ; and lie cannot after-
wards compel the purchaser to reconvey the land
to him, on repaying the purchase money ; and
where there has been no previous agreement be-
tween the owner and purchaser, the latter cannot
be deemed to have purchased as trustee for the for-
mer; and even if there were a parol agreement to
that effect, it would still be void by the Statute of
Frauds; and therefore, where the owner of land
sold by the loan officers paid the purchaser a sum
of money to release his Interest, he cannot maintain
Jonra. RBP., 14.
N. Y. R.. 5.
an action for money had and received to recover it
back, as receivedunconscientiously, whether there
were a previous parol agreement or not, in relation
to the subject.
Citatlons-9 Johns.. 129 ; 4 Johns.. 240.
rPHIS was an action of a*»umpsit for money
-L had and received. The cause was tried
before Mr. Justice Yates, at the Dutchess Cir-
cuit, in September, 1816.
In September, 1814, a public sale was held
by the loan officers of the County of Dutchexs;
a mortgage given by one Scott for £75 was
first taken up, and Mr. Tallmadge, one of the
loan officers, announced that the amount of
the mortgage, including interest and costs,
amounted to $213.50. and mentioned that
Jeremiah Shnrrill, Jr., deceased, bad, for sev-
eral years, paid the interest on it. Davies, a
witness, who was present at the sale, observed
that there must be some mistake ; that the
Sherrills were men of property, and would not
make a sacrifice by permitting the lot to be
sold ; and proposed to Tallmadge to postpone
the sale until it was certain that notice had
been given to them; this the loan officer declined
to do, as inconsistent with his duty, but re-
marked to Davies and the defendant, who was
also present, that some friend of the family
had better bid the land off, and that as they had
been old neighbors of the Sherrills, one of
them ought to do it. The defendant then bid
the sum of $212.50, and the land was struck
off to him. There was no agreement between
the loan officer and the defendant in relation
to i IK sale, and it was perfectly unconditional;
and Tallmadge, in his testimony, stated that
he thought it inconsistent with his duty, as a
loan officer, to annex any conditions ; "but he
desired that the land *might fall into [*359
the hands of some person who would probably
release it to the owners, although he regarded
this as a mere matter of courtesy between the
purchaser and owners. A deed for the land
was not executed at the time, but an agreement
in writing between the loan officers and the
defendant to give a deed, was entered into.
It was not until October that the plaintiffs,
who were the devisees of J. Sherrill, became
acquainted either with the sale, or knew that
they ever had any title to the land. A nego-
tiation then took place between the plaintiffs
and defendant, during which the land was ap-
praised at $2,000, and finally, after much dif-
ficulty, the defendant was induced to take
$500 for his bargain, and released to the
plaintiffs his interest, who paid up the arrears
due on the mortgage, and gave the defendant
their father's note for the sum agreed upon,
which they afterwards paid. The defendant
admitted that at the time of making the pur-
chase, he supposed the land to belong to the
widow and children of J. Sherrill, and that he
bid for it. for their use ; but on discovering
that it belonged to his brothers, he changed
bis intention. The testimony was contradic-
tory as to the fact whether the plaintiffs, at the
time "f the negotiation with the defendant,
were acquainted with the circumstances at-
tending the sale. The action was brought to
recover back the amount of the note which
had been paid to the defendant ; and a ver-
dict was taken for the plaintiffs for the sum of
$500, with interest, subject to the opinion of
7 8»7
359
SUPREME COURT, STATE OF NEW YORK.
181T
the court on a case containing the facts above
stated.
Mr. P. Ruggles, for the plaintiffs, contended :
1. That every agreement which tended to pre-
vent a fair competition at a sheriff's sale or
public auction, to the injury of the debtor, was
void, and that every attempt at fraud or cir-
cumvention at such public sales was to be dis-
countenanced. (Tlwmpson v. Davis, 12 Johns.,
112.)
2. That the defendant took an undue ad-
vantage of the plaintiff's situation to extort
from them the $500 ; and that it was against
conscience for him to retain it ; that the cases
were numerous in which an action of this kind
has been maintained on similar grounds. (2
Str., 915 ; Doug., 696. n ; 4 T. K, 431, 485 ;
1 T. R., 285; 1 Esp., 84.)
Mr. Burr, contra, relied on the case of Hall
v. Shultz, 4 Johns., 240, as in point, to show
that the action could not be maintained.
3(5O*] *Mr. Ruggles, in reply, said that in
Hall v. Shultz the defendant obtained the
property legally, but here the defendant had
acquired it illegally.
SPENCER. /., delivered the opinion of the
court :
There is no principle of law which can au-
thorize a recovery here. The sale by the loan
officers was absolute and unconditional, and by
the default in paying the interest, for twenty-
two days, from the first Tuesday in May, pre-
ceding* the sale, the estate of the mortgagor
was gone ; and the Statute vested an absolute
indefeasible estate in the mortgaged land, in
the loan officers. (9 Johns., 129.) Besides,
there was no communication between the par-
ties nor any agent of them, as to the terms and
condition of the defendant's purchase ; and
clearly no contract was made which would
render the sale conditional between the loan
officers and the defendant. Let us suppose
that no arrangement had subsequently been
made between the parties, as to the renuncia-
tion of the defendant's purchase ; was there
any remedy, at law or in equity, for the plaint-
iffs, and could they have compelled the de-
fendant to convey the land to them on being
paid the amount bid at the sale ? I conceive
not. Independently of the consideration that
their legal and equitable right in the land was
lost by the express provisions of the Statute,
and, therefore, they could not be regarded as
having any interest in the property, the sale
was absolute and unconditional, as between
the loan officers, in whom the estate was vested,
and the defendant. Of this there can be no
doubt, as the .only evidence of that sale was
the written stipulation entered into by the loan
officers and the defendant.
It is a mistake to suppose that the defendant
purchased under an agreement to bid for the
benefit of the plaintiffs. Who were the parties
to such an agreement ? Not the loan officers,
for their sale was and must have been absolute ;
not the plaintiffs, for they were neither pres-
ent, nor were they represented by any person
pretending to have authority to treat for them.
The facts in the case negative the possibility of
any agreement.
It has been urged that the defendant became
a voluntary agent and trustee for the plaintiffs;
8J»8
this position is contradicted by the fact that he
bid for himself, and immediately took the
written evidence that he had purchased the
land in his own right.
*In the case of Hall v. Shultz, 4 [*361
Johns., 240, we intimated a strong opinion
that the defendants having, with their own
money, purchased the plaintiff's farm on an
execution, under a parol agreement to recon-
vey it to the plaintiff, on being repaid the
money advanced, there was no remedy at law
or in equity to enforce the agreement, or to re-
cover damages for its non performance on the
ground that the agreement was void, kud
within the Statute for the Prevention of
Frauds. The material distinction between
that case and this consists in the total absence
of any agreement that the defendant should
make the purchase for the plaintiffs.
I cannot bring myself to doubt of the sound-
ness of the opinion that had there existed a
parol agreement that the defendant should
purchase in the land for the plaintiffs, and he-
had made such purchase with his own money,,
that the agreement would be within the Stat-
ute of Frauds ; and much less can I doubt
that the plaintiffs have wholly failed to make
out a case entitling them to* recover. I con-
sider what passed at the sale as a mere intima-
tion of a wish on the part of the loan officers-
thai the property should not be sacrificed, and
an exception that when the defendant pur-
chased, he would be content to give up the
purchase to the persons interested, on being
repaid the money advanced.
The $500 paid by the plaintiffs to the de-
fendant can be viewed in no other light than
as paid upon a purchase of the defendant'*
right to the land, which must be considered as
perfect. It seems to 'me certain that if the
plaintiffs had no remedy to coerce the defend-
ant to convey to them the land he purchased
(and I am entirely convinced they had not),
there is no ground to say fliat he received the
$500 unconscientiously. On the contrary, the
defendant surrendered land worth far more
than the consideration received.
Judgment for tJie defendant.
Cited in— 5 Cow., 164 ; 8 Cow.. 52 : 8 Wend., 658 ; £
Johns. Ch., 338; 3 Sand. Ch., 56: 5 N. Y., 149: 18 N. Y...
145 ; 5 Barb., 71 : 7 Barb., 63 : 4 E. D. Smith, 161 ; 1
Leg. Obs., 89; 2 Leg. Obs., 293.
*WATERS v. BURNET. [*362
Officers — Escape of Prisoner.
In an action against an officer for the escape of a
defendant in execution, the latter is a competent
witness for the officer ; his interest, if any, being
against the party calling him.
N ERROR, on certiorari to a justice's court.
I
The defendant in error, who was plaintiff
in the court below, brought an action on the
case against the plaintiff in error, and declared
against him, as a constable, for the escape of
one Bixby, in execution. The defendant be-
low moved for a nonsuit, on the ground that
the action should have been debt, and not
case ; but the motion was overruled, and on
JOHNS. REP.. 14.
1817
Kl. 1.1- V. H08KIN8.
362
the trial the defendant offered Bixby as a wit-
ness, to prove that the plaintiff had directed
the defendant not to take Bixby to jail on the j
execution. The witness was objected to, and |
excluded by the justice ; and a verdict was
found for the plaintiff for the amount of the
execution.
Per Curiam. The variance between the j
summons and the declaration would probably j
be considered matter of form, if that were the
only objection to the proceedings ; but we
think that BJxby was improperly excluded.
He was not interested in the event of this
cause, nor could this judgment be given in evi-
dence in any suit between the witness and the
plaintiff below. His interest would rather
seem to be against the defendant who called
him ; for, if the plaintiff recovered against the
constable, the witness would be exonerated
from any liability to the plaintiff; and if the
escape were voluntary, the constable could not
recover anything from the witness. On this
ground, therefore, the judgment must be re-
versed.
Judgment reverted.
Cited in-6 Barb.. 39.
3O3*] *ELLIS ». HOSKINS.
Contract* — Covenant to Convty Land — Part
Pnymejit — Cotenantee Cannot Recover Amount
Paid.
E. covenanted to convey to H. a lot of land, on
condition that H. paid him $500, in several install-
ments. H. paid the first installment, and offered to
pay the second, if E. would give him security against
a certain mortgage, which was a lien on the prem-
ises, at the time of the purchase. E. refu»>d the
•eCTUlty, but offered to receive the money and per-
form the contract ; and H. refused to pay any more
money, and having gone into possession at the time
of the purchase, E. brought an action, and ejected
him, and H. brought an action against E. to recover
back the money he had paid. It was held that H.
had no right to rescind toe contract, and bring his
action to recover back his money, there being no
fraud on the part of E.. and H. not having entitled
himself to demand a deed for the lot.
Citation— 9 Johns., 126.
IX ERROR, to the Court of Common Pleas
of Onondaga County.
Hoskins brought an action of a*»nmp»il, to
recover back money paid by him to Ellis on a
contract for the sale and purchase of land. On
the trial in the court below, the jury found a
special verdict. On the 19th of September,
1811, the parties entered into articles of agree-
ment, by which Ellis agreed to convey to
Hoskins, " by a good warrantee deed," fifty-
two and one half acres of land, in lot No. 16,
in Manlius, on condition that Hoskins should
pay to him the sum of $500, to wit : $70 in
hand, $30 on the 15th of February, 1812, and
$400 in four equal annual installments. Soon
after making the contract, Hoskins went into
possession of the land, and having paid to
Ellis $156, and interest amounting to $195.40,
he offered, on the 15th of February. 1818, to
pay Ellis the balance of the second payment,
due on that day, provided Ellis would give
him security against a mortgage, executed by
one Cook, and which was then a lien on the
.JOHN-. REP., 14.
premises. Ellis refused to give the security ;
but said he was ready to receive the money
tendered, and to fulfill the contract on his
part, alleging that Cook was bound to pay off
the mortgage, and was able to do it. Hoskins
refused to pay any more money, and Ellis
brought an action of ejectment a'gninst him,
and received possession of the premises. Hos-
kins thereupon brought this action to recover
back the money he had paid. The special ver-
dict stated the mortgage of Cook as outstand-
ing and unsatisfied of record ; but that Cook
was a responsible person, and fully able to pay
off the mortgage. The court below gave judg-
ment for the plaintiff for $195.40.
^fr. Randall, for the plaintiff in error. 1.
This action will not lie where the contract is
still open. (Doug., 23; 1 T. R., 133 ; 5. Johns.,
85.) The recovery of the possession by the
defendant was not a rescinding of the contract.
2. The special verdict does not state an act-
ually existing and unsatisfied mortgage. It
may have been paid off, though not satisfied
on the record. The defendant is not bound to
show a performance of the contract on his
part; but the plaintiff must "prove a [*3<$4
failure by him to perform. (12 Johns., 363.)
There is no such evidence in this case ; but, on
the contrary, the defendant offered to perform
his part of the contract, on the plaintiff's pay-
ing the money. Admitting the mortgage to be
subsisting unpaid, it was no evidence of fraud
on the part of the defendant. It was registered
at the time of the contract, and the plaintiff
must be deemed to have had notice of it. when
he mude the purchase. It might be, and so the
court will presume, that before the time, when
the defendant was bound to execute the deed
to the plaintiff, the mortgage would be satis-
fied. Qreenby v. Cheaters, 9 Johns., 126, is a
case in point, and conclusive for the defendant
below.
Mr. Yelverton, contra, insisted that by bring-
ing the action of ejectment, and turning the
defendant in error out of possession, the
plaintiff in error had rescinded the contract of
sale, and the plaintiff below had a right to
bring his action to recover the money he had
paid. (5 Johns., 85.) The defendant bad a
right, also, to rescind the contract on his part.
He was not bound to accept an incumbered
title, nor to go on paying his money for a bad
title. (8 Johns., 257 ; 1 Ves., Jr., 221 ; Sugd..
Vend., 200-211.)
Per Curiam. There is no averment or proof
of any fraud or deception on the part of Ellis,
in regard to the mortgage ; nor is there any
evidence of a breach of the contract on his
part. He has acted in good faith ; and non
i-'Hixttit. that he will not be able and willing to
give a perfect and unincumbered title to the
premises, when it becomes his duty to execute
a conveyance, according to the covenant.
Hoskins has no justifiable cause for rescinding
the contract. For aught that appears, he had
full knowledge of the mortgage when he en-
tered into the agreement. To permit him to
recover back the money he ha^ paid, would be
allowing him to rescind a fair and voluntary
contract, on the ground of his mere will and
pleasure, and thereby take advantage of his
own default. If he Wl tendered the whole
364
SUPREME COURT, STATE OF NEW YORK.
1817
price of the land, and demanded a deed free
from all incumbrances, a different question
might have arisen.
The case of Oreenby v. Cheevers is in point
for the plaintiff in error, and the judgment of
the court below must, therefore, be reversed.
Judgment of reversal.
Cited in— 6 Barb., 39 ; 3 Bos.. 59.
365*1 *THE OVERSEERS OF THE POOR
OF THE TOWN OF FORT ANN
v.
THE OVERSEERS OF THE POOR OF
KINGSBURY.
Pauper — Settlement of — Working Farm on
Shares is a Renting within Statute — Over-
seers of Town — Order of Removal — Estoppel.
Living1 on and working1 a farm, of the yearly
value of $100, on shares, for above two years, is a
renting- and paying- rent, within the meaning of the
Act for the Relief and Settlement of the Poor (1 N.
K. L., 279), and the party, by such renting-, gains a
legal settlement in the town.
If the justices and overseers of the poor of a
town seize the property of a person, under the 22d
section of the Act, on the ground of his having run
away, leaving his wife or children a charge to the
town, it is an admission of his being legally settled
in that town, and they are concluded by the pro-
ceeding from ordering his removal, afterwards, to
another town.
Citations— 1 N. R. L., 279 ; 1 Johns., 267 ; 1 R. L., 286.
rpWO justices of peace of Kingsbury made
-L an order for the removal of Richard Sweet,
a pauper, from that town to Fort Ann, as the
place of his legal settlement. There was an
appeal from this order to the General Sessions
of the Peace of Washington County, which
was tried in May, 1816, and the order of the
justices confirmed.
At the trial before the Sessions, the appel-
lants produced an order of two justices of
Kingsbury, dated the 13th of May, 1815, recit-
ing that on the complaint of the overseers of
the poor, and due proof that Robert Sweet,
late of the town of Kingsbury, yeoman, had
run away, leaving his wife, who has since
died, and his infant children, a charge to the
said town, and that Sweet had some estate,
real or personal, whereby the town might be
eased of the charge, in whole or in part ;
they, therefore, authorizing the overseers to
take and seize the goods and chattels of the
said Sweet, and to let out his lands and tene-
ments, within the county; and to receive the
annual rents and profits, towards the maintain-
ing, bringing up and providing for his chil-
dren so left. The appellants also produced an
inventory of the property of Sweet, seized by
virtue of the order, and certified by the over-
seers of Kingsbury, amounting to $182.82.
This order was confirmed by the General Ses-
sions of the Peace the 30th of May, 1815 ; and
the overseers were directed to sell the property
seized, and to appropriate the moneys arising
from the sale to the support of the children of
Sweet, &c.
It appeared that Sweet, previous to 1800,
lived and worked on a farm in Fort Ann, in
common with one Hotchkisf , for about three
900
years, the farm being worth about $100 a
year ; and that they held the farm on shares,
rendering half the produce to Mead, the
owner. After Sweet left Fort Ann, he lived in
a small house and garden on the farm of
Chester Cook, in Kingsbury, for about five
years, and paid $5 a year rent ; and the last
two years he worked on the farm for hire, and
was to have for his services, during the
summer season, one fourth of the grain raised,
worth above $50 a year. During *the [*366
rest of the season he was paid daily wages,
and had no privilege or right on the farm, nor
any share of the produce, except the one
fourth of the grain.
It appeared, also, that while Sweet lived on
the farm at Fort Ann, he paid his proportion
of the taxes on the farm for two years.
Mr. Z. R. Shep?ierd, for the plaintiffs, con-
tended that the town of Kiugsbury was con-
cluded by the acts of its officers, in seizing and
selling the property of Sweet for the mainte-
nance of his wife and children. The proceed-
ings were on the ground that Sweet had a
legal settlement there. They could have no
right to seize the property of a person who had
absconded, and had no legal settlement in the
town. The word " charged " in the Act (sess.
36, ch. 78, sec. 22 ; IN- R. L., 286) means le-
gally chargeable. The whole provisions of the
Act proceed on the fact of the wife or children
being paupers of the town, or a town charge.
The order of the 15th of May, 1815, was, sub-
stantially, an adjudication that the place of
Sweet's legal settlement was in Kingsbury. If
the town of Fort Ann was to be charged with
the maintenance of Sweet, or his family, the
plaintiffs were entitled to his property.
Again ; the pauper rented a tenement in
Kingsbury, and paid rent there.
Mr. Weston, contra, insisted that working on
the farm of Mead on shares was a renting and
paying rent, within the meaning of the Act.
(Sess. 36, ch. 78, sec. 2 ; N. R. L., 279.) The
agreement created a tenancy. In Jackson, ex
dem. Golden, v. Brownett, 1 Johns., 267; 9
Johns., 108, 113, it was decided that cultivat-
ing a farm for a year, on shares, made the per-
son a tenant. Having, then, rented and occu-
pied a farm at Fort Ann, the yearly value of
which was above $30, the patiper must be con-
sidered as having acquired a legal settlement in
that town. He had, besides, paid his share of
the public taxes on the farm for two years.
Per Curiam. The question is, whether
Richard Sweet, a pauper, had his last legal
settlement in the town of Fort Ann. The test
given by the Statute consists in bonafide rent-
ing and occupying a tenement, of the yearly
value of $30, for two years, and actually pay-
ing such rent ; or in "holding and executing
*an office for one year ; or in having [*367
been charged with and paid public taxes of
the town for two years ; or in having been
bound an apprentice or servant, and serving
two years in such town accordingly. (1 N. R.
L., 279.)
It appears that Sweet, before the year 1800,
lived on and occupied a farm in Fort Ann,
worth $100 per year, in common with Hotch-
kiss, for more than two years, rendering half
the produce to Mead, the proprietor of the
JOHNS. REP., 14.
1817
PLATT v. N. & I. SMITH.
367
farm. This, we are inclined to thjnk, was a
fxiiut jiilr renting and payment of rent, accord-
ing to the Statute. Hotchkiss and Sweet had
the entire control, and ostensible possession of
the farm, to sow and plant according to their
own discretion,* under an agreement for three
years. The one half of the produce, which
they had a right to retain, is not to be regarded
as a mere rule of compensation for their
labor ; but the one half which they were to
yield to the proprietor of the land ought to be
considered as rent for the use of the farm.
(JacJaon, « dem. Golden, v. Brawnell, 1 Johns. ,
267.) Besides, the case shows (and it was ad-
mitted on the argument), that Sweet had,
during two years, been assessed, and actually
paid taxes in Fort Ann.
So that, on two distinct grounds, the pauper
gained a settlement in Fort Ann.
But it is contended that subsequent to such
settlement the pauper rented a tenement, and
paid rent in the town of Kingsbury. On ex-
amining the evidence, however, it appears that
for the house and garden in Kingsbury he paid
only $5 per year ; and independently of that
tenement, he can only be regarded as a com-
mon laborer on the farm of Chester Cook.
There is no evidence of his paying taxes in
Kingsbury.
It appears, however, that in the year 1815,
under the 22d section of the " Act for the Re-
lief and Settlement of the Poor" (1 R. L.,
286), the property of the pauper was seized
and appropriated for the support of his fam-
ily, who were then chargeable to the town of
kingsbury. We are of opinion that by this
sequestration of the property of the pauper,
the overseers of Kingsbury adopted him as
one of their poor ; and they are concluded by
that proceeding. The order of the General
Sessions of the County of Washington must,
therefore, be reversed.
Judgment reversed.
Cited in-39 X. Y., 135; 4 Abb. App., Dec., 372; 15
Barb., 587.
,'*«8*] *PLATT v. N. & I. SMITH.
Ateard — Word Written in Margin, Part of —
Omutsion of Word in Copy, Immaterial.
Words written in the margin of an award by the
arbitrators, in a distinct sentence, are to be con-
sidered as part of the award, and to receive the
siii i n- construction as if inserted in the body of it.
Where, in a copy or counterpart of an award de-
livered to one of the parties, the word " dollars "
was omitted, but in the other part, which was
shown to the party at the same time, it was prop-
erly inserfo-d, the omission in the copy was held to
be immaterial.
were written by the arbitrators: "Gilbert
Platt is to give up the note which he holds
airainst N. Smith & Co. The store remains
joint property. The outstanding debts to be
equally divided."*
A counterpart award was delivered to the
defendants, in which the word "dollars"
was omitted after the words and figures " two
thousand six hundred and fifty-six 25-100."
But the other part, in which the word "dol-
lars " was properly inserted, was, at the time,
shown to the defendants. .
The jury, under the direction of the judges,
found a verdict for the plaintiff, subject to
the opinion of the court on the case.
Mr. Johnson for the plaintiff.
Mr. P. W. Raddiff, contra.
Per Ouriam. We are of opinion that the
words written in the margin of the award by
the arbitrators, are to be considered as part of
the award, and to receive the same construction
as if they had been inserted in the body of the
instrument. The words form a distinct sen-
tence, and the meaning is the same, whether
they be read in one place or another, after any
distinct sentence. Besides, these words are
merely explanatory of what would have been
the operation and effect of the award, if they
had not been inserted. .
We are of opinion," also, that the omission
of the word "dollars" in the counterpart
award delivered to the defendants is not fatal,
*when taken in connection with the [*3O1)
proof, that the other part, in which there is no
such omission, was shown to the defendants
when they received the copy of the award.
The plaintiff is, therefore, entitled to judg-
ment for the sum awarded to him, with inter-
est, but not for the $30, awarded to be paid
by the defendants to the arbitrators. There
is no evidence that the plaintiff has paid that
sum for the defendants ; and if he had paid
it, it is very questionable whether he could
recover it in an action on the award. It does
not even appear that the plaintiff has paid his
own half of the charges of the arbitrators. A
mere liability to pay-, without actual payment,
gives no right of action by either party again-t
the other.
Judgment for the plaintiff.
Cited in-19 Johns., 421 : 5 N. Y., 485 ; 49 N. Y., 401 ;
47 In.].. 89.
was an action of debt on an award,
J. tried before Mr. Justice Van Ness, at the,
New York sittings, in November, 1816.
The arbitrators made an award, under their '
hands and seals, reciting the bond of submis- !
sion, and by which they awarded the defend- j
ants to pay to the plaintiff $2, 656.25; and also. '
that on the delivery of the award, they should
pay to the arbitrators $30, being one half of i
the expenses of the arbitrators, &c., and that '
the parties, on payment of the said sums, '
should execute mutual releases, &c. In the '
margin of the award the following words .
JOHNS. Ki.r . 14.
TIMMERMAN v. MORRISON.
Practice in Justice Court — Proof of Pover of
Attorney — Demurrer to Declaration — Con-
struction of Statute Regulating Practice of
Medicine- — Costs.
Where a plaintiff appears by attorney in a justice's
court, if the attorney is called, on to produce his
power, the execution of it must be proved.
A declaration in ax*tim)>xtt in a justice's court
may be demurred to, for not stating any time, or
not u\ erring a request.
The true construction of the 12th and 20th sec-
tion* of t lie Act to Incorporate Medical Societies
for the Purpose of Regulating the Practice of
IMiysie mid Surgery in this State (sess. 36. ch. 94 : Z
U. I.., iii, £Jl>, tnken in connection, is that no per-
son commencing to practice, without license, snail
be capable of suing for services rendered or medi-
eines furnished, and that every person so practic-
1)01
369
SUPREME COURT, STATE OF NEW YORK.
1817
ing without license is subject to a penalty of $35,
unless he proves that he practiced gratuitously, or
that he administered only roots, bark or herbs, the
growth or produce of the United States.
In rendering judgment for a plaintiff in a jus-
tice's court, it is erroneous to include costs incurred
by the defendant, such as subpoenas for and Swear-
ing his witnesses.
Citation— 2 R. L., 219, sees. 12, 20.
N ERROR, on certiorari to a justice's court.
I
The defendant in error brought an action,
in the court below, against the plaintiff in
error, and on the return of the summons, one
Wilbor appeared for the plaintiff below, the
defendant in error ; and on his authority, for
that purpose, being denied by the defendant
below, Wilbor produced a paper purporting
to be a power of attorney, with the name of
the plaintiff subscribed. The defendant de-
nied the execution of the power, but the jus-
tice overruled the objection, and admitted
Wilbor to prosecute, as attorney for the plaint-
iff, without any proof of the execution of the
power. The plaintiff's attorney then presented
a written declaration, containing the general
counts for goods sold, money had and received,
money paid and services rendered ; and also
for attending the defendant's family in sick-
ness, but without stating any time or averring
a request on the part-of the defendant. .To
this declaration the defendant demurred, speci-
fying these omissions, as causes of demurrer,
but the justice, without waiting for any
answer to the demurrer, decided that the
37O*] *declaration was sufficient. The de-
fendant then pleaded the general issue, and
the plaintiff proved that he had attended the
defendant's family as a physician, and had
furnished medicines during their sickness. It
was, however, proved that the plaintiff was
not a licensed physician, according to the
Statute ; but he endeavored to support the
action, by attempting to show that he ad-
ministered to the defendant's family nothing
but roots, bark and herbs, the growth or pro-
duce of the United States ; although on this
point the proof was equivocal and extremely
doubtful, the justice gave judgment for the
plaintiff below, and the judgment for costs
included several items of fees incurred by the
defendant, such as subpoenas for and swear-
ing the defendant's witnesses.
Per Curuim. The justice erred :
1 . In not requiring proof of the execution
of the pretended power of attorney.
2. The demurrer to the declaration was well
taken, and the defendant was entitled to judg-
ment thereon.
3. The justice erred in his construction of
the Statute for Regulating the Practice of
Physic and Surgery. ',(2 R. L., 219.) The
12th section of that Act forbids any person to
practice physic or surgery without a diploma,
and declares that "if any person shall so
practice without a diploma, he shall forever
thereafter be disqualified from collecting any
debt incurred by such practice in any court in
this State." The 20th section superadds a
penalty of $25 for practicing without a regu-
lar license, with a proviso that no person shall
be subject to such penalty who practices with-
out fee or reward ; and with this further pro-
902
viso, " that nothing in this Act contained
shall be construed to extend to debar any per-
son from using or applying, for the benefit of
any sick person, any roots, bark or herbs, the
growth or produce of the United States." The
true construction of all these sections and
provisos, taken together, is, that no person
commencing to practice without license, after
the date of the Act, shall be capable of suing
for services rendered or medicines furnished
as a physician or surgeon ; and that every
person so practicing without license, is sub-
ject to a penalty of $25, unless he proves that
he practiced gratuitously, or that he admin-
istered only roots, bark or herbs, the growth
or produce of the United States.
*4. The justice erred in rendering [*371
judgment in favor of the plaintiff for the costs
voluntarily incurred by the defendant in mak-
ing his defense.
Judgment reversed.
Cited in— 1 Wend., 528; 13 Wend., 284; 24 Wend.,
29 ; 2 Hall, 467 ; 3 E. D. Smith, 208.
THE PEOPLE v. MILLER.
Courts — Special Session — Jurisdiction of —
fraud — Indictment for.
A court of special sessions of the peace has juris-
diction of cheats.
In the record of a conviction before a court of
special sessions, the place where the offense was
committed must be stated that it may appear to
have been within the jurisdiction of the court.
Whether it is necessary to state ihat the com-
plaint, previous to issuing the warrant, in which
the defendant was arrested, was made under oath.
Quaere.
A fraud to be indictable at common law must be
one affecting the public, and such as common pru-
dence is not sufficient to guard against; as the
using of false weights and measures, or false
tokens, or where there has been a conspiracy to
cheat.
Where a person got possession of a promissory
note, by pretending that he wished to look at it.
and then carried it away, and refused to deliver it
to the holder, it was held that this was merely a
private fraud, and not punishable criminally.
Citations— Act, sess. 36, ch. 104, sec. 6 ; 2 R. L., 576 ;
7 Johns.,. 204; 6T. R., 565.
IN ERROR, on certiorari to a court of special
sessions of the peace, consisting of three
justices of the County of Otsego, to bring up
the trial and conviction of the defendant, for
a misdemeanor. The return stated that upon
the complaint of one George WTilson, that the
defendant had been guilty of a misdemeanor,
in taking from him a certain note, a warrant
was issued, and that the defendant, on being
brought before a justice, consented to be tried
by a special session. The court was duly
formed, and from the evidence it appeared
that the defendant called on the witness Wil-
son, and wished to see a note which was given
by the defendant to one Marsh or bearer, for
ten tons of hay, and that on its being handed
to the defendant to look at, he mounted his
horse and rode away with it. and refused to
deliver it to Wilson. The defendant was con-
victed upon this evidence, and fined $12.50;
and the objections alleged against the con-
viction were, that it did not appear that the
complaint upon which the warrant issued was
under oath ; that it did not appear where the
offense, if any, was committed, or that it was
JOHNS. REP., 14.
1817
DUNHAM v. PRATT.
371
•within the jurisdiction of the court below ;
that admitting the offense to have been com-
mitted within the County of Otsego. it is not
an offense within the jurisdiction of a court of
special sessions ; and that the evidence does
not make out any criminal offense.
Per Curium. None of the objections made
to this conviction have much weight, except
37 ii*] those relating to the place where *the
offense was committed, and the insufficiency
of the evidence on which the conviction was
founded. It is essential that it should appear
that the court had jurisdiction of the offense ;
and it had no jurisdiction, unless it was com-
mitted within the County of Otsego ; and if
•committed within that county, it was within
the jurisdiction of a court of special sessions.
The Act (seas. 36, ch. 104. sec. 6 ; 2 R. L.. 507)
extends its jurisdiction to petit larceny, mis-
demeanor, breach of the peace, or other crim-
inal offense, under the degree of grand larce-
ny. But the evidence did not make out any
criminal offense at all ; it was a mere private
fraud, which, according to the doctrine laid
•down by this court in the case of The People
v. Babcvck, 7 Johns., 204, is not indictable. A
fraud indictable at common law must be such
as would affect the public, and such as com-
mon prudence would not be sufficient to
guard against ; as the using of false weights
and measures or false tokens, or where there
has been a conspiracy to cheat. (6 T. R.,
56.5.) The fraud, in this instance, is not one
falling within the rule. The conviction must,
therefore, be reversed.
Conviction returned.
Cited ln--9 Cow.. 588; « N. Y., 327 : 66 Barb.. 133;
Edm.. 304 ; 1 Park., 103.
DUNHAM v. PRATT.
Pleading — Covenant — Breach of.
In a declaration for the breach of a covenant in a
•deed, it is sufficient to state that the defendant con-
veyed to the plain! iff certain land or premises, in
the said deed particularly mentioned and specified
without any further description.
Citations— 1 Saund., 233, ». 2 ; 2 Chit. PI.. 102, n. f.
THIS was an actiop of covenant for the
breach of a covenant of title in a deed.
The declaration stated that on the 18th of Jan-
uary, 1785, the defendant, by his certain deed
poll, of which profert was made, did, in con-
sideration of £67, lawful money of Massachu-
setts, give, grant, sell, convey and confirm
unto the plaintiff, and to his heirs and assigns
forever, " two third parts of a certain right
or share of land in the said deed particularly
mentioned and specified, to have and to hold,
Arc. ; and that the defendant, by the said deed
poll, covenanted that he had good right tosell
and convey the premises to the plaintiff, his
heirs and assigns. The breach negatived the
covenant.
The defendant pleaded: 1. Non e*t factum.
2. Payment and satisfaction of damages. 3.
3 7 3*] A release. 4. That the defendant *was
seised, and hud good right to convey. 5. That
on the 2d of November, 1788, the defendant,
being an insolvent debtor, within the meaning
of the Insolvent Act of the 18th of April, 1786,
JOHNS. REP.. 14.
in conjunction with three fourths in value of
his creditors, presented a petition to William
B. Whiting, Esq., then being one of the judges
of the Inferior Court of Common Pleas, in and
for the County of Columbia, the defendant
having been arrested, and then being under
arrest, by process issued out of that court,
praying that his estate might be assigned, and
be be discharged ; and that such proceedings
were thereupon had, that the said Willium B.
Whiting, so being one of the judges of the
Inferior Court of Common Pleas of Columbia
County, on the 28th January. 1788, in writing
under his hand and seal, bearing date the same
day and year, discharged the defendant.
The plaintiff replied to the second, third
and fourth pleas, and demurred generally to
the fifth plea.
Mr. Cody, in support of the demurrer. He
cited 1 Saund., 233, n, 2 ; 2 Saund.. 336, n. 1.
Mr. Storrs, contra, admitted the plea was
bad. but he said the declaration was also bad,
and the defendant was, therefore, entitled to
judgment on the demurrer. The declaration
ought to state where the land lies, and de-
scribe it particularly.
Per Curiam. The declaration alleges that
the defendant, for the consideration of a cer-
tain sum of money specified, did give, grant,
sell and convey to the plaintiff and his heirs
and assigns forever, two third parts of a cer-
tain right or share of land, in the said deed
particularly mentioned and specified, without
any further description. This, we think, is
all that was necessary. It is enough to pre-
vent surprise on the defendant, and gives him
all that is necessary to enable him to plead and
defend the action. Profert of the deed being
made, he is entitled to oyer, and thereby ob-
tains every particularity he can want. This
mode of declaring is sanctioned by the CiMB,
and highly approved by Sergeant Williams, in
his notes to Saunders. (1 Saund., 233, n. 2.)
Courts very much discountenance unnecessary
prolixity of pleading ; and therefore, says he,
in an action of covenant for non payment of
rent, it is sufficient to allege in *the [*374
declaration that the plaintiff, on such a day
and year, at such a place, by a certain indent-
ure made between him of the one part, and
the defendant of the other part (which the
plaintiff brings here into court), demised to
the defendant certain premises particularly
mentioned and described in the said indenture,
without setting out particularly the parcels of
land demised. (2 Chilly's PL, 192, n. i.) If
this be a sound rule in covenant for non-pay-
ment of renl, it is equally applicable to the
case before us. We are, accordingly, of opin-
ion that the declaration is sufficient, and that
the plaintiff is entitled to judgment on the de-
murrer.
Judgment for the plaintiff.
ACKLEY r. HOSKINS.
Masters and Apprentice* — Indenture — Breach
of — Action by Matter — Guardian not Liable.
Where an indenture of apprenticeship, in the in-
troductory part, state* that A, by and with the con-
sent of D nis g-uardian , hath bound hiinaclf appren-
374
SUPREME COURT, STATE OP NEW YORK.
1817
tice unto C, and after stating the respective
duties and obligations of the master and apprentice,
concludes: "In witness whereof the said parties
have hereunto set their hands and seals," it is
signed and sealed by A, B and C ; B, the guardian,
is not liable to an action of covenant by A, the
master, for a breach of the indenture on the part of
the apprentice, as it contained no covenants on his
part, and the intention is apparent that B only be-
came a party to render the binding valid under the
Act (sess. 4, ch. 11, sec. 2 ; 1 R. L., 135), which re-
quires the consent of the guardian to be expressed
in the indenture, and signified by his sealing and
signing the same.
Citations— 10 Johns., 99 ; 8 Mod., 190 : Doug., 518;
1 N. R. L.. 135 ; 2 Mass., 228.
was an action of covenant on an in-
J- denture of apprenticeship. The declara-
tion stated that by a certain indenture of ap-
prenticeship, one part of which indenture,
sealed with the seal of the defendant, the
plaintiff brings into court one Sheldon Curtis,
aged fifteen, put himself an apprentice with
the plaintiff to learn his trade of a hatter, and
to serve the plaintiff until he should attain the
age of twenty-one ; that it was thereby cove-
nanted and agreed that the said apprentice his
said master should well and faithfully serve,
&c., &c. ; that for the true performance of the
covenants on the part of Curtis, the defend-
ajit bound himself unto the plaintiff ; that
Curtis was received into the service of the
plaintiff ; and that although the plaintiff had,
on his part, fulfilled the indenture, yet that
Curtis would not faithfully serve him, but,
on the contrary, absented himself, and con-
tinued absent from his service.
The indenture, as set forth upon oyer, was
as follows: "This indenture, made the 7th
day of February, in the year of our Lord 1814,
witnesseth, that Sheldon Curtis, son of Moses
Curtis, deceased, late of the town of Geneva,
being fifteen years old on the 14th day of May,
375*] in the year of our Lord 1813, by *aud
with the consent of Ebenezer Hoskins, his
guardian, of the town of Geneva, in the County
of Cayuga, hath, of his free and voluntary
will, placed and bound himself apprentice
unto Henry Ackley, of the village of Ithaca,
hatter, to learn the said trade, mystery or oc-
cupation of a hatter, which he, the said Henry,
now useth, and with him as an apprentice to
dwell, continue and serve, from the day of
the date hereof until the said Sheldon shall ar-
rive at the age of twenty-one years ; during all
which time the said apprentice his said master
well and faithfully shall serve, his secrets
keep, his commandments gladly do and obey,
&c., &c. From the service of his said master
he shall not, at any time, depart or absent
himself, &c. And the said master, in consid-
eration of the before mentioned premises, in
the trade, mystery or occupation of a hatter,
which he now useth, with all things thereto
belonging, shall and will teach and instruct,
or cause to be well and sufficiently taught and
instructed, &c. In witness whereof the said
parties have hereunto set their hands and
seals, the day and year first above written.
Sheldon Curtis (L. 8.), Ebenezer Hoskins
(L. S.), Henry Ackley (L. 8.)"
The defendant, having craved oyer, de-
murred, and the plaintiff joined in demurrer.
Mr. Foot, in support of the demurrer, con-
tended that the indenture contained no cove-
904
nant, on the part of the guardian, that the ap-
prentice should faithfully serve. In Mead v.
Billings, 10 Johns., 99, the parties expressly
bound themselves to each other, for the true
performance of the covenants in the indent-
ure, which was executed by the father. Here
the defendant merely expressed his consent to
the binding, according to the Statute, by sign-
ing and sealing the indenture.
Mr. Henry, contra, insisted that the father,
being a party to the indenture and having exe-
cuted it, was bound by the covenants it con-
tained. In the case of M'Dowle, 8 Johns.,
328, the court said the father was bound,
though the infant apprentice was not. In
Branch v. Ewington, Doug., 518 ; Whitley v.
Loftus, 8 Mod., 190, S. P., Lord Mansfield said
nothing could be clearer than that the father
was bound for the performance of the cove-
nants by the son.
THOMPSON, Ch. J., delivered the opinion of
the court :
The question is, whether the defendant is
bound by any of the covenants *con- [*376
tained in the indenture. In the case of Mead
v. Billings, 10 Johns., 99, the indenture is very
different from the present. There, after stating
what the master and apprentice respectively
stipulated, the indenture concludes, that " for
the true performance of all and singular, the
covenants and agreements aforesaid, the said
parties bind themselves each unto the other."
Here the father clearly made himself a party
to the covenants, and expressly bound himself
for the performance. So, also, in Whitley v.
Loftus, 8 Mod., 190, and in Branch v. Ewing-
ton, Doug., 518.
In the case before us, there are no words im-
porting any covenant or agreement on the part
of the defendant. He has done no more than
is made necessary by the Statute, in order to
make the indenture binding on the apprentice.
The Statute (1 N. R. L., 135) requires that the
consent of the father or guardian should be
expressed in the indenture, and signified by
such parent or guardian sealing and sign-
ing the said indenture. That is all the defend-
ant has done. He might be willing to consent
to the binding, yet not be willing to be bound
himself, for the performance of all the stipula-
tions contained in the indenture. In this, as
in all other covenants, we should endeavor to
find out the intention of the parties ; and when
we can account for the defendant's signing,
and becoming, thus far, a party to the indent-
ure, within the requirements of the Statute,
without making him a party to the covenants,
we ought so to consider his meaning and inten-
tion ; unless the language of the indenture will
fairly warrant a more extended construction.
The Statute does not require any covenant
from the parent or guardian. It has furnished
the master with the power of enforcing obedi-
ence from his apprentice, and compelling him
to a performance of his stipulated service. To
make the defendant liable in this case, would
be, in effect, saying, that the parent or guard-
ian would, in every possible case of a valid
binding, be responsible for the performance
of the covenants contained in the indenture,
as the Statute requires the consent of the
parent or guardian to be expressed in the in-
JOHNS. REP., 14.
1817
GRANT v. BUTTON.
376
denture, and that consent to be signified by
sealing and signing the same. The Statute
does not demand, nor ought it to receive such
a construction. It would greatly embarrass
and frequently defeat the very objects intended
to be carried into effect. The case of Blunt v.
Melther, 2 Mass. , 22tf, is an adjudication ex-
377*] pressly *in point upon the construction
of such an indenture; and goes the full length
of exonerating the guardian from all responsi-
bility upon the covenants. We are of opinion
that the defendant is entitled to judgment.
Judgment for the defendant.
Cited In— 5 Cow., 172 : 7 Wend., 45 ; 14 Abb. N. 8.,
425 ; 4 Daly. 148.
GRANT r. BUTTON.
Practice — Action to Recover Price of Work —
Unworkmanlike Service May be Shown — De-
feme in Former Suit.
In an action to recover the price of work and
labor, the defendant, to reduce the amount of the
plaintiff's recovery, may show that the work was
not done faithfully and in a workmanlike manner.
Matter which was properly offered as a defense in
a former action and rejected, cannot be made the
subject of a new suit.
N ERROR, on certiorari to a justice's court.
evidence that it was not. The justice says
that the plaintiff, on the trial before him, at-
tempted, by some of the same witnesses ex-
amined in this cause, to reduce the price of
the defendant's labor, but he considered the
plaintiff below bound by a special contract,
and he accordingly allowed the defendant
below a dollar and a quarter per day, accord-
ing to the contract. The evidence, it would
seem, therefore, was heard by the justice. If
it was inadmissible, it should have been re-
j jected ; otherwise the parties could not know
on what ground the justice decided. If he
erred in receiving or rejecting the evidence,
the party aggrieved would have had a remedy;
but as the case now stands, the matter must be
deemed to have been once tried, and the judg-
ment must be reversed. •
Judgment reversed.
Action for uvwfc and labor performed— Defenses.
Cited in-« T. & C., 255 ; 1 Hilt., 77 ; 4 E. D. Smith, 515 ;
9 How. (U. S.). 330.
Matter in defetue, res adjudicate. Cited in— 15
Barb., 70: 43 Barb., 319; 10 Bos., 147; 5 Wall.. 507;
49 Mo., 330.
Also cited in-81 Ind., 242.
I
The defendant in error brought an action
against the plaintiffs in error, in the court
below, for not doing some work as a carpenter,
faithfully and in a workmanlike manner. The
defendant below pleaded the general issue,
and a former action by him, as plaintiff, for
his pay for the same work. It appeared that
the defendant below had worked for the
plaintiff twenty-five days, and had recovered
from him $1.25 per day. Considerable evi-
dence was produced on the part of the plaint-
iff that the defendant was not a good work-
111:111. and did not earn $1.25 per day. It also !
appeared, on the part of the defendant, that !
he was absent for some time from the plaint-
itT'> work, who came after him a second time,
and was anxious to have him return. The
ju-tirr, before whom the former trial was had, j
testified that the plaintiff defended that suit, j
and offered evidence to show that the defend- 1
ant's work was not worth the wages which he
claimed, and which it appeared that the plaint-
iff had agreed to give, lor the purpose of re-
ducing the amount of his recovery ; but the
justice stated that he considered the plaintiff
bound by his agreement, and did not allow
any deduction. A verdict and judgment were
given in this cause for the plaintiff below, the
defendant in error.
Per Ouriam. The plaintiff's right to recover
anything upon the merits, in this case, inde-
pendently of the question in relation to the
former trial, is extremely dpubtful ; but he is,
at all events, barred by that trial. The same
matter was there properly given in evidence,
and the justice erred in not allowing a deduc-
378*1 lion *on that account, if sufficiently
proved. It does not appear, with certainty,
whetherflhe former trial was by jury or not ;
but is fairly to be intended from the justice's
JOHNS. REP., 14.
DOTY ». WILSON.
Pleading and Practice — Witnesses — Competency
of — Release — Voluntary Escape — Subsequent
Promise to Indemnify Sheriff, Valid — Past
Consideration Sufficient — Declaration— Special
Request.
A release given after the examination of an in-
terested witness, is too late to render his testimony
competent ; and where an objection is made at the
trial, and persisted in, to the sufficiency of a release,
the iudge ougrht not to direct the examination of
the witness to proceed, and that his testimony
should be relied on, if the party should afterwards
give a sufficient release.
But where a release has been objected to on ac-
count of some informality, and whilst another re-
lease is preparing, the Judge allows theexamination
to proceed without any objections being made by
the opposite party, this course is proper.
A promise to indemnify ft sheriff for a voluntary
escape already made, is valid.
Where a defendant taken on a ca. M. was allowed
to go at large by the deputy-sheriff, and the plaint-
iff in the execution having recovered judgment
ami list the sheriff for the escape, the amount of
which was paid by the sheriff, the defendant after-
wards promised to pay the same to the sheriff, such
promise will support an action, there being a moral
obligation on the part of the defendant, accom-
panied with an express assumption ; and he had,
besides, received a benefit by being exonerated from ,
In- liability to the original plaintiff, which is not
liable to the objection that it was a past eonsider-
tion, without a previous request, for the benefit to
the defendant, connected with his sulwequent ex-
press promise, is equivalent to a previous request.
A past consideration, beneficial to tin- <l«-f<'iidant,
to which he afterwards assents, is sufficient to sup-
port an action.
It is unnecessary to lay a special request in the
declaration, in all cases where the consideration for
the defendant's promise was executed.
Cltations-1 Cai., 19, 4W; 2Cai., 152; 7 Johns.. 88;
1 Saund.. 264. n. 1.
THIS was an action of at*»mprit. The dec-
laration contained the usual money counts,
and the defendant pleaded non assumpnt, with
NOTE.— < 'ontrart*— CAmstderatton — Moral atilioa-
tion an. See Bcntlcy v. Morse, i*»<l. 468. imte, ; Ehle
v. Judson, 24 Wend,, 97, note.
905
378
SUPREME COURT, STATE OF NEW YORK.
1817
notice of his discharge under the Insolvent
3 1 9*] Act of *1811. The cause was tried
before Mr. Justice Spencer, at the Washington
Circuit, in June, 1816.
At the trial, Simon Kittle was produced as
a witness on the part of the plaintiff, and testi-
fied that in the spring of 1810 he was deputy
of the plaintiff, who was then sheriff of the
County of Washington, and received a ca. sa.
issued out of this court, in favor of one
Stanton, against the defendant, for $179.67,
on which he arrested the defendant, who not
being able to pay the money, he voluntarily
permitted him to go at large, supposing
that he could, afterwards, take him and
commit him to custody. The defendant
objected to the competency of the witness,
who then produced a release from the
plaintiff ; and the sufficiency of the release be-
ing objected to, the judge decided in favor of
the objection, but allowed the witness to pro-
ceed in his testimony ; and if the plaintiff
should, afterwards, give a sufficient release,
then that the evidence should be relied on ;
otherwise it would be rejected. The witness
then further testified that on the 3d of June,
1814, after the plaintiff had paid the judgment
obtained against him by Stanton, for the es-
cape of the defendant, the witness saw the
defendant, and told him that he called, at the
request and on the behalf of the plaintiff, to
ask payment of the amount of the judgment ;
that the defendant said that he would go and
see the plaintiff, and settle the demand with
him ; that the debt belonged to him to pay,
and that he would pay it. The plaintiff hav-
ing proved the amount of the recovery against
him, the defendant offered in evidence his dis-
charge, bearing date the 25th of January, 1812,
which was rejected by the judge, who charged
the jury that, the defendant's promise to pay
the debt to the plaintiff was sufficient to main-
tain the action. That it was founded on a
precedent and valid consideration ; and that
they ought to find for the plaintiff the amount
which he had been compelled to pay. The
jury, accordingly, found a verdict for the
plaintiff, which the defendant now moved to
set aside.
Mr. Z. R. Shepherd, for the defendant. 1.
The witness Kittle was not competent without
a sufficient release ; and until that was exe-
cuted and produced, he ought not to be al-
lowed to testify. A release executed to a wit-
. ness, after he has given his evidence, will not
make him competent, or remove the objection
to his testimony.1
38O*] *2. There was no consideration for
the promise of the defendant. The voluntary
permission to the defendant to go at large, dis-
charged all liability on the judgment. The
judgment was satisfied in law. There was
nothing left to furnish a consideration. An
express promise can only revive a precedent
good consideration,* which might have been
enforced through the medium of an implied
promise. The sheriff is bound to pursue the
course pointed out by law, and if he deviates
he acts contrary to law ; he violates his duty,
and any promise of indemnity to him is void.
1.— Heyl v. Burling-, 1 Caines, 14.
2.— 3 Bos. & P., 249. 252, note ; Smith v. Ware, 13
Johns., 257, 259; Shippey v. Henderson.ante.p. 178, 180.
906
3. If the plaintiff is entitled to recover, it
can only be in a special action founded on the
promise. The declaration contains only the
general money counts.
Mr. Skinner, contra.
1. Kittle was a competent witness. He had
no fixed or certain interest in the event of the
uit. The objections went to his credit, not to
his competency. (Stockhamv. Jones, 10 Johns.,
21.) The case of Heyl v. Burling is very differ-
ent from the present. There the deposition of
the witness, taken before the trial, was offered,
and the release was after the witness had been
examined and his deposition taken. Here the
witness was released before his examination,
though the release was not deemed sufficient
at the time it was offered.
2. In Given v. Driggs, 1 Caines. 450, the court
decided that a bond given to indemnify a sher-
iff against an escape, which had already hap-
pened, was good. It is not a bond for ease
and favor, nor to induce the sheriff to do an
unlawful act.
3. There was a sufficient consideration to
support the promise. It is sufficient that the
party derives a benefit from the past consid-
eration ; there the law implies a previous re-
quest. (1 Saund., 264, note 1 ; 1 Str., 933 ; 3
Burr., 1671.) As if a man pays a sum of
money for another, who, afterwards, promises
to pay it, the promise is valid ; it being equiv-
alent to a payment on request. In the case of
Shippey v. Henderson, ante, 178, where the
defendant had been discharged under the In-
solvent Act, the court held that the plaintiff
might declare on the original cause of action,
and was not bound to declare specially on the
new promise.
THOMPSON, Ch. J., delivered the opinion of
the court :
As this case now appears before the court,
there is some difficulty with respect to the
competency of Kittle as a witness, when he
*'was. sworn and examined. There can [*38 1
be no doubt that a release given after the ex-
amination of an interested witness, comes too
late to validate his testimony. The witness
must be disinterested at the time of his exam-
ination. Unless the release is given before the
examination, it does not remove the influence
which the law presumes the interest has upon
the mind of the witness. (1 Caines, 19.) If
we are to understand the case as stating that
the defendant's counsel persisted in the objec-
tion to the witnesses being examined, until a
competent release was formally executed, and
that the judge directed the examination to pro-
ceed, de bene ease, the decision was incorrect.
But the case may well admit of the interpreta-
tion that there was some informality about the
first release that required correction ; and to
save time the judge permitted the witness to
be examined whilst the release was correcting,
and this without any objection on the part of
the defendant to the examination going on.
This, we think, is the light in which we ought
to view the case.
Considering Kittle a competent witness, his
testimony goes very fully to establish the
plaintiff's right to recover. The defendant
admitted to him, in the most unqualified man-
ner, that the debt paid by the plaintiff to Stan-
JOHNS. REP., 14.
1817
DKGEAR v. NELLIS.
ton, by reason of the escape, was to the de-
fendant's debt, and belonged -to him to pay,
and promised that he would pay it. TMW
acknowledgments and promises were made
after the plaintiff had paid the money t» Sum-
ton, and after the defendant had been dis-
charged uqder the Insolvent Act. If the
promise, therefore, was valid and binding, it
would not be affected by the discharge. And
being made after the escape, and not for the
purpose of procuring it, the promise was valid;
it falls within the principle laid down by this
court in the case of Given v. Driggt, 1 Caines,
460, that a bond given to indemnify against an
escape that has already happened, is good. If
a moral obligation to pay a debt is a sufficient
consideration to uphold a promise to pay it, as
was laid down by this court in Stewart v.
Eden, 2 Caines, 152, the circumstances attend-
ing this case are abundantly sufficient to raise
such a consideration, But the case does not
rest on this alone. Here is a real and substan-
tial benefit, resulting to the defendant from
this payment. He is exonerated from his lia-
bility to Stanton. Nor does, this case fall
iJHi*]*within the rule that makes void prom-
ises founded upon a past consideration, unless
moved by a precedent request.
No difficulty arises with respect to the plead-
ings. The declaration contains the usual
money counts, and of course a request is suffi-
ciently laid. It is laid down by the court in
Comstoek v. Smith, 7 Johns., 88, that it is not
even necessary to lay an express request in the
declaration in all cases of a past consideration.
Though the cases in which it is not required
are rather exceptions to the general rule, and
are those in which a beneficial consideration
and a request are necessarily implied, from the
moral obligation under which the party was
placed. We may here refer to the cases as
well collected in 1 Saund., 264, ». 1. It is
there laid down as the result of all of them,
that where a-party derives a benefit from the
consideration, it is sufficient, because equiva-
lent to a previous request. As where a man
pays a sum of money for me, without my re-
quest, and I afterwards agree to the payment,
this is equivalent to a previous request to do
so. If this be a sound and just conclusion
from the cases, it is directlv applicable to the
case before us. The benefit to the defendant,
connected with his express promise to pay,
must be deemed equivalent to a previous re-
quest. It was an adoption of the payment as
made for the benefit of the defendant, and a
subsequent ratification is equivalent to an
original command.
The opinion of the court, accordittf/ly, t«, that
ttic motion for a new trial must tx> denied.
Release to wltnet* after examination trill not make
hi# evidence w>mi»-tcnt. Cited In- -5 Wend., 58; 11
Wend., «63 : 3 Crunch, C. C., 64.
/VMMII.S. Suilififni-ji of cnnxblfratioil to xuiiport—
When iiifr-rrcil. Cited in-24 Wend, 99; 36 X. Y.,
«11;4I X.V., »iV'.:; K.,i •\,.,m\; };} Marl... 3ttS, 50H:-JI) Mart...
IKJ: 7 floe.. 4«0: 2 Hal). 587; 1 Hilt. .; :!!'.) ; 41 Mo., .108.
Atao cited In -42 Super.. 449; 4» Mich., 389.
has a family, and IB not a freeholder, according to
the provisions of the Act (sess. 38. ch. 53, sec. 7 ;
1 R. L., 393), he must offer proof of the fact at the
hearing of the cause, and if he waits until after
judgment has been rendered against him, he is too
hit.-.
It seems that the justice is bound to receive proof,
on the part of the plaintiff, to disprove the defend-
ant's exemption.
DEGEAR r. NELLIS.
Practice — Evidence of Exemption from Imprison-
ment it too Late after Judgment.
Where a defendant In a justice's court claims ex-
emption from imprisonment, on the ground that he
JOHNS. REP., 14.
Citation-l N. R. L.. 393.
1
N KRROR, on ccrtiarari to a justice's court.
After the court below was opened, for the
trial of this cause, the parties had a conversa-
tion relative to the belance due the plaintiff
below, who is the defendant in error, and it
was agreed that one Schram should settle the
amount, who calculated the balance at $19.02,
for which the justice, by *the express [*38J*
order and consent of the parties, entered judg-
ment. The defendant below then offered
proof of his having a family, and not being a
freeholder, to entitle himself to exemption
from imprisonment ; but it was rejected by the
justice as offered too late.
Per Curiam. There are no grounds what-
ever for reversing this judgment. The parties
agreed that the balance due the plaintiff should
be calculated by a third person, and the jus-
tice, by their order, and with their consent,
entered judgment for the amount. This was,
therefore, a confession of judgment in open
court ; and after it had been entered, the de-
fendant below offered proof of his having a
family, and not being a freeholder, to obtain
an exemption from imprisonment, according
to the provisions of the llth section of the
Act (1 N. R. L., 398), and this proof was re-
jected by the justice as coming too late. In
this the justice was correct. The Act declares
that if the defendant shall, on the hearing of
the cause, prove to the satisfaction of the jus-
tice, &c., he shall be entitled to the exemption.
The hearing of a cause must be considered as
at an end when judgment is rendered. It
ought to be upon the hearing, for the justice
might, and probably ought to hear evidence
offered on the other side showing the allega-
tion to be untrue.
Judgment affirmed.
LAMBERT v. HOKE.
Highway* — Statute Regulating Prirate Road —
Form of Action —
According to the true construction of the 20th
section of the Act to Regulate Highways (sess. 3B,
ch. 33), a person on whose application a private road
is laid out has the sole and exclusive right to use it,
unless tin- occupant of the land at the time when it
is laid out signify his intention to make use of it.
and may maintain an action of trespass on the
case, against the occupant of the land through
which it was laid out, or any other person making
us.- of it.
The pro|K>r form of action against a person using
a private road, by the party at whose application it
was laid out, is trespass on the CM-.-, ami not tn •spaas.
Where, in a justice's court, the plaintiff brought
an action of trespass on the euse, and in his declara-
tion fully set forth his eausr of action, to which the
defendant pleaded, the defendant cannot after-
wards object that the action should have been tres-
pass, and not case.
Citatlon-2 R. L.. 276, sec. 30.
907
383
SUPREME COURT, STATE OF NEW YORK.
1817
TN ERROR, on certiorari to a justice's court.
The defendant in error brought 'an action of
trespass, in the court below, against the plaint-
384*] iff in error, and declared for a tres-
pass and breach of close, in entering upon and
using a private road laid out across the land of
the defendant below, for the benefit of the
plaintiff below. The defendant pleaded the
general issue. At the trial, it was admitted
that the road had been laid out over the land
of the defendant, and regularly recorded, and
the plaintiff proved the use of it by the de-
fendant ; and also, that at the time when the
damages were assessed for laying out the road,
the defendant, on being asked by the commis-
sioners whether he intended to use the road
for any purpose, answered in the negative.
The defendant then objected to the form o'f
the action, that it should have been trespass
on the case and not trespass ; but the objec-
tion was disregarded, and a verdict and judg-
ment were rendered for the plaintiff below.
Per Curiam. The 20th section of the "Act
to regulate Highways" (2 R. L. , 276) provides
for laying out private roads, and declares that
"such road, when so laid out, shall be for the
use of such applicant .or applicants, his or
their heirs and assigns; but not to be converted
to any other use or purpose than that of a
road: provided always, that the occupant or
owner of the land through which such road
shall be laid out, shall not be prevented mak-
ing use thereof as a road, if he shall signify
his intention of making use of the same, at
the time when the jury or commissioners
are to ascertain the damages sustained by
laying out such road. " According to the
true construction of this section, the plaintiff
below must be deemed to have the sole and
exclusive right to use the road as a private way.
It was laid out upon his application ; the de-
fendant disclaimed all intention of using it,
and the damages must be presumed to have
been assessed accordingly. The plaintiff is
solely charged with the expenses of repairing
the road ; and the use of it by the defendant's
wagons was an injury, for which the law af-
fords a remedy. The most appropriate action
would have been trespass on the case; but the
right of objection was waived by the defend-
ant, by his joining issue, and consenting to go
to trial on the merits, after being fully apprised
of the grounds of the plaintiff's claim. The
judgment must be affirmed.
Judgment affirmed.
Cited in-3 Hill, 607 ; 4 Hill, 142 ; 4 Barb., 365.
385*] *ROWLEY
GIBBS, STANDISH ET AL.
Replevin — When Deft. Entitled to Damages —
Measure of — Appointment by Collector of
Customs.
In replevin, where the defendant makes avowry,
justification or cognizance, if the same be found for
him, or the plaintiff be nonsuited or otherwise bar-
red, the defendant is entitled to damages, under the
908
Act (sess 36,ch. 96 sec. 4; 1 R. L.,344), and the decrease
in value of the goods, from the time of the replevin,
and interest on their entire value, are a proper
measure of damages.
A Collector of the Customs may appoint persons-
inspectors, who dp not reside at a port of entry or
delivery within his district.
Citations— 1 N. R. L., 344 ; Stat., Hen. VIII., ch. 4;
2 Bac. Ab.. Costs, F; Cro. Car., 532.
THIS was an action of replevin, for taking
certain goods of the plaintiff; to which the
defendants pleaded«<?ra cepit,nnd in justification,,
that the defendants, Gibbs and Standish, as-
Inspectors of the Customs for the district of
•Champlain, and the other defendants, as their
bailiffs and servants, seized the goods as for-
feited to the United States, for a breach of the
Non-intercourse Law.
At the trial, before Mr. Justice Yates, the
taking of the goods was proved, and the de-
fendants proved the appointment of Gibb*
and Standish as Inspectors of the Customs for
the district of Champlain. The plaintiff pro.ved
that Gibbs and Standish resided at Granville,
as much as eight miles from Whitehall, where
were the navigable waters nearest to their
residence, and as much as one hundred mile*
from the port of entry at Cumberland Head,
in the district of Champlain; and insisted that
the Collector had no power to appoint inspec-
tors residing at any place but a port of entry
or delivery in his district ; but the objection,
was overruled. The defendants claimed dam-
ages for deterioration in the value of the goods,
from the time they were replevied, and interest
on their entire value since that time ; and the
judge, having decided that they were entitled
to damages, on account of the decrease in the
value of the goods, left it to the jury to allow
interest or not. The difference in value having
been proved, the jury found a verdict for the
defendants for $2,300 damages.
A motion was made by the • plaintiff to set
aside the verdict, and for a new trial.
Mr. Z. fi. Shepherd, for the plaintiff, con-
tended that, at common law, no damages. were
recoverable by the defendants in replevin
(Bac. Abr., Costs, F; Cro. Charles, 532 ; Gilb.,
165), and that the Act Relative to Replevins
gives damages only where the avowry or cog-
nizance is for rent. (1 N. R. L., 91, 95 ; sess.
11, ch. 5.)
Again; the Collector had no authority to ap-
point deputies or inspectors to reside anywhere
except at Cumberland Head, or a place of entry
or delivery; It is true Granville is within the
district of Champlain; but these officers are to
exercise their *powers on the water, [*386
and must reside at the port or place of entry
or delivery.
Mr. Skinner, contra, insisted that the charge
of the judge was correct; that the plaintiff was
entitled to damages. The Act Relative to
Costs is general, that every person making
avowry, justification or cognizance in replevin,
if the same be found for him, or the plaintiff
be nonsuited or otherwise barred, shall recover
his damages and costs. (1 N. R. L., 344 ; sess.
36, ch. 96: sec. 3.)
The inspectors were duly appointed, and
there is no law requiring them to reside at a
port of entry or delivery, or at any particular
place within the district.
JOHNS. REP. 14.
1817
BCLKLEY v. DAYTON ET AL.
THOMPSON, Ch. J., delivered the opinion of
the court:
The principal question in this case is, whether
any damages could be assessed for the defend-
ants. This will depend on the construction to
be given to the Statute (1 N. R. L., 344), which
declares that every person making avowry,
justification or cognizance, in any action of
replevin, if the same be found for him, or the
plaintiff l>e nonsuited or otherwise barred, then
such person shall recover his damages and costs
against the plaintiff, in like manner as the
plaintiff would have done if the same had been
found against the defendant. At common
law, the plaintiff, in replevin, if he recovered
at all, had a right to recover damages for the
unjust caption and detention of the property ;
and then, by the Statute of Gloucester, cost*
followed as a consequence of such damages;
but the defendant had no costs. The Statute,
7 Hen. VIII., ch. 4, of which dur Act is nearly
a transcript, was passed to, remedy this. Our
Act is, however, broader than the English
Statute, that being confined to replevin in par-
ticular cases. Our Statute is general, extend-
ing to all cases of replevin when the defendant
shall succeed in making out his avowry or
justification, or the plaintiff shall be nonsuited
or otherwise barred. (2Bac. Abr.. Costs, F.)
The case now before us is not only within
the words but within the reasons and policy of
the Statute, which was to prevent vexatious
replevins. (Cro. Car., 532, Jame* v. Tutney.)
If damages are at all recoverable, I do not see
what other rule could be adopted than the one
taken at the trial. It was no more than indem-
nifying the defendants for the actual injury
sustained, and unless they can recover these
387*] damages here, it may *be questionable
whether they can recover damages at all. At
all events, if a suit upon the bond given to the
sheriff for the prosecution of the replevin, and
the return of the goods should become neces-
sary, there can be no doubt that the plaintiff,
in this cause, may protect himself against any
claim for damages by reason of the decrease in
the value of the goods, and for which the
damages, in this case, have been allowed.
There is no foundation for the objection that
the Inspectors of the Customs, who made the
seizure in this case, did not reside at Cumber-
land Head. Such a construction of the law
would render it, in a great measure, nugatory
in so extensive a district as that of Champlain.
This point, though suggested, was not much
pressed on the argument. Judgment must, ac-
cordingly, be rendered for the defendants upon
the verdict as found by the jury.
Judgment for the defendants.
Cited in-5 Cow, 614 : 88 N. Y-. 480 ; 51 N. Y.. 587 ; 1
Hun, 428 ; 25 Barb.. 512 ; 8 Hoe., 492 ; 3 Sand., 644.
A release to a witness^, by one joint plaintiff alone,
is sufficient to restore his competency.
A release by a plaintiff to a witness of all demands
against the witness excepting such for which the
witness is liable in conjunction with the defendants
in the suit, renders him a com|x»tent witness for
the plaintiff, as he is thereby discharged from all
individual liability, and is not interested to support
tin- plaintiff's recovery against the defendants, ad-
mitting that the witness, and not the defendants,
was the person chargeable ; and if the witness were
liable as a partner, jointly with the defendants, still
the exception in the release does not affect his com-
petency, for in that case, if the plaintiff recovered,
ne would be bound to contribute his portion of the
recovery, and thus his interest is in favor of the
defendants, and against the party calling him.
Citation— 3 Johns.. 70.
BULKLEY AND WHEELER
DAYTON ET AL.
Partnership — Release by One Partner Binds AU
— Release, to Witness by one Joint Plaintiff —
Renders Witness Competent.
A release by one partner, of a debt due the firm,
is binding upon all the partners.
JOHNS. REP., 14.
was an action of assumpnl. The dec-
-L laration contained counts on a promissory
note, for goods sold and delivered, and the
common money counts.
At the trial, "at the Washington Circuit, in
1817, the plaintiffs sought to recover on the
promissory note mentioned in the declaration,
on certain agreements, respecting the sale and
delivery of goods, and on a demand for money
had and received bv the defendants, as the
agents of the plaintiffs, in the sale, in Canada,
of a quantity of lard, which had been intrusted
by the plaintiffs to the care and disposal of the
defendants. A variety of evidence was pro-
duced on both sides, but it is unnecessary to
state more than what related to the single point
decided by the court.
John Bowker was called as a witness on the
part of the plaintiffs, *who appeared [*388
and was willing to testify, but was objected to
by the counsel for the defendants, on the alle-
gation that the witness and Reynolds, one of
the defendants, were separately liable for the
plaintiff's claim on account of the sale of lard
in Canada. To obviate this objection, a re-
lease was produced and delivered to the wit-
ness. This release was executed only by the
plaintiff Bulkley, who was one of the partners
of the firm of Bulkley & Wheeler, and dis-
charged the witness from all claims which the
plaintiffs had against him, either alone, or in
conjunction with the defendant Reynolds, but
expressly excepted such claims as they might
have against the witness, in conjunction with
all the defendants. The release was objected
to because not executed by both the plaintiffs,
and the objection was allowed by the judge.
The plaintiffs voluntarily submitted to a
nonsuit, with leave to apply to the court for a
new trial.
The motion for a new trial was argued by
JftHTt Richardson and Wendell for the plaint-
iffs, and Mr. Z. R. Shepherd for the defend-
ants.
Several points were raised and discussed,
but as the court took notice only of the point
as to the rejection of the witness Bowker, it
is unnecessary to state the arguments of the
counsel.
Per Curiam. Upon the argument of this
case several questions were raised and dis-
cussed, which it will be unnecessary now to
notice, as we think the cause must be sent back
to another trial, because Bowker, a witness
offered on the part of the plaintiff, was ex-
cluded after being released. The objection to
the release, that it was not executed by both
909
388
SUPREME COURT, STATE OF NEW YORK.
1817
the plaintiffs, was not well founded ; one part-
ner may release a debt due to the firm. It is
a general principle of law, that when two have
a joint personal interest, the release of one
bars the other. (3 Johns. , 70, and cases there
cited.) Nor was this release void, or insuffi-
cient, by reason of the exception contained in
it. The witness himself made no objection to
being examined ; and after the'release, with
the exception which it contained, the interest
of the witness was against the party calling
him. He was interested to defeat the plaintiff's
claim altogether, for in that eveat, and with
the release he had, he was completely exoner-
ated from the payment of any part of this de-
389*] mand, in *every possible way, either
individually or with others. The defendants
objected to Bowker, because the plaintiffs
claimed, in this suit, money received for lard
sold in Canada, and for which, the defendants
insisted, Bowker and Reynolds were alone
liable. If this allegation was true, the witness,
before the release was given, was interested to
throw this claim upon the defendants. But
the release discharged him from any claim for
this money, either individually or with Rey-
nolds ; all the interest left was against the
plaintiffs ; for if they recovered in this action,
and Bowker was a partner with the defend-
ants, he would be bound to contribute his
share of the recovery. The motion for a new
trial must, therefore, be granted, with costs,
to abide the event.
New trial granted.
Cited in— 11 Wend., 663 ; 20 Wend., 220 ; 28 N. Y.,
234 ; 14 Barb., 610; 1 T. & C., 405; 2 Curt., 24.
GREEN v. FERGUSON.
Practice in Justice Court — Action against Officer
for False Return — Mitigation of Damages —
General Issue.
Where a summons was issued from a justice's
court against A, which the constable, by mistake,
served upon B, and returned the summons person-
ally served, and judgment was rendered against A,
for a penalty alleged to have been incurred by the
violation of a statute, in an action brought by A
against the constable, for a false return, the de-
fendant may show, in mitigation of damages, that
A had actually been guilty of the offense for which
judgment was rendered against him ; for, as the de-
fendant acted in good faith, the plaintiff ought not
to recover more than his actual damages, and hav-
ing alleged in his declaration that by the false return
he was prevented from making a defence, when he
had a good and substantial one on the merits, the
evidence in question is a proper answer to this aver-
ment.
In an action on the case, the plaintiff, under the
general issue, is bound to prove the whole charge
in his declaration.
Citation— 1 Chit., 486.
IN ERROR, to the Court of Common Pleas
of the County of Oneida.
The defendant in error brought an action on
the case against the plaintiff in error, in the
court below, for a false return by the latter, as
a constable, to a summons. The declaration
stated that on the 30th of May, 1811, a justice
of the peace in the County of Oneida, issued
a summons, directing the plaintiff below to
appear, to answer one Parke, who sued as well
me
for himself as for the overseers of highways
in the town of Rome, in a plea of $25 of debt,
which summons was delivered to the defend-
ant below to be executed ; that the defendant
did not summon the plaintiff to appear, but
on the contrary, on the return day of the sum-
mons, falsely and maliciously returned that he
had personally served it on the plaintiff ; thgt
such proceedings were had before the justice
that judgment was rendered *against [*3OO
the plaintiff ; that by reason of the neglect of
the defendant to summon him, and of his false
return, he was prevented from making any de-
fense before the justice, when, in truth, and
in fact, he had a good and substantial defense
on the merits, in the said suit, and did not owe
the sum for which it was brought ; and that
by means of such judgment he had been
obliged to lay out and expend divers large
sums of money, &c. The defendant below
pleaded not guilty.
At the trial, in the court below, it appeared
that the action brought by Parke against the
defendant, before the justice, was for the pen-
alty of $25 for drawing a seine in Fish Creek.
It was proved that the summons was indorsed
"personally served," and that the defendant be-
low had confessed that he did not serve the
summons on the plaintiff, but on one James
Ferguson, by mistake, supposing him to be
the plaintiff, Robert Ferguson. The defend-
ant below offered to prove that the plaintiff
had actually been guilty of drawing a seine in
Fish Creek, in the manner, at the time, and for
the purposes stated in the declaration in the
cause before the justice ; and that Fish Creek
was one of the streams mentioned in the Act
imposing a penalty for the offense for which
that suit was brought ; but the court refused
to admit the evidence. A verdict was found
for the plaintiff below.
The counsel for the plaintiff in error tend-
ered a bill of exceptions to the court below,
which being removed into this court by writ of
error, was submitted to the court without ar-
gument.
Per Curiam. The question is, whether the
evidence offered was admissible, in mitigation
of damages. Every consideration of justice
seems to be in favor of admitting the evidence
offered, if it can be done without violating
any principles of law ; for it is very evident,
from the testimony, that it was a mere mistake
in the officer, he having served the summons
on James Ferguson, supposing him to have
been the right person. The plaintiff is, un-
doubtedly, entitled to recover all the actual
damages he has sustained, but ought not to
recover more when the officer acted in good
faith. No rule of. law would have been vio-
lated in admitting the evidence offered. It
was, in fact, directly meeting and answering
one of the averments in the plaintiff's declara-
tion. The plaintiff alleges that he was, by the
false return, prevented from making any de-
fense, before the *said justice, when, [*391
in truth and in fact, he had a good and sub-
stantial defense on the merits in the said suit.
In this action the plaintiff's claim is founded
upon the justice and conscience of his case.
And therefore, whatever will, in justice and
conscience, according to the circumstances of
JOHNS. REP., 14.
1817
JACKSON, KX DKM., v. BUUTIS.
39!
the case, mitigate or bar the claim, ought to be
received in evidence. If the plaintiff sought
to recover more than bis actual damages, this
would clearly have been good evidence. The !
plaintiff, under the general issue, was bound
to prove the whole charge in the declaration.
(1 Chilly. 480.) The evidence was, at all
events, admissible in mitigation of damages,
and Ihe judgment must be reversed.
Judgment reverted.
JACKSON, ex dem. KINO KT At,.,
«.
BURTIS AND WOODWARD.
Wills — Dense to Tenants in Common — Part of
Tenant* at Etecutors — Potter to Sell is a
Power Coupled with an Interest — Sale by
Executors — Subsequent Conveyance to One of
Them Valid — Attorney— Privileged Communi-
cations.
Where a testator devises his real and personal es-
tate to several persons as tenants in common, some
of whom he appoints his executors, and impowers
them, or the major part of them, to sell his real
property, this is a power coupled with an interest:
that Is," the interest which the executors have as
denrtoocs ; and may be executed by the survivors or
the major part of them. t
Where several persons aw devisees and tenants in
common of land, which is sold by two of the exec-
utors and devisees, under a uower in the will of the
devisor, and afterwards one of the executors and j
devisees who made the sale, purchases from the
grants, and takes a conveyance of the land to him-
self absolutely, the title becomes vested in him sole-
ly, and his declarations that he held in common with
his co-devise** are insufficient to entitle them to re-
cover a portion of the land as tenants in common
with him.
An attorney or counsel, who, as the attorney or
counsel of one of the parties in a cause, has been
intrusted with papers by a third person, cannot be
called upon bv the opposite party to produce these
papers in evidence.
Citations-!* Johns.. 527 ; Stat. 21, Hen. VIII.,
eh. 4.
THIS was an action of ejectment for certain
premises situate in the City of New York.
The cause was tried before Afr. Jwtife Yates,
at the New York sittings, in November, 1816.
William Teller, John Kip and Lucas Kier-
sted were the patentees of a certain lot of land
in the City of New York, called the Negro
Burial Ground. William Teller survived the
other two patentees, and died, having made a
will, under which his four children, one of
whom was William Teller, the younger, the
ancestor of the lessors of the plaintiff, became
entilled lo the premises in quesiion. William
Teller, the younger, died in 1758, after making
a will, dated the 21st of July, 1753, by which
he devised all his estate, real and personal, to
his wife Mary, as long as she should remain
JiO2*] his widow, and after her *marriage or
decease, he devised the same unto his eleven
children, some of whom, or whose representa-
tives, were the lessors of the plaintiff, in equal
undivided portions. The will also contained
the following power : "I will and ordain that
my executrix and executors, herein named, or
some of Ihein, for and towards the perform-
ance of this my testament, shall and may, M
they, or some of them, shall think meet and
JOHNS. REP., 14.
convenient, at any time after my decease, bar-
gain, sell, alien and convey, in fee simple, any
or all of the land, messuages, tenement* and
hereditaments, of which I shall die seised in
any parts of the world, to any person or per-
sons ; and for the doing, executing and per-
fect finishing whereof, I do, by these presents,
give, grant, will and transfer to my said exe-
cutrix and executors, hereinafter named, or
some of them, or all. full power and authority
to grant, aliene, bargain, sell, convey and as-
sure, all or any of my lands and tenements,
and good and sufficient deed or deeds, convey-
ances or assurances in the law, to make, seal
and execute for the same, to any, person or
persons, and his or their heirs or assigns for-
ever ; hereby ordering and appointing that
no sale or safes be made without the knowl-
edge, consenl and approbation of my execu-
trix, as long as she remains my widow ; but
after her death or marriage, which shall first
happen, then the same to be sold al the dis-
cretion of my executors, or the major part of
them." The testator then appointed his wife
Mary executrix, and his sons, William, Jere-
miah, John. Jacobus, Isaac, and Gualterus,
and his son-in-law. Jacobus Buvs, ihe husband
of his daughter Mary, one of the devisees in
his will, his executors.
William, Jacobus and Gualterus Teller died
before the testator, and Mary, his widow, and
his son John Teller, died about a year after
his decease. Isaac Teller and Jacobus Buys
alone qualified a" executors. By a deed of re-
lease, dated the 8th of July,. 1760, between Jer-
emiah Teller, Isaac Teller and Jacobus Buys,
the only surviving executors, of the one part
(the deed, however, was only executed by Isaac
Teller and Buys), and Christiana Prevost, of
the other part, the grantors, as the executors
of the testator, and under the power in his
will, released to Christiana Prevost. in fee. for
the consideration of £'109 14*.. all the testator's
fourth part of the premises patented to William
Teller, the elder Kip, and Kiersted, the same
being in the possession of the relea«ee. by vir-
tue of a lease, bearing date the day *pre- [*35>#
ceding. Afterwards, by a deed dated the 10th
of May. 1765, from Christiana Prevost, and
four other persons, but only executed by
Christiana Prevost and two of the other grant-
ors, to Isaac Teller, the former, in considera-
tion of the sum of £150, released and quit-
claimed the premises to Isaac Teller in fee.
Evidence was given on the part of the plaint-
iff of some parol declarations of Isaac Teller,
subsequent to the deed of 1765. that the prem-
ises in question were claimed and owned by
him in common with the other children of the
testator.
During the trial the attorney for the defend-
ants was called as a witness on the part of the
plaintiff, and testified that he had been served
with a subpoena duce* terum. to produce cer-
tain papers at the trial of this cause, which he
had received as the attorney and counsel of
Henry R. Teller, in certain actions brought for
the recovery of certain parts of the Negro Buri-
al Ground ; and that Henry R. Teller, having
compromised with the defendants in those
suits, had left the papers with the witness, as-
the atlorney and counsel of the defendants in
this suit, and in other suits now pending, and
393
[SUPREME COURT, STATE OF NEW YORK.
1817
that he held them as counsel for the defend-
ants, and declined to produce them unless di-
rected so to do by the court. The judge de-
cided that the witness was not bound to pro-
duce the papers.
After the evidence was closed, the judge
charged the jury that the deed from the exec-
utors of William Teller to Christiana Prevost
was effectual to convey all the title of William
Teller in the premises in question ; and that
the deed and the deed from Christiana Pre-
vost and others to Isaac Teller, were conclu-
sive to show that Isaac Teller was not pos-
sessed of the premises as a tenant in common
with the lessors of the plaintiff or their ances-
tors ; and directed the jury to find a verdict
for the defendants, which was found accord-
ingly. The plaintiff moved that the verdict
should be set aside, and a new trial granted.
The case was argued by Messrs. Huntington
and Van Vechten for the plaintiff, and by
Messrs. Bnnckerhoff and H. Bleecker for the
defendants.
For the plaintiff, it was contended ; 1. That
the lessors of the plaintiff had made out a good
title to a part of the premises in question as
tenant in common with Isaac Teller, deceased.
The entry of one tenant in common is good
for all. (Wood. Ten. Law, 445.) The pos-
session and seisin of one tenant in common is
394*] the possession *and seisin of the oth-
ers ; for such possession is in support of the
common title. (2 Cruise's Dig., 552 ; 3 Cruise,
410, 550 ; 5 Cruise, 207.) The bare reception
of rents and profits by one will not amount to
an ouster. The entry of Isaac Teller is not to
be presumed adverse or hostile to the lessors
claiming under the will of William Teller. (3
Johns. Cas., 124 ; 9 Johns., 163 ; 2 Cruise, 539;
3 Cruise, 555 ; 1 Cruise, 14, 15.) His declara-
tions show in what character he entered and
held possession of the premises in question. (1
Johns., 159 ; Woodfall, 492 ; 4 Johns., 230.)
In Smith, ex dem. Tetter, v, Bunis, 9 Johns. ,
174, 179, 180, Spencer, J., says that one enter-
ing, claiming as tenant in common, under the
same title as that of the lessors of the plaintiff,
qualifies his entry, and admits the title of the
lessors. When the person entering evinces by
his acts and declarations that he does not mean
to usurp the possession to himself, but enters
in subserviency to the same title, as tenant in
common, the entry loses its adverse character.
So that neither Isaac Teller nor the defendant
can set up his entry as adverse to the common
title. Every presumption is in favor of a pos-
session, in subordination to the title of the
true owner. (9 Johns., 167; 12 Johns., 365.)
Can the defendants, being perfect strangers,
set up an outstanding operative title in Isaac
Teller?
2. The deed produced in evidence, on the
part of the defendant, did not bar the right of
the lessors of the plaintiff to recover. This
deed is executed by two of the grantors only,
and though described as executors of William
Teller, they do not sign as executors, but as
individuals merely. It should have been exe-
cuted by them in their capacity of executors.
(9 Co., 76 ; Ld. Raym., 1418 ; 1 Str., 705 ; 2
East, 142 ; 5 East, 148 ; 6 T. R., 176 ; 2 Bl.
Com., 306 ; 1 N. R. L., 78.) Again ; there
were seven executors named in the will of
912
William Teller, four of whom survived the
testator, and three were living at the time the
deed was executed, and only two of them
qualified as executors. Until the Statute of 21
Hen. VIII., ch. 4, those executors only who
qualified were authorized to sell, unless the
words of the will expressly gave the power to
some or any of the executors named. The
Statute of 21 Hen. VIII., ch 4, had not been
re-enacted here, and did not extend to the col-
onies, so that a mere naked power to sell could
not be executed where any of the executors
refused to act. It was not' until 1784 that the
Legislature passed an Act on this., subject.
The will gives only a bare authority to sell,
and where executors have a naked power, if
one of them dies, the power, at common law,
did not survive. (6 Litt., 113, a, 181, a;
3 Salk., 277; Pow. on Dev., 291-310; 6
Johns., 76 ; Shep. Touch., 448; Powell v. Pow-
ers, 294, 295 ; 1 Caines' Cas. in Error, 16 ; 3
Day, 384.) The death of John Teller, one
of the devisees, after the death of his mother,
destroyed the power of sale. (Shep. Touch.,
448, 449 ; 3 Day, 388.)
*At least a majority of the executors [*395
who survived the testator, ought to convey.
A deed, by two out of four, is not a valid exe-
cution of the power.
Besides, this is not one of the powers men-
tioned in the Acl^. It is not a devise to execu-
tors to sell ; but the devise is to the children.
Again ; the exercise of the power is discretion-
ary, not imperative. There was no trust to be
executed ; nor was it a power coupled with
an interest, nor was there an order of the tes-
tator to sell.
The recitals in the deed to Christiana Prevost
are no evidence against the lessors. (Peake's
Ev., 113, 114.)
3. The title set up is an outstanding in-
operative title under Christiana Prevost. It
does not appear that she ever was in posses-
sion of the premises ; and the possession taken
by Isaac Teller was after the deed, and in di-
rect hostility to it. There is no evidence that
the deed included the premises in question ;
and every presumption ought to be taken
against it, and in favor of the lessors.
Next as to the deed of Christiana Prevost
and others ; it is a mere quitclaim, and is exe-
cuted by three only of the five grantors named
in it. It was not acknowledged by the parties,
nor proved by the subscribing witnesses'; and
their non-productioii is not accounted for.
There was not that proof of its execution
which was required by the Statute ( Van
Schaick's ed. Laws, 83, ch. 216, sec. 4 ; 2
Greenl. ed. Laws, 99 ; 2 Van Schaick's ed.
Laws, 611 ; Phillips' Ev., 356, 357) to entitle
it to be recorded. Neither the words of the
Acts of the colony Legislature, nor the prac-
tice under those Acts, authorized the recording
of it. It ought not, therefore, to have been
allowed to be read in evidence. It does not ap-
pear that a possession of thirty years accom-
panied the deed ; nor, in fact, that the deed
was ever actually delivered to the grantee ;
but, on the contrary, the evidence shows that
it was delivered as an escrow.
Again ; Isaac Teller is estopped by his dec-
larations, as to the manner of his taking pos-
session, from setting up this deed in bar (9
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. BDRTIB.
395
Johns., 179, 180), and the defendant, either as | sion. If the plaintiff claims under the will of
a stranger, or claiming under him, is equally j William *Teller, he cannot maintain [*397
.stopped.
The grantee of the first deed is described as
the widow of David Prevost, deceased ; but
the grantors of the second deed are not de-
scribed as heirs of Christiana Prevost or of
David Prevost. If the first deed is void, the
second must be equally so, if connected as
parts of one title. Neither deed covers the
;{$MJ*] 'premises in question, but if they did,
the}- cannot bar the title of the lessors. (1
Vern., 478, 484 ; 5 Ves., 878, 682. 707 ; 8 Bro.
C. C., 120, 483; lVes.,9; 8 Ves., 343 ; 10
the action. The ancestors of the lessors of the
plaintiff, never having had an actual or con-
structive possession, could not transmit a title
to their heirs or descendants. (Runn. Eject
312; Co. Litt., 11 b.; 2 Wils., 47; 1 Cruise,
107. 108, sec. 10.)
The possession of a tenant in common is
founded in privity of estate, and cannot be
proved by parol. (9 Johns., 183, 185, 270; 6
Johns., 19; 7 Johns., 186 ; 10 Johns., 336, 858 ;
1 Johns. Ch. Cos.. 389 ; 8ug. Vend.. 418, 419.)
Parol declarations may be admitted to protect
Ves., 381. 885 ; 3 Ves., 750 ; 11 Ves., 611 ; 6 | the rights of a tenant ; but can never be re-
VM., 625, ». ; Roberts on Wills. 528, note ; 2 ceived to create a right ortitle to land. (Runn
Caiues' Cases in Error, 183 ; 8 Bro. P. C.. 68 ; Eject.. 193 ; 4 T. R., 234 : 1 Johns., 343 ; 1
Sug. Vend.. 890; 1 Madd. Ch., 98. 111.) i Esp., 458; 2 T. R., 53.)
Again ; Isaac Teller himself has, by parol, Again ; the co-tenancy ceased with the life
as well as by writing, admitted that these deeds of Isaac ; but if it did not, the continued pos-
were never intended to bar the title of the j session of Isaac is sufficient to afford the pre-
lessors. After the date of these deeds, and sumption of an ouster. (7 Johns., 249 ; Cowp.
217; Runn. Eject., 192.) Besides, the con
tradictory testimony of the plaintiff, as to the
after he had taken possession, he acknowl
edged, in 1767, to Crawford, that the land
belonged to his brothers and sisters ; and again,
in 1772 or 1773 he acknowledged that he took
possession for the heirs. At no time did he
pretend that the whole title waft vested in him
alone, or that he held by virtue of those deeds.
nature of the possession, must destroy its in-
tended effect.
2. The deed from the executors of William
Teller was sufficient to convey all his title to
the premises ; and this involves the question
It was
The receipt, too, given by Mr. Brinckerhoff as to the due execution of the power,
to Mr. Jay mentions a deed, dated the 14th of i executed, after the death of the executrix, by
May, 1765, signed by Isaac Teller, Jeremiah ! a majority of the executors then surviving,
Teller and .Jacobus Buys, as grantors, and j and by all the executors who had qualified.
Christiana Prevost is named the grantee, for fif
teen lots of tjie Negro Burial Ground.
This deed estops Isaac Teller and those
claiming under him from saying that the deeds
of the Hth of July, 1760 and 10th of May,
1765, vested the whole in Isaac Teller alone,
and devested. the other children of his father.
<l Johns. Cas., 153.)
This deed being called for by the plaintiff,
on a subpccna duce* tecum, and not being pro-
duced, every presumption in regard to it is to
be taken in favor of the plaintiff. (Bull. N. P.,
293 ; 2Peake's Ev.. 8.)
4. From the evidence, it is manifest that the
<leeds mentioned in the receipt of Mr. Brincker-
hoff, and which he was called on to produce,
had never been delivered to the grant<!es, but
were delivered merely as escrows. At any
rate there are so many circumstances of sus-
picion attending these deeds, that the court
will be disposed to give great weight to the
declarations of Isaac Teller, in explanation of
the transactions.
(Powell on Devises, 297 ; Cro. Eliz., 26 ; Dyer,
176 b, 219 a, 371 b ; Co. Litt., 118 a ; Cro. Eliz..
524 ; Moore, 341 ; 2 Leon., 220 ; 1 Anders.,
145 > Keilw., 45, 107, 108 ; Cro. Car., 882 ; 8
Binney, 69.) This question has been lately so
fully discussed in the Court of Errors, in the
cases of Franklin et at. v. Oagood et al. , on ap-
peal, in which the decree of the Court of Chan-
cery was affirmed, that it is enough to refer to
that cause, and the authorities there cited. If
the power survived, virlute officii, then it was
well executed, within the words of the will.
Its execution, however, by all the executors
who qualified, was sufficient. The Statute of
21 Hen. VIII., ch. 4, of which our Act is a
transcript (1 N. R. L., 366, sess. 36, ch. 8, sec.
11). declares that a sale by the executors who
take charge of the administration under the
will, shall be equally valid as if the other exec-
utors, who refuse or neglect to take upon
them the execution of the will, had joined in
the sale.
If the power of sale was well executed,
The opinion of the judge was incorrect, that j then the deed from those executors of William
Mr. Brinckerhoff was not bound to produce \ Teller was effectual to transfer his title ; and
the papers, mentioned in the receipt of the
10th of October, 1810. It is always a ques-
tion, whether, on principles of reason and
equity, the production of the writings called
for, under a subpcena duces tecnrn, ought not I others, are conclusive evidence that Isaac
to be enforced under the circumstances of the Teller was not, afterwards, in possession of
cane. (9 East, 86, 4o5 ; Phillips' Ev., 11, 12; 3 i the premises as tenant in common with the
Burr.. 1687 ; 1 Esp., 406.) I lessors, or their ancestor. As to the njanner of
5. The judge was incorrect, in charging the execution, it is enough to say that the execu-
jury that the deeds produced at the trial were \ tors must sign their own names, and the case is
the defendants have thus shown the title to be
out of the lessors of the plaintiff.
8. The deeds from the executors of W. T.
to Christiana Prevost, and from C. P. and
very different from that of an attorney acting
under a power to sell in the name of his prin-
conclusive to show that Isaac Teller was not in
possession as a tenant in common.
For the defendants, it was argued : 1. That cipal who is living. But it is objected that the
the lessors had not shown title, either by deed j deed was *not duly acknowledged or [*;M)8
or possession, sufficient to change the posses- i proved. It was proved by a witness present at
JOHNS. REP.. 14. N. Y. R., 5. 58 918
398
SUPREME COURT, STATE OP NEW YORK.
1817
its execution, through he was not a subsci ib-
ing witness. It was admitted as an ancient
deed accompanying and followed by the pos-
session. (Bull. N. P., 255, 256; 3 Johns.,
292 ; 2 Muu. Virg., 129 ; 1 Bay, 364; I Dall.,
14.) In Jackson, ex dem. Van Deuzen, v. Van
Deuzen, 5 Johns., 144, a will under proof of the
same kind, was held to be sufficiently proved
to allow it to go to the jury.
4. As to the objection that the attorney of
the defendants ought to have been compelled
to produce the papers in his possession, and
called for by the plaintiff ; if writings are in
possession of the opposite party or his attorney,
the proper course, in civil as well as criminal
cases, is to give the party or his attorney notice
to produce the originals at the trial, and if not
produced according to the notice, to offer evi-
dence of their contents. (Phillips' Ev., 337 ;
11 Johns., 245 ; 1 T. R., 203 n ; 3 T. R., 306 ;
3 Campb., 363 ; 1 Johns., 340 ; 12 Johns., 221;
2 Caines, 178.) An attorney is not bound to
disclose communications or produce papers in-
trusted to him by his client. (Phillips Ev., 1,
3; 8 Mass., 370; 3 Day, 499.)
PLATT, /., delivered the opinion of the
court:
The lessors of the plaintiff claim title under
several of the devisees in the will of William
Teller, dated the 21st of July, 1753, and rely,
also, on the subsequent possession and parol
declarations of Isaac Teller, one of those de-
visees.
The defendants show a conveyance of the
8th of July, 1760, from Isaac Teller and
Jacobus Buys, two of the three surviving exec-
utors of the will of William Teller, to Chris-
tiana Prevost, of the premises in question, in
fee simple.
The principal question presented by the case
is, whether the power to sell real estate, con-
tained in that will, was well executed in mak-
ing that conveyance to Mrs. Prevost.
At the time of executing the deed by Isaac
Teller and Jacobus Buys to Christiana Prevost
(the 8th of July, 1760), the testator and his
executrix, and his sons William, John, Jacobus
and Gaulterus were dead ; and Jeremiah
Teller, Isaac Teller and Jacobus Buys were the
only surviving executors named in the will ;
and it also appears that Isaac Teller and
Jacobus Blys were the only persons who
" took upon them the executioner administra-
tion of the will."
The executors who executed the deed were
devisees under the will, and had a direct in-
terest in the sale. This was, therefore, not a
naked power, but a power coupled with an in-
terest ; which, on common law principles,
survived to Jeremiah Teller, Isaac Teller and
Jacobus Buys, after the death of the executrix,
and the other four executors ; and I am of
399*] opinion that, independent *of any
statute regulation, the terms of the will, and
the intention of the testator, are best satisfied by
the construction, that the majority of the three
surviving executors might execute the power.
(Franklin et al. v. Osgoodet al., in the Court of
Errors, 1817, and the authorities there cited.)
In this case, the conveyance under the power
was executed by Isaac Teller and Jacobus
Buys (who were the only persons who took
W4
upon them the execution of the will, in any
respect), there being then only three surviving
executors. The conclusion, therefore, is, that
the power was well executed. This view of
the case renders it unnecessary to consider
whether the execution of this power, by the
two executors only who administered under
the will, can be supported by virtue of the
Statute of 21 Hen. VIII., ch. 4.
The deed from Christiana Prevost and others
to Isaac Teller, dated 10th May, 1765, was a
conveyance clearly devested of all trust ; and
under him the lessors of the plaintiff show no
written evidence of title. That deed shows an
absolute title in Isaac Teller, in his own right,
solely ; and repels the presumption of a
tenancy in common with his brothers and
sisters, which has been attempted to be raised
upon the loose testimony of his parol declara-
tions respecting the title. The defendants
have thus proved a title out of the lessors of
the plaintiff.
The only remaining question is as to the
decision of the judge, at the trial, that the at-
torney of the plaintiff was not bound to pro-
duce the papers called for, on a subpoena duces
tecum. It appears that Mr. Brinckerhoff first
received those papers, as attorney and counsel
for Henry R. Teller, and that Mr. Teller after-
wards "left the papers with the witness, as
the attorney and counsel for these defend-
ants." I can perceive no reason to doubt the
correctness of the opinion, that the attorney
was not bound to produce those papers.
Upon the whole case, therefore, the defend-
ants are entitled to judgment.
Judgment for the defendants.
Cited in— 15 Johns., 348 ; 4 Wend., 375, 560 ; 4 Demo.
403.
*HENRY v. CLELAND. [*4OO
Pleading — Declaration on Agreement — Breaches
Assigned — Omission of Material Part — Vari-
ance — Plea of Non est Factum — Oyer —
Demurrer.
In a declaration on an agreement, it is only neces-
sary to set forth such covenants, or parts of the
agreement, as relate to the breaches assigned.
If a material part of an agreement has been
omitted to be stated in the declaration, the defend-
ant cannot take advantage of the omission, as a
variance, under the plea of no nest factum, but must
crave oyer, and demur.
Citations— 6 East, 569 : 1 Chit., 302 ; Doug-., 642 ; 8-
Johns.. 410.
was an action of covenant, and was
tried before Mr. Justice Platt, at the
Steuben Circuit, in June, 1817.
The declaration set forth an agreement be-
tween the parties by which the defendant
covenanted, by a certain day, to build, finish
and put into operation a sawmill, to be erected
in the most advantageous situation, on the
River Conhocton, on lot No. 45, in the town
of Conhocton. Oyer was given of the agree-
ment, and the defendant pleaded non est
factum. The agreement given in evidence at
the trial corresponded with that set forth in
the declaration, in every respect, except that
JOHNS. REP., 14.
1817
RAYMOND v. LKNT.
4iO
in the former there was a note written over
the signature of the subscribing witness, in
the following words : " N. B. It is under-
stood between the aforesaid parties, that the
mill is to be seated on the east side of the
River Conhocton, near the south line of the
said lot, No. 45." The articles of agreement
were objected to on the part of the defendant,
on the ground that tltere was a variance, and
the judge holding that the variance was mater-
ial and fatal, nonsuited the plaintiff.
The plaintiff now moved to set aside the
nonsuit, and the case was submitted to the
court without argument.
Per Curiam. The only question at the trial
was as to an alleged variance between the
covenant declared on and the one produced in
evidence. It does not appear from the case
what was the breach alleged. So far as the
covenant appears to be set out in the declara-
tion, there is no variance. The variance stated
is in matter omitted to be set out in the declara-
tion. But if this is matter not necessary to be
set out. for the purpose of assigning the
breaches relied on, it is no variance. The
plaintiff is not obliged to set out the whole
argreement ; it is enough for him to state so
much as constitutes the agreement, the breach
of which is relied on. (6 East, 569.) If he
had undertaken to set it out. and a variance
appeared, a different question might be pre-
sented. (I Chitty, 802; Doug., 643) The
variance alleged in this case is omitting to
state in the declaration what appears in a note
to the agreement, more particularly designat-
4OI*] ing *thft place where the sawmill was
to be built. This may. probably, be consid-
ered a part of th*agrecmt>nt; ana if the breach
assigned was in not building ihesuwrnill in the
place agreed on. this might have been a mate-
rial part. But if the breach did not arise under
this part of the agreement, and we must pre-
sume, from the case, that it did not, then il
was unnecessary to set it out in the declara-
tion ; and is not set out. then there is no vari-
ance. This is an objection that ought not to be
encouraged. The defendant has not been sur-
prised. He had oyer of the whole agreement ;
and, if there was a material variance, he should
have demurred for that cause. Instead of
this, he has pleaded non estfattum. (8 Johns.,
410.) But there is no material variance. The
nonsuit must be set aside, and a new trial
granted.
Nea> trial granted.
Cited in -2 Donlo. Jivi; 3 Denlo. 389.
RAYMOND v. LENT AND LENT.
N<tte — Stiretif* — Instrument of Sure-
tyship Void — Dau not fonder Note Void.
Thf> defendant and A. a constablw. executed an In-
strument in writi.r.'. by which they agreed to pay
such sum of tnoivy as A snould become liable to
may ou account of executions delivered to him.
The instrument was in every ruspect conformable to
the Act (set*. 38, ch. 35, sec. 1 ; -' K. L.. Kit), except
that It was not sealed by the parties. A. liaving be-
come liable to the plaintiff for executions placed in
JOHNS. REP., 14.
his hands, absconded, and the defendants, supposing'
themselves responsible to the plaintiff, rave him
their promissory notes for part of his cltiim against
A ; held that the defect in the original security waa
no defense in an action on the notes ; that having1
signed the instrument, the defendants must be pre-
sumed to have known that it was not under seal,
and with a knowledge of the fact, they cannot
allege their ignorance of the law ; and that In vi u-r
given the notes voluntarily, they must be presumed
to have waived all objections to the form of the
security.
THIS was an action of tu*ump*U on two
promissory notes, executed by the defend-
ants to the p'laintiff, both dated the 16th of
March, 1816. one for $45.89, and the other for
$29.37.
One Briggs, on the first Tuesday of April,
1815, was duly elected constable of the town
of Cortlandt, in the County of Westchester,
who, with the defendants, by a certain instru-
ment in writing, jointly and severally, agreed
to pay to each and every person, such sum of
money as Briggs should become liable to pay,
for or on account of any executions which
should be delivered to him for collection.
This instrument was signed by Briggs and the
defendants, but was not sealed, as required by
the Act. (Sess. 36. ch. 35, sec. 1 ; 2 N. R. L.,
126.) The approbation of the supervisor to
the security was indorsed. Several executions
were afterwards placed in the hands of Briggs.
amounting *to $126, in favor of the [*4O2
plaintiff, for the whole of which Briggs be-
came liable, having collected part of them, and
suffering the others to run out without doing
anything thereon. In February or March,
1816, Briggs absconded, and the plaintiff hav-
ing demanded a settlement with the defend-
ants, they, supposing themselves liable, by
virtue of the instrument which they had signed,
for all the money which Briggs had become
liable to pay, came to a settlement with the
plaintiff, in pursuance of which they gave the
notes in question, and were released as to the
residue.
The case was submitted to the court without
argument.
Per Curiam. This action is founded upon
two promissory notes, drawn by the defend-
ants, and made payable to the plaintiff. The
objection set up by the defendants, to exoner-
ate themselves from payment, is, that the in-
strument by which they became security for
Briggs, the constable, was not under seal. In
every other respect the requisites of the Act
have been complied with, for the purpose of
making the defendants responsible as security
for the constable. Whether the defendants
would have been liable, had they been prose-
cuted directly upon the instrument signed by
them as security, is not the question here.
They, having signed this instrument, must be
presumed to have known that it was not under
seal, and being acquainted with the fact, their
ignorance of the law cannot be alleged by
them : and having voluntarily given the notes
in question, under these circumstances, they
must be presumed to have waived all objec-
tions to the form of the security ; and they
come to late. now. to set it up. The plaintiff
is, accordingly, entitled to judgment.
Judgment for the plaintiff.
915
403
SUPREME COURT. STATE OF NEW YORK.
1817
4O3*] *STEBBINS v. WILLSON.
Insolvency —Discharge of Plaintiff after Suit
Commenced — Judgment as in case of Nonsuit
Where a party, having1 commenced a suit, after-
wards obtains a discharge as an insolvent, and then
judgment, as in case of nonsuit, is rendered against
hiin for not going to trial, his discharge is not a bar
to an action to recover the costs on that j udgment.
Citations— 2 Johns. Cas., 280 ; 5 Johns., 135;
N ERROR, on certiorarito a justice's court.
I
The plaintiff in error brought an action
against the defendant in error, in the court
below, for the costs of a judgment of nonsuit,
in the Court of Common Pleas of Saratoga
County, in a suit commenced by the present
defendant against the plaintiff , in August, 1811.
In December, 1812, the defendant in this suit
was duly discharged as an insolvent, and in
August, 1816, judgment, as in case of nonsuit,
was rendered in the Court of Common Pleas
against the defendant, for not proceeding to
trial in the cause in which he was plaintiff.
The only question was, whether the defendant's
discharge was a bar to the action for these
costs. The justice gave judgment for the de-
fendant.
Per Curiam. The judgment must be reversed.
The judgment of nonsuit was entered after the
discharge under the Insolvent Act, and could
not, therefore, in any wise, be considered a
demand existing prior to the discharge. In
Cone v. Whitater, 2 Johns. Cas., 280, the judg-
ment of nonsuit was entered prior to the dis-
charge, but the costs were not taxed until after
the discharge ; it was held, even there, that
the costs were not a debt until taxation, and of
course not affected by the discharge. In the
case of Warne v. Constant, 5 Johns., 135, this
rule seems to be shaken. It is there held that
where the judgment of nonsuit is before the
discharge, although the roll may be signed,
and costs taxed afterwards, still the costs are
barred by the discharge. But, in the case now
before us, the judgment of nonsuit was ob-
tained after the discharge ; and no case has
been found where the costs, under such cir-
cumstances, are deemed to be affected by the
discharge.
Judgment reversed.
Cited in— Bdm., 189.
4O4*] *DAY AND PENFIELD
v.
LEAL AND LEAL.
Assumpsit — Collateral Security of Higher Nat-
ure does not Extinguish Simple Contract Debt
— Receipt for Bond and Warranty Sufficient
Evidence of their Existence.
A writing signed by the plaintiffs, in which they
admit the execution of a bond and warrant of at-
torney to them, and state the terms and conditions
on which they were given, is evidence, on the part
of the defendant, of the existence of the bond and
warrant, without producing them.
A collateral security of a nigher nature, as a bond
and warrant of attorney, on which judgment is en-
tered, does not extinguish the original contract, as
long as it remains unsatisfied.
Where the higher security is between different
parties, and for other debts besides the original one,
and not for the exact amount of the debt, it will be
taken that it was intended only as collateral.
Citations— 1 Chit. PL, 96 ; 3 East, 261 ; 2 Leon, 110 ;
Bac. Abr., tit. Extinguishment, D. ; 6 Cranch, 264.
was an action of assumpsit, and was
J- tried before Mr. Justice Platt, at the Dela-
ware Circuit, in June, 1817.
The plaintiffs gave in evidence two promis-
sory notes, payable to them, and executed by
the defendants, one for $1,951.61, and the other
for $279.46. The defendants offered in evi-
dence, under the general issue, in bar of the
action, the following writing : "Whereas Rob-
ert Leal (one of the defendants) has executed
to us (the plaintiffs) a bond, dated this day, for
$5,000, conditioned to pay $2,500, and also a
warrant of attorney of the same date, to enter
up a judgment : Now, therefore, it is agreed,
that if the said Robert Leal shall, within eight
months from this date, pay, by installments,
the amount due from Robert Leal & Co. (the
defendants), to Orvin Day & Co. (the plaintiffs);
also the amount due from Robert and David
Leal to Orvin Day& Co. ; also the amount due
from Robert Leal to Orvin Day ; also the
amount due from Leal, Foot & Co. to Orvin
Day & Co., then this judgment shall be
destroyed. July 17th, 1816. Orvin Day &
Co." This evidence being objected to, was
admitted by the judge, who permitted the
plaintiffs to take a verdict for the balance due
them, subject to the opinion of the court,
whether the evidence offered was admissible
under the general issue, and if admissible,
whether it was a defense to the action.
The case was submitted to the court without
argument.
Per Curiam. The receipt given by the
plaintiffs, which acknowledged the giving of
the bond and warrant of attorney by Robert
Leal to the plaintiffs, was sufficient evidence
of the existence of such bond and warrant,
without the production of them. This was not
barely a receipt for the bond and warrant, but
contained the terms and conditions upon which
they were given, and upon which the judg-
ment to be entered up thereon was to become
void. The question is, whether such bond was
an extinguishment of the simple contract debt.
We think it was not ; it is very evident it was
not intended by the giving of the bond to change
the nature of the debt. *It was not [*4O«5
between the same parties ; nor was it for this
debt alone, nor for the exact amount of the
notes in question. It was, therefore, only in-
tended as a collateral security ; and the taking
a collateral security of a higher nature, whether
from the principal or a stranger, does not pre
elude the creditor from suing on the first con-
tract, although judgment may have been
NOTE. — Merger— Higher security.
A higher security or judgment given as collateral se-
curity for a simple contract debt does not extinguish
it. Davis v. Anable, 2 Hill, 339 ; Hawks v. Hinch-
cliff, 17 Barb., 492 ; Butler v. Miller. 5 Den., 159 ; 1 N.
Y., 496 ; Sheehy v. Mandeville, 6 Cranch, 253 ; Charles
916
v. Scott, 1 Serg & R., 294: Smith v. Morrison, 3 A.
K. Marsh. ,81 ; Eby v. Eby, 5 Pa. St., 435 ; Hamilton
v.Quimby, 46111., 90.
Where the higher security is given by different par-
ties, or for a different sum, or the judgment is
against part of several joint debtors, it does not ex-
JOHNS. REP., 14.
1817
JACKSON. EX DEM., v. HOWE ET AL.
405
entered on such collateral security, if it remains
unsatisfied. (1 Chitty PL. 96 ; 3 East, 110;
Bac. Abr., tit. Extinguishment, D ; 6 Crancb,
264.) The bond, in this case, was for a round
sum ; and there was no way to ascertain the
real sum due upon it but by reference to the
original demand, which must, of course, be
deemed in existence, and in force. The plaint-
iffs are, accordingly, entitled to judgment for
the amount of the notes.
Judgment for the plaintiff*.
Cited in— t Cow., 575 : 5 Wend., 131 ; 15 Wend., 157=
18 Wend., 33rt ; 20 Wend., 20 ; 21 Wend.. 453 : 25 Wend.-
341; 2 Hill, 340; 5 Hill. 052; 1 Denio.411; 2 N. Y..511-
13 X. V.. iJ<W: 75 .V. Y.. 429 ; 1 Bos.. 416 : 1 Duer, 411 :
44 did.. 4&J : 10 Peters, 5AH ; 1 Blatchf., 339 ; 2 Paine.
197.
JACKSON, ex dem. AUSTIN ET AL.,
v.
HOWE ET AL.
Jbtafe* — Inheritance— Soldier'* Land Patent I*
»ued after hi» Death — Title. Deemed to have
Efuted in him at Time of Death — Heir* a#
Tenants in Common — Descent*.
A was a soldier In this State during the Revolu-
tionary War, ami was killed in 177H : B, bis brother,
was his heir at law. and died about the close of the
war, leaving C, his eldest son, and other children ; in
I x <~. .1 patent for a lot in the military tract was issued
to A : and in 1809, r eonWypd ajj his right in the lot
to D ; it was held in an action of ejectment by the
heirs of B to recover this lot. that by the Act (seas.
3«. eh. HO, sec. 1 : 1 N. R. L., 308), the title to the lot
was in A at the time of his death, without reference
t<i the time when the patent issued ; that as, by the
7th s» ciion of the same Act, the rules of descent es-
tablished by the Act (sess. 9, ch. 12), applied retro-
Bix-ctively to the cases within the 1st section, if B
had died before A. the children of It, on the death
of A, would, by the 5th Canon of Descents, have in-
herited the lot, as tenants in common : and if B,
surviving A, had died seised of the premises, all his
children would have been entitled as tenants in
common under the first Canon of Descents; and that
B, although never actually in possession, was to be
deemed to have died seised (a seisin in fact not being
required in the Case of wild and uncultivated lands',
and thus became a new stock of descent, so that the
conveyance of C (who. If A w ere to t>e deemed the
poraoo last seised, would be the heir at the common
law) could only operate on the right which he had
as one of the co-heirs of B.
Citations-1 N. R. L.. 303; 3 Cal., 6S; 2 Johns., 80;
Act, April 5, 1808 ; 8 Johns., 2*».
THIS was an action of ejectment, brought to
recover part of lot No. 73, in the township
of Geneva, late Milton, in Cayuga County.
The plaintiff, at the trial, produced in evi-
dence an exemplification of a' patent for lot No.
73, to Jeremiah Austin, dated October 7th,
1807 ; and the defendants gave in evidence the
record of a deed from J. Austin and Ruth, his
wife, to Cornell and Barton, for the same lot,
dated December 29th, 1805. It was then proved,
on the part of the plaintiff, that Jeremiah
Austin, the patentee, was a soldier in the line
of this State during the Revolutionary War,
and was slain in battle in the year 1778, leaving
*no other relative or heir at law than [*4O«
one brother named David Austin ; and that
David Austin died about the close of the war,
leaving six sons and two daughters, his heirs
at law.
The records of several deeds were then given
in evidence on the part of the defendant : 1.
A deed dated December 27th. 1806, from Mary
Jenkins, one of the daughters of David Aus-
tin, describing herself as heir at law to Jere-
miah Austin, to Cyrus M. Wheeler, for the lot
i in question. 2. A deed from Charles S. Austin,
! a son of David Austin, and a lessor of the
! plaintiff, dated the 30th of December, 1806, in
| which he describes himself the sole heir at
law of Jeremiah Austin, also to Cyrus M.
Wheeler. 8. A deed from Holmes Austin, the
eldest son of David Austin, and a lessor of the
plaintiff, dated July 8th, 1809, to Shadrach
Austin, for all his right in the lot. 4. A deed
from Samuel Austin, another of the sons of
David Austin, and a lessor of the plaintiff,
dated the 8th of July, 1809, to Charles S. Aus-
tin, for the lot. 5. A deed dated June 15th,
1811, from Charles S. Austin to Edmund
Lewis, for three and a half eighth parts of the
lot. 6. A deed dated the 15th of April, 1811,
from J. Austin to Qerit Harring, Abraham
Hairing and Martin Howe, for two hundred
acres of the lot, including the premises in
question.
A verdict was taken for the plaintiff, gener-
ally, subject to the opinion of the court, on a
case containing the facts above stated.
Mr. Richardson for the plaintiff.
Mr. Cody, contra.
SPENCER, J., delivered the opinion of the
i court :
The lessors of the plaintiff deduced a title
j under Jeremiah Austin, a soldier in the Revo-
; lutionary War, and produced letters patent,
j dated the 7th of October. 1807, for the lot in
j question, to Jeremiah Austin. It was proved
that he was slain in battle in 1778, and at the
the time of his death left no other relative but
one brother, David Austin, who died about
the close of that war, leaving six sons and two
daughters, several of whom are lessors of the
plaintiff ; and it was admitted upon the ar-
gument, and so the fact is. that if the objec-
tions made to the plaintiff's recovery are un-
founded, he is entitled to recover one moiety of
the lot; the 'defendants having shown [*4d5*
a title from the children of David Austin to
persons not leasers, to the extent of one half of
the lot.
The objection to the plaintiff's recovery is
this ; that the children of David Austin can-
not inherit through him, as he was not seised,
in fact, of the premises ; that they must make
title as hHrs of Jeremiah ; and then Holmes
tingnlah the debt. Bangs v. Strong. 4 N. Y.. 315:
Reedv. Gertv.B Bosw , 567 : Hawks v. Hlnchliff, 17
Barb., 493; Nicholson v. I>-iivitt,4 San. If., 252;
Jom-8 v. Johnson. 3 Watts Jc Serg.. 270; Gilman v.
K..., I... 22 Iowa, 5t»: Phillips v. Fitzpatriok, 34 Mo.,
21«: Mebone v. Spencer, 6 Ired., 423: Sawyer v.
White, 19 Vt., 40; Sharpe v. Gibbs, 16 Com. B. N. 8..
527.
Taking n higher neruritii In priina facie a merger of
the debt. FrUbie v. Lamed, 21 Wend., 450.
JOHNS. REP., 14.
A Hemrity of ryual degree does nut extinguish the
delit. unless given and accepted for that purpose,
(in-gory v. Thomas, 20 Wend., Cornell v. Lamb,
20 Johns., 407; Andrews v. Smith, 9 Wend., 53;
Hamilton v. Cat lender, 1 Pall.. 430; Yates v. Don-
aldson, 6 Md.. 3HB: Potter v. McCoy, 80 Pa. St., 468;
Wylly v. Collins, fl Ga., 223.
See. generally. Coo v. Hobby, 72 N. Y., 141 : Bed-
ford v. Terhune, 30 N. Y., 453; Clement v. Braush, 3
Johns. ( 'as., 180. note.
917
405
SUPREME COURT, STATE OF NEW YORK.
1817
Austin, the eldest son of David, was the sole
heir, and he having conveyed his right to the
lot to a person not named as a lessor of the
plaintiff, the plaintiff's claim was defeated.
The 1st section of the Act of the 5th of
April, 1803, re-enacted on the 8th of April,
1813 (1 N. R. L., 303), enacts that the title to
all lands, granted by letters patent to officers
and soldiers serving in the line of this State, in
the Army of the United States, in the late war
with Great Britain, and Who died previous to
the 27th of March, 17^3, shall be and thereby
is declared to have been vested in the said per-
sons at the time of their deaths respectively.
This court have had occasion to express a de-
cided opinion on the validity and operation of
this Act. (3 Caines, 62; 2 Johns., 80.) We
considered it free from any objection ; and that
the title was absolutely vested in the soldier,
at the time of his death, without reference to
the time when the letters patent, in fact, is-
sued. The letters patent are only evidence of
the grant ; and by force of the Act, the title
relates back to the period of the death of the
soldier.
The rule of descent established by the Act
" to Abolish Entails, to Confirm Conveyances
by Tenants in Tail, to Eegulate Descents, and
to Direct the Mode of Conveyances to Joint
Tenants," was by the Act of the 5th of April,
1803, and also by the Act of 1813, before re-
ferred to, declared to apply to and govern in
all the cases provided for by the 1st section,
except where the lands specified in any of the
letters patent therein mentioned, or any part
thereof, were, on the 5th of April, 1803, held
by bona fide purchasers, or devisees under any
person or persons who would have been the
heirs at law of the patentees, if that provision
had not been made.
In this case, it cannot be pretended that any
part of the lot in question was held under con-
veyance from Holmes Austin, the eldest son
of David, anterior to the year 1806. The con-
sequence is, then, that all the children of
David, under the fifth Canon of Descents,
would inherit as heirs of Jeremiah, as tenants
4O6'2*] *in common, such share as would have
descended to their father David, had he died
prior to Jeremiah. He, however, survived
Jeremiah ; and if he is to be deemed to have
died seised of the premises, then all his chil-
dren take, as tenants in common, under the
first Canon of Descents.
There can be no doubt that David Austin
was so seised of the premises, as that his heirs
may claim the inheritance through him.
This court decided, in Jackson v. Settick, 8
Johns., 269, that it was not necessary there
should be a possession, in fact, in the wife, to
entitle her husband to be tenant by the cur-
tesy ; and by the English law, it is as necessary
that the wife should be seised, to entitle the
husband to his curtesy, as that an ancestor
should be seised, to entitle the heir to the in-
heritance.
In the case referred to, the court held that
as to wild and uncultivated lands the owner is
deemed to be in possession, and that such pos-
session was a sufficient seisin in the wife to
entitle the husband to be a tenant by the
curtesy. We considered that the rule of law
which, in England, required a seisin in fact,
918
must be applied here, with such a limitation
as the peculiar state of lands in this country
required ; and that to consider the possession
as following the ownership, in the case of wild
and unimproved lands, was no departure from
the spirit and substance of the English law.
The principle of that decision governs this
case ; and therefore, David Austin must be
considered as having died seised of the prem-
ises : and consequently all his children inherit
in equal shares, as tenants in common.
Judgment for the plaintiff for one half of the
premises.
Cited in— 15 Johns., 345 ; 2 Hill, 305 ; 8 W. Dig.,
173 ; 99 U. S.. 167.
BLAKE t>. JEROME.
Tretpatf,
A person going or sending on the land of another,
and taking away his own property, is a trespasser.
Citation— 6 Johns., &.
N ERROR, on certiorari to a justice's court.
I
The defendant in error brought an action
against the plaintiff in error, in the court be-
low, for a trespass in entering into his field,
and taking away a mare and colt. The de-
fendant below *pleaded the general is- [*4O7
sue, and gave notice that the mare and colt
were his property. Upon the trial, it appeared
that they were taken out of the plaintiff's field
by a person who acted under the orders and
directions of the defendant, after they had been
demanded by the defendant, and refused to be
delivered to him, and after he had been ex-
pressly forbidden to take them. Each party
produced evidence to show property in him-
self, and the justice gave judgment for the
plaintiff below, the defendant in error.
Per Curium. The judgment must be af-
firmed. The evidence as to the right of prop-
erty in the mare and colt may be somewhat
questionable ; but the defendant below was,
at all events, guilty of a trespass in sending a
person on the land of the plaintiff to take them
away. (6 Johns., 5.) The action was, there-
fore, technically supported, and where the evi-
dence as to true ownership of the property is
so nearly balanced, the judgment ought not to
be disturbed.
Judgment affirmed.
Cited in— 15 Wend., 553 ; 9 Barb., 656 ; 38 How.
Pr., 326 ; 3 Daly, 135 ; 1 Hilt., 40.
JACKSON, ex dem. CADWALLADER R. COL-
DEN,
WALSH.
Wills — Probate of, while Government was in
Hands of the British— Is Valid— Must be Re-
corded— Exemplification of o.nd Certificate that
Will Cannot be Found — Sufficient Evidence in
Ejectment — Trustee as Purchaser of Trust Es-
tate— Not Void at Law — Bona Fide Pur-
chaser.
A probate of a will proved before the Surrogate
of the City and County of New York, in the year
1779, after the adoption of the present Constitution,
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. WALSH.
407
but whilst the City of New York was in the posses-
sion of the enemy, and the probate of which was
grunted by the deputy of the British Governor, ac-
cording to the practice under the colonial govern-
ni'-nt, la valid. being confirmed by the Act of the
10th of May, 1784 (1 L. N. Y.. Greenl. ed.. 121), pro-
vided the same be recorded in the office of the Judge
of probate* ! and by an Act of the 30th of March.
1799, the judge of the Court of Probates being re-
quired to deliver to the Surrogate of New York all
papers, records, Ac., appertaining to the Court of
Probates on the 1st of May, 17K7, except in certain
particular cases; and as the custody of the record
of the will in question belonged to the Surrogate of
the City of New York, by the last-mentioned Act,
an exemplification of the record of such will, Riven
by the Surrogate of New York, accompanied with
his certificate that the oriirinal will could not be
found in his office, is sufficient evidence of such
will, in an action of ejectment, under the Act Con-
cerning Wills (seas. 3H, ch. 23. sec. 21 ; 1 N. R. L., 368).
by which the exemplification of a record of a will
recorded in the office of the Judge of probates be-
fore the 1st of January, 1785, the original of which
cannot be found in his office, or that of the Surro-
gate of New York, is allowed to be read In evidence
in real or mixed actions.
Where a trustee becomes the purchaser of the
trust estate either himself or through the interven-
tion of a third person, the conveyance in such case
is not void at law, and the legal estate passes by it :
and although it is a rule in equity that a trustee
shall not purchase, yet such sale is not, ipso jure,
void in a court of equity, but will only be set aside
on the application of the c«*tui </ue tru#t, made with-
in a reasonable time. A purchaser for a valuable
consideration, without notice, has a good title, al-
though he purchased of one who obtained a con-
veyance by fraud.
Citations-1 N. R. L.. 368: 1 Oreenl. ed., 121, sec. 4 ; 2
Johns.. 236: 5 Johns., 48; 10 Johns.. 197; 13 Johns.,
222 and n.; I Johns. Ch., 533.
'PHIS was an action of ejectment brought to
L recover a lot of land, called No. 31, being
a part of a lot of one hundred acres, situate in
the town of Newburgh. The cause came be-
fore the court on a bill of exceptions taken at
the trial.
The plaintiff made out a title in Cadwallader
Golden, to the lot of one hundred acres, of
which the premises in question are a part,
4O8*1 *and the title of the plaintiff, by descent
from Cadwallader Golden, was admitted. The
defendant then gave in evidence a certificate
of Silvanus Miller. Esq., Surrogate of the City
and County of New York, under his seal of
office, dated the 19th of May, 1815, by which
lie certified that the record of the will of Cad-
wallader Golden, Esq., deceased, bearing date
the 20th of May, 1775, and republished the
7th of August, 1776, remained in his office,
and that the original thereof could not be
found in the said office, upon due and vigilant
search: all which is duly certified, according
to the directions of an Act of the Legislature,
entitled an Act Concerning Wills, passed
March 5th, 1818. The defendant's counsel
then gave in evidence an exemplification,
under the seal of the Surrogate of New York,
of the record of the will, &c., which set forth
the will and republication, with the proof,
ninde by one of the witnesses to the will, as
rupublinhed, on the 15th of March, 1779, be-
fore Gary Ludlow, Surrogate for the City and
County of New York ; the certificate of Carv
Ludlow, of the same date, stating that Cad-
wallader Golden and David Golden, two of
the executors of Cadwallader Golden, the tes-
tator, had appeared before him, and were
sworn to the true execution of the will, and a
probate of the will granted by His Excellency,
William Tryoo, Esq., Governor of the Prov-
JOHNS. REP., 14.
ince of New York, stating that the will was
proved before Gary Ludlow, ami allowing the
same ; that as the deceased had goods, chattels
and credits, within the Province^>f New York,
the proving and registering the will, and grant-
ing administration, belonged to him, the said
Governor, and granting the administration to
Cadwallader Golden and David Golden, two of
the executors named in the will. The probate
was dated on the 28th of April. 1779, and
signed, " by His Excellency's command, John
Moore, deputy." This proof was objected to
on the part of the plaintiff, but was admitted
by the judge. t
The will of CudwaUader Golden contained a
power, by which his executors, the survivor or
survivors of them, were authorized to sell all
or any part of his lands ; and the testator ap-
pointed his sons Cadwallader and David, and
his daughter Elizabeth, his executor* and exec-
utrix.. Cadwallader survived the other two
executors, and died in February, 1797, but pre-
viously, by deed dated the llth of August, 1795,
conveyed the premises in question, with two
other lots, Nos. 84 and 42, being part of the
lot of one hundred acres, as the sole surviving
executor of Cadwallader *Colden. his [*4O9
father, for the consideration of £141, to John
Dubois, as the highest bidder at public auc-
tion, on the preceding 7th of November ; and
also, lot No. 7, being a small water lot. Du-
bois. by deed of the same date as the one from
Golden to him, reconveyed the premises and
the other lots, also, for the consideration of
£141 . to C. Golden. Cadwallader Colden, the
son, by a codicil to his will, ordered the resid-
uary part of his real property to be sold by
his executors, by virtue of which power his
surviving executors, by deed bearing date the
15th of April, 1798, conveyed the premises in
question to Peter Gallation, in fee. who, on the
24th of December, in the same year, conveyed
them to Robert Gorman, in fee, who, by deed
bearing date the 1st of May, 1806, conveyed
the same to the defendant and his heirs.
The counsel for the plaintiff insisted that
the deeds from Colden to Dubois, and from
Dubois to Colden, were colorable and fraud-
ulent, as regarded the heirs and devisees of
Cadwallader Colden. the elder, and prayed
that the question of fraud might be submitted
to the jury ; but the judge decided that,
whether those deeds were fraudulent or not, a
perfect title was conveyed to Cadwallader
Golden, the son, so far as regarded a subse-
quent purchase, for valuable consideration.
The plaintiff's counsel also offered to produce
other evidence as to the alleged fraud, but the
judge decided that such evidence was irrel-
evant, and that, whether Cadwallader Colden,
the younger, was responsible as trustee
l>eyond the consideration expressed in his
deed to Dubois, was a question cognizable in
equity only.
Mr. Burr, for the plaintiff. 1. The probate
of the will of C. Golden was not such as en-
titled it to be read in evidence under the
statute. The Act (1 N. R. L.. 868. sess. 86,
ch. 23, sec. 21) says : "That the exemplification
of the record of any last will and testament
heretofore proved, and recorded in the office
of the judge of the Court of Probates in this
State, before the 1st of January, 1785, theorig-
919
409
SUPREME COURT. STATE OP NEW YORK.
1817
inal of which on due search, cannot be found,
&c. .shall be received and read in evidence," &c.
Cary Ludlow, before whom the probate was
taken, was not a judge of the Court of Probate
of this State. The mere probate of a will is not
evidence without the Statute. Courts of pro-
bate have no power as to wills in relation to
real estates ; it is only in relation to wills of
chattels that the probate is evidence. (1 Ld.
Raym., 154, 732 ; 3 Salk., 154.) A probate is
but a copy of the will. In Arthur v. Arthur
it was held that an exemplification of a will
41O*]*under the seal of the prerogative court,
the original being lost, was not admissible on
evidence. (2 Bro. P. C., 568 ; 6 Cruise's Dig.,
10, 11.) It is true that in collateral questions,
as to prove a pedigree, where hearsay or slight
evidence is admissible, the probate of a will
may be received.
Again ; devisavit vel non is always a question
of fact for the jury to decide ; but here the
judge himself decided upon it.
2. Cadwallader Golden, the surviving exec-
utor and trustee, through the intervention of
Dubois, purchased the lands. The deeds
from him to Dubois and from Dubois to him
are, in respect, to the heirs, fraudulent and
void ; and a court of law, as well as a court of
equity, takes cognizance of fraud. (10 Johns.,
457 ; 4 Bos. & P., 334.) A court of equity
may have a different or peculiar mode of giv-
ing relief, or detecting the fraud. But the
fraud being once shown, the deed is void and
inoperative at law, as well as in equity. A
person who stands in the relation of trustee or
agent, cannot purchase. This is the settled
rule of the Court of Chancery. (Ex-parte
Rennet, 10 Ves., 381, 401 ; M'Kemie v. York
Buildings, 3 Bro. P. C., 42.)
There can be no question as to notice. (13
Ves., 120; Sugd. Vend., 493.)
"A fraudulent estate," says Coke, "is as no
estate in the judgment of the law." (3 Co., 77.)
Mr. P. W. Raddiff, contra. 1. The Gov-
ernor of the Colony of New York was vested
with the powers of the prerogative court,
which he exercised by a delegate. (Brad. ed.
of Laws, 16th Act, llth Nov., 1692; 1 Van
Schaick's ed. Laws, 14.) The Constitution of
the State (art. 27, 35) recognizes the existence
of a court or judge of probates ; and the Act to
Organize the Government of the State, passed
the 16th of March, 1778, declares that the judge
of the Court of Probates shall be vested with
the same powers, &c. , as the Governor of the
State, when a colony, possessed as judge of
the prerogative court or Court of Probates.
(1 Greenl. ed. Laws, 18, sess. 1 ch. 12, sec. 3.)
The Act for Granting Relief to Heirs, &c.,
passed the 10th of May 1784 (1 Greenl. ed.
Laws, 119, sess. 7, ch. 59, sec. 4), declares
that all probates, &c. , granted by any person
or persons residing in the southern district of
the State, holding authority under the King of
Great Britain for that purpose, from and be-
tween the 15th of September, 1776, and the
25th of November, 1783, should be held valid.
The 35th article of the Constitution of the
State continues in force the Acts of the Colo-
nial Legislature, subject to such alterations
and provisions as the Legislature of the State
should, from time to time, make ; and the
Colonial Act on this subject was not altered or
920
repealed until the .20th of February, 1787. (1
Greenl. ed. Laws, 368, sess. 10, ch.*38, sec. 29.)
*Again ; by an Act passed the 10th [*4 1 1
of March, 1797 (3 Greenl. ed. Laws, 39, sess.
20, ch. 31), the Court of Probates, after the 1st
of June, 1798, was directed to be holden in the
City of Albany, and all the papers, books,
minutes, records, &c., appertaining to the
court, were directed to be removed from the
City of New York to the City of Albany. By
an Act passed the 30th of March, 1799 (2*d
sess., ch. 64), the judge of the Court of Pro-
bates was required to deliver to the Surrogate
of the City and County of New York all the
papers, books, minutes, records and docu-
ments belonging to the court, on the 1st of
May, 1787, except the original wills of persons
resident, at the time of their death, in the
middle, eastern and western districts of the
State ; and by an Act passed the 31st of
March, 1802, the expenses of removing these
records, &c. , was provided for and paid. The
original will, then, ought, according to law,
to have been in the office of the Surrogate of
the City and County of New York ; and not
being found there, after due and diligent
search, the exemplification or probate of it,
under the seal of the delegate or deputy of the
Governor of New York, must, according to the
provision of the Act Concerning Wills ~(N. R.
L., 364, 368, sess. 36, ch. 21), be received in
evidence.
2. A purchase by a trustee of the trust
estate is not absolutely void. None of the
cases to be found in the English books go that
length. It is true the counsel for the appel-
lant, in M'Kemie v. The York Buildings Co..
8 Br. P. C., 42, 63, contended that the sale
and purchase by the common agent, was, ipso
jure, void and null ; that his office, ex m term-
ini, inferred a natural disability to become a
purchaser ; that this was a principle of
universal law, founded in the very nature and
constitution of civil society. But Lord Ross-
lyn, in Whichcotev. Lawrence (3 Ves., Jr., 740.
750), speaking of M'Kemic's case, says that
was not the real sense of the proposition ; but
it was this, that he who undertakes to act for
another in any matter, shall not. in the same
matter, act for himself ; and therefore, shall
not gain any advantage by being himself the
person to buy. InFox v. Mackreth, 2 Br. Ch.
Cas. , 400, Lord Thurlow affirmed the decree
of the Master of the Rolls (Kenyon), by which
Mackreth was held to be a trustee of all the
estates purchased by him, for Fox, the plaint-
iff. The rule is to order a resale, and if the
property sells for more, the ceatm que trust
takes the surplus, otherwise the original sale
stands. The purchaser or vendor, in such
case, becomes a trustee, and has the legal
estate, which he holds in trust for the ceatui
que trust. In Campbell v. Walker, 5 Ves., Jr.,
678, the Master of the Rolls (Lord Alvanley)
said there was no general rule *that a [*412
trustee to sell could not be the purchaser, but
he will purchase subject to the equity, that if
the cestvi que trust comes, within a reasonable
time, and asks to have the sale, however fair,
set aside, the estate shall be resold ; and in the
case E/x-parte Reynolds, 5 Ves., Jr., 707, Lord
Eldon ordered the estates to be resold, and if
they did not sell for more, the vendee should
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. WALSH.
412
lie held to his purchase. The purchase was
set aside, conditionally, only in case the future
sale should produce" more. The cases Et-
parte Hughes, Ex-parte Lyon, & Litter v.
Luter(Q Ves., Jr., 617, 633), were decided on
the same principle. It is in the option of the
ct*tui que tru«t to have a resale or not ; and if
he does not elect to have a resale, the sale
stands good. In Sanderson v. Walter, 18
Ves., 60. the case of Campbell v. Walker, 5
Yes., 678, came again under consideration,
and Lord Eldon confirmed the rule laid down
by Lord Alvanley. The case Ex-parte Bennet
10 Ves., 381, is a strong case to show how far
a court of equity will go, in holding the
trustee to account ; but it does not affect the
doctrine that the legal estate remains in the
trustee, subject to the liability of a resale.
Oeneral Harris, who had acquired the legal
estate, was ordered to reconvey.
The same principle has been recognized and
laid down in our courts. In Munro v. Al-
laire, 2 Cai. Cas. in Er., 183. 192, Benson, J.,
who delivered the opinion of the court, does
not state the rule broadly and absolutely that a
trustee can never be a purchaser ; but he dis-
tinguishes the cases, and says that unless the
cfttni que tru»t interposes to disturb the sale, it
will stand. In Sheldon v. Sheldon. 13 Johns.,
8:30, the Chief Justice, in delivering the opinion
of the court, denies the rule to be, that where
a trustee becomes a purchaser, the sale is, tp»o
jure, void. 80, in Jackson, ex dem. M'Carty,
v. VanDalften, 5 Johns., 42, 43, the Chief Ju»-
tite said it was not a matter of course for chan-
cery to interfere and set aside the purchase,
as against the agent himself, and the purchase
would stand, i? the eestui que trust chose to
agree to the sale.
[THOMPSON, Ch. J. You need not enter
into a discussion of the doctrine of a court of
equity. The only inquiry for this court is
who has the leeal estate. The doctrine of
trusts is of peculiar equity jurisdiction.
Courts of law take notice of actual fraud ; but
these technical or constructive frauds are of
equity cognizance.!
If this court could set aside the sale, the par-
ty is too late for that purpose. He must come
within a reasonable time. ( Whichcote v. Law-
rence, 3 Ves.. Jr., 740 ; Sugd. Vend., 391. 405;
1 Cruise's Digest, 551, 552, Bergen v. Bennet,
1 Cai. Cas. in Er , 20. )
413*] *The effect of notice on the face of a
deed, or as to the construction of a statute,
belong equally to a court of law ; but where
it relates to a court of equity merely, or a con-
structive fraud, it is exclusively for a trust of
chancery, and the case of Jackson, ex dem.
Gilbert, v. Burgott, 10 Johns., 457, admits that
in the case of a bona fide purchaser, without
notice of the fraud, bis title is not affected by
the fraud of his vendor. As between the par
ties to the conveyance, it may be avoided on
the ground of fraud, but not so where a third
person has purchased, without knowledge of
the fraud.
THOMPSON, Ch. J., delivered the opinion of
the court :
It is not denied that the lessor of the plaint-
iff ha* shown title to the premises in ques-
tion, by descent from Cadwallader Colden,
JOHNS. REP., 14.
and is entitled to recover, unless the defend-
ant has made out a title derived from Cad-
wallader Colden. The first question that
arises, on the part of the defense., is, as to the
sufficiency of the proof of C. Colden's will.
I This proof consists of a certificate given by
! the Surrogate of New York, under the 21st
I section of the Act Concerning Wills (I N. R.
' L. , 868), accompanied with an exemplification
! of the record of the will. It is admitted that the
| certificate and exemplification are sufficient,
if the Act applies to a case like the present.
The Act declares that the exemplification of
the record of any last will and testament, here-
tofore proved, and recorded in the office of
the judge of the Court of Probate, before the
1st of January, 1785, the original of which
cannot be found in the office of the said judge
of the Court of Probate, or of the Surrogate
of the City of New York, shall be received
and read in evidence. The objection made to
i the proof is, that the will in question docs
not appear to have been proved before the
judge of probates, as the Act would seem to
• require, but before Cary Ludlow, Surrogate
i of the City and County of New York, on the
I 15th of March, 1779.
This was after the adoption of our Consti-
tution and the appointment of a judge of pro-
bates, and during the Revolutionary War, and
whilst the enemy was in possession of New
York. The probate of the will purports to
have been granted by John Moore, styling
himself deputy of Governor Tryon, which" was,
according to the practice of that day, under
the Colonial Act of the llth of November.
1692, which directed that the probate of all
*wills should be granted by the Gov- [*414
ernor, or such person as he shall delegate,
under the seal of the prerogative office, for
that purpose appointed. It is, therefore, very
evident that this will was duly proved and re-
corded, according to the practice under the
colonial government. By an Act of the 10th
of May, 1784 (1 Greenl. ed., 121, sec. 4), the
proof of wills, and granting of letters testa-
mentary, under circumstances like the present,
are confirmed. It declares that all probates
or letters testamentary, issued or granted by
any person in the southern district, under the
authority of the King of Great Britain, be-
tween the 15th of September, 1776, and the
25th of November, 1783, are confirmed and
made valid to all intents, constructions and
purposes whatsoever, in like manner as if the
said probates or letters testament ary had been
granted or issued by an officer acting under
the authority of this State; provided the origi-
nal wills, probates and letters testamentary
be recorded in the probate office of this
State, as in other cases where wills have been
proved according to law. The certificate and
exemplification, in this case, are from the Sur-
rogate of New York, and he is the person who,
by law, has the custody of the record in this
case, and in whose office the original will
would, by law, be found, if at all. on file. By
an Act of the 30th of March, 17»9. the judge
of the Court of Probates is required to deliver
to the Surrogate of New York, to remain and
be kept in his office, all the papers, books,
minutes, records and documents appertaining
to the Court of Probates, on the first of
921
414
SUPREME COURT, STATE OK NEW YORK.
1817
May, in the year 1787, except the original
wills of persons who were resident in the mid-
dle, eastern and western districts. From this
view of the seveial statutes in relation to this
subject, it is evident that the Surrogate of
New York is the person who, by law, has the
custody of the record of this will, and who
alone can give the certificate and exemplifica-
tion authorized by the statute, and which is
made competent evidence of the original will.
The will of Cadwallader Golden, therefore,
was duly and sufficiently proved.
It is not denied, on the part of the plaintiff,
but that a regular paper title was made out,
under this will, down to the defendant. It
appears, however, that Cadwallader Colden,
the second, as surviving executor of that will,
on the llth of August, 1795, conveyed the
premises in question to John Dubois, who, on
the same day, reconveyed them to C. Colden.
4 1 5*J It is contended that *Dubois was a mere
nominal purchaser, and the sale void, under
the rule which prevails in the Court of Chan-
cery, that a trustee or agent to sell shall not
himself become the purchaser.
It is unnecessary for me to go into an ex-
amination of the equity doctrine on this sub-
ject. No case is to be found where a court of
law has pronounced such a deed absolutely
void. The legal title undoubtedly passes, and
the rules and principles which govern the
Court of Chancery in such cases show that it
would be very unfit for a court of law to in-
terfere and set aside such conveyances. (2
Johns., 226.) Indeed, it is not the doctrine of
a court of equity, that such sales are, ipsojure,
void ; but that the trustee purchases subject
to the equity of having the sale set aside, if
the cestui que trust, in a reasonable time,
chooses to say he is not satisfied with it.1
There has been a lapse of nearly twenty years
since the purchase, and it may be question-
able whether a court of chancery would at all
listen to an application to set aside the sale. If
this sale is to be set aside, it is on the ground
of fraud, and there is nothing in the case to
charge the defendant with notice of the fraud.
It has been a long and well-settled principle
that a purchaser for a valuable consideration
without notice has a good title, though he
purchase of one who had obtained the convey-
ance by fraud. (5 Johns., 48 ; 10 Johns., 197;
13 Johns., 222 and note; 1 Johns. Ch., 533.)
So that in whatever point of light this case is
viewed, the plaintiff must fail.
Judgment for the defendant.
Cited in— 27 N. Y., 567 ; 2 Hun, 460; 20 Barb., 471 ;
34 Barb., 62; 38 Barb., 519 ; 7 Abb. Pr., 320; 12 Abb.
Pr.. 277 ; 1 Bos.. 670 ; 5 T. & 0., 71 ; 28 Mich., 109.
416*] *BILL
v.
THE PRESIDENT, DIRECTORS AND
COMPANY OF THE FOURTH GREAT
WESTERN TURNPIKE COMPANY.
Corporation — Action by Trial under General Is-
sue, Proof of Corporate Existence Necessary —
Special Contract.
1.— See Davoue v. Fanning. 2 Johns., Ch. Cos., 252.
270; Mowrey v. Walsh, 8 Cow., 238.
922
In an action by a Corporation on a contract, the
plaintiffs must, at the trial, under the general is-
sue, prove that they are a Corporation.
In an action by a Turnpike Company, the ap-
pointment of inspectors by the Governor, and the
certificate of the inspectors that the road was com-
pleted, and that gates were erected, are not suffi-
cient evidence of the existence of the corpora-
tion.*
Citations— 8 Johns., 378 ; 10 Johns., 156.
N ERROR, on certiorari to a justice's court.
I
The defendants in error.who were the plaint-
iffs in the court below, brought an action
against the defendant below, the plaintiff in
error, on a subscription, dated the 29th of
March, 1814, by which the subscribers prom-
ised to pay to the plaintiff $20, for each share
of the stock annexed to their respective names,
in such property as should be designated at
the time of subscribing, with a proviso that
the agreement was to be void if the road
should not be completed in the year 1815.
The defendant below subscribed one share,
in neat stock or grain. The defendant below
having pleaded the general issue, and denied
the existence, of any such Company, the only
evidence of that fact produced on the trial
was the appointment of inspectors by the Gov-
ernor (and that by proving his handwriting
only), and the certificate of the inspectors
that the road was completed, and that gates
were erected. The whole matter was submit- •
ted to the jury, who found a verdict for the
plaintiffs below for $20.
Per Curiam. The instrument subscribed by
the defendant is not according to the form
prescribed by the Act incorporating this Com-
pany. It must, therefore, be considered as a
special contract, and some doubt might be
raised with respect to the consideration ; but
it is unnecessary to notice it, for the plaintiffs
did not make out what was necessary to show
themselves duly and legally incorporated. It
is a well-settled rule, that when a Corporation
sues on a contract, they must, at the trial,
under the general issue, prove that they are a
Corporation. (8 Johns., 378.) In the case of
the Highland Turnpike Co. v. M'Kean, 10
Johns., 156. the books and minutes of the
Company, legally authenticated, were deemed
evidence of the proceedings of the Corpora-
tion. The evidence offered on the trial was
not sufficient, and the judgment must, accord-
ingly, be reversed.
Judgment reversed.
Cited in-5 Wend., 483; 8 Wend., 485; 49 Barb.,
265.
*ARNOLD, DUNCAN ET AL.
SANDFORD.
Infant must Defend by Guardian, not by Attor-
ney— Infancy at the Commencement of Suit is
Sufficient as Assignment of Error — Pleading
and Practice — Error.
A writ of error for an error in fact, lies from
this court to a court of common pleas, and this
court can issue a venire to try the error assigned.
*See Bank of Michigan v. Williams, 5 Cow., 482;
Welland Canal Co. v. Hathaway, 8 Wend., 480;
Bank of Utica v. Smalley 2 Cowen. 770, supra, 238.
JOHNS. REP., 14.
1817
ARNOLD ET AL. v. SANDFORD.
417
If an infant defendant appear by attorney, and
not by guardian, it is error in fact.
The infancy of the defendant is well assigned as
error, by averring him to have been an infant at
tin- time of appearance and plea pleaded, and not at
the time of the rendition of judgment.
Although a defendant who iwas an infant at the
time of app-arance and plea, may be deemed, bv go-
Ing to trial after arriving at his full age, to nave
waived the error, yet it cannot be taken advantage
of as a waiver on a demurrer to the assignment of
errors, unless the fact appear upon the record.
If judgment were not actually signed until after
the infant attains full age, this does not affect his
right to assign his infancy, as an error.
The assignment of errors should, it seems, state
that the infant was of a certain age, and no more,
l'iit the omission of the words "no more" is a mere |
informality, which must be specially demurred to.
A writ of error may be tested before judgment is
given, and it is sufficient if the judgment be given
before the return of the writ; and of this. It is not
the signing of the judgment roll, but the rule for
Judgment which forms the tost.
Although it appear by the record that the Judg-
ment roll was signed after the return day of the
writ of error, yet it will not be intended that the
writ of error was returned before judgment was in
fact signed ; it is sufficient if judgment were signed
before the writ was In fact returned.
An entire judgment against several defendants
cannot be reversed as to one and affirmed as to the
others.
When the defendant demurs to an assignment of
errors in fact, he may, after judgment against him
on the demurrer, withdraw it, and rejoin to the as-
signment of errors.
Citations— Cro. J.. 2fiO; 2 Lil. Ent., 490; 2 Tidd's
Pr., 1082 ; 1 Johns., 493 ; 1 T. K.. 280 ; 12 Johns., 431 ;
11 Johns.. 460.
IN ERROR, to the Mayor's Court of the City
of New York.
The defendant in error brought an action of
tugumpsit, in the court below, against the
plaintiffs in error, as bailees, for hire of cer-
tain horses, saddles and bridles, chairs and
harness, for going a different journey from
that for which they were hired, and for riding
and using the same improperly. The record
stated that the defendants had leave to imparl
until the third Monday of August, 1815, on
which day they, by their attorneys, pleaded
the general issue, and that the cause, after be-
ing continued until the third Monday of De-
cember of the name year, was then tried and a
verdict found for the plaintiff below, the de-
fendant in error. Judgment was signed on
the 9th of July, 1816. A writ of error was is-
sued out of this court, tested in January Term,
1816, returnable the next May Term.
On the first Monday of August, 1816, the
day granted to the plaintiffs in error on the
record to assign error, they assigned an error
in fact, that it appeared by the record of the
court below that on the third Monday of Au-
gust. 1815. in the Term of August, in the
court below, Duncan, one of the defendants in
the court below, by his attorney, appeared and
pleaded to issue ; nevertheless, at that time,
when by his attorney he appeared and plead
ed, he was under the age of twenty-one years,
that is to say, of the age of twenty years, four
months and twenty days ; in which case the
said Duncan, by the law of the land, could
not appoint an attorney to defend or plead for
him, but ought to have defended and pleaded
by his guardian : and because Duncan, being
under that age, defended and pleaded by attor-
ney, and not by guardian, there was manifest
error ; and concluded with a verification.
4 1 8*] *The defendant demurred to the as-
NS. REP., 14.
signment of errors, and the plaintiffs in error
joined in demurrer.
Mr. Mitchell, in support of the demurrer. 1.
If an error of fact be assigned in the court
above, the assignment of errors may be de-
murred to. Error in fact can only be assigned
in the court where it arose, and then on a
writ of error foram notri*. (Cro. Jac., 254.)
Every court which has power to try a matter
of fact, may recall its own judgment for error
in fact. Error in matter of fact is to be cor-
rected in the same court where the error is
committed ; not in the court above. In KnolT$
case. 3 Salk., 145, Holt, Ch. J., said it was be-
neath the dignity of a house of peers, to try mat-
ters of fact; and errors in fact, of any judgment
of the K. B. must be redressed there, and not in
Parliament. For error in fact, the judgment is
rerocetnr, that the former judgment be recalled,
annulled, &c. ; not as for error in law. rettrte-
tur. (Detrittv. Post, 11 Johns., 460; Tidd's
Pr., 1056, 1057, 1126; 2 Bac. Abr., 508; 2
Comyn. 600; 2 Cromp's Pr., 895; 2 Sellon's
Pr.. 531 ; 1 Str., 127, 607.)
This is an attempt to reverse the whole
judgment against all the defendants, on the
ground of the infancy of one of them ; and is,
t hen-fore. a case not entitled to the favor of the
court.
2. There is no record before the court ; the
assignment of errors is. therefore, bad, and a
demurrer is the proper mode of taking advan-
tage of the defect. A writ of error will not
remove a judgment given after the term in
which the writ of error is made returnable.
(2Ld Raym., 1179; Wilton v. Ingoldtby.) In
Canning v. Wright, 2 Ld. Ravm., 1531. a writ
of error was tested the 23d of October (12 Geo.
I.) and made returnable in Michaelmas Term
(12 Geo. I.); and by the record it appeared
judgment was not given until Hilary Term
following ; and the court held it to be clear
that the record was not well removed by the
writ of error ; and they refused a motion to
amend, contrary to the fact. There could be
no record or judgment roll while there was
nothing but mere rule for judgment, and no
judgment signed. The doctrine of relation is
nothing more than this — that what is done in
vacation relates back to the preceding term.
It is applied only in cases where an execution
has been issued for the purpose of defeating a
writ of error. Where, after a writ of error
was brought, the plaintiff's attorney artfully
delayed signing final judgment, until the writ
of error was spent, and then brought an action
of debt on the judgment, the court ordered
the proceedings to be stayed, and a new writ
of error to be brought at the expense of the
plaintiff's attorney. (Ardtn v. Lvmby, Barnes
250.) *In Jaque* v. Auvn, 1 T. R., [*419
279 ; 5 East, 145, the Court of K. B., on the
same principle, set aside the execution, con-
sidering the allowance of the writ of error as
It may be said, that instead of demurring,
the proper course would be to move for leave
to quash the assignment of errors. If so, it
might be pleaded in abatement ; and the de-
fendant may plead or demur. The assign-
ment of errors is in the nature of a declara-
tion, and is part of the record, and so a demur-
rer reaches a defect in the record. Should it
928
419
SUPREME COURT, STATE OP NEW YORK.
1817
be said that a demurrer admits the error, yet so
averse is the law to reverse a judgment, that
though the defendant confess the error, the
court will look into the record, and not re-
verse the judgment, until they are satisfied,
from an inspection of the record itself, that
the judgment is erroneous. (2 Bac. Abr., 487;
Tidd's Pr., 117, 118.)
3. The error assigned is, that Duncan ap-
peared and pleaded by attorney, in the Term
of August, being an infant ; that is to say, of
the age of twenty years, four months and
twenty days ; but it is not added that he was
no more, as is done in all the precedents. (2
Lilly's Ent., 490.) In December, four months
after, Duncan appeared, sui juris, by his at-
torney at the trial of the cause, and contested
the issue, thereby adopting the plea. This is
a waiver of the error in appearing. Infancy
must be averred, and proved or admitted. The
plaintiff cannot take issue on the averment of
the defendant's being twenty years, four
months and twenty days old, under the mde-
licit, for he might show that he was twenty
years, eleven months and ten days old. Ev-
ery averment in pleading must be precise and
positive. If the averment in the assignment
of error is true, Duncan was an infant when
he sued out the writ of error, and he is, though
an infant, prosecuting that writ of error. If,
then, the judgment below should be reversed
on the ground of the error in fact assigned,
the judgment of reversal would be erroneous;
for if an infant plaintiff sues by attorney, in-
stead of suing by guardian, it is error, though
judgment be given in his favor. (Cro. Jac., 4;
Cro. Eliz., 424; 1 Roll. Abr., 287, pi. 3; 2
Saund., 212, n. 5.)
If an infant commences by guardian, and
afterwards proceeds by attorney, it is a discon-
tinuance of the writ of error. In Carre v.
Barker, Cro. Jac., 250, which was error from
the Common Pleas, the error assigned was that
the defendant, being an infant, appeared in
the C. B, by attorney, and not by guardian ;
and being admitted by his guardian to assign
that for error, he afterwards proceeded by his
attorney, the entry being, at which day the
42O*] *said C., by his attorney aforesaid,
&c. , and this was adjudged to be a discontin-
uance of the writ. In no part of the record
does the infant here appear to be prosecuting
by his guardian.
4. Infancy is a personal privilege, and can
be taken advantage of only by the infant him-
self. The infancy of one defendant does not
take away the right of action against his co-de-
fendants ; nor can one defendant take advan-
tage of the infancy of his co-defendant. The
plaintiff may enter a nolle prosequi, as to the
infant, and proceed to judgment against the
other defendants. (Hartness v. Tlwmpson, 5
Johns., 160; Kirby, 114.) So, the judgment
may be reversed as to the infant, and affirmed
as to the other defendants. In England, where
a fine is levied by an infant and an adult, it
may be reversed as to the infant, and stand
good as to the adult.
Mr. Sampson, contra. In the K. B., where
there is a mistake of its process or error of its
clerks, the court will reverse, on writ of error,
though it be in the same term ; but in the
Court of C. B. the rule is different ; there the
921
court may correct its own errors of process or
mistakes of clerks, in the same term, without
any writ of error, but if the term elapses,
there must be a writ of error returnable to the
K. B. So, where there is an error in fact in
the K. B., it may be reversed in the same
court, by writ of error called coram nobis resi-
dent. (Fitz., N. B., 21, 49; 1 Str., 127.)
Though Comyn (5 Com. Dig., Plead., 695, 3
B, 1) says error in fact is examinable in the
same court, it must be understood in reference
to the K. B. only : and the cases he cites (1
Sid., 208 ; 1 Roll. Abr., 746, 747) show it to be
so. It was formerly doubted whether the K.
B. could reverse its own judgment (2 Leo., 74);
but, afterwards, upon great argument on writ
of error, it was decided that it could. (4 Cro.
Eliz., 106; Yelv., 157.) The reason given
why the K. B. should correct its own errors in
fact is conclusive to show that the C. B. can-
not correct its own errors of fact. The reason
given is, if the error could not be examined
and corrected in the K. B., it could be exam-
ined nowhere ; for it is not consistent with the
dignity of the Court of Parliament to take
cognizance of matters of fact ; and it cannot
be done in the Exchequer Chamber, for it is
not within the Stat. of 27 Eliz.,ch. 8, allow-
ing writs of error from that court to the
K. B.
There are numerous cases to be found in the
books of writs of error to the C. B., to reverse
a judgment in that court for an error in fact.
In Dennis v. Dennis, 2 Saund., 308; 1 Burr.,
410, the error in the C. B., for which the writ
was brought, was the appearance of an idiot,
by attorney. Sergeant Williams, in his note
to Jaques \.Ccesar, 2 Saund., 101 a, n. 1, puts
*the very case of an infant appearing [*421
by attorney, as an example where an error in
fact is only examinable in the K. B. or the
same court on writ of error.
It is a mistake to call this a writ of error
coram nobis or coram vobis. There is no such
writ as a writ of error coram vobis to the Court
of C. B. to examine anything. The writ of
coram nobis is to the K. B. only, and is distin-
guished by leaving out the certiorari part,
there being nothing to remove. The writ of
coram nobis resident is to the C. B., but it has
the certiorari clause, and it lies only where the
writ de errore, &c. , has been quashed for some
variance, and this second writ recites the for-
mer, and is allowed generally in court, and
commands the inferior court to return the
record, still remaining before them, to the K.
B. In Walker v. Stokoe, Carth., 367. where
the writ of error was quashed in the K. B.,
two writs of error coram vobis resident were
successively issued, the first being wrong.
(See, also, Cro. Jac., 254.) There is also this
difference between the writ coram vobis resi-
dent and the writ de errore, that the latter is
not, of itself, a supersedeas, and, therefore, a
motion was made that it should be a super-
sedeas, which was allowed by the court. In
that case, too, the error assigned was an error
in fact, the death of one of five defendants be-
fore verdict. And this writ of coram vobis
issues only where the writ de errore is quashed
for variance ; for in other cases, though the
writ be quashed, the record, being once re-
newed, remains in the K. B., and a new writ
JOHNS. REP., 14
181?
ARNOLD ET AL. v. SANDKORD.
421
of error may issue in the nature of a writ of
mandamus.
A writ of error lies only for some defect in
substance, not aided by common law, nor
amendable by the Statutes of Jeofails. (1
Roll. Abr., 748; Fitz. N. B., 21, 49.) Now,
where an infant plaintiff appears by attorney,
it is aided where the verdict is for him ; but
where an infant defendant appears by attor-
ney, it is aot cured by the Statute (1 N. R. L.,
19) ; and, therefore, he may have his writ of
error.
Again ; though the assignment of errors
does not btate that the defendant was an in
fant at the time judgment was rendered, as
well as at the time the plea was pleaded, it is
enough. It may be that he came of age after
the verdict. The gist of the error is his ap-
pearing and pleading by attorney, and not by
guardian. The mischief is in the verdict and
judgment in such a case. All the precedents
are so ; in none of them is the age of the de-
fendant at the time of rendering the judgment
insisted on. The error always insisted on is
4-22*1 his appearing and pleading *by attor-
nev (1 Roll. Abr., 287, pi. 1. 2; Ib., 747, 776;
Liber Intrand., 288; Cro. Eliz., 569 ; Moore,
460 ; 2 Leo., 189 ; Cro. Jac.. 254, 274, 289 ; Sir
Wm. Jones. 432; Styles Pr. Reg., 288; Tidd's
Pr.. 105; 9 Co., 30 6; Modut Intr., 284; 2
Johns.. 192; 2 Saund., 101 a, n. 1); but it does
appear sufficiently that he was an infaut at the
time of rendering the judgment below, for it
is averred that on the third Monday of Au-
gust, 1815, he was twenty years, four months
and twenty days old, so that he came of age
in April. 1816,* and judgment was rendered in
December preceding* These facts appear on
the record, and there are admitted by the de-
murrer.
Again ; it is said that suing out the writ of
error by attorney is a waiver of the error.
The writ of error is the beginning of a new
suit, in which the party seeks to be restored to
what he has lost. He has done no act in the
court below since he appeared there as an in-
fant.
Again ; it is objected that the averment of
the precise age is under a videlicet; but it is
either immaterial or material ; if material, it is
not the less so on that account. (1 Chitty PI.,
307.)
The reason of the decision in Carre v.
Barker appears from the Book of Entries, 868.
After the defendant brought his action, by
guardian, he appointed an attorney in the
same suit, though still an infant. It was no
longer the same person before the court nor
the same suit, and was, therefore, a discon-
tinuance.
But it is said that as the writ of error was
returnable before the judgment below was
rendered, the record is not removed. The
judgment is of . December Term, 1815, before
the writ of error issued, and though the plaint-
iff may have delayed to sign judgment in
order to defeat the writ, the court will not
sanction it, or allow the plaintiff to take ad-
vantage of his own delay, to the injury of the
defendant. In Regindw v: Randtnph, 2 Str.,
834, the writ of error being returnable before
judgment was quashed, and the plaintiff in
error paid costs, because he had used the writ
JOHNS. REP.. 14.
after it had expired ; but the court said thai if
the defendant in error had entered contin-
uances, on purpose to defeat the writ of error,
they would have made him pay costs.
A writ of error bearing te*te before the judg-
ment i>< good, provided judgment is given be-
fore the return of the writ : the judgment re-
fers to the first day of term, and a writ of
error returnable after that day will remove the
record, whenever the judgment is signed. (2
Saund., 101 d. n»te.) But though the writ be
irregularly sued out, and liable to be quashed
in the court above, yet the record is removed,
if it is rightly described, and it remains in the
court after the writ is quashed. (2 Saund.,
100, n. 1.) Appearance cures all errors and
defects of process. (Barnes, 163, 167 ; 3 Wils.,
141 ; Lut, 954; Jenk. Cont., 157.)
The signing of judgment relates back to the
^ first day of the *term in which judg- [*42J*
' ment was given ; and where an attempt is
made to keep back the judgment to avoid the
effect of a writ of error, the court will set
aside the execution. (I T. R., 279; 5 East,
145.)
Again ; it is said the judgment is to be re-
called or reversed, so far only as it is erro-
neous. But here the judgment is one and en-
tire, and if reversed as to one defendant, it
must be so as to all. (Cro. Jac., 274. 803. 289 ;
Roll. Abr., 776; 2 Saund.. 101 /, n. ; 1 Styles
P. Reg.. 288; 1 Lilly's Abr., 715, 716 ; 2 Bac.
Abr., 500. Error, M; 2 Saund., 213, 319;
Styles, 408.)
THOMPSON, Oh. J. , delivered the opinion of
the court :
The first question raised on the argument is,
whether error in fact can be assigned, on a
writ of error, coram mbi«. It was contended
that error in fact is only to be corrected in the
same court where the cause was commenced,
by a writ of error coram nobix. This is cer-
tainly against what has been the universal
practice with us, as to writs of error to in-
ferior courts, and we apprehend the objection
has no foundation in principle It is true we
find it laid down in the English books that for
error in fact a writ of error will not lie from
the Exchequer Chamber or the House of
Lords, but the reason assigned for it shows
that no such rule can apply to this court.
Error in fact must be tried by a jury, and no
such trial can take place, either in the House
of Lords or in the Exchequer Chamber. Hence
the necessity of a writ of error roram nobu.
Although in England error in fact may be
tried on a writ of error coram nobit, in the
Common Bench, yet we find that error in fact
is assigned, sometimes, on a writ of error from
K. B. to the C. B. The case of Carre v.
linrker, Cro. Jac., 250. is one of this^descrip
tion ; and infancy was the error there as-
signed. This court can issue a renire for a
jury to try the fact of infancy. There can,
therefore, be no reason why this error should
not be corrected here.
It is said, however, that the error is not well
assigned to this case, because it only avers the
infancy at the time of appearance and plea
pleaded ; whereas the averment should have
been, that he was an infant at the time of the
rendition of the judgment. This position does
92.-,
42S
SUPREME COURT, STATE OF NEW YOKK.
1817
not seem to be supported by any adjudged
cases ; and it is not warranted by the prece-
dents. (2 Lilly's Ent., 490.) The reason urged
why the infancy should be referred to the
time of the rendition of the judgment, is, be-
cause the appearance and defending the cause,
after the party attained his full age, would be
a waiver of the error. Admitting that such
appearance and defending the action would be
a waiver, that could not be taken advantage
424*] of on this demurrer, unless *the fact
appear from the record, and therefore admit-
ted by the demurrer. No such fact appears.
The time when the judgment roll was made
up and filed cannot, certainly, affect the ques
tion as to a waiver. It must, if at all available,
be the appearance and defending the action at
the trial ; and at that time Duncan had not
attained his full age, as is to be collected from
the record. He was twenty years, four
months and twenty days old on the third
Monday in August, 1815; the trial appears to
have been in December following, and the
rule for judgment must have been entered at
that time, according to the course and practice
of the courts of common pleas.
In assigning the infancy as error, there may,
perhaps, be an informality, in not alleging
that Duncan was no more than of the age -set
forth. This, by the precedent before referred
to from Lilly, appears to be the form. But
I apprehend this is an informality that would.
at all events, require a special demurrer. The
assignment of error alleges that he was, at the
time of appearance and pleading, under the age
of twenty-one years, to wit : of the aga of
twenty years, four months and twenty days.
This would seem to contain, in substance,
everything that was material and necessary.
There is no foundation for the objection
that the writ of error was sued out before the
judgment was rendered in the court below.
The rule for judgment must have been in De-
cember, 1815 ; and the writ of error was not
sued out until the January following. A
writ of error may be tested before judgment is
given. It is sufficient if the judgment be given
before the return of the writ. This is the usual
course for preventing execution. (2 Tidd's
Pr., 1062 ; 1 Johns., 493.) It is not the1 sign-
ing of the judgment roll, but the rendition of
the judgment which forms the test. The sign-
ing is the mere authentication of the judg-
ment. In the case ofJaques v. Nixon, 1 T. R. ,
280, it is admitted to be the settled practice to
sue out a writ of error before judgment is act-
ually signed. It cannot be true, in fact, as
was suggested on the argument, that the writ
of error was returned and filed before the
judgment in the court below was actually
signed ; at least, that is not to be intended
from anything appearing on the demurrer
book. The judgment, it is true, appears to
have been signed in July, 1816, and the writ
of error to be returned in the preceding May
Term of this court. But if the return, in point
of fact, was made in the May vacation, it
would relate back to the term ; and it cannot
425*] be intended that the *record was
signed after the writ of error was, in fact, re-
turned and filed in this court, with the record
of judgment in the court below annexed to it.
We cannot reverse the judgment as to Dun-
026
can, and affirm it as to the others. Where the
judgments are distinct, we may reverse in
part and affirm in part, as in cases of damages
and costs ; but when the judgment is entire,
there must be a total affirmance or reversal.
This point was settled in this court, in the
case of Richard v. Walton, 12 Johns., 434.
According to the case of Dewittv. Post, 11
Johns., 460, judgment of reversal, for error in
fact, is revocetur. The defendant may, there-
fore, if he chooses, have leave to withdraw his
demurrer, and rejoin to the assignment of
errors.
Judgment accordingly, with leave, &c.
Common Pleas— Jurisdiction— Power. Cited in—
20 Johns.. 24; 3 Leg. Obs., 289.
Judgments affirmed or reversed in part. Cited in—
5 Wend., 341 ; 2 Hill. 334 ; 1 Demo, 655 : 9 N. Y., 234 ;
1 Barb., 557 ; 10 Barb., a53 ; 8 How. Pr., 379 ; 10 How.
Pr., 370 ; 4 E. D. Smith, 28.
Practice on appeal or error— W hen ttlies. Cited in
—10 Wend., 58; 11 Wend., 527; 17 Wend., 634; 3
Denio. 181 ; 22 N. Y., 519 ; 28 Hun, 213: 12 Mich., 387.
Appearance of "infant hy attorney, error— Pleading
—Judgment. Cited in— 16 Wend., 50 ; 25 Wend., 639:
66 N. Y.,177; 3 Barb., 494 ; 60 Barb., 122; 29 How.
Pr., 279; 41 How. Pr., 46; 9 Abb., N. S., 321; 23
Mich., 439.
Contract made by one as agent for both parties, not
absolutely void. Cited in— 20 Barb., 471 ; 54 Barb.,
377.
Judgment— Time of— Relation. Cited in— 1 Hill, 660.
HOLT v. JOHNSON.
Distress for Rent — Property of Bailor in Hands
of Bailee Distrained — Trespass.
Where the plaintiff distrained upon his tenant for
rent, and took a horse which the tenant claimed as
his own, but of which he was, in fact, only a bailee;
and it was then agreed between the tenant and the
plaintiff, that the latter, instead of impounding the
horse, might use him until the day of sale; and
while the plaintiff was so using him. and previous
to the time of sale, the defendant, who was the true
owner of the horse, took him out of the plaintiff's
possession ; it was held that if the tenant had no au-
thority from the defendant to make the agreement,
still the using the horse was merely an irregularity
after a regular distress, and as by the provisions of
the 10th section of the Act Concerning Distress, &c..
(sess. 36, ch. 63 ; IK. L., 436), the plaintiff was pro-
tected from being deemed a trespasser ah initio. the
defendant could not treat the distress as a nullity,
and therefore committed a trespass in taking tfie
horse.
Citation— N. R. L., 436.
IN ERROR, on certiorari to a justice's
court.
The defendant in error brought an action
of trespass in the court below against the
plaintiff in error, for taking a horse out of the
harness, while in the possession of the plaint-
iff below (the defendant in error). The de-
fendant below having proved that the horse
was his property, the plaintiff proved that he-
as landlord of certain premises in the occupa-
tion of one Soule, had regularly distrained the
horse for rent arrear, while the horse was on
the lease premises, and in the charge of Soule
the tenant, as bailiff for the defendant ; that
after the horse was seized, Soule, who then
claimed to be his owner, agreed with the
plaintiff, that, instead of sending the horse to
an open pound, the plaintiff might take
him home and use him for his keep-
ing until the day of sale ; and the plaint-
JOHNS. REP., 14.
1817
LOW V. MUMFORD.
425
iff did so ; and while he was so using the | objected to the sufficiency of the plea, but the
horse, between the time of making the distress justice gave judgment for the defendants,
and the day of sale, the defendant came and
took away the horse, which was the trespass i PLATT, J., delivered the opinion of the
complained of. The justice gave judgment court:
for the plaintiff below. The general rule on this subject is, that if
several perrons jointly commit a *tort [*427
Ptr Curiain. The judgment was right. The , the plaintiff has his election to sue all or any
426*] plaintiff below *acted in good faith, j Of them, because a tort is, in its nature, a
under the agreement for the use of the horse ! separate act of each individual, and therefore,
made with Soule. who had him in his posses- 1 jn actions, in form ex delicto, such as trespass,
sion, and who claimed to be the owner. There trover, or case for malfeasance, against one
is reason to believe, from the nature of the only, for a tort committed by several, he can-
bailment, between the defendant Holt, the ! not plead the nonjoinder of the others, in
true owner, and Soule, that Soule had author- j abatement or in bar. (1 Chitty PI., 75.) There
ity, as the agent of the defendant, to make the | js a distinction, however, in some cases, be-
agreement with the plaintiff for the use of the } tween mere personal actions of tort and such
horse ; and if so, the defendant has sustained , as concern real property. (1 Chilly PI., 76.)
no injury. Bnt, at most, the using the horse j jn the case of Mitchell v. Tarbutt, 5 T. R., 65,
WAS merely an irregularity, after a regular dis- Lord Kenyon recognizes this distinction, and
tress ; and the 10th section of the Act Concern- gay8 : "W here there is any dispute nbout the
ing Distress. &c. (1 N. R. L., 436), protects i title to land, all the parties must be brought
the plaintiff from being deemed a trespasser before the court." A case in the Year Books
ab iuitio, and makes him liable only for the (7 Hen. IV. ,8) shows that a plea in abatement
special injury. The defendant, therefore, had may be well pleaded for this cause, to an ac-
no right to consider the distress as a nullity, i tion on the case for a tort. An action of tres-
and in taking the horse he committed a tres- pa8S On the case was brought against the Abbot
pass. The judgment must, therefore, be af- of Stratford, and the plaintiff counted that the
firmed. defendant held certain land, by reason whereof
-,_„ . he ought to repair a wall on the bank of the
Thames ; that the plaintiff had lands adjoin-
ing, and that for default of repairing the wall
his meadows were drowned. To which Skrene
said : "It may be that the Abbot had nothing
in the land, by cause whereof he should be
charred, but jointly with others, in which
case the one cannot answer without the other.
But in actions for torts relaling lo lands of
the defendants, Ihere seems lo be ground for
this further distinction, viz: between nuisances
arising from acts of malfeasance, and those
which arise from mere omission or nonfeas-
ance. The case of The Abbot of Stratford was
thai of a nuisance, arising from neglect of duty
in not repairing the wall, which was by law
enjoined on the proprietor or proprietors of
the land on which the wall stood. The gist of
Hie action, therefore, was, that the defendant
was such proprietor, and had neglected a duty
incident to his title. The title to the land on
which the nuisance existed was, therefore, di-
rectly in question ; for if the Abbot was not
the owner of the land, he was nol chargeable
with neglect, nor liable for the nuisance. But
in this case theaclion is for a nuisance arising
from an acl of misfeasance, the "keeping up a
mill dam on a stream below the plaintiff's
land." Here needs no averment that the de-
fendant owned the land on which the dam was
kept up. The title to that land cannot come
in question in this suit, for the maintaining
nuisance, and the de-
LOW r. MUMFORD AND MUMFORD.
Practice — Tort» — Joint Tortjeasor* — Need Not
be Joined— Where Title to Realty Comes in
Question, Joinder Neceimary — Action by Co-
Tenant» — All mutt Join.
In an action in form, ex delicto, for a tort commit-
U.'d by several, the plaintiff may. in general, sue any
of thoee who committed the tort, and the non-
joinder of the others cannot be pleaded in abate-
ment.
joint owners of land, and the tort consisted in the
omission of some act which, as such owners, they
were bound to perform, then ail must be joined in
the action, as, in such case, the title to realty will
coino in qu«-8tion. that is, whether the defendant*,
by reason of their ownership, were bound to per-
form the act for the omission of which the action is
brought.
If, however, the act complained of consist in a
malfeasance, as if the defendants have erected a
nuisance on their land, no advantage can be taken
of the nonjoinder ; for In such case their title can-
not come In question, and they are equally liable
whether they have riirht in the land or not.
In an action for a nuisance to land, all the co-ten-
ants must join as plaintiffs.
Citatlooa-1 Chit. PI.. 75. 76; 5 T. K., 65; 7 Hen.
IV., 8.
1
N ERROR, on ctrtiorari to a justice's court.
The plaintiff in error brought an action in
the court below, against
error, " for keeping up a
the defendant in
mill dam on the
Susquehanna River, below the lands of the
plaintiff, whereby the water of the river was
set back, and (lowed the plaintiffs lands," &c.
The defendants pleaded in abatement, that the
land on which the mill dam was erected, and
the mills appurtenant thereto, were held in
such a >lam
is equally a
re equally
•whether the defendants own the land [*4iiK
as joint tenants with others ; or whether they
are sole proprielors ; or whelher they have any
rijrlit whatever in it. "Keeping up" the dam
implies a positive act of the defendants . it is
a malfeasance, and therefore the plaintiff has
a right of action againsl all or any of the par-
joint tenancy "by the defendants, together with i ties who keep up that dam. Unless the title
several other persons (naming them), who were i comes in question, there is no difference, in this
not made parties to the suit. The plaintiff 1 respect, in cases arising ex delicto, between ac-
KI-.JV, 14. 927
428
SUPREME COURT, STATE OP NEW YORK.
1817
tions merely personal and those which concern
the realty. " The plaintiff, in such an action, is
always bound to join his co-tenants, because
his title must come in question as the founda-
tion of his claim ; but he may sue any or all
who have done the tortious act. The justice,
therefore, erred in deciding against the demur-
rer to the plea, in abatement, and the judg-
ment must be reversed.
Judgment reversed.
Tort— in action of, nonjoinder of parties as defend-
ants not pleaded in abatement. Cited in 19 Wend..
224; 29 N. Y., 593; 5 Hun. 389; 56 Barb., 250; 61
How. Pr., 137 ; 7 Bos., 688.
Co-tenants must join in action for injuries to realty.
Cited in— 37 N. Y., 373 ; 4 Trans. App., 242 ; 29 Barb.,
19 ; 4 Abb. N. S., 344 ; 8 Bos., 138.
P. WESTON v. E. & H. WESTON.
Administration — One Residing out of State Seven
Tears, not an Inhabitant, though Family
and Property Remain — Court of Probates —
Surrogate.
Where an inhabitant of this State went into
another state, leaving his wife and property here,
and there resided seven years, and died intestate ;
it was held that he had ceased to be an in habitant of
this State (there being no evidence of an animus
revertendi), and the judge of the Court of Probates
only, and not a surrogate, has power to grant ad-
ministration of his goods and chattels within this
State.
Citations— Act March 6, 1778, sess. 1, ch. 12, sec. 3 ;
1 N. K. L., 445.
THIS was an action of trover, for certain
articles of household furniture, specified
in the declaration. The defendant pleaded
not guilty, and subjoined to the plea a notice
of special matter, to be given in evidence at
the trial, to wit : that the defendants, before
the finding alleged in the declaration, to wit :
on the 28th of October, 1816, at Onondaga,
<&c., were duly appointed, by the Surrogate of
the County of Ouondaga, administrators of
and upon the estate of Stephen Weston, de-
ceased, late the husband of the plaintiff ; and
that if the goods and chattels, set forth in the
declaration, came to the hands or possession of
the defendants at all, they came to their" hands
or possession as administrators aforesaid,
and were taken possession of as the proper
goods and chattels of Stephen Weston, de-
ceased ; and by virtue of letters of administra-
tion, duly granted to them, of the estate of
Stephen Weston, deceased, by the Surrogate
•of the County of Onondaga, as they had good
right and lawful authority so to do, &c.
Stephen Weston, the husband of the plaint-
iff, died intestate, in the autumn of the year
1814. in the State of Ohio, having been absent
42J)*] *from this State seven years previous
to his death. Before he left this State, he had
resided at Pompey, in Onondaga County, six-
teen years; and when he went away, and at
the time of his death, was seised in fee of one
hundred acres of land in the town of Pompey.
The plaintiff, after the departure of her hus-
band, continued to reside in Pompey until
the present suit was commenced in January
last.
The goods and chattels, for which the pres-
ent suit was brought, were in the possession of
928
the plaintiff at the time they were taken by the
defendants, who are brothers of the deceased,
and who gave notice to the plaintiff of the let-
ters of administration granted to them by the
Surrogate of Onondaga. The goods and chat-
tels, so taken possession of by the defendants,
were the property of Stephen Weston, the in-
testate, at the time of his death.
The case was submitted to the court without
argument, and it was agreed that if the court
should be of opinion that the plaintiff ought
not to recover, a judgment of nonsuit was to
be entered ; but if they should be of opinion
that she ought to recover, then a judgment was
to be entered for the plaintiff for $181, &c.
SPENCER, J., delivered the opinion of the
court :
The defendants, claiming to be administrat-
ors of Stephen Weston, took the goods and
chattels for which this suit is brought, out of
the possession of the plaintiff ; and it is admit-
ted, by the case, that they belonged to the in-
testate at the time of his death. The only
question for the consideration of the court is,
whether the Surrogate of the County of Onon-
daga had authority to grant letters of adminis-
tration to the estate of Stephen Weston.
It is admitted that he died intestate, in the
fall of 1814, in the State of Ohio ; that he had
been absent from this State for seven years
previous to his death ; that he had, before his
departure for Ohio, resided in the town of
Pompey, in the County of Onondaga, sixteen
years, and that he was seised in fee, at the
time of his departure, and at his death, of one
hundred acres of land in Pompey, and that the
plaintiff, his wife, continued to reside in that
town until and after his death.
There can be no doubt that the intestate
ceased to be an inhabitant of this State before
his death. His long residence in Ohio, sepa-
rated from his wife, and the absence of all
proof that *he intended to return to [*4-3O
this State, are decisive circumstances to show
that there was a change of domicil, and he
must be regarded as an inhabitant of the State
of Ohio.
The power and jurisdiction of the surro-
gates of the several counties is conferred whol-
ly by the statute. Under the colonial govern-
ment, the probate of wills, and the granting
administration of intestates' estates was vested
in the Governor or such persons as he should
delegate, under the seal of the prerogative
court. The first provision7 after the adoption
of the Constitution of the State, on this sub-
ject, is to be found in the Act of the 6th of
March, 1778, which vests the judge of pro-
bates with the like jurisdiction in testamentary
matters, which the Governor and Commander
in Chief of the Colony of New York had ex-
ercised, as judge of the prerogative court or
Court of Probates, except as to the appoint-
ment of surrogates in the several counties, who
were thereafter to be appointed by the Council
of Appointment. (Sess. 1, ch. 12, sec. 8, 1
Greenl. ed. Laws, 17, 18.) The 3d section of
the Act Relative to the Court of Probates, the
Office of Surrogates, and the granting of Ad-
ministrations (1 N. R. L. , 445), gives to the
surrogates sole and exclusive power to take
the proof of last wills of all deceased persons,
JOHNS. REP., 14.
1817
BLIN v. CAMPBELL.
430
who, at or immediately previous to their death,
shall have been inhabitants of the respective
counties of such surrogates, in whatever place
the death of such persons may have happened,
and to make and issue probates of the same,
and grant letters testamentary thereon ; and
also, to grant letters of administration of the
goods, chattels and credits of all such persons
dying intestate; thus excepting from the juris-
diction of surrogates the cases of those per-
sons who may not, at the time of their decease,
be inhabitant- of this State respectively.
The 15th section of the Act last referred to
enacts " that in all cases of persons dying out
of this State, or of persons dying within this
State, not inhabitants of this State, their wills
may be proved before, and administrations of
their personal estates, when necessary, be
granted by the judge of the Court of Probates
of this State, in the manner heretofore used,
as well as by any of the said surrogates."
It must be noticed, that the 1st section of
the same Act had vested the judge of probates
with the like jurisdiction in testamentary
mailers, except as was therein otherwise pro-
vided, as the Governor of the late Colony of
43 1*J New York had exercised, as *judge of
the prerogative court (or Court of Probates) of
the Colony, excepting where otherwise pro-
vided by that Act ; and excepting also the ap-
pointment of surrogates. It will be perceived
at once, that unless the 15th section enlarges
the powers of the surrogates, they have no
authority or jurisdiction to grant administra-
tion upon the estates of persons who are not,
at the time of their decease, inhabitants of t hi-
Slate ; for, in defining the extent of the juris-
diction of the surrogates, in the 3d section of
the Act, their authority and power to grant
administrations, in such cases, is expressly ex-
cepted. And to suppose that it was intended
to be afterwards conferred by another provis-
ion in the same Act, would be to impute to the
Legislature an extraordinary inconsistency.
The manifest object of the Legislature, in the
15th section of the Act, was to confer a con-
current power on the judge of probates, with
the surrogates, in cases of persons dying out
of the State; and who, at or immediately pre-
vious to their death, were inhabitants of the
State. The expression "as well as by any of
the said surrogates"1 was not intended to ex-
tend the power of the surrogates, but to show
that the power was concurrent. It is true thai
the same section gives also jurisdiction to the
judge of the Court of Probates to take the
proof of wills, and grant administrations, in
cases of persons dying within this State, and
not inhabilants thereof ; and therefore there
is a seeming contradiction and absurdity in
enacting that the judge of the Court of Pro-
bates may do this, as well as any of the said
surrogates, unless the surrogates had power to
do it. We perceive, in one case, they have,
where persons die out of this State, being in
1.— These words are not to be found in the Act
pawed the 30th of February. 1787. for Settling In-
tcstatec* Batateo, Ac., and which first provided for
the appointment of surrogates, and defined their
powers; and a comparison of tin- tith and llth sec-
tions of that Act may tend to confirm the construc-
tion here given by the court to the new Ifaviacd
Act. 1 Greenl. ed. Laws, i*B, :««, seas. 10, ch. :».
8CU0.0, 1L
JOHNS. RKP.. 14. N. Y R.. 5
1 habitants thereof ; and we are not to test the
intention of the law maker, by a strict or
grammatical construction. It can never be
i believed, that after an express exception from
the jurisdiction of surrogates, of the cases of
i persons who may not, at the time of their de-
: cease, be inhabitants of this State, that the
1 Legislature, in the same Act, would give the
excepted power, and particularly, too, in a
section which meant only to define and specify
the jurisdiction of the judge of the Court of
Probates.
*The argument, ab inconoenienti, ap- [*432
1 plies with peculiar force, and shows the entire
j untitness of the power contended for in the
surrogate. If the deceased was not an inhab-
itant of this State at the time of his death,
what surrogate shall grant administration ?
They would all have equal power ; and, for
aught I see, there might be as many adminis-
trations as there are surrogates in the State, if
there were as many persons competent to ap-
ply for letters of administration. This con-
sideration, undoubtedly, induced the Legisla-
ture to withhold the jurisdiction from the sur-
rogates, where the deceased was not an inhab-
itant of the State at the time of bis death ;
and the Legislature could not have been una-
ware of the confusion and disorder to which
it might lead, to give to a multitude of officers,
acting independently and distinctly, power to
act in the same case ; they, therefoie. wisely
vested this power in the judge of the Court of
Probates ; and they also conferred a concur-
rent power in that officer, to grant adminis-
tration in all cases of persons dying out of
this State, whether inhabitants or not ; and
this concurrent power, when once exercised
by either; is, from its nature, exclusive.
The court have no doubt, in this case, that
the administration granted to the defendants
was invalid, on the ground that the surrogate
had no jurisdiction of the case.
Judgment for the plaintiff.
Cited in-8Cow., 307 ; IP Wend., 380; 4 Johns. Ch..
554; 10 How. Pr., 535.
BLIN v. CAMPBELL.
Practice — Jurisdiction — Action for Aamult and
Buttery — Judgment for Defendant by Court
without Jurisdiction — No Bar to another Ac-
tion in Proper Court.
The plaintiff brought an action in a justice's court
for an assault and battery, in which a trial was bad,
and judgment rendered airainst him ; he afterwards
brought an action on the case, before another jus-
tice, for the same injury. Held, that as the former
action for the assault and battery was not wituin
the jurisdiction of toe justice, the judgment tuere-
on was a mere nullity, although unrevereed, and
not a bar to the suUjoquent action on the case.
Where there is an immediate injury attributable
to negligence, the party injured has an election
either to treat the negligence of the defendant as
the cause of action, ana to declare in case, or to
consider the act itself as the injury, and to declare
in trespass.
Citation -1 Chit. PI., 127.
IN ERROR, on certtorari to a justice's court.
The defendant in error brought an action
of trespass on the case, in the court below,
againsi the plaintiff in error, and declared for
59 J>2!)
SUPREME COURT, STATE OP NEW YORK.
1817
an injury done by the defendant below, in
firing a pistol and wounding his leg. The de-
fendant below pleaded in bar a former trial
and judgment for the same cause of action,
433*] *and proved that the plaintiff had
brought an action of trespass before another
justice, wherein he had complained of the same
injury, and the justice, after having clear and
explicit proof of the fact, gave judgment
against the plaintiff ; but the justice, in the
present case, decided that that judgment was
no bar to this suit, and the plaintiff having
proved that the defendant, being a trooper,
had wounded his leg by negligently firing a
pistol, the justice gave judgment for the
plaintiff below (the defendant in error).
Per Curiam. The former action of trespass,
for the same injury, was clearly an action for
an assault and battery, of which the justice
had no jurisdiction. It was a proceeding
eoram non judice, and therefore void. The
justice did right in disregarding it as a nullity,
although unreversed. The only question then
is, whether this action of trespass on the case
is not liable to the same objection of want of
jurisdiction. From the authorities on the sub-
ject, it appears that if the injury was attrib-
utable to negligence, though it were immedi-
ate, the party injured has an election, either
to treat the negligence of the defendant as the
cause of action, and to declare in case, or te
consider the act itself as the injury, and to de-
clare in trespass. (1 Chitty PI., 127, and the
cases there cited.) The proof on the trial
clearly showed the act to have been uninten-
tional. It is a case of mere negligence ; and,
as there is no appearance of undue evasion on
the part of the justice to extend his jurisdic-
tion, the judgment ought to be affirmed.
Judgment affirmed.
Cited in— 18 Johns., 288; 6 Cow., 345: 10 Wend.,
328 ; 17 Wend., 617 : 3 Denio. 83 ; 10 Barb., 657 ; 6
How. Pr.,231; 42 How. Pr.,393; 10 Abb. Pr., 433;
6 Duer, 405.
434*] *VAN SICKLER t>. JACOBS.
1. Evidence — Admission without Exception —
Not an Objection on Return of Certiorari.
2. Execution — Exemption of Cooking Utensils.
Where improper evidence has been admitted, in a
justice's court, without being excepted to at the
time, it cannot afterwards be made a ground of ob-
jection, on the return to a certiorari.
By the Act in addition to the Act Concerning
Judgments and Executions (sess. 38, ch. 227), neces-
sary cooking utensils, owned by any person being a
householder, are excepted from execution and dis-
tress for rent
The party claiming an exception under this Act,
for his cooking utensils, must show, affirmatively
and certainly, that the cooking utensils taken in
execution or distrained upon, were in fact neces-
sary, and not merely that they might be useful in
cooking.
Citation— Sess. 38, ch. 227, p. 231.
N ERROR, on certiorari to a justice's court.
I
The plaintiff in error brought an action of
trespass de bonis asportatis, in the court below,
against the defendant in error. The defend-
ant justified under a warrant of distress for
rent, and judgment was rendered in his favor.
930
The objections presented, on the return ta
the certiorari, were : 1. That the warrant of
distress was proved by parol evidence only,
whereas it ought to have been produced on the
trial. 2. That the distress was illegal, because
it appeared that among the articles distrained
there were one copper teakettle, one tin oven,
three iron pots, one gridiron and one sauce-
pan.
Per Curiam. The first objection cannot
avail, because no exception to the parol evi-
dence of the warrant was made at the trial.
The witness who swore to the warrant may,
for anything that appears, have had it in his
pocket, ready to be produced if it had been
required. As to the second objection, the Act
of the 18th of April, 1815 (sess. 38, ch. 227, p.
231), declares "necessary cooking utensils,
owned by any person being a householder,
shall be exempted from execution and distress
for rent." In this case, it appears that the
plaintiff was a householder ; but it does not
appear than any of the articles distrained
were, in fact, to him, necessary cooking uten-
sils. It does not appear that these were all the
cooking utensils found in the plaintiff's pos
session ; he may have had an abundant sup-
ply, besides these articles. In order to claim
the benefit of that Statute, the party must
show, affirmatively and certainly, that the
cooking utensils 'were, in fact, necessary. It
not sufficient, as in this case, to show merely
that the articles distrained might be useful in
cooking. The judgment, therefore, ought to
be affirmed.
Judgment affirmed.
Cited in— 19 Wend., 476; 23 Wend., 466; 1 Denio^
463 : Hill & D., 385 ; 5 Barb. 610 ; 14 Barb., 459 ; 32
Barb., 291 ; 52 Barb., 193 ; 5 Abb. N. S., 258 ; 5 Leg.
Obs., 337 ; 96 U. S., 122.
*JACKSON, ex dem. STERNBERG, [*435
DOMINICK.
Mortgage — To Secure Usurious Contract — Sale
under Foreclosure — Purchase by Mortgagee —
Action by Purchaser of Equity of Redemption
against Mortgagee — Usury May be Shown,
the Sak Being Conclusive Only in Favor of a
Bona Fide Purchaser.
Where a mortgage is given'as security, on an usu-
rious contract, with a power of sale, and the mort-
gagee, by virtue of the power, sells the land, under
the Act Concerning Mortgages, and becomes the
purchaser through an agent for that purpose, and
in an action of ejectment brought by a purchaser
of the equity of redemption against the mortgagee
the defendant sets up a title so acquired by sale
under the mortgage, the plaintiff may prove usury
in the mortgage, and recover, notwithstanding the
mortgage.
A foreclosure of a mortgage by virtue of a power
under the Statute, is not founded on any judgment
or decree of any court ; but is the mere act of the
mortgagee. The Statute makes such sales a con-
clusive bar only in favor of a hona fide purchaser,
NOTE — Usury. See, generally, Jones v. Hake, 2
Johns. Cas.. 60, note ; Bush v. Livingston, 2 (.'al.
Cas., 66. note ; Van Schaick v. Edwards, 2 Johns.
Cas.. 355, note; Coulon v. Green, 2 Cai., 153, note;
Stewart v. Eden, 2 Cai., 151, note; Jenkins v. Union
Turnpike Co., 1 Cai. Cas., 86, note.
JOHNS. REP.. 14.
1817
JACKSON, EX DEM.. V. DoMINICK.
435
without notice: and the mortgagee, being a party
to the usurious contract, is In no better situation
than if no foreclosure had taken place.
Citations— 10 Johns.. 1HS.
THIS was an action of ejectment brought to
recover part of a farm iti Miuden, in the
County of Montgomery, and was tried before
Mr. Juttice Spencer, at the Montgomery Cir-
cuit, in August, 1816.
. The plaintiff gave in evidence a deed from
Abraham Van Al-iim-, Jr.. and his wife, to
the lessor of the plaintiff, dated April the
6th, 1812, and proved that Van Alstine
had been in possession of the farm for
many years before, claiming and using it as
his own.
The defendant gave in evidence a mortgage
from Abraham Van Alstine, Jr., for the prem-
ises in question, to the defendant, recorded
the 21st of March, 1810, to secure the payment
of $27£ in one year, with interest, and con-
taining a power of sale, in case of non-pay-
ment, in the usual form. The defendant also
produced the record of several affidavits that
the premises had been duly advertised for
sale, and actually sold under the power con-
tained in the mortgage, pursuant to the
Statute. The defendant also gave iu evidence
a deed from himself to one Aaron Haring, as
the purchaser at such sale, dated February the
1st, 1813, for the consideration of $274, and a
deed of release from Haring to the defendant,
of the same date, for the premises. The de-
fendant admitted that Haring purchased the
premises at the sale under the mortgage, in
trust for him, and for his benefit, and imme-
diately released the premises to the defendant,
in pursuance of such trust.
The plaintiff 'then offered to prove that the
mortgage under which the sale was so made
was given for a usurious consideration, and
was therefore void under the Statute. The
testimony was objected to, but admitted by
the judge to go to the jury, subject to the
opinion of the court on a case to be made, in
case the jury found for the plaintiff on the
question of usury. The plaintiff gave evidence
of the usury ; and the judge submitted to the
jury the question of fact, whether the mort-
gage was usurious, and if they found it to be
so. that then the plaintiff was entitled to their
verdict ; otherwise they should find for the
defendant. The jury,. by their verdict, found
43(J*] that the mortgage was *given upon u
usurious contract, and for a usurious consid-
eration, between Va'n Alsliue and the defend-
ant, and gave their verdict for the plaintiff.
In case the court should be of opinion that the
evidence, as to the usury, was proper, and
that the mortgage and subsequent sale were
void, by reason of the usury, then the verdict
was to stand ; otherwise, a nonsuit was to be
entered. It appeared in evidence that the
plaintiff knew that the mortgage was given on
a usurious contract, at the time he purchased
the premises of Van Alstine.
Mr. Johnton, for the plaintiff, contended that
the jury having found that the mortgage was
given on a usurious contract, it was void by
the Statute (seas. 10, ch. 18, sec. 1 ; 1 N. R. L.,
64; 1 Leo., 307 ; Shep. Touch., 62) ; and that
the mortgagee himself, being the purchaser,
with knowledge of the usury, the mortgagor
JOHNS. REP., 11.
| or his assignee might avail himself of the
usury to defeat the mortgage against the
mortgagee. It is admitted that the purchaser
at the sale, under the power contained in the
mortgage, acted as the agent or trustee of the
defendant, and for his benefit. The defend-
ant himself is, therefore, to be regarded as the
purchaser. This case, then, is clearly distin-
guishable from that of Jackson, &r dem. Bart-
lelt. v. Henry, 10 Johns., 185. The ground of
that decision is, that Henry was a bona fid*
purchaser, without notice. The whole reason-
ing in that case is to show the hardship, in-
justice and danger of suffering a bona fide pur-
chaser to be defeated on a plea of usury, when
the borrower stands by and permits an inno-
cent person, unconscious of the Intent defect,
to make the purchase, in good faith, and pay
his money, without informing him of the
usury. Such a bona fide purchaser, it is there
said, has a preferable claim in equity for pro-
tection. The court also considered it anal-
ogous to the case of a usurious contract,
which had been changed into a new contract
founded on it, in which an innocent person is
a party ; in which case the usury is not al-
lowed to be set up. Here the defendant is not
an innocent third person or bona fide purchaser,
but a party to the original usurious contract,
and can have, therefore, no superior claim to
protection.
Hut it will be said that the sale under the
power, pursuant to the Statute, was a kind of
statute foreclosure, which cannot be defeated;
and that the court, in the case of Jacknon, ex
dem. Bartlett, v. Henry, speak of such a sale
as equivalent to a foreclosure and sale, under
a decree of the Court of Chancery, or as a sub-
stitute to a judicial sale. But the person who
sets up this statute foreclosure *must [*4JJ7
show himself to be a bona. fide purchaser; for the
Statute, in declaring the effect of such sale,
says that no such sale shall be "defeated to
the prejudice of any borut fide purchaser," in
favor of the person claiming the equity of re-
demption. This is not like a sale under a
judgment where the purchaser looks only to
the judgment, and not to the validity of the
contract on which the judgment is given.
Here the mortgage and the power, and the
regularity of the sale under it, are all essential
to the title of the purchaser.
If a mortgage after a sale under the power
cannot be avoided, where a party to the usuri-
ous contract is a purchaser, or where the pur-
chaser has full knowledge of the usury, the
penal part of the Statute against usury will, in
effect, be destroyed, in every case where a
mortgage is taken to secure a usurious loan.
The mortgagee has only to proceed to a sale
under his power, and the mortgagor cannot
have the aid of a court of chancery to stay his
proceedings, without tendering or bringing
into court all the money actually borrowed,
with the legal interest. (Rogtr* \. Italhburn, 1
Johns. Ch. , 367 ; Tapper v. Powell. Id. , p. 439.
S. P.) All that the usurious lender would
hazard, in case of a mortgage, would be the
excess beyond the legal rate of interest.
A note given for an usurious consideration is
i void, even in the hands of an innocent indor-
I see, who has taken it in the regular course of
' trade, without notice of the usury. ( WUkie v.
931
437
SUPREME COURT, STATE OP NEW YORK.
1817
Roosevelt, 3 Johns. Gas., 306; Doug., 736.)
The usurious security is void not only against
the borrower, but against all claiming title un-
der him. If a note is void for usury, in the
hands of an innocent indorsee, on what prin-
ciple can the lender of money on usury, who
has taken a mortgage as security, be allowed
to hold that security, as against the mortgagor?
In Jackson v. Henry, Kent, C h, J., says:
"The Statute declares all bonds, bills, notes,
contracts and assurances" infected with usury
"utterly void;" so are the adjudged cases,
where the suit at law is between the original
parties, or upon the very instrument infected.
No innocent person will be affected by de-
claring the mortgage and sale under it void, in
this case. But if permitted to stand, the
court will, in effect, repeal the Statute against
usury, as it respects mortgage securities.
Mr. W. J. Dodge, contra, contended that the
sale by virtue of the power, under the Statute,
was equivalent to a sale under a decree of the
Court of Chancery. The Statute intended to
438*] give *it the same operation and effect.
It is a statute foreclosure, and is conclusive, so
as to be a bar to any inquiry into the validity
of the mortgage.
This being a mortgage fee, the estate, on a
failure to perform the condition, becomes ab-
solute, and on a foreclosure, a complete and
perfect title in fee is acquired under the mort-
gage. This court has no control whatever
over a proceeding by the mortgagee to fore-
closure under the Statute or in a court of
chancery. Before foreclosure, this court may
receive proof of the usury. But after a foreclos-
ure or sale, under the power, this court cannot
interfere, directly or indirectly. A decree of
the Court of Chancery is final and conclusive be-
tween the parties; and in every case a judgment
or decree is conclusive, unless the judgment at
law is reversed by writ of error, or the decree,
on a bill of review in equity. (Coop. Eq. PI.,
269.) A plea of a former decree enrolled, is a
bar to a new bill between the same parties;
and a decree by default, if an order is made
that it be absolute, is final. A decree of fore-
closure is absolute and final, unless fraud be
shown. The purchaser, under such, decree,
acquires an absolute estate at law. (Powell on
Mortg., 1069, 1072.)
If, then, a sale by virtue of a power, under
the statue, is in lact a substitute for a decree
of foreclosure in a court of equity, and is to
be governed by the same rules, it follows con-
clusively, that this court cannot inquire into
the validity of the original contract, after a
sale or foreclosure under the statute.
But supposing this court had the same power
as a court of equity, in relation to this mort-
gage, and that no foreclosure had taken place,
the mortgage is not void, but voidable only,
and unless the party who seeks to avoid the
mortgage will do equity, by paying the actual
amount borrowed, with lawful interest, he
cannot have the protection- ot the court against
the excess of iuterest. (Pow. on Mortg., 963;
2 Veru., 134.) What, then, is a foreclosure?
It is calling on the mortgagor to redeem his
land, by paying the principal and interest, for
which it is pledged, or be forever barred from
all equity of redemption. And this foreclosure
may be "effected in two ways, either by a sale
932
under the power contained in the mortgage,
which is called a statute foreclosure, or by a
decree of a court of equity. In this case, the
sale was made in due form, according to the
Statute. The case of Jackson, ex dem. Bartlett,
v. Henry is in point. To avoid the effect of
that decision, it is said that here the mortgagee
was the purchaser, by his agent. The mort-
gagor was also present and knew of the usury,
*and he ought, if he wished to prevent [*430
a foreclosure, to have filed his bill in equity.
But the mortgagee was competent to purchase.
The Act Concerning Mortgages (sess. 36, ch.
32, sec. 10; 1 N. R. L., 379) expressly declares
that a mortgagee may become the purchaser at
such sale, for his own benefit, and that no title
derived under such sale shall be questioned on
that account, provided it be otherwise regular
and bonafide. It is true that Kent, Ch. J., in
the case of Jackson v. Henry, lays considerable
stress upon the fact that the defendant was an
innocent and bona fide purchaser, without
knowledge of the usury; but the course of his
reasoning and observations fully justify the
conclusion that the material point decided
was, that after a sale under the power, or a
statute foreclosure, the party was too late to
set up usury in the original contract or mort-
gage. "The Statute," says Chief Justice Kent,
"renders such a sale equivalent to a foreclosure
and sale under a decree in chancery; and it
would be against the policy and the principles
of law, as well as the plain language of the
Statute, to allow the sale to be defeated."
Again, he says, "The notice given by the ad-
vertisement is intended for the party, as well
as for the world, and he has an opportunity to
apply to chancery, if he wishes to arrest the
sale on the ground of usury;' and the Statute,
likewise, gives him his remedy by action."
By a reference to the different statutes rela-
tive to mortgages (Greenl. ed. Laws, 157, 158,
159; 2 Greenl. ed. Laws, 101, sec. 7), it will be
seen that the object of the Legislature, in au-
thorizing a sale under a power, so as to bar the
equity of redemption, was to substitute a
cheaper and more easy and expeditious
method of foreclosure, instead of the dilatory
and expensive mode of proceeding by a bill
in chancery for that purpose. But thus facili-
tating the foreclosure, the means of enforcing
a repayment of the loan is rendered simple
and easy, and lending on mortgage is encour-
aged. Such appears, also, to be the object of
the Statute of 7 Geo. II., ch. 20, which be-
came necessary, as Powell (Pow. on Mortg.,
223) states, as the method of redemption by
bill in equity was found dilatory, expensive
and inconvenient, not only to the mortgagee,
but also to the mortgagor. If such was the ob-
ject of the Legislature, if the statute mode of
foreclosure was intended as a substitute to a
suit and decree in chancery, then a sale under
the Statute ought no more to be questioned,
than a decree of the Court of Chancery. This
court would have the same power to examine
into the merits of a final decree of the Court
of Chancery, as to revise or set aside a sale
*under the Statute. If the sale is to be [*44O
reviewed anywhere, it must be in a court of
equity; and there the party must appear and
plead the usury, or he cannot take advantage
of it. Here the mortgagor does not appear
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. DOMINICK.
440
and make the objection, but suffers the mort-
gagee to proceed to a sale, and in case the
property sells for more than the amount duu
on the mortgage, to pay over the surplus to
the mortgagor, and the purchaser to bring his
ejectment and recover possession of the land,
and then, to defeat him, sets up usury in the
original contract. This is permitting a party
to derive benefit from his own laches. Whether,
therefore, the sale is considered in the light of
a decree of foreclosure in equity, or as a judg-
ment in a court of record, it is conclusive,
and cannot be reviewed by this court. It is a
proceeding authorized by the Statute over
which this court has no control. It has no
jurisdiction or supervisory power in the case,
either at common law or by statute.
Admitting there was usury in the original
contract, the power of the mortgage is spent,
the nature of the thing is changed. Suppose
a suit to be brought on the bond accompany-
ing the mortgage, and a judgment recovered
by default, and an execution issued on the
judgment, under which the mortgaged prem-
MM are taken and sold; in an action of eject-
ment brought by the purchaser, to recover
possession of the land, would the defendant
be permitted to set up usury in the orignal
bond, and to defeat the plaintiff on that
ground? (Cut/ibert v. HaU», 8 T. R.. 390.)
The court will not permit a party who sleeps
on his rights afterwards to take advantage of
a ground of defense which he might have
pleaded, in order to vacate the judgment. If
the bond were altogether usurious, and the
party had suffered a judgment against him by
default on the bond, a court of chancery
would not afford him relief against the judg-
ment. (Lansing v. Eddy, 1 Johns, t'h., 49-51.)
It is true that this court, in the case of judg-
ment bonds, exercises a power which they do
not claim over regular judgments obtained by
due course of law. But even in case of a
judgment entered up on a warrant of attorney,
the defendant cannot plead to a acire facia* on
such judgment, that the bond and warrant
were given for a usurious consideration (Cro.
Eliz., 588; 2Str., 1043); a judgment not being
a contract or assurance within the Statute.
(Ord. on Usury, 93, 94, 95.) If such a judg-
ment is set aside by the court for usury, it is
then open, and the party may pleud the usury.
But while the judgment remains, its validity
441*] cannot be questioned. An "usurious
mortgage is like any other usurious contract,
and the law, as respects a judgment, equally
applies to it.
If this statute foreclosure is not to have the
same effect as a decree of foreclosure in
equity ; or if it is not similar to a judgment in
a court of law, what is its character, or what
is to be its operation ? The Legislature did not
intend so nugatory a thing, as to direct a mode
of procedure that was to have no legal force
and operation. The Court of Chancery is not
deprived of its jurisdiction, but if the mort-
gagor files bis bill to redeem, the foreclosure by
statute is a sufficient answer. If the equity of
redemption, so important and inherent aright,
can be forever barred by such a foreclosure,
how much more ought the party to be pre-
cluded from setting up such a defense as
usury !
JOHNS. REP., 14.
Again ; in equity, a decree of foreclosure
will not be opened in favor of a mere volun-
teer, for a mortgagee is a purchaser, and has
equal equity with a volunteer, and an absolute
estate in law by the foreclosure. (Powell on
Mortg., 1072.) The plaintiff here was a mere
volunteer ; he purchased knowing of the
usury, and with the very intention to defeat
the mortgage. The amount of the mortgage
may have been part of the consideration, and
the plaintiff calculated to defeat the mortgage
by making the mortgagor a witness.
Again, in the case of a fine levied, and the
foot recorded, it can never be inquired into.
There can be no averment against the record.
(5 Cruise' Dig.. 33, 34.) In Lloyd v. Say &
Seale, 1 Bro., 879 ; Salk., 341 ; 10 Mod., 40 ; 4
Bro. P. C., 73, it was held that the fine would
not be inquired into in a collateral way, or be
invalidated in an action of ejectment ; but if
there was an error or irregularity, it must be
vacated or reversed in a legal mode.
VAN NESS, J. , delivered the opinion of the
court :
In the case of Jackson, ex dem. Bartlett, v.
Henry, 10 Johns., 185, it was decided that a
bona fide purchaser, without notice, under a
sale duly made, pursuant to the Statute, by
virtue of a power contained in a mortgage, is
not affected by usury in the original debt for
which the bond and mortgage were given. The
court there considered such a bale as equiva-
lent to a foreclosure and sale under a decree of
a court of equity, and that it could not be de-
feated, to the prejudice of a bonajide purchas-
er, on the ground of usury. That case was
likened to the case of a contract originally
usurious between the parties, and which has
been subsequently changed by a new contract
founded on *it, with a third person, [*442
who had no notice of the usury ; in which
case, such new contract could not be im-
peached for the usury which infected the orig-
inal transaction ; and also to the case of an in-
nocent purchaser for a valuable consideration,
whose title is valid, notwithstanding he may
have bought from one who had obtained hfs
title fraudulently. There are some expres-
sions, it is true, in the opinion delivered in the
ca<m referred to, which seem to countenance
the idea, that after a statute foreclosure of a
mortgage, usury could not, in any case, be al-
leged to defeat a purchase under it ; but that
is not the principle upon which the decision
proceeds. The general principle that a deriv-
ative title is not better than that from which it
is derived, is specifically recognized ; but the
fact that Henry was a purclmser without no-
tice of the usury, was considered as excepting
such a purchase from the operation of that
principle. Much stress, in the case, was justly
laid upon the circumstance of the mortgagor s
standing by and permitting the sale to take
place, and an innocent party to purchase, who
thereby acquired a preferable claim, in equity,
to protection. None of these considerations
apply to the case before us.
The purchaser here was a party to the cor-
rupt agreement upon which the mortgage was
given, and bought, with his eyes open, a dis-
puted title ; he has no superior equity, but
stands even in a less favored situation than a
983
443
SUPREME COURT, STATE OF NEW YORK.
1817
bona fide holder of usurious negotiable pa-
per, who, it is well settled, cannot recover
upon it.
The mortgage here forms a part of the de-
fendant's title ; and he, being fully apprised
that the mortgage was void in law, stands in
no better situation than if no foreclosure had
taken place. He is not in as good a situation as
a bona fide assignee of a usurious mortgage, as
to whom there is no question that the mort-
gage would be void.
Whether, in the case put in the argument, a
purchaser under a judgment, recovered upon a
usurious debt with notice of the usury, would
acquire a valid title or not, is a point not now
presented for decision. Most probably he
would ; but there is a palpable distinction
between that case and this. When a cause of
action has once passed in rem judicatam, the
defendant and every other person is, forever
afterwards, precluded from availing himself
of any pre-existing matter, which might have
been insisted upon in bar of the recovery. The
original debt ceases to have a legal existence,
•443*] being merged in the *judgment ; and
the title of a purchaser under it is derived from
the judgment, independent of the debt. The
purchaser, in such a case, is not obliged to
trace his title further than to the judgment
itself, which is conclusive evidence of the ex-
istence and legality of the debt upon which it
is founded. But where the mortgage, and the
power to sell, form the foundation of the pur-
chaser's title, as they do in this instance, if
these are void, so is the title derived under
them, except in the case of an innocent pur-
chaser for a valuable consideration. For his
protection, upon principles of public policy,
the law benignly interposes ; but this protec-
tion is not, and ought not to be extended any
further, as long as the Statute against usury
continues to be in force.
Although a foreclosure under the Statute is
substantially equivalent to a foreclosure in
equity, yet it is so only when a sale has been
made to a bona fide purchaser. The 5th section
of the Statute, which declares the effect of
such a sale, is in these words : " that no sale
of any lands made or to be made, in due form
of law, by any mortgagee or others thereunto
authorized, by special power for that purpose,
from any person entitled to the equity of re-
demption, shall be defeated to the prejudice of
any bona fide purchaser thereof, in favor of or
for the benefit of any persons claiming such
equity of redemption." Now, the defendant in
this case is not a bona fide purchaser, inasmuch
as the mortgage was given upon a corrupt and
illegal contract, to which he was a party. A
foreclosure of a mortgage under the Statute is
not founded upon any judgment or decree of
any court. It is the mere act of the mortgagee,
who cannot make that good and e'ffectual,
by a sale, which was unlawful 'and void
in its inception. We are, accordingly, of
opinion that the plaintiff is entitled to judg-
ment.
Judgment for the plaintiff.
Cited in— 13 Wend., 282; 16 Wend., 318 : 2 Hill. 523;
7 Hill, 413 ; 10 Paige, 592 : 3 Edw., 197 : & N. Y., 75 ; 40
N. Y., 643, n ; 22 Hun, 218 ; 9 Barb., 300 ; 10 Barb., 560 ;
12 Barb., 20 ; 14 Abb. Pr., 246 ; 9 Bos., 219.
1)34
*POTTER e. SMITH. [*444
Practice — Judgment of Justice Court — Refusal
to Reverse Merely to Throw Costs on Defendant
— Accord Subsequent to Judgment — Writ of
Error — Pleading.
A judgment of a justice's court will not be re-
versed where it appears that the certinrari was
brought merely for the purpose of throwing costs
on the defendant in error.
Where to an assignment of errors on a certiorari
the defendant pleaded an accord subsequent to the
rendition of judgment, with satisfaction of the
damages and costs, to which plea the plaintiff in er-
ror demurred ; it was held that the defendant in er-
ror was entitled to judgment on the demurrer, for
if the judgment below should be reversed, he could
not recover back what he had paid in satisfaction,
and therefore, his only object could be to subject
the defendant in error to the costs of the certiorart.
Whether accord and satisfaction can be pleaded in
bar of a writ of error. Qucere.
Citations— 2 Day's Conn., 242 ; 2 Johns., 8.
THE defendant in error recovered a judg-
ment in a justice's court against the plain-
tiff in error ; and the plaintiff having brought
a certiorari and assigned errors, the defendant
pleaded to the assignment of errors, two pleas :
1. That after judgment was rendered in the
court below, it was agreed between the parties
that the defendant should, and he did, release
and discharge from execution certain goods
and chattels of the plaintiff, which had been
taken under several executions issued out of a
justice's court, in pursuance of the above-
mentioned judgment, and two others against
the plaintiff, in favor of the defendant in
error, and acquit and discharge him of one
half of the' costs accrued on the said judg-
ments and executions ; and also purchase of
the plaintiff a certain pair of horses for the
sum of $150; and that in consideration
thereof, and that the damages for which the
said judgments were rendered, were justly
due, it was further agreed between the parties
that so much of the said siim of $150 as would
be sufficient to satisfy the damages and one
half of all the costs, should be applied in pay-
ment of the executions ; and in consideration
as aforesaid, it was further agreed between the
parties that the plaintiff should, and he then
and there did, acquit and discharge the de-
fendant in error from all errors in the said
proceedings, or in rendering the said judg-
ments.
2. That the plaintiff, in consideration that
the defendant in error had acquitted and dis-
charged him from one half the costs on the
said three judgments and executions, acquitted
and discharged to the defendant all errors in
the said proceedings, or in rendering the said
judgment.
To these pleas there was a general demurrer,
and joinder in demurrer.
Mr. H. R. Storrs, in support of the demurrer,
contended that the plea was bad : 1. Because
it did not set forth a sufficient release of the
errors (Van Santwoodv. Sandfoi-d, 12 Johns.,
197) ; and, 2. Because an accord and satisfac-
tion is no bar of a writ of error.
*Mr. Talcot, contra, insisted that [*44£>
the plea was good as a plea of accord and
satisfaction. In Pixlee v. Salmon, 2 Day, 242,
the Supreme Court of Errors in Connecticut
decided that accord and satisfaction might be
JOHNS. REP., 14.
1817
RUGGLES v. SHERMAN.
445
pleaded in bar to a writ of error. The object
of the certiorari is merely to obtain costs, for
if the judgment is reversed, the plaintiff in
•error cannot recover back the money he has
paid with full knowledge of the law and the
fact. An action merely for costs ought not to
be sustained In Monell v. Welle r, 2 Johns..
8 ; h'l-'V v. /-,'<> /v. «///<, 11 Johns., 52, the court
said that they would not reverse or affirm u
judgment, because the justice had omitted to
award cosU, on a nonsuit.
Mr. Storrs, in reply, said that the court
were bound to give judgment on the demurrer,
according to law, though the law may be only
to give the party costs.
Per Curiam. The facts stated in the plea
show that the judgment in the court below
has been voluntarily satisfied, except one half
of the costs, which were agreed to be given
up to the plaintiff in error, in consideration
of his agreement to waive an}' error in the
rendering of judgment. It is true that the
agreement alleged to have been entered into
Between the parties is not pleaded as a release ;
and it is doubtful, at least, whether an accord
and satisfaction can be pleaded in bar of a
writ of error, notwithstanding the case of
PMte v. Salmon.
But the court have decided that when a
•certiorari is brought merely for the purpose of
throwing a bill of costs on the defendant, we
would neither affirm nor reverse the judg-
ment. (Muneit v. WeUer, 2 Johns., 8.) In that
case the justice improperly nonsuited the
plaintiff below, but no costs were awarded,
and we thought that we ought not to interfere,
because we could not restore the party to the
state he was in when the nonsuit was granted.
Such is the case here. If the judgment is re-
versed, the plaintiff in error cannot recover
back the money he has paid ; and the only ob-
ject he can have in view is to subject the de-
fendant to the costs of the certiorari. The
agreement between the parties is, no doubt, a
good accord and and satisfaction. We are of
opinion that the defendant is entitled to judg-
ment on the demurrer.
Judgment for the defendant.
Cited tn-8 Cow., 330; 5 Denio, 83 ; 3 Rob., 17.
446*J *KUGGLES AND HOOKER
t.
SHERMAN, Administrator of HOWABD.
Ertcutor* and Administrators — Pint Creditor
to Bring Suit, Kn titled to Prwrity — Where
Ttco Bring Suit, Judgment may be Conf anted
in Fator of One — Sufh Judgment Bar to
Otfier Suit if Pleaded— Judgment by Default
or < '< »i r •**<•> n u an Admi*tion of Amtett to
thtU Amount— Third Parties, Effect a* to-
ll intiy be Evidence of A»»et« — When Oul-
Debt not A»»ei* — Pletuling.
When; there are creditors In equal degree of a
N taut or or intestate. the one who commences an
action against his executor or administrator iscn-
t it !«•<! to priority of satisfaction, which the defend-
ant cannot defeat by a voluntary payment to
another creditor.
JOHNS. Ui.iv. 14.
Where two creditors commence actions, the exec-
utor or administrator may give a preference to
one, by confessing a judgment to him, which he
may plead in bar of the action of the other.
But he cannot take advantage of such judgment
in any other way than by pleading it-
If an executor or administrator confesses a judg-
ment, or suffers judgment by default, he is es-
topped from denying assets, to the extent of that
judgment, as far as regards the plaintiff therein.
lint it U no estoppel iii an action by another
plaintiff.
A commences an action against an administrator ;
then B commences an action, and the defendant
confesses judgment to B: in an action at the suit
of A, he pleads outstanding debts of a higher de-
gree, and a debt to himself of equal degree, but
does not plead the judgment recovered by B: held
that the defendant, not ha ving pleaded B's judg-
ment, cannot avail himself of it as a defense, but
that it is not an admission of assets, so as to entitle
A to judgment on the plea of plrne adminixtrartt,
and that the defendant might, notwithstanding,
take advantage, in his defense, of the debts which
he had pleaded.
Such Judgment, although not an estoppel in t In-
sult by A, u, it seems, evidence of assets to be left
; to the jury.
It seems that the neglect of the executor or ad-
ministrator to (lie an inventory, is also a circum-
stance of some weight to charge him with assets.
An outstanding debt due the testator or intestate.
| is not assets in the hands of his executor or admin-
istrator, where there has not been gross negligence
I or collusive, fraudulent and unreasonable delay in
collecting It.
' Citations-1 Balk.. 310, 8. C.: 1 Ld. Kayra., 588; 3
, T. U., 889 ; 1 Johns. Cas-, 276 ; 3 T. R., 683, 6flO.
THIS was an action of atntmpnt. The
cause was originally commenced in the
Court of Common Pleas of Dutches.* County,
and the bill of exceptions taken at the trial
in the court below was removed into this
court by writ of error. A venire facia* de
| ntno being awarded out of this court, the
cause was tried before Mr. Justice Yates, at
the Dutchess Circuit, in September, 1816.
The plaintiffs declared for services rendered
to the defendant's intestate, as his attorneys.
The defendant pleaded several debts of the
| intestate, by specialty, due the defendant and
! others, amounting to about $900, and a debt,
\ by simple contract, due to the defendant, of
$100, and that he had fully administered, ex-
cept goods and chattels of small value ; to
wit : of the value of $1, &c. The plaintiffs
replied, that the defendant had goods and
chattels beyond the assets confessed, and more
than sufficient to satisfy the debt* mentioned
in the plea, wherewith he could have satisfied
the plaintiffs, and tendered an issue to the
country.
At the trial, evidence was given on the part
of the plaintiffs to show the sufficiency of the
assets, which was opposed by testimony on
the part of the defendant. James Grant, a
witness for the defendant, testified that he
was executor of Richard Howard, Sr., the
father of the defendant's intestate, and that
the defendant, as administrator, had often ap-
plied to him for the payment of an obligation
of about $2,000, from the defendant to R.
Howard, Sr., which the witness had always
refused, and that the defendant commenced a
suit thereon against the witness, which was
pending. The witness, on being cross exam-
ined, testified that his ground for resisting it
was that R. Howard was a very old man, and
some time before his death was not competent
to do business, and also that the witness had
985
447
SUPREME COURT, STATE OF NEW YORK.
1817
447*] a set-off ; but *being informed of the
date of the obligation, the witness admitted
that his testator might, at that time, have been
competent to give it. The witness had on
hand as executor $1,200. It appeared the de-
fendant was not entitled to charge more than
the sum of $719.65, to the estate, for money
expended by him, and that he had received
the sum of $1,179.12 ; this, with the addition
of the assets in the hands of Grant, his father's
executor, would amount to above $2,300. The
demand of the plaintiffs was $106.81. It was
proved on the part of the plaintiffs that the
defendant had never filed an inventory, and
they grave in evidence a judgment in the
Court of Common Pleas of Dutchess County,
against the defendant, as administrator, in
favor of one Stevens, on a simple contract
debt due from the intestate. The capias in
that suit was issued a few days after the pres-
ent action was commenced, and the defendant
gave a cognovit therein, by which he confessed
damages to the amount of $110, for which
sum, with costs, judgment was entered against
him in July, 1815.
A verdict was taken for the plaintiffs, sub-
ject to the opinion of the court on a case con-
taining the above facts.
Mr. P. Buggies, for the plaintiffs. If a per-
son administers without making any inven-
tory of the intestate's effects, the law supposes
him to have assets for the payment of all the
debts and legacies, unless he repels that pre-
sumption. (Toll. Ex., 250, 251 ; 4 Burns'
Eccl. L., 265, 266 ; Swinb., p. 6, sec. 6.) So, if
in his inventory the administrator does not dis-
tinguish between sperate and desperate debts,
he will be charged with the whole as assets,
and be put to the proof, if any of them were
desperate. (Peake's Ev., 346, 375, note I;
Buller's N. P., 140, 142.) And all sperate
debts are assets, unless he prove a demand
and refusal. (Shelly's case, 1 Salk., 296.) And
this court, in Plait v. Robins et al. , Adminis-
trators of Smith (1 Johns. Cas., 276 ; 1 Saund.,
333, note 7, 8), held, that on the plea of plene
administravit, the onus probandi lies on the
defendant. Again, payment of interest on a
legacy, by an executor, has been held to be
sufficient proof of assets. (Esp. Dig. , 142 ; 1
Ves., 75; 2 Ves., 194.) It is laid down by
Swinburn. (Swinb., 228), and admitted to be
law (Bac. Abr., Exrs. and Adms., E, 13), that
if an executor enters on the goods of the tes-
tator and makes no inventory, he will be
liable for all the legacies. So Shepherd
(Shep. Touch., 455, 477), says until an inven-
tory is made, it is presumed that the executor
has assets to pay all men, and he cannot de-
duct his own debt first and bar other men by
plea.
448*] * Again; after confessing the judg-
ment in favor of Stevens, the defendant
should have pleaded it, and no assets ultra.
Bv not doing so, he admits assets, and is es-
topped. (1 Salk., 310; 3 T. R.. 686; Shep.
Touch., 457, 479.) So, if an executor pays
legacies before debts, it is a devastavit. (Bac.
Abr., Executors, &c., L, 3.)
Mr. J. Tallmadge, contra. The question is,
whether the defendant had assets, at the time
of plea pleaded, or not. Under a plea of
plene administramt, the defendant may give in
986
evidence all previous payments. If the plaint-
iff elects to take issue on the plea of assets, he
can only take judgment for assets in futuro,
after debts of a higher grade pleaded are paid.
The neglect to file an inventory merely af-
fords a presumption of assets, which may be
repelled by proof. It is only prima facie, evi-
dence against the administrator.
The case of Rock v. Leighton, as reported by-
Lord Raymond (1 Ld. Raym., 589), explains-
the meaning of the fourth position in the re-
port of the same case in Salkeld, and the case
is commented on by Buller, J., who gives a
report of it from an MS. of Lord Holt, in Erving
v. Peters, 3 T. R., 683, 690. The report in
Salkeld is no authority for that case, when we
have the report of Lord Holt himself. The
principle is, that if the administrator suffers
judgment to go by default against him, he
admits assets to the amount of that judgment,
as between him and the plaintiff. To that ex-
tent he is estopped and no further; it is no
estoppel in other suits brought by other per-
VAN NESS, J., delivered the opinion of the
court:
The principal question in this cause is,
whether the confession of the judgment to-
Stevens concludes the defendant, on the ques-
tion of assests. This suit was commenced be-
fore that of Stevens; and if there were no other
debts against the estate of the intestate than
those of the plaintiff and Stevens, there is no-
doubt but that the plaintiffs would be entitled
to satisfaction of their demand. By com-
mencing this suit before Stevens, the plaintiffs-
acquired a right to priority of satisfaction over
him, the debts being of the same degree;
for although an executor has a right to prefer
one creditor to another of the same degree,
yet this right is restrained and controlled by
the commencement of an action against him;
and he is not, in that case, waaranted in
making a voluntary payment of such other
debt to defeat *the party of his rem- [*44J>
edy. When two creditors in equal degree,,
both commence actions, he who recovers judg-
ment first is to be satisfied first; and even in
the last-mentioned case, the right to give a
preference still exists, for the executor may
confess a judgment to the one, and plead such
judgment in bar to the action of the other;
but he is bound to plead it, and if he omits
to do so, he cannot take advantage of it in
any other way. In this case, then, if there
were no other debts, the plaintiff would not
be devested of his prior right to satisfaction,
for the defendant has omitted to plead the
judgment confessed to Stevens, and that he
had no assets ultra. This doctrine will be
found in the case of Rock v. Leighton, 1
Salk., 310; S. C., 1 Lord Raym., 589. Pro-
bably the best report of this case is by Lord
Holt himself, which will be found in Erving-
v. Peters, 3 T. R., 689, in the opinion of Mr.
Justice Buller, who read a note of it from
Lord Holt's manuscript. That case, and the
case of Platt v. TJie Administrators of Smith, in
this court (1 Johns. Cas., 276), as well as others,
also show, what is very well settled and known,
that if a judgment is recovered against an ex-
ecutor by default, on confession, such judg-
JOHNS. REP., 14.
1817
RUOOLES v. SHERMAN.
449
ment is an admission of assets to the amount
of the -mn recovered ; and that in a suit upon
it, suggesting a deccutavit, the production of
the record of such judgment would be con-
clusive of that fact.
But in this case, it is attempted to push this
principle much further ; it is said that, not-
withstanding the defendant has pleaded plene
administrate, yet, that the confession of the
judgment to Stevens is an estoppel, not only
as between the defendant and Stevens, but also
as between the parties to this suit. This is a
doctrine not to be found in any of the cases
that have been cited; and as I apprehend, is
not well founded. The defendant here has
pleaded outstanding specialties, and a debt due
to himself, sufficient to exhaust all the assets
that have ever come to his hands. The rep-
lication puts the latter fact only in issue,
thereby admitting the debt as pleaded ; and
upon this issue, the parties proceeded to trial.
The defendant, upon the trial (as mav be as-
sumed for the purpose of discussing this point),
proved that he had no assets beyond the debts
specified in his plea ; now it seems to me the
necessary consequence would be that the
defendant is entitled to judgment. The con-
fession of the judgment by the defendant to
4oO*] Stevens is conclusive as between *them
that the assests were sufficient to discharge it ;
but these plaintiffs were neither parties nor
privies to that judgment, and it does not,
therefore, estop the defendant from showing
the truth of the fact in this suit. On the ques-
tion put in issue by the pleadings, it may well
be that the confession of the judgment to
Stevens might properly have been submitted
to the jury, as a strong, though not a con-
clusive circumstance, to show that the defend-
ant had assets over and above the debt specified
in his plea, sufficient to satisfy the demand
due to the plaintiffs. Valeat quantum valere
potett.
It appears to me that the case of Rock v.
I^ighton, so much relied upon in behalf of the
plaintiffs, has been altogether misapprehend-
ed. There, two suits had been brought against
the administratrix, one by her brother, Pvke,
and the other by Pugh. In the first P\vke
recovered judgment against her, by nil difit,
and in the other she let judgment go by de-
fault; and a material fact stated is, that the
whole amount of assets was £279, not sufficient
to pay the first judgment. Upon this state of
facts, the court decided that by letting judg-
ment go by default in the one case, when she
might have pleaded the judgment in the other,
with ri' lit inter main* ultra to satisfy it, which
would have been a good bar, she tacitly
admitted that she had assets ultra, and was,
therefore, concluded by such, her admission.
And Lord Holt (I quote from Buller's opinion
in Erring v Peters) says: " So the plaintiff (the
administratrix) might have pleaded the judg-
ment at her brother's suit ; that would have
defended the assets that she had, against the
action brought by Pugh ; but she, having
admitted the assets she had to In- liable to the
action by Pugh, by letting judgment go
by nihtt difit, is in the same condition as
if there had been no judgment against her
at her brother's suit. " The decision in that
case is simply this: that as there were assets
JOHNS. REP., 14.
proved to the amount of £279, and but
two debts against the estate, for which two
suits were pending at the same time, and in
which both the plaintiffs obtained judg-
ment; that the administratrix was liable to pay
both on the ground of her omitting to plead
the judgment first obtained by nil dieit, and
suffering a judgment to go against her by de-
fault in the last, which was an admission of
assets, by estoppel, sufficient to satisfy both.
The administratrix was held to be liable,
not because she had suffered judgment by
* nil dieit, in the suit against her in favor [*45i
of Pyke, but because she had not pleaded that
judgment in bar. and thus made out a com-
plete i'l> IK adminintratit ; and because in the
suit in favor of Pugh, the judgment by default
was an estoppel, and concluded her from
showing the truth of the fact; namely: that the
judgment in favor of Pyke was sufficient to
exhaust the whole of the assets. This case
then proves that the administratrix might have
pleaded pUne adminiritramt, and that her suf-
fering ludgment by nil dieit, at the suit of Pyke,
formed no part of the ground upon which the
decision was founded ; but, on the contrary,
that she was in the same condition as if there
had been no such judgment against her.
Let us now see how these principles affect
this case. Here was a judgment in favor of
Stevens, which the defendant might have
pleaded, if he pleased, and was bound to plead
it. had it been necessary to show that he had
fully administered. Instead of suffering judg-
ment to co by default (as in the case of Ritck
v. Leightori) which would have concluded him,
the defendant pleads a special plea of plene
admini»tramt, upon which the plaintiffs took
issue; and on the trial, the defendant proved
that, independently of the judgment in favor
of Stevens, there were other debts (that is to
say, the debts specified in his plea), entitled to
priority of satisfaction, exceeding the whole
amount of the assets. The plaintiff says he has
no right to show this, because he is estopped
by confessing judgment to Stevens. This is in-
correct, because it has already been shown, by
the case relied upon by the plaintiffs, that that
judgment is no estoppel as to any other persons
than the parties to it; and because the same
case proves that if the amount of the judgment
in favor of Stevens had been sufficient to ex-
haust the assets in the hands of the defendant,
so far is it from being conclusive against him,
he might have pleaded it in bar to this very
action. It would be most unjust, then, that
because an executor has confessed a judgment
in one case, by which he has made himself
liable to pay a debt out of his own estate, that
he should, therefore, be precluded from show-
ing that, independently of the judgment so
confessed, he has faithfully applied all the
effects which came to his hands to the discharge
of other debts due from his testator. I think,
therefore, that, upon this ground, the plaintiffs
have no right to recover.
*The other points that have been [*4J>2
made by the plaintiff are of minor importance,
and equally untenable.
If the demands in favor of the intestate
against Grant, the executor of Richard How-
ard the elder, are to be considered assets in the
hands of the defendant, he has failed to make
Mr
452
SUPREME COURT, STATE OF NEW YORK.
1817
•out his defense ; that this debt has ever been
received, is not pretended, and there is no rea-
son to believe that it might have been collected
by barely demanding it, or that there has been
willful or gross negligence or carelessness, on
the part of the defendant, by which the col-
lection of it has been collusively, fraudulently
or unreasonably delayed. I perceive no
ground, therefore, on which to decide that
these demands are to be considered as assets
in the hands of the defendant. Grant's testi-
mony discloses the actual state of them. There
is no good reason for imputing negligence to
the executor, in not having done more than he
has done to enforce the payment of them.
Whether they are at all recoverable, cannot
now be certainly determined. If these de-
mands are laid out of the case, then the de-
fendant 'has abundantly established his plea,
after making all deductions contended for by
the plaintiffs, and giving them the benefit of
all the unfavorable inferences to be made
against the defendant, from his neglect to file
an inventory, upon which, however, much
greater stress has been laid, in this particular
case, than the facts and circumstances will
warrant. We are of opinion, accordingly,
that the defendant is entitled to judgment.
Judgment for the defendant,
Cited in-14 Hun, 293 ; 16 Barb., 182 ; 2 Redf ., 426.
453*]
*CASWELL
v.
THE BLACK RIVER COTTON AND
WOOLEN MANUFACTURING COM-
PANY.
Vendee of Land, Having Knowledge of Incum-
brance, Possession and Improvements — Action
to Recover Payments must be Brought in Rea-
sonable Time — Action will Lie in, Case of Sale
under Prior Incumbrance.
An agreement was entered into in January, 1814»
for the sale and conveyance of land, a part of the
consideration to be paid on the 1st of March ensu-
ing ; and the residue to be secured by mortgage, at
which time the vendor was to execute a convey-
ance. The land was at that time incumbered by a
mortgage, of which the vendee had notice. The
vendee went into possession of the land, removed a
nursery and some buildings from it, and made sev-
eral payments on account of the principal and in-
terest of the purchase money, but the execution of
the deed and mortgage was postponed by mutual
consent. In 1817, the land not having been sold un-
der the prior mortgage, the vendee brought an ac-
tion, to recover back the money paid on account of
the agreement. Held that after such lapse of time,
and acts of ownership and payments made with no-
tice of the incumbrance, the vendee could not re-
scind the contract, especially as he could not put
the vendor in statu quo ; but that if he did intend to
rescind it, because the vendor could not make a
good title, he ought to have expressed his determi-
nation at the time when the first payment became
due; and that his remedy was in equity and not
in law.
If, however, the land had been actually sold un-
der prior incumbrances, before the commencement
of the suit, so that the vendor could not give a title,
it seems that the action would have lain.
Citations— 11 Johns,, 525 ; 5 Bast, 449.
THIS was an action of assumpsit, brought to
recover back money paid by the plaintiff
to the defendants, on an agreement for the
sale and conveyance of land by the latter to
the former. The cause was tried before His
Honor, the Chief Justice, at the Jefferson Cir-
cuit, in June, 1817.
The defendants, by an agreement dated the
19th January, 1814, executed by their author-
ized agent, agreed to sell and convey by good
deed, to the plaintiff, certain premises in
Watertown, in the County of Jefferson, con-
taining fifty acres, with the buildings thereon;
the deed to be given when the first payment
was made, and the remainder to be secured by
mortgage. The whole of the purchase money
was to be $3,600 ; of which $1,200 were to be
paid on the 1st of March next after the date of
the agreement ; $1,200 in three years from the
said 1st of March, and $1,200 in three years
thereafter, with interest on the whole, payable
annually on the 1st of March. On the agree-
ment receipts were indorsed of the payment
of $1,200, on the 1st of March, 1814 ; of two
payments of interest due on the 1st March,
1815 and 1816, and of $500, paid on the 3d
March, 1817. The first payment, however,
was not made on the day when it became due,
but was postponed by the consent of the par-
ties.
The premises were part of a larger tract,
purchased by the defendants of one Foster,
who had purchased the same of Jewitt, and
given him a mortgage on the property ; and
default having been made in the payment,
Jewitt had, on the 10th May, 1817, advertised
the mortgaged premises, under the -power in
the mortgage, for sale on the 15th November.
The plaintiff, at the time of making the agree-
ment for the purchase, had notice of this in-
cumbrance. The plaintiff took possession of
the premises, and was in possession at the time
of the trial. In the spring of 1816 he removed
a nursery and some buildings from the
*land ; and in the spring of 1817 the [*454
defendants caused it to be surveyed at the re-
quest of the plaintiff, who then proposed to
receive a deed, and secure the residue of the
purchase money, by a mortgage on property
in Oneida County. The survey of the land
and the execution of the deed and mortgage,
pursuant to the agreement, had been post-
poned from time to time, since the first pay-
ment was made, by mutual consent. On the
16th May, 1817, a few days after the survey, a
deed, duly executed by the defendants, was
tendered to the plaintiff, on their behalf, and
a demand made of the money due and the
mortgage ; .but the plaintiff refused to accept
the deed. The suit was commenced in June,
1817, and such proceedings had, by consent,
that it was brought to trial at the Jefferson
Circuit, in June last.
A verdict was taken for the plaintiff, by
consent, subject to the opinion of the court on
a case, which contained a stipulation that if
the plaintiff was not entitled to recover, judg
ment should be rendered for the defendants
for the balance due on the agreement, being
$895.24.
Mr. Storrs, for the plaintiff. There is no
difficulty as to the construction of the contract
in this case. The only question is, whether
the plaintiff is not entitled to recover back the
money he has paid. An agreement to give a
JOHNS. REP., 14.
1817
CABWELL v. BLACK RIVER COTTON AND WOOLEN MANUFACTURING Co.
454
good and sufficient deed, means an operative
conveyance : one that carries with it a good
and sufficient title to the lands to be conveyed.
The vendee is not bound to accept a doubtful
title. (Clute v. Robuon, 2 Johns.. 595, 615.) In
Jonet \. Gardner, 10 Johns., 266, the court
said that a covenant to convey a title meant
the legal estate in fee, free and clear of all
valid claims, liens and incumbrances whatso-
ever. In Juilton v. Wast, 11 Johns., 525,
which is a case in point, the very question
was decided. It is there laid down that if the
vendee has paid part of the consideration
money, according to the contract, and the
vendor is unable to convey a good title, pursu-
ant to the agreement, the vendee may disaffirm
the contract, and recover back the money he
1ms paid. No matter whether the plaintiff
knew of the mortgage or not. Van Ness, «/..
in delivering the opinion of the court in that
•case, says the giving the note, deed, bond and
mortgage, were all to be simultaneous acts;
but even if it were otherwise, as the plaintiff
was not in a situation to convey a title, ac-
cording to the terms of sale, the defendant
was not bound to carry into effect the stipula-
tions on his part. So, in Qretnby v. Chetvert,
9 Johns., 126, it was admitted by the court
to be clear law, that if the defendant had
455*] *waited until the day of payment ar-
rived, and for executing the deed, and the
plaintiff was not in a situation to convey a
good title, by reason of an outstanding mort-
gage which remained unsatisfied, the defend-
ant would Imve a right to consider the con-
tract as at an end and rescinded. The same
doctrine was again laid down, in Tiicker v.
Wood*, 12 Johns., 190, and the case of Jud*on
v. Wat* was referred to as establishing the
principle for which we contend. [Here he
was stopped by the court.]
Mr. Van Buren, Attorney-General, contra.
The plaintiff, to entitle himself to recover in
this action, must show either a breach of con-
tract by the defendant, or fraud. In Van Ep»
v. The Corporation of Schtntctady, 12 Johns.,
436, 442, where the covenant was to give a
deed, the court said that tendering a deed
without covenant or warranty, was a suf
flcient performance ; for an estate in fee
may be created without any warranty. So in
Ketfhvm v. Evcrtnon, 13 Johns., 859, where
the agreement was to give a deed of the prem-
ises on a certain day, and the defendant tend-
ered a mere quitclaim deed, at the day and
place specified in the agreement, the court
held it to be a good performance of the con-
tract ; and the court laid down the rule that
a party who has advanced money and done an
act in performance, and then stops short and
refuses to proceed to a completion of the
agreement, the other party being ready and
willing to perform on his part, cannot recover
back the money he has paid or compensation
for what he ha's done. An outstanding mort-
gage is no breach of the covenant of seisin. (7
Johns., 376.) The defendant here executed
and tendered a good deed, which was all they
covenanted to do. In Niton v. Hyuerotl, 5
Johns., 58, It was decided that a conveyance
or assurance is good and perfect, without war-
ranty or personal covenant.
If a sale of a chattel is sought to be rescind-
JOHNS. RKP., 14.
I ed, on the ground of any defect, the property
must be returned to the vendor, before the
: vendee can bring his action to recover back
his money. Here, the plaintiff is in the pos-
I session of the land, and has removed a nursery
and buildings. If the plaintiff recovers back
his money, how are the defendants to be com-
pensated for the use and occupation of the
! property, or for the waste and damage com-
i mined while in the plaintiff's possession ? He
! ought first to have given up the possession of
! the land, and put the defendant in the same
; situation in which he stood at the time the
contract was made. In Hunt v. Silk, 5 East,
449, which was an agreement for the lease of
a house, the Court of King's Bench held
*that a contract could not be rescinded [*4.5<l
by one party for the default of the other, un-
less both parties can be put in *tatu quo, as be-
fore the contract.
Again ; the plaintiff has paid the money on
the contract, with a full knowledge of all the
circumstances. (4 Johns., 240 ; 2 East, 469 ;
1 Mass., 65 ; 1 Esp. Cas.. 48.)
Mr. Stom, in reply. In Nixon v. ffygerotl
an attorney was authorized to sell and execute
conveyances and assurances in the law ; and
the court held that this authority was to be
strictly pursued.
The rule as to returning property by the
vendee before bringing an action to recover
back the* money he has paid, applies only to a
sale of chattels, and has no application to con-
tracts for the sale of land. Suppose the de-
fendants had filed a bill in equity for a specific
performance of the contract, would not that
court have immediately dismissed the bill ? It
is a settled rule of that court that a purchaser
is not bound to accept a doubtful title, or take
an estate which the court cannot warrant to
him. (Sugd. Vend., 210 ; 2 Ves., 59, 679 ; 2
Pr. Wms. 198 ; 1 Ves., Jr., 565.)
VAN NESS, J., delivered the opinion of the
court :
The deed in this case was to be given on the
1st of March, 1814, when the plaintiff was to
make the first payment, and to execute his
bond and mortgage for the balance. On that
day he paid $1,200, pursuant to the contract ;
and he also discharged the interest upon the
balance on the first days of March, 1815 and
1816 ; and on the 3d of March, 1817. when the
second installment had become due, he paid
the further sum of $500. The plaintiff also
took possession of the property, with the con-
sent of the vendors, soon after the contract
was made, and has continued in possession
ever since ; and while he was so in possession
he removed a nursery and some other build-
ings on the premises to another place.
The question now is, whether or not. under
such circumstances, the plaintiff is at lil>erty
to abandon the contract and can recover back
his money, by this action.- I think he cannot.
In giving my opinion in this case. I confine
myself to the facts which characterize it ; be-
cause, in this class of suits, every case depends
so much upon its own peculiar facts and cir-
cumstances, that it is unsafe to lay down any
general principles. All the cases which have
been cited in support of this action are djstin
guishable from this case. That of Judson \.
456
SUPREME COURT, STATE OF NEW YORK.
1817
Wass, 11 Johns., 525, which was very much
457*] pressed upon us, *was a suit by the
vendor to recover the money for which the
land had been sold, and was decided upon
principles not at all applicable to this case.
The purchaser there embraced the first op-
portunity that was offered to disaffirm the con-
tract. The plaintiff in this case was bound to
make a stand when his first payment fell due,
and if the defendants were not then in a situa-
tion to convey to him a good title to the land,
exonerated from the mortgage to Jewitt, and
every other incumbrance upon it, he might, at
that time, have put an end to the contract :
and if any payments had been previously
made he could have recovered them back.
Instead of this, with full knowledge of the
mortgage, and without demanding a convey-
ance, but, on the contrary, agreeing to post-
pone the execution of it, he made the payments,
as they from time to time fell due, down to
1817, when he paid $500 more. In addition
to this, he entered into possession, removed a
nursery and some buildings, and treated the
property in every respect as his own. During
this period, also, he made a proposition to pay
the defendants the whole consideration, by
assigning to them a bond and mortgage. After
such a series of acts in affirmance of the con-
tract, I think, at law, there is an end to the
privilege of rescinding it, and of the right to
recover back the money voluntarily paid upon
it.
The case of Hunt v. Silk, 5 East, 449, is
very like the present, and in point ; and I
fully accede to the doctrine there laid down.
The plaintiff here cannot put the defendants
in statu quo, in consequence of his own acts ;
and to allow him, at this distance of time,
to say that he will not take the land, but will
have his money back again, would be going
further than any case has yet gone, and is
neither required by sound policy nor any
principles of justice. If the plaintiff may now
rescind the contract, I see no reason why he
may not do it ten years hence, and after he
has paid all the money, provided Jewitt
should not, in the meantime, have foreclosed
his mortgage. If the land had been actually
sold under that mortgage before this suit was
commenced, the case would have been ma-
terially different ; for then the defendants
would" not have been able to give any title at
all.
This is a proper case for a court of equity,
where perfect justice can be done to both par-
458*] ties.1 Unless Jewett has foreclosed *his
mortgage, the plaintiff has no remedy at law.
The Court of Chancery can compel the de-
fendants to give a good title, and if they are
not able to do so, that court would order them
to refund the money they have received, de-
ducting such sum for the use of the land and
the deterioration of it by the plaintiff, if it be
deteriorated by him, as would be just and
reasonable. The defendants are entitled to
judgment, pursuant to a stipulation in the
case, for the sum of $895.24.
Judgment for tJie defendants.
1. See 1 Johns. Ch., 132, 274, 357, 370.
940
HYSLOP AND CAMPBELL
v.
CLARKE ET AL.
Assignment — Trust, to Pay Creditors — Refusal
of Creditors to Accede to Terms, Void under
Statute of Frauds — Does not Protect Property
in Hands of Assignees against Executions —
Conveyance, Bad in Part by Statute, is Void
in Toto.
A and B assign their property to C and D, in trust,
to pay a certain debt due from them to C, and to-
pay their other creditors, on condition of their re-
leasing their demands : and in case any of those
other creditors should refuse to give such discharge,
then in further trust, after paying the debt to C, to
pay such of the creditors of the assignees, as they
should appoint. Certain of the creditors of A and
B refused to accede to the terms of the assignment,,
and having recovered judgments against them,
levied executions on their property in the hands of
C and D. Held that altogether a debtor may law-
fully prefer one of his creditors to another, yet that
this was an attempt to keep the property in the
power of the debtors, to enable them to give such
preference at a future period, and to compel their
creditors to acquiesce in the terms offered them ;
and that when any of the creditors dissented, the
trust failing as to all. except C, resulted for the
benefit of the assignors: that, therefore, the as-
signment, as regarded the other creditors, was void
by the Statute of Frauds ; that part being void, the
whole must be void ; and that the assignment could
not be used by C and D to protect the property in
their hands against the executions of the other
creditors until the trust in favor of C had been satis-
fied.
Where a conveyance is good in part, and also bad
in part, as against the provisions of a statute, it
is void in toto, and no interest passes to the grantee
under the part which is good.
Citations-3 Co., 78 ; Plowd., 54; Hob.. 14 ; Stat.
23 Hen. VI.; 14 Hen. VIII., fol. 15; 1 Mod., 35.
THIS was an action of trespass, and was
tried before His Honor, the Chief Justice,
at the Albany Circuit, in April, 1817.
The declaration was for taking certain goods
and chattels of the plaintiffs. The defendants
severally pleaded the general issue, and the
defendant Clarke gave notice, with his plea,
that the goods were seized under an execution
on a judgment which he had recovered against
Wilbur & Barnett.
At the trial, the plaintiffs gave in evidence
an assignment to them from Melancthon Bar-
nett and Daniel Henry, dated the 1st of Janu-
ary, 1817. This assignment recited that on
the 15th September, 1813, Melancthon Bar-
nett and one Simeon Gr. Wilbur entered into
copartnership under the firm of Wilbur & Bar-
nett ; that on the 18th June, 1816, Wilbur trans-
ferred his interest in the partnership to Daniel
Henry, on his agreeing to pay one 'half of the
debts of the partnership, and to indemnify
Wilbur against the same ; that on the same
day Barnett & Wilbur entered into partnership
under the firm of Melancthon Barnett & Co.,
whereby they became joint owners of all the
stock in trade of Wilbur & Barnett, and were
equally liable for the *payment of their [*45J>
debts, and had continued to do business in
partnership until the date of the assignment ;
that Barnett & Wilbur had contracted debts to
the amount of $13,877.79, which remained un-
paid, and that Melancthon Barnett & Co. had
contracted debts to the amount of $5,895.32,
which were also unpaid ; they, therefore, to
satisfy their debts, assigned the goods, debts,
&c., mentioned in certain inventories or
JOHNS. RFP., 14.
1817
HYSLOP v. CLARKE KT AL.
459
schedules annexed, to the plaintiffs. "In
trust, however, nevertheless, that the said
Robert Hyslop and William Campbell, or the
survivor of them, shall convert the property
above assigned into money, and out of the
proceeds thereof that they shall, in the first
place, pay and satisfy the debts mentioned and
described in the said inventories, and due to
the said Robert Hyslop & Co., amounting in
the whole to $1,925; and this preference is
given to the said Robert Hyslop (if indeed it
shall eventually appear to be any preference),
in consideration of his agreeing to take upon
himself, and to execute the several trusts upon
which the said property is assigned ; and after
paying and satisfying the same debt due, as
aforesaid, to the said Robert Hyslop & Co.,
this assignment is hereby declared to be upon
the further trust, that if the said several credit-
ors of Wilbur & Barnett, and also those of Me-
lancthon BarnelUt Co., shall severally and re-
spectively discharge the said Melancthon Bar-
nett and Daniel Henry, and also the said
Simeon O, Wilbur, of and from all joint and
several liability to pay the said debts in the
schedules mentioned, then, and in that case,
the said trustees and the survivor of them shall
pay to the several creditors of both firms men-
tioned in the said schedules the whole amount
of their several and respective debts, if the
proceeds of the property hereby assigned shall
be sufficient for that purpose ; but if not, then
a sum to each one in proportion to the amount
of his debt. But in case the said creditors, or
any of them, shall refuse to give such dis-
charge, then, and in that case, the said M.
Baruett and D. Henry hereby declare that the
aforesaid trust, created as aforesaid, shall
cease and become void, and the said trustees
are hereby required and directed not to execute
it. And it is further declared, that in case of
such refusal of the aforesaid creditors, or any
of them, to give such discharge, the said trust-
ees shall then hold the property hereby as-
signed in trust, in the first place, to pay the
said debt to the said R. Hyslop & Co., as
4OO*J *above mentioned, and then upon the
further trust to pay the whole of the avails of
the property hereby assigned, to such of the
aforesaid creditors as the said M. Barnett and
D. Henry shall appoint : which appointment
shall be made for the direction of the said
trustees as soon as such refusal to give the
aforesaM discharge shall be known ; and upon
the further trust, in any event, that the over-
plus, after paying all the said debts (if any
overplus shall remain), shall be paid to the said
M. Barnett and I).. Henry, their heirs, execu
tors, administrators or assigns."
The assignment was accompanied with an
actual delivery of the property mentioned in
the schedules. The goods mentioned in the
declaration were levied on by the defendant
Hempstead (to whom notice of the assignment
was given at the time of the levy), under three
executions issued respectively by the defend-
ant Clarke, and the other two defendants, on
judgments recovered against Wilbur & Barnett.
Evidence was given on the part of the defend-
ants of declarations by Barnett and Henry,
that they intended to postpone such of their
creditors as sued, and that several debts due
them, amounting to above $1,800, had not
JOHNS. REP., 14.
been assigned, but it appeared that these debts
were intended to be applied to the payment of
certain confidential debts due from Wilbur &
Barnett. It \va- admitted that the defendants
had refused to assent to the terms of the assign-
ment to the plaintiffs previous to issuing the
executions.
A verdict was found for the plaintiffs, sub-
ject to the opinion of the court on a case con-
taining the facts above stated.
Mr. Henry, for the plaintiffs, contended that
the assignment was valid. It was a case mere-
ly of preference. In case any creditor sued,
he was to be the last paid. In the deed of as-
signment, all the creditors are put on an equal
footing ; and no question is made as to the
fairness of the debts. The plaintiffs are to be
paid first in consideration of their taking upon
themselves the burden of the trust ; and the
other creditors are to be next paid equally
together. At common law. a debtor, in fail-
ing circumstances, has a right to prefer one
creditor to another ; nothing but a statute of
bankruptcy can prevent the exercise of that
right ; ana this preference may be given pend-
ing a suit against him. (E»tinck v. Cattand, 5
T. R., 420 ; Uotoird v. Andaman, Id., 235;
Meux v. HawU, 4 East, 1 ; 8 T. R., 528 ; 3
Johns., 71 ; 5 Johns., 385, 417, 422, 429.)
There is no evidence of any fraud or collusion
between the plaintiffs and 'the assignees. It is
not a 'voluntary conveyance ; but an [*4O1
assignment to a creditor himself in trust for
himself and other creditors. (Rob. on Fraud.
Conv., 431 ; 3 Caines, 220, 225.)
Again ; whatever may be the opinion of the
court in regard to that part of the assignment
which declares the trust for the other credit-
ors, it is unquestionably valid as regards the
plaintiffs. Their rights cannot be impaired
or affected. The execution, at the suit of a
particular creditor, who is not named in the
assignment, or who refuses to accept it, cannot
touch the goods in the hands of the trustee.
The case of Caillaud v. Evtwick, in the Ex-
chequer Chamber (2 Anst., 381), is a direct
authority in point, and is conclusive in favor
of the position for which we contend.
Me»*r*. Hale and Fan Vechten, contra. We
do not deny the right of a debtor to prefer one
creditor to another ; nor do we question the
authority of the cases cited by the counsel for
the plaintiffs ; but we think this case is clear-
ly to be distinguished from them. The as-
signment, on the face of it, is mala fide. It is
an attempt on the part of the debtor to coerce
the other creditors to accede to his terms. Is
this honest or fair ? Though a debtor may
honestly prefer one creditor to another, he
has no right to place all his property in the
hands of one creditor, so that his other credit-
ors cannot get at it, unless on the terms and in
the manner he plea.ses to describe. That we
have no general bankrupt law is a reason why
the courts ought to look at these assignments
with suspicion, and scrutinize them with
greater severity. The very preference in-
tended by this assignment is evidence of fraud;
the manner of it shows an in tent of the debtors
to "delay, hinder, and defraud their credit-
ors." It is clearly within the Statute. (10
BCSS. ch. 44, sec. 2 ; N. R. L., 75.) [Here the
counsel discussed the facts in the case.] Will
941
401
SUPREME COURT, STATE OF NEW YORK.
1817
the law tolerate such a contrivance to place
the property of a debtor beyond the reach
of his creditors 1 It is the policy of the
law to aid a vigilant creditor. But by this
assignment, the vigilant creditor who seeks,
by a vigorous prosecution of his right,
to recover his debt, is to be postponed to
the last, and, perhaps, indefinitely, at the
pleasure of the debtor. The plaintiffs are
privy to the fraud, and are not entitled to
any benefit from the deed. They were not
made trustees because they were creditors, but
merely because they were willing to accept the
trust. The assignment is void by common
law, as well as by the Statute, and must be
deemed void ab initw. (Sands v. Codwise, 4
Johns., 536; 3 Johns., 71; 1 Johns., 370;
2 Johns., 282 ; 5 Johns., 412, 535 ; 4 Ves., 396.)
462*] The possession of *the trustees must
be deemed the possession of the assignors.
The case of Burd v. Smith, 4 Dall., 76, 86,
though not so strong in its circumstances as
the present, is in point, to show that such an
assignment is fraudulent and void. In Wilkes
& Fontaine v. Ferris, 5 Johns., 335, 344, the
court makes a distinction, and say, that if the
assignment is made for the purpose of the re-
sulting trust, it is void, and the property is
not protected against a judgment creditor. If
the assignment is void as regards the other
creditors, or as to the resulting trust, it is void
in toto. The Statute makes the whole void.
(Rob. on Fraud. Conv., 198 ; Cadogan v. Ken-
net, Cowp., 432 ; 1 Burr., 395, 396 ; Fermar's
case, 3 Co., 78.)
Mr. Henry, in reply, said that the whole
argument of the counsel for the defendants,
and the authorities cited by them, went only
to destroy the preference given by the plaint-
iffs. Yet the right to give such preference,
unless taken away by a bankrupt law, was un-
questionable.
If the preference is allowable and lawful,
where is the evidence of fraud ? Specific
property is delivered to a bonafide creditor, in
trust, for himself and other creditors. There
is nothing fraudulent or dishonest in this.
There is no secrecy or concealment. Is there
any evidence of fraud on the face of the as-
signment itself ? There is no distinction made
between the property or creditors of Barnett
& Wilbur or of Barnett and Henry.
VAN NESS, /., delivered the opinion of the
court :
The question in this case is, whether the as-
signment to Campbell and Hyslop is valid in
law or not. This must, in a great measure, be
determined upon the .face of the instrument
itself, as a question of law. The assignment
is made in trust ; first, to satisfy a debt due to
Hyslop & Co.; second, to pay all the other
creditors, proportionally, on condition of their
executing releases of their respective demands;
and in case the creditors, or any of them, shall
refuse to give such releases, then it is declared
that the last-mentioned trust shall cease and
determine, and the trustees are required and
directed not to execute it ; third, in case of
such refusal of the creditors, or any of them,
to give such discharge, then, in trust (after
paying the debt to Hyslop & Co.), to pay the
whole of the avails of the property assigned,
to such of the creditors as Barnett and Henry,
the assignors, shall appoint, *as soon [*4t>3
as such refusal shall be known ; fourth, to
pay the overplus, in any event, to Barnett and
Henry,
On the part of the plaintiff, it is argued that
a debtor has a right to prefer one set of credit-
ors to another, and that this assignment is a
bonafide exercise of such right. If that were
true, there would be no difficulty in the decis-
ion of this cause. It has, frequently, been
determined, both in this court and in England
also, before the introduction of the bankrupt
system, that it is lawful to give a preference
to particular creditors ; and if this assignment
was calculated purely to effect that object, it
would be valid. But I think it goes greatly
beyond such a purpose, and contains pro-
visions which render the whole, in judgment
of law, fraudulent and void. It does not
actually give a preference, but is, in effect, an
attempt on the part of the debtors to place
their property out of the reach of their credit-
ors, and to retain the power to give such pref-
erence at some future period. One object
evidently was to coerce the creditors to ac-
quiesce in the terms offered to them. The
language held to them is this : "If you will
release your debts, you may participate in the
benefits that may result from this assignment ;
but if you refuse, we will lock up our proper-
ty indefinitely, in such a way, that whether
you ever get any part of it shall depend upon
our will and pleasure ; those of you who have
shown a disposition to submit to the terms we
have prescribed may expect some favors from
us ; but you who have presumed to murmur
or to hesitate, and you, particularly, who have
refused to comply with what we have deter-
mined to be just and reasonable between us,
shall have nothing."
The moment any of the creditors (and there
were, in point of fact, several) refused to ac-
cede to the conditions of the assignment, the
trust for the benefit of all the creditors ceased.
What, then, was the condition of the proper-
ty ? Until a new trust was declared, most
clearly (except as to Hyslop & Co.'s debt) it
was held in trust for the assignors themselves,
and so it would continue to be held until they
saw fit to make a new declaration ; leaving it
for them to determine both as to the time and
the manner of doing it. Nor can I perceive
how the creditors could compel the assignors
to make a new declaration of trust by a bill of
equity. The suggestion that they could, pro-
ceeds on the ground that the assignment, in
this particular, is legal ; and if that be true, it
follows that the assignors would have the
*right, which could not be controlled [*4C4
by a court of equity, to designate such credit-
ors to whom the avails of the property as-
signed should be paid as they might arbitrari-
.ly select. Now, as it is utterly unknown whom
they would select, as the objects of their favor,
what creditor would be willing (admitting, for a
moment, that it is competent for anyone of them
to do it) to file a bill, when it is clear, in case a
decree should be made, ordering a new trust
to be declared, that the assignors would have
the power to exclude the very creditor who
should be the complainant V After due con-
sideration, I am utterly unable to discover any
JOHNS. REP.. 14.
1817
HlNXAX V. MOCLTON.
464
adequate relief for the creditors in a court of
equity ; but whether they could obtain relief
there'or not is quite immaterial in this case.
An insolvent debtor has no right to place his
property in such a situation as to prevent his
creditors from taking it, under the process of I
a court of law, and to drive them into a court ;
of equity, where they must encounter great ',
expense and delay, unless it be under very '
special circumstances, and for the purpose of |
honestly giving a preference to some of his ;
creditors, or to cause a just distribution of his
estate to be made amongst them all. No such i
purpose is pretended in this case.
The event, upon the happening of which the !
trust for a distribution among all the creditors
was to become void, has taken place ; and the i
executions were levied before any new dec- !
laration of trust was made ; indeed, for aught
that appears, no such declaration has ever yet ;
been made. At the time of the levy, the're- j
fore, the property (except as to Hyslop & Co.)
was held in trust, for the debtors ; and if they
can keep it locked up in this way, in the hands
of the trustees, and set their creditors at de- i
fiance for three months, they may do so for j
three years or for any indefinite period. 1 1
think, therefore, that this part of the assign-
ment is void, under the Statute of Frauds ; and
that it would be establishing a most dangerous
precedent to declare it to be valid.
But it has been urged, that admitting this
assignment to be void, as to that part of it. yet
it is good as it respects the trust for the pay-
ment of .the demand of Hyslop & Co., and
that the legal interest in the whole of the prop-
erty assigned is vested in the trustees, so as to
protect it against the executions by virtue of
which it was seized, until such trust has been
executed and satisfied. The better opinion
4<55*] seems to be, that even at *common
law, a deed, fraudulent in part, is altogether
void. In Fermor'i case, 8 Co. , 78, it is said :
" The common law doth so abhor fraud and
covin, that all acts, as well judicial as others,
and which, of themselves, are just and law-
ful, yet being mixed with fraud and deceit,
are, "in judgment of law, wrongful and un-
lawful." And in the case of Wimbuh v. Tail-
bou, Plowd., 54, Montague. Ch. J., lays down
the same doctrine very strongly. " Coviu,"
says he, " may be when the title is good, and
the title shall not give benefit to him that has
it by reason of the covin ; for the mixture of
the good and evil together makes the whole
bad ; the truth is obscured by the falsehood ;
and the virtue drowned in the vice." The
principles established by these authorities are
sound and salutary, and a firm and energetic
enforcement of tliem would go very far to
baffle the multiplied attempts that are unceas-
ingly made by insolvents, to cover their prop-
erty from their creditors, by every shift and
contrivance which human ingenuity can de-
vise. A grantee who voluntarily becomes a
party to a deed which is fraudulent in part,
justly forfeits his right to claim a benefit from
another part, that would otherwise have been
good. It is not to be denied, however, that
there are some cases that look the other way,
and it is not on this ground alone that the
point now under consideration is decided ; for
admitting that this assignment might, at com-
JOHNB. HEP., 14.
mon law, operate so far as to protect the trust
for the benefit of Hyslop & Co., it is void, in
toto, for another reason. It appears to be an
established rule, that, where a bond is void in
part, as against the positive provisions of a
statute, the whole bond is void This dis-
tinction was taken in the case of Norton v.
Siinnu*, Hob.. 14. between a bond, made void
by statute, and by the common law ; for upon
the Statute 23 Hen. VI., if a "sheriff will
take a bond, for a point against that law, and
also for a due debt, the whole bond is void,
for the letter of the statute is so ; for a statute
is a strict law ; but the common law doth
divide according to common reason, and hav-
ing made that void which is against law, lets
the rest stand ; as is 14 Hen. VIII., fol. 15."
It is mentioned, also, as a saying of Ix>rd
Hobart, that "the statute is "like a tyrant,
where he comes he makes all void ; but the
common law is like a nursing father, and
makes void only that part where the fault is,
and preserves the rest." (Malertrer v. Red»ha\r.
*1 JIod.,35.) The principles upon which [*4O«
the case of Norton v. Simme* was decided are
applicable to deeds of every description which
are void, in part, as against the statute. The
Statute of Frauds declares " every grant, alien-
ation, bargain, conveyance," &c., made con-
trary to its provisions, "to be utterly void,
frustrate and of no effect." This applies to
the whole deed, even though part of it may
have been good at common law. Indeed, ff
the whole of the conveyance, made in viola-
tion of a statute, is not held to l>e void, merely
because it may be good in one particular, it
would be very easy to elude the Statute in
every case. One good trust might always "be
inserted ; so that what could not be accom-
plished directly, would be attained indirectly
(of which this very case affords a striking
proof), and in this manner, the fraudulent
purpose would be easily effected, notwitlf-
standing the statute, and the triumph of debt-
ors over their creditors would thus be com-
plete. My reflections upon this case have re-
sulted in a perfect conviction that this assign-
ment cannot be supported, and of course, that
the defendants are entitled to judgment ; and
this is the opinion of the court.
Judgment for the defendant*.
Distinguished -17 Johns., 106; 9 Peters, 680; 4
Mason. 228.
< it. .1 in— 18 Johns., 94; 20 Johns., 449, 573; 5 Cow..
570; 11 Wend., 185; 6 Hill. 438: 4 Denio. 221: 5
Johns. Ch., 333; Hopk.;402; 4 Paiife, 37; 1 Edw., HI,
458 : 1 SartH., Ch.. 10, 355 ; 10 X. Y., «6 : 15 N. Y., 1 1« :
37 X. Y., 139; 38 X. Y., 12: 44 N. Y., 2ft.'; 2 Barb.. 309;
B Barb., 476; 12 Barb.. 178; 20 Barb.. 487; 32 Barb..
240; 3« Barb., 317; 25 How. Pr.. 253,516; 14 Abb. Pr.,
68 ; 10 Bos., 859. 424 ; 2 Lcfr. Ol«., 73 : 3 Lejr. Obs.. 93 ;
4 Leg. Ube., 425: 4 Mason. 231, 224; 1 Wall., 243.
HINMAN P. MOULTON.
Sureties — Indorixment on Execution to Pay Debt
and Co*t*, Value Received— h l*romi»e to
Plaintiff— J» Valid, fifing on Sufficient Con-
nderativn.
Whore the plaintiff, who had recovered a judjr-
ment In a Justice's court, and taken out execution,
« lin •«•!••• 1 the constable to take security from the •!•-
041
466
SUPREME COURT, STATE OP NEW YORK.
1817
fendant, rather than carry him to jail, and the con-
stable took as security, the undertaking- of A in-
dorsed upon the execution, by which he proposed
to pay the debt and costs, in the life of the execu-
tion, for value received : in an action by the plaints
iff in the execution against A on his undertaking ;
it was held that this was a promise to the plaintiff
himself, whether A knew of the constable's au-
thority to take security or not : that it was a valid
security, and not for ease and favor ; that there was
a good consideration in fact, the release of the debt,
by discharging the defendant from arrest, and that
the words value received " were a sufficient con-
sideration expressed at least, prima facie.
Citation— 8 Johns., 376.
IN ERROR, on certiorari to a justice's
court.
The plaintiff below obtained a judgment,
before a justice, against one Sheldon, for
$12.70, on which an execution was issued.
On the trial, one Spire, a constable, testified
that he received the execution from the plaint-
iff, with directions to take security for the
amount, rather than to carry Sheldon to jail.
He accordingly took, as security, an indorse-
ment on the execution, signed by the defend-
ant, in these words : "I promise to pay the
amount of this execution in the life, debt
467*1 *and costs, value received." The wit-
ness discharged Sheldon, and delivered the
execution and indorsement to the plaintiff.
The plaintiff then offered to prove that the
defendant had received property from Sheldon,
to indemnify him for paying the execution ;
but this the justice overruled. Spire further
testified that when he took the memorandum
from the defendant he told Sheldon of his
authority to take security, which, however,
the defendant did not hear. The justice gave
judgment for the defendant.
Per Curiam. This is a promise, beyond all
doubt, to the plaintiff himself. The execution
was in his favor, and he authorized the con-
stable to take security ; and whether this au-
, thority was known to the defendant or not is
immaterial ; it was stated to Sheldon ; and if
it were material to the defendant to know it,
he ought to have inquired of Sheldon. The
constable took the security by direction of the
plaintiff, who afterwards acccepted of it, and
Sheldon was completely discharged from the
debt, on being released from the arrest by the
agent of the plaintiff. This is not a security
taken for ease and favor. Taking the execution
and indorsement together, it is a promise to pay
to the plaintiff the amount of the execution in
thirty days (the time during which the execu-
tion would be in full life), and was accepted in
satisfaction of the judgment. • If tie consta-
ble had taken the defendant's note of hand in
payment by the plaintiff's order, there could
not be a doubt but that the note would have
been valid. It is said that there is no consid-
eration for the promise expressed in it. This
is a mistake. The words "value received"
are a sufficient consideration, at least prima
facie ; and here was a good consideration, in
fact, and the plaintiff, moreover, offered to
prove that the defendant below was indemni-
fied. The case of Skelton v. Brewster, 8 Johns. ,
376, is in point.
Judgment reversed.
Cited in— 67 N. Y.. 488 ; 16 How. Pr., 476.
044
*BENTLEY v. MORSE. [*468
Money Paid— Receipt Given — Action for Same
Money — Subsequent Promise to Refund if
Receipt is Produced, is Binding.
Where money has been paid, and a receipt taken,
and afterwards the party to whom it was paid
brings an action for the same money, and recovers
through the omission of the defendant to produce
the receipt in his defense, a subsequent promise by
the plaintiff in that action, that if the defendant
had the receipt, he would refund the money, ia a
valid promise, of which the moral obligation to
repay the money is the consideration.
IN ERROR, on certiorari to a justice's
court.
The plaintiff in error had an account, for
work, against the defendant in error, which
the latter paid, and took the receipt of the
plaintiff in error, for $24.90. In November,
1815, the plaintiff in error brought an action
aguinst the defendant in error, on his account,
and recovered judgment. It did not appear
that any defense was made. In December, in
the same year, the parties happening to be to-
gether, the defendant observed to the plaintiff
that he had paid him a sum of money and
held his receipt for it (alluding to the receipt
above mentioned), and had been since com-
pelled to pay him a second time ; the defend-
ant denied any knowledge of the payment or
of giving a receipt, but promised that if the
defendant had such receipt he would repay
him the amount of it. The present action was
founded on that promise ; and the defendant
in error, who was plaintiff in the court below,
at the trial, produced the receipt in evidence.
The defendant below offered the record of the
former judgment in evidence, as a bar to the
action, but it was overruled, and a verdict and
judgment were rendered for the defendant in
error.
Per Curiam. In con sequence of the omis-
sion of the defendant in error to make a de-
fense in the former action against him, and to
produce his receipt to show the payment of
the debt, he was forever barred from maintain-
ing an action to recover back the money he
had paid ; and the question now is, whether
the promise to repay the amount of the money
expressed in the receipt is valid in law.
The debt having been paid, the recovery in
the former action was clearly unjust ; and
though in consequence of his neglect, the de-
fendant in error lost all legal remedy to recover
back his money, yet there was such a moral
NOTE.— Contract* — Consideration — Moral obliga-
tion as.
A. moral obligation has been held a sufficient con-
sideration to support a promise. Stewart v. Eden, 2
Cai., 152: Smith v. Holland, 61 Barb., 333; Watkins
v. Halstead, 2 Sandf ., 311 ; Doty v. Wilson, 14 Johns.,
378; Scouton v. Eislord. 7 Johns., 36; Early v. Ma-
hon, 19 Johns.. 147 ; Hice v. Welling, 5 Wend.. 595;
Frear v. Hardenbergh, 5 Johns., 272; Blodget v.
Skinner, 15 Vt., 7 16; Farmers v. Flint, 17 Vt., 508;
Pritchard v. Howell, 1 Wis.. 131; Lee v. Nugger-
idge, 5 Taunt., 37; Shippey v. Henderson, ante,
178, note.
This doctrine is not fully sustained by the authori-
ties. The better doctrine seems to be that the
moral obligation must have a prior legal or equita-
ble claim connected with it. Edwards v. Davis, 16
Johns., 283, note ; Goulding v. Davidson, 26 N. Y.,
604 ; Ehle v Judson, 24 Wend., 97, note.
JOHNS. REP., 14.
1817
OVER8EEK8 OP WHITESTOWN V. OVKKSEKKS OF CONSTABLE.
obligation on the part of the plaintiff in error
to refund the money, as would be a good con-
sideration to support an a**uinptrit or express
4<H>*] promise *to pay it. The moral obliga-
tion is as strong as any in the cases in which it
has been held sufficient to revive a debt barred
bv statute or some positive rule of law. It is
like the promise of an infant to pay a debt
contracted during his nonage, or of an insolv-
ent or bankrupt to pay a debt from which he
is discharged by his certificate.
Judgment affirmed.
Cited in :. Wend., 349 ; 25 Wend., 386 : 5 Hill, 308 :
2tt N. V.. 614 ; 2 Barb.. 425 ; 25 How. Pr., «6; 2 Kob..
225.
THE OVERSEERS OF THE POOR OF
THE TOWN OF WHITESTOWN
v.
THE OVERSEERS OF THE POOR OF
tHE TOWN OF CONSTABLE.
Pauper — Settlement of—Purfhane of Property to
Secure Settlement— Title Mu*t POM— Equitable
Title Sufficient— Party Seised Jure Uxoris
Gains Settlement.
It is not necessary, within the 4th section of the
Art for the Better ttld Settlement of the Poor (1
K. L., 280), that the sum of $75 paid on the purchase
•of an estate, in order to give the purchaser a settle-
ment, should have been paid on account of the
principal of the purchase money ; if part of it were
paid on account of the interest, it will he sufficient.
So, where there was an agreement to sell and con-
vey land for the consideration of $500, and the pau-
per |»aid $72 of the principal, and afterwards $28 as
interest ; this was held sufficient within the Statute ;
as the payment of interest, being provided for by
th«- agreement, was to be deemed part of the con-
si. 1. -ration.
Although a title must pass to the purchaser in
order to give him a settlement, yet it is not neces-
sary that it should be a legal title : as where the
I >;ui i ii i pays the consideration, but the deed is taken
in the name of a third person, the equitable estate
of the former will gain him a settlement. A man
seised, jure tuvrrb, of land purchased by his wife,
.gains a settlement by virtue of such purchase.
(Stations-—! R. L.. 280, Sec. 4 ; Burr., 8. C., 56, 57 i
1 Barnard. 297 ; 6 T. K.. 755 : 14 Johns.. 199 ; 3 T. K.,
114 : Doug., 630 ; Stat. 9, Oeo. I., ch. 7.
IN ERROR, on eertiorari to the Court of
General Sessions of the Peace of the County
of Oneida.
The question in the court below related to
the legal settlement of a pauper, who in June,
1815, purchased a house and lot in Whites-
town, and received from the vendor an obliga-
tion to give a deed, on the payment of $500.
At the time of the purchase he paid $50,
afterwards $22. and the additional sum of $28,
as interest upon the purchase money. After
thin he gave up the property and left the pos-
session. The case stated that a deed was
given to the pauper's wife on the 1st of Feb-
ruary, 1815. Upon these facts the court below
decided that the pauper had a settlement, by
purchase, in Whitestown.
The cause was submitted to the court with-
out argument.
VAN NESS, J., delivered the opinion of the
•court:
The words of the Act for the Relief and
Settlement of the Poor (sec. 4, 1 R L., 280)
JOHNS. RKP., 14. N. Y. R, 5.
are " that no person shall be deemed to gain
a settlement in any city or town within this
State, by virtue of any purchase of any estate
or interest in such City or town, whereof the
consideration for such purchase shall not
amount to the sum of $75 bona fide paid, for
any longer or further time than such
•person shall inhabit in such town." [*47O
The consideration agreed to be given for the
house and lot in this case was $500. It seems
that upon the balance due, after the payment
of $50 down, the pauper was to pay interest.
He paid $72 of the principal, ana afterwards
$28 as interest ; which sums, in the whole,
amount to $100 ; and the question is, whether
the last payment can be taken into the account
as a part payment of the consideration. The pay-
ment of interest being a part of the agreement,
I am inclined to think that it is to be deemed
as much a payment of the consideration, as
if it had been a payment of so much of the
principal. The intent of the Statute is, that
the purchaser should be a person able to pay
$75 upon the purchase (Burr.. 8. C., 56; 1 Bar-
nard; 297); and whether it be for interest or
principal is not material. It has been held
that where a person purchases an estate for
£39, of which he pays himself £9, and the
residue is paid by a third person, to whom he
gives a mortgage on the property for his secu-
rity, the purchaser thereby gains a settlement.
(Rex. v. Inhabitant of Hertford. Burr., S. C.,
57 ; Tfie Kinff v. Inhabitant* of Ghailey, 6 T.
R., 755.) If it were the meaning of the
Statute that the purchaser should pay $75 of
principal, so as to give him an interest in the
estate to that amount, then the decisions which
I have cited would seem not to be law. In
both those cases, it will be seen that the court
did not inquire what was the value of the in-
terest acquired by the purchaser in the land,
but how much he had paid. He mortgaged
the land to secure the money borrowed, so that
his interest in it was no greater than if he had
paid part of the money, and given a mortgage
directly to the vendor for the balance. So,
here, the first question is, how much was
agreed to be given for the house and lot ; the
answer is $500, and such interest on the prin-
cipal sum as should from time to time grow
due. The next question is, how much has
been paid. The pauper has actually paid $100.
This seems to be all that the Statute requires,
and whether the sum paid be principal or in-
terest, appears to me not to be material, for it
is, in either case, a payment of so much of lite
consideration due by the terms of the sale.
The next question is, whether such a title
was acquired under this purchase as to give
the pauper and his wife a settlement. In the
case of The Oterwertt of the Poor of Senaghtifoke
v. The Oteraeer» of the Poor of Brunt- [*47 1
"•/<•/.-. 14 Johns., 199, this court intimated that
a mere purchase of land will not satisfy this
mode oi acquiring a settlement ; that although
the Act makes use of the term ••purchase,"
this necessarily implies a title. It is not, how-
ever, said that a conveyance to the pauper
himself is indispensable ; and I apprehend that
under the English Statute, which is precisely
like ours, except as to the amount to be paid,
an indefeasible equitable interest has been
considered sufficient to bring the purchase
60 945
47 L
SUPREME COURT, STATE OF NEW YORK.
181 1
within its provisions. There is some ambi-
guity about the title in this case ; it is stated in
one part of the case that the wife of the pau-
per actually had a deed, with warranty from
the vendor, in February, 1815 ; and in the ex-
amination of the pauper, which is agreed to
be evidence, it appears that he made a pur-
chase of the same property in June, 1815, and
paid the several sums before mentioned, hav-
ing nothing but a bond for a deed, which he
afterwards gave up, on quitting possession. I
infer from the whole case, however, that there
was an absolute deed to the pauper's wife, and
that the payments were made by the husband,
but whether he or his wife furnished the
money is not of any importance. In the case
of The King v. The Inhabitants of Off church, 3
T. It., 114, the facts were these. The husband
and wife occupied a house under the follow-
ing title ; it was vested, by a settlement, in
trustees, for the separate use of the wife, with
the usual clause that the wife's receipts should
be a discharge of the rents and profits, and
that the rents should not be subject to the hus-
band's debts : it was held that this was such
an estate as to gain the husband a settlement.
Lord Kenyon, in giving his opinion, to which
the rest of the court assented, says: "Now,
supposing it had been the wife's legal estate,
the husband would have been seised jureuxoris,
and by residing on it, would have gained a
legal settlement." He also states, fully, that
where an estate is vested in the wife, the hus-
band gains a settlement, and that even where
such an estate is an equitable one, as where the
legal estate is vested in trustees ; a position
which, he says, is confirmed by many other
cases, and there are none in opposition to it.
If the money were paid by the wife, she was
seised in fee, and having a c"hild of which the
pauper was the father, he had an interest dur-
ing his life. If. on the other hand, the deed
was given to the wife to protect the property
from his creditors, or for any other purpose,
472*] and the husband paid the *money,
which, no doubt, is the fact, there she was his
trustee, and he had the whole beneficial inter-
est. In The King v. Inhabitants of St. Michaels,
Doug., 630, Lord Mansfield laid down the
same rule. These, it is true, were cases at
common law, and not of purchases under the
Statute of 9 Geo. I., ch. 7: but they show
that, at common law, a settlement may be
gained by the husband, where the wife is
seised of an estate either legal or equitable ;
and I can see no reason why an equitable in
terest, acquired by a purchase and payment of
$75, if it be clear and indisputable, should not
give a settlement under the Statute. Suppose,
in this case, the whole consideration had been
paid, and there was no deed, to the husband or
wife, would not such a purchase be within the
Statute ? However, this is a question not
necessarily arising in this case. There has
been a deed to the wife, and $75 or more has
been paid upon it by the husband or wife, and
in either case it would be a title within the
purview of the Statute. If the property were
purchased with the wife's money, the husband
was seised jure vxorix, she having a deed for
it, and never having reconveyed, for aught
that appears. If the payment was made by
the husband, a trust results to him, and that
was a sufficient title to give him a settlement
in Whitestown.
Order affirmed.
Cited in— 16 Johns.,
301.
); 19 Johns., 240; 3 Cow..
JACKSON, ex dem. TEWAHANGARAHKAN,
SHARP.
Indians — Prohibition of Purchase of Lands
from — Applies only to Lands Possessed by
them in their Naticnal Capacity.
The 37th article of the Constitution of this State.
making void purchases of lands of the Indians with-
in this Stato, applies to purchases of such lands only
as they possess, in their national capacity, or as
communities, and not to lands acquired by an In-
dian as an individual, and distinct from his tribe ;
and the prohibition of the Constitution is not ex-
tended by the Statute of the 18th March, 1788.
Therefore, where an Indian, being seised of land
which had been granted to him by patent, Jfor his
military services during the Revolutionary War,
conveyed the same, on the 22d December, 1791; it
was held that the conveyance was valid, being an-
terior to the Act of the 4th April, 1801 (sess. 30, ch.
147), which was more extensive in its operation than
the Act of 1788.
Citations— Sess. 11, ch. 85; 7 Johns., 290; 1 R. L. K.
& R., 464.
was an action of ejectment, brought to
1 recover part of lot No. 97. in the town of
Pompey, in the County of Onondaga. On
the cause being noticed for trial, at the Onon-
daga Circuit, in June, 1817, a case, containing
the following facts, was made by the consent
of the parties.
Honyere Tewahangarahkan, the father of
the lessor of the plaintiff, was an Oneida In-
dian, and a captain in the New York line,
*duriug the Revolutionary War ; and [*47J5
a patent, dated the 29th January, 1791, was
duly issued to him, for his military services,
for lot No. 97, in Pompey, and two other mili-
tary lots. By deed dated the 22d December,
1791, he conveyed lot No. 97 to one Van Slyck,
in fee. Van Slyck, by deed dated the 21st
January, 1792, conveyed the same to Atkinson,
in fee, who sold and conveyed the same, in
several parcels, by several deeds, under one
of which the defendant claims, about the year
1799. The lot and the part in question had
been occupied for sixteen years, and more
than half of it was cleared and cultivated, and
many valuable buildings had been erected on
it. Honyere died about! the year 1801, leaving
seven children and heirs, of whom the lessor
of the plaintiff was one. It was agreed that if
the opinion of the court should be in favor of
the plaintiff, judgment should be entered for
him ; if in favor of the defendant, judgment
of nonsuit was to be entered.
Messrs. Sill and Van Vechten, for the plaint-
iff, contended that the conveyance from the
Indian patentee to Van Slyck was void. The
37th article of the Constitution declares that
no purchases or contracts for sale of lands
made since the 14th October, 1775, with any
Indians within this State, shall be binding or
valid, unless made with the consent of the Leg-
islature. The 1st section of the Act of the 18th
March, 1788 (sess. 11, ch. 85; Greenl. ed.
Laws, 194), declares, that if any person, unless
by consent of the Legislature, shall, in any
JOHNS. REP., 14.
1817
JACKSON, EX DEM., v. SHARP.
478
manner or form, or on any terms whatsoever,
purchase any lauds. &c., or make any contract
for the sale of land with any Indian or In-
diana, &c., he shall be deemed guilty of a pub- j
lie offense, shall forfeit £100, and be further
punished by tine and imprisonment. Though
such coutructs are not, in express terms, de-
clared to be void, yet they have been held to
be void, as against the policy of the Act ; for
the framers of the Constitution and the Leg-
islature, knowing the ignorance and degraded
condition of the Indians, thought it just and
necessary to guard them against imposition
and fraud. All contracts contrary to the gen-
eral policy of the law, or against the provis-
ions of any statute, are void. (Hunt v. Knick-
erbacker.5 Johns., 327. 334; 7 Johns., 434,
440; Cow p.. 790.)
In JaeknoH, ex item. Gilbert, v. Wood, 7 Johns.,
290. Kent, CV«. «/., though he admits that the
Constitution has reference only to purchases of
Indians as a tribe or community, yet he con-
siders the Act of the llth sess., eh. 85. as pro
hibiting any contracts with an individual In-
dian ; and that subsequent Acts had gone
474*] further and *on the same principle of
policy, declared that no person should main-
tain any action on any contract against Stock-
bridge or Brolhertown Indians, or against any
Indian residing on any lauds reserved to the
Oneidas, &c. In that case, the lessor of the
plaintiff claimed, under a deed, from two of
the sons of this very patentee ; and the plaint-
iff was nonsuited.
Mr. Ctuly, contra. In Jackenn, ex dem. Gil-
bert, v. Wood, the court decided that the heirs
of this Indian patentee could not convey. The
Constitution manifestly relates to the common
or public lands of the Indians, held by them
as tribes or nations, not to the case of an indi-
vidual freeholder. The " Act more effectually
to Protect Certain Tribes of Indian.-*, residing
within this State, from Frauds," passed the
feid March, 1790(2Greenl. cd. Laws, 312, sess.
13, ch. 29), and which declares that no action
should be maintained on any contract with any
of these Indians, under the penalty of treble
costs, authorizes the inference, that before the
passing that Act, the Legislature supposed
them capable of contracting ; for if they were,
before that time, under a legal disability to
contract, that Act was unnecessary ; and even
that Act does not declare the contract void,
but only that no white person shall maintain
an action on a contract made with an Indian.
ll took away the remedy on the contract. If
an Indian sells a pack of fur. or exchanges
horses with a white man, the contract is not
void.
On the 22d December, 1791, when the pat-
entee conveyed the lot to Van Slyck, there was
no law making such a contract void. The
title and preamble to the Act of the 18th March.
1788. showed that the object of the Act was
merely to provide against any infraction of the
37lh article of the Constitution, which tin-
court, in Jacluon v. Wood, admit relates to pur-
chases of Indians as a tribe or community.
Being in derogation of common right, the Act
is to l»e strictly construed. It must be confined
to its declared object. Besides, when that Act
passed, there was no individual Indian who
held land. It was by subsequent Acts they
JOHNS. REP.. 14.
acquired individual property. It would have
been fraud and a mockery in the Legislature
to have granted land to an Indian soldier, bis
heirs and assigns forever, as a reward for his
Revolutionary services, and then declared he
was incapable of alienating or transmitting the
land so acquired, and which would, on his
death, revert to the State for want of heirs. It
was well known, too, that the patentee would
not quit *his tribe or nation to go on [*475
the land and cultivate it. He could derive
no benefit from the grant without a power
of alienation. Would this patentee have
deigned to accept this grant under such a re-
striction ?
When the Act of the 18th March, 1788, was
re enacted in the revision of the statutes, and
the Act of the 4th April. 1801, Relative to In-
dians, passed, without the former title and pre-
amble, and when patents in fee had been
granted to individual Indians, the court in
Jackson, ex dem. Gilbert v. Wotxl, might say
that a contract with an Indian without the au-
thority of the Legislature was void. But that .
case is clearly distinguishable from the pres-
ent, which depends oh the construction of the
Act of 1788, and is not governed by the subse-
quent Act of 1801.
YATES, J.. delivered the opinion of the
court :
The lessor of the plaintiff is one of seven
children of Honyere Tewahangarahkan, to
whom the lot in question was granted in the
usual manner, for his services as a captain in
the line of this State during the Revolutionary
War.
The defendant claims under a deed executed
by the patentee to Cornelius Ad. Van Slyck,
on the 22d December, 1791, who subsequently
conveyed to others ; and the premises have
been held and occupied by sundry persons who
have purchased under this title, for more than
sixteen years. The only question presented
to the court is, whether this deed is inopera-
tive and void, either by the Constitution or by
the Act (llth sess., ch" 85).
In Jacknon v. Wood, 7 Johns., 290, the court
held that a sale and conveyance of a lot of land
made on the 2d of April," 1808. by an Oneida
Indian, was void ; but it will be seen by ref-
erence to that case that the general reasoning
of the judge who delivered the opinion of the
court, was founded on the Act of 1801 (1 R.
L. K. & R., 464), which was much more ex-
tensive in4ts operation upon contracts with In-
dians than the Act of 1788. it is true that Act
is noticed, but the opinion was not founded
upon it, disconnected with the Act of 1801, nor
did the case then before the court require a
distinct construction of that Act.
The Constitution does not affect this deed.
The 37th article declares that no purchase or
contract for the sale of lands which may be
made with or of the Indians within this State,
•shall l»e binding on the said Indians [*47O
or deemed valid, unless made under the au-
thority and with the consent of the Legislature;
and the preamble to this article shows the ob-
ject contemplated by the framers of the Con-
stitution at the timc% in ordaining this prohibi
lion or restriction by stating the importance to
i the safety of the State, that peace and amity
947
476
SUPREME COURT, STATE OF NEW YORK.
1817
with the Indians within the same, be at all
times supported and maintained, and that
frauds practiced towards such Indians in con-
tracts made for their lands had produced dan-
gerous discontents and animosities. It is man-
ifest that the provision contained in this article
refers to purchases of lands from Indians as a
tribe or community. The constitutional pro-
hibition is, consequently, confined to their
native right of the soil. It is a fact too notori-
ous to require proof' that Indian lands, at that
period of time were invariably held in com-
mon, and that individual property in land was
not known amongst them.
The Act of the 18th of March, 1788 (sess. 11,
ch. 85), does not extend the restriction beyond
the provision in the Constitution. The pre-
amble recites the 37th article of the Constitu-
tion, and states the reasons for passing the Act
to be, in order more effectually to provide
against infractions of the Constitution in that
respect. This alone is sufficient to show that
the intention of the Legislature was to confine
the Act to that object only.
It is an undoubted fact that sales by the
natives of their lands have, at no time, been
made or consummated by every individual of
the community composing the tribe or nation;
but that such sales have invariably been con-
ducted by one or more of their sachems or chiefs.
The prohibition of contracts with any Indian or
Indians for the sale of lands, therefore, by the
Act of 1788, was evidently intended to embrace
cases of the above description. It never could
have been intended, at that early period, to ex-
tend the restriction to lands acquired under
an individual title, disconnected with and in-
dependent of the native right, and derived by
express grant from government.
The mischiefs intended to be guarded against
by the article in the Constitution, were the
frauds practiced on the Indians in contracts
made for their lands, and the consequent dan-
ger to be apprehended from their discontents
and animosities Not only the language of the
Constitution but the evils apprehended, relate
exclusively to lands held by the Indians as com-
477*] munities. *The discontents and ani-
mosities which were intended to be prevented,
could only have been those of the Indians in
their political and national capacity ; and this
was the intimation of the court in the case
already referred to.
The 1st section of the Act of 1788 enacts,
that if any person shall, thereafter, without
the consent of the Legislature in any manner
or form, or on any terms whatsoever, purchase
any lands or make contracts for the sale of
lands with any Indian or Indians, every person
so purchasing or so making a contract, shall
be deemed to have offended against the people
of this State and shall, on conviction, forfeit
£100 to the people, and be further punished by
fine and imprisonment in the discretion of the
court.
The 2d section imposes the like penalty for
disposing or taking possession of any lands,
claiming an interest in them, under color of
any purchase from or contract made with any
Indian or Indians, at any time since the 14th
of October, 1775, and not made with the con-
sent of the Legislature.
It is evident that the Act of 1788 extends the
948
inhibition to purchases or contracts with the
Indians no further than the Constitution itself
had done ; and that the leading object of the
Act was to provide suitable penal sanctions to
guard against violations of the constitutional
prohibition to purchase or contract with the
Indians for their lauds. The Act does not de-
clare that the conveyances or contracts shall be
void, because the Constitution had already pro-
nounced them to be so ; and the penalty im-
posed for selling or taking possession of any
land under any purchase or contract with any
swch Indian or Indians, at any time since the
14th of October, 1775, shows that the Legisla-
ture meant only to restrain those Acts, because
they were infractions of the Constitution. If,
then, the Constitution did not affect a purchase
from an individual Indian, of his private in-
terest in land, can it be that the Legislature
would, by an ex post facto law, prevent the oc-
cupancy or the disposition of land legally ac-
quired ? To construe the Act of 1788 as pro-
hibiting, under a penalty, the disposition or
occupancy of lands before acquired of an In-
dian without any violation of the Constitution,
or any law then in force, would be to attribute
to the Legislature an intention of invading
private rights by an ex post facto law ; for if
the purchase was lawful when made, the party
became seised of the land, and it would be part
of his right to possess the *power of f*478
alienating or occupying it. According to the
rules of sound construction, therefore, it is
manifest that although the Legislature inflict
the penalty for purchasing from an Indian or
Indians, the singular number is used only
to comprehend every possible case of the
purchase from them of lands held by them
as a tribe or community, and that it never
was intended to refer to or include individual
rights.
This construction derives great force from
the consideration that the grant to the ances-
tor of the lessor of the plaintiff was made
under the Act of the 6th of April, 1790, which
provided that letters patent for the military
bounty lands should issue in the name of the
persons who had actually served ; and that
such lands should be deemed to have vested
in the respective grantees, and their heirs and
assigns, on the 27th of March, 1788. The
patent accordingly grants this lot to Captain
Honyere Tewakangarahkan, in allodium.
This Act was a virtual 'dispensation by the
Legislature from any restraint (if any such ex-
isted), created by any antecedent la"w, of the
power of alienation by an Indian grantee.
The fact must have been known to the Legis-
lature that there were many Indians who were
entitled to bounty lands ; yet they authorized
a grant to them, their heirs and assigns for-
ever, without any restraint on the right of
alienation. The court are of opinion that
nothing short of an express prohibition to the
Indian grantee to sell and alienate the laud
thus granted to him, his heirs and assigns,
under an Act of the Legislature, can restrain
the power and right of alienation, implied
from the very nature of the grant ; and we do
not perceive this inhibition, either in the Con-
stitution or in the Act of 1788. There must,
therefore, be a judgment of nonsuit, accord-
ing to the stipulation in the case.
JOHNS. REP., 14.
1817
PEASE v. .HOWARD.
478
Judgment of noniuil.
Cited In-15 Johns., 285; 20 Johns., 189, 730; 17
Wend.. 537.
479*] *PEASE P. HOWARD.
Judgment— in Ju*tic« Court— It Contract by
Specialty — Statute of Limitation*.
A Judgment in a justice's court is not within the
Statute of Limitations, like a foreign judtrmcnt ;
for it is, in an action founded upon it, conclusive
evidence of a debt, and is, therefore, not a debt by
contract, but by siH-cialty.
Besides, the actions of debt founded upon any
contract without specialty, which are I tarred by
the Stat HI.-. an- only actions of debt founded upon
contract in fact, and not such debts as are created
by construction of law.
Citations DOUR.. 1; 1 Saund.. 38, 37, 88, n ; 2
Saund.. >'>i, 65, n.
IN KRROR, on certiorari\o a justice's court.
The action in the court below was founded
upon a judgment rendered before another
justice six years before this suit was com-
menced. The only question raised was.
whether a suit on a judgment in a justice's
court was barred by the Statute of Limita-
tions.
The cause was submitted to the court with-
out argument.
VAN NESS, «/., delivered the opinion of the
court :
The words of the Statute of Limitations are.
"that all actions upon the case, &c., and all
actions of debt for arrearages of rent, or
founded' upon any contract without specialty,
shall be commenced and sued within six
years, &c." Whether a justice's court is
strictly a court of record, it is not material to
determine in this case ; for if it be not, it is
settled that a judgment rendered in it is con-
clusive evidence of a debt, an/1 the merits of
such a judgment, while it remains in force,
cannot be overhauled or controverted in an
original suit at law or in equity ; and it is as
final, as to the subject matter of it, to all in-
tents and purposes, as a judgment in this
court. A foreign judgment, being prima facie
evidence of the debt only, has been considered
as of no higher nature than a simple contract;
and a necessary consequence of this is that
the Statute of Limitations may be pleaded to
it. But a judgment in a justice's court is of a
higher nature than a foreign judgment, be-
cause its merits cannot be controverted in a
suit founded upon it. In the case of Walker
v. Witter, Doug., 1, which was an action upon
a judgment obtained in the Supreme Court
of Jamaica, Lord Mansfield says the question
was brought to a narrow point ; for it was
admitted, on the part of the defendant, that
inilebitntu as*ump*it would have lain, and on
the part of the plaintiffs, that the judgment
was only prima facie evidence of the debt.
"That," says he. "being so. the judgment was
not a specialty, but the debt only a simple
contract debt/' From this it would seem to
follow, that if the judgment had been conclu-
sive evidence of the debt, it would have been
a specialty, and that, of course, the Statute of
Limitations could not have been a bar. This
48O*] view of *the question seems to derive
great weight from the nature and effect of a
JOHNS. RKP., 14.
specialty, which, being under seal, imports a
consideration, and the want of one cannot be
alleged by plea : this, and the solemnity which
attends the execution of it. are the only rea-
sons why it ranks higher in the scale of con-
tracts than a writing without seal, or a mere
parol agreement. But it may be shown that
a specialty is founded upon an illegal consid-
eration, and it is not always conclusive evi-
dence. In this respect it is inferior to a jus-
tice's judgment, and the solemnities attending
the rendition of the judgment are equal, at
least, to the sealing and delivery of a specialty.
A justice's judgment is a debt of a higher
nature than a simple contract debt, and is as
much a specialty as a judgment obtained in
this court, which, clearly, is not barred by the
Statute of Limitations.
Neither is a debt of this description within
the words of the Statute ; and every Statute
of Limitations, being in restraint of right,
must be constructed strictly. It is not a bar
to every action of debt, but only to those
brought for arrearages of rent, or founded
upon any contract, without specialty. It has
been held that debt on an indenture reserving
rent, is not within the Statute, notwithstand-
ing the generality of its terms (1 Saund., 88);
and the settled construction of the Statute is,
that it applies solely to actions of debt found-
ed upon contracts in fact, as distinguished
from those arising by construction of law.
Now, in this case the action is not founded
upon a contract in fact. It has been held that
debt upon a recovery in trover or trespass in
the County Court or Court Baron, and in vari-
ous other inferior tribunals in England, is
not founded upon any contract in fact between
the parties, and therefore not barred by the
Statute. (2 Saund., 64, 65. &c.. in notes and
cases there cited.) Such, too, is the case of an
action of debt founded upon a statute ; for
which this reason is given, that a statute is a
specialty. (1 Saund.. 36, 37, in note*.)
Upon the whole, therefore, I conclude that
an action of debt upon a judgment in a jus-
tice's court is not barred by the Statute of
Limitations : 1 . Because as such judgment is
conclusive evidence of the debt, as has been
invariably determined by this court, it is a
debt by specialty, and not by simple contract
merely, as a foreign judgment is ; and, 2. Be-
cause the action is not founded upon a con-
tract, in fact, within the meaning *of [*481
the Statute, and actions of that description
only are within its words, and not actions of
debt, without specialty, generally.
Judgment reverted.
Cited in-19 Johns.. 165; 7 Wend.. 105. 243: 17
Wend.. 330: 6 Hill. 49; 4 Denio, 416: 89 N. Y., 241:
6 Barb., 588, 828 ; 4 Abb. Pr., 312 ; 37 Mo., 323.
WHEELER T. LAMPMAN.
Practice in Justice Court — Appearance to Object,
not a Waiter of Irregularity — Action to Recov-
er Amount of Bank Note — Forgery — Knowl-
edge of Juttice.
The appearance of the defendant on the return
of process. In a justice's court, in order to make an
949
481
SUPREME COURT, STATE OF NEW YORK.
1817
objection to the sufficiency of the return, is no
waiver of the irregularity. But after pleading, the
objection would come too late.
In an action before a justice, to recover the
amount of a bank note, paid by the defendant to
the plaintiff, on the ground that it was a forgery,
the justice is not authorized to give judgment for
the plaintiff on his own bare inspection of the note.
I
N ERROR, on certwrari to a justice's court.
The defendant in error brought an action,
in the court below, against the plaintiff in
error, by summons, which was returned by
one De Grote, who is stated to be a constable,
in these words : "Personally, as the law di-
rects, by me, S. De Grote." The defendant
below, by his attorney, appeared on the return
of the summons, for the purpose of objecting
to the constable's return, and the objection
was made and overruled by the justice, who
decided that the return was sufficient. The
plaintiff below then declared that the defend-
ant had passed to him a counterfeit three dol-
lar bank note, which he had refused to take
back ; and after issue joined, and an adjourn-
ment, the cause was tried by the justice, who
gave judgment for the defendant in error.
Per Ouriam. Two exceptions are taken to
the justice's return : 1. That the constable's
return to the summons was insufficient ; and
2. That there was no proof that the bill was a
forgery.
. As to the first point. The Statute requires
"that the constable serving such summons,
shall, upon the oath of his office, return there-
upon the time and manner he executed the
same, &c." The appearance of the plaintiff
950
below, merely for the purpose of making the
objection, was not a waiver of the irregularity
of the return, and as the Statute is peremp-
tory that the time when the summons is served
shall be returned thereupon, its injunctions
must be obeyed. If the defendant below had
waived the irregularity by pleading to the dec-
laration, without objecting to the return, it
would have been too late to make the objec-
tion now. There is a good reason for holding
a constable to a strict compliance with the
terms of the Statute in, .this respect. His return
*is not traversable, and he is liable to [*482
an action for a false return, if thesummons has
not been served six days previous to the re-
turn day. The defendant, therefore, has a
ri«ht to demand that the constable shall spe-
cifically state the time when thesummons was
served.
2. There is very little, if any, evidence that
the bill was a forgery, and the justice seems
to have founded his opinion on this point,
upon his own inspection of it. He does not
say that the proof satisfied him ; and it is to
be presumed he would not be willing to say
so. He had no right to give judgment upon
proof of this nature, and the judgment must,
therefore, be reversed.
Judgment reversed.
Return of constable, sufficiency— Action against,
for insufficient return. Cited in— 2 Cow., 418; 3,
Wend., 205 ; 7 Wend., 399 ; 4 N. Y.. 383 ; 7 Barb., 461 ;
22 Barb., 139 : 26 Barb.. 588 : 59 How. Pr., 407 ; 62
How. Pr., 280 ; 10 Abb. Pr., 427.
Attachment— Irregularity— Objection to, not taken
imtil after plea waived. Cited in— 4 Denio, 94; 14
Hun, 175 : 24 Barb., 419; 12 Abb. Pr., 239.
JOHNS. REP., 14.
[END OF OCTOBER TERM, 1817. ]
CASES ARGUED AND DETERMINED
IN THE
Court for the Trial of Impeachments
AND
CORRECTION OF ERRORS
IN THE
STxVTE OF NEW YORK.
IN
FEBRUARY, MARCH AND APRIL, 1817.
BISSELL e. DENNISON.
Practice — Failure of Appellant to Appear —
Respondent May Me/ down Cause for Hearing
Ex-Parte.
A reepondent may set down a cause for bearing.
fx-parte, and need not Rive notice of the order for
that purpose, to the appellant ; and if the appellant
doe* not appear, at the day, or is not ready to pro-
ceed to the hearing, the appeal may be dismissed.
cause having been set down for a hear-
L ing, on the part of the respondent, Mr. I.
Hamilton now moved to bring it on to a hear-
ing. The appellant had not set down the
tause for hearing.
Mr. Van Vechlen, for the appellant, object-
ed that the respondent had not given notice to
the appellant of his having set down the cause
for a hearing, nor of his intention to bring it
on, and that the appellant was not ready.
Mr. Hamilton, in reply, said that the cause
was set down for hearing on the part of (he
respondent at the last session of the court,
when the appellant applied for and obtained
nn order for the cause to go off, on an affi-
davit that the appellant had not been able to
obtain the necessary transcripts for the court
below. He stated that there was no rule of
the court requiring* the respondent to give
notice to the appellant of having set the cause
down for hearing, nor did he understand such
to be the practice.
*THOMPHON, Ch. J. As the appellant [*484
t* not ready to proceed, and no person appears
to oppose the decree of the court below, I
think the court ought to dismiss the appeal.
The respondent is entitled to bring on the
hearing ex-jxtrte ; but as the court never hear
an argument ex-parte, the respondent must be
entitled to his decree in the court below.
After some discussion, as to the regularity
of this proceeding, TUB COURT were of opin-
ion that it was correct.
Per Curium.
dismissed.
Ordered, that the appeal be
Appeal dumuued.
JOIINS. RKP.. 14.
THE EXECUTORS OF ISAAC CLASON,
Plaintiffs in Error,
9.
JOHN H. BAILEY AND ARNOLDU8
VOORHEES, Defendant* in Error.
THE SAME*. DENTON & SMITH.
THE SAME v. MERRIT & MERRIT.
Statute of Fraud* — Memorandum Written, by
Broker with Pencil, in Pretence of Parties,
with Nantes and Terms in Body, and without
Signatures, Sufficient.
A memorandum of a contract for a purchase of
(roods, written by a broker employed to make the
purchase, with a lead pencil, in his book, in the
presence of the vendor, the names of the vendor and
vendee, and the terms of purchase beinv in the body
of the memorandum, but not subscribed by the par-
ties, is a sufficient memorandum within the Statute
of Frauds. 8. P., Merrit v. Clason, 12 Johns., 102.
Citations-2 Bos. & P., 238: 3 Atk., 503; 1 P. Wins..
771, 770, ».; 3 Johns. Cas., «K): 2 Cai.. 117: 4 Bos. & P..
252: « East, 307; 3 Taunt., 189; 18 Ves., 183; 2Ch.Caa..
Itt* : 1 Eq. Cas., Abr.. 21, pi. 10 ; 5 Vin., 527, pi. 17; 2 Eq .
Cas. Abr., 32, pi. 44 : 3 Atk., 503 ; 1 Ves.. 82 ; 7 Ves., 275 ;
9 Ves.,a51 ; 1 Seb. & Lef.. 13; 11 Ves., 592; 3 Ves. &
B., 192: 2 Ball & B., 370; 2 Taunt., 38; 2 Bl. Com., 297;
2 Bos. & P.. 238 ; 3 Esp., 180 ; 2 Bro., 585 ; 8 Vee., 175 ;
Comyn's Rep., 451 ; 1 Philliui. Rep., 22.
rpIIESE causes came before this court on
J. writs of error to the Supreme Court. The
facts in all were, substantially, the same.
(See Merrit <fc Merrit \. Clown, 12 Johns., 102.)
Townsend, a broker, was employed by
Clason. a merchant, in the City of New York,
in February, 1812. to purchase a quantity of
rye for him. Townsend applied to Bailey &
\ oorhees, to know if they had rye for Kale ;
and they acreed to sell him, for Clason, three-
thousand bushels of rye, at $1 per bushel,
payable on delivery, and authorized him to
NOTE.— Statute of Fraud*— The writing mat/ he in
pencil. See Merritt v. Clason, 12 Johns. 102, note.
As to what to o mtffifient signing, see 3 Pars-rout..
7-9.
951
484
COURT OF ERRORS, STATE OF NEW YORK.
1817
make sale thereof to Clason accordingly.
Townsend informed Clason of the quantity of
rye he could purchase of Bailey & Voorhees,
and the terms of sale, and he was directed by
Clason to purchase it. Townsend then went
to Baily & Voorhees, and closed the bargain ;
and thereupon wrote the following memoran-
dum in his memorandum book, in the presence
of Bailey & Voorhees : "Februrary 29th —
Bought for Isaac Clason, of Bailey & Voor-
hees, three thousand bushels of good mer-
485*] chan table rye deliverable from *the 5th
to the 15th of April next, at $1 per bushel,
and payable on delivery." The memorandum
was made the 29th of February, 1812, and was
written, as well as the other "memoranda, in
the same book, with a lead pencil. The day
after making the bargain, Townsend informed
Clason of it ; and he gave him a copy of the
memorandum, in the latter part of the month
of April, but not before. On the 14th of
April, 1812, Bailey & Voorhees tendered three
thousand bushels of good merchantable rye to
Clason, requesting him to take the same away,
and pay for it, according to the terms of the
bargain ; but Clason refused to accept and
pay for it. On the 16th of April Bailey &
Voorhees addressed a letter to Clason, giving
him notice, that unless he took the rye and
paid for it, in the meantime, it would be sold
on Tuesday following, at public auction, &c. ;
and that they should hold him accountable for
whatever deficiency there might be, after
charging the original price, charges, &c. Cla-
son neglected to receive and pay for the rye,
which was sold pursuant to the notice, at the
best price that could be got for it ; and the
deficiency, after deducting the net proceeds
from the price at which it was purchased by
Clason, was $1,150.50, to recover which sum,
the suit was brought by Bailey & Voorhees
against Clason. There was a special verdict,
on which the court below gave judgment for
the plaintiffs below ; on which the defendant
brought a writ of error.
The reasons of the judgment below were as-
signed by the Chief Justice ; being the same as
delivered by the Supreme Court, in Merrit &
Clason, Vol. XII., 100.
The cause was argued by Mr. Van Buren,
Attorney-General, for the plaintiff in error,
and by Messrs. S. Jones, Jr., and Henry for the
defendants in error.
For the plaintiff in error, it was contended :
1st. That there was not a sufficient memoran-
dum in writing within the Statute of Frauds.
2d. That the agreement was not signed by
both parties. In support of these positions,
the following cases were cited : 1 Esp., 105 ;
Beawes Lex Merc., 495, 496 ; Sugd. Vend.,
43, 62, 63 ; 5 T. R, 63 ; 7T. R., 204 ; 1 East,
194 ; 1 Sch. & Lef., 20 ; 2 Sch. & Lef., 4 ; 3
Johns., 419 ; 4 Cranch, 235 ; 2 Bl. Com., 297 ;
12 Johns., 76.
486*] *For the defendants in error, it was
insisted that the broker was agent for both
buyer and seller, and that the memorandum of
the contract made by him was sufficient to
bind both parties. They cited 3 Burr., 1921 ; 3
T. R.. 149 ; 7 East, 558 ; 7 Ves., 265 ; 2 Caines,
117 ; 8 Vin. Abr., 126, sec. 5 ; 3 Atk., 503 ; 2
Bos. & P., 238 ; 5 Vin. Abr., 527, pi. 17 ; 1 Bl.
Com., 509.
952
THE CHANCELLOR. The case struck me
upon the argument as being very plain. But
as it may have appeared to other members of
the court in a different, or at least, in a more
serious light, I will very briefly state the
reasons why I am of opinion that the judg-
ment of the Supreme Court ought to-be af-
firmed.
The contract on which the controversy
arises was made in the following manner :
Isaac Clason employed John Townsend to
purchase a quantity of rye for him. He, in
pursuance of this authority, purchased of
Bailey & Voorhees three thousand bushels, at
$1 per bushel, and at the time of closing the
bargain, he wrote a memorandum in his mem-
orandum book, in the presence of Bailey &
Voorhees, in these words : '"February 29th —
Bought for Isaac Clason, of Bailey & Voor-
hees, three thousand bushels of good, mer
chantable rye, deliverable from the 5th to the
15th of April next, at $1 per bushel, and pay-
able on delivery.
The terms of the sale and purchase had been
previously communicated to Clason, and ap-
proved of by him, and yet at the time of de-
livery he refused to accept and pay for the
rye.
The objection to the contract, on the part of
Clason, is that it was not a valid contract
within the Statute of Frauds.
1. Because the contract was not signed by
Bailey & Voorhees.
2. Because it was written with a lead pencil,
instead of pen and ink.
I will examine each of these objections.
It is admitted that Clason signed this con-
tract, by the insertion of his name by his au-
thorized agent, in the body of the memoran-
dum. The counsel for the plaintiff in error do
not contend against the position, that this was
a sufficient subscription on his part. It is a
point settled that if the name of a party ap-
pears in the memorandum, and is applicable to
the whole substance of the writing, and is put
there by him or by his authority, it is imma
terial in what part of the instrument the name
appears, whether at the top, in the middle or
at the bottom. *(8aundersonv. Jack- [*487
son, 2 Bos. & P., 238 ; Welford v. Beazeley, 3
Atk. , 503 ; Stokes v. Moor, cited by Mr. Coxe
in a note to 1 P. Wms., 771.) Forms are not
regarded, and the Statute is satisfied if the
terms of the contract are in writing, and the
names of the contracting parties appear.
Clason's name was inserted in the contract by
his authorized agent, and if it were admitted
that the name of the other party was not there
by their direction, yet the better opinion is.
that Clason, the party who is sought to be
charged, is estopped, by his name, from saying
that the contract was not duly signed within
the purview of the Statute of Frauds ; and
that it is sufficient, if the agreement be signed
by the party to be charged.
It appears to me that this is the result of the
weight of authority both in the courts of law
and equity.
In Bollard v. Walker, 3 Johns. Cas. , 60, de-
cided in the Supreme Court, in 1802, it wa&
held that a contract to sell land, signed by the
vendor only, and accepted by the other party,
was binding on the vendor, who was the parly
JOHNS. REP., 14.
1817
CLASON v. BAILEY.
487
there sought to be charged. So in Roget v.
Merritt, 2 Caines. 117, an agreement concern-
ing goods signed by the seller, and accepted
by the buyer, was considered, a valid agree-
ment, and binding on the party who signed it.
These were decisions here, under both
branches of the Statute, and the cases in the
English courts are to the same effect.
In Saundernon v. Jiukaon, 2 Bos. & P., 238,
the suit was against the seller, for not deliver-
ing goods according to a memorandum signet!
by him only, and judgment was given for the
plaintiff, notwithstanding the objection that
this was not a sufficient note within the Stat-
ute. In Chtunpion v. Plumer, 4 Bos. & P.,
252. the suit was against the seller, who alone
had signed the agreement. No objection was
made that it was not signed by both parties,
but the memorandum was held defective, be-
cause the nume of the buyer was not men-
tioned at all, and consequently there was no
certainty in the writing. Again, in Egertonv.
.\fntthfipit, 6 East, 307, the suit was on a mem-
orandum for the purchase of goods, signed
only by the defendant, who was the buyer, and
it was held a good agreement within the Stat-
ute. Lastly, in Allen v. Rennet, § Taunt., 169,
the seller was sued for the non-delivery of
goods, in pursuance of an agreement signed
by him only, and judgment was rendered for
4SH*] *the plaintiff. In that case, Ch. J.
Mansfield made the observation, that "the
cases of Kgerton v. Matthews, &iunderwn v.
Jnfk»>n and Champion v. Plunder, suppose the
signature of the seller to be sufficient ; and
every one knows it is the daily practice of the
Court of Chancery to establish contracts signed
by one person only, and yet a court of equity
can no more dispense with the Statute of
Frauds than a court of law can." So Lawrence,
J., observed, that "the Statute clearly sup-
poses the probability of there being a signature
by one person only."
If we pass from the decisions at law to the
courts of equity, we meet with the same uni-
form construction. Indeed, Lord Eldon has
said (18 Ves., 183) that chancery professes to
follow courts of law, in the construction of the
Statute of Frauds.
In Hatton v. Gray, 2 Ch. Cas., 164; 1 Eq.
Cas. Abr., 21, pi. 10, the purchaser of the land
signed the agreement, and not the other party,
and yet the agreement was held by Lord Keeper
North to be binding on him. and this too on a
bill for a specific performance. So, in Coleman
v. Upcot, 5 Vin.. 527, pi. 17, the Lord Keeper
Wright held that an agreement concerning
lands was within the Statute, if signed by the
party to be charged, and that there was no
need of its being signed by both parties, as the
plaintiff, by his bill for a specific performance,
had submitted to perform what was required
on his part to be performed.
Lord Hardwicke repeatedly adopted the
same language. In Btickfujuw v. Cro»by, 2 Eq.
Cas. Abr., 32, pi. 44. he said he had often
known the objection taken, that a mutual con-
tract in writing signed by both parties ought
to appear, but that the objection had as often
been overruled ; and in Welford v. Reazeley, 8
Atk.. 503. he said there were cases where writ-
ing a letter, setting forth the terms of an
agreement, was held a signing within the Stat-
.TOIINS. RKP., 14.
ute; and in Oieen v. A/r/V*, 1 Ves., 82, an
agreement to sell land signed by the defendant
only was held binding.
'fbe modern cases are equally explicit. In
Cotton v. fjee, before the Lords Commission-
ers, in 1770, which is cited in 2 Bro., 564, it
was deemed sufficient that the party to be
charged had signed the agreement. So in
Seton v. Slade, 1 Ves. , 275, Lord Eldon. on a
bill for a specific performance, against the
buyer of land, said that the agreement being
signed by the defendant only, made him, with-
in the Statute, a party to l>e charged. The
case of Fbtele v. freeman, 9 Ves., 351, was an
'express decision of the Master of the [*4H1>
Rolls, on the very point, that an agreement to
sell lands, signed by the vendor only, was
binding.
There is nothing to disturb this strong and
united current of authority, but the observa-
tions of Lord Ch. Redesdale, in iMwrenaon v.
Butler, 1 Sch. & Lef., 13, who thought that
the contract ought to be mutual, to be binding;
and that if one party could not enforce it, the
other ought not. To decree performance,
when one party only was bound, would ' 'make
the Statute really a Statute of Frauds, for it
would enable any person who had procured
another to sign an agreement, to make it de-
pend on his own will and pleasure, whether it
should be an agreement or not." The intrinsic
force of this argument, the boldness with
which it was applied, and the commanding
weight of the very respectable character who
used it, caused the courts, for a time, to pause.
Lord Eldon, in 11 Ves., 592. out of respect to
this opinion, waived, in that case, the discus-
sion of the point ; but the courts have, on
further consideration, resumed their former
track. In )Ve#tern v. Rtwtell, 3 Ves. & Beames,
192, the Master of the Rolls declared he was
hardly at liberty, notwithstanding the consid-
erable doubt thrown upon the point by Lord
Redesdale, to refuse a special performance of
a contract to sell land, upon the ground that
there was no agreement signed by the party
seeking a performance ; and in Ormondv. An-
derson, 2 Ball & Beatty, 370, the present Lord
Chancellor of Ireland (and whose authority, if
we may judge from theability of his decisions,
is not tar short of that of his predecessor) has
not felt himself authorized to follow the opin-
ion of Lord Redesdale. "I am well aware,"
he observes, "that a doubt has been entertained
by a judge of this court of very high authority,
w'hether courts of equity would specifically
execute an agreement where one party only
was bound ; but there exists no provision in
the Statute of Frauds to prevent the execution
of such an agreement." He then cites, with
approbation, what was said by Sir J. Mansfield,
in Allen v. liennet.
I have thought, and have often intimated,
that the weight of argument was in favor of
the construction that the agreement concerning
lands, to be enforced in equity, should be
mutually binding, and that the one party ought
not to be at liberty to enforce, at his pleasure,
an agreement which the other was not entitled
to claim. It appears to be settled (Hnwkin* v.
Holme*. *1 P. Wins., 770), that though [*4»<>
the plaintiff has signed the agreement, he never
can enforce it against the party who has not
Mft
490
COURT OP ERRORS, STATE OF NEW YORK.
1817
signed it. The remedy, therefore, in such case,
is not mutual. But, "notwithstanding this ob-
jection, it appears from the review of the cases,
that the point is too well settled to be now
questioned.
There is a slight variation in the Statute re-
specting agreements concerning the sale of
lands, and agreements concerning the sale of
chattels, inasmuch as the one section (being the
4th section of the English, and thellth section
of our Statute) speaks of the party, and the
other section (being the 17th of English, and
the 15th of ours) speaks of the parties to be
charged. But I do not rind from the cases
that this variation has produced any difference
in the decisions. The construction, as to the
point under consideration, has been uniformly
the same in both cases.
Clason, who signed the agreement, and is
the party sought to be charged, is, then, ac-
cording to the authorities, bound by the agree-
ment, and he cannot set up the Statute in bar.
But I do not deem it absolutely necessary to
place the cause on this ground, though, as the
question was raised and discussed, I thought
it would be useful to advert to the most ma-
terial cases, and to trace the doctrine through
the course of authority. In my opinion the ob-
jection itself is not well founded in point orfact.
The names of Bailey & Voorhees are as
much in the memorandum as that of Clason.
The words are : " Bought for Isaac Clason, of
Bailey & Voorhees, three thousand bushels,"
&c. ; and how came their names to be inserted?
Most undoubtedly they were inserted by their
direction and consent, and so it appears by the
special verdict. The jury find that when the
bargain was closed, Townsend, the agent of
Clason, did at the time, and in their presence,
write the memorandum ; and if so, were not
their names inserted by their consent ? Was
hot Townsend their agent for that purpose ?
If they had not assented to the memorandum
they should have spoken. But they did assent,
for the memorandum was made to reduce the
bargain to writing in their presence, at the
time it was closed. It was, therefore, as much
their memorandum as if they had written it
themselves. Townsend was, so far, the ac-
knowledged agent of both parties. The auc-
tioneer who takes down the name of the buyer,
491*] when he *bids, is, quoad fu>c, his agent.
(Kmmerson v. Heelis, 2 Taunt., 38.) The con-
tract was, then, in judgment of law, reduced
to writing, and signed by both parties ; and it
appears to me to be as unjust as it is illegal
for Clason or his representatives to get rid of
so fair a bargain on so groundless a pretext.
2. The remaining objection is, that the
memorandum was made with a lead pencil.
The Statute requires a writing. It does not
under! ake to define with what instrument, or
with what material, the contract shall be
written. It only requires it to be in writing,
and signed, &c. ; the verdict here finds that
the memorandum was written, but it pro-
ceeds further, and tells us with what instru-
ment it was written, viz. : with a lead pencil.
But what have we to do with the kind of in-
strument which the parties employed, when
we find all that the Statute required, viz. : a
memorandum of the contract in writing, to-
gether with the names of the parties ?
To write is to express our ideas by letters
visible to the eye. The mode or manner of
impressing those letters is no part of the sub-
stance or definition of writing. A pencil is an
instrument with which we write without ink.
The ancients understood alphabetic writing as
well as we do, but it is certain that the use of
paper, pen and ink was, for a long time, un-
known to them. In the days of Job thev
wrote upon lead with an iron pen. The an-
cients used to write upon hard substances, as
stones, metals, ivory, wood. &c., with a style
or iron instrument. The next improvement
was writing upon waxed tables ; until, at last,
paper and parchment were adopted, when the
use of the calamus or reed was introduced.
The common law has gone so far to regulate
writings as to make it necessary that a deed
should be written on paper or parchment, and
not on wood or stone. This was for the sake
of durability and safety ; and this is all the
regulation that the law has prescribed. The
instrument, or the material by which letters
were to be impressed on paper or parchment,
has never yet been defined. This has been
left to be governed by public convenience and
usage ; and as far as questions have arisen on
this subject, the courts have, with great lati-
tude and liberality, left the parties to their
own discretion. It has, accordingly, been ad-
mitted (2 Bl. Com., 297 ; 2 Bos. & P., 238 ; 3
Esp., 180) that printing was writing, within
the Statute, and (2 Bro., 585) that stamping
was equivalent to *signing, and [*4f)2
(8 Ves., 175) that making a mark was sub-
scribing within the Act. I do not find any
case in the courts of common law in which the
very point now. before us has been decided,
viz.: whether writing with a lead pencil was
sufficient ; but there are several cases in which
such writings were produced, and no objection
taken. The courts have impliedly admitted
that writing with such an instrument, without
the use of any liquid, was valid. Thus, in a
case in Corny n's Reports, p. 451, the counsel
cited the case of Loreday v. Clamlge, in 1730,
where Loveday, intending to make his will,
pulled a paper 'out of his pocket, wrote some
things down with ink, and some with a pencil,
and it was held a good will. But we have a
more full and authentic authority in a late
case decided at Doctor's Commons (Raymes v.
Clarkson, 1 Phillim., 22), where the very ques-
tion arose on the validity of a codicil written
with a pencil. It was a point over which the
prerogative court had complete jurisdiction,
and one objection taken to the codicil was the
material with which it was written : but it was
contended, on the other side, that a man might
write his will with any material he pleased,
quocunque modo vetti, quocunque modo poasit,
and it was ruled by Sir John Nicholl that a
will or codicil written in pencil was valid in
law.
The Statute of Frauds, in respect to such
contracts as the one before us, did not require
any formal and solemn instrument. It only
required a note or memorandum, which im-
ports an informal writing done on the spot, in
the moment and hurry and tumult of commer-
cial business. A lead pencil is generally the
most accessible and convenient instrument of
writing, on such occasions, and I see no good
JOHNS. REP., 14.
1817
SANDS v. HII.DHKI n.
493
reason why we should wish to put an interdict
on all memoranda written with a pencjl. I
am persuaded it would be attended with much
inconvenience, and afford more opportunities j
and temptation to parties to break faith with j
each other, than by allowing the writing with ;
a pencil to stand. It is no doubt very^much |
in use. The courts have frequently seen such j
papers before them, and have always assumed i
them to be valid. This is a sanction not to be \
disregarded.
I am, accordingly, of opinion that in
ment of the Supreme Court ought to be af-
firmed.
This was the opinion of the court (Ei.MEN-
DORK and LIVINGSTON, Senator*, dissenting).
4J>3*] *It was thereupon ordered, adjudged
and decreed that the judgment of the Supreme
Court be, in all tilings, affirmed, and that the
defendants recover from the plaintiffs their
double costs, to be taxed, and that the record
tie remitted, &c.
Judgment affirmed.
Affirming— 12 Johns.. 102.
Cited in -18 Wend.. 31, 485; 18 Wend., 522: 22
Wend.. 174 ; & Wend., 33H, 530: 28 Wend., 354 : 5 Hill,
471; 4 Johns. Ch . ««3; 11 Paige. 410; 1 Edw., 5;
Clarke. 401 : 5 X. Y.. 245; 13 N. Y., 596; 24 N. Y.. 59;
42 N. Y., 507, 511, 523; 8 Barb., 345: 39 Barb.. 022; 30
How. Pr.. 432 ; 31 How. Pr.. 41 ; 87 How. Pr., 41 ; 1
Abb. N. 8.. 302; 8 Abb. X. S., 423; 2 Hob., 345; 3
Sand., 275; 5 Sand., 105: 7 Leg. Obe., 367; 10 Leg.
ObB.,43; 54 Wis., 21B; 84 Pa., 513.
ROBERT SANDS, Appellant.
v.
PATRICK Q. HILDRETH, Respondent.
Real Property — Fraudulent Conveyance — Bill to
Set Aside — Statute of Frauds— Deed Fraudu-
lent Only as to Grantor.
Where an insolvent debtor, against whom suite
were pending1, conveyed land to his brother for an
iiiaili->iu;it'' price, the whole (If indeed any part) of
which did not clearly appear to have been paid, and
the conveyance waa for some time kept secret,
there being no proof that it was executed when it
bore date, and the grantor still continuing in pos-
aeosion, making erections and receiving the rents
and profits, it was held that the deed was fraudulent
and void, as against a subsequent purchaser of the
hind, at a sale under an execution against the
grantor.
A purchaser, at a sheriff's sale, under the judg-
ment of a creditor, is entitled to the benefit of the
Statute of Frauds, equally as the creditor himself,
and may 8iip|>ort a bin to set aside a previous fraud-
ulent con veyance.
The Statute of Frauds, as far as relates to fraudu-
lent conveyances, is an exposition of the common
law.
Whether a deed, fraudulent on the part of the
grantor, can be set aside, where the grantee is a
ixtna Me purchaser, and ignorant of the fact.
>>• ., .
Cltation-1 N. R. L., 504, 77.
TUIIS was an appeal from the Court of
L Chancery. The bill was filed by the re-
spondent again.st Robert Sands, the appellant,
Comfor* Sands, and Anne J. Barbarinc, to set
aside a conveyance made by Comfort Sands to
Robert Sands, of certain lands in Brooklvn. on
which a ropewalk is situated, as fraudulent
against the plaintiff, who purchased the same
at a sheriff's sale, under an execution against
.1 uis- RKP.. 14.
Comfort Sands. Anne J. Barbarine, the other
defendant, was a tenant in possession. The
bill was taken pro confeiuo, against Comfort
Sands, for want of an answer. Robert Sands
put in his answer ; and as it regarded Barbar-
ine. the cause came on upon bill and answer,
he having been examined as a witne&s on the
part of the plaintiff.
In March. 1801, Comfort Sands was declared
a bankrupt, under the then existing law of the
United States, and finally obtained his certifi-
cate of dischaige. The bill charged that Com-
fort Sands, previous to his bankruptcy, made
sundry fraudulent conveyances of his real
estate to his sons, Henry "and Lewis, and to
others ; that Kihbe, his assignee, refused to
take measures, or to allow the creditors to in-
stitute a suit in his name to set aside these
conveyances ; that George Cod wise and others,
creditors of the bankrupt, in November, 1801,
filed their bill 'against Comfort. Henry [*4J>4
and Lewis Sands and others, to set aside those
conveyances, in which costs and me*ne profits
were decreed to the plaintiffs , that pending
that suit, in January, 1805, Comfort Sands
purchased, at a master's sale, under a mort-
gage given to the Bank of New York, the real
estate now in question, for the consideration
of $500, which was conveyed, by his direction,
to Joseph Sands, who held the same in trust,
until he conveyed it to Comfort Sands ; that
Comfort Sands remained in possession and
erected a ropewalk thereon, which he paid for
out of the rents and profits, and continued in
possession until he fraudulently conveyed it to
Robert Sands, in February, 1807, while the
suit of Cod wise and others was in rigorous
prosecution, for a nominal consideration, and
with a view to delay and defraud Cod wise and
other creditors ; that Robert Sands did not take
possession of the premises, nor receive the
rents and profits, but allowed Comfort Sands
to keep possession and receive them, though he
held himself out as the agent of Robert Sands;
that the deed was not delivered at the time of
the date, nor until about the time that the
plaintiff's title was set up, and that the prem-
ises are worth about three times as much as
is expressed in the deed. The property was
sold by the sheriff on the 3d of December,
1811, under two executions, one out of the
Court of Chancery, at the suit of Codwise and
others, and the other out of the Supreme Court,
at the suit of E. Whitney ; and the plaintiff,
who l>ecame the purchaser at such sale for
$215, received a deed from the sheriff, dated
the 4th of January, 1812, conveying all the
right of Comfort Sands to the premises, on the
13th of February, 1808. Barbarine was in
possession, at the time, as a tenant for years.
Robert Sands, in his answer, admitted that
Joseph Sands conveyed the premises in 1806 ;
that Comfort Sands, in 1806 and 1807, built a
ropewalk and store on the land, which he paid
for partly in money, and the residue out of the
rents nnd profits; and he said that Comfort
Sands -iatc<l the cost to be $8.821.94, which he
believed to be true. He then stated that on
the 21st of February. 1807, he purchased the
premises of Comfort Sands, and that the same
were conveyed to him by a deed of that date,
duly acknowledged and recorded ; that, at that
lime, Comfort Sands was, and, as the defend-
Ml
494
COURT OF ERRORS, STATE OF NEW YORK.
1817
ant believed and understood, had, for a long
time, been in possession thereof ; that on the
10th of February, 1807, Comfort Sands had
495*] leased the premises *to John Smith, for
seven years, from the 1st of May, 1807, at the
rent of $750 per annum ; that on the 10th of
February, Comfort Sands received two years'
rent from Smith, in advance, on the I5lh one
year's advance, and on the 18th the further sum
of $312 ; all which payments were indorsed on
the lease, and the lease, with these indorse-
ments, assigned to the defendant when he made
the purchase ; that $4,500 was the value of the
property ; that when the conveyance was made
to him by Comfort Sands, the latter was in-
debted to him $500, and that he has since paid
him, on account of the purchase money, $1,052
in cash, and assumed the payment of debts due
from Comfort Sands to sundry individuals,
amounting to $2,948, which sums made up the
consideration of $4,500 ; that he made the
purchase with a view to secure $500 due to him,
and to assist Comfort Sands with money to pay
off his small debts ; that in October, 1810, a
settlement took place ; but the defendant took
no regular receipts for the moneys paid, but
kept a memorandum thereof, and relied on an
adjustment thereof between them. The de-
fendant admitted that he never promised the
creditors tp pay them, nor rendered himself
liable to pay, or otherwise, than by promising
Comfort Sands to pay them. The payments
to Comfort Sands are stated to have been made
in 1807, 1808, 1809 and 1810, and the assump-
tion to pay the debts of Comfort Sands in Sep-
tember, 1810. The defendant stated that he
had only paid three debts, one of $270, one of
$100, and another of $76.21 ; that Barbarine
was directed to pay others of their debts,
amounting to $153.42 ; that in May he deliv-
ered Comfort Sands $675, and in September of
the same year, $474.50, to be applied to pay
the debts, but whether these sums were so ap-
plied, the defendant did not know ; that on
the 10th of March, 1811, a settlement was
effected between Barbarine, as partner to John
Smith, the lessee and the defendant, by Com-
fort Sands, as the defendant's agent, when the
old lease was surrendered, and the defendant
gave Barbarine a new lease for seven years ;
that from the date of his deed in February,
1807, he had been in actual possession of the
vacant half of the premises, and Barbarine was
in the possession of the other half as his tenant;
that Comfort Sands superintended the building
of the ropewalk on the premises leased to Smith,
between February and May, 1807 ; that when
496*] *ue assumed to pay the debts of Com-
fort Sands, in 1810, he understood that they
were just debts, and some of them to be for
the expense of building the ropewalk ; and that
all the improvements, between the 21st of
February and May, 1807, were made at the
expense of Comfort Sands ; that the deed, about
the time of its date, was delivered to John R.
Sands, son of Comfort Sands, as agent of the
defendant, and that the deed from that time
had remained in his possession or under his
control ; that John R. Sands had no special
authority from him to receive the deed, but
acted as his general agent, and he did not re-
ceive from him any immediate notice of the
delivery of the deed.
Barbarine, who by an order of the Court of
Chancery, was examined as a witness, said that
the property claimed by Robert Sands was
worth between $6,000 and $7,000; that he be-
came a tenant in possession in August, 1x07,
in connection with Smith, who had a lease
from May 1st, 1807, from Comfort Sands, and
that he considered himself as a tenant of Com-
fort Sands, until October or November, 1810;
that the first time he heard of the deed was in
the summer or 1809 ; when it was mentioned
to him by Lewis Sands, a son of Comfort
Sands, as a secret ; that in October or Novem-
ber, 1810, Comfort Sands first mentioned the
deed to him ; that in 1807, Smith paid Comfort
Sands the rent in advance for 1807, 1808, 1809,
and partof 1810, amounting to $2,562. 14, which
was indorsed on the lease ; that in the spring
of 1811 he settled with Comfort Sands, who
represented himself as the agent of Robert
Sands, and the witness did not see or converse
with Robert Sands on the subject ; that the
new lease, which was in the handwriting of
Comfort Sands, was first executed by the wit-
ness, and sent into the country, to be executed
by Robert Sands ; that he gave his promissory
note for the rent reserved on the lease to him,
in the name of Robert Sands, payable on the
1st of November, 1811, to Robert Sands or
order ; and when it fell due it was paid into
the Bank to the credit of Comfort Sands, as
the last indorser : that Comfort Sands sent to
the witness the receipt of Robert Sands, for
two quarters' rent, which would become due
in August, 1812, with a list of debts due by
Comfort Sands to several persons, and request-
ing the witness, out of these two quarters' rent,
to pay those debts for him ; which debts were
referred to in the receipt ; but this the witness
declined to do. *That since August, [*497
1812, he had understood from Comfort Sands,
that one of the debts, that for $76.21, had been
settled, and the witness believed the rest were
still due, as the creditors had applied to him
for payment.
It appeared that Isaac Heyer, on the 21st
January, 1807, commenced a suit in the
Supreme Court against Comfort Sands, to re-
cover $1,510, and that he prosecuted the same
to judgment ; and that Comfort Sands was, on
the same day, indebted to Archibald Gracie,
in the sum of $984.25, which remained unpaid.
The cause coming on to be heard in the
court below, in August Term, 1814, and none
of the defendants appearing, but all making
default, a decree was pronounced for the
plaintiff (which see, in 12 Johns., 494, 495); an
appeal was entered from that decree, and the
appeal dismissed by this court, without enter-
ing into the merits. (See 12 Johns., 493, 497.)
A rehearing, in the court below, was after-
wards petitioned for by the defendant Robert
Sands, and granted by the Chancellor. After
the rehearing, the Chancellor decreed that the
deed from Comfort Sands to Robert Sands was
fraudulent and void as against the plaintiff ;
that he was entitled to the rents, under the lease
to Barbarine, and ordered him to pay Barbarine
his costs; and that, the defendants. Comfort and
Robert Sands, pay the plaintiff these costs as
well as his costs of suit. This decree was.in fact,
no more than an affirmance of the decree before
pronounced. An appeal having been entered
JOHNS. REP., 14.
1817
S.VNDS V. HlI.lWKTH.
497
from the second decree, and the cause brought
on to argument, the Chancellor assigned his
reasons for his decree. (See 2 Johns. Ch.,41,50.)
Mr. Wovdvwrth for the appellant.
Mr. Rigg* for the respondent.
SPENCKH, J. Several questions have been ;
discussed on the hearing, which I shall merely '
glance at. It has been contended that the
respondent is not invested with the rights of <
Whitney, Codwise and others, under whose!
judgment** he became a purchaser, at a public ;
sale, made by the sheriff of King's County, !
under executions issued on those judgments. j
The Statute, it is urged, protects creditors
only from fraudulent deeds, and not a person
standing in the situation of the respondent.
41>8*] *This proposition is, in my judg- j
ment, without any foundation. All the respond- |
ent's right to the land in controversy is de-
rived from and under the judgments under
which be purchased ; the judgments arc his
title ; and he is placed, by the judicial sale
which took place, precisely in the place of the
creditors. If the title acquired under the
sheriff's sale fails, for want of title in the per-
son against whom the execution issues, the
purchaser is entitled to a restitution of the
money paid. (1 N. R. L., 504.) How can it,
then, be pretended that the respondent is not
clothed with all the rights of the judgment
creditors, if they are liable to refund all that
has been advanced by the respondent, on the
failure of the title he bought ? The idea itself
is novel, and unsupported by reason or author-
ity.
It has been incidentally stated by His
Honor, the Chancellor, in the opinion given
by him in this cause, ihat if the deed sought
to be avoided a* fraudulent was to be con-
sidered fraudulent on the part of C. Sands,
the grantor, there would be great difficulty in
supporting it, even if the grantee was innocent
of any fraud.
I do not understand His Honor as intending
to give a decided opinion upon this point ; nor
was it necessary. I cannot however, refrain
from expressing a different inclination of
opinion. It seems to me that the Statute for
the Prevention of Frauds, which has been
universally considered as an exposition of the
common law. was intended to avoid deeds
contrived and devised fraudulently, for the
delaying and defrauding of creditors, in those
cases only where both parties participated in
the fraud ; and, in my apprehension, the 6th
section of the Statute (1 N. R. L., 77) is a full
manifestation of the sense and meaning of
that Statute ; it provides that that Act shall
not be construed to impeach or make void any
conveyance of lands, made upon good con-
sideration, and buna fide, to any person not
having notice or knowledge of the covin or
fraud specified in the Act. The grantor then
may intend a fraud, but if the grantee is a
fair, bona fide and innocent purchaser, his
title is not to be effected by the fraud of his
grantor. I forbear pursuing this part of the
subject any further, and mean only to be un-
derstood as not sanctioning the doctrine ad-
vanced in the argument, that the fraud of C.
Sands is to lie visited on the appellant, even if
he be a fair and bvna Jidt purchaser.
JOHNS. REP.. 14.
•This brings me to the only remain- [*4OO
ing part of the case. Is the deed from C.
Sands to the appellant of the 21st of February,
18f>7. under all the facts proved and admitted,
to lie deemed fraudulent ? I agree so entirely
with His Honor, the Chancellor, in the opinion
he has <'« livered, as to find myself wholly re-
lieved from the necessity of discussing the
point at any great length. His reasoning is KO
satisfactory, and his elucidations so convinc-
ing, that nothing can be added to them ; and,
in fact, without treading the very ground he
has occupied, nothing can be said. We find
C. Sands, in 1807. under considerable embar-
rassments. Whitney's judgment, it is true,
was not obtained until February, 1808 ; but
we have a right to infer that it was obtained
in regular course of law. and that the debt
must have been due when the deed in question
was given ; and it is in proof that the suit of
Codwise and others was pending when the
deed was given. It has been urged that C.
Sands might have had properly abundantly
sufficient to satisfy his creditors, independ-
ently of the lands sold to the respondent.
This however, is not proved ; and if it were
true, the appellant was bound to make out the
fact. Not having done so, the inevitable con-
clusion is, that C. Sands bad no other property
out of which his creditors could obtain satis-
faction. Under these circumstances, the deed
is given by one brother to another, accom-
panied by circumstances evincive of the most
fraudulent intentions. To say nothing of the
inadequacy of the consideration, let us see
whether a bona fide purchaser would have con-
ducted himself as the appellant has done, in
almost every important particular of the trans-
actions. It is not pretended by the appellant
that the consideration money, which was to be
$4.500, was paid at the tune the deed was
executed, or that it was secured, by anv
voucher, as evidence of the debt. The "appel-
lant states that $500 was then due him from
C. Sands, and that the residue was to be paid
as C. Sands should require, either in money
or the assumption'of his debts ; but this pre-
tended arrangement was left in this uncertain
state, without any written evidence whatever :
and the appellant says, in his answer, that he
paid small sums fn 1H07, 1808, 1809 and
1810 ; and that in the fall of the latter year, lie
assumed to pay debts owing from C. Sands,
to the amount of $2,948 ; not, however, to his
creditors, but to C. Sands himself ; and it is a
very striking fact thnt no interest was n ipiiird
by C. Sands for this long delay *of [*5<)O
payment. The appellant took no receipts
for three payments, and the debt, as well as
the payments, were left in that loose and un-
usual way. C. Sands not only continued r.s
the ostensible owner, but the deed was not
known to exist, until the autumn of the year
1810. nearly four years after its execution.
The defendant's answer as to the time when
the deed was executed, and the first knowledge
he had of it, is liable to severe remark, and, in
my judgment, indicates very clearly the fact,
that if it was executed when it bore date, it
was done without the appellant's agency or
assent.
C. Sands received the rents, and made erec-
tions on the premises, after the date of the
500
COURT OF ERRORS, STATE OF NEW YORK.
deed ; and pending the bargain by which the
appellant was to acquire the premises, he
covenanted to ma&e these erections. It is
pretended that he acted as an agent to the
appellant, but no authority for that purpose
is produced ; and like the rest of the facts, it
stands on the naked assertion of the appellant.
I cannot take the trouble to go through all the
evidence of fraud, nor shall I cite a single ad-
judged case, but content myself with saying
that I never met with a more marked case of
actual, positive fraud ; and if such a deed, so
contaminated, is allowed to stand, there would
be an end of all upright and honest dealing
between man and man, and no creditor would,
hereafter, have the least chance of coercing a
dishonest debtor to pay his debts.
This being the unanimous opinion of this
court, it was thereupon ordered, adjudged
and decreed that the decree of the Court of
Chancery, appealed from in this cause, be af-
firmed, and that the appellant pay to the re-
spondent their costs to be taxed, and that the
record be remitted, &c.
Decree of affirmance.
Affirming— 2 Johns. Ch., 41.
Cited in— 18 Johns., 530 ; 8 Cow., 450 ; 20 Wend.,
27; 3 Johns. Ch., 378 ; 52 N. Y., 190; 61 N. Y., 79; 15
Barb., 600; 43 Barb., 456 ; 14 Abb. Pr., 68; 14 Abb.
N. S., 23; 44 Super., 421 ; 35 N. J. L., 309 ; 48 Wis., 146.
5O1*] *MOSES LYON AND EDWARD
BROCK WAY, Appellants,
v.
BENJAMIN TALLMADGE. JOHN TALL-
MADGE, DAVID WADHAM, DAVID
THOMPSON, GARRET SMITH, AARON
SMITH, JUNIUS SMITH, WILLIAM S.
TALLMADGE, JONATHAN RICH-
MOND, AND SOLOMON DEWEY. Ite-
spondents
Practice — Plea in Bar — Former Decree — Must
Show Same Point in Issue — Decree to set
aside Sale on Execution for Fraud on Part of
Defendant — Is no Defense to Bill by Defendant
Against Judgment Creditor to Get Rid of
Fraudulent Assignment of Judgment Before
Execution — Equity Witt Relieve for Advan-
tage Taken not Amounting to Fraud in Law
— Courts Not Confined to Points Raised by
Counsel— Evidence.
A decree in. one cause cannot be used as a defense
in another case, where the subject matter of. the
two suits is distinct and independent : and so a de-
cree to set aside a sale on execution, as fraudulent
on the part of the defendant in the execution, is not
a defense to a bill filed by the defendant against his
judgment creditor, to get rid of a fraudulent as-
signment of the judgment before the execution
was issued.
A former decree, to be a defense, must be pleaded
or relied on in the answer as a bar, and it is not
enough to read it at the hearing1.
A plea in bar of a former decree, must state so
much of the former bill and answer as to show that
the same point was then in issue.
Where A and B answer separately to a bill in
chancery, and B reran to and adopts the answer of
A as his own, and a replication is filed to the answer
of A, and not to that of B. and their proofs are tok-
en in the cause, this is not an admission that the
answer of B is true.
A obtained a judgment against C, a sheriff, for the
escape of a prisoner in execution, and C obtained a
judgment against B and E, his sureties for the limits
958
— •• .— — e? — — -.*»*^ MOT? j^*, uu^uu v y.n friUUUi \-s
assigned the judgment which he had obtained
Bffalnat D and E to A, with the assent of D, and
released all errors in the judgment obtained by A
against him (C): D then filed a bill to set aside the
assignment and release, and to be permitted to pros-
ecute a writ of error in the name of C. Held that
as the assent of D was obtained, by taking an undue
advantage of his situation and necessities, it was no
obstacle to the relief sought , that the sureties of
the sheriff had a perfect right to use his name in
prosecuting a writ of error, a recovery against the
Sheriff being, in effect, a recovery against them ;
and that admitting the assent of D was duly obtain-
ed to the assignment, yet as it did not appear that
he had assented to the release of errors, the assign-
ment could not affect his right to bring a writ of
error, nor was his right affected by the release of
errors.
Where an unconscientious advantage has been
taken of the situation of a person, a court of equity
will relieve, although the circumstances do not
amount to fraud in the contemplation of a court of
law.
No interrogatories can be put to witnesses, which
do not arise from some fact charged in the issue,
and testimony as to facts, not stated in the bill or
the answer, is to be rejected.
Courts are bound to decide upon the justice and
law of the case, and not merely upon the points
raised by counsel.
Citations— Hind., 176; 2 Atk.,603; 2 Ves., 155, 156,
157 ; 13 Ves., Jr., 51 ; 6 Johns., 565.
was an appeal from the Court of Chan-
1 <:ery. The appellants, in their bill in the
court below, stated that the plaintiff Brock way
being, about the 31st of December, 1807, com-
mitted to jail. in the County of Cayuga, on a
at. ita. out of the Supreme Court, at 'the suit
of the defendants, Benjamin Tallmadge, John
Tallmadge, David Wadham, David Thomp-
son, Gurre.t Smith, Aaron Smith, Junius Smith
and William S. Tallmadge, for the >,um of $2,-
627.24, or thereabouts ; Lyon, with the de-
fendant Solomon Dewey, on the 31st of March,
1808, executed to the defendant Jonathan
Richmond, then sheriff of Cayuga, a bond for
the jail liberties, to be granted to Brockvvay ;
that a suit was thereafter instituted in the Su-
preme Court, by the plaintiffs in the execu-
tion, against Richmond, for the escape of
Brock way, which was tried it the Circuit in
Cayuga County ou the 12th of June, 1811,
where it appeared in evidence that Brockway
had been without the liberties at his own house,
but that he had returned before the institu-
tion of the suit for the escape, and was within
the liberties *at the commencement of [*5O2
the suit; upon which testimony the court di-
rected the jury to find a verdict for the plaint-
iff, which they did, in pursuance of a con-
struction which had before that time been giv-
en by the Supreme Court to the Acts made
for the establishment of jail liberties ; by which
construction the sheriff was denied his plea of
a return or recaption of the prisoner, before
suit brought against him, and was subjected
as for an escape, for every departure of his
prisoner from the liberties. That their coun-
sel, being dissatisfied with this construction,
advised the plaintiffs, after notice of trial had
been received, to bring a writ of error for the
purpose of revising the judgment that might
be given by the Supreme Court. That, to in-
duce Richmond to place the further defense
of the suit in the hands of the plaintiff's coun-
sel, to manage at their discretion, the plaint-
iffs and Dewey proposed to confess a judg-
JOHNS. REP., 14.
1817
LYOK v. TALLMADGE ET AL.
502
meat to him on the bond given for the liber- '
ties, and such an arrangement was according-
1 v made. That after the trial of the cause, a
ca.se was nmde, with leave to turn it into a ;
•pedal verdict, and judgment being given in ;
May Term, 1812. against Richmond, the case
was turned into a special verdict, and in the
ensuing August, a writ of error was issued ;
and that Lyon had expended in fees to coun-
sel in the case, and especially to prosecute the
writ of error, the sum of $235. The plaintiffs
stated, that while they were proceeding to dis-
charge their obligation of indemnity to Rich-
mond, and with a certainty of reversing the
judgment, Richmond, and the plaintiffs in the
suit for an escape, the latter acting by their at-
torney, who had the conduct of the suit, col-
luMvrly and fraudulently agreed that Rich-
mond should assign the judgment confessed
to him to the plaintiffs in the suit for the es-
cape, and should release all errors in the judg-
ment in that suit ; in consideration whereof
they should relinquish all further proceedings
on the judgment against him, and discharge
him from all demands on account of the es-
cape of Brockway ; which agreement was
carried into effect ; that before this agreement
was consummated, Richmond applied to Lyon
and Dowry to deposit in money the amount of
the recovery against him for the escape, with
which it was not in Lyon's power to complj' ;
but being alarmed by information of the above
agreement being about to be concluded, he
prevailed on one Fish, who was then seised of
real estate in the County of Cayuga to the
amount of $20,000, at least, to become addi
ftOil*] tional security to *Richmond, to the
amount of $1,800: and he, at the same time,
strongly solicited Dewey to add further secur-
ity to the amount of the residue of the judg-
ment, but without effect ; that Richmond, in-
stigated by the attorney of the plaintiffs at law,
and under pretense of future trouble, and ap-
prehension of possible loss, although he ad-
milted the sufficiency of the security, rejected
the offer, and against Lyon's entreaties aud
warning, carried into effect th« agreement,
and discharged the writ of error ; whereas the
plaintiffs aver that he had no ground for ap-
prehension, or reason for requiring additional
security. Lyon being then seised of a clear real
e-itate, in the County of Cayuga. of the value
of $4.000, besides about $1,500 of personal
properly, and Dewey being worth in real and
personal estate $2.000, or thereabouts. The
plaintiff Lyon further stated thai Tallmadgc
and t IK- other plaintiffs at law, having got into
their possession the judgment given to Rich-
mond; by Thomas Mumford. their attorney,
applied to him, and represented that Dewev,
who had been a clerk of the plaintiff Brook-
way, had property of Brockway, to a consid
erablc amount, in his hands, for his indemnity
as bail for Brockway ; and that if he would
consent to execution being issued on the judg-
ment, it would be mostly satisfied out of prop-
erty in the hands of Dewey, and of a reasona-
ble share of Lyon's own property, so as not to
leave more than $500 or $(500 for him to pay ;
whereas, if the execution were continued to
be stayed under the agreement for that pur-
pose subsisting between the parties, Dewey
would so manage, with the property in his
JOHNS. RKP.. 14.
hands, that no part of it could be procured,
and the whole judgment would fall upon Ly-
on ; that, oppressed by the proceedings against
him. and alarmed at every incident and sug-
gestion touching the premises, and laboring
under the belief that he was without relief, he
yielded his consent, and execution was issued
accordingly. The plaintiffs then stated, that
notwithstanding this representation, the dis-
satisfaction of Dewey at Lyon's consent to the
issuing the execution, was seised upon, and
such arrangement made as to detach him from
the plaintiffs, under some engagement to pro-
tect his pro|>erty, or the greater part thereof,
from the operation of the execution, and throw
the whole burthen of it on Lyon, and that
Dewev had refused to join in this suit with
the plaintiffs. The plaintiffs further stated
that in 1813 the Court of Errors decided the
precise question arising *on the special [V>O4
verdict be-fore mentioned, and restored the
sheriff to his defense of return or recaption lie-
fore suit brought, as at common law. The
plaintiffs prayed a discovery and injunction.
The joint and several answer of the defend-
ants, William 8. Tallmadge. Jonathan Rich-
mond and Solomon Dewey, stated that the
defendants, excepting Richmond and Dewey,
were partners, under the firm of Tallmadge,
Smith & Co. The execution against Brock-
way, the bond for the liberties, and the suit
against Richmond, were admitted : and Rich- .
mond said that it appeared, on the trial, that
Brockway had escaped, and several times gone
without the liberties of the jail, while a pris-
oner in execution; that the defense of a volun-
tary return before suit brought was overruled,
because the defendant's plea was not accom-
panied by an affidavit that the escape was
without his knowledge or consent; but that,
during the pendency of the suit, he made such
affidavit, and left it with his attorney. He
denied the agreement that the defense of the
suit against him should be relinquished to
Lyon and Dewey, in consideration of their
confessing a judgment to him, but said that
after the action was brought against him for
the escape of Brockway, and before it was
tried, he brought an action in the Supreme
Court against Brockway, Lyon and Dewev.
on the bond for the liberties, which was de-
fended, and noticed for trial, at the Circuit
next after the Circuit at which the action
against him for the escape of Brockway was
tried, and after the decision of the Supreme
Court on the case; that in August Term, 1812.
Brockway, Lyou and Dewey, the defendants
in the suit on the bond, by their attorney, gave
a cognovit aftwnem, and a confession of dam-
ages, without any such agreement or consider-
ation as is mentioned in the bill; and the de-
fendant Dewey said that this statement, as far
as related to himself, was true, in substance,
according to the best of his recollection and
belief. Thedefendunt Richmond further stated
that he did not sue out, nor authori/e any one
to sue out the said writ of error; nor had he
done any act, or authorized the doing any act,
since the judgment rendered against him, to
bring the saint- before the Court of Errors, nor
did he ever conceive himself bound so to
do. although he would have been willing to
allow the plaintiffs and Dewey to use his
504
COUKT OF ERKOKS, STATE OP NEW YOKK.
1817
name, if they bad suitably indemnified him
against his responsibility for so doing, and his
5O5*J ultimate responsibility *to Tallmadge,
Smith & Co.; that after the verdict against
him, and before judgment was rendered by
the Supreme Court, he was alarmed at his
situation in relation to that suit; not, however,
in consequence of any representation by the
plaintiffs therein or their attorney, but by in-
formation derived from other sources, that
Lyon had conveyed, or was about to convey,
his real estate, situate in the County of Cayuga,
to one Fish, mentioned in the plaintiff's bill;
which conveyance the defendant apprehended
was with a view to place the property out of
the reach of the judgment which he had, or
was likely soon to obtain, by confession,
against Brockway, Lyon and Dewey; where-
upon his attorney proposed to the attorney of
Tallmadge, Smith & Co. that the defendant
should assign to them the judgment obtained,
or about to be obtained, by him against Brock-
way, Lyon and Dewey, by confession; and
that, in consideration thereof, they should dis-
charge him from all further liability in the
action for the escape; which proposition, how-
ever, was not, at that time, agreed to on their
part; that after the Supreme Court had given
judgment against the defendant, in the action
for the escape, the attorney for the plaintiffs
in that action renewed th« proposal above
mentioned, or to the like effect, and that the
defendant called upon Lyon and Dewey and
informed them of what was proposed to be
done, at the same time informing them that he
would refrain from making the proposed as-
signment, and would permit them to prosecute
a writ of error on the judgment against him
for the escape, in his name, if they would
either deposit money in some safe and suitable
hands, sufficient to indemnify him, or would
give him sufficient security by way of indem-
nity; that they informed him that they could
do neither, nor go beyond the security he then
had by his judgment against them, and sundry
obligations, principally against Fish, to a part
of the amount of the judgment; and they
then informed him that they could not blame
him for availing himself of the proposed ar-
rangement. The defendants Richmond and
Dewey then stated, that soon after, and in con-
sequence of what passed, as aforesaid, they,
with Lyon, went to the office of Thomas Mum-
ford, the attorney of Tallmadge, Smith & Co.,
and Lyon and Dewey made some propositions
to Mumford to settle the suit against the de-
fendant Richmond for the escape, by securing
the amount of the judgment or a part thereof,
and thereby exonerating Richmond, in that
/>56*] *behalf; but Lyon and Dewey disa-
• greeing among themselves, as to the amount
which each should pay or secure, no settle-
ment took place. The defendant Richmond
further stated that thereafter, and on the same
day, he, with the knowledge and entire appro-
bation of the defendant Lyon, assigned to the
plaintiffs in the action for the escape, the judg-
ment obtained against Brockway, Lyon and
Dewey; in consideration whereof the attorney
for the plaintiffs, in the action for the escape,
gave him a discharge from all liability therein,
and that this assignment bore date on or about-
the 28d of December, 1812; that on the day
when the assignment of the judgment was
made, and after it was assigned, Lyon un-
equivocally agreed with the attorney of Tall-
madge, Smith & Co., that execution might be
forthwith issued thereon, and proposed and
agreed with the said attorney to procure the
attendance of the then sheriff of Cayuga, or
of his deputy, at a particular place on the fol-
lowing morning, to receive the execution; at
which place it was then proposed and agreed
that Richmond and the said attorney should
meet Lyon and the sheriff or his deputy. That
the meeting took place accordingly, when an
execution was delivered to the sheriff 's deputy,
and Lyon informed the deputy that he was
willing that his property should be levied
upon immediately; but with a view to obtain
a part satisfaction of the execution from the
property of Dewey, he proposed and agreed
to accompany the deputy and the said attor-
ney to the house of Dewey, in order to levy
the execution on his property, which he did
accordingly, and was accompanied by the de-
fendant. Richmond further stated that the
assent of Lyon to the assignment, and what
Lyon did and agreed to, as before stated, was
given and transacted, without any fraud or
misrepresentation, practiced on, or made to him
by the defendant, or by the attorney of Tall-
madge, Smith & Co.; or by any other person
or persons, to the knowledge or belief of the
defendant, and without any misconception of
his rights, on the part of Lyon, according to
the defendant's understanding and belief; and
that, on the day when the defendant assigned
the said judgment, he released all errors in
the judgment recovered against him for the
escape, which was then also known to Lyon.
and which the defendant was advised it was
but an act of justice for him to do. The de-
fendants, Tallmadge and Dewey, denied that
any engagement had been made to detach
Dewey from the plaintiff, and to refuse to as-
sociate *himself with them in their [*5O7
bill. The defendant Richmond further stated
that he did not believe that Lyon was, at the
time of the docketing the judgment in favor
of the defendant against Brockway, Lyon and
Dewey, seised of a clear real estate in the
County of Cayuga, of the value of $7,000, or
any other sum, because, as he understood and
believed, Lyon had, previous to the docketing
that judgment, made a fraudulent conveyance
of his real estate, to prevent the said judgment
from becoming a lien thereon; that he believed
that Dewey, at the time of obtaining the judg-
ment, had some real estate which became
bound by it, but not sufficient to indemnify
this debt; and that he did not know what was
the value of the personal estate of Lyon or
Dewey; but whatever it might have been, it
would not have been a security, unless taken
in execution, or otherwise secured to the de-
fendant. The defendant, Dewey, stated that on
the 26th of December, 1814, in a conversation
with Lyon, he informed the defendant that
he had got his affairs so fixed that he should
not have his farm sold, and that he could get
the money and pay it, provided, in the end,
the judgment should go against him. The
answer denied all fraud and combination.
The answer of the other defendants stated
that they have no personal knowledge of the
JOHNS. REP., 14.
1817
LTON v. TALLMADGE ET AL.
507
matters contained in the bill; nevertheless, that
they have been informed and believe, and ex-
pect to be able to prove, that the facts set
forth in the answer of William 8. Tallmadge,
Richmond and Dewey are true, as therein
stated.
Joseph L. Richardson, a witness for the
plaintiff, stated that the stipulation to confess
. judgment in the suit on the bond, for the lib-
erties, was given on the express agreement of
the attorney of Richmond, that Lyon and
Dewey should have leave, at their own ex-
pense, to turn the case in the suit of Tall-
madge, Smith & Co. against Richmond into
a special verdict, and bring a writ of error
thereon ; to all which Richmond assented ; and
that they — Lyon and Dewey — employed coun-
sel for that purpose ; that they remonstrated
with Richmond against his assigning the judg-
ment, who gave as reasons for his doing so,
that the judgment against him was large, that
life was uncertain, and his family might be in-
jured if he was taken off : and he had it now
In his power to rid himself of trouble and re-
sponsibility by the measure proposed, and re-
leasing the errors in the judgment against him,
which he would do. unless they would either
I5O8*] deposit the amount of the *judgment
against him in money, o'r give satisfactory per-
sonal security for the amount ; that Lvon
afterwards informed the witness that he had
got Nathan Fish to give security to the amount
of $1,800 (which Richmond had confessed to
the deponent was true), but that Dewey had
not made an equally satisfactory offer, ami
that he was afraid that Richmond would as-
sign the judgment, on which subject Lyon ap-
peared to be much distressed ; that Lyon
stated to the deponent that he consented to the
execution being issued, upon Mr. Mumford's
representation of Dewey having Brockway's
property in his hands sufficient to discharge
the greater part of the judgment, which
might, by-and-by, be withdrawn. Several
witnesses testified that Fish was worth from
$15.000 to $30.000; and the property of Lyon
was variously estimated, from $5,000 to $8,-
000; and of Dewey, from $1,000 to $4.000.
Stephen Lombard, also a witness for the
plaintiffs, stated that, in conversation, in Jan-
uary, 1815, between Lyon and Richmond,
Lyon observed to Richmond that he had al-
ways opposed his making the assignment, and
did all he could to prevent it, offering Fish as
a security for $1.000; to which Richmond as-
sented, but added: " You recollect that after
the assignment I asked you if you blamed
me;" Lyon replied: "I cannot" blame any
man for wishing to get out of trouble, but I do
not think you had any occasion to assign the
judgment, for we offered sufficient security ; "
that Richmond also admitted, in the same con-
versation, that Lyon consented that execution
should be issued, because Mr. Mumford had
informed him that Dewey had enough of
Brockway's property in his hands to pay the
Judgment, which might be put out of the way,
if execution should be delayed, and leave
Lyon to pay the whole. Several witnesses
testified to the hostility of Dewey towards
Lyon.
Burnham, a witness for the defendants,
.stated that on its being proposed to Richmond
JOKNB. REP., 14.
N. Y. R.. 5.
to assign his judgment to Tallmadge, Smith &
Co., Lyon and Dewey strenuously opposed it.
Whitney, another* witness, stated that he
saw Lvon and Dewey together, when Dewey
offered to give security to the amount of $1,-
OOO'or $1.200, but that Lyon insisted on his
securing $1,400, or that he (Lyon) would not
have anything to do with the business ; and
that Richmond might take out an execution
as soon as he pleased ; and as his property was
secure, he did not care anything about the exe-
cution 01 how quick it *carae. Dewey, f*<5OJ)
one of the defendants, who was examined as
a witness, stated that a day or two before the
assignment of the judgment, Richmond con-
sented that Lyon and Dewey might make use
of his name to bring a writ of error, provided
they would deposit a sum of money to the
amount of the judgment, or give him addi-
tional security ; they declined to do either,
and Richmond then informed them that un-
less the money should be deposited or security
given, he should assign his judgment to Tall-
madge, Smith & Co., and receive a discharge
from them. The witness stated that it was
out of the power of Lyon and himself to de-
posit the money, and that he himself offered
to give Richmond additional security for a
part of the judgment, if Lyon would give se-
curity for the residue ; but nothing further
was done, in consequence of a disagreement
l>etween Lyon and the witness, as to the
amount which each should secure; that a day
or two after Lyon and Richmond went with
I lie witness to the office of Thomas Mumford,
where Lyon and the witness made several
propositions to Mumford, to secure to Tall-
madge, Smith & Co. the amount of the judg-
ment against them, none of which were ac-
cepted ; whereupon he left Lyon and Rich-
mond at the office, and after an absence of
about an hour returned, and thereupon he saw
Mumford hand a paper to Lyon, and asked
him to sign it ; that Lyon read it, and said
that he agreed tc it, but could not sign it, be-
cause he had promised his wife that he never
would put his name to paper again ; that the
witness did not know that the judgment had
been assigned, until after the execution had
been delivered to the deputy-sheriff on the fol-
fowing day, at which time Lyon professed a
willingness to discover all his property, with-
out giving Jhe sheriff any trouble to look for
it ; and proposed to give an account of it, so
that he might take an inventory of it ; which
was accordingly done, and an inventory
taken ; that after the execution had been
levied upon the property of Lyon, he, together
with the deputy sheriff, Richmond and Mum-
ford, came to the house of the deponent, and
levied the execution on his property, which
was pointed out to the deputy-sheriff by Lyon ;
that the witness had frequent conversations
with Lyon in relation to the subject, within
two or 'three months after the assignment, and
that he never heard from Lyon that there was
any fraud or misrepresentation ; nor did he
deny that the assignment and release of errors
were made with Ins knowledge and approba-
tion. The witness also stated that Lyon hud
•conveyed his farm to Nathan Fish, [*51O
which was not, on the death of Fish, divided
among his heirs, who exercised no acts of
61 961
510
COUKT OF ERRORS, STATE OF NEW YORK.
1817
ownership over it, and that the deed for it,
after the death of Fish, was redelivered to
Lyon. Thomas Mumford, another witness for
the defendants, testified as to what passed at
his office substantially the same as stated by
Dewey ; that during the absence of Dewey, as
before mentioned, but in the presence and
with the knowledge and approbation of Lyon,
it was finally agreed that the assignment
should be made by Richmond, and that he
should, also, release all errors in the judgment
of Tallmadge, Smith & Co. against him ; that
Richmond then executed the assignment and
release, and delivered to the witness an execu-
tion on the judgment in his favor against
Brockway, Lyon and Dewey ; that the witness
delivered' to Richmond a release of the judg-
ment against him, and drew up a written con-
sent to the effect that Lyon consented and
agreed to the arrangement, and read it to
Lyon, who declared that he fully agreed to it,
but declined signing it ; that Lyon then repre-
sented to the deponent and Richmond that
Dewey was unwilling to pay his just propor-
tion of the execution, and requested the wit-
ness to aid him in having half the execution
satisfied out of the property of Dewey ; and
said that he would turn out property to satis-
fy the residue ; to this the witness acceded,
and LyOn agreed to go early the next morning
to procure the attendance of the sheriff to re-
ceive the execution. The witness confirmed
the statement of Dewey, as to the mode in
which the execution was levied, and testified
that the deputy-sheriff made out the inventory
of Lyon's property, from information given
by Lyon, without going to his house, and that
Lyon pointed out to« the deputy the property
ot Dewey, in order to make the levy. It also
appeared that Brockway was insolvent, and
that Tallmadge, Smith & Co. would lose the
amount of the debt due them from him, un-
less they could obtain it by means of the judg-
ment assigned to them by Richmond.
The cause coming on to a hearing in the
court below, the Chancellor dismissed the bill
as to all the defendants, with costs, and dis-
solved the injunction. An appeal was entered
from this decree, and the cause being,brought
on to argument, the Chancellor assigned the
reasons for his decree, for which see 2 Johns.
Ch., 56, 61.
511*] *Mr. T. A. Emmet for the appel-
lants.
and 8. Jones, Jr., contra.
SPENCER, J. Before I enter on the merits
of this cause, I shall briefly examine some pre-
liminary objections. • It appears from the
Chancellor's opinion that a decree was read at
the hearing, which had been given in the
Court of Chancery in June, 1815, in a cause
pending iu that court, between Tallmadge
and others against Lyon, setting aside a sale
of the property .of Lyon and Dewey, under a
judgment in favor of Richmond, and assigned
to Tallmadge and others, on the ground that
it was a fraudulent sale. That decree was
taken by default, and the complainants in that
.suit were allowed to resell the property, thus
fraudulently sold, on that judgment. His
Honor, the Chancellor, considered this as a de-
cisive objection to any relief to Lyon in this
962
cause, on the ground that that decree, having
never been questioned, remained good, ana
could not be impeached in a collateral way.
I cannot assent to this conclusion. The
subject matter of the appellant's bill could
never have been set up as a defense in that
suit, for it was wholly a disconnected subject.
If the sheriff's sale was fraudulently procured
by Lyon, he could not. defend himself from
that fraud by insisting on the matters form-
ing the grounds of the present bill. This con-
sideration would be sufficient to show that the
decree in the former cause cannot operate as a
bar to this suit. But there is another answer:
the decree in the former cause, to be available,
should have been pleaded, or relied on in .the
answer, as a bar. It was not enough to read
it at the hearing ; and I must doubt the pro-
priety of its being read at all at the hearing.
It is a well-established rule in equity, that
a plea in bar of a" former decree must state
so much of the former bill and answer as ta
show that the same point was then in issue.
(Hind., 176 ; 2 Atk., 603 ; 2 Ves., 577.) And,
beyond all controversy, the case stated in the
appellant's bill was not, and could not have
been in issue in the former cause. It was then
a. mistake to suppose that the appellants sought
to attack or impeach the former decree, in a
collateral way, or in any shape ; and that de-
cree does not stand in the way.
It has been urged, and I think ungraciously,
that the *answer of all the defendants, [*5 1 2
composing the firm of Tallmadge, Smith &
Co., except one of them, adopts the answer
of Richmond, and that no replication having
been filed to their answer, it is admitted to be
true ; and then, it is insisted, all fraud, collu-
sion or oppression is disproved.
There can exist no doubt that all the proof
in the power of any of the respondents is be-
fore the court. The firm of Tallmadge,
Smith & Co. appear to have no personal con-
cern in any of the transactions, and they ad-
mit their ignorance of them ; but though their
attorney, Mr. Mumford, under these circum-
stances, having referred to Richmond, Dewey's
and William S. Tallmadge's answers, and
stated their expectation of being able to prove
the facts set forth by the other respondents,
we ought to consider the proof given by them,
as the proofs of the respondents ; thus adopt-
ing and referring to the answers of the other
respondents. There is yet a more decisive
answer. The fact is not made out that there
was no replication to these answers. There
appears to be a replication, and the court is
bound to intend it was filed in season, unless
the contrary be proved. Besides, as this is
mere matter of form, and all the evidence has
been adduced which the parties, or either of
them, can bring forward, the court below
would have permitted the replication to have
been filed, nuncpro tune, as both parties have
proceeded on the idea that the cause was com-
pletely at issue. This appears by the com-
missions to examine witnesses and the inter-
rogatories.
This brings me to the merits of the cause ;
and after as full a consideration as I have
been able te give, I am bound to say that, in
my judgment, the decree in the court below
ought to be reversed, on two grounds :
JOHNS. REP., 14
1817
LYON v. TALLMADGK ET AL.
512
First. On the ground that Richmond, if he,
indeed, ever obtained Lyon's assent to the as-
signment of the judgment he held against
Lyon, Dewey and Brockway, and to the re-
lease of errors in the judgment in favor of
Tallmadge and others against him, obtained it
under circumstances of such fraud and oppres-
sion as to render the assent nugatory and
void.
Second. Admitting all the facts set up by
Richmond to be true, they form no defense to |
the appellant's title to the relief he asks.
The object of the appellant's bill is to set ,
aside the assignment of the judgment in favor .
of Richmond against the appellants and Dewey, j
and the release of errors executed by Rich- j
."> !.'{*) mond *on the judgment against him, j
in favor of Tallmadge, Smith & Co., and to be
permitted to make use of Richmond's name in j
prosecuting a writ of error on the latter judg- :
nicin . And unless the appellants have for-
friii-il the right to prosecute the writ of error, j
it appears to me there cannot be a doubt that, i
upon principles, as well of equity as of justice,
they ought to be allowed to exercise it.
The question whether that judgment was
erroneous, is not now to be considered ; the j
object of the bill is to get rid of these acts,
which operate as a hinderance to the prosecu- ;
tii >n of the writ of error ; and the question be- j
fore us is, whether the appellants are not en-
titled to the interposition of the Court of :
Chancery, to enable them to proceed in the
writ of error, by removing the obstacles which ;
have been interposed.
It may be useful to ascertain under what
circumstances of fraud and imposition a court
of equity will give relief ; that, having the :
principle, we mav apply to it the facts of the
case. Lord Haro!wicke(2 Ves., 155, 156)speci j
fles the kinds of fraud which a court of equity !
will relieve against ; and under his third head
he speaks of fraud which may be presumed
from the circumstances and conditions of the :
parties contracting ; and this, he says, goes
further than the rule of law, which is, that it
must be proved, not presumed ; but he adds,
" it is wisely established in equity to prevent
taking surreptitious advantage of the weakness
or necessity of another, which knowingly to
do, is equally against conscience as to take ad-
vantage of his ignorance ; a person is equally i
unable to judge for himself in one as the
other." The same principles are maintained
l>y Lord Erskine. (13 Ves., Jr., 51.) He says |
a court of equity will prohibit a party from j
taking advantage of an instrument obtained by
an advantage taken of men unguarded in par-
ticular situations, and under circumstances,
where courts of law cannot give adequate
remedy ; though he says fraud, according to
the ordinary understanding of the term, is
equally the subject of their jurisdiction.
These are valuable and salutary principles,
"coming home to the bosoms and affairs of
men ;" and it is for us now to consider
whether the facts proved warrant the appli-
cation of them.
I consider it to be immaterial whether Rich-
mond did or did not agree that Lyon and.
ft 14*] Dewey should have the right to *use
his name in the prosecution of the writ of er-
ror ; for he had no right to withhold it, and if
JOHNS. RKP. 14.
he had done so, a court of equity would have
compelled him to permit the use of his name,
and would have restrained him from doing
any act impairing the rights of Lyon and
Dewey. Can this be doubted, when "we con-
sider that the bond given by Lyon and Dewey
to Richmond was in the nature of a bond of
indemnity ; that a final recovery by Tallmadge,
Smith & Co., against Richmond, for the Es-
cape of Brockway was, in effect, a recovery
against Lyon and Dewey, though nominally
against Richmond ; that it fixed them, beyond
controversy, for the amount recovered against
Richmond ; and provided they were able to
respond, it was perfectly immaterial to Rich-
mond whether there was a judgment against
him or not ? Lyon and Dewey were to bear
the burden, and as sureties to the sheriff, they
had a perfect right to contest, in the last re-
sort, the right of Tallmadge, Smith «fe Co. to
recover against Richmond ; for that was to be
the basis of their liability.
I shall not, therefore, stop to inquire how
the proof stands in regard to Richmond's as-
sent to their using his name to prosecute the
writ of error, though I think the evidence per-
fectly clear that he did consent. My doctrine
is that he could not refuse.
Again ; although I hold it to be unimportant
whether Lyon actually consented that Rich-
mond should assign his judgment against the
appellants, let us examine under what peculiar
and extraordinary circumstances this consent
was forced from him. When Richmond re-
quired further security, under the threat of as-
signing the judgment unless it was given, he
had a judgment which operated as a lien on
the real property of Lyon- and Dewey, which
is proved, without contradiction, to have been
unquestionable security to a larger amount
than the judgment of Tallmadge, Smith & Co.
Under the apprehension, however, that Rich-
mond had it in his power, by assigning the
judgment, to strip them of tueir right to pro-
ceed on the writ of error. Lyon offered the
security of a Mr. Fish, for $1,800, who is
stated, by all the witnesses, to be worth $10.000
or $lo,000 ; and, in truth, it seems to me im-
possible to read the proofs, without being con-
vinced that Lyon did everything in his power,
and more than, in honesty, ought to have been
required of him, to satisfy the demands of
Richmond forsecurity; and at length, believing
himself at the mercy of Richmond, and without
redress, yielded *a reluctant assent. To [*5 1 ft
show this to be a case of complete oppres-
sion, let us examine the shallow pretenses set
up by Richmond for further security. He
alleges that he was alarmed at the informa-
tion he had received that Lvon had conveyed,
or was conveying his real estate to Nathan
Fish, with a view to place the same out of the
reach of the judgment he had, or was likely
soon to obtain by confession. I see no proof
that he ever received such information, or that
the fact itself was true. Richmond does not
specify the name of any person who gave such
information, and there is not a particle of
U'jral proof (hearsay there is), that such infor-
mation was communicated to Richmond, or
that the fact was so. I put out of the ques-
tion Dewey 's testimony, if he stood ever so in-
different ; he knows nothing himself ; he
MS
515
COURT OF ERRORS, STATE OF NEW YORK.
1817
speaks of deeds he never saw, and relates con-
versations with persons now alive, and who
might have been examined. I reject the
whole of this illegal and inconclusive evidence;
and I then perceive nothing to warrant the as-
signment, on the ground of apprehension ; and
must conclude, that the pretenses set up to
justify the demand for further security, evince
a settle determination on the part of Richmond
to oppress the appellant Lyon, by taking an
unconscientious advantage of his situation — of
his fears, and his ignorance; and consequently,
I hold the assignment and the release of errors
to have been given in bad faith, and, so far as
they affect the appellants, null and void.
Tfhe second proposition, that admitting all
the facts set up by Richmond to be true, they
form no defense to the appellants' title to re-
lief, there will be no difficulty in maintaining.
I have already noticed the relative situation
of the parties. That Lyon and Dewey were
sureties to the sheriff ; that their bond was a
bond of indemnity, and that they were liable
to the sheriff only in case there was an eventual
and final recovery against him ; and that they,
being fixed by such recovery, had a natural
and equitable right to contest, in the last re-
sort, his liability for the escape. I now hold
that the assignment did not prejudice the ap-
pellant's right to prosecute the writ of error,
had their consent been fairly and fully ob-
tained ; and that there is no legal proof before
the court, or which we can notice, that the re-
lease of errors was given with Lyon's assent.
What rights did Tallmadge, Smith & Co. ac-
quire in virtue of the assignment made by
51O*] Richmond? Certainly no other *or
greater right than Richmond could confer.
Richmond's right to enforce the collection of
the judgment against Lyon and Dewey de-
pended entirely on this, whether Tallmadge,
Smith & Co. had a legal right to recover
against him for Brockway's escape. And
although the Supreme Court had pronounced
a judgment against Richmond, a right had
been reserved in the case before that court, to
test, in this court, the correctness of that judg-
ment, by turning the case made into a special
verdict. The consent of the assignment of
the judgment was no waiver of the right to
Erosecute the writ of error ;_ and Tallmadge,
mith & Co. acquired, by the assignment, the
right to enforce the collection of the judgment,
if it should eventually appear, on the decision
of the writ of error, that they had just grounds
of recovering against the sheriff for the escape.
It is, therefore, unnecessary to disturb that as-
signment: it operates no prejudice to the ap-
pellants.
It has been insisted that Richmond, having
released the errors in the judgment against
him, with the consent of Lyon, the very object
of the bill is defeated, and that it would be
nugatory to require Richmond's assent to
using his name in prosecuting the writ of error,
when his release would cure all errors. 1
have said that there is no legal proof that Lyon
did assent to the release of errors by Rich-
mond.
It is an uncontrovertible rule in the Court of
Chancery, that no interrogatories can be put to
witnesses that do not arise from some fact
charged and put in issue. This was the rule j
964
unanimously adopted by this court in the case
of James v. M'Kennon, 6 Johns., 565 ; and it
is a rule so necessary and just, to prevent sur-
prise upon either party, as not to stand in need
of any argument to enforce or elucidate it. In
the case referred to, the respondent had exam-
ined his witnesses to establish a fraud not
alleged in the bill ; but this court considered
the proof inadmissible, irrelevant and imma-
terial, and wholly rejected it. The same prin-
ciple applies to the fact, not set up in an
answer, and which is a material and independ-
ent fact, not arising from the bill ; to such
fact, which might have been set up in the
answer, but is not, the defendant can adduce
no proof ; because it forms no part of the issue
between the parties, and it would operate as a
complete surprise on the complainant, who
could not foresee that proof of a fact not in-
sisted on in the answer, would be given.
*The only answer which states the re- [*517
lease of errors is that of Richmond, and he does
not allege or pretend that Lyon ever assented
to the giving the release; all he says on that sub-
ject is that he released all errors in the judg-
ment recovered against him, and that it was
known to Lyon. Now, admitting that he did
know it, his knowledge that Richmond was
about to release the errors is a very distinct
thing from his actually agreeing to it. All the
proof in the case that goes to show Lyon's as-
sent and agreement to the release of errors, is
irrelevant, impertinent and inadmissible,
inasmuch as Lyon's consent to the release was
not in issue, and he could not be expected 1o dis-
prove a fact which none of the answers had
alleged or set up. The court is, therefore,
bound, on the authority of the case of James
v. M'Kennon, to reject tliis proof, and then
the case stands on Lyon's consent to the as-
signment of the judgment only. It is true that
the appellants' counsel did not take this point ;
but it is the duty of a court of justice, in giv-
ing judgment upon any case submitted to
them, to give that judgment according to the
justice and law of the case ; and when any
point not urged by counsel presents an im-
portant bearing on the cause, I hold it to be
my duty to notice it, and be influenced by it.
The object in employing counsel, and permit-
ting them to argue before a court, is to aid the
court in its investigations ; and it would be
strange if the court were bound to shut their
eyes upon every point not suggested by them.
In whatever light this cause presents itself
to my view, I can perceive no solid ground for
doubt that the appellants are entitled to re-
lief. If Lyon consented to the release of
errors. I am of opinion that his coiif-ent was
obtained by imposition and fraudulent prac-
tices ; that an unjust and uncouscieutious ad-
vantage was taken of him, under circumstances
which entitled him to be relieved. I hold that
the assignment of the judgment took away no
right which the appellants had, and that it
conferred none but such as Richmond could
give ; that his judgment against Lyou and his
co-obligors was merely in the nature of an in-
demnity against the eventual recovery in this
court, by Tallmadge, Smith & Co., against
him ; but that it did not operate to deprive the
appellants of their just, equitable and inherent
right to contest, in Richmond's name, the
JOHNS. REP., 14.
1817
LYON v. TAI.I.M U...K ET AL.
517
validty of the recovery against him ; and that
there U no proof before the court that Lyon ever I
« 1 H*J *agreed or consented that Richmond J
should execute the release of errors. I am, ;
therefore, for reversing the decree.
THOMPSON. Ch. J. It will he necessary to
a right understanding and correct application
of the testimony in this case, to ascertain, from
the pleadings, the grounds upon which the ap-
pellants placed their claim to relief in the
Court of Chancery.
The bill charges that the appellants, after
receiving notice that the cause of Tallmadge,
Smith «fc Co. against Richmond, for the escape
of Brock way, was to be brought to trial, in
order to induce Richmond to place the further
defense of that suit in their hands, proposed to
confess a judgjnent on the bond given by
them, as the sureties of Brockway, to Rich-
mond, the sheriff ; and that it was thereupon
agreed that they should confess a judgment on
the bond, and that Richmond, in considera-
tion thereof, should give up and relinquish to
the appellants the further conduct and defense
of the suit against Richmond, for the escape ;
but that Richmond, and the plaintiffs in the
escape suit, in violation of that contract, fraud-
ulently combined to supersede any further
proceedings, on the writ of error, by Rich-
mond's assigning to them the judgment, so
confessed, upon the surety bond, and releasing
all errors upon the judgment for the escape of
Brockway. The substance of the allegations
in the bill, therefore, is a fraudulent violation
of a contract, in relation to the prosecution of
a writ of error upon the escape suit of Tall-
inadge, Smith & Co. against Richmond. With-
out particularly referring to the several
answers of the defendants in the Court of
Chancery, I am warranted in saying that they
contain a most direct and unequivocal denial
of any such agreement or contract as is stated
in the bill, and of the fraud and collusion
charged against them.
Upon such a state of the pleadings, it is not
disputed that the settled rule of the Court of
Chancery requires more evidence than the tes-
timony of one witness to support the allega-
tions in the bill. A recurrence to the testi-
mony will, I think, warrant the conclusion
that so far as relates to the agreement set forth
in the bill, it is unsupported, except by the
naked and uncorroborated testimony of a
single witness. Richardson does state that the
confession of judgment by the sureties of
Brockway was given on an express stipulation
«51O*]by Richmond's 'attorney, that Lyon
and Dewey should have leave, at their expense,
to turn the case made in the cause against Rich-
mond for the escape, into a special verdict, and
bring a writ of error thereon. But it is worthy
of particular notice that tlu's witness says tha't
such confession was given on the plaintiff's
entering into a stipulation in writing, which is
referred to, and which contains no provision
whatever in relation to the prosecution of the
writ of error. It only relates to the amount
for which an execution should issue upon such
judgment. Is it not reasonable to conclude
that when the parties undertook to reduce to
writing the stipulation in relation to the con-
fession of that judgment, the whole agreement
Joiras. REP., 14.
would have been incorporated ? Instead of
this, according to this testimony, the most es-
sential and necessary part is omitted. I would
not IK- understood as intimating that this wit-
ness has intentionally misstated an}* facts.
There is no doubt, from the testimony of many
of the witnesses, that there were various con-
versations between the parties in relation to
the prosecution of the writ of error, and which
may have occasioned some mistake or misap-
prehension as to what did take place at the
time the confession was given. But admitting
the agreement to have been precisely as stated
by this witness, it is only one witness against
the denial by the answer, and the allegation in
the bill, of course, is not supported. The tes-
timony of Lombard does not at all disprove
the answer ; he says Richmond admitted that
Lyon always opposed his making the assign-
ment of the judgment, but in the conversation
alluded to by him Lyon did not pretend, or
even intimate, that such assignment was in
violation of any agreement between them'. Nor
in all the various interviews and conversations
between Lyon and Richmond relative to the
additional security required by Richmond, do
we hear any intimation of a violation of an
agreement in relation to the prosecution of the
writ of error. If any such agreement had ex-
isted, we should most likely have heard of
Lyon charging him with a breach of his en-
gagement, and not of his endeavoring to pro-
cure additional security so as to prevent the
assignment. We must, therefore, I think,
without doubt, assume that there is no compe-
tent proof of any agreement between Richmond
and the sureties of Brockwav to give them the
control of the judgment against Richmond for
the escape.
*It was, however, urged on theargu- [*52O
ment that the sureties, independent of any
special agreement for that purpose, had a right
to take the conduct and management of the suit
against the plaintiff for the escape, and to pros-
ecute a writ of error upon that judgment.
Admitting this right, it must necessarily fol-
low that if the sureties were so far parties in
interest as to be entitled to bring a writ of
error, they are competent to assent to a release
of errors, and must be hound by such assent,
if given.
The next inquiry, therefore, is, whether the
proof in the cause" supports the allegation in
the bill that the assignment by Richmond of
his judgment against Lyon and others, and
the release of errors in the escape cause, were
procured by a fraudulent agreement between
Richmond and the house of Tallmadge, Smith
& Co., to the oppression and injury of the
sureties of Brockway, in depriving them of
the benefit of a writ o'f error. The answer is
equally explicit in the denial of the fraud, as
it is of the agreement set up in the bill, and
we must look to the proofs to ascertain the
truth with respect to this allegation.
It was admitted on the argument, and indeed
could not be questioned, that if Lyon volun-
tarily assented to the assignment and release of
errors, he has no cause of complaint, and is not
entitled to any relief.
The only ground of oppression or unfair
conduct on the part of Richmond, that has
been urged with any appearance of plausi-
Ni
520
COURT OF ERRORS, STATE OF NEW YORK.
1817
bility, is requiring of the sureties of Brock-
way additional security, as the only terms upon
which he would refrain from assigning the
judgment and releasing the errors. It cannot
be pretended that Richmond was bound to
prosecute a writ of error. He had, in good
faith, and with the aid and assistance of coun-
sel employed by the sureties of Brockway, de-
fended the suit for the escape ; and the judg-
ment obtained against him thus defended, was
all that was necessary to entitle him to a reme-
dy over against the sureties. He could not be
bound to incur the trouble and expense of
prosecuting a writ of error ; and it was very
reasonable for him to wish to exonerate himself
from all responsibility, which he could do, by
closing with the proposition made by Tall-
madge, Smith & Co., to assign the judgment he
had against the sureties and release the errors
in their judgment against him. This proposi-
tion was not accepted hastily and without
notice to Lyon. Richmond repeatedly offered
to permit the sureties to take the control and
521*] management of the suit, and *prose-
cute the writ of error, provided they would de-
posit the amount of his judgment against them
or give him additional security, to indemnify
him in that behalf. Was there anything un-
reasonable or unjust and oppressive in this ?
In our inquiries, whether Richmond had any
cause for alarm, we must look at the then
state of things -and the information he then
had ; and not suffer our judgment to be influ-
enced by any subsequent information he might
have acquired, which ought to have removed
his alarms. From the testimony,- as it now ap-
pears before us, it is most likely that Rich-
mand was amply secured by his judgment.
The conveyance given by Lyon to Fish of his
farm, according to the present proofs, would
be deemed fraudulent, and of course could not
prejudice Richmond or defeat his judgment.
But Richmond's conduct is not to be tested by
this rule. If he had then reasonable grounds
for believing himself insecure he was justifiable
in requiring better security, or in relieving him-
self from all further risk and responsibility.
Richmond, in his answer, says he was alarmed
as to his situation in relation to his security in
consequence of information he had received
that Lyon had conveyed, or was about convey -
ing away his real estate to Fish, with a view
of placing the same out of the reach of the
judgment which he had, or was likely soon to
obtain against him. The answer in this re-
spect, it is true, is not evidence, but it is sup-
ported by the proofs in the case. Dewey, in
his examination as a witness, says he knew that
Lyon conveyed away his farm to Fish about
the time the suit was commenced by Tall-
madge, Smith & Co. against Richmond, for
the escape of Brockway. Although such evi-
dence would not be competent proof of the
transfer of the title, yet it afforded reasonable
ground of suspicion that Lyon was attempting
to place his property beyond the reach of Rich-
mond's judgment. Whitney, another witness
examined in the -cause, says that in a conver-
sation with Lyon respecting Richmond's inten-
tion to assign the judgment against him to Tall-
madge, Smith & Co., Lyou said Richmond
might take out an execution as soon as he
pleased ; as his (Lyon's) property was secure,
OGfi
he did not care anything about the execution,
nor how quick it came. Richmond, in his
answer, does not say that these were the sources
of the information which occasioned his alarm.
Yet it is reasonable to conclude that they were.
But if they were not, the case is still stronger
in making out *cause of suspicion. [*o22
These were facts then existing ; and if Rich-
mond's alarm arose from other information, his
real cause for suspicion was much strength-
ened. This proof is, at all events, amply suf-
ficient to show that Richmond's alarm was not
a mere pretense for the purpose of justifying
his demand of further security, and serving as
a cloak for any collusion between him and
Tallmadge, Smith & Co. to evade the writ of
error. The proof in the case does not warrant
the conclusion that Richmond was unfriendly
to Lyon ; but that his conduct proceeded from
an honest desire to extricate himself from all
further risk and hazard on account of the es-
cape of Brockway ; and the very circumstance
of Lyon's being unable or unwilling to give
more satisfactory security, was calculated to
increase the suspicions of Richmond as to his
responsibility. That Lyon had full and fair
notice of Richmond's intention to assign the
judgment and release the errors unless further
security was given, appears from the witnesses
on both sides ; and that this was done with the
knowledge and approbation of Lyon and
Dewey, is very fully proved by the testimony
of Dewey and Mumford, and their evidence is
strongly corroborated by other proofs in the
cause. If this be so, whatever might have
been the previous right of Lyon, touching the
prosecution of a writ of error, he waived and
abandoned that right by his consent to the as-
signment of the judgment, and the release of
errors.
Mumford, in his testimony, after stating the
various propositions and conversations between
himself and Lyon and Dewey, relative to
further security, and the proportion of the debt
which each should pay or secure, all which
failed of being effected, in consequence of a
disagreement between Lyon and Dewey as to
the proportion which each one should assume,
says that, in the presence, and with the knowl-
edge and approbation of Lyon, it was finally
agreed between the witness and Richmond,
that he (Richmond) should assign his judgment
against Lyon and others to Tallmadge, Smith
& Co. , and release all errors in the judgment
for the escape, on Tallmadge, Smith & Co.
discharging him (Richmond) from all responsi-
bility on that judgment; and that the necessary
writings to carry such agreement into effect
where then drawn and executed, and the
negotiation completed, and that Lyon was
present and consented and agreed to the same.
That he, the witness, drew a written consent
to that effect, and read the same to Lyon, who
declared that he *fully agreed to the [*523
same, but that he never meant to put his name
to any paper again. As to this fact, Mumford
is supported by the testimony of Dewey, who
swears that he saw Mumford hand a paper to
Lyon to sign, that he read it, and said he agreed,
to it, but could not sign it, because he had
promised his wife that he never would put his
name to paper again. Dewey also states that
in a subsequent conversation with Lyon, in
JOHNS. REP., 14.
1817
LYON v. TALLMADGE ET AL.
533
which he, the witness, found fault with Lyon
for having consented to the assignment and
release of errors, Lyon did not pretend to deny
that it was done with hi* knowledge and ap-
probation. This testimony is strengthened by
that of Lombard, a witness on the part of the
appullan(s, who says that in a conversation be- j
tween Richmond and Lyon. relative to this
assignment and release of errors, Lyon acknowl- j
edged he did not blame Richmond for wishing
to get out of trouble; and a like declaration of
Lyon appears from the testimony of Richard-
-"ii. Had Lyon considered Richmond as
having violated any agreement, or praticed any
fraud or unfair couduct towards him, he would
not have held such language concerning him; it
amounted, substantially, to an unwilling ap-
probation of Richmond's conduct, and is
altogether inconsistent with the pretense now
set up. Nor is there anything in the testimony
of Richardson which goes to disprove or render
doubtful Lyon's assent to this assignment and
release of errors. His testimony relates,
principally, to transactions between the parties
prior to the assignment, and whilst the attempt
was making between Lyon and Dewey to pro-
cure and arrange the additional security, and
which is admitted, by all the witnesses, to have
totally failed. Richardson was not present
when the business was completed, and all that
he afterwards heard from Richmond was, that
Lynn had told him that he did not blame him
for getting out of trouble; that Lyon consented
to, and urged the issuing of the execution
against himself, Dewey and Brockway, is a
fact established beyond contradiction. It was
said on the argument that this was done for
the purpose of getting hold of the property of
Brockway, in the hands of Dewey. as was
alleged; but this answer is altogether unsatis-
factory. If that had been the sole objection,
the proceedings on the executions would have
stopped them; instead of which, it was not only
levied on all Dewey's own property, but on
Lyon's also ; and Lyon himself took an
active part in aiding and assisting the sheriff ;
£»i24*J *all which is utterly irreconcilable with
the idea that Lyon still wished or expected to
pursue the writ of error. This he had aban-
doned, and his object, then, was to compel
Dewey to pay his proportion of the judgment.
From all the testimony in the case, it appears
that he had been, for a long time, endeavoring
to get Dewey to pay or secure a part of the
judgment. But having failed in this, he had
recourse to the execution, for this purpose. If
>tumford is to be credited, there cannot remain
a doubt but that Lyon assented to and appro-
bated the assignment and release of errors. His
testimony is clear, plain and unequivocal as to
that fact, and given with such circumstantial
detail that utterly precludes the possibility of
mistake. If the fact was not so, he must have
sworn false; and is there anything in the cane
to justify such a conclusion? He is corrobo-
rated by Dewey, and by Lombard, and even by
Richardson, and by the strong undisputed fact
that Lyon sanctioned and approved the issuing,
and aided and assisted in levying the execution.
Nor is there any evidence contradicting the
testimony of Mumford as to that fact. I cannot,
judicially, know Mumford, except as he ap-
pears in this case. He was known by the
JOHNS. REP., 14.
appellants to be a witness in the cause, and is
not impeached. If his character was assailable,
he should have been impeached in the court
below ; that has not been done, and there are
no circumstances appearing, in this case, to
discredit him. I am not, therefore, prepared
to pronounce upon him the harsh and severe
judgment that he has sworn false; and without
id. in. •• so, it seems impossible to deny ihe assent
of Lyon to the assignment of the judgment
and release of errors.
In deciding on the merits of the present case,
we must lay out of view, altogether, the ques-
tion which would have been brought before
this court upon the writ of error; for admitting
the judgment to have been erroneous, it was
competent for the parties to waive the error ;
and if this has been done with the knowledge
and assent of Lyon, he comes too late now to
complain. It would, I think, be going a little
too far, to say that it was certain, at the time
when this transaction took place, that the
judgment would be reversed. The assignment
and release of errors were given in the fall of
1812; at which time, according to what had
been considered in the Supreme Court, for
years, the settled construction of the Act Rela-
tive to the Security for Jail *Liberties, [*525
there was no error in that judgment. It was
not until after this time that a different con-
struction was adopted by this court. If this
release of errors had been given after the decis-
ion of a Mini liar question in this court, it would
have afforded a pretty strong argument against
the good faith of that transaction ; but, admit-
ting it to have been a doubtful question, at that
time, we must, in weighing the testimony,
look at the then state of things, and not suffer
ourselves to be influenced by any subsequent
alteration or construction of the law. Judging,
then, from the facts and proofs in the cause,
I am not able to discover any well-founded
doubt but that the assignment of the judgment,
and the release of errors, was a fair transaction
on the part of Richmond, after due notice and
warning to the sureties of Brockway, and
claiming from them no more than reasonable
additional security ; and I am satisfied that
this was done with the knowledge and volun-
tary consent and approbation of Lyon; and if
so, there is certainly no ground upon which
he can claim the relief sought for. I am,
accordingly, of opinion that the decree of the
Court of Chancery ought to be affirmed.
PLATT, and YATES, JJ., were of the same
opinion.
VAN NESS, J., wat absent.
ALLEN, CANTINE, COCHRAN, HASCALL,
LIVINGSTON, STEWART, TIBBITTS.VAN BUREN
and VAN VECHTEN, Senators, also concurred
in the opinion of the Chief Justice.
BATES, BICKNELL, BLOOM, CROSBY. EL-
MENDOUF, HART, KNOX, MALLORY, NOYEB,
PRENDERGABT, Ross and SWART, Senator*,
concurred in the opinion of Mr. Justice
SPENCER, that the decree of the Court of
Chancery ought to be reversed.
This being the opinion of a majority of the
court,1 the following decree was, thereupon,
l.--For reversing, 13; for affirming, 12.
9<17
525
COURT OF ERRORS, STATE OP NEW YORK.
1817
entered: "Ordered, adjudged and decreed
that the decree of the Court of Chancery, dis-
missing the appellants' bill with costs, be, and
the same is hereby reversed, annulled and va-
cated ; and it is further ordered, adjudged and
decreed that the release of errors set forth in
the appellants' bill of complaint, and admitted,
by the answer of the respondents, to have been
526*] given by Jonathan Richmond to *Ben-
jamin Tallmadge and others, releasing the
errors in the judgment obtained in the Supreme
Court, by the said Benjamin Tallmadge and
others, against the said Jonathan Richmond,
for the escape of Edward Brockway, be, and
the same is hereby annulled and vacated, and
shall, accordingly, be delivered up to be can-
celed ; and it is further ordered, adjudged
and decreed that the appellants be at full
liberty to sue out, maintain and prosecute a
writ of error in this court, in the name and on
the behalf of the said Jonathan Richmond,
upon the said judgment rendered in the Su-
preme Court, in favor of the said Benjamin
Tallmadge and others, against the said Jonathan
Richmond, for the escape of the said Edward
Brockway; and that a writ of injunction is-
sue, restraining and prohibiting the said Jon-
athan Richmond from intermeddling with, re-
leasing or discontinuing the said writ of error,
so to be brought and prosecuted ; and re-
straining and prohibiting the other respond-
ents, or any of them, from pleading the said
release of errors, hereby annulled and vacated;
and also, that a writ of injunction issue, re-
straining, prohibiting and staying all and every
execution issued, or to be issued, on the said
judgment in the Supreme Court in favor of the
said Jonathan Richmond, against the said
Moses Lyon, Solomon Dewey and Edward
Brockway, or any or either of them, upon the
bond given by them to the said Jonathan Rich-
mond, for the jail liberties, for the said Ed-
ward Brockway ; and that such injunction be
continued until the final hearing and determi-
nation of the said writ of error hereinbefore
mentioned, and allowed to be sued out and
prosecuted in the name of the said Jonathan
Richmond ; and in case the said judgment
whereon the said writ of error is allowed to be
prosecuted should be reversed, then, that a
perpetual injunction be awarded to restrain
and prohibit such execution upon the said
judgment against the appellants and the said
Solomon Dewey ; and it is further ordered,
adjudged and decreed that the record be remit-
ted to the Court of Chancery, to the end that
the order, judgment and decree of this Court
may be executed.
Decree of reversal.
Reversing— 2 Johns. Ch., 51.
Cited in— 18 Johns., 558 ; 6 Cow., 693 ; 1 Wend., 20 ;
18 Wend., 417; 2 N. Y., 361, 506; 47 N. Y., 60 ; 65
Barb., 301.
527*] *ABRAHAM FRANKLIN, JOHN
FRANKLIN, THOMAS FRANKLIN,
ANTHONY FRANKLIN, WALTER
FRANKLIN, JOHN TOWNSEND AND
REBECCA, HIS WIFE, ETAL., Appellants,
v.
WALTER F. OSQOOD, EDMUND CHAS.
GENET AND MARTHA B., HIS WIFE;
SAMUEL OSGOOD AND JULIANA, HIS
WIFE ; AND SUSAN K. OSGOOD, Respond-
ents.
WALTER F. OSGOOD, EDMUND CHAS.
GENET AND MARTHA B., HIS WIFE;
SAMUEL OSGOOD AND JULIANA, HIS
WIFE ; SUSAN K. OSGOOD, DE WITT
CLINTON AND MARIA, HIS WIFE ; AND
JOHN L. NORTON AND SARAH, HIS
WIFE, Appellants,
v. .
ABRAHAM FRANKLIN, JOHN FRANK-
LIN, THOMAS FRANKLIN, ANTHONY
FRANKLIN, WALTER FRANKLIN,
JOHN TOWNSEND AND REBECCA, ma
WIFE, ET AL., Respondents.
Wills — Naked Power to Executors — Power
Coupled with Interest Survives, and Surviv-
ing Executors May Execute — Where Power per
se is Naked Power and Other Parts of Will
Require Sale, tfie Power Survives — Inadequacy
of Price is not per se Ground to Set Aside
Sale — Trustee May Sett to Near Relatives —
Utmost Prudence not Necessary — Sale to Co-
cestui que trust, Valid — What Relief Granted
under Prayer in Chancery — Point Must be
Raised below to be Noticed on Appeal.
A devise to executors to sell land, not coupled
with any interest in the subject, is a naked power,
which must be executed by all the executors named
in the will, and if one of them dies it does not sur-
vive to the others.
But where the power, per se, is merely a naked
power, and yet in other parts of the will there are
trusts and duties imposed upon the executors, which
require a sale to be made, in order to effectuate the
intent of the testator, in such case the power sur-
vives.
The testator devised to A, his wife, and B, C and
D, each, one eighth of the residuum of his real and
personal estate : he appointed A, B, C and D his
executors, and empowered his executors that might
act, and the major part of them, their heirs or exec-
utors, to sell and convey his real estate, not before
disposed of in the will : the executors were also
authorized to lease the land, to distribute his
effects; and one eighth of his residuary estate he
ordered to be put on interest and paid annually to
his sister. S. C., and on her death, the principal and
interest to be paid to her daughter. B and C only
undertook the execution of the will ; and after both
their deaths, A qualified as executrix, and sold the
land. Held that the power was coupled with the
interest which the executors had as devisees of one
half of the residuary estate : and besides, that being
coupled with the performance of certain trusts and
duties, and the intention of the testator as collected
from other parts of the will, being that it might,
under certain circumstances, be executed by less
than the whole number of acting executors, the
power, even had it been accompanied with rip inter-
est, would have survived ; and that the survivor, or
his heirs, or executors, might act, without the con-
currence of the heirs or executors of the deceased
acting executors.
Inadequacy of price, per se, is no ground to set
aside a conveyance, unless it be so gross as to be
evidence of fraud.
In judging of the adequacy or inadequacy of
price, the condition and circumstances o£the estate,
at the time of the sale, must be regarded.
It is no objection to a sale by a trustee, that it was
made to his near relations.
It is sufficient to support a sale by a trustee, that
it was made tinna fide and for a valuable considera-
tion, and that there was not supine neglia-ence on
his part; it is not necessary to show that he acted
with the utmost possible prudence and sagacity.
A purchase from a trustee by one co-cestui que
trust, without the consent or concurrence of the
other cestui une trust, and in exclusion of them, is
valid.
NOTE.— Powers— Execution of— Survivorship. See
Jackson v. Given, 16 Johns.. 167, note.
JOHNS. REP., 14.
1817
FRANKLIN ET AL. v. OSOOOD ET AL.
5-2",
No relief can be granted, under the general prayer
in a bill of chancery, which is of a nature distinct '
and independent of the special relief prayed.
A point not raised in the court below cannot be |
noticed upon appeal.
Citations-Co. Litt., 112 b. 113 a, 181 b: Shep. Touch., I
pi. 9, p. 429 : Powell Dev., 292, 298. 2H7, .107, 310 : 1
Cai. Cas., in Kr.. 15 : 8 Salk.. 277 : 3 Atk.. 714 : 2 P.
Wms.. 1(B : Sir Vf. Jones, 252 ; Cro. Car., 2SJ ; Hard., j
419 ; Cro. Ch.. 3Si ; Cro. Eliz., 26 ; Sujf. Pow.. 141 ; 3 !
Hlnn.. AU; Moore. 61.
THESE were original and cross suits in the
Court of Chancery. Samuel Osgood' and
Mary, his wife, the sole surviving executrix of j
the fast will and testament of Walter Franklin, '
deceased, her former husband, in Noveml>er,
1808. tiled a bill in the court below, in which
they stated that Walter Franklin, being the
owner of a large real and personal estate, on the
21st of February, 1778. made a will, containing
528*| the following^ *clauses : "The whole
residue of my estate I give and bequeath as
follows : one eighth part I order put out on in-
terest, as soon as can be done, or by degrees,
as it is divided -. and the interest that is made j
therefrom, I order to be paid to my sister j
Sarah Corsa, yearly, as long as she lives; at her j
death, I give the whole of the interest and |
principal thereof to her daughter Mary Corsa, i
to be paid her when she has attained to twenty- ;
one years of age, or is married and has a child ;
or children, which child or children is to be !
her heirs, and to receive that eighth, if she dies
before it's paid her ; but if she dies and leaves
none, then I give that eighth to my daughters,
Maria and Surah Franklin, or the survivors of
them. One other eighth I give the use of to
my sister Mary Wistar, as long as she lives,
and after her "decease, I give it to her four
children, Thomas, Catharine, Sarah and Mury
Wistar, or the survivors, share and share alike.
And I give to my dearly beloved wife, Mary
Franklin, one eighth part. And to my dear
daughters, Maria and Sarah Franklin, each
one eighth, and if one dies without children,
the survivor of them to have that one's eighth:
but if they both die in their nonage, and leave
no children to receive their parts, then I order
their shares of the residue to be given my
brother John's son, Walter Franklin ; and to
my brother Thomas' son, Walter Franklin, or
their heirs, share and share alike. And I give
my brothers, John Franklin, Thomas Frank-
lin and Samuel Franklin, the other three
eighths, being each one eighth. And I order
that the money and effects be distributed and
divided, from time to time, as it can be raised
from my debts and estates by my executors
hereafter named ; but they are to be careful to
keep a sufficiency undivided to pay off all lega-
cies as they become due. and to keep the es-
tate as much on interest or rents ax they can,
for the general benefit, and to be careful to
take such securities for the money as they
think is certainly good, by mortgages or per-
sonal securities ; some security to be taken to
every single person's bond. Item. I do hereby
appoint my dear wife, Mary Franklin, with
my three brothers. John Frank! in. Thomas
Franklin and Samuel Franklin, to be execu-
tors of this my last will and testament, but on
this express condition and proviso, that if they
owe me any money at the time of my decease,
either by pond, note or book debt, that my
appointing them, and their acting a- executors,
JOHNS. REP.. 14.
shall no way clear them from paying said
debts to my other executor or executors, but
the same by them shall be paid *for the [*52O
general benefit of my estate ; and if they, or
either, do not act on this condition, then they
are not to be my executors. I give to my exec-
utors that may act. and to the major part of
them, their heirs or executors, full power to
sell, and to assign and convey away any or all
my houses, lands and tenements, and that for-
ever, that are not already given away, in this
will foregoing." The bill further stated that
the testator died on the 1st of August, 1780,
leaving his will in force, of which Samuel and
John Franklin alone undertook the adminis-
tration, and were the only acting executors as
long as they lived, respectively, the latter dy-
ing in September, 1801, and Samuel Franklin
in September, 1807 ; and during this time,
from the personal effects and sales of lands,
they received very large sums of money,
which they employed in trade ; that the three
executors named in the will jointly, and John
and Thomas Franklin separately, were indebted
to the testator in large sums of money, which
are still unpaid ; that the plaintiff Mary, the
widow of the testator, on the 24th of "May,
1786, married the plaintiff Samuel Osgood ;
^that after the death of Samuel Franklin, Os-
'good and his wife undertook the execution of
the will ; that the debts of the testator had
been paid and legacies discharged, excepting
the residue of his estate ; that John and Sam-
uel Franklin were, at the time of their death,
indebted to the estate for money and property,
received by them as executors, which debts
were still unpaid ; that the complainants had
endi.-avored to convert into money all the re-
maining property and debts, in order to make
a final distribution of the same according to
the will ; that they had sold the residue of the
real estate, not specifically devised, and not
before sold, for the sum of $25,000, which they
had received; and which, with the sum of $347,
was all that they had received : that Thomas
Franklin was dead, and his executors made
defendants ; that the other defendants in the
bill stood in situations by which, under the
will, and in consequence of births, deaths and
marriages, they claimed, or might be entitled
to some share of the residue of the estate ;
that the executors of Samuel Franklin were,
insolvent, and that some of the executors of
John Franklin were also insolvent. The ob-
jects of the bill were a discovery and account
from the executors of Samuel, John and
Thomas Franklin, and for a distribution of
the residue of the estate by a decree of the
court.
The answers of the defendants, De Witt
Clinton and Maria, his wife, and of John L.
Norton and Sarah, his wife, admitted the facts
*of the bill : the answers of the other [*5JJ(>
defendants admitted the facts stated in the
bill, excepting certain matters immaterial to
the questions discussed in this court, but in-
sisted that the sale mentioned in the bill of the
rttiduum of the real estate was void for want
of power in the executrix, and as fraudulent.
The suit was afterwards abated by the death
of Samuel and Mary Osgood, and was revived
by the respondents "in the first entitled cause.
But previously to their death, viz : on the 7th
Ml
530
COURT OF ERRORS, STATE OP NEW YORK.
1817
of June, 1809, a cross bill was filed (most of
the plaintiffs being the defendants in the orig-
inal suit) against Samuel Osgood and Mary, his
wife, De Witt Clinton and John L. Norton.
The cross bill stated the will of Walter
Franklin, by which he appointed Mary Frank-
lin, now Mary Osgood, and his three brothers,
John, Thomas and Samuel, his executors, giv-
ing to his said executors, that they might act,
and to the major part of them, their heirs or
executors, full power to sell, and to assign and
convey away, any and all his houses, lands or
tenements, and that forever, not specifically
devised in and by his said will ; that he like-
wise gave to each of his said executors, who
should act. to execute his said will, the sum of
£200, then currency of this State, in lieu of
all other commissions and rewards whatever,
for executing his said will. The bill then
stated several preliminary matters, relating
principally to the administration of the will,
and the rights and characters in which the
complainants sued, and the intermarriage of
Clinton and Norton with two of the daughters
of the testator, and of Samuel and Mary Os-
good ; and that Clinton, Norton and Osgood,
had, in right of their wives, become respect-
ively entitled to one eighth part of the residue
of the testator's estate. The plaintiffs in the,
cross bill then proceeded to state, that among
other tracts or parcels of land, part of the
residue of the real estate of the testator, which
remained unsold and undistributed, at the
time of the decease of his executor, Samuel
Franklin, were the following, to wit : three
thousand eight hundred acres or thereabouts,
in one or all the Counties of Otsego, Schoharie
and Montgomery ; four thousand four hundred
acres or thereabouts, in the same counties ;
four thousand six hundred acres or therea-
bouts, in one or all the said counties ; a tract
of land on or near Lake George, the quantity
of acres in which was unknown to the plaint-
iffs ; eight hundred and fifty acres situate, as the
plaintiffs understood, in the town of Queens-
bury, in the County of Washington ; twelve
lots of land situate, |as they had understood,
531*] somewhere *on the Susquehannah, but
they were ignorant of the quantity of , acres ;
also, a tract containing, as they had under-
stood, about five thousand acres, situate, as
they had understood, at or near Hillsborough,
in the State of Vermont ; one other tract of
about one thousand acres, situate, as they had
understood, at or near Reading, in Vermont ;
and one other tract of about one thousand
acres, situate, as they had understood, at or
near Holton, in Vermont ; nine rights in the
township of Cavendish, in the State of Ver-
mont ; and one other tract, containing, as they
had understood, fourteen rights in the town-
ship of Draper, in the same State, but they
were ignorant of the quantity of acres con-
tained in the last-mentioned two tracts. That
they had been informed and believed, that
there were other tracts of lands belonging to
the residue of the testator's real estate, situate
in different parts of the States of New York
and Vermont, and others of the United States;
and that the title deeds, &c., of the residue of
the testator's real and personal estate, were in
the possession of the defendants, some or one
of them, for which reason they could not give
970
a more particular description ; and they stated
that the several tracts of land referred to were
of the value of $200,000, at a fair and reason-
able valuation, and according to the prices the
same would bring, upon a just and fair sale
thereof to the best advantage ; and that that
sum of money might have been, and could
then be obtained for the same, if reasonable
pains and proper and necessary measures were
taken for the disposal thereof. The plaintiffs
then stated that they had been advised that
Mary Osgood had not any legal power or au-
thority, under the will of the testator, as the
surviving executrix thereof, to sell the residue
of his real estate ; and that, therefore, the sale
made by Osgood and wife was void in law ;
but that, should they be mistaken in this par-
ticular, they contended and insisted that the
sale should not be carried into effect, inasmuch
as Osgood and wife, and Clinton and Norton,
well knowing the value of the premises, had
corruptly and collusively agreed among them-
selves, for the purpose of defrauding the
plaintiffs out of their just proportions of the
residue of the real estate, that Osgood and
wife, under the supposed authority to her,
should convey all the said residue to Clinton
and Norton, for the inadequate and small sum,
when compared with the real value of the
property, of $25,000 ; that in pursuance of
such corrupt and fraudulent agreement, Os-
good and wife executed a Conveyance [*532
or conveyances, in fee, to Clinton and Norton,
for the small and inadequate consideration of
$25,000, which sum they are desirous of dis-
tributing among the plaintiffs, and those in-
terested in the residuary estate, as and for the
whole value thereof ; and they charged various
corrupt motives, and secret and fraudulent
trusts, against the defendants. The plaintiffs
further alleged that the several tracts of land
conveyed as aforesaid, and particularly those
situated in the State of New York, were in
parts of the country thickly settled, and to
which access could easily be had ; and that,
therefore, the fraud practiced upon them in
the said State is the more palpable, as nothing
but negligence so gross and willful as to ren-
der the said Samuel Osgood and Mary, his
wife, responsible to the plaintiffs for the whole
value of the said lands, could have prevented
them from ascertaining the real value thereof.
The bill charged fraud or gross negligence in
the sale, and prayed that it might be set aside,
and that Osgood and wife might account, &c.
The answer of Osgood and wife, filed the
29th of September, 1809, to the cross bill, stated
the power in the will to be as follows : " I give
to my executors that may act, and to the major
part of them, their heirs or executors, full
power to sell, and to assign and convey away
any or all my houses, lands and tenements,
and that forever, that are not already given
away in this will foregoing ;" but the defend-
ants had not the original will in their power or
possession, and did not know where it was,
unless it was in the possession of the represent-
atives of Samuel or John Franklin. In the
part of their answer which related to the real
estate, and which is all that is necessary to be
here detailed, they stated that among the pa-
pers relative to the estate of the testator, handed
them by the plaintiffs, Abraham and John
JOHNS. REP., 14.
1817
FRANKLIN ET AL. v. Oeooon ET AL.
Franklin, the executors of Samuel Franklin,
were certain deeds, to wit : a deed executed by
Peter Dubois, Samuel Verplank, James Duane,
Henry White and Jacob Walton, to the testa-
tor, Walter Franklin, in fee, dated the 8d of
November, 1773, for twelve lots of land, con-
taining three thousand eight hundred acres or
thereaoout. situated on the south side of the
Mohawk Hiver ; another deed between the same
parties, of the same date, for four thousand
four hundred acres or thereabout, situated on
the south side of the Mohawk ; and another
deed to the testator, in fee, executed by Ver-
plank, Duane, White and Walton, bearing
date on or about the 5th of January, 1775. for
fourteen lots in the County of Tryon, con-
ftttJJ*] taining *four thousand six hundred
acres, or thereabout ; that they believed that
considerable parts of these three tracts were
sold by the testator, in his- lifetime, or by
Samuel Franklin, as his executor, and that the
conveyances by Samuel Franklin were either
absolute conveyances in fee, or perpetual leases I
or conveyances in fee, charged with some small
and nominal rent, or were agreements that the
purchasers should take possession ; and that,
when a title should be given, the improvements
should be valued by persons mutually chosen,
and be allowed and paid for ; but the defend-
ants had been unable to ascertain how much,
and what parts, had been sold and conveyed
by the testator and Samuel Franklin, and" in
what manner, and that Abraham and John,
the executors of Samuel, had refused to give
them any information on the subject ; and that
the whole or nearly the whole of those tracts
is covered with settlers or actual occupants,
who claim title, and refuse to exhibit their
deeds, and to give any information in what
manner they derive title. That Samuel and
John Franklin, as executors, sometime be-
tween the years 1790 and 1795, offered these
tracts, or so much as remained unsold, for the
original price given for them by the testator,
being about $ 5,000 j and, in particular, offered
them for sale to James Duane, late of the City
of New York, who refused to purchase them
at that price, and that Samuel Franklin
offered them to the defendant, Samuel Os-
good, for that sum, who refused to purchase
at that price, thinking it too high, and beyond
the just value of the land, though he supposed
the title to be good ; and that the said Samuel
and John could not procure the sum demanded
by them ; that the defendants could not ascer-
tain that the original grantors had any title to
those tracts, and all that they could ascertain
was, that they were purchased by the testator,
at public auction, about the times when the
deeds bear date ; that the executors of Samuel
Franklin, on application for that purpose, gave
no information, but said that they knew noth-
ing about the subject, and had no deed or pa-
pers relating to it ; that Samuel and John
Franklin, or their testator, never had any actual
possession of the sutd three tracts; and that,
according to the best of the information and
belief of the defendants, the grantors never
had any possession ; and the defendants being
unable, after diligent inquiry and examination,
to discover any title in the grantors, or any-
thing to show that they had title, concluded,
and believed, that they never had any right or
JOHNS. RKP., 14.
title to the lands ; *or. if they ever had, [*534
that the muniments and evidence thereof had
been wholly lost, which opinion and belief they
entertained^ at the time of the sale and convey-
ances hereinafter mentioned, and they still be-
lieve the same to have been correct : that the
whole of the said tracts were settled by persons
who had been in possession for different
periods, from nineteen to twenty-five years,
and upwards, claiming title to the parts which
they hold ; and the defendants said that a great
part has been lost by the adverse possession of
the tenants, which was the real belief of the
defendants, at the time of the sale hereafter
mentioned, and was still their belief ; that
they received, from the executors of Samuel
Franklin, a deed from John Brandon to Wal-
ter Franklin, dated the 4th of July. 1771, for
an island in Lake George, containing one hun-
dred acres ; and another deed from Joseph
Fairlie, dated the 4th of February, 1771, for
two hundred acres, on a neck of land ,on Lake
George ; that if the title to those parcels were
good, the land was poor, and not worth more
than $300 ; that they knew nothing of any land
in Queensbury, in the County of Washington,
belonaring to the estate of Walter Franklin ;
that they received from the executors of Sam-
uel Franklin a deed to Walter Franklin* for
two thousand three hundred and sixty-three
acres of land on the Susquehanna, in twelve
lots, which land is rough and of no great value,
and some of the settlers claim title by posses-
sion ; also, deeds for hinds in the State of Ver-
mont, in Hillsborough, Reading and Holton,
being eleven thousand acres in the whole ; a
deed for nine rights in Cavendish, and a deed
for fourteen rights in Draper, in the same
! State ; that several of the titles were under the
State of New York, and were lost when Ver-
mont became an independent State ; that a con-
siderable part of the lands has been sold for
taxes, or lost by adverse possession, and for
these causes, according to the best information
and belief of the defendants, the title to all
the lands in Vermont had become entirely lost
and extinguished, excepting about two thou-
sand acres in Cavendish, which was mountain-
ous and of little value, and the settlers on
which dispute the title of Walter Franklin ;
that, to the best of their knowledge and be-
lief, there were no other lands belonging to
the estate of the testator, and they were satis-
fied that there was no land of his in the County
of Green. The facts above stated, they said",
were all the information they could obtain re-
specting the residuary real e'state of the testa-
tor, but they considered the three tracts of
land first mentioned as the principal, and
*by far the most valuable part. The [*535
defendants further snid that Samuel and John
Franklin did not, while they, or one of them,
were acting executors, take any care whatever
of the lands composing the residue of the real
estate of the testator, or take any measures to
preserve the title, or to obtain or defend the
possession ; that their only acts were sales and
dispositions of sundry parts thereof, made to
persons who came to the City of New York,
and applied to them for that'purpose, and the
payment of some taxes, in a few instances ;
that during a period of more than twenty-seven
years, during which they jointly, or Samuel
COURT OP ERRORS, STATE OF NEW YORK.
1817
alone, were acting executors, the lands were
left exposed to intruders and settlers, were not
in the possession or actual care of any person,
on behalf of the estate, and became covered
with settlers or actual occupants, commonly
called squatters, all of whom claimed title to
the lands which they occupied, and many of
whom had probably acquired a good title, by
lapse of time and length of possession ; and
the defendants expressly alleged, and charged,
that the largest and most considerable and
valuable parts of the lands had been lost, and
the title extinguished, by the gross negligence
of Samuel and John Franklin ; and they said
that they understood and believed that the
whole, or a large part of the lands situate in
this State, was subject to the payment of quit-
rents, of which large arrears were due. The
defendants further said that when they bad
obtained all the information in their power re-
specting the lands, and that no part could be
recovered without litigation and expense, they
considered and resolved, that it would be the
most prudent course for them, and the most
beneficial for the estate, to sell the whole resi-
due of the real estate in a mass, if they could
obtain a fair and reasonable price for the same ;
and the defendants so being of opinion, and
believing that it would be most proper for them,
and most beneficial for all parties interested, to
sell the same together, also thought it expe-
dient that the same should be sold as soon as
might be, to prevent the injurious conse-
quences of further delays ; and they were also
desirous to discharge themselves wholly of the
trust, and believed that it would be for the ad-
vantage of all concerned that the unsettled af-
fairs of the estate should be closed with all
convenient expedition; and for these reasons,
proceeded to offer the residue of the real es-
tate for sale, and about the 1st of June, 1808,
agreed to sell the same to De Witt Clinton and
536*] John L. *Norton ; that on or about the
llth of June, 1808, in virtue of the power
conferred upon the executors of Walter Frank-
lin, they executed two deeds in fee, one to
Norton for two third parts of all the residue
of the lands and real estate of Walter Frank-
lin, not before disposed of, and the other to
De Witt Clinton for one third part of the
same ; in the deed to Clinton, one third part
of the sum of $25,000, and in that to Norton
two thirds of the same, being expressed as the
consideration respectively, and that the whole
of the consideration was paid, in cash, by
Norton and Clinton, at the time of executing
the deeds. The defendants, fully and abso-
lutely, denied all fraud or secret trust in the
sale.
The answer of De Witt Clinton, filed 26th
September, 1809, to the cross bill, stated that
all the title deeds, &c.; did not go into the
hands of Osgood and wife ; that the deeds
from the original patentees to Peter Dubois,
through whom the title to the lands in Cherry
Valley was derived, to Walter Franklin, never
went into the hands of Osgood and wife, the
same being supposed to be lost, until the de-
fendant recently discovered them in the hands
of William North, Esq., which supposed loss
tended very materially, in the estimation of
the defendant, to diminish the value of the
lands. He then stated that in the spring of
972
1808 Norton applied to him to be concerned in
the purchase of the residuary estate of Wal-
ter Franklin, at the price of $30.000, which
the defendant thought so high that he would
have no concern in it ; that some time after,
he was informed that it might be purchased
for $25,000, and was offered an interest, and
became purchaser with Norton, and their
deeds were dated the llth June, 1808. The
answer denied any fraud, and stated, that
under the circumstances, the property was not
worth more than $25,000, and that a larger
sum could not then have been obtained ; and
that the defendant, hearing that Osgood was
desirous to rescind the bargain, offered to give
it up, but that Osgood refused. The answer
further stated that the defendant believed and
had understood it to be the opinion of coun-
sel that Mary Osgood was authorized to sell,
as surviving executrix, and that the sale by
Osgood and wife was valid, but that if the
court should consider her as unauthorized, it
would confirm the sale, if found to be fair,
bona fide, and for an adequate consideration,
and that it would decree the plaintiffs, or those
authorized, to execute conveyances to him
*aud Norton. It stated that the only [*537
tracts of much value lie in Sharon, Schoharie
County, Canajoharie, Montgomery County,
and Cherry Valley, Otsego County ; but what
portion was in each the defendant did not
know ; that these lauds are commonly called
Cherry Valley lands, and were part of the pat-
ents to Philip Livingston and others, and to
Frederick Young and others, conveyed by
Peter Dubois and his trustees to Walter
Franklin ; the first of which tracts, in Living-
ston's patent, contained about three thousand
eight hundred acres ; the second contained
four thousand four hundred acres, or there-
abouts, and the third, four thousand six hun-
dred acres, both in Young's patent ; that these
tracts lay in a hilly, rough country, and the
soil was not of the first quality, but the coun-
try was considerably settled ; that the defend-
ant had understood that part of those lots was
sold by Walter Franklin ; that the person in
possession of lots 4, 7, 12, 14, of about four
hundred acres each, claimed under one Samuel
Hake, who was said to derive his title from
W. Franklin, but the defendant did not know
whether the claim was good ; that he had un-
derstood that W. Franklin conveyed one hun-
dred and sixty acres to one Campbell, one
hundred and twenty-eight to one' Foster, and
four hundred to Dionysius and John Miller,
and the persons in possession claimed, under
him, adversely to the right of the defendant
and Norton ; that the defendant had under-
stood and did believe that Samuel Franklin
and his agents authorized settlers to occupy
the lands without rent, and promised to pay
for the improvements, if they should not be-
come purchasers, which improvident and un-
authorized arrangement had diminished the
value to the defendant and Norton, as some
occupants claimed high compensation there-
for, or a conveyance, at the value when they
entered upon it ; that the defendant had under-
stood that a destruction of the timber had dim-
inished the value ; that he had understood and
believed that almost all the lands were held
adversely to him and Norton, as deriving title
JOHNS. REP., 14.
1817
FRANKLIN ET AL. v. OSCOOD ET AL.
587
from Osgood and wife ; that he and Norton
had been obliged to institute suits for the re-
covery of the possession of a large portion of
these three tracts, the result of which he
could not foresee, and that, from his imperfect
knowledge, he could not tell the value of the
part of the three tracts conveyed to them. The
defendant then stated his knowledge in rela-
tion to the other lands of W. Franklin, con-
veyed to him and Norton, of which it is un-
necessary to give a detail ; it, however,
amounted to this — that the lands were, in
general, either of little value, or the title bad
or doubtful. The defendant stated that he
f»JJ8*] had understood it to *be the opinion
of eminent counsel that Mary Osgood was en-
titled to her dower in all the real estate of
which Walter Franklin died seised, notwith-
standing the specific devises in his will ; that
she had actually insisted on her right, which
had diminished the value of the said residue,
and increased the difficulty of forming a cor-
rect opinion of its value, and that no part of
the residue of Walter Franklin's personal es-
tate was included in the purchase of the de-
fendant and Norton. The answer of Norton
was substantially the same as that of Clinton.
Both causes being at issue, testimony was
taken, under an agreement that the depositions
might be used in both ; and a release of dower
of Mary Osgood was given in evidence, dated
the 11 th May, 1786, whereby she released to
John Thomas and Samuel Franklin, executors
of Walter Franklin, all her right, title and
claim of dower to the estate of the said Wal-
ter, except such parts thereof as were situate
in the City of New York and on Nassau
Island, in the State of New York.
William T. Robinson testified that about
December, 1806, in conversation with DeWitt
Clinton, about the lands of W. Franklin, Clin-
ton told him that they were worth $100,000 ;
that there were numerous settlements on and
near them, and eligible spots for public build-
ings, soon to be occupied for such purpose;
which remarks, the deponent, a few days
after, mentioned to Osgood. Another witness
stated that he was at Cherry Valley, in July,
1808, and saw Norton there, who was then
surveying the lands, and said that he would
not take $25 per acre, and that he should not
be obliged to bring many ejectments. Several
witnesses, being persons living near the Cher-
ry Valley lands, deposed that, in their opin-
ion, these lands were worth from $10 to $15
per acre in the year 1808. It was testified that
some of the land, lying on the turnpike road,
was sold by the agent of Clinton and Norton,
in 1809. for $15 ; that in 1786 Colonel Corsa,
who was the agent of the executors of Walter
Franklin, left a paper at Cherry Valley, invit-
ing settlers to go on the lands, and if the price
could not be agreed for, then that the improve
ments should be appraised, and paid for ac-
cordingly ; that many of the set tiers were will-
ing to purchase, if they were satisfied as to the
title of Clinton and Norton, but others refused
to acknowledge any title in Walter Franklin,
or Clinton and Norton, and that in 1808 Clin-
ton and Norton said that their title was good.
AJM>*] *John Lawrence, a witness for the
defendant*, testified that some years ago he
passed through the lands in Cherry Valley.
JOHNS. REP., 14.
and was at the house of one of the settlers,
who said that they had gone on the lands under
: some agreement "with the executors of W.
Franklin, but no title had been given them.
| That afterwards he was asked by Samuel
| Osgood what be would give for these lands,
, and whether he would give $25,000 ; and that
the witness told him that,- considering all cir-
; cumstances.he would not give that sum in cash,
for there might be trouble with the settlers.
Another witness testified that in 1786 Col-
J onel Isaac Corsa was at Cherry Valley, and
i said that he was authorized to sell or lease the
j lands of W. Franklin, and left a paper con-
: taining the numbers of the lots and quantities,
and inviting persons to settle on the lands ; and
that if the lands were sold to any other per-
sons, the settlers should be paid for their im-
provements, the value thereof to be ascertained
I by two persons mutually chosen by the par-
jties; the witness had lost the original paper,
j and had no copy ; that fifty or sixty persons,
| in consequence, settled on the lands, in expec-
tation that the terms of settlement K> held out
would be fulfilled, and who claimed compen-
sation for their improvements. These terms
were, afterwards, recognized, in a letter of
Samuel Franklin, written to some of the set-
tlers the 25th of June. 1791 ; and again, the
27th November, 1798, John and Samuel Frank
lin gave a writing to the same effect, saying
that the settlers should have a preference as
purchasers or lessees. Samuel Campbell
proved the agency of Colonel Corsa. by the
acknowledgments of Samuel Franklin, *who,
with the other executor, in 1791, conveyed to
the witness one hundred and fifty acres at $2
per acre.
Jabez D. Hammond, who was agent for
Clinton and Norton, deposed that in 1808 all
the settlers, except a few individuals, refused
to attorn to Clinton and Norton ; some of them
denied their title, and others relied on their
own adverse possession, and all refused to give
up possession, unless paid for their improve-
ments according to the terms offered by Corsa.
TBat several suits were brought and were still
pending ; that some of the settlers sold their
improvements for from $9 to $12 per acre ;
that the value of their improvements was, at
least, one half the present value of the lands,
and that under these embarrassments the
value of the land was nominal *only ; [*54O
that the timber had been much wa'sten ; that
the average value of the lands in June, 1808.
was not more than $2.50 ; that the whole
quantity of the Cherry Valley lands, claimed
by Clinton and Norton, was about twelve
thousand acres, besides four lots which had
been sold by Samuel Hake, and for which
Clinton and Norton bad brought suits, which
were still pending ; if these lots were includ-
ed, the whole would be about thirteen thou-
sand acres. He stated that the tenants gener-
ally refused to acknowledge the title of Clin-
ton and Norton ; that the timber had been
wasted, and that the compensation claimed for
improvements, in general, exceeded the price
of the land.
8. Riker deposed that one thousand nine
hundred acres of land lying in Belvidere pat-
ent, in Otsego County, had been sold in 1809,
at auction, in the City of New York, at $2.50
973
540
COURT OP ERRORS, STATE OF NEW YORK.
1817
per acre, and, on being put up a second time,
brought only $2 per acre. It also appeared in
evidence that in the lifetime of Samuel. Frank-
lin, in or about the year 1799, a suit in chan-
cery had been commenced by the executors of
Walter Franklin, against the trustees, or the
surviving trustees of Peter Dubois, for the re-
covery of the title deeds of the residuary real
estate of Walter Franklin, in which suit sev-
eral of the title deeds had been brought into
court, and were by a decree of the court de-
livered to Samuel Franklin ; but that the deed
or deeds for the Cherry Valley lands were not
among those obtained by that suit.
In consequence of the deaths of parties,
among whom were Samuel Osgood and wife,
the cross suit was, also, at three different
times, revived against their representatives, the
last bill of revivor and supplement being ex-
hibited about the 1st December, 1814. It
stated, that after the residuary estate of Wal-
ter Franklin had been sold to Clinton and
Norton, they had sold certain parts thereof,
amounting to more than $110,000, which had
been paid to them partly in money, and partly
secured by bonds and mortgages, bearing in-
terest at seven per cent. ; that they then held a
large and valuable part of the residuary estate
unsold, and the plaintiffs, in and by their bill,
offered to confirm the sale, on receiving their
portions of the purchase money.
In the several answers of Norton and wife,
and of Clinton and wife, filed in September,
1815, they said that they did not believe that
Clinton and Norton had sold of the residuary
541*] estate *parcels amounting to more
than $110,000, butof this they couldnot speak
with any certainty, as they had not. received
any recent accounts from their agents ; and
they admitted that they had sold certain parts,
and retained certain parts thereof.
The causes came on to be heard in the court
below, in September Term, 1815, on the plead-
ings and proofs ; and it appearing to the
Chancellor that the sale and conveyance of the
residuary estate to Clinton and Norton was
not fraudulent, and that Samuel Osgood a»d
Mary, his wife, in right of the said Mary, as
surviving executrix of the last will and testa-
ment of Walter Franklin, deceased, had 'com-
petent power to make the same, it was decreed
that the bill in the cross cause of Abraham
Franklin, John Franklin, Thomas Franklin
and others, as against the defendants, De Witt
Clinton and Maria, his wife, and John L. Nor-
ton and Sarah, his wife, be dismissed, with
costs to be taxed. The other parts of the de-
cree related to the matters of account, which
were ordered to be referred to a master, re-
serving the question of costs (except as before
decreed), and all further directions, till the
coming in of the master's report. From this
decree the defendants in the original suit, and
the plaintiffs in the cross suit appealed, and
the cause coming on to argument in this court,
the Chancellor assigned his reasons for the de-
cree ; for which see 2 Johns. Ch., p. 1.
Mr. H. Bleccker, for the appellants. The
first question arising, in these cases, relates to
the authority of Mrs. Osgood to sell. The
power given to the executors, by the will of
Walter Franklin, conferred on them a mere
authority to sell, and invested them with no
estate in the land. It was, therefore, what is
technically called a naked power, a quality of
which is, that it admits of no survivorship. It
must be taken literally and strictly ; must be
executed by all the persons in whom it is re-
posed ; and if any one of them becomes inca-
pacitated to act, it can never be performed at
all. If a man devises that his two executors
shall sell his land, if one of them die, the sur-
vivor shall not sell it ; but if he had devised
his lands to his executors to be sold, there the
survivor shall sell it. (Co. Litt., 181 b, 113 a,
236 a, n. 1 ; Dy., 177 a, pi. 32, 219 a, pi. 8 ;
Pow. Dev., 292, 293 ; 2 Ves., 79.) It is imma-
terial, in this instance, whether the interest in
the land passed to the devisees of Walter
Franklin, or descended to his heirs (Pow.
Dev., 294) ; it is clear that *the execu- [*542
tors had no interest. They were barely trustees
for a special purpose, and among such there
could be no survivorship. (1 Keil., 107, 108 ;
Swinb. Willes, 407 : 2 Leon., 221.) In the case
of Lancaster v. Thornton, 2 Burr., 1027, the
testator devised his leasehold estate to his ex-
ecutors, in trust for the payment of debts, leg-
acies and funeral expenses, and then devised
that his executors should and might absolutely
sell, mortgage or otherwise dispose of his
freehold estate, for the payment of such of his
debts, &c. , as his leasehold estate should not
be sufficient to pay and discharge. It was held
that no interest in the freehold estate passed to
the executors, and Lord Mansfield says that
the testator showed, by the expression 'that he
had used, that he knew the distinction between
the devise of an estate to them, and giving
them only a power to sell. In like manner,
Walter Franklin, by the eighth clause of his
will, has actually given to his executors a
house and lot for certain trusts ; thus clearly
showing that he also understood the distinc-
tion. Whatever interest the executors may
have as devisees of the residuary estate, is not
an interest to be coupled with the authority ;
they take it in a character distinct from that of
executors ; it is intended for their own benefit,
and not to be held in trust for others. "It is
not a power with interest in the executors,"
says the present Chancellor, in the case of
Bergen el al. v. Bennet, 1 Cai. Gas. in Er.,
16 ; " because they may derive a personal ben-
efit from the devise ; for a trust will survive,
though no way beneficial to the trustee ; it is
the possession of the legal estate, or a right in
the subject over which the power is to be exer-
cised, that makes the interest in question ; and
when an executor, guardian, or other trustee,
is invested with the rents and profits of land,
for sale, or for the use of another, it is still an
authority coupled with an interest, and sur-
vives." There can be no survivorship where
there is no joint tenancy ; and here was no in-
terest which could be held jointly. Nor does
the authority to lease, and receive the rents,
give the executors an interest ; this was in-
tended merely for the purpose of distribution,
and gave them no benefit in their character of
executors. The power was given them for the
advantage of those beneficially interested, and
they cannot destroy it to their injury. Neither
did the charging the land with the payment of
debts confer an interest, which could be ex-
tended to authorize the sale to Clinton and
JOHNS. REP., 14.
1817
FRANKLIN ET AL. v. OSOOOD ET AL.
543
Norton, for the debts were all paid before that
sale took place. Their power to sell was vested
543*1 in them, in a different 'capacity from
that of executors ; they were to act therein as
trustees, and no interest which they posMHad
in the one right, could be connected with the
power which they held in the other. It was
given to a major part of the executors who
might act. This clearly shows that it was the
intention of the testator to submit the propri-
ety of any disposition of his property to the
judgment of the whole, leaving the determina-
tion to the majority or their representatives ;
if, then, one of the executors may aliene the es-
tate without the concurrence of the heirs of
the other acting executors, the design of the
testator is frustrated. It would be to allow one
person to exercise an authority which he has
confided to the discretion of several.
His Honor, the Chancellor, rests his decision,
in part, on the ground that the executors had
an interest in the retiduum. This position has
already been alluded to and answered. Their
personal interest extended but to part: that is
not sufficient. It must be an interest co-exten-
sive with the power; and for the same reason,
the power to lease was not sufficient to clothe
them with the necessary interest. The cases
referred to by His Honor to show that an
equitable interest is enough, do not warrant
the conclusion. In Hearle v. Oreenbank, 8
Atk., 695. the question was, whether an infant
could exercise a power of disposing of her
own estate; and in Bergen v. Bennel, \ Cai.
Cas. in Er.. 1, the point was, whether a power
to sell, contained in a mortgage, expired on the
death of the mortgagor. It is not correct, as
stated by the Chancellor, on the authority of
Eyre v. CountouofShaftetbury, 2 P. Wms.,"l22,
that a testamentary guardian may lease: a
guardian in socage only has that power. (2
Wils., 129.) Again; it was urged by the Chan-
cellor that here was a trust charged upon the
executors, which would not be allowed to be-
come extinct by the death of a trustee. (1 Ch.
Cas., 35; Co. Litt., 118 a, n. 2.) This princi-
ple, however, only governs where the cestui
que trutt himself applies to have the trust car-
ried into effect, and not where it is to be ex-
ecuted against his wishes. Barne*' case. Sir
W. Jones, 852; S. C.. Cro. Car., 382, relied on
by His Honor, is clearly against law; it is a
decision, that a power to sell, coupled with no
interest, survived; yet the Chancellor himself
admits the doctrine of the common law, as
stated by Coke, which, notwithstanding the ob-
servations of Mr. Hargrave (Co. Litt., 113 a, n.
2) remains unshaken; besides, in that case, the
power was not given to the executors, until
after the death of the widow of the testator.
The distinction between a devise that executors
should sell the land, and adeviseof land to exec-
544*] utors *to be sold, still continues part of
the law, although it may, in one instance
(Hard.. 119), have been overruled; it was fully
recognized by Lord Manstield, in Lancaster v.
Thornton, before cited.
But admitting the trust to have survived,
still a sale like the one in question ought never
to be confirmed; the near relationship between
the vendors, who were trustees for the benefit
of others, and the situation of the vendees
themselves, in regard to their co-ce»tui» que
JOHNS. Ki.iv. 14.
trust, whose rights they were compromising
without their consent, and the gross inade-
quacy of the consideration, are conclusive
against its validity Courts of equity regard,
with the utmost jeaslousy, the conduct of trust-
ees. They are not allowed to derive a direct
benefit from the trust. They are permitted to
do no act wherein they may, by possibility,
derive a benefit; and the law sedulously guards
against the -operation of any motive which
could tempt them to a violation of their duty.
Hence, a trustee is not allowed to be a pur-
chaser of the trust estate; the prohibition
is absolute; whether the sale be fair or fraudu-
lent, is not a subject of inquiry; it may, in
any case, be set aside. It is true tha't the rule, un-
til lately, has not been carried to this rigorous
extent . but it is now fully settled that a trustee
tee shall not purchase. (8 Eq. Cas. Abr., 741;
Sugd. Vend., 393; 1 Ves., 9; 5 Ves.. 682. 678.
707; a Ves., 234; 6 Ves., 617, 625, 631; 8 Ves..
337, 350; 10 Ves., 385, 423; 12 Ve».t 325; 13
Ves.. 95.) A sale to his own children, must
equally come within the rule; it is equally in
violation of those principles of justice, policy
and morality, on which the rule was estab-
lished. The benefit to Mrs. Osgood's daugh-
ters was immense, and vastly greater than if
the sale bad been to a stranger. What though
she aliened her own right, she did but antici-
pate the gift which she intended to make to
her daughters; her maternal feelings prompted
her to subserve their advantage, and she was
willing to sacrifice a temporary benefit to her-
self, for the satisfaction of seeing them in-
vested with splendor and wealth. This sale to
the husbands of the daughters was more to
their advantage than if it had been to stran-
gers; in the one case, they would have been en-
titled merely to a portion of the purchase
money, which, as personal property, at once
belonged to them ; in the other case, they are,
at all events, entitled to their right of dower.
This, independent of all other considerations,
furnished a motive for abusing the trust. If
it were a motive at all, it matters not whether
it ware powerful or feeble. "The distinction
of a weaker temptation is too thin to form a
safe rule of justice." (Per Lord Eldon, 10
Ves., 399.) There was a strong and obvious
*tcmptation to abuse the trust, but an [*54o
indexible rule of law intervenes, and avoids the
whole transaction. As a trustee cannot pur-
chase for himself, so he cannot buy for his re-
lations, or for a stranger, or employ a third
person to make the bargain. The "civil law
prohibited a guardian, either by himself, or by
the interposition of an ag%nt, to purchase the
property of hi* ward: he could not be at once
buyer and seller; and if he made the sale to
his own children, the law regarded it as a sale
to himself. (Dig., lib. 26, tit. 8, 1. 6. sees. 2,
8, 6; 1 Domat., 76.) Devoe v. Fanning, 2
Johns., Ch.. 252, decided by the Chancellor,
was a strong case to the same point. There
the sale was made by the husband to a third
person, in trust for his wife, and this was done
to raise a legacy due to her; but the sale was
not supported, because the temptation was too
great, and he was bound to act f«>r the benefit
of others as well as for his wife. There was
no pretense or fraud, nor of inadequacy of
price. Besides, the purchasers here were co-
545
COURT OF ERRORS, STATE OF NEW YORK.
cestuis que trust, and the sale was void on that
account. The trustee is the agent of the cestuis
que trust, and they are to be presumed to have
more information as to the state of the prop-
erty. He is forbidden to purchase for himself
or for a stranger, that he may not abuse the
knowledge which he has acquired: nor shall
one of the principals, one of the cestuis que
trust, having an interest, and consequently an
interest in obtaining information, be permitted
to avail -himself of it, and become the pur-
chaser, in exclusion of the others. Neither
the assignee, nor the creditor of a bankrupt,
nor their solicitor, has been allowed to become
a purchaser. (6 Ves., 617; 8 Ves., 350.) It
appears, upon the facts and pleadings, that
the purchasers were co-cestuis que trust, and
therefore, this question is properly before this
court, although not decided upon by the court
below.
There was either fraud or gross and 'culpa-
ble negligence on the part of the trustees.
They were bound to make inquiry respecting
the value of the land; to gain all possible
knowledge, and to exercise more circumspec
tion than even in the management of their own
affairs; nor were they authorized to sell until
they had examined into the state of the prop-
erty. (3 Ves., 749; 8 Ves., 348; 10 Ves., 393,
385, 309; 1 Domat., 232.) [The counsel en-
tered into an examination of the pleadings
and proofs, to show that there was a great and
glaring inadequacy of price.] There is this
distinction between the present case and those
upon which the Chancellor relied — that they
were questions between vendor and vendee,
and therefore not so open to the presumption
of fraud as the present case. The dower of
£»4G*] Mrs. *Osgood had been released, and
therefore could not tend to diminish the value
of the land. It is palpable, from all the cir-
cumstances, that the trustees either were igno-
rant, and acted without due inquiry, or were
imposed upon; or that there was collusion be-
tween them and the purchasers; and the evi-
dence fully warranted the conclusion that the
trust was assumed by Mrs. Osgood, for th'e ex-
press purpose of making the sale. In Chester-
fieldv. Jansen, 2 Ves., 156; 1 Atk., 352, Lord
Hardwicke says that fraud may be collected or
inferred from the nature of the transaction,
as being an imposition and deceit on other per-
sons not parties to the fraudulent agreement;
and that particular persons in contracts shall
not only transact, bona fide, between them-
selves, but shall not transact, mala fide, in
respect of other persons, who stand in such a
relation to either, as to be affected by the con-
tract or the consequences of it. A conveyance
from persons ignorant of their rights, has been
set aside, although there was no actual fraud
or imposition. (2 Bro. Ch. Cas., 151.) [The
following cases were also cited by the counsel,
as to the questions of fraud and inadequacy of
price: Rogers v. Cruger, 7 Johns., 557; 3 Eq.
Cas. Abr., 741; 1 Bro. Ch. Cas., 9; 2 Bro. Ch.
Cas., 175, 177, n.; 10 Ves., 292. J
Messrs, liiggx and Wills, for the respondents
Clinton and Norton. Mrs. Osgood had power
to sell the land. Had it been a mere naked
power, which, it is admitted, could not have
survived, there would have been no necessity
for coming into a court of equity, and the
97«
cestuis que trust should have brought their
action of ejectment at law. This court has no
jurisdiction of the case, on the ground of a
mere invalid execution of the power; but if
the power were accompanied with a trust, it
was a case proper for chancery, and the law
adopts the rule established in equity. Where
the power is mrtute ojficii, it always survives,
and the trust survives with it ; -and in this
case, the estate is given to the executors quasi
executors, and must therefore go to the sur-
vivor (Jenk. Cent., 44 ; Dyl, 177, pi. 32) ; for
the office of executors is equivalent to a joint
estate at law, and is governed by the same
rules as to survivorship. In Zebach'* Lessee v.
Smith, 3 Binn., 69, a power to sell, for the
purpose of paying the testator's debts, was
given to three executors, and no provision
made by the will for its being executed by a
less number ; two of the executors refused to
act, and it was held that a sale by the one
acting executor was valid ; and the j'udge who
delivered the opinion of the court says that it
is *admitted, on all hands, that if the [*547
authority to sell was given to the executors,
mrtute officii, a surviving executor might sell.
The question between Powell (Pow. on Dev.,
302) and Hargrave (Co.'Litt., 113 a, n. 2), does
not touch the present case. Here there was a
trust accompanying the power, and Powell
does not deny the rule that a trust shall never
fail for want of a trustee. A court of equity
will follow the land into whosoever hands it
may go, and may make the owner a trustee,
or create a trustee to prevent the trust from
failing. (16 Ves., 26; 5 Ves., 505; 8 Ves.,
570 ; 1 Ves.. Jr., 475 ; 3 Bro. Ch. Cas., 528,
229; 2 Bro. Ch. Cas., 81; 2 Burr., 1147;
Cowp., 266.) The intention of the testator,
Walter Franklin, is clear, and the rule is well
settled, in the construction of wills, that the
intention must govern. In Jackxon v. Jansen,
6 Johns., 81, the court say : " The intent is
much regarded in the construction of these
powers, and from several of the cases, it
would seem that the power was constructed
with greater or less latitude, as would best
meet this intent." Unless the power be con-
sidered as surviving, the intent cannot be car-
ried into effect. The residuary property was
to be turned into money for distribution, and
this could not be done without survivorship ;
and the cases show that a power to sell, for
the purpose of paying debts or making distri-
bution, is a power virtu te officii, that being
requisite to effectuate the intention. (Pow.
on Dev., 297, 307; Hard., 419; Cro. Car.,
382; Cro. Eliz., 26.) The case of Lancaster
v. Thornton, 2 Burr., 1027, cited by the coun-
sel for the appellants, has no application ; for
the question there did not relate to the exe-
cution of a power, but whether a conditional
fee vested in the executors under the devise.
The power in the will of Walter Franklin is
not given, nominatim, to A, B and C, but to
his executors ; and so if it were a naked power,
being annexed to the office, it survives.
But it was a power coupled with an interest,
both legal and equitable, either which is suf-
ficient. 1. There was a legal interest. The
power to lease gave the executors an interest
in the rent ; the estate was directed to be kept
on rent for the general benefit, until distri1
JOHNS. REP., 14.
1817
FRANKLIN ET AL. v. OSGOOD ET AL.
547
bution, and the executors themselves were en- where the sale is pursuant to, and in fulfill
titled to one half of the profits. The case of ment of the trust, the purchaser takes the es-
Eyre v. Connte** of Shift &bury, 2 P. Wms., , tate unincumbered by the trust. How far the
102, shows that a testamentary guardianship : trustees may *be accountable for their [ *.">4J>
survives; that it is coupled with an interest i negligence is no concern of the purchasers,
and that the guardian may lease. The bare] and does not affect the validity of the sale ;
power of lea-sing gives him an interest ; nor is the breach of contract merely creates a simple
this contradicted by the case of R>x v. Hndg- contract debt, as against the trustee alone.
•on, 2 WiK, 139. cited by the counsel for the j (2 Mudd. Oh., 114: 2 Atk.. 119; Barnard,
appellants. In that case the guardian leased j 280; 2 Yes., 19.) If relief cannot be granted
for twenty one years, and the question was j on any of the special grounds stated in the ap-
whether the lease were void or voidable. The j peliants' bill, it cannot be given them under
general expressions there used would apply to the general prayer, which Is onlv to be re-
ft guardian in socage, as well as to a testa- sorted to when it comes in aid of the special
o4-8*J mentary *guardian. and there can be
no doubt but that a guardian in socage may
lease ; so that cannot be considered as the
question intended to be decided, but that a
testamentary guardian cannot lease for a
longer period than until the ward comes of
age. In addition to the leasing power, the
executors of Walter Franklin had themselves
a fee in the property, .as four of his residuary
devisees. " When power is given to a person
who derives, under the instrument creating
the power, or otherwise, a present or future
interest in the land, it is then a power relat-
ing to the land." (Per Kent, J., 1 Caines'
Cas. in Er.. 15; Co. Litt., 342 b, n. I.) 2.
There was an equitable interest. The exec-
utors were entitled to a moiety of the pro-
cecils ; they hud an interest to superintend the
land, and to receive and to distribute the rents
and profits, »md this was sufficient. (3 Atk.,
714; Pow. on Dev., 301.) The power was
well executed in equity, if not at law ; for in
equity, the executors would be considered as
trustees, of which character survivorship is
a necessary incident, and they might have
been compelled by the devisees to sell. A
court of equity looks to the object intended,
and enforces its accomplishment.
The sale to Clinton and Norton was bonn
fide and valid. The bill claims relief on ac-
count of fniud in fact, and fraud in law, aris-
ing from inadequacy of price. Fraud in fact
is denied by the answer, and there is no
shadow of proof to repel the denial. Fraud
inu-t be proved, and is never to be presumed.
<1 Mudd. Ch., 2(H5.) There is not a case to be
found which adjudges a contract or sale
fraudulent, because made to relations (Sudg.
Vend.. 39tf, 397 ; 9 Ves., 234) ; and that is not
a circumstance to be laid hold of to prevent a
specific performance. There is no reason to
believe that Mrs. Osgood would have favored
the wives of Clinton and Norton more tluin
bur other children ; and she certainly could
have had no inducement to sell the land for less
than its value. The appellants come too late
with their objection, futile as it is, that the
purchasers were their ca-te#tni* qne trunt. The
question was not moved before the court be-
low, and therefore cannot be argued here. (2
8ch. «fc Lef.. 712. 713.) That point was settled
in this court in the case of Sand* v. Hildrrth,
12 Johns., 493. Besides, there is no such rule
as 1 1 i;it contended for on the part of the ap-
pellants; nor can relief of that account l><-
granted them under the prayer in their hill.
Where one co ce*tui qiie tru*t purchases the
trust estate, he, at the utmost, can only be
deemed to take it subject to the trust ; but
relief sought, and not when it is inconsistent
with it. (2 Atk., 141 ; 3 Ves., 416; 1 Sch. &
Lef., 9, 10.) The relief sought in this case is
for fraud, and to that the appellants must be
restricted. It is true, as has been stated by
the counsel for the appellants, that the as-
signees of a bankrupt are prohibited from be-
coming purchasers (8 Ves.. 350), but the pro-
hibition has not been extended to the creditor
of a bankrupt ; and the reason for excluding
a solicitor is founded on the confidential re-
lation between him and his client. A trustee,
however, may purchase from the ct*1ui qut
trust (9 Ves., 246 ; 12 Ves., 378 ; 2 Bro. Ch.
Cas., 400), and the rule to be equitable must
work both ways.
Since, then, "Mrs. Osgood had full power to
convey, and no actual fraud has been shown,
and since the question of breach of trust does
not concern the respondents, Clinton and Nor-
ton, the remaining point is, whether there
was fraud by intendment and implication of
law ; and this is the only question arising in
the cause which can admit of discussion. The
sale is impeached on three grounds : 1. The
relationship between the parties, which, per
*e, can form no objection, and has already
been refuted ; 2. Inadequacy of price : and,
3. The knowledge which the purchasers, be-
fore the sale, possessed of the. value of the
land. That mere inadequacy of price is in-
sufficient to induce the court to set aside the
sale, is shown by the whole current of au-
thority (1 Madd. Ch., 98 ; Sel. Cas. Ch.. 7.
10 ; Ves., 292 ; 2 Atk., 251 ; 2 Bro. Ch. Cas..
179, n. ; 2 Ves.): it must be nn inadequacy so
gross and shocking as to carry upon the very
face of it conclusive evidence of actual fiaud.
Inadequacy of price is not sufficient to pre-
vent a decree for a specific performance (9 Ves.,
247); still less to set aside an executed con-
tract. There must, in addition, have been some
imposition practiced upon Mrs. Osgood, some
undue advantage taken other nece<sities and
situation, by some person standing in a pecul-
iar relation of confidence and influence (1
Fonb. Eq., bk. 1, ch. 2, sees. 9, 11. 12, and
nnte*; 2 Sch. & Lef., 308-); but nothing of the
kind has been shown. The case of Ragfrt v.
Crugtr, which has been cited by the counsel
for appellants, if applicable at all. is in con-
firmation of these positions. (7 Johns., 595,
605. 628.) It is there admitted that mere in-
adequacy is no ground for setting aside a con-
tract. The proof of the value of the property
lies *upon the appellants, and they
should have put the subject beyond a doubt ;
but there is no evidence that any person
would have given more than was given by
JOHNS. HEP., 14.
N. Y. R.. 5.
62
550
COURT OF ERRORS, STATE OF NEW YORK.
1817
Clinton and Norton. The executors were not
bound to sell in parcels ; the trust was well
executed by selling in a mass. The property,
besides, was incumbered with Mrs. Osgood's
claim of dower, which was never extinguished
by the pretended release ; it was a volun-
tary conveyance, and it was made to persons
who had no previous interest in the laud, and
was, therefore, inoperative. Samuel Franklin,
himself, considered it as unfairly obtained,
and it was in fraud of Osgood's marital rights.
The quitrents were a further incumbrance ;
the title of Walter Franklin to the land was
doubtful, and was denied by the settlers, and
had it been unimpeachable, still Corsa's con-
tracts materially detracted from its value. It
is not true, in point of fact, that Clinton
knew the land to be worth the immense sum
pretended on the other side. But, whatever
knowledge he might have acquired, he was
not bound to disclose ; the parties were deal-
ing at arms' length, and there was no such
confidential relationship between them as
could render it incumbent on the vendees to
communicate their information. (2 Bro. Ch.
Cas., 420.) There would have been nothing
immoral in the suppression ; refined notions
of honor are not the criterion ; the question is,
whether there was fraud; besides, the ade-
quacy or inadequacy of price is not to be re-
ferred to the present value of the land, but to
its value under the then existing circum-
stances. (Sel. Cas. in Ch., 8.) It has been
rendered more beneficial by subsequent events,
but that is an advantage to which .the pur-
chasers are fairly entitled. The worth of
Corsa's contracts must be the rule for estimat-
ing its value ; they were binding, and a
specific performance of them could have been
enforced, although Corsa may have had no
written authority to make the arrangement ;
his bargain was to compensate the settlers for
their improvements ; and a power even to de-
mise land may be given without writing. (9
Ves., 250 ; 1 Sch. & Lef., 31 ; 7 East. 565, n. 2 ;
Madd. Ch., 114.) No residuary legatee was
ever permitted to pursue the subject into the
hands of a purchaser ; he must look to the
executors, who alone are responsible. (14
Ves., 358; 17 Ves., 172; 1 Madd. Ch., 230.)
[The counsel, in the course of their argu-
ments, entered into a long and minute ex-
amination of the testimony, which it is neces-
sary wholly to omit.]
ALezxrx. &. Jones, Jr., and T. A, Emmet, for
the representatives of Osgood and wife. The
allegation of fraud is denied in the answers,
551*] *and is unsupported by any evidence.
Mrs. Osgood acted under the directions of her
husband ; they had children, and Osgood
would never, had the land been worth as
much as represented,- have consented to give
away, to the value of $15,000 or $20,000, his
own or his wife's property. The bill charges
that Mrs. Osgood's eighth was to be reconveyed
to her ; this allegation is likewise destitute of
foundation. It is said by Mr. Justice Van
Ness, in Rogers v. Cruger, 7 Johns., 605, that
"fraud is never to be presumed : it is always
to be made out, either by positive proof, or by
the disclosure of such facts and circumstances
as are irreconcilable with good fath, and the
principles of morality. Many things may be
978
illiberal, reprehensible, and. perhaps, even dis-
honorable, which will not, in legal significa
tion, be deemed fraudulent, so as to avoid a-
contract." Negligence, no more than fraud,
can be presumed, and will be excused by the
same circumstances which rebut the imputa-
tion of fraud. [As to the duty of the exec-
utors the following authorities were cited :
Anst., 219 ; 5 Ves., 443 ; 3 Atk., 444 ; 1 Vern ,
144; 13 Ves.. 410. 5»1 ; 2 Madd. Ch., 114,
121.] As inadequacy of price is the ground
on which the appellants place their greatest
reliance, it is necessary for them to show that
the title was perfect, and what the soil itself
was intrisically worth ; for the goodness of
the title, and the excellence of the soil, must
be the criteria of the value. The witnesses,
in their calculations of the value, evidently
speak in relation to an unimpeachable title ;
they are, therefore, to be disregarded. In
estimating the worth of the land, all the then
existing circumstances must be weighed and
considered. It is fairly, to be intended, too,
that when Clinton, in 1806, said the lands were
worth $100,000, he supposed the title to be
perfect. Osgood and wife took the manage-
ment of the estate twenty seven years after
the death of Walter Franklin, and had every
reason to presume that the previous acting
executors had collected all the title deeds. They
had never been in actual possession, and were,
therefore, bound to deduce a regular title from
the original patentees. If the title deeds might
have been easily found, why had not the for-
mer executors, during the long period of
twenty-seven years, succeeded in procuring
them ? Mrs. Osgood and her husband had not
the means to satisfy the claims for improve-
ments, and pay the costs of suits ; the Statute
of Limitations was soon to become a bar to
their *rights ; it was necessary to sell [*552
to a person whose wealth might enable him to
assert his title, and had they not sold, they
would have been justly chargeable with neg-
ligence and breach of trust. No other per-
sons than those who actually did purchase-
would have become purchasers. Had the land
been put up at auction, who would have bid,
without requiring the title to be exhibited ?
In addition to all these embarrassments, Mrs.
Osgood had a life estate in one third of the
whole property. The release which she exe-
cuted was totally void : the releasees had no-
antecedent interest in the land ; it was made
but seven days before her marriage with Os-
good, and was in fraud of his martial rights.
(2 Ves., Jr., 194.)
Mr. E. Williams, in reply. It is denied that
the power survived to Mrs. Osgood ; the fee
descended to the heirs, subject only to be de-
feated by a sale by the executors. The power
was vested in such of the executors as acted ;
Mrs. Osgood elected not to act, and, of course,
renounced the legacy; and could not after-
wards, when the other executors had collected
money due to and paid the debts of the estate,
for the first. time, assume the office, and come
in, at so late a period, to take the legacy.
Where a power is given to a plurality of per-
sons, they may act as long as a plurality contin-
ues to exist. In this case the testator gave the
power to his executors, or the major part who
might act, and to their heirs or executors ; and
JOHNS. REP., 14.
1817
FRANKLIN KT AI.. v. Osuooo ET AL.
553
unless a major part of bis executors did join
in the execution, the power could not be exe-
cuted. A power coupled with a trust does not
survive. That is a new doctrine, unsupported
by any authority ; but if it does, yet in this
case the power became extinct on the death
of Mrs. Wistar, in 1804. It must be executed
in toto, or not at all ; and after the death of
Mrs. Wistar it could not be executed, as far
as she was concerned. The case of Jackson v.
Jamten, 6 Johns., 73, is a full authority to this
point. Where a power to sell is given, in
order to pay debts or legacies, and no such
debts or legacies exist, the power becomes
naked, although it might have been deemed to
to be coupled with an interest, had they
existed. A sale to a co-ce*tui que trtut is void,
as a consequence of the rule that a trustee
cannot become a purchaser of the trust estate.
[In support of this position the counsel cited
the cases before referred to.] It is no objection
to the relief sought on this ground that it was
not urged in the court below. The same law
rt5IJ*J and the same facts are before*this court
as were before the court below, and whether
the same arguments or reasons were produced
there as are urged here, is immaterial. In
Wilkin v. Wilkin, 1 Johns. Ch., 117, the
Chancellor states this as a rule — " that though
the bill contain, as usual, a prayer for general
relief, the plaintiffs may have other specific re-
lief, provided it be consistent with the case
made by the bill." And in Bebee v.. The Bank
of New York, 1 Johns., 559, Mr. Justice
Thompson says : " According to the course of
chancery proceedings, a party is not confined
to the particular relief asked for in the bill,
but under the general prayer is entitled to
such relief as the circumstances of the case
may require. The reason of inserting the
general prayer is, that if the party mistake the
relief to which he is entitled, the court may
afford him that to which he has a right.""
[The counsel also examined the facts in rela-
tion to the question of fraud.]
PLATT. J. The sale to Clinton and Norton
is attempted to be impeached on two grounds :
First. That as surviving executrix under
the will of Walter Franklin, Mrs. Osgood had
no power to sell the real estate of the testator.
Second. That the sale to Clinton and Nor-
ton was fraudulent, and therefore void.
1. On the first point, it is clear thnt at com-
mon law a naked power given to persons
named as executors to sell lands, would not
survive. It is like a naked power of attorney,
to do any other act, given to several persons
jointly; and if one die, the power expires;
for it is a delegation of power for private pur-
poses, given generally to all the attorneys
named in the power. "The co-operation of all
is necessary to satisfy the express terms of the
grant ; and fewer than all the attorneys do not
represent their principal. (Co. Litt., 1126,
118 a, 181 b; Shep. Touch., pi. 9, page 429;
Pow. on Dev., 292. 810.)
It is also well settled, that if the power to
sell lands be coupled with an interest in the
executors or agents, so appointed to execute
that trust, then, on the death of one or more
of the executors, the survivor or survivors
may lawfully execute the power. (Bergen v.
JOHNS. REP., 14.
Bennett. 1 Cai. Cas. in Er., 15 ; 8 Salk 277-
8 Atk., 714; 2 P. Wms., 102.)
There is also another class of cases which
clearly show that where the terms made use of
in creating the power detached *from [*554
the other parts of the will confer merely a
naked power to sell ; and yet, the other pro-
visions of the will evince a design in the testa-
tor that at all events the lands are to be sold, in
order to satisfy the whole intent of the will,
then, also, the power survives. In this latter
case, it is not a naked power, in the sense of
Lord Coke's general rule, but is coupled with
, other trusts and duties which require the exe-
cution of the power to sell. (Bairnc's case.
Sir Wm. Jones., 252; Cro. Car., 282 ; Pow.
on Dev., 297, 807; Hard., 419; Cro. Ch.,
382; Cro. Eliz., 26 ; Sugd on Pow.. 141.)
The case of The Jjuaee of Zebach v. i+miih,
«fcc., 8 Binn., 69, is very analogous to the
case now before us. In that case Zebach's will
contained the following clause : " The execu-
tors, namely: George Wolf, Leonard Miller
and Godfrey Rohrer, shall be empowered to
sell my lands. When my debts are paid, if
anything should remain, my wife shall keep
two cows, &c." Miller and Rohrer, two of
the executors, renounced, and Wolfe, the sole
surviving executor, conveyed, under that
power, the lands of the testator to his own
son-in-law and another. It was attempted to
defeat this sale, first, on the ground that it
was a naked power, and did not survive ; and
second, because the sale was fraudulent ;
being made to a son-in-law for an inadequate
price, in old continental money, &c. The
court decided that it was a power coupled
with a trust, to be executed for the benefit of
others ; that although the power was given in
the plural number, and a single executor did
not satisfy the literal expression of the will,
yet the power survived, and the conveyance
was deemed valid.
From a careful examination of the authori-
ties on these points, I am satisfied this case
does not fall within the rule which governs
naked powers ; on the contrary, this is a power
coupled with interest, and connected with the
execution of other trusts, which qualify and
explain it.
In this case, the persons appointed to sell
were devisees of one half of the estate, and
therefore had a certain and direct interest in
the subject of power ; and they had, also, as
executors, other trusts committed to them, the
execution of which was connected with and
dependent upon the execution of this power.
If, then, the w&rds used by the testator, in
conferring this power, do not expressly, or by
necessary implication, forbid the construction
of survivorship in Mrs. Osgood, *she [*55<">
had a right, on general principles, to sell the
residuary lands.
If the testator had used merely these words:
" I give to my executors that may act, and to
a major part of them, their heirs or executors,
full power to sell my lands." without any
qualifying words or dependent provisions in
the will, I should have no doubt that the
authority ought to be construed strictly ; and
in such a case, a single surviving executor
could not sell, bi-cause, literally, a single ex-
ecutor would not satisfy the words "my
979
555
COUKT OF ERRORS, STATE OF NEW YORK.
1817
executors that may act, and the major part of
them."
Looking at the whole will, and construing
this section, in connection with others, and in
reference to all the provisions of that instru-
ment, my mind is irresistibly led to the con-
clusion that it best accords with the intention
of the testator, that the power in this case
should survive to the only remaining executor.
This construction is founded on the general
structure of the will, and the duties which it
enjoins on the executors. One eighth of the
proceeds or avails of the residuary estate is
given to Sarah Corsa, but under such special
limitations, that if we admit the power to have
expired with the three executors, who are
dead, then the trust for her benefit can never
be executed, unless a new trustee be substi-
tuted by the Court of Chancery ; and I am
persuaded that the testator did not mean that
a stranger should be substituted in the place
of one of the executors of his own choice. By
a former clause of the will, the executors were
directed " to keep the estate on interest and on
rents, as much as possible ; " and Mrs. Corsa
was in no event to have any portion of the
land as devisee. She (and her daughter after
her death) is entitled, under the will, to the in-
terest of one eighth 'of the residuary estate,
and of course, the testator's bounty, as to her
and her daughter, would be defeated, unless
the lands were either sold or leased. If the
executors, virtute officii, were to lease (and that
seems unquestionable), it affords a strong pre-
sumption that the power to sell, and the power
to lease, were intended to be vested in the same
hands, because a different construction would
introduce great disorder and confusion, arising
from the exercises of conflicting powers by
different persons over the same subject.
If it be said that the execution of the power
to sell, on the death of a majority of the acting
55(5*] executors, devolved upon their *heirs
or executors, that construction is liable to sev-
eral objections, and might produce conse-
quences utterly inconsistent with the probable
intention of the testator. First. It is probable
that a leading motive in selecting persons to
execute that trust, was that they not only en-
joyed the highest confidence of the testator,
but that they hud an interest in the estate to be
sold, in common with the other devisees, which
afforded a security for caution and circum
spection in discharging that duty. The heirs
and executors of the persons first empowered
to sell could not be known to the first testator,
and they might be persons who had no interest
in the estate to be sold. Samuel and John
Franklin might have died insolvent, or they
might have devised their estates, as Walter
Franklin did, in part, to persons who were not
" their heirs."
Second. It was manifestly the intention of
the testator, and highly fit and convenient in
itself, that there should be but one fund for
distributing the avails of the whole estate,
real and personal, which could not be, unless
the office of executor, and that of trustee to
sell, were united in the same person.
That Mrs. Osgood has rightfully assumed
the office of executrix, after the death of
Samuel Franklin, cannot be disputed.
In seeking for the intention of the testator,
980
on the point of survivorship, a strong infer-
ence arises, from an express provision in the
will, that if his brothers, Thomas, John and
Samuel, did not waive their claim of being
discharged from debts, which they might owe
iiis estate, they should not be his executors;
plainly showing that the testator expressly
contemplated an event in which his widow
would be sole executrix for all the purposes of
the will. She was, in fact, the sole executrix,
absolutely appointed. The brothers were ap-
pointed conditionally only.
Suppose that contingency, in regard to the
brothers, had happened ; or that, from any
cause, they had neither of them ever become
an acting executor of this will, will it be con-
tended that in that event the power to sell the
lands would have been extinct ? Were Sarah
Corsa and her daughter to lose the bounty of
the testator, which could accrue only from
that fund ? If the widow alone was not to
sell, who could execute that power ? For in
the case I have stated, there could not be " ex-
ecutors or *heirs of a major part of [*557
the executors that may act," according to the
terms of this will.
I know it may be said that a trust shall not fail
for the want of a trustee ; and that the Chan-
cellor could interpose and appoint a trustee for
that purpose. But can it be believed that the
testator intended that his widow, in such
event, should be superseded in the execution
of the most important duty enjoined by the
will, and that a stranger should be substituted
in her place ?
In limiting the power to the executors that
may act, &c., their heirs or executors, the
words "their heirs or executors" are to be
understood distributively, as in all other anal-
ogous cases ; that is, the heirs and executors
of the longest liver. " Their heirs and execu-
tors," do not mean all the heirs and executors
of all the acting executors of this will ; but the
heirs and executors of the longest liver. So
that if Mrs. Osgood had died without exercis-
ing this power, it would have devolved upon
her heirs or executors. Those words, " their
executors," &c., have received a fixed and de-
termined meaning ; and are to be construed,
as in the case of a bond to several persons, and
"their executors, administrators and assigns;"
meaning, undoubtedly, the executors, ad-
ministrators and assigns of the sole surviving
obligee.
The power to sell is given, in this case, to
the executors " that may act," &c. It is given
to them as executors, and not in their indi-
vidual names ; and there can be no ground to
contend that the persons named in the will as
executors, but not acting as such, could exe-
cute the power to sell.
There may, no doubt, be cases where the
persons appointed by a will, to sell lands, and
also named as executors of the same will, may
renounce the executorship, and still legally
execute the power to sell (Pow. on Dev. , £94);
but not so in this case ; for the will expressly
restricts the power to the acting executors ;
thereby evincing the intent of the testator, that
the duty of selling the land, and distributing
that fund, or the interest of it, and the general
duty of administering the personal estate,
should be performed by the same persons.
JOHNS. REP., 14.
1817
FRANKLIN ET AL. v. OBOOOD ET AL.
557
The injunctions in the will to keep the estate
on lease, and to sell real estate, have the same
object in view, to wit : that the testator's
bounty might be dispensed by his acting ex-
558*] editors ; and the 'harmonious execu-
tion of the whole will requires that those pow-
ers should be vested in the same agents.
It is important to consider that the portion
of the estate given to Mrs. Corsa was a mere
legacy of the interest of one eighth of the re-
siduary estate, personal as well as real. If
this power had never been executed, Mrs.
Corsa would have utterly lost the testator's
bounty. She could in no event have the land
itself, as devisee; and I think there cannot be
a doubt that, at her suit, the Court of Chan-
cery would have compelled the execution of
ibis power. After the death of Mrs. Corsa,
the will directs the executors to pay to her
daughter the one eighth of the principal and
interest of the residuary estate. It was not
optional with the executors to sell or not ; and
all the provisions of the will manifest an in-
tention that, at all events, the lands should be
sold ; for otherwise the will could not be exe-
cuted. The amount of the personal estate, as
well as that of the real estate, was uncertain
and contingent ; and if the avails of these
funds are to be placed in different hands, for
distinct and separate distribution, there will
be a clashing interference of righto and duties,
that mars the plain and simple meaning of the
testator.
It may be said that if the execution of the
power is not confined to a "major part" of the
acting executors, then those important words
"major patt" are rejected as senseless; and
that the sound rule of construction requires,
if possible, that no expressive words shall be
rejected as surplusage.
To this rule I subscribe ; and I impute to
those words " major part," .of the acting
executors, a very expressive meaning, con-
sistent with my construction of the power.
The testator clearly contemplated two dis-
tinct cases : the one was, that all, or several of
the executors appointed, might act ; and in
that event, he intended to authorize a "major
part" of them to sell lands ; and if he had not,
in that case, expressly authorized a majority to
execute the power, there might exist a serious
doubt whether the concurrence of all would
not have been necessary. In removing that
doubt, the words "major part" have an im-
portant meaning.
But the testator also clearly contemplated an-
other case, to wit: that the widow alone might
execute the will ; and then the words "major
part " have no application.
oBO*] *Mv opinion, therefore, is, that upon
the death of Samuel Franklin, Mrs Osgood
rightfully assumed the office of executrix :
and that the power to sell the real estate legal-
ly devolved upon her, in connection with all
toe other duties enjoined by the will.
2. As to the second point in this cause. I
have scrutinized the evidence with careful at-
tention ; and my mind has arrived at the satis-
factory conclusion that there is no evidence
of either actual or constructive fraud, to im-
peach the conveyance from Mr. and Mrs. Os-
good to Clinton and Norton.
There is no doubt that inadequacy of price,
JOHNS. Hi-:r , 14.
per se, is no ground to set aside a conveyance ;
unless it be so gross and shocking as to be evi-
dence of fraud.
In judging of the inadequacy of price, in
this case, we must look at the condition and
circumstances of the estate at the time of the
sale.
Through the neglect and mismanagement of
the former executors, the Cherry Valley lands,
which form the fairest portion of the estate,
were chiefly possessed by persons who either
professed to hold adversely, or who claimed
the benefit of a very onerous and imprudent
agreement made with the settlers by Colonel
Corsa as agent for John and Samuel Franklin
— an agreement which, if rigidly enforced by
the tenants, would have essentially reduced
the value of the estate, for the purposes re-
quired by the will ; for instead of leasing or
selling the lands, the former executors, by
that unfortunate agreement, put it in the
power of the occupants to set their own price
for the purchase, or to demand prompt pay-
ment for their improvements; and thus Samuel
Franklin, at his death, surrendered the estate
to the surviving executrix, without any per-
sonal fund remaining (except $347), to redeem
those lands by paying for improvements.
But another and more insuperable obstacle
to an advantageous sale was, that the evidence
of title to those lands was defective. The
only reason or apology why the former exec-
utors did not sell or lease these lands, was, be-
cause they could not find an essential deed, on
which the title of Walter Franklin depended.
Under these circumstances, it became the
duty of the surviving executrix to complete
the settlement of the estate ; and for that pur-
pose, it was indispensably necessary to sell the
lands, *for the will, in regard to Mrs. f*5OO
Corsa, could not be executed without such sale.
What mode of sale, then, was most discreet,
and best calculated to produce the largest
price ? It has not been contended that the
executrix was bound to sell in parcels ; but it
has been insisted that instead of selling to her
sons-in-law at private sale, she ought to have
offered it to strangers, or sold it at auction.
Under the peculiar embarrassments of the
title, I incline to the belief that a sale could
not have been made to any other persons or in
any other mode, for a larger price than was
actually given in this case.
Suppose the lands had been offered for sale
to a stranger, or at auction ; as trustee, Mrs.
Osgood could not be expected to warrant the
title : but she undoubtedly would have been
required to exhibit the evidence of title ; and
if, on such inquiry, she had disclosed the
whole truth in regard to the title deeds, and
the agreement of Colonel Corsa, and the claims
of the tenants, what person could have been
found, at that day, to give $25,000 for such a
title ?
It was an adventurous and hazardous specu-
lation on the part of Clinton and Norton, and
it is only by diligent and active exertions, by
great prudence and address in effecting com-
promises with the tenants, and by expending
large sums of money in litigation, that it has
proved to them a profitable bargain.
But to uphold the sale, and to excuse Mr.
and Mrs. Osgood for the manner of executing
9SI
560
COURT OP ERRORS, STATE OP NEW YORK.
1811!
this trust, it is not necessary to show that the
trustee acted with all the prudence and sagac-
ity that might have been used. It is sufficient
for the buyers that the purchase was bonafide,
and for a valuable consideration on their part;
and it is sufficient to justify Mr. and Mrs. Os
good that the sale was without fraud, or supine
negligence, on their part.
Many other considerations arise upon the
evidence, which repel the imputation of fraud
in this transtction ; but I cannot deem it neces-
sary to dwell longer upon the discussion.
Whether there be any rule of law or equity,
which forbids a co-cestui que trust from pur-
chasing, in such a case, for his own exclusive
benefit, is a question which does not arise upon
the pleadings in this cause. The bill is not
adapted for relief on that ground. It is pre-
sumed, therefore, according to the opinion of
the Chancellor, that point was not raised for
561*] his decision *in the court below ; and
if so, it is well settled that this court cannot
regard it on appeal.
But as we permitted an argument, sub modo,
on that point, I take occasion to observe that I
have not been able to perceive any foundation
in reason or authority for that objection.
My opinion, therefore, is, that the decree be
affirmed.
VAN NESS and YATES, JJ., concurred.
SPENCER, J., being related to one of the
defendants, did not hear the cause or give any
opinion.
THOMPSON, Ch. J. The conclusion to which
I have arrived, on a careful examination of
this case, renders it unnecessary for me to no-
tice all the questions that were raised and dis-
cussed on the argument. I shall confine my-
self to that which relates to the authority of
Mary Osgood alone, as sole surviving execu-
trix of Walter Franklin deceased, to sell and
convey the lands in question to Clinton and
Norton. The decision of this point depends
upon the construction to be given to that
clause in the will of Walter Franklin under
which the authority to sell is claimed. •
The testator, after sundry specific devises
and bequests, gives the whole residue of his
estate to his wife, his two daughters, three
brothers and two sisters, each one eighth ; and
appoints his wife and three brothers execu-
tors. Then comes the following clause : "I
give to my executors that may act, and to the
major part of them, their heirs or executors,
full power to sell any or all my real estate not
already devised," &c. The plain and obvious
meaning of this power, as well as the gram-
matical construction to be given to the words,
is. that the authority to sell is given, in the
first place, to all the acting executors, and for
the purpose of preventing any one of them
from defeating a sale, he declares that a major
part of them may sell. Still further, to up-
hold the power and guard the sale, and pre-
vent an improvident disposition of his prop-
erty, he provides that in case of the death of
any of his acting executors, their heirs or ex-
ecutors shall be substituted as trustees in their
places. No other interpretation, in my judg-
ment, can be given to this power, without re-
982
jecting some words altogether, and rendering
others useless and without meaning. If so,
Mrs. Osgood alone had no power to sell. On
the death of the testator, Walter Franklin, in
*the year 1780, two only of his execu- [*562
tors, Samuel and John Franklin, qualified, and
took upon themselves the execution of the
will. After a lapse of twenty-seven years,
and after the death of the two executors whQ
had acted, Mrs. Osgood qualified as executrix,
and soon after executed the deed to Clinton
and Norton, who had married her two daugh-
ters, being two of the eight residuary devisees
named in the will.
It is an incontrovertible rule, running
through all the cases, on the construction of
wills, that the intention of the testator is much
regarded, and ought to have a controlling in-
fluence in construing these powers ; and that
a greater or less latitude is given to them, for
the purpose of carrying into execution such
intention. This rule is noticed and recognized
by the Chancellor, in his opinion in this case.
We find in the books great subtility in many
of the distinctions that have been attempted to
be made, between what is called a naked pow-
er or authority and a power coupled with an
interest or trust. It is admitted, as a general
rtole, that with respect to the former, it must
be executed by all to whom it is delegated.
But where the authority is connected with an
interest or trust, and is delegated to seveiul, it
does not become extinct by the death of one
or more as long as there is any one remaining
to execute the power. It then devolves upon
the survivor unless the testator, or person from
whom the power emanates, has provided for
the event of the death of one or more of the
executors or trustees, and has appointed a sub-
stitute in their place ; in such case the substi-
tute becomes vested with all the power and
authority of the first trustee ; and the case be-
fore us is one of this description. On the
death of Samuel and John Franklin, their
heirs or executors are, by the express terms of
the will, to be substituted in their place, and
intrusted with the execution of this power,
and ought to have united with Mrs. Osgood,
in order to pass a valid title.
According to my view, therefore, of the au-
thority to sell, given by this will, it will not
be necessary for me to enter into an examina-
tion of the nice and refined distinctions be-
tween naked powers and powers coupled with
an interest. For, beyond all question, it was
a matter resting altogether with the testator to
limit and guard this power, in such manner as
he thought proper ; and if not only the neces-
sary construction of the words which he has
used, but his plain and obvious meaning,
*as collected from the whole will, was, [*5C>3
that this power should not be exercised by
one executor alone, we cannot sanction and
confirm the deed from Mrs. Osgood. The
power here given is, in the first place, to such
of his executors as may act, and to the major
part of them. Three out of four of the execu-
tors have acted. But the deed was not given
by all, or by a major part of those who did
act. The power, therefore, in this respect,
has not been pursued. The testator, with un-
common caution and circumspection (and
doubtless, if we look at the provision in the
JOHNS. REP., 14
1817
FRANKLIN ET AL. v. OSGOOD KT AL.
will, and the disposition of his property, for
the very purpose of preventing an injudicious
sali' of his lands), provided for the event of
the death of one or more of his acting execu-
tors, and substituted in their place, their heirs
or executors, the very persons to whom the es-
tate would doubtless pass ; and no one can ques-
tion the right or legal power of the testator so to
•do. The cooks furnish us with a variety of
cases of this kind An example may be seen
in Moore, 61, where the' testator directed that
his lands should be sold by his executors, or
the executors of his executors, and one of his
executors dying intestate, the question was,
whether the executors of the other executor
•could sell ; and it was held that they could
not, because the authority was joint to the ex-
ecutor of both executors, and therefore, if one
failed, the other could not execute it. (See,
also, other cases collected by Pow. on Dev. ,
29«.)
. In the cases, generally, in the books where
this question is examined, we find the power
given to the executors, without any provision
for the event of their death. The reason why
the power is held to survive, is to prevent the
failure of the trust for the want of a trustee.
But no such failure could occur here, because
the testator has expressly designated the per-
sons who may execute the trust, on the death
of those first named. Had he barely given to
his executors a power to sell, and accompanied
such power with a trust, the law might cast
that power upon the survivor, to prevent his
becoming extinct, and the trust failing. But
the testator had a right to control this legal ef-
fect, by an express appointment, by himself,
of a trustee ; and this he has done, by substi-
tuting the heirs or executors of the first trust-
ees. The objection that this would produce
incongruity and confusion, is no satisfactory
answer. If the meaning of the testator was
5O4*J left doubtful, we might have *re-
course to considerations of inconvenience, if
any existed, for the purpose of ascertaining
the probable intention. But where words are
so plain and explicit as not to admit of doubt,
we are not at liberty to indulge in objections,
on the ground of inconvenience. Whatever
weight such objections might be entitled to,
where the executors were not beneficially in-
terested in the land over which the power was
to be exercised, they do not exist here. The
executors appointed in the will were four of
the residuary devisees, and entitled to their
share, either of the land or the avails thereof,
upon the sale. It was not a trust exclusively
for the benefit of others, nor could the execu-
tors have been compelled to execute it ; they
are not ordered to sell, but simply authorized
so to do ; it was, therefore, left in their dis-
cretion whether to sell or not. The other re-
siduary devisees might, probably, have called
upon them in a court of chancery, either to
execute or renounce the trust ; so that they
might take the estate devised to them, stripped
of this power of sale suspended over it.
Under such circumstances, there was a pe-
culiar fitness in the testator's giving the di-
rection to this power which he has done. As
the four executors named in the will were en-
titled to one half of the property on which the
power could operate, they were very much in-
JOIINS. UKP.. 14.
terested in the due execution of it, if it was at
all to be executed. It was, therefore, proper
that their judgment, or that of the major part
of them, should be exercised as to the sale, and
if they should die without executing the pow-
er, or disposing of the property, it was very
reasonable that the authority should accom-
pany the estate when it went into the hands
of their representatives. As to one half of
the land, it was a mere question of judgment
with the executors, whether or not to sell
their own property. There were no debts or
legacies to be paid, and no necessity for selling.
The testator, therefore, left it in their discre-
tion whether to sell or not, as they should
judge most for the benefit of the estate ; and
the two acting executors not having, for
twenty-seven years, thought proper to sell, the
inference is irresistible that in their judgment
no sale ought to be made. To ratify and con-
firm a sale made by one would not only be di-
rectly repugnant to the words of the will, but
would be depriving others, who were interest-
ed in the lands, of the guards and checks
wisely provided by the testator against an im-
provident sale. If the testator had intended
*this power should devolve upon, and [*oO<">
be exercised by any one executor, his lan-
guage would have been, I give to my execu-
tors, who may act, and the survivor of them,
his heirs or executors ; instead of which, the
power is given to the major part of the execu-
tors who may act, and to their heirs or execu-
tors. This is a limitation of the power to a
majority of the acting executors, and is equiv
alent to saying : it shall not be exercised by a
less number. The question is not, therefore,
on whom does the law cast the power,
where the testator has not expressly provided
The case did not occur under this power
when there was no other trustee to execute il
but Mrs. Osgood ; for there were both heirs
and executors of the deceased executors, who
could have joined in the deed, at the time
Mrs. Osgood gave it.
Had Samuel and John Franklin been living,
no one will pretend that the deed of Mrs. Os-
good would have been valid ; and why should
it be when those whom the testator has substi-
tuted in their place are living ? If it was not
intended bv the testator that, in case of the
death of all or any of his acting executors,
their heirs or executors should be the substi-
tutes charged with the trust, why were they
all named ? No possible reason can be as-
signed for it.
It ought to be kept in mind that the execu-
tors are not ordered or required to sell, but are
barely authorized so to do. The legal estate,
whether vested in the devisees or in the heirs
at law, was subject to be devested by a sale, if,
in the judgment of the major part of the act-
ing executors, it should be thought most for
the general benefit of the estate ; nor can it
alter the construction of this power, if the
legal estate should be deemed to be vested in
the executors. So far as the executors were
charged with any trust in the management and
disposition of the estate, it was the same
whether the land remained unsold or was con-
verted into money. It was to be applied to the
benefit of the same eight residuary devisees of
whom the executors themselves were four. If,
983
565
COURT OF ERRORS, STATE OF NEW YORK.
1817
then, the intention of the testator, collected
either from the words he has used or from the
general scope and object of the will, is to
govern in the construction of the power, it
appears to me very obvious that such inten-
tion has not been pursued. When he has
limited the exercise of this power to a major
part of his acting executors, and in case of
5OO*] their death, substituted in their *place
their heirs or executors, it cannot be that such
power is duly executed by a single surviving
executor. The testator has expressly guarded
against such an execution, by providing a sub-
stitute, in case of the death of any of the act-
ing executors. And until there be a failure of
the trustees expressly provided by the testator,
there is no ground or principle on which the
law will step in and arrest the power from the
hand to which it has been committed by the
testator. It was very, much pressed on the
argument that it is fairly to be presumed, from
the provisions in the will, that the testator, in
the appointment of his executors, contem-
plated the event of none of them qualifying,
except his widow ; but I can discover nothing
to justify such a conclusion. Where executors
have no interest or benefit growing out of the
will, and are barely acting for others, it is not
unreasonable to suppose they will reluctantly
take upon themselves the executorship. But,
when they are so deeply interested as these
executors were, it is unreasonable to conclude
that they would not qualify. They would
very naturally wish to take the care and man-
agement of their own property, and prevent
its being' sacrificed. But, independent of this,
the supposition that the testator contemplated,
on any event whatever, that his widow was
to execute this power solely, is repugnant to
the very terms of the authority. The power
is given to the major part of his acting execu-
tors ; and these words "major part" can
have no application, whatever, to a single ex-
ecutor, and are, indeed, entirely senseless. It
is an invariable rule, in the interpretation of
writings, that, if possible, they must be so
construed as to give effect and meaning to
every part ; and no words are to be rejected
unless they are repugnant to or inconsistent
with other parts of the same instrument. Upon
this rule of construction, how can we entirely
reject the words "their heirs or executors ?"
The testator has thought proper to direct, that
if any of his acting executors should die, their
heirs or executors (as it respects the execution
of the power) should be substituted in their
place ; and in this there is nothing repugnant
to any part of the will. It is a plain, simple
and intelligible provision, and, in my judg-
ment, a wise one, if we look at the disposition
which the testator has made of his property,
and allow him the right of making his own
will. He has seen fit to give five eighths of the
property now in question to his brothers and
sisters. Whether this was a wise or discreet
5O7*] measure or not, *I do not feel myself
at liberty to inquire. It is enough for me that
he had a right to do so, and has so done. This
disposition ought not to be defeated by giving
to his widow, solely, a power which he never
intended she should have, of thwarting his
will, and throwing the property into the hands
of her daughters. This power had lain dor-
984
mant for twenty-seven years. Neither Mrs.
Corsa nor Mrs. Wistar, nor any other of the
ce»tuia que tmst, had asked for an execution of
it. It was voluntarily assumed by Mrs. Os-
good, after a lapse of time sufficient, and more
than sufficient, to presume an extinguishment
of the power, if the centuis que trust had been
in possession of the land, and we are war-
ranted in saying, it was assumed for the ex-
press purpose of executing this deed, as we
cannot reasonably suppose that the business
appertaining to the settlement of the estate
remained open for such a length of time ; but
this does not rest on presumption. Mr. and
Mrs. Osgood, in their bill, state that all the
debts of the testator have been paid, and all
legacies and bequests of his will discharged,
excepting the residue of his estate, as disposed
of in the 14th clause of the will, being the
estate now in question ; and this supposition
is much strengthened by the fact that the sale
was made very shortly after Mrs. Osgood took
upon herself to act as executrix, and with lit-
tle or no examination into the situation or ex-
tent of the property she undertook to sell. If
it was necessary or advisable, for the benefit
of the estate, that these lands should be sold,
Mrs. Osgood, together with the heirs or execu-
tors of Samuel and John Franklin, or at least
of one of them, were the persons on whom the
power to sell devolved at the time the sale was
made. Those interested in these lands had
a right to have the judgment and advice of
those persons upon the expediency of a sale
and the price to be demanded, so as to guard
against their being converted, by Mrs. Osgood,
to the benefit of her children, to the injury
and prejudice of the other residuary dev-
isees.
I have not deemed it necessary to go into an
examination of the question, whether this is a
power coupled with an interest or trust, and
would have survived to Mrs. Osgood, if the
testator had not himself expressly provided
for the event of the death of one or more of
his acting executors ; because I am persuaded
it, is perfectly immaterial whether it be a power
coupled with an interest, trust, or a mere naked
power. If there are *other trustees [*5O8
appointed by the testator, who are still living
and capable of uniting in the execution of the
trust, all must join, whether it be a power of
the one description or of the other. That
there are such other trustees living, cannot be
denied. Nor have 1 found it necessary, par-
ticularly, to touch the question relating to the
consideration paid by Clinton and Norton. It
must, however, strike every one who has ex-
amined the case, that, to say the least of it,
they have made an enormous profit upon the
purchase, and that such profit is taken out of
the pockets of their co-cestuis que ti'ust. Under
such circumstances, every consideration of
justice and equity ought to induce us to pause,
before we sanction the sale, unless imperiously
called upon so to do, by the most stubborn
rules of law. But that no such rules of law
obstruct our course, or impede the path to
justice, I have the most perfect persuasion and
firm conviction. Indeed, I cannot but think
that the upholding and maintaining this sale,
if it can at all be done, must be by applying
technical rules of law, which have in truth no
JOHNS. REP., 14.
1817
FRANKLIN KT AL. v. OSGOOD ET AL.
368
application to the case, and thereby defeating
the clear and obvious intention of the testator.
The broad and enlarged principles which
govern courts of equity on the subject of
trusts, are amply sufficient to enable us to do
justice to all parties, without confirming this
sale, in its full extent. Mrs. Osgood was the
owner, in her own right, of one eighth of the
residuary estate sold by her ; and so far the
deed to Clinton and Norton may be considered
valid. We have before us all the parties in
interest. Mr. and Mrs. Osgood, in their
answer, admit that they had received the $25.-
000 from Clinton and Norton, and the object of
their bill was to obtain a decree of the Court
of Chancery to protect them in the distribu-
tion of the trust fund among those entitled to
it, under the will of Walter Franklin. Seven
eighths of this fund may be decreed to be
repaid to Clinton and Norton ; and for the
purpose of protecting the purchasers under
Clinton and Norton, all sales made by them
may be confirmed, and conveyances directed
to be given by proper parties ; and Clinton
and Norton be decreed to account to their co-
cestuis qua trust for their distributive shares of
the proceeds of such sales.
I am, accordingly, of opinion that the de-
cree of the Court of Chancery, so far as it
confirms the sale to Clinton and Norton,
ought to be reversed, and a decree entered
conformably to the principles I have men-
tioned.
569*] *CANTINE, CROSBY, DAYTON, EL-
UENDORP, KKYES and LIVINGSTON, Senators,
were of the same opinion.
JOHNS. REP., 14.
BATES, COCHRAN, HASCALL, HART, PKEN-
DEROA8T, ROSS, STRANAHAN. STEWART. TlB-
BITS and VAN VECHTEN, Senators, concurred
in the optnion delivered by Mr. Justice PLATT.
A majority of the court (April 8th ; for
affirming, 18 ; for reversing, 7) being of
opinion that the decree of the Court of Chan-
cery ought to be affirmed, i*. was, therefore,
ordered adjudged and decreed that the decree
of the Court of Chancery, appealed from in
this cause, be affirmed, and that the appellants
pay to the respondents their costs to be taxed,
and that the record be remitted, &c.
Decree of affirmance.
Commented on— 3 Hill. 365.
Cited in U Johns., 309; 15 Johns., 348; 7 Cow.,
196; 8 Cow., 564 ; 21 Wend.. 438 ; 7 Hill, 342; 4 D«-iii<>:
408; 1 Paige, 74; 57 N. Y.. 158; 7 Hun, 513; 17 Hun.
286 ; 0 Barb., 16 ; 8 Barb., 72 ; 44 Mo.. 2«0 : 45 \Vis..
145: 4 Wheat., 699; 10 Peters. 564; 9 Peters, 535: 5
How. (U. 8.). 269, 272, 274, 275.
The COURT made the following
GENERAL RULE.
It is ordered, that, hereafter, it shall be the
duty of the appellant or plaintiff in error in
this court to deliver a copy of the opinion of
the Chancellor, or Supreme Court, to each
member, as an appendix to his case, previous
to the argument thereof, except where such
opinion has been previously published by the
reporter.
[END OF THE CASES IN ERROR, 1817.]
REPORTS OF CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE,
AND IN THE
COURT FOR THE TRIAL OF IMPEACHMENTS
AND
THE CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK.
BY
CTO:H::N soitr,
COUNSELOR AT LAW.
VOL. XV.
JUDGES
OP THE
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW YORK
DURING THE TIME OP
THE FIFTEENTH VOLUME OF THESE REPORTS.
SMITH THOMPSON, Esq., Chief Justice.
AMBROSE SPENCER, Esq., Associate Justice.
WILLIAM W. VAN NESS, Esq., Associate Justice.
JOSEPH C. YATES, Esq., Associate Justice.
JONAS PL ATT, Esq., Associate Justice.
MARTIN VAN BUREN, Esq., Attorney- General.
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OK TUB
STATE OF NEW YORK,
IN
JANUARY TERM, 1818, IN THB FORTY-SECOND YEAR OF OCR INDEPENDENCE.
8. AND J. RATHBON, v. BUDLONQ.
Principal and Agent — Where PrincijKtl in Di»-
closed. Agent it not Responsible.
Anajrentwho makes a contract in behalf of his
principal, whose name he discloses, at the time, to
the person with whom he contracts, is not person-
al!; liable.
There is no difference, in this respect, between an
agent for government and for an individual.
Citation— 2 Esp., 607.
THIS was an action of a**ttmprit, on a prom-
issory note, tried before the Chief Jut-
tice at the last Albany Circuit.
The note was in the following words :
"Ninety days after date, I promise to pay S.
A J. L. Rathbon, or order, $302.92, value re
ceived, for the Susquehannah Cotton and
Woolen Manufacturing Company. Albany,
June 24th. 1815. Samuel Budlong, agent."
The defendant gave in evidence a bill of
parcels, headed as follows : "The Susque-
hannah Cotton and Woolen Manufacturing
Company, bought of 8. & J. L. Rathbon, '
&c., at the bottom of which was the following
receipt : "Albany, June 24th, 1815. Received
payment, by a note payable in ninety days
which, when paid, will be in full of the above. "
It was admitted that the purchase of the goods
of the plaintiff, and giving the note, were sim-
ultaneous acts. The defendant produced in
evidence a power of attorney from the Sus-
quehannah Cotton and Woolen Manufactur-
2*1 ing 'Company, under their corporate
seal, authorizing him to purchase and sell
goods, &c., make bargains, Arc. , draw bills and
promissory notes, for them and in their names,
and generally to manage the business of the
Company, as the defendant should think fit,
Ac., subject to the control and direction of the
trustees of the Companv. «fcc.
A verdict was found* for the plaintiffs for
$347.07. subject to the opinion of the court on
a case, as above stated.
Norm.— A* tn the uenonal lialittitu <>f government
aatnl*, see Gill v. Brown, 12 Johns., 386, mitt, and
other notes there cited.
JOHNS. REP., 15.
Mr. Foot, for the plaintiffs, contended that
the defendant had made the contract person
ully, and not in the name of his principals.
The note was, "I promise to pay,' Ac. An
agent or attorney cannot draw or sign bills or
notes in the name of another, without a special
authority for that purpose. Here the defend-
ant had a special power ; but he did not sign
the names of his principals. (9 Co., 76 ; 1
Str., 705; Ld. Raym., 1418: 8 T. R.. 176; 2
East, 142 ; Appleton v. Bink», 5 East, 148 ;
Buffum v Chadwick, 8 Mass., 103.) There is
no distinction, in this respect, between con-
tracts under seal and contracts not under
seal.
Mr. Henry, contra, was stopped by the
court.
SPENCER, J., delivered the opinion of the
court:
It is perfectly manifest that the note, on
which the suit is brought, was given by the
defendant, as agent for the Susquchanna
Cotton and Woolen Manufacturing Company,
and that the goods for which the note was
given were sold on the credit of that Company.
To charge the defendant with the payment of
the note, would violate every principle of jus-
tice and equity ; nor is the law so unjust.
The general principle is. that an agent is not
liable to be sued upon contracts made by him
on behalf of his principal, if the name of his
principal is disclosed and made known to the
person contracted with, at the time of enter-
ing into the contract. This doctrine is fully
supported by the case of Otren v. Qooch, 2 Esp.,
567. In fact, there is no difference between
the agent of an individual and of the govern-
ment, *as to their liabilities. The ques- [*3
tion, in all cases, is, to whom was the credit
given.
There are cases of covenants where persons
have made themselves personally liable, be-
cause they have covenanted and bound them-
selves under seal, in which cases the princi-
pals were either not disclosed or were not
ixmnd, or the agent meant to bind himself per-
sonally. In the present case, the credit was
not only given to the Company, but they were
989
SUPREME COURT, STATE OF NEW YORK.
1818
bound by the note of their agent ; and there is
not the least pretense to hold the agent re-
sponsible.
Judgment for the defendant.
Cited in— 1 Cow., 535 : 7 Cow., 455 : 8 Cow., 62 ; 10
Wend., 276; 19 Wend., 231 ; 27 N. Y., 559 ; 1 Lans., 166 ; 9
Barb., 529; 22 Barb., 614; 66 Barb., 603; 6 How. Pr.,
2; 10 Abb. Pr., 221; 5 Bos., 512; 4 Duer, 84; 75 Ind..
124; 12 Mass.. 592.
JOHNSON, Administrator of JOHNSON,
v.
BE ARDSLEE, ET. AL. , Heirs and Devisees of
BEARDSLEE.
Statute of Limitations — Promise of One of Sev-
eral Joint Debtors, Sufficient to Take case out
of.
The promise of one joint debtor to pay a debt
barred by the Statute of Limitations, is sufficient to
take the case out of the Statute.
In an action against the heirs and devisees of a
deceased debtor, a promise by two of the defend-
ants, who were also his executors, to pay the debt,
was held sufficient to charge all the defendants.
It seems that an acknowledgment of the debt, un-
accompanied with a protestation against the pay-
ment of it, is evidence sufficient for the jury to
presume a new promise.
Citations— 11 Johns.. 146 ; 6 Johns., 267 ; 2 H. BL,
340; Doug., 652.
THIS was an action of assumpsit, to the de-
claration in which the defendants plead-
ed non assumpsit and the Statute of Limita-
tions, and the plaintiff replied, taking issue on
the latter plea. The suit was commenced in
August Term, 1814, and the parties, without
going to trial, made a case for the opinion of
the court, which was submitted without argu-
ment.
In the summer of 1805 the plaintiff's demand
was placed in the hands of one Pumpelly, with
whom it was liquidated by John Beardslee,
the testator, and the balance struck. The tes-
tator died in 1806. After his death, and with-
in six years before the commencement of the
suit, the demand was presented to two of the
defendants, who were also executors of the
deceased, who admitted the balance to be
due, and promised to pay it.
4*] *Per Curiam. The demand of the plaint-
iff was liquidated with John Beardslee in 1805,
and he died in 1806 ; consequently, before the
Statute of Limitations had attached on the
debt. Within six years before this suit was
brought, two of the defendants, and who were
also executors of John Beardslee, admitted the
demand and promised payment.
Whether the new promise revives the old
debt, or can be enforced as a new promise
upon a valid consideration, is immaterial to be
discussed here. On a review of all the cases
(Danforth v. Culver, 11 Johns., 146), we were
of opinion that the acknowledgment of the
execution of the notes, with an express declar-
ation that the party meant to avail himself of
the Statute of Limitations, was not evidence
of a new promise to pay ; but we did not inti-
mate that an acknowledgment of the debt
would not have been sufficient, unaccompan-
ied with a protestation against paying it ; in-
deed, there is a current of authorities that an
acknowledgment of the debt is evidence suffi-
cient for the jury to presume a new promise.
Here, however, is not only an acknowledg-
ment of the debt, but an express promise to
pay ; and it has always been holden, that a
debt, barred by the Statute, is a sufficient con-
sideration to uphold a promise. With respect
to the other defendants, who have not ac-
knowledged the demand, or promised to pay
it, the acknowledgment of one joint debtor, of
the existence of the debt, is sufficient to take
the case out of the Statute. (Smith v. Lud-
low, 6 Johns., 267 ; 2 H. Bl., 340 ; Doug., 652.)
The court see no reason why jthat principle
should not apply to the case 'of executors,
heirs and devisees, as well as to every other
case.
Judgment j 'or the plaintiff.
Statute of Limitations, promise by one jointly lia-
ble, to pay debt barred by, will take case out of. Ap-
proved—38 N. J. L., 36.
Overruled— 2 N. Y., 529 ; 3 Hun, 659 ; 10 Barb.. 35,
566; 15 Barb., 172 ; 6 T. & C., 162.
Cited in— 4 Cow., 494 ; 3 Wend., 529 ; 5 Wend., 262 ;
19 Wend., 493: 11 N. Y., 181; 3 Barb., 548; 4 Barb.,
538; 100 111., 443.
What acknowledgment sufficient to presume new
promise. Cited in— 15 Johns., 520 ; 17 Johns., 331 ;
15 Wend.. 288; 6 Johns. Ch., 290; 33 N. Y., 530; 4
Barb., 172.
*COLLINS 0. RAGKEW.
[*5
Wager — Pleading — In Action by Loser.
In an action under the 2d section of the Act to
Prevent Gaming (sess. 24, ch. 46 ; 1 N. R. L., 153), by
the losing party against the winner, to recover back
money lost at play and paid, the plaintiff may de-
clare generally, in debt for money had and received.
NOTE. — Statute of Limitations — New promise by a
joint debtor or partner.
There is a conflict of authority as to whether a
promise or acknowledgment by a joint debtor or
partner, takes the debt out of the statute. That it
will do so, was held in the leading case of Whitcomb
v. Whiting, 2 Doug., 652. This case is followed in
some of the States. See the above case of Johnson
v. Beardslee: Patterson v. Choate, 7 Wend., 441;
Smith v. Ludlow, 6 Johns., 267. These cases are
overruled in the case of Van Keuren v. Parmelee,
2 N. Y., 523. See, also, in support of Wbitcomb v.
Whiting, Hopkins v. Banks, 7 Cow., 653; Dean v.
Hewitt, 5 Wend., 262 ; Roosevelt v. Mark, 6 Johns.,
Ch., 291 ; Tracy v. Rathbun, 3 Barb., 543 ; Munroe v.
Potter, 34 Barb., 358 ; 22 How. Pr., 49 ; Beardsley v.
Hall, 36 Conn., 270; 4 Am. Rep., 74; Merritt v. Day,
38 N. J.,32; 20 Am. Rep., 362; Wheelock v. Doo-
little, 18 Vt., 440 ; Mix v. Shattuck, 50 Vt., 431 ; Schin-
del v. Gates, 46 Md.. 604, 24 Am. Rep., 524 ; Disbor-
oujrh v. Bidleman, 20 N. J. L., 275 ; Getchell v. Heald,
7 Me., 26 ; Block v. Dorman, 51 Mo., 31 ; Whittaker
990
v. Rice, 9 Minn., 13; Foute v. Bacon, 24 Miss., 156;
Cox v. Bailey. 9 Ga., 467 ; White v. Hale, 3 Pick.,
291 : Jackson v. Fairbank,2 H. Bl.,340.
The contrary and better doctrine is held in the fol-
lowing cases: Van Keuren v. Parmelee, 2 N. Y.,
523 ; Harper v. Fairley, 53 N. Y., 442 ; Schoenmaker
v. Benedict, 11 N. Y., 176; Bloodgood v. Bruen, 8 N.
Y.,362; Payne v.Gardiner, 29 N. V.,146; Winchell v.
Hicks, 18 N. Y., 558 ; Dunham v. Dodge, 10 Barb.,
566; Lanev. Doty. 4 Barb., 530; Graham v. Selover,
59 Barb., 313; Smith v. Ryan. 66 N. Y.. 352; 23 Am.
Rep., 60 ; Hance v. Hair. 25 Ohio St., 349 ; Coleman
v. Fobes, 22 Pa. St., 160 : Hunter v. Robertson, 30
Ga.. 479 ; Succession of Voorhies, 21 La. Ann., 659 ;
Knight v. Clements, 45 Ala.. 89; 6 Am. Rep., 693;
Steele v. Souder, 20 Kans., 39 ; Mayberry v. Will-
oughby, 5 Neb., 369, 25 Am. Rep., 491 ; Bush v. Stow-
ell, 71 Pa. St., 278, 10 Am. Rep., 694 ; Bell v. Morri-
son, 1 Pet., 351. See, generally, Hackley v. Patrick,
3 Johns., 536, note ; Sanford v. Mickles, 4 Johns.,
224, note ; Danforth v. Culver, 11 Johns., 146, note.
JOHNS. REP.. 15.
1818
GOODRICH v. GORDOK.
without statin? his case speciallv. or referring
to the Statute ; but It Is otherwise In the case or an
action brought by a common informer.
Citations— 1 N. R. L.. 153 ; 4 Johns.. 193.
IN ERROR, on a bill of exceptions to the
Court of Common Pleas of the County of
Ontario.
The plaintiff in error brought an action of
debt, in the court below, against the defend-
ant in error, and declared generally, for money
borrowed by the defendant of the plaintiff,
and for money had and received by the defend-
ant to the plaintiff's use. The defendant
pleaded nil debit ; and at the trial, in My
Term, 1817, in the court below, the plaintiffs
counsel stated that the action was founded on
the second section of the Act, entitled "An
Act to Prevent Excessive and Deceitful Gam-
ing," passed the 21st of March. 1801, and of-
fered to prove that the plaintiff, at one time or
sitting, by playing at cards, lost to the defend-
ant the sum of $170. and paid the same to him,
and that the plaintiff, within three months
thereafter, sued out a writ of capias ad re»pon-
dendum, and commenced this action, to recover
back the money which he had lost. This ev
idence was objected to. on the part of the de-
fendant, on the ground that it was inadmissi-
ble, under the plaintiff's declaration, which
contained no reference to the Statute ; and the
court, being of this opinion, nonsuited the
plaintiff.
The bill of exceptions was submitted with-
out argument.
Per Curiam. This case comes before the
court on a writ of error to the Common Pleas
of Ontario County, founded on a bill of excep-
tions duly taken. It presents the question,
whether, in an action brought by the losing
party, to recover back money lost at gaming,
he is bound to declare specially, or may declare
generally, under the Statute, for money had
and received ; and the Statute would seem too
plain and explicit to admit of any doubt, that
he may declare generally. This is expressly
authorized by the Act. (1 N. R. L.. 153.) The
case of Cole v. Smith, 4 Johns., 193. does not
apply. There the action was by a common
6*] "informer, the *losing party not having
brought his suit within the time limited by the
Act. In such case, the Act does not give any
form of declaring, and it was held that he
must state the special matter upon which his
cause of action was founded. But it is almost
necessarily to be inferred, from what is said by
the court, that a general count would be good,
when the suit was by the losing party. The
judgment must be reversed, and a venire do now
issued, returnable in the Common Pleas of
Ontario County.
Judgment reverted.
Cited in— 4 Den., 471 : 28 How. Pr., 102 : 68 How.
Pr.,5ftJ; 18 Abb. Pr., 135 ; 1 HW1, 308; 48 Super., 116.
GOODRICH AND DEFOREST
GORDON.
1. Ransom of Vettel—Is a Lawful Contract-
Accepting Pa**port from Captor i» Lawful.
JOHNS. Ui r . 15.
2. Bill of Exchange — Agreement, to Accept —
Binding in Hand* of One Taking on Faith of
Such Agreement.
The ransom of a vessel and cargo captured by an
enemy is a lawful contract, and an action may be
maintained in our courts to recover the money
agreed to be paid to the captor on sirch ranaom.
Nor Is it unlawful after the capture to receive a
passport from the captor, to protect the vessel from
another capture.
Where a person, by writing, authorizes another to
draw a bill of exchange, and stipulates to honor the
bill, and a bill is afterwards drawn, and taken by a
third party, on the faith of the writ ton engagement,
this is tantamount to an acceptance of the bill.
Citations— Act Aug. 2. 1818 ; 1 Azuni. 313, 316 ; 3
Burr., 1603; Cowp.,573; 1 East, 98: 10 Johns.. 214.
THIS was an action otautumpnt, to recover
the amount of a bill of exchange drawn
by William Napier upon the defendant, in
favor of James Stewart, and by him indorsed
to the plaintiffs. The cause was tried before
His Honor, the Chief Juttice.&l the New York
sittings, in April, 1816.
The defendant, jointly with certain other
persons, was owner of the sloop Hope and
cargo, which, in December, 1813, was sent on
a voyage from New York to Savannah ; and
the following letter of instructions, dated De-
cember 6th, 1818, was delivered by the defend-
ant to Napier, the master of the sloop :
" Sir : The ploop Hope, now under your
command, being ready for sea, you will proceed
to the Hook, and if no cruisers are off, you
will take advantage of the first good opportu-
nity, and proceed to sea, and make every dis-
patch *for Savannah. I would recommend [*7
you to get a good offing, say without the
Gulf Stream; then keep southwardly, until you
get St. Catharine's to bear west ; then make
the best of your way into port. Should you
touch at the southward of Savannah, you will
be able to get information, and if necessary,
you can take an inland passage. Your vessel
is addressed to my brother, George Gordon,
under whose instructions you will place the
vessel after your arrival. Should you unfort-
unately fall in with and be captured by an
English cruiser, you will endeavor to ransom
the vessel and cargo, as low as possible, say
not to exceed $2.000 ; your draft on me, or my
brother, will be duly honored, or, should they
take you to Tybee. you can go ashore, and
bring off the specie. I. however, trust you
will be more fortunate ; but, should it so hap-
pen, it will be fulfilled, in good faith. Wishing
you a prosperous voyage. I am, &c. Chas. WT
Gordon."
On her voyage the sloop was captured by the
British frigate Endymion, and was ransomed
by the master for the sum of $2,000, for which
amount he drew the following bill on the de-
fendant :
••$•_>.! MM i.
Sir:
H. B. M. ship Endymion,
At sea, December 21st, 1818.
Ten days after sight of this my second of
exchange, first, third and fourth, of the same
tenor and date, not paid, plea.se to pay to James
Stewart. Esq.. or order, on behalf of theofflcers
and crew of His Britannic Majesty's ship En-
dymion, the sum of two thousand hard Spanish
dollars, in specie, being the amount for which
09]
SUPREME COURT, STATE OP NEW YORK.
1818
I have ransomed the sloop Hope, and cargo
(this day captured by the said ship), agreeably
to your letter of the 6th instant, and for which
I have received the passport of the captain.
To be honored, with or without further advice.
Your obedient, humble servant,
Wm. Napier, Master of the sloop Hope.
Mr. Charles W. Gordon, Merchant, New
York."
8*] *Napier, at the same time, delivered his
letter of instructions to Stewart, and received a
passport, as mentioned in the bill. A number of
American prisoners were also put on board the
sloop, with a quantity of provisions for their
support, and she was furnished with a new
mainsail and foresail or jib. During the
voyage, the prisoners compelled the master to
put into Charleston, where the sloop arrived,
and the cargo was unladen, and came into the
hands of the consignee. The bill and letters
of instructions were received by the plaintiffs,
and the amount, on the faith of the letter, was
credited to the remitter, with whom the plaint-
iffs had had previous dealings; but whether
this was Stewart or some other person, did not
clearly appear. The defendant had received
from the other part owners of the vessel, $1,000,
as their proportion of the ransom money.
A verdict was found for the plaintiffs, sub-
ject to the opinion of the court on a case con-
taining the facts above stated.
Mr. Ely, for the plaintiffs, contended : 1.
That the ransom was a valid contract, under
the law of nations. (2 Azuni, 313 ; 2Emerig..
464, ch. 12, sec. 21 ; Valin, 138. art. 66 ; Cornu
v. Blackburne, Doug., 641 ; Yates v. Hall, 1
T. R., 73.) Such contracts are highly bene-
ficial in mitigating the evils of war. They
•ought to be fulfilled, on principles of common
honesty, and for the honor of nations. Si
quid singuli temporibus adduci hosti promiser-
int, eat in eo fides conservanda. The courts of
no nation have refused to give effect to them,
unless prohibited by some statute or ordinance
founded on principles of state policy. Thus,
in England, by the Statute of 22 Geo. III., ch.
25, contracts for the ransom of British ships
were declared unlawful, because, possessing
a great navy, such contracts diminished the
chance of recaptures. But France, 'Holland
and other maritime powers, regard these con-
tracts as binding nnder the law of nations.
When the subject was brought before Congress
in 1813, they refused to pass a law prohibiting
ransoms ; thus leaving them, in this country,
to be governed by the general law of nations.
9*] *If, then, a ransom was lawful, the pass-
port mentioned in the bill, which was a necessary
incident to it, cannot affect its validity. The
Act of Congress (13th Cong., sess. 1, ch. 56,
August 2d, 1813), prohibiting the use of British
licenses or passes, is to be taken only in refer-
ence to licenses to trade. It could never have
been intended to apply to the case of a ransom.
2. There was a valid acceptance of the bill.
The bill was for a valuable consideration, and
the letter of instructions, which contained the
engagement to accept a bill so drawn, was at-
tached to the bill, and passed with it. In
M'Ecersv. Mason, 10 Johns., 215, the court,
after a review of the English authorities, in-
clined to the opinion that, where a third person
gives credit on the faith of the promise to ac-
992
cept, it would be binding ; and the principle
of the decision in the case of Weston v. Barker,
12 Johns., 276, is strongly in point. There B
accepted certain securities placed in his hands
by A, who 'ordered B to pay the balance to C ;
and it was held that C might maintain an ac-
tion against B on his implied promise. In
M' Kim v. Smith & Steene, in the County Court
of Baltimore, Nicholson, Ch. J., was clearly of
opinion that such a promise to accept a bill
shown to a third person, who gave credit on
the faith of it, was binding, and that it made
no difference whether the credit was given be-
fore or after the bill was drawn. (1 Hall's
Law Journal, 488.)
Mr. Ant/ion, contra. 1. A ransom is an
illegal contract, at common law ; and Lord
Kenyon, in Havelock v. Rockwood, 8T. R., 269
-277, considered the ransom acts as remedial
laws. All trading with an enemy, during
war, without the license of government, is un-
lawful. (Potts v. Bell, 8 T. R., 548.) Con-
tracts of ransom have merely been tolerated by
certain nations. They are clearly against the
sound policy of all maritime powers, because
they deprive their cruisers of the chance of re-
capture. Again ; this contract is within the
scope and meaning, if not within the letter, of
the Act of Congress (13th Cong., sess. 1, ch.
56) prohibiting our citizens from using, directly
or indirectly, *a license, pass or other [*1O
instrument, granted by the British government
for the protection of any ship, &c.
2. Here was no valid acceptance of the bill.
This question came up collaterally in the case
of M'Ecers v. Mason, and Kent, Ch. J., exam-
ined the authorities, but the court expressed
no decided opinion. The arguments, however,
of the learned counsel for the defendant, in
that case, may be applied, with great force, to
the present. The later decisions in England
certainly go to establish the doctrine that a
promise to accept a bill not drawn, or not yet
in existence, does not amount to an accept-
ance.
Again ; the master, in this case, exceeded
his authority. He not only gave a bill for
$2,000, but took on board prisoners, who, by
their mutinous conduct, defeated the whole
adventure. An agent who acts under special
authority, must strictly pursue that authority.
If he varies from it, in any material degree,
his act is void. (Batty v. CasweU, 2 Johns. , 48.)
Mr. Wells, in reply. 1. A ransom is law-
ful. The law of nations, as well as the com-
mon law of England, sanctions such a contract.
This is not a trading with an .enemy. It is
not, like the case of Potts v. Bell, a voluntary
contract. By the capture, all the rights of the
owner were devested; and to regain the whole,
ho consented to give a part. In case of a re-
capture, he would regain his property on pay-
ing salvage. It may be a question of policy,
whether he will be aUowed to be the salvor or
not ; and a particular government may deem
it proper, from its own views of policy, in
order to encourage its own cruisers, to pro-
hibit ransoms ; but until there is some statute
or ordinance prohibiting them, there is noth-
ing which renders the contract unlawful. The
cases of Havelock v. Rockwood, and Potts v.
Bell, are not applicable. They were decided on
different grounds.
JOHNS. REP., 15.
1818
OOODKICH v. GORDON.
10
As to the objection that the case is within '
the operation of the Act of Congress, in re- !
gard to British licenses, it is manifest that .
ransoms were not the evils which that Statute :
was intended to prevent. It meant merely to \
supcradd a penalty to acts already unlawful.
Besides, the bill was given for the ransom, not
for the passport, which was u subsequent act.
11*] *But the proviso, in the second section
of the Act of Congress, allowing the accept- j
ance and use of a passport from the enemy, for j
the purpose of carrying American prisoners to j
the United States, would be sufficient to save
this case from the operation of the Act.
2. The question as to an acceptance of a bill j
not drawn, was discussed in M'Kver* v. Mown; \
but this is not the case of a principal writing
to his agent, and promising to accept bills \
drawn on him. It is, in substance, a letter of j
credit, or an authority to enter into a contract, j
according to the letter of instructions. The
promise was as valid before as after the bill
was drawn ; this was admitted in the case of i
Johnson v. CoUiiu, 1 East, 98.
Again ; the consignee, the authorized agent !
of the defendant, received the property ran-
somed, and disposed of it for the benefit of
the defendant ; and two of the joint owners
have paid to the defendant their proportion of
the ransom. This amounts to a virtual ac-
ceptance of the bill. The master did not ex-
ceed his power. He was authorized to ransom
the vessel for $2.000 ; and taking prisoners on
board would rather diminish than increase the
ransom. If paid for taking the prisoners, it
was a separate and independent contract. But
it is enough that the consignee afterwards ac-
cepted the ransomed ship and cargo at Charles-
ton.
THOMPSON, C h. J., delivered the opinion of
the court :
There can be no doubt that the contract for
the ransom of the vessel was a lawful con-
tract. Such contracts are sanctioned by the
laws of nations, and are not deemed a trading
with the enemy (2 Azuni. 313); nor was the
passport given by the captors, upon the ransom
and accepted by the master of the captured
vessel, in violation of the Act of Congress. (2d
Aug., 1818.) It was merely a certificate, given
by the captors, to serve as a passport, and pro-
tect the ransomed vessel from all other armed
vessels belonging to the nation of which the cap-
tors were subjects, and to prevent another capt-
ure. (2 Azuni. 316.) It may.perhaps.come with-
in the exception to the Act of Congress (2d sec.),
which declares that the Act shall not prevent
li2*J the acceptance of a *passport, granted
by the commander of any ship of war of the
enemy, to any ship or vessel of the United
DtoUm. which may have been captured and
given up, for the purpose of carrying prison-
ers, captured by the enemy, to the United
Stales. Admitting, however, that the instru-
ment given in the case before us is not the one
contemplated by this provision, still. I think,
the Act does, not at all extend to such certifi-
cates.
The only question in this case, then, K
whether the defendant is chargeable as an ac-
ceptor of this bill. In PilUtn* <t lto*t v. Van,
Mitrop <t Uopkint, 3 Burr.. 1663. Lord Mans
Jo:iN8. RBP., 15. X. Y. K., 5.
field, and the whole court, go the full length
of saying, that a promise to accept a bill is
equivalent to an acceptance, whether it be be-
fore or after the bill is drawn. Lord Mine-
field, however, afterwards, in the case <>f
Pierton v. Dunlop, Cowp., 573, in some meas-
ure, limits and qualifies his former doctrine.
He observes thiit it has been truly said, as a
general rule, that the mere answer of a mer-
chant to the drawer of a bill, saying. " I will
duly honor it," is no acceptance, unless ac-
companied with circumstances which may
induce a third person to take the bill
by indorsement ; but if there are any such
circumstances, it may amount to an ac-
ceptance; thereby confining the rule to cases
were third persons have acted upon the faith
of such assurances, and have been induced, in
consequence thereof, to take the bill. In John-
ton v. Collins, 1 East, 98, the rule, as laid down
in Milan* v. Van Mierop, is certainly over-
ruled: and from the observations of the judges,
the limitation and qualification, as contained
in Pierson v. Dunlop, is not either sanctioned
or approbated; nor am I aware that it has been
expressly adopted, in any subsequent decision,
in the English courts. But I think it may
fairly be inferred, from the observations of
the late Chief Juxtiee, in M'Evem v. Mason, 10
Johns., 214, that the rule, as laid down in
Pierson v. Dunlop. is approved of by this
court. It is there said, everv one will agree,
that an acceptance by a collateral paper may
be good ; and if that paper be shown to a third
]>er>n:i, so as to excite credit, and induce him
to advance money on the bill, such third
person ought not to suffer by the confidence
excited. Whether these observations were in-
tended *to apply to collateral accept- [*13
ances of a bill already drawn, or to be after-
wards drawn, does not appear. But I cannot
see any sound principle upon which the cases
can be distinguished. No question of want of
consideration can arise in either case, and it is
the credit, which such acceptance or engage-
ment to accept has given to the bill, which
gives to it its binding operation. The testi-
mony in the case before us is very full to show
that this letter of the defendant, authorizing
the drawing of the bill, accompanied it, at all
times, and that it was upon the credit of that
letter that the bill was taken by the plaintiff.
It appjars to me to be a gross violation of good
faith in the defendant, now to disclaim the
authority of the captain to draw the bill. The
letter may well be considered as an authority
to draw, 'accompanied by a promise to accept.
It was an authority given for the express pur
pose of enabling the captain to draw the bill,
which was an act done for the benefit of the
defendant, and according to his instruction^ ;
and I think it binding upon him as an accept-
ance ; and this is the opinion of the court.
The plaintiff ia, accordingly, entitled to judg-
ment.1
l.-See Coolldffe v. Parson. 2 Wheat.. 86, in which
tin- Supreme Court of the United States decided,
"upon a review of the cases which are reported, that
11 letter, written within a reasonable time, before or
after the duto of a bill of exehanv<\ dMoribtac it in
term* not to be inUtuken, and promising to aecept
it, is. if shown to the person who afterwards take*
the Nil. on the credit of the letter, a virtual accept-
ance, bin Jin* the person who makes the promise."
(53
13
SUPREME COURT, STATE OP NEW YORK.
1818
Judgment for the plaintiff .
Bill of exchange— What amounts to acceptance.
Cited in-3 Denio, 557 : 57 N. Y., 468 ; 2 Wend., 548 ;
5 Wend., 420 ; 12 Wend., 598 ; 2 McLean, 403 ; 98 Mass.,
292.
War contract— Binding force. Cited in— 16 Johns.,
451.
14*] *P. AND G. LORILLARD
v.
PALMER ET AL.
Marine Law— Interruption of Voyage Dissolves
Contract of Affreightment — No Freight Earned
unless Voyage is Completed.
Goods were laden on board of a vessel to be tfrins-
ported from. Richmond to New York. The vessel
proceeded on her voyage in the beginning of Feb-
ruary, but finding the Chesapeake blockaded by a
hostile squadron, and that it would be impossible to
put to sea without being captured, went into Nor-
folk, and finally returned to Richmond. In Sep-
tember following, the plaintiffs demanded their
goods, in order to transport them to New York by
land, but the master refused to deliver them unless
on being paid half freight; and a few days there-
after the vessel, with the goods on board, was to-
tally lost, without the default of the defendants or
the master, the blockade haying continued until
that time. Held, that the defendants had no claim
for freiarht, the voyage not having been performed ;
and that more than a reasonable time having
elapsed for sending on the goods, they had no right
to retain them, and were liable to the plaintiffs for
their value, notwithstanding they were lost by in-
evitable accident.
The ship owner is bound to deliver the goods to
the consignee within a reasonable time ; and it is
only on the delivery of them that he isentitled-to
freight. If he is unwilling or unable to forward
them, the freighter is entitled to receive them back
without paying any freight.
Where the completion of the voyage is prevented
by a permanent blockade, and the vessel is unable
to put to sea, and she returns after having pro-
ceeded to the mouth of the bay on which her port
of lading is situated, the ship owner is not entitled
to freight pro rata, and the freighter is entitled to
receive his goods without paying freight, the block-
ade putting an end to the contract..
Citation-!— 3 Johns. Cas., 97 ; 10 East, 393 ; 9 Johns.,
•30; 2 Johns., 336.
was an action of assumpsit, for the
J- non-delivery of a quantity of tobacco,
shipped on board the schooner Seaman, of
which the defendants were owners, at Rich-
mond, in Virginia, to be delivered to the
plaintiffs in Now York, pursuant to a bill of
lading, dated January 2Lst, 1813, signed by the
master of the schooner. The cause was tried
before His Honor, the . Chief Justice, at the
New York sittings, in April, 1816.
The schooner Seaman, in January, 1813,
during the late war between this country and
Great Britain, was lying in the port of "Rich
mond, bound for New York, and thirteen
hogsheads of tobacco were shipped on board
of her by the plaintiffs' agent. About the 26th
or 27th of January the vessel set sail on her
voyage for New York, and on the 2d of Feb-
ruary the master of the vessel came to anchor
in Hampton Roads, for the purpose of ascer-
taining whether he could safely proceed to sea,
there being at that time a British squadron
blockading the Chesapeake, through which
NOTE.— Interruption of voyage does not dissolve the
contract of affreightment, but only suspends its per-
formance. See Palmer v. Lorillard, reversing the
above case of Palmer v. Lorillard, and note.
994
the vessel must necessarily pass. When he
had ascertained the impossibility of getting to
sea without being captured, and the danger of
remaining in Hampton Roads, by the advice
of Captain Stewart, of the United States Navy,
commanding on that station, he put into Nor-
folk, and there remained until about the 7th
of March, when, on account of the increase of
the British squadron, it was deemed unsafe to
remain at *Norfolk, and he returned [*15
with the vessel to Richmond, where she ar-
rived on the 15th of the same month. The
schooner continued at Richmond until the
21st of September, when, in consequence of a
violent storm and freshet, she was sunk at the
wharf, without any fault or negligence of the
defendants or their agents, and the tobacco in
question was wholly ruined and spoiled. At
the time the bill of lading was signed it wa»
not known at Richmond that the Chesapeake
was blockaded, nor was it known by the mas-
ter or the defendants ; and, in fact, the block-
ade did not then exist ; but it continued, with-
out intermission, from the time the vessel at-
tempted to sail on her voyage until after she
was lost. On the 16th of September, after her
return to Richmond, the agent of the plaintiffs
demanded the tobacco from the master, for
the purpose of forwarding it to New York by
land, and he refused to deliver it, unless on
being paid half freight.
A verdict was taken for the plaintiffs for
the invoice price of the tobacco, with interest,
subject to the opinion of the court, on a case
to be made, which either party might turn
into a bill of exceptions, or special verdict.
Mr. D. B. Of/den, for the plaintiffs. The
contract of affreightment, like all other con-
tracts, must be performed in a reasonable
time. The plaintiffs, having waited from
January to September, were entitled to receive
their goods, on demand, without paying any
freight. (Herbert v. Hallett, 3 Johns. Cas.,
93. 98.)
The contract was made during war,' and the
defendants were to receive a war freight.
They knew that they must encounter the haz-
ards incident to a. state of war. It was their
duty to attempt to reach New York, notwith-
standing the blockade, and if apprehensive of
capture, they might have had the vessel and
freight insured against that peril. There is
no exception of any such hazards ; and the
apprehension of capture, however well found-
ed, is no legal excuse for the non-performance
of the contract. (Atkinson v. Ritchie, 10 East,
530; Abbott on Ships, 361.)
As to the claim of the master for half freight,
there was no pretense for it. The defendants
were entitled to the whole freight or none.
There could be no apportionment *of [*!(>
freight. No freight is due where the vessel
returns to her port of departure without per-
forming the voyage. (Griswold v. New York
Ins. 00., 1 Johns., 205, 212.).
Mr. Golden, contra. This case is distin-
guishable, in some of its most important fea-
tures, from those which have been cited. It
is not a contract of charter-party ; but the
goods were shipped, under a bill of lading, on
board of a general ship. This is an action of
assumpifit to recover the value of the goods. It
is not pretended that the non-delivery of them,
JOHNS. REP., 15.
1818
LORILLARD V. PALMER ET AL.
16
or the loss, has proceeded from any negligence
or fault of the defendants. The claim of the
plaintiffs rests solely on the ground that the
defendants refused to return the goods to
them when they were demanded. But we
contend that the shipper cannot, after the
voyage is commenced, demand his goods with-
out paying freight, unless the master is in
fault. (iMolloy, bk. 2. ch. 4, sec. 5; Beaw.
L. M., 103, 137; Malyne. 98; Herbert v. Lfal
lett, 8 Johns. Cas., 93.) The master may in-
sist on carrying on the goods, so as to be en-
titled to his freight. (OriticoUlt v. Keu> Turk
Int. Co., 1 Johns., 204; 8. C., 8 Johns., 321 ;
Bradhurtt v. Col. Int. Co., 9 Johns., 17.)
Having a lien on the goods for his freight, he
cannot be deprived of that lien, without a
tender of the freight. If he gives up the
goods, he loses his lien. The obstruction to
the Chesapeake, in this case, was not a regular
blockade ; it was a temporary obstruction, and
might be removed the very next day. The
master was justified, therefore, in waiting for
its removal. Admitting that a war freight
was to be paid— a fact which does not appear
in the case — yet the ship owners were not,
therefore, bound to encounter imminent peril,
or inevitable loss, by running into the arms of
the enemy. Fear of capture will excuse a de-
viation. (Reitde v. Commercial In». Co., 3
Johns., 352 ; Pout v. Phoenix In*. Co., 10 Johns..
79; Suydam <fc Wycknffv. Marine La. Co., 2
Johns., 138.) If, then, the master was justi-
fied in putting back, and returning to Rich-
mond, to avoid capture, he was equally justi-
17*1 fied in remaining. In * Barker \. Chariot,
2 Johns., 352, 356, Thompson. Ch. J., says
the master ought to* have waited at A. for the
removal of the detention of the cargo; and
that, being an entire voyage, out and home,
there could be no apportionment of freight.
It is well settled that if the owner takes his
goods, after the voyage is commenced, and
before it is completed. Tie must pay freight for
them pro rata. (Luke v. Lyde, 2 Burr., 882;
Lutwyctie v. Grey, Abbott, 298, part III., ch.
7, sec. 13.)
Mr. A Jones. Jr., in reply. The bill of lading
contains a positive engagement to deliver the
goods to the plaintiffs, the dangers of the sea
only excepteu ; the defendants thereby.taking
upon themselves all other risks. The plaint*
ins, after waiting a reasonable time, had a
right to say to the defendants : "Carry on the
goods, agreeably to your contract, or return
them to us." The defendants refused to de-
liver them, and made no offer to carry them on
by land, or in any other way, but insisted on
receiving half of the freight. If a ship be-
comes damaged during the voyage, the owner
is allowed a reasonable time, and no longer, to
make the necessary repairs, and to proceed on
the voyage. Where there is no limited time
expressed in the contract, it must be always
understo<xl to mean a reasonable time. The
cases which have been cited, all show that in
case of accident during the voyage, the master
must send on the goods by another ship, by
lighters or by land, or in the best practicable
mode, in order to entitle himself to freight.
(Bradhunt v. Col. Int. Co., 9 Johns., 9 ;
Sehifffdin v. The N. Y. In*. Co., 9 Johns., 21;
8 Johns.. 331 ; 10 East, 393. Park. 221.) In
JOHNS. REP., 15.
Gotltng v. Higgint, Campb., 451, Lord Ellen-
borough was of opinion that the seizure of the
goods by the officers of government, and thut
without any fault of the master, did not ex-
cuse the non-delivery of them. (Wilton v. R.
Ex. A**. Co., 2 Campb., 624.)
As to pro rmta freight, that is never demand-
able, except at a port of necessity, and is not
payable, where the ship returns to her port of
departure. The right to pro rata freight is
wholly founded on the acceptance of the goods
by the owner, at the intermediate port. The
master has no *lien on the goods for [*18
such freight. A lien is allowed only in favor
of a person who has performed his contract
THOMPSON, Ch. J., delivered the opinion of
the court :
The claim, in this case, is founded on the
non delivery of a quantity of tobacco, shipped
on board a schooner, of which the defendants
were owners, to be transported from Rich-
mond, in Virginia, to New York, and there de-
livered, pursuant to a bill of lading for that
purpose, signed by the master of the schooner.
The vessel, with the tobacco on board, sailed
on the voyage about the 26th of Janunry.
1813, but finding the Chesapeake blockaded
by a British squadron, was unable to proceed
on the voyage, and some time in March fol-
lowing returned to Richmond, where she re-
mained with the tobacco on board, until the
16th of September, when the agent of the
plaintiffs demanded the tobacco, which the
master of the schooner refused to deliver, un-
less he was paid half freight, which the agent
refused to pay ; and on the 21st of the same
month of September, the schooner, in con
sequence of a violent storm and sudden
freshet, was sunk at the wharf, and the tobac-
co wholly ruined and lost.
The case does not warrant the conclusion
that the loss was attributable to the negligence
of the master, or the want of proper care of
the vessel. Here has, therefore, been a dead
loss, without any real or actual fault, other
than the non-delivery of the tobacco when de-
manded.
The only question in the cose is. whether
the master was bound to comply with the de-
mand without receiving the half freight
claimed. It appears by the case, that the
blockade was not known to the parties at the
time the schooner sailed from Richmond ; and
it continued until after the loss happened.
Although it may appear equitable that the
owners of the vessel should receive some com-
pensation for the care they had taken o( the
plaintiffs' ^oods, yet I kno'w of no principle of
law on which half freight could be claimed.
The defendants had a right to demand either
full freight or none at all. But I think no
freight could be claimed. Whenever any ac-
cident occurs to a vessel, or there is any inter-
ruption of the voyage, the ship owner hn* a
reasonable time to repair his vessel, or wait for
the removal *of the obstruction, and [*10
then to carry on the cargo and earn his freight.
But there must be a limitation to such delay.
It would be a monstrous doctrine to allow the
ship owner to retain the cargo, and perform
the voyage when he pleased. No time l>eing
specified in the bill of lading for the delivery
995
19
SUPREME COURT, STATE OF NEW YORK.
1818
of the goods, the general rule of law applica-
ble to the performance of all other contracts,
must govern, to wit : that it must be done in a
reasonable time. Although the right to
freight commences on the loading of the
goods, it is a defeasible right, depending on
the success of the voyage ; and in case no
part of the Her is performed, to any beneficial
purpose, no freight is earned. (3 Johns., Gas.,
97.) If the ship owner is determined to have
his freight, he must forward the goods. It is
upon the delivery of the cargo that the right
10 freight depends, unless such delivery is
waived, or some new contract is made respect-
ing it. If the ship owner will not, or cannot,
carry on the cargo, the freighter is entitled to
receive his goods again without paying any
freight. (Hunter v. Prinsep, 10 East, 398.)
Any other rule would be hard and unjust
upon the merchant. (9 Johns., 20.)
The question, in all cases of this kind, must
depend, in a great measure, upon the partic-
ular circumstances of each case, according to
the nature and cause, as well as the length of
the delay. In the case before us, the plaintiff
liad waited a reasonable time for the goods to
be carried on. Nearly nine months had
elapsed from the time of shipment, and the to-
bacco was wanted by the plaintiffs to be sent
on in some other way. If the defendants
were bent upon receiving their freight, they
should have transported the goods in some
way or other. If not by water, they should
have sent them on by land, which might have
been done, though at a much greater expense.
But as the freight to be paid was a war freight,
it might, perhaps, have warranted such trans-
portation. The blockade of the Chesapeake
was not such a temporary obstruction as that
it could reasonably be calculated that it would
be removed in a short time. From the
length of time it had already continued, and
the local importance of the place, no doubt
could be entertained but that it was intended
as a permanent measure of hostility, to be
continued as long as the war lasted, if in the
2O*] power of the *enemy to maintain it.
There was, therefore, no reasonable prospect
of the goods being carried on by water. It
would be extremely unjust, if the merchant
could not again obtain his goods, either to sell,
or send them on in some other way, without
being charged with the freight, when no part
of the voyage had been performed. The ship
owners would not have been bound to keep
their vessel with the cargo on board until the
blockade was removed. They must have had
a right, after a reasonable time, to redeliver
the cargo, and discharge themselves from the
bill of lading. There would be no reciprocity,
unless the merchant might, within a reason-
able time, demand his goods, when all pros-
pect of sending them on had failed.
This is not like an embargo, or some tempo-
rary obstruction to the performance of the
voyage, which might furnish an excuse for the
delay, without putting an end to the contract.
The effect -of the blockade upon the bill of
lading is very much the same as upon a char-
ter-party. It is well settled, that, by the
blockade of the port of discharge, a charter-
party is dissolved, and all claim to freight
under it is gone. 8cottv. Libby et al,, 2 Johns.,
996
336, is a very strong case on the point. The
vessel was chartered on a voyage from New
York to the City of St. Domingo, and back to
New York. On arriving in sight of St. Do-
mingo, she was turned away, on account of
the port being blockaded. On her return to
New York the owners of the vessel refused to
deliver the cargo until the freight was paid.
But in an action of trover for the goods, it was
held that no freight was due ; that there could
be no pro rata freight, because the goods were
brought back to the port of lading, and no ben-
efit accrued to the owner. So, in the case be-
fore us, the goods were brought back to the
port of lading, and no benefit had accrued to
the plaintiffs, and the compensation claimed
must have been in the nature of a pro rata
freight.
Suppose, in this case, the tobacco had not
been lost, and an action of trover had been
brought by the owner, it would have been very
analogous to that of Scott v. Libby. If an
action of trover could have been sustained
without paying the freight, it must follow, as
matter of course, that the defendants are
respdnsible for the loss ; because they were in
*def ault in not delivering the tobacco [*2 1
when demanded. We are, upon the whole, of
opinion that, under the circumstantes of this
case, the plaintiffs had waited a reasonable
time for the defendants to send on the goods
and earn their freight ; and being in default,
by not delivering the tobacco when demanded,
they must be responsible for the subsequent
loss. The plaintiffs must, accordingly, have
judgment upon the verdict of the jury.
Judgment f "or the plaintiffs.
Reversed— 16 Johns., 348.
Cited in— 69 N. Y., 236; 9 Wall., 174.
DOLF, Widow, t>. BASSET.
Real Property — Tenancy in Common — Evidence
of— Dower of Wife in Land Aliened during
Life of Husband— Assigned according to Value
at Time of Alienation — Practice.
Where A and B purchased a piece of land, and
divided it between them, and A, being in the exclu-
sive occupation of his part, sold it to D, but both A
and B joined in the conveyance, it was held, that al-
though the deed from A and B might be prima facie
evidence that they were tenants in common of the
part conveyed, yet that the occupation of the land
by A and the defendant's purchasing it of him ex-
clusively, were evidence of A's seisin of the whole,
so as to entitle A's widow to dower out of the whole
of his part of the land originally purchased by A
and B, and not merely in a moiety of that part.
Dower of land aliened by the husband in his life-
time is to be assigned according to the value of the
land at the time of alienation, and such value may
be ascertained, either (1.) By the jury on the trial of
the issue in the action of dower ; or (2.) By the sheriff
on the writ of seisin ; or (3.) By a writ of inquiry
founded on proper suggestions.
Citations— 1 Cai., 185: 2 Johns., 119, 484 ; 1 N. E, L.,
60; 11 Johns., 510.
rFHIS was an action of dower, for the recovery
JL of dower in certain lands in the town of
Chatham, in Columbia County. The cause
was tried before Mr. Justice Van Ness, at the
Columbia Circuit, in September 1816.
Simon Dolf, a witness on the part of the
demandant, testified that he was acquainted
JOHNS. REP., 15.
1818
AMORT ET AI.. v. M'GREUOK.
21
with the farm formerly in the possession of *that Charles and Jonathan held as ten- [*23
Jonathan Dolf, the husband of the demandant, ants in common ; but the proof is abundant to
which contained one hundred and titty acres, show that such was not the fact, but that Jon
besides the part that Dolf afterwards got of athan had held and enjoyed the whole, in his
Stephen Hare ; that Jonatlian Dolf formerly own right, and Charles must have been joined
lived on the farm, and that the tenant came in the deed for greater caution. The manner
into possession, about twenty or twenty-two j in which Jonathan used and occupied the land,
years before the trial, under J. Dolf, claiming i and the defendant's purchasing it of him ex-
it by purchase from him. The witness further ! clusively, are sufficient, within the decisions of
stated that J. Dolf and his brother Charles Dolf j this court, to establish a seisin in Jonathan,
purchased the farm together, and then divided (1 Caines. 185; 2 Johns., 119.)
it, a division fence being put up, and each oc- The next question presented by the case is,
cupying his part separately ; and that the tenant i whether, in this action, the defendant could
had got J. Dolf's part; that the deed was given j be admitted to show that he had made valuable
to C. Dolf, and the witness did not know that i improvements upon the land. This is a case
J. Dolf ever took a deed for his part; but when [ where the land in which dower is claimed had
be sold to the tenant, the deed was executed ; been aliened by the husband in his lifetime,
by both Charles and Jonathan. The demand- : and therefore, coming within the statute,
ant produced the record of the deed from J. j which provides that dower of any lands sold
and C. Dolf, to the father of the tenant, dated i by the husband shall be according to the value
22*1 May 8th. 1793, for the consideration *of ' of the lands, exclusive of the improvements
$l,000,which deed also included part of Hare's made since the sale. (1 N. R. L., 60.) It has
land and contained full covenants. ( been settled by this court that dower is to be
The tenant offered to prove that he had | taken according to the value pf the land at the
erected and made on the premises valuable j time of alienation. (2 Johns., 484 ; 11 Johns.,
buildings and improvements, which testimony | 510.) But in what manner, and at what time
was objected to by the demandant's counsel, | that value is to be ascertained, has not been
and rejected by the judge. The counsel for
the tenant then contended that the demandant
was entitled to recover her dower in the moiety
of the farm only, and not in the whole farm;
that the deed from J. and C. Dolf, with full
covenants, was evidence of seisin in J. of a
decided. It is barely hinted at in the case of
Humphrey v. Phinney, 2 Johns., 484, and the
books do not furnish us with much light
on the subject. As it is an inquiry growing,
in some measure, out of the statute, the court
has an unqestionable right to adopt such prac-
moiety only, and that the demandant was ( tice as shall seem most expedient. This value
estopped by the deed from claiming dower in I can only be ascertained in one of three ways ;
more than a moiety. The judge charged the ! either by the jury upon the trial of the issue,
jury that the demandant was entitled to re
cover her dower in the whole farm ; and the
jury found a verdict for the demandant gener
ally, and that J. Dolf aliened the premises on
the 8th of May, 1792.
or by the sheriff on the writ of seisin, or by a
writ of inquiry founded on proper suggestions:
either of which would probably be unexcep-
tionable. Bui in this case, as the issues have
been already tried, recourse must be had to
The tenant moved for a new trial, and the one of the two latter modes above suggested,
cause was submitted to the court without
argument.
Per Curiam. This case is very obscurely
drawn, and it is a little difficult to ascertain
the facts necessary to decide one of the points
which appears to have been made upon the
trial, to wit: in what part of the farm the '
demandant had a right to recover dower. The
better conclusion fiom the case is, that what is
meant by the whole farm is the one hundred
and tit'iy acres purchased by Jonathan Dolf,
the late husband of the demandant, and his
brother Charles ; and that the defendant is in
possession only of one half of that farm, being
the moiety which, on a division between
Charles and Jonathan, fell to the latter ; and
Judgment accordingly.
Cited in-17 Wend., 185; 4 Barb., 185.
*AMORY ET AI,. v. M'GREGOR. [*24-
Shipment Contrary to Non-intercourt* Act De
ve»t» Title of Otcner — Declaration of War
Virtually Repealed the Act— Though Trading
irith Enemy w lUfgal, the Withdrawal of
Good* from Enemy"* Country i* Isgal —
Measure of Damage* for hon-delitery i*
the Value at Port of Delivery.
Goods shipped, contrary to the Non-intcrcouree
. i Law of the United States, were forfeited Immedi-
the only difficulty that appears to be created ately. and the owner's property devested by the act
is, that when Jonathan conveyed his part to i of shipment.
tin- ili-fi-ml-iiii < Ii-Lilr- aim* ioined with him i * But K""ds shipped in (ireat Britain, after the deo-
l!"'. l/" tn ,™ ' laration of war/were not forfeited by the Non-
ill the deed ; from which circumstance it is intercourse Act which was virtually repealed by
contended, on the part of the defendant, that j the delaration of war.
Charles and Jonathan are to be deemed tenants | ^^JS&ff^KS^&iSffyff^Si
in common of the land so conveyed to the rtn4W hig property from the country of the other
defendant,- and the widow only entitled to ' belligerent, provided he itix-s it within a reasonable
dower in the moiety belonging to Jonathnn. I *
If this be the correct construction of the case,
there can be little doubt that the demandant is
entitled to dower in the'whole of the seventy-
five acres which it is supposed the deed con
\Vli<-re ffoods were shipped In (Jn>at Britain, after
the declaration of war, to be sent to the United
fltrtw. on account of an American citizen, and the
ajrt'nt of the charterer of the ship procured the
:ind eanro to be captured Mprae of war bv a
tains. This deed might be prima facie evidence i British cruiser, and libeled in the Vice Admiralty
JOHNS. REP., 15. 997
24
SUPREME COURT, STATE OF NEW YORK.
1818
Court in New Providence : and the cargo, of which
the goods in question were part, were claimed by
the agent of the charterer, and various other per-
sons, who, in their petitions, alleged that, if it were
transported to the United States, it would be for-
feited, under the Non-intercourse Law ; it was held
that the goods were lost by the act of the defendant,
the charterer of the veesel, who was liable on the
bill of lading;theshipment,under the circumstances,
not being illegal, as a trade with an enemy, and if
the Non-intercourse Act were still to be deemed
in force, there could be no doubt that the for-
feiture would have been remitted, under the Act of
Congress of January 2d, 1813 ; but, as the defendant
had not acted fraudulently, interest was not allowed
to be recovered on the value of the goods.
In an action for the non-delivery of goods, pursu-
ant to a contract of affreightment, the measure of
damages is the value of the goods at the port of
destination.
Citations— 11 Johns., 293; Act Jan. 2, 1813 ; 8 Cranch,
155, 384, 421, 434 ; 8 T. R., 554; 9 Cranch, 131, 147; 3
Craoch, 219 ; 8 Johns., 213.
was an action of asswmpsit, on a con-
-L tract for the transportation of goods, on
board the ship Indian Hunter, from Liverpool
to New Orleans.
The Indian Hunter was an American ship,
owned by an American citizen, residing in New
York, and was chartered by the defendant, a
citizen of the United States, then residing and
trading in Liverpool. William Maitland & Co.,
of Liverpool (a firm consisting of two persons,
both naturalized citizens of the United States,
one of whom resided in Liverpool, the other in
New York), as agents for the plaintiffs, who were
citizens of the United States, resident in New
Orleans, shipped on board the Indian Hunter,
on account of the plaintiffs, nine trunks and
one bale of dry goods, and one hundred and
twenty-seven crates of earthenware, being ar-
ticles of the produce and manufacture of Great
Britain, to be carried from Liverpool, and
delivered to the plaintiffs at New Orleans.
Previous to the shipment of the goods, war
was declared by the United States against Great
Britain; but the fact was not known in Liver-
pool until a day or two after they were shipped,
in consequence of which an application was
made by the persons interested in the vessel
and cargo for a license from the British govern-
ment, to protect the property from capture by
British cruisers. A license was granted, and
the vessel sailed with it on board on the 25th of
25*] July, 1812, for *New Orleans. On the
19th of August she was captured by a British
privateer, and taken into New Providence; but,
in consequence of the license, was released by
the captors. When about leaving New Provi-
dence, to proceed on the voyage, she was
arrested by a process issuing out of the Court
of Admiralty, which was obtained upon the
petition of Peter M'Gregor, who sailed on board
the vessel, and represented himself to be the
agent of the defendant, and»which stated, that
in consequence of (he release of the ship, the
master was about to proceed with the ship and
cargo to New Orleans, where they would be
seized by the American government and for-
feited, as importing her cargo contrary to the
laws of the United States, then in force, and
that the goods would thereby be lost to the
owners, or underwriters thereon, who were
British subjects. The master of the ship, how-
ever, put in a claim, and the petition was dis-
missed.
The Indian Hunter was then, at the request
998
of P. M'Gregor and one Stewart, who was also
on board the ship when she sailed from Liver-
pool, and was proceeding with her to New
Orleans, as the agent and consignee of the de-
fendant, captured by Captain Ross, of the Brit-
ish public ship Rhodian, as prize of war, on
their giving a bond to Ross for his indemnity.
The vessel and cargo were libeled in the Vice-
Admiralty Court, and an unlivery of the
cargo was made, by the order of the court, on
the petition of P. M'Gregor. Claims were
filed by P. M'Gregor, and other persons resid-
ing in New Providence, for different parts of
the cargo ; and among others, one Miller, of
New Providence, a partner in the firm of Mil-
ler, Craigie, & Co., claimed the goods in ques-
tion, as the property of W. Maitland & Co.,
but it did not appear that Miller, or his part-
ners, had any authority from them, or were
in any wise their agents. It was alleged, in
the several claims, that if the goods were
transported to New Orleans, they would be
seized and forfeited, for being imported con-
trary to the laws of the United States, then in
force ; and in proof of this allegation, the
claimants adduced a copy of a circular letter
from Mr. Gallatin, then Secretary of the Treas-
ury, to the Collectors of the Customs of the Unit-
ed States, in which he says: "The Non-impor-
tation Act, being *styi in force, must, in [*26
every respect, be carried into effect It is
your duty to seize and libel British merchan-
dise, in whatever manner, or by whomsoever
it may be brought or sent into the United
States, with the exception only of property
captured, &c. In the cases which, from pe-
culiar circumstances, may be entitled to relief,
this can be granted only by a special Act of
Congress, or upon application for a remis-
sion of the forfeiture, &c." A decree was
pronounced in favor of the claimants, and the
goods in question were delivered to Miller,
Craigie, & Co. , who sold the same for the net
sum of £1,652 lls. lid. sterling, which was
remitted, by consent of both parties, to Mait-
land & Co., who now hold the same for
whom it may concern, without prejudice to
the rights of either party. The jury found a
verdict for the plaintiffs for $23,505.02, being
the amount of the invoice price of the goods,
adding eighty percent., the profits which they
would have sold for at New Orleans, and in-
terest, subject to the opinion of the court,
who, if they thought the plaintiffs entitled to
recover, were to state the principles by which
the amount of the recovery was to be ascer-
tained, and judgment was to be entered ac-
cordingly.
Mr. D. B. Ogden, for the plaintiffs. It is
admitted that the defendant was bound, by
the bill of ladfng, to deliver the goods of the
plaintiffs at New Orleans ; and the question is
whether the plaintiffs are now entitled to re-
cover damages for the non-delivery of them.
It will be said that the voyage was illegal ;
but the defendant knew of that illegality, and
the court will not, unless compelled by some
rigid principle of law, permit such a defense
to avail him. By the Act of Congress, called
the Non-intercourse Act (L. U. S. , Vol. IX.,
pp. 243, 248, 10th Cong., sess. 2, ch. 91), all
goods imported into the United States con-
trary to the provisions of that Act, are de-
JOHNS. REP.. 15.
1818
AMORT v. M'GREOOR.
26
clared to be forfeited ; and if goods are put
on board of any ship. &c., with intention
to import the same into the United States,
contrary to the true intent and meaning of
the Act, &c., they are to be forfeited. In or-
der to judge of the intent, thecourt must look
into the circumstances of the case. Bv the
27*] Act of the 2d of March, 1811 *(llth
Cong., sess. 2, ch. 96, sec 2). Congress de-
clared that in case Great Britain should so re-
voke or modify her edicts (orders in council),
as to cease to" violate the commerce of the
United States. &c.. the Non-intercourse Act,
as regarded Great Britain, should cease. Now,
before the goods in question were shipped,
the orders in council were revoked, and the
plaintiffs, with perfect good faith, put the
goods on board of the ship, with a well-
grounded belief that the Non-intercourse Act
would cease to operate before their arrival
in the United States. They were not put on
board with any intent to violate the Act of
Congress.
Again ; it will be said that this was a con-
tract, or trading with the enemy, during war,
and therefore illegal. But this was an Ameri-
can ship, owned by citizens of the United
States, and the goods were actually laden on
board before any knowledge of war. Both
parties to the contract are American citizens ;
and the goods were placed under the flag of
the United States before the declaration of
war was known in Liverpool. It was not,
therefore, a trading with an enemy. Besides,
an American citizen, who happens to be in the
country of the enemy when war intervenes,
has a right to withdraw himself, with his ef-
fects, within a reasonable time/ This right
was not denied by the Supreme Court of the
United States in the case of The St. f^wrence,
D Cranch, 120, in which this defendant was
the claimant. It would be strange, indeed, if
this were not the case.' Why is it unlawful to
trade with an enemy ? Because it adds to his
resources. Does this reason apply to the case
of a person's withdrawing himself, with all his
funds, from the enemy's power, as soon as the
war is known ? Can it be his duty to remain
in the enemy's country, with his property, to
the end of the war ? In the case of The
Thonui* Gibbon*, 8 Cranch, 424, the Supreme
Court of the United States decided that a ship-
ment from Great Britain, made even after a
knowledge of the war, was to be considered as
having been made in consequence of the re-
peal of the orders in council, if made so soon
as to afford a reasonable presumption that the
knowledge of that repeal would induce a sus-
pension of hostilities on the part of the United
States.
28*] *It may, perhaps, be objected that the
Indian Hunter had a British license on board.
It is, however, nothing more than a permit for
American citizens to return to their own
country with their property, unmolested. And
the President of the United States, In his
instructions of the 28th of August, 1812, to
the commanders of our ships of war, directs
that such vessels were not to be molested ; and
the capture of an American vessel sailing from
England, in August, 1812, in consequence of
the repeal of the orders in council, contrary to
the President's instructions, has been decided
JOHNS. RKP., 15.
to be illegal. (The Mary, 8 Cranch, 328 ; 8.
C., 9 Cranch, 126.)
Did, then, anything occur during the
voyage to excuse the non-delivery of the goods
j pursuant to the contract ? As a* common car-
| rier. the defendant must be liable for the non-
delivery, unless prevented by the act of God
or a public enemy. For a failure or loss aris-
ing from any other cause, he must be respon-
sible. The "defendant could not be justified
for placing the property in the hands of the
enemy, from a beliet', however strong and well-
founded, that itfwould be seized as forfeited
to the United States on its arrival at New Or-
leans. If trading with any enemy be illegal,
such an act must be equally so. Besides, there
was better reason to suppose, that if the prop-
erty should be seized, it would, under the cir-
cumstances of the case, be released ; and we
find, afterwards, that an Act of Congress was
passed January, 2, 1813, authorizing the Sec-
retary of the Treasury to remit all forfeitures
and penalties as to property so circumstanced.
Whether M. & 8. we're the agents of the de-
fendant or not can make no difference ; the de-
fendant is answerable for their interference ;
(Van Omeron v. Dmefek, 2Campb., 42 ; Reid
v. Darby, 10 East, 143; Id., 878. Hunter v.
Prinsep.)
As to the measure of damages, we contend
it ought to be the value of the goods at New
Orleans, or eighty per cent, added to the in-
voice price.
Me*#r». J. T. Irving and Golden, contra. 1.
There can be no doubt of the intention of Con-
gress rigidly to enforce the Non-intercourse
Acts. A brief history of those Acts is to be
found in 2 Wheat., 277. It was illegal for the
parties *to enter into. any contract in f*29
violation of those Acts. Where a contract is en-
tered into, the execution of which will violate
the laws of the country, such contract is void.
If illegal and void in its inception, every sub-
sequent step towards the performance of it
must be equally unlawful. All contracts and
agreements contrary to statute are void. (1
Fonbl. Eq., bk. 1. ch. 4 sec. 4, n. 9 ; 1 Com.
on Cont,, 30; 4 Dall.. 269. 298, 808. 842; 1
Binn., 110 ; Cowp., 341 ; 3 T. B., 454 ; 1 Bos.
& P., 551 ; 5 T. R.. 599 ; 2 Lev.. 174; 2 H.
Bl.. 879; 2 Wils., 188; 1 P. Wms.. 192.)
Whatever may have been the intent of the
parties, the bringing the goods into the Unit-
ed States was manifestly against Jaw. The
President's proclamation was evidence merely
that the Acts ceased to be in force, and until
the proclamation was made, they must con-
tinue in full operation. The shipment of the
goods, therefore, being illegal, they were, tp*>
facto, forfeited to the United States. (Fon-
'taine v. Phcenixln*. Co., 11 Johns.. 800.)
2. This was a contract between enemies dur-
ing war. The plaintiffs were citizens of the
United States residing- at New Orleans, and
M'Gregor was a naturalized citizen, domiciled
at Liverpool, and carrying on trade in the
enemy's country; and therefore to be regarded
as an enemy. "(8 Rob. Adm., 22. 28. 25; 4
Rob. Adm., 186 ; Chitty's L. of N.. 25. 88.40;
I Rob. Adm.. 102; 8 T. R.. 81. 561 ; 4 Rob..
232.) The moment that war was declared, H
was unlawful for the parties to contract, or to
proceed in the execution of a contract already
999
SUPREME COURT, STATE op NEW YORK.
1818
made. Contracts Jmade before war are sus-
pended by it, and may be enforced after its
termination ; but contracts with an enemy
during war are absolutely void. After a dec-
laration of war, an American citizen cannot
withdraw himself, with his property, without
the permission of his government. That prin-
ciple applies only to neutrals, and they must
withdraw without delay : otherwise, by a resi-
dence in the enemy's country, they will lose
their neutral character. (The Rapid, 1 Gall.,
295 ; S. C., affirmed on appeal, 8 Cranch,
155, 200 ; Pott v. Bell. 8 Id R., 599 ; Tim,
Mary, 1 Gall., 620; S. C., on appeal, 8
Cranch, 388 ; 4 Rob. Adm., 195, 202 ; 5 Rob.,
3O*] 141 ; The Fi'ancis, Dunham & *Ran-
dolph, claimants, 1 Gall., 445 ; S. C., affirmed
on appeal, 8 Cranch, 354.) In the case of
The Francis, Story, J., says: "A state of
war puts an end to all executory contracts be-
tween the citizens of the different countries.
Whatever contract remains in fieri is either
suspended or dissolved, flagrante bello ;" and
he puts a case, as a familar instance, of the
contract of charter-party, as being dissolved
by the breaking out of war. In the case of
Tlie Rapid, the same learned judge lays down
the principle, as clear and well settled, that all
trade with the enemy, unless with the permis-
sion of the sovereign, is interdicted, and sub-
jects the property engaged in it to confisca-
tion. War puts "every individual of the re-
spective governments, as well as the govern-
ments themselves, in a state of hostility with
each other." Again ; having a British license
is illegal, and having an American license can-
not neutralize that illegal act ; nor does the
Act of Congress, remitting the penalties or
forfeitures which had arisen, render that legal
which was unlawful in" its inception.
3. The capture at New Providence was a
peril excepted in the bill of lading ; it was a
vis major, which excused the non-delivery of
the goods.
As to the quantum of damages, the true
measure is the invoice price of the goods.
(Smith v. RicJiardwn, 3 Caines, 219 ; Bridge v.
Austin, 4 Mass., 115.)
Mr. S. Jones, Jr., in reply. .1. It is said the
contract was illegal ; (1.) Because it was a
violation of the Non-intercourse Act ; and
(2.) Because it was a trading with an enemy,
war having intervened. As it regards the citi-
zens of the United States, the Non-intercourse
Act and the declaration of war cannot both be
enforced at the same time. The one must be
merged in the other. War dissolves all duties
and obligations existing between the two
countries and their citizens, who become mut-
ual enemies. The one is a municipal, the
other a public law. The consequences, also,
are very different. By the Non-intercourse
Act, the property seized for a violation of the
Act is forfeited, ipso facto, to the United
States By the law of nations, the property
taken, jure belli, belongs to the captor. If the
31*] Act of Congress is deemed *to be in
force against Great Britain, after the declara-
tion of war, it would produce great inconsis-
tency. In the case of The Rapid, Story, J.,
intimated his opinion to be that that the Non-
importion Act was swallowed up in the more
extensive operations of the law of war. The
1000
same opinion was expressed by him in the S.
C. of the United States, in the case of The
Sally Porter, 8 Cranch, 382. The circular let-
ter of the Secretary of the Treasury, it is true,
holds out a different opinion ; but the S. C.
of the United States have established the law.
The Act remained in force only as to neutrals;
and that, perhaps, was the reason why the
President of the United Slates did not issue
his proclamation on the subject. At all events,
as between Great Britain and the United
States, the Act was a dead letter.
The 2d section of the Act of the 2d of
March, 1811 (llth Cong., sess. 3, ch. 96) de-
clares, that in case Great Britain should re-
voke or modify her orders in council, &c., the
fact should be declared by the proclamation
of the President, and the "restrictions, &c., of
the Non-intercourse Act, should then cease.
Great Britain having absolutely revoked her
orders in council, the Non-intercourse Act
was substantially at an end. All that wa»
wanting was legal evidence of the fact, that is,
the President's proclamation. Though the
President thought proper to withhold that evi-
dence, yet the state of things produced by the
revocation .of the orders in council amounted,
at least, to a license by government to import
from Great Britain. In The Mary and Susan,
1 Wheat., 25, 45, the Sup. Ct. of the United
States say : " It is well known that the con-
tinuance of the laws of non-intercourse were
considered as depending on the continuance
of the orders in council." In the case of The
Thomas Gibbons, 8 Cranch, 421, and TheMai-y,
9 Cranch, 126, the shipping of the goods,
in consequence of the revocation of the orders
in council, was held to be execusable. The
Sup. Ct. of the United States considered the
Act of the 2d of March, 1811, as tantamount to
a license. A stronger case cannot be imagined
of a person honestly acting on the faith of
government. Indeed, the Act of Congress
passed January 2, 1813 (12 Cong., sess. 2, ch.
149), remitting the penalties and forfeitures
under the Non-intercourse Act, virtually de-
clares *that importations from Great [*32
Britain, in consequence of the repeal of the
orders in council, and before the war was
known to exist, being made on the faitli of
government, were not wrongfully made, or in
violation of law.
2. It is objected that this contract was a
trading with the enemy, and therefore,, unlaw-
ful and void. But we contend that this was
not a trading, but a mere withdrawing, by an
American citizen, with his goods, from the
enemy's country. Unless the party has act-
ually traded, of, by delaying his departure,
has been guilty of fault, he may lawfully with-
draw himself and his property. He cannot, it
is true, negotiate with the enemy ; but, if he
seizes the earliest opportunity to escape with
his property, he cannot be considered as violat-
ing his duty, or committing an unlawful act.
If, by the general law of nations, a citizen of
one country, who happens to be in another,
on the breaking out of a war, has a reasonable
time to withdraw himself, he may, if not pre-
vented by the enemy, take his funds with him.
By the Act of Congress passed the 6th of July,
1812, after the, commencement of the warj(12th
Cong., sess. 1, ch. 129, sec. 6), British subjects
JOHNS. REP., 15.
1818
AMOKY v. M'GREOOR.
were allowed six months to withdraw their
property from the United States. In The Juf-
frmo Catharina, 5 Rob., 144, Sir William Scott,
though be asserts the general rule, that there
ought to be a license from the government,
yet, where the party had ordered goods to be
sent from the enemy's country before the war,
which he had no opportunity to counter-
mand after the war, he ordered the goods to
be restored to the claimant. So, in The Ma-
doniui I)elle Grade, 4 Kob., 195, the special
circumstances of the case were deemed a suffi-
cient excuse for not having a license. The
cases cited on the other side do not apply. In
the leading case (The Rapid) Mr. Harrison,
after the war, went from Eastport to an island
within the territory of the enemy, to obtain his
goods. An involuntary act, though within
the letter of the law, is not to be so construed
as to subject the party to the penalty of the
law. (Jen fa v. Unlit it. 1 Cai. Gas. in Er.,
48.) In the present case, there was not only
a constructive license, arising from the Act of
33*1 Congress, and the revocation of the *or-
ders m council, but an express license, in the
President's instructions of the 28th of August,
1812.
The whole current of authorities is in favor
of the claims of American citizens, under such
circumstances ; and on this principle have the
admiralty courts of the United States pro-
ce«ded in the acquittals in favor of such
claims.
As to the objection of the vessel's having a
British license, we admit, that, for any other
purpose than that of returning home with his
property, it would be unlawful for an Amer-
ican citizen to take it. But where it is merely
for his protection on his way home, and not
for the purposes of trade, it cannot have the
effect to destroy his American character. If
there could be any doubt of the intention, or
the i->ii>i fides of this transactions, that was a
question for the jury.
Again; if the President's instructions per-
mitted the importation into the United States,
the defendant cannot allege any illegality as
an excuse for the non-delivery of the goods.
Whether they would be seized or not, on their
arrival in this country, was a question which
concerned the plaintiffs only. If the defend-
ant had a right to refuse to proceed to the
United States, then it was his duty to return
back to his port of departure. Instead of do-
ing this, he sells the property in the enemy's
port; and was thus guilty of an act of illegal-
ity, the consequences of which he seeks to
Uirow on the plaintiffs. Under the circum-
stances of the case, it was his duty to have
come to the United States, and justified his
conduct before the tribunals of this country.
THOMPSON, Ch. J., delivered the opinion of
the court :
The first question that arises is, whether this
shipment was not made contrary to the Non-
intercourse Act, so that the goods were there-
by forfeited, and the plaintiff's title gone. If
the Non-intercourse Law was in full force and
operation at the time of the shipment, I <1 >
not see why the principles which governed the
case of Fontaine v. The Phaenft Int. Co.. 11
Johns., 298, would not apply. The forfeiture
JOHNS. UK iv. 15.
was incurred by the act of putting the goods
on board, with intent to import the same into
the*United States; and according to the [*34
principle adopted in that case, the owner loses
his right to the property immediately on the
commission of the act which produces the for-
feiture. There is, however, a distinction be-
tween i he two cases. Here the circumstances
may warrant the conclusion that the shipment
watt made under an impression and belief that
the repeal of the orders in council would ter-
minate the differences between the two nations,
and that the Noi* intercourse Act would not be
enforced. And the subsequent Act of the 2d
of January, 1818, shows the reasonableness of
such opinion, by remitting the forfeiture, in
cases where the shipment was made under such
belief. But it has been decided in the Supreme
Court of the United States, that the declara-
tion of war virtually repealed and annulled
the Non-intercourse Act, as between us and
Great Britain. In the case of The Sully, 8
Cranch. 884. the court say, the municipal for-
feiture, under the Non-intercourse Act, was
absorbed in the more general operation of the
law of war. The property of an enemy seems
hardly to be within the purview of mere mu-
nicipal regulations, but is confiscable under
the^'w* gentium. If, by the declaration of war,
on the 18th of June, 1812, the Non-Intercourse
Act ceased to be in force, there was nothing
making it unlawful for the plaintiffs to import
the goods in question, except the existence of
the war itself. The question is then presented,
as to the right of an American citizen, at the
breaking out of war, to withdraw his goods
from the enemy's country. Whether these
goods were liable to British capture is not the
question before us. This branch of the de-
fense is placed on the ground that it was an
illegal act, on the part of the plaintiffs, to
withdraw these goods; and that, therefore, a
court of justice will not enforce any contract
growing out of such illegal conduct." That all
trading with an enemy is illegal, is a general
and well settled rule. The principle is recog-
nized and sanctioned as well by the common
law as by the maritime codes of all European
nations. (8 T. R, 554.) It is a wise and salu-
tary rule; but it would require the most direct
and controlling authority, to satisfy my mind
that the mere act of withdrawing goods from
the enemy's country, at the breaking out of a
war, *comes within the reason or policy [*35
of the rule; and no case has fallen under my
observation that has pressed the principle thus
far. Several cases, in the Supreme Court of
the United States, have been referred to as
containing that doctrine; but, on examination,
they will not be found to support it. The case
of The Kapid, 8 Cranch, 155, has been relied
on as one of the strongest. But that case was
essentially different from the present, and de-
cided upon a very distinct principle. Harrison,
the claimant, who was an American citizen,
had purchased a quantity of English goods,
before the declaration of war, and deposited
them on a- small island belonging to the En-
glish, near the line between the United State*
and Nova Scotia; and after the declaration of
war, he sent a vessel, licensed and enrolled for
the cod fishery, and brought the goods away,
which, on their return, were captured by au
1001
SUPREME COURT, STATE OF NEW YORK.
1818
American privateer, and condemned, in the
Circuit Court of Massachusetts, for trading
with the enemy. On appeal, this sentence was
affirmed. Judge Johnson, in delivering the
opinion of the court, expressly waives giving
any opinion upon the point now under con-
sideration, although, in very strong and em-
phatic language, he interdicts all intercourse
with the enemy. In a state of war, he says,
nation is known to nation only by their armed
exterior, each threatening the other with con-
quest or annihilation. The individuals who
compose the belligerent state*; exist, as to each
other, in a state of utter occlusion. In war,
every individual of one nation must acknowl-
edge every individual of the other nation as
his own enemy. Trading, says he, does not
consist in negotiation or contract, but the ob-
ject, policy and spirit of the rule is, to cut off
all communication, or actual locomotive in-
tercourse, between individuals of the belliger-
ent states. Contract has no connection with
the offense. Intercourse, inconsistent with
actual hostility, is the offense against which
the operation of the rule is directed. But,
after thus narrowing all intercourse, he says,
whether on the breaking out of a war, the
citizen has a right to remove to his own coun-
try, with his property, is not the question be-
fore the court. The claimant had no right to
leave the United States, for the purpose of
bringing home his property from an enemy's
36* J *country. This was the point on which
the decision turned. So, again, in the case of
The St. Lawrence, 8 Cranch, 484, the court say
they do not mean to decide on the right of an
American citizen, having funds in England, to
withdraw them, after a declaration of war, or
as to the latitude which he may be allowed in
the exercise of such a right, if it exists. That
Judge Story did not mean to be understood as
deciding this question, in the case of The Rapid,
is evident from what fell from him in the case
of The St. Lawrence, when again before the
court (9 Cranch, 121); he says that it is not the
intention of the court to express any opinion
as to the right of an American citizen, on the
breaking out of hostilities, to withdraw his
property, purchased before the war, from an
enemy's country. Admitting such a right to
exist, it should be exercised with due diligence,
and within a reasonable time after the knowl-
edge of hostilities.
Thus it will be seen that this question never
has been decided in the Supreme Court of the
United States. And, from the guarded and
cautioqs manner in which that court has re-
served itself, upon this particular question,
there is reason to conclude, that when it is dis-
tinctly presented, it will be considered as not
coming within the policy of the rule that ren-
ders all trading or interc6urse with the enemy
illegal,
In Hattet & Bowne v. Jenks, 3 Cranch, 219,
the question before the court involved the in-
quiry, as to what circumstances might excuse
a trading, without incurring the penalties of
the Non-intercourse Act of 1798. Ch. J.
Marshall, in delivering the opinion of the
court, observes that even if an actual and gen-
eral war had existed between this country and
France, and the plaintiff had been driven into
a French port, a part of his cargo seized, and
1002
he had been permitted to sell the residue, and
purchase a new cargo, it would not have been
deemed such a traffic with the enemy as
would vitiate the policy upon such new
cargo. According to this opinion, an actual
trading with the enemy may, under such cir-
cumstancee, be deemed lawful. Independent,
however, of this general question, the with-
drawing of the goods in question, may very
fairly be considered as falling *within [*37
the principle settled by the Supreme Court of
the United States, in the case of The Thomas
Gibbons,. 8 Cranch, 421. It was there held
that a shipment made, even after a knowledge
of the war, may well be deemed to have been
made in consequence of the repeal of the or-
ders in council, if made within so early a
period, as would leave a reasonable presump-
tion that the knowledge of that repeal would
induce a suspension of hostilities on the part
of the United States; and that Congress had
acted upon that principle, by the Act of the
2d of January. 1813 (ch. 149), and fixed the
time (15 Sept., 1812), before which shipments
might be reasonably made, upon the faith of
that presumption. The same doctrine is again
recognized, and more liberally applied, in the
case of The Mary, 9 Cranch, 147. The" ship-
ment, in the case now before the court, was
on the 21st of July, and before the declaration
of war was known in England. From this
view of the case, and the law applicable to it,
we are satisfied that withdrawing the goods,
under such circumstances, could not be con-
sidered an illegal act.
The next inquiry is, whether anything after-
wards occurred to exonerate the defendant
from responsibilty upon the bill of lading;
and we cannot perceive that there has. There
can be no doubt that the admiralty proceed-
ings against the property at New Providence,
after the first release, were by the procurement
of the agents of the defendant. The case
states that the process was procured by Peter
M'Gregor, who sailed on board the vessel from
Liverpool, who was the nephew of the defend-
ant, and represented himself as his agent, on
the suggestion in his petition, that, if the goods
were brought into the United States, they
would be seized as imported contrary to law,
and would be lost to the owners and under-
writers, who were, as he alleged, British sub-
jects. But, upon claim and answer, put in by
the master, the petition was dismissed, and the
vessel and cargo again liberated; and the ship
being about to sail, she was again stopped by a
British armed vessel, by the solicitation and
procurement of the same Peter M'Gregor, and
one William Stewart, who was on board the
ship, and proceeding to New Orleans with her
as the agent and consignee of the defendant,
they giving the captain of the British ship an
^indemnity for such seizure. The ship [*38
and cargo were then libeled, and claims inter-
posed, by different persons, for different parts
of the cargo; and the goods in question were
claimed as the property of Mail land & Co.
The claimants all alleged that if the goods
were transported to New Orleans, they would
be seized and forfeited, as imported contrary
to law; and in support of such allegation,
produced Mr. Gallatin's letter of the 26th of
August, 1812, giving instructions to the col-
JOHNS. REP., 15.
1818
O8TRANDEK V. BROWN.
88
lectors on that subject. A decree was then
pronounced, ordering the goods to be given
up to the claimants; and they were sold, and
the proceeds disposed of as has been stated.
There is no pretense that the persons who rep-
resented themselves to be the agents of the de-
fendant, and who acted as such, were not so
in fact; and if so, be must be answerable for
their acts. Nor is it pretended that the goods
in question belonged to Maitland & Co. All
the representation on that subject was a mere
cover to get hold of the property, which, it
was supposed, would be seized and forfeited,
if sent on to New Orleans. The goods have,
therefore, been lost by the act of the defend-
ant; for if they had gone on, and the Non-in-
tercourse Act had been considered in force,
there can be no doubt that, under the Act of
the 2d of January. 1818, the forfeiture would
have been remitted; for the shipment was
made within the time limited by that Act. and
under circumstances bringing the case express-
ly within its provisions.
The only remaining question is, as to the
rule of damages, by which the amount of the
recovery is to be regulated. This, we think,
ought to be the net value of the goods at New
Orleans, the port of delivery. That was the
rule adopted by this court in the case of Wat-
Jdruton v. Laughton, 8 Johns., 213.
Whether interest ought to be allowed or not,
depends, principally, upon the light in which
the defendant's conduct or that of his agents
is viewed. The jury might have given inter-
est, by way of damages; and the verdict being
subject to the opinion of the court, we are sub-
stituted in the place of the jury. If there was
any fraud or gross misconduct attending the
transaction, interest ought to be allowed. But
39*1 *we are inclined to think the conduct of
the defendant's agents ought not to be stamped
with so odious a character. They appear to
have acted under an impression that the goods,
if sent on to New Orleans, would inevitably
have been seized and forfeited, and entirely
lost to the owners, and that what they did
would promote their interest. So that, upon
the whole, we think interest ought not to be al-
lowed. The verdict must, accordingly, be re-
duced; and the amount of damages liquidated
according to the rule thus laid down.
Judgment for the plaintiffs.
Cited ln-7 Wend.. 618: 13 Wend., 530; 41 N. Y., 573;
* Bos.. 63}; 2 Hall. 401; Abb. Ad., 219; 1 Storey, 135.
OSTRANDEH
».
BROWN AND STAFFORD.
Carrier* — Tender and Acceptance Nec&uary to
Delivery — Placing Goods on Wharf not
U»ag6 — General Cartman not an Agent to
Accept— Carrier Mutt Store Good* not De-
livered.
Where Roods were put on board of the defendant's
vessel to be carried to Albany, and on arriving
there were, by UK- defendant's direction put on the
wharf, it was held that this w as not a id livery to
the consignee, and that evidence of a usage to de-
liver goods in this manner was immaterial, but thai
tlit- defendant was liable in an action of trover for
such part of the goods as was not actually delivered
to the consignee.
And although the goods wen- taken away without
the direction of the consignee, by a cart man usually
or always employed to transport his good*, and the
greater part actually reeei ved by the consignee ; this
yens held not to bo evidence of the delivery of the
part alleged to be lost, as he was not to be deemed
the general agent of the consignee for receiving
his goods.
A carrier is not justified by the inability or re-
fusal of the consignee to receive the goods, "in leav-
ing them exposed ou the wharf, but it is his duty to
secure them for the owner.
IN error to the Mayor's Court of the City of
Albany.
This was an action of trover for a box of
tea, brought h\ the defendants in error against
the plaintiff in error. At the trial before the
Recorder of Albany, in September, 1816. the
plaintiffs below proved that in thespringof 1815
they shipped, with a number of other articles,
on board the sloop George, of which the defend-
ant below was master, two chests of tea, to be
carried to Albany, and delivered to Mounsey
& Olmstead, of that City ; and it was testified
by Hyde, a clerk of Mounsey & Olmstend, that
the George arrived in Albany about the 22d of
May, and that all the goods were received ex-
cept one chest of tea.
Robert Brown, a witness for the defendant
below, testified that soon after the sloop arrived
at Albany,, one of the firm of Mounsey & Olm-
stead came on board and put his *name [*4O
opposite to the entry of the plaintiff's goods
on the sloop's freight list ; but it was sworn by
Hyde that the name on the freight list was not
the handwriting of either of the consignees.
Brown further stated that the. goods of the
plaintiffs were put on the dock together, and
were taken away by one Carle, a curt man who
was the general cartman of Mounsey & Olm-
stead, for carrying goods from the different
sloops to their store..
The defendant offered to prove that it was
customary in the City of Albany for the cap-
tains of vessels freighted with goods for mer-
chants in that place, to deliver them by putting
them upon the dock, and giving notice to the
consignees, who usually had cartmen to con-
vey them to their stores, and that such de-
livery with notice, was, by custom, considered
a good delivery. The counsel for the plaintiffs
objected to this testimony and it was overruled.
The plaintiffs then offered Carle, the cartman, as
a witness, who was objected to on account of
interest, but was- admitted by the court. Carle
testified that he had often carried goods from the
sloops for Mounsey & Olmstead; that at the time
NOTB.— Common Carrier*— Delivery.
The I in I > Hi ty nf common carrier* contimu-jt till The
delivery of tht «VKH»X transported by them. IV Mntt
v. Laraway. 14 Wend., 225; Price v. Powell. 3 N. Y.,
322; Me Andrew v. Whitlock, 52 N. Y., 40; Gibson v.
<'ulvr, IT Wend.. :>V> ; Redmond v. Steamboat Co..
46 N. Y., 578: Goodwin v. B. & (). Ry. Co.. 58 Barb..
195; Rawsonv. Holland. 69 N. Y.. all: Smith v. Ky.
Co.. 27 N. H.. 86; American Express Co. v. Baldwin.
JOHNS. REP., 15.
36 III., 5W; Graff v. Bloomer. 9 Pa. St.. 114; Parker
v. Klagg. 26 Me.. 181 : Ersktoc v. Thomas, « Miss..
:J71 ; 1'iekett v. Downer. 4 VU, 21. See, also, Powell
v. Meyers. 28 Wend., 591; Cole v. Goodwin. 19
\V.-nd.'. -'.".I.
Mfrelii landing the goods on the vhmf at the end
of the poj/nge. is not a' good delivery. Tender and
acceptance is necessary. Price v. Powell. 3 N Y.,
:fi2 Klsk v. Newton, 1 Den., 45; Gibson v. Culver,
1003
40
SUPREME COURT, STATE OF NEW YOKK.
1818
when the chest of tea was lost, after the sloop
had arrived at the dock, he saw oneKeeler.who
told him that there were some goods on board
for Mounsey & Olmstead, and that he must go
and take them away ; that he carried one load
one day and another load the next, and be-
lieved that he carried all the goods of Moun-
sey & Olmstead that were shown him, to their
store, who paid him for the cartage. He
further testified that a part of the goods had,
by mistake, been put into a wagon from
whence he took them. The jury found a ver-
dict for the plaintiffs below, the defendants in
error, the Recorder having charged that Carle,
under all the circumstances, was not such an
agent of Mounsey & Olmstead as to render a
delivery to him a legal delivery.
A bill of exceptions was taken on the part. of
the defendant below, which was removed into
this court by writ of error.
Mr. Foot, for the plaintiff in error, contend-
ed : 1. That the ptoof offered of the usage
ought not to have been rejected. In Smith v.
Wright, 1 Cai., 43, evidence of usage was «d-
41*] mitted;*and the court say that "the true
test of a commercial usage is its having ex-
isted a sufficient length of time to have become
generally known, and to warrant the presump-
tion that contracts are made in reference to it."
(Rushford v. Hadfield, 7 East, 224.) In War-
del v. Mourillyer, 2 Esp., 693, which was an
action against a hoyman for not delivering
goods, Lord Kenyon left it to the jury to de-
cide what was the custom as to landing the
goods at a particular wharf. And many cases
are to be found in the English books of evi-
dence of usage or custom being received.
(Syeds v. Hay^l T. R., 260; Hyde v. Trent.
Naviff. Co., 5 T. R., 389, 397; Cafley v. Win-
tringham, Peake's N. P. Cas. , 150 ; Abbott on
Ships, 247.) The time when the liability of
the carrier is to cease depends on the custom
of the particular place. (2 Com. on Cont. ,
329, 330.)
2. A delivery to an agent or servant, is a
delivery to the principal. The cartman in this
case, being in the usual employment of the
plaintiff, must be deemed, pro hoc vice,b\s agent.
3. A delivery on the wharf, or at the dock,
is, by law, a good delivery. Thts seems
to be admitted in the case of a common carrier
from port to port. (3 Wils., 429; 2 W. Bl.,
916 ; 5 T. R., 389 ; 4 T. R., 581.)
Mr. Hale, contra. This is an action against
a common carrier, who is held to very strict re-
sponsibility. Nothing but the act of God or
a public enemy will excuse him for a non-de-
livery of the goods intrusted to his care. The
delivery must be either to the party himself or
to some person authorized by him to receive
the goods. Putting the goods, especially
where they are perishable articles, on a wharf
or deck, cannot be a good delivery. In the
case of Wardell v. Mourillyer the delivery was
made to a wharfinger, not merely by putting
them on a wharf. In England a wharfinger is
an officer or agent well known in the law, and
who is responsible for the safe keeping of the
goods delivered to him. (4 T. R., 260; 7 T.
R., 171; 5 Burr., 2825.)
*No notice was given to the consignee [*42
in this case of the delivery of the goods at the
wharf.
PLATT, J., delivered the opinion of the
court :
In a case where the precise place of delivery
is material, it may be proper to allow evidence
of a local usage. For instance, the usage at
Havana is often proved to show that some
species of cargoes, such as slaves, are to be de-
livered at the Moro Castle, and that other arti-
cles are deliverable only on the wharfs in the
inner harbor. But in this case, it seems to me
that the only question is, not whether the tea
was delivered at the right place, but whether it
was delivered at all to Mounsey & Olmstead.
If it be true that one of the consignees
went on board the vessel and saw a list of the
goods (which I think is not proved), that would
not be evidence of a delivery. The goods were
then in the hold of the vessel. The master
soon afterwards put them on the dock, but not
in the presence nor with the knowledge of
either of the consignees. No notice was given
to Mounsey & Olmstead that the goods, were
unladen or that they had arrived. But a cart-
man who " had often carted for them," and
who, no doubt, had often carted for fifty other
persons, came, by the direction of Mr. Keeler (a
stranger to the plain tiffs below), and on that day
carried one load to the store of the consignees ;
the residue was left all night on the wharf, and
the next clay the same cartman found some of
them in a strange wagon, and the box of tea
has not since been heard of. In truth, the only
acts done by Mouusey & Olmstead, or their
clerk, were to receive in store such articles as
the cartman brought to them and pay him for
carting them ; and there is no proof that they
ever had any other knowledge of the goods.
The weight of evidence clearly shows that
neither of them was on board the sloop.
Admitting, then, that the wharf was the place
of delivery, a mere landing of the goods on Ihe
wharf was no delivery. A delivery, in this
case, implies mutual acts of the . carrier and
the consignees.
A tender, merely, of the goods to the con
signees without their acceptance, would not be
a performance of the carrier's *duty in [*43
such a case. Suppose the consignees had been
dead or absent, or had refused to receive the
goods in store, what would have been the car-
rier's duty? Certainly he would have no right
to leave them on the wharf or in the street,
without protection. He would not be justified
in abandoning the goods. He had notice that
17 Wend., 305; Packard v. Getman, 4 Wend., 613;
McAndrews v. Whitlock, 53 N. Y., 40. See, also,
Shenk v. Phila. 8. P. C»., 60 Pa. St., 100 ; Western
Transp. Co. v. Daly, 337; Solomon v. Phila., &c.,Co.,
3 Daly, 104 ; Chickerinf? v. Fowler, 4 Pick., 371 ;
Hyde v. Trent & Mersey Nav. Co., 5 T. R., 389;
Hemphill v. Chenle, 6 Watts & S., 63 ; Blin v. Mayo,
10 Vt., 56.
If the consignee cannot he found, the carrier may
store the yoodn for the benefit of the owner, and at his
1004
cost and risk. Fennerv. B. & 8. L. Ry. Co., 44 N.
Y., 505; Fisk v. Newton, 1 Den. ,45; Mayell v.
Pother, 2 Johns. Cas., 371 ; 111. C. Ry. Co. v. Friend,
64 III., 303; Cope v. Cordova, 1 Rawle, 303; Stephen-
son v. Hart, 4 Binjr., 476.
See, g-enerally, Williams v. Holland, 33 How Pr..
137; Bartlett V.Philadelphia, 33 Mo., 356; Herman
v. Goodrich, 31 Wis., 356; Dean v. Vaccaro, 2 Head,
488. See, further, Gibson^v. Culver, 17 Wend., 305,
note.
JOHNS. REP. 15
1818
MUNN v. PRESIDENT, ETC., COMMISSION Co.
43
Stafford & Brown were the owners ; and if
Mounsey & Olrastead would not take charge
of the goods as consignees, he ought to have
secured them on board his vessel or in some
other place of safety; and that would have en-
titled him to his freight with all extru charge*.
The decision of the court below on the ques-
tion of local usage, was on a point which is im-
material in this case.
The second exception was, I think, projxjrly
abandoned on the argument ; and the opinion
of the court below on the last point, to wit :
that the cartman was not to be regarded as the
general agent of the consignees, for receiving
'goods merely on the ground of his being often
employed by them to cart goods, was undoubt-
edly correct. Because a merchant usually
select* a cartman, and employs him exclusive-
ly in carrying goods, according to his orders,
it by no means follows that such cartman is
his general agent for receiving goods, without
ordert.
The defendants in error are, therefore, en-
titled to judgment.
Judgment accordingly.
Cited In— 17 Wend., 307 ; 6 Hill, 167 ; 3 N. Y., 338 ; 10
N. Y.,438; 34 N. Y.,501; 46 N. Y., 583; 52 N. Y.,45;
57 N. Y., 557 ; 76 N. Y.. 385; 17 Barb., W8; 68 Hurl).,
3SJ ; 22 How. PrM 141 ; 4 Kob.. 498 ; 2 Sweeny, 508.
Stt; 35 Super., 240: 1 Daly, 331; 8 W. Dig., 543; 2
Curt.. 28 ; Olcott. 46, 47, 40 ; 1 Low., 115, 466 ; 48 Ind.,
MM ; 60 Pa. St.. 117.
44*]
*MUNN
THE PRESIDENT AND DIRECTORS OF
THE COMMISSION COMPANY.
1. Corporations — May Act within Act of Incor-
poration. 2. Distinction between Authority
of General and Special Agent*. 3. Negotiable
Paper as Affected by Usury — Where Valid in
• Inception, not Affected by Subsequent Usurious
Agreement — Recovery of Sum Advanced
against Indorser.
A corporation, authorized by the Act of Incor-
poration to employ their stock solely in advancing
money upon goods, and the sale of such goods upon
commission, may law fully accept bills drawn on ac-
count of future consignments, or deposits of goods.
The principal Is liable for the acts of a general
agent, acting within the general scope of hia
authority ; and a third person cannot be affected by
any private instructions from the principal to bis
agent.
Hut the principal is not bound by the acts of a
•pecial agent beyond Ills authority.
A company, incorporated for the purpose of sell-
ing goods on commission, is bound by the accept-
ance of Its general agent of a bill, drawn on the
company, on account of goods, stipulated to be de-
posited with the company, for sale on commission.
Where a bill or note is valid, as between the draw-
er or maker and the payee, so. that the latter can
maintain an action upon it. against the former, it
is valid in the hands of an indorsee, who has dis-
counted it ut a higher rate than the legal rate of in-
terest. and he may recover the full amount of the
bill or note, against the maker or acceptor.
Hut the holder of a note, purchased at a discount
greater than the legal rate, can only recover from
his indoraer the sum which be actually advanced.
A bill or note, drawn for the purpose of being
discounted, at an usurious rate of interest, and in-
NOTK.— Usury— Security valid in inception, not af-
fecttd l>u xulHicquetU uwrioiM agietmcnt. See Hush
v. Livingston. 2 Cal., 66, note.
JOHNS. REP.. 15.
doraed for the accommodation of the maker or
drawer, is void in its original formation.
Citations— ST. R., T60 ; 7 Johns.. 3ft) ; 3 Esp.. 64 : 15
East. 407 ; 2 Johns. Cas., 60 ; 3John«. Cas.. 60, 206 ;
13 Johns., 52.
rpHIS was an action of assttmptit, on a bill of
-L exchange, drawn by Herman Ruggles, in
favor of Oliver Ruggles, or order, on Noyes
Darling, as agent of the defendants, dated the
26th of April! 1814, at sixty days after date,
for $4,500. The bill was* acce'pted by Dar-
ling, as agent, and was indorsed by 'Oliver
Ruggles. The plaintiff was the holder of the
bill. The cause was tried before Mr. Jv*tict
Platt, at the New York sittings, in December,
1815.
By the 2<1 section of the Act of April 9th,
1813 (seas. 86, ch. 150), by which the defend-
ants were constituted a corporation, it is,
among other things, enacted that the stock of
the Company " shall be employed solely in
advancing money, when requested, on goods
and articles manufactured within this State,
or the United States, except salt manufactured
within the same, and the sale of such goods
and articles on commission : Provided, that no
more than lawful interest shall be charged or
received for any money so to be advanced, and
that the usual mercantile commissions, with
the usual charges, shall be charged or received
on such sale, and that no commissions be
charged or received, except upon actual sales:
And provided also, that it shall not be lawful
for the said Corporation to use or employ any
part of the said capital, nor any money, funds
or effects whatsoever, in the purchase or sale
of any goods, wares, merchandise or commod-
ities whatever, other than, and except in ad-
vances in money, on American manufactures,
and selling the same on commission as afore-
said, nor in banking.or in *any moneyed [*45
operations, nor in the purchase or sale of bills
of exchange, or any stock or funds of this
State, or the United States, except in selling
the same, when truly pledged to the said Cor-
poration, for a debt, or debts, due to the same."
By the by-laws of the Company, an agent
was directed to be appointed, whose powers
and duties are thus defined: " The agent will
be required to superintend, generally, the busi-
ness of the Company ; to make contracts, both
for advances and sales, under such directions
as the Board may give from time to time ; to
sign checks for the cash payments of the
Company, which are all to be countersigned
by the Secretary, and to countersign all obli-
gations which may be signed by the President,
with the seal of the Company ; to lay before
the board statements of the affairs of the Com-
pany, when required, and especially at each
regular monthly meeting of the directors, to
give a full and particular statement of the
whole business of the Company." Shortly
after this by-law was passed, a committee of
the directors made a report, in relation to the
duties of the agent, which was accepted by the
Board on the 17th of May, 1813, the most
material parts of which are as follows: " The
committee do not deem it expedient to publish
any proposals for the transaction of business,
excepting that they will receive -on consign-
ment goods of American manufacture, and will
make reasonable advances on the same, charg-
ioo:»
45
SUPREME COURT, STATE OP NEW YORK.
1818
ing the customary commissions and expenses.
They deem it expedient, however, to adopt
certain rules for the guidance of the agent,
who will make known such parts of them as
are proper to individuals proposing to transact
business with the Company. 1. The agent is
authorized to receive on consignment all goods
of American manufacture, and to make ad-
vances on the same not exceeding three fourths
of the market value of such goods, and requir-
ing a receipt for the advance, with promise to
refund, with interest, in case the goods should
not be sold within a limited time, not exceed-
ing one year, or should be insufficient to meet
the advance. 2. The agent, with the advice
of a monthly committee of two directors, may
make arrangements with individuals, or manu-
facturing companies, for the general cousign-
4C*J ment of *their manufactures. 3. The
agent, with the advice of the same commit-
tee, may make reasonable advances on ship-
ments of American manufactures. 4. The
agent shall not make any other appropriation
of the funds of the Company, without the
order of the Board of Directors, except the
current expenses of the Company, and bal-
ances due for sales. 5. The agent may agree
to transact business on the following terms,
&c. , &c. The preceding regulations are deemed
to be sufficient restrictions on the agent, whose
general duties are pointed out in the report
made to the directors, on the 26th of April "
(the material part of which was the by law
above stated) "with which he is expected to
comply." Darling was appointed the agent of
the Company, and was at the same time one
of its directors.
At the time that the acceptance in question
was made, Herman Ruggles gave Darling a
receipt, stating the terms of the agreement en-
tered into between them, and dated the 26th
of April, 1813. This receipt was as follows:
" Received of Noyes Darling, agent of the
Commission Company, his acceptance of ni}'
draft in favor of Oliver Ruggles, at sixty days
from this date, for $4,500, which acceptance
is wholly for my accommodation ; and which
I hereby agree to return to said Noyes Dar-
ling, to be canceled on the 2d day of May next,
or to pay him the amount of said acceptance,
on said 2d day of May, and, as collateral
security, for the return or payment of said ac-
ceptance, on said 2d of May, I have placed,
and do hereby place, in the hands of said
Darling, my three several notes of hand, &c.
And I do agree, in consideration of the ac-
commodation afforded by the Commission
Company, to place in the hands of their said
agent, for sale on commission, one month
from the date hereof, one hundred hogsheads
of domestic distilled spirits." Ruggles neither
paid the amount of the bill, nor delivered it
up ; nor were the spirits deposited pursuant to
the agreement.
An entry of this acceptance was made in
the bill book of the Company by their secre-
tary, and it was offered for discount at the
Merchant's Bank, where it was refused.
Ketchum, a broker, testified, that in April,
1814, he received the bill from Oliver Ruggles
to raise money upon. The broker took the
bill to Fox & Leggett, and offered it to them
47*] *for sale ; they retained it, under the
lOOti
pretense that they wished to examine into the
state of their funds, and in the meantime gave
it to another broker, Franklin, who sold it to
the plaintiff for $4,362.75, and paid the money
to Fox & Leggett ; out of this money they
paid over to Ketchum the amount of the bill,
deducting discount at a higher rate than had
been taken by the plaintiff, and so making a
profit on the transaction. Ketchum paid over
the money which he had received to Oliver
Ruggles. It was proved that Darling had ac-
cepted a number of bills, in the same manner
as the one in question, which were regularly
paid by the Company, but there were some
acceptances which were never entered in the
Company's books,' and the funds arising from
them had never come into their hands.
The President of the Company was a direct-
or of the Merchants' Bank, and was present
when the bill was offered for discount, and a
few hours after caused a meeting of the
directors of the Company to be called, to in-
quire into the transaction ; but, at the request
of Darling, the business was postponed. On
the 2d of May, when another meeting of the
Company was called, there was not a sufficient
number present to form a Board, and the next
day Darling absconded. The Company after-
wards settled and compromised acceptances
of Darling, which had not been entered in
their books, for the purpose of preserving
their credit.
At the trial, Herman and Oliver Ruggles
were offered by the defendants as witnesses,
to prove that no rum had ever been deposited
with the Company, pursuant to the agreement,
and that the bill was, in its inception, usuri-
ous ; but they were rejected by the judge. A
verdict was taken for the plaintiff, by consent,
for the amount of the bill, with interest, sub-
ject to the opinion of ' the court on a case, of
which such parts as appeared material are
above stated.
The cause was argued, at a former term, by
Messrs. Wells and Hoffman for the plaintiff,
and by Mesftrs. T. A. Emmet and D. B. Ogden
for the defendants, on the two points raised by
the counsel for the defendants, to wit : 1.
That the defendants were not bound by the
acceptance of the bill by Darling. 2. That
the transaction was usurious. At the last
October Term the court directed a second ar-
gument, on the second point.
* Arguments for the plaintiff. 1. What- [*48
ever may have been the law formerly, it is
now well settled that a corporation may be
bound by a contract, made by, their authorized
agent, without their seal ; and that an ac-
tion of assvmpsit lies against a corporation.
(Stafford v. Albany, 7 Johns., 1 ; Danforth v.
Schofiarie Turnpike Co., 12 Johns., 237; 10
Mass., 295.) It is fully proved by one of the
witnesses (Jennings) that Darling was the gen-
eral agent of the defendants, and was in the
habit -of accepting bills for them, and that his
acceptances had been regularly paid by the
defendants. It may be said, perhaps, that
the defendants, by the Act for their incorpo-
ration (sess. 36, ch. 150, sees. 1, 2), had no au-
thority to accept bills ; but were restricted to
making advances of money on goods sent to
them for sale. Though the preamble speaks
of advances on the deposit of goods, yet the
JOHNS. REP., 15.
1818
MUNH v. PRESIDENT, ETC., COMMISSION Co.
48
enacting clause is silent on that point, and the
practice of the Company had been different.
They have not required the actual deposit of
good* before making advances. The accept-
ance of a bill is nothing more than an agree-
ment, in writing, to advance money on a cer-
tain day, specified in the bill. It is enough
that the acceptance was in the ordinary course
of the defendants' business. The object of the
Act was merely to give the defendants, as m
corporation, the power to transact business as
commission merchants. An actual deposit,
or a reasonable expectation of a deposit of
goods, on a certain day, was sufficient to au-
thorize the acceptance to advance the money.
The whole evidence goes to show that Dar-
ling was the general agent of the defendants ;
and he proves, also, that he acted within the
scope of his authority or instructions. But
whether he did so act or not, yet being the
general agent of the defendants, his acts are
obligatory on them. The particular instruc-
tions given to him for the regulation of his
conduct may .make him accountable to his
principals ; but the public, or third persons,
are not bound to inquire into his authority ;
they know him only in bis ostensible charac
ter as a general agent. To require that all
persons dealing with such an agent should as-
certain the extent of his power, would destroy
all distinction between a general and special
4O*J *agent. and would render it unsafe to
take even a brink note, without inquiring
whether the president and cashier of the bank
had any authority to sign it. It is enough that
the general agent acts ostensibly within the
scope of his authority. This doctrine is more
especially applicable to corporations, who tan
act only by their agents. The distinction be
tween general and special agents is well set-
tled in the books. (Fenn v. Harrison, 3 T. R.,
757 ; Wkileliead v. Tuckett, 15 East. 400 ; Run-
quint v. Dite/iell.'d Esp. N. P. Cas., 64, 65;
Batty v. Cam fell, "I Johns., 48 ; Gibson, v. Colt,
7 Johns., 390; Pothier, Trait, den Oblig., n.
79.)
Again ; on principles of the commercial law,
the acceptance is binding, whether D. exceed-
ed his instructions or not. This being a nego-
tiable paper, the plaintiff, a bona fide holder, is
not to be affected by any fraud committed in
putting it into circulation. ( Wood/lull v. IMines,
10 Johns.. 231 ; Peacock v. Itfioden, Doug.,
633.) Admitting, however, that D. exceeded
his authority, yet the defendants have recog-
nized and adopted his acts so as to give them
validity. Where a principal is informed of
the acts of his agent, and does not, in a reason-
able time, express his dissent, he is presumed
to assent to I hem, and will be bound by such
implied adoption. (Cnirur* v. Bleecker, 12
John*.. 300; Hodgson v. Daties, 2 Campb.
Cas.,; MO.)
2. As to the objection of usury. To avoid an
instrument, on the ground of usury, it must
be shown that it was, in its inception, founded
on an usurious loan of money. (Scott v. lire*t,
2 T. R., 241.) Any subsequent taint which it
may afterwards acquire, in being negotiated
between third persons, will not destroy the
original contract. The original partv, maker,
drawer or acceptor, cannot object that there
has been a subsequent usurious contract be-
.Idi IN-. Ki.i-.. 15.
tween the indorser and indorsee. Then, was
not this a valid bill in its inception ? It was
advanced on an hypothecation or deposit of
goods by O. Ruggles. There was no actual
or implied agreement that the acceptance
should be taken or used for the purpose of
raising money in the market on usury. There
were four hundred shares, also, deposited as
collateral security. O. R. might have brought
an action on the bill *against the defend- [*oO
ants ; and if H. R. could not. it would be on
the ground only that he had engaged to re-
turn the acceptance lent to him. The term
" accommodation" does not imply usury. If
the Bank had discounted the acceptance when
it was offered for that purpose, they might
have recovered the amount of the defendants.
O. R., the payee, put the bill in circulation.
He had a right to sell or negotiate it, at any
rate of discount he pleased. . The defendants
cannot object to such a negotiation of it. It
is enough that the bill was made and issued
bona fide, without a premium paid, or usurious
agreement. The cases of Jone* v. Hake, 2
Johns. Cas., 60, and Wifkie v. Roonetelt, 3 Johns.
Cas., 206, are very different from the one be-
fore the court. There, a note was made and
indorsed for the very purpose of raising money
on it, at an usurious interest. It passed di-
rectly from the maker to the lender or indorsee,
without having been delivered to the payee
or indorser.
Again ; after the bill came into the hands of
the plaintiff, the defendants promised to pay
it. A contract originally usurious may be
made good in the hands of a bona fide holder,
by a promise to pay him the amount. (Steif-
art v. Eden, 2 Cai., 150; Jackxon v. Henry t
10 Johns., 185; Cuthbert y. Haley, 8 T. R..
390 ; Parr v. Eliaaon, 3 Esp. N. P. Cas., 210 ;
Prodgen v. Lugham, 1 Sid., 133; Ferralv.
Stuien, 1 Saund.,294.)
Argument* for the defendant*. 1. To make
the acceptance binding, it must appear to have
been made by the defendants in their corpo-
rate capacity, or by their agent duly author-
ized ; and such acceptance must in- within the
corporate powers of the defendants. The ac-
ceptance was made for the accommodation of
H. R., who made no de|>osit of goods at the
time, but merely promised, in consideration of
such accommodation, to deposit them at a fut-
ure time. The defendants are trustees for the
stockholders, and have no right to compro-
mise their interests by any act not clearly au-
thorized by the Act of Incorporation. The
preamble to the Act, which Is the best inter-
preter of the intention of the Legislature, and
shows its object, does not contemplate a power
to enter into such a transaction. The Question
is not whether *the Corporation ma<ie[*4>l
an express contract beyond its capacity, but
whether an agent for them has made a con-
tract beyond the powers of the Corporation.
An agent of a corporation, whether general or
special, cannot do an act beyond the legal
powers of the corporation. You cannot im-
ply a power in an agent to do what the corpo-
ration itself could not have done. Where a
public Act of Incorporation defines the powers
of the corporation, or prohibits its doing cer-
tain things, every person is bound to know its
powers, and whether an act done is authorized
100?
51
SUPREME COURT, STATE OF NEW YORK.
1818
or not. Every company incorporated for a
special purpose, being itself a special agent,
an agent constituted by them must have a
special authority, and all persons dealing with
such agent must be presumed to know the
extent of his authority. (Hayden v. Middlesex
Turnpike Co., 16 Mass., 397, 403. Sewall, J.)
The delegation of authority by the Company
must be within its corporate powers. How
does it appear that D. was the agent of the
defendants ? He must be appointed by deed,
by an instrument under the corporate seal, or
by some resolution or by-law of the Company.
No appointment under seal appears in this
case. The Act of Incorporation gives the de-
fendants power only to appoint agents to
carjy into effect the objects of the Corporation,
and no other ; and the by-laws under which
D. is supposed to derive his authority, did
not authorize him to make this acceptance.
But it is said that D. was in the practice of
making such acceptances, and that the de-
fendants have ratified them ; but there is no
evidence of a ratification of any acceptance
not made on an actual deposit of goods ; and
the supposed adoption appears to have been
made without a knowledge of the actual cir-
cumstances.
2. This bill was founded in an usurious
agreement. It was originally made for the ac-
commodation of O. R, and with a view to en-
able him to go into the City and raise money
upon it. It comes withip the principle decided
by the court, in the case of DunJiam v. Dey,
13 Johns., 40. If the doctrine contended for
on the part of the plaintiff is to prevail, the
Legislature might as well repeal the Act
against usury, for nothing can be easier than
to evade it. The .declaration of Lord Mans-
52*] field, in Floyer v. Edwards, *Cowp., 114,
" that where the real truth is a loan of money,
the wit of man cannot find a shift to take it
out of the Statute " would prove an idle say-
ing. This was a mere accommodation bill,
and after the Bank had refused to discount it,
O. R. carried it to a broker to raise money on
it at two and one half per cent, per month,
and the broker went to the plaintiff, and got it
discounted at one and one half per cent, per
month. The sale of a note in the market is a
mere evasion of the Statute, a mere cover for
an usurious loan. (Jones v. Hake, 2 Johns.
Cas., 60 ; Witkie v. Roosevelt, 3 Johns. Gas.,
66, 206.) Putting one's name on a note, for
the mere purpose of rendering it negotiable,
and to facilitate the usurious loan, is a shift
and evasion of th'e law. But it is said that the
defendants cannot avail themselves of this
subsequent usurious transaction with a third
person, to avoid the payment of their accept-
ance. The defense may be made against any
person who comes into court with impure
hands, and tainted with usury. If the in-
dorsement for an usurious loan is void, the
holder can make no title through that indorse-
ment. If the indorsee cannot recover against
his indorser, on account of the usury, how
can he maintain an action against the maker
or acceptor ? Though the bill were bona fide
in its origin, yet if it was indorsed to the plaint-
iff for an usurious consideration, he can never
recover from any party, for he must derive his
title through that indorsement, which is illegal
100S
and void. The bill never existed as an effect-
ive and negotiable instrument, until it was
passed to the plaintiff. An accommodation
note or bill has effective or legal existence
only when it is transferred to a bona fide
holder. If it is once established that the
names appearing on the note were lent for ac-
commodation, it makes no difference what is
the number of indorsers, or whether the trans-
action assumes the shape of an acceptance or
not. The form of the instrument, or the num-
ber of names on it, cannot change the real
character of the transaction. The plaintiff is
an usurious lender of money, not a purchaser
in the market. The distinction set up, as to
an innocent and bona, fide holder, cannot avail
him who is the usurer. If the instrument be
originally usurious, or if the bona, fide holder
must derive his title *through an usuri- [*53
ous indorsement, it is equally void against
him.
SPENCER, J., delivered the opinion of the
court:
The grounds on which the defendants resist
the payment of the bill, in this case, are : 1st.
That Noyes Darling, the defendants' agent,
exceeded his authority in accepting the bill.
2d. That the bill is usurious.
This case has been twice argued, and the
last time by the direction of the court. The
second argument has been confined to the last
point, whether the bill was void for usury.
The court entertained no doubts on the first
point, and the second argument has removed
all doubts upon the second.
1. The defendants are a Corporation, and
had,, it appears, duly constituted Darling their
general agent. It has been strongly urged,
that under the Act Incorporating this Com-
pany (sess. 36, ch. 150), they could neither
draw nor accept bills of exchange. Their
power is, undoubtedly, limited. They are re-
quired to employ their stock solely in advanc-
ing money, when required, on goods and ar-
ticles manufactured within the United States,
and the sale of such goods and articles on
commission. The acceptance of a bill is an
engagement to pay money, and the Company
may agree to pay or advance money at a fut-
ure day, and they may engage to do this by
the acceptance of a bill.
The contract between Herman Ruggles, the
drawer of the bill, and Darling, as agent to
the defendants, is, that be will accept the bill,
and that collateral security shall be given by
Ruggles for the return or payment of it ; but,
as a consideration for the accommodation af-
forded by the acceptance of the bill, he was to
place in the hands of the defendants' agent
one hundred hogsheads of domestic distilled
spirits for sale on commission, and as a further
security for the acceptance. I perceive no ob-
jection arising from the Act of Incorporation
to the advance of money, or the acceptance of
a bill, on an agreement to deposit goods or ar-
ticles of domestic manufacture. The Legisla-
ture have not inhibited this; nor have they re-
quired that the goods should be delivered to
the Company prior to their advancing money
on them. Such a requirement *would [*54
be impolitic and embarrassing to the manufac-
turer and the Company.
JOHNS. REP., 15.
1818
MUNN v. PRESIDENT, ETC., COMMISSION Co.
The point principally insisted on is, that the
agent exceeded his particular instructions, as
regards the acceptance of this bill, the rum not
having been, in fact, deposited. The by-laws
of the Corporation have been produced, and
they certainly do not confer on the agent the
power of accepting bills, on an expected deliv-
ery of goods. But it -is proved that Darling
was the general agent of the defendants, and
that he was in the habit of accepting bills,
which the Company afterwards paid, under
the like circumstances. It further appears
that the acceptance in question was entered in
the books of the Company in the usual manner
of all oilier acceptances.
The distinction is well settled between a
general and a special agent. As to the former,
the principal is responsible for the acts of the
agent, when acting within the general scope of
his authority, anu the public cannot be sup-
posed conusant of any private instructions
from the principal to the agent ; but where the
agency is a special and temporary one, there
the principal is not bound, if the agent ex-
ceeds his employment. In Fenn v. Harrison,
2 T. R.. 760, Ashhurst, ./.. takes the distinc-
tion stated, and he exemplifies it by putting
two cases. He says if a person keeping livery
stables, and having a horse to sell, directs his
servant not to warrant, and the servant, never-
theless, warrants him, -still the master would
be liable on the warranty, because the servant
was acting within the general scope of his au-
thority. Again ; he says, if the owner of a
horse were to send a stranger to a fair, with
express directions not to warrant the horse,
and the latter acted contrary to the orders, the
purchaser could only have recourse to the per-
son who sold the horse, and the owner would
not be liable on the warranty ; because the
servant was not acting within the scope of his
employment. In Gibw/i v. Coltet ol., 7 Johns. ,
4J9S, this court recognized the distinction be-
tween a special and general agent, as laid down
in Fenn v. Harruon, to be founded on just and
reasonable principles, with the observation,
" that the limitation to the powers of a general
and known agent, cannot, be known, unless
55*] specially 'communicated, and third per-
sons ought not to be affected by any private
instructions." The same principle was recog-
nized by Lord Kenyon.in RiiHfjtiiMt v. Ditcfii-U,
3 Esp.. 64. and again by Lord Ellenborough
in Whitthtiid v. Tiickett. 15 East. 407. It makes
no difference that the defendants were a Cor-
poration ; for it is settled that they may be
bound by the acts of their agents, in the same
manner as private individuals.
I abstain from mentioning several incidental
facts, which go to confirm the position that
the defendants considered and treated Darling's
acts as binding on them.
2. The second point was not free from
doubt, and, as has been observed, led to the
re-argument of the cause. The doubt in the
minds of some of the judges has been removed,
by a more precise ascertainment of a fact ; it
was doubled whether Oliver Ruggles, the
payee of the bill, was not a mere drmn'ttUper-
aona, and whether he could, after the accept-
ance of the bill, have maintained a suit upon
it. Upon a more careful examination of the
•case, we see no reason to doubt that the bill,
j whilst in his hands, and before it was dis-
j counted by the plaintiff, at a higher rate than
the legal interest, was a perfect and available
I bill, and that when it became due he could
i have maintained an action upon it, against
either of the defendants, or Herman Ruggles,
the drawer. This appears to the court to be
i the true test, in distinguishing between a case,
where the discount of a bill, at a higher pre-
i in in in than the legal rate of interest, will ren-
| der the transaction legal, by considering it the
i purchase of a bill, already perfect and availa-
; 1>le to the party uoldjnjj it, and where it
will be illegal, as an usurious loan of money.
The principle is too well settled to be ques-
tioned, that a bill, free from usury, in its con
coction, may be sold at a discount, by allowing
the purchaser to pay less for it than it would
amount to at the legal rate of interest, for the
time the bill has to run. The reason is ob-
vious- as the bill was free from us'ury, be-
tween the immediate parties to it, no after
transaction with another person can, as re-
spects those parties, invalidate it. And I take
it to be equally clear, that if a bill or note be
made for the purpose of raisin* money upon
it, and it is discounted at a higher premium
than the *legal rate of interest, and [*5O
where none of the parties whose names are on
it, can, as between themselves, maintain a suit
on the bill when it becomes mature, provided
it had not been discounted, that then such dis-
counting of the bill would be usurious, and
the bill would be void. I have no doubt that
Herman Ruggles could, in no event, have
maintained a suit on this bill. The contract
between him and Darling bound him either to
deliver up the bill to be canceled, long before
it would become due by the terms of it, or to
pay Darling the amount of the bill. And it
would make no difference as to the question of
usury, that an attempt was made to get it dis
counted, at a legal rate of interest, by present-
ing it to a bank. Had it appeared that Oliver
Kuggles had no interest in the bill, but had
merely lent his name for the accommodation
of Herman Uuggles, the court have no hesita-
tion in saying that the plaintiff's purchase of
the bill would have been usurious, and that he
could not have recovered upon it ; because,
until such purchase, the bill would have been
mere waste paper, and it would have had no
existence, or been available, until the plaintiff
acquired his title, and that title, being contam-
inated and infecting the bill, would be invalid
as against all the parties to it. (2 Johns. Cas.,
60 ; 3 .Johns. Cas., 69. 206.
It has been said that Oliver Ruggles, for
aught that appears, was the holder of this bill
in his own right, and could have maintained a
suit to enforce its payment, when it came to
maturity, against the acceptor and drawer, had
it never been discounted by the plaintiff ; and
then it follows that the drawer and acceptor,
in a suit by the indorsee, have nothing to do
with the consideration paid for the bill, by
such indorsee to the drawer. They are bound
to pay the bill ; but, as respects the payee and
first indorsee, if he be sued by bis immediate
indorser, it will be competent for him to show
the real consideration paid ; and if it be less
than the face of the bill, and the legal interest
for the time the bill had to run, then he can
JOHNS. RBP.. 15.
N. Y. R., 5.
«4
1009
56
SUPREME COURT, STATE OP NEW YORK.
1818
claim to have the difference deducted. (Bra-
man v. Hess, 13 Johns., 52.)
Judgment for the plaintiff.
57*] *N. B. In a suit of Munn v. Herman
Buggies the same judgment was entered. And
in the suit of the same plaintiff against Oliver
Ruggles a judgment was given for $4,362.75,
with interest from the 28th day of April, 1814.
Bills and notes— Recovery— Usury— Test of. Dis-
tinguished— 4 Duer, 361.
Cited in— 15 Johns., 357 ; 17 Johns., 181 ; 20 Johns.,
290 ; 4 Cow., 279, 573 : 8 Cow., 686, 675, 706 ; 3 Wend..
65: 7 Wend., 571, 596, 584; 21 Wend., 593; 10 Paige,
328 ; 2 Sand. Ch.. 153 ; 3 Sand. Ch., 89 ; 10 N. Y., 200 ;
65 N. Y., 527 ; 4 Darb., 500 ; 9 Barb., 651 ; 13 Barb., 47 ;
16 Barb.. 554 ; 36 Barb., 589 ; 4 Bos., 327 ; 1 Hall, 554 ; 4
E. U. Smith, 214 ; 3 Leg. Obs., 313 ; 7 Peters, 106, 107 ;
18 Wall., 386 ; 6 McLean, 624, 626 ; 9 Bank. Reg., 250 ;
76 111., 246 ; 25 Ohio St., 152; 5 Allen, ia5.
Principal and agent. Cited in— 8 Wend., 499 ; 13
Wend., 520 ; 5 N. Y., 355 ; 27 N. Y., 560 ; 49 N. Y., 558 ;
36 Hun, 332 : 2 T. & C., 567 ; 41 Ind., 297 ; 8 Minn., 251.
Corporatiom— General liabilities, duties and
powers. Cited in-10 N. Y., 456 ; 15 N. Y., 173, 218.
NATHANIEL L. AND GEORGE GRIS-
WOLD
».
HENRY AND JOSHUA WADDINGTON.
Partnership — Partners Citizens of Different
Countries — War Suspends and PerJiaps Deter-
mines Partnership — Partnership Expiring by
Limitation during War — Notice of Dissolution,
Unnecessary — Death, Insanity, or Bankruptcy
of Partner, Dissolves.
A partnership between persons residing in two
different countries, for commercial purposes, is, at
lea«t, suspended, if not ipso facto determined, by the
breaking- out of war between those countries; as
the effec-t of a state of war is to render illegal all in-
tercourse between the subjects and citizens of the
hostile nations.
If such partnership expire by its own limitation
during the war, the existence of the war dispenses
with the necessity of giving public notice of the
dissolution.
The death, insanity, or bankruptcy of a partner,
works a dissolution uf the partnership.
Citations— 2 Ves., 33 ; Watson, 382 ; 1 Rob., 201.
THIS was an action of aasumpsit, on the
capias in which the defendant, Joshua
Waddington, was taken. The cause was tried
before Mr. Justice~V&nNess, at the New York
sittings., in November, 1816.
The defendaat Joshua Waddington was an
American citizen, residing in New York, and
the defendant, Henry Waddington, a British
subject, residing in London. The defendants
had been in partnership together, and carried
on their business at London, under the firm of
Henry Waddington & Co. ; and at New York,
under the tirm of Joshua Waddington & Co.
The plaintiffs were citizens of the United
States, resident in New York, and the demand
sought to be recovered in this action was a
balance of account arising on transactions
between the plaintiffs and Henry Waddington,
or the firm of H. Waddington & Co., during
the late war between this country and Great
Britain. Evidence was produced on the part
of the defendants to show that a dissolution of
the partnership between them took place on
the 3lst of December, 1812, anterior to the
1010
transactions in question, but there was no
proof that any public notice of dissolution had
been given, or that the fact was generally
known, or known to the plaintiffs. The
plaintiffs, to prove the existence of a partner-
ship, produced an affidavit made by J. Wad-
dington in the District Court of the Southern
District of New York, on the 9th of March,
1813, annexed to a petition presented to that
court for the *purpose of obtaining a [*5S
remission of the forfeiture and penalties in-
curred by the importation of goods from En-
gland by J. Waddington & Co. in the year 1812.
pursuant to the Act of Congress of the 2d of
January, 1813, in which he stated "that the
said firm of J. Waddington & Co. is composed
of this deponent, H. Waddington and R. S.
Newby, who are all citizens of the United
States ; and that their business is conducted in
Great Britain by the said H. Waddingtou, who
also conducts the firm of H. Waddington &
Co.; which last-mentioned firm is composed of
himself and this deponent." It was stated by
the attorney who drew the petition and affida-
vit, that he had no particular instructions from
the defendant J. Waddington, and that he had
several petitions to prepare at that time, which
the parties were anxious to get forward, and
which occasioned a great press of business.
The case contained letters, .bills of exchange
and accounts, showing the particulars of the
transactions on which the claim of the plaint-
iffs was founded, and evidence offered as to
the permission of the government of the
United States to its citizens to write letters,
and to remit bills of exchange to Great
Britain, during the late war, which was ob-
jected to, but admitted ; and the evidence of
witnesses offered to show the modern practice
and usage of nations as to this kind of inter
course, which was objected to, and overruled
by the judge. But it is necessary to state those
facts only which relate to the points decided
by the court.
The jury found a verdict for the plaintiffs
for $17,757.09, subject to the opinion of the
court on a case made, with liberty to either
party to turn the case into a special verdict,
with power to the court to grant a new trial,
or a venire de now.
Mr. Griffin, for the plaintiff. The existence
of a copartnership between the defendants, at
the time when war intervened between the
United States and Great Britain, will not be
denied. (1.) Was that partnership dissolved by
the war, or otherwise, before the plaintiff's
right of action accrued ? There is no legal
evidence of a dissolution. The *letters [*5i>
between the partners were not competent evi-
dence of such a fact. They are not even ad
missible to support any equitable defense.
This court will not be influenced by equitable
considerations. There is no peculiar hardship
in the case, as regards J. Waddington. The
plaintiffs had long dealt with the firm, and
must have relied much on the credit of the
partner here. A partnership, though dissolved
by mutual consent, between the parties, may
still exist as it regards third persons, unless
some act is done to make known the dissolu-
tion to the rest of the world. The manner in
which this is to be done has been much dis-
cussed. It is now settled that there must be a
JOHNS. REP., 15.
1818
GRISWOLD v. WADDINGTON.
59
notice in the gazette to all the world ; and a
special notice to all persons who have been in
the habit of dealing with the firm. (Kelc/tam
y. Clark. 6 Johns., 144 ; Lanning v. Guine tfc
Ten Kyck, 2 Johns., 800.) That any such no-
tice has been given, or that there has been a
dissolution. <le facto, of the partnership, will
not be pretended. Then the question is, did the
intervention of the war, ip*> facto, and of
course, put an end to the copartnership.
War, unhappily for mankind, is an event of
very frequent occurrence ; but we do not find
it mentioned in any adjudged case, or enume-
rated by any elementary writer, among the
causes of a dissolution of the contract of co-
partnership. Death, bankruptcy, insanity,
decree of a court of equity on the ground of
misconduct of one of the partners, are the
only causes of dissolution mentioned in the
books. If there is not to be found in any vol-
ume of reports, nor in any treatise on the law
of partnership, in England, France or Hol-
land, a dictum in support of the position that
war dissolves this contract, it must In- a strong
circumstance in support of the claim of the
plaintiffs. " Non-usage," says Lord Coke,
" where there is no example, is a great intend-
ment that the law will not bear it. ' '(Co. Litt.,
81 6.) Partnerships between citizens of differ-
ent countries, as between the merchants of
England and of Holland, of Spain and Portu-
gal, must have been frequent during wars
between the respective countries. The contin-
uance of partnerships between the subjects of
two countries, after war has intervened, is rec-
ognized in the English reports, without
any animadversion ; and had they been
06*] *deemed unlawful and void, they would
not have been passed over without some repre-
hension. In the case of ATConnel v. Hector, 3
Bo*. & P.. 113. in the C. B. in 1802, though it
was decided, that a petition by a British sub
ject, resident in England, for a partnership
debt, where his partners, who were also British
born subjects, resident in the enemy's country,
would not support a commission of bank-
ruptcy, yet there is not the least suggestion
that the contract of partnership was unlawful.
or had ceased to exist in consequence of the
war. In b\iyU v. Botirdillon, 3 Taunt. . 546, the
agents who effected a policy of insurance on a
licensed voyage, brought an action on the pol-
icy, and averred the interest to be in three
partners in trade, one of whom resided in
Glasgow, and the other in the country of the
enemy of Great Britain. Memirg. Sltepherd and
Vaugbin, argnendo, for the plaintiffs, lay
down the position, which is not contradicted
by the counsel for the defendant, nor "by the
court, that a British subject, though resident
in an enemy's country, may still be a subject,
for all the purposes of being a partner in a
house of trade in Great Britain, and of trad-
ing, as from that house ; as he may be, on the
other hand, an alien enemy, so far as he mixes
himself witli the commercial transactions of a
house of trade in an enemy's country ; and
that the partnership firm in Great Britain
might lawfully import the goods or insure
them, though the same would not be lawful in
the partnership firm at Gothenburgh.
Again : we find cases of joint shipments,
made by one partner residing at home and the
JOHNS. KKP., !•">.
other partner resident abroad, in the enemy's
country, where, in case of capture, the share
of the partner residing in the enemy's country
has been condemned and the share of the other
partner acquitted ; thereby recognizing a joint
or copartnership interest, existing during the
war between persons, one of whom is in the
enemy's country. (Tfie Citto, 3 Hob. Adra.
38; T/u Fmncu, 1 Gall., 618; per Story, J.,
affirmed on appeal, 8 Cranch, 835.) In the
case of The Joiu/e Klawina, 5 Rob. Ad in., 297,
though not a case of partnership, yet Sir Will-
iam Scott says that ' ' a man may have mer-
cantile conce'rns in two countries ; and if he
acts as a merchant of both, he must be liable
to be considered as a *subject of both, [*B 1
with regard to the transactions originating re-
spectively in those countries." Mr. Havie, in
that case, had a great manufacturing estab-
lishment at Birmingham, and had obtained a
license to import certain goods from Holland,
where he had a mercantile establishment,
under the firm of Ravie <fc Co., of Amsterdam.
Though it was held that the license did not
extend to protect shipments in the name of
Ravie & Co., yet there is not the least sugges-
tion as to the operation of war on such com-
mercial connections in an enemy's country.
Chitty, in his Treatise on the Law of Nations,
&c., referring to the cases, lays it down as a
general rule that the maintaining a mercantile
connection, or commercial establishment, in a
hostile country, merely renders the property
connected with that establishment, liable to
seizure ; he does not say that such a connec-
tion or partnership is illegal, and, t/ww facto,
void. In the case of Ten Eyck v. Seaman, as
decided in the Court of Chancery, on the 31st
day of July, 1799, Chancellor Livingston held
that the war (of 1776) between Great Britain
and the United States did not dissolve the
partnership, and decreed that Seaman should
account to his partner, Ten Eyck ; and this de-
cree was never reversed. [The counsel read a
MS. note of the case.]
Again ; the defendants, notwithstanding the
intervention of the war, elected to continue
their partnership, at all events, to January,
1813; and the affidavit of H. W., made in
March, 1813, shows, in addition to the letters,
that tiie partnership was still subsisting. This
written declaration, under the oath of the
party, is the highest possible evidence of the
fact. It is stronger even than that of a record.
There cannot, then, be the slightest doubt of
the continuance of the partnership, and the
want of any advertisement or notice of its dis-
solution, is additional evidence of its continu-
ance.
Does a war, then, pi et arinis. dissolve a
partnership which the parties have agreed shall
continue, notwithstanding the war ? If the
war has that operation, it must be either to
protect the interest of the individual citi/en.
or from principles of public policy. Individ-
uals are the best judges of their own interests,
and if they elect to continue such a connec-
tion, there is no reason for compel ling them to
dissolve *it. On what principle of public [*O2
policy is such a contract to be destroyed ?
Public policy may demand a prohibition of all
trade with the enemy. It may forbid inter-
course. But if partners elect to continue their
1011
62
SUPREME COURT, STATE OF NEW YORK.
1818
connection, under all the disadvantages of a
state of war, and subject to all the conse-
quences which may arise, in case of a viola-
tion of the allegiance they owe to their respect-
ive countries, why may they not be permitted
to take the chance of war, and share the event-
ual profit or loss ? Private contracts, espe
cially those of partnership, are solemn things ;
and though private rights must yield to public
necessity, yet that necessity must be of the
most imperious nature. Commercial inter-
course between nations, of which partnerships
from important links, has a most powerful in-
fluence in softening the asperities and mitigat-
ing the evils of war, that greatest of all human
calamities. All commercial intercourse that
does not interfere with belligerent rights, and
which must, of necessity, be extremely limited,
ought to be tolerated, notwithstanding the
war. And the evidence, in this case, shows
that our government have allowed letters and
bills of exchange to be remitted to British sub-
jects during the war. Many practices, for-
merly deemed lawful in war, have been abro-
gated, as cruel and inconsistent with the man-
ners of a more enlightened and civilized age.
It is true that Bynkershoeck, in his Treatise,
advocates the rights of war, in all their ex-
tent. It is a treatise by the hand of a master,
but, like the laws of Draco, it is written in
blood. With that writer, everything is law-
ful against an enemy ; the use of poison, fraud
and deceit of every kind. He admits that the
conqueror has the power of life and death over
the vanquished ; may put his prisoners to death
or reduce them to slavery. Vattel and Mar-
tens are of a contrary opinion. Isjrd Ch. J.
Eyre, in Sparenburgh v. Bamsatyne, 1 Bos. &
P., 170, says: " Modern civilization has intro-
duced great qualifications to soften the rigors
of war ; and allows a degree of intercourse
with enemies, and particularly with prisoners,
which can hardly be carried on without the
assistance of our courts of justice. It is not,
therefore, good policy to encourage those strict
notions which are insisted on, contrary to
63*] morality and public convenience." *In
Clark v. Mvrey, 10 Johns., 69, Kent, Ch. J.,
says : " The rigor of the old rules of war no
longer exists, as Bynkershoeck admits, when
wars are carried on with the moderation which
the influence of commerce inspires." Again ;
"since the time of Grotius, continued and suc-
cessful efforts have been made to strengthen
justice, to restrain the intemperance of war,
and to promote the intercourse and happiness
of mankind." It will, perhaps, be said, on
the other side, that to allow this commercial
intercourse, relaxes the sinews of war, dimin-
ishes patriotism, and encourages or facilitates
traitorous correspondence with the enemy.
But what harm can result from a partnership
between a manufacturer of Birmingham and
another in Pennsylvania ; or between a farmer
of Devonshire and one in Massachusetts ?
Does war dissolve all kinds of copartnership
between the subjects of belligerent powers ?
Does it suspend or destroy the matrimonial
contract ? Cannot a husband correspond with
or afford support to his wife residing in the
country of his enemy ?
Again ; it will be said all trade with an ene-
my is unlawful. Trading with an enemy con-
1012
sists (1st.) In buying from an enemy, as in
Potts v. Bell, 8 T. R., 548, and The Hoop,
1 Rob. Adm., 165. (3d.) In selling to an ene-
my, as in 2 Roll. Abr., 173, referred to by
Lord Mansfield, in Gist v. Mason, 1 T. R., 84,
who says he knew of no case which prohibited
even a subject from trading with the enemy,
except two, the short note in Roll. Abr., and
a case referred to by Lord Hardwicke in King
William's time, of carrying corn to the enemy.
In Henkle v. Royal Exchange Ass. Co., 1 Ves.,
320, Lord Hardwicke says: "No determina-
tion has been, that insurance on enemies' ships
during the war is unlawful ; it might be going
too far to say all trading with enemies is un-
lawful."
(3.) Where the trade is such as necessarily
leads to personal intercourse, as in the case of
The Rapid, 1 Gall., 295, and The St. Lawrence,
1 Gall., 467, where the vessels were fitted out
here and sent td the enemy's country. But a
partnership may exist, without any buying
from, or selling to an enemy, or even without
any epistolary or personal intercourse what-
ever between the *parties during war, if [*O4
they have sufficient confidence in each other.
Again ; it will be said that no contract can
be lawfully made with an enemy. There is a
wide difference between saying, after war has
commenced, that no contract shall be entered
into with an enemy, and dissolving a contract
already existing. Suppose the case of land-
lord and tenant — an Englishman holding land
in this State, under an Act of our Legislature,
which he has leased. Does not the contract
continue ? Does not rent accrue- to the lessor
during war, though the right of action to en-
force the payment of it is suspended 1 (Brad-
well v. Weeks, 1 Johns. Ch., 206, 208.) An alien
enemy, who is compelled to leave the country,
may appoint an attorney to act in his name,
and to collect debts due to him anterior to the
war. (1 Emerig., 567; Clark v. Morey, 10
Johns., 69; Bell v. Chapman, Ibid., 183.) The
power of attorney is not revoked by the war ;
and an agent so appointed may sell the prop-
erty of his principal and con vert it into money.
If an alien enemy may lawfully have an at-
torney or agent to act for him, why may he
not have a partner ? The 10th article of the
Treaty of the 19th November, 1795 (2 U. S.
L. , 476), between Great Britain and the United
States, declares that neither the debts due to
individuals of the two countries,. respectively,
nor moneys in the public funds, nor in public
or private banks, shall, in the event of war, be
sequestered or confiscated, "it being unjust
and impolitic that debts and engagements,
contracted and made by individuals having
confidence in each other, and in their respect-
ive governments, should ever be destroyed or
impaired by national authority on account of
national differences." This is declaratory of
the sense of the two nations of the modern
law on the subject : it is one of the permanent
articles of the Treaty ; and being prospective,
and intended to have its operation in all future
wars, it was not abrogated by the intervention
of the late war. (Vattel, B, 3, ch. 10, sec. 175;
Levine v. Taylor, 12 Mass., 8, 10.) Suppose
the defendants to be bankers, keeping their
banking house in London, the shares of J. W.
in such house, could not be sequestered or con-
JOHNS. REP., 15.
1818
GRISWOLD v. WADDINGTON.
64
tisniu-d. His share of the accruing profits of | solved," — " not only by the express consent of
tt5*J the business could not *be forfeited nor | all the partners, but tucitly, as if the commerce
impaired by the war; and after the restoration i in which the}' dealt happens to be prohibited."
of peace, he might tile his bill in the English
Court of Chancery for his share of the profits,
which would be decreed to be paid to him, as
was done by Ch. Livingston, in the case of
Ten Eyck v. Seaman. As it regards this case,
the defendants were mere bankers : they re-
ceived the money of the plaintiff on deposit.
The claims of J. \V . to his share of profits and
" So, of a partnership, the commerce of which
ceases to be free, as if the partnership was for
the farm of some lands, taken by the enemy in
time of war." (Ibid., n. 11.) Where a part-
nership is dissolved by the operation of law,
or by events over which the parties have no
control, no notice of that dissolution is neces-
sary. Thus the death, bankruptcy or lunacy
his liabilities, it is true, remain suspended I of one partner dissolves the contract. Incase
during the war; but they revive, in full force,
on the return of peace. The same Treaty of
1794 (art. 26) provides, that in case of rupture
between the two nations, " the merchants and
others, of each nation, residing in the domin-
ions of the other, shall have the privilege of
remaining and continuing their trade so long
as they behave peaceably, and commit no of-
fense against the laws." " And in case the re-
spective governments should think proper to
order them to remove, twelve months are al-
lowed for that purpose, for their removal with
their families, effects and property." This ar-
ticle, though not permanent, shows the great
melioration of the practice of nations in war,
under the induence of superior civilization.
2. Was there any illegality in the transac-
tions, in regard to the contract on which this
action is founded, which ought to defeat the
plaintiff's recovery ? This is a most ungra-
cious defense on the part of any debtor. It
was not unlawful for the plaintiffs to direct
their funds to be placed in the hands of the
defendants, or to remit bills to them, for the
purpose of being collected. The gist of the
action is to recover money received by the de-
fendants, to the use of the plaintiffs. [Here
the counsel entered into an examination of the
particulars of the transaction, the facts and
arguments as to which it is not thought neces-
sary to state; as they were not taken notice of
by the court.] The following cases were cited:
Ttut Samuel, 4 Rob. Adm., 233, in note; 2 H.
Bl., 378; 11 East. 265; 3 Bos. & P., 335 ; 1
Campb., 65; 3 Campb., 303; 1 Bos. & P.,
170. 171, 345, 353; 8 T. R, 562; 4 Burr.,
20ti9; 1 Wm. Bl., 633; 2 Gall., 210; 3 Johns.
Cas., 130: 3 T. R, 418, 454; 5 Taunt., 181;
Cowp., 341.
(t«*J *3. The judge, on the trial, admitted
improper evidence, and rejected proper testi-
mony.
Me»»r». WeUt and T. A. Emmet, contra. (1.)
War, by that state of things which it necessa-
rily produces, ip#> facto, dissolved the contract
of partnership. A partnership implies the
joint exercise of labor and skill, as well as the
joint employment of capital, in a lawful trade
or business. This contract may be dissolved
by its own limitation, or the terms on which
it was created ; by mutual consent ; by an act
inconsistent with the partnership ; or by the
operation of law, or the happening of certain
events. Wherever the joint skill and labor
which were to be exercised, or the funds that
were to be used, for the mutual benefit of the
partners, can no longer be so employed, it
follows, from principles of natural justice, that
the partnership is at an end. "Partnership,"
says Domat (B. 1, Tit. 8, sec. 5, n. 10),
" whether universal or partial, may be dis-
JOUNS. REP., 15.
of <l<-ath or lunacy, the skill and labor of the
deceased, or insane partner, is taken away by
the visitation of Heaven. In the case of bank-
ruptcy, the joint fund is severed, and can no
longer be employed for the joint benefit of the
partners. So, a voluntary assignment by one
partner of his interest, produces the same ef-
fect. In all these cases the law works a dis-
solution, and where it does so, it is legal notice
to all the world. The other partner is not
bound to give any notice of the event which
has produced such dissolution. The principle
which results from this view of the contract
is, that wherever a state of things occurs, in-
consistent with the relative rights and duties
of the parties, there is an end to the contract.
Wherever, therefore, by operation of law,
partners cannot, consistently with their duty,
*or from physical incapacity, contribute [*O7
their mutual skill and labor for their common
benefit, the contract necessarily ceases to exist.
War puts an end to the contract, because all
intercourse, at least -of a commercial kind, is
prohibited. All trading with an enemy, with-
out the license or permission of the govern-
ment, is unlawful. Constant or frequent in-
tercourse between the parties, is essential to
the due management of their joint concerns.
The intimate and close connection which sub-
sists, requires a concert of views, a constant
mutual intelligence, co-operation and com-
munication. During war, almost all commer-
cial business, to be carried on with safety or
success, demands correct information, not
only as to the state of markets, but as to po-
litical measures and events, and the operations
of war. The sole and exclusive object of a
commercial partnership being trade, the inter-
course between the partners must be for the
purposes of trade. If trade with an runny is
unlawful, everything subservient to that object
must be also unlawful. If the end and the
means are both illegal, the contract cannot
legally exist.
That all trade or commercial intercourse be-
tween belligerents is unlawful, we shall show.
1. From the public law of nations. 2. From
the maritime law of England. 8. From the
common .law of England. 4. From the
law of the United States, as settled by the
highest tribunals of the country. But we
shall first answer some authorities cited, and
conclusions drawn from them by the counsel
for the plaintiffs. In M'Connel v. Hector, 3
Bos. & P., 113, this question, as to the legality
of the partnership, did not arise. The point
was as to the sufficiency of the debt to support
the commission o f bankruptcy ; and it is a
principle of the bankrupt law that the commis-
sion cannot be supported, unless on a debt
which can be sued for in a court of justice.
1013
67
SUPREME COURT, STATE OF NEW YORK.
1818
And the petitioning creditor, being one of
three partners, two of whom resided in the
enemy's country, could not maintain an action
during war. In Fayle v. Bourdillon, 3 Taunt.,
546, the position relied on is merely the argu-
ment or opinion of counsel ; it was a mere
question about a license. In the case of TJie
Oitto, the voyage was from a Spanish port to
Guernsey, in 1796, and Mr. Bowden's part of
68*] the cargo was condemned *because he
resided in Holland. The Jonge Klassina was
also a license case, and though Ravie's resi-
dence was at Amsterdam, yet the property be-
ing shipped by him from. Holland, as a Dutch
merchant, was condemned. As to the case of
Ten Eyck v. Seaman, there being no report,
nor any authentic account of it, it is impossi-
ble to know the extent of its authority.
Emerigon, and the case of Clark v. Morey, and
Bell v. Chapman, go no further than to say,
that when, after war breaks out, a subject of
one of the belligerent powers Jis compelled to
leave the county of the other, he may leave
a power of attorney to take care of the effects
he may leave behind, and to collect debts then
due. In the case of The Francis, 8 Cranch,
335, the goods were shipped in Scotland be-
fore knowledge of the war, by a house of
trade there, to a house in this country ; and
though proof of American property was of-
fered, the goods were condemned.
That trading with an enemy is unlawful, is
a principle to be found in the writings of ev-
ery publicist. (Grotius, lib. 3, ch. 4, sec. 8 ;
Vattel, lib. 3, ch. 5, sees, 69, 70 ; Bynk. Quest.
Jur. Pub., ch. 3 ; Mably, Drait Public de I' Eu-
rope, torn. 6, p. 356, ch. 11, div. 12.) Bynck-
ershoeck is clear and explicit on this point.
"There can be no doubt," says he, "but that,
from the nature of war itself, all commercial
intercourse ceases between enemies." Again ;
"Although trading with the enemy be not
specially prohibited, yet it is forbidden by the
mere operation of the law of war." (Valin.
liv. 3, tit. 6, art. 3 ; Le Guidon, ch. 2, sec. 5 ;
Pothier, Trait, des Ass., n. 92.) The same
principle is to be found in the maritime and
commercial law of England. (Marsh, on Ins.,
32, 85; Park on Ins., 314, 315, 316 ; The Hoop,
1 Rob. Adm., 196.) Sir William Scott, in the
case of The Hoop, lays it down as a principle
to be found in the law of almost every country
of Europe, "that all trading with a public en-
emy, unless with the permission of the sover-
eign, is interdicted."
Again ; in the case of The Cosmopolite, 4
Rob. Adm., 10, he says :- "It is perfectly well
known, that by war all communication be-
tween subjects of the belligerent countries
69*] *must be suspended, and that no inter-
course can legally be carried on between the
subjects of the hostile states but by the special
license of their respective governments." War,
in its very nature, is a state of violence. It is
an exertion of force against force. It is incon-
sistent with those speculative notions of mod-
ern refinement, that would make enmity and
friendship, war and peace, co-existent between
the the same persons. If war is justifiable, it
is a right of destruction ; and as long as it en-
dures, the rule, which cuts off all commercial
intercourse between enemies, must be its law.
Again ; trading with an enemy was, at an
1014
early period, an indictable offense, in the En-
glish Court of Admiralty. (The Cosmopolite, 4
Rob., 10, 11, in note; Bl. B., p 76.) Thus
trading with Scotland, in 13 Edw. II., though
under a license, from the guardians or keep-
ers of the truce, was held an offense, and the
license void. (16 Vin. Abr., 599 ; Prerog. L.
a, pi. 3.) And in King William's time, it was
held to be a misdemeanor at common law to
carry corn to the enemy in time of war. (1
T. R., 85, Gist v. Mason.) There is not an el-
ementary writer who suggests a different doc-
trine. The Abbe Mably himself, while he
reprobates the severity of the rule, admits it
to be the general law. Against all these au-
thorities are cited some loose observations of
Lord Hardwicke and Lord Mansfield. We
are disposed to respect even the errors of those
great men ; but in fact, they have not ex-
pressed the opinions imputed to them. They
may have had doubts whether it was not good
policy to tolerate some intercourse with the
enemy, and, principally, insurances of enemy's
property. In 1740, Lord Mansfield, when
Solicitor-General, advocated this policy in
Parliament ; but he did not attempt to defend
its legality. Parliament, however, thought
differently, and passed an Act (21 Geo. II.,
ch. 4) declaring such insurances void, and an-
nexing certain 'penalties. The Act was de-
claratory, and the penalties cumulative, and,
being temporary, expired with the Peace of
Aix la Chapelle, in 1748. In the war of 1756,
which terminated in the Treaty of Paris, 1763,
and during the American war, there was no
Act existing ; but it was revived in 1793 (33
Geo. III., ch. 27), and is declaratory, superad-
ding certain penalties. Trading with an ene-
my *is. not a statute offense, but is a [*7O
misdemeanor at common law. Lord Mansfield,
when he came to the Bench, in 1756, brought
with him his peculiar notions as to the policy
of tolerating the practice of insuring enemy's
property. This opinion of His Lordship, as to
the policy of allowing a trade with the enemy,
or insuring enemy's property, has been mis-
taken for his opinion as to the law; and the
luster of his talents, and his ascendency in the
Court of King's Bench, were calculated to
continue the delusion. During his time, the
question as to the legality of such insurances
was never agitated ; for he frowned on every
attempt to set up the illegality as a defense,
which he considered as dishonest, and against
good faith. (Per Buller, J., 1 Bos. & P., 354,
BtU v. Gilson.) And such was the deference
paid to his known opinions on the subject,
that no one presumed to raise the objection.
He put it altogether on the ground of expedi-
ency, and its being for the interest of Great
Britain*. He never ventured to reason on the
legality of the practice. It was not until after
his death that this question was raised. [Here
the counsel went into a critical examination of
all the cases decided in the English courts :
Thelubson v. Fletcher, Doug., 315; Bernon v.
Woodbridge, Id., 781 ; Planche v. Fletcher, Id.,
251 ; Anther v. Fisher, Id., 648, note; Oistv.
Mason, 1 T, R., 84 ; Bell v. Gibson, 1 Bos. &
P., 354 ; Potts v. Bell, 8 T. R., 548 ; Brislow v.
Towers, 6 T. R., 35 ; Brandon v. Nesbett, 6 T.
R., 23; Furtado v. Rogers, 3 Bos. & P., 191 ;
KiUner v. Mesurier, Id., 407 ; Brandon v.
JOHNS. REP., 15.
1818
GRISWOLD v. WADDINOTON.
70
Curling, Id., 410 ; Lnbboek v. Potto, 7 East,
449.] In Potts v. Bell. Lord Kenyon, speak-
ing of the very learned and luminous argu-
ment of Sir Jo'hn Nicholl, in that cause, says,
"that the reasons which he had urged, and the
authorities he had cited, were so many, so uni-
form, and so conclusive, to show that a Brit-
ish subject's trading with an enemy was ille-
gal, that the question might be considered as
finally at rest. 1'hat it was now taken for
granted, that it was a principle of the common
law that trading with an enemy, without the
King's license, was illegal in British subjects."
The doctrines of the courts are, then, united
on the common law principle ; and the univer-
sality of the rule, as understood in Great Brit-
71*] ain. *can no longer be doubted. (See,
also, Park on Ins., 16 ;' Marsh, on Ins.. 81. 43.)
In the case Et-parte Bouminaker, 13 Ves., 71,
Lord Eldon would not permit an alien enemy
to prove his debt under a commission of bank-
ruptcy. "If it had been a debt arising on a
contract with an alien enemy, it could not,"
he said, "possibly stand ; for the contract
would be void. The policy of avoiding con-
tracts with an enemy was sound and wise." If
the plaintiff had applied to prove his debt, un-
der a commission of bankruptcy, in England,
he would not have been heard. Why should
he receive a different measure of justice here.
As to the law of this State, the express ad-
judications in the highest court of our own
country leave no doubt. In the case of The
Julia, 8 Cranch, 181, 193; Story. «/., in de-
livering the opinion of the court, lays it
down ''as a fundamental proposition, that,
strictly speaking, in war, all intercourse be-
tweeen the subjects and citizens of the bellig-
erent countries is illegal, unless sactioned by
the authority of government, or in the exer-
cise of the rights of humanity." And he adds:
"No contract is considered as valid between
enemies, at least so far as to give, them the
remedy in the courts of either government."
"Nor is there any difference between a direct
intercourse l)etween the enemy countries and
an intercourse through the medium of a neu-
tral port. The latter is as strictly prohibited as
the former." (S. P.. The Aurora, 8 Cranch,
203; The Sally, Id., 381 ; The Isiwrenee, Id.,
434; The Joseph, Id., 451; The Venus, Id.,
253.)
If any case could exist in which the general
principle of the law could be relaxed, it was
that of The Kapid, 8 Cranch, 155 ; yet John-
son. J.. in delivering the opinion of the court,
lays down the rule in still stronger and sterner
language. "In the state of war," says he,
"nation is known to nation only by their
armed exterior; each threatening the other
with conquest or annihilation. The individu-
als who compose the belligerent states, exist,
as to each other, in a state of utter occlusion.
If they meet, it is only in combat." This doc-
trini'. he says, is supported by the records
7 15*] *of appeals in prize courts, established
•during the Revolutionary War. "Certain it
is, that it was the law of England before the
Revolution, and therefore constitutes a part of
the admiralty and maritime jurisdiction con-
ferred on the court in pursuance of the Con-
stitution." "The object, policy and spirit of
the rule is to cut oft all communication, or
JOHNS. REP , 15.
actual locomotive intercourse, between indi-
viduals of the belligerent states. Negotiation
or contract, therefore, has no necessary con-
nection with the offense. Intercourse.'incon-
sistent with actual hostility, is the offense
against which the operation of the rule is di-
rected ; and by substituting this definition for
that of trading with an enemy, an answer is
given to the argument." "The ground," says
Judge Story, in the case of The Jtitjtid, "upon
which a trading with the enemy is prohibited,
is not the criminal intentions* of the parties
engaged in it, or the direct and immediate in-
jury to the State. The principle is extracted
from a more enlarged policy, which looks to
the general interests of the nation, which may
be sacrificed under the temptation of unlimit-
ed intercourse, or sold by the cupidity of cor-
rupt avarice." Again ; in The Kmulotm, \
Gall., 571. he says : "No principle of nation-
al or municipal law is better settled, than that
all contracts with an enemy, made during
war. are utterly void. This principle has
grown hoary under the reverent respect of
centuries, and cannot now be shaken without
uprooting the very foundations of national
law." These cases clearly show that the inter-
course essential to a partnership cannot be
maintained ; that it would be criminal. For
what purpose, then, can the contract exist?
If not for a lawful purpose, it cannot exist at
all. How can it continue between parties
whose paramount duties are in direct hostility
to each other ? There can be no communica-
tion between the partners, direct or indirect,
oral or written, without the permission of gov-
ernment ; and that license can only be fora par-
ticular purpose. How, then, could the business
of this partnership be carried on? The house
of trade was confined to England, the enemy's
country. It could not trade with the United
States. It could not trade with a neutral
country, without its property being liable to
capture ; if by an American cruiser, the
whole *would be condemned ; if by a [*73
British cruiser, the half, or share "of J. W.
(The. Rugen, 1 Wheat., 74; The Julia. 8
Cranch, 181.) Nay, it is the duty of each
partner, in the event of war, to seize the prop-
erty of each other, as an enemy, when he
meets it on the ocean, if armed with authority
for that purpose. The duty they owe to their
respective countries forbids the performance
of the contract of partnership.
Even in the case of a neutral partner in a
hostile house, his property, partaking of the
hostile character, must share the fate of the
enemy's, and is liable to condemnation as
prize. The trade may be hostile, as well as
the persons who carry it on. (The Vigilantia,
1 Rob. Adm.. 12; case of Mr. Coopman re-
ferred to; The Su*an, 2 Rob., 208; The
l\»-tland, 8 Rob., 40; The Jonge Kla**ina, 5
Rob., 265 ; The Antonia Johanna, 1 Wheat.,
Ifl8; The foancet, 8 Cranch. 835.) In the
case of The San Jo»e India no, 2 Gall., 988,
Judge Story adopted the doctrine as laid down
by Sir William Scott, with the highest ap-
probation, and held that the property of a
person may have a hostile character, though
he is resident in a neutral country. That a
house of trade established in the enemy's
country, rendered the property of all the part-
1015
73
SUPREME COURT, STATE OP NEW YORK.
1818
ners liable to condemnation as prize, though
some of them resided in a neutral country.
The case of The Citto was cited to show that a
court of admiralty would distinguish between
the neutral and belligerent property. But the
property in that case was not shipped from
an enemy's country, and the court condemned
the property, on the ground of a domicil in
the country of the enemy. Now, if this be
the effect of a hostile trade, upon a neutral ;
if that makes it the property and trade of an
enemy, how can a co-belligerent be concerned
in such trade ? This strikes at the very founda-
tion of the contract of partnership, for the
trade to be carried on by the firm, is unlawful.
The case of Tfus Franklin, 6 Rob. Adui., 127,
shows the distinction between the concern
of a neutral in a belligerent house of trade,
and that of a belligerent in a neutral house.
The partnership, as regarded the partner in
England, was held illegal, because the property
was sent to the enemy's country, and his share
was condemned, but the share of the partner
in America, who, being neutral, might law-
74*] fully send his property *to France, was
restored. The conclusion to be drawn from
this case is strong. If the trade, where one
partner is belligerent, is unlawful when carried
on with his enemy, must not the joint trade,
where both partners are belligerents, neces-
sarily be with an enemy ? Both must act un-
lawfully in carrying on their trade.
Again ; alien enemies are under a further
disability : they cannot sue in the courts of
either country. An alien enemy cannot be
heard in a court of justice. He has no persona
standi injudicio. (Bell v. Chapman, 10 Johns. ,
183 ; J., ex dem. Johnston, v. Decker, 11 Johns.,
418.) In the language of Sir Wm. Scott (The
Hoop, 1 Rob., 201), "a state in which con-
tracts cannot be enforced, cannot be a state of
legal commerce." The partnership contract
cannot be enforced in either country ; and the
property of the house is liable to seizure in
both. Can a partnership legally exist under
these disabilities ? The incapacity to sue,
demonstrates that the contract is unlawful.
The disability is coeval with its existence. It
is idle to speak of a contract, and of obliga-
tions which it imposes, when it cannot law-
fully be enforced. There can be no valid
contract without a remedy to enforce it. In
Bradwell v. Weeks, 13 Johns., 1, the Court of
Errors decided that an alien enemy can acquire
no right, flagrante bello, by mere operation of
law. But we do not press that decision, be-
cause, if we concede that the law has been
misunderstood, it does not interfere with the
argument. There was no contract, in that
case, express or implied. It was a right ac-
quired, if at all, by the mere operation of law.
which cast the estate upon the party who
happened, at the time, to be an alien enemy,
and he might well be allowed to come, after
peace was restored, to ask for the property.
This is not like the case of debts contracted
before a war, where the capacity to sue was
coeval with the contract, and the remedy, is
only suspended during war. Here was no
remedy existing at the time the contract was
75*] made ; and *that which had no existence
cannot be revived, even by the genial influence
of peace. But it is said that the 10th article
1016
of the Treaty of 1794 provides for such a case,
and saves the right of the party. But we look
in vain for such healing efficacy, such a
restorative power in that Treaty. By the law
of nations, the property of an enemy, on the
breaking out of war, may be sequestered or
confiscated ; and Mr. Pitt, in 1793, brought a
bill into Parliament to protect French property
from the operation of the general law. The
object of the framers of the Treaty of 1795
was merely to protect British property from
sequestration or confiscation, in case of a war ;
not to legalize a trade during its existence.
This court, in Jackson v. Decker, evidently so
understood the Treaty. The 26th article had
expired, and our government, in fact, did not
act on the principle of that article.
2. The partnership was, in fact, dissolved
on the 31st of December, 1812. It had expired
by its own limitation on the 31st of December,
1810, but was continued, by agreement, for
two years longer. It expired then, by
efflux of time, during a war which superseded
the necessity of a public notice, and which, if
required, must have been given in London, in
the enemy's country. Had H. W., in fact,
published a notice of the dissolution there,
there could have been no ground for this suit ;
and we contend that the war rendered such a
notice unnecessary. It must have been the
joint act of both partners, between whom the
war had placed an impassible gulf. But it i&
said the defendants, afterwards, elected to con-
tinue the concern, and the affidavit of J. W.,
of the 9th of March, 1813, is adduced as evi-
dence of such consent. That affidavit was
made in reference to the time when the good&
were purchased in England, and shipped. At
most, it is an accidental mistake, committed in
the hurry of business, which ought to produce
no injurious consequence Besides, if the
doctrine for which we contend, as to the opera
tion of w^,r on an existing partnership, be
correct, the parties could not elect to continue
the connection during fhe war. Though you
may not find a case in the books in which it
has been expressly decided that war puts an
end to a contract of partnership, that silence
affords no *argument against the doc- [*7O
trine which is a necessary corollary from the
law of nations. The international law does
not notice or decide on this particular case. It
merely pronounces on the character of the in-
dividuals and of their transactions. Elementary
writers on the municipal law do not speculate
or theorize : they merely digest into systematic
form the various adjudications of the courts
of law. If no adjudged case is to be found, it
is because the parties, like gamesters, relied on
their mutual honor, and would not bring their
claims before a court of justice.
3. The cause of action arises out of a trad-
ing with the enemy ; and the contract, whether
express or implied, is, therefore, void. Personal
intercourse is not essential to constitute an il-
legal trade ; nor is buying and selling. In the
case of The Rapid there was no personal in-
tercourse or traffic. No matter how or from
whence the money was sent. It is enough
that it was deposited by the plaintiff in the
hands of an enemy, without the permission of
government. Remitting a bill of exchange i*
eqivalent to sending mopey. [Here the counsel
JOHNS. REP., 15.
1818
GRISWOLD v. WADDINOTON
76
examined the facts of the case, in regard to the
transaction, and remarked on the authorities
cited to this point.]
Mr. Gulden, in reply. 1. It is said that
there can be no contract, express or implied,
no intercourse whatever, personal or episto-
lary, between belligerents, without the license
of government. This may have been the
ancient law of nations, the rule of a barbarous
age. But it cannot be denied that, in modern
times, the cruel rigors, the inhuman practices
of war, have much abated, and been greatly
softened. This spirit of humanity has extended
not only to the treatment of prisoners, and to
the disposition of the property of the van-
quished, but as to intercourse between indi-
viduals whose countries are at war. The
modern law of nations prohibits only that in
tercourse which affords aid to the enemy, or
adds to his strength and resources. The il-
legality of the intercourse with an enemy de-
pends on the nature of it ; whether, in the
language of the Act against treason, you give
aid and comfort to the enemy. We admit
that a direct trade with an enemy is unlawful ;
77*1 an(l *Mat ^1C insurance of *such trade is,
also, unlawful and void. For the sake of ar-
gument, it might, also, be admitted, that there
can be no express contract with an enemy ;
but it does not therefore follow that there can
be no implied contract. The cases of Tlie
Kapid, The Julia, The Hiram, and Pott* v.
Bell, were all cases of a direct trade with an
enemy. Story, ./., in his opinion (1 Gall., 308,
809), refers to the case of The Hoop, and those
cited in that of Potts v. Bell, which are all
cases of a direct trade or intercourse. Not
content with these, he refers back six hundred
years, to the reign of Edw. II., and the Black
Book of the admirality, which he mistrans-
lates. The words " entrecommunent, vendent,
ou achatent," &c., do not mean intercourse
generally, but merely that there can be no
commercial intercourse, or interchange, by
buying and selling, without the license of the
King or his Admiral. He refers, also, to The
Jonge Pieter, 4 Rob., 79, where the question
was, whether there was a trading with the
enemy ; whether the goods were shipped by a
British subject to the enemy, through a neutral
country. Valin (liv. 8, tit. 6, art. 8), also,
whom he cites, speaks only of a direct trade,
and in prohibited goods ; and as to the barbar-
ous doctrine of Bynkershoeck, founded on the
Roman law, we have the opinion of an eminent
statesman and jurist of our own country
(Hamilton ; Camillus, No. 20), that nothing^
can In- more horrid or detestable, and that it
such pretended rights ever did exist as a part
of international law, they have given way to
milder and more equitable usages, which con-
stitute the customary law of nations, at the
present day.
Lord Ilardwicke. Lord Mansfield and Lord
Kenyon, in their times, were of opinion that
all intercourse with an enemy was not unlaw-
ful ; but that there might be a restricted inter-
communication, and- even a trade to a certain
extent. Such, also, was the opinion of Judge
Davis, in the case of The Hiram, and of Judge
Peters, in his charge to the grand jury in
Pennsylvania, the 7th of October, 1818, and
of Chancellor Livingston, in the case of Ten
JOHNS. REP., 15.
Eyck v. Seaman. Thus we have the opinions
of distinguished judges and jurists in Great
Britain and in our own country, that some
species of intercourse with an enemy is law-
ful. Because a direct trade, or an express
contract with an enemy, is not 'allowed. [*78
does it follow that no equitable rights can
accrue, nor any obligations arise between in-
dividuals whose respective countries are at
war ? Suppose funds sent forward to London
before war. but which do not arrive until after
war has commenced ; does no contract or
obligation arise between the person who re-
ceives the funds in England, and the owner in
this country ? Can the former be allowed,
when called to account, on the restoration of
peace, to say : " No : I owe you nothing ; the
war dissolved all obligations of justice towards
you?" Suppose, also, a remittance made to
England from a neutral country for the benefit
of a citizen of the United States during the
war ; could not the American citizen, after
the war. main lain an action against the person
who received his money in England ? Good
faith is to be observed even with an enemy.
(Grotius, lib. 8. ch. 23 : Puff. L. N., bk. 8, ch.
7, sec. 1«.) Emerigon (1 Trait. de» AM., 567)
says that, at the present day, all the sovereigns
of Europe, for the benefit and security of com-
merce, have relaxed the rigor of the ancient
law, and that a foreigner quitting the country,
on the breaking out of the war, may leave his
power of attorney to collect his debts. " l^s
creance* que I' Stranger a chez nou*. lors de la
declaration de guerrt, submntent en leitr entire.
S'ilevtforct de iseretirer,illuie*t loudble de lai*str
sa procuration a un ami pour etiger c-e qui lui
est du, et pour actionner ses debiteur* en Justice."
In the case Ex-parle Bouvanaker, which has
been cited, would not the foreigner have been
allowed, after the war was over, to bring an
action for money had and received against the
assignees of the bankrupt, for the dividends
which had come to their hands ? In Kensing-
ton v. Inglin, 8 East, 273, where, under a
license, goods were imported from Spain in un
enemy's ship, a suit on the policy of insurance
was sustained in the name of the British sub-
ject, though a trustee for an enemy. Suppose,
after peace, the Spanish owner had brought «n
action against his English agent, to recover the
amount received by him from the insurers ;
would thedefendant have been allowed toallege
that there could be no implied contract, on ac-
count of the war ? If all intercourse was unlaw-
ful, if no implied contract, no equitable obliga-
tion, could arise during the war, that would be a
food defense. In Bradirvll*\. Wetkx, [*7Jfr
Johns. Ch., 206. Chancellor Kent says : "By
the modern law of nations, and by the law of
the land, of which the law of nations is also a
part, an alien enemy does not forfeit his rights
of property. In many cases he is entitled
even to sue for his own rights, as when he is
permitted to remain in the country, or is
brought here as a prisoner of war; or when, per-
haps, be is ordered out of the country, in con-
sequence of the war. He is recognized, in our
courts, in the character of executor (Brook« v.
Phillip*, Cro. Eliz., 684) ; and in all cases his
property is protected, and held in trust for
him until the return of peace." Again, he
says: "Without some special act of the
1017
79
SUPREME COURT, STATE OF NEW YORK.
1818
government, an alien enemy is no otherwise
affected, in his former capacity, as an alien
friend, to hold, acquire and transmit property,
than in the cases to which I have alluded."
The plaintiff's claim, is founded on a trans-
action which does not necessarily imply any
intercourse with enemies. The fund was in
Antigua when war intervened, and was trans-
ferred from thence to London. This might
very well take place without any intercourse.
It certainly cannot be criminal intercourse, if
it did not aid or comfort the enemy.
Then, does war dissolve a partnership, or
merely limit its operations, so far as they may
prove prejudicial to belligerent rights ? War,
it is true, may give the parties an election to
dissolve the contract. But if they make such
election, they must give notice of it, or abide
the legal consquence of want of notice. If
there is no election by either party to dissolve
the connection, it must continue limited and
restrained to all lawful objects. If the sole
object of the partnership was a trade between
the two countries, its operations must, of
course, be suspended by the intervention of
war. In the case put by Domat, of a partner-
ship for a particular trade, which becomes un-
lawful, that destroys the whole subject of the
contract. Because war may dissolve a contract
of charter-party, it does not follow that it puts
an end to a partnership. The cases are dif-
ferent. Where the partnership is general,
each partner may carry on business in his own
country, or with neutral nations, so far as it
may be lawful. The business of a partner-
ship may be carried on without any intercourse
8O*] whatever between *the parties ; as where
there is an active and a dormant partner. In-
tercourse between partners is not essential or
absolutely necessary. It must depend on the
nature and subjects of the partnership. The
parties, it is true, may be subjected to the con-
sequence of being sued, without having the
right to sue ; but that does not render the
partnership illegal. That the partnership did,
in fact, exist in 1813, is proved by the affidavit
of J. W., and any suggestion of a mistake is
wholly inadmissible. In case of bankruptcy,
a legal proceeding takes place, and the party
IS declared a bankrupt ; and until he is so de-
clared, the partnership continues. So, in case
of lunacy, there must be an inquisition of
lunacy, and an inquest found. The mere fact
of lunacy does not, of itself, put an end to the
partnership. In the case put, of an assign-
ment of a partner's interest in the concern,
suppose a debt contracted with the firm, with-
out any knowledge of the assignment ; will
not the firm be liable ? Notice of the fact, or
of the dissolution, is essential.
2. The remittance of the bill of exchange, in
this case, was innocent. The funds were al-
ready in the enemy's country ; it was a direc-
tion to transfer them from the hands of one
enemy to those of another. To remit specie
would be very different. That could not be
done without a direct trade. In the case of
Potts v. Bell, the goods were purchased with a
bill drawn in England on Amsterdam : yet the
objection of its being illegal to draw such a
bill, was never suggested.
Again ; the government of the Unifed States
gave, at least, a tacit consent to our citizens to
1018
remit bills to England. There may be a tacit
as well as an express consent of the govern-
ment. (Puff., bk. 8, ch. 7, sec. 16, Barbeyrac's
note ; 4 Rob., 195 ; 2 Campb., 44.) A license
may be presumed. Though Congress alone
can declare war, yet the conduct of the war
belongs to the Executive of the nation. It is
always a question of state policy, whether trade
with the enemy is to be allowed. Our govern-
ment certainly countenanced this intercourse;
and courts of justice are not to pronounce on
the policy of the measure.
Again ; admitting that the transaction was
unlawful during the war, the defendants, be-
ing fund-holders, cannot set *up that [*81
illegality as a defense. (2 Poth. Oblig., trans-
lated by Evans, note, pp. 8-16.)
SPENCER, J.. delivered the opinion of the
court :
This cause has given rise to several novel
and important questions; and when the interest-
ing results, growing out of these questions, are
duly estimated, it is impossible to approach
them without great solicitude and anxiety.
In considering this cause, I have found it
unnecessary to decide some of the points which
were ably discussed by the counsel ; for, hav-
ing arrived at a satisfactory conclusion on one
of them, which must be decisive as to the
plaintiff's claim, I have considered it unneces-
sary to express any opinion on the others.
Upon the fullest reflection which I have
been able to give to the subject, my opinion is,
that the declaration of war between the United
States and Great Britain produced a suspen-
sion during the war, or, ipso facto, a dissolu-
tion of Jhe partnership previously existing be-
tween the defendants, so that the one is not re-
sponsible upon the contract, express or im-
plied, of the other. It will be perceived that
this proposition assumes the fact that the
partnership between the defendants had not
become dissolved by the efflux of time, or the
acts of either of the partners, although this
point is, in itself, very questionable. The bet-
ter conclusion from the evidence is, that the
partnership expired by its own limitation dur-
ing the war ; and the existence of the war
would, at all events, dispense with the public
notice which is, in general, necessary to the
valid dissolution of a partnership.
The case discloses that the firm of Henry
Waddington & Co. consisted of Henry and
Joshua Waddington ; that Henry is a British
subject, resident, before and during the war,
in. London, conducting the partnership con-
cerns there, whilst the defendant was resident
here. The negotiations which gave rise to the
present suit took place in England, and ex-
clusively with Henry Waddington, during the
late war between thiscountry and Great Britain.
It was admitted on the argument, and so
the fact undoubtebly is, that the proposition I
have advanced is neither supported nor denied
by any judicial decisions or elementary writer
*6f the common law ; but, if I mistake [*82
not, it is supported by the strongest reasons,
and by necessary analogy with adjudged cases.
The first inquiry is, what are the objects
and ends of partnerships ? They are entered
into with the view, that, with the joint funds,
skill and labor of the several partners, the in-
JOHNB. REP., 15.
1818
GRISWOLD v. WADDINOTON.
82
terests of the concern may be advanced and
promoted. There may be, and frequently
are different inducements influencing each
partner ; one may have more capital and
credit ; another may have more skill, activity
and experience. The one may choose to be a
dormant and inert partner, furnishing an
equivalent for the services and skill of the
other, and leaving the business entirely to his
control and management. But, unexplained
as this partnership is, we must understand it
to be an union with a view to the employ-
ment of the joint capital, labor and skill of
both the partners, for the purposes of internal
and external commerce between this country
and Great Britain. That the object of the
partnership embraced both these objects of
internal and external trade, would seem to bfe
unquestionable from the local position of the
partners.
That the death, insanity and bankruptcy of one
of the partners operates as a dissolution, was not
questioned in the argument ; and a respectable
elementary writer, Mr. Watson, is of opinion
that the marriage of a feme *>le partner would
produce The same consequence. The cases of
Pearct v. Chamberlin, 2 Ves., 33, and Sayer v.
Ben net, Watson, 382, and several other cases
cited by him, all go to establish the general
principle that death, insanity and bankruptcy
work a dissolution of partnerships ; and they
proceed on the principle that the other part-
ners are not bound to admit the representatives
of a deceased or insane partner into the con-
cern, the confidence having been originally
placed in the personal skill and assistance of
those no longer able to afford it.
Let these principles be applied to the present
case, and it would seem that the same result is
inevitable. In what situation did the war put
the defendants, as regarded each other ? Most
undeniably, the two nations, and all their citi-
zens, or subjects, became enemies of each other,
83*] and the "consequence of this hostility
was that all intercourse and communication
between them became unlawful. This is not
only the acknowledged principle of the law of
nations, but is also a part of the municipal
jurisprudence of every country. I need not
cite cases in support of a position, which has
so repeatedly been recognized in the English
courts, and in our own, possessing as well ad-
miralty as common law jurisdiction. Another
consequence of the war was, that the shipments
made by each of the partners would be liable
to capture and condemnation, by the cruisers
of the government of the other ; and another
very serious evil attended them : no debts con-
tracted in the partnership name could be recov-
ered in the courts of either nation ; they not
having, in the language of the law, a perwna
ttandiinjudicio, whilst they were amendable
to suits in the courts of both nations. (The
Hoop, 1 Hob.. 201.) It is true the same disa-
bility to sue for debts due the firm antecedent
to the war would exist. This, however, does
not weaken the objection ; it remains still an
important item, in considering whether a part-
nership exists, when the new debts created are
to be liable to the same disability. It appears
that Joshua Waddington is a citi7.cn of the
United States ; and it has been already men-
tioned that Henry Waddington is a British-born
TOHNS. REP., 15.
subject. They owed different allegiances, and
it became part of their duty to lend all their
aid, in a vigorous prosecution of the war, the
one to the United States, and the other to
Great Britain ; and it appears to me that it
would not comport with policy or morality,
that the law should imperiously continue a con-
nection, when, by its very "continuance, it
would afford such strong inducements to a
violation of that fidelity which each owes to his
government.
Again ; all communication and intercourse
being rendered unlawful, and it being a well-
established principle that either partner may,
by his own act, dissolve a partnership, unless
restrained to continue it for a definite period
by compact, in what manner could such inten-
tions be manifested during the war ? It might,
indeed, be made known to the public of one of
the countries, but it could not be notified to
the public of the hostile country ; and thus,
unless the war *produced a dissolution. [*84
he would be responsible, notwithstanding he
had the desire to dissolve the connection, merely
from inability to make known that determina-
tion ; an inability produced by events utterly
uncontrollable. When the objects and inten-
tions of a union of two or more individuals, to
prosecute commercial business, are considered;
when it is seen that an event has taken place,
without their fault, and beyond their control,
which renders their respective nations, and,
along with them, the defendants themselves,
enemies of each other ; that all communication
and intercourse has become unlawful ; that
they can no longer co-operate in the conduct
of their common business, by affording each
other advice, and are kept hoodwinked as to
the conduct of each other ; that the trade itself,
in which they were engaged, has ceased to
exist ; that, if they enter into any contracts,
they are incapable of enforcing their perform-
ance, by an appeal to the courts ; that their
allegiance leads them to support opposite and
conflicting interests — I am compelled to say
that tiie law cannot be so unjust as to pronounce
that a partnership so circumstanced, when all
its objects and ends are prostrated, shall con-
tinue; and with the clearest conviction upon
my mind, and in analogy to the cases to which
reference has been made, I have come to the
conclusion that the partnership between the
defendants was, at least, suspended ; and I
incline to the opinion that it was ip*o facto, dis-
solved by the war, and consequently that the
defendant J. W. is not liable to this action.
Much stress was placed upon an affidavit,
made by the defendant Joshua Waddington,
in March. 1818, annexed to a petition presented
to the District Court, to obtain the remission
of the forfeiture, incurred by the importation
of goods from England, by Joshua Wadding-
ton & Co., in 1812, in which he states that
Henry Waddington conducts the firm of Henry
Waddington & Co., and that firm is composed
of Henry Waddington and the defendant : and
it has been insisted that this is an admission of
the existence of the firm at that time. It has
not been shown that Joshua Waddington has
done any one act, as a partner, after the war ;
and if the affidavit amounts to an admission,
it is a mistake of the law upon the subject, and
does not affect him. It has not been shown
1015)
85
SUPREME COURT, STATE OP NEW YORK.
1818
85*] *that, in point of fact, the plaintiff s ever
knew of this affidavit, or were misled by it.
Had the defendant even promised to pay the
demand claimed by the plaintiffs, if there was
no prior liability, the promise would have been
a nudum pactum. There is, however, strong
reason to believe, from the evidence of Mr.
Ogcleu, that the mistake in the law was entirely
attributable to the hurry of the moment, and
that it did not originate with Joshua Wadding-
ton ; but I think that the affidavit, construed
in reference to the subject matter of it, does
not mean to say that the partnership then ex-
isted, but that the goods belonged to that firm
when they were shipped and when they ar-
rived.
It has, too, been strongly put, that the plaint-
iff's contracted this debt with the firm, on the
faith that Joshua Waddington was a partner,
and that he ought to have publicly communi-
cated the dissolution of the partnership. I am
perfectly satisfied that J. Waddington has acted
in good faith ; there is no pretense that he has
done anything to mislead the plaintiffs or the
public, unless his silence be so considered. If
the law worked a suspension or dissolution of
the partnership, every person dealing with
Henry Waddington was bound to take notice
of that fact ; and with the old dealers of the
firm there was knowledge of all the material
facts which enter into the determination of the
cause.
Judgment for the defendant.
Affirmed— 10 Johns., 438.
Partnership between citizens of hostile nations, dis-
solved by war. Cited in— Johns., 16, 513 ; 19 Johns.,
142: 49 N. Y., 15 : 5 Wall., 407; 6 Wall., 534 ; 96 U. S.,
299 ; 1 Dill., 577 ; 3 Allen, 294.
Also cited in— Hotfm., 531 ; 42 N. Y., 62 ; 1 Abb, N.
S., 378 ; 1 Rob., 573.
86*] *SWEET ET AL. 0. COON.
Practice in Justice Court — Appearance.
A defendant in a justice's court, who has been
served with a summons, may plead and make his
defense if he appear before the justice has entered
upon the trial of the merits of the cause : and the
justice has no authority to enter his default for not
appearing, on being called before the trial.
Citation— 1 N. R. L.. 388.
TN ERROR, on certiorari to a justice's court.
The defendant in error brought an action in
the court below against the plaintiffs in error.
The summons was returnable at 1 o'clock in
the afternoon, when the plaintiff below and the
justice attended, and having waited until about
3 o'clock, the justice called the parties ; the
plaintiff answered, but the defendants did not
appear. The plaintiff then declared verbally
against the defendants, and whilst the justice
was writing his declaration down, and had
nearly finished it, Sweet, one of the defendants,
came into the room, and was told by the justice
that he had come too late, as he had been called
and defaulted; and the plaintiff's counsel in-
formed him that he could not make any defense
in the suit, but could only give evidence in
mitigation of damages. The plaintiff then pro-
duced witnesses in support of his demand, but
the proof was illegal and insufficient ; the
justice, however, gave judgment for the plaint-
iff below, the defendant in error.
K'20
Per Curiam. It is to be inferred from the
return, that Sweet, one of the defendants,
when he did appear, claimed the right of
defending the cause, on its merits, but was
precluded by the justice, on the ground that he
had been called and his default entered. In
this the justice erred. He had barely com-
menced the trial ; had not yet finished noting
down the plaintiff's declaration, and could not
be said to have entered on the merits of the
cause. The Act (1 N. R. L., 388) only directs
that if the defendant does not appear to a sum-
mons personally served on him, at the time
and place appointed in such summons, the
justice shall then, or at such other reasonable
time as he may appoint, not exceeding six days,
proceed to hear the proofs and allegations of
the parties. The Act dees not speak of any
default being entered which can preclude the
defendant from making a defense. The de-
fendant was, then, in season to answer the
*declaration. and before any testimony [*87
was given ; and if the plaintiff, after hearing
the defendant's plea, had wanted an adjourn-
ment or a jury, it would not have been too late
for him to claim it ; nor could he in any
way have been prejudiced by the defend-
ant's not appearing before. The judgment
must, therefore, be reversed on this ground,
without noticing the defect of proof in making
out any cause of action against the defendants.
Judgment reversed.
Cited in-19 Johns., 390 ; 12 Wend., 152 ; 3 E. D. 8.,
593.
HARVEY t>. RICKETT.
1. Misconduct of Jury — Verdict, Result of
Chance, is Irregular — Average of Sums Set
Down. .2. Assignment of Error. 3. Pleading.
Where jurors agree, each one to mark down the
sum he thinks proper to find as damages, and then
to divide the total amount of those sums by the
number of persons composing the jury, which re-
sult should be their verdict, a verdict thus found is
irregular, and will be set aside.
On a certiorari to a justice's court, the plaintiff in
error may assign, as error in fact, such matters as
could not come under the observation, of the j ustice,
and therefore could not be returned by him; as the
misconduct of the jury after they had retired to
make up their verdict.
The plea of in nulloest erratum to an assignment
of error in fact, is an admission of the facts assigned
as error.
Citations— 9 Johns., 159 ; 10 Johns., 239.
N ERROR, on certiorari to a justice's court.
I
The defendant in error brought an action of
trespass in the court below, against the plaint-
iff in error, for taking his horse out of his
pasture and riding him. From the evidence
there was some reason to suppose that the
horse was taken by mistake, and not willfully,
the defendant having had permission from a
person, who had a horse in the same pasture,
to take his horse. The jury, however, found
NOTE.— Misconduct of Jury— Verdict obtained by
chance.
Where anagreement between jurors makes the ver-
dict depend on chance, as that the average of sums
set down by each shall be their verdict, the verdict
will be set aside and a new trial granted. See Smith
v. Cheetham,3 Cai., 57. note
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. GILCIIRIST.
87
a verdict for the plaintiff below for $20. The
plaintiff in error assigned for error the mis-
conduct of the jury in ascertaining the amount
of damages, which was done by each of the
jurors marking down a particular sum, and
then dividing the whole amount by six. The
defendant in error pleaded in nulloett erratum.
Per Curtain. The damages assessed by the
jury appear, under the circumstances disclosed
by the return, to be excessive. But in matters
01 tort we do not interfere to reverse judg-
ments on the ground of excessive damages.
88*] The misconduct *of the jury, however,
in ascertaining the amount of their verdict, is
specially assigned for error, to wit: that it
was agreed that each juror should mark the
sum he found, and tl^at the total amount di-
vided by six should, without alteration, be the
amount of the verdict. The defendant, in
answer to this assignment, has pleaded in nnllo
«st erratum. That the mode adopted by the
jury to ascertain the amount of the damages
they should find, was such an irregularity as
would vitiate the verdict in our higher courts,
is very well settled ; and if this may be as-
signed for error, the defendant, by pleading in
nullo est erratum, admits the fact (9 Johns.,
159) ; and the judgment, of course, must be
reversed. The only question, therefore, is,
whether such irregularity, or misconduct in
the jury, can be assigned as error in fact.
That such matter could not be assigned for
error in any court having the power to set aside
a verdict thus irregularly found, cannot be
pretended. But this power justices do not
pos-cxs . ;,i»l unless irrr^iilaritif- <>!' ihi- kiml
can be corrected in this way, it is an evil with-
out remedy, and that k» a principle too per-
nicious in its consequence to be admitted.
This is a matter which does not take place be-
fore the justice, and he, of course, cannot be
compelled to notice it in his return. It is a
matter this court cannot examine, into upon
affidavit ; and there is no good reason why it
should not be assigned for error in fact, and
if not true, the defendants should take issue
upon it. In reviewing the proceedings in
justice's courts, we are not regulated by the
rules applicable to writs of error. The statute
does not view the proceeding in that light. We
are to proceed and give judgment according as
the very right of the case shall appear, without
regarding any imperfection, omission or defect
in the proceedings in the court below, in mere
matter of form. Whenever any irregularity
before the jury appears on the return, we have
considered it properly before us, and have re-
versed the judgment for such cause (10 Johns.,
239) ; and whenever any irregularity or mis-
conduct in the jury has taken place, which
does not appear, and could not be made to ap-
pear on the return, some mode ought to be
adopted to reach the evil ; and none more fit
89* j and approuriate occurs *to the court than
to allow it to be assigned as error in fact. The
judgment must, accordingly, be reversed.
Judgment renamed.
Jury's vet Met— ReuularUy. Cited In— 1 Cow., 238 ;
1 Horfm.. 123; 25 Cal., 400; 51 Inci., 56»; 63 Ind.,537.
What a**ionet\ a* error. Cited ln-12 Wend., 2«7 ;
ft Denlo. AS ; 4 HaH... 322 ; 15 Marl... 40 : 53 Marl.., 440 ;
7 How. Pr.. 00; m How. Pr., 142; 8 Leg. Obe., 289.
283; 2 Co. R., 118.
JOHNS. Kir. 15.
JACKSON, ex dera. WOODRUFF ET AL.,
e.
GILCIIRIST.
Ht<tl Property — Conveyance of Interest of Feme
Covril in nil — Prtnnnption of RegulaiHy of
after Expiration of Many
Yoir» — Charter of 1G8S, not in Force after
1688—l*reainble May be Referred to in Con-
struing Statute.
Whether, before the Colonial Act of 1771 the in-
terest of A feme cnrtrt in land could, in this State, be
conveyed otherwise thun by line. Quart .
Where the certificate of a Justice of the peace, in
1711, of the acknowledgment of a deed. stat<-d that
A and H, his wife, came before him " to acknowl-
edge this indenture to b« their a«-ts and deed ;" it
was held that the certificate could not be under-
stood to mean merely that the parties came before
the justice to acknowledge the deed, or with such
an intent : but. further, that they did acknowledKe
it; and that, after such a lapse of time, the private
examination of the wife ought to be presumed; and
that the estate acquired under a deed thus acknowl-
edged was continued by the Act of 1771.
The charter of 1B83, of James. Duke of York, was
not in force after the Revolution, in 1088.
The preamble of a statute may be referred to, to
explain the enacting part, when it is doubtful, but
not to restrain its meaning when clear and unam-
biguous.
The Statute of 1771. "To Confirm Certain Ancient
Conveyances," provided that no claim to any real
estate, whereof any person was then actually pos-
sessed, should be deemed to be void upon the pre-
tense that the feme covert granting the same bad
not been privately examined ; it seems that, in re-
spect of new and unsettled lands the constructive
possession arising from the right of property is
sufficient to satisfy the words of the Act, such pos-
session being sufficient, in other cases, as to entitle
the husband to an estate by the curtesy, or to en-
able the owner to maintain trespass.
Citations-1 Dall., 11 ; IBinn., 470: 2 Inst., 28; 7
Mass., 20; Van Sch. ed. Laws, 611, 5, «76 ; Smith's
Hist, of N. Y., 372, 381 : 10 Co.. 43: 2 Roll. Abr., 395 ;
2 N. R. L. App. iy. ; 1 Assembly Journals. 8, 267 ;
Brad. ed. Laws, 2, 5 ; 2 Johns., 234 ; 2 Inst., ti73 : Stat.
34 Hen. VIII., eh. 22 ; Stat. 32 Hen. VIII.. ch. 28;
Stat. 27 Hen. VIII., ch. 28: Dyer, 3«3: 1 N. R. L.. 41;
6 Bac. Abr., 3HO, 381 : 4 T. A., 7SW; W. Jones. 163;
Palm., 485; 8 Johns., 202; Van Sch. ed. Laws. 403.
THIS was nn action of ejectment broucht to
recover part of lot No. 2, in the subdi-
vision of lot No. 8, in the thirteenth general
allotment of the Kaynderosseras patent, being
about one hundred and nineteen acres of land,
situate in the town of Clinton, in the County
of Saratoga. The cause was tried at the Sara
toga Circuit, in September. 1816.
By the patent of Queen Anne, dated the 2d
of November, 1708, a tract of land, called
Kayaderosseras, was granted to Nanning Her-
mense, Johannes Beekman, Kip Van Dam,
Ann Bridges, and nine other persons. Ann
Bridges, afterwards, married Joshua Hunloke,
and the plaintiff deduced a regular title by de-
scent from her. By deeds of lease and release,
dated the 10th and 12th of February, 1711, be-
tween Joshua Hunloke, gentleman, of Eliza-
bethtown, in the Province of East New Jersey,
and Ann, his wife, of the one part, and Peter
Fauconier of the City of New "V ork. merchant,
of the other part ; the parties of the first part,
in consideration of the sum of £60. New York
currency, conveyed to the party of the second
part, in fee, the thirteenth undivided part of
the Kayaderosseras patent. On both deeds
the following indorsement was written: "This
day came before *mc, one of His [*1)O
Majesty's justices for the County of Essex, the
1021
90
SUPREME COURT, STATE OF NEW YORK.
1818
within-mentioned Joshua Hunloke, and Ann,
his wife, to acknowledge this indenture to be
their acts and deed ; this nineteenth of Febru-
ary, one thousand seven hundred and eleven,
alias twelve. Attested per me, Jno. Blanch-
ard." The defendant's title was derived from
this deed through sundry mesne conveyances.
A partition of the patent, pursuant to the
Act of the 8th of January, 1762, was com-
menced in 1 709, and completed and filed in the
clerk's office of the County of Albany, on the
4th of March, 1771, by which lot No. 8, in the
thirteenth general allotment of the patent,
was drawn to the share of Ann Bridges. Sev-
eral deeds were given in evidence, on the part
of the defendant, to show acts of .ownership
and assertion of title by persons deriving title
from Fauconier ; and parol evidence was also
given in support of the defense of ad verse pos-
session ; which, however, it is not necessary to
state.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on a case to be
made.
Mr. Henry, for the plaintiff. 1. The lessors
of the plaintiff have proved a complete right,
by descent, from Ann Bridges, one of the
'patentees of the Kayaderosseras patent, to the
premises in question. But it will be attempted,
on the part of the defendant, to show that Ann
Bridges aliened her title by the release of the
12th of February, 1711, from her and her hus-
band (Joshua Hunloke) to Peter Fauconier.
We shall, therefore, contend, 2. That the deed
from Hunloke and his wife was altogether
void and inoperative as to her and her heirs at
law. It is a clear and settled principle of the
common law, that a conveyance, or other con-
tract, of afeme covert, unless by some matter
of record, is absolutely void, and not merely
voidable, and it cannot be affirmed, or made
good, by any subsequent agreement. (2 Bl.
Com., 293; Perkins, sec. 154; 1 Sid., 120.)
The husband has no power to convey his
wife's land in fee ; and if she joins, in the con-
veyance, unless by matter of record, it is ab-
solutely void. If she joins in a lease for a
term of years, it is voidable only. As the con-
veyance by Ann Bridges was not by fine or
91*J *matter of record, and as she 'was not
privately examined, and her acknowledgment
taken as to the execution of the deed, accord-
ing to the Act, it is void ; and her estate, on
her decease, descended to Hunloke Woodruff,
a minor, who resided in New Jersey, until
just before the commencement of the Revolu-
tionary War, and who, about the close of the
war, came to Albany, where he resided until
his death, in July, 1811. His children are the
lessors of the plaintiff. But it will be said that
the Act of the Colonial Legislature of New
York, passed the 16th of February, 1771 (Van
Schaack's ed. of the laws, p. 611), confirmed
and made valid this conveyance. That Stat-
ute, if it has any operation on this case, goes
to devest a right vested in H. W., the heir by
the common law ; and ought, therefore, on
general principles of law, to be considered as
void.
By the charter of liberties and privileges
granted by the proprietary government, or the
Duke of York, passed October 30, 1683. and
which was the Magna Charta of the inhab-
1022
itants of the Province, it is declared " that no
man, of what estate or condition soever, shall
be put out of his lands or tenements, nor
taken, nor imprisoned, nor disinherited, nor
banished, nor any ways destroyed, without
being brought to answer by due course of
law." It also declares : " That no estate of a
feme covert shall be sold or conveyed but by
deed acknowledged by her in some court of
record, the woman being secretly examined, if
she doth it freely, without threats or compul-
sion of her husband." (See 2 N. R. L., Ap-
pendix III., IV., V.) It contains the princi-
ple of the English Magna Charta, and of the
Bill of Rights of the people of this State, that
no person shall be disseised of his freehold,
&c., but by the lawful judgment of his peers,
or due process of law. (1 N. R. L., 45.) The
Magna Charta of England is a limitation of
the powers of the British Parliament ; and a
colonial Legislature, which could make no
laws repugnant to the laws of England, nor
claim that omnipotence which is said to be-
long to Parliament, could not make a law in
violation of this great charter of rights. (1
Bl. Com., 138, 139.) The Act was, therefore,
void, as contrary to the laws of England. In
the case of Gardner v. The Trustees of the Vil-
lage of Newburgh, 2 Johns. Ch., 162, the Chan-
cellor *held that the Legislature could [*92
not take away private property, even for nec-
essary public purposes, without providing a
fair compensation to the owner ; and lie cites
numerous authorities, in support of this doc-
trine, from books of jurists and the codes and
constitutions of different countries. This
court has, also, in several cases, recognized
the same doctrine. (Jackson v. Callin, 2 Johns.,
248, 263; Daxh v. Van Kleeck, 7 Johns., 477-
508 ; Catlin v. Jackson, in error, 8 Johns., 520,
539-556.)
But if this Statute is not void, it is inapplic-
able to the present case. Being in derogation
of a common law right, it must be construed
strictly. It affects those deeds only where the
persons claiming under them are in the actual
possession of the land. The words are :
" That no claim to any real estate, whereof
any person is now actually possessed, whether
as tenant in common or otherwise, shall be
deemed void upon the pretense that the feme
covert granting the same had not been privately
examined before any of the public officers,"
&c. Mere constructive possession is not suffi-
cient. There must be an actual pedis possessio
under the deed. Again ; the Act confirms
those deeds only where the feme covert had not
been privately examined before public officers,
&c. This can refer only to public officers or
magistrates of the Colony of New York, not
to a case like this, where the ackowledgment
was in Essex County, in New Jersey.
It will be said, perhaps, that there is a pre-
sumption arising from lapse of time that the
right of Ann Bridges has been extinguished.
But the case affords no evidence of any acts
or facts which can authorize this presumption.
From mere silence or inaction no inference
can be drawn, or presumption raised, of the
extinguishment of right, for a time short of
the period of the Statute of Limitations. No
matter how many conveyances there may be,
or through how many hands the land may
JOHNS. REP., 15.
1818
JACKSON. EX DEM., v. GILCIIKIST.
92
have passed, the presumption cannot avail
unless possession accompanies the claim of
right. A presumption from mere length of
time, to support a right, is very different from
a presumption to defeat a right. (Phillips'
Ev 117,118-134; 10 Johns., 377; 7 Johns.,
5- 1 Caines. 84; 6 Biun.. 416 ; 10 Mass., 105;
93*] *5 Cranch, 262.) There can be no ail-
verse possession in this case ; for the defend-
ant entered, claiming title from J. II. and
Ann Bridges, by an inoperative conveyance.
They derive title from the ancestors of the
lessors of the plaintiff, and cannot allege that
they entered adversely. (Jackson v. Se/ira, 10
Johns., 485.) There is also a recital in the
deed which estops him from setting up an-
other title. (Phillips' Ev., 355.)
The lease to De OrofT affords no evidence of ;
a constructive possession. He entered, and
was possessed in severally, by metes and !
bounds, and his entry cannot be extended be-
yond those limits ; and those claiming under
him can go no farther. The rents issued out
of this particular parcel, and afford no evi-
dence of a constructive possession of the
whole ; besides, the covenant is to pay all the
quitrents to -the crown. Mere perception of
profits does not amount to an ouster of pos-
session. (I Bl., 675; 2 Bl., 690; Cowp., 217;
1 Wils., 176.)
The payment of taxes is not evidence of
possession. (JacJ&on v. Myers, 3 Johns., 388.)
The defendant must show, affirmatively, the
facts from which the presumption is to be
drawn.
Mi . Van tturen, Attorney-General, and Afr.
Van Veehten, contra. 1. The lessors of the
plaintiff are the fifth generation from the pat-
entee ; and during more than a century there
has been no assertion of right on their part, or
by any of their ancestors ; and from the date
of the deed of partition until the commence-
ment of this suit, there has been no act of
ownership or assertion of claim on the part of
the lessors. After such a lapse of time, their
claim is to be regarded with a jealous eye ;
and every possible indulgence, as to presump-
tion, ought to be shown to the defendant, in
order to quiet the extensive possessions under
this patent. The deed from J. H. and Ann
Bridges is technically and formally drawn,
and is duly executed by the grantors, and ac-
knowledged before a justice of the peace. It
is objected that this acknowledgment by the
wife was not made according to the laws of
the Colony of New York, and that the deed
is, therefore, void. But we contend that there
is no evidence of the existence of any law of
the Colony, at the time the deed was executed,
which required any different mode of taking
f)4*] *the acknowledgment. The Charter of
Liberties and Privileges granted by the Duke
of York, the 30th of October, 1683. for the
better establishing the government of the
Province. &c., which has been cited to show
the existing law of the Colony, never had the
force of law. The authority of it was denied
by the first Colonial Legislature, which com
menced in 1691, under William and Mary.
They disavowed all the Acts of the Duke of
York, as such, or as James II., after he came
to the Crown, and passed a new bill of privi-
leges, which was afterwards repealed by the
JOHNS. Ki.i- . 15.
King, the llth of May, 1697. (Journ. of Gen.
Ass., p. 8; Bradford^ ed. Laws N. Y., 1, 4.)
In 1710 Mr. Bradford published his revision
and digest of the laws of the Province, which
contain no reference to the Duke of York's
charter. In 1752 another revision of the laws
was made by Smith and Livingston, and they
take no notice of this charter. In March,
1772, an Act was passed to revise, digest and
print the laws of the Colony, and Van Schaack
was authorized to revise, digest and collect all
the laws in force in the Colony, from the
Revolution (1688) until that time. (Van
Schaack's ed. Laws, 676.) The first Act in
these collections is in the names of William
and Mary, passed the 6th of May. 1691. for
quieting and settling the disorders in the
Province ; and for establishing and securing
their Majesties' present government from like
disorders in future; and declaring that no
power or authority could be held or exercised
in the Province but what was derived from
the magistrates. There was, then, no act,
statute or charter existing in the Colony, regu-
lating the mode of conveyance by a feint
cncert. Indeed, the preamble to the Act of
1771 clearly shows that there was no previous
statute regulation on the subject.
Aurain ; it is said that, by the common law
of England, &feme cvcert cannot convey her
estate, unless by matter of record, as by fine,
or common recovery ; and that the deed is,
therefore, void at common law. But what
evidence is there that the common law of
England extended to the Province, or that it
was in force here, as such, prior to the Consti-
tution of the State? New York, by the name
of the New Netherlands, was a Dutch Colony
until 1674, when it surrendered to the Duke
of York, and was *ceded to England by [*1)o
the Treaty of Breda, in 1667, and the Duke
afterwards, in 1674, took out a new patent
from the crown. It was a conquered Prov-
ince ; and being held by right of conquest, the
common law of England was not, of course,
introduced ; but the former laws and customs
continued in force until actually changed, and
new laws imposed. The common law does
not attach to a conquered Province, without a
special ordinance for that purpose. (2 P.
Wins., 74, 75 ; Blankard v. Galdy, Salk., 411;
1 Bl. Com., 107, 108; Tucker's ed. of Bl.
Com.. 381 ; Smith's Hist, of N. Y., Carey's ed.,
268, 271, note, opinion of Sir John Randolph.)
By the articles of capitulation of 1664 (art. 11)
between the Dutch Governor and the English
Commissioners, the Dutch laws and customs
were expressly saved and secured to the in-
habitants ; and this was recognized by an Act
of the Legisfature of the Colony, passed the
5lh of July, 1715. (Van Schaack's ed. Laws,
97.) There was, then, no English common
law, rule or custom existing on the subject ;
and the preamble to the Act of the 6th of Feb-
ruary, 1771 (Van Schaak's ed.. p. 611), speaks
of the ancient practice of the Colony to record
deeds so acknowledged, thereby excluding the
idea of any statute having been passed rela-
tive to conveyances byffine coctrt*. On one
of the deeds, given in evidence, and set forth
in the case, from J. Ross and lii> wife, dated
the 26th of November, 1750, there is an in-
dorsement of the 19th of May, 1769, that the
uts
SUPREME COURT, STATE OF NEW YORK
1818
wife then appeared before D. Horsemanden,
Esq. , Chief Justice of the Supreme Court, &c.,
and acknowledged it to be her voluntary act
and deed, and it was, therefore, allowed to be
recorded. A similar proof, or acknowledg-
ment, of the deed of De Groff, was taken be-
fore Judge Smith. Indeed, our records are
filled with deeds by married women, upon
their acknowledgment before justices of the
peace, judges, and various public magistrates,
without any private examination. A similar
practice, relative to conveyances by feme cov-
trts, existed iu all the colonies. (Davy v Tur-
ner, 1 Dull., 11 ; Lloyd v. Taylor, 1 Dall., 17 ;
Lessee of Watson v Bailey, 1 Binn., 470 ; Fow-
ler v. Shearer, 7 Mass., 14, 18, 19.) The Su-
preme Court of Pennsylvania thought it a
most proper case for the application of the
96*] maxim, communis*error facitjus. A cus-
tom of a particular town, or city, or county,
as to conveyances by infants and feme coverts
has been considered as an exception to the
ceneral rule of the common law. (Hob., 225;
Bro. Abr., 320, pi. 15.) Thus, in the case in
Dyer, which is very analogous, the custom in
the town of Denbigh, in Wales, that &feme
covert might aliene her land, by surrender and
examination in court, was held good and val-
id (Dyer, 363, b), notwithstanding the Statute
of 27 Hen. VIII., ch. 26. If, then, there was
no legislative provision, requiring a different
mode of acknowledgment, or conveyance, will
the court disturb these possessions, for a slight
mistake in a matter of form? In Jackson v.
Schoonmaker, 2 Johns., 230, 234, where a deed
had proved by the oath only of a surviving
trustee, before a judge, in 1750, Kent, Ch. J.,
said that until 1771 "the practice of taking
the proof of deeds was loose and unsettled.
That the practice in the Colony, before that
time, was undoubtedly to be regarded on a
question touching the validity of an ancient
deed ;" and the deed was held valid, so as to
establish the plaintiff's title. A strict and lit-
eral conformity to a statute will not be re-
quired in such a case. Admitting, even, that
there was a statute of the Colonial Legisla-
ture on the subject, requiring a private exam-
ination of the wife as to the execution of a
deed, it does not appear, and is not to be pre-
sumed, that the Act required the magistrate to
indorse a certificate of such examination on the
deed ; he might have been brought into court
as a witness to prove the fact. Is the defend-
ant to be concluded, because he cannot pro-
duce that evidence? If he has lost the evi-
dence, by lapse of time or accident, it may be
supplied by legal presumption. It is not pre-
tended that this was not a bonafide conveyance,
for a valuable consideration ; and there are
facts and circumstances sufficient to support
the presumption. At most, there has been an
omission only of a mere legal formality. The
presumption required is to support a right.
The deeds were put on record, and a deduc-
tion of title is recited in them, and they might
have been seen by A, B, or her heirs ; but no
act has been done by her, or those claiming
under her, until 1815, questioning the validity
of the deed from her. The other claimants
1)7 '] *under-the patent, by their deeds to De
Oroff, in 1768, acknowledge the defendant's
title. No matter though they were released
in severally ; they were all founded on the
validity of the deed of A. B. Possession tak-
en under those deeds, was possession against
her and her heirs, and they say nothing. This
amounts to an acquiescence. Again ; in 1769
commissioners were appointed to make parti-
tion, and notice of their proceedings was pub-
lished in the Gazette, according to the Act.
This was a statute notice to all the world.
Surveys were also made, and surveyors en-
tered on the lands under the defendant, yet
nothing, during all the time, was said by any
of the lessors or their ancestors. It is fair,
then, to presume, that they knew, or believed
that the right of A. B. was vested in Faucon-
ier. There was, afterwards, a subdivision
made, and releases executed, containing recit-
als as to the title, which were duly recorded.
Again ; H. Woodruff resided in the City of
Albany, and practiced as a physician there,
for thirty years, almost within sight of the
premises, yet preserved a profound silence as
to any claim, as heir of A. B. Surely, under
these circumstances, and after a lapse of more
than a century, the court will presume every
requisite formality as to the acknowledgment
of the deed. In Goodiitle v. Duke of Chandos
2 Burr., 1065, 1072, 1073, Lord Mansfield lays
down the principle of law.a^ to these presump
tions, that where the presumption, as in this
case, is in the nature of evidence, it must have
some ground on which it is to be founded. A«
if a man have a power to suffer a common re-
covery, everything will be presumed to have
been done rightly and regularly, until the con-
trary appears. So, if a person interested to
object to a recovery, has had an opportunity
to make objections, but, instead of doing so,
has acquiesced under it, this affords a pre-
sumption that all was right and regular. (El-
dridge v. Knolt, Cowp., 214.) In Goodrightv.
Straphan, Cowp., 201, it was held that a rede-
livery by a wife, after the death of her hus-
band, of a deed delivered by her when covert,
was a sufficient confirmation of such deed, so as
to bind her, and that circumstances alone were
equivalent to such a redelivery. Even an
Act of Parliament *may be presumed ; [*98
and a deed or grant is often presumed, not be-
cause the court believe that any deed ever ex-
isted, but for the sake of quieting possession.
(Cowp., 102,215 ;Jaclcsonv. AT Call, 10 Johns.,
377, 380.) "It is," says Lord Erskine (Hillary
v. Waller, ISVes., 266), "because there are
no means of creating belief or disbelief, that
such general presumptions are raised upon
subjects of which there is no record or written
muniment. Therefore, upon the weakness
and infirmity of all human tribunals, judging
of matters of antiquity, the legal presumption
holds the place of particular and individual
belief," (Phillips' Ev., 170.) The recitals in
the deeds, it is true, show that we derive our
title from Ann Bridges ; but they state, also,
that the grantors acquired, by lease and re-
lease, in 1711, and by subsequent mtsne con-
veyances, a valid title. It is not true that
nothing short of a pedis possessio will support
the presumption of the existence of a deed or
grant. Acts of ownership on one side, and
notice of them, and acquiescence on the other,
are sufficient. The presumption is raised for
the furtherance of justice, and for the sake of
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. GILCHRIST.
peace. Acquiescence in acts calculated to im-
press the idea of a conveyance of title, or own-
ership, ha* a tendency to deceive, and to lull
third persons into a belief of the fact. On
this principle, it has been decided, that, if a
person, having a title or claim to land, stands
by, and sees a stranger convey it without mak-
ing known his claim, he is concluded by his
silence. In the case of Jackson, ex dem. Liv-
ingston v. ScJiutt, decided in 1796, and affirmed
in the Court of Errors (3 Johns. Cas.. 118,119),
this doctrine was settled ; and that possession
may be shown, not merely by a visible fence,
but by acts of ownership, applicable to the
nature of the property. Where a person has
a color of title, and enters under a deed, an en-
try into part will be deemed an entry Into the
whole. An actual inclosure, or nedi* possensio,
of the whole is not necessary. Now, here are
surveys, deeds of partition, entries and acts of
ownership, o.n the part of the defendant, and
those under whom he claims, for above fifty
years past. (12 Co., 5 ; Van Dyckv. Van Beu-
ren, 1 Cai., 84. 91; Jackson v. Deinarctt, 2
Cai.. 882; Jackson v. Walsh, 3 Johns., 226;
!>»*] Roe v. Ireland, 11 *East, 280; OoodtMe
v. Baldwin, 11 East, 488; Bergen v. Bennett.
1 Cai. Cas. in Er., 1; 1 Hay. N. C.. 61; 2
l^ay. N. C., 845.) Again ; a conveyance in
fee by . a feme covert is not absolutely void.
Lord Mansfield, in Qoodright v. Strapnan, ad-
mitting the distinction between deeds in fee
and leases, says, the exception was allowed for
the advancement of agriculture and tillage ;
that the court ought to look into the substance
of the deed ; that it is in substance a mortgage,
though in form a lease for years ; that the
wife was bound «by it, and her subsequent
acts set up the mortgage against her. His ar-
gument, however, is more subtile than sound ;
if the deed was a nullity, and void, how could
it be confirmed, so as to operate abinitio? He
concedes the doctrine that the deed of a feme
covert may be confirmed. (Cowp., 201; Wot-
ton v. JJele, 2 Saund., 180, n. 9; Roupe v. At-
kinson, Bunb.. 162, 168; Brooke Abr., Accept.,
6; 2 Roll. Abr., 26. pi. 2; Jackson v. Murray,
1 Johns., 5-11; England v. Blade, 4 T. R..
682.) If necessary, therefore, a release from
Ann Bridsres, after she became discovert, or
from her son, John Hunloke, or from his
grandson, Hunloke Woodruff, may be pre-
sumed.
8. The lessors of the plaintiff, are barred by
the covenant of warranty, in the deed from
J. Hunloke and wife to Fauconier. The deed
contains full covenants on the part of the
grantors and their heirs, and the title set up
by the lessors is by descent from the heir of
the grantors. (Co. Litt., sees. 711, 712 ; 2 Bl.
Com.. 801, 306; Gilb. Ten., 133; 12 Mod..
512 ; Vaughan. 366 ; 7 Bac. Abr., 234 ; Cruise's
Dig., tit. 32, Deed, ch. 4, sees. 9-29 ; 4 Dall.,
168 ; 2 Roll. Abr.. 786, 787. pi. 1 ; Co. Litt..
985, sec. 446; 1 Ld. Raym., 779; Saund. on
Uses, 832-869.) The counsel here entered at
large into the law as to collateral warranties,
and contended that it was in force in the
Colony, until the Act for the Amendment of
the Law. passed the 8th of March, 1778 (Van
Schaack's ed^ of laws, 767, 770. See. also,
Slat. 4 Anne. ch. 16. sec. 21 ; 1 N. R. L., 525.
MM. 86, ch. 56, sec. 26) when collateral war-
JonNe. RBF., 15. N. Y. R., 5.
ranties were abolished ; but as the court did
not take notice of this point, it is unnecessary
to state the argument further.
4. The deed of 1711 by J. H. and Ann
Bridges, was confirmed and made valid by the
Act of the Colonial Legislature, passed the
*16th of February, 1771. The pre- [MOO
amble gives a precise description of the case
before the court. The Act is declaratory and
remedial. It is a statute of peace, made in
favor of bonafide purchasers. It ought, there-
fore to be construed liberally. The second
section, providing a mode, in future, for the
proof and record of deeds, shows that before
that time there was no statute regulation or
settled rule on the subject. But it Is said that
this Act was void on general principles, as
contrary to the charter of liberties of the
Province and Magna Charta. This is very
delicate ground. The greatest caution ought
to be observed in questioning any of these old
colonial Acts, on which so many titles to prop-
erty, in this State, now rest. How many
titles depend on the Acts for confirming par-
titions, however informal or imperfect ! In
Van Schaack's edition of the jlaws (p. 31) is a
remarkable Act. passed the 12th of May, 1699,
for vacating certain patents, granted by Gov-
ernor Fletcher, declared to be extravagant.
In 1782 and 1786 Acts were passed abolishing
entails. (Sess. 6, ch. 2, sess. 9, ch. 12, 1
Greenl. ed. Laws, 205, 206.) Did not these
Acts equally interfere with vested rights ?
Next, as to the power of the Colonial Legisla-
ture to pass such an Act. The Constitution of
UK- State (art. 35) declares what shall be the
law of the State ; that is, " such parts of the
common law of England, and the statute law
of England and Great Britain, and of the Acts
of the Legislature of the Colony of New
York, as, together, formed the law of the
Colony on the 19th of April, 1775," &c. The
framers of the Constitution recognize and
adopt these colony laws ;. they never meant to
re-enact them. An Act of the Colonial As-
sembly, with the assent of the King of Great
Britain, had all the omnipotence of an Act of
Parliament. Magna Charta even is subject to
the power of the Parliament. In Great Britain
the absolute sovereignty is in the Parliament.
It can do no wrong. (Co. Litt., 110 a ; 4 Inst.,
36; 1B1. Com.. 51, 90, 180; Wood's Inst., 455 ;
2 Bac. Abr., 109 ; 5 Cora. Dig., 220.) Where are
we to look for the Constitution of the Colony ?
Surely not in the Charter of Liberties granted
by the Duke of York. Even that declares
that no man shall be disseised except by the
judgment of his peers, *and the law of [*1O1
the Province. Whence did courts of justice
derive their powers 1 From the common law
— from custom and usage ; but the common law
may be altered by statute. In Jackson v. Cat-
lin the Act was a private, not a public Act,
and passed at the instance of the parties. The
British Parliament, notwfthstanding Magna
Charta, may exile their subjects, and pass Acts
of attainder and forfeiture. After the Con-
stitution of the State was adopted, and the
bill of rights declared, the Legislature passed
bills of attainder, and abolished entails. The
Council of Revision (Const., art. 2) was in-
tended to check improvident and unadvised
Acts of the Legislature ; yet, if two thirds of
65 1025
101
SUPREME COURT, STATE OF NEW YORK.
1818
the Legislature adhere to an Act, it becomes a
law, notwithstanding the objections of the
Council. If, then, an Act of the Colonial
Legislature, when assented to by the King,
has the force and effect of an Act of Parlia-
ment, how can it be impeached or questioned,
though it devests a vested right ? A similar
legislative power was exercised in all the
colonies. (Laws of Maryland, 1715, ch. 47 ;
Laws of N. C., p. 143; Laws of S. C., 132;
Acts of Georgia, 63 ; Laws of Connecticut,
265; Laws of Del., 144, &c.) This was a
subject of legislative provision in all of them,
for quieting possessions and securing bonafide
purchasers; and we have no evidence of these
Acts having .been questioned in the courts
of the several States. But if, as we con-
tend, the deed was valid, A. B., or her heirs,
had no vested right in the land, for she had
conveyed it away ; and the ancestors of the
lessors have acquiesced in the Statute for
above forty years. The Act did no more than
courts of justice often do, by the aid of pre-
sumptions, to quiet possession.
Again ; it is said that the Act must be
strictly construed ; but being beneficial and
remedial, it ought to be liberally expounded.
(6 Bac. Abr., 374, 388,389.) Here has been
an adverse possession of part, under a claim
of title to the whole, for about sixty years ; a
progressive series of acts of ownership and
possession to this day, hostile to all notion of
a title in the lessors of the plaintiff or their
ancestors; All these amount to actual posses-
sion within the meaning of the Act. The de-
fendant may avail himself of the acts of his
co-tenants ; the partition commenced in 1769,
1O2*] when the *whole tract was surveyed
under the direction of the Surveyor-General,
and the record of partition was filed the 24th
of January, 1771, in the office of the Secretary
of State. In 1771 most of the land in the
western and northern parts of the State was
wild and unoccupied, lying wholly in grant ;
and if the objection here made is to prevail,
most of the titles to lands in those parts of the
State will be shaken.
Mr. Henry, in reply. 1. It is said, that this
being a conquered country, the common law
of England was not in force here; unless
specially introduced by some ordinance or
statute. Blackstone (1 Com., 107) lays it
down, that if an uninhabited country be dis-
covered and planted by English subjects, they
carry wifeh them all the laws of England
which are applicable to their situation. But
in conquered or ceded countries, that have
already laws of their own, they remain until
expressly changed. This was not, in fact, an
uninhabited country when first discovered.
It was possessed by the native Indian tribes.
The aborigines having been conquered by the
European adventurers, the laws of the Iro-
quois, according to the argument of the de-
fendant's counsel, must have prevailed.
Again ; if conquered from the Dutch, then
the Dutch law must have continued in force.
But the fact is, that the American colonies
were held by right of discovery, and not by
conquest . and Judge Tucker, in excepting
New York, is mistaken in point of fact. Se-
bastian Cabot, in the service of Hen. VII.,
discovered the country in 1497, from the 38th
1026
to the 68th degree of north latitude, and grants
were made under the north and south Virginia
patents, from the 34th to the 45th degree of
north latitude, long prior to the discovery by
Hudson of the river which bears his name,
and before the Dutch settlement. The Dutch
were intruders ; the civil wars in Entrland
alone prevented the government of that coun-
try from immediately expelling them ; and
the colonists of New England were not in a
situation to exert themselves against their new
neighbors. The fact is, contrary to all theory
and speculation, that the English came into
possession in full sovereignty, and that the
laws of England have prevailed here from the
beginning ; not all the laws of England, but
such as were *applicable to the situ- [*1O3
ation of the Colony. Such, for example, as
the law of descents, the law as to baron and
feme, &c. Whence did the -colonists derive
their criminal law and their modes of trial ?
Nay, English statutes operated in the Colony,
and were acted upon long before any re-enact-
ment of them by the Colonial Legislature.
Such were the statutes of uses, for abolishing
the fedual tenures ; concerning wills, and the
distribution of intestates' estates ; concern-
ing frauds, distresses, rescue, execution, es-
cape, juries, heirs and ancestor, and many
other statutes which might be mentioned ; all of
which were in force, though not re-enacted
after the Dutch were conquered. A few of
the statutes were re-enacted in 1772, to remove
obscurity ; but it was not until 1778 that the
Legislature began to re-enact various English
statutes, for the purpose of removing all in-
convenience and doubt as to which of them
were in force. The Constitution speaks of
the statute law of England and of Great Brit-
ain as being the law here, that is, the English
law before the Revolution, and the British
law since, The Act for Revising and Digest-
ing the Laws of the State, passed the 15th of
April, 1786 (1 Laws N. Y., J. & V.'sed., 281),
after reciting this clause of the Constitution,
directed that all such statutes of England and
Great Britain, as were a part of the law of
the Colony on the 19th of April, 1775, should
be brought in, in the shape of bills, to be en-
acted. In this form the Statute of 6 Edw. I.,
ch. 3 (omitting only the clause respecting
assets), the Statute of 32 Hen. VIII., ch. 28,
and 4 Anne, ch. 16, sec. 1, were enacted,
thereby affording, by necessary implication,
the sense of the Legislature, that they ex-
tended to the Colony ; though the 6 Edw. I.,
ch. 3, and 32 Hen. VIII., ch. 28, were never
enacted by the Colonial Legislature.
The common law of England, then, being
in force here, Ann Bridges, & feme covert, could
not convey her estate by such an -icknowledg-
ment as that made of the deed of 1711. The
deed, as to her, is absolutely void. (1 Bl.
Com., 444 ; Co. Litt., 326 a.) The rule of the
common law is founded in sound policy; there
could be no good reason for not adopting it
here ; and it was expressly adopted in the
Charter of Liberties, which does not appear to
have been repealed. If there was any except-
ion, in this respect, tothecommon *law [*1O4
rule, it lies on the defendant to show that ex-
ception. The lessors of the plaintiff are enti-
tled to the full benefit of the common law. If
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. GILCHKIST.
104
there was a law or usage of the Colony, as
mentioned in the preamble to the Act of 1771,
of taking the acknowledgment or proof of
deeds before a member of the King's Council,
a judge of the Supreme or County Court, or
a master in chancery, it lies with the defend-
ant to show that any other officer might take
the acknowledgment, and that a bare ac-
knowledgment, without any private examina-
tion, before a justice 6f the peace in New
Jersey, was sufficient. The certificate of ac-
knowledgment is given by a justice of the
peace of Essex County, N. J., who states
merely that the parties appeared, to acknowl-
edge ; not thut the wife was privately exam
ined by him. whether she executed the deed
voluntarily. It is true the court will look at
the usage or practice of the Colony, but there
must be evidence of such usage or practice.
A particular case does not prove usuage. The
practice must be general, before the maxim of
Coinm'tru* error factiju* can apply.
3. The Act of 1771, we repeat, was void.
The Colonial Legislatures were limited in their
powers. (1 Bl. Com., 107-109.) The right of
properly is an inherent right ; it is declared,
says Blackstone. by the great charter, that no
freeman shall be disseised or devested of his
freehold, or of his liberties, or free customs,
but by the judgment of his peers, or by the
law of the lamC which, Coke says, me ins by
process of law. (3 Inst., 53. note d.) Private
property cannot oe taken without the owner's
conseal. (I Bl. Com., 138, 13!).) Our Bill of
Rights is copied from Mig/ia CfuirUi. (4 Bl.
Com.. 433. 444 : 1 N. R. L., 46.) As to the
Acts passed in the other colonies, if they were
arbitrary an 1 unconstitutional, they afford no
authority or precedent for us. Besides, it will
be found that in all the other states, they pro-
ceeded on usa^e. and the private examination
of the wife was indispensable.
In Diney v. Turner, I Dall., 11, there was a
private examination of the feme cooert, and an
usage of above fifty years, was found by the
special verdict. Again ; in Lloydf. Tuylvr,
1 Diill., 17, the constant usage of the Province
appe.irel in evidence. So, in Wiitnon v. foiiley,
1 Binn , 470. there was a private examination.
IO3*J and an Act of the Colonial * Assembly
of the 34th of February. 1770, as to usage, was
?iv(Mi in evidence ; and in Finder v. Sluuirer,
Mus.. 14-18. <7/i. J. Parsons puts it on the
ground of immemorial usage, and provincial
regulation. Tiu defendant, in this case,
ought, in like manner, to have given evidence
of the usa^e, if he intended to rely upon it.
Again ; the conveyance is by lease and re-
lease, which operates only by virtue of the
Statute of Uses, under which nothing passes
but what* the grantor has a right to convey,
and actually does convey. (Sand, on Uses,
378 ; 4 Cruise's Dig., 112, til. 33, ch. 6. sec.
43-47; II., tit. 32, ch. 13. sec. 10.) If a ten
ant for life alieues by feoffment, it is a forfeit
ure of his estate ; not so if he conveys by
lease and release ; for a conveyance by the
Statute of Uses does not produce a disseisin.
The husband cannot disseise the .wife. (2 Bac.
Abr., Discontinuance, C.) De Groff and
Groat were in possession of two small lots,
separately. A possession of a nook or corner
of the patent cannot operate as a possession of
JOHNS. HKP., 15.
the whole. De Groff entered only for a part,
and his entry is for his right, and co-extensive
with it. A possession which is to countervail
the legal title, must be a pedu ;*«.<, w». a real
and substantial iuclosure. an actual occupancy,
definite, positive and notorious. (Jnek»on v.
He/toon maker, 2 Johns., 280.) There can be no
extension of possession by construction where
it is against the right owner. The partition,
under the Colonial Act, was only according to
the rights of the parties ; it can 'have no effect
on the rights or claims of third persons. There
was, then, no actual possession . and so the
Statute does nol apply.
Again ; il is said we should have asserted
our right by actual entry ; but an actual entry
is not necessary, exccpl to avoid a fine. (Doug.'.
483.) Admitting, even, that the wife was dis-
seised, no actual entry was necessary, in order
to maintain this suit. The 3d section of this
Act shows what the Legislature meant by
actual possession. It speaKs of actual posses-
sion by a purchaser for twenty years past.
Next, we are told that we are bound by the
collateral warranty. The defendant's counsel
deny that the common law was in force in the
Colony ; and yet set up the doctrine of
Collateral warranty to bar the plaint- [*IO(J
iff. Where is this doclrine to be found but in
the ancient common law of England ? But,
we repeat, the colonists not only brought with
them the common law, but all the statutes
passed to meliorate that law, and to adapt it to
the progressive improvements of society ; and
wretched would have been their condition, in
many respects, without the benefit of those
remedial statutes.- Collateral warranties were
considered in England as agreal grievance; and
as early as in the 50 Edw. III., the Commons
petitioned the King to declare that no war
ranty should bar, unless where assets descended
from the warranting ancestor. The Statute of
Gloucester. 6 E.lw.l.. ch. 1, had been already
passed, which declared that if a tenant by the
curtesy aliened the estate which he held by
the curtesy, with warranty, his heir should
not be barred by such warranty, unless he in-
herited lands of equal value from his father.
By this Statute, then, the collateral warranty,
in this case, would be defeated, unless the an-
cestor of the lessors had assets, which does
not appear, but the contrary has been shown
by the defendant. (2 Inst., 291; 1 Inst.. 365
n; 4 Com. Dig.. Guaranty, II, 5; 4 Cruise's
Dig.. 56. tii. 32. ch. 6, seas. 18, 19.) Besides.
Irj Statute of 4 Anne. ch. 16 sec 21. which
abolished collateral warranties, was in force
in the Colony, though not re-enacted until
1773. and then from motives of policy merely,
and to remove all doubts on the subject. Our
Statute (sess. 24, ch. 169. sec. 7 ; 1 N. R. L..
183) is a re-euaclmenl of the Statute Glou-
cester, leaving out the clause as to assets, so
that no collateral warranty whatever, or in
any case, could bar the issueof the inheritance
of the mother. This shows the sense of the
Legislature as to these collateral warranties.
The counsel proceeded in answer to ihe de-
fendant's counsel, as to the nature and effect
of the collateral warranty ; but it is unncc
essary to state his argument further.
Again ; the defendant, and those under
whom he claims, entered under the deed, and
1027
106
SUPREME COURT STATE OF NEW YORK.
1818
so under the husband, and co-extensive only
with his right ; and as his estate ceased at his
death, they were only tenants by sufferance,
and could not destroy that relation, except by
an actual disseisin. Then the case of Jackson
v. Seurs, 3 Johns. , 433, applies. There A en-
1O7*] tered into possession of laud, *and
afterwards received a deed from his father
and mother, but which was not acknowledged
by the mother, to whom the land belonged ; it
was held that the acceptance of the deed re-
pelled the evidence that he entered adversely
to the title of his mother, and he was deemed
to hold, under the deed, his father's estate
only, for life ; and on his death, the land re-
verted to the mother and her heirs. (Jackson
v. Parker, 3 Johns. Cas., 124; Jackson v.
Sharp, 9 Johns., 163.)
Next, as to the presumptive evidence • the
principle is, that "Long and undisputed pos-
session of any right or property, affords a
presumption that it had a legal foundation,
and rather than disturb men's possessions,
even records have been presumed." (2Peake's
Ev., 22.) Omnia prcefsumunter solemniter ease
vacta. Where there had been uninterrupted
possession for ages, a grant from the crown
was presumed. (12 Co., 5, Bedlev. Beard.)
But these presumptions are allowed only to
make out a defendant's title against third per-
sons (1 Caines, 84; Jackson v. Woolly, 11
Johns,, 456), not against a clear derivative
title. The presumption is founded on actual
possession, which must accompany and go
along with the deed. In Palmer v. Hicks, 6
Johns., 135, the court say that they will not
presume a grant of land under navigable water
to the owner of the adjacent soil, without evi-
dence of long exclusive possession and use to
warrant it. In the cases cited by the other
side, the usage was considered as evidence ol
a grant or agreement ; but this evidence may
be repelled by showing that the usage was
limited, &c. (Phi). Ev., 120, 121.) The usage
which is supposed to be founded on a grant
or agreement, determines also the extent of
the supposed grant. The right granted is
considered as commensurate with the right
enjoyed. (Phil. Ev., 124; 4 East, 339, 340.)
There is no such evidence in this case. No
adverse possession whatever has been shown
prior to 1787. (Jackson v. M'Call, 10 Johns.,
377. 380 ; Jackson v. Lunn, 3 Johns. Cas., 109,
118.
Time, or antiquity of title, is nothing,without
a possession going along with it. (2 Pcake's
Ev., 110, 112, 113 ; Bull. N. P., 255.) There
can be no presumption against a clear title de-
1O8*] duced *from the government, short of
an actual possession for twenty years. The
presumption is admitted only in aid of a defect-
ive title. Multiplied presumptions cannot
avail anything, unless founded on actual pos-
session. A deed one hundred years old is
nothing without possession. The mere record
of a deed, for the sake of preserving the evi-
dence of title, is no notice, though a registry,
made necessary to support .title, is so. A
survey of land is not evidence of possession,
Every presumption may be rebutted by other
evidence, by parol evidence, or any kind of
proof which goes to destroy it. (Runn. Eject. ,
284.) Presumption arises from acts, not from
1028
non-feasance. There is no evidence of any
acts done by A. Bridges to raise a presump-
tion. Again ; presumptions are to supply
facts about which there is no proof. Now,
here the deed itself is produced, and the court
are called upon to presume that deed to be a
legal and perfect conveyance. They produce
a defective deed, and ask that it be presumed
good. If the deed had not been produced,
here might have been some reason for presum-
ing everything in its favor. In Jackson v.
Vosbvrgh, 9 Johns., 270, the court say that
the possession, in common, had existed so long,
that a title, in common, might have been pre-
sumed, had not the defendant shown a will as
the source from whence he derived .title ; and
the being abandoned, the door was shut against
presumption in favor of any other title.
THOMPSON, Ch. J., delivered the opinion of
the court :
The lessors of the plaintiff derive title under
Ann Bridges, who was one of the original
patentees ; and their right to recover is made
out, unless the title of Ann Bridges has been
devested, by her own act, in conveying it
away, or the right to recover in this action has
been lost by lapse of time. The vast amount
of property involved in the questions to be
settled by this case, has increased their interest
and has drawn forth from the counsel, on the
argument, a very able and elaborate discus-
sion. The conclusion to which the court has
arrived, and the point on which the decision is
unanimously placed, has rendered it unneces-
sary for me to *notice many of the [*1O9
questions which were brought under examina-
tion on the argument.
It is contended, on the part of the defend-
ant, that Ann Bridges, who had intermarried
with Joshua Hunloke, parted wilh her title by
the deed, executed by her and her husband, to
Peter Fauconier, bearing date the 12th day of
February, 1711. It is objected, however, on
the other side, that this deed was not acknowl-
edged in §uch a manner as Jo devest the title
of a feme covert. The acknowledgment pur-
ports to have been made before John Blanch-
ard ; and his certificate, indorsed on the deed,
is in these words: "This day came before
me, one of His Majesty's justices for the
County of Essex, the within-mentioned Joshua
Hunloke, and Ann, his wife, to acknowledge
this indenture to be their acts and deed, this
19tb day of February, 1711. John Blanc-hard."
In the deed the grantors are described as of
Elizabethtown, in the Province of East New
Jersey, and the grantee as of the City of New
York. At the time this acknowledgment was
made, we had no colonial Act on the subject.
This has given rise to a very interesting dis-
cussion of the question, how far we were gov-
erned and controlled by the common law, in
the acknowledgment of deeds by femes cotert,
and by which a feme covert could be devested
of her title only by fine, or some matter of rec-
ord ; and on which proceeding she was re-
quired to be examined privately, or by the
court, to ascertain whether she has parted with
her estate freely . and without compulsion from
her husband But there being some diversity
of opinion on the Bench, how far the common
law mode of proceeding was at that time in
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. GILCUKIBT.
109
force here, it has been thought unnecessary, at
present, to decide that point. It may, how-
ever, I think, be assumed that, in point of fact,
and as matter of practice, the common law, in
this respect, has never been adopted with us ;
and it may not be amiss briefly to observe that,
in some of our sister states, which were British
colonies, and, equally with us, subject to the
common law, the mode oft acknowledgment
adopted in this case, has been substantially
recognized and sanctioned. In the case of
Datey et ux. v. Turner, 1 Dall., 11, decided in
the Supreme Court of Pennsylvania, as early
1 1O*J as the year 1764, it *was placed on the
ground of usage and custom, and the maxim
t '"in in 't ni* error facit jus. The force and effect
of such usage was again noticed in the case of
the Lewee of Watson v. Bailey, 1 Biun., 470,
where Yates, J.. very justly observes that the
maxim just alluded to had great weight, when
the most injurious consequences would flow
from counteracting it. Lord Coke says (2 Inst.,
28). usage has prevailed, even against MagiM
Charta. In the Supreme Court of Massachus-
etts, Cfi. J. Parsons, in the case of 'Foicler v.
Stiearer, 1 Mass., 20, speaking of an usage in
that state, as to conveyances by married women,
says, that estates never have there been con-
veyed by fine, in which the wife might be ex-
amined, and by her consent, be barred'by the
tine ; that whatever was the origin of the
usage, it could not be disallowed, without
shaking very many of the existing titles to
real estates ; and that it must now be con-
sidered as the law of the land. But, as the
decision of the case before us is placed entire-
ly upon the Colonial Act of 1771 (Van. Sch.
ed. Laws, 611), it is unnecessary for me further
to notice the usage on this subject, or to in-
quire how far we were then bound by the com-
mon law. I have barely referred to some
cases that have arisen in other states, where a
similar usage has been sanctioned, to show
that the common law mode of conveyance, by
fine, was not in practice there, nor, most likely,
in any of the British American colonies. What
part of the common law of England was in
force here, before the American Revolution,
has been a subject of very considerable doubt
and difficulty .(Smith's Hist. N. Y., 872, 381);
and is not now intended to be decided.
The Colonial Act, to which I have referred,
purports to be an Act to confirm certain ancient
conveyances; and recited, that "whereas, it
has been an ancient practice in this Colony to
record deeds concerning real estates upon the
previous acknowledgment of the grantors, or
proof made by any of the subscribing witnesses
before a member of His Majesty's Council, a
judge of the Supreme or County Court, or a
master in chancery, and sometimes before a
justice of the peace. And whereas, there are
lands and tenements held under the deeds of
feme* covert, not acknowledged in manner
aforesaid, and yet made boiia fide, and for
111*] valuable consideration, *the purchas-
ers whereof, and those holding under them,
ought to be secured, both in law and equity,
against the respective grantors, their heirs
and assigns. It is, therefore, enacted that no
claim to any real estate, whereof any person
is now actually possessed, whether as tenant
in common, or otherwise, -hall be deemed to
s. Ui.i- . 15.
be void, upon the pretense that the feme covert
granting the same had not been privately ex-
amined before any of the public officers or
magistrates aforesaid." The Act then pro-
ceeds to direct the manner in which deeds,
thereafter to be made, should be acknowledged
and recorded. The provisions of this Act ap-
ply so directly to the deed in question, that all
objections to the title derived under it must
cease, unless the Act itself can be got rid of.
The inference drawn by the counsel from the
form of the certificate of acknowledgment
(that the parties came before the magistrate to
acknowledge, Ac.), that no acknowledgment,
in fact, was made, cannot be correct. An ac-
knowledgment was deemed necessary, and the
parties went before the officer for the purpose
of making it ; and it would be a most unrea-
sonable conclusion that it was not, in fact,
done. The officer could hardly have been
guilty of so absurd and nugatory an act, as
to give a formal certificate, that the parties
came before him to acknowledge the deed, if
they did not actually acknowledge it. Nor
are we to conclude, that because the certificate
doe-- not state a private examination of the
wife, that no such examination took place.
After such a lapse of time, this might and
ought to be presumed ; especially as there was
no statute in any manner prescribing the form
of the certificate.
But the Act of 1771 meets the case, and de-
clares that the estate shall not be deemed to be
void, upon the pretense that ihefeme covert
granting the same had not been privately ex-
amined before the officer. It is not necessarily
to be inferred from this provision that it ap-
plied to cases where no private examination
had. in fact, been made. The Act was in-
tended to confirm ancient conveyances, and
to prevent the want of evidence of a private
examination being set up to avoid the deed,
presuming the evidence of the fact to be lost
by the lapse of time. Had it been intended to
make good a deed *where no private [* 1 1 2
examination at all had taken place, it would,
probably, have been so declared in terms, and
not have spoken of this defect as a pretense,
which by no means necessarily implies an ad-
mission of an entire omission of such examina-
tion. This construction is strengthened by
the provision in the next section, that in all
acknowledgments, thereafter, the officer taking
the same shall set forth, in his certificate, that
the wife had been privately examined, and
confessed that she executed the deed freely,
without any fear or compulsion of her hus-
band. Assuming, then, that a private exam-
ination was, in fact, made, though omitted to
be set out in the certificate, the great object in
view at the common law has been answered,
to wit : to ascertain whether the wife acted
under fear or compulsion. In a conveyance
by common recovery, the feme covert was not
examined privately, she being in court, or pre-
sumed to be there. The examination of the
judges destroyed the presumption of the law
that she was acting under the coercion of her
husband. (10 Coke, 48 ; 2 Roll. Abr., 395.)
Several objections have been taken to this
Act, however, which it is necessary to notice.
Ii i< said to be against the express provisions of
the Charter of the Duke of York of 1683,
1029
112
SUPREME COURT, STATE OP NEW YORK.
1818
which declares that no estate of a feme covert
shall be sold or conveyed but by deed ac-
knowledged by her in some court of record,
the woman being secretly examined, if she doth
it freely, without threats, or compulsion of her
husband. (2 N. R. L., App., IV.J If this
charter was in force here when the acknowl-
edgment in question was taken, and when the
Act of 1771 was passed, there would be weight
in the objection ; but I believe it has been the
general, if not the universally-received opinion,
that this charter was not in force here after
the Revolution of 1688. In the journals of the
General Assembly of New York of the 24th of
April, 1691, we find the following proceed-
ings :
"Upon an information brought into this
House by several members of the House, de-
claring that the several laws made formerly by
the General Assembly, and his late Royal
Highness, James, Duke of York, &c. ; and also
the several ordinances, or reported laws, made
by the preceding Governors and Council, for
the rule of their Majesties' subjects within
113*] *this Province, are reported, amongst
the people, to be still in force ; resolved,
nemine contradicente, that all the laws con-
sented to by the General Assembly under
James, Duke of York, and the liberties and
privileges therein contained, granted to the
people, and declared to be their rights, not
being observed, and not ratified and approved
of by His Royal Highness, nor the late King,
are null, void and of none effect ; also the sev-
eral ordinances made by the late Governors
and Councils, being contrary to the Constitu-
tion of England, and the practice of the gov-
ernment of their Majesties' other plantations in
America, are, likewise, null, void and of none
effect within, this Province." (1 Vol. Jour.,
8.) We do not find this charter published in
any edition of the colonial laws, as we most
undoubtedly should, had it been considered in
force. By a resolution of the General As-
sembly of the 12th of November, 1709 (I Vol.
Jour., 267), Mr. Bradford is directed to print
all the Acts of the General Assembly of the
Colony then in force since the arrival of
Col. Stoughton (January, 1689), and the Char-
ter of the Duke of York, would, undoubtedly,
have fallen within the scope and purview, if
not within the letter of this resolution ; for
that charter purports to be enacted by the
Governor, Council and representatives, in
General Assembly, and by the authority of the
same. That the Charter of the Duke of York,
as such, was not considered in force after the
Revolution of 1688, is very obvious ; because
the General Assembly of the Colony, in 1691,
passed an Act declaring what are the rights
and privileges of their Majesties' subjects in
habiting within the Province of New York, in
which many of the provisions in the charter of
the Duke of York are. incorporated, and,
doubtless, all that were intended to be in
force ; among others, the very provision rela-
tive to conveyance by j 'emeu covert. (Brad. ed.
Laws, 2, 5.) But this Act was repealed by the
King on the llth of May, 1697, as appears by
a marginal note in Van Schaack's edition of
the laws (p. 5), and which was made pursuant
to the authority given him by the Act of 1772
(Van Schaack's ed. Laws, 676), appointing
1030
him to revise and digest the laws of the Col-
ony. The Charter of the Duke of York not
being included in this revision, affords irre-
sistible evidence that it *was not [*114
deemed to be in force here ; for he was au-
thorized and required to revise, digest and
cause to be printed all the laws, from the hap-
py Revolution, down to the end of the then
session (1772). Frpm this view of the acts and
proceedings of the Colonial Legislature, we
may very safely conclude that in 171.1, when
the acknowledgment in question was taken,
there was no charter, or statute regulation, on
the subject in force here ; but that a loose and
unsettled practice prevailed, as is set forth in
the recital to the Act of February, 1771. It,
therefore, became highly necessary and proper
that what had been done under such usage or
practice, should receive legislative sanction.
It, has also been contended that this Act in-
terfered with the vested rights of the heirs of
Ann Bridges ; and, on this ground, ought to
be declared null and void. Without entering
into the question of the authority of the court
to set aside the Act altogether, it is certainly a
delicate power, and ought to be exercised cau-
tiously, and in extreme and palpable cases
only. We do not consider the one before us
as one of that class. It is an Act confirming
and quieting the title of bonafide purchasers,
and sanctioning an ancient custom as to the
form of acknowledgment. Such an Act ought
to receive a liberal and benign interpietation,
for the purpose of securing titles derived un-
der such deeds. In Jackson v. Schoonmaker,
2 Johns., 234, this court, in speaking of the
loose manner of taking the proof of deeds,
prior to the Act of 1771, say that the practice
in the Colony before that time, is, undoubt-
edly, to be regarded on a question touching
the authority and validity of an ancient deed.
By the custom, in some cities and boroughs in
England, a bargain and sale, by the hus-
band and wife, where the wife is examined by
the mayor, or other officer, binds the wife,
after the husband's death. (2 Inst., 673.) By
the Statute 34 Hen. VIII., ch. 22, all such cus-
tomary conveyances are declared to be of
force, notwithstanding the Statute 32 Hen.
VIII., ch. 28, which required the conveyance
to be by fine, levied by the husband and wife.
The Statute 34 Hen. VIII. refers to and sanc-
tions certain customs, which had existed in
some cities, boroughs and towns, as to taking
and acknowledging deeds, and declares that
the same shall stand; *any thing in the [*116
Act of 32 Hen. VIII. to the contrary notwith-
standing. So there is a custom in the town of
Denbigh, in Wales, that a feme covert, witlingr
husband, may aliene her land there, and it
shall bind the wife, and her heirs, as a fine
does. This custom is not taken away by the
Statute of Wales, 27 Hen. VIII., ch. 28, be-
cause, as is said by the court, the custom is
reasonable, and agreeable to some customs in
England, for the assurance. of purchasers.
(Dyer, 363.) Thus we see, that in England
certain customs as to acknowledgements by
femes covert, have been recognized and sanc-
tioned by Acts of Parliament, notwithstand-
ing such'customs were contrary to the course
of the common law. But this Colony Act
receives very considerable strength and con-
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. G ICHRIBT.
115
Urination from the 35th article in our Consti-
tution (1 N. R. L., 41), which declares that
such parts of the common law of England,
and of the statute law of England and Great
Britain, and of the Acts of the Legislature of
the Colony of New York, as, together, did
form the law of the said Colony, on the 19th day
of April, 1775, shall be and continue the law
of this State, subject to such alteration as the
Legislature shall, from time to time, make con-
cerning the same. The Act now in question
comes directly within this Article, and may
fairly be considered as expressly adopted by
the Constitution. It had very recently been
passed, and must have been within the
knowledge of the framers of the Constitution,
who were men too enlightened and upright to
infringe upon vested rights. But this Article
affords a fair inference also (if it had been
thought necessary to enter into that question),
that the whole body of the common law was not
considered in force and operation here ; other-
wise the article would not have spoken of a
part. It adopts such part of the common law,
which, together with the statute law, did then
form the law of the Colony ; and how is this
to be ascertained ? It must be, either by
showing an express adoption, or an implied
one. to be collected from the course and prac-
tice of the courts, and the usages and customs
which prevailed in the government. As it
rc-pects the acknowledgment of deeds by
femet covert, the common law 'modes, by fine
and recovery, never were in use here. If it
1 1 O*] were necessary to *pursue this question
further, the Act of 1771 might be strongly
fortitied, by referring to what has taken place
in other states, in most of which similar laws
have been passed ; and from aught that ap-
pears, have been sanctioned and upheld by
their courts of justice.
But it has been argued that, admitting the
validity of the Act, no such possession has
been shown as to bring the present case within
its provisions. Before noticing the facts in
relation to the possession, it will be proper to
examine the Act itself, and see how broad a
construction it will admit. It is, in -general,
true that the preamble of a statute is a key to
open the mind of the makers, as to the mis-
chiefs which are intended to be remedied by
the statute. This rule must not, however, be
carried so far as to restrain the general words
of an enacting clause, by the particular words
of the preamble. (6 Bac. Abr.. 380, 381.) Al-
though the preamble cannot control the en-
acting part of a statute, which is expressed in
clear and unambiguous terms, yet, if any
doubt arises on the words of the enacting
part, the preamble may be resorted to, to ex-
plain it. (4 T. R., 793; Sir William Jones.
168, Palm., 485.) In the preamble to this Stat-
ute, nothing is said with respect to possession
of the land, nor anything from which it could
be inferred that the Act was intended to be
confined to deeds for lands in actual posses-
sion, at the time of passing the Act. After re-
citing the practice that had prevailed with re-
spect to acknowledgments, it recites that there
arc lands and tenements held under the deeds
of femt* coeert, not acknowledged in manner
aforesaid, and yet made bona fide and for valu-
able consideration. By this it would seem
JOHNS. 1:1.1- . 15.
that the cases intended to be embraced were
those where the purchase was bonafdt&Rd for
valuable consideration ; that, in such cases
the purchasers, and those holding under them,
ought to be secured, both in law and equity,
against the grantors, their heirs and assigns.
The unimproved state of the lands in the Col-
ony, at that time, affords a pretty strong ar-
gument that the intention of the Legislature
was to confirm and secure the title in all such
cases. To restrict the Act to those cases only
where there was a pedit postftnio, would bV
providing only for a small *proportion [ *1 1 1
of the cases probably intended to be embraced;
as, comparatively speaking, but a small part
of our lands were, at that time, under actual
cultivation and improvement. With such a
preamble, and taking such to be the situation
of jhe country, let us apply the enicting
clause. It, declares that " no claim to any
real estate whereof any person is now actually
possessed, whether as tenant in common or
otherwise, shall be deemed void, upon pretense
that \\\\- f< in, covert granting the same had not
been privately examined," &c. If this clause
was to be construed without any reference to
or aid from the preamble, I should think it
would apply only to those cases where the
land for which the deed was given was in act-
ual possession. But considering the enacting
clause with an eye to the preamble, it would
be no very strained construction to apply the
word "possessed" to the claim or title, instead
of the land itself ; and then there would be
perfect harmony between the preamble and
the enacting clause. But it is not necessary,
in this case, to resort to this construction. It
has been noticed only for the purpose of show-
ing that all acts of ownership exercised over
the land should be viewed as the acts of one
having title and therefore, liberally construed,
and not as the acts of one setting up a posses-
sion in opposition to the title, which are to be
construed strictly. It is not denied that a
regular and complete paper title has been de-
duced to the defendant, and those under whom
he claims, from Peter Fauconier, the grantee
in the deed from Ann Bridges and her hus-
band. Nor is it pretended that there has ever
been any actual possession in hostility to this
title ; and it is a settled rule of law, that where
there is no adverse holdinir. the posses-
sion is deemed to be in him who has title.
This doctrine has been extended by this court
farther, perhaps, than the English 'rule would
admit. In Jackton v. Seilifk, 8 Johns., 262, it
is held that where afemecocert is the owner of
wild and uncultivated land, she is considered,
in law, as in fact possessed, so as to enable her
husband to become a tenant by the curtesy.
The observations made by the court in that
case apply, with peculiar force, to the present.
It is said there was no pedi» po»»e**w, or pos-
session in fact, of the premises, in the popular
sense of the words, by the *husband [* 1 1 8
or his wife, during the coverture ; lor the
lands remained, as new lands, wild and un-
cultivated, though the title clearly existed in
the wife. The question is, was she not con-
sidered as seised in fact, so as to enable her
husband to become a tenant by the curtesy?
To deny this would be extinguishing the title
of tenant by curtesy to all wild and unculti
1031
118
SUPREME COUKT, STATE OP NEW YORK.
1818
vated land. It has long been a settled point
that the owner of such land is to be deemed
in possession so as to maintain trespass. The
possession of such property follows the title,
and so continues until an adverse possession
is clearly made out. This is the uniform
doctrine of this court. Adopting this rule of
construction, the Act of 1771 would be fully
satisfied without any acts of ownership exer-
cised over the land ; but the case before us
does not rest even here ; for, as early as in the
year 1768, a part of this tract, under the title
derived from Ann Bridges, was sold to Lewis
Groat, and actual possession taken of the same,
which has continued down, ever since, under
title derived from him. Groat, by his deed,
became responsible, and covenanted to pay
the quitrent on the whole patent ; and for
many years thereafter he actually did pay .the
same. " In the same year, about eight hundred
acres more of this tract were sold to H. De
Groff, and actual possession taken, and im-
provements made, and it has been ever since
held under the same title. But the partition
which was commenced in the year 1769, and
pending, at the very time the Act of 1771 was
passed, was a still more direct act of owner-
ship exercised over the whole tract. This par-
tition was made under the.Act of 1762 (Van
Schaack's ed., 403), according to the pro-
visions of which various acts of public notoriety
and ownership were made indispensably nec-
essary. Among others, a survey of the whole
tract to be divided was made. All this was
done without any one appearing to set up or
represent the claim of Ann Bridges, upon
which the lessors of the plaintiff now place
their right to recover, although public notice
of such proceedings was given in two news-
papers, for twelve weeks, directed to all per-
sons interested in the tract.
Without entering more particularly into the
evidence of actual possession, we feel perfectly
1 19*] persuaded that enough *has been
shown to bring the present case within the
spirit, true intent and meaning of the Act of
1771 ; and that the defendant is entitled to all
the benefit and protection which it affords.
Judgment must, accordingly, be rendered for
the defendant.
Judgment for the defendant.
Alienation by married woman. Cited in— 17 Wend.,
129; 2 Hill, 241: 6 Hill, 183; 4 N. Y.,13; 10 N. Y.,
426 : 47 N. Y., 113; 4 Bos., 295.
Presumption of acknowledgment— of private exam-
ination. Cited in— 17 Wend., 342 ; 4 Edm., 75 : 18
Barb., 52 ; 36 Super., 299; 31 N. J. L., 15.
Construction of Statute. Cited in— 13 Hun, 21;
20 How. Pr., 81.
HOGHTALING t>. OSBORN.
Practice in Justice Court — Verdict Received on
Sunday — Entry of Judgment on Sunday,
Illegal.
Where a jury has been impaneled before Sunday
commences, their verdict may be received on Sun-
day; but in a trial in a justice's court, the justice
cannot enter judgment on the verdict on that day.
IN ERROR on certiorari to a justice's court.
The defendant in error brought an action
in the court below against the plaintiff in er-
1032
ror, and a verdict was found for the defend-
ant in error. It appeared, however, that the
verdict was received and the judgment ren
dered on Sunday.
Per Curiam. It was proper to receive the
verdict, presuming that the jury were impan-
eled before Sunday commenced ; but it was
illegal to enter the judgment on Sunday, and
for that cause it must be reversed.
Judgment reversed.
Cited in— 8 Cow., 28 : 1 Den., 206 ; 44 N. Y., 436 ;
8 Barb., 386 ; 22 How. Pr., 447 ; 1 Hilt.. 475; 16 Kas...
494.
LORING v. HALLING.
Statute — A Month in Law i» a Lunar Month —
Notice of Sale under Mortgage.
The word "month," when used in a statute, is, if
nothing1 appear to the contrary, to be understood
a lunar and not a calendar month.
The public notice required to be given in cases
of sales under powers in mortgages (sess. 26, ch. 32,
sec. 6 ; 1 N. R. L., 374), is sufficient, if published for
six successive lunar months previous to the time
of sale.
Citations— 2 Bl. Com., 141 ; 1 Johns. Gas., 100 ; 6 T.
R., 226 ; IN. R. L., 374; 7 Johns., 217.
IN ERROR on certiorari to a justice's court.
The defendant in error brought an action
in the court below against the plaintiff in
error, and declared on a note or memorandum
given for $24, on the sale of certain mortgaged
premises, pursuant to a notice under the Stat-
ute. *By this note, the defendant below [* 1 2O
promised to pay that sum when the deed was
given, provided the proceedings and sale had
been regular, pursuant to the Statute, and the
only question made upon the trial was as to-
the sufficiency of the notice, which was dated
on the 17th of February, 1817, and inserted
in a public newspaper the next day, and the
sale was on the 7th of August. The justice
considered the -notice sufficient, and accord-
ingly gave judgment for the plaintiff below,
the defendant in error.
Per Curiam. A month in law is a lunar
month, or twenty-eight days, unless otherwise
expressed (2 Bl. Com , 141); and this, as a
general rule, is recognized by this court in
Leffingwell v. Pierpont, 1 Johns. Cas., 100; al-
though it is there decided that it does not ap-
ply to bills of exchange and promissory notes ;
but that, in the computation of time, in rela-
tion to those instruments, a month is construed
to mean a calendar month. In Laconv. Hooper,
6 T. R., 226, it is laid down as a general rule
that when the word " month" is used in a stat-
ute, without the addition of " calendar," or
any other words to show that the Legislature
intended calendar months, it is understood to
mean a lunar month. Lord Kenyon there ex-
pressed a wish that when the rule was first es-
tablished, it had been decided that " months"
should be understood to mean "calendar," and
not "lunar" months; but observed that the con-
trary had been so long and so frequently de-
termined that it ought not again to be brought
in question. By an Act (1 N. R. L., 374), the
notice is required to be inserted and contin-
ued, at least once a week, for six successive
JOHNS. REP., 15.
1818
BURDEN v. FITCH.
120
months previous to the sale, in one of the
newspapers, &c. There are no words here to
take it oat of the general rule that "month"
means lunar month ; and this seems to have
been the construction given to this Statute in
Jackson v. Clark. 7 Johns.. 217. The sale in
that case was decided to be irregular, but no
intimation was given that the time was too
short ; and the notice there was, like the pres-
ent, computed bv lunar months : it was dated
on the 17th of February, and the sale was on
the 12th of August. From these considera-
tions it is very clear that the mode of comput-
ing the time of notice, required by the Stat-
121*] ute. must *be by lunar, and not by cal-
endar months ; and this being the only ques-
tion raised on the return, the judgment must
be affirmed.
Judgment affirmed.
Cited In— 4 Wend., 518.
BORDEN ». FITCH.
Husband and Wife — Divorce — Judgment Ob-
tained in anot/tfr State without Notice to De-
fendant or Jurisdiction of Subject Matter,
Void — Under Paine Representations in Vo\d —
Arrest of Judgment — Pleading — Damage*.
A judgment rendered by a court of another state,
which has jurisdiction neither of the subject of the
action, nor the person of the defendant, is void, and
will not be enforced in the courts of this State.
A judgment rendered in another state against a
defendant who never appeared, and had no notice
of the proceedings, is void.
A divorce obtained in Vermont by a husband from
his wife, who resided in another state, and had no
notice of the j>endency of the proceedings, is void,
and will not legalize a subsequent marriage con-
tracted in this State.
A Judgment, or decree, obtained on false or fraud-
ulent suggestions, is void.
It aeems that a Judgment obtained in the courts
of another state, having jurisdiction of the subject
of the suit, and in which the defendant has been
duly notified to appear, is conclusive in the courts
of this State.
Where a count in a declaration contains a suffi-
cient cause of action, connected, however, with
matter insensible and void, or not actionable, it
will be intended, after verdict for the plaintiff, that
damages were given only for the part that is ac-
tionable, and the judgment will not be arrested.
Citations— 9 East, IK; 9 Mass., 4ft4: Kirby, 119;
1 Hall., l-'.l : 5 Johns., 41 ; 8 Johns.. 90. 197 : 13 Johns.,
192 ; 10 Mass., 282 ; 7 Cranch., 481 ; 1 Johns., 424 ; 3
Co., 77.
THIS was an action on theca.se for debauch-
ing the daughter and servant of the plaint-
iff, per qu<xf serritium a intuit. The declaration
contained three counts. The first count was
for debauching Rebecca Borden, the daughter
of the plaintiff, per quod, &c. The second
count was for enticing from the plaintiff's
service.and debauching her daughter Rebecca,
for the space of ten weeks, per quod, &c. The
third count stated that Rebecca Borden re-
sided with her mother, the plaintiff, and
greatly assisted her in the business of her
family ; that the defendant, by falsely repre-
Nor«.— Foreign Judgments— Divorce* obtained in
other StatfK without juriadirtiim nf dependent nr
nJiJrct matter. For full dlsctianiono. we Pawling v.
Bird, la Johns.. IW2; Hitckcock v. Aicken. 1 Cal.,
400, n»tt ; Vandenheuvel v. United Ins. Co.. 2 Johns.
Caa., 451, note.
.1 «>i INS. RKP., 15.
seating to the said Rebecca that his former
wife was dead, and that he was then unmar-
ried, induced and persuaded her to marry him
in case her mother would consent ; and to ob-
tain the plaintiff's consent, falsely represented
to the plaintiff that bis former wife was dead,
and that he was then unmarried, by means of
which false representation he induced the
plaintiff to consent ; and the plaintiff, confid-
ing in his representation, did consent, and the
marriage was, thereupon, had between the de-
fendant and the said Rebecca ; whereas in
truth and in fact, the lawful wife of the de-
fendant was then living, and the defendant
was not then unmarried, which the defendant
well knew ; that the defendant, afterwards,
•abandoned the said Rebecca, and left F*l 22
her wholly destitute of support, and still does
neglect and refuse to maintain and support
her ; by means whereof the plaintiff has been,
and still is deprived of the service of the said
Rebecca, who had been rendered unable to
maintain herself, or assist the plaintiff ; and
that the plaintiff had expended divers sums of
money, to wii : the sum of $500. about the
nursing and maintaining of the said Rebecca.
The cause was tried before Mr. Justice Platt,
at the Orange Circuit, in September, 1816.
The defendant, Stephen Fitch, was married
in 1784, in the State of Connecticut, of which
he was then an inhabitant, to Charlotte Sellick,
and they resided together, as man and wife, in
the State of Connecticut, until some time in
the year 1807, when they separated ; during
which period they had several children. In
September, 1807, Charlotte Fitch presented a
petition to the General Assembly of the State
of Connecticut, complaining of the cruel usage
of her husband, who had, at various times,
beaten her, and threatened to take away her
life ; and had so terrified her that she was
afraid to live with him, and had fled from his
house for protection ; and praying to live sep-
arately from him, and be divorced from his
bed and board, and for a separate maintenance
from him, and to have the government and
guardianship of her two youngest children.
The resolve of the General Assembly stated
that the petition had been duly served on the
defendant, and that the parties appeared and
were heard, and that threats of cruelty of the
defendant to his wife were proved ; whereupon
it was resolved, at the General Assembly held
at New Haven in October, 1808, that the pe-
titioner intent, at her election, live and reside
separately from the defendant, without being
subject to his control, and with the privileges
of a ft- me sole; and the sum of $150 was or-
dered to be paid to her annually by the defend-
ant, for her maintenance, on condition, how-
ever, that she should cause the resolve to be
recorded in the records of New Canaan, where
she resided.
The defendant's wife, after her separation
from him, resided constantly in the State of
Connecticut, and was living during the period
of all the transactions hereafter mentioned.
The defendant, in 1813. applied to the Su-
preme Court of the *State of Vermont [* 1 23
fora divorce a tinculo matrimonii, which was
granted, at the term of that court, held in A u
truM, 1818. The record of the decree of the
court contained the following recital : " Ste-
1083
123
SUPREME COUUT, STATE OF NEW YORK.
1818
phen Fitch, of Windsor, in the County of
Windsor, and State of Vermont, having, by
his petition, addressed to this court, stating
that he, on the 4th day of June, in the year of
our Lord 1794, was lawfully married to one
Charlotte Sellick, then of Stamford, in the
County of Fairfleld, and State of Connecticut ;
and that the said Charlotte, among other
causes and things, has been guilty of willful
desertion for more than three years, with total
neglect of duty ; and therefore praying that a
bill of divorce may be granted him in the
premises ; and it being shown to the court
that the said Charlotte has been duly notified
to appear before this court (if she see fit), to
show cause, if any she have, wherefore the
prayer of the said petition should not be
granted ; and the said Charlotte not appearing
or showing sufficient cause, this court, having
fully heard said petition, and the evidence in
support of the same, do order and decree that
the prayer thereof be granted ;" and the mar-
riage is, accordingly, declared null and void,
to all intents and purposes. It did not appear
that the defendant's wife had any actual no-
tice of the pendency of these proceedings ;
and the Act of the Legislature, of Vermont
Relative to Divorces required only a publica-
tion in the newspapers of the citation, in the
case of non-resident defendants.
In October, 1814, the defendant applied to
the plaintiff, a widow, residing at New Wind-
sor in the County of Orange, to receive his
two sons into her family, as boarders. To this
the plaintiff, after deliberation, consented,
and the defendant then requested permission
for himself to remain in the family a short
time, until he could ascertain whether his
children would be contented with their situa-
tion. This request was also acceded to, and
the defendant, on coming to reside in the
family, affected a deportment of the utmost
mildness, benevolence and piety. He fre-
quently dwelt, in conversation, with peculiar
tenderness on his deceased friends, and in con-
nection with them often spoke of his wife,
using such ambiguous phrases, as " the de-
parture of his wife" — "that his wife had de-
124*] parted ;" so that, *from the manner of
his expressions and the occasions on which they
were introduced, he fully impressed all who
heard him with the idea that his wife was
dead. Soon after he was admitted into the
plaintiff's family, he paid his adresses to her
daughter, Rebecca, who was then of the age
of twenty-five years and materially assisted in
the support of the family, by her needlework.
The consent of the daughter and her mother,
the plaintiff, who were acting under the full
belief that the defendant was unmarried, was
obtained, and the marriage took place about
the 28th of November, 1814. On the very
next day the defendant threw aside his as-
sumed character, and commenced towards his
new wife a conduct of extreme harshness and
severity, though not amounting to personal
violence, often raising gross and unfounded
charges against her reputation and virtue,
which were made the pretext for frequent
threats and abuses ; and finally, by his inces-
sant persecution, her health and all her facul-
ties were impaired. About a week after the
marriage it was discovered that the first wife of
1034
the defendant was still living; and although this
circumstance was an additional source of dis-
quiet, yet there was at first no suspicion as to the
legal validity of the subsequent marriage. In
the latter end of January or the beginning of
February, 1815, the defendant was required
by the plaintiff to leave the house, and he re-
moved, with the plaintiff's daughter, to lodg-
ings which he had taken about three miles
distant, where they continued a week, when
application having been made to counsel to
take measures for the relief of the plaintiff's
daughter, the defendant was arrested and im-
prisoned on a charge of bigamy, by which
means she was released, and returned to the
plaintiff's family. The defendant was stated
to be a man of considerable property, and evi-
dence was produced of the good character of
the plaintiff's daughter, and of loss of service.
At the trial, Rebecca Borden was produced
as a witness, on the part of the plaintiff, and
was objected to on the ground that the witness
was the defendant's wife ; in support of which
objection the decree of divorce of the Supreme
Court of Vermont was given in evidence, and
hence arose *the question as to the [*125
validity of that divorce. The judge decided
that it was void ; and the witness being ad-
mitted, the defendants counsel excepted to
the opinion of the judge.
The judge charged the jury that the divorce
granted in Vermont was of no validity, as
regarded the plaintiff's right of action, and
that the acquiescence of the plaintiff in the
cohabitation of the defendant with her
daughter, under the circumstances of the case,
did not impair her right of action. The de-
fendant's counsel excepted to this charge, and
the jury found a verdict for the plaintiff for
$5,000, being the amount of the damages laid
in the declaration.
There was a motion in arrest of judgment ;
and also to set aside the verdict.
Mr. Bristed, for the defendant. 1. As to
the motion in arrest of judgment. Several
and distinct rights of action are blended in the
declaration. A plaintiff cannot join, in the
same action, a demand in his own right and
a demand in the right of another. (Han-
cock v Haywood, 3 T. R., 433 ; 1 Chitty's Pi:,
200.) Here the plaintiff, in the third count,
joins her own claim for the loss of the service
of her daughter, with the claim of her
daughter to be supported by her husband, the
defendant. An action for a tort must be
brought in the name of the person whose
legal right is invaded. (Dawes v. Peck, 8 T.
R.. 330~; Chitty's PL, 45, 46 ; I Lev., 247 ; 1
Sid., 375.) No action is sustainable against
the defendant, the second marriage being
valid.
If the action is maintainable at all, it should
have been brought by the daughter, not the
mother. The daughter has an action on the
case, for the injury arising from the fraud
practiced upon her. (1 Skinn.,119; 1 Bac.
Abr., Action on the Case, K.) Damages can-
not be twice recovered for the same injury ;
and a recovery by the mother will be no bar
to the daughter's action.
The verdict, though general, cannot be
amended. (Hopkins v. Beedle, 1 Caines, 347 ;
3 T. R., 433 Brown v. Dixon, IT. R., 276 ;
JOHNS. REP., 15.
1818
BORDEN v. FITCH.
125
Union Turnpike Co. v. Jenkins, 1 Caines 381,
891, 392. 394 ; Stafford v. Green, 1 Johns.,
505.) The whole proof substantially applied
I 2tt*] *to the third count. ( Vaughan v. lla-
vent, 8. Johns.. 110.)
2. The evidence offered as to the cohabita-
tion of the defendant with a former wife
ought not to have been received. The first
marriage, in Connecticut, according to the
laws of that state, ought to have been proved.
In an action for seduction of this kind, the
same proof of the first marriage is required as
in an action for crim. eon, or on an indict-
ment for bigamy. Though, in ordinary cases,
marriage may be shown by reputation, cohab-
itation or confession of parties (Fenton v. Reed,
4 Johns., 52 ; Tdt» v. Foster , Taylor's N. C..
121 ; Peake's Ev., 263.) yet. in an action of
'•rim. eon., and for the same, or perhaps, a
stronger reason, in this action, it is necessary
to show the validity of the first marriage ; thut
it was duly solemnized according to the law of
the state, or country, where it was celebrated.
The Connecticut Marriage Act should have
been produced, and then proof that the mar-
riage was celebrated according to that Act.
(Mom* v. MiUer, 4 Burr., 2059 ; East's P. C.,
470. 471.)
The plaintiff's daughter, in this case, was
not a competent witness. It is admitted, in
the declaration, thai she was the wife of the
defendant ; and it is well settled that a wife
cannot be a witness for or against her husband
in a civil suit, except to prove the legitimacy
or illegitimacy of her children. (Rex v. InlmbU-
ants of Brainly, 6 T. R, 330 ; Peake's Ev.,
182. If it is said that the witness is not the
lawful wife of the defendant, because he is
married to another who is still living, we
answer that the decree of divorce between
the defendant and his first wife, by the Su-
preme Court of Vermont, is conclusive here.
Though judgments, on mere questions of
property, are evidence only between the par-
ties, yet proceedings in rem, or the sentences
of ecclesiastical courts, in matrimonial causes,
are evidence against third persons. . (Peake's
Ev., 70-79. Phil. Ev., 223-234 ; Gelston v.
Iloyt, 13 Johns., 150; 8. C., in error. Id.,
561 ; Duckets of Kingston's case, Ambl., 756 ;
II St. Trial, 261.)
Again ; we contend that, under the Consti-
tution of the United States (art. 4, sec. 1, art.
127*] 3, sec. 2, art. 6, 1 U. 8. *Laws, 63 ;
Martin v. Hunter's Lessee, 1 Wheat., 304 ;
Jackson v. Barnes, 3 Binn., 75), this decree of
the Supreme Court of the State of Vermont is
binding and conclusive on this and till other
court* of the United States. In Starr* v. Chesa-
peake Int. Co., 7 Crunch, 420, the Supreme Court
of the United States admitted a record of a Court
of Common Pleas in Maryland, as to natural-
ization to be conclusive ; and in Mill* v. Dur-
yee, 7 ('ranch. 481, it was decided that nildebet
was not a good plea to an action founded on u
judgment of a court of another state, and that
nul tiel record was the only proper plea. Story,
«/., in delivering the opinion of the court in
that case, says that " the Act (26th May. 1790.
ch. 11) declares that the record, duly authen-
ticated, shall have such faith and credit as it
has in the state court from whence it is taken.
If, in such court, it has the faith and credit of
JOHNS. REP.. 15.
evidence of the highest nature, viz : record
evidence, it must have the same faith and
credit in every other court. Congress have,
therefore, declared the effect of the record by
declaring what faith and credit Khali be given
to it. It remains only, then, .to inquire, in
every case, what is the effect of a judgment in
the State where it is rendered ? " Were the
construction contended for by The plaintiff to
prevail that judgments of the State courts ought
to be considered prima facie evidence only, this
clause in the Constitution would be utterly un-
important and illusory. The common law
would give such judgments precisely the same
effect. It is manifest, however, that the Con-
stitution contemplated a power in Congress to
give a conclusive effect to such judgments.
And we can perceive no rational interpretation
of the Act of Congress, unless it declares a
judgment conclusive when a court of the par-
ticular State where it is rendered, would pro
nounce the same decision." If nul tiel record
is the only proper plea in an action on a judg-
ment of a court of record of another state, It
follows from the very nature and effect of that
plea, that the judgment must be conclusive.
(1 Chilly's PI., 854, 480. 481; Moses v. Macfar-
lane. 2 Burr., 1009: 4 East. 311.)
The decision of the Supreme Court of the
Uniled States, on this long and much agitated
question as to Ihe validity or effect of the
judgments of Ihe courts of olher states, must
*put the matter forever at rest. It is a [* 1 28
decision conclusive and binding on all other
courts in the United States, and is the law of
the land. It may be useful, however, to ex-
amine the course of decisions on the point, in
this and other State courts. In Hitchcock v.
Aicken, 1 Cai., 460, which is the leading case
in this State, the opinions and reasonings
of Thompson, and Livingston, «/«/., though
differing with the majorily of the court, ac-
cords with the judgment of the Supreme Court
of the United States in Mills v. Duryee, in
giving full and conclusive effect to the judg-
ments of the courts of sister states. In Le
Conte v. Pendleton, 1 Johns. Cas.. 104. in 1799.
to an action of debt on a judgment in Georgia,
the defendant pleaded two pleas, nul tiel record
and nil debet, and Ihe court direcled the de-
fendant to elect one of the two pleas, and
strike out the other. The defendant afler-
wards elecled the plea of nil debet, but the
court did not decide on it. (Cole Cas., 79.)
In Ru*h v. CMtett, 2 Johns. Cas.. 256, in 1801,
the court declined deciding on the validity of
the plea of nil debit. In 1808, in Post &
IM Rvev. Neafie, 1 Cai.. 484, the defendant
pleaded nul tiel record (8. C., note), and the
court decided the plea to be improper, and
ordered a repleader ; and Kent, J., in* Hitch-
cock v. Aicken, 1 Cai., 482, considered that
decision as leading to the conclusion, that if
the judgment of another state was not to be
treated in the pleadings as a record, it could
not have the same obligatory force. Then, f
converso, if it is 16 be treated as a record, it
must have the same obligatory force; and if the
judgment of the Supreme Court of the United
States, in Millxv. Duryee, is the law the decree
of the Vermont court, as to the divorce, must
be conclusive on this court. The decision in
I/ilf/icock v. Aicken was confirmed, il is true.
1M8
SUPREME COURT, STATE OF NEW YORK.
1818
by subsequent adjudications, but with some
modification; and the court have avoided decid-
ing on the effect of a decree of a divorce in
another state where the parties were married
there, or out of this State. (Post v. Neafie,
3 Cai., 22-33, per Spencer, J.\ Jackson v.
Jackson, \ Johns., 425; Kilburnv. Woodworth, 5
Johns., 37; Ilubbellv.Coudrey, 5 Johns., 132 ;
Robinson v. Ward, 8 Johns. , 86 ; Fenton v. Oar-
129*] lick, 8 *Johns., 194 ; Taylor v. Bryden,
8 Johns., 173; Pawling v. Bird's Executors, 13
Johns., 192; Walsh v. Dunkin, 12 Johns., 99.)
In Taylor v. Bryden, the court say that when
the party has once litigated his case before
a court of competent jurisdiction, and where
no fraud or unfairness is pretended, every
doubt and every presumption arising on a mat-
ter in pats ought to be turned against him, and
that such judgment was not to be impeached
but on positive proof of unfairness or irregu-
larity.
The decisions in all the cases in this State
are on judgments at common law, except that
of Post v. Neafie, which was on a decree of the
Court of Chancery of New Jersey, but by a
statute of that state such a decree is made tan-
tamount to a common law judgment. Di-
vorces belong to the cognizance of ecclesias-
tical courts in England, which are courts of
exclusive jurisdiction, and of the Court of
Chancery here. But in England the Ecclesi-
astical Court pronounces only a divorce a
mema etthoro; divorces a vinculo matrimonii
are by Act of Parliament. The Supreme Court
in Vermont, by statute, had the sole and exclu-
sive power and authority to grant bills of di-
vorce from the bonds of matrimony for impo-
tency, adultery or willful desertion for three
years ; and also where either party shall have
been absent seven years, if unheard of during
that time; and also to grant bills of divorce from
bed and board or from the bonds of matrimony
for intolerable severity, as the court may judge
proper, and the nature of the case may require.
In Gelston v. Hoyt, 13 Johns., 141, 561, the
court held that such a decree of a court of com-
petent and exclusive jurisdiction was conclu-
sive on the principle settled in the Duchess of
Kingston's case, 11 St. Tr., 260.
As to the mode of proceeding to obtain these
divorces prescribed by the Statute in Vermont,
it may be ooserved that our Act (1 N. R. L.,
489, sess. 36, ch. 95, sec. 9), authorizes the bill
to be taken pro confesso, where the defendant
is out of the state or cannot be found, or is
concealed, after a publication of the order for
appearance, for eight weeks ; and if no appear-
ance is entered after such publication, the court
pronounces its decree in the same manner as if
13O*1 the party *had appeared. ' What should
we say if a court of Vermont should declare a
second marriage void, though the party had
been divorced a vinculo by the Court of Chan-
cery of this State because such a decree had
been given on taking a bill pro confesso against
a party out of the State ?
But whatever may be the* effect of the reas-
oning from the principles of the common law,
•1. — The Court of Chancery does not, of course,
grant a decree of divorce o vinculo matrlmonttin all
cast's, though the adultery be admitted, or the bill
be taken pro confesso. Betts v. Betts, Williamson v.
Williamson, 1 Johns. Ch., 197, 488.
1036
the authority of the decision of the Supreme
Court of the United States cannot be ques-
tioned and must be conclusive. Indeed, it was
time that some decision of that court should
be made, to settle the law on the subject ; so
that, in future, there might be a harmony and
consistency in the decisions of ahe courts of the
several states on constitutional questions. It
would seem that the provision of the Constitu-
tion of the United States, and the Act of Con-
gress passed in pursuance of it, were intended,
gradually, to produce uniformity in the laws
and decisions of the several states, as best cal-
culated to bind together, in permanent and
prosperous union, the numerous members of
our multiform body politic. There are, then,
three different doctrines or opinions floating in
the State courts on this clause of the Constitu-
tion of the United States :
1. That of this court, that judgments of
sister states, like foreign judgments, are only
prima facie evidence.
2. In North Carolina, South Carolina and
Pennsylvania, they are held as conclusive as in
the State in which they were rendered. (Camer.
& Norw., 486; 2 Bay, 485; 2 Dall., 302.)
3. The Supreme Court of Massachusetts
have taken a middle ground between these op-
posite decisions of other states, and hold a
judgment of a court of a sister state not to be
so high as a domestic, nor so low as a foreign
judgment ; but to be, as some learned philolo-
gists define a proposition, " neither significant
nor insignificant, but between signification and
no signification." In Bissel v. Briggs, 9 Mass. ,
462, Parsons, Ch. J., who delivered the opin-
ion of the court, said that judgments of the
courts of other of *the United States [*131
were not to be considered as foreign judg-
ments, the merits of which might be inquired
into, as well as the jurisdiction of the courts
rendering them ; nor were they to be consid
ered as domestic judgments, rendered in their
own courts of record, because the jurisdiction
of the courts rendering them was a subject of
inquiry. But that such judgments, so far as
the court rendering them had jurisdiction,
were entitled to full faith and credit ; and
when declared upon as evidences of debts or
promises, the jurisdiction of the courts ren-
dering them might be inquired into, on the
general issue, but not the merits of the judg-
ments.
Again ; the daughter ought not to have been
admitted to give evidence of a promise of mar-
riage ; because, in an action for seduction, she
cannot be a witness to prove such a promise
in aggravation of damages, since she herself
has a right of action for a breach of promise
(Foster v. Scofield, 1 Johns., 297) ; nor of the
marriage itself, because she has her action also
for the injury. (Skinn., 119.)
Nor can she give evidence of bad treatment
by the defendant, if considered as his wife, nor
if considered as &feme sole, for the gist of this
action is the mother's loss of service, not the
daughter's ill treatment.
Another objection is, that the resolution of
the General Assembly of Connecticut was tan-
tamount to a divorce a mensa et thoro, which
would protect the defendant from an indict-
ment for bigamy, and, consequently, must be
a bar to a suit for seduction, but would not
JOHNS. REP., 15.
1818
BORDEN v. FITCH.
131
prevent him from applying for a divorce a
vinculo matrimonii. (Pawling v. Bird"* Krecn-
tor», 13 Johns., 208.) That the domicil of the
wife is that of her husband, is a sufficient
answer to her not being in Vermont at the
time of the sentence there. (Jackton v. ././-•/
ton, 1 Johns., 432 ; 13 Johns., 208.)
It may be remarked that in all the cases de-
cided by this court where this question has
arisen, the plaintiffs have been citizens of this
State, claiming to enforce the judgment of
another state here. In the present case the
defendant claims protection here for rights
granted to him by the highest competent legis-
lative and judicial authority of another state.
1»2*J *.Ve»*rs. P. W. Radcliff and T. A.
Emmet, contra. 1. As to the causes in arrest of
judgment. It is true the daughter may main-
tain her action for a tort ; and may not the
mother also ? In case of a battery of the wife,
the husband and wife may bring a joint ac-
tion, and the husband may also bring, in his
own name, an action of trespass, per quod con-
sortium amijtit. So, also, in the case of master
and servant. A wrong may produce injury to
two persons, each of whom may have his ac-
tion. Matter, not actionable, may • be stated
in the declaration by way of inducement ; and
it is no ground for arresting the judgment.
The court will intend that the damages were
given for the actionable part only. (Steele v.
We*t. Inl. Lock Narig. Co., 2 Johns., 282 ;
Phettii>btcev. Steere, Id., 442; 2 Johns. Cas.,
22, n. a.) There is but one injury sued for by
the plaintiff ; the rest of the matter stated is
mere historical narration, or by way of induce-
ment. The objection amounts to this, that
matter of inducement is stated which would
be a cause of action to another person. The
defect is amendable. (Stafford v. Green, 5
Johns., 505.) The evidence given applies to
the first and second counts, and judgment
may be entered on them, though* the third
count is bad.
2. As to the bill of exceptions. The defend-
ant must be confined to the points on which
the judge's opinion was given, and to which
the exceptions at the trial were taken. (Gra-
ham v. Carman, 2 Cai., 168, 169 ; Frier v.
Jackson, 8 Johns., 507.)
In all cases, except bigamy and crim. eon.,
proof of cohabitation, connected with other
evidence of a similar kind, is sufficient to
prove a marriage. (Aforrit v. Miller, 4 Burr.,
1007 : 9 Mass.. 414. 492.) Proof of. the actual
marriage is not necessary, except in those
two cases. (Phil. Ev., 807.) The proof here
was, however, admissible as preliminary to
the evidence of the Act of the Legislature of
Connecticut, decreeing a separation ; and be-
ing part of the matrimonial history of the de-
fendant, for a period of twenty-three years.
But the real ana great question in this case, on
which the competency of the daughter as ft
witness depends, is, whether the decree of
divorce by the court of Vermont is conclusive
133*1 *here. That decree proceeds on the
ground of the willful desertion of the wife for
three years ; she residing, during all that time,
in the State of Connecticut, never having been,
at any time, within the jurisdiction of Ver-
mont, and living under the protection of the
Act of the Legislature of Connecticut, decree-
JOHNS. RKP , 15.
ing her separation from her husband, and al-
lowing her alimony, during the time she should
choose to live so separate.
The Vermont decree would not be valid and
conclusive here, if it were merely a judgment
for the payment of money. From 1803 to the
present time the law of" this State has been
"that a judgment in a sister state is only
prima facie evidence of a debt," and is not
conclusive here. (Hitchcock v. Aifken, 1 Cai.,
460.) In Jackxon v. Jackton, 1 Johns.. 426,
432, Spencer, J., in delivering the opinion of
the court, says : " The case of Hitchcock <t
Fitch v. Aieken, must, as respects this court,
be an authority for saying that a judgment
obtained in a sister state is liable to be im-
peached in a suit brought on it here, notwith-
standing there may have been a full and fair
trial in the original suit." In 1809, 1810, and
again in 1816, the doctrine is asserted and re-
peated, that ' ' it is well settled, that a judg-
ment in another state is to be considered here
as a foreign judgment, in every respect, except
in the mode of proving it, which is regulated
by a law of the United States. It is only
prima facie evidence of a debt," &c. (Hubbeu
v. (jowdry, 5 Johns., 132 ; Taylor v. Pryden, 8
Johns.. 173 ; Pawling v. Bird's Executor », 18
Johns., 205.) In all these cases the defendant
appeared in the original suit, and vindicated
his right. In no case is it even doubted for a
moment, that if the defendant did not appear,
or had no opportunity to defend himself, the
judgment would not be conclusive. The last
decision was made three years after that of
the Supreme Court of the United States, in
Mills v. Duryee. In Kilburn v. Woodworth, 5
Johns., 41. which was a suit commenced in
Massachusetts, by an attachment of goods,
without any personal notice, the court say that
the judgment is not even prima facie evidence,
sufficient to support an aJtfiimpsit ; and that to
bind a defendant personally *by a f*134
judgment, when he had not been personally
summoned, nor had notice of the proceedings,
would be contrary to the first principles of
justice. (See, also, 8 Johns., 86, 194 ; 3 Wils.,
397 ; Buchanan v. Rucker, 9 East, 192.) So,
in regard to laws or adjudications of other
states "or countries exempting or discharging
defendants from liability, our court does not
regard the foreign law. (Smith v. • Spinolla,
198; Smith v. Smith, 2 Johns., 285 ; Sicard v.
Whale, 11 Johns., 194.)
In most of the cases, also, the court, besides
the objection of its being against the princi-
ples of natural justice, have proceeded on the
ground of a want of jurisdiction in the court
rendering the judgment. In the case of Slo-
cum v. Wheeler, 1 Day's Conn. , 429-449, lately
decided in the Supreme Court. of Errors of
Connecticut (June, 1816), the court w»y that
" the sentence of a court that has not jurisdic-
tion of the person, the process, and the subject
matter, is an entire nullity, and may collater-
ally be disallowed." In that case thesentence
of the District Court of the United States, sit-
ting as a court of 'admiralty, was brought in-
cidentally into question, and the court say
that, to render it conclusive, it must appear
that the District Court had jurisdiction of the
subject matter, and whether it had or not, the
State courts were competent to examine and
1037
134
SUPRKME COURT, STATE OP NEW YORK.
1818
decide (Rose v. Himely, 4 Cranch, 341, 243;
Cheriot v. Foussat, 3 Binn., 320); and Ch. J.
Reeve, in Grumon v. Raymond, 1 Day's Conn.,
40, 45, lays it down that where there is a want
of jurisdiction over the person, as in the
Mam/Mlsca case, 10 Co. , 70, or over the cause,
or over the process, it is the same as though
there was no court. It is coram nonjudice. The
same principle has been recognized and ap-
plied in many other cases (Bartlett v. Knig/U, 1
Mass., 410 : Bistel v. Bnggt, 9 Mass., 462 ; 13
Johns., 207) ; and in the case of Mills v. Dur-
yee. Story, J., impliedly admits that if the de-
fendant had not had notice of the suit, or had
not been arrested, the judgment could not have
been held conclusive.
If, then, such a judgment, in a sister state,
is not conclusive in cases of property, a fortiori,
it cannot be so, where not only property, but
135*] the most important relation in life *is
concerned. The principle cannot be weaker
in its application in proportion as the impor-
tance and dignity of the subject matter is in-
creased. The distinction attempted to be
made between a plaintiff coming to assert a
right or claim a benefit, or a defendant claim-
ing merely an exemption from liability, is fal-
lacious and unsound, when applied here. The
doctrine for which we contend applies with
equal, if not greater force, to cases of divorce.
Not only reason and justice, but the authori-
ties which have been cited, are in favor of its
application. In the case of Jackson v. Jackson,
1 Johns., 430, the Attorney- General (Wood-
worth), who argued for the conclusiveness of
the Vermont decree, admitted that if the court
had pronounced the decree, without having
the parties before them, it would have been
void. That was a suit 'for alimony, allowed
by the decree, and it appeared by the record
that both parties were before the court ; yet
this court refused to sustain this suit. By re-
fusing to give the decree effect, as to alimony,
the court virtually denied its efficacy as to the
divorce. The place where the parties we.re
married makes no difference in the application
of the principle. The contract of marriage is
personal and of universal obligation. It is not
of a local nature ; nor is it to be supposed to
be entered into with reference to the law of a
particular place. Huberus (torn. 3, 373, 375,
376, B. !• tit. 3) holds that a marriage, con-
tracted anywhere, is binding every where ; that
a marriage, infmudem legis, is null and void ;
and where a party goes into a new jurisdic-
tion, he carries with him all his immunities
and disabilities, and becomes subject to all the
disabilities imposed upon him by the laws of
the country where he happens to reside.
In the case of Barber v. Root, 10 Mass., 360,
Sewell, ./., remarks on the law of Vermont,
under which the decree was pronounced, in the
present case, in terms of strong indignation.
He says " that this assumed and extraordinary
jurisdiction is an annoyance to the neighbor-
ing states, injurious to the morals and habits
of the people ; and the exercise of it, for these
reasons, is to be reprobated in the strongest
terms, and to be counteracted by legislative
provisions in the offended states."
1 3O*] *The decision of the Supreme Court
of the United States, in Mills v. Daryee, goes
no further than to declare the effect of a judg-
1038
ment by a court of another state having juris-
diction of the parties. The point decided was,
that nul tiel record was a proper plea to an
action of debt, on a judgment of a court of
another state. Story, J. , lays great stress on
the fact that the party had full notice of the
suit, having been arrested and held to bail, so
that it would be held conclusive in the State
where it. was rendered. Johnson, J., dissented.
He did not think that the Constitution or Act
of Congress required that the court should go
so far as to allow the plea of nul tiel record,
apprehensive that it might lead the court into
difficulty and embarrassment, in preventing
the execution of judgments irregularly and un-
justly obtained. " There are," he says, " cer-
tain eternal principles of justice which never
ought to be dispensed with but when com-
pelled by some statute ; one of those is, that
jurisdiction cannot be justly exercised by a
state over property not within the reach of its
process, nor over persons not owing them al-
legiance or not subjected to their jurisdiction,
by being found within their limits. But if the
states are at liberty to pass the most absurd
laws on this subject, and we admit a course of
pleading which puts it out of our power to
prevent the execution of judgments obtained
under those laws, certainly an effect will be
fiven to the article -of the Constitution, in
irect hostility to the object of it. I will not
now undertake to decide, nor does this case
require it, how far the courts of the United
States would be bound to carry into effect such
judgments ; but I am unwilling to be pre-
cluded by a technical nicety from exercising
our judgments at all upon such cases."
It is fair to infer, then, that the Supreme
Court of the United States did not intend to
go beyond the principle laid down by Parsons,
Ch. J., in the case of Bissel v. Briggs, and who
has given a very sound and able exposition of
the Act of Congress. The same doctrine was
held by Sedgwick, J., in 1805. (Bartlett v.
Knight, 1 Mass., 401, 409.) This doctrine is,
also, adopted by the courts in Kentucky.
(Rogers v. Coleman, Harding, 418.) Courts of
other states, though supreme *within [*137
their respective states, yet, in regard to other
states, are, pro tanto, courts of limited juris-
diction. This doctrine, so ably and fully set-
tled in Massachusetts, Connecticut and Ken-
tucky, is agreeable to the principle of the
English law, as laid down by Ch. J. Willes,
in Rollers v. Lawrence, Willes, 413, 416, that in
an action founded on a judgment of a court of
record, of limited jurisdiction, it must appear,
by what is set forth on the record, that it had
jurisdiction ; and if sufficient be stated for
that purpose, exerything will be intended in
favor of the judgment, and that the court
acted right, unless the contrary appears on the
record.
Again ; a record, though conclusive proof
that the decision, or judgment of the court,
was as is there stated, yet it is not conclusive,
as to the truth of allegations which were not
material or traversable. (Co. Litt., 352 b ;
Phillips' Ev., 319.) Now, as the Statute of
Vermont made it perfectly immaterial whether
Mrs. Fitch was a resident of that state or not,
or whether she was actually notified of the
proceedings or not, it was competent for
JOHNS. REP., 15.
1818
BOKDEN v. FITCH.
137
the plaintiff to prove the negative of those
fact*.
Again ; courts do not regard any proceed-
ing as matter of record until it is enrolled.
(OroneeU v. Byrne*, 9 Johns., 287, 290.) But
this decree has never been enrolled. It con-
tains' no account of the previous proceedings,
which are important parts of the record, to
show that the directions of the Statute have
been observed.
But admitting, even, that it is a record, and
that the decree is to have the conclusive effect
for which the defendant's counsel contend ;
still, we insist, it may be impeached on the
ground of fraud. The principle of evidence
fa " that a judgment of a court of exclusive
jurisdiction, directly upon the point, is con-
clusive between the same parties, upon the
same matter coming incidentally in question
in another court for a different purpose."
(Duches* of Kingston's case, 11 St. Tr., 261 ;
Phil. Ev., 242.) "But though sentences are
conclusive, and cannot be impeached from
within, yet, like all other acts of the highest
judicial authority, they are impeachable from
138*J without. Fraud is an *extrinsic col-
late! al act, which vitiates the most solemn
proceedings. Lord Coke says it vitiates all
judicial acts, whether ecclesiastical or tem-
poral." (Fermor's case, 4 Co., 78 b ; Phil.
Ev.. 224. note ; Doug., 421 ; 2 Saund., 159,
note; Per Thompson, «/. ; 1 Cai., 461.) This
is not a case of a conflicts legum. The Leg-
islature of Connecticut passed an Act to which
full faith and credit is to be given, and
which must, like every other recdrd. be con-
clusive evidence of the facts contained in it.
By this Act it was made lawful for Mrs. F. to
live separate from her husband. The decree
in Vermont says that she was. while thus liv-
ing separate under the authority of the Act in
Connecticut, guilty of the crime of willful de-
sertion. How, then, does the decree in Ver-
mont stand in regard to the Act of the Con-
necticut Legislature ? Can a court in Ver-
mont repeal an Act of the Legislature of an
other state ? This court must say, what we
must presume the court an Vermont would
have said; had this Act been placed before
them. The defendant, by withholding this
Act from the knowledge of the court, and by
the false suggestion of the willful desertion of
his wife, has fraudulently obtained the decree
of divorce. If this Vermont decree is to have
full and conclusive effect everywhere, it
changes, in Connecticut, the situation in which
Charlotte Sellick was placed, by the Act of
the legislature of that state, and destroys all
the rights she acquired under it. Look at the
consequences of this state of things. If the
Legislature of Vermont can authorize a decree
of divorce on a residence for three years of
the party seeking it, it may be granted on a
residence for three months or three weeks. It
is only for a discontented husband to go to
some watering place in Vermont, on a party
of pleasure, and there obtain a divorce. Nay,
if the iiuri sacrg. fame* of a venal profession
should induce them to obtain an Act of the
Legislature further to facilitate divorces, ft
husband residing here might write to his at-
torney in Vermont, and obtain a divorce by
the return of the mail.
JOHNS. HKP., 15.
It is true that the Act relative to the Court
of Chancery authorizes the taking bills pro
confenw here, where the defendant is out of
the State. But the Act is very cautious and
guarded. The order for appearance must
*be published for eight weeks sue- [*13J>
cessively. and though the bill may be taken
pro conjetam at the expiration of that time, if
the party does not appear, yet the decree is
not final. The party has one year after notice
in writing of the decree, to come in and be
heard, and seven years if he has had no such
notice ; and if he appears within the time, the
proceedings go on as if there had been no de-
cree, which is not final until after the seven
years ; and the plaintiff who has taken the bill
pro confeiuio, before he can obtain any benefit
under the decree, must give security to make
restitution, in case the defendant should ap-
pear and defend the suit within the time al-
lowed for that purpose. There is no analogy,
then, between the two cases ; and the ary'u-
inentvm ad hominem can have no effect.
Mr. Fi*k, in reply, observed : 1 . That mere
cohabitation, or reputation, wax not sufficient
evidence of the marriage of the defendant with
his first wife. (Horn v. Xoel, 1 Campb., 61;
Price's Exchq., 81; Fenner v. ljtm», 10 Johns.,
88.)
2. That in the cases which had been cited,
and in which the court considered the judg-
ments of courts of other states as prima facie
evidence only, the plaintiff came for the pur-
pose of enforcing the judgment ; but here the
question as to the judgment arises incidentally
or collaterally, and therefore is to be regarded
as final and conclusive, This is the true dis-
tinction, and is clearly laid down by Lord Ch.
J. Eyre, in Phillips v. Hunter, 2 H. Bl., 402.
410. "It is in one way only," he says, "that
the sentence, or judgment of the court of a
foreign state, is examinable in our courts ; and
that is, when the party who claims the benefit
of it applies to our courts to enforce it. When
it is thus voluntarily submitted to our juris-
diction, we treat it not as obligatory to the ex-
tent to which it would be obligatory, perhaps,
in the country in which it was pronounced,
nor as obligatory to the extent to which, by
our law, sentences and judgments are obliga-
tory; not as conclusive, but as matter in pai»,
as consideration, prima facie, sufficient to raise
a promise: we examine it as we do all other
considerations of promises, and for that pur-
pose we receive evidence of what *the [* 1 4O
law of the foreign state is, and whether the
judgment is warranted by th£ law. In all
other cases we give entire faith and credit to
the sentences of foreign courts, and consider
them as conclusive upon us." "The judgment,
proper or improper, must stand.' Bo, in
Meadt»F* v. The Duchet* of Kingston, A nib).,
756, 761. Lord Apsley makes the same distinc-
tion, and lays down the rule that " wherever a
matter comes to be tried in a collateral way.
the decree, sentence or judgment of any other
court, having competent jurisdiction, .shall be
received as conclusive. evidence of the matter
so determined." Phillips, also, in his treatise
on evidence, which has been cited, lays down
the same rule (p. 248). It is, therefore", wholly
unnecessary, in this case toquestion the decis-
! ions of this court in cases where the party hns
MM
140
SUPREME COURT, STATE OF NEW YORK.
1818
brought his action here on the judgment of
another state. But if it were necessary, we
. insist that the decision of the Supreme Court
of the United States in Mills v. Daryee, on that
question, must be conclusive.
The Legislature of Vermont has an undoubted
right to regulate marriages and divorces, and
full faith and credit are to be given to their
public Acts and decrees on the subject. The
proceeding in Vermont was in a court having
both chancery and common law jurisdiction.
We are not to presume that the Legislature or
courts of that State will abuse their power.
THOMPSON, Ch. J., delivered the opinion of
the court:
Every material question, in this case, turns
upon the effect which the Vermont divorce
shall be deemed to have upon the former mar-
riage of the defendant. If he was thereby
absolved from the marriage contract with his
former wife, his second marriage was lawful,
and the plaintiff could not sustain the present
action ; nor could her daughter, who has been
married to the defandant, be a witness. But if
he was not legally divorced, his former wife
being still living, his marriage with the plaint-
iff's daughter was illegal and void, and she
was a competent witness.
The evidence in this cause shows that when
this divorce was obtained in Vermont the
defendant's former wife was living in Connecti-
cut, separated from him, by virtue of an Act
141*] *of theLegisla ure of that State, which
from its terms, may be deemed a divorce a,
menta el ihoro. This separation was to con-
tinue during the pleasure of the wife, and the
defendant was subjected to the payment of
$150, annually, to her, by way of alimony. It
also appears from the case that the defendant's
former wife never was in the State of Vermont,
nor in any manner personally notified or ap-
prised, at the time, of the proceedings in
Vermont to obtain the divorce. She did not,
in any manner, by her agent or attorney, ap-
pear or make any defense against such proceed-
ings.
The first question is, whether such proceed-
ings in Vermont were not absolutely void. To
sanction and give validity and effect to such a
divorce appears to me to be contrary to the
first principles of justice. To give any binding
effect to a judgment, it is essential that the
court should have jurisdiction of -the person
and of the subject matter ; and the want of
jurisdiction is a matter that may always be set
up against a judgment, when sought to be
enforced, or where any benefit is claimed under
it. The want of jurisdiction makes it utterly
void, and unavailable for any purpose. The
cases in the English courts, and in those of our
sister states, as well as in this court, are very
strong to sho w that j udicial proceed ings agai nst
a person not served with process to appear,
and not being within the jurisdiction of the
court, and not appearing, in person or by
attorney, are null and void. In BucJianan v.
Rocker, 9 East, 192. the Court of K. B., in
England, declared that the law would not
raise an assumpsit upon a judgment obtained
in the Island of Tobago by default, when
it appeared, on the face of the proceedings,
that the defendant was not in the Island
1040
when the suit was commenced, and that
he had been summoned by nailing a copy of
the declaration on the court house door. The
court said it would have made no difference in
the case if such proceedings were admitted to
have been valid by the laws of Tobago. In the
Supreme Court of Massachusetts, Ch. J. Par-
sons, in Bissel v. Briggs, 9 Mass., 464, lays
down the principle very clearly and distinctly,
that before the adoption of the Constitution of
the United States, and in reference to foreign
judgments, it was competent to show that the
court had no jurisdiction of the cause ; and
*if so, the judgment, if set up as a [*14-2
justification for any act, would be rejected
without inquiring into the merits. The same
rule would apply where the party, in whose
favor the judgment was, came to enforce it in
another court. He proceeds, very ably, to
examine the question how far the judgments
of courts in sister states are made conclusive
by the Constitution; and contends that neither
the Constitution nor the Act of Congress pre-
vents the court, where such judgment is set
up, from examining into the jurisdiction of the
court where the judgment was rendered ; and
such court, he observes, must have jurisdiction
both of the cause and of the person ; that if a
court of any state should render a judgment
against a man not within the state, nor bound
by its laws, nor amenable to the jurisdiction of
its courts, it would be void.
So, also, the Superior Court of Connecticut,
in the case of Kibbe v. Kibbe, Kirby, 119, re-
fussed to sustain an action on a judgment in
Massachusetts, on the ground that the judg-
ment debtor had not been personally served
with process to compel his appearance in the
original cause ; and that, therefore, the court
where the judgment was obtained had pro-
ceeded without any jurisdiction of the cause.
The same principle governed the decision of
the Supreme Court of Pennsylvania in the
case of PMps v. Holker, 1 Dall., 261. The
same doctrine has been repeatedly recognized
in this court. The cases of Kilburn v. Wood-
worth, 5 Johns., 41 ; Robinson v. Executors of
Ward, 8 Johns., 90; Fentonv. Garlick, 8 Johns.,
197 ; Pawling v. Bird's Executors, 13 Johns.,
192, are abundantly sufficient to show the light
in which we have viewed such judgments. We
have refused to sustain an action here, upon a
judgment in another state, where the suit was
commenced by attachment, and no personal
summons or actual notice given to the defend-
ant, he not being, at the time of issuing the
attachment.within such state. In such cases, we
have considered the proceedings as in rem, which
could only bind the goods attached, and that
the judgment had no binding force inpernonam.
This principle is not considered as growing out
of anything peculiar to proceedings by attach-
ment, but is founded on more enlarged and
general principles. It *is said by the [*143
court that to bind a defendant personally by a
judgment, when he was never personally sum-
moned, nor had notice of the proceedings,
would be contrary to the first principles of
justice; and that, whether the proceedings were
valid, and according to the course of the court
in the place where such judgment was obtained
or not, would make no difference. It must,
then, be taken, I think, as the settled law of
JOHNS. REP., 15.
1818
HORDES v. FITCH
14.1
this State, that a judgment obtained in a sister
state against a person not being within the juris-
diction of the court, nor having been served
with process to appear, nor having appeared
to defend the suit, will he absolutely void.
This principle must apply equally to a divorce
as to any other judgment. These are prin-
ciples, too. that have been recognized and
sanctioned in the state courts under the Con-
stitution and law of the United States, as now
•existing. In the case of Barber v. Kool, 10
Mass., 282, Mr. Justice Sewall, in pronouncing
the opinion of the court, animadverts, with
great indignation and severity, upon divorces
obtained like the one set up in this case. The
laws of Vermont, says he. which authorize the
Supreme Court of that State to proceed in suits
for divorce instituted in favor of persons resi-
dent, for a time, but having no settled domicil
within the State, against persons resident and
•domiciled in other states, who are not, and
never have been, amenable to the sovereignty
-of the State of Vermont, upon allegation of
•of offenses not pretended to have been com-
mitted within tire State, or contrary to the
peace, morals or economy of the society there,
•or in violation of any contract subsisting, or
which has ever been recognized there; in short,
where no jurisdiction of the parties, or of the
subject matter, can be suggested or supposed,
are not to be justified by any principles of
comity which h:ive been known to prevail in
the intercourse of civilized states; and the
•exercise of such authority, he adds, is to be
reprobated in the strongest terms.
The case of MiU» v. Ditryet, 7 Cranch, 4S1,
in the Supreme Court of the United Slates, has
been very much pressed upon us as a binding
and controlling decision, as to the conclusive-
ness of this divorce in Vermont. Although I
have a very strong conviction that the Cou-
1 44*] stitulion ofthe United *States and law
of Congress cannot be applied to a judgment
which we consider void upon the first princi-
ples of justice, so as to make it conclusive upon
us, yet the very high respect I entertain for
that court would make me hesitate and doubt
the correctness of my own judgment, did I be-
lelieve it to have been the intention of that
•court thus far to extend the coastruction of the
Constitution and laws of the United States.
But I cannot persuade myself that it was so in-
tended. And certain I am that the case be-
fore that court required no such construction.
It is true that some of the observations of the
learned judge, who pronounced the opinion of
the court, might tend to such a conclusion.
But these observations must be taken in refer-
•ence to the facts in the case, and to the par-
ticular question before the court. The case
presented a question of pleading — whether nil
debet, or nul tiel record, was the proper plea to
an action of debt brought in the Circuit Court
of the District of Columbia, upon a judgment
rendered in the Supreme Court of this State.
It was held that mil tiel record was the proper
plea. It was said, that if the record be con-
clusive between the parties, it cannot be de-
nied, but by the plea of mil tiel record; and that
it was conclusive in that case, cannot be
doubted. " The defendant," says Mr. Juttict
Story, " had full notice of the suit ; for he was
arrested and gave bail, and it is beyond all
JOHNS. RKP., 15. N. Y. R., 5. I
doubt, that the judgment of the Supreme
Court of New York was conclusive upon the
parties in that State, and must, therefore, be
conclusive here also." That case will very
plainly admit of the construction, then, that it
was intended only to decide that the judgment
was conclusive where the defendant was ar-
rested, or had in some way appeared, and had
an opportunity of defending Uie original suit.1
This construction is fortified by what fell from
.Mr. Ju*tice Johnson, who dissented from the
opinion, of the court. His remarks show very
clearly that he did not understand the court as
deciding that they were bound to consider and
carry into effect, as conclusive, judgment* ob-
tained upon attachments of property merely,
when there was no process served on the de-
fendant, within the jurisdiction of the court
rendering the judgment, or he made in some
manner personally amenable to such jurisdic-
tion.
*I have thus far considered this case, [*145
upon the assumption that this divorce would
be valid and conclusive in the courts in the
State of Vermont, and should not even then
deem it so here. But I very much question
whether it would be so considered in V ermont.
It was a divorce obtained by fraud and false
representations. In Fermor't case, 8 Co., 77,
it was resolved that a tine levied by fraud was
not binding, and that such fraudulent estate
was as no estate in judgment of law ; and it
was declared that all acts and deeds, judicial as
well as extrajudicial, if mixed with fraud, are
void. This divorce was introduced by the de-
fendant himself, upon his trial, for the pur-
pose of showing that his former marriage was
dissolved, so as to legalize bis marriage with
the plaintiff's daughter, and thereby exclude
her from being a witness in the cause. When-
ever he seeks to avail himself of any benefit
from a divorce, procured by his own fraudu-
lent conduct, although brought in collaterally,
it would seem to me competent to allege this
fraud, otherwise he would be permitted to de-
rive a benefit from his own misconduct — a
position altogether inadmissible. Under the
Vermont laws, willful desertion for three
years is one of the grounds upon which a di-
vorce m.iy be obtained. This, undou He^ly,
implies fault and misconduct ; a desertion in
violation of duty, and of the legal obligations
imposed by the marriage contract. It was
under this part of the law that the defendant
obtained his divorce. In his petition, pre-
sented to the court for that purpose, he charges
his wife with willful desertion for more than
three years, and with a total neglect of duty.
This allegation, which was the sole ground of
the divorce, was false, and known to be so to
the defendant. For she was then, and had
been, for more than five years preceding, liv-
ing in a state of separation from him, under
the authority and sanction of an Act of the
Legislature of the State of Connecticut, and by
which it appears that both husband and wife
appeared, and were heard before the legislature.
The defendant must, therefore, have been ful-
1.— Thoutrh the suit was commenced by attach-
ment, if the defendant afterwards appeared, and
took dufeoso, the JuJjr.nont is conclusive evidence
uKrtlnit him in a stater state, tf Wheat., LJ9, Mayhow
v. Thatcher tt aL
(3 1041
145
SUPREME COURT, STATE OP NEW YORK.
1818
ly apprised of the authority and circumstances
under which his wife lived separate and apart
from him ; and could not have believed it a
willful desertion, within the sense and mean-
14G*J ing *of the Vermont law. If the
validity of this divorce were to be agitated in
Vermont, it might well be objected that it
was obtained on false suggestions, and in
fraud of their law ; and the principle which
governed the decision of that court, in Jackson
v. Jackson, 1 Johns., 424, would apply. It is
there laid down, as a general principle, that
whenever an act is done in fraudem It-gin, it
cannot be the basis of a suit, in the courts of
the country whose laws are attempted to be
infringed. If we are bound to give to this di-
vorce the same force and effect that it would
have in Vermont, we must certainly admit all
objections to be urged against it that could be
alleged in that State. Suppose an action should
be brought in Vermont by Mrs. Fitch for her
alimony, under the Connecticut law, could the
defendant avail himself of his divorce to show
a dissolution of the marriage contract, so as to
discharge himself from the payment ? She
certainly might set up this fraud against the
divorce. Or, suppose a suit brought in this
court for the alimony, after the date of the
divorce, and the divorce set up to avoid the
payment ; we should certainly be bound to
give force and effect to the Act of the Legisla-
ture of Connecticut. That Act was prior in
point of time, and no want of jurisdiction
could be set up, as both parties appeared be-
fore the Legislature in Connecticut. The
courts in Vermont cannot have the power of
annulling the law of Connecticut. It would
be rather a singular situation of the defendant,
and his first wife, to consider the divorce a
mensa et thoro in Connecticut, and the divorce
a rincu-lo matrimonii in Vermont, both in force
and binding on the parties at the same time.
Upon the whole, therefore, I am fully per-
suaded that we cannot consider the defendant
as lawfully divorced from his former wife ;
and of course, his marriage with the plaintiff's
daughter was null and void. Without notic-
ing the objections urged in arrest of judgment,
and about which there is no difference of opin-
ion on the Bench, I am of opinion that the
plaintiff is entitled to judgment on the bill of
exceptions.
Judgment for Hie plaintiff.
Jurisdiction — Want nf, makes judgment absolutely
void. Cited in— 19 Johns., 33, 40, 163; 4 Cow., 295;
9 Cow., 230 ; 3 Wend., 205, 269 ; 5 Wend., 156, 1T5 ; 6
Wend.. 451 ; 10 Wend., 673 ; 11 Wend., 652 ; 12 Wend.,
104 ; 13 Wend., 416 ; 16 Wend.. 39 ; 23 Wend., 295 : 1
Hill, 139 ; 3 Donio, 282 ; 1 Sand. Ch., 147 : 4 Sand. Ch.,
180 ; 5 N. Y., 516 ; 41 N. Y., 275 : 53 N. Y., 599 ; 59 N.
Y., 216 : 72 N. Y., 240 ; 4 Lans., 391 ; 5 Lans., 412 ; 3
Barb., 345, 575. 608: 6 Barb., 615 ; 16 Barb., 322; 31
Barb., 6S9 : 8 How. Pr., 102 ; 13 How. Pr., 46 ; 41 How.
Pr., 241: 59 How. Pr.. 514: 1 Park,, 368 : 4 Bradf.,
204 ; 18 Wall., 466 ; 3 Cranch, C. C., 137 ; 1 Peters. C.
C., 158 ; 1 Abb. U. S., 184 ; 2 Abb. U. S., 548 ; 12 Bank.
Reg., 150 ; 2 McLean, 477, 480 ; 3 Wood. & M.. 118 ; 1
Woods, 610 ; 5 Mason, 44 ; 95 U. S., 732 ; 10 Minn.,
389.
Evidence always admissil)le to shoiv want of juris-
diction. Cited in— 28 N. Y., 654; 70 N. Y., 257; 3
Barb., 183 ; 6 Rob., 201 ; 1 Daly, 468 ; 14 How. U. S..
*«) ; 1 Wood. & M., 178 ; 19 Kas., 455, 463 ; 25 Mich.,
262 ; 27 Ohio St., 618 ; 22 Wis., 126.
Foreign divorce, valiility. Cited in— 76 N. Y., 82 ;
12 Barb., 644 ; 28 Barb., 26 ; 31 Barb., 70 ; 60 Barb., Ill ;
17 How. Pr.. 20.
Judgment obtained by fraud, void. Cited in— 8
1042
Cow., 308 ; 12 N. Y.. 165 ; 4 Laus., 391 ; 9 Hun, 375 ; 1
Abb. Pr: 102 ; 6 Abb. Pr., 176 ; 2 Abb. N. C., 283.
Judgment in courts of another state having juris-
diction, is conclusive. Cited in— 8 Cow., 314; 6 Wend.,
451 : 4 Sand. Ch., 180 ; 9 Hun, 624 ; 4 Abb. Pr., 164 ; 1
Hall, 161 ; 1 Wood. & M., 175 ; Hemp., 234.
Jurisdiction of inferior courts must be proved, of
others, presumed. Cited in— 5 Bart)., 610; 6 Barb..
610, 623 ; 23 Barb., 598 ; 4 How. Pr., 430 ; 6 How. Pr.,
74 ; 1 Leg. Obs., 331.
*VAN CLEEF ET AL.
FLEET.
[*14T
Sheriff — Inquisition by — Not Conclusive of Might
of Property — May Excuse Failure to Sell —
Written .Indemnity by Plaintiff. Makes it Sher-
iff's Duty to Sell — Confession of Judgment —
Fraudulent Purchase to Satisfy — Sale under
Execution Vests no Title in Purchaser.
An inquisition taken by a sheriff on a claim of
property in goods levied on, under an execution, is-
not conclusive of the right of property, although it
may excuse the sheriff for not proceeding to sell,
and for returning nulla bona.
But if the plaintiff in the execution, offer, in writ-
ing, to indemnify the sheriff, he. is bound to proceed
and sell, and cannot excuse himself, by taking an
inquisition.
When a debtor confesses judgment.and afterwards
fraudulently purchases and procures to be delivered
goods, without paying for them, with intention to
subject them to the execution of the judgment cred-
itor, the title to the goods does not become vested in
the purcha3er, and they, therefore, cannot be taken
on an execution against him.
Citations— 8 Johns., 185; 3 Johns., 235.
THIS was an action on the case for a false
return to a fi. fa. brought against the
defendant, late sheriff of the City and County
of New York. The cause was tried before Mr.
Justice Platt, at the New York sittings, in
December, 1815.
Morris & Ryer, executed to the plaintiffs a
bond, conditioned for the payment of $8,000,
and a war rant of attorney to enter up judgment
thereon, which were dated the 26th of July,
1813, and judgment was entered on the 6th of
August, on which day an execution was de-
livered to the defendant, and he was directed
to levy the sum of $7,107.70. The defendant
returned to the execution that he had levied
and paid to the plaintiffs the sum of $8,225.04,
and as to the residue, nulla bona. It was ad-
mitted, on both sides, that other goods had
been seized and taken, in the store occupied
by Morris & Ryer, but which had been claimed
by certain of their creditors, for whose benefit
this suit was defended, and delivered up to-
them.
The defendant's counsel, at the trial, offered
in evidence an inquisition, taken by the defend
ant, on the 20th of August, 1814, finding part
of the property levied on to be the property of
Schuyler & Bradford, two of the creditors of
Morris & Ryer. This evidence was objected
to on the part of the plaintiffs ; and their coun-
sel read a letter to the defendant, dated the 2d
of September, 1813, in which they express their
intention not to attend the trial of the claims
of property before him, and conclude : "We
have now again to desire you to proceed to the
sale of the goods levied on, including those
claimed by Schuyler & Bradford, and we are
ready to indemnify you for so doing to your
entire satisfaction. Should you decline to sell
on the above terms, the refusal must be at
JOHNS. REP., 15.
VAN CLEEX ET AL. v. FLEET.
147
your own peril, as must be whatever other
steps you choose to take in this business ; as we
wish you distinctly to understand that we hold
you responsible for the goods levied on, and in
148] *your possession unsold." The *judge
overruled the objection, and the inquisition
was admitted iu evidence. The plaintiff's
counsel then disclaimed any intention of charg-
ing the sheriff beyond the actual value of the
goods ; and when the inquisitions relative to
the claims of the other creditors were offered
in evidence, they were, on that ground, re-
jected by the judge. It was proved, on the
part of the defendant, that several of the goods
in question were purchased to be paid for, in
cash, between the 26lhof July, 1813, when the
bond and warrant of attorney were dated, and
the6thof August, when judgment was entered.
It was also proved, that on a Sunday in July,
or August. 1813. before the purchases from the
different claimants, an inventory was taken,
in the store of Morris & Ryer, by them and
Moores, one of the plaintiffs, and his clerk ;
that afterwards Weed, one of the claimants,
sent his clerk to purchase a piece of goods that
Morris & Kyer had before bought of him ; that
Morris asked a price which the clerk did not
think proper to give until he had consulted
with Weed : and after he went away. Morris
put the goods into a drawer, and directed his
clerk to tell Weed's clerk, if he returned, that he
had sold them to Moores, who was then present;
that on the 5th of August, Lovel, another of
the claimants, repurchased of their clerk
goods which he had sold to Morris «fe Ryer ;
and that Moores came to the store and asked
the clerk if he had sold goods to Lovel, to
which on his replying that he had, Moores
abused the clerk.
The defendant's counsel offered to prove
various sales between the 26th of July and the
6th of August, for cash, but which was never
paid ; and offered other evidence of fraud in
the transaction. The judge overruled the
testimony, and declared that the frauds of
Morris & Ryer could not affect the plaintiffs
unless they were privy to them, or had com-
bined to commit them, of which there was no
evidence to go to the jury ; and that he should
charge the jury that, in judgment of law, the
plaintiffs were entitled to recover. A verdict
was taken for the plaintiffs, by consent, subject
to the opinion of the court.
Mr. Gulden, for the plaintiffs. We are aware
149*] that the court. *in Bayley v. li.it-*. 8
Johns.. 185, decided that the inquisition will
excuse the return of nulla bone, where the
sheriff acts bonn fide ; but the court intimate,
in that case, that if the sheriff should refuse
an adequate indemnity offered by the plaintiff,
he would be l>ound to proceed and sell, or be
liable for a false return. Here was a written
offer of indemnity, and the sheriff ought to
have stayed proceedings on the writ of inquiry,
until he hud inquired whether the security
offered was adequate. He has not acted with
impartiality or bnna fide. If there was any
fraud in Morris & Ryers, the plaintiffs were
not privy to it.
Me**r*. Hoffman and T. A. Emmet, contra,
relied on the case of liny Ley v. Jtnten, the prin-
ciples of which were fullv recognized in Townt-
«nd v. PhUlipt, lOJohnsj98. They contended
JOHNS. REP., 15.
that the power of calling a jury to inquire as
to the property, is given to the sheriff merely
for his protection, and for no other purpose ;
it is not intended for the benefit of the party.
The inquisition, when taken, is perfectly con-
elusive as regards the sheriff. He is not bound
to accept an indemnity, but certainly nothing
short of the most ample security.
But, further, no property was vested in Mor-
ris & Ryer. The transaction was fraudulent,
and the plaintiffs were privy to the fraud. In
AUuon v. Matt ltf< n. 8 Johns., 235, where goods
were obtained fraudulently and by collusion,
under a pretense of purchase, the court say
that the fraud avoided the contract of sale.
[The counsel here discussed the facts in the
case.] The plaintiffs were not bona fide pur-
chasers. The sheriff was commanded to seize
the goods of Morris & Ryer, and if the goods
in question were not the property of Morris &
Ryer, the plaintiffs could acquire nothing by
the execution.
Mr. Weilt, m reply. The inquisition does not
determine the question of property. It is a
mere precautionary measure of the sheriff to
protect himself from vindictive damages. The
real owner.notwithstandingthe jury of inquiry
may find the property to be in the debtor, may
bring his action against the sheriff, and if he
proves his right to the *goods, he will [*1£»O
be entitled to recover the full value or them
from the sheriff. Then, if the inquisition be
not conclusive when found in favor of the
plaintiffs, why should it be so when found
against them ? There is no reciprocity nor con-
sistency in making it a bar in one case and not
in the other. In Townsend v. Phillip*, the
court say the plaintiff could not justify himself,
by the inquisition, for taking goods which did
not belong to the party against whom the exe-
cution issued. But if it is a bar, it must be so
on certain conditions or under certain circum-
stances ; as, where the plaintiff has submitted
to the inquiry, though he is not bound to do
so; or where he is passive, and tells the sheriff
to proceed at his peril. Not so where he pro-
tests against a jury of inquiry, and tenders
indemnity to the sheriff In the case of Bayley
v. Bates, it does not appear what was the in-
demnity offered. No doubt the court must
have considered it insufficient. If to a verbal
offer of indemnity the sheriff should answer
that he will take no security at all, the plaintiff
clearly would not be bound to tender any, and
the sheriff would proceed at his peril.
Again ; the sheriff might have applied to the
court for instructions Low to proceed. He
might have filed a bill of interpleader. He
might, even after the inquisition, have gone
on and sold the property, and held the proceeds
subject to the order of the court.
It is true that fraud may be inferred from
circumstances, but they must be such circum-
stances as lead irresistibly to that conclusion.
Fraud is never to be presumed. The jury are
not authorized to speculate and conjecture as
to facts and motives. There is not enough
shown to let the cause go to the jury for the
purpose of finding whether there was fraud or
not.
VAN NESS, «/,, delivered the opinion of the
court:
1043
150
SUPREME COURT, STATE OP NEW YORK.
1818
The inquisitions of the2d of September were
properly rejected, the plaintiffs having confined
their claim of damages to the actual value of
the goods. Such inquisitions are not conclu-
sive on the question of property, though, in
some cases, and under certain qualifications,
they will excuse the sheriff for not proceeding
to sell and protect him from a suit for a
151*J*false return. This was decided in
the case of Bayley v. Bates, 8 Johns., 185 ; but
it is there strongly intimated that if the sheriff
should refuse an adequate indemnity, the court
would hold him bound to proceed and sell.
Many of the cases cited in Bayley v. Bates show
that if the plaintiff in the execution tender an
indemnity to the sheriff, it is his duty to pro-
ceed. It would be intolerable to consider these
inquisitions as decisive of the right of property,
considering the manner in which they are
taken, and the great abuse to which such a
proceeding is liable. I well recollect that in
the case of Bayley v. Bates, the offer to indem-
nify the sheriff was verbal and very loose and
unsatisfactory, and not such as the sheriff had
a right reasonably to exact ; and that it was
for that reason the sheriff was held to be ex-
cused for returning nulla bona after he had
held an inquest. Here the tender of indem-
nity was made in writing, with all due solem-
nity, and in such a way as ought to have
induced the sheriff to proceed in the sale.
The evidence of fraud in Morris & Ryer was
very strong, and there was, also, some evidence
to show that Moores, one of the plaintiffs, was
privy to it. I think there was sufficient evi-
dence to entitle the defendant to the opinion of
the jury upon it, and that the learned judge
should have submitted this part of the case to
them. It was by no means so clear a case for
the plaintiffs as to entitle them, " in judgment
of law," to a verdict. On this ground, without
noticing some minor points which have been
discussed, I think that there ought to be a new
trial.
It may be proper, however, to remark that
if, on a future trial of this cause, the jury shall
be satisfied that Morris & Ryer obtained the
goods in question by fraud, that then, accord-
ing to the doctrine established -in the case of
Allison v. Matthieu, the title of the goods never
was vested in them, and they, consequently,
were not liable to be taken in execution to sat-
isfy the judgment in favor of the plaintiffs.
New trial granted, with costs to abide the event
of the *uit.
Cited in-8 Cow.. 68, 245; 5 Wend., 310; 6 Wend.,
317. 499; 13 Wend., 574: 1 Hill, 808, 313: 1 Paige,
493; 2 Edw., 407; 73 N. Y., 60: 11 Hun, 570; 18 Hun,
423; 3 Barb., 31; 32 Barb., 179; 43 Barb.. 376; 60
How. Pr., 268 ; 22 Hun, 485 : 23 Kas.. 63: 29 N.J. E.,
319.
152*] *CABLE v. COOPER.
Sheriff— Escape of Prisoner under Execution —
Former Discharge Waived by Prisoner is no
NOTE.— Queers— Personal liability of.
See, generally, Henderson v. Brown, 1 Cai., 92,
note ; Seaman v. Patton, 2 Cai.. 312, note ; Wallworth
v. McCullough, 10 Johns., 93, note ; Warner v. Shed.
10 Johns., 138, note.
1044
Justification to Sheriff— Habeas Corpus —
Suit Founded on Original Judgment — Im-
prisonment under.
Where a defendant, taken in execution, is dis-
charged from imprisonment, under the Act for the
Relief of Debtors with Respect to 'the Imprison-
ment of their Persons, and is afterwards sued upon
the original judgment, he must, if he intend to
avail himself of his exemption from imprisonment,
E lead it, and his omission to plead it is a waiver of
is privilege; and if imprisoned again on another
execution, in a suit.founded on the original judg-
ment, his discharge' is no justification in enaction
against the sheriff for an escape ; and even if such
subsequent execution were voidable, the sheriff
cannot avail himself of the error.
It seems that the Habeas Corpus Act does not ap-
ply to cases of imprisonment on civil process.
But where a defendant in execution is discharged
from imprisonment, under the Act for the Relief,
&c., and is again imprisoned on an execution issued
in a suit founded on the original judgment, a judge,
or commissioner, has no authority to discharge
him under theHabeats Corpws Act, and a discharge
granted under such circumstances is no protection
to the sheriff in an action for an escape.
Citations— 3 Cai., 267; 2 Salk., 674; 6 Cranch, 52;
22 Vin., 13, pi. 17 ; 5 Johns., 112 ; 6 Johns., 580 ; Stat.
Charles II.. ch. 31.
THIS was an action of debt brought against
the defendant, sheriff of the County of
Oneida, for the escape of one Azor Brown.
The cause was tried before His Honor, the
Chief Justice, at the Oneida Circuit, in June,
1817.
The plaintiff brought an action, in this court,
of debt, on a judgment recovered by him in
the Mayor's Court of Albany, against Brown
and Colberth ; Brown only was taken on the
capias, and judgment was rendered by default,
in August Term, 1816, for $186.19, the amount
of the judgment in the Mayor's Court and
costs. A test. ca. sa., tested in August Term,
1816, and returnable in October Term, there-
after, was issued, and delivered to one of the
defendant's deputies, who, before the return
day, arrested Brown, and committed him to
the jail of Oneida County, where, or on the
limits of the jail, he remained until discharged
under a habeas corpus. The defendant pro-
duced in evidence the exemplification of the
habeas corpus, the test. ca. sa., and the proceed-
ings thereon. The habeas corpus was allowed
by Nathan Williams, Esq., the Commissioner,
residing at Utica, the 18th of October, 1816.
It appeared, from these proceedings, that
Brown was discharged from imprisonment on
a ca. sa. issued by the plaintiff on the original
judgment, in the Mayor's Court of Albany, in
May, 1814, under the "Act for the Relief of
Debtors with Respect to the Imprisonment of
their Persons," by the order of that court ;
and the commissioner, on Brown's being
brought up before him, by his order dated the
18th of October, 1816, directed Brown to be
discharged from imprisonment on- the execu-
tion issued out of this court, upon the ground
that he had been arrested *contrary to [*153
the Act for the Relief of Debtors, &c. Brown
was accordingly set at large.
A verdict was found for the plaintiff, sub-
ject to the opinion of the court.
Mr. Foot, for the plaintiff. 1. In an action
for an escape, the sheriff cannot take advan-
tage of any error in the process. The process
must be void, not merely voidable, to afford
him a justification. (Bissellv. Kip, 5 Johns.,
869, 100.) Whether the officer can justify or
JOHNS. REP., 15.
1818
CABLE v. COOPER.
158
not, in an action against him for false impris-
onment, is the test by which to determine
whether he can permit the party to go at large
or not after the arrest. If the process pro-
tectH him. he is bound to keep the prisoner.
(1 Wils., 255 ; 2 Saund., 101 y. n. 2 ; Comyn's
Dig., Escape, C; Bac. Abr., Escape, A.) A
sheriff may justify under every process issuing
from a court having jurisdiction. It is well
settle that a person privileged from arrest, by
statute or common law, if arrested, cannot
maintain an action for false imprisonment,
unless the proceeding is declared void by stat-
ute. (Rtsynoltts-v. Corp, 8 Caincs, 267; Tarl-
ton v. Fi*her, Doug., 671 ; Cameron v. Light-
foot. 2 Bl., 1190; 1 Tidd's Pr.f 183.) If a
sheriff has process against a privileged person,
he may serve it or not, but if he does arrest,
he must keep his prisoner. (2 Bulst.. 65.) By
the 2d section of the Act for the Relief of
Debtors, Ac. (1 N. R. L., 348, sess. 36. ch. 81.
sec. 2), a person discharged from arrest, under
the Act, is not liable to imprisonment again
for the same cause ; and it is declared lawful
for any judge of the court out of which the
process issued to discharge him from custody,
provided he enters an appearance, or gives a
warrant of attorney to appear; and the 7th
section declares that the real and personal es-
tate of such debtor shall remain liable for his
debts. The Statute evidently contemplates an
action on the judgment under which the ca. sa.
issued, in which the party is required either to
indorse his appearance, or is arrested and gives
bail. In the latter case, if he docs not ap-
pear and plead the Statute in avoidance, he
waives his privilege from arrest on the final
process. The holding the defendant to bail
is notice to the defendant that the plaintiff in
154*J tends to call for his body to*satisfy the
debt ; and if a ca. *a. is issued, the sheriff can-
not say the judgment is erroneous, and permit
the defendant to go at large. This case is
manifestly different from that of Ray v. Iloge-
bootn, 11 Johns., 433, for the privilege in that
case was not conditional.
Again ; the discharge of the prisoner in this
case was void. The Act (1 N. R. L., 425. 426,
sess. 36, ch. 67, sec. 20) gives no authority to
discharge where, on the return of the habeas
corpus, it appears that the person is charged
in execution. The judge or commissioner can
only remand him. The allowance of the writ
is a ministerial act. (Tales v. Lansing, 5
Johns., 282, 297.)
2. The process in this case was not illegal.
It followed the judgment of a court of com-
petent jurisdiction. Brown, therefore, came
within the exception in the 3d section of the
Habeas Corpus Act. He was a prisoner " in
execution by legal process." A judge, in va-
cation, has no jurisdiction of such a case. (4
Johns.. 354 ; 6 Johns.. 508 ; 9 Johns., 420.)
Mr. Starrs, contra. Brown was privileged
from arrest by the Statute, which declares tliat
no person discharged from imprisonment un-
der it, shall.' at any time thereafter, be im-
prisoned for the same cause. He was not
bound to plead the privilege. This is not the
case of a party held to bail His appearance
only was indorsed. That there was a second
judgment can make no difference. The Act
expressly applies to such a case, and by de-
JOHNS. RKP., 15.
claring that the defendant shall not be again
imprisoned, prohibits the issuing a ca. sa. on
such second judgment.
The Act (1 N. R. L.. 426), which directs the
prisoner to be remanded, does not take away
the jurisdiction of the judge, if he had author-
ity to issue the habeas corpus. The Act is
merely directory. The allowance of the writ
is not a judicial act; but the judicial character
commences when-the writ is returned. ( rates'
case, 4 Johns., 817.) A judge, in vacation,
may issue a habeas corpus, in all cases whure he
has jurisdiction. The words of the Act (1 N.
R. L., 324, sess. 36. ch. 57, sec. 8), "in execu-
tion by legal process," refers to criminal proc-
ess only. The whole Act has reference to
*persons charged for some criminal mat-[* 1 55
ter. The Statute under which the commission-
er acted, in this case, was, like the Habeas Cor-
pus Act, directory on. the subject. The act of
the commissioner, when he orders the dis-
charge, is a judicial act ; and if he acted ju-
dicially, there is an end to the question ; for
where'the subject matter is within the juris-
diction of the court, or judge granting the
order or process, the officer is excused. (Smith
v. ShaiD, 12 Johns., 257; 10 Co., 77.) The ar-
rest was void, and it was from that arrest that
Brown was released, by the order of the com-
missioner. The defendant was, therefore,
justified in obeying that order.
VAN NESS, «/., delivered the opinion of the
court :
The defendant in the original action was
bound to plead his discharge, if he wished to
avail himself of his exemption from imprison-
ment for the same cause, secured to him by
the Statute. If he had been convicted of per-
jury in procuring his discharge, he was, not-
withstanding his discharge, liable to be again
imprisoned, either on the old judgment, or
under a new judgment recovered upon the
old one. in an action of debt; and if the dis-
charge had been pleaded, the plaintiff might
have replied to it such conviction, which
would have been conclusive to bar him of his
exemption. The privilege from imprisonment
to which Brpwn was entitled under the Stat-
ute, certainly might be waived, and the omis-
sion to plead the discharge in the proper time
was a waiver.
The judgment was regular, both in form
and substance, and authorized the execution
that was issued upon it, and which would
have been a complete justification to the sher-
iff, in case he had been sued for false impris-
onment. There is no pretense for saying that
either the judgment or execution was void;
and admitting they were voidable, that is a
point which the sheriff is not permitted to
raise, and with which he has no concern. The
sheriff is never allowed to allege error, either
in the judgment or process, as an excuse for
an escape ; and if he arrests the party, he is
bound to keep him until he is discharged by
due course of law. To these points the cases
cited by the counsel for the 'plaintiff are full
and decisive, particularly the two cases of
Reynolds *v. Corp- <fc Douglass, 8 Caines, [* 1 5O
267, and Prigg v. Adams et al., 2 Salk., 674.
Brown must, therefore, be considered being in
execution by legal process.
1045
156
SUPREME COURT, STATE OP NEW YORK.
1818
The next question is, whether the commis-
sioner had a right to discharge him, and if he
had no such right, yet, having actually dis-
charged him, whether such discharge is a de-
fense against this suit. It may well be doubted
whether the Statute gives to a judge or the
Chancellor, in vacation, a right to discharge a
party imprisoned on civil process. If it were
necessary to decide that question in this case,
and for the first time, I should say it does not.
(Ex-parte Wilson, 6 Cranch, 52.) * But admit-
ting it to be settled that the Statute extends to
cases of illegal imprisonment under civil, as
well as criminal process, yet the power of the
officers to whom the execution of it is com-
mitted, is special and circumscribed, and they
are prohibited from granting a discharge
whenever the party is "in execution by legal
process." If these officers exceed their powers,
or, in other words, if they discharge when
they have no jurisdiction, their acts are void.
If Brown was in execution by legal process
(and of which there cannot be the least doubt),
it necessarily follows that the commissioner had
no authority to discharge him. It was upon
this ground that this court decided that the
discharge of Mr. Yates, under the Habeas
Corpus Act, was void. Much as I respect the
commissioner who granted this discharge, it
was, beyond all doubt, an interference wholly
unauthorized. He had no power to declare
either the execution or judgment void. He
had no discretion in this case; for, according
to the clear and unequivocal words of the
Statute, the moment he d. covered that the
prisoner was in custody,, on a ca. sa. perfectly
valid and regular, upon the face of it, his
power to discharge him ceased, to all intents
and purposes. The Statute is peremptory,
and he had nothing to do but to remand him.
If this court, on motion, would not have set
aside the judgment and ca. sa. for any other
purpose than to give the prisoner an oppor-
tunity to plead his discharge, how much more
unauthorized was it for the commissioner to
discharge him from custody while both were
in full force. The necessary consequence of
these principles is, that the discharge is
157*] *no excuse for or protection- to the
sheriff. If the discharge is void,. it is as if it
had never existed. This is a universal rule in
regard to all things that are void. ''Void
things are as no things." (22 Vin., 13, pi. 17.)
Every tribunal proceeding under special and
limited powers decides at its peril ; and hence
it is, that process issuing from a court not hav-
ing jurisdiction, is no protection to the court,
to the attorneys or the party, nor even to a
ministerial officer who innocently executes it.
This is a stern and sacred principle of the com-
mon law, which requires to be steadily guard-
ed and maintained. The sheriff, on this execu-
tion, would have had aright to retake Brown,
if he had departed from his custody without
his permission, or a new execution might have
issued against him. On this point the case of
Jackson v. Smith, 5 Johns., 112, is express.
If the commissioiier had no jurisdiction in
this case, his discharge had no more effect
than if he had not been a commissioner at all.
In the case of Mr. Yates, it never was doubted
by any of the judges, either in this court or in
the Court of Errors, that if the judge who
1046
discharged him had no jurisdiction, the dis-
charge would have been void. The question
there was, whether he had jurisdiction or not.
Those who held that he had none, considered
the discharge as a nullity, and that the party
might be recommitted. Those who held that
he had jurisdiction, of course, considered
the discharge conclusive, and that it was
equally so whether the judge, in the exer-
cise of his discretion, had decided right -or
wrong, so long as he acted within the scope
of his powers. The opinion of the court, ac-
cordingly, is, that the plaintiff is entitled to
judgment.
SPENCER, J., dissenting. I cannot concur
in the opinion just pronounced.
If the commissioner had jurisdiction of the
subject" matter of Brown's imprisonment, and
had a right to adjudicate on that point, it is
entirely immaterial, as respects the defendant,
whether the decision of the commissioner wa*>
right or not ; the officer will be protected in
yielding obedience to that decision.
It appears to me that the case of Yates v.
The People, *6 Johns., 580, settles these [*158
principles: 1. That our Statute has a more
extensive operation than the British Habeas
Corpus Act, in this ; that whilst the British
Statute is confined to commitments for crimes
and criminal matters, or the suspicion thereof,
our Act extends to and gives the Chancellor,
and a judge of the Supreme Court, in vaca-
tion, cognizance of cases of imprisoment, gen-
erally, without confining their jurisdiction to
commitments for criminal, or supposed crim-
inal cases: in short, that our Habeas Corpus
Act purposely changed the phraseology of the
Stat. 31 ch. of Charles II., with the view of
extending it to all cases of persons imprisoned
or restrained.
2. That the inhibition, in the 3d section of
our Statute, of the benefit of the writ "to per-
sons convict, or in execution by legal process,"
necessarily refers it to the Chancellor, or
judge, having power to award the writ, to
decide whether the party applying is in execu-
tion by legal process ; for if he be in execution
on illegal process, there exists no inhibition to
allow the writ. If the first proposition is cor-
rect, that our Statute extends the benefit of
the habeas coi*pus to all cases of imprisonment,
and excepts out of the grant of power the case
of a person in execution by legal process, it
appears to me that the exception is to be con-
strued in its whole extent, and that it does
not and cannot embrace the case of an impris-
onment in execution on illegal process. The
validity and legality of the process becomes
the very gist of the inquiry; and to this the
jurisdiction of the judge must extend. In-
deed, it seems to me a very alarming proposi-
tion, that there exists no method of enlarging
a person, but in term time, who may be com-
mitted upon an execution against his body,
and which may be issued without any judg-
ment to warrant it. If this be so, then the
most flagrant violation of personal liberty may
take place without the power of an immediate
corrective. I feel no disposition to enlarge on
points which I conceive to have been settled in
the case of Yates v. The People, in the Court
for the Correction of Errors. I am not aware
JOHNS. REP., 15.
181H
COLES T. COLES,
158
that that case has been, in any degree, shaken
or impaired by any subsequent decision.
Judgment for the plaintiff.
Cited in— 19 Johns.. 31: 5 Wend.. 178: 6 Wend., 513;
16 Wend., 38: 19 Wend., lift); 7 Hill. :iM; 3 Uurb. Cb.,
363; 4 Abb. App. Dec., 000: Key**, 515, 524; 21 Hun,
:j.V!: :t Hurl!.. 40. 44«: « How. Pr .75: ~Z\ How. Pr., 12«: 1
Abb. Pr.. 434: -1 Park. 193: 2 Hob.. 45fl; 4 Let?. Obe..
223 ; 7 Leg- Obe.. 54: 5 Mason. Ml.
ir>S>»]*MARY COLES. Administratrix -of
STEPHEN COLES,
WILLET COLES.
Partnership — Partners IloldReiil Estate as Ten-
ant* in Common — One can only Sell hit Indi-
vidual Interest — One Jieeein'ng Whole Pur-
chase Money — Other May Maintain Assump-
sit for Prof)ortion.
When real estate is hold by partners, for the pur-
pOBCS of the partnership, they do not hold it as
partners, but as tenants in common, and the rules
relative to parncrship property do not apply in re-
Kurd to it; therefore one partner can only sell his
iinii virtual inti-r.-t in the land, and when both part-
ners join in a sale and conveyance, and one only re-
s the purchase money, the other partner may
maintain an action against him for his proportion.
Where tenants in common sell and convey land,
mi' I one only receive the purchase money, the other
may maintain an action of mannnfusU against him.
for money had and received, to recover uis propor-
tion of the price.
Citations— Wats. Partners, 67: 3 Brown's Ch., 199;
« Vea., Jr., 500.
was an action of a&nimpsit for money
-L had and received. The cause was tried
before Mr. Justice Yates, at the New York
sittings, in November, 1816.
It was proved, on the part of the plaintiff,
that in January, 1813, Stephen Coles, deceased,
.and W illet Coles, the defendant, sold and con-
veyed to one Meinell, two lots of ground in
Ferry Street, in New York, for $9,000, of
which sum the purchaser paid $7,000 into the
hands of the defendant, and with the remain-
ing $2,000 paid off a mortgage on the prem-
ises, which had been given for the individual
benefit of the defendant. The plaintiff also
gave in evidence the following letter from the
defendant to the intestate, dated New York,
December, 29th, 1812:
" Dear Father — Brother Stephen has re-
turned, and informs me that he left the deed
that you gave him for the house and stillhouse
with you: to make the conveyance lawful, it
is absolutely necessary that the deed should be
recorded here. I have no other object in wish-
ing the property conveyed to Stephen than to
secure you a comfortable maintenance. The
failure df H. F. may put it out of mv power
to do so in any otlier way; please, therefore.
to send the deed by the first opportunity. I
have had an application to buy the stillhouse,
for $»,000; if you think it best, I will do so,
and put the money in bank stock; vou may
rely on my wish to see you provided for, let
whatever may happen to vour affectionate, but
unfortunate son, <fec. P". 8. I shall convey
my part to Stephen for your use also. Don't
forget to send the deed."
A partnership had existed between the
intestate and defendant, in relation to the
.JOHNS. REP., 15.
business of the stillhouse, ar.il business
had been carried on under the partnership
name to about the time of the sale, although it
appeared that the defendant *had. l*f«O
long before, been requested by the intestate to
give notice of dissolution, but which he had,
in fact, never done.
The counsel for the defendant moved for a
nonsuit, on the ground that this was a partner-
ship transaction, and required the investiga-
tion of partnership accounts. The motion
was overruled by the judge, and further evi-
dence was produced on the part of the defend-
ant, to show the existence of a partnership
down to the time of sale. The judge charged
the jury, that in his opinion, the letter from
the defendant to the intestate was sufficient
ground for the jury to find a verdict for the
plaintiff for the half of the $9,000. with in-
terest; and a verdict was found accordingly.
The defendant moved to set aside the verdict
and fora new trial.
Mr. T. A. Emmet for the plaintiff.
Mr. It. Bogardus, contra.
Per Curiam. The motion for a new trial
must be denied. The testimony on the part
of the plaintiff shows, very satisfactorily, that
the intestate was only entitled to a moiety of
the land sold, and he can, of course, claim
only one half of the consideration money. The
letter of the 29th of December, 1812. might
admit of a construction that the intestate was
the sole ow'ner of the land. But the other
proof, and the conveyance which was given
by both Stephen and \Villet Coles, show, be-
yond any reasonable doubt, that they were
joint owners or tenants in common.
It is to be inferred from the case that the
mortgage for $2,000 was upon this land;
though that is not very clearly stated. The
defendant, at all events, admitted that this
mortgage was his own private debt, and no
part of it ought, of course, to be paid out of
that portion of the consideration money due to
the intestate. Stephen Coles. The defendant
is, therefore, bound to account to the plaintiff
for the one half of the $9.000 (the full amount
of the consideration), together with the inter-
est from the time it was received.
*No objection can be made to the re- [* 1 <J 1
covefy, on the ground of any existing part-
nership between Stephen and Willet Coles.
They were tenants in common, not partners,
in this land. The principles and rules of law
applicable to partnerships, and which govern
and regulate the disposition of the partnership
property, do not apply to real estate. One
partner can convey no more than his own in-
terest in houses, or other real estate, even
where they are held for the purposes of the
partnership. (Wats. Partners, 67.) There may
be special covenants and agreements entered
into between partners, relative to the 'use and
enjoyment of real estate owned by them joint-
ly, and the land would be considered as held
subject to such covenants; but nothing of that
kind appears in the presenHrase; and. in the
absence of all such special covenants, the real
estate owned by the partners must be consid-
ered and treated as such, without any reference
to the partnership. These are principles fully
established by the cases of Thornton v. Diton,
1947
161
SUPREME COURT, STATE OF NEW YORK.
1818
3 Brown's Ch., 199, and Balmain v. Shore, 9
Ves., Jun., 500. Willet and Stephen Coles
must, therefore, he considered as tenants in
common of the lands sold and conveyed by
them; and there can be no doubt that where
two tenants in common sell and convey their
land, and all the money is received by one, the
other can maintain an action for money had
and received, for his moiety against the other.
Motion for new trial denied.
Approved— 11 Mass., 469; Walk. Ch., 203.
Denied— 7 Conn., 18.
Opposcd-2 Munf.,387.
Cited in— 8 Wend., 507: 23 Wend., 159; 25 Wend., 410;
5 Hill, 111.313; 4 Paige, 152; 2 Barb. Ch., 202; 2 Edw.,
31: 2 Sand. Ch., 368; 2 N. Y.,431; 6 Barb., 25; 11 Barb.,
73; 59 How. Pr., 184: 15 Peters, 36; 22 How. (U. S.),
260, 268; 1 Sum., 184; 3 Biss., 356; 44 Cal., 362.
1G2*] *PRESIDENT AND DIRECTORS
OF THE MANHATTAN COMPANY
v.
OSGOOD ET AL.
1. Real Property — Conveyance by Insolvent —
Void as to Creditors — Is Assets in Hands of
Heirs or Devises — Evidence. 2. Discounting
Note at Seven per cent. , not Usury.
A voluntary conveyance by a 'grantor, who is, at
the time of making it, insolvent, is void, as respects
creditors; and the land, after the death of the
grantor, is assets by descent or devise, in the hands
of his heirs or the devisees of the residuum of his
estate, in an action by the creditor against the heirs
and devisees: and where some of the defendants
were also the executors of the grantors, and peti-
tioned the surrogate for the purpose of obtaining a
sale of the real estate of the grantor, on account of
an alleged deficiency of personal assets, this is evi-
dence as against all the defendants, to show the in-
solvency of the grantor.
Discounting a note at the rate of seven per cent.
Is not usury.
Citations— 1 Phill. Ev.,192; 15 East, 34, 35; 4 Johns.,
461; 3 Co.. 81 h; 1 Atk., 15, 94; 2 Atk., 600; Dyer, 295,
pi., 16; 3 Co., 78; 2 Bl., 792; 1 Bos. & P., 144 ; 3 Rep.,
78, ft. ; 2 T. K., 53.
fPHIS was an action of assumpsit on two
I promissory notes, made by Walter F.
Osgood, and indorsed by Maria Osgood,
against the defendants, as her representatives,
who were all either her children or the hus-
bands of such of her daughters as were mar-
ried. The defendants, De Witt Clinton and
Maria, his wife; John L. Norton and Sarah,
his wife; and Hannah Clinton, pleaded riens
per descent, and the plaintiffs took judgment of
assets, quando acciderint. The other defend-
ants, Walter F. Osgood, Edward C. Genet and
Martha B., his wife; Samuel Osgood and
Juliana his wife, pleaded the general issue;
and also, as to the said Walter, Mar-
tha, Juliana and Susan, riens per descent
or devise, to which the plaintiffs replied
assets at the time of the commencement of
the suit by descent and devise. The cause was
tried before Mr. Justice Van Ness, at the New
York sittings, in December, 1816.
Samuel Osgoo^, the elder, was seised of
several houses and lots of land in the City of
New York, and made his will, dated the 8th
of February, 1792, by which he devised to his
wife, Maria Osgood, all the estate, both real
and personal, of which he was then possessed,
1048
or might be possessed, at the time of his de-
cease, and appointed her his sole executrix.
He afterwards purchased some lots of land at
Greenwich, and died on the 23d of August,
1813. Maria Osgood was, before, and at the
time of the death of her husband, seised in her
own right of three several houses and lots of
land situate in the City of New York, which
she conveyed by three several deeds bearing
date the 31st'of May, 1814, in consideration of
love and natural affection, to her three daugh-
ters, the defendants, Martha B., Susan K. and
Juliana, respectively.
The notes in question were dated, one the
25th of July, 1814, for $6,000, payable in
ninety clays, which was discounted *by [*163
the plaintiffs, at the rate of seven per cent.-f
the other the 10th of August, 1814, for $500,
payable in sixty days, and discounted at t he-
rate of six per cent. Maria Osgood made her
will on the 27th of July, 1184, by which, after
several specific bequests of money and chattels,
she devised the residue of her real and personal
estate to her children, the defendants, Martha
B., Juliana, Walter F. and Susan K. Osgood,
and appointed the defendants, Walter F. Os-
good, Samuel Osgood and Edmund C. Genet,
her executors. The testatrix died on the 8th
of December, 1814, and the notes, which af-
terwards fell due, remained unpaid.
A variety of evidence was produced at the
trial to show that at the time of the convey-
ances to her daughter Mrs. Osgood was insolv-
ent ; and for that purpose, the plaintiffs also
produced the petition of her executors to the
Surrogate of the City and County of New
York, stating that the personal estate of the
deceased was insufficient to pay her debts, and
requesting the aid of the Surrogate in the
premises, pursuant to the Statute in such case
made and provided : a statement of the estate
was annexed to the petition, and which was
sworn to by the executors ; but before any
order was made, they declined proceeding
further, alleging that they had acted under a
misapprehension. The admission of this testi-
mony was objected to on the part of the de-
fendants, but was allowed by the judge. A
considerable part of the debts of the testatrix
consisted of indorsements for the accommoda-
tion of Walter F. Osgood.
The judge charged the jury that the deeds
from Mrs. Osgood to her daughters were, on
the face of them, voluntary ; that the evidence
left little doubt that she was, at the time, in-
solvent : that the deeds were null and void as
against creditors ; that they were to be deemed,
as regarded the plaintiffs, assets, by descent or
devise, under the issue joined on the plea of
riens per descent or devise, in the hands of the
defendants who were parties to that issue; and
that the notes on which the suit was brought
were neither of them usurious or void. The
jury found a vei'dict for the plaintiffs for the
amount of the notes, with interest. A motion
was made to set aside the verdict, and for a
new trial.
*Mr. Cowdry, for the defendants. [*1O4
1. The petition and schedule presented to the
Surrogate were not admissible to show that
Mrs. Osgood was indebted at the time. They
were nofthe best evidence which the nature of
the case admitted. The original bonds and
JOHNS. REP.. 15.
1818
PRESIDENT, ETC.. MANHATTAN Co. v. OSOOOD ET AL.
notes ought to have been produced, by which
it would have appeared that most of the debts
were those of Mr. Osgood ; and his debts
ought to be taken into consideration, in deter-
mining whether the conveyances were volun-
tary or not. The statement made by one of
the heirs ought not to be binding on the others.
It is analogous to a bill in chancery, on which
no proceedings have been had. which in not
evidence. (Bull. Jf. P., 285; Gilb. Ev.. 49.)
The answer in chancery of a co-defendant is
no evidence against the others.
2. The houses and lots of land conveyed by
Mrs. Osgood are not to Ixs considered as assets
by descent. If the statement is rejected, there
is no evidence that she was largely indebted
at the time of the conveyance. She owed
$22,000. which was amply secured by mort-
gages on property of the value of $47,000.
Her indorsements of the notes were, at most,
contingent debts, and might never become cer-
tain. The maker of those notes was, at the
time, perfectly solvent. Subsequent debts are
not to be Uken into consideration, in case of
settlements or conveyances, by way of family
provision. (Rob. Fraud. Conv., 18, 19, 24.
451-453; 1 Bro. C., 90; 2 Atk., 18; 8 Co.,
81 b; 2 Ves., 10; Arab., 598; 2 Ver., ».
491.)
3. The notes were usurious and void. If a
person receives illegal interest before it is due,
and this is made part of the original contract
for the loan, it renders the security void. (Ord
on Usury, 102; Flayer v. Edwards, Cowp.,
114; Cro. Jac., 26.)
4. The charge of the judge was incorrect.
Whether the original contract was a loan of
money on receiving the discount or not, was
a question of fact for the jury to decide ; but
the judge charged the fact positively, that the
notes were not usurious or void. (2f. Y. Fire
Int. Co. v. Walden, 12 Johns., 613; 1 Bos.
& P.. 144.)
165*] * Messrs. Slosson and T. A. Emmet,
contra. All the estate of Mr. Osgood is de-
vised to his wife, who is made sole executrix ;
and she is the legal debtor, in respect to the es-
tate devised to her. His debts, therefore, must
be taken into consideration, on the inquiry
into the effect of a voluntary conveyance.
Mrs. Osgood died largely indebted. [Here the
counsel entered into an examination of the
statement and accounts given in evidence, by
which it appeared that she owed, at the time
of her deatli, beyond the amount of her estate,
above $29.000 ; and, including the bonds,
about $42.000. j Even if the petition and
statements exhibited to the .surrogate are re-
jected, there is sufficient evidence of the insolv-
ency of Mrs. Osgood. Admissions which go
to charge the persons making them are evi-
dence as to third persons. (Phil. Ev., 191,
192. 198; Doe v. Rotoon, 15 East, 38.) The
petition was presented by the legal representa-
tives, the executors of Mrs. Osgood. She or-
dered her executors to pay all her debts. It
was their duty so to do, and for that purpose
they applied to the surrogate for an order for
the sale of the real estate. Precise evidence
of the insolvency or indebtedness is not re-
quisite; it being merely a collateral fart. If
a person greatly indebted makes a voluntary
conveyance to his children, his being in debt
JOHNS. Ui.r.. 15.
at the time is evidence of legal fraud, which
vitiates and avoids the conveyance, to all in-
tents and purposes, as against his creditors.
A total insolvency need not be shown. Such
conveyances, being to delay, hinder and de-
fraud creditors, are void as to them. In such
case, the law adjudges the legal estate to re-
main in the debtor, so as not to pass under the
devise, or voluntary conveyance. It is im-
material whether the debt is as principal or
surety, as maker or indorser, or whether due
or (o grow due. The object of the Statute
against fraudulent conveyances is to keep the
estate of the debtor for his creditors, and for
them only ; avoiding the conveyance as re-
spect* them, but leaving it to stand as to other
persons. (Twine' » case, 8 Co., 81 b ; 5 Co.,
60; 2 Ves., 11; 1 Atk., 15; 1 Ves., 27; Rob.
Fraud. Conv., 17, 18, 459. 460.) The fraud
need not be pleaded. The lands conveyed be-
come assets in the hands of the heir. (Dyer,
295 b, p. 16; Jenk., 295, case 45; Shep.
Touch.. *65, 6«; 2 Saund., 7, /». 4; 1*1 <tO
Rob. Fraud. Conv., 596.) The only case
which countenances a contrary doctrine is that
of Parsloif v. Weedon, in 1718 (1 Eq. Cas. Abr.,
149, sec. 7), determined by Lord Macclesfield,
whose decision excited great surprise and dis-
satisfaction among the bar at the time. That
case is not regarded as authority, but as a
dictum merely of Lord Macclesfield. (Prec.
Ch., 520, note; Jones v. Martth, Cases ttmp.
Talbot. 64.) In Jackson v. Burgott, 10 Johns.,
457, 463, the court say that no estate passes to
the purchaser by the fraudulent deed. " Such
fraudulent estate is as no estate in judgment
of law." Where a devise is to an heir, he
may be charged both as heir and devisee. (2
Saund., 7, n. 4.)
Discounting a note at the legal rate of in-
terest is not usury. In Lloyd v. Williams, 2
W. Bl., 792, Blackstone, J., said that interest
might as lawfully be received beforehand, for
forbearing, as after the term had expired, for
having forborne ; and that it was not to be
reckoned as merely a loan for the balance ;
otherwise, every banker in London who takes
five per cent, for discounting bills would be
guilty of usury. The Act passed at the last
session allowing banks to discount notes for
more than sixty days, at seven per cent.,
shows the sense of the Legislature on this
point. Discounting is merely deducting the
interest from the amount at the time of the
loan. (1 Bos. & P., 144; 2 T. R., 52: 1
Campb., 177; 2 Campb., 33.)
Mr. 8. Jones, Jr., in reply, insisted that if
the answer of one defendant in chancery did
not charge his co-defendant, by parity of rea-
soning, the admission of one heir could not
charge his co-heirs.
That in estimating the amount of debts, the
bonds and mortgages cannot be taken into
the account.
But whatever may be the effect of the con-
veyance, it so far changes^the legal descent of
the property that the defendants cannot be
charged, as heirs for assets by descent. The
>f Pnrsloie v. Weedan has never been over-
ruled. The deed was not absolutely void but
merely voidable. If the grantee had sold the
land to a bona fide purchaser *ignorant [* 1 07
of the fraud, such conveyance would be valid.
104!>
167
SUPREME COURT, STATE OF NEW YORK.
1818
The deed is good against the parties, and the
heirs and devisees of the grantor, and against
creditors, until they come in to set it aside. At
the time of Mrs. O.'s death there was no ques-
tion as to the validity of the conveyance. In
Jat-kson v. Burr/ott the grantor was .still living.
Besides, Mrs. O. does not devise these lots to
her children, but recites these conveyances, and
then devises the residue of her estate. The
grantees did not take as heirs, for there were
other children.
If it is part of the contract to pay the inter-
est in advance, it is usury. A person may
lawfully stipulate for the payment of interest
weekly ; for then there is no interest paid un-
til after forbearance.
YATES, J., delivered the opinion of the
court :
The executors, as the legal representatives,
of the deceased, had exhibited the statement
under oath, and filed it, with the petition, in
the surrogate's office, with an intention of ob-
taining an order to sell the real estate, but
which was, afterwards, abandoned. It ap-
pears to me that the executors, of all others,
were the best informed on the subject, and
were competent to make admissions sanctioned
by their oaths ; particularly as to a collateral
fact. Those documents were, therefore prop-
erty- admitted in evidence,1 as stated in the case,
for the purpose of showing the testator's in-
debtedness on the 31st of May, 1814 ; and un-
less a mistake had been made in the statement,
which might have been shown on the trial, it
must be entitled to great weight. (1 Phil.
Ev., 192; 15 East, 34, 35; 4 Johns., 461.)
The executory were certainly competent to
know the fact, and the evidence appears to me
to be the highest of which the nature of the
case is susceptible. It goes to show, most de-
cidedly, the fact of insolvency at the date of
those deeds ; nor would the result be different
if the estate of the husband, and the bonds al-
leged to be executed by him, were excluded.
It is evident, then, that the situation of Mrs.
Osgood, at the date of those conveyances, ren-
168*] dered*themvoid as regards the plaint-
iffs in this cause ; and the law is well settled
that if a party executes a voluntary convey-
ance, indebtedness, at the time, is evidence of
fraud ; and where such indebtedness is to the
extent shown in this ease, it is sufficient to ren-
der the conveyances inoperative and void as
to creditors.
That part of those debts had originated in
consequence of indorsements by Mrs. Osgood,
for her son, does not alter the case, in con-
struction of law ; and the testimony clearly
shows that she could not have been solvent at
that period ; and that long before the date of
the conveyances, she was, from time to time,
wholly dependent on her credit for funds. It
was, then, illegal for her, while those embar-
rassments continued, to convey to her daugh-
ters. (3 Co., 81 b. Twine's case, 1 Atk.. 15, 94;
2 Atk., 600.) ••
If, then, those conveyances were fraudulent
and void, the fee remained in Mrs. Osgood,
and, as to her creditors, it was the same as if
she had never conveyed. (3 Rep., 78 b; Dyer,
295, pi., 16.) The title to the estate must, con-
1.— See Johnson v. Beardslee et al., ante, p. 3.
1050
sequently, be governed by her last will and
testament, by which, after sundry bequests
and legacies, she devises to her children, par-
ties to this issue, all the rest of her estate, both
real and personal. The lots for which the
void conveyances were given constitute a part
of that residue, and, of course, must be held
by them under this devise, and be equally lia-
ble for the payment of the debts of the de-
ceased, with the other real estate of which she
died seised, and are assets by devise.
There is no ground for the allegation that
the notes are usurious, for it cannot be ques-
tioned that it has been the uniform practice of
all banking institutions, since their establish-
ment, to exact the payment of interest in ad-
vance ; and it would be an alarming principle
to introduce, that all paper thus held should
be usurious and void. The law, however,
does not require such a decision. It supports
a different and more salutary principle, and
more conducive to mercantile convenience, by
allowing bankers to receive the interest in ad-
vance. (2 El, 792 ; 1 Bos. & P., 144; 2 T.
*R., 52.) The court are, therefore, of [*169
opinion that the plaintiffs are entitled to judg-
ment.
Judgment for the, plaintiffs.
Explained— 8 Wend., 16.
Cited in— 2 Cow., 675, 703, 767 ; 8 Cow., 449 ; 3 Wend..
409 ; 4 Wend., 332 ; 12 N. Y., 228, 235; 16 Barb., 546 ; 8
Bos., 97;. 7 Kas., 409.
JACKSON, ex dem. LIVINGSTON ET AL.,
ROBINS.
Wills — Fee with Limitation over — Adverse Pos-
session— Commencing in Life of Ancestor —
Title Descending to Feme Covert Does Not
Prevent Operation of Statute of Limitations.
Where A devises all his estate to B, his wife, her
executors, administrators and assigns, but in ease of
B's death, without disposing of it by will or other-
wise, then to his daughter, B takes, under the devise
the entire fee, and the subsequent limitation to the
daughter is consequently void.
Wnere an adverse possession has commenced in
the lifetime of the ancestor, the .operation of the
Statute of Limitations is not prevented by the title
descending to a person under legal disability, as a
feme covert, &c.
, Citations— 13 Johns., 537-551 ; 10 Johns., 19.
THIS was an action of ejectment for lands
in the town of Walkill, in Orange Coun-
ty. The cause was tried before His Honor, the
Chief Justice, at the Orange Circuit, in Sep-
tember, 1815.
The special verdict stated, that on the 1st of
January, 1771, \Villiam Alexander, common-
ly called Lord Stirling, was seised of a certain
tract of land of about three thousand acres, in
the County of Ulster, now in Orange County,
of which tract the premises in question are
part. Lord Stirling died seised in the spring
of 1783, after having made his will, dated Jan-
uary 29th, 1780, which contained the follow-
ing devise : "I give, devise and bequeath, all
my real and personal estate whatsoever, unto
my dear wife Sarah, to hold the same to her,
her executors, administrators and assigns; but
NOTE.— Witts— Fee with limitation over.
A fee does not admit of a limitation over, and the
limitation m void. See Jackson v. Bull, 10 Johns., 19.
JOHNS. REP.. 15.
1818
JACKSON, EX DEM., v. ROBINS.
169
in case of her death, without giving, devising, j
or bequeathing by will, or otherwise selling
or assigning the said estate, or any part there-
of, then I do give, devise and bequeath, all
such estate, or all parts thereof as shall so re-
main unsold, undevised. or unbequeathed,
unto my daughter, Ladv Catherine Duer, the
wife of "the Honorable William Duer, Esq., of
the Sr.-iti- of New York, to hold the same to
her. her executors, administrators or assigns.'.'
Catherine Duer. who. after the decease of her
husband; William Duer, married William
Neilson, and Mary, the wife of Robert Watts,
were the daughters and ep-heiresses of the tes-
tator. Ladv Stirling died in March, 1805. In
1771 Anne \Vaddell recovered a judgment in
the Supreme Court of the Province of New
York, against Lord Stirling, for £7.790 debt,
with damages and costs. In 1775 the execu-
tors of Anne Waddell revived this judgment
17 O*1 by *scire facias; and after the death of
Lord Stirling, in October vacation, 1787, they
again issued a scirefafws against the heirs and
terre-tenants of Lord Stirling, whereon Rob-
ert Watts, and Marv. his wife, and Catherine
Duer. the heirs of Lord Stirling, alone were
summoned: and in January Term, 1788, judg-
ment passed against the persons thus sum-
moned by default ; a./i. fa. was issued to the
sheriff of Ulster, under which he sold the
premises in question, with other lands to John
Taylor, and executed to him a deed, dated the
10th of June. 1788. On the 80th of April,
1794, Taylor granted the premises to Harlowe,
who entered and took possession. Harlowe
afterwards conveyed them to the defendant's
father, from whence they descended to the de-
fendant as his heir at law.
This cause was argued at a former term bv
Mr. J. Duer for the plaintiff, and Mesxrs. J.
Emott&nd S. Jone*, Jr., for the defendant ; and
again, in October Term last, by Messrs. Dmr
and T. A. Emmet for the plaintiff, and Messrs.
8. Jones, Jr. , and Slosson for the defendant.
Several of the points discussed in this cause
were also raised in the case of Jackson, ex dem.
Livingston, v. De Lancey, 11 Johns., 865-376.
which was affirmed in the Court of Errors. (13
Johns., 587-560.)
The plaintiff's counsel contended: 1. That
Catherine N., one of the lessees, had a right
of entry on the premises in question, under
the limitations contained in the will of Lord
8. ; and to show this, they insisted that Lady
S. took an estate for life^ with power to sell
or devise in fee, and that Catherine N. took in
remainder ; but admitting that the word "es-
tate" in the will of Lord S., gave Lady S. the
fee, yet there was a good executory devise to
Catherine N. 2. That the right of entry of
C. N. was not barred by the sale of the lands
made by the sheriff of Ulster. 3. That her
entry was not barred by the Statute of Limita-
tions.
171*] *PLATT, J., delivered the opinion
of the court :
The plaintiff claims title under the will of
Lord Stirling, bearing date the 29th of Janu
ary, 1780. and which took effect at the death
of the testator in the spring of 1788.
By that will, the testator devised to Lady
Stirling all his estate, real and personal, with
JOHNS. RKP.. 15.
an absolute and unqualified right in her to
" sell, devise or dispose of it," at her pleasure ;
and the will further declares that " in case of
her death, without giving, devising or be-
queathing, by will, or otherwise selling or be-
queathing the said estate, or any part thereof."
then the testator gives to his daughter, Cath-
erine Duer, all such part of the estate as shall
remain " unsold, undevised, or unbequeathed "
by Lady Stirling.
In the case of Jackson, ex dem. Livingston, v.
De fstncty, 18 Johns., 587-551, the court for
the Trial of Impeachments and the Correction
of Errors, on a point essential in the determi-
nation of that cause, expressly decided that
according to the true construction of this will.
Lady Stirling took an estate in fee simple, ab-
solute : and that the limitation over to Cath-
erine Duer was not a pood executory devise.
That decision sanctions the opinion of this
court in Jackson v. Hull, 10 Johns., 19, and
must be regarded, by us, as conclusive on that
point.
Ladv Stirling died in 1805. and the only title
proved on the part of the plaintiff is* that
Catherine N., one of the lessors, is the daugh-
ter and heir of Lady Stirling. Mrs. N. can
claim nothing immediately from her father,
Lord Stirling, either as heir or devisee.
It appears that in April, 1794, Harlowe en-
tered into aqtual possession of the premises in
question, under a conveyance from Taylor,
who purchased the land at the sheriff "s sale on
the 16th of June, 1788.
1 Whether Taylor acquired a valid title, under
the proceedings by scire facias and the sheriff's
sale, is a question which does not necessarily
arise in this case. The possession taken under
that purchase was, at least, under color of
title, SQ as to constitute a possession adverse
towards Lady Stirling, and all claiming under
l>er. As the Statute of Limitations began to
run in the lifetime of Lady Stirling, and had
•overrun twenty years before the com- [*1 72
mencement of this suit, the coverture of Mrs.
N. affords no protection to the title which she
derived as heir of Lady Stirling.
The Statute of Limitations, therefore, bars
the plaintiff's right of entry, and the defendant
is entitled to judgment.
VAN NESS, J. Though I concur in the de-
cision of the court, yet I think proper briefly
to explain the ground of my concurrence.
The construction of the will o'f Lord Stirling
was settled by the Court of Errors in Jackson
v. Delancey, and I am not at liberty to adopt
a different construction. Were it n'ot for that
decision, I should have no difficulty in saying
that Lady Stirling did not take a fee under the
will of Lord Stirling, and that the judgments
were not well revived by set. fa. against Lady
Catherine Duer. But a decision of the Court
of Errors, directly on the point before the
court, in this cause, and which was necessary
to the determination of the cause in that court,
must be binding on this court.
Judgment for the defendant.
Affirmed— 16 Johns.. (437.
Limitation* orer. Clt«! in— 18 Johns., 584; 23
Wt-ml., 140; 1 Sand. Ch.. 277 : 68 N. Y., 491 ; 2 Lans..
874 ; 4 Barb., 614 : 3 Lepr. Ohg.. 20B.
Adverse possession. Cited in— 2 Barb.. 313 ; 99 (7. 8.,
168 ; 39 Wls.. 4ttti.
1051
172
SUPREME COURT, STATE OF NEW YORK.
1818
PAGE ET AL. v. LENNOX AND MAITLAND.
Capture — Of Goods — Court of Admiralty — Ad-
judication, in. England, of -Prize Taken into
Port of Ally — Condemna-tion Legal — Neutral
Territory.
American goods were captured by the British, and
carried into Futa, a Swedish island, but then in the
possession of the British, and completely under
their control, Sweden, at that time, being: at war
with Great Britain : the woods, while at Futa, were
proceeded against as prize in the Court of Admiral-
ty in England, and pending the proceedings, peace
was concluded between Great Britain and Sweden,
and the goods were, afterwards, condemned, with-
out ever having been in great Britain. Held, that
the condemnation was legal, and devested the prop-
erty of the original owners.
• Whether a court of admiralty sitting in one coun-
try can adjudicate upon property captured as prize
of war, and taken into a neutral territory, and
never coming within the jurisdiction of the court-
Qucere.
But it may adjudicate upon a prize carried into
the ports of an ally in the war.
Citations— 1 Johns., 479 ; 4 Cranch, 293 : 6 Cranch,
281 ; 2 Rob., 209 ; 1 Johns., 484.
THIS was an action of trover, tried before
Mr. Justice Yates, at the New York sit-
tings, in November, 1816.
The agent of the plaintiffs purchased a large
quantity of German linens at Hamburg, on the
account, and with the funds of the plaintiffs,
with which he proceeded from Hamburg with
intention to transport them to Copenhagen,
173*] there *to be shipped for the United
States. The Danish sloop St. Jorgen, on
board of which the goods were laden for Co-
penhagen, was obliged by adverse winds td
put into a port in the Danish dominions, and
while lying there was, on the 24th of May,
1812, cut out and captured by tire boats of the
British frigate Helder, and sloop of war Bel-
lette. The sloop and her cargo were sjent by
the captors to, and about the middle of July
arrived at Futa, a small island near Wingo
Sound, and sixteen or seventeen miles west of
Gothenburg, within the Swedish dominions,
but at that time in the possession of the Brit-
ish, having been taken by Vice-Admiral Sir
James Saumanz, during the war between
Great Britain and Sweden, which commenced
in 1810, and was terminated by the Treaty of
Peace signed by the ministers of the two pow-
ers on the 18th of July, 1812, and ratified by
Sweden on the 18th of August, following.
This island was used as a place of rendezvous
by the British, for the prosecution of their
commerce in the Baltic, and was held without
the permission or consent of Sweden, although
the war was merely nominal, Sweden having
been forced into the contest by Napoleon.
The intercourse between Futa and Gothenburg
was unrestricted, and Swedish vessels passed
the British fleet without molestation ; but the
island was still under the complete control of
the British. Commissioners were established
for the purpose of taking the examinations of
the masters and owners of prizes brought in
there, and forwarding them and the captured
vessels to the judge of the Court of Admiralty
in England. These commissioners had previous-
ly resided at Gothenburg, with the consent of
the Swedish government; but on the breaking
out of the war, transacted their official busi-
ness at Futa. Proceedings were instituted in
the English Court of Admiralty against the St.
10 V.!
Jorgen and her cargo, while at Futa (where,
on her arrival, the preliminary examinations
were taken by the commissioners, aud with
the papers were sent to England), and they
were condemned on or about the 2d of Sep-
tember, 1812. After the condemnation, the
captors sold the goods in question, being the
greater part of the linens originally purchased
by the agent of the plaintiffs at Hamburg to
one Dickinson of Gothenburg, who sold the
same to Low and Smith of the *same [*174
place, by whom they were sent to New York,
consigned to the defendants.
A verdict was taken for the plaintiffs, for
$50,000, subject to the opinion of the court.
The case Avas argued, with great learning
and ability, by Messrs. Wells and T. A. Emmet
for the plaintiffs, and Messrs. D. B. Ogden and
Hoffman for the defendants ; but as the opin-
ion of the court was founded merely on the
question of fact, that the Island of Futa was
not, at the time, neutral territory, but in the
hostile possession of the British, and under the
jurisdiction and control of the British forces,
it is unnecessary to state the arguments of the
counsel on the points raised in the cause.
THOMPSON, Ch. J., delivered the opinion of
the court:
The questions which have been made and
discussed in this case are: 1. Whether, ad-
mitting the Island of Futa to have been neu-
tral territory, it was competent for a British
Court of Admiralty to proceed against and
condemn the property in question, whilst
lying at that place. If not, then, 2. Whether,
in point of fact, Futa was not, at the time, so
far a part of the British territory, or in the
possession of Admiral Saumarez, as to render
valid the condemnation. In the argument of
the first question, we have been called upon to
review some of the principles laid down by
this court in the case of Wheelwright v. Depey-
ster, 1 Johns., 479; for although the principal
question in that case was, whether a condem-
nation by a prize court, established in a neu-
tral country, was valid, yet the late Chief Jus-
tice, in pronouncing the opinion of the court,
went into an examination of the question,
whether a prize court in the belligerent coun-
try could proceed against a prize lying within
the territory of a neutral power, and, upon a
very able examination of the point, was of
opinion that it could not. A contrary doc-
trine seems, however, to prevail in the Su-
preme Court of the United States, according
to the case of Hudson et al. v. Guestier, 4
Cranch, 293; 6 Cranch, 281. The high respect
we entertain for that court, and the fitness and
propriety of a uniformity of decision, especial-
ly on questions of this kind, might induce us
again to turn our attention to *this [*175
question, if it had become necessary to the
decision of the case before us. But thinking,
as we do. that the condemnation was valid, on
the other ground taken by the defendants'
counsel, we forbear to touch the first point.
The property in question, being a quantity of
linens, was captured as prize, on board a
Danish vessel, in May, 1812, by the British
ship Helder, and in July following, carried by
the captors into the harbor of the Island of
Futa, which is situated in Wingo Sound, about
JOHNS. RJSP., 15
1818
BHTLER v. K KI.H.Y.
175
seventeen miles west of the City of Gothen-
burg, being one of the outermost Swedish
island*. From the evidence, it U very satisfac-
torily established that this island wa.s some
tirao before taken possession of by Vice- Admi-
ral Sir Jam»M S.iumarez. in the name of His
Britannic Majesty, and held as a place of ren-
dezvous for prizes taken by the British fleet,
and to facilitate British commerce; that the
British flag was flying in the harbor, and that
no other naval or military force was stationed
there; that, in point of 'fact, and for every
naval, military, and commercial operation, the
island could only be considered a British sta
tion; that it was not then held b.irelv by per-
mission of Sweden, but was taken and held, as
a hostile measure, war having been declared
by Sweden against Great Britain, in the year
1810. Tim declaration of war was probably
made under the coercion of the Emperor of
France, and we do not find any active hostile
operation* carried on; yet there was an exist-
ing .state of war between Great Briyiin and
Sweden, when possession was taken of this
island, and there was no testimony whatever,
to show that such possession was taken or held
by permission of the Swedish government.
This question was pressed upon most, if not
all of the witnesses who were examined, and
no one pretended to say that such permission
was ever asked or obtained. On the contrary,
several of the witnesses state explicitly, that
the island was taken possession of by the Brit-
ish admiral, and held as a place of rendezvous,
on account of the then existing war between
Great Britain and Sweden; and that this was
without the consent and permission of the
Swedish government. Commissioners were
appointed and established there, by and under
the authority of the English admiralty, for the
purpose of taking the examinations and depo-
17O*] sitions *of witnesses, in the cases of
prize vessels sent by British cruisers into this
island. The commission was executed, at this
place, under the protection of the British fleet
there stationed, and without the consent of the
Swedish government. We are fully warranted,
from the testimony, in saying that, from the
time this island was taken possession of, no
civil or military power was exercised there by
the Swedish government, until after the Treaty
of Peace, in August, 1812. Indeed, the case
does not furnish us with any evidence that
this island was even then given up to Sweden;
and the Treaty of Peace is entirely silent on
the subject. One of the witnesses speaks of
its being in possession of Sweden at the time of
his examination, which was in the year 1815.
I have not thought it necessary to refer partic-
ularly to the evidence of the several witnesses
who have testified in relation to the possession
of this island. The proof is clear, that when
the prize was taken and carried in for examin-
ation, the island was, to all intents and pur-
poses, in the undisturbed possession of the
British, and considered a station for their naval
and commercial operations; and that it so con-
tinued until after the commencement of the
admiralty proceedings, if not evendown to the
time of the condemnation, on the vM of Sep-
tember, 1812. The time of the commencement
of the admiralty proceedings does not. with
certainty, appear; and it is not very important
Joiuia. KM-.. 15.
that it should, for the Treaty of Peace be-
tween Great Britain and Sweden nviy, perhaps,
bear the construction of making the latter an
ally of the former; and there can be no ques-
tion ii.i; that a condemnation of prizes brought
into tii • port of an ally would be valid. (2
Rob., 20J; 1 Johns.. 43*1.) This, however, is
barely thrown out. without intending to place
til-.- cause, in any measure, upon the construc-
tion of this Treaty.
If, in point of fact, then, the Island of Futa
was in the possession, and under the jurisdic-
tion and control of the *Brilish forces, [* 1 7 7
there certainly can be no objection to a British
court of admiralty proceeding against prizes
brought in there. None of the reasons which
may be urged against a prize court proceeding
to the condemnation of property, lying within
the territory of a neutral power, can be applied
to the case. The great objection to such pro-
ceedings is, that the re* ip*i is not within the
possession and under the control of the court,
so that the sentence, or decree, could be en-
forced, the proceeding* being in rein. But no
such difficulty rests here. Thin prize remained
not only in the possession of the captors, but
at a place under the exclusive control of the
sovereign of the captors. Here is all the pos-
session necessary to give jurisdiction to a Brit-
ish court of admiralty. On this ground, there-
fore, we think the condemnation valid, and the
right of the plaintiffs to the property in ques-
tion thereby devested ; and that the defend-
ants are, accordingly, entitled to judgment.
Judgment jor the defendant*.
BUTLER v. KELSEY.
Practice — Writ of Inquiry of Damages — Cannot
be Executed on, Sunday — Verdict on Sunday —
Objection to Jurors.
A writ of inquiry of damages cannot be executed
on a Sunday : nor can the jury, who have been im-
paneled on Saturday, and heard the Hllrwitions and
proofs of rha parti js b;fore LJ o'clock at nitrht, as-
sess the dutnws and deliver their verdict to the
sheriff on Sunday.
If the plaintiff has any objections to any of the
jurors, hi- must make them npcnly. and if he state
them privately to the sheriff, who thereupon dis-
charges a juror, the inquisition will be set aside.
THIS was an action of slander, in which the
defendant suffered judgment to be entered
by default, and on a writ of inquiry executed
before the sheriff of Dutches* County, the
jury assessed the damages to $147.
Mr. Bloom, for the defendant, now moved to
set aside the inquisition, for irregularity. It
appeared, from the affidavits *which [*178
were read, that the execution of the writ of
inquiry was commenced before the sheriff and
jury, at six o'clock on Saturday evening ; that
the hearing of the allegations and proofs of
the parties, and of the defendant's counsel, de-
tained the jury until half past eleven o'clock of
Saturday evening, when the defendant's coun-
sel proposed an adjournment until after Sun-
day, but the plaintiff's counsel declined an ad-
journment, not considering the objection to
giving a verdict on Sunday morning suffi-
cient ; that the jury retired to consider of
1053
178
SUPREME COURT, STATE OF NEW YORK.
1818
their verdict about one o'clock A. M. of Sun-
day, and returned their verdict about four
o'clock, A. M. of that day. Before the jury
were summoned, the plaintiff's attorney re-
quested the sheriff not to summon two men,
who were freeholders, but against whom there
was some objection as to their sitting in this
cause, and the sheriff omitted to summon
them ; and it appeared that the defendant had
consented to their being omitted by the sheriff.
T. B., another freeholder, and inhabitant of
Poughkeepsie, who was summoned by the
sheriff, appeared, and the plaintiff's attorney
called the sheriff aside, and stated an objection
to T. B. as a juror ; and the sheriff discharged
him, and put another juror on the panel. It
did not appear that the defendant knew, of the
objection made to T. B. Some of the jurors
stated that they understood that the defend-
ant's counsel consented to waive any objection
to proceeding with' the inquiry on Sunday
morning, otherwise they should have refused
to proceed.
Mr. Bloom contended that the inquisition
ought to be set. aside on two grounds : 1.
Because it was partly executed and taken on
Sunday morning. 2. Because the plaintiff's
attorney improperly interfered in the selection
of the jurors.
In support of the first point, he cited 2 N.
R. L., 195; Jacob's Law Diet., 140, (id we.
Sunday; 2 Inst., 264; 1 Ld. Raym., 706; 8
East. 547 ; 1 Str., 387 ;- 8 Johns., 290. To the
second point, Trials per Pais, 169 ; 9 Johns. ,
260; 1 CoxeN. J., 6, 169.
Mr. P. Ruygles, contra.
sheriff may take and sell property of which the ab-
sconding debtor is a tenant in common with
another, though it be in the possession of his co-
tenant. But the sheriff can sell only the undivided
moiety or interest of the debtor, and the purchaser,
at such sale, becomes a tenant in common with the
other co-tenant, who cannot, therefore, maintain
trespass or trover against him, the tenancy in com-
mon not being severed or destroyed by the sale.
Citations— Salk, 292; 1 East, 367; Litt., 323: 2
Johns., 468 ; 3 Johns., 176.
ERROR, on certiorari to a justice's court.
F
The action was trespass, for taking and sell-
ing a yoke of oxen, brought by Norton
against Mersereau. It appeared that the oxen
were owned by the plaintiff below and one
Amasa Norton ; that an attachment under the
Absconding *Debtor Act was issued [* 1 8O
against Norton, and the oxen in question were
taken by the sheriff out of the possession of
the plaintiff below, the defendant below being
in company with the plaintiff, and ordering
him to take them. The plaintiff below forbade
the taking, but said nothing about claiming
them. The oxen were afterwards sold by the
trustees, who were duly appointed. The
plaintiff below forbade the sale. The defend-
ant, being present, directed the sheriff to pro-
peed and sell, and the oxen were purchased by
Peter Mersereau. The jury gave a verdict for
the plaintiff for $25.
Per Curiam. The defendant in the court
below pleaded not guilty, and stated that he
should justify under the Statute for giving re-
lief against absent and absconding debtors.
Why the defendant below interfered in any
179*] * Per Curiam. The inquisition ought manner to direct the sheriff who had the at-
to be set aside. The writ was executed on tachment, does not appear. t inmost likely
Sunday, within the meaning of the 'Statute.
There was no necessity for taking the inquisi-
tion on Sunday, as the cause might have been
adjourned over until Monday. It is not like
the case of a trial at a circuit, where a verdict
is sometimes taken on Sunday morning,
because the jury must, otherwise, be kept to-
gether during Sunday.1
On the second ground, also, the inquisition
ought to be set aside. Though the plaintiff's
attorney may have acted with good intentions,
and from no improper motive, yet if there is
any legal or valid objection to a juror, it ought
to be openly and publicly stated, and the
sheriff may then set aside the juror against
whom the objection is made, and summon
another ; or, if he should refuse to do so, it
would be ground for an application to set aside
the inquisition. There must be no interference
with the jury or the sheriff.
Motion granted.
Cited in— 8 Cow., 28: 1 Den., 206; 8 Barb., 386; 33
Barb., 569 ; 21 How. Pr., 166 ; 22 How. Pr., 447.
L. MERSEREAU v. NORTON.
Attachment — Sheriff may Sell Undivided Share
of Tenant in Common — Purchaser becomes
Tenant in Common — Other Tenant cannot
Maintain Trespass or Trover against Him.
Under an attachment issued in pursuance of the
Act against Absconding and Absent Debtors, the
1.— See Hoghtaling v. Osborn, ante, p. 119; Story v.
Elliott, 9 Cow., 27.
1054
that he was a creditor of Amasa Norton ; but
unless the sheriff was a trespasser, the defend-
ant below could not be deemed so. He must be
justified equally with the sheriff, under the at-
tachment. There does not seem to be any
complaint that the proceedings under the at-
tachment were not regular ; and the only
question that appears to be raised on the return
is, whether a sheriff, under an attachment like
this, has a right to take and sell property of
which the absconding debtor was only a ten-
ant in common, when that property is found in
the possession of the other co-tenant. Of this
there can be no doubt. There is no other way
to get at the interest of the one against whom
the attachment issues. It is observable, in this
case, that although, upon the trial, it appeared
that the plaintiff below and the absconding
debtor were tenants in common of the oxen,
yet neither when they were first taken, nor
when they were sold, did the plaintiff allege
this, or that he had any claim to the property.
Had a claim of property been interposed, the
sheriff must have summoned a jury to try the
right, and the sale would have been only of
the interest of the absconding debtor, as in
case of a sale under an execution of the prop-
erty of joint partners. The sheriff, in such
cases, seizes all and not a moiety of the goods
sufficient to cover the debt, and sells a moiety
thereof undivided, *and the vendee [*181
becomes tenant in common with the other
partner. (Salk., 292 ; 1 East, 367.) Although
the sheriff sold the oxen as the sole property
of Norton, yet no more
than his interest
JOHNS. REP., 15.
1818
COONS T. M'MANUS.
181
passed, and the plaintiff below became tenant
in common with the purchaser. The sheriff
who took the oxen, and all who aided him,
and the purchaser, must certainly have all the
rights and interest of Norton, the absconding
debtor ; and one tenant in common of a chat-
tel cannot maintain trover or trespass against
his co-tenant. This doctrine is expressly laid
down by Littleton, sec. 323, and sanctioned by
Lord Coke, who says if one tenant in common
take all the chattels personal, the other has no
remedy by action, but he mav take them
again ; this has l>cen so held by this court. (2
Johns., 468.) The sale here was not such a
destruction of the property as to destroy the
tenancy in common, as will be seen bv the dis-
tinctions taken upon the trial, in \Vil»m <t
Gihba v. Reed. 3 Johns.. 176. The judgment
must be reversed.
Judgment reversed.
Distinguished -2 Hill, 48.
Cit*d ln-4 Wend.. 530 : 9 Wend.. 340 ; 12 Wend., 37 ;
24 Wend., 338: 42 N. Y.. 138: 2 Barh., <p>: 8 Barb.,
MB; 23 Barb., Mi) : 8 Abb. Pr., 122 ; 3 Wood & M., 175 ;
51 Ind., 3: 25 Winn., J»4.
COONS T. M'MANUS.
Practice — Rule on Sheriff.
The rule on the sheriff to bring In the body of the
defendant, cannot be served until twenty daysafter
the term in which the writ is returned have ex-
pired : and it suetns that the rulo ought not to be
entered before the expiration of that time.
MR. RICE moved for an attachment against
the sheriff for not bringing in the body
of the defendant in this cause. The rule on
the sheriff for that purpose was served on him
the 29th of October, before the expiration of
twenty days after the term. The defendant
treated the rule as a nullity.
Mr. Many, for the defendant, contended
that the plaintiff had no right to enter the
rule until the twenty days after term had ex-
pired.
182*1 *SPENCER, .7. Though you may
enter the rule before the expiration of the
twenty days after the term, yet it cannot be
served until that time has expired.
VAN NESS. J. I think the rule ought not
to be entered until after the twenty days have
expired, for there is no default until that
time. The plaintiff cannot take an assignment
of the bail-bond until after the expiration of
twenty davs after term, which is the time al-
lowed for putting in special bail ; and, by
analogy, the rule for bringing in the body of
the defendant ought not to be entered before
the expiration of the twenty days. It clearly
could not be served on the sheriff before the
end of that time.
Per Curiam. The motion mutt be denied.
HASBROUCK c. TAPPEN.
Practice — Stay of Proceeding— Bill of Excep-
tion*.
The rule of practice as to oases, as to the necessity
for an order to stay proceedings, does not apply to
JOHNS. UK P.. 15.
bills of exceptions, since the Statute requires the
court to give judgment thereon: but the order to
stay proceedings may be granted of course.
THIS cause was tried at the late Ulster Cir-
cuit. At the trial, the defendant's coun-
sel took exceptions to the opinion of the judge
in his charge to the jury. By agreement
between the counsel of both parties, the bill of
exceptions was to be prepared after the Circuit,
and sealed by the judge, at the next term,
when the same should IK? argued. The bill
was accordingly prepared and signed, and
sealed by the judge, but he refused to grant
an order to stay proceedings in the cause;
and the plaintiff's attorney proceeded to enter
up and perfect his judgment ; but no execu-
tion was issued thereon.
Mr. Cftfimplin, for the defendant, now
moved, on affidavit, for an order to stay pro-
ceedings, and for a rule to vacate the judg-
ment and other proceedings since the pattfa,
and that the cause be argued on the bill of ex-
ceptions.
Mr. C. Rufjgles, contra.
*Per Curium. The rule of practice [*1 83
as to cases made for argument does not ap-
ply to bills of exceptions, for the Statute re-
quires the judgment of this court on the
bill of excepiions, before the cause can be car-
ried to the Court for (he Correction of Errors.
There is no need of an order to stay proceed-
ings ; or it mav be granted, of course. This
may, perhaps, lead to abuse ; but if bills of
exceptions are tendered on frivolous grounds,
we shall be obliged to apply to them the rule
of practice in the case of frivolous demurrers,
by giving them a preference on the calendar,
or take some other method to prevent delay or
abuse.
Motion granted.
Cited in— 4 Cow., 23 ; 3 Daly, 471.
IN THE MATTER OF E. COOK, an Insolvent
Debtor.
Affidavit of Petitioning Creditor
Affidavit of petitioning creditor of an insolvent
debtor.
ON a question referred to the court by one
of the judges of the Court of Common
Pleas of Madison County, as to the sufficiency
of the following affidavit of a creditor of an
insolvent debtor, to wit : "Madison County,
ss. J. S., of, &c., maketh oath, that the sum
of $223, subscribed to the petition of E. C.,
an insolvent debtor, hereunto annexed, is
justly due to this deponent from the said in-
solvent, on a note of hand given by the said
E. C., to this deponent, on a settlement of ac-
counts between us." The court said that the
affidavit was insufficient. That the nature of
the account on which the sell lenient took
place, or the general ground of indebtedness,
ought to be set forth in the affidavit.
Citodin-2Hllt.,340.
[END OF JANUARY TERM, 1818.]
CASES ARGUED AND' DETERMINED
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK.
MAY TERM, 1818, IN THE FORTY-SECOND YEAR OP OUR INDEPENDENCE.
JOHNSON v. HITCHCOCK.
Derogatory Statements by Competitor — No Action
Lies for.
No action lies for representing the plaintiff's fer-
ry not to be as good as another rival ferry, and in-
ducing and persuading travelers to cross at the
other, and not at the plaintiff's ferry.
N ERROR, on certiorari to a justice's court.
I
This was an action on the case brought by
the defendant in error against the plaintiff in
error, for a disturbance of his right of ferry,
and his use and enjoyment thereof, and hin-
dering persons from crossing at the same. It
appeared that the defendant below had en-
deavored to divert travelers from the ferry of
the plaintiff, representing it not to be so good
as another near it, and had, on many occasions,
succeeded. No evidence was offered on the
part of the defendant, and the jury found a
verdict for the plaintiff below for $22.16, on
which judgment was rendered.
Per Curiam. It is clear, from the evidence,
that the defendant below has, on many occa-
sions, interfered and prevented persons from
crossing at the plaintiff's ferry ; and if there
is a good cause of action, the testimony shows
an injury, probably, to the amount of the re-
18,G*] covery. But there is *uo principle on
which this action can be sustained. The evi-
dence, imperfectly as it is stated, is sufficient
to warrant the conclusion that these are rival
ferries near each other, and that the defend-
ant below was unfriendly to the plaintiff's fer-
ry, and endeavored to turn the custom to the
other. This action does not appear to be
founded on any slander of title, even admit-
ting that an action of that kind might be sus-
tained in a justice's court. Both ferries, from
anything that appears* to the contrary, have
«qual rights and equal claims to be upheld and
supported, and it cannot furnish a cause of
action that travelers have been persuaded to
cross the one rather than the other. If an ac-
tion would lie in this case, it would in all cases
of rival business, where any means are used
to draw custom ; and if this were once admit-
ted, it would be difficult to know where to
stop. The judgment must be reversed.
Judgment reversed.
1056
WOOD WORTH v. KIS8AM.
Fraud — Creditor Obtaining Goods of Debtor by
Deception — Trover Lies for Ooods.
Where a creditor, by fraud or deception, obtains
the goods of his debtor, the property is n- >t changed,
and he cannot apply them to the satisfaction of his
debt, but the debtor may maintain trover against
him.
What circumstances are sufficient to make out
fraud and deception, in such case, is a question to
be left to the jury.
Citation— 10 Johns., 172.
THIS was an action of trover for a gold
watch. The cause was tried before Mr.
Justice Platt, at the Columbia Circuit, in Sep-
tember, 1817.
A witness on the part of the plaintiff proved
that after the plaintiff and defendant had been
in private together, he came in, and found the
defendant with the plaintiff's watch in his pos-
session ; that the plaintiff demanded the watch
and money, notes and accounts of the defend-
ant, who refused to give them up ; that the
plaintiff charged the defendant with having
snatched them from the table, and that he had
deceived him ; that the defendant replied that
the plaintiff owed him, and that he meant to
have his pay. The plaintiff, soon after, stated
to the defendant, in the presence of the wit-
ness, that the defendant had uniformly repre-
sented hinself as the agent of the plaintiff's
creditors in the City *of New York ; [*187
that he had assured him, repeatedly, that he
was authorized to receive the three shillings
in the pound, which had been offered, and
discharge him from his debts in New York ;
that the defendant well knew that such dis-
charge, ou the delivery of the property, was
the only condition upon which he had ever
consented to treat with him, and had gotten
his property unfairly, and the plaintiff again
demanded it of him. The defendant did not
deny these allegations, but replied that he
would indorse the amount of the property on
the notes which he held against the plaintiff,
and would not restore it. It appeared that
the plaintiff was indebted to the defendant
and his partner in the sum of $800, and that
the defendant had indorsed upon the notes in
his possession, spven by the plaintiff to the de-
fendant and his partner, the value of .the
JOHNS. RKP., 15.
1818
COSILY V. LOCKWOOD ET AL.
187
property, which amounted to nearly the sum
due on the face of the notes.
On this evidence the judge nonsuited the
plaintiff, who now moved to set aside the non-
suit ; and the ca.se was submitted to the court
without argument.
Per C'uriam. This is a motion to set aside a
nonsuit, ordered upon the trial of this cause.
This action was trover for a gold watch.
Whether there was sufficient evidence of a
conversion, should have been submitted to the
jury. The evidence was circumstantial only ;
but it was pretty strong to show that the de-
fendant had, by undue means, got possession
of the watch in question. That the watch
was the property of the plaintiff a short lime
before it was found in the defendant's posses-
sion, is not denied. What passed between the
parties when the defendant received the watch,
was in private ; but in the subsequent conver-
sation between them, the plaintiff charged the
defendant with having violated his engage-
ment in relation to it, and that he had de-
ceived him, and got the possession unfairly.
The defendant did not deny his statement, but
offered to indorse the value of the watch upon
the notes which he held .against the plaintiff,
and did, afterwards, make the indorsements.
If there was, however, any fraud or deception
practiced on the plaintiff, no change or trans-
fer of property took place. No man can avail
himself of his own misconduct, as the founda-
188*] l'°n *°f a claim set up by him. The
principles which governed the decision of tlu;
court in Murray v. Burling, 10 Johns., 172,
will apply here, if the circumstances shown
upon the trial were sufficient to make out the
misconduct of the defendant ; and whether
they were so or not, should have been submit-
ted to the jury. The nonsuit must, accord-
ingly, be set aside, and a new trial awarded.
Motion granted.
Cited In— 5 Wend., 510.
COMLY v. LOCKWOOD ET AL.
Pleading — In Action Trcxpa** De Bonis Aspor-
tatis — Demurrer.
Where, in an action of trespass, *the defendant,
under the Act for the more easy Pleading1 in Certain
Suits (seas. 354, ch. 47, sec. 2; IN. R. L.. 155), pleads
that the supposed trespass was dune by authority of
a statute or this State, without ex pressing any other
matter or circumstance contained in such statute,
the plaintiff must reply </•• i»jm in *ua prnprfa, con-
cluding to the country, and a special replication,
concluding with an averment. Is bad.
Citation— 1 N. R. L., 155.
T1HIS was an action of trespass, for breaking
I and entering the store of the plaintiff, and
for taking and carrying away his goods,
brought against the defendant, Lockwood,
sheriff of the County of Orange, and several
other persons.
Lockwood pleaded separately : 1. Not
guilty. 2. That the plaintiff ought not to
have or maintain his aforesaid action thereof
against him, because he said that the said sup-
posed trespasses, whereof the said plaintiff
above thereof complained against him, were
JOHKS. REP., 15. N. Y. R., 5.
done and committed, if by the said defendant,
bv the authority of an Act of the Legislature
! ofr the State of New York, entitled "An Act
I for Relief against Absconding and Absent
Debtors," passed the 21st of March, in the
year 1801 : and this he is ready to verify, &c.
The plaintiff replied that llavilund, one of
the defendants, on or before the 13th day of
July, made oath that one Field was justly in-
debted to him, in the sum of $100 and up-
wards, and had departed the State, or wa<«
concealed, with intent to defraud his credit-
ors, and offered proof of his departure or con-
cealment to Nathan H. White, Esq., first
judge of the Court of Common Pleas of the
County of Orange, who thereupon issued his
warrant to the Sheriff of the County of Or-
ange, commanding him to attach the estate of
Field ; that the defendant thereupon seized
the goods and chattels mentioned in the dec-
laration, to which the 'plaintiff put in f*189
a claim; whereupon the defendant summoned
j a jury to try the property thereof, who found
the property of the same to be in the plaintiff,
and the defendant then relinquished the goods
to the plaintiff ; that on the 22 of July Nathan
II. White issued another warrant, directed
and delivered to the defendant, the former
warrant still remaining in force, and not re-
turned, and on no other proof than had been
before made ; that the goods which had been
before restored to the plaintiff were again
seized by the defendant, which is the same
trespass and taking as are complained of and
intended by the plaintiff in his declination ;
I and that the defendant, well knowing the
premises, took and carried away the goods of
the plaintiff by the said second warrant, and
not under authority of the "Act for Relief
against Absent and Absconding Debtors, "and
concluded with an averment.
The defendant rejoined : that the plaintiff
ought not to have or maintain his action, be-
cause he saith. that the said supposed tres-
passes were done and committed by the de-
fendant, by the authority of the Act entitled,
Ac., and concluded to the country. To this
rejoinder the plaintiff demurred, assigning a
number of special causes of demurrer, which,
as they are not noticed in the opinion of the
court, it is unnecessary to state, and the de-
fendant joined in demurrer.
Mr. P. Ruggle*, in support of the demurrer.
The plea is bad ; and if so. it is unnecessary
for the plaintiff to go further. The Act for
more easy Pleading in Certain Suits (1 N. R.
L., 156, sess. 24, ch. 47, sec. 2) declares that
persons sued for acts done by authority of
any statute, may plead not guilty, or other-
wise make avowry, cognizance or justifica-
tion, A.T.. alleging therein that such thing, of
which the plaintiff complains, was done by
the authority of such statute, without express-
ing any other matter or circumstance contain-
ed in such statute, &c. In this plea, nothing
is stated, except thai the act was done by au-
thority of the Statute. There is no fact which
can be traversed, or on which issue can be
taken. If the defendant makes avowry, or
cognizance, he must use the proper form of
I such a plea. So, if he pleads *a justi- [*11>O
fication, it must be in such a way as to be
traversable.
67 1057
190
SUPKEME COURT, STATE OF NEW YORK.
181&
But if this objection to the plea be not well
founded, then we say that the rejoinder is de-
fective, for it ought to have concluded with a
verification, and not to the country. Wher-
ever any new matter is introduced, on either
side, the pleading must conclude with a veri-
fication, so that the other party may have an
opportunity of answering it. (1 Chitty's PL,
537 ; Service v. Heermance, 1 Johns., 91 ; 1
Chitty's PL, 578; Willes, 100; Com. Dig.
PL F, 18, F, 24.)
Mr. Setts, contra. The plea contains all
that the Statute requires : if the Legislature
have thought proper to authorize such a plea,
it is sufficient, In Tower v. Cameron, 6 East,
418-416. Lord Ellenborough says, it is enough
that it is a plea given by the Statute, and that
every word required by the Statute is found
in the plea. All the rest is matter of evidence.
In Labayh v. Cantine, 13 Johns., 272, this
court held the plea supported by the Statute,
though contrary to the general rules of plead-
ing.
If the plea is good, the rejoinder is so also.
It cannot depart from it, and may adopt the
very words of the plea (3 Bl. Com., 410; 1
Chitty's PL, 627 ; 2 Chitty, 671, n ; 1 Sauud.,
103, n. 3). and conclude to the country. Mat-
ters allowed by statute to be given in evidence
need not be put on the record. (Henriquez v.
Dutch W. 1. Co., 2 Ld. Raym., 1535.) If the
several matters alleged in the replication are
denied, they need not be severally and dis-
tinctly put in issue, but the rejoinder may
conclude to the country generally. (1 Chittv's
PL, 629 ; Com. Dig. PL, H.) The rejoinder
always concludes to the country, unless it in-
troduces new matter, which the plaintiff might
answer. (I Chitty's PL, 628.) Where the
whole matter in dispute is brought to a point,
the pleading may conclude to the country.
(Snyder v. Croy, 2 Johns., 428 ; Patcher v.
Sprngue, Id., 462.)
But the replication is bad in form and sub-
stance. The defendant is, therefore, entitled
to judgment. (Gelston v. Burr, 11 Johns.,
482.)
191*] *[THOMPSON, Ch. J. When you go
back to the plea of your adversary, to take ad-
vantage of its being bad, you can object only
to such defects as are grounds of general de-
murrer.]
Where the Statute authorizes a particular
mode of pleading, different from the common
law, there the mode pointed out by the Statute
must be pursued. (Cainesv. Brixban, in error,
13 Johns., 9-23 ; Bouton v. Neilison, 3 Johns.,
474 ; Munro v. Alaire, 2 Caines, 322 ; Alxo-p v.
Caines. 10 Johns., 396 ; 2 Burr., 803.) Again ;
the replication does not confess and avoid the
plea. (Com. Dig. PL, G, 22 ; 1 Chitty, 564,
600.) If the replication escapes the bar of
the plea, it is by showing that the action is
for other and different trespasses than those
justified by the plea; and then there should
have been a new assignment ; but this replica-
tion has none of the requisite qualities of a
new assignment. (1 Saund., 299 c, n. 6; 1
Chitty's PL, 610-613 ; 2 Chitty's PL, 653-658.)
It is not necessary to plead over to a new
assignment, even if this was one, any matter
of justification necessarily covered by the plea.
1058
Again ; the replication does not offer issue on
any one material point. (Com. Dig. PL, R
18; 1 Chitty, 631.) There are six distinct
facts averred in the replication, neither of
which, if issue had been taken thereon, would
determine the cause. It ought to have con-
cluded to the country. (5 Johns. , 428, 467 ;
1 Johns., 516; 5 Johns., 112; 6 Johns 33-
10 Johns., 51 ; 13 Johns., 172; Ld. .Raym
700 ; Willes., 100, n. a -. 8 Co., 66 ; 7 T. R.,
892; 8 East, 313; Doug., 96, 428; 1 Burr.,
316.)
Again ; we contend that whether the pro-
ceedings under the warrant were regular or
not, the sheriff, and all persons acting under
color of his authority, are protected. (Beach
v. Fur man, 9 Johns., 229; Warner v. Shed,
10 Johns., 138; Selfridgev. Lithgow, 2 Mass.,
374 ; Scott v. Shaic, 13 Johns., 378; 1 Madd.
Ch., 12 ; Cole v. Stafford, 1 Caines, 249 ; 1
Johns., 300; Hester v. Fortner, 2 Binn., 40 ;
Jac/aton v. Delancey, 13 Johns. , 550 ; Jackson
v. Bartlett, 8 Johns., 361.)
*Mr. Haggles, ,in reply, said that [*19U
since the Statute of Eliz., from which our
Statute was copied, a precedent of such a plea,
was not, he believed, to be found in the En-
glish books. The material point in the repli-
cation is, that the property belonged to the
plaintiff. That is the gist and substance of
the replication, and is the point on which the
plaintiff relies, and the defendant might have
taken issue on it. This is not a case on which
the rejoinder may help and support the plea.
(1 Saund., 299; Doct. Placit.. 431 ; LawesPL,
240 ; Cowp. 26 ; Str., 993 ; 2 Saund., 5, n. 3 ;
3 Johns. Cas., 107; 11 Johns., 175; 1 East,
64 ; 7 T. R., 629, «,.; 2 East, 244.
THOMPSON, Ch. J., delivered the opinion of
the court:
This case comes before the court on a de-
murrer to the rejoinder. The action was tres-
pass de bonis asportatis. The defendant pleaded,
first, the general issue ; and, second, that the
plaintiff ought not to have and maintain his
action, because the said supposed trespasses
were done and committed by the authority of
an Act of the Legislature of the State of New
York, entitled "An Act for Relief against Ab-
sconding and Absent Debtors," passed the
21st of March, 1801, with a verification. &c.
The plaintiff replied, setting forth, specially,
certain proceedings commenced against Ben-
jamin Field, as an absconding debtor, upon
which an attachment issued, and the goods in
question were seized under it, in the store of
the plaintiff ; that a claim of property was
interposed, and a jury called to try the right,
and by their inquisition, found the goods in
question to be the property of the plaintiff ;
upon which the defendant relinquished and
gave up the goods to the plaintiff ; that after-
wards another attachment was issued upon the
same proof, and without any new affidavits,
and the same goods again taken ; and that
the last taking was the trespass complained
of, and denying that the goods were taken
by the defendant, under the authority of the
Act set forth in his plea, and concluding with
a verification. The defendant rejoined in
nearly the same words of his plea, without
answering any of the special matter set up in
JOHJSS. REP., 15.
1818
HALL v. BKOWX.
192
the replication, and concluded to the country.
To this replication there is a special demurrer.
193*J *Tue question presented by the de-
murrer must turn upon the construction to be
given to the Act for the more easy Pleading
m Certain Suits. (1 N. H. L., 155.) By this
Act it is declared, that if any action shall he
brought against any person for anything done
by authority of any statute of this State, the
defendant may make justification for the thing
done, alleging therein that the thing whereof
the plaintiir complains was done by authority
of such statute, without expressing any other
matter, or circumstance, contained in such
statute ; to which the plaintiff shall be ad-
mitted to reply that the defendant did the act
or trespass, supposed in his declaration, of his
own wrong, without any such cause alleged
by the defendant, whereupon issue shall be
joined to be tried by a jury, and upon the
trial, the whole matter may be given in evi-
dence by both parties. The object of this
Statute was (as it purports from the title to
be), to give a more easy mode of pleading, in
certain cases, than would otherwise be admis-
sible, according to the general rules of plead-
ing. If the plaintiff can, by his replication,
draw the defendant into a special rejoinder,
he will lose all the benefit, intended by the
Statute, in giving the general pleadings there-
in contained. The plea pursues the very
words of the Statute ; and as it is given by
the Statute, no more can be required. The
facts set forth in the replication are matters
of evidence ; and the plaintiff must avail him-
self of them upon the trial. The Statute,
after giving this general plea, declares that
upon the trial of such issue, the whole matter
may be given in evidence. If the plea is
good, it follows, as matter of course, that the
replication is bad ; it should have pursued the
directions of the Statute ; and as this is the
first fault in the pleadings, the defendant is
entitled to judgment.
Judgment for the defendant.
At the trial, the plaintiff proved the note in
question. The defendant gave in evidence
that the possession of a certain farm, occupied
by the plaintiff, and some other matters, were
in controversy between the parties, which
were submitted to arbitrators, who awarded
that the plaintiff should pay the defendant
$187, and deliver up the possession to him.
The plaintiff refused to give up the possession,
unless compensated for his improvements, and
the defendant brought an action of ejectment.
The parties afterwards came to a settlement,
and it was agreed that the plaintiff should
resign the possession of the farm to the de-
fendant, and let him have a barrel of pork, in
consideration of which, the defendant was to
relinquish his claim under the award, and pay
the plaintiff $150. The note in question was
given for part of that sum, and the plaintiff
delivered the barrel of pork to the defendant.
A verdict was found for the plaintiff for the
amount of the note, subject to the opinion of
the court on a case containing the above facts.
Per Ouriam. The only ground of defense
relied upon in this case,' is the want of con-
sideration for the note on which the suit is
founded ; and there is no color for this objec-
tion. The note was given upon a fair settle-
ment of a suit pending between the parties,
respecting a farm in the possession of the
plaintiff, on which settlement, and giving the
note now in question, the plaintiff surrendered
up the possession of the farm to the defend-
ant.
There having been a previous arbitration be-
tween the parties, in relation to some part of
the dispute between them, cannot impeach
such settlement. They had a right to modify
and alter what had previously taken place ;
and *the giving up the claim of "the de- [* 1 J>5
fendant under the award, was one part of the
consideration for the plaintiff's surrendering
the possession of the farm to the defendant.
The plaintiff must, accordingly, have judg-
ment upon the verdict.
Judgment for tht plaintiff.
194*] *IIALL t>. BROWN.
Award* — May be Modified by Subsequent Agree-
ment of P,irtie» — Such Agreement a Sufficient
Consideration for A'ott.
Where the possession of a farm, and some other
matU-rs in controversy between the parties, wen*
submitted to arbitration, and a sum of money and
possession of the farm wore awarded to the defend-
ant, who brought an action of ejectment to recover
the poss'-flsion : and It was then agreed that the
plaintiir should give up possession to the defendant,
and that the defendant should relinquish his claim
under the award, and pay the plaintiff 8150; it was
held, in an action on a note given to secure part of
that sum, that the note was given on a good con-
sideration, and was valid, the subsequent settlement
not being affecUnl by the previous award, and the
parties having authority to vary the rights acquired
under it.
was an action of awumpril on a prom-
J. issory note made by the defendant, pay-
able to the plaintiff, dated the 15th of January.
1815. The cau<e was tried before Mi: Jnntict
Yates, at the Washington Circuit, in June,
1817.
JOIINS. RBP., 15.
WILLIAMS v. SHERMAN.
Practice in Justice L'ourt — Cotts.
Where a justice. In giving judgment fora plaint-
iff in a suit before him, includes costs incum-d on
the part of the defendant, the judgment will bo
revers«>d as to the costs.
Where on a certinrari to a Justice's court, the
judgment is affirmed In part, and reversed in part
costs in error will not be allowed on either side.
Citations— 8 Johns.. Ill ; 13 Johns., 330. 460.
IN ERROR, on certiorari to a justice's court.
It. appeared that one of the questions
raised on the return to the cerliorari, related i<>
the credibility, as well as admissibililv. of a
witness sworn on the part of the defendant
below, the plaintiff in error; but it is unnec-
essary to state the facts in relation to this
point. The justice, in rendering judgment for
the plaintiff below, included, in the costs, fees
for swearing lioth the defendant's and plaint-
iff's witnesses.
tMf
195
SUPREME COURT, STATE DP NEW YORK.
1818
Per Curiam. The credibility of the witness
was a question for the justice ; and we should
not set aside the judgment on that ground,
especially as it is very questionable whether he
was properly admitted. But in the costs, the
justice has allowed the costs of swearing the
defendant's witnesses. This was incorrect.
The judgment must, therefore, be affirmed as
to the damages, and reversed as to the costs,
and no costs will be recoverable on either side.
(8 Johns., Ill ; 13 Johns., 350, 460.)
Judgment affirmed.
Cited in-6 N. Y., 89.
196*] "DUDLEY v. STAPLES.
Attachment under Statute — Upon Non-resident
— Service — Proof.
Where a person was passing through a county
other than that in which he resided, and a justice of
that county issued an attachment against him under
the 23d section of the Act for the Recovery of Debts
to the Value of Twenty-five Dollars (1 N. R. L., 398)
the proof on which it was issued being that a war-
rant had been issued by the justice against the de-
fendant, the service of which he had avoided, and
a copy of the attachment was served by leaving it
at a store at which the defendant had been a short
time before ; it was held that the provisions of the
Act did not apply to a case of this kind, and that
the proof on which the attachment was issued, and
the service of the copy, were insufficient.
Citation— 1 N. R. L., 389.
IN ERROR, on certiorari to a justice's court.
The proceedings in the court below were
commenced by the defendant in error against
the plaintiff in error, by attachment. Dudley,
the defendant below, at the time when the
attachment was issued, was an inhabitant of
the County of Schoharie, and the justice who
issued the process was a magistrate in Sche-
nectady County, and issued the attachment
against the property while it was passing
through that county. The justice had pre-
viously issued a warrant against the defendant,
which could not be served ; and it appeared
that the service of a copy of the attachment
was made by leaving it at the store of the
plaintiff below, where the defendant had been
shortly before. On the trial, the defendant
appeared and objected to the proceedings as
improperly and irregularly commenced ; but
the motion was overruled ; and the cause was
tried, and judgment rendered for the plaintiff
below.
Per Curiam. The principal question in this
case is, whether the justice had any authority
to issue an attachment. The 23d section of
the Act (1 N. R. L., 398) under which the proc-
ess issued, authorizes any justice of the peace,
in any county, on application, and satisfactory
proof, by at least one disinterested witness,
that any person against whom the appellant
may have a demand not exceeding $25, hath
departed, or is about to depart, from such
county, or is concealed within the same, with
intent to defraud any of his creditors, or to
avoid being personally served with any proc-
ess, &c.. to issue an attachment, &c. The
magistrate lived in the County of Schenectady,
and the person against whom the attachment
issued was a resident in the County of Scho-
10GO
harie. The justice returns that the proof made
before him, and upon which the attachment
issued, was, that an attempt had been made lo
serve a warrant *on the defendant [*197
below, and that he ran away to avoid such
service, and that he was then absconding for
the purpose of avoiding the personal service
of such process. The obvious intention of the
Act was to give the process of attachment
against the property of a person who had ab-
sconded or departed from his usual place of
residence, and not where he might be occa-
sionally traveling through a county ; besides,
the mere fact of "not being able to serve a sin-
gle warrant upon a traveler, who, for many
reasons, might wish to avoid the arrest, with-
out being chargeable with intent to defraud
his creditors, is not that kind of evidence of
concealment contemplated by the Act ; and
the provisions of the 24th section very strongly
corroborate the construction that an attach-
ment cannot be issued in a case like the pres-
ent. It is made the duty of the constable to
leave a copy of the attachment at the dwelling-
house, or other last place of abode of the de-
fendant, and the provision is entirely evaded
in this case ; for it is absurd to consider the
store of the plaintiff, where the defendant was
for a few minutes, his dwelling-house, or last
place of abode. The judgment must, there-
fore, be reversed.
Judgment reversed.
Cited in— 10 Wend., 300 ; 55 How. Pr.. 313.
SELLICK AND SELLICK v. ADDAMS.
Arbitration — Award — May Relate to Real Prop-
erty— Boundary Settled by — Will Sustain
Action of Ejectment — h Justification in Tres-
pass— Sworn Copies Award — Waiver.
Under a general submission of all controversies
and demands, the arbitrators may award as to real
property : and where an award settles the boundary
of land, it is sufficient to enable the party to whom
the land has been awarded to bring an action of
ejectment, and is a justification in an action of tres-
pass brought by the other party.
Where sworn copies of the award are delivered to
the parties by the arbitrators, and received without
objection, this will be deemed a waiver of their
right to receive the original award.
Citations— 3 Cai., 327 ; 1 Ld. Raym., 114 : 9 Johns..
43.
rpHIS was an action of trespass, for cutting
J- timber on certain land in the town of
Phillipstown, in the County of Putnam. The
cause was tried at the Putnam Circuit, in
September, 1817.
The plaintiffs were two of the heirs at law
of their father, Gould John Sellick, who died
about three years before the *trial, [*198
leaving eight other children, from two of
whom the plaintiffs had deeds for their undi-
vided part of their father's estate. The plaint-
iffs proved that they were in possession of the
premises, and that the defendant had cut tim-
ber upon them. The defendant gave in evi-
dence a bond executed by Gould John Sellick,
the father of the plaintiffs, bearing date the
14th of June, 1810, conditioned to perform the
award of Samuel Owens, Abraham Smith and
JOHNS. REP., 15.
1818
HABBROUCK v. TAPPEN.
198
Robert Johnson, arbitrators appointed by and
on the behalf of the said Gould John sVllirk
and John Addams, the defendant, "to arbi-
trate, award, order, judge and determine of
and concerning all, and all manner of action
and actions, cause and causes of action, and
actions, suits, bills, bonds, specialties, cov-
enants, contracts, promises, accounts, reckon-
ings, sums of money, judgments, executions,
extents, quarrels, controversies, trespasses,
damages and demands whatsoever, at any j
time hereafter had, made, moved, brought, ;
commenced, sued, prosecuted, done, suffered, '
committed or depending, by or between the
said parties, so as the award of the said arbi- :
trators, or any two of them, be made mid set
down in writing, under their, or any two of
their hands and seals, ready to be delivered to
the said parlies in difference, on or before the
18th of July next ensuing." Under this sub-
mission the arbitrators fixed the boundary be-
tween the land of G. J. Sellick and the de-
fendant, by which the premises where the
trespass was alleged to have been committed
came within the boundary line of, and were
awarded to the defendant.
Samuel Owens, one of the arbitrators, testi- j
fied that but one award was made and signed
by them, and that they agreed among them- j
selves not to deliver it to either party, but that
the witness should keep it and deliver sworn
copies ; which, accordingly, were made and
delivered to the parties. The witness, al-
though he did not recollect, presumed that
they were delivered before the expiration of [
thrtime limited by the bond, and did not rec-
ollect hear ing any disapprobation expressed by
Sellick, on account of not receiving an original
award, nor any request to have one. It ap-
peared, from the respective title deeds of the
parties, that there was some confusion in their
1 JH>*j boundary lines, but it *fully appeared
that the plaintiffs had the legal title to the
locus in quo.
A verdict was taken for the plaintiffs, sub-
ject to the opinion of the court, and the case
was submitted to the court without argument.
Per Curiam. This is an action of trespass
qtiare claujtum fregit ; and the plaintiff's right
to recover is fully established, unless the al-
leged trespass was justified by the award
which was set up on the part of the defendant.
By the award, the locu* in quo is considered as
belonging to the defendant. Two objections
have been made to this award : 1st. That it is
not warranted by the submission. 2d. That
it never was delivered to the parties.
The submission does not specify any par-
ticular matters submitted, nor does it mention
any existing differences relative to lands ; but
is a general submission of all actions, and
causes of actions, and of all quarrels, contro-
versies, trespasses, damages and demands
whatsoever. In the case of Munro v. Altiire,
2 Caines, 837, it is said by this court that
questions concerning real property may be
submitted without being specially named ;
that a submission of ail demands includes
questions concerning real as well as personal
property ; that the law does not require a
specific submission as to one kind of property
more than as to another ; and the case of
JOHNS. REP., 15.
Maria v. Harriot, 1 Lord Raym., 114. is re-
ferred to and relied on as supporting this
doctrine.
2. A delivery of the award must be deemed
to have been dispensed with. It was made
without the time limited by the submission,
and was retained by one. of the arbitrators,
and sworn copies were delivered to the par-
ties respectively. This would not have been
sufficient had an original been claimed ; but
the copy, accord ing to the best recollection and
belief of the witness, was delivered to each
party before the expiration of the time limited
in the submission. An acceptance of a sworn
copy, without objection, must be deemed a
waiver of any claim to have the original.
This award would, undoubtedly, have been
sufficient to enable the defendant to have re-
covered in an action of ejectment, *ac- [*J2OO
cording to the doctrine of this court. (Jack-
son, exdem. Stanton, v. De Long, 9 Johns., 43.)'
It must, therefore, be considered as giving to
the defendant a right of entry, and a license to
enter, and is, of course, sufficient to justify
the entry and cutting of the timber. The
pleadings are not before us ; and we presume
that they are sufficient to let in this defense, if
at all admissible. The defendant is, according-
ly, entitled to judgment.
Judgment for the defendant.
Award relating to title to land—Estoppel. Cited
in-2Cow.,650; 5 Cow., 387: 5 Wend.. 271 : 12 Wend.,
583; 14 N. Y., 38: 32 N. Y., 667 ; 10 Barb., 346: 15
Barb., 649.
Sown copies received without (injection, waiver of
original. Cited in— 1 Hill, 322 ; 65 N. Y., 171 ; 2 Abb.
App. Dec., 214 ; 20 Barb., 485.
HASBROUCK t>. TAPPEN.
Real Property — Agreement to Convey land at
(Certain Time and Free from Incumbrance —
Breach of Covenant a* to Incumbrance —
Waiver as to Time does Not Prevent Recovery
of Amount fixed a* Damages by the Agree-
ment.
In an agreement for the sale and conveyance of
land, the vendor covenanted to convey the land,
which was to be surveyed, free of inoumbranees.
by the 1st of January. The land was not surveyed
in time, and the vendee declared that he would
take no advantage on account of the vendor's not
oonveyinK on the precise day mentioned in the
agreement. The land was, some months after-
wards, surveyed, but the vendee refused to accept
a conveyance, because it was incumbered. which
was the fact. It was held that the vendee, by en-
larging the time, did not waive his right to recover
a sum which was fixed and liquidated by the agree-
ment, as the amount of damages to be paid by the
1.— In Doe. d. Morris et at., v. Roeaer, 3 East. 15,
the court say that an award cannot have the effect
of conveying1 the land, although they held that it
concluded the defendant from disputing the lessor's
title. In Calhoun's Lessee v. Dunning, 4 Kail.. 122.
the court say : "An award cannot give a right to
land: but a report of referees will settle a dispute
ali. nit land, either in an ejectment, or in an action
of trespass." See. also, Jackson. n. Nell is. v- Dysling.
2 Caines. 198. But an award making partition be-
tween tenants in common, without directing con-
veyances to be executed, was held void. Johnson
v. Wilson. Willes. 248. And where a stack of hay
was awarded to be delivered to the plaintiff, it was
held that no property was transferred by the award,
and therefore, he could not maintain trover for it,
but that his remedy was on the award. Hunter v.
Kice, 15 East, 100.
1001
200
SUPREME COURT, STATE OF NEW YORK.
1818
party failing in performance, even admitting that
his consent to extend the time amounted to an
agreement; for such subsequent agreement, by
parol, was void by the Statute of Frauds, and could
not alter, revoke or modify the previous valid con-
tract.
Citation-5 East, 198.
THIS was an action of covenant. The
declaration stated an agreement made be-
tween the plaintiff and defendant, on the 25th
of November, 1815, by which the defendant
agreed, on the 1st of January next there-
after, by a good and sufficient warranty deed,
free of all incumbrances, to sell and convey to
the plaintiff, his heirs and assigns, a certain
20 1*] *lot of land in the town of Kingston,
which was to be surveyed ; and the plaintiff
agreed to pay to the defendant, on the delivery
of the deed, $1,250, by his bond, payable
without interest, on the 1st of May next, after
the date of the agreement; and in case of
failure of the parties to the agreement, they
thereby bound themselves each unto the other,
in the "sum of $500, which they consented to
fix and liquidate, as the amount of damages to
be paid by the failing party, for his non-per-
formance, to the other. The plaintiff averred
that he had always been ready to pay the de-
fendant in the manner mentioned in the agree-
ment, and assigned for breach that the defend-
ant did not, on the 1st of January, or at any
time since, by a good and sufficient warranty
deed, free of all incumbrances, sell and con-
vey, &c. The defendant pleaded non eat fac-
tum, with notice of special matter to be given
in evidence. The cause was tried before Mr.
Oh. J. Thompson, at the Ulster Circuit, in 1817.
The plaintiff, at the trial, having proved the
agreement, the defendant produced as a wit-
ness a surveyor, who testified that he was em-
ployed, in December, 1815, by the parties, to
survey the land ; that on account of bad
weather he did not make the survey at the ap-
pointed day, and that in the same month he
had a conversation with the plaintiff, in
which the witness told him that he had been
informed by the defendant that the survey
must be done by the 1st of January ; to which
the plaintiff replied that it was immaterial as
to the day, and that if the defendant per-
formed his contract, he would take no advan-
tage, on account of his not doing it on the
precise day mentioned in the agreement. The
land was not surveyed until May, 1816, when
the survey was made in the presence of the
parties, without any objection on the part of
the plaintiff. The defendant, afterwards,
offered to execute a deed ; but the plaintiff de-
clined accepting it, on the ground that the
premises were incumbered, and at the trial
produced the record of a mortgage, which had
become forfeited, executed by the plaintiff,
including these premises with other land, and
conditioned for the payment of $2,672.16 ; and
2O2*] another mortgage on *the premises,
also forfeited, conditioned for the payment of
$226.
The defendant's counsel insisted that the
plaintiff ought not to recover the stipulated
damages mentioned in the agreement, because
the plaintiff's waiver of the time of perform-
ing the agreement, until after the 1st of Janu-
ary, amounted, in law, to a waiver of those
1062
damages ; but the Chief Justice charged the
jury that the plaintiff was entitled to recover
the damages stipulated for the non-perform-
ance of the agreement ; and the jury, accord-
ingly, found a verdict for the plaintiff for
$500 damages. The defendant tendered a
bill of exceptions to the opinion of the Chief
Justice.
Mr. Champlin, for the defendant, contended
that the plaintiff, by agreeing to extend the
time of performance, had waived the penalty,
and could recover only the actual damages
which he had sustained by the non-perform-
ance. He cited Astley v. \Veldon, 2 Bos. <fe P. ,
346 ; Brown v. Goodman, cited in Littler v.
Holland^ T. R., 592, n.; Thresh v. Rake, 1
Esp., 53; Phillips v. Pose, 8 Johns., 392;
Freeman v. Adams, 9 Johns., 115.
Mr. C. Ruggles, contra, insisted that the $500
were to be considered as stipulated damages.
(Dennis v. Cummins, 3 Johns. Cas., 297, and
note.} In Keating v. Pi-ice, 1 Johns. Cas., 22,
the court admitted evidence of a parol agree-
ment to enlarge the time of performing a writ-
ten contract. (Fleming v. Gilbert, 3 Johns. ,
528.) But in these cases, the contract was
of that nature that, if it had been origi-
nally by parol, it would have been valid. Here
the parol agreement must be void by the Stat-
ute of Frauds, and so could be no modification
of the original contract.
THOMPSON, Ch. J., delivered the opinion of
the court :
This case comes before the court on a bill
of exceptions taken at the trial. It was^n
action of covenant, to recover $500, as stipu-
lated damages agreed on between the parties,
to secure the performance of certain covenants
contained in an agreement of the 25th of
November, 1815. There was no question upon
the trial but that it *was a case of stipu- [*2O3
lated damages. The agreement, with respect
to that, is too explicit to admit of any doubt.
The parties bound themselves to each other in
the sum of $500, which, in the language of the
covenant, they consented to fix and liquidate
as the amount of damages to be paid by the
failing party, for his non-performance, to the
other. The evidence, as appearing on the bill
of exceptions, shows that the plaintiff was al-
ways ready, and did everything on his part
required by the agreement ; and that the de-
fendant did not and could not perform, on his
part, by reason of certain incumbrances on the
land which he had covenanted to convey to
the plaintiff.
The only question upon the trial was,
whether the plaintiff had not waived the stipu-
lated damages by the indulgence he had given
to the defendant. By the covenant, it appears
that the deed was to be given by the 1st
of January next after the date of the agree-
ment. The evidence shows that the defend-
ant, finding some difficulty in having the
necessary survey made in season, his surveyor
had a conversation with the plaintiff on the
subject, when the plaintiff said that it was im-
material as to the day ; that if the defendant
performed his contract, he would take no ad-
vantage on account of his not doing it on the
precise day mentioned in the agreement. No
advantage was taken ; for the plaintiff was
JOHNS. REP., 14.
1818
PETERSON v. CLARK.
203
always willing to accept the deed, and perform,
on his part. But the defendant was unable to
•comply with his covenant, and convey the
land, free from incumbrances. He comes now,
with a very ill grace, to set up this indulgence
given him to discharge himself from his cov-
enant. It is a sound principle, that he who
prevents a thing being done, shall not avail
himself of the non-performance he has occa-
sioned ; so that if, by the covenant, any act
wan to have been done by the plaintiff, before
the conveyance was to be made, the defend-
ant's cond'uct would have dispensed with the
performance. But no such act was required.
We have no over of the covenant, but, accord-
ing to the declaration, the covenants were in-
dependent ; or, at all events, nothing is re-
quired to be done by the plaintiff until the
delivery of the deed. He has averred his
readiness to perform on his part, and this is
2O4*J fully shown by *the proof. Even ad-
mitting that an agreement to extend the time
of performance would be a waiver of the stipu-
lated damages, there was not, in fact, any such
agreement. Nothing ever passed between the
parties on the subject. All that the plaintiff
•ever said, as to the extension of the term, was,
that if the defendant would perform his con-
tract, he would take no advantage of its not
being done on the precise day. This could not
be called an agreement to extend the time : no
•day was fixed to which the performance was
postponed ; and it would be a violent and un-
natural construction of the plaintiff's conduct,
to Ansider it as intended to waive his cove-
nant, and enter into a new agreement, especially
as such purol agreement would be void under
the Statute of Frauds. If this is to be consid-
ered a new agreement, which in any manner
affects the covenant, the plaintiff's whole
remedy is gone. He can no more sustain an
action for his real damages to be proved than
he can for the stipulated damages ; and this
was not pretended on the trial. An agreement,
absolutely void, can never be considered as al-
tering, revoking or modifying a valid contract.
In all the cases referred to, where the term has
been extended, the subject matter was such as
might be embraced by a parol agreement, and
the parties have been driven to the new con-
tract for redress ; but when the new contract
is void in law, and the party without remedy
if turned over to it, it would be extremely un-
just. Nor was it contended, on (be trial, that
the plaintiff's remedy was on the new agree-
ment. That forms no part of the objection to
the recovery, as stated in the bill of exceptions. •
It is placed entirely on the ground that an ex-
tension of the time is a waiver of the stipulated
damages only. But the mere extension of the
time of performance is not a waiver of any-
thing. This principle is settled by the case of
EMM v. ThomjM'in. 5 East, 193, where it was
held that the time for making the award, be-
ing enlarged by agreement, did not dispense
with the stipulation to make the submission a
rule of the court. The court said the agree-
ment to enlarge the time must lie understood
as by reference virtually incorporating in it-
.self all the antecedent agreement between the
i2Oft*J *parties, relative to that subject, as if
the same had been formally set forth and re-
peated therein. In every point of view, there-
JOH.HS. RBP., 15.
fore, in which this case can be viewed, the
plaintiff is clearly entitled to judgment.
Judgment for the plaintiff.
Cited In— 18 Johns.. 285 ; 4 Cow.. 566 : 2 Wend.. 406;
13 Wend.. 74 : « PaUe. 104 ; 21 N. V.. 258 ; 34 N. Y..
3IW; «7 N. Y.,481; 7* N. Y.. 14»: 2 Keyes,3»: Abb.
App. Dec., 124 ; 12 Barb.. 370; 17 Barb.,28H ; 18 Barb.,
:tc» : 20 Barb., 64 : 48 Super., 2SB, 262 : 3 Daly. 471 ; 2*
How. (U. 8.). 42 ; « Wall., 272 ; 42 Mo.. 6CB. '
PETERSON r. CLARK.
Real Property — Conteynnee of Absolutely tn'th
Separate Instrument of Defeasance — Amount*
to Mortgage — Watte and Trover against Mort-
gagor, do not Lie.
Whore land is conveyed absolutely, and the
grantee, by a separate instrument, or defeasance,
covenants to re-convey to the grantor on hi* pay-
ing a certain sum of money ,t lie transaction amounts
only to a mortgage.
A mortgagee cannot maintain an action of waste
tiguinst the mortgagor, at least until after a for-
feiture of the mortgage.
And he has no property in trees cut down by the
mortgagor, so as to maintain trover against him.
A person having an expectant interest in land,
less t Inn i the inheritance, cannot maintain an action
for waste.
Citation— 2 Bl. Com., 226.
IN ERROR, to the Court of Common Pleas
of the County of Madison.
The defendant in error, who was the plaint-
iff in the court below, brought an action on
the case, in the nature of an action of waste,
against the plaintiff in error, the defendant in
the court below. The declaration stated that
the plaintiff below was, on the 1st of October,
1816, seised in his demesne, as of fee. in certain
lands and tenements, whereof the defendant
was in the possession and occupation, and that
divers timber trees, &c., were growing on the
said lands and tenements, and parcel of the
freehold and inheritance thereof; and that the
defendant cut down and destroyed divers tim-
ber trees, &c.. and converted them to his own
use. To this was added a count in trover for
the conversion of one hundred pine trees, one
hundred oak trees, &c., of the plaintiff. The
defendant pleaded the general issue, and three
special pleas, in which he alleged himself lobe
seised in fee of the premises, and denied the
seisin of the plaintiff. The plaintiff replied,
taking issue on the special pleas. The cause
was tried at the June Term, 1817, of the court
below.
At the trial, the plaintiff gave in evidence a
Rtent issued the 30th of November, 1811, to
inc Van Camp, for lot No. 81, in the Canas-
tota tract, in the County of Madison, which is
the premises in question, and a deed with
warranty, dated the 16th of August, 1815, for
the same lot, from Van Camp to the plaintiff.
A defeasance bearine even date with the deed
*between the plaintiff of one part, and P2OO
Van Camp of the other part, was then given in
evidence. This defeasance recited the deed,
and that Van Camp was indebted to the plaint-
iff in the sum of $433.28, to be paid, with law-
ful interest, by the 16th of August, 1817. and
the plaintiff covenanted, on payment of the
said sum of money, to redeliver the patent and
reconvey the land to Van Curap ; and that, on
1063
206
SUPREME COURT, STATE OF NEW YORK.
1818
such payment, the deed from Van Camp to
the plaintiff should become void, and his
estate in the land should cease. It was further
covenanted that Van Camp should continue in
possession of the premises free of rent for the
space of two years from the date of the in-
strument, and that he should not commit
waste on the premises, except the cutting of
five pine trees, and the necessary wood for his
fires and fences, and whatever buildings he
should see fit to erect on the premises, &c.
The instrument was executed by both the plaint-
iff and Van Camp. Van Camp, afterwards, by
assignment bearing date the 22d of April, 1816,
in consideration of $1,000, assigned the de-
feasance to the defendant below, and his heirs
and assigns. The plaintiff then proved that
the defendant was in possession of the lot un-
der the defeasance and assignment, and that
he had cut timber to the value of $100. The
defendant's counsel objected to the plaintiff's
right to recover in this form of action,1 and
also insisted that the action was prematurely
brought ; but the court overruled the objec-
tions, and charged the jury in favor of the
plaintiff, who, accordingly, found a verdict
for the plaintiff for $100.
The defendant below tendered a bill of ex-
ceptions to the opinion of the court, which
was removed into this court by writ of error,
and was submitted without argument.
Per Curiam. There can be no doubt but
that the deed from Van Camp to Clark, and
defeasance given back, amounted only to a
mortgage,* and the simple question then is,
2O7*] *whether a mortgagee can maintain an
action of waste against the mortgagor, before
the forfeiture of the mortgage ; for^the waste
alleged to have been committed, in this case,
was before the expiration of the time limited
for the payment of the money secured by the
mortgage/ Indeed, the present suit was com-
menced before that time. Waste is an injury
done to the inheritance, and the action of
waste is given to him who has the inheritance
in expectancy, in remainder, or reversion ;
but it is expressly laid down by Blackstone (3
Bl. Com., 225) that he who hath the remainder
for life only, is not entitled to sue for waste,
since his interest may never, perhaps, come
into possession, and then he has suffered no
injury. So, likewise, with respect to the
mortgagee, especially when the mortgage is
not forfeited, his interest in the land is con-
tingent, and may be defeated by payment of
the money secured by the mortgage ; and it
must follow, as matter of course, that he has
not such interest in the timber as to sustain an
action of trover. The judgment of the court
below must be reversed.3
Judgment reversed.
Respective interests of mortgagor and mortgagee in
lands. Cited in- 7 Cow.. 78 ; 2 Leg. Obs., 329 : 1 Kas.,
284 : 127 Mass., 492.
1.— Notwithstanding a lease may contain a cove-
nant against waste, the lessor has still an election
to bring an action on the case for waste committed
during the term. Kenlyside v. Thornton, W. BL,
111 ; 2 Saund., 252 c.
2.— S. P.. Dey v. Dunham, 2 Johns. Ch., 189.
3. — "An injunction lies against a mortgagor in
possession to stay waste. The court will not suffer
him to prejudice the security." Brady v. Waldron,
2 Johns. Ch., 148.
1064
When instrument treated as mortgage rather than
deed. Cited in— 2 Cow., 332 ; 1 Wend., 437 : 13 Wend.,
488; 65 N. Y.. 51; 12 Hun, 408; 16 Barb., 450; 27
Barb., 500; 47 Barb., 228 : 5 Daly. 42.
Waste, action for. Distinguished— 4 N. Y.. 112.
Overruled— 3 Rob., 200.
Cited in— 3 Barb.. 348.
ROTAN v. FLETCHER.
Trover — Defendant may Show Property in-
Third Person — Fraud.
In an action of trover, the defendant may show
that the property of the goods was in a third per-
son; or that the sale under which the plaintiff
claims was made without the authority of the
vendor : or that it was made in fraud of the credit-
ors of the vendor.
IN ERROR, on certiorari to a justice's court.
This was an action of trover brought by
the defendant in error against the plaintiff in
error, for taking a cow. The defendant in er-
ror, who was plaintiff in the court below,
proved that the cow was delivered to him, as
his property, by Mrs. Hemmway, the wife of
Thomas Hemmway, to whom the cow be-
longed, and who had absconded, and that the
*plaintiff said that for the sake of se- [*2O8
curing an old debt, he would give Mrs.
Hemmway $30 for the cow ; and that the cow
was taken away by the plaintiff, and put into
the possession of one Stone, from whom she
was taken away by the defendant below and
one Perkins, on an attachment against Hemm-
way. The defendant offered to prove that the
cow was not the property of the plaintifff but
of Hemmway ; that the sale by his wife to the
plaintiff was to cover the property from his
creditors, and that the plaintiff was to return
the cow to her. The justice refused to admit
this testimony, and a verdict and judgment
were rendered, for the plaintiff below.
Per Curiam. It appeared from the plaintiff's
own showing that the cow in question was
taken by virtue of an attachment against
Hemmway, and it is fairly to be inferred that
the defendant in the court below was aiding
and assisting the constable in the execution of
the attachment ; but independent of this,
the evidence on the part of the defendant
should have been admitted : the action was
trover, and it was competent for the defend-
ant to prove property in a third person. The
pretended sale from Mrs. Hemmway did not
transfer the property to the plaintiff below.
She had no authority to sell the cow ; and be-
sides, it was offered to be proved that even
this sale was fraudulent. The judgment must,
accordingly, be reversed.
Judgment reversed.
Cited in— 11 Wend., 57, n.\ 12 Wend., 33; 16 Wend..
359; 17 W18..551.
CARPENTER AND ROSE, Overseers of the
Poor of STEPHENTOWN,
v.
WHITMAN ET AL.
Pleading and Practice — General Issue — Custody
of Bastard Child — Order of Maintenance —
Cannot be Vacated, by two oilier Justices.
JOHKS. REE., 15
1H18
PIKE v. EVANS.
208
The defendant, by pleading the general issue, ad-
mits the- character In which the plaintiff sues.
The mother of a Iwurtard child, three or four years
old. is entitled to its custody, and the putative father
and his surety, on a l>ond given for the maintenance
of the child, cannot exonerate themselves from
liability by demanding the child.
An order of maintenance, legally made, cannot,
afterwards, be vacated by two other justices.
Citation— 2 Johns.. 375.
IN ERROR, on certiorari to a justice's court.
The plaintiff* in error brought an action
2OJJ*] on the case, in *the court below,
against the defendants in error, for the mainte-
nance of the bastard child of one A. Q., of
which the defendant, Whitman, was the pu-
tative father. On the trial, the plaintiffs pro-
duced in evidence a bond given by the de-
fendants, conditioned to indemnify the town
of Stephentown against the maintenance of the
child from May, 1815, to April. 1818, and
proved that the mother had brought a suit,
and recovered a judgment against them for
$2o, for its maintenance, which judgment they
had paid. The counsel for the defendants ad-
mitted that the plaintiffs had proved enough
to recover, but moved for a nonsuit, on the j
ground that they had not shown that they
were overseers. The motion was denied. The
defendants then proved, by a witness who
was one of the overseers at the time the bond
was given, that it was agreed that Whitman
should pay fifty cents per week to A. G. ; that
the justices made an order to that effect, and
that Whitman complied with it, until May,
1816, and then refused to pay, and demanded
the child; and that the child was three or four
years old. It wa-s also proved that, about four
weeks before the trial, the order of mainte-
nance had been vacated for the purpose of
preventing A. G. from suing the town any
more. The jury found a verdict for the de-
fendants.
Per Guriam. The proof introduced by the
plaintiffs does not seem warranted by the form
of action and pleadings in the cause, but no ob-
jection was made ; and besides, the defendants
admitted that the plaintiffs had proved enough
to recover. The judgment, therefore, must be
reversed, unless the defendants, on their pnrt,
showed enough to destroy this right. The
objection that the plaintiffs had not proved
that they were overseers, was properly over-
ruled. They sue in that capacity, and are de-
scribed as such in the proceedings ; and this
was admitted by the plea of the general issue.
The defendants', by the demand of the child,
did not exonerate themselves from its mainte-
nance. It was but three or four years old, and
the mother was entitled to the custody. (2
2 1O*] Johns., 375.) The two justices had *no
authority to annul the order for maintenance,
which had been previously, and, as we must
presume, legally made ; but admitting that
thev had such "authority, the expenses for
which this action was brought had accrued
long before this was done. The judgment
must, accordingly, be reversed.
Judgment reverted.
Cited ln-15 Barb.. 248.
JOHNS. HEP., 15.
PIKE 9. EVANS.
1. Pleading and Practice — Variance between
Declaration and Proof— Waiter of Objection.
2. New Trial — Cumulative Evidence not
Ground for — Weight of Evidence.
\ variance between the declaration and proof
must be objected to at the trial ; and if not done
then the partjtfcannot, afterwards, avail himself of
it.
A new trial will not be granted for the purpose
of letting in cumulative evidence, as to matter
which was principally controverted on the former
trial.
Citations— 2 Cai.. 129 : 8 Johns.. 86.
was an action of asuumpnt. The
count in the declaration on which the
plaintiff claimed to recover, stated that the
defendant was a tailor in the village of Utica,
and on the 28th of October, 1814, in consider-
ation that the plaintiff, at his request, had de-
livered him a large quantity of broadcloth
and kerseymere, to be made up into a coat,
pantaloons and vest, for a large reward, he,
the defendant, undertook to make and deliver
them safe to the plaintiff, at Sackett's Harbor,
by the next Tuesday following, to wit : on the
1st of November. 1814 : yet that the defendant,
not regarding, &c. , would not make and de-
liver them to the plaintiff at Sackett's Harbor,
but, on the contrary, so carelessly and negli-
gently behaved and conducted himself with
respect to the said clothes, that, by his careless-
ness, negligence and improper conduct, they
were wholly lost to the plaintiff. The cause
was tried before Mr. Ju*tice Platt, at the Che-
nango Circuit, in July, 1818.
The plaintiff was aid to a general in the
militia, who had been called out for the de-
fense of Sackett's Harbor, with whom he was
proceeding to that place, and his way thither,
on the 28th of October. 1814, called on the de-
fendant, and left with him some cloth to be
made into a military suit, and paid him for
the making, the defendant promising to send
the clothes by the next week's stage to
Sackett's Harbor, so that they should be re-
ceived by the plaintiff on *Tuesday. [*2 1 1
The clothes were made up by the defendant.
and sent on by the stage, but never reached
the plaintiff. A witness on the part of the
plaintiff testified that he had asked the defend-
ant if he had .sent the clothes by the time he
agreed ; to which he answered "no," but that
he sent them the week following. The de-
fendant proved, by one of his workmen, that
the clothes in question were made in a great
hurry at the defendant's shop ; that the wit-
ness assisted the defendant in making the coat,
which was not usual, unless the defendant
was particularly hurried ; that some of the
other workmen "made the other clothes ; that,
as soon as they were finished, they were put
into a package, on which was sewed a card,
adressed to "Major Pike, Sackett's Harbor,"
and were taken out of the shop by the defend-
ant, and a young man named Miner, to deliv-
er at the stage office, and that this took place
on Saturday evening. Miner testified that he
went with the defendant from the shop to the
NOTE.— New trial — Nciclii-diJfovered evidence—
Wriyht nf tvMtnee— Verdict ngaii\»t. For full dls-
cusslons, mt» Wilkiev. Roosevelt, 3 Johns. Cas., 206,
note : HaJsey v. Watson, 1 Cai., 24, note.
IMf
211
SUPREME COURT, STATE OP NEW YOKK.
1818
stage house with the bundle of clothes, which
he observed was done up, and directed on a
card, but that he did not read the inscription;
and that this was in the latter part of October,
on Saturday evening. Another witness testi-
fied that in the latter part of October or be-
§ inning of November the defendant left a
undle at the stage office, directed to Major
Pike, at Sackett's Harbor, and paid stage fare
for it ; but it did not appear to have been en-
tered on the books of the office, and whether
it was entered on the way bill could not be
ascertained, as the way bill was regularly, at
certain times, destroyed. The judge charged
the jury that if they believed that the defend-
ant did not deliver the package at the stage
office in Utica, in season, so that, by the ordi-
nary course of the stage, it might arrive
at Sackett's Harbor on Tuesday next after the
contract, then they ought to find for the
plaintiff ; because, if the defendant had broken
his contract as to time, the risk was thereby
varied without the consent of the plaintiff ;
but if the jury believed that the package had
been delivered by the time agreed on, then he
recommended a verdict for the plaintiff, sub-
ject to the opinion of the court ; whereupon
the jury found a verdict for the plaintiff for
$75, absolutely, on the ground that the pack-
age had not been sent in time.
2 1 2*] *The defendant now moved to set aside
the verdict, and for a new trial, on the ground
that the verdict was against evidence, and that
the contract proved varied from the one de-
clared upon ; and on the ground of newly-dis-
covered evidence, as to which affidavits were
produced of testimony, the object of which
was to substantiate the delivery of the clothes
at the stage office in due time.
Mr. Talcot, for the defendant. He cited
Phillips' Ev., 160 ; Penny v. Porter, 2 East, 2;
Crawford v. Morrel, 8 Johns., 253; Smith v.
Barker, 3 Day, 312 ; Vosburgh v. Thayer, 12
Johns., 461 ; Steinbach v. Col. In$. Co., 2
Caines, 129-133; Norrisv. Freeman, 3 Wils.,
38 ; Broadhead v. Marshall, 2 Bl., 955.
Mr. Parker, contra.
Per Curiam. The grounds on which 'an ap-
plication for a new trial in this case is made,
are :
1. That the verdict was against the weight
of evidence.
2. That the contract proved is materially
different from the one declared upon.
3. On the ground of newly-discovered evi-
dence.
With respect to the first point, the verdict is
warranted not only by the weight of evidence,
but a contrary verdict would have been
against the positive and direct testimony of
one witness. The contract between the par-
ties was that the clothes in question were to
be made, and sent on to Sackett's Harbor by
the stage that would arrive there, according to
the course of the stages, on Tuesday, the
1st of November, 1814 ; and the material ques-
tion, as it would seem from the judge's charge,
was whether they were left at the stage office
in Utica in season to be sent on, according to
contract. One witness swears positively that
the defendant, on being asked whether he sent
them on by the time agreed, answered "no ;
1066
but he sent them the week following." There
are, to be sure, some circumstances stated by
the defendant's witnesses which rendered it
somewhat questionable whether this witness
could be correct. Though it was on Friday,
the 28th of October, when the *plaintiff [*2 13
first spoke to the defendant about making the
clothes, yet the proof is pretty strong to show
the clothes were left at the stage office on Sat-
urday evening, which must have been the
next day or Saturday of the ensuing week.
This, however, was a question fairly submitted
to the jury, and we cannot think it fit and
proper to set aside the verdict on this ground.
2. With respect to the alleged variance, ad-
mitting it to be well founded, the objection
should have been made on the trial, and the
defendant comes too late now to call that in
question.
3. The newly-discovered evidence is ma-
terial to make out the delivery of the clothes
by the time agreed on, and the only objection
to granting a new trial on this ground is, that
it is merely cumulative testimony. This must
have been known to the defendant to be a ma-
terial question on the trial. The newly-dis-
covered evidence does not relate to any new
fact ; and it has been repeatedly decided by
this court, that a new trial ought not to be
granted, merely for the discovery of cumula-
tive facts and circumstances relating to the
same matter, which was principally contro-
verted on the former trial. (2 Caines, 129 ; 8
Johns., 86.) The motion for anew trial must,
accordingly, be denied.
Motion denied.
Cited in— 5 Wend., 121 ; 10 Wend., 295 ; 3 Hill, 238 ;
13 Barb., 104 ; 3 Wood. & M., 214.
PLATT o. JOHNSON AND ROOT.
Prior Occupation of Mitt Site — Partial Diversion
of Water — No Action Lies.
A person erecting a mill and dam upon a stream
of water, does not, by the mere prior occupation,
unaccompanied with such a length of time as that
a grant may be presumed, Brain an exclusive right,
and cannot maintain an action against a person
erecting a mill and dam above his, by which the
water is, in part, diverted, and he is, in some degree,
injured.
Citation— 3 Cai., 313.
THIS was an action on the case for obstruct-
ing the waters of the Cincinnatus Creek,
in their ancient course across the defendant's
land, to the plaintiff's grist and sawmills,
erected on his land lower down the stream,
whereby the waters of the creek were with-
held from the plaintiff's *mills, and [*214
the plaintiff deprived of the profits of his
mills. The cause was tried before Mr. Ch.
J. Thompson, at the Oneida Circuit, in June,
1817.
The plaintiff, being possessed of land lying
on both sides of the creek, in 1797, erected a
sawmill and (Jam on the creek ; in 1805 and
1806 he erected a gristmill near the other, the
dam answering for both mills ; and in 1810 he
built a new gristmill at a short distance below
NOTE. — Rights of riparian mill owners. See
Palmer v. Mulligan, 3 Cai., 307, note.
JOHNS. REP.. 15.
1818
PL ATT v. JOHNSON.
214
the first mills ; all which mills had been in use
from the time of their first erection. In 1809,
the proprietors of the farm, afterwards held
by the defendants, built a dam across the
creek, about sixty rods above the plaintiff's
dam. with a fulling mill, and in 1812 erected a
carding machine near to it. The defendants
purchased their mills, and entered into pos-
session about two years before the trial. By
means of their dam, the water of the creek
was detained while the pond of the defendants
was filling, and in very dry seasons, especially
in 1816. the plaintiff had, occasionally, to wait
for the water, until the defendants had raised
a pond sufficient to turn their mills ; and in
one instance, when the water was uncommon-
ly low. the gate of the defendants was kept
shut for nearly three days, during which time
the plaintiff's mill was stopped ; on other oc-
casions it was stopped fora less time, and the
plaintiff's customers had been obliged to carry
their grain to other mills. The water, after
having been used by the defendants, was
turned immediately into the natural channel,
about sixty rods above the plaintiff's mills ;
and the defendants had in no instance shut
down their gates, except for the purpose of
raising a pond for the use of their works,
which required a greater quantity of water
than the plaintiff's, at whose mills the fall of
water was so great, that the usual quantity in
the stream, at ordinary seasons, would carry
his mills at good speed, and in dry seasons,
the gristmill would grind from ten to twenty
bushels in a day. It appeared that the plaint-
iff had taken some measures to turn away the
waste water from the defendant's dam into a
channel for the use of his mills. It also ap-
peared in evidence, on the part of the defend-
ants, that there had been little or no complaint
on the part of the plaintiff until 1816, which
was a drier season than had ever been known
2 15*] before; that *the plaintiff might so
alter his dam as to save all the waste water;
that the plaintiff's mills were turned with
much more force and speed when the defend-
ants raised their gates, by reason of the in-
creased quantity of water, and that when his
gristmill had a full head of water, it would
grind sixty or seventy bushels a day.
A verdict was found for the plaintiff for
$25, which, by consent, was made subject to
the opinion of the court on a case containing
the facts above stated.
Mr. Sill, for the plaintiff. The parties ought
to use the water of this creek so as not to in-
jure each other. The maxim Sit utere tno, ut
aliennin nan Ird'in, applies. Strictly and tech-
nically, this may not be diverting a natural
water course ; but it is, substantially, that
case ; for the defendants, by erecting their
dam, have detained the water from the use of
the plaintiff for several days at a time. Sup-
pose a natural stream used by the public for
watering cattle ; would the defendants be al-
lowed, by erecting a dam, to detain the water
for his particular use for several months ? It
may be said, perhaps, that the defendants
could not make use of their mill, unless they
filled their mill poml, so as to gain a sufficient
head of water for the purposes of the mill.
But this is no answer to the plaintiff ; for it
was the folly of the defendants to erect a mill
JOHNS. REP., 15.
where there was no natural mill seat, or fall
of water. The plaintiff, having erected his
mills first, is entitled to a preference in the use
of the water. Prior occupancy gives a supe-
rior title. The general principle on this sub-
ject is well laid down by Blackstone. (2 Bl.
Com., 402. 403.) " If a stream." says he, "be
unoccupied, I may erect a mill thereon, and
detain the wafer ; yet not so as to injure my
neighbor's prior mill, or his meadow ; for he
hatli, by the first occupancy, acquired a prop-
erty in the current." The same principle is
adopted by Woodeaon. (2 Woodes. Lect.,
891.) The general doctrine of these element-
ary writers is supported by adjudged cases.
(Broien v. Best, 1 Wils., 174 ; 15 Vin. Abr..
399, Mill, C; Car v. Matthew*. 1 Vent.. 237;
Palinnv. HeMethtoait, Skinn.,65, 175; Duneomb
v. Randall. Hetley, 82, 34 : Bealy v. Shaw, 6
East. 208; 16 Vin. Abr., 25-29. Nuisance. G,
*secs, 7, 8. 9 ; Id., II, pi. 20.) The case [*2 16
of Bealy v. Shaw is in point. The Court of
King's Bench there held that the owner of land
through which a river runs could not, by en-
larging the channel through which the water
had been used to flow before any appropria-
tion of it by another, divert more of the water,
to the prejudice of another person lower down
on the river, who had, before the channel was
enlarged, appropriated to himself the surplus
water which did not escape by the former
channel. So, in Sackrider v. Beers, 10 Johns.,
24, this court decided, that though the owner
of land on a public river had a right to erect
a mill on his land, yet he must so construct his
dam, and so use the water, as not to injure his
neighbor below in the enjoyment of the same
water, according to its natural course.
Mr. Talcot, contra. A purchaser of land
over which a stream of water runs, acquires a
right to use the water in a reasonable manner,
for the ordinary purposes of mills or machin-
ery, there being no ancient right or prescrip-
tion in the case. And if, in the reasonable use
of the water, for such ordinary purposes, the
owner of the land below suffers any damage,
it is dfimnnm abuqut injuria. Baron Comyns
lays down the rule that an action on the case
does not lie for a reasonable use of one's right,
though it be to the annoyance of another. (1
Com. Dig., 305, Action on the case for a
nuisance, C.) And he puts the case of a man
building a house, who digs his cellar on his
own soil, by means of which a newly-built
house on the adjoining land falls down. (1
Sid., 167 ; 2 Roll.. 565. 1. 5.) The plaintiff is
bound to prove an exclusive right to the use of
the water, by such evidence as affords the pre-
sumption of'a grant. It is not enough to show
merely a prior occupancy. It is so laid down
in Bealy v. Shaw, 6 East. 208. and in Palmer
v. Mulligan, 8 Caines, 807. The plaintiff has
shown a possession for no more than eight or
ten years. In regard to the new gristmill, the
defendants are, in fact, the prior occupants.
There is no difference, in respect to the
rights of these parties, between an artificial
and a natural mill seat. The plaintiff, from
the nat u ml elevation of his ground, has a su-
perior advantage ; but there is no reason whv
the defendants *may not. by artificial [*21 ^
means, gain the use of the water, for the pur-
pose of machinery.
1067
217
SUPKEME COUKT, STATE OP NEW YORK.
1818
Again ; the damages are too small to afford
a ground for this action. There must be a
damnum et injuria. Where the act, of itself,
is injuria, though the damages be trifling, yet
an action lies ; but if the act is not, of itself,
injurious, the damages must be great and se-
rious to furnish a cause of action. The mere
fact that the plaintiff's mill pond is not so well
supplied with water as it was 'before the de-
fendants erected their dam, is not sufficient to
support this action. Thus Comyn mentions a
case : If a man use water in his own land out
of a water course running through his land to
the pond of B., whereby B.'s pond is not so
full, if he does not divert the watercourse, an
action does not lie. Now, in this case, it is
not pretended that the water course has been
diverted. In Bealyv. Shaw, not merely a por-
tion of the water, but the whole stream was
actually diverted. But the case of Palmer v.
Mulligan, 3 Caines, 307, is strong and conclu-
sive against the plaintiff.
Mr. Sill, in reply, insisted that there was no
such principle in the law that the prior occu-
pancy of a stream of water must be for so long
a period of time as to afford the presumption
of a grant ; nor did it make any difference
whether one mill was erected above or below
the other. It was absolutely necessary to make
an artificial mill seat. In Palmer v. Mulligan,
there was a motion for a new trial, and the
damages were very small ; and two of the
judges (Kent, Ch. J. , and Thompson, J.) dis-
sented. If a jury find damages, however
small may be the amount, if they are not mere-
ly nominal, the court are bound to give judg-
ment for the plaintiff.
THOMPSON, Ch. J., delivered the opinion of
the court :
The question involved in the decision of
this case may, perhaps, be considered as one
of the first impression. I cannot persuade
myself, however, that the claim set up by the
plaintiff can be sustained upon any principles
of law recognized in our courts. The princi-
ple sought to be established is, that a previous
occupancy of land upon a stream of Avater,
218*] *and an appropriation of the water to
the purposes of a mill, gives such a right to
the stream, in its whole extent above, as to
control the use of the water, so as to prevent
any subsequent occupant from using or de-
taining the water, to the least injury or preju-
dice of the first occupant. Unless the princi-
ple thus broadly stated can be supported, the
plaintiff must fail in the present action : for
there is no color for charging the defendants
with having diverted the natural course of the
stream, or unnecessarily wasting the water, or
wantonly detaining it longer than was reason-
able and necessary for their own machinery
and water works ; nor is there any pretense
that the plaintiff had been so long in the pre-
vious use and enjoyment of this stream of
water, as to afford the presumption of a grant
of the same beyond the bounds of his own
land. The plaintiff's right, therefore, if any
legal right exists, must grow out of the mere
fact of his having first erected his mill. To
give such an extension to the doctrine of oc-
cupancy, would be dangerous and pernicious
in its consequences. The elements being for
1068
general and public use, and the benefit of
them appropriated to individuals, by occu-
pancy only, this occupancy must be regulated
and guarded, with a view to the individual
rights of all who may have an interest in their
enjoyment ; and the maxim Sic utere tuo, ut
alienum non Icedas, must be taken and con-
strued with an eye to the natural rights of all.
Although some conflict may be produced in
the"'use and enjoyment of such rights, it can-
not be considered, in judgment of law, an in-
fringement of the right. If it becomes less
useful to one, in consequence of the enjoy-
ment by another, it is by accident, and be-
cause it is dependent on the exercise of the
equal rights of others. Many general and
public considerations might be resorted to, ta
enforce and establish this doctrine. But I
think this question falls within the principles,
fully recognized by this court in the case of
Palmer v. Mulligan, 3 Caines, 313. Though
there was a difference of opinion on the Bench,,
as to the result of the motion in that case, yet
this difference did not, in any measure, turn
on the question presented by this case. Spen-
cer, J., said the act of erecting a dam by the
defendant was a lawful act ; and though, in
its consequences, slightly injurious to the
plaintiffs, *they were remediless; it [*21O
was damnum absque injuria. The erection of
dams on all rivers is injurious, in some degree,
to those who have mills on the same streams
below, in withholding the water ; yet this had
never been supposed to afford a ground of
action. Livingston, J. , said each one had an
equal right to build his mill, and the enjoy-
ment of it ought not to be restrained, because
of some trifling inconvenience to the other ;
and he utterly rejected the doctrine that the
person erecting the first mill thereby acquired
any superior rights. Were the law, he ob-
serves, to regard little inconveniences of this
nature, he who could first build a dam or mill
on any public river would acquire an exclu-
sive right, at least for some distance ; for a
second dam could not be built, unless at a con-
siderable distance, without producing some
mischief or detriment to the owner of the first.
Here the principle on which the plaintiff rests
is directly met, and treated as leading to ex-
travagant consequences, altogether inadmissi-
ble.
Although I differed from the opinion of the
court in that case, it was upon the ground that
the plaintiff had acquired a superior right by
a prior enjoyment of the water, in a particular
manner, for forty years, which was sufficient
to raise the presumption of a grant ; and the
Chief Justice, who also dissented from the
majority of the court, rejected the doctrine set
up by the plaintiff in this case. Many cases,
said he, may be supposed, which would be
damnum absque injuria ; such as the insensi-
ble evaporation and decrease of the water by
dams, or the occasional increase or decrease of
the velocity of the current, and the quantum
of water below. Many such circumstances
may be inevitable from the establishment of
one dam above another upon the same stream.
I have been thus particular in noticing the
several opinions in this case, because, if the
principles which seem there to be taken for
granted by the whole court, are well founded,
JOHNS. REP.. 15.
1818
COLDEN v. ELDRED.
219
they are in direct hostility to the plaintiff's
right of action. There is no ground, in point
of fact, if that could make any difference In
the principle, for alleging that there was no
natural mill seat or fall, where the defendant's
works are erected. There is enough for every
purpose for which the defendants- have and
22O*] had a *right to use the water. The
court are, accordingly, of opinion that the de-
fendants are entitled to judgment. 0
Judgment for the defendant*.
Cited in-17 Johns., 99,320; 1 Wend.. 387; 5 Wend.,
483 ; 74 N. Y.. 347 ; 10 Barb., 581 ; 17 Barb.. 6SK : 32
Barb., 273; 7 W. Dig., 274: 17 Wto.,8; 29 Mich.. 422.
COLDEN t>. ELDRED.
Trespass — Kennedy by Distress and Sale of Beasts
Damage Peasant Under Statute, Does not
Take away Remedy by Trespass— Matter of
Defense. ,
The remedy by distress and sale of beast*, damage
feoKant, given by statute (sess. 38, ch. Si, sec. 19; 2
N. R. I.., 134), does not take away the common law
n-iin-ily by action of trespass.
Where beasts, tlamaue fctuant, have been dis-
trained, or even impounded, the distralner may re-
linquish the proceedings by distress, before satis-
faction for the damage which has been sustained,
and bring the action of trespass.
In an actjon for trespass by cattle, it is matter
of defense, and to IK- shown by the defendant, that
the fence which the plaintiff was bound to keep in
repair was defective.
1
N ERROR, on certiorari to a justice's court.
The defendant in error brought an action of
trespass in the court below against the plaint-
iff in error, for damage done to his grain by
the sheep of the latter. The plaintiff below
proved the trespass and damages, and the de-
fendant below offered proof to show that the
sheep had been distrained and impounded by
the plaintiff ; the evidence, being objected to,
was excluded by the justice. A verdict was
found for the plaintiff below.
Per Curiam. The only question in thisca.se
is, whether the defendant ought not to have
been permitted to prove that the sheep had
been distrained and impounded for the same
trespass. The remedy, by distress, given by
the Statute, is cumulative, and the plaintiff
may, if he pleases, pursue the common law
remedy by action of trespass. Had the plaint-
iff followed up his remedy by distress, accord-
ing to the provisions of the Statute, or had the
merits of his right to recover been tried, it
would have been a bar to the action of tres-
pass. But the defendant's offer did not go
far enough. The distress offered to have been
proved docs not appear to have been followed
up by the plaintiff ; there might have been
some irregularity which rendered it necessary
for him to abandon it ; and the mere distress,
or even impounding, if relinquished, would
be no satisfaction for the injury. This part
of the defense was, therefore, properly ex-
cluded. The evidence showed, very satisfac-
torily, that the sheep got over that part of the
fence which for several vears had been kept
up by the defendant a* hfs part of the division
JOHNS. RKP., 15.
•fence ; and this was enough, at least, [*221
prima facie. What the situation of the fence
was, or whether there were any rules or regu-
lations of the town on the subject, does not
appear. It, however, was matter of defense,
and to be shown, on the part of the defendant,
if anything existed which would excuse the
trespass. The judgment must, therefore, be
affirmed.
Judgment affirmed.
Cited ln-18 Wend., 230; 3 Hill, 41 ; 35 N. Y.. 309 ;
10 llurl... 271 : .V> Barb., 419 ; 38 How. Pr., 3V; 1 Brown.
U4 ; 33 Ind., 496.
HOYT t. OELSTON.
Practice — Interest on Judgment — When
Allowed.
Where a judgment of the Court of Errors, affirm-
ing a judgment of this court, is affirmed by the Su-
preme Court of the United States, on a writ of error
from that court, interest on the judgment is al-
lowed only to the time of rendering the last judg-
ment of affirmance.
THIS cause (see Vol. XIII., pp. 561-590),
having been carried by writ of error to the
Supreme Court of the United States, was there
affirmed, with damages and costs. The judg-
ment of affirmance was rendered on the 2?th
of February last, and the mandate of the Su-
preme Court of the United States to this court
was presented and filed the first day of the
term. The court above awarded the interest
at the rate of six per cent. ; and a question
now arose on the taxation of cost*, whether
the interest was to be computed to the first day
of this term or only to the 27th of February,
when the judgment of affirmance was given,
there being no direction in the mandate of the
Supreme Court of the United States, as to the
time to which the interest was to be com-
puted.
Messrs. Hoffman, T. A. Emmet and C. Qra-
ham for the plaintiff.
Mr. Baldwin, contra.
Per Curiam. This court cannot pronounce
any new judgment in this case. It can only
carry into effect the judgment of the Supreme
Court of the United States. In the computa-
tion of interest, therefore, the taxing officer
must not go beyond the time of the judgment
of affirmance, that being *the last act [*222
of the court above. The practice in this re-
spect, in our State courts, is regulated by stat-
ute, which cannot apply to this case.
Cited ln-20Wls.. 611.
RYCKMAN ET AL. t. HAIGHT.
Practice — Bill of Particulars — Need not Em-
brace Matters of Defense.
The plaintiff, in the bill of particulars of his de-
mand, to not obliged to state the credits or pay-
ments made by the defendant.
was an action of asmmpnt, for work
1 and labor and materials found, and goods
sold and delivered ; and the declaration also
contained the usual money counts.
10G9
223
SUPREME COURT, STATK OP NEW YORK.
1818
Mr. B. Haight, for the defendant, moved for
judgment as in case of nonpros., on the
ground that the plaintiffs had not furnished to
the defendant a bill of the particulars of their
demand, pursuant to the order of the Recorder
of New York, for that purpose. (Fleurot v.
Durand, 14 Johns., 329.)
Mr. Wilson, contra, read an affidavit stating
that the plaintiffs were ready to deliver to the
defendant a bill of the particulars of their de-
mand ; but to enable them to state the credits
with accuracy, they had applied to the defend-
ant for an account of the moneys he had paid
to them, which he had refused to give.
He stated, on the authority of the case of
Adlington v. Appleton, 2 Camp., 410, that un-
less the plaintiffs could also state the credits
so as to show the precise balance claimed by
the plaintiffs, it would not be a compliance with
the judge's order; yet the plaintiffs were ready
to give the particulars of the debit side of their
account, and of the credits so far as they were
known.
Per C'uriam. The practice of this court is
merely to compel the plaintiff to specify the
particulars of his demand. We consider the
bill of particulars as an amplification of the
counts in the declaration. The defendant must
know, as well as the plaintiff, what sums he
223[* has paid, and *if he is furnished with
the debit side of the account he can readily as-
certain the balance claimed.
The defendant must take his rule that the
plaintiffs furnish a bill of the particulars of their
demand, exclusive of credits for payments by
the defendants in ten days, or that a judgment
of non pros, be entered.
Rule accordingly.
Cited in— 9 Cow., 45 ; 5 Hun., 360; 4 Bos., 351.
VAN DEUSEN AND VAN DEUSEN
VAN SLYCK ET ux.
Practice — Torts — General Issue by Joint Defend-
ants — Discharge of any against whom there
is no Evidence to become Witnesses for Others.
In actions for torts against several defendants,
who join in pleading1 the general issue, if there is
no evidence against one of the defendants the court
ought to discharge him on the trial, that his co-
defendants may have the benefit of his testimony.
Citations— 2 Esp. Dig., 364 ; Phil. Ev., 61 : 6 Binn.,
316; 14 Johns., 132.
IN ERROR to the Court of Common Pleas of
the County of Montgomery.
This was an action of trespass for an assault
and battery brought by the defendant in error
against the plaintiffs in error, to which the
defendants pleaded the general issue jointly,
and the cause was tried at the June Term, 1817,
of the court below. At the trial, after the
plaintiffs below had gone through with their
evidence, the counsel for the defendants ap-
plied to the court for the discharge of John G.
Van Deusen, one of the defendants, on the
ground that there was no proof against him,
in order to give the other defendant the benefit
of his testimony. The counsel for the plaint-
1070
iffs objected to his discharge, that both de-
fendants had joined in pleading the general
issue ; and the court, for this reason, decided
that they could not discharge the defendant,
although they were of opinion that there was
no testimony against him on which the jury
could find him guilty. The defendants ex-
cept ed to the opinion of the court, and a
verdict having been found for the plaintiffs
below, the bill of exceptions was removed into
this*court by writ of error.
Mr. Conklin, for the plaintiffs in error. He
cited Bull. N. P., 285; Phillips' Ev., 61 ; Brown
et al. v. Howard, 14 Johns., 119 ; 1 Saund.
107, n. 2.
*Mr. Cady, contra. [*224
Per Curiam. This case comes before the
court on a writ, of error to the Common Pleas
of Montgomery County. It was an action of
assault and battery; and upon the trial no evi-
dence having been given against the defend-
ant, John G. Van Deusen, application was
made to the court for his discharge, that he
might be examined as a witness for the other
defendant. The court admitted that there was
no testimony against him upon which he could
be found guilty, but decided that they could
not discharge him because both defendants
had joined in one plea. In this they erred.
In actions for torts against several, although
they join in the plea of not guilty, one may be
found guilty and the other not gfiilty. The
rule has been long and well settled, in such
actions, that where there is no evidence against
one of the defendants he is entitled to his dis-
charge, and may be examined as a witness for
the other defendants. If this were not allowed
great injustice might be done by including
witnesses in the suit for the express purpose of
shutting out their testimony. (2 Esp. Dig.,
364; Phillips' Ev., 61 ; 6 Binn., 316; 14
Johns., 122.) The judgment must, accord-
ingly, be reversed.
Judgment reversed.
HOAR v. CLUTE, by BENSON, his Guardian.
Contracts — Part Performance— Contract Re-
scinded— 2. Draft or Order, Unaccepted, does
not Extinguish Precedent Debt.
Where a person engages to labor for another for
a year, at a certain price for the whole time, and
on leaving his service before the expiration of the
year, it not appearing that he went away without his
consent, the hirer gives him a draft, in considera-
tion of his past services, which was not paid or ac-
cepted by the drawee ; in an action on the draft by
the payee against the drawer, the latter cannot de-
feat the recovery by introducing the original con-
tract of service.
An order, not negotiable , for the payment of
money, and which has not been paid or accepted by
the drawee, is not a payment or extinguishment of
a precedent debt.
TN ERROR, on certiorari to a justice's court.
J. The defendant in error brought an action
in the court below, against the plaintiff in error,
for work and labor, and upon an order drawn
by the defendant below, in favor *of the [*225
NOTE.— Entire contracts— Full performance a con-
dition precedent to a recovery on. See M'Millan v.
Vanderlip, 12 Johns., 165, note.
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. BONEHAM.
225
Klaintiff below, upon Ann C. Hoar, dated
[arch 22d, 1817, for $15. The plaintiff be-
low proved the presentment of the order to
the drawer, who refused to pay it, and that the
payment was afterwards demanded of the de-
fendant, who refused, alleging that the plaint-
iff had run away or left his service. The de-
fendant produced a contract, entered into be-
tween the defendant and the plaintiff and bis
father, by which the plaintiff was to work for
the defendant for one year, at $120. It ap-
peared that the plaintiff'began to work some
time in January, and left the defendant on the
day of the dateof the order ; but whether with
the defendant's consent or not, did not appear;
and there was no evidence of any complaint at
the time.on the part of the defendant, on account
of his leaving him. The jury found a verdict
for the plaintiff below for the amount of the
order.
Per Curiam. The judgment must be af-
firmed. It was in proof that the plaintiff had
labored for the defendant between two and
three months, and the amount recovered was
not more than an adequate compensation, ac-
cording to the rate agreed on for the year.
The contract, it is true, was for a year, but
the circumstances disclosed by the evidence
afford a reasonable presumption that such
contract was rescinded, and that the plaintiff
quitted the defendant's service with his con-
Bent. The order for the $15 bears date the
very day on which he left the defendant, and
no complaint appears to have been made at
the time. There was, at all events, a consid-
eration for the order, and it must be consid-
ered as advanced upon the plaintiff's wages,
and not having been accepted; and payment
having been refused by the defendant, there
can be no good reason why he should not pay
it. It could not be considered a payment or
extinguishment of the plaintiff's demand ; it
was not negotiable, nor had it been paid by
the person on whom it was drawn, so that the
defendant could not, in any way, be exposed
to a second responsibility for the same de-
mand.
Judytnent affirmed.
Cited in— 4 N. V., 550.
U2O*1 MACKSON, ex dem. MINEK and
MISER, t. BONEHAM.
tifpetment— Patent— MwpeUing of Name does not
Avoul — Hearsay Eridenee of Death, Admit-
nble— Register of Marriages and Births.
In an action of ejectment brought by the heirs
of Mosee Minor, the plaintiffs claimed under a pat-
ent issued to Moses Minner. a soldier in the New
York line during the Revolutionary War: it was
held that the; patent was }>rlma facie evidence of the
service of the soldier mentioned in it; and as it did
not appear that then; was any man in the Army l>v
the name of Minner, the variance must be consid-
ered a mere misspelling of the name, which could
not affect the iiientity of the person, and did not
make It a distinct namo;and besides, the defend-
ant claimed under asoldierof the name of Moses Mi-
nor, who, then- was strong evidence to show, was the
same as the person under whom the lessors claimed.
Hearsay is admissible as evidence of the death of
a person.
JOHNS. HEP., 15.
It seems that a register of marriages and births,
kept in the record of a town, is evidence of pedi-
gree and beinhip.
THIS was an action of ejectment brought to
recover part of lot No. 86. in the former
township of Milton, now Geneva, in the
Countv of Cayuga. The cause was tried be-
fore -l/>. Justice Spencer, at the Cayuga Cir-
cuit, in June. 1817.
The plaintiff produced in evidence an ex-
emplication of letters patent, dated the 13th
of September, 1790, to Moses Minner, for lot
No.. 86. in the township of Milton, in Mont-
gomery County, excepting one hundred acres
out of the southeast corner of the lot. Esther
Miner was called as a witness on the part of
the plaintiff, who testified that she was the
sister of Moses Miner, and of the lessors of the
plaintiff, and that Moses Miner was, by trade,
a gunsmith, and lived at Stonington in Con-
necticut, and about the year 1774 went to sea.
The witness also proved a letter from Miner
to his mother, dated at New York, in Septem-
ber, 1775. in which he says that " he had got
to be a soldier." She heard, in 1776. that he
was with the New York troops, but never
heard of him again until fourteen years after
the war, when she was told that he had
been killed ; that the general opinion in the
family was that he was dead, and that he al-
ways spelt his name Minor and Miner, and not
Minner. The testimony as to the death of
Moses, and his being with the New York
troops, was objected to as hearsay, but wan
admitted by the judge. The plaintiff also
gave in evidence a sworn copy of the records,
of the town of Stonington, which contained
the date of the marriage of the parents of the
lessors, and the time of the birth of their chil-
dren. This memorandum, was objected to,
but was admitted by the judge.
The defendant gave in evidence a deed for
the premises dated August 29, 1791, from Eb-
enezer Miner, describing himself as " heir at
law to the estate of Moses Minor, deceased, late
a private in the First New York Regiment,
mariner," to William I. Vredenburg. in fee.
It appeared from the testimony of Esther
Miner, that she and the plaintiff's lessors were
the only surviving heirs of Moses Miner ; and
it *was admitted, that if the plaintiff [*1227
was entitled to recover, the defendant ought
to be compensated for his improvements. A
verdict was taken for the plaintiff, subject to
the opinion of the court.
Mr. Rifhard»>n for the plaintiff.
Mr. Font, contra. He cited Jackson, ex*dem.
Shultze, v. Goes, 13 Johns., 518-523.
THOMPSON, Ch. J., delivered the opinion of
the court :
The premises in question are a part of lot
No. 86, in the old township of Milton, and are
claimed by the lessors of the plaintiff under a
patent to Moses Miuner, bearing date the 1 3th
of September, 1790. The principal question
in the case is, as to the identity of the soldier.
The patent is priina fade evidence of I he ser-
vice, as a soldier, of the person mentioned in
patent ; and where there appears to have been
two persons of the same, or nearly the same
name. ii. the service, it is, sometimes, difficult
to identify the patentee. But in the case be-
1071
SUPREME COURT, STA.TE OF NEW YORK.
1818
fore us, the only difficulty appears to arise
from the name being spelled Minner, instead
of Miner. It is evident that the soldier under
whom the lessors claim wrote his name Miner,
and if it had been shown that there had been
In the Army any man by the name of Minner,
the patent would be deemed to have issued to
him ; but nothing of that kind appearing, it
must be considered a mere misspelling of the
name, which cannot affect the identity of the
person; nor is it such a difference in the spell-
ing as to make it a distinct name. Besides,
the defendant himself sets up a title derived
from a soldier by the name of Moses Minor.
The grantor in the deed under which he claims
describes himself as the heir at law of Moses
Miner, deceased, late a private in the First
New York Regiment, mariner. And the
evidence in the case is very strong to show
that this is the same person under whom the
lessors derive title. It appears by the testi-
mony of his sister, that he left Stonington, in
Connecticut, in the year 1774, and went to
sea. And she produced a letter from him to
his mother, dated at New York, in September,
228*] 1775, which mentions *that he had got
to be a soldier (as he expressed himself). Thus
it appears that the soldier under whom the
plaintiff claims went to sea in the year 1774,
and entered the service in the fall of 1775 ; and
in the defendant's deed he is described as a
mariner, which is a pretty strong circumstance
to show that both parties claim under the
same person.
The hearsay evidence offered and objected
to, of Moses Miner being with the New York
troops, and of his being killed in the Army,
was admissible for the purpose of showing his
death, and the place where he died, but would
not, of itself, afford any evidence of his hav-
ing served in the Army as a soldier entitled to
bounty land.
We do not perceive any objection to the ad-
mission of a sworn copy of the records of the
town of Stoniugton. as evidence of the family
of Moses Miner. But this was unnecessary
proof ; the fact was sufficiently established by
his sister, Esther Miner. From her testimony,
it appears that the lessor of the plaintiffs and
herself are the only surviving heirs of her
brother Moses. They are, accordingly, en-
titled to recover two thirds of the premises in
question. The defendant claims under a deed
from Ebenezer Minor, who calls himself the
heir at law of Moses Minor ; but there is no
evidence of that fact, nor anything showing
who Ebenezer Minor is.
It was admitted on the trial, that if the
plaintiff had a right to recover, the defendant
was entitled to compensation for his improve-
ments. The plaintiffs must, accordingly, have
judgment for two-thirds of the premises in
question, with stay of execution until the im-
provements have been paid for, pursuant to the
Act in such case made and provided.
Judgment for the plaintiffs.
Identity. Cited in— 9 Cow., 147 ; 1 Duer, 97 ; 28 Cal.,
218 221
Pedigree, how proved. Cited in— 5 Cow., 239, 320 ;
12 Barb., 357.
Evidence— Hearsay admissible as to death of party.
Cited in— 26 How. Pr., 244.
1072
*SMITH v. JONES. [*229
THE SAME v. THE SAME.
Entire Demand — Plaintiff Cannot Bring Several
Actions on — Delay — Evidence — Confessions.
Where the plaintiff has an entire demand, he can-
not divide it into distinct parts, and bring separate
actions for each : as, on an entire contract of sale
of goods, he cannot maintain an action for one part
of the goods sold, and another action for another
part.
The defendant's confession that he had purchased
the goods, but had paid for them, is not sufficient to
entitle the plaintiff to recover in an action for the
price.
Citations— 3 Johns., 427 ; 9 Johns., 141.
N ERROR, on certimari to a justice's court.
I
The defendant in error brought two actions
in the court below, against the plaintiff in
error, for goods sold and delivered, &c. The
defendant pleaded, and also produced an ac-
count as a set-off. The evidence on the trial
was decidedly in favor of a balance against
the plaintiff below, except as to three barrels
of potashes, which, as far as there was any
evidence of a sale, appeared all to have been
sold at one time ; yet the plaintiff in one action
claimed for one barrel only, and for the resi-
due in the other. The only evidence of the
sale was the confession of the defendant, made
five or six years before the trial, but who, at
the same time that he admitted the purchase,
alleged that he had paid for the ashes, and
agreed that if his son John did not swear that
they had been paid for, he would pay for
them. The plaintiff had spoken to the- de-
fendant's son John, who had since died, on
the subject, and he replied that he could swear
that all the ashes had been paid for. It was
proved that the plaintiff below had, on some
occasion, declared that if the defendant's son
John was dead, he could get pay for the three
barrels of ashes. Verdicts were found for the
plaintiff below, in both causes.
Per Curiam. The only matter in question,
in these causes, is the three barrels of potashes.
There is no pretense, from any part of the evi-
dence, that these ashes were sold at different
times, or in different parcels ; but the natural
and necessary conclusion to be drawn from
the evidence is, that it was an entire contract
for the whole quantity ; and yet the plaintiff
has set up and divided his entire demand into
separate suits, which, of itself, would be a
fatal objection to the judgments. But, inde-
pendent of this, there was no proof to sustain
the recovery. The same testimony that proved
the sale, proved also the payment. *(3 [*23O
Johns. , 427 ; 9 Johns. , 141.) Besides, the great
delay on the part of the plaintiff in bringing
these actions, casts a suspicion on the claim ;
and more particularly as he waited until the
witness was dead, from whom he himself had
learnt that he could swear to payment. The
judgments must be reversed.
Judgments reversed.
Distinguished— 5 Duer, 492.
Cited in -15 Johns., 433; 16 Johns., 138 ; 7 Cow., 313;
1 Wend., 488 ; 12 Wend,, 506 ; 13 Wend., 646 ; 19 Wend.,
209; 2 Hill, 442; 5 Den., 28; 6 N. Y., 188; 16 N. Y.,
JOHNS. REP.. 15
SII.L v. ROOT.
230
mencement of the suit, the plaintiff had no
MiliMsting cause of action, may be taken ad
vantage of under the general issue. This rule
SILL r. ROOD. has been expressly sanctioned bv the court in
the case of Wilt v. Ogden. 18 Johns., 56. If
I'rttfticf— Deceit n/mu-n under General Ivnw — the notes in question were procured upon such
Promissory Note — Wit/tout Consideration, fraudulent representations, they were utterly
Void. void and without consideration, and there
I nan action on a promissory note given for the "ever Wtts aW «""«, °{ action The Case of
price of a chattel. tW defendant may, under the , «"«§»» v. JVlcAofc, 11 Johns., 547, was not like
xeneral issur, show deceit in the sale. the present : the defense there set up was con-
A promissory note, given on the sale of a chattel, sidered as going only to reduce the amount of
valiie.Uwheii! !m'^aVT"ttw^)fTiolva'im" to'witliout tue plaintiff's claim, and not to destroy the
consideration, and void. cause of action entirely.1 It was a case pe-
CiutfaMiH-l Chit. Pi.. 472; 13 Johns.. » ; II Johns., <'ulittr in its circumstances, and *can [*232
.>V47. not l»e considered a1* establishing any general
THIS was an action of a**ump*it, on two I fu.le.- The verdict must be set aside and a new
promissory notes. The defendant pleaded | "aUwarded, with costs to abide the event of
non asstimimt. with notice of set-off, for goods
w>ld, work and labor, money had and re-
ceived. &c. The cause was tried at the Onon-
daga Circuit, before Mr. Justice Spencer.
At the trial, the plaintiff having proved the
notes in question, the defendant offered to
show that they were given by the defendant
\ete trial grunted.
Cited in-fi Cow., 498; 8 Cow.. 33: » Cow.. e»; 24
Wend., 103; "2 Hill, 480 ; & Den., 28; «s Rarb.. MS; 1
Hill., 77; »How. <F. 8.), 830.
•WARNER t. BOOGE.
to the plaintiff in payment for a shearing
machine, and that, at the time of the sale, the ;
plaintiff falsely represented the machine to be ;
of great value, when, in fact, it was worth j Practise— Promi»e to Pay Taxed Cotts— Consul -
nothing. This testimony wras objected to, on
the ground that pit wa« not admissible under
the plea or notice, and was rejected by the
judge. The defendant then offered to prove a
breach of warranty as to the value and utility
of the machine, which testimony was objected
to, and excluded on the same ground ; and the
judge ruled that neither the fraud nor breach
of warranty, although they went to take away
the plaintiff's whole cause of action, could be
given in evidence under the plea of non an-
.ininfinit. without notice. A verdict was
found for the plaintiff for the amount of the
notes, and. the defendant now moved for a
new trial.
The case was submitted to the court without
argument, on a reference to authorities.
2JI1*] *Per Vuriam. The only question in
thin case is, whether, under the plea of non
fumumpnt, it is competent to give in evidence
that the note was fraudulently procured, or
that it was given without consideration. The
evidence offered, and which was excluded,
was, that the notes in question were given in j
eration, Sufficient.
Where a party in a suit becomes entitled to costs
from the opposite part> . for opposing a motion,
who (the costs having been taxed) promises to pay
the bill, the promise is founded on sufficient consid-
eration, and will support an action.
ERROR, on certiorari to a justice's court.
FB
The return, which was verv obscure, to the
certiorari in this case, stated that the ground of
the action of the defendant in error was a bill
of costs for resisting a motion for judgment,
as in case of nonsuit, in this court, in the case
of Booge y. Warner, taxed by the Recorder of
Hudson, at $27.06. The return further stated
that the defendant below, the plaintiff in error,
undertook and promised to pay the bill, and
promised 16 confess a judgment for the
amount. The justice gave judgment for the
plaintiff below for $25.
Per Ouriam. The only error alleged as a
ground for reversing this judgment is the want
1.— That was an action by an attorney to recover •
payment for a shearing machine sola by the his costs; and the defendant offered to" show negli-
nlaintiflF t<> tho Httfonrfnnt • th«t the nhiintiff genee in the conduct of the suit. In Templer v.
[ M-Lachlan. 5 Bos. & P. ; 2 N. R., 13tt, such a dWens,-
made certain representations with respect to
the usefulness of the machine, which were ut-
terly false and that known to him at the time;
and that the machine was, in fact, worth noth-
ing and totally useless. This evidence was
overruled, on the ground that a special plea or
notice under the general issue was necessary
in order to let in such defense. The cases on
this subject do not seem to warrant so rigid a
rule. The rule, as laid down by Chitty (1
Chitty PI., 472), and which is sanctioned by
adjudged cases, is, that under the general
issue of non o«ru//i/Wl any matter may be given
give in evidence the injury the goods ha«i
liy bad stowage, but must resort to his
was not allowed under the general issue, though
MansticM, r/i. J., seemed to think that it might IM-
so great as to <!«•-
from the suit. In
Mills v. liainbridgc, there cited by Shepherd, arpii-
• into, I,oni BUeaborouffh is said to have ruled that
in an action for freight of giHMls, the defctuiuiii
could not
sustHine<l
cross action". Then- can IK- no doubt that if admis-
sible at all as a defense, it may be made under tin-
general issue in twstimnrlt ; but the difficulty is, that
by admitting such a defense, the plaintiff may, in
some cases, ix' taken by surprise, contrary to the
just principle of pleading, which requires that the
notion which the party relies should be stated so
... - , - _ as to apprise the opposite party of what is meant t< •
in evidence which shows that the plaintiff | be proved, in order that he may be prepared to
JOHNS. RKP., 15 N. Y. R., 5. 68 107.1
233
SUPREME COURT, STATE OF NEW YORK.
1818
of consideration to support the promise. If
the defendant in the court below was a
stranger to the suit in which these costs ac-
crued, the objection would be well taken ; but
he appears to be a party in the cause, and we
must take the promise proved to have been
made in reference to the very bill in question.
The return stated that it was proved that the
defendant did undertake and promise to pay
the bill. This was an admission that ihe costs
were properly taxed against him, and he being
a party in the suit, there was a sufficient con-
sideration to support the promise.
Judgment affirmed.
Cited in-18 N. Y., 330.
234**] JACKSON, ex dem. BROWN ET AI,.,
Ejectment — Possession by Permismon of Execu-
tor— Executor Claiming Ownership of Land —
Evidence — Declarations of Occupant.
Where a person acting in relation to land as ex-
ecutor, and, consistently with his duty as such,
permits another to enter upon and occupy the land,
he or those who claim under him cannot maintain
ati action of ejectment against such tenant, aud
his declarations, claiming the land in his own right,
are inadmissible in support of the action, as evi-
dence of title; such declarations being evidence
only in relation to the possession.
Citation— 6 Johns., 21.
THIS was an action of ejectment for the re-
covery of lands in the town of Walkill, in
the County of Orange. The cause was tried
before Mr. Justice Platt, at the Orange Circuit,
in September, 1816.
The lessors of the plaintiff claimed as the
children and heirs at law of William Brown,
deceased, who was the son of John Brown,
deceased, and produced a deed of quitclaim,
in fee, from John Brown to William Brown,
for the premises in question, dated \he 13th of
February, 1801. A witness on the part of the
plaintiff stated that John Brown, in his life-
time, claimed the land as owner thereof, as the
witness supposed, because he threatened to
prosecute any person trespassing on it, and did
prosecute some persons; that Daniel M'Vey,
the father of the defendant, entered on the
land about six and twenty years before the
answer or contest it. 1 Chitty PL, 215, 472. In Has- i
ten v. Butler, 7 East, 479, which was an action for
work and labor, &c.. Lord Ellen borough seemed to I
think that there was a distinction between an action '
for a specific sum agreed on, and where the plaintiff
proceeded on a Quantum merutt; that in the latter
case, the plaintiljf must come prepared to prove that
he has not only done the work, but that he ought to
have so much for it, and therefore could not be sur-
prised by such a defense. But Lawrence, J., thought
that, even in the first case, the defendant ought to
be let into the defense, if he had given the plaintiff
notice that he meant to dispute the goodness or
value of the work done. And Le Blanc, J., was of
opinion that, in either case, the plaintiff ought to
come prepared to show that he had done his work
properly, according to his contract. In Farnsworth
v. Garrard, 1 Camp., 38, Lord Ellenborough said
there had been considerable doubt on this point,
Hiid that he had ruled in deference to the authority
of Mr. Justice Buller (7 East, 480, 481, notes), but hav-
ing since conferred with the judges, he considered
the correct rule to be, that it there has been no
1074
trial, by permission of John Brown, and built
a house with his consent, and that he and his
family always said that they held the land un-
der John Brown. On his cross-examination,
the witness stated that John Brown was the
executor of Duncan Brown, his father; that
the witness understood from John Brown, that
the lands in question had been sold by Duncan
Brown to Duncan Dove, who had given a
mortgage to secure the purchase money. The
witness further stated that John Brown
claimed the land until the mortgage was paid;
and if not paid, as the witness supposed, he
claimed the land as his own; and that the
eldest son of Duncan Brown was Daniel
Brown, who died long before the Revolution-
ary War, leaving a son and several daughters.
The counsel for the plaintiff then offered to-
prove, by other witnesses, that John Brown,
in his lifetime, both before and after the entry
of M'Vey, in his conversations with various
other persons, claimed the land as absolute
owner. This testimony being objected to, was-
overruled by the judge. A mortgage from
Duncan Dove to Duncan Brown and his heirs,
was produced on the part of the plaintiff. Thia
mortgage was of two hundred *acres [*23&
of land, including the premises in question,
and was dated the 23d of March, 1753, con-
ditioned for the payment of £80 on the 22d of
March following, with interest. No evidence
was offered on the part of the defendant.
The judge charged the jury, that if they be-
lieved, from the evidence, that John Brown
entered upon the land as executor of his fath-
er, and, as such, permitted the defendant's,
father to enter, then the lessors of the plaint-
iff acquired no right to the laud by descent,
nor by the conveyance from John Brown, and
they should find for the defendant. But if
they believed that John Brown leased the land,
as proprietor, they should find for the plaint-
iff. The jury found a verdict for the defend-
ant, which the plaintiff now moved to set
aside, and for a new trial.
Mr. W. A. Duer, for the plaintiff. 1. The
evidence of the declarations of J. Brown was
admissible to show with what intent he en-
tered, and in what character he held the pos-
session. The case of Jackson, ex dem. Youngs,
v. Vredenbergh, 1 Johns., 159, is an authority
in point.
2. The verdict was clearly against evi-
dence. [Here the counsel entered into an ex-
amination of the testimony given at the trial.]
beneficial service, there should be no pay; but if
some benefit has been derived, but not to the ex-
tent expected, it should go to the amount of the
plaintiff's demand, leaving the defendant to his
action for negligence. In Fisher v. Samuda, 1
Camp., 190, which was an action by a buyer against
the purchaser, to recover damages for the bad
quality of the article sold as sound and good, and
who had been sued for the price by the seller, and
made no defense, but suffered judgment to pass by
default. Lord Ellenborough said the plaintiff ought
to have made his defense in the original action, and
given in evidence the bad quality of the article sup-
plied, either in answer to the whole demand, or in
abatement of the damages. That where there is an
opportunity to do final and complete justice between
the parties, there ought not to be a second or cross
suit. But see Dickson v. Clifton, 2 Wils., 319 ;
Brown v. Davis, Buffet v. James, King v. Barton,
Cormach v. Gillis, cited 7 T. K., 480, 481, and notes,
and 1 Campb., 40, notex; Beecker v. Vrooman, 13
Johns., 302 ;• Jones v. Scriven, 8 Johns., 453; Grant
v. Button, 14 Johns., 377.
JOHNS REP., 15.
1*18
JACKSON, EX DEM.. M'VKv.
285
Mr. Betts, contra. If the declarations of J.
Brown are admitted for any purpose, it must
be in proof of the plaintiff's right; and it
would follow, from the argument of the !
plaintiff's counsel, that a party might recover :
or make out a title on the strength of his own
mere assertions. This case is very distinguish j
able from that of Jafkton v. Vrfdenbergh. \
This was a case of adverse possession, and the
declarations of the party were connected with
marked acts ownership which showed the \
character in which she entered. In Waring*, j
Warren, 1 Johns., 889-848,* the court say that ,
the declarations of the party are not admissi- |
ble in evidence, being interested to maintain
the possession and support his title.
2. When evidence is given on both sides, |
the court will not grant a new trial on the i
ground that the verdict is against evidence. !
The jury were warranted by the evidence to •
2IJO*] "presume that J. Brown entered on the ;
land a-s executor. (England v. Sbtdt. 4 T. R.. !
882; HamiiwHtt v. Wadkam, 0 Mass., 353; j
Jackxon v. Sterntergh. 1 Caines. 163; De Fon- \
clear v. Shotttnkirk. 3 Johns., 170.
Mr. Duer, in reply, said there could be no I
doubt of the general" rule that the declarations
of a party were not evidence to support his
title. The question left to the jury was not
whether J. Brown had title, about which there
was no doubt, but whether he claimed to be
owner, and with what intent, or in what char-
acter he entered and held the possession;
whether as owner or as executor of D. Brown.
Evidence of his declarations was offered, not
to prove that he had, but that he claimed to
have title. If, in leasing the premises to the de-
fendant, J. Brown acted as owner, no matter
whether he was so or not, the lessors of the
plaintiff are entitled to recover. The defend-
ant cannot call in question the validity of the
title under which he entered.
Again; J. Brown could not have held as ex-
ecutor. It is not a mortgage for years, but in
fee, and on the death of I). Brown, the legal
estate descended to his heirs at law. But ad-
mitting that he held as a trustee for the heirs
or representatives of I). Brown, can the de-
fendant l>e allowed to avail himself of that
fact as a defense in this suit? If he acted as
trustee, the lessors of the plaintiff, if they re-
covered, would still hold as trustees, and
might be compiled by a court of equity to
convey to the euiui guf trtut, whose rights can-
not be impaired bv the recovery of the plaint-
iff in this suit. The defendant ought not to
be allowed to set up the rights of the c&tttti
que trust as an outstanding title.
THOMPSON. Ch. ./., delivered the opinion of
the court :
The plaintiff moves for a new trial on two
grounds: 1st. That the verdict was against the
weight of evidence. 2d. That the judge im-
properly excluded evidence offered on the part
of the plaintiff.
The lessors of the plaintiff claimed the
premises in question as heirs at law of William
Brown, deceased, who was the son of John
Brown; and the question submitted to the jury
was, whether the ownership set up by John
237*] Brown was *in his own right, or as
executors of his father, Duncan Brown. It
JOHNS. HEP.. 15.
appeared in evidence that Daniel M'Vey, the
defendant's father, went into possession under
and with the permission of John Brown. The
right to recover as put to the jury, depended
on the question whether John Brown, in this
transaction, was acting in his own right or as
executor of his father. The jury decided that
he was acting in the latter character ; and the
verdict is supported by the weight of evidence.
The case was submitted to the jury upon
the plaintiff's own evidence: no testimo'ny was
offered on the part of the defendant. From
the plaintiff's witness it appeared that John
Brown acknowledged that the lands in ques
tion had been sold bv Duncan Brown, his
father, to one Duncan Dove, who had given a
mortgage to secure the purchase money. This
mortgage appears to have been given in the
year 1753, to secure the payment of £80 in
one year thereafter. It was proved that John
Brown said he claimed the land until the
mortgage was paid: this shows very clearly
that he was acting as executor; and this con-
clusion is much strengthened by the fact that
he was not the heir at law of his father. His
brother Daniel was the eldest son, and there is
nothing in the case affording any grounds to
infer that John Brown had acquired any right
from his father, except what grew out of his
executorship. When all that he has done in
relation to the premises is consistent with, and
within the scope of his duty as executor, it is
unreasonable to conclude that he acted in any
other capacity^ especially as no color for any
other claim is shown, independent of his own
declarations. These declarations were not ad-
missible as evidence of title: this is the settled
doctrine of this court. In Jncknon v. Sfieur-
tnan, 6 Johns., 21, the court say that the ac-
knowledgments of a party as to title, are a
dangerous species of evidence, and though
good to support a tenancy, or to satisfy doubts
in cases of possession, they ought not to be
received as evidence of title. The proof of-
fered was, that John Brown had, in conversa-
tion with several persons, both before and
after M'Vey 's entry, claimed the land as ab-
solute owner. These were not declarations
made by him whilst in jx>ssession, and to show
the character of his possession, *but [*liJ?S
declarations as to the title; and as such they
were inadmissible. The motion for a new
trial must, accordingly, be denied.
^fotion
LOW r. VROOMAN.
•Kjefttntnl — Referred to Surveyor* — Erjtentf of
— Not Admimiiblf in Tturtttion of Costn — Action,
for Kfim-dy ifheie Com* n re Improperly Strurk
out.
Where an ejectment cause was referred by emi-
nent of the I'arlii s, and the land in question sur-
veyed, it was held that tbe party succeeding in the
fttiisv, who hart iwid ex pen** attending- the survey,
w:m entitled to recover half of them* expenses from
the opjmshV part v, then- l»HnK some evidence of mi
agreement that they should t>e Itorne ei|imlly, and
mich '-\i" :!••••.- not in-iny admissible in the taxation
of the costs in tin- suit.
When- costs have Ix-en. upon taxation, improper-
ly struck out of the bill, the remedy of the party in
by ni'i" -il from the taxation, ami not by action
iiirtilnst the opposite party, for the charyeg which
were reject**!.
1075
238
SUPREME COURT, STATE OF NEW YORK.
1818
TN ERROR, on certiorari to a justice's court.
This was an action of asirumpsit for money
paid, laid out and expended, brought by the
defendant in error against the plaintiff in
error. It appeared that there had been an ac-
tion of ejectment pending in this couft be-
tween the parties, which, by consent, was re-
ferred to surveyors, it being a mere question of
boundary. On the survey, one Tenax at-
tended as a chain bearer, who sued the plaint-
iff below for his services, and recovered be-
tween $8 and $9, for the one half of which
this action was brought against the defendant
below. The expenses were proved to have been
necessary and proper, and that the plaintiff be-
low having succeeded in the ejectment suit,
the costs were taxed ; but these expenses were
struck out of the bill by the taxing officer, and
the bill was paid by the defendant below.
There was no positive proof that the survey
was to be made at the joint expense of the par-
ties, and Tenax swore that he considered the
plaintiff below as his employer. One of the
referees testified that he inferred from the acts
of the parties on the survey that each was to
bear an equal share of the" expenses, but he
did not recollect to have heard from either
any explicit declarations on the subject ; that
on the survey the referees were boarded part
of the time by the plaintiff, and part by the de-
fendant. The justice gave judgment for the
plaintiff below.
Per Curiam. The reference to the survey-
ors was by mutual consent of the parties, and
239*] the costs attending the *survey were
not such as could be taxed in the bill of costs,
without some special agreement on the subject.
The evidence on the question whether the
expenses were to be borne mutually by the
parties, is rather doubtful, but such a conclu-
sion may very fairly be drawn from the circum-
stances given in evidence, and it was so un-
derstood by one of the surveyors. It was an
expense incurred for the mutual benefit of
both, and it is just and equitable that each
one should bear his proposition. Had this
been a charge which might have been taxed
against the losing party, and which 'have been
struck out of the bill of costs improperly, the
remedy ought to have been by appeal from
the taxation ; but not being such a charge,
there is no remedy, except by action. We can-
not see that any principle of law has been
violated ; and the real and substantial justice
of the case being in support of the judgment,
it must be affirmed.
Judgment affirmed. '
Cited in— 46 Pa. St.. 235.
TN ERROR, on certiorari to a justice's court.
This was an action brought by the defend-
ant in error to recover from the plaintiff in er-
ror a balance due to him on the sale of a mare.
The defense set up was payment made by the
note of one Crawford ; to repel which, the
plaintiff below offered to prove the insolvency
of Crawford by what one Reuben Smith had
said. This testimony was objected to by the
defendant below, and the objection was over-
ruled, but the testimony was not admitted to
the jury as evidence. A verdict was found
for the plaintiff below.
*Per Curiam. The only objection to [*24O
this return relates to the testimony offered of
what Reuben Smith had said as to the insolv-
ency of Crawford. The hearsay evidence of
what Smith had said was certainly inadmissi-
ble. It was objected to, and the justice says
that he overruled the objection ; by this he
must mean that he received the evidence ; but
he says that the testimony was not admitted to
the jury as evidence. If the return is to be
understood, as we think it must, that the jus-
tice admitted the evidence to be given to him-
self, but that he did not allow the jury to con-
sider it as evidence, it was improper. Such a
practice would be dangerous in its con-
sequences, as the evidence is given in the pres-
ence and hearing of the jury. This point was
decided in Haswell v. Bussing, 10 Johns., 128.
The court say that it would lead to great
abuse, if a justice were allowed to admit a
witness to testify de bene me, and to say that
he afterwards disregarded the evidence. The
judgment must, accordingly, be reversed.
Judgment reversed.
Cited in-4 Den., 156; 3 Barb., 615; 7 Barb., 587 ; 2
Daly, 520 ; 3 Co. B., 245.
IRVINE t>. COOK.
Evidence — Improper Should not be Admitted in
Presence of Jury.
Improper evidence ought not to be allowed to be
given in the presenee of the jury, although they
are afterwards directed to disregard it.
Citation— 10 Johns., 128.
1.— If no directions are given respecting the costs
of an award, they are to be paid by both parties
equally. Grove v. Cox, 1 Taunt., 165.
1076
HERRICK «. WHITNEY KT AJ,.
Negotiable Paper — Implied Warranty again»t
Forgery — Payee as Witness for Indorser, In-
competent.
There is a warranty implied in the transfer of
every negotiable instrument that is not forged ;
therefore, the payee of a note is not a competent
witness for the holder, in an action against the
maker, although the holder took it at his own risk
as to the solvency of the maker ; the payee having
a direct interest to charge the maker, in order to
protect himself against his implied warranty.
was an action of assumpsit, on a prom-
issory note, dated March 6th, 1816, pay-
NOTE.— Negotiable paper— Transfer—Implied war-
ranty of genuineness.
Upon the transfer of a note, or other written obli-
gation, there is an implied warranty of its genuine-
ness. Markle v. Hatfield, 2 Johns., 455, note ; Mur-
ray v. Judah, 6 Cow., 484 ; Leavitt v. Blatehford, 17
N. Y., 521 ; Whitney v. National Bank, 45 N. Y., 305 ;
Bell v. Dagg, 60 N. Y., 530; Ross v. Terry, 63 N. Y.,
613; People's Bank v. Bogart, 81 N. Y., 101: Canal
Bank v. Bank of Albany,! Hill, 287; Swanzey v.
Parker, 50 Pa. St., 441 ; Snyder v. Reno, 36 Iowa,
329; Challis v. McCrum, 22 Kans., 157; Bankhead
v. Owen, 60 Ala., 475 ; Allen v. Clark, 49 Vt., 390;
Hussey v. Sibley, 66 Me., 192; Bartsch v. Atwater,
4 Conn., 419; Giffert v. West, 37 Wis., 116: Lyons v.
Miller, 6 Gratt., 439; Bell v. Cafferty, 21 Ind., 411;
Coolidge v. Brigham, 1 Met., 547 ; Worthington v.
Cowles 112 Mass., 30 ; Gompertz v. Bartlett, 24 Bng.
& Eq. Rep., 156.
JOHNS. REP., 15.
1818
BKEKD v. COOK AND CAOWKLL.
340
able in six months, to John Fitch, or bearer,
and executed by the defendants. The cause
was tried before '.Mr. Justice Platt, at the Oneida
Circuit.
Fitch was called by the plaintiff as a witness j
to prove the execution of the note by the de- !
fendants, and stated that he transferred the
note to one Cummings in payment for a pair
of horses, but at the risk of "Cummings. as to I
the solvency of the makers, and that he had
in • interest in the suit. The defendants' coun- j
sel objected to the competency of the witness ;
r IK- judge, however, admitted him. A verdict
w,-i> taken against the defendant Whitney for
the amount of the note, subject to the opinion
of the court, and in favor of the other defend-
ants, who were proved to be infants.
24 1*J *The case was submitted to the court •
without argument.
Per Curiam. The witness was responsible ,
upon an implied warranty I hat the note was
not forged. He. therefore, had a direct in-
terest in establishing the fact which he was
called to prove : for. by obtaining a verdict
for the plaintiff, on the plea of mm a«*ump*it,
he protected himself against his own warranty.
Judgment for the defendant*.
Cited in— 1« Johns.. 202 : 6 Cow., 474, 491 ; 5 Wend.,
1H5; 19 Wend.. 561 ; 2 Hill, 60S ; 5 Hill, 477 ; 45 X. Y..
:»* ; .1 Barb., :J7* ; 41 Barb.. '» ; 'X How. Pr., 343 : 22
Cttl., 249.
BREED c. COOK AHD CAD WELL.
>.'/<« — /Vo/niwx/ry yote. in Payment.
Where, on the sale of goods, the vendee delivers
tn the vendor the promissory note of a third
person, which he refuses to indorse, it is to be eon-
sidered as payment, and the vendor cannot, after-
wards, resort to the vendee, unless the note was
forgtxl, or there was fraud or misrepresentation on
his part as to the solvency of the maker.
Cltatioii-9 Johns.. 409.
I
N ERROR, on certiorari to a justice's court.
The defendants in error brought an action
in the court below against the plaintiff in er-
ror, for part of the price of a horse sold by
them to him. The price of the horse was $65 ;
in part payment for which the defendant be-
low delivered to the plaintiffs a promissory
note for $23, drawn by one Filimore, payable
in six mouths, to the defendant or bearer.
When the note became due. Filimore was ut-
terly insolvent.
It was proved, on the part of the defendant
below, that at the time of the sale of the horse
the plaintiffs requested him to indorse the
note ; this he refused to do, and stated that
the maker of the note was as well known to
the plaintiffs as to him ; and that the plaintiffs,
after inquiring into the solvency of the maker,
finally agreed to take the note without indorse-
ment. The justice decided that the plaintiffs
242*] *below, not having made any special
contract to take the note at their own risk, the
defendant was liable for the amount of it, and
rendered judgment accordingly.
Per Curiam. The justice erred. Admitting
the rule of law to be as he apprehended, yet he
clearly misapplied it ; for the evidence in this
case showed very satisfactorily that the vend-
ors agreed to take the note at their own risk.
The purchaser told them expressly that he
would not indorse it, and there is no pretense
of fraud. The decision in the case of Whit
beck v. Van Nets, 11 Johns., 409. gives the
true rule on this point, which is. that if a vend-
or of goods receive from the purchaser the
note of a third person, at the time of the sale
(such note not being forged, and there being
no fraud or misrepresentation on the part o?
the purchaser, as to the solvency of the
maker), it is deemed to have been accepted by
the vendor, in payment and satisfaction, unless
the contrary be expressly proved.
Judgment rerfr«ed.
Disapproved— 36 How. Pr., 524.
Cited in-13 X. Y., Ifl9 : 10 Barb., 575 ; 2 T. & C., 343 ;
39 Super., 505 ; 44 Super., 339 ; 4 McLean, 9: 47 Wis.,
631.
GILBERT
v.
VANDEHPOOL AND BEEKMAN.
Practice — Pcot&s» against Attorney in Term —
Plea in Abatement.
Where process is issued out of a justice's court
against an attorney or counselor, and served dur-
ing a term of the court of which he is an attorney
or counselor, the defendant may plead his privi-
lege in abatement, although the process was re-
turnable after the end of the term.
A plea in abatement iu a justice's court need not
be verified by affidavit.
Citation-1 X. R. L.. 524, sec. 23.
I
X ERROR, on ctrtiorari to a justice's court.
NOTE. Pai/mmt hy note.
Wherr :;. ..„/.. art. #Mfi>r the. mite of a third party,
iinintlontea, the note is full payment unless the con-
trary clearly appears. See, \\ hitbeck v. Van Ness,
11 Johns., 409, /!••'.. <in<i <>tli> i m.t,.* there cited.
JOHNS. REP., 15.
The defendants in error brought an action in
the court below against the plaintiff in error,
who was an attorney of this court. The sum-
mons was issued during the term of this
court, and was returnable on a day subsequent
to the last day of term. On the return of the
summons, the parties appeared, and the de-
fendant pleaded that he was an attorney of
the Supreme Court, which was sitting at the
time the summons was issued and served, and
claimed his exemption under the proviso in
the 8th section of the Act Concerning Costs (1
N. R. L., 345), which takes away the privilege
*of an attorney or counselor, in cases [*24JJ
of debts to the amount of $25, "unless it shall
appear that the court wherein he shall be such
attorney or counselor shall be then sitting."
The justice overruled the plea. A trial was
then had on the general issue, and judgment
was rendered in favor of the plaintiffs below.
PI.ATT, ./., delivered the opinion of the
court:
Two questions are presented for our consid-
eration in this case: 1. Whether the defend-
ant below was entitled to exemption from this
suit upon the facts stated in his plea ; and 2.
Whether the justice was bound to receive or
1077
243
SUPREME COURT, STATE OF NEW YORK.
1818
notice the plea iu abatement, without affidav-
its of its truth.
On the first question, we are of opinion that,
according to the true construction of the 8th
section of the Act Concerning Costs, an attor-
ney or counselor of any court of record is ex-
empt from the service of process issued out of
a'justice's court, during the sitting of the court
of which he is an attorney or counselor. The
term of such court may continue until the
day before the return day of the summons ;
and then the defendant would have only one
instead of six days, to prepare for his defense;
the legal intendment being that the attorney
or counsel is occupied exclusively in the busi-
ness of the term during its continuance. The
Statute has modified the common law privilege
by subjecting attorneys and counselors, dur-
ing vacation, to the jurisdiction of justices ;
but the effect of the proviso is to leave them
completely under the protection of their com-
mon law privileges during the terms of their
courts.
On the second question, also, the opinion of
the court is in favor of the defendant below.
The 23d section of the Act for the Amendment
of the Law (1 N. R, L., 524), requiring dilato-
ry pleas to be verified by affidavit, is expressly
made applicable to courts of record only. A
justice's court, in the sense of that Statute, is
not a court of record. The Statute says "that
no dilatory plea shall be received in any court
of -record, unless the party offering such plea
do, by affidavit, prove the truth thereof, &c."
This is said in reference to the practice of all
courts of record of receiving written pleas, in
vacation or in term, by filing them in the
244*] *clerk's office, and has no reference to
a justice's court, where the pleadings are gen-
erally ore tenuK, and are never required to be
in writing, and where the pleadings are always
in open court. That a defendant might make
an oral plea in abatement, and yet be required
to verify it by an affidavit, that is, an oath in
writing, was never intended by the Legisla-
ture. A plea in abatement in a justice's court,
like every other plea, must be proved, unless
admitted ; and in this case the trial and proof
of all disputed facts was immediately to follow
the plea. The reason, therefore, for requir-
ing an affidavit to verify a dilatory ple.a, in
courts of record, does not apply to a jus-
tice's court. In the one case, the effect of a
plea in abatement, if frivolous, is to delay a
trial on the merits, for a term, at least: in the
other case, the plea in abatement, and the plea
on respondents ouster, are all tried at the same
sitting. Besides, the affidavit (if any were
necessary) was waived in this case, as the
plaintiffs made no objection to the plea on that
ground. The plaintiffs and the justice seem
to have put the cause on the single point, that
as the return day of the summons was after
the term of the Supreme Court, the attorney
was amenable to the justice's court, although
the process was issued and served during the
term. On that point the justice erred, and
the judgment for the plaintiffs below ought to
be reversed.
Judgment reversed.
Cited in— 2 Wend., 587: 5 Bias., tto; 65 Mo., 566.
1078
HUBBARD t>. SPENCER.
Practice in Justice Court — Adjournment — Ir-
regular Confession oj Judgment — Judgment
Void.
Where a cause in a justice's court, having been
adjourned, became discontinued, by the non-ap-
pearance of the plaintiff at the adjourned day, and
more than a month after, a person who bad been
authorized by the defendant to appear for him at
the adjourned day, and confess judgment, came
before the justice, and without the knowledge of
the defendant, confessed a judgment for the plaint-
iff, as of the day to which the cause was adjourned;
it was held that this judgment being void, the de-
fendant might avail himself of the irregularity in
an action upon it.
N ERROR, on certiorari to a justice's court.
1
The defendant in error brought an action of
debt in the court below against the plaintiff in
error, on a judgment rendered by another jus-
tice in favor of the former against the latter.
*Moss, who gave the judgment, testi- [*245
fled, on the part of the plaintiff below, that
Hubbard, the defendant below, had been
brought before him on a warrant at the suit
of Spencer, the plaintiff ; that the cause was ad-
journed until the 30th of December, 1815, on
which day neither of the parties appeared, nor
any person on their behalf ; that in February
next, thereafter, the plaintiff appeared before
him as of the day to which the cause had been
adjourned ; that one Sherrill was introduced
as a witness, who swore that previous to the
30th of December, Hubbard, the defendant,
authorized him to confess a judgment in favor
of the plaintiff, at the time to which the cause
had been adjourned ; that Sherrill, on being
questioned, said that he thought his authority
to confess the judgment extended to the pres-
ent time, and that he, therefore, confessed a
judgment before the witness for $17.88, with
costs, and that the witness entered the judg-
ment as of the 30th of December preceding.
This was the only testimony given ; and it did
not appear that the defendant ever had any
knowledge of the judgment before Moss, until
the trial in this cause. The justice who tried
this cause gave judgment for Spencer, the
plaintiff below, for the amount of the judg-
ment before Moss, with costs.
PLATT, ./., delivered the opinion of the
court.
The suit originally instituted before Moss
was unequivocally discontinued by the non-
appearance of the plaintiff in that suit, on the
30th of December, 1815 ; and the parties then
stood in the same situation as if it never had
existed. According to the testimony of Moss
himself, the judgment before him was entered
nunc pro tune, nearly two months after the
discontinuance of the suit ; and the only color
for that extraordinary proceeding was that
the defendant had authorized his attorney
(Sherrill) to appear at the adjourned day, and
confess a judgment on the suit then pending,
coupled with the opinion of Sherrill, that a
power to confess a judgment at the adjourned
day was sufficient authority to confess a judg-
ment in February, after the parties were out
of court, so as to have it entered as of the 30th
of December preceding. I think such a pro-
ceeding is not to be endured. The foundation
JOHN8 REP., 15.
1818
CANIKK v. MVEKS.
245
of this suit is a judgment against a man who
24O*] wa-s not in court, *who was not under
process of any kind, and in fact had no notice
of the proceeding against him. Although he
authori/.ed Sherrill to confess a judgment in
December, mm constat, but that he had paid
the debt, or had a good defense against the
claim in February following. It is against the
first principles of justice to conclude the rights
of a person by a proceeding to which he was
not privy, and against which he had no oppor-
tunity of defending himself.
The only question is whether we can notice
the illegality of that proceeding in this collat-
-eral way. "in my opinion there is ground to
infer a* fraudulent connivance between the
plaintiff and Sherrill, who confessed the judg-
ment before Moss ; but I am also of opinion
that Moss had no jurisdiction when he received
the plea of confession, and therefore, his judg-
ment, nuncprotunt, was void. The justice
was limited, by statute, to a certain course of
proceedings ; and it would be preposterous to
give such a construction to the Statute as
would authorize what was done in this in-
stance. It must, therefore, be regarded as a
proceeding coram iu»n judift, and void ; and
hence it follows that the judgment in this suit
has no foundation, and must be reversed.
Judgment reversed.
Cited ln-7 Wend., aOJ; « llarb.. «*).
tthich Given — Indorsement Transfer* Legal
Ttile.
To the common counts in <i*rimijwi<, a pica, that
afu>r making the promisee in those counts men-
tioned. the defendant made and delivered Ui the
plaintiff In.- prnmtatiorv note for the same identical
promises, which the plaintiff received in full satis-
faction, and afterwards indorsed and delivered the
; note to A B, is Uid: for the receiving of a promissory
not**, and indorsing it ton third person, does not ex-
tinguish the original cause of action, provided the'
payee can show it to be lost, or can produce it on
the trial to be canceled.
A negotiable not** does not extinguish an ante-
! <redent debt which formed the consideration of it,
: except MI/. iimtln.
The indorsement of a promissory note to A B, or
order, for value received, transfers the legal title in
i the note to the indorsee, which cannot be devested.
, except by canceling the indorsement, or indorsing
: it again.
Citations-Chit. Bills, 116-118; 1 Johns., :ft.
CANIFF P. MYEKS.
Power of Attorney — Prottf of Execution.
When- a party appears by attorney, in a justice's
court, the attorney is a competent witness to prove
Hi- • • \--i-utii MI of tne power to himself.
N EKROR, on eerttorari to a justice's court.
I
The plaintiff in error brought an action in
the court below against the defendant in
error, and on the return of the process, one
Barnes appeared as attorney for the plaintiff.
The defendant objected to him, and demanded
his authority; on which Barnes produced a
written power, purporting to be signed and
sealed by the plaintiff, and to which the at-
torney was the onlv subscribing witness.
Barnes offered himself as a witness to prove
"J347*] the execution of it, but was objected *to
by the defendant, and excluded by the justice,
who gave judgment of nonsuit, in which he
included all the costs on both sides.
Per Curtain. As between the plaintiff and
defendant, the attorney was a competent wit-
ness to prove the authority to himself to appear
as attorney in the suit. He acquired no right
to costs in consequence of swearing to the
execution of the power, and therefore had no
interest. The justice also erred in giving judg-
tiifiii against the plaintiff for his own costs.
Judgment rew*ed.
BURDICK c. GREEN.
J'fauliny and Practice — Assumpsit — Negotuible
Note doe» not KttinguM Antecedent Debt for
JOHNS. REP., 14.
rTMIIS was an action of a#sump*it. The det-
1 laration contained several counts: 1. On a
promissory note, dated the 21st June, 1810,
made by * the defendant, and payable to the
plaintiff, or order, on the 1st of August next,
thereafter, for $1,525. 2. The second count.
after setting forth the note, stated that the
plaintiff indorsed it to Joel Ketchum, or order,
who, on the 81st July, 1816, did, under his hand
and seal, transfer, assign and set over to the
plaintiff the said note, together with all his right,
title and interest therein, by reason wherof the
defendant became liable to" pay, and being so
liable, in consideration thereof, undertook, &c.
3. The common money counts. 4. Indebitatu*
a«*umpsil for goods sold. 5. A quantum eale-
bat on the same.
The defendant pleaded. 1. Aim afcuinptril.
2. Actio non accredit infra nef annos. 3: 4.
That the promises mentioned *in the [*248
declaration were made before the 3d of March,
1812, on which day the defendant was dis-
charged from his debts, as an insolvent, under
the Act of the 3d of April 1811. 5. To the
first count of the declaration the defendant
pleaded, that after the making the promissory
note therein mentioned, and before the com-
mencement of this suit, to wit: on the 21st of
June, 1810, the plaintiff, in writing, indorsed
it to Joel Ketchum, or order, and delivered it
to him. 6. To the third, fourth and fifth
counts the defendant pleaded, that after the
making the several promises in those counts
mentioned, to wit: on the 21st of June, 1810,
the defendant made his promissory note for the
same identical promises, and delivered it to the
plaintiff, by which note, for value received, he
promised to pay the plaintiff, or order, $1,525.
on the 1st of August then next, which note
the plaintiff received in full satisfaction of
the said promises, and that the plaintiff, after-
wards, indorsed and delivered it to Joel Ketch-
um for value received.
The plaintiff replied: 1. To the second plea,
the issuing a aipuuat re*imndfndum within six
years. 2. To the fifth plea, the plaintiff re-
plied the re-assignment from Ketchum of the
note. 3. To the sixth plea the plaintiff replied,
that after the 21st of June, 1810, and before
the commencement of this suit, to wit: on the
31st of July, 1816, Ketchum, by his instrument
in writing, under his hand and seal, assigned
the said note, with all his right, title and interest
therein to the plaintiff ; averring that the note
1079
SUPREME COUKT, STATE OP NEW YORK.
181$
had not been paid ; whereby the indorsement
to Ketchum became canceled, and the plaint
iff restored to all his rights in the premises,
as though the indorsement had not been made.
4. To the third and fourth pleas the plaintiff
replied fraud in obtaining the discharge, and
concluded to the country.
The defendant rejoined to the replications to
the second and fifth pleas, taking issue thereon,
and demurred to the replication to the sixth
plea, assigning as special causes of demurrer:
1. That it was a departure from the third,
fourth and fifth counts of the declaration: and,
2. That is does not allege that the assignment
was made or indorsed on the note, or that the
indorsement made on the note was canceled.
The plaintiff joined in demurrer.
249*] *Mr. Conklin, in support of the de-
murrer, contended that the replication to
the sixth plea did not sufficiently answer the
material facts stated in the plea. '(1 Chitty PI.,
513.) Where a note is given for a precedent
debt, it so far operates as an extinguishment
that the party cannot recover on the original
consideration, unless he produces and cancels
the note, or proves that it has been lost. (Holmes
v. D'Camp, 1 Johns., 34; Angel v Felton, 8
Johns., 149; Pintard v. Tackington, 10 Johns.,
104.) By transferring the note, the plaintiff
affirmed the fact of its being received in pay-
ment. There was a time, then, when the
plaintiff had no right of action on the original
contract, and that right cannot be revived by
the act of the plaintiff merely.
Mr. Z. JR. Shepherd, contra, insisted that as
the note had been re-assigned to the plaintiff,
he was entitled to bring an action upon it.
The plea of the giving a note was merely to
defeat the action on the original contract. The
plaintiff may strike out the indorsement, or
he may produce and cancel the note at the trial.
SPENCER, J., delivered the opinion of the
court:
The point is, whether an action of asmmpsit
can be maintained on the original cause of ac-
tion, under the circumstances set forth in the
6th plea, with the additional fact, that the
promissory note duly indorsed to Ketchum had
been re-assigned to the plaintiff, under the
hand and seal of Ketchum, by a distinct instru-
ment.
There can be not doubt that the legal title in
the note is in Ketchum, for the plea states the
indorsement of the note under the hand of the
plaintiff to J. Ketchum, or order, for value re-
ceived ; the transfer was thus complete, and
nothing but the canceling thjs indorsement, or
Ketchum's indorsing it again, would devest
him of the legal title. A note indorsed in
blank may or may not be filled up at the elec-
tion of the indorser, but an indorsement in full
transfers the interest of the payee to the person
named in the indorsement. (Chitty on Bills,
116-118.)
In Holmes & Drake v. D'Camp, 1 Johns., 35,
it was held that though, technically speaking,
25O*] a negotiable note does *not extinguish
an antecedent debt which formed its considera-
tion, it was an extinguishment sub modo ; and
as I understand that case, we adopted this rule,
that when it appeared that a negotiable note
had been given for a prior debt, that we would
1080
not suffer the plaintiff to recover on the orig-
inal consideration, unless he showed the note
to have been lost, or produced and canceled it
at the trial.
The plea in this case, therefore, is defective,
as a bar to an action on the original considera
tion; for w* have seen that the mere giving a
negotiable note, or its indorsement to a third
person, does not extinguish the original cause
of action, provided the payee in the note can
show it to be lost, or can produce it to be
canceled ; and non constat, that it cannot be
done in this case.
Judgment for the plaintiff.
Explained— 8 Cow., 80.
Cited in— 11 Wend., 28; 19 Wend., 517; 21 Wend., 462;
3 Barb., 628; 4 Barb., 375; 12 Barb.. 55 ; 15 Barb., 31 ;
4 Duer, 669; 6 Duer, 370, 304; 47 Super., 306; 2 Hilt.,116;
3 Daly, 490; 33 Wis., 502; 51 Pa. St., 363.
BARTLETT v. CROZIER.
Officers — Overseer of Highway s~ Neglect to Re-
pair— Party Injured may Maintain Action —
Pleading.
Where a damage is suffered by the act or omis-
sion of a public officer, contrary to his duty, the-
party injured may maintain an action on the case
against the officer.
Where an overseer of highways willfully neglects-
to repair a bridge within his district, by reason of
which the plaintiff's horse falls through, and breaks
his leg, an action on the case may be maintained.
It seems that the declaration in such action
should allege that the commissioners of the town
had provided materials, and that the defendant
had the means of making the repairs; but the-
omission is cured after verdict, by the common law
intendment, that the defect was supplied on the
trial by proof.
Citations— 1 Saund., 228 a ; 2 R. L., sees. 3, 28; 2 T_
R.,671; 6. Johns., 90.
IN ERROR, to the Court of Common Pleas-
of the County of Washington.
The defendant in error brought an action
of trespass on the case, in the court below,
against the plaintiff in error. The declaration
contained three counts, which were substan-
tially the same, and stated that the defendant
below was, on the 5th of April, 1814, duly
elected an overseer of. highways for the town
of Salem, in the County of Washington, for
district No. 14, in the said town, and took the
oath prescribed by law, which was duly filed
with the town clerk ; that he undertook the
execution of his office ; and that, not regard-
ing, but neglecting his duty, he negligently
and willfully suffered a certain bridge, in the
said district, and on a public highway therein,
to be and remain, for the space of three
months, broken, dangerous and unfit to be
traveled over, he well knowing the premises ;
and that, during that*time, the plaint- [*251
iff below was driving his mare over the bridge,
and by reason of the defendant's willful neg-
ligence in not repairing, the mare fell through
the bridge, and broke her leg, &c.
The defendant below' pleaded the general
issue ; and a verdict having been found on
the trial for the plaintiff below, the defendant
brought a writ of error, and assigned for error
that the declaration was insufficient in law to
maintain the action.
Mr. Orary, for the plaintiff in error, con-
tended : 1. That an action does not lie at
JOHNS, REP., 15..
1818
BAHTLKTT v. CROZIKK.
251
common law against the overseers of high-
ways for not repairing a road or bridge. The
town or parish at large is hound to repair, un-
less, by prescription, the burden is thrown on
some particular person, by tenure. (King v.
Sheffield, 3 T R., 106, 111 ; 1 Ld. Ray in..
7-25 ; 5 Burr., 2700 ; 4 Burr., 2510 ;«8 Comvn's
Dig., 81, Chimin, B, 2. B. 3.) Where a high-
way is out of repair, the whole pari.sh is in-
dictable, and if a bridge is out of repair, the
whole county are answerable. (2 Inst., 700,
701 ; 5 T. K., 598 ; 2 Bl.. 685 ; Vent.. 183.)
Again , this action is not maintainable on
the Statute. (2 N. R. L., 270. «ess. 80, ch.
33.) The Statute (sec. 14) gives a jwualty
merely for neglect of duty. The English
Statute is analogous, and creates an officer
culled a surveyor of highways, with similar
powers. (2 Burr., 805. 832, 834; 2 Hawk.,
302. /». 8; 5 Johns., 375; 1 Johns., 54; liou-
l»n v. Neilton, 3 Johns., 474; Fretmanv, Corn-
irnll, 10 Johns., 471.)
The overseers act under the authority and
direction of the commissioners of highways.
They are to warn all persons assessed to work
<>n the highways. (Sec. 3.) They cannot com-
l»el persons to work. In case of neglect, they
can only complain to a justice of the peace,
who may issue a warrant to levy the lines.
(Sec. 9.) If this action can be maintained, an
overseer might be obliged to repair a road at
his own expense.
Again ; if an action lies against the over-
seers for a breach of duty, the plaintiff ought
to state, in his declaration, what the duty is,
and show how it ha-s been violated. A mere
iir>J2*] general *averment of a breach of duty
is not sufficient. It is too general and in-
definite. The defendant cannot come pre-
pared to meet it. It is one of the first prin-
ciples of pleading, a* Mr. Jiittire Buller ob-
serves, to state facts for the purpose of inform-
ing the court, whose duty it is to declare the
law on those facts, and to apprise the opposite
party of what is meant to be proved, in order
to g"ive him an opportunity to answer or
traverse it. (1 Doug., 159.) Where the law
presumes the affirmative of a fact, the negative
must l>e proved by the party averring it in
pleading. ( William* v. En*l fndin Co., 3 East,
192.) And where an act is required to be
done by a |>erson, the omission of which
would be a criminal neglect of duty, the law
presumes the affirmative. So here, the law will
presume the overseer did his duty in this case.
The statute prescribes penalties, but gives no
action against the overseer. The plaintiff
should show that the commissioners made the
assessment and delivered the warrant to the
overseers, and that they had the means of
making the repairs.
Mr Fnot, contra, said that he did not pre-
tend that an action would lie on the statute,
further than what arises from its being made
the duty of the overseers of highways to keep
the roads and bridges in repair. Ashurst, ./.,
in Tlus King v. Nhejflsld, admits that if it was
the duty of any particular person to repair,
an action would lie against him. The prin-
ciple on which this action is brought is this,
that where a public officer neglects his duty,
by reason whereof a person is injured, an
action on the case lies against such officer,
JOHNS. RKP., 15.
at the suit of the party injured by such cul-
pable omission. (3 Bl. Com., 128; Jenner v.
Juliffe, 9 Johns., 381 ; Cro. Jac.. 446, 478; 1
Ld. Raym., 486 ; Co. Litt., 56 a.)
As to the objection that we have not prop-
erly alleged what was the defendant's duty,
nor that the commissioner delivered him the
assessment list, or directed him to repair this
particular bridge, the answer is, that these de-
fecta are cured by the verdict. (1 Chilly's PI.,
318; 1 Saund., 238, «. 1 ; 1 Johns., 276.)
In Totentend v. Pr&idfHt and Dirertvr* of
Susquehannah Turnpike Co., 6 Johns., 90.
which was an aclion on *lhe case, for (*25IJ
Ihe injury sustained by the plaintiff, by the fall
of a bridge on the road, the court held the
action maintainable.
Mr. Orary, in reply, said that in the case of
Ttnrntend v. The Su«quehannah Turnpike Co.
the defendants were owners of the highway,
and received a toll from the passengers, and
were bound, by the Act of their incorporation,
to keep the road in repair. Here the defendant
had no interest in the highway or bridge. It
was nol his particular duty to" keep this bridge
in repair, but the whole town, or the occu-
piers of the adjoining land were bound. The
only evidence of any neglect of duty in Ihe
defendant is the accident which happened t<>
the plaintiff's horse.
But if the defendant was liable, he could
not be made so on this declaration. It should
be shown that the plaintiff had power and
authority to do the act, the omission of which
is made the ground of action. (5 Corny n's
Dig., 590, Pleader, O.) The overseers have
no power but what is derived through the
commissioners of highways.
SPENCER, ./., delivered the opinion of tin-
court :
This is a writ of error to the Common Pleas
of Washington ; and the error relied on is,
that the declaration contains no cause of
aclion. The declaration sets forth, in sub-
stance, thai Barllelt was duly chosen and
qualified, according lo law, an overseer of
highways, for district number fourteen in the
town of Salem, and took upon him Ihe office ;
lhat, disregarding his duty in that behalf, and
wholly neglecting the same, he willfully suf-
fered a certain bridge in said district, and on
a public highway therein, to be and remain,
for the space of three months, broken, danger-
ous, and unfit to be traveled over, he well
knowing the premises ; and that, during lhat
time, Crozier was driving a certain mare,
whereof he was, possessed, over the said
bridge, and by reason of Bartlelt's willful
negligence, as aforesaid, in not repairing said
bridge, the said mare fell throng^ the same,
and broke her leg, whereby, «fec.
This is the substance of all the counts. To
these the defendant pleaded not guilty. The
jury found him guilty, and assessed the plaint-
iff's damages.
*The broad question is. whether a [*2<>4-
public officer, who willfully neglects bis duty,
is responsible to any individual who suffers
damage and loss in consequence of that neg-
lect.
A preliminary objection deserves first to be
disposed of. It is insisted thai it is not averred
108t
THOMPSON v. LOCKWOOD.
1818
that the commissioners of the town had done
their duty in providing materials for the repair
of the bridge, nor taken the steps required of
them ; and that it is not alleged that the de-
fendant below had the means of making the
necessary reparation. It is a settled rule, that
if the issue joined be such as necessarily re-
quired, on the trial, the proof of facts either
imperfectly stated or omitted, and without
which it is not to be presumed that the court
would direct, or the jury give the verdict, such
defect or omission is cured by the verdict. (1
Saund., 228 «.)
The declaration charges a willful neglect of
duty on the part of the overseer, and this pre-
sented the very gist of the inquiry ; it would
not have been a willful neglect of duty, or any
neglect at all, if the default in repairing the
bridge could have been attributed to the com-
missioners, or if the overseer had not the
means in his hands to repair it, or if he had
been ignorant of the want of repair, unless the
ignorance was culpable : and we must now
consider it as established by the verdict that
there was an omission of duty on the part of
the overseer, or else the verdict could not have
been given.
There can be no doubt, under the Act to
Regulate Highways, that it is the duty of the
overseer of highways to repair the bridges
within his particular district. (2 R. L., 270,
sees. 3, 28.) All, therefore, that has been
urged as to the duty to repair roads by the
owners of the ad joining land, atcommon law, is
entirely inapplicable.
It is a general principle of law, that wherever
an individual has sustained an injury, by the
misfeasance or nonfeasance of an officer, who
acts, or admits to act, contrary to his duty, the
law affords redress by an action on the case
adapted to the injury. Lord Kenyon. in the
case of Russell v. The Men of Devon, 2 T. R.,
671, admits that an action will lie by an indi-
vidual for an injury sustained by omitting to
repair a road, against any other individual
255*] bound *to repair it*, though he did not
think the action lay at common law against
the county.
Without multiplying references, the prin-
ciple on which this action rests was 'recog-
nized by this court in the case of Towmend
v. The Susquehannah Turnpike Go., 6 Johns.,
«<).)
That was an action founded on an injury
done the plaintiff in the loss of a horse, by
reason that one of the bridges of the corpora-
tion was so ruinous as to fall, when the plaint-
iff was crossing it with his horses. The court
held that the action was sustained, on the
ground that the Corporation was bound to be
stow ordinary care in the construction and re-
pair of their "bridges.
The duty of the Corporation in that case
was an implied one, resulting from their own-
ership of the road, and the reception of toll.
In the present case, the duty results from the
acceptance of an office, that it shall be well
and faithfully executed ; and whoever suffers
from its unfaithful execution, must have his
remedy. It stands on the same principle as
actions against ministerial officers for their
neglect to execute their offices, to the injury of
another ; as against a sheriff for not serving u.
1082
writ, or against an innkeeper for refusing to
I receive and accommodate a traveler.
Judgment affirmed.
Reversed— 17 Johns., 439.
Cited in— 7 Wend., 238 ; 23 Wend., 450 ; 25 Wend.,
| 441 ; 44 N. T.. 134 ; 3 Allen, 168, 169 ; 63 Pa. St., 297
*THOMPSON v: LOCKWOOD. [*256
Sheriffs — Prisoner in Execution — Escape of, Al-
lowed by Sheriff— New Process— Joint and
Several Jail Bond — Given upon Re-arrest on
Old Process — Void for Dure»$ — Obligee Cannot
Plead Duress of Co-Obligee — Witnesses — Fees.
Where a sheriff voluntarily permits a defendant
in execution to escape, he cannot arrest or detain
him, unless the plaintiff in the execution issues a
new process ; nor can he retain him on his surren-
der, unless the plaintiff in the execution does some
j act showing his election to hold him on the old
process.
It' the sheriff arrest the defendant again on the
same execution, and take from him a bond for tin?
jail liberties, jointly and severally with another per-
son, as his surety, such bond is void for duress, not
only as to the defendant, but, also, as to the surety.
One obligee cannot plead that the bond was ob-
tained of his co-obligee by duress.
But this rule does not apply to a bond tftken by a
sheriff from a defendant whom he has no right .to
detain in custody ; and the co-obligee or surety may
avail himself of the defense of duress, in a several
action against him.
Citations— 2 Johns. Cas., 2 : Co. Litt., 253 ; Jenk.,
166 : 2 Inst., 482 ; Cro. Jac.. 187 ; 1 N. R. L.. 423, 424,
427 : Bac. Abr. Oblig., E, 3; Bacon, tit. Bond, K.
IN ERROR, to the Court of Common Pleas
of the County of Orange.
The defendant in error, who was sheriff of
the County of Orange, brought an action in
the court below, against, the plaintiff in error,
as surety in a bond for the jail liberties.
At the trial, in the Seplember Term, 1817,
of the court below; the plaintiff below gave in
evidence a bond executed to him, as sheriff,
by William Lawrence and the defendant be-
low, dated May 27th, 1816, by which they
bound themselves jointly and severally, in the
sum of $124.34, with condition that Lawrence,
being in custody by virtue of two writs of
capias ad satisfaciendum, should remain a true
and faithful prisoner, and should not escape
or go without the limits, &c. The writs of ca.
sa. mentioned in the condition of the bond, and
the departure of Lawrence from the limits,
were admitted on the part of the defendant
below.
The counsel for the defendant then offered
in evidence, under the notice annexed to his
plea, in bar of the action, that previous to the
execution of the bond, Lawrence had been
twice arrested by Van Duzer, one of the depu-
ties of the plaintiff below, by virtue of the two
executions before mentioned ; that previous to
the third arrest and imprisonment of Lawrence,
on the day of the date of the bond, he had
been twice voluntarily discharged, and per-
mitted to escape, by Van Duzer, who had re-
ceived a compensation for such discharge and
permission. The court ruled that the evidence
w£fe insufficient to bar the action, and the jury
thereupon found a verdict for the plaintiff be-
low. The defendant tendered a bill of excep-
tions to the opinion of the court below, which
was removed into this court by writ of error.
JOHNS. REP., 15.
THOMPSON v. LOOKWOOD.
2S«
Mr. W. A. Duer, for the plaintiff in error,
contended that the arrest and discharge from
imprisonment amounted to a satisfaction of
the debt. A voluntary disbargeby the sheriff
\v;i-, a- it respects him, a paynent ; and his
22o7*] power to arrest *was at an end. He
could not maintain an action «gainst the
prisoner to recover the money. Although a
discharge of the defendant, without the au-
thority or consent of the plaintiff, mav not
bind him, yet even the plaintiff would be
obliged to sue out a new writ, on the ground
that the former ra. »a. was a nullity, or had
not been returned. It is against all legal rea-
son that one writ can be twice operative, and
produce the same effect. By the first finest,
the writ has been olwyed, and has performed
its proper funct|on ; and after a voluntary
discharge, the sheriff cannot arrest a second
time. If he does so. he is liable to a°n action
for false imprisonment. The authorities are
explicit and conclusive. (iMnsing v. fleet, 2
Johns. Can., 8 ; Holmes v. Anting, 3 Johns.
Cas.,73; Palmer v. Hatch, 9 Johns., 329 ;
Atkinson v. MatUton, 2T. R. , 172, per Grose, ,7. ;
. 1 '/.•//!*"/« v. Jameson, 5 T. R, 25 ; Barnes, 373;
Tillmansr. Lansing,^ Johns., 45, per Thompson,
J. ; Clarke v. Clement, 6 T. R, 525 ; Tanner
v. Hague, 7 T. R, 420 ; Vigers v. AMrich, 4
Burr.. 2482 ; Jacque» v. Withy, 1 T. R.. 557 ;
Wheeler v. Bailey, 13 Johns., 366; Yate» v.
Van RcnsMlaer, 5 Johns., 364 ; Barnes, 205 ;
Blackburn v. tituart, 2 East, 243.)
If, then, the sheriff, after a voluntary es-
cape, cannot make a second arrest, there is an
f nd to the question. The bond is void. The
sheriff cannot, adore offieii, take a bond for
security for a debt for which he has already
received satisfaction. He cannot in this suit
obtain, indirectly, what the law would not
allow him to recover directly from the pris-
oner. As the sheriff must, as preliminary
proof to his action, produce the writ under
which he acted, the defendant below may show,
by way of defense, that the debt was satis-
lied, and the sheriff fraudulently exacted the
bond.
Mr. lirtt*, contra. Tin- sheriff hud the as-
sent of the defendant in the execution to the
arrest. He was a party to the bond given for
the liberties, and having executed it, with a
knowledge of his rights, he must be bound bv
it. (Acldey v. Ifon/sinx, 14 Johns., 374, 376")
12."»8*J The bond is taken for *the indemnity
of the sheriff, and to save him harmless.
(Knrry v. Mnniiell, 10 Johns.. 563 ; Till man v.
Jsi using, 4 Johns., 45; M' Elrvy v. Manrin*,
13 Johns., 121.) Is not the surety equally
bound 1 Can he avail himself of the circum-
stance of the prior voluntary escape? It is
sufficient that he executed the bond volun-
tarily, and for a good consideration. The
deeof imports a sufficient consideration, and is
binding, unless shown to be illegal and void.
The surety cannot urge that his principal was
exempted from the arrest, for he might waive
that exemption. (I^eal v. Wiyram, 12 Johns.,
88.) Admitting that Lawrence might avoid
the bond for duress, yet the surety in a
bond cannot avail himself of such a ground
of defense. ( Hiucombe v. Standing, Cro.
James, 187; 5 Comyn'H Dig., 644. Plead., 2,
W. 19.)
JOHNS. REP.. 15.
SPENOEK, J., delivered the opinion of the
court :
This is a writ of error to the Common Plea.-*
of Orange Countv. The defendant here, who
was the plaintiff below, sued on a joint and
several bond, entered into by the plaintiff in
error and William Lawrence, to the defend-
ant, as sheriff of the County of Orange, con-
ditioned that Lawrence would remain a true
and faithful prisoner on two writs of <•</. «a.
issued out of the Common Pleas of Orange,
and not escape or go without the limits of the
jail liberties of that county.
We are to intend from the bill of exception*
that the plaintiff l>elow proved everything
necessary to entitle him to recover; the bill of
exceptions having been tendered to the opinion
of the court in overruling the defense set up
at the trial.
Under a notice to the plea, it was offered to
be proved that Lawrence had been twice ar-
rested by a deputy of the sheriff, on the same
executions, and Lad been twice voluntarily
discharged and permitted to escaj>e by such
deputy, to whom compensation had been made
for such permissions to escape before the ar-
rest on the same process, and under which the
bond was given ; this evidence, being objected
to, was overruled.
The principle now insisted on is that it was
not competent to the sheriff to re-imprison
Lawrence, after his deputy *had per- [*25J>
milted him to escape ; and that the bond ex-
acted from Lawrence on the third arrest, after
his voluntary escape, was taken illegally, and
is void.
The case does not show any act of the
plaintiff in the executions affirming the arrest
of Lawrence under them; it cannot, then, be
distinguished from the case of /rinsing v.
Fleet, 2 Johns. Cas., 2. That case was well
considered and very ably discussed, and it
settles the point, that after a voluntary escape
the sheriff cannot lawfully retake or detain a
prisoner, unless the plaintiff in the execution
shall issue a new process ; nor can he sustain
on the surrender of the prisoner himself, un-
less the plaintiff in the execution does some
act showing his election to hold him on the
old process. It is useless to review the cases
cited in that case, a-s they are extremely well
examined.
The next point is whether, if the bond is
void as to Lawrence on account of duress,
Thompson can set up that defense. It is
clearly settled that where a person is illegally
restrained of his liberty, and whilst under
such restraint enters into any obligation to the
person causing the restraint, it is avoidable for
duress of imprisonment. (Co. Litt., 253 ; Jenk.,
166 ; 2 Inst., 482.) %
But it is answered that this bond being joint
and several, and Thompson l>eing a surety, he
cannot avoid the bond for duress as to Law-
rence ; and the case of Ihiwnnbe v. Standing,
Cro. Jac., 187, has been referred to in support
of the position. As a general principle, it
cannot be controverted, that if a bond be ob-
tained from A and B by duress against A, B
cannot plead the duress against A to invalid-
ate the in -ml against him. This, however, is
applicable to cases depending on common law
principles, and where there is no statutory
10s;j
259
SUPREME COURT, STATE OP NEW YORK.
1818
provision interposed. Sheriffs can take no
bond or other security, in matters relating to
the execution of their offices, but only to them-
selves, and by the name of their office, with !
such conditions as the law prescribes ; and any !
obligation taken by a sheriff in other form, by j
color of his office, is declared void. (1 N. R. j
L., 423, 424.) And the Act Relative to Jail
Liberties (1 N. R. L. , 427), making it the duty
of sheriffs to let prisoners, on civil process, |
26O*] *go at large within the limits of the |
liberties, on giving security, is a mere modifi- i
cation and extension of the former Act. Per- I
haps, as the bond here taken was in the terms j
prescribed by the Act, it cannot be said to be j
void, as being taken colore officii. But the j
taking the bond was unlawful, and the condi-
tion itself was void. Lawrence could not re- \
main a true and faithful prisoner upon execu-
tions on which the sheriff had no right or
power to detain him. The bond had no more '\
validity than if the sheriff had taken it with- ,
out any execution in his hands against Law- j
rence. A condition that a man shall not plough j
his land, or go out of his house, being in re- !
straint of a common right, is void. (Bac. Abr. , ;
Oblig., E, 3.) Conditions in restraint of trade
have been adjudged, repeatedly, to be void ;
and among other reasons, as against the pub-
lic good, by depriving the party of his means j
of livelihood. (Bacon, tit. Bond, K.)
Judgment reversed.
Cited in— 19 Johns., 235 ; 1 Wend., 403 : 5 Hill, 255 ;
2 Edw., (502; 23 Hun, 419; 6 Abb. Pr., 207; 1 Curt.,
143 ; 40 N. J. L., 375 ; 62 Ind., 455 ; 38 Ind., 517 ; 90 Pa.
St.. 165.
BAKER v. BRILL.
Evidence — In Action by Witness to Recover Fees.
In an action by a witness to recover his fees from
the party who subpoenaed him, he mav give parol
evidence that he attended before the court, and
was examined.
TN ERROR, on certiorari to a justice's court.
The defendant in error brought an action in
the court below against the plaintiff in error,
for his expenses in going from Dutchess
County to New York, in obedience to a' sub-
po3na, issued out of the Mayor's Court of the
City of New York, on the behalf of the de-
fendant below. The service of the subpoena
was proved, and the plaintiff below also
proved, by parol, that he attended the court
and was examined as a witness in the cause.
The defendant below insisted that these facts
could only be proved by producing the record
or minutes of the court, and not by parol
proof : the justice, however, overruled the ob-
jection, and. judgment was rendered for the
plaintiff below.
261*] *Per Curiam. The justice properly
admitted parol evidence, and the judgment
must be affirmed.
Judgment affirmed.
JACKSON, ex dem. VAN ALEN,
v.
C. I. HAM.
Ejectment — Conveyance mihout Consideration
1084
to Qualify Voter — Reconveyance during Pen-
dency of Action for Tort — Is not Void.
A, in 1810, conveyed a lot of land to B for the
purpose of qualifying- him to bo a voter, no consid-
eration being- paid, and A still remaining1 in pos-
session. An action for a tort was afterwards com-
menced against B, and during1 its pendency, in 1814,
B reconveyea the lot -to A. A judgment was ob-
tained against B, and the lot was sold under execu-
tion. Heid, in an action of ejectment brought by
the purchaser against the tenant in possession, that
the reconveyance, not being- made to defraud cred-
itors, was not void by the Statute of Frauds ; nor
could it be avoided by the.purchaser under the exe-
cution, although a purchaser for valuable consid-
eration; for those voluntary deeds which the
statute avoids as to a subsequent purchaser must
have been made with intent to deceive, the evi-
dence of which is the voluntary conveyance,
coupled with a subsequent agreement to sell, which
cannot be the case where the purchase is made, not
of the party, but through the intervention of the
law.
Citations— 27 Eliz., ch. 4; Hob. Fraud. Conv., !i5.
THIS was an action of ejectment, which was
tried before Mr. Justice Van Ness, at the
Columbia Circuit, in 1816.
The plaintiff's lessor claimed as purchaser
under an execution against Wendell C. Ham,
and gave in evidence a judgment in ay action
for a tort in favor of D. Van Alen asainst W.
C. Harn, for $1,019.20, docketed on the 1st of
November, 1815, an execution issued thereon,
tested in October, 1815, and returnable in
January Term, 1816, and a deed from one of
the deputies of the sheriff of Columbia to the
lessor of the plaintiff, dated March llth, 1816.
The defendant was in possession of the prem-
ises contained in the deed. It appeared that
the defendant, in the spring of 1810, gave his
son, Wendell C. Ham, a deed for part of the
land contained in the sheriff's deed, expressed
to be for the consideration of $250, no part of
which, however, was paid; and the intent of
the conveyance was to qualify his son to be an
elector in that year. On the 9th of July, 1814,
W. C. Ham reconveyed to the defendant, by
deed of that date, in which the consideration
was stated to be $250. The reconveyance was
subsequent to the commencement of the suit
in which the execution issued.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on a case con-
taining the facts above stated.
*Mr. VanBuren, Attorney-General, [*2O2
for the plaintiff, contended that the deed of
W. C. Ham to the defendant was a mere vol-
untary conveyance, and was fraudulent and
void as against creditors and bona fide pur-
chasers. He cited Verplanck v. Sterry, 13
Johns., 536, in error: S. C., 1 Johns. Ch.,
261, 268 ; Doe, ex dem. Ottley, v. Manning, &
East, 59-71.
Mr. E. Williams, contra, insisted that this
was not a voluntary conveyance ; that the deed
expressed a consideration of $250, acknowl-
edged to have been received by the grantor,
and which had not been disproved. The de-
fendant ought to have shown, satisfactorily,
that it was a mere voluntary conveyance.
SPENCER, J., delivered the opinion of the
court :
The lessor of the plaintiff claims as a pur-
chaser under a sale made by the sheriff of Co-
lumbia County, upon an execution founded on
JOHNS. REP., 15.
1818
JACKSON, KX DKM., v. BKOWN.
362
a judgment, docketed the 1st of Nov., 1815,
against Wendell C. Ham ; and it appear* that
the defendant, in April, 1810, gave a deed to
Wendell for about twenty acres of his farm,
for the nominal consideration of -$i50, but
which was not paid, to make him an elector.
The defendant produced a deed from ^Vendell
to him, dated in July, 1814, reconveying the
-.-inn- land for the expressed consideration of
$250. The judgment against Wendell was for
a tort, and the suit was commenced prior to
the reconveyance. . •
The PI ' in i is, whether the reconveyance by
Wendell to the defendant was fraudulent and
void as against the purchaser at the sheriff's
sale.
I cannot consider the deed of 1814 as a fraud
ul- ni or voluntary deed within the purview
of the Statute for the Prevention of Frauds ;
nor, under the circumstances of this case, can
I consider the lessor of the plaintiff as entitled
to make the objection that it is either a fraud-
ulent or voluntary deed.
It certainly was not made to defraud cred-
itors ; for there was no debt in existence when
it was given. It was not mtidc with the intent
!2<S;j*Uo defraud David Van Aleii of any *law-
f ul action, and must be considered as the mere
reconveyance of an estate conveyed for tem-
porary purposes, and intended and expected
to be reconveyed. This is to be inferred from
the fact that" no consideration was paid by
Wendell to his father, and from the fact, also,
that the father continued in possession.
The first deed may be said to have been a
fraud on the election law ; but, as between
the parties, it was a valid deed. In consider-
ing whether the reconveyance was fraudulent,
we have a right to regard the prior deed,
which we find to have been entirely gratuitous;
and even if it be admitted that no considera-
tion was given for the reconveyance, yet, in-
asmuch as possession was never taken under
the first deed, and consequently, Wendell
never acquired any false credit from it, no one
was deceived by it.
The lessor of the plaintiff, though certainly
a purchaser for valuable consideration, could
but know that he wa« buying contested prop-
erty, which he took for better and for worse;
and we have a right to say that he knew
that the deed from the defendant to Wen-
dell was merely for the purpose of making
him an elector, and that it had been given up.
Those voluntary deeds which may be avoided
by a subsequent purchaser under the 27 Eliz. ,
<-lY 4, are such an are made with intent to
deceive suck purchaser ; and this intent to
deceive is evidenced bv a voluntary convey-
ance, coupled with a subsequent agreement to
sell again ; and it is not merely the accomplish-
ment of the deceit on the purchaser which
constitutes the fraud, but the deceitful inten-
tion in the seller manifested by his proceeding
to the second sale. (Roberts on Fraud. ( 'on-
v<-\ . 85, and the cases there cited.) Here the
seller is passive, and the lessor of the plaintiff
is not a purchaser from him. but through the
intervention of the law.
Judgment for the defendant.
Cited in is Johns.. 427 ; 8 Cow., 460.
JOHNS. HKP., 15.
. 'JACKSON, ex dem.Giu.KT KT AI,., [*2«4
t>.
BROWN.
tijjettntent — Conwya.net by Indian Patentee —
Appn>batu>H of Surreyor-Ueneral — Indorte-
mtnt of.
A conveyance by an Onclda Indian, in 1791. being
previous to the Act of the 4th of April, 1801 (see the
i Act Relative to the Indians within this State, imaged
10th of April, ixia, seas. 3«, eh. Vti;2 H. X. L.. 158), of
land of which he was -. j-.-.i in his individual ca-
i -ii'-it y . ami distinct from his tribe, us the hen* of an
I ii'li.m to whom it w:i> granted by the State, for his
services during the Revolutionary War. is valid (S.
i P., Jackson v. Sharoe, 14 Johns., 472), although
> umde without H|x»cial authority from the Legisla-
I turv, and without the approbation of the Purveyor-
General.
The approbation of the Surveyor-General to the
i deed of an Indian patentee, in- hi- heirs, in pursu-
ance of the .Vit h section of the Act (sens. M, oh. fit! :
j 2 N. H. L.. 172). to a deed that is void and inoper-
i ative, docs not preclude him from afterwards glv-
j my his assent to a valid and operative deed from the
same grantor for the same land.
The indorsement of his approbation on the deed
need not state hit* reasons forgiving it. " lappmti-
: of the within deed," is sufficient.
Citations 14 Johns.. 472 : Act April 10. 1*13, sec.
j .W; Act March 2. 1810.
THIS was an action of ejectment brought
to recover part of lot No. 16, in the town
of Junius, in the County of Seneca. Issue
was joined in February. 1816 ; and the defend-
ant, afterwards, in August Term, 1816, pleaded
puix dai'reiit continuance, that the plaintiff
ought not further to have and maintain his
action on the demise of David Tewahangarah-
kau, one of the lessors, because David had, on
the 25th of July, 1816, by his indenture, duly
approved by the Surveyor-General, granted,
bargained, sold, and released the premises in
question, and nil action and actions in relation
thereto, to the defendant and his heirs. The
cause was tried before Mr. Justice Spencer, at
the Seneca Circuit, in June, 1817.
Letters patent for lots Nos. 4 and 16, in the
town of Junius. were, on the 29th of January,
1791, issued to HonyostTewahangarahkan, an
Oneida Indian, and a lieutenant in the line of
this State, who was killed in 1779, for his ser-
vices in the Revolutionary War. Honyost
left two sons, Honyost and' the lessor David,
who is an Oneida Indian, residing with the
Oneida tribe. On the 31st of December, 1791,
Elizabeth and Honyost, the widow and one of
the sons and heirs of Honyost, the patentee,
by deed, without authority from the Legisla-
ture, or the approbation of the Surveyor-
General, conveyed the two lots Nos. 4 and 16,
in consideration of .£10, to Cornelius A. Van
Slyck, who, in December, 1792, conveyed to
J. Atkinson; who, afterwards, conveyed the
same to James Fisk. Fisk, in March, 1808.
conveyed the premises in question to Cass.
who, on the 9th of July, 1811, conveved the
same to the defendant. On the 1st of August.
1792. one Honyost Tewahangarahkan, a Cay-
uga Indian, who was admitted to have no in-
terest, conveyed the two lots to P. Campbell,
who, in October, 1797. conveyed the same to
D. Matthews. The defendant and those under
whom he *claims had been in pos- [*U<$/>
session of the premises, claiming title, since
the year 1803. By indenture, dated May 26th,
1809*. Honyost and David, the sons and heirs
1085
365
SUPREME COURT, STATE OF NEW YORK.
1818
of the patentee, in consideration of $2,000,
"ranted the two lots, Nos. 4 and 16, to the
lessor Gillet, in fee. On this deed was indorsed
the certificate of the Surveyor-General, that it
appeared to him that it had been fairly ob-
tained ; that the consideration was competent,
and had been sufficiently secured, in conse-
quence of which he indorsed his approbation.
By indenture, dated the 25th of July, 1816,
the lessor David, reciting that he claimed an
undivided moiety in Lot No. 16, in considera-
tion of $80, released to the defendant and
several other persons, being in possession, and
their heirs, all his interest therein, and also
released all actions and demands in relation to
the same. This was the release mentioned in
the defendant's plea, pnis darrein continuance.
The Surveyor-General's approbation was in-
dorsed in these words : " Surveyor-General s
office, Albany, July 27th, 1816. I approve of
the within deed. Simeon De Witt, Surveyor-
General." To show that the consideration
mentioned in the release was incompetent, it
was proved, on the part of the plaintiff, that
the lot, at the time of the execution of it, was
worth $12,000.
A. verdict was taken, by consent, for the
plaintiff, subject to the opinion of the court
on a case containing the facts alxwe stated.
The case was argued by Messrs. Sill and
Brown for the plaintiff, and Mr. Cody for the
defendant.
SPENCER, J., delivered the opinion of the
court :
The lessors of the plaintiff claim a right to
recover one half of the lands in the defendant's
possession, either under the deed from David,
the Indian, as one of the two heirs of his
father, to Gillet, of the 25th of May, 1809, or
else upon the demise of David.
Since the case of Jackson v. Sharp, 14 Johns.,
472, there can be no doubt that the deed of
the 31st of December, 1791. from the widow
and one of the sons of the patentee, is a
— O6*] *valid deed ; but if it were not, the de-
fendant, or those under whom he claims, en-
tered on the premises in 1803, under claim and
color of title ; and consequently, the convey-
ance to Gillet in 1809 was void and inoper-
ative.
The right to recover on the demise of David
will depend on the right of the Surveyor-Gen-
eral to give his assent and approbation on the
release of the 25th of July, 1816, to the defend-
ant and several others.
The objections to this deed are : 1st. That
the Surveyor-General, having given his appro-
bation to the deed from David to Gillet, his
power was exhausted, and he could not give
his approbation to any other deed from the
same Indian for the same land ; and, 2d. That
the approbation is informal and defective.
By the 55th section of the Act Relative to
the Different Tribes and Nations of Indians
within this State, passed 10th of April, 1813
(2 N. R. L., 158), the heirs of the Indians to
whom land was granted for military services
in the Revolutionary War, were rendered ca-
pable of taking and holding by descent ; and
every conveyance thereafter to be executed by
the patentee, or his heirs, to any citizen of the
State, for any such land, was declared to be
108«
valid, if executed with the approbation of the
Surveyor-General, to be expressed by an in-
dorsement on such conveyance, and signed by
him.
By an Act of the 2d of March. 1810, the Sur-
veyor-General was authorized to ascertain
whether legal conveyances made by an Indian
patentee of lands granted for military services
in the Revolutionary War, or their heirs, had
been obtained fairly, for a competent consid-
eration paid, or property secured, to be paid
to the grantors, before he indorsed his appro-
bation, in pursuance of the Act for the Relief
of the Heirs of the Oneida Indians.
If the deed to Gillet was void for mainte-
nance, in consequence of an adverse possession,
j it would seem to me that the approbation of
the Surveyor-General would follow the fate of
the principal or subject matter, and that it
would be a void execution of the power in-
trusted to him. His assent being given to a
deed that could have no effect or operation in
law, was not an execution of the power vested
in him, and could not preclude his approving
of a valid deed. Indeed, *the Act of [*267
1810, which confers the authority on the Sur-
veyor-General of approbating deeds given by
Indian patentees, or their heirs, restricts ihe
approbation to legal deeds ; the deed, then, to
Gillet not being legal, the approbation on that
ground was void, and being void, it is a nullity.
The second point is untenable. The Act of
the 13th of April, 1813, requires only the ap-
probation of the Surveyor-General to be ex-
pressed by an indorsement on the conveyance;
he is not required to set forth the reasons or
inducements to such approbation, and the one
given in this case is a compliance with the Act.
Judgment for the defendant.
Overruled— 20 Johns., 693.
Cited in— 17 Wend., 538 ; 1 Hill, 124.
SEELEY t>. BIRDSALL.
Sheriffs — Action against for False Return —
Pleading — Distinction beticeen Acts done Co-
lore Officii and Virtute Officii.
An action on the case against a sheriff for a false
return, is within the provisions of the Act for the
more easy Pleading in Certain Suits (March 21, 1801,
sees. 24, ch. 47, sec. 4; IN. K. L., 155); and the plaint-
iff is bound to show that the cause of action arose
within the county where he has laid his venue.
There is a distinction between acts done colore
oificii and virtiite offlcil ; in the former case, the act
being of such a nature that his office gives him no
authority to do it, the sheriff is not protected by the
Statute : but where, in doing an act within the
limits of his authority, he exercises his authority
improperly, or abuses the confidence which the law-
reposes in him, these are cases to which the Statute
applies.
Citations— 1 R. L., 155, sec. 1 ; 1 Wils., 336.
was an action on the case against the
JL defendant, late sheriff of the County of
Seneca, for a false return on a writ of fieri
facias, issued out of this court, at the suit of the
plaintiff, against W. I. Seeley. The cause was
tried before Mr. Justice Spencer, at the Circuit
in Cayuga County, where the venue* was laid,
in June.' 1817.
The plaintiff recovered a judgment against
W. I. Seeley for $3,988 of debt, and $14.43
JOHNS/ REP., 15.
1-1-
SKILDING r. WARREN.
damages and costs. A fieri fatia» was issued
thereon, to which the defendant returned that
he had sold all the goods and chattels of W.
I. Beeiey to be found in his bailiwick, and that
be had made out of the same the sum of $10.25,
and that he had advertised for sale all his
right and title to a certain lot of land. It was
proved that one of the defendant's deputies had
ti(J8*] levied on property of W. I. *Seeley,
to the amount of $800 or* $400 ; that the de-
fendant recognized the levy ; and that being
requested by the plaintiff to sell, he refused,
and never had sold the property levied on.
The defendant's counsel moved that the
court would charge the jury to find a verdict
for the defendant, because the plaintiff had
not proved any act done by the defendant in
the County of Cayuga. The judjje, however,
charged the jury to find a verdict for the plaint-
iff, subject to the opinion of this court, and
thev, accordingly, found for the plaintiff.
.frr. Sill, for the plaintiff. The defendant
claims a privilege, or exception, which is to be
taken strictly. ^The Act (1 N. K. L., 155) re-
quires the fact, or cause of action, to be proved
to have arisen in the county where the venue
is laid. What is the fact, or cause of action,
in this case ? The return of the writ. From
the nature of the act of making the return, it
is impossible to prove where it was made. It
is a private act. and not within the intent of
the Statute. If it is necessary to show where
it was done, the court will intend that it was
done in the county where the venue is laid.
All presumption is against privilege ; and in
support of justice the court will presume in
favor of the plaintiff, and throw the proof of
the contrary on the defendant. In liogert v.
llildreth, 1 Cai., I, a mere transitory action
was held not to be within the county. In
Storm v. Wood*, 11 Johns., 110, which was an
action for a false return against the sheriff of
Washington, the cause was tried at Albany.
There are numerous cases of actions for es-
capes, in which this objection was never
made. (2 Caines, 46 ; 4 Johns., 45, 469.) The
action fora false return is transitory, as the
sheriff may make and deliver his return any-
where. (Griffith v. Walker, 1 Wils., 336.)
Mr. (.'tidy, contra. The privilege granted is
not for the mere personal l>enefit of the sheriff,
but for the sake of public convenience; as,
otherwise, a sheriff might be called out of his
county into every county in the State, to de
fend suits against him, to the great injury of
li<M>*] the public business intrusted *to his
charge. Since the Statute of 21 James I., ch.
12, which, except that sheriffs are not named
in it, is similar to our Act, actions against oftl-
, cers. which would otherwise be transitory, are
regarded as local.
In h>rd v. ftanci*, 12 .Mod., 408; S. P.,
Anon., 515, it was held that an action for a
false return was local, and the venue might be
laid either in the county where the return was
made, or in that in which it appeared of rec-
ord. (1 Com.. Dig.. 164, 165, 168. Action,
N. 8. N, 11.) Such was the law before the
Statute which has made no furl her change than
to confine the action to the place where the act
was done, instead of ils being, also, laid in
the place where the record is kept. The cases
in this court, which have been cited, were
JOHNS. RKP., 15.
actions of debt, not actions on the case. At
any rate, the venue should be laid in the county
i in which the sheriff resides, for there it must
i be presumed that he does all bis official acts.
Per Curiam. An action on the case against
a sheriff for a false return on an execution, is
, within the 1st section of the Statute (1 R. L.,
155) " for the more easy pleading in certain
; suits ;" and consequently, the burden of the
proof, that the cause of action arose within
i the county wherein the venue is laid, is thrown
, on the plaintiff, and the failure to give that
i proof entitled the defendant to a verdict of not
i guilty.
The words of the Statute are very plain and
perspicuous. If any action upon the case be
brought against any sheriff, &c., for or con-
j cerning any matter or thing by him done, by
. virtue of his office, the said action shall be
laid within the county where the trespass or
i fact be done and ^committed, and not else-
where ; and if, upon the trial, the plaintiff
, shall not prove that the cause of his action
j arose within the county wherein such action
is laid, in every such* case, the jury which
i shall try the same shall find the defendant not
guilty, &c.
The case of Griffith v. Walker. 1 Wils., 336.
which considers an action against a sheriff for
a false return as transitory, was prior to the
Statute, rendering actions against sheriffs for
acts done by virtue of their offices, local. The
true distinction is between an act done
color* officii and *virtute officii : in [*27O
the former case, the sheriff is not pro-
tected by the Statute, where the act is of
such a nature that his office gives him no au-
thority to do it ; but where, in doing an act
within the limits of his authority, he exer-
cises that authority improperly, or abuses the
confidence which the law reposes in him, to
such cases the Statute extends.
New trial granted.
Cited in-30 Johns., 213 : 4 Hill, 574 ; 4 N. Y.. 181 ;
8 Hun, 234; IK Barb., »0: 13 Abb. N. S.. 421 ; Edm..
385; ;i7 Wis., 44.
SKILDING AND HAIGHT t. WARREN.
Negotiable Paper — Accommodation Indorter —
Iiutolrency of Drawer — Notice not to Negoti-
ate— Party Taking irith Knowledge of Notice,
not Bona Fide Hohter — Witnexxe* — Partis*
Incompetent to Show Original Inralidity.
A note was Indorsed by the defendant for the ac-
commodation of the m.tk'Ts. who wen* then in pood
erexlit. Ik-fore ncKotiatiiur the note, they became
insolvent, and the defendant then directed them
not to part with it, which they |>romised. They
i-nt tn X/IOIT <»ri</imii (nvantnty of. See Bilker v. Ar-
old, 1 <'ai., 25K, note; Woodhull v. Holmes, 10
NOTE.— NepotiaMe napcr—Accomm<Miatwn paper—
lUr- isiitn (if. See Deniiiston v. Jiacon, 10 Johns.,
ins. Hi-it-, fora full di.scusnion.
Witnesnr#— ParHe* to tieaottablf pai*r incotnpe-
ti-nt tn
nold,
Johns., •'>!,
One hat'ina knmtiffiae nf framlitr illeydlit]/, if not a
bona flde holder. Kassnh v. Smith. 8 Wend., 4JJ7 ;
Cnm v. Vickery, 45 liarh.. 156 ; Weaver v. Banlrn.
4HX. Y.. 2xfl; Kyland v. Drown. 2 Heud.. 270; Hur-
ri-tiiirjrh Hank v. Meyer, « Serjr. & K., 537 ; Non-ell
v. Hudfrins, 4 Miinf.. 4(W: Fisher v. Inland, 4 dish..
45tf; Lenheim v. Fay. 27 Mich.. 70 ; Perkins v White.
36 Ohio St.. 530: D'rcsser v. Ky. Co., 93 U. S.. K»;
Hanauerv. Doar.e, 12 Wall.. 342.
10S7
270
SUPREME COUKT, STATE OF NEW YORK.
1818
afterwards passed it to the plaintiffs, with full
notice of all the circumstances, in satisfaction of a
debt due from them to the plaintiffs, which cov-
ered part of the amount of the note, receiving; from
the plaintiffs the balance in cash. The plaintiffs
brought an action on the note against the indorser.
Held that the plaintiffs were not I HUM .Me holders
of the note, and could not, under the circum-
stances, support the action ; and that as the defense
rested on matters arising subsequent to the exe-
cution of the note, one of the makers of it was a
competent witness to defeat the recovery ; and that
without a release, he being indifferent between the
parties.
A party to a negotiable instrument is inadmissi-
ble as a witness, to show it void at the time of its
execution ; but he is competent to testify as to
facts subsequently arising.
Citations— 10 Johns., 331 : 1 T. R., 296 ; 3 Johns.,
184.
THIS was an action ot a&tumpait, brought
by the plaintiffs, as indorsees of a prom-
issory note dated May 23d, 1815, for $500,
payable in six months, to Moses Warren, the
defendant, made by Gilchrist and Warren, and
indorsed by the defendant, Moses Warren, and
by Benjamin Smith.
At the trial before Mr. Justice Spencer, at
the Rensselaer Circuit, in December, 1817, the
counsel for the defendant admitted all the
facts requisite, in the first instance, to sup-
port the plaintiff's action, and then offered
Jonathan Warren, one of the jpiakers of the
note, as a witness in relation to the origin and
transfer of it. He was objected to by the
counsel for the plaintiffs on the ground that a
party to a negotiable instrument is an incom-
petent witness to impeach it ; but the objec-
tion was overruled, and the witness admitted,
who stated the following circumstances. The
note in question was an accommodation note,
indorsed by the defendant, without considera-
tion, to enable the makers, who were partners
in trade at Troy, to pay their debts, and carry
on their business. They expected to be able
to obtain the money from one Wiswall, who
271*] not being at home when the *note was
made, which was in the latter part of April, or
the beginning of May, 1815, the date of it was
left blank, and the makers had permission to
fill it up whenever they should obtain the
money. Disappointed in procuring it from
Wiswall, and in want of money, they filled up
the date on the 23d of May, and procured the
indorsement of Smith, and endeavored to ne-
gotiate the note, but were unsuccessful. In
the latter part of June, Gilchrist and Warren,
who had, until then, been in good credit,
failed, and became insolvent ; and soon after,
the defendant inquired of J. Warren, the wit-
ness, what had been done with the note, and
being told that it was still in their possession,
expressed his satisfaction, and directed them
not to part with it, which the witness
promised. Gilchrist and Warren were in-
debted to the plaintiffs in about $250, $70 of
which were borrowed money, and the residue
was on a note not then due ; and soon after
their failure, the plaintiff Haight called on
them for payment of the $70, which they said
they were unable to pay. Haight then pro-
posed taking the note in question, and after
deducting the amount of the account of the
plaintiffs, to pay them the balance. The wit-
ness told Haight that they could not part with
the note, and stated to him that the note was
indorsed by the defendant, without considera-
1088
tion, for their accommodation, when they
were in good credit ; that, since their failure,
the defendant had directed them not to part
with it, which they had promised, and that
they were insolvent, and unable to pay the
note, or to indemnify the defendant. 'Upon
this Haight proposed not only to pay the bal-
ance of $250, but to wait two years for the
payment of the note, and also to sign a letter
of license, giving them two years for the pay-
ment of their debts ; and" to exert the in-
fluence of the plaintiffs with their other cred-
itors to obtain their signatures to the same ;
and if they could not pay the note at the end
of two years, to give them further indulgence,
if there was a prospect of their being able to
pay it within a reasonable time. Two or three
conferences subsequently took .place in rela-
! tion to the subject, and finally, about the 3d
of July, Gilchrist and Warren delivered the
note to the plaintiffs, who, a few days after,
paid them the balance. The witness under-
stood the agreement of the plaintiffs *to [*2 7 2
wait for payment, to extend to the indorsers of
the note.
Upon this evidence, the jury, in conformity
to the charge of the judge, found a verdict for
the defendant, which the plaintiffs now moved
to set aside, and for a new trial.
Mr. Huntington, for the plaintiffs, contend-
ed that Warren was an incompetent witness ;
that no person whose name is on a negotiable
instrument is competent to prove it void in its
inception ; or, at the time he put his name on
it, and gave it currency. (Mann v. Swans, 14
Johns., 270; Walton v. Slwtty, 1 T. R., 296 ;
v. Arnold, 1 Cai., 258 ; Stille v. Lynch., 2
Winton v. Saidler, 3 Johns., Cas., 184; Bake,r
Dall., 194 ; Jordain v. Lasbroke, 7 T. R., 601 ;
Bent v. Baker, 3 T. R., 34 ; Peake's Cas., 40,
118 ; 1 Esp., 298.) The date of the note, in
this case, was immaterial. It took effect only
from its delivery (Lansing v. v Gaine & Ten
Eyck, 2 Johns., 300 ; 3 Esp., 108), or from the
time of its transfer, by indorsement to the
plaintiffs. Though made and executed, it had
no legal existence until it was indorsed ; and
the witness was called to prove a fact which
destroyed the note to which he had given cur-
rency, and was, therefore, inadmissible, on the
ground of interest.
This case is distinguishable from that of
WoodhuU v. Holme*, 10 Johns., 231. There
the note was drawn and delivered to the
payee, and by him indorsed to a third person,
for a particular purpose, who fraudulently
put it in the hands of a broker. (1 Day, 17 ;
3 Mass., 27, 365 ; 4 Mass., 156 ; 6 Mass., 449.)
Mr. Sutherland, contra. The only objection
at the trial was, that Warren was an incom-
petent witness, because his name was on the*
note, not on the ground of interest,
The general doctrine of the case of Walton
v. Shelly has not been considered as law in
England since the case of Jordain v. Laslibroke,
and the judges there, at N. P. , have uniform-
ly received persons whose names were on ne-
gotiable paper, to impeach it, unless interest-
ed. (Jones v. Brooke, 4 Taunt., 464; 1 Esp.,
176 ; Peake, 117 ; 5 Esp., 119 ; 13 East, 175 :
Phil., Ev., 32, 33.) *The principle [*273
of the case of Walton v. Shelly has, it is true,
been adopted in this court, and in the
JOHNS. REP., 15.
1818
SKIDLING v. WARREN.
273
Supreme Court of Massachusetts, but with
some qualification. Though the party to a
negotiable instrument is incompetent to prove
it void in its inception, tyet for any other pur-
pose, as to prove facts' subsequent to making
the instrument, he may be a witness, if not in-
terested. The rule in Walton v. Shelly, is found-
ed in public policy, and it is against public
policy to give currency to instruments exe-
cuted mala fide, or in violation of law. All
the cases, except that of Slille v. Lynch, 2
Dall.. I'.'l. in which the principle has been ap-
plied, arose out of gaming or usury.
In Jackson, ex dem. Alapet, v. Frost, 6
Johns., 135. the grantor of a deed was admit-
ted as a witness to prove it fraudulent, his in-
terest having been released. In Hill v. Peyson,
3 Mass., 559, the Supreme Court of Massachu-
setts held that the grantee of a deed was a
competent witness to prove it fraudulent. So,
in fairing v. Shippen, 2 I Jinn.. 154, the as-
signee of a bond was admitted as a witness to
prove that it was fraudulently obtained by
him. In an action of debt on the Statute
against bribery, the party bribed is a compe-
tent witness to prove it. (Sayer, 289 ; Cowp.,
197.) The guilt of the witness is no objection
to his competency, but goes only to his credit.
{Phill. Ev., 33.) Accomplices are compe-
tent witnesses. The doctrine of the case of
Walton v. Shelly is strictly confined to negoti-
able paper, and the reason of it is founded in
commercial policy.
The proof offered must be .such as goes to
show the note void in its inception, or original
•creation, and to destroy it totally. The case
of WoodhuUv. Holmes, 10 Johns., 231, is anal-
ogous and in point. (6 Mass., 430; 7 Mass.,
470.) A party to a negotiable paper, it was
there held, may be a witness to prove facts
subsequent to its creation, and which go to
show that the holder .has no right to recover.
SPENCER, J., delivered the opinion of the
court:
ft cannot be useful or necessary to review all
the cases, upon the question whether a party
1274*] whose name is on a negotiable *paper
can be admitted as a witness to impeach it, by
testifying to facts arising subsequent to the
execution of the note.
We have decided that, from principles of
public policy, a man whose name is on such
paper cannot be admitted to show it void for
usury, or for any other cause, at the time of
its execution; but that, as to facts subsequent-
ly arising, he may be admitted to testify, if he
stands disinterested. I cannot perceive any
essential difference between this case and that
of WoodhuU v. Holmes, 10 Johns., 231. It was
decided in that case that the indorser was a
competent witness to prove that after the note
was made and indorsed, it was delivered to a
third person, to be presented to a bank for dis-
count, who instead of offering it, fraudulently
put it into the hands of a broker. The evi-
dence of the indorser in that case, had he made
out the facts, would have defeated a recovery,
unless the holder had shown that became fair-
ly by the note. The evidence went to show
that the note was an accommodation note; that
JOHNS. RBP., 15.
N. Y. R., 5.
no consideration had passed between the im-
mediate parties to it, and that the plaintiff had
come unfairly into the possession of the note;
and this, the court held, the indorser might
prove, notwithstanding the rule in Winton v
SitiUer and \VaUon v. Shelly.
The facts proved by the indorser in this case,
make out a ease precisely similar in principle
to that of Woodtiull v. Holme*. Here the note
was indorsed by the defendant, as an accom-
modation note, to enable the maker to borrow
money. No value was received, and the act
of indorsing was gratuitous. The makers of
the note were solvent when the defendant lent
his indorsement; they had become insolvent
when the plaintiffs received the note. After
the insolvency of the makers, they had prom-
ised the defendant not to negotiate the note.
With a knowledge of these facts, and to secure
about $250 due the plaintiffs, they took this
note, in a manner entirely out of the usual
course of business. . They held out to the
makers of the note encouragement to aid them
in getting a letter of license from their credit-
ors; they advanced a part of the money, and
promised to wait two years before payment
was exacted. *It cannot be doubted [*2TU
that the plaintiffs are mula fide holders of the
note, and that, they took it with a view to
charge a person, who, from mere motives of
friendship, had indorsed it to aid men who
were in good circumstances, but who had be-
come insolvent. The plaintiffs were warned
that the note vf&sfunctus ojftcio, and yet they
took it.
. It was strenuously contended at the trial,
and on the argument of the case, that the facts
to which the indorser testified, were not facts
arising subsequent to the execution of the note,
but facts contemporaneous with the note, on
this ground, that the note had no legal efficacy
until it was indorsed.
The same objection existed to the testimony
of the indorser, in the case of Wood/lull v.
Holmes; for there the note was not efficacious
until it came into the hands of a bonafide hold-
er; for as between the immediate parties, there
was no liability to each other until then; and
yet the testimony of the indorser was admitted
as to the facts subsequent to the making of the
note; and by the terms "execution of the note,"
the court meant its signature.
I repeat it, there is no difference in principle
between this case and that of Woodhull v.
Holmes.
A poipt has been taken that Jonathan War-
ren, the maker, was interested, and ought to-
have been released; it has been decisively an-
swered, that the only ob.ection made to his
admission at the trial wasJhe one already con-
sidered, and it may be added that he stood in-
different between the parties.
The other points subjoined to the case were
not urged on the argument, and are not tenable.
Motion denied.
Cited in- 16 Johns., 72 ; 17 Johns., 181, 191 ; 18
Johns, 1«8; 20 Johns., 287; 5 Wend.. 89; » Wend..
178 ; 7 Hill, 3«9 ; 2 Sand. Ch.. 314 : 52 N. Y., 401 ; 73 N .
Y.. 274: 3 Barb.. 642: 5 Barb., 463; 24 Barb.. 547; 33
Barb., 612; 4 How. Pr., 168; 1 Bos., 337; 7 W. Dhr.,
301 ; 2 McLean, 245, 247.
69
276
SUPREME COURT, STATE OF NEW YORK.
1818
276*] *CHEEVER
v.
SMITH, PARDEE ET AL.
Agency— Receipt Given to Agent by Mistake.
If a man deals with another's agent, and by mis-
take (fives the agent a receipt for a sum of money,
which the agent had a right to pay, and on the faith
of that receipt, the principal settles with the agent,
and pays him money, the party giving the receipt is
concluded from looking to ti.e principal, for he
should have given him notice of the mistake in the
first instance ; and his only remedy is against the
agent.
Citation- 3 East. 147.
rPHIS was an action of debt on a bond for
JL the performance of the covenants con-
tained in articles of agreement ; and the only
question in dispute was, whether the defend-
ants were to be charged with the sum of
$5,000, mentioned in the receipt of the 29th of
October, 1814, given by the defendants, Smith
and Pardee, to Nathaniel Allen, the agent of
the plaintiff.
Smith and Pardee, two of the defendants,
the others being their sureties, contracted with
Cheever, to supply the forces on the northern
frontier, during the late war, with beef.
Funds were placed by the plaintiff in the
hands of N. Allen, to be advanced to Smith
and Pardee, as occasion should require. Allen,
and Smith and Pardee settled their accounts
every month, when receipts in full were
given, and the balance carried to the next
month's account. In November, 1814, Smith
stated to Allen and his clerk, that he had been
charged with $5,000, in the October preced-
ing, more than he had received. They denied
that any mistake had been made. Smith con-
tinued to sign receipts in full on every monthly
settlement, but still urged the adjustment o*f
the alleged mistake. The plaintiffs and Allen
settled their accounts on the llth of July,
1815, when there appeared to be due to Allen a
balance of $4.156.06, allowing him the $5,000
in dispute. This balance the plaintiff paid to
Allen. The plaintiff had not been on the
northern frontier between the time of the al-
leged mistake and his settlement with Allen.
The above facts having been admitted, or
proved dh the trial, the defendants then offered
to prove that they were charged by Allen, on
the 29th of October, 1814, with the sum of
$10,000, when he had, in fact, paid them but
$5,000. The testimony was objected to on the
part of the plaintiff, on the ground that no
notice of the alleged mistake had been given to
the plaintiff previously to his settlement with
Allen : and it was rejected by Mr. Justice Van
Ness, before whom the cause was tried.
277*] *A verdict having been found for the
plaintiff, the defendants now moved for a new
trial.
Messrs. Wells &nd Brinckerhofff-orihe plaintiff.
Mr. P. W. Radcliff for the defendants.
Per Curiam. We are of opinion that evi-
dence of a mistake in the accounts of Smith
and Pardee with Allen was properly rejected.
The alleged mistake took place in October,
1814, and in July, 1815, the plaintiff settled
with Allen, when there appeared to be due to
the latter $4,156.06, allowing him the $5,000,
n respect of which the mistake is alleged to
10UO
have been committed. On that settlement, the
sum of $4,156.06, which appeared tobsdue to-
Alien, was paid to him.
Now, had the defendants given notice of
that mistake to the plaintiff, he would have
made the settlement on very different princi-
ples ; at all events, he would not have paid
Allen, until the fact, whether there had been a
mistake or not, was ascertained. If a man.
deals with another's agent, and gives the agent
a receipt for a sum of money which he had a
right to pay, and on the faith of that receipt
the principal settles with his agent, and pays
him money, the party giving the receipt
cannot lie by, until after the settlement
between the principal and the agent, and then
charge the principal with the payment of the
same sum again. Good faith requires that the
mistake should be communicated to the princi-
pal as soon as it is known ; and, indeed, if a
loss is to be borne, it must fall on him who oc-
casioned it. In the present instance, it is not
stated that Allen is irresponsible. That fact
makes no difference, for he is answerable to
the defendants as for money had and received,
if it can be shown that he has been allowed
$10.000, as paid to the defendants, when only
$5,000 were received by them. The case of
Wyatt v. 'Ihe Marquis of Hertford, 3 East, 147.
supports the principle of this decision.
Motion for a new trial denied.
Cited in— 16 Johns., 278 ; 18 Johns., 248 ; 1 Cow.,
308 : 15 Wend.. 500: 3 N. Y... 171 : 25 How. Pr., 208 ; 1
Kob., 71 ; 1 Daly, 415 ; 2 Abb. U. S., 68 ; 2 Wood. & M.v
101 ; 3 Wood. & M., 201.
*JACKSON, exdem. STEVENS ET AL.,[*278
SILVERNAIL.
Real Property — Lessee for Lives — Not to Dispose
of without Consent of Lessor — Assignment of
Part does not Work Forfeiture— Nor would
Sale under Execution.
Where a lessee for lives covenanted not " to sell,
dispose of, or assign his estate in the demised prem-
ises," without the permission of the lessor, &c., and
the lease contained a clause of forfeiture for the
non-performance of covenants ; it was held that a
lease of part of the premises by the lessee for
twenty years, was not such a breach of the cove-
nant as would work a forfeiture ; and that nothing
short of an assignment of his whole estate by the
lessee would produce a forfeiture of the lease. Nor
would a sale of the whole premises under a judg-
ment and execution against the lessee work a for-
feiture, there being no evidence of any fraud or
collusion on the part of the lessee.
Citations— 3 Wils., 234 : Harg. Co. Litt., 308 a ; Str.,
405 : 2 T. K.. 425 : 8 T. R., 57 : 7 Johns.. 531.
was an action of ejectment, fora farm
JL in the Manor of Livingston, and was tried.
at the Columbia Circuit, where a verdict was
taken for the plaintiff for part of the farm
claimed, subject to the opinion of the court on
a case containing the following facts : Robert
Livingston, the proprietor of the manor, on
the 15th of May. 1784, executed a lease to Jo-
hannes Drom and his wife, for their joint
lives, for the farm in question, containing one
hundred and fifty acres. It was, among other
things, covenanted, that if the parties of the
second part, or the survivor of them, should
be minded " to sell and dispose of. or assign
their estate in the demised premises," it should
JOHNS. REP. 15.
1818
JACKSON, EX DEM., v. SILVKRNAIL.
278
be lawful for them, or the survivo»-of them, so
to do, provided they first obtained permission
in writing under the hand and seal of the les-
sor, or his heirs or assigns, and not otherwise,
•fee. The lease contained a proviso, making it
void, in case all and every the articles, cove-
nants, and agreements, therein contained, on
the parts of the lessees, were not observed and
performed.
On the 8th of March, 1815, John Drom exe-
cuted a lease under seal to David R. Waldo
and David Dakin, for the consideration of
$644. by which he "demised, leased, and to
farm let," for twenty years, thirty-two acres
and thirty-two perches of land, part of the
farm so leased to him. It appeared also that
the farm so leased was bid off by Stephen
Miller, at a sheriff's sale, on a judgment and
execution against John Drom, at the suit of
Miller, for the consideration of $1,010, the
amount of the judgment being $1,478 of debt,
and $16.62 costs.
The plaintiff proved that the sheriff's sale
was after the death of Drom, on & fieri facia*,
issued before his death ; that Stephen Miller,
being the highest bidder at that sale, did not
take a deed to himself, but by a subsequent
arrangement with the administrators of Drom
and -with the defendant, it was agreed that the
defendant should take the deed from the
i271>*] 'sheriff, upon the bid of Miller, and
pay Miller his debt, and the balance, making
$f,500 in all, he should pay to the administra-
tors of Drom ; and the sheriff accordingly ex-
ecuted a deed to the defendant, who is in pos-
session of the premises ; the widow of Drom,
for whose life, also, the lease was to endure,
being still alive.
It was proved that the defendant admitted
that he was in possession of about eighteen
acres of land, not included in the lease to
Drom, and by the advice of the judge, a ver-
dict was found for the plaintiff for eighteen
acres, two roods»and twenty-four perches, ab-
solutely, but subject to the opinion of the
court as to the residue of the premises.
The cause was submitted to the court with-
out argument.
PLATT, J., delivered the opinion of the
court :
The plaintiff proved title under Robert Liv-
ingston. As to eighteen acres, two roods and
twenty-four perches, part of the land in pos-
session of defendant, the plaintiff's right to re-
cover is undisputed ; and as to the residue, a
verdict for the plaintiff was taken, subject to
the opinion of the court upon the facts stated
in I he case.
The only question is, whether a forfeiture
has been incurred, or whether the covenant, on
the part of the lessee, not " to sell and dispose
of, or assign his estate in the said demised
premises," has been violated.
The plaintiff's claim is utricti juris; and to
entitle him to recover, on the ground of for-
feiture, he must bring hiscase within the pen-
alty, on the most literal and rigid interpreta-
tion of the covenant.
In the case of Gnuoe, ef dem. Ulenfoiee, v.
Biiyby, 8 Wils., 234, the lessee, in a lease for
twenty -one years, covenanted not "to assign,
JOHNS. REP.. 15.
END OF MAY
transfer or set over, or otherwise do or nut
away the premises, or any part thereof," with-
out permission ; and then made a lease to a
stranger, for fourteen years, of the same
premises, and it was held no breach of the
covenant, on the ground that the demise for
fourteen years was an underlease, and not an
assignment. (Harg. Co. Lilt., 308 a ; Strange,
405.)
In the case of Roe, ex dem. Qregson v. /7am-
»on, 2 T. R., 425, the lessee covenanted that
neither he nor his administrators would "set,
let, or assign over" the demised premises, or
any part thereof, without permission, &c., and
authorized the lessor to re-enter for any breach
of covenant. *The administrator of the [*iiHO
lessee made an underlease of the premises, for
less than the original term, without license; and
the court sustained an ejectment for the for-
feiture, on the ground that by the literal and
necessary construction of the covenant, the
lessee was restrained, not only from assigning,
but also from sub-letting; the words "set"
and "let" being synonymous with the word
"demise." ,
In the case now before us, the covenant is,
that the lessee for lives would not "sell and
dispose of, or assign his estate in the demised
premises ; " and he executed a lease of part of
the premises for the term of twenty years.
Applying the principles of the adjudged
cases, it is clear that Drom did not, in this
case, violate his covenant, by giving the lease
for twenty years. Nothing short of an assign-
ment of his whole estate in the land could
work a forfeiture. Drom conveyed only a
lesser estate for term of years, out of his larger
estate for life ; which was plainly a mere sub-
letting, and not a "selling and disposing of,
or assigning his estate in the premises." The
words "sell and dispose of" as clearly refer
to the "estate," as the word "assign. It is
a covenant by Drom not to "sell and dispose
of" his estate, nor to "assign" his estate ; and
he has done neither, by giving the lease for a
term of years.
In regard to the sale under the judgment
and fieri facias, it is well settled that such a
sale does not work a forfeiture ; unless it ap-
pear that the proceedings were voluntary and
collusive on the part of the tenant, with a" view
to defraud his landlord of his rights. (Doe, ex
dem. Mitchinson, v. Carter, 8 T. R. , 57 ; Jack-
son v. Corliss, 7 Johns., 581.) There is no evi-
dence of any such fraud in this case.
The transfer of Miller's bid at the sheriff's
sale, and the arrangment between the defend-
ant uinl the administrators of Drom, was
perfectly reconcilable with good faith, and
worked no prejudice to the rights of the land-
lord.
The plaintiff is, therefore, entitled to recover
no more than the eighteen acres, two roods
and twenty-four perches, to which his title was
admitted at the trial ; that part of the defend-
ant's possession not being covered by the lease
of Drom.
Judgment for the plaintiff, accordingly.
Cltrd in-7 Cow., 287 : 3 Wend.. 238 ; 7 Hill, 255; «
N. Y., 491 ; 26 N. Y., 89 ; (W N. Y., 258 ; 8 Iterti., S4 ;
27 Hart)., 42IJ ; 4 How. Pr., 309; 45 WU.,639; 64 Wte.,
TTsMWfc.,043.
1091
TERM, 1818.]
CASES -\RGUEn AND DETERMINED
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW
AUGUST TERM, 1818, IN THE FORTY-THIRD YEAR OF OUR INDEPENDENCE.
KING «. BUTLER,
Pauper — Necessaries Furnished — Assumpsit
Against Overseer.
Where a person has, at the request of an overseer
of the poor, and on his promise that he would see
him paid, boarded a pauper, and furnished him with
necessaries, he may maintain an action of assumpsit
against the overseer, although no order had ever
been made for the relief of the pauper.
Citation— 1 N. R. L., 287-288.
IN ERROR to the Court of Common Pleas
of the County of Tompkins.
The plaintiff in error brought an action of
assumpsit in the court below, against the de-
fendant in error, for boarding, lodging, nurs-
ing and attending one Washburn, at the special
instance and request of the defendant. At the
trial of the cause in the September Term, 1817,
of the court below, the following facts were
given in evidence on the part of the plaintiff :
In November, 1814, Washburn was taken sick
at the house of the plaintiff, who immediately
made application to the defendant, then one of
the overseers of the poor of the town of
Ulysses, to visit Washburn ; and the defend-
ant, having seen him, requested and directed
the plaintiff to provide all things necessary
until his recovery, and said that he would see
him paid. The plaintiff, accordingly, furnished
Washburn with board and necessaries during
the space of eight weeks, and afterwards made
out a bill against the town of Ulysses, and
presented it to the board of supervisors of the
282*] *County of Tompkins ; but they re-
fused to audit his account, as an order for the
relief of Washburn had never been obtained.
Upon this evidence the counsel for the defend-
ant moved for a nonsuit, which was granted
by the court below, and the plaintiff tendered
a bill of exceptions to their opinion.
The case was submitted to the court without
argument.
Per Curiam. The question in this case
arises on a bill of exceptions, tendered to
the Court of Common Pleas of the County of
Tompkins. The action was brought against
the defendant, who was one of the overseers
of the poor of the town of Ulysess, in that
county, for the support and maintenance of a
1092
pauper. The proof in the court below showed
a most explicit and positive request, by the
defendant to the plaintiff, to maintain the
pauper, and an express and absolute promise
to pay him for the same. But this was not
deemed by the court below sufficient, because
no. order had been given by a justice' to the
overseer to provide for the pauper. In this
the court erred. Application was made, in
behalf of the pauper, to the 6verseer, for re-
lief ; and the relief was furnished at the re-
quest of the overseer. It was no part of the
plaintiff's duty to see that the overseer had
the order of a justice, as pointed out by the
Act. If the pauper was entitled to assistance,
it was the duty of the overseer of the poor, on
application being made to him, to inquire into
the matter, and furnish the relief. He was
under a legal, as well as a moral obligation, so
to do ; and this was a sufficient consideration-
for his promise to pay for the same. The Act
does not require that the person furnishing
the relief should have an order from a justice
for the purpose. This is a duty imposed upon
the overseer, and is his authority for ordering
the relief ; but if he neglects to procure such
order, it is his own fault or negligence, and is
not chargeable upon the plaintiff. (1 N. R.
L., 287, 288.) The judgment of the court be-
low must, therefore, be reversed.
Judgment reversed.
Cited in-18 Johns., 126; 1 Cow., 261 ; 5 Cow., 312,
664; 6 Cow., 280; 3 Wend.. 197; 10 Wend., 429 ; 13
Wend., 272; 9 Barb., 364; 13 Barb., 601; 45 Barb.,
199; 66 Barb., 71.
*OVERSEERS OF THE POOR OF [*283
THE TOWN OF CLAVERACK
THE OVERSEERS OF THE POOR
THE CITY OF HUDSON.
OF
Pauper — Infirm Slave — Sale of— Residence of—
Removal.
A, the owner of an infirm slave, executed a bill of
sale of the slave to B, a person who was unable to
maintain her, at the same time paying him $40 to
take her off his hands. B then'sold the slave, and,
after several sales, she finally came into the hands
of C, who lived out of the State. The sales were all
fair and hona fide. A resided in Claverack ; and
after the sale to C, the slave was left in the town of
JOHNS. REP., 15.
1818
OVERSEERS OP CLAVERACK v. OVERSEERS OF HUDSON.
288
Claverack, and wandered into the City of Hudson :
from whence she was removed by an order of two
justices to the town of Claverack. Held that the
sale from A to B mitfht be deemed collusive aud
void within the Hth section of the Act Concerning
Slaves and Servants (2 N. H. L., aOOl, at the election
of the Justices, who might consider either A as the
master of the slave, or C. although he lived out of
the State, then; being no evidence that he had ex-
ported, or attempted to export the slave: and
thi-rrfore, the order was proper on both grounds;
on the first, because Claverack was the place of
settlement of A : and on the other, because if C was
the master, as he had no place of settlement within
the State, and the slave had wandered from town to
town, the justices were authorized by the 33d sec-
tion of the Act for the Relief and Settlement of the
Poor (1 N. R. L.. 282), to remove the slave to the
place from whence she last came.
Citations— 2 N. R. L., 306, sec. 14. 24 ; IN. R. L.,
BM.
IN KRROR, on certutrari to the Court of
General Sessions of the Peace of Columbia
County.
Two justices of the peace of the City of
Hudson made an order for the removal of
Sarah, a negro woman slave, from the City of
Hudson to the town of Claverack, from which
order the overseers of the poor of Claverack
appealed to the Court of Sessions of Columbia
County, which affirmed the order. It ap-
peared from the return of the Court below,
that the slave in question formerly belonged to
Peter Van Rensselaer, of Claverack, in Colum-
bia County, who, on or about the 20th De-
cember, 1814, executed a bill of sale of the
slave to Asel Wood worth, of the town of
Claverack. a very poor man, and wholly un-
able to maintain her, and at the same time
paid him $40 to take her off his hands, the
sla.ve being infirm, subject to fits, and inca-
pable of performing labor. At the time of ex-
ecuting the bill of sale. Van Rensselaer dis-
closed to Woodworth her true situation, and
all her infirmities were fully set forth in the
bill of sale. Soon after Woodworth sold the
slave to David C. M'Kinstry for $10, and in-
dorsed a transfer of all his fight upon the bill
of sale. M'Kinstry, a few days after, sold her
to Isaac Hatch, in payment of a debt due from
him to Hatch, who soon after sold her to
Theodore Curtis, who sold her to a man by
the name of Jacobs, who lived out of this
State Hatch and Curtis were freeholders in
Hillsdale, in Columbia Countv ; and they, as
well as Van Rensselaer and jVI'Kinistry, were
of sufficient ability to maintain the slave. The
return also stated that the slave was brought
from Hillsdale, and left in the street in the
town of Claverack, from whence she wandered
1284*] *into the City of Hudson. The court
below decided that the sale from Van Rens-
selaer to Woodworth was void, and affirmed
the order of removal.
Mr. Jcnnf* Strong, for the plaintiff in error.
He cited Acts sess. 36, ch. 78. sees. 7. 33; IN.
R. L., 279, 292, sess. 86. ch. 88, sec. 14 ; 2 N.
R. L., 201 ; Concklinv. Haven*, 12 Johns., 814;
Jaek»on v. WaUh, 14 Johns., 415.
Mr. Parker, contra.
PLATT, J. By the 14th section of the "Act
Concerning Slaves and Servants" (2 N. R. L.,
206), it is enacted "that if any person shall, by
fraud or collusion, sell or pretend to sell, or
dispose of, any aged or innrm slave, to any
person who is unable to maintain such slave,
such sale or disposition shall be void." &c.
JOHNS. REP., 15.
By the 24th section of the same Act, it is
provided "that if any person shall export, or
attempt to export, any slave, to any place
without this State, such person shall forfeit
$250, and the slave shall be free."
And by the 33d section of the "Act for the
Relief and Settlement of the poor" (1 N. R.
L., 292). it is enacted, "that it shall be lawful
to remove any slave who shall have left his
master, or shall have wandered from town to
town to the place of settlement of his master,
&c., if such place of settlement can be found
in i hi- State ; and if none such can be found,
then to the place from whence such slave shall
have last come," &c.
I incline to the opinion that the facts pre-
sent a case within the purview of the 14lh sec-
tion of the Act ; and that the sale from Van
Rensselaer to Woodworth, as it regards the
town, must be deemed collusive and void. If
so, the justices who made the order of removal
had a right to elect, to consider either Van
Rensselaer or Jacobs as the master of this slave;
for, as applicable to such a case, the term "void"
must be construed to mean " voidable," at the
election of the justices who make the order.
The purchasers under Van Rensselaer, who
have successively speculated upon this slave,
shall not be permitted, for their own private
benefit, to *allege the illegality of the [*285
first transfer. They each, in succession, had
a complete title as against Van Rensselaer, and
having had the benefit of their contracts, they
must assume the correspondent risks.
If Van Renssel::er may not be regarded as
the present master of the slave, on the ground
that his transfer was collusive and void, then I
think Jacobs is to be considered as the owner.
For, although the return states that at the time
of his purchase Jacobs "lived out of this State,"
yet there is no evidence that he has " exported
or attempted to export her out of the State."
The forfeiture and the penalty accrue, not
merely for buying a slave here", by a person
living out of the State, but for carrying or at-
tempting to carry such slave out of the State.
The purchaser, in such case, acquires a quali-
fied right ; that is, he may either remove to
this State, and keep the slave, or he may sell
her to an inhabitant of this State.
Allowing, then, that the sale by Van Rens-
selaer was not collusive, and that Jacobs is to
be regarded as the true owner, then, I think,
the order of removal may be sustained ; for
the return states that " the said Sarah wandered
from the town of Claverack, into the City of
Hudson ;" which presents a case expressly pro-
vided for in the 83d section, which has been
cited ; to wit : that where a slave has wandered
from town to town, and, whose master's place
of settlement cannot be found in this State, it
shall be lawful to move such slave to the place
from whence such slave shall have last come,
&c.
On either ground, therefore, I am of opinion
that the order of the Sessions was correct and
ought to be affirmed.
SpENCER.and YATES, JJ., were of the same
opinion.
THOMPSON, Ch, J., and VAN NESS, J:, di»
sen ted.
Order of Session* affirmed.
10»8
286
SUPREME COURT, STATE OP NEW YORK.
1818
286*] *WILSON v. BOEREM.
Evidence — Declarations in Extremis — Inadmis-
sible— Except in Case of Homicide.
The declarations in extremis, of a person who
would, if living, be a competent witness, are inad-
missible evidence, either in a civil action or a crim-
inal prosecution, with the single exception of cases
of homicide, when the declaration of the deceased
after the mortal blow, as to the fact of the murder,
is admitted.
Citations-Phillips' Ev., 200, 201 ; 1 East PI. C..
253, 353; Str., 499; 5 Leach, 569, 638; 12 Vin., 118; 3
Burr., 1244 ; 1 W. Bl., 345; 6 East, 188 ; 1 Johns., 163;
2 Johns., 35 ; 7 Johns., 96.
THIS was an action of assitmpsit, on a prom-
isssory note for $305.85, payable in ninety
days, drawn by Thomas Shieffelin, in favor of
the defendant, by whom it was indorsed to
Josiah Brown, Jr.. and by him to the plaint-
iff. The cause was tried before Mr. Justice
Van Ness, at the New York sittings, in Decem-
ber, 1816.
The note, indorsements, demand of payment
and notice, having been proved on the part of
the plaintiff, the defendant produced witnesses
to prove that the note was indorsed by Brown
and the defendant, for the accommodation of
Shieffelin, and delivered to the plaintiff by
Brown, for the purpose of being discounted
by him ; but that he had never paid anything
on account of the note, and had pledged it to
one Simmons for his own debt. The defend-
ant's counsel, in order further to make out the
defense, offered to prove the dying declarations
of Brown in relation to the note. The evidence
was objected to by the plaintiff's counsel, but
the judge ruled that the declarations of Brown,
in extremis, were admissible as to all such facts
as he would be competent to prove if then
living and present. Accordingly, his wife,
Susan Brown, was called, who testified that
her husband died of a consumption, of which
he had been ill for some time ; that after he
considered himself a dying man, and his recov-
ery hopeless, he, in conversation with her,
when alone, told her that the note had been
drawn and indorsed for the purpose of getting
it discounted for Shieffelin ; that he had deliv-
ered it to the plaintiff, and charged him with
wrongfully converting it to his own use, by
pledging it for a debt, and that the plaintiff
had never paid him anything for the note.
The witness also stated that her husband died
about a week after this conversation ; that no
physician or clergyman had been with him,
near the time that it took place, and that he
had afterwards walked about the room.
Charles L. H. Shieffelin, the son of the maker
of the note, testified that Brown died on a
287*] Friday, and that *on the Sunday pre-
ceding he called to see him ; that Brown then
considered himself a dying man, and was con-
fined to his bed, and that he gave him the same
account of the note as he had given to the pre-
ceding witness. Thomas Shieffelin, the maker
of the note, also testified that he called to see
Brown, who said that the doctor had given
him over, and made the same statement to this
witness. Testimony was produced on the part
of the plaintiff to repel this defense, which it
is unnecessary to notice.
The judge charged the jury, that if they be-
lieved the note in question had been drawn
and indorsed for the special purpose stated by
1094
the witnesses on the part of the defendant, and
that this was known to the plaintiff when he
took it ; and if they also were satisfied that the
note had never been negotiated for a valuable
consideration to the plaintiff, but that it had
been left with him by Brown, merely to raise
money for the benefit of Shieffelin, that then
they ought to find for the defendant, otherwise
for the plaintiff. The jury found a verdict for
the defendant, which the plaintiff now moved
to set aside, and that a new trial be granted.
Mr.. Sampson, for the plaintiff, contended
that the evidence of the declarations of Brown
was inadmissable, being mere hearsay. (Gilb.
Ev., 6th ed., 135.) It is a settled rule in the
law that hearsay is no evidence.
Nor will the fact that Brown was in extremis
when he made the declarations, create any ex-
ception to the rule and make them evidence.
It is true that some of the elementary writers
on the law of evidence appear to have fallen
into that error; and Phillips, in his late Treatise
(p. 200), after stating that " the dying declara-
tions of a person who has received a mortal
injury are constantly admitted in criminal pros-
ecutions," and the reason of the rule, adds
(p. 201) that " the same kind of evidence is
admissible in civil cases as well as in trials for
murder." (See, also, McNally'sEv., 174.) But
such evidence was never admitted in a civil
case, nor in any criminal case, except that of
homicide, and then from necessity only. Mr.
East, in his treatise of the Pleas of the Crown,
(Vol. I, 353, 360), considers the admission of
such evidence as peculiar to *the case [*288
of homicide, and he states the circumstances
under which it is admissible in that case. Mr.
Peake, in his Compendium of the Law of Evi-
dence (p. 15, 3d ed.), also states the same limi-
tations, as to the admission of the dying
declaration of the party in cases of murder,
and cites Woodcock's case, 2 Leach C. L., 563,
and the observations of Lord C. B. Eyre, as to
the reasons for allowing such declarations to
be evidence, under the peculiar circumstances
of the case. Mr. LutteralTs case, Sex v. Reason
& Trantar, 1 Str., 499 : 6 St. Tr., 195 : Foster
C. L., 293, appears to be the first in which the
dying declarations of the deceased were admit-
ted ; and that was a very peculiar case, which
seemed to justify some relaxation of the strict
law of evidence. In the works of the earlier
writers on criminal law — Coke, Hale and
Hawkins — no such rule is to be found. Hale
(2 H. P. C., 52) refers to the Statute of 1 & 2
Ph. & Mar., cap. 13, which authorizes magis
trates to take the examinations of prisoners
and the depositions of witnesses produced
against them, and to return them to the Court of
Jail of Delivery. He cites Welsh's case, 2 H. P.
C., 285, in which the examination of Mrs. P.,
taken before commissioners, under an Act of
Parliament, was not allowed to be read against
W. on an indictment for a forcible marriage of
P. , because it was a proceeding according to
the civil law in a civil cause.
Hearsay evidence has sometimes been re-
ceived on questions of pedigree, prescription
or custom, depending on general reputation ;
but a late case1 (Berkley Peerage, Phil.
1. See 4 Campb., 401, a report of the Berkley Peer-
age case, before the House of Lords, May 13, 1811.
See, also, Rex v. Cotton, 3 Campb., 444.
JOHNS. REP., 15.
1818
WILSON v. BOEREM.
B88
Ev., 178), in the House of Lords, in which all
the judges delivered their opinions, shows with
what extreme caution this species of evidence,
-even on questions of pedigree, is allowed ; and
it is never received where the declaration is
made after a controversy has arisen on the
question, pout litem mala in, for the declaration
must be made under circumstances which pre-
cluded the possibility of any bias or interest j
operating on the mind of the person whose
declaration is offered to be proved.
28»»] *In Wright v. Littler, 8 Burr.. 1244,
12-55, the declaration of Medlicott, as to the
forgery, came out on a cross-examination, and
no objection was made at the trial, and it was
allowed under the special circumstances of the
•case. In Aocton, v. Kinmiird, 6 East, 188, evi-
dence of the declaration of the wife as to the
state of her health, was admitted to contradict
the evidence of a surgeon who had examined
her. These are the cases cited by Mr. Phillips;
but the evidence was admitted not to prove the
declarations of a person in extremis, and who,
if living, might have been a witness, but
merely to contradict what the same person
had when living declared.
In Jafksnn, ex dem. Cot, v. Kniffen, 2 Johns. ,
-31, this court decided that evidence of the dec-
larations of a testator, in eitremix, that a will
previously executed by him was extorted by
duress, was not admissible. Livingston, J.,
thought the declarations of a dying person
ought never to be received as evidence in Civil
•CM6B, and he doubted whether they ought to be
received at all, even in criminal proceedings,
unless in the single case where the party in-
jured was the only witness, and his death
might otherwise defeat the ends of public jus-
tice. In Gray v. Goodrich, 7 Johns., 95, the
<:ourt say that what a deceased person has
been heard to say, except upon oath, or in ex-
tremis, and when he came to a violent end,
never has been considered as competent evi-
dence.
Again ; Bro'wn, if living, would not have
been a competent witness. He was an in-
dorser of the note and incompetent, not only
on the ground of interest, but on the principle
which excludes a party to a negotiable paper
from invalidating it bv his testimony. (Phillips'
Ev., 50.)
Mr. Van Htyrfc.contra.contendedthat Brown,
if living, would have been a competent witness,
as his testimony did not go to in validate the note
in its first inception ( Wondhuli v. Holine*, 10
-Johns., 231). and that evidence of his declara-
tions in cxtremix was admissible. In criminal
cases, it is undoubtedly the practice to receive
such evidence ; and courts are more cautious
in admitting evidence in criminal than in civil
<«ases. The opinion of C. B. Eyre, in Wood-
i2JH>*] deck's *case, has been cited ; and the
principle on which such evidence is to be re-
•ceived is very forcibly stated by him. "They
are declarations made in extremity, when the
party is at the point of death, and every hope
of this world is gone ; when every motive to
falsehood is silenced, and the mind induced
by the most powerful considerations, to speak
the truth: a situation so solemn and so awful is
•considered by the law as an obligation, equal
to that which is imposed by a positive oath,
administered in a court of justice." All men
JOHNS. HI-.I- . 15.
are disposed to assent to the truth of declara-
tions, made under circumstances which afford,
perhaps, a higher test of truth, than if made
by the party under the ordinary sanction of an
oath. It is objected that there can be no cross-
examination in such case. But what is the Ob-
ject of a cross-examination? To elicit the truth.
But if the death bed, and the awful situation of
the parly, affords the strongest test of the truth
of what he declares, no other or letter test can
be desired. We do not say that the evidence
is, of itself, conclusive. It is hearsay evi-
dence ; but where a foundation has been laid
for it by other evidence, it ought to go to a
jury, either to corroborate or contradict the
previous testimony. In Wright v. Clyiner, 8.
C., 1 W. Bl.. 345, which has been cited. Lord
Mansfield was of opinion that the evidence
was proper to be left to the jury. The ca«e of
Atevm v. Kinnaird is also in point. (Phil.
Ev., 201.)
THOMPSON, Ch. J., delivered the opinion of
the court :
Assuming that Brown would have been a
competent witness, had he been living, and ad-
mitting that he was in ejrtremi» when the dec-
larations were made which were received in evi-
dence (of which, however, there is very great
doubt), the only question in the case is,
whether such declarations were at all admis-
sible. No case, either in the English courts
or in our own, has fallen under my observa-
tion, where such evidence has been admitted
in a civil suit. Such testimony is inconsistent
with two fundamental rules in the law of evi-
dence. It is mere hearsay, not under oath, and
no opportunity is given "for cross-examination;
and writers on the law of evidence have, I
apprehend, either fallen into a mistake, or
been a little unguarded, in laying *down[*29 1
the rule relative to the admission of the dying
declaration of a person, even in criminal cases.
Phillips, in his Treatise (p. 200), says such evi-
dence is constantly admitted in criminal pros-
ecutions, and is not liable to the common ob-
jection against hearsay evidence. If he means
to be understood that* this is a general rule of
evidence in criminal prosecutions, he is not
supported by any adjudged case. It is, I ap-
prehend, confined to the single case of homi-
cide ; and so it seems to be considered by
East, in his Crown Law (Vol. I., p. 253). "Be
sides," says he, "the usual evidence of guilt
in general cases of felony," there is one kind
of evidence more peculiar to the ca^e of homi-
cide, which is the declaration of the deceased,
arfter the mortal blow, as to the fact itself, and
the party by whom it was committed. Evi-
dence of this sort is admissible, in this case,
on the fullest necessity. For it often happens
that there is no third person present to be an
eye witness to the fact, and the usual witness,
on occasion of other felonies, namely: the
party injured himself, is got rid of. What-
ever might have been the ground on which
this kind of evidence was first admitted, in
canes of homicide, we find it has long been an
established rule in such cases, and I may say,
in such cases only. For wherever this rule is
recognized by elementary writers, the cases
referred to in support of it will be found to be
those of homicide only. (Sir., 499 ; 2 Leach,
1095
291
SUPREME COTJKT, STATE OF NEW YORK.
1818-
569, 638 ; 12 Yin., 118 ; 1 East's C. L., 353.)
Baron Eyre, in Woodcock's case, considers it
an exception to the general rule, which re-
quires that witnesses should be examined in
open court on 'oath, and an opportunity af-
forded for cross-examination.
Phillips (p. 201), in treating of this rule in
criminal proceedings, says the same kind of
evidence is admissible in civil cases as well as
in trials for murder. But he is not supported
by any of the cases referred to, or by any other
adjudged cases that I have found. Wright, ex
dem. Clymer, v. Littler, 3 Burr.. 1244; 1 W.
Bl., 345, has been urged in support of this
rule. But a recurrence to the facts will show
that the circumstances of that case were
special and peculiar ; and the admission of the
declaration of Medlicott was not supported
under this rule. Lord Mansfield, in pronounc-
ing the opinion of the court, says the testi-
mony comes out on the cross-examination of
292*] the defendant's *counsel, and no ob-
jection made to it ; and after" mentioning the
special circumstances of the case, he says no
general rule can be drawn from it ; thereby
expressly excluding the idea that the evidence
was admitted merely as the dying declaration
of Medlicott. Nor does the case of Aneaon v.
Lord Kinnaird, 6 East, 188, which has also
been pressed upon the court, in any measure
support such a rule of evdence. It was an
action on a policy of insurance on the life of
the plaintiff's wife, warranted in good health
when the policy was affected, and the dying
declarations of the wife, as to her state of
health at that time, were admitted ; but not as
declarations made in extremis by a person who
might have been a witness if living ; for she
could not, under any circumstances, have
been a witness if living. The plaintiff had
produced a surgeon as a witness, to show,
from his examination of her, and what she told
him, that she was in a good state of health;
and her account to another person of her
health, at the same time, Lord Ellenborough
said, was but a sort of cross-examination of the
same witness. That the inquiry was upon the
subject of her own health, which was a fact of
which her own declaration was evidence.
That such declarations are always received
upon such inquiries, and must be resorted to,
from the very nature of the thing. I think it
may safely be affirmed that no such rule of
evidence in civil cases is to be found in prac-
tice in the English courts. With us there cer-
tainly is none such, and wherever it has been
in any measure alluded to, it has uniformly
been with disapprobation. That the question
is still open with us, appears from the case of
Jackson v. Vredenbnrgh, 1 Johns., 163, where
it is said that it will be unnecessary to deter-
mine whether, under any and what circum-
stances, the declarations of a competent wit-
ness, in articulo mortis, can be introduced as le-
gal evidence in a civil cause In Jackson v.
Kniffen, 2 Johns., 35, Mr. Justice Livingston
says if the declarations of dying persons are
ever to be received in evidence (on which, if
res integra, much might be said), yet in civil
causes they never should be admitted. In
Capron v. Austin, 1 Johns., 96, it is said that
the law requires the sanction of an oath to all
293*] parol testimony. It *never gives credit
1096
to the bare assertion of anyone, however high
his rank or pure his morals ; and it is fairly
to be inferred from this case that the court
meant to say that declarations in extremis were
inadmissible evidence, except in the single ,
case of homicide. Having an opportunity to
cross-examine a witness is a high and impor-
tant right, and ought not to be violated, ex-
cept from the most imperious necessity ; and I
am persuaded that neither principle nor policy
requires the adoption of any such rule of evi-
dence in civil cases. The dying declaration of
Brown, in the case before us, ought not,
therefore, to have been admitted in evidence.
The verdict must, accordingly, be set aside,
and a new.trial awarded with costs to abide the
event.
Judgment reversed.
Cited in-56N. Y., 103; 19 Hun, 73: SOInd., 341.
JACKSON, ex dem. ELIZA S. MALIN,
RACHEL MALIN.
Wills — Alteration after Execution — By Person
Interested, Renders the Witt Void — By Stran-
ger— Material Witness — Postponement of Trial
— New Trial.
The testatrix devised as follows : "I give and be-
queath to my daughter, E. R., all my property in
W., in the State of Connecticut. All the land deed-
ed me by B., excepting1 one thousand acres of land,
I deed to R. M.; also, the receipts that I now hold,
&c.: also, as to personal property, I give her one
mare," &c. And by a subsequent clause she devised
those thousand acres to R. ML It was alleged that
the word "also" had been erased between the words
"Connecticut" and "all,"after the execution of the
will, so as to give R. M. not only the one thousand
acres-excepted. but also the land, out of which they
were excepted. Held that the alteration, if any,
was perfectly immaterial, and that whether the
word "also" were inserted or not, the land deeded
to the testatrix by B., excepting one thousand
acres she deeded to R. M. (which words were to be
read as if in a parenthesis), was devised to E. R.
An alteration, whether material or immaterial,
made in a deed or will, by a person claiming' under
it, renders it void ; but whether a material altera-
tion by a stranger has that effect. Quccre.
Where the judge directed the jury to declare by
their verdict whether a will had been altered after
its execution, and if so, by whom, and they de-
clared by their verdict that the will had been al-
tered by some interested person, the verdict was-
held to be uncertain, and anew trial was granted.
Where the defendant is apprised of a material
witness, whose appearance he cannot procure in
time, he ought to apply to the judge to postpone
the trial ; and if he goes to trial without the testi-
mony of the witness, and a verdict is found against
him, -the court will not grant a new trial for the
purpose of letting in the evidence of the witness.
Citations— 11 Co., 26 ; 4 T. R., 220 ; 2 Poth. by Ev-
ans, 179-181 ; 5 Taunt., 707.
THIS was an action of ejectment, brought to
recover lands in Jerusalem, in township
No. 7, in the second range of townships in the
County of Ontario. The [cause was tried be-
fore Mr. Justice Spencer, at the Ontario Cir-
cuit, in July, 1817.
Sarah Richards died in November or De-
cember, 1793, seised of the land in question,
under a regular title, leaving the lessor of the
plaintiff, her only child, who subsequently
*married one E. Malin, since deceased, [*294
and claims the premises as heir at law of her
.lOHNB. REP., 15.
18)8
JACKSON, EX DEM., v. MALIK.
294
mother. The defendant claims as devisee of
Sarah Richards, and at the trial produced and
proved her will, containing the following
clauses :
"Item. Fourthly ; I give and bequeath to
my dear and only daughter, Eliza Hit-hards,
all my property in Watertown, Litchfield
County, in the State of Connecticut. [Blank.]
All the lands deeded me by Benedict Robinson,
excepting one thousand acres of land, 1 deed
to Rachel Maliu ; al«o, the receipts that I now
hold for lands or the avails of them ; also, as
to personal property. I give her one sorrel
mare and colt, one pied cow, and four sheep."
'Item. Sixthly ; I give and bequeath to my
good and trusty friend, Rachel Maliu. one
thousand acres of land lying and situate in
number seven, in the second range of the Mas-
sachusetts pre-emption in the County of Onta-
rio and State of New York, the sai(f thousand
acres to be taken off from the south end of the
[Blank] I now own in the town, deeded to me
by Benedict Robinson. Also, all that tract
deeded to me by Thomas Hatheway, bearing
date the second day of the fifth month, in the
year of our Lord one thousand seven hundred
and ninety-three ; witnessed by W. M'Cartee
and Abel Botsford. Also, all the lands that
have or may arise from Asa Richard's estate,
deceased ; also, one sorrel horse, and nil the
rest of my stock together, all the rest of my
farming utensils." The defendant and anoth-
er person were appointed executors.
It was contended, on the part of the plaint-
iff, that the will had been altered since its exe-
cution, by erasing the word "also," between
the words "Connecticut" and "all," in the
fourth item, and testimony was produced, on
both sides, to prove and disprove the fa.ct.
By the argreement of the counsel, on the rec-
ommendation of the judge, His Honor charged
the jury to declare, by their verdict, whether
the will of Sarah Richards had been altered
after its execution, and by whom ; and the
jury gave a verdict for the plaintiff, adding
that they considered that the will had been
altered by some interested person. The de-
fendant moved to set aside this verdict, and
that a new trial should be granted, on a case
290*] containing the evidence *given on the
trial, and on the ground of surprise and new-
ly-discovered evidence, supported by affidavits
that William Stewart was a material witness
to negative any alteration in the will; and that,
having been subpoenaed, he did not attend the
trial.
Mr. Sill, for the defendant, said he was
aware of the old authorities on the subject ;
and that it is laid down that an alteration of a
deed by the party owning it, whether material
or immaterial, renders it void ; and that au
alteration in a material part by a stranger,
without the privity or consent of the owner,
destroyed the deed. (Pigot'n case, 1 1 Co. , 27 ;
18 Vin. Abr.. 89. Fails, U ; Shep. Touch.. 66.
68; Cro. Eliz., 546.) But this was founded
on the technical rule of pleading, which al-
lowed the party, under the plea of lumentfuf,-
tum, to avail himself of the objection, because
it was not, at the time of the plea, his deed.
This technical nicety and strictness which
avoids a deed in the hands of an innocent per
son. because it has been altered by a stranger
JOHNS. REP., 15.
without his knowledge or consent, is contrary
to the first principles of justice and common
sense.
Again ; the alteration was not material ; and
if the alteration did make any difference in the
devise, R. M. could have no interest to induce
her to alter it. But there is no evidence that
she did make the alteration. The jury have
not found the fact. The finding is special,
and leaves it uncertain as to the person who
made the erasure. If there is the least doubt
as to the meaning or intention of the jury, the
court will not pronounce a judgment on the
verdict. (l*tojAe v. Oleott, 2 Johns. Cas., 301,
311 ; Rex v. Wood full, 5 Burr., 2661, 2680.)
Air. E. WUluinm, contra. The only question
is, whether the verdict is against evidence ; for
the affidavits do not disclose any newly-discov-
ered evidence, or show surprise. The evi-
dence now offered is merely cumulative. Even
if there was anything suspicious, yet, .as the
case has been fully and fairly left to the jury, •
the court will not grant a new trial. (Hollinys-
intrtfi v. Napier, 8 Cai., 182; Smith v. Brush,
8 Johns., 84.) This was not a special but a
*general verdict. The jury found a f*iJJM&
general verdict, and then, on being asked by
the judge, they said that they considered that
the will had been altered by some unknown
person.
PLATT, J., delivered the opinion of the
court :
The affidavits on the part of the defendant
show no grounds for a new trial. There is no
newly-discovered evidence ; nor was there nny
surprise. The defendant was fully apprised
before the trial of what Wm. Stewart now
swears, and actually subpoenaed him ; and in-
stead of movrag to postpone the trial for the
want of his testimony, she voluntarily chose
to take her chance without him. Unless there
be other grounds, therefore, the defendant
must abide by the verdict.
On the merits of the case, the plaintiff
proved title in his lessor, as sole heir of Sarah
Richards, who is admitted to have died seised
of the premises in dispute.
The defendant then proved the will of Sarah
Richards, and claimed the land by virtue of
that will.
The plaintiff then gave evidence to show
that the will had been altered since its execu-
tion, by erasing the word "also," between the
words ""Connecticut" and "all," in the 4th
item of the will, and that fact was controvert-
ed. The general custody of the will has been
with the defendant, as executrix and devisee ;
but it has occasionally and repeatedly been in
the possession of other persons.
The judge properly directed the jury to find
whether the will had" been altered after its ex-
ecution : and if so. by whom. The jury
found a verdict for the plaintiff, and added
the following words : "and the jury consid-
ered that the will has been altered by some in-
terested person."
In my judgment, the legal construction and
effect of the will is the same, whether it be read
with or without the alleged alterations. Noth-
ing is given to Rachel Malin, in the 4th clause
of the will, whether the word "also" be inserted
or stricken out. "Eliza Richards" is the sole
10!) 7
297
SUPREME COUKT, STATE OF NEW YORK.
1818
object of the testator's bounty in that clause,
as it now stands. The words "excepting one
thousand acres of land I deed to Rachel Ma-
lin" are to be understood as excepting so much
from the general devise to Eliza Richards, and
2J>7*] as referring *to the next clause in the
will, which devises a thousand acres to Rachel
Malin, by particular description ; and thus as-
certains the part excepted in the former de-
vise to Eliza Richards, which was before in-
definite. The words "excepting one thousand
acres of land I deed to Rachel Malin," if con-
strued with reference to the whole context,
must be read as if in parenthesis.
A different construction would involve a
great absurdity, and require us to reject sever-
al words in the 4th clause as senseless and in-
operative. For, according to such construc-
tion, the 4th clause devises to Rachel Malin
"all the lands deeded (to the testator) by Ben-
edict Robinson, excepting one thousand acres;"
and in the next clause, that very one thousand
acres is also expressly devised to Rachel Ma-
lin. Thus the testator would be made to say :
I give to Rachel Malin all my lands, &c., ex-
cept one thousand acres, and I give her that
one thousand acres too.
•If the alleged alteration be immaterial, then
the question is, whether the rinding of the
jury, in this case, is sufficient to warrant a
judgment for the plaintiff.
The resolutions of the court in Pigot's case,
II Co., 26, were as follows : "When a deed is
altered in a point material, by the party claim-
ing the benefit of it, or by a stranger, even
without the privity of the obligee, or party
claiming under it, the deed thereby becomes
void."
" If the obligee himself alters the deed, al-
though it be in words not material, yet the
deed is void. But if a stranger, without his
pi'ivity, alters the deed in any point not ma-
terial, it shall not avoid the deed." The rule,
as laid down in that case, in regard to im-
material alterations, seems to have been uni-
formly sanctioned by subsequent decisions ;
but the opinion expressed in Pigot's case, that
a material alteration, though made by a
stranger, without the privity of the party
claming under it, renders the deed void, is a
proposition to which I am not ready to assent.
That question is not before us ; and the au-
thorities show, at least, sufficient ground to
consider that point still open for consideration.
(4 T. R., 220 ; 2 Pothier. by Evans, 179, 180,
181 ; 5 Taunt., 707.) If the alleged alteration
in this will was made by Rachel Malin, or
2J)8*] with her privity, then the*will is void ;
otherwise, it remains valid, notwithstanding
the alteration.
In this case the judge properly directed the
jury to find whether the will had "been altered
after its execution ; and if so, by whom. I
think the jury have not answered that question
with sufficient certainty and precision. The
verdict is "that the will has been altered by
some interested person." The words "some
interested person " do not necessarily designate
Rachel Malin. Those words are as applicable
to the lessor of the plaintiff as to the defend-
ant. The verdict is uncertain on that point,
and a new trial ought, therefore, to be granted,
with costs to abide the event.
10'J8
New trial granted.
Overruled— 22 Wend., 391.
Distinguished -33 Ohio St., 619.
Cited in— 8 Cow., 73; 1 Wend., 659; 58 N. Y., 321 ;
5 Lans., 369 ; 3 Barb., 408 ; 8 Barb., 516 ; 1 Daly 281 ; 1
Co. R., 28 ; 3 Wood. & M., 387 ; 91 Pa. St., 247.
LEONARD & M'CARTEE
f>.
HUNTINGTON ET AL.
Contracts — Sale of Vesnel — Immediate Possession
without Bill of Sale — Vendor not Liable for
Repairs.
Where a contract was entered into for the sale of
a vessel, the possession .of which was taken immedi-
ately, but it was agreed that the bill of sale was not
to be given until the whole of the purchase money
was paid, and in the meantime the register stood in
the name of the original owner, 'who, however,
exercised no control over the vessel in any respect ;
it was held that he was not liable for repairs
made by direction of the master, as asrent for and
on the credit of the purchaser, between the time of
executing the contract and the final consummation
of it, by the delivery of a bill of sale, but that the
persons furnishing repairs must look for the pur-
chaser for the payment.
Citations— 14 Johns., 201; 8 East, 10; Str., 816; 1 T.
R., 109; 7 Johns.. 308.
THIS was an action of assumpsit, for work
done and materials furnished by the
plaintiffs, in repairing the brig Recompense,
against the defendants, as owners of the brig.
The cause was tried before Mr. Justice Spencer,
at the New York sittings, in April, 1817.
The brig was repaired by the plaintiffs, who
were ship carpenters in the City of New York,
during the month of September, 1815. She
was originally registered at Middletown, in
the State of Connecticut, and the register was
in the name of the defendants as owners, from
April, 1815, to the 28th of September, in the
same year, including the time in which she
was repaired by the plaintiffs. On the 3d of
May, 1815, a charter-party of the brig was
executed by the defendants and Luther Bing-
ham, by which the former chartered her to B.
for a voyage from New York to the West
Indies and back, *B. assuming all the [*1299
expenses of the voyage, and paying $550 per
month, for the use of the brig. The charter-
party mentioned that James Pierce was to sail
her as master for the voyage, who was ap-
pointed by B., with the consent and concur-
rence of the defendants. On the 4th of May,
one of the defendants, in the name of both,
gave a receipt to B. for four notes, payable at
different periods, and a small sum in cash,
amounting altogether to $6,300 ; for which,
when paid, or secured to be paid, they were to
execute and deliver, or cause to be executed and
delivered unto B. a bill of sale of the brig,
and also to deliver and relinquish in his favor
the above-mentioned charter-party. The last
of the notes having been paid, the contract
was consummated by the delivery of a bill of
sale, on the 14th of October, 1815, after the
vessel's return from her voyage to the West
Indies, for which she had been manned and
fitted out by B. , and after her being repaired
by the plaintiffs.
B., who was examined as a witness, stated
that he could not say who employed the
JOHNS. REP., 15.
1818
LEONARD & M'CARTEE v. HUXTIXGTON ET \i..
299
plaintiffs, but that it was either himself or the
captain, by his direction ; that he was some-
times on board of the liriir while repairing, but
not often, and that the plaintiffs were strangers
to him. He also stated that he did not know
whether the plaintiffs had ever sent a bill to
him for repairs or not, but that they had once
asked him if he would pay their demand, to
which he replied that it was out of his power ;
that he did not know that the defendants had
had any concern with, or exercised any act of
ownership over the brig, after the execution
of the contract for the sale of her, and that
the repairs were commenced a few days after
her return from her voyage.
Pierce, the master of the brig, stated, in his
deposition taken de bene e*»e. that he was em-
ployed by Binghuin ; that after the vessel had
returned to New York and discharged her
cargo, he was directed by B. to take her to
be repaired, and that she was repaired by
Leonard, one of the plaintiffs ; that he did
not himself einoloy Leonard, but he always
understood and believed that B. had em-
ployed him. The deponent was master of
the" vessel on a subsequent voyage, commenced
ou the 29th of September, 1815 ; and during
the whole time that he was master, acted un-
UOO*J der the orders and 'direction of B., as
owner, and never received any orders from
the defendants, or either of them, relative to
the voyage. All the expenses of the first
voyage were paid by B., and the deponent
frequently mentioned to Leonard that Bing-
ham was the owner. B. came frequently to
the place where the vessel lay, and in one in-
stance consulted Leonard as to the expediency
of sheathing her ; but the deponent could not
say whether Leonard saw B. when he was at
the vessel, more than once or twice.
A verdict was found for the plaintiffs, sub-
ject to the opinion of the court on a case con-
taining the foregoing facts.
Mr. Cowdry, for the plaintiffs. The de-
fendants are to be deemed the legal owners of
the vessel, so as to be answerable for the re-
pairs. The registry was in their names. It is
true there was a charter-party, but that ended
in August, and the repairs were made in Sep-
tember ; and until October, when the bill of
sale was executed by the defendants to Biug-
ham, the defendants must, in judgment of
law, be considered the owner. (Abbot on
Ships, part 1, ch. 2, sec. 29, 30 ; We*terddl v.
Dab, 7 T. K., 306 ; Rich v. One. Cowp.. 336.)
The charter party described the defendants
as owners, and they were to continue such
until the happening of certain events. Suppose
the contract with B. , as to the sale, had never
been fulfilled oji his part, would not the de-
fendants have remained owners of the vessel,
and the repairs have accrued to their benefit ?
In the case of Young v. Brander et «/., 8 East,
10, which may be cited by the defendants'
counsel, the defendants had executed the bill
of sale, and had done everything in their
power to devest themselves of the property ;
and the purchaser took possession, but neg-
lected to deliver the certificate of registry to
the proper officer until nearly a month after
the sale. And in Wendmxr et at. v. Ilogeboom,
1 Johns., 308. which may also be cited on the
other side. Vosburgh. the purchaser, took i in
JOHNS. REP.. 15.
mediate possession of the vessel, and repre-
sented himself to the plaintiffs as the owner,
and obtained an extension of the term of pay-
ment for the repairs.
*Mr. Griffin, contra. The true and ac- [*30 1
tual owner of the vessel is the person responsi-
1 ble for repairs, when the repairs are ordered by
; him, or by some person authorized by him as
I his agent. He is not answerable for re-pairs
ordered by a stranger, or to any person volun-
tarily doing them, without any request or au-
thority from him. (8 East, 10*.) The register
of a ship is necessary only to show her
national character, and is not evidence that
the person whose name is inserted in it is the
ow,ner. (Sharp v. The United In*. Co., 14
Johns., 201 : Prater v. Hopkin*, 2 Taunt., 5.)
In Jaine* v. BLrlny, 11 Mass.. 36, the grounds
on which owners of vessels are liable for re-
pairs arc very clearly and distinctly stated,
none of which exist in this case. The defend-
ants gave no directions as to the repairs ; they
knew nothing of them ; they were not done
on their credit ; nor have they derived any
benefit from them ; nor were the repairs or-
dered by any person having any agency or
authority from the defendants. Bingham was
the charterer, and, by the contract, was to
have the appointment of the master, who, as
well as the crew, were to be provided and
paid by him. (7 Johns., 308.) Even if B. was
not to be deemed owner, by virtue of the con-
tract of sale, yet, being the charterer, and hav-
ing the entire control and direction of the ves-
sel, the defendants cannot be liable for repairs.
(Fra»er v. Marsh, 13 East, 238.) B. was the
owner, pro hoc rice.
Again ; a mortgagee of a ship out of pos-
session is not liable for repairs of the ship, or
for necessaries furnished for her. (M'Jntyre
v. Scott, 8 Johns., 159.) The defendants are
not in a worse situation, in this respect, than
a mortgagee out of possession. The agree-
ment may be considered as a virtual, though
not a formal mortgage.
Mr. T. A. Emmet, in reply. Owners of
vessels are liable for repairs, unless a credit
has been given to some other person, or they
can show some act or contract which prevents
their liability. The register is priina facie evi-
dence of ownership. The defendants were,
in fact, the real and legal owners. The char-
ter-party speaks of P. as the master: he was
appointed bv the joint consent of the defend-
ants and *6ingham, and was their [*3Oli
agent. B. could not remove him without the
consent of the defendants.
THOMPSON, Ch. J., delivered the opinion of
the court :
The demand on which this action is founded
is for repairs done to the brig Recompense.
The ground upon which it is sought to make
the defendants responsible, is that they were
owners of the brig. But this ground is not,
under the circumstances of this case, tenable.
The brig, on the 3d of May, 1815, had been
chartered by Bingham for a voyage to the
West Indies. The next day she was purchased
by Bingham; but, bv the contract, a bill of
sale was not to be given until the stipulated
price was paid, or secured to be paid; posses-
sion was taken of the brig under this charter
iom>
202
SUPREME COURT, STATE OF NEW YORK.
1818
and contract. Having performed the voyage
stipulated in the charter, the brig was sent by
Bingham to the plaintiff to be repaired, they
being previously informed that she was owned
by Bingham, and he occasionally attending
while the repairs were going on, and giving
directions, relating to them. Soon after the
repairs were made, the last note given by
Bingham fell due. The bill of sale was there-
upon given, according to the contract.
As between the parties to the contract, there
can be no doubt this would relate back to the
time when the contract was entered into.
Third persons are not, however, to be prej-
udiced by such relation; and had the defend-
ants remained in possession of the brig,, or
had the repairs upon her been made upon
their credit, in any manner, the plaintiffs
ought not to be affected by such relation; but
thafwas not the case. They were not, in point
of fact, employed by the defendants to make
the repairs; nor could they be considered as
looking, in any way, to unknown owners. For
they were expressly informed that Bingham
was the owner, and so far, therefore, as any
claim upon the owner was relied on, he was
the person they looked to for payment.
The register standing in the name of the de-
fendant, did not, in any manner, determine
the ownership of the brig, according to the
decision of the court in SJiarp v. T/ie United
Ins. Co., 14 Johns., 201. The repairs were not
made for the defendants, or for their benefit,
3O3*] *by authority or direction of the mas-
ter. He was not their agent, or acting under
their authority or direction. He was, to be
sure, the master agreed upon by the charter-
party: but that was at an end sometime be-
fore the repairs were made. Pierce was the
exclusive agent of Bingham, the purchaser,
and held the vessel for him; and he claimed
under the contract, and not under the charter-
party. So far as respected the repairs, the
defendants were mere strangers (8 East, 10),
and could derive no benefit from them. They
had not a right to the possession or use of the
vessel. She was held by Bingham under his
contract. In the case of Oarman v. Bennet,
Str. , 816, it was held that, prima facie, the re-
pairer of a vessel has his election to sue the
master who employs him or the owners; but
if he undertakes it on a special promise from
either, the other is discharged. There was not,
to be sure, in the present case, any special
promise by any person to pay for the repairs.
But there was something equivalent to it — an
actual employment by Bingham, as owner,
through his agent, the master; and there can
be no doubt but Bingham would be liable for
such repairs. When a master contracts for
the use of the vessel, the credit is given to him
in respect of his contract; and it is given to the
owners, because the contract is on their ac-
count. (1 T. R., 109.) But when the contract
is made on account of any particular person, as
owner, it is on his credit, and not on the credit
of any unknown owner, that the expenditure
is made. This case is very analogous to that
of Wendoxer & Hinton v. Hogeboom et al., 7
Johns. , 308. There, as in this case, the con-
sideration money was to be paid by install-
ments, and a formal bill of sa^e was not to be
executed and delivered until the payments
1100
were completed. No possession of the vessel
was delivered; and it was held that a regular
bill of sale was not essential to transfer the
property in a vessel, and that the former own-
ers, under such a sale, were not responsible for
articles furnished the vessel. They had ceased
to be owners, so far as to exempt them from
responsibility for supplies, especially as the
credit was not given to them. These are prin-
ciples which apply directly to the case before
us, and go to exonerate the defendants from
*the present demand. They are, ae- [*3O4
cordingly, entitled to judgment.
Judgment fen- the defendants.
Distinguished — 4 Mason, 393.
Cited in— 16 Johns., 92 ; 7 Cow., 698 ; H. & D.t
330; 36 N. Y., 100; SON. Y., 240; 7 Barb., 492; 14 Barb.,
584; 24 How. Pr., 486; 2 Hall, 20; 3 Duer, 452; 6 Duer,
361; 1 Daly, 174, 305: 2 Bl., 385; 1 Wood & M., 314;
1 Cliff.. 380; Newb., 312; 2 Wood. & M.. 58, 98.
QUIMBY v. HART,
Pleading and Practice in Justice Court — Tres-
pass.
In an action of trespass on land, in a justice's
court, the defendant cannot, after pleading the gen-
eral issue, interpose a plea of title: nor can he un-
der the general issue, give evidence of title.
N ERROR, on certiorari to a justice's court.
I
The plaintiff in error brought an action of
trespass in the court below against the defend-
ant in error for cutting down his trees. The
defendant appeared personally, pleaded the
general issue, demanded a jury, and moved for
an adjournment, which was gran ted; when the
venire was returned, and the justice was about
to impanel the jury,, the defendant, by his
counsel, offered a formal plea of title, and ten-
dered security. The plaintiff objected to the
new plea as too late, and the justice allowed
the objection. The plaintiff having proved
the trespass, the counsel for the defendant of-
fered to prove title to the locus in quo, but the
justice excluded the evidence. There was,
nevertheless, a verdict and judgment for the
defendant.
Per Curiam. The only question is, whether
the plea of title was tendered in due season to
suspend the jurisdiction of the justice. We
think it was too late after pleading the general
issue, demanding a jury and obtaining an ad-
journment. The defendant must make his
election to interpose his plea of title before
any other plea. It would be inconvenient and
irregular to allow a different practice.
Judgment reversed.
THE OVERSEERS OF THE POOR OF
OF THE TOWN OF NEW PALTZ.
Pauper — Order of Removal — Appeal from —
Testimony of Appellant — Settlement iinder
Statute.
On an appeal from an order of removal, the
Court of Sessions ought not to compel one of the
JOHNS. REP., 15.
1818
OVERSEERS OF PLATTEKILL v. OVERSEERS OF NEW PALTZ.
305
overseers of the poor, who is a party to the appeal,
to testify: but this is, notwithstanding, not a wound
for reversing their order, as the proceedings were
not beforea lury, and this court will reject the evi-
dence improperly given.
Where a IH.TSOII occupied and cultivated land on
shares, and in one year delivered to the owner, as
his proportion of the crop, produce to the value of
more than $30, but every other year the share re-
ceived by the owner was less than $£); it was held
that this was not such a renting and occupation of
a tenement of the yearly value of $90, for two
years, and actual payment of rent, as to gain the
occupant a settlement in the town in wnich the
land was situated, under the 2d section of the Act
for the Relief and Settlement of the Poor (seas. 96,
ch. 78).
IN ERROR, 'on eertiorari to the Court of
(leneral Sessions of the Peace of the County
of Ulster.
An order was made by two justices of the
County of Ulster, for the removal of Charles
Dempsey, otherwise called Thomas Shirkey,
and Elizabeth, his wife, from the town of
Plattekill to the town of New Paltz, from
which order the overseers of the poor of New
Paltz appealed to the Sessions of Ulster County,
and the appeal was heard at the September
Terra. 1816, of the court below.
At the hearing, the overseers of New Paltz,
the appellants, offered as a witness William
Gerrow, one of the overseers of the poor of
Plattekill, to whom it was objected that he
was a party, and could not be compelled to
testify, and had not consented to be a witness;
but the court overruled the objection, and
compelled Gerrow to testify; but it is unnec-
essary to set forth his evidence. It was proved
that the pauper had, in 1788 and 1789, paid
taxes in the town of New Paltz, and only once,
if at all, in Plattekill; though he had resided
there more than twenty years, and had received
relief from the overseers of that town, but with-
out any order of justices for that purpose. The
pauper testified that he had worked on land in
Plattekill on shares, the owner's share being one
third of the crop> that one year he had an ex-
traordinary crop, and the owner's share
amounted to more than $30 worth, and would
have amounted to more than $30 for two years,
if he had taken or exacted the whole of it,
which, however, he did not, except in one
year. Another witness testified that the own-
er's proportion of the crop was always very
tritiing; that the witness would not have given
more than $20 in any one year for it, and that
ttOO*] *the land occupied by the pauper
would not rent for more than $20; that the
tract on which the pauper worked consisted of
more than one hundred acres, of which the
owner designated every spring the parts that
he should cultivate.
The court below quashed the order of re-
moval, with costs, to be paid by the overseers
of Plattekill.
Mr. C. Haggles, for the plaintiffs in error.
The order of the justices was. priina fade,
evidence of a settlement in New Paltz; and it
was incumbent on the appellants to show a
settlement in Plattekill. They attempted to
show that the pauper had rented a tenement
of the yearly value of $30 for two years, and
actually paid rent and taxes in Plattekill; but
he was not such a tenant as the act contem-
plates. Letting land upon shares, for a single
crop, does not amount to a lease. (Bradish v.
JOHNS. REP.. 15.
i Schentk, 8 Johns., 151.) There should not
| only be a lease for two years, but an actual
payment of rent. (Port Ann v. Kingsbury, 14
Johns.. 865.)
Again ; Gerrow was an incompetent wit-
j ness (N. R. L., 285, 36th sess., ch. 78 sec. 20),
; on the irround of interest. (Phil. Ev., 57 ;
'< 3 East, 7.) He cannot be compelled to testify.
! (Title v. Grevett, Ld. Raym., 1008.) The
! plaintiffs in error were entitled to have the
cause heard and considered by the Court of
Sessions, without the admission of any im-
proper evidence whatever.
Mr. Sudnm, contra. Gerrow was In mini to
testify. His interest was too remote and con-
tingent to render him incompetent. (Falls v.
liefknap, 1 Johns., 488.) The witness proved
that the pauper had been supported by P. in
1813 and 1814, as an inhabitant of the town,
where he had resided about twenty years. If
it had been the case of a casual pauper, then
under the 16th section" of the Act, a distinct
account of his maintenance should have been
kept, and notice given to the overseers of N. or
the place to which he belonged. Not having
conformed to the directions of the Statute in
that respect, the overseers of P. are concluded
by their own acts ; and having maintained and
*treated the pauper as an inhabitant of [*3O7
P., they are estopped to allege that he was
not settled there. (14 Johns., 367.) It is lo be
presumed that everything was done by them
legally : they cannot set up their own negli-
gence or illegal conduct to avoid responsibility.
It is, moreover, made the duty of the overseers
of the poor to keep a book, in which is inserted
the names of all persons applying for relief,
the sums allowed, &c. (28th sec.) They ought
to be held to a strict performance of their
duty, and after a lapse of three years, they
ought not to be -permitted to set up that they
have wholly neglected to obey the directions
of the Act, in order to charge the pauper on
another town.
Again ; it was not necessary to s'how an actual
letting or leasing for more than one year ; it is
enough that rent to above the value of $30 has
been paid, any one year. The question is as to-
the ability of the person ; and it is the sum to
be paid, and not the actual payment, which
is to be considered. (Burr. Sett. Cas., 285,
248.)
Mr. Ruggles, in reply. The testimony of the
pauper himself is confused, and entitled to lit-
tle or no weight. His evidence does not es-
tablish the fact of the annual rent being $30.
Our statute requires the actual payment of
rent ; and so the court decided in the case of
Fort Ann v. Kingxbury.
The order for relief, given in 1813, ought
not to conclude the overseers of P. The neces-
sity of the case may demand immediate relief,
and there need be no adjudication. There can
be no appeal from such an order : it is a mere
voucher. In the case of Stevens v. Howard, 12
Johns., 195, it was held that nn order of filia-
tion and maintenance was not conclusive that
the child was a pauper of D. (Bolt's Poor
Laws, 405, Rexv. North Shields.) But, in fact,
there was no written order whatever. The
relief was given informally and irregularly ;
and under the circumstances their accounts
were allowed. %
1101
307
SUPREME COURT, STATE OP NEW YORK.
1818
Per Cunam. One exception to the proceed-
ings of the Sessions is, that they compelled one
of the overseers of Plattekill, a party on the
3O8*] record, to become a witness, in *order
to prove that the pauper had gained a settle-
ment in Plattekill.
On this point it is clear that the Sessions
erred ; but as there has been no intervention
of the jury, and the judges of the facts and of
the law were the same persons, the only ef-
fect of that exception must be to discard the
testimony of that witness.
The second exception is, that the Sessions
decided wrong upon the evidence before them,
as to the pauper.
The evidence is clear and uncontroverted,
that the pauper, Thomas Shirkey, was assessed,
and actually paid taxes to the town collector
of NewPaltz in the years 1808 and 1809; and as
against Plattekill (independent of the illegal tes-
timony), it was proved that Shirkey had resided
chiefly in Plattekill for the last twenty years ;
that he had received occasional support from
the overseers of that town, but without any
formal order for that purpose : and that he
had one year worked land on shares, and de-
livered a part of the produce to the owner,
worth more than $30 ; and that he continued
afterwards to crop the land on shares for
several years, but never actually delivered to
the owner so much as $30 worth of produce for
any one year except the first. It is very doubt-
ful whether the evidence proves 9 tenancy at
all by the pauper ; but even if that were so,
the law requires that he should have " actual-
ly and bona fide rented and occupied a tene-
ment of the yearly value of $30, or upwards,
for two years, and actually paid such rent,"
&c. According to this test, the paupers had
no legal settlement in Plattekill, and were
rightfully removed to New Paltz, where they
had acquired a legal settlement by having
" been charged with, and actually paid public
taxes for two years."
The order of the General Sessions of Ulster
County must, therefore, be reversed.
3O9*] *JACKSON, ex dem. NOAH,
0.
DICKENSON AND THOMPSON.
Ejectment — Purchaser under Execution — Where
between Sale and Execution of Deed by- Sheriff
Mortgage is Foreclosed, Deed Takes Precedence
— Notice of Lis Pendens, Commences with
Service of Subpoena — Affidavits of Jurors Ad-
missible to Show Mistake.
The laud of A was sold under an execution, at the
suit of B against A, on the 1st of March ; on the 10th
a mortgagee of the same land flled a bill of fore-
closure in chancery against A and B, and on the
19th the sheriff executed a deed to the purchaser
under the execution. Held that the deed relates
back to the time of the sale, and the purchaser is
not precluded from contesting the validity of the
mortgage in an action of ejectment at law, he not
being a party to the bill ; and as his title was
acquired previous to notice of a lis pendensin chan-
cery, although not consummated until afterwards.
NOTE.— Com mencement of suit— What is. See
Lowry v. Lawrence, 1 Cai.. 69, note.
1102
Notice of a lis pendens in chancery, to affect a sub-
sequent purchaser, commences with the service of
the subpoena.
The affidavits of jurors are admissible to show
that a mistake had been made in taking their ver-
dict, and that it was entered differently from what
they intended.
Citations— 1 Johns. Ch., 576 ; 1 Johns. Cas., 86.
THIS was an action of ejectment brought to
recover a lot of land in Orange Street, in
the City of New York, in the occupation of
the defendant Thompson. The cause was tried
before Mr. Justice Van Ness, at the New York
sittings, in December, 1816.
The premises in question formerly belonged
to Ephraim Hart against whom a judgment
was docketed in favor of Joel Hart on the 5th
of May, 1812, on a bond in a penalty of $30,-
000, conditioned for the payment of $15,000,
and secured by a warrant of attorney. A
fieri facias was issued on this judgment, re-
turnable on the 16th of May, and delivered to
B. Ferris, then sheriff of the City and County
of New York, on the 9th May, to which the
sheriff returned that he had levied of the lands
and tenements of the defendants therein, $4,-
759. The plaintiff lessor gave in evidence a
deed from the sheriff to his lessor in fee, for
the premises in question, and other property,
dated the 1st of March, 1813, and a memoran-
dum of a lease of the premises for two years,
from the plaintiff's lessor to the defendant
Thompson, under which he entered into pos-
session, but in February, 1816. refused to pay
rent to the lessor .of the plaintiff, disclaimed
holding under him, and claimed to hold under
the other defendant Dickenson.
The defendants produced in evidence a
mortgage of the premises in question, executed
by Ephraim Hart and his wife to the defend-
ant Dickenson, dated the 18th April, 1811, to
secure the payment of a bond of the same
date, conditioned to pay the sum of $2,442,
with lawful interest, on or before the 18th of
April then ensuing. On the 10th of March,
1813, Dickenson tiled a bill in the Court of
Chancery against Ephraim and Joel Hart and
others, to foreclose the mortgage ; and a de-
cree having been made for the sale of the
premises, they were sold by a master, and con-
veyed to Dickenson in fee, by deed bearing
date the 1st of March, 1816. Ferris, the
sheriff, testified that the sale under J. Hart's
'^execution was made on the 1st of [*31O
March, 1813, after a regular advertisement, but
that the deed was not delivered until the 19th.
He further stated that he was not present at
the sale, and only knew from the returns of
the officer who made it to whom the land was
sold ; that from those return's it appeared that
of several parcels of land which were sold at
the same time under the execution, some were
bid off by Joel Hart and some by the plaint-
iff's lessor ; that the property in question ap-
peared to have been bid off by J. Hart, but
that it was written on an erasure, and he could
not say to whom it was originally entered ;
that within a day or to after the sale (or, as he
said on being examined again in the sub-
sequent part of the trial, it might have been on
the day of the sale), J. Hart and Noah, the
lessor of the plaintiff, called on him together,
and directed the deed to be made out to the
latter ; that he did not recollect that Noah paid
JOHNS. REP.. 5-.
1818
JACKSON, EX DEM., v. DICKKNSON.
318
any money ; that when .1. Hart and Noah
came to settle, J. Hart said that he had taken
Noah's note for the consideration money, and
that the witness insisting upon having some
money to pay the printer's bill, &c. J. Hart
paid the sum. and he took his, note for the res-
idue. The witness, however, on his re-examin-
ation, stated that he thought, on reflection, that
it was Noah who brought him the money to
pay the expenses of the sale. The plaintiff con-
tended that the bond and mortgage to Dickeii-
son were usurious and void, and produced
testimony in support of this allegation.
The deposition of Mordecai M. Noah was
produced on the part of the plaintiff, who tes-
tified that in 1811, shortly before the delivery
of the bond and mortgage, he was present at
one or more interviews between Dickenson
and Ephraim Hart, respect ing a debt due from
the latter to the former, and that they spoke of
a note held by Dickenson against E. Hart hav-
ing been dishonored ; that Dickenson ap-
peared to be very pressing to obtain his debt ;
that on the 18lh of April, in the same year, at
the request of E. Hart, he took the bond and
mortgage to Dickensou's attorney, for which
he was to receive a note and check, and that
on the 19th of April he. received from the at-
tornev, E. Hart's note for $1,200, dated -Decem-
311*] ber the 20th, 1810, payable in *ninety
days to J. Winter or order, and indorsed by
Winter ; and E. Hart's check on the Manhat-
tan Bank, dated the 12lh of April. 1811, for
$1.000.
Naphtali Phillips, on the part of the plaint-
iffs, testified that in or about the month of
December. 1810, E. Hart put into his hands,
as a broker, to sell and raise money on for
Hart, two notes, drawn or indorsed, the wit-
ness did not recollect which, by E. Hart and
J. Winter, one being the maker and the other
the indorser, for $1,200 or $1,400 each, pay-
able at three and four mouths ; that he pro-
cured the notes to be discounted by Dickenson,
at the rate of at least one and a half per cent,
a month, and that E. Hart was at that time
much pressed for money. It was stated by
another witness, on the part of the plaintiff.
and who attended the sale under the execution,
that Noah was present and bid. and that all
the lots, excepting one bid for by the witness,
were struck off to him. It was further proved
that about the 30th of March, 1813, Noah de-
livered J. Hart an accountable receipt of the
latter for $260, which amount had been placed
in his hands by Noah, and a sum in cash: the
accountable receipt, the interest then due
thereon, and the cash, amounting to $3,400.
for which sum J. Hart gave Noah a receipt,
as for the full amount of the houses and lots
purchased by Noah, under the execution
against E. Hart. A variety of evidence, be-
side that which has been already detailed, was
produced in relation to the question, whether
Noah, the lessor of the plaintiff, was the real
owner of the premises, or was merely a trustee
for Ephraim or Joel Hart.
A verdict was found for the plaintiff, s''b-
ject to the decision of the court, on this point,
how' far the plaintiff was bound by the pro-
ceedings in chancery. All the other questions
arising in the canst were submitted to the jury.
At the time of bringing on the case to argu-
JOHNS. REP., 15.
mi-lit, the defendant also moved for a new
trial, on the ground that the verdict of the jury
had been incorrectly taken and of surprise,
and for this purpose produced several affi-
davits.
Five of the jurors on the trial swore that
the only question of fact submitted to them
was, whether a' certain mortgage, executed by
Ephraim Hart, under which the defendants
•claimed title, was usurious or not ; [*3 1-2
and that the jury, by their verdict, found, and
so expressed it to the court, that there was
"usury on the note," meaning and intending
one of the notes negotiated by Naphtali Phil-
lips. The deponents also said that there was
no other evidence offered on the trial to prove
any usury on either of the notes, except the
testimony of Phillips ; and that, at the time
of delivering their verdict, the court inquired
of the jury whether they intended to find that
the usury in the note was connected with the
mortgage, or to that effect ; to which one of
the deponents replied that the jury did not in-
tend to find so, but the deponents believe that
the answer so made was not heard by the
court.
The defendant Diekenson deposed that hav-
ing, previous to the trial, seen a copy of the
deposition of Mordecai II. Noah, he was pre-
pared with testimony to rebut and did rebut
any presumption of usury in the mortgage,
arising from the deposition, in a manner satis-
factory to the jury, as appeared by their ver-
dict : but not having had the least intimation
or suspicion that the plaintiff intended to im-
peach the note, the amount of which consti-
tuted a part of the sum secured by the mort-
cage, he was surprised by the testimony of
Phillips ; nor did he perceive the bearing of it
until his counsel were summing up, when he
went for his bank and bill books, but was un-
able to find the entries until after the judge
had charged the jury ; and that a few minutes
after the jury went out he found the entries,
and had a witness in court to prove that the
notes received from Phillips had been paid in
bank. He also deposed that neither of those
notes (one being for $925.75, and the other for
$675) had any connection whatever with the
note referred to by Mordecai M. Noah; but that
that note was for money lent by the deponent
to E. Hart, at the rate of seven per cent., and
that the difference between the sum specified
in the mortgage and the note and check of E.
Hart, was actually paid by the deponent, in
money, to E. Hart, before the mortgage was
executed. There were two other affidavits in
support of the allegation that the noles men-
tioned by Phillips had actually been paid.
*J/r. fltNWft, for the plaintfff. The 1*313
question is, whether the lessor is to be deemed
a purchaser, pendente lite, so as to be barred by
the decree of the Court of Chancery. The
pendency of a suit in chancery commences
from the service of the subpoena, after the bill
is filed. (.}fnrr<iy v. failluu, 1 Johns. Ch., 507;
1 Vern. ,318.) The general rule is. that all
persons in interest, at the commencement of
the suit, must \te made parties. (fJitkcoek v.
Seriftner, 3 Johns. Cas., 311 ; Johnwn v. Hart,
Id., 322.) Noah became a purchaser on the
1st of March, 1813, and the bill was filfd on
the 10th of March ; but it does not appear
lltt
313
SUPREME COURT, STATE OP NEW YORK.
1818
when the subpoena was served. It is clear,
however, that it could not have been served
until after the purchase of Noah, at the sher-
iff's sale. His title, then, was not acquired
pendente lite ; and he had an interest which
entitled him to be made a party to the suit ;
and not being a party, he is not bound by the
decree.
Though the deed of the sheriff was not, in
fact, executed and delivered until the 19th of
March, yet it has relation back to the day of
sale, or the time when it ought to have been
delivered. (Jackson v. Raymond, 1 Johns. Gas. ,
85, n. • Heath v. Ross, 12 Johns., 140.) So in
equity, whatever, for a valuable consideration,
is agreed to be done, is considered as done,
and money covenanted to be laid out in land
is considered as land and descends to the heir.
<3 P. Wms., 27, 215 ; 1 Salk., 154 ; 2 Pow. on
Cont., 56, 58.) If the doctrine of relation, as
laid down by the court, is applied to this case,
the lessor of the plaintiff must be deemed to
have had a title to the premises on the 1st of
March, prior to a Us pendens, and which can-
not be defeated by a decree in that suit, to
which he was not a party. That a person ac-
quiring an interest, pendente lite, need not be
made a party, and is bound to take notice of
the proceedings in the suit, at his peril, is
deemed a very rigorous rule, and has been
adopted only from necessity.
As to the affidavits which have been read to
support the motion for a new trial, on the
ground of newly discovered evidence and
surprise, we object; first, that affidavits of
jurors to impeach or alter their verdict are not
admissible (Dana v. Tucker, 4 Johns., 487;
314*] Oioen v. Warburton, *4Bos. & P., 326;
Jackson v. Williamson, 2 T. R., 281 ; and,
second, that the facts stated are not sufficient
to show any surprise on the part of the defend-
ants, or to induce a belief that the additional
•evidence, if it had been produced to the jury,
would have induced them to find a different
verdict. There can be no use in sending back
a cause to another jury, if the new testimony
cannot vary the result. The jurors say they
found usury in one of the notes, though not in
the mortgage : but their finding a verdict for
the plaintiff shows they considered the mort-
gage usurious as well as the note.
Mr. T. A. Emmet, contra. The question of
usury ought to have been raised, if at all, in
the suit in chancery, where justice would have
been done, by directing the principal and the
lawful interest to be paid.
The lessor of the plaintiff, having acquired
his title subsequent to the commencement of
the suit in chancery, must be affected by the
proceedings in that cause. The time when a
subpoena is served, is material only between
the parties to the suit. As it regards the rest
of the world, the filing of the. bill is the com-
mencement of the suit ; and a suit actually
pending in a court of record is notice to all
the world. To take a conveyance of the prop-
erty, during the pendency of a suit, is cham-
perty, and renders the deed void. (Jackson,
exdem. Bryant, v. Ketchum, 8 Johns., 479.) It
is clear that no money passed from Noah at
the time of the purchase. He knew of the
proceedings in chancery, and was, then, a
trustee for the parties to the suit in chancery.
1104
Again; the defendant D., as a mortgagee,
had a right to bring his action to put Hart or
Noah out of possession. Hs has, moreover,
acquired a distinct title, as a purchaser, under
the decree of the Court of Chancery. He has
acquired a legal title, which merges all title
under the mortgage. He is a bona fide pur-
chaser under a judicial sale. The not being
made a party can only give Noah a right to
redeem ; and he might, by filing a cross bill,
have claimed the equity of redemption. But
after lying by, and permitting the suit to go
on to a *final decree and sale, he comes [*3 15
too late with his objection. In Jackson, ex
dem. Bartlett, v. Henry, 10 Johns., 185, it was
decided that a bona fide purchaser, under a
sale duly made pursuant to the Statute, by
virtue of a power contained in the mortgage,
was not affected by us.ury, in the original debt
for which the bond and mortgage were given.
Where a person brings his action, to be re-
lieved against an usurious contract, he must
first tender all. the money really advanced.
Fitzroy v. Owillim, 1 T. R., 153.)
Affidavits of jurors, compatible with their
verdict, and which do not impeach it, are ad-
missible. Here the jurors say only that a
mistake has been made, by the clerk or the
judge, in entering their verdict.
Mr. Hanson, in reply, said that it was a well-
settled and very salutary principle, that where
a bill was filed, aad a subpoena issued, all
subsequent purchasers must be bound by the
decree, without being made parties. The mere
filing of a bill is not sufficient to create such a Us
pendens as will affect subsequent purchasers ;
the suit must be in full prosecution ; the sub-
pceua must be served. Such was the rule, as
laid down in Murray v. Battou. The law, as
it has been stated, is not denied by the coun-
sel on the part of the defendants. He alleges,
merely, that the lessor of the plaintiff was not
a purchaser at the sheriff's sale, and that he
acquired no interest or title until after the suit
was pending in chancery. [Here the counsel
discussed the evidence in the case.]
i
YATES, J., delivered the opinion of the
court:
The rule that a Its pendens in the Court of
Chancery (1 Johns. Ch., 576), which must be-
gin from the service of the subpoena after the
bill is filed, is considered notice to a subse-
quent purchaser, so as to affect and bind his
interest, cannot now be controverted ; but
according to the facts disclosed by the testi-
mony in this case, it does not appear that the
suit in chancery had been instituted when the
sale took place. *The deed, although [*316
subsequently executed by the sheriff, to the les-
sor of the plaintiff, for the premises in ques-
tion, cannot, then, be illegal and inoperative
on the ground of notice, for the purchase was
made on the 1st of March, and the filing of
the bill (without noticing the time of issuing
the subpoena) was not until the 10th of March.
The subsequent delivery of the deed, being a
mere matter of form, must have relation back
to the time of purchase at the sheriff's sale.
When the subpoena issued, does not appear.
In Jackson v. Raymond, 1 Johns. Cas., 85, it is
stated, in the opinion delivered by one of the
judges, as a general principle, that whenever
JOHNS. REP., 15.
1818
COOPER v. HISSKU..
316
iTis intended to be shown that nothing passed I Cited in-3 Cow 80: » Wend.. 253_; 22 Wend.. US;
. I ...... .).... of tli.. tima thorn I I""1' I • * . _ ^laTKC, OMI, Z .> • *-.o«' . <» J* • * -• •**» •
tw Harb.. 230: 9 Wall., 603; 28 Mich.,
by a grant, by reason that, at the time, there
was a possession in another, adverse to the 397 ; 31 Cal.. 304.
grantor, the time to which the grant is to re-
late is the time when the bargain or contract
for the sale and purchase of the land was final-
ly concluded between the grantor and grant-
ee ; and consequently, any intermediate ad-
verse possession before the execution of the
. . , -««K.,i Where a Court of C. P. refused leave to amend a
conveyance, which is the technical consumma- Kt.m.rM, wr^ict< by applyii.K the evidence t<. ..in-
lion of evidence of grant, can never anect it. count, and to enter a mil. J>M*. as to the other, this
If this nrincinle is correct, it applies with equal ' court, on a writ of error. Judgment havliiR been en-
or greater force to the commencement of a ten-d^n tin v.niut ixjlow, cannon Krant leave to
suit in chancery, between the time of a sher-
iff's sale, when the purchase is actually made,
and the giving of the deed by him. In such
case, the delay in not delivering the deed is an
omission of duty in the public officer, and his
laches ought not to prejudice the rights of the
party.
That the lessor of the plaintiff was the pur-
chaser, cannot now be questioned. There
was sufficient testimony to authorize the jury
to infer it. Ferris, the sheriff, on being called
a second time, stated that, on reflection, he
thought that Hart and Noah came to him on
the day of the sale, and requested that the
deed should be given to Noah. If, then, Noah
was a bona fide purchaser at the sheriff's sale,
before the existence of the suit in chancery,
or there was a ti» pendent, it follows, that
to make the decree conclusive on him, he
ought to have been made a party. Not being
a party, so far as relates to his title, the rights
•COOPER r. BIS8ELL. [*3 1 8
Proftice — Amendment of Record — Writ of Er-
ror.
amend the record.
Citation* -1 Cat., 381 ; 1 Johns., 506; 1 Andrews,
384,385.
M
R. STORRS moved for leave to enter a
nolle prosequi as to one count, on an afti
davit stating that this was a writ of error to
the Oneida Court of Common Pleas ; that
the declaration contained two counts, one in
trover, and the other in trespass, for taking a
horse ; that the verdict was general, and that
the evidence applied to either count ; that an
application had been made to the court below
to amend the verdict, by applying it to one
count, and for leave to enter a nolle proteqm as
to the other, which motion had been refused.
He contended that the Court of Errors had a
right to make the amendment requested, as
fully as the court below.
Air. Toicot, contra.
Per Curiam. There are several insuperable
____ rf , _____ objections to the motion.
of the mortgagee, under the mortgage Mtle, \Vhuu one count in a declaration is good
notwithstanding the decree, remained open
for discussion, and the purchaser at the sher-
317*] iff's sale *retained the right of contest-
ing its validity at law, without tendering the
amount of principal and interest due on the
mortgage. If, on the trial, it should be made
to appear that the consideration for which the
mortgage has been given is usurious, it is suf-
ficient to protect the lessor in claiming under
the sheriff's deed. The question of usury was
therefore important, in settling the rights of
the parties, and although the testimony on
that part of the case might, perhaps, warrant
the verdict, as it now appears, yet, from the
facts stated by the jurors, as to what took
place in delivering in their verdict, it would
seem not to have been as entered by the clerk
at the circuit. What the jurors have deposed
must be noticed by the court, because their
affidavits are not as to what transpired while
deliberating on their verdict, but as to what
took place in open court in returning their
verdict, and shows that the clerk made a mis-
take in entering, or the court in directing, a
different verdict. The information -afforded
by the affidavits of the jurors, is not to im-
peach, but to support the verdict really given
by them. This mistake, then, is manifest ;
and from the affidavits of Pratt and Dicken-
son, there is reason to believe that the defend-
ants were surprised with testimony on the trial ;
and it being an action oj ejectment, in which
the rule applicable to other cases, as to new
trials, is not so rigidly enforced, it is the opin-
ion of the court that a new trial ought to be
granted.
New trial granted.
JOHNS. REP., 15.
and the others bad, if the judge will certify
that the evidence applied solely to that count,
or that all the evidence given would properly
apply to that count as well as the others, the
verdict may be amended by applying it to the
good count ; and if the evidence did not par-
ticularly apply to the bad count, the verdict may
also be amended. (I Caines, 381 ; 1 Johns. . 505.)
Admitting that one of the counts here is
bad, on account of the misjoinder, the amend-
ment can only be made in the court where the
trial took place, and by reference to the judge's
notes.
It is believed there is no instance of an
amendment in a court of errors, by inquiring
into facts dehors the record,
in this court to amend bv.
There is nothing
A court of errors
N. Y. R., 5
will cither overlook clerical mistakes, or they
will amend them in furtherance of justice,
where there is anything to amend by. It would
not, in this case, be discreet in the court to
make the amendment, if they had the power ;
for *this motion has been submitted to [3 19
the court below, where the trial took place,
and that court has refused to make the amend-
ment.
In the present case, a judgment has been
given upon the verdict, and consequently it is
completed: if any error has intervened, it is
an error of the court in point of law ; and in
such case, it is very questionable, indeed,
whether this court can amend: the better opin-
ion is. that it cannot. (Itayv. Litter, 1 And.,
384, 885.
Motion denied.
Cited In— 8 Cow.. 063 : 12 Wend.. 196; 3 Den-Jttt
: II.. w. IT., a; 17 How. Pr., 2«; 13 Abb. Fr., 387 ; t
Daly. 'AC.
70 1106
319
SUPREME COURT, STATE OF NEW YORK.
1818=
MARY COLES, Widow of S. COLES,
S. W. COLES.
Dower— Is Allowed out of Equity of Redemp-
tion—Partie* to Partition Suit — Where Hus-
band wax Seined in Seceralty — As Joint Ten-
ant— As Tenant in Common.
Where a person, seised of land in fee, mortgages
it and afterwards marries, his widow, on his death,
is entitled to dower out of the equity of redemp-
Where the husband was seised of the land in
severalty, the widow cannot proceed under the Act
for the Partition of Lands (sess. 36, ch. 100 : IN. K.
L 507), for the purpose of obtaining her dower;
nor can she be made a party to a partition among
the heirs, devisees or grantees of her husband.
But it seems that where the husband was seised as
joint tenant, or tenant in common of land, the
widow, as her right of dower extends only to an
undivid-d part, is a proper party to a partition
among the several joint owners.
Citations-6 Johns., 290; 7 Johns., 278; Act April
7, 1801 : Act April 12, I8KJ, sees. 14, 15; 8 Johns., 558 ;
Act April 15, 1814, ch. 1!)8, sec. 1.
IN partition, under the Act for the Partition
of Lands, passed April 12th, 1813(sess. 36,
ch. 100; 1 N. R. L., 507). The defendant
pleaded non \tenent inximul, and the cause was
tried before Mr. Justice Van Ness, at the New
York sittings, in June, 1817.
Stephen Coles, deceased, was, in his lifetime,
seised in fee of the premises in question,
which, on the 20th of April, 1796, he mort-
gaged to the Marine Society, for the payment
of $500 with interest. S. Coles and the
plaintiff intermarried in 1804. By deed, dated
the 15th of January, 1813, S. Coles conveyed
the premises to the defendant (but the plaintiff
did not join in the conveyance), and died in
April, 1816. The mortgage to the Marine
Society was still outstanding, but the interest
thereon had been regularly paid, first by S.
Coles, and afterwards by the defendant. The
plaintiff proceeded in this action for the pur-
pose of obtaining her dower, and at the trial
3UO*] a verdict was taken in *her favor, sub-
ject to the opinion of the court on a case con-
taining the above facts.
Mr. R. Bncjardus, for the plaintiff. There
can be no doubt that a widow has a right of
dower, in an equity of redemption' in land
mortgaged by her husband before their mar-
riage. (Hitchcock v. Harrington, 6 Johns.,
290; Collins v. Torry, 7 Johns., 278.)
As to this mode of proceeding under the
Partition Act, to obtain her dower, though,
under the former Act (I K. & R., 513) of 'Par-
tition, it might not be allowed, yet in the newly
Revised Act, passed April 12, 1813(1 N. R. L.,
507-513), there are several sections, in which
provision is made for proceeding in case either
party is a tenant in dower, by the curtesy, or
for life ; and in the Act passed the 15th of
April, 1814 (sess. 37, ch. 198), provision is
made for the right of dower, in case of a sale
under the Partition Act.
Mr. T. A. Emmet, contra. This court have
not yet gone the whole length of the doctrine,
contrary to the English law, that a widow may
be endowed of an equity of redemption. It
has only been decided that the tenant claiming
under the heir of the mortgagor was estopped
to deny his seisin, or avail himself of the
mortgage to defeat the widow's dower.
1106
[SPENCER, J. In Runyan v. Mersereau, 11
Johns., 534, we held that a mortgage, at law,
as well as in equity, was a mere security for
money : that the mortgagee has only a chattel
interest, and that the freehold remains in the
mortgagor.]
But there is another and a fatal objection to
this action. Instead of bringing her action
for dower, and before any dower has been
assigned to her, the plaintiff proceeds under
*the'Act for Partition as if she were a [*321
tenantin common. In-Brndthawv. Call<ighan,f>
Johns., 80: S. C, (in error), 8 Johns., 558, the
court say that a widow's dower is not within
the purview of the Partition Act ; that she is
not a joint tenant, or tenant in common, or
coparcener. Here is a plea of non tenentinsi-
mul; and how can the plaintiff make out a
tenancy in common ? The plaintiff has no-
estate until dower has been assigned to her.
She has nothing but a mere right ; the heir is
seised of the whole estate.
PLATT, J., delivered the opinion of the
court :
The widow filed her petition under the "Act
for the Partition of Lands," to which the de-
fendant pleaded non tenent inximul. Upon
the trial of that issue, the widow claimed
dower in the lands described in the petition ;.
and there was a verdict for the plaintiff, sub-
ject, &c.
Upon the evidence stated in the case, two-
questions were made on the argument :
1st. Whether a widow is entitled to dower
when the husband died seised of an equity of
redemption only, having mortgaged the land
before marriage.
2d. Whether dower can be assigned under
the Act for the Partition of Lands.
Upon the first point, I think the decisions in
the cases of Hitchcock v. Harrington, & Jobs*.,
290, and Colling v. Torry, 7 Johns., 278, have
settled the law in favor of the widow's claim
of dower.
On the second point, it was decided in the
case of Bradahaw v. Cdllaghan, first in this
court (5 Johns., 80), and afterwards in the
Court of Errors (8 Johns., 558), that a tenant
in dower is neither a joint tenant, a tenant in
common., nor a coparcener," and therefore not
within the purview of the "Act for the Parti-
tion of Lauds ;" that a partition under that
Act, among the other tenants, without refer-
ence to the right of dower, is valid ; and lhat
her rights cannot be affected by the partition ;
nor is she liable for any part of the costs.
Those decisions were made under the Act of
the 7th of April, 1801 (1 K. & R., 542). which
was re-enacted' the 12th *of April, [*J$i22
1813 (1 N. R. L., 507), with the addition of
six new sections, to wit : 14, 15, 16, 17, 18 and
19.
The 14th and 15th sections of the new Act,
it is contended on the part of the plaintiff,
have enlarged the purview of the former stat-
utes so as to embrace a tenant in dower. (1 N.
R. L., 513.)
The Legislature, in enacting those additional
sections, seem to have assumed that, according
to the former Statute, a tenant in dower might
be a party in partition. The new sections do
not expressly alter the law in that particular ;
JOHNS. REP., 15^
1818
FOWLER v. SHARP.
322
but assuming that sUch a right existed, they
make provision for the more convenient and
effectual exercise of the right.
The new provisions in the Act of the 12th of
April, 1818. do not. however, after the law as
it was expounded in the case of Uradnhaw v.
CaUughan. 8 Johns., 558. In that case, the
seisin of the husband was of an entire parcel
of laud in severally, and the court decided
that partition should be of the whole land
among the heirs or devisees, without making
the widow a party, but subject to her claim of
dower in the whole.
But suppose the husband seised as tenant in
common, the right of dower is correspondent ;
it can then be in an undivided share only, and
a partition must be made before the dower can
be assigned. May not the widow, having no
interest but that of dower, be a necessary party
in partition when the object is merely to sever
the tenancy in common, in order to have her
dower afterwards assigned ? I incline to think
she may and ought to be a party to the parti-
tion in the latter case : and if so, then the 14th
section of the Act of the 12th of April, 1813,
must be construed as referring to cases where
the seisin of the husband was that of a tenant
in common. Considering alt the statute pro-
visions in pan materia, I am of opinion that
where the seisin of the husband, as in the
present case, was in severaltv, the "Act for
the Partition of Lands" affords no remedy for
setting off dower.
The Act of the 15th of April, 1814 (ch. 198.
sec. 1), authorizes a sale of the widow's dower
in partition, where the subject is indivisible,
&c., provided the widow IHJ made a party to
the proceedings ; but this latter Act affords no
.'ili.'J*] aid *to the plaintiff in the present Case.
Where the object is to sell the real estate under
the Partition Act. the widow may be made a
party, and then she is concluded ; but she is
not to be made a party in partition for the pur-
pose of settiilg off her dower.
The verdict for the plaintiff ought, there-
fore, to be set aside, and the petition for par-
tition to be dismissed with costs.
Judgment accordingly.
Cited in— 7 Cow.. 78: 1 Wend.. 437 ; 5 Wend.. «16 :
14 Wen<l , «B; 3 Den.. 219; 5 Johns. Ch.. 4.V. ; 7 I'uiir.-.
411: ID Pal::--. '.I: 2 Barb. Ch.. 20J; 2 Sand. Ch . 368 :
21 N. Y.. 304 ; 54 N. Y.. «0« ; 1 Harb.. 5<M ; 3 llarb., 349:
8 Hurl>.. U21: 42 How. Pr.. 36; 11 AM.. V S.. 151:
K-lni.. is:i: 2B08..529; 33 Super.. 7«; 2 Leg. Obs.,
4M:fl5 Cal.. 594 ; 30 Cul.. 41, 58.
FOWLEU v. SHARP ET AL., Executors of
SHARP.
Pleading— In Assumpsit — Plea by Executor —
Efhibition of Hill, Tantamount to Commence-
ment of Suit.
A plea by an executor, stating that he had not, on
the day of exhibiting the plaintiff's bill, nor any
time since, had any goods or chattels which were
of the testator ut the time of his death. In his hands
tnU- inliniiilst.Trd, without alleging that he hud
fully administered the goods and chattels which
were of the testator at the time of his death, and
which had come to the hands of the defendant to
be administered ; and without alleging that he never
NOTE.— Commencement of ntlt—Time of— What in.
See Lowry v. Lawrence, 1 .Cat., 00, note.
JOUNH. HEP.. 15
had any (roods or chattels of the testator in his
hands to be administered, is Rood, both in form and
substance.
And the exhibition of the bill, mentioned in the
plea, is tantamount t» the commencement of the
suit, or suing out the writ, and will be so regarded,
unless the plea is specially demurred to on that
ground.
Citations— 2 Saund., 221, n. 3 : 3 Lev., 28 ; 3 Johns.
Cas.. 145 ; 1 Cat.. 70 : 2 Johns.. 342.
THIS was an action of ammmpnt. The dec-
laration contained counts for the use and
occupation of a dwelling house by the testa-
tor ; for money had ami received. &c., by the
testator ; and for rent on a parol demise by the
plaintiff to the testator. The defendants pleaded:
1. Jfon a**ump#it ; 2. Payment; 8. Actionon
accredit infra nee anno» ; and, 4, the following
plea :
" And for a further plea in this behalf, the
said John Sharp" (the other defendant was re-
turned not taken). " by like leave of the court
here for this purpose first had and obtained,
according to the form of the Statute in such
case made and provided, says that the said
Theodosius Fowler ought not "to have or main-
tain his aforesaid action thereof against him,
the said John Sharp, because, he says, he
had not, on the day of exhibiting the bill of
the said Theodosius Fowler, in this behalf,
or any time since, had any goods or chattels
which were of the Raid Robert Sharp, de-
ceased, at the time of his death in the hands of
him, the said John Sharp, as executor, as
aforesaid, to be administered, *and [*IJ24
this he is ready to verify. Wherefore he
pravs judgment," &c.
1*he plaintiff demurred specially to this
plea, and showed for causes of demurrer
that the defendant had not in his plea al-
leged, that he, the defendant, had fully ad-
ministered all and singular the goods and chat-
tels which were of the said Robert Sharp, de-
ceased, at the time of his death, and which
had ever come to the hands of the defendant,
as executor, to be administered ; and that the
defendant had not alleged that he had never
had any goods or chattels which were of the
said Robert Sharp, deceased, at the time of his
death in the hands of the defendant, as exec-
utor, to be administered. The defendant joined
in demurrer.
Mr. Peter A. Jay, in support of the demur-
rer, said that great strictness was required in
the plea of plene admini*trarit. The defendant
does not allege the fact in his plea that he has
fully administered, as he ought to have done
according to the forms given in the books. (2
Chitty PI.. 451 ; 3 Went. PI., 211. 214 ; Rast.
Ent., 223.) Comyns (Com. Dig., Pleader. 581,
2, D. 9) Fays if the plea of plene adminhtratit
is, that the defendant nulla habet btma, with-
out more, it is bad, or that plene adminMrarit,
omitting et quod nulla bona. &c., as in Heirlet
v. Framingham, 8 Lev., 28, where the de-
fendant pleaded that " he fully administered
all the goods which were of the testator at the
time of his death, or at any time since, except
goods and chattels to the value of £10, which
are not sufficient to satisfy," &c., which plea
was held bud, on demurrer, because, for want
of the words " and that he has no goods or
chattels of the testator, nor had any on the
day of suing out the writ aforesaid, or at any
time hince," &c.
1107
324
SUPHEME COURT, STATE OP NEW YORK.
1818
Mr. Caines, contra, insisted that the plea
contained everything requisite to constitute a
good defense. If there were no assets, it
would be absurd for the executor to plead
that he had fully administered them. Chitty,
in the second edition of his Treatise on Plead-
ings, gives this precise form, and refers to the
note of Sergeant Williams (2 Saund., 220, n.
3), who says the words " that they have fully
325*J administered *the goods," &c., are su-
perfluous, and that the more formal and cor-
rect way of pleading appears to be, ' ' that
they have no goods or chattels," omitting the
preceding words " that they had fully ad-
ministered."
SPENCER, J., delivered the opinion of the
court :
If the plea in substance alleges that the
defendant had not, at the time of the plea,
pleaded, nor at the commencement of the suit,
or any time since, had any goods, &c., in his
hands, as executor, to be administered, it
would seem to be a good plea. The prece-
dents are, that the executor has fully adminis-
tered, in addition to the allegations of the plea
under consideration. Sergeant Williams is of
opinion that the words "that they have fully ad-
ministered the goods," &c., seems to be super-
fluous, and that the more formal and correct
way of pleading appears to be according to the
present plea. (2 Saund., 221, n. 3.) And al-
though Chitty gives the form of the plea, as
the plaintiff's counsel contend it should be, yet
the form of the replication, as given by him,
takes issue on the defendant's having assets in
his hands to be administered on the day of ex-
hibiting the bill ; and this shows that the ma-
terial and essential part of the plea is the pos-
session of unad ministered assets.
I cannot perceive that the omission to state
that the defendant has fully administered, is
either a formal or substantial omission, and I
consider the plea good without that allegation.
The case of Hewlet v. Framingham, 3 Lev.,
28, confirms my opinion ; for in that case the
court held the plea to be bad, because it omit-
ted to allege that the defendant had no goods
or chattels of the testator, and that he had not,
on tjie day of suing out the writ, or at any
time after, on the ground that the pleaofplene
administramt merely related to the time of the
plea pleaded, and because the defendant might
have paid debts upon simple contract without
suit after the writ purchased, and before plea.
326*] *The only difficulty I feel in this
case relates to that part of the plea which
states that on the day of the plaintiff's exhibit-
ing his bill the defendant had no goods or
chattels, &c. If this refers to the filing the
declaration I should hold the plea to be bad.
The cases which bear on this point are Car-
penter v. Butterfield, 3 Johns. Gas., 145 ;
Lowry v. Lawrence, 1 Caines, 70; and- Bird,
Savage et al. , v. Caritat, 2 Johns. , 342. These
cases abundantly establish the point that
the suing out the writ is the commence-
ment of the suit, and that the exhibition of
the bill, which the modern English author-
ities consider as the commencement of the
suit, is not so with us.
It is, however, very usual in practice to re-
fer, in pleading to the exhibition of the bill as
1108
equivalent to saying the commencement of
the suit ; and I should be inclined to consider
it, unless specially demurred to, as tanta-
mount to saying the commencement of the
suit, or suing out the plaintiff's writ, and to
hold the party to prove accordingly. On the
whole, we are of opinion that judgment must
be entered for the defendants, with leave to
plaintiff to amend, on payment of costs.
Judgment for the defendants.
Cited in— 17 Johns., 348 ; 7 Cow., 703 ; 7 Wend., 134 ;
19 Wend., 221.
*DUFFIE v. HAYES. [*327
Marine Law — Charter of Vessel — Cargo at
'^Ratesper Foot, &c. — Full Cargo must be Fur-
nished— Pleading.
Where the whole of a vessel is chartered to take a
cargo at certain specified rates, per ton, square
foot, &c., if the freighter does furnish a full cargo,
the owner of a vessel is entitled to freight, not
only for the cargo actually put on board, but also
for what the vessel could have taken had a full
cargo been furnished.
rPHIS was an action of assumpsit on a charter-
J- party not under seal. The cause was
tried before Mr. Justice Spencer, at the New
York sittings, in April, 1817.
The essential parts of the charter-party were
as follows : " This charter-party of affreight-
ment, made at the City of Santo Domingo,
this 30th day of December, 1815, between F.
Dumas and Capt, Asa Winslow, agents for
Cornelius R. Duffle (the plaintiff), merchant
in New York, and owner of the schooner
Jane, on the one part, and Walter C. Hayes
(the defendant), of the City of Baltimore, on
the other part, witnesseth, that the said F.
Dumas and Asa Winslow, by these presents,
do agree to freight unto the said Walter C.
Hayes, the hull of the schooner Jane, burthen
tons, whereof Asa Winslow is master.
In consideration whereof, the said Walter C.
Hayes binds himself to pay $40 per thousand
feet of mahogany, according to the invoice
measurement in Santo Domingo ; $10 per ton
of fustic and lignumvitse. On the said amount
to be paid $225 now, and the rest in New
York, bv satisfactory indorsed notes at sixty
days, ft is further agreed that each party-
shall pay one half of the expenses of the la-
borers ; and the pilot and grass-ropes shall be
on the vessel's account. The provisions for
the pilot and laborers on the coast shall be also
on the vessel's account. The schooner Jane,
being ready for sea, will proceed to the coast,
and there remain fifteen days to receive her
cargo. It being understood that in case of
any more detention than fifteen days, it will
be on Walter C. Hayes' expense, for the
wages of the laborers, &c."
After the execution of the charter-party, a
quantity of mahogany, fustic and logwood
was put on board of the Jane, at the City of
Santo Domingo, "by direction of the defendant.
The schooner then proceeded to the coast to
a place called Maccarees, whither the defend-
ant also came, and a further quantity of ma-
hogany was taken on board, and when the de-
JOHNS. REP., 15.
1818
DUFFIE V.
328
328*] fendant *left the place, one Vittoria i
acted as his agent, by whose direction the ves- j
sel went to another place, named Comayas,
where some more mahogany was put on board
by Vittoria, but not enough to complete her ;
lading. Vittoria declared that he had no more j
to put on board, and no more being offered, j
the vessel proceeded to New York, not more j
than two thirds laden. The defendant had J
paid for the cargo actually brought, and the i
plaintiff claimed in this action additional
f n-iirlit for what the vessel could have brought j
had she been fully loaded. The plaintiff hav- ,
ing proved the amount in which the cargo was
deficient, the jury found a verdict in his favor,
subject to the opinion of the court, whether,
on the farts of the case, and the pleadings, he
was entitled to recover, or whether the judg-
ment should be arrested, or a verdict entered
for the defendant.
Mr. 8. W. Jones, for the plaintiff, contended
that the entire vessel being let to the defend- !
ant, the plaintiff was entitled, by the true con-
-i ruction of the contract, to be paid a full |
freight, according to the rate stipulated in the
charter-party. Charter-parties, like other mer-
cantile instruments, are to be liberally con-
strued. (Abbott, part 8, ch. 1, sec. 11.) It is
manifest that it was the intention of the par-
ties, that the vessel was to take a full cargo,
and that the plaintiff was to be paid for as
many tons as she could carry. The captain
demanded a full cargo, and after waiting the
fifteen days stipulated for that purpose, he
departed, with the consent of the defendant's
agent.
As to the ground of arrest for any supposed
default in the pleadings, that is cured by the
verdict. The action ought to be in the name
of the real owner, or person beneficially inter-
ested, not in that of the agent or attorney.
(Rogart v. De Butty, 6 Johns., 94 ; Gunn v.
Cantinc, 10 Johns., 8H7.)
Mr. Sampson, contra, insisted : 1. That by
the terms of the contract, there was no en-
gagement on the part of the defendant to fill
the vessel. Her burden is not specified, and
if neither party knew her capacity, how could
the defendant stipulate to fill her up ? Every-
J5121)*] thing must be expressed ; and *nothing
is to be admitted by implication. (2 Lev. , 124.)
Abbott (part 8, ch. 1, sec. 8) states the ordinary
covenants and stipulations in a contract by
charter-party. He says : " Sometimes also the
freight is expressed to be a certain sum for
every ton, cask or bale of goods put on board,
in which case the merchant usually covenants
not to put on board less than a specified num-
ber of tons, casks or bales." It is true that
the construction ought to be liberal ; yet it
must not be inconsistent with the plain and
obvious meaning of the terms of the contract.
(Abbott, part 3. ch. 1, sec. 18; 1 Esp. N. P.
Cas., 867 ; Cook K. Jennings, 7 T. R., 881.)
If an entire ship be hired, and the burthen
thereof expressed in the charter-party, and the
merchant covenant to pay a certain sum for
every ton, &c., of goods which he shall lade
on board, but does not covenant to furnish a
complete lading, the owners can only demand
freight for the quantity of goods actually
shipped. (Abbott, part 8, cu. 7. sec. 2.)
Molloy (bk. 2, ch. 4, sec. 8) says that "if a
JOHWS. REP., 15.
ship be freighted by the ton, and she is fully
laden according to the charter-party, the
freight is to be paid for the whole : otherwise,
but for so many tons as the lading amounted
tp." Again : "If a ship be freighted and
named to be of such a burden, and being
freighted by the ton. shall be found less, there
shall no more be paid than only by the ton for
all such goods as were laden aboard." (Roccus,
Ingers. Trans., n. 72-75; Straccha, p. 8, n.
It, 12 ; Malyne, 100.)
If the plaintiff has any right of action
against the defendant, it must be for not filling
up the vessel ; not for the freight for goods he
never carried. In Ritchie v. Atkinson, 10 East,
29.1), where the charter-party expressed the ship
to be of the burden of four hundred tons or
thereabout, and was to proceed to St. Peters-
burgh, and there load from the factors of the
defendant a complete cargo, &c., and deliver
the same at W. and L. on oeing paid so much
per ton, &c., the Court of K. B. held that the
delivery of a complete cargo was not a con-
dition precedent, but that the plaintiff might
recover freight for a short cargo, at the rate
per ton stipulated, and that the freighter had
his remedy for the imperfect or short delivery.
*2. The contract is between Dumas [*3J5O
and Winslow of the one part, and Hayes of the
other. Tire action, therefore,' should have
been brought in the names of the contracting
parties. (Abbott, part 3, ch. 1, sec. 2 ; 2 Inst.,
673 ; 2 Lev., 74 ;' 3 Lev., 138 ; 1 Chitty PL, 4.)
I consider it as an instrument under seal ; but
whether sealed or not, the construction is the
same. (1 T. R. 678 ; 1 Chitty PL, 24 ; 5 East,
148; 5 Johns., 239.)
Again ; the master ought to have made a
regular protest ; or if no proper officer at the
place, then at the first place he could. (Malyne,
98; Abbott, 315; 2 DalL, 196.)
3. The breach set forth as a cause of action
is uncertain, as it does not state the sum of
money due. (Com. Dig. PL. C, 47 ; C, 79 ; 8
Cai., 73; 9 Johns., 291.) This defect is not
aided by the verdict ; for want of certainty is
not helped by the verdict. (1 Chitty PL, 192 ;
1 Sid., 440.)
Atr. S. Jones, Jr., in reply, said that a pro-
test by the master was a very proper act on his
part ; but it was not considered indispensable,
or as a necessary prerequisite to an action.
This is not an instrument under seal, for
though it is expressed to be signed and sealed
by the parties, there is nothing but a flourish
of the pen to their names. It is a memoran-
dum of a mercantile contract, and the act of a
commercial agent is always regarded as the
act of his principal. If the suit had been
brought in the name of the agent, there
would have been much stronger ground for
objection.
The defendant hired the entire vessel ; he
might use her as he pleased. He might fill
her up or not. Still he must be liable for the
full freight. The contract is not to pay so
much for every thousand feet of mahogany to
be laden on board ; $225 were to be paid down,
and the residue in New York. This shows
clearly that the parties must have had in view
a jfull freight. Abbott (part 8, ch. 7, sec. 2)
says : " If a certain sum be stipulated for
every ton, or other portion of the ship's capac
1109
330
SUPREME COURT, STATE OF NEW YORK.
1818
ity, for the whole voyage, the payment must
be according to the number of tons, &e.,
which the ship is proved capable of contain-
ing, without regard to the quantity actually
331*] *put on board by the merchant ;" and
he cites Roccus (». 72, 75) as an authority for
that position ; and the case of Westland v.
Robinson, 2 Vern., 212, where a ship hired to
go beyond sea to bring home a cargo for
which a certain rate per ton was to be paid, was
forced to return in ballast, the merchant's factor
having no goods to put on board, and the
Court of Chancery decreed payment of the
freight. In conformity to this principle, the
French Ordinance (liv. 3. tit. 3, art. 2) directs,
that if the ship be freighted by the great, and
the merchant does not furnish a full lading,
yet the master shall not, without his consent,
take in other goods to complete the lading, nor
without accounting to him for the freight of
such goods. (Pothier, Chart. Part, n. 20 ;
Abbott, part 3, ch. 1, sec. 8.)
Per Curiam. This was an action of as-
sumpsit on a charter-party ; and the plaintiff
claims freight for as much mahogany, fustic
and lignumvitae as could reasonably be carried
in the hull of the schooner Jane ; and the de-
fendant contends that, by the terms of the
contract, he was bound only to pay1 at the rate
of $40 dollars per one thousand feet, for ma-
hogany, and $10 per ton for fustic and lignum-
vitse, actually laden on board the vessel ; that
it was optional with him (the defendant) to put
as much or as little on board as he pleased ;
and that the amount of freight was to be ac-
cording to the quantity put on board, and not
according to the capacity of the vessel.
332*] " *There was, also, a motion in arrest of
judgment; but the want of special averments in
the declaration (if any such defect) is cured by
the verdict.
The only real question is upon the legal im-
port of the contract.
The jury allowed the plaintiff's full claim
for freight, according to the capacity of the
hull of the vessel, the defendant having laden
her in part only ; and we are clearly of opinion
that they adopted the true construction of the
contract. The plaintiff is, accordingly, en-
titled to judgment upon the verdict.
Judgment for the plaintiff.
PENOYER AND LUFF v. HALLETT.
Contracts — Charter of Vessel — Out and Return
for an Entire Sum — Condition Precedent —
Vessel Lost — Pro Rata Freight cannot be Re-
covered.
Where a vessel is chartered for a voyage out and
home, for an entire sum of money, to he paid on her
return, her return is a condition precedent to entitle
the owner to freight ; an(j if 8he is lost before com-
mencing the homeward voyage, he can recover
neither on the charter-party nor on an implied
ossumpsit for the freight of the outward voyage;
nor, if the freighter had accepted the outward cargo,
would he be entitled to a pro rata freight.
Citations- 2 Johns., 352 ; 2 Johns , 340 ; Abb. Ship.,
318, 319; 10 East, 529.
NOTE.— Entire contracts— FuU performance a con-
dition precedent to recovery on. See M'Millan v.
Vandeiiip, 12 Johns., 165, note.
1110
TtJIS was an action of assumpsit for the
freight of goods laden on board the-
schooner Three Sisters, on a voyage from New
York to St. Bartholomews. The cause was
tried before Mr. Justice Van Ness, at the New
York sittings, in December, 1816.
The plaintiff produced in evidence an agree-
ment or charter-party, not under seal, dated
the 19th of July, 1815, which was follows: "I
agree to charter of Robert M. Penoyer & Co.
(the plaintiffs) the schooner Three Sisters,
Captain William Reynolds, of and about one
hundred tons, to proceed to St. Bartholmews,
and also to St. Kitts, if required. If she goes
to St. Kitts, I agree to be accountable for all
damages arising from seizure or detention by
the British government. I am to have thirty
running lay days to load and unload, and I
agree to allow $15 per. day demurrage after
that time; to pay for the whole of the vessel,
cabin and deck included, for the voyage out
and home, $1,500, at the return of the vessel,
in current money of our banks. I agree to pay
all port charges, &c., &c. " Signed by the
defendant. " We have chartered to Abraham
S. Hallett (the defendant) the schooner Three
*Sisters, Captain William Reynolds, [*333
for the voyage above stated," on the terms
therein mentioned." Signed by the plaintiffs.
The schooner was loaded by the defendant,
who gave a letter of instructions to the master,
directing him, on his arrival at St. Barthol-
mews, to go on shore and call on William Cock,
and inquire if he had any directions from John
R. Thurstpn respecting the cargo; if not, that he
should then anchor in St. Bartholmews, with-
out entering vessel or cargo, and write to
Thurston, at St. Kitts, and await his orders.
The master, accordingly, on his arrival at St.
Bartholmews, called on Cock, who not having
any directions from Thurston, he wrote to
Thurston, but never received any orders from
him. On the 29th of August, 1815, the vessel
still lying at St. Bartholmews, with her cargo
onboard, there came on a violent hurricane,
by which she was driven on shore, bilged and
sunk, and her cargo greatly damaged. The
master then called again upon Cock, to know
what w.as to be done, and Cock told him that
he would, under the circumstances of the case,
take charge of the cargo ; and he accordingly
entered it at the custom house, paid the duties,
received it on its being landed, and advertised
it for sale at auction. A short time before the
sale Thurston arrived at St. Bartholmews, at-
tended the sale, and purchased a considerable
part of the cargo. It did not appear that Cock
was the agent of Thurston, or that Thurston
interfered in the disposal of the cargo, other-
wise than by buying at the sale.
The judge was decidedly of opinion that the
plaintiffs could not recover: he, however, per-
mitted them to take a verdict, subject to the
opinion of the court, for the amount of freight
for the outward voyage, as estimated by the
jury-
Mr. M. 8. Wilkins, for the plaintiffs. St.
Bartholmews, under the circumstances, was
JOHNS. REP., 15.
1818
PENOTER v. HALLETT.
333
the port of delivery; the vessel was not to pro-
ceed to St. Kitts, unless required; and she was
not required to go there. Then, we say, here
was a delivery of the cargo at St. Bartholmcws,
which entitles the plaintiffs to the freight pro
rnta. There was an indispensable necessity
for landing the cargo; and T.. the agent of the
334*] defendant, *who arrived a day before
the sale, having become the purchaser of it, it is
tantamount to a delivery to lue defendant him-
M-lf. There has l>een no default on the part of
the plaintifT or the mauler: if any damage or
loss has arisen, it has been occasioned by in-
evitable accident. (Qruieold v. JV. }'. Inn. On.,
3 Johns., 321, 338; Lukev. Lydt. 2 Burr., 886;
Beawes L. M.,87 ; Abbott on Ships, &c., 277.
284. part 8, ch. 7, sec. 5, sees. 12-15 ; Jere
my'sL. of C..87.)
"Again; the seamen were entitled to their
wages at St. Bartholmews (Lord Haym., 639;
Abbott, 430 part. 4, ch. 2, sec. 4);"and this
must be on the principle that freight has been
earned.
Afr. Slo**on, contra. The right of the plaint-
iffs to recover, in this case, must depend on
the contract and its legal construction. The
agreement is to pay for the whole vessel, for
the voyage out and home. $1.500 at the return
of the vessel. The freight is entire for an
entire voyage, and the return of the vessel to
New York is a condition precedent to a right
to freight. The entire voyage must be per-
formed l>efore any freight is due. Barker v.
Chfriot, 2 Johns., 852. is a strong case in point.
This is not a case of pro rata freight, which
is due only where there is a contract for the
transportation of goods, which, by some inter-
vening and inevitable accident, is dissolved,
and the goods are accepted at an intermediate
port; there an implied promise is rafsed to pay
freight for the transportation pro rnta. Here
is a contract for the hire of a vessel for an
entire voyage, and for a gross sum. But ad-
mitting that it was a case of pro rain freight;
the plaintiffs have not shown themselves en-
titled to it. There has been no voluntary nc
•ceptance by the defendant at the intermediate
port. Cock was not the agent of the defendant.
He interfered from necessity, and acted for the
•owners. There is no proof that the proceeds
ever came to the hands of the defendant.
{Mar. In*. Co. v. U. In*. Co., 9 Johns., 190;
Scott v. Lioby 2 Johns., 386; Ongoodv. Groning,
2 Campb., 466.)
335*] *Mr. D. B. Ogden, in reply. The
agreement was to carry a cargo ; but taking it
as stated by the other side, it was a contract to
go to St. Bartholomews, and if required, to St.
Kitts, and back to New York. All that the
plaintiffs were bound to do, in the first in-
stance, to entitle them to freight, was to go to
St. Bartholomews. The defendant was to pay
all port charges. There were two distinct
voyages. The case of MaclTfll v. Simond A
Hankty. Ablmtt on Ships, 816. part 8. <:h. 7,
sec. 19, is in point for the defendant. There
was a charter, by the month, for such time as
the vessel should be employed in performing
a voyage from London to Plymouth and the
Island of O., and from thence back to London.
The freight was to be paid at the rate of £1 10
per month, for the time taken up in performing
the voyage, to commence at the date of the
JOHNS. REP., 15.
charter-party, and to end "on the day of the
discharge of the homeward cargo, at London,
and to be paid one third part thereof on her
report inwards at the custom house, London,
I and the remaining two thirds thereof in two
I calendar months, next following. " After de-
1 livering a cargo at G., and while on her return
to London, the ship was lost by tempest. Lord
Mansfield says : " If the ship h<- CUM away on
the c»a-t of England, and never arrive at the
port of L<>mlc>!i. yet if the goods are saved,
freight shall be paid, because the merchant re-
ceives advantage from the voyage. This is not
expressed by the charter-party, but arises out
of the equity of the case." In the present case
the $1,500 freight was to be paid on the return
of the vessel. It is not said that it is to become
due on the return of the vessel. This case i-
distinguishable from that of Barker v. (Jheriot.
The defendant there covenanted to pay freight,
$4,500. for the entire voyage, for which he was
to give a note, payable in sixty days after
delivery of the return cargo in the port of
New 'i ork.
SPENCER, «/., delivered the opinion of the
court:
Two questions arise: 1. Could the plaintiff
recover on the charter-party ? If not, 2. Is he
entitled to a pro rata freig'ht on the outward
cargo ?
•The case of Barker v. Cheriot, 2 [*336
Johns.. 352, decides the first point, in that
case, a vessel was chartered for a voyage from
New York to Martinique, and back to New
York, for the entire sum of $4,500, payable
sixty days after the delivery of the return
cargo at New York. The outward cargo was
delivered at Martinique and while on the re-
turn voyage, with a cargo, she was captured
and carried into Antigua, where the cargo was
libeled and ordered to be retained for further
proof. The vessel returned to New York
without the goods, except a few articles left
on board. The goods were afterwards ordered
to be returned to the claimants, but neither
the goods nor proceeds ever came to the hands
of the owners or insurers. The court held
that it was one entire voyage from New York
to Martinique and back again ; and that, as
the vessel was captured on her return, and
did not deliver the return cargo, no freight
was due. notwithstanding the defendant had
the benefit of the outward voyage ; because,
by the express agreement of the parties, the
outward and homeward voyage were one, and
the profit depended on the entire performance.
The same principle was recognized in Scott v.
Lihby et al., 2 Johns., 840.
The present case presents an entire contract.
The vessel was chartered to proceed from
New York to St. Bartholomews, and if re-
quired, to St. Kitts, and back to New York ;
and the defendant agreed to pay $1,500 for
the vessel, for the voyage out and home, on
her return to New York. The return of the
vessel, therefore, is a condition precedent, and
not having been performed, it is impossible to
»ay that the plaintiff can sustain his action on
the charter-party.
The counsel for the plaintiffs pressed upon
the court the case of Simoiid and llnnkey,
stated in Abbott, 318. That case differs ma-
1111
336
SUPREME COURT, STATE OF NEW YORK.
IblS
terially from the present ; and Lord Mans-
field, in giving his opinion, says : 'If there
be one entire voyage out and in, and the ship
be cast away on the homeward voyage, no
freight is due, no wages are due, because the
whole profit is lost, and by express agreement
the parties may make the outward and home-
ward voyage one." The case of Byrne et al.
v. Pattinson, cited by Abbott, 319, is one very
analogous to the present, and it received a de-
337*] cision *in accordance with that in
Barker v. Cheriot. The case of Liddard v. Lopes,
10 East, 529, further illustrates the correctness
of the decision in Barker v. Cheriot. In that case
Lord Ellenborough observed : "The parties
have entered into a special contract, by which
freight is made payable in one event only — that
of a right delivery'of the cargo according to the
terms of the contract — and that event has not
taken place ; there has been no such delivery,
and consequently, the plaintiff is not entitled
to recover ; he should have provided, in his
contract, for the emergency which has arisen."
Had the defendant himself accepted the
outward cargo at St. Bartholomews, it would
not have entitled the plaintiff to a pro rafa
freight, because of the entirety of the contract ;
but in the present case, it does not appear that
Cock, who caused the cargo to be sold, had
any authority to do so ; he acted from the
necessity of the case.
It is impossible to raise an implied promise
to pay the outward freight, on the ground of
the labor performed in carrying the defend-
ant's goods, when the carriage of the goods
waS regulated by a contract, part of which
only was performed, and the other part re-
mained unperformed ; the entire performance
of it being a condition precedent.
Judgment for (lie defendant.
Cited in-3 Wood & M., 442.
338*] *SUCKLEY ». FURSE.
Negotiable Paper — Bill Accepted and Protested —
New Bill Drawn on Drawer and Drawee of
First — Acceptance by Latter does not Release
Former — Practice.
A bill of exchange was drawn by the defendant
on A, in fav'or of B, who sold it to the plaintiff. A,
who resided in England, accepted the bill, but did
not pay it ; and it was returned to the plaintiff pro-
tested. The plaintiff then drew a bill upon A and
the defendant, jointly, for the amount of the
former bill, with damages, which was accepted by
A only, but was not paid. Held, in an action
against the defendant, as drawer of the first bill,
that he was not discharged by A's acceptance of
the second bill.
Where a bill of exchange was drawn here upon
a person in Great Britain, during the late war with
that country, for supplies furnished by the payee
to a British vessel, authorized, by Act of Congress,
to sail from here to an enemy's port, which was
sold by the payee to the plaintiff, who remitted it
to Great Britain for collection ; it was held that the
remittance of the bill was within the protection
afforded to the original transaction, and was not
illegal.
An objection not taken at the trial cannot be
raised on the argument of the case at bar.
Citations— 1 T. R., 167 ; 8 East, 273, 576 ; 1 Salk.,
124 ; 1 Esp. N. P. Cas., 3 ; Act July 6. 1812.
THIS was an action of assumpsit on a bill of
exchange, 'dated at New York, the 7th
1112
of November, 1812, drawn by the defendant
on Edward Angove, of Falmouth, England,
in favor of Taylor & Newman, or order, for
£331 3s. 6d. sterling, payable in London,
thirty days after sight, and indorsed by Taylor
& Newman to the plaintiff. The cause was
tried before Mr. Justice Spencer, at the New
York sittings, in April, 1817.
The defendant was captain of the British
packet Swiftsure, and Taylor & Newman, as
his agents, furnished the packet with supplies,
a short time before the date of the bill, by the
permission of the Collector of the port of New
York ; and the defendant drew the bill on ac-
count of these supplies, and sold it to the
plaintiff, who had no concern in the trans-
action for which it was given. The bill, on
being transmitted to England, was accepted
by Angove, on the 5th of January, 1813, but
not being paid, was returned protested to the
plaintiff, who thereupon drew a bill on the
defendant and Angove jointly, for the amount
of the former bill, with twenty per cent,
damages, at sixty days after sight, in favor of
Thomas Holy, who was a partner of the
plaintiff, and resided in England. The second
bill was accepted by Angove, but not by the
defendant, and was returned to the plaintiff
unpaid.
The defendant's counsel objected that the
acceptance of the second bill by Angove only
was a discharge of the drawer of the first billf
which objection was overruled by the judge,
who, however, permitted the point to be re-
served, and a verdict was accordingly taken
for the plaintiff, subject to the opinion of the
court on a case made, containing the facts-
above stated.
Mr. Slosson, for the plaintiff. The only
question is, whether, *by the accept- [*33&
ance of the second bill, the drawer of the first
bill was discharged. He could be discharged
on two grounds only, either by the second
bill being a satisfaction of the first ; or by the
holder giving a new credit, by extending the
time of payment. 1. Taking a second bill is
no payment or satisfaction of the first or
original debt. (Murray v. Qouverneur & Kem-
ble., 2 Johns. Cas., 438; Tobey v. Barber, 5
Johns., 68; Johnson v. Weed, 9 Johns., 310.)
2. It is manifest that there was no intention
on the part of the plaintiff to waive his right
to recover against the defendant as drawer of
the first bill. The second bill was not drawn
to obtain payment of Angove only, but of
the defendant also. The acceptance of the
second bill by A. alone, was a dishonor of the
bill, for it was not accepted according to its
tenor. (Chitty on Bills, 127, 2d ed.) Giving
time, or taking security of the acceptor, does
not discharge the drawer, if he has no effects
in the hands of the drawee, and notice of non-
payment is not necessary in that case. (Chitty
on Bills, 213 ; 2 Esp., 516, 517 ; 1 Bos. & P.,
652 ; Hoffman v. Smith, 1 Caines, 157.)'
Again ; the plaintiff is not bound by the
act of an agent who exceeded his authority ;
Holy had no authority to receive the accept-
ance of A. alone.
1.— See Collot v. Haigh, 3 Campb. 282: Walwyn
v. St. Quintin, 1 Bos. & P., 652 ; English v. Dar-
by, 2 Bos. & P., 61 ; Bridges v. Berry, 3 Taunt., 130 ;
Kaggardt v. Axmore, 4 Taunt.. 730.
JOHNS. REP., 15.
1818
SUCKLEY V. FURSE.
339
Mr. T. A. Emmet, contra. Holy was not
an agent, but a party equally interested with
the plaintiff. They were partners.
In Gould et al. v. Kob»on, 8 East, 576. where
the holder of a bill, which had been accepted,
agreed to draw a new bill on the acceptor, at
a future date, and to keep the original bill as
security ; it was held to be such a giving of
time and new credit to the acceptor as dis-
charged the iudorser, though the drawer had
no effects in the hands' of the acceptor.
( WithiiU v. Masterman, 2 Campb. N. P., 579 ;
TindaU v. Brown, 1 T. R., 167 ; 8 Bro. C. C.;
1 Chitty on Bills, 212.)'
34O*f *There is another objection to the
plaintiff's recovery. The remitting the bill
to England, during war, was illegal ; but as
the effect of the war on the contracts of our
citizens has been so fully discussed in a case
lately argued and decided, it is unnecessary
to argue the question here. The cases men-
tioned by Chitty (L. of N., 17, 27) are excep-
tions, and recognize the general rule. The
plaintiff had no concern in furnishing the sup-
plies to the British packet. The bill was
drawn to place funds in England, and was a
distinct transaction.
.Mr. Slosaon, in reply, said that as to the sug-
gestion that II was a party in interest, and not
an agent, the fact was settled by the finding of
the jury.
As to the second point ; on the declaration
of war, an Act of Congress was passed (6
July, 1812; 18th Cong.. 1 sess., ch. 129. sec.
5), which allowed British packets which had
sailed before September to be received into our
ports. The Swiftsure was admitted into our
ports under the Act. She was exempted from
the operation of war ; and it was lawful to
furnish her with supplies, and to receive pay-
ment for them. The bill drawn by the de-
fendant was a good bill. It makes no differ-
ence whether the bill was remitted by the pay-
ees or by the plaintiff. The objection applies
equally to both. Unless the bill could be ne-
gotiated by the payees, it was of no value.
The payees could not go to England to receive
the money with their own hands. In Kensinrj-
ton v. Inglia, 8 East, 273, where an enemy's
ship was licensed to bring certain goods from
the enemy's country, belonging to British sub-
jects, the insurance of those goods by the
owners in England was held to be legalized,
and the insured might maintain an action on
the policy.
YATKS, ./., delivered the opinion of the
court :
There can be no doubt but that the law dis-
charges the indorser of a bill of exchange,
when the holder gives time to the acceptor
after it has been dishonored. (1 T. R., 167 ; 8
Hast. 576.) But this is not such a case : here,
IJ4 1*J the bill having been 'dishonored, and
notice duly given, Suckley, the holder, draws
for the amount of the first bill, with damages
and charges, on Furse, the drawer, and An-
§ove, the acceptor of that bill, jointly, at sixty
ays sight, in favor of Thomas Holy, which
was accepted by Angove, but not by the de-
fendant Furse. This bill was afterwards re-
turned and never paid, so that without advert-
1.— Bishop v. Kowe, 3 M. & Selw., 802.
.1 <>i INS. REP., 15.
! ing to a partnership between them, on the face
of the transaction, it is evident that the inten-
tion of the plaintiff was, that the sixty days
I should be given for payment, provided both
accepted : and then it could not have affected
| the plaintiff's remedy against either. From the
knowledge both had of the original transac-
tion, it must be presumed that they knew that
no greater or other power or authority had
been conferred on Holy, the agent ; his act,
therefore, in taking the acceptance of Angove
alone, did not bind the plaintiff, and conse-
quently could not discharge the liability of
Furse, as drawer of the original bill, on the
ground of an agreement for an extension of
time of payment, or the giving of a new
credit. No such agreement had ever existed
between the parties. It was evidently sent to
Holy for collection only. To discharge an in-
dorser, even, an express agreement must be
shown. The case of Qould et al. v. Jtobson, 8
East. 576, is such a case. There the holder of
the bill had taken part payment from the ac-
ceptor, and agreed to take a new acceptance
from him for the remainder, payable at a
future date. The new bill here was drawn
without any agreement, and being for an ex
isting debt, could not affect the original liabil-
ity of Furse ; for it is a settled rule of law,
that a bill shall not be a discharge of a preced-
ent debt, unless it be so expressly agreed
between the parties. In Clark v. Mendel. 1
Salk., 124, it is stated that if part be received,
it shall only be a discharge of the old debt for
so much. And Lord Kenyon (1 Esp. N. P.
Cas., 8, Stedman v. Oooch) says, " that if, in
payment of a debt, the creditor is content to
take a bill or note, payable at a future day, he
cannot legally commence an action on the
original debt until such bill or note becomes
payable, or default is made ; but if such bill
or note is of no value, as if, for example, it be
drawn on a person who has no effects
*of the drawer in hand, and who, [*342
therefore, refuses it, in such case he may con-
sider it as waste paper."
The plaintiff's right of action, then, against
the drawer, was not affected by the second
bill. But another objection to the verdict has
been made on the argument — that the remitting
of the bill to England, in time of war, was il-
legal, and that no action against the defendant
could grow out of such illegal act.
As to this objection, it might be observed,
that it does not appear by the case, that the il-
legality of remitting the bill was adverted to
by the defendant's counsel at the trial, which
illicit, perhaps, now be deemed sufficient to
conclude the party ; but if the objection had
been made, it would have been of no avail.
The Act of Congress of the 6th of July, 1812
(1 srss., 12th Cong., ch. 129), authorizes ves-
sels of this sort to sail to the enemy's port, and
of course. those»who afford the necessary sup-
plies to the captain, for a voyage thus legal-
ized,, are exempted from the controlling princi-
ples growing out of a state of war. The same
protection afforded by law to Taylor & New-
man, who procured the supplies, must be ex-
tended to Suckley, and to all those having
dealings of the name description. The case or
l\'t itxinfftim v. Inglt* et al., 8 East, 278. goes
much further, and appears to me to be eonclu-
ins
.343
SUPREME COURT, STATE OF NEW YORK.
1818
sive on the subject. There a license had been
given to trade with an alien enemy for specie
and goods, to be brought from the enemy's
country in his ships, into a British colonial
port ; and it was held that an insurance on the
enemy's ship, as well as on the goods and
specie put on board, was incidentally legal-
ized ; and that it was competent for the British
agent of both parties, in whose name the in-
surance was effected, to sue upon the policy in
time of war, the trust not contravening any
rule of law or of public policy. In this case,
the privilege to sail clearly comprehended the
right of procuring and affording the necessary
supplies, to enable her to prosecute her voy-
age, for the amount of which the bill in ques-
tion was drawn. The plaintiff, therefore, on
both grounds, is entitled to judgment on the
verdict.
Judgment for tJie plaintiff.
Cited in— 6 Wend., 628 ; 19 Wend., 376 ; 100 U, 8.,
244; 32CaJ., 439.
34:3*] *SMITH, ex dem. ROOSEVELT ET AL.,
v.
VAN DURSEN.
Wills — Patent Issued to Testator after his Death
— Title was in Testator at Death — Devise of
Land held Adversely, Void.
Where an officer in the New York line, during1 the
Revolutionary War, died in 1781, having devised all
his real and personal, estate to his father ; and in
1790, a patent was issued to the testator for a mili-
tary lot ; and after the death of the father, the only
brother of the testator, in 1811, entered upon the
lot, and in 1814 conveyed part' of it to A, under
whom the defendant claimed : it was held that the
title to the lot was vested in the testator at the time
of his death, and that he might devise it ; that his
father was entitled to it, both as the devisee, and as
the heir of his son, and having conveyed it, in 1794,
the lessors of the plaintiff, who claimed under that
conveyance, were entitled to recover it in an action
of ejectment against the defendant, claiming under
the conveyance from the testator's brother.
A devise of land held adversely to the devisor is
void ; but it descends to his heir.
Citations— 14 Johns., 406; 3 Cai., 62; 2 Johns., 80;
Act April 5, 1803.
THIS was an action of ejectment for part of
lot No. (iO, in the town of Mentz, in Cayuga
County. The parties agreed upon a case, con-
taining the following facts, for the opinion of
the court.
Peter Elsworth, an officer in the New York
line during the Revolutionary War, and, as
such, entitled to bounty land, made and pub-
lished his last will and testament, dated May
3d, 1781, by which he devised all his real and
personal estate, whatsoever or wheresoever, to
his father, William Elsworth, whom he au-
thorized and directed to sell his real estate, and
appointed him his sole executor. P. Elsworth
died in the same year. with<*ut lawful issue,
leaving his father, W. Elsworth, and a
brother, Theophilus Elsworth. Letters patent,
bearing date the 7th of July, 1790, were after-
NOTE.— Real property— Grant of land held adverse-
ly, void.
For full disnixsttm, see Jackson v. Todd. 2 Cai.,
183, note ; Whitaker v. Cone, 2 Johns. Gas.. 58, note;
Jackson v. Sharp, 9 Johns., 163, note; Brandt v.
Ogden, 1 Johns.. 156, note ; Jackson v. Wheeler, 10
Johns., 164, note.
1114
wards issued to Peter Elsworth, for a military
lot, which, by deed bearing date the llth of
October, 1794, W. Elsworth conveyed to
Christopher Tappen, in fee, who, by deed of
the third of October, 1794, conveyed the same
to Cornelius C. Roosevelt. Roosevelt died on
the 10th of February, 1814, having devised the
lot to Eliza Evertson and Sarah Roosevelt, two
of the plaintiff's lessors, his heirs at law.
William Elsworth, the father of the patentee,
died in October, 1799, and after his death, in
1811, Theophilus Elsworth, the brother, en-
tered into possession of the lot, his being the
first actual possession, and died in possession,
except of two hundred acres, the premises in
question, having, in May, 1806, conveyed them
to Yeomans, who, in 1814, conveyed 'the same
to Comb, who, by deed bearing date the 28th
of August, 1815, conveyed the same to the de-
fendant. The defendant entered into posses-
sion, and continued in possession until after
the bringing of this suit.
Mr. Griffin, for the plaintiff, contended that
the lands claimed, upon the death of Peter
Elsworth, vested in his father, either
*as devisee or heir at law. He cited [*344
Pow. on Dev., 236 ; 1 N. R. L., 313, sess. 36,
ch. 80, sec. 7 ; sess. 29, ch. 83, sec. 8 ; Web-
ster's ed., Vol. III., 399 ; Jackson v. Phelps, 3
Cai., 63 ; Jackson v. Winslow, 2 Johns., 80.
Mr. Sudam, contra, insisted that the lots in
question did not pass by the will of P. E. in
1781, as his right to the land rested on the res-
olutions only of the Legislature. The Act of
1790 refers only to cases of soldiers dying
since 1783 ; and the Act of 1783 gives the
seisin at the time of the death. But to render
the will valid, there must have been a seisin at
the time of the devise.
Again ; the Act of 1790 does not affect this
case, because P. E. died before 1783, and the
Act of 1803 does not affect the title of his brother,
Theophilus, because his father died in 1799.
T. E. took the land on the death of P. E., as
heir to his deceased brother. There were no
intermediate heirs, and the Act of 1803 has no
effect on the case, as the father died in 1799.
T. E. has always been the heir at law of the
deceased soldier. Why then refer the seisin
back, in order to change the descent ? This
case is different from any that has yet been
presented to this court relative to the rights of
deceased soldiers. The case of Jackson, ex dem.
Austin et al.,v. Hoice, 14 Johns. , 405, is the only
one that has any bearing on the present case.
All the other cases are very distinguishable
from it. The court will always favor the heir
at law, and there was no period of time from
the death of the soldier, that his brother, T.
E. was not his heir.
SPENCER, J., delivered the opinion of the
court :
It is scarcely necessary, after so many decis-
ions upon the points arising in this case, to do
more than briefly state the facts, and refer to
the cases decided.
Peter Elsworth. the patentee of the lot, of
which the premises in question are a part, was
an officer in the Revolutionary War, in the line
of this State, and as such entitled to a granl of
bounty lands ; the patent to him was a fulfill-
ment, on the part of the State, of the engage-
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. FERRIS.
845
345*] ment to give the lands. ^He died in
May, 1781, and by his will duly executed, he
devised to his father, William Llsworth. all his
real and personal estate whatsoever and where-
soever, and constituted his father executor.
The will authorized the executor to sell and
convey the real estate. The plaintiff's title is
derived under a sale by the executor, and no
objection is made to the plaintiff's title, if
William Elsworth became seised of the lot,
either under the will, or as heir to the patentee.
Peter Elsworth died without issue, leaving
his father and a brother, Theophilus : the de-
fendant ha- deduced a regular title under him,
if he was seised as heir of the patentee.
In the case of Jackson v. llmre, 14 Johns.,
406 ; Jttflaon v. Phelps, 8 Cai., 62 ; and Jack-
ton v. Wiiulow, 2 Johns., 80, this court decided
that by the Act of the 5th of April, 1803, the
titles of the military bounty lots were vested in
the officers and soldiers, at the time of their
respective deaths, without reference to the
period of issuing the letters patent.
It follows, then, that Peter Elsworth was
seised of the lot when he died, and might de-
vise it. But the Act Regulating Descents,
adopted by the Act of the 5th of April, 1803.
in reference to these lands, would also vest the
lot in William Elsworth, as heir to his son, the
patentee ; for the lot was not held by bonafde
purchasers or devisees under Theophilus, on
the 5th of April. 1803.
The lessors of the plaintiff, Eliza Evertson
and Surah Roosevelt, are the devisees, and also
the heirs at law of Cornelius C. Roosevelt.
The adverse possession at the time of bis de-
vising, though it invalidates the devise, does
not prevent the descent.
Judgment for the plaintiff.
Overruled— 2 Wend., 166.
:*4O*1 MACKSON, ex dem. ELLIZABETH
HUNT,
e.
FERRIS.
WiUs— Deficiency in Personal K*tate to Pay Debt*
— Widtnr and Another as Executors — Execu-
tion of P»u>er to Sell Real Estate by Widow
Alone, Valid.
The testator directed, that in case of a deficiency
of his personal estate, some of his real estate should
be sold for the payments of his debts ; he then de-
vised hU r. al and personal estate to his wit'.- for life,
and appointed her and another | MT-MII as executors.
The widow alone undertook the execution of the
will ; and the testator having dfs|>osed of all his per-
sonal property in his lifetime, and dying indebted,
the executrix sold and conveyed part of the MM
estate. Held that the power was well executed by
the executrix alone.
Citatlons-H Johns., 527, 391: 3 Rinn.. 6»; Pow.
Dev.. 297, 307 : Cro. Car., 3K2 : Cro.Eliz.,28; Stat.,21.
Hen. VIII., ch. 4 ; Bess. 10, ch. 47, sec. 10,
THIS was an action of ejectment for land in
the town of Flushing, in the County of
Queens. The cause was tried before Mr. Jus-
tice Van Ness, at the Queen's Circuit, in June,
1817.
The plaintiff's lessor claimed the premises as
the only child and heir at law of Gilbert Field,
JOHNS. RKP., 15.
who died in possession, about twenty-eight
years before tin- trial. After the death of her
father, she married Thomas Hunt, who died
in 1812. The defendant claimed as purchaser
under a power of sale contained in the will of
Gilbert Field, executed the 20th of. February,
1788, and the material parts of which are as
follows :
•• In the first place, I will and order that all
my just debts and funeral charges be paid by
my executors, hereinafter mimed, out of my
personal estate. If there should not be enough
of my personal estate, I will and order some of
my real estate to be sold, for to pay my debts.
Item. I give and bequeath unto my wife,
Hannah, the use of all my estate, both real and
personal, after the payment of the debts as
aforesaid, during her natural life ; and after
her decease, I give and bequeath all my estate,
both real and personal, unto my da*ughter,
Elizabeth Field, her heirs and assigns, forever,"
<fcc. The testator appointed his wife and Jesse
Farrington his executors ; but the former only
undertook the execution of the will, and on
the 19th of July, 1790, conveyed the premises
to John Fowler, through whom the defendant
claims.
The testator, before his death, gave all his
personal property to his daughter, who took
away almost the whole of it when she married,
leaving only some trifling articles with the
widow. The testator, at the time of his death,
owed some debts, though it does not appear to
what amount ; there were, however, his phy-
sician's bill, and some otker small debts due
from him, for the payment of which, with his
funeral expenses, the premises in question were
sold. *The testator also owned another [*347
lot in Flushing, which had since been sold by
the lessor of the plaintiff.
A verdict was taken for the plaintiff, subject
to the opinion of the court on a case in which
the above facts were stated.
Mr. Burr, for the plaintiff, contended that
the power to sell was a naked i>ower ; or at
most, a power to sell on a certain f out ingency,
before the happening of which the executors
could not exercise the power. It should have
l>een made clearly to appear that there was a
deficiency of personal assets, and that it WHS
necessary to sell some part of the real estate
before the widow undertook to sell. The ex-
istence of debts, and the insufficiency of per-
sonal assets, was a condition precedent ; and
unless proved, there was no authority to sell.
It belongs to the purchaser to ascertain the
fact at his peril. (Dike v. Rick*. Cro. Car.,
335 ; Ciilpepper v. Aston, 2 Ch. Cas.. 221. 228 ;
Sug. Vend., 343, 844 ; 1 Cai. Cas. in Er.,
15.)
Mr. Bnnckerhoff, contra, said that the sub-
ject of the execution of a power given to exec-
utors to sell under a will, had lately been so
fully discussed «in the Court for the Correction
of firrors. that it was unnecessary to repeat the
arguments, or to examine the cases which had
been cited. They were all to be found in the
report of the case of Franklin v. O*good, 2
Johns. Ch., 1 S. C., in error, 14 Johns., 527,
560. He contended that it was a power coupled
with an interest, and was well executed by the
widow of the testator, as solcacting executrix.
(Pow. Dev., 301 ; Cai. Cas. in Er., 15; Co.
I Hi
347
SUPREME COURT, STATE OF NEW YORK.
1818
Litt., 113 a, 181 b, 236 a; 2 Ch. Cas., 115, 220,
223- 2 Vern., 302, 56« ; 2 Ves., 590; Pow.
Dev., 291, 294, 310.)
YATES, J., delivered the opinion of the
court :
The principles which governed the decision
of Fi-anklin v. Osgood, in the Court for the
Correction of Errors (14 Johns., 527) and of
Jackson v. Burtis in this court (Id., 391) are
348*] *applicable to and fully decide the pres-
ent case. The case of Lessee of Zeback v. Smith,
3 Binn., 69, is also in point.
The testator, in the case before us, gives the
power to sell to his executors without naming
them, which shows that the authority intended
to be given was virtute offlcii, and it being a
power to sell for the purpose of paying debts,
the exercise of it was necessary to effectuate
his intention. (Pow. Dev., 297, 307 ; Cro. Car.,
382 ; Cro. Eliz., 26.) Besides, it is a power
coupled with an interest. The wife, by the
will, has a life estate in the premises. In short,
the power contains all the requisites to show
that it must have survived, and that it could
not have been exercised by any person not an
executor. The widow at the time of sale was
the sole acting executrix; and by the Statute (21
Hen. VIII., ch. 4, sess. 10, ch. 47, sec. 10, 3d of
March, 1787 ; 1 Greenl. ed. Laws. 389 ; 1 N.
R. L., sec. 11, pp. 364, 367), where any of the
executors renounce or refuse to act, the rest
may execute the power. There can, therefore,
be no doubt that the executrix, who alone
qualified, had a right to dispose of the property,
and the indebtedness, to authorize the dispo-
sition of it, sufficiently appears. The testimony
clearly shows that the testator, before his de-
cease, gave all his personal property to his
daughter ; and that he was considerably indebt-
ed, at least for his physician's bill, and other
small debts, with his funeral expenses. This
is enough ; and the property having been sold
for its full value, at the time, there is nothing
to affect or invalidate the sale made by the
executrix. The defendant is, therefore, en-
titled to judgment.
Judgment for the defendant.
Cited in— 7 Cow., 196 : 2 Den., 70; 4 Den., 403; 7 Hun.
513 ; 10 Peters, 566 ; 5 How. (U. S.) 268, 272.
349*] *M'DONALD v. HEWETT.
Sales — Executory Contract — When Title Passes.
Where after a sale of goods, some act remains to
be done by the vendor before delivery, the proper-
ty does not vest in the vendee, but continues at the
risk of the vendor.
The plaintiff and A entered into an agreement,
which stated that the plaintiff had bought of A a
certain quantity of timber, which the plaintiff
was to pay for at the measurement in the City of
New York, when it was delivered and inspected ;
and also to pay the fair market price in New York
when it was delivered ; the plaintiff also agreed that
the amount of the timber should be indorsed on
notes which he held ag-ainst A and if it exceeded the
amount of the notes, the plaintiff should pay the
balance to A ; it was held that this agreement was
executory, and did not vest the property in the tim-
ber in the plaintiff, who, therefore, could not main-
tain an action of trover against a third person for
the conversion of it.
1116
Citations— 2 Bl. Com., 443; ] Com. on Con., 3; 3
Johns., 388, 424, 44 ; 5 Johns., 74; 10 Johns., 336: 2
M. & S., 397 ; 5 Taunt.. 621.
THIS was an action of trover for a quantity
of timber. The cause was tried before His
Honor, the Chief Justice, at the Albany Circuit,
in October, 1817.
The plaintiff produced in evidence the fol-
lowing writing or bill of sale: "Stillwater,
March 16, 1816. William M'Donald bought of
John Neilson, Jr., one hundred sticks timber,
consisting partly of oak, pine, hemlock and
elm, lying on the east side of Hudson River, in
the town of Easton, Washington County; also
one hundred and fifty sticks timber, consisting
of oak and pine, lying on the bank of Hudson
River, in the town of Stillwater. The said
William M'Donald is to pay for the same at
the measurement in the City of New York,
when the said timber is delivered and inspect-
ed; and also, is to pay the fair market price in the
City of New York when delivered. The said
John Neilson has contracted, and does agree
to deliver the same on or before the first July
next; and also, the said John Neilson, Jr.,
agrees that the amount of the said timber
shall be indorsed on his notes, which the said
William M'Donald holds against him" (de-
scribing them), "and if the said timber
amounts to anything more than the said notes,
the said William M'Donald is to pay the over-
plus to the said John Neilson, Jr." The de-
fendant was employed by Neilson to take the
timber to New York, ana on his arrival there,
it was demanded of him by the plaintiff, but
he refused to deliver it, and left it with the
father of the plaintiff, who sold it on the
plaintiff's account.
The defendant, during the course of the
trial, moved for a nonsuit, on the ground that
there had not been such a sale to the plaintiff
as would enable him to maintain this action ;
and afterwards, on the ground that the action
could not be maintained against the defend-
ant, he being only the servant and agent of
Neilson, and that, in fact, there was no con-
version by the defendant ; but the judge in
both instances, *denied the motion, [*35O
and a verdict was found for the plaintiff, sub-
ject to the opinion of the court.
Mr. Huntington, for the plaintiff. As be-
tween the plaintiff and Neilson, there was
such a contract of sale and transfer of the prop-
erty in the timber, as would enable the plaint-
iff to maintain trover. There is a bill of sale,
importing a consideration, and a sufficient
memorandum in writing within the Statute of
Frauds. The agreement shows that a sale has
been made. (Bac. Abr., Bills of S ale; Shep.
A, Touch., 224; 1 Com. Dig., 411, Agreement,
2 ; 2 Com. Dig.. 138, Biens, D, 3 ; 1 Bl. Com.,
432 ; 2 Com. on Con., 210 ; 7 East, 571 ; Bull,
N. P., 35 ; 2 Saund., 47, n. b.)
The next question is, whether trover will
not lie against the defendant, under the cir-
cumstances of the case. The defendant knew
that the plaintiff had purchased the timber of
Neilson. All persons who direct or assist in
committing a trespass, or in the conversion of
personal property, are in general liable as
principals though not benefited by the act.
(1 Chitty PI., 67 : 2 Saund., 47 i ; Bull N. P.,
41 ; 6 T. R., 300 ; 1 Bos. & P., 369 ; 2 Esp.
JOHNS. REP., 15.
1818
COLQUHOUN v. NEW YORK FIREMEN INS. Co.
850
N. P. Cas., 553; Bac. Abr.. Trover. E; 2
Saund , 47 e,f ; 2 8tr., S13: Thorp\. Burling.
11 Johns., 285 ; Bristol v. Burt, 7 Johns., 254 ;
Murray v. Burling, 10 Johns., 172, 175.)
In Perkins v. Smith, 1 Wils., 828, it was
held that trover lies against a servant who dis-
poses of the property of another to hi* mas-
ter's use. (S. P. Stephen* et al. v. El teal. 4
& Maule Selw., 269.)
Mr. T. SedffieicJc, contra. The only question
is, whether the property was transferred to
the plaintiff. It is an agreement containing
mutual stipulations and conditions, not an
absolute bill of sale. The agreement is signed
by both parties, which is not the case in an
ordinary bill of sale. The price was to be
paid at a future day. This was an executory
contract. In De Fon clear v. Shottenkirk, 8
Johns.. 170, where there was an agreement
for the sale of a slave, and the defendant was
to take him on trial, and while with the de-
defendant, the slave ran away, it was held
that the defendant was not liable for the loss,
it not being an absolute sale.
301*] 'Again ; a servant is not liable in
trover ; he IH not ' bound to decide on the
right of ownership, on the property being
claimed or demanded by a stranger. A de-
mand and refusal are only evidence of a con-
version. There was no actual conversion in
this place. (Bull. N. P., 47.) A servant is
not answerable for negligence, but his prin-
cipal only. (/MM v. Cotton, 12 Mod., 488 ; 15
Vin. Abr., 316. Master and Servant, G; 1
Roll., 78.) Perkins v. Smith is very distin-
guishable from the present case. The defend-
ant there was tortfeasor. The bankrupt had
no right to deliver the goods to him ; and his
selling them for his master's use, was a tor-
tious act.
SPENCER, /., delivered the opinion of the
court :
The only point is, whether the plaintiff was
the owner" of the timber for which the suit is
brought. In construing the agreement, we
must look at all its provisions. The contract
was executory, not executed, and the property
did not pass.
The agreement, to be sure, says that the
plaintiff bought of the defendant the timber
lying in Washington and Saratoga Counties ;
but now ? The plaintiff was to pay for the
same at the measurement in New York, when
it was delivered and inspected, and at a fair
market price, when delivered. Neilson con
tracted to deliver it bv a particular day, and
the amount was to be indorsed on notes which
M'Donald held ; and if the timber amounted
to more than the notes, the residue was to be
paid for.
The distinction between executory and exe-
cuted contracts is well defined ; the former
conveys a chose in action, the latter a chose in
possession. In 2 Bl. Com., 448 ; 1 Com. on
('out.. 8 ; 3 Johns., 388, 424 ; 3 Johns., 44 ; 5
Johns., 74; 10 Johns., 386, this distinction is
stated and illustrated. The usual and decisive
test, in cases of this kind, is to consider at
whose risk the subject of the contract was ;
and certainly this timber was at the risk of
Neilson. He was to transport it to New York ;
it was not to be delivered until inspected ; and
JOHNS. HEP., 15.
Neilson had the right to withhold a delivery
until the amount was indorsed on his notes';
and if the fair value, which was yet to be
ascertained, exceeded the notes. Neilson had a
right to insist on payment before he parted
*with his timber, for, by the contract, [*;{."» U
tlii--r were dependent and simultaneous acts.
The case of Busk et al. v. Davis et al., 2 M.
& Selw., 897, and Shiplyv. Davis, 5 Taunt.,
621, are full to the point, that if any act re-
mains to be be done by the vendor before de-
livery, the property does not pass.
Judgment for the defendant.
Cited ln-2 Cow., 178; « Cow.. 254: 7 Cow., 87: 3
Wend., 118: 15 Wend.. 228; 5 Den., 381 ; H. & D.,
421: 8N. Y., 297; 14 N. Y.. 817; 4 Barb., 585; 19
Barb.. 427 : 42 Barb., 575 : 44 Barb., 533 ; 37 How. Pr.,
350 : 6 Abb. N. 8.. 372 : 3 Duer, £B ; 1 Sweeny, 1»4 : 2
Daly, 512; 65 Mo., 566; 9 Minn., 145.
COLQUHOUN ET AL.
».
NEW YORK FIREMEN INSURANCE
COMPANY.
Marine Insurance — Warranty to Sail under an
Enemy's License, Renders Policy Void.
Where an insurance wa« effected during1 the late
war with Great Britain, on goods from Norfolk to
Lisbon, and the policy contained a warranty that
the vessel should have a genuine British license on
board, and the vessel sailed with and had such li-
cense on board at the time o f the loss ; held that as
the taking of such license was unlawful, and sub-
jected the vessel to forfeiture, the policy waa void.*
Citations-8 Cranch, 189, 219; 1 Wheat., 440; 2
Wheat., 147.
THIS was an action of assumjmt on a policy
of insurance on one thousand barrels of
flour, valued at the sum insured, which was
$12,766, from Petersburg to Norfolk, on board
of crafts or vessels ; and at and from Norfolk
to Lisbon, on board the ship Debby and Eliza.
The policy was dated the 8th of February,
1818, and contained a warranty that the vessel
should have a genuine British license on board;
and that the cargo should lye in conformity to
the license. The cause was tried before 'Mr.
Justice Spencer, at the New York sittings, in
April, 1817.
The vessel set sail on the voyage intended,
on the 5th of March. 1813, and proceeded as
far as Hampton Roads, when the master, un-
derstanding that the Chesapeake was block-
aded by a British squadron, put back, and the
voyage was discontinued ; and on the 15th of
March the plaintiffs abandoned. It was proved
that the vessel had a genuine British license
on board at the time she sailed, and until her
return.
A verdict was taken for the plaintiffs, by
consent, subject to the opinion of the court on
a case in which the above facts were stated.
Mr. T. A. Emmet for the plaintiff.
Messrs. Wells and S. Jones, Jr., for the de-
fendants.
*The counsel declined arguing the [*353
case, as the question had been before raised
*Craig v. United States Ins. Co., 1 Pet. C. C. H..
410: Th.M 'ul. -.Ionian. 4 Wheat,, 100; Patton v. Nichol-
son, 3 Wheat., 204.
1117
354
SUPREME COURT, STATE OF NEW YORK.
1818
and discussed, but submitted it to the consid-
eration of the court on the facts of the case.
SPENCER, J., delivered the opinion of the
court :
Whether the defense urged ought to have
been set up, was a question for the considera-
tion of the defendants only. We are called
upon to pronounce the law of the case, with-
out regard to honorary considerations.
The objection is. that the voyage was illegal ;
and if it be so, there is an end of the question ;
for any contract founded upon an illegal voy-
age, partakes of the character of that voyage,
and stands or falls with it.
The court do not propose, upon a case sub-
mitted by the parties without argument, to go
into much discussion. By reference to the
cases of The Julia, 8 Crauch, 189 ; The Au-
rora, 8 Cranch, 219 ; The Hiram, 1 Wheat.,
440 ; and The Ariadne, 2 Wheat., 147, it will
abundantly appear that the Supreme Court of
the United States have repeatedly decided that
the mere sailing under an enemy's license,
without regard to the object of the voyage or
the port of destination, constituted, of itself,
an act of illegality which subjected the ship
and cargo to confiscation ; that it was 'an at-
tempt by one individual of a belligerent
country to clothe himself with a neutral char-
acter, by the license of the other belligerent,
and thus to separate himself from the common
character of his own country.
This doctrine we consider sound, and not
only warranted, but required, by the duty of
of allegiance which every citizen owes to his
country. The converse of the proposition laid
down cannot be endured for an instant. It
would go the whole length of justifying a
citizen of one of the belligerents in holding a
correspondence with the enemy, and in lend-
ing himself to them in furtherance of their
views, in direct hostility to the views and in-
terests of his own government. In short, it
would open the door to the most treasonable
correspondence with and aid to the enemy.
Were it necessary to show, that, in this
case, the shipment was to promote the views
and subserve the interests of the enemy, the
license under which the vessel sailed, affords
354*] *the most incontestable evidence of the
fact. The court forbear going into the evi-
dence, as they do not found their opinion on
the fact that the voyage was undertaken to
supply the enemy, but on the broad ground
that the enemy's license, per se, was a cause of
forfeiture.
Judgment for tlie defendants.
JACKSON, ex dem. COL.DEN ET AL.,
CHACE
New Trial — Not Allowed after Judgment is Per-
fected.
A motion for a new trial will not be heard after a
judgment has been regularly perfected: although
it be on the ground of evidence newly discovered
since the judgment.
Citation— 1 Johns. Cas., 245.
MOTION to set aside the judgment, and the
subsequent proceedings, and for a new
1118
trial, on the ground of newly-discovered evi-
dence. From the affidavits which were read,
it appeared that the suit was commenced in
1807, and after a trial and verdict for the
plaintiff, judgment was entered for the plaint-
iff, in October Term, 1816, there being no or-
der to stay proceedings ; but no execution
was issued until some time in July last past.
That the new evidence, which, it was con-
tended, would clearly show a title to the prem-
ises out of the lessors of the plaintiff, was not
known or discovered by the defendant until
the 27th of April last past.
Mr. Weston. for the defendant, said that un-
der the particular circumstances of the case,
the motion ought to be heard. In Case v.
Shepherd, 1 Johns. Cas.. 245, the court allowed
the motion to be made after judgment had been
perfected, on the ground of a misconstruction
of the rule of practice by the defendant's at-
torney. In Birt v. Barlow, Doug., 170, the
Court of K. B. allowed the motion to be made,
after the four days had expired, under the
special circumstances. (Bac. Ahr., 'Trial, L,
1.) In Loft's Reports, 160, it is said that it is
never too late to move for & new trial on anew
discovery : which will take it out of the gen-
eral rule of four days, if you apply in due time
after the discovery made.
*Messrs. Mitchill and Van VecJiten, [*355
contra.
Per Curiam. A motion for a new trial must
be within the first four days of the term, and
before judgment is perfected, unless an order
to stay proceedings on the. verdict has been ob-
tained, which operates as' an enlargement of
the rule of four days. In no case has a mo-
tion for a new trial been heard after a judg-
ment has been regularly perfected. The case
of Shepherd arose soon after the present rules
and orders of the court were made ; and the
court, under the particular circumstances of
the case, of an alleged misapprehension of the
meaning of the 4th rule of January Term,
1799, allowed the motion to be made.
Motion denied.
Criticised— 34 Super., 39.
Cited in— 33 Barb., 157; 6 How. Pr.. 294; 4 Bos.,
509 ; 5 Bos., 78, 681; 7 Bos., 400 ; 4 Rob., 640: 16 Minn.,
465.
BENNET v. D. SMITH AND PHELPS.
Accommodation Paper — Usury.
A note made for the accommodation of the payee,
for the purpose of raising money on it, at an usur-
ious rate of interest, and sold by him at a discount
greater than the lawful rate of interest, is void.
Citation— 15 Johns., 44.
THIS was an action of assumpsdt on twelve
promissory notes, dated June 3: 1811, for
$25 each, made by the defendants, payable to
Caleb M. Fitch, or bearer, on the 1st of June,
1812. Plea, non azsumpsit. The cause was
tried at the Cortlandt Circuit, in June, 1817,
before Mr. Juatice Platt.
The defense at the trial was usury ; to prove
which the defendants called Abner Humph-
reys as a witness, who testified that in May,
1811, Fitch applied to him for a loan of a sum
JOHNS. REP.. 15.
1818
THE PEOPLE v. UTICA INS. Co.
355
of money, which he declined lending, but
said that if Filch had any good notes he would
purchase them. A few days afterwards Fitch
brought the witness several notes, executed by
the defendants, amounting, in the whole, to
$868. including the notes on which this suit
was brought, which the witness purchased, at
a discount of twenty -one per cent., or for $300.
The witness said that at the time of the pur-
chase, he did not know but that the notes were
S'ven by the defendants to Fitch in the ordi-
."»(**] nary *wuy of business ; and that it
u:i> nut previously agreed that these, or any
other notes of the defendants, should be pro-
cured for that purpose ; that the witness
merely agreed to purchase notes to about that
amount, at a discount of twenty-one per cent.
The defendants then oilcred I). Edwards as
a witness, to prove that Fitch applied to the
defendant* fur a loan of their notes to him,
for $363, and informed them that he had agreed
with II. to sell the notes to him for $300; and
that the notes were accordingly executed by
the defendants for that purpose. This evi-
dence was objected to. on the ground that as
between the original parties there was no
usurious contract, and that the facts offered to
be proved were not suth'cieut to make the notes
void for usury, unless it was shown either that
it had been previously agreed between H. and
F. that the notes in question should be obtained
for that purpose, or that II. knew at the time
that the notes were not given to F. in the
course of business, but were executed merely
for his accommodation, for the purpose of sell-
ing them to II. at a discount.
The judge overruled the objection, and the
witness testified that Fitch applied to the de-
fendants for their notes, and told them that he
had agreed wilh II. for $300, at twenty-one
per cent, discount; that there must be fourteen
notes of $35 each, and one note of $13, making
together $363 ; that the defendants agreed to
make the notes for that purpose, and they ac-
cordingly executed them. The defendants of-
fered to prove the confessions of H. in regard
to the transaction, while the notes were in his
hands. The evidence was objected to, but
the judge decided that it was admissible.
Barna Smith, the witness, testified that in 1812
he applied to H. for a loan of money, and II.
said he could not lend the money, unless he
could obtain payment from the defendants of
money he had lent them, which the witness
understood from II. to be $300, for which he
had taken their notes for $3tf5.
The judge charged the jury, that if they
believed the testimony of Edwards, and that
the notes in question were made by the defend-
ants to Filch, to enable him to raise the sum of
357*J *$300 from H. at an interest of twenty-
one per cent., and that F. so obtained the money,
the contract was usurious, and the notes void
under the Statute ; that it was immaterial
whether II. knew the. manner in which F. ob-
tained the notes; he took them at his peril, and
though lie may have supposed them to have
been given in the ordinary course of business,
they were, nevertheless, void.
The phi m i IT having been nonsuited, a motion
was now made to set the nonsuit aside.
Mr. Cttllyer, for the plaintiff, contended : 1.
That the evidence of B. Smith was improperly
JOHNS. RKP.. 15.
admitted, as it went to discredit Humphrey,
the defendants' own witness ; though they
might prove facts aliunde, that would discredit
him. (Phil. Ev., 218, 214; Bull. N. P.. 297;
1 Taunt., 377 ; Peake's Ev., 125, 126; Swiff*.
Ev., 143. 144.)
2. The transaction was not usurious.
VAN NESS. J. The case of Munn v. The
Commission Co., ante, p. 44. is decisively against
you in this point. We decided that a note
made for the purpose of being discounted at
an usurious interest, and indorsed for the ac-
commodation of the maker, was void in it* orig-
inal formation.
Mr. Sherwood, contra, was stopped by the
court.
Per Curiam. The motion to set aside the
nonsuit must be denied.
Motion denied.
*THE PEOPLE OF THE STATE [*358
OF NEW YORK, ex rel. TUB ATTORNEY-
GENERAL,
v.
THE UTICA INSURANCE COMPANY.
Corporation* — Quo Warranto Lie* against for
Act* without Jjfffislatire Authority — llanking
Privilege* are Franchises — Obscure Statute —
Statute Itestraininy Person* Applies to Corpora-
tions— Specific Pincers only — Construction of
Statutes — Force of l*reamble.
An information, in the nature of a quo warranto,
lies against an incor|>orated company, for carrying-
on banking operations without authority from the
Legislature.
Privileges and immunities of a public nature,
which cannot legally bo exercised without a legisla-
tive'grant. are franchises, although they never ex-
isted in the people, or couKl be exercised by them in
their political capacity.
Since the Act to I test rain Unincorporated Banking
Associations (April 11th. 1S(W, sess. •*;. eh. 117: re-en-
neted April >Hh, IS13, sess. M, i-h. Tl : ^ N. U. I,., 2Mi,
the right or privilege of currying on banking O|>ertt-
t ions, by an association or company, is a franchise,
which can only be exercised under a legislathc
grunt.
An information in the nature of a 71*0 trarrantn.
for ursurping a franchise, need show no title in the
people to the franchise, but it lies with the defend-
ant to show his warrant fer exercising it.
Where the words of a statute are obscure or doubt-
ful, the intention of the Legislature is to be resorted
to, in order to discover their meaning.
A thing- within the intention is a* much within the
Statute as if it were within the letter: and a t hing
within the letter is not within the Statute, if con-
trary to the intention of it.
Such construction ought to be given as will not
suffer the statute to IM- eluded.
A statute, restraining any person from doing
certain acts, applies equally to corporations, or
bodies politic, alt hough not mentioned.
A corporation has no other powers than such as
are specifically granU-d by the Act of Incor|K>rarion,
or are neci-ssary for the purpose of carrying into
effect the powers expressly granted.
The Act to Incorporate the I'tic -a Insurance Com-
pany, passed March -*.ith, 1*H! (seas. »», ch. 5S). does
not authori/.e the Company to institute u tmnk, issue
NOTE.— Corporation— Pmctr#— Quo warranto lie*
against , fur usurping a iniltlir f'r<i;«7nV. People v.
Tibl.its, 4 Cow., 358: People v. Turnpike Co.. S5
Johns, 190; People v. Trust*** Geneva College, 5
Wend., 211: People v. Ifcmk ot Hudson, ti Cow., 217 :
People v. S. \- K. Ky. Co. i:, Wend., 113: People v.
I!. \ K. Tump. Co. ,23 Wend.,223: State v. Cin. (Jas
Co . 18 Ohio St..»tJ; High K\tr. Hem., sec., 650.
t'ltra Vine— GorporoMoM fern only mch power*
a* nrr x;x<-ifir<iWi/ qmntt<i. .Hulstead v. Mayor. &c..
of New York. 3 N. Y., 430 ; Uoyoe v. City of St.
3.58
SUPREME COURT, STATE OF NEW YORK.
1818
bills, discount notes and receive deposits, such pow-
ers not being expressly granted by the Legislature,
and not being within their intention, as collected
from the Act of Incorporation ; and the Company
having assumed and exercised those powers, they
were held to have usurped a franchise, and on an in-
formation in the nature of a quo warrants), being
filed by the Attorney-General, judgment of ouster
was rendered against them.
Citations— 2 Johns. Ch., 376 ; sess. 27, ch. 117 ; 12
Johns., 205 ; Act April 29, 1816 ; Bac. Abr. Stat., 1, 5,
10; 42 Eliz., ch. 2; Cowp., 73; Stat. 23 Hen. VIII., ch. 5;
2 Inst., 703; N. R. L.. 108; Finch: 164; 2 Inst., 281, pi. 12;
3 Burr., 1817 : 4 T. R., 381 ; 1 Bulst., 55 ; 2 Kyd Corp.,
399 ; 4 Burr., 2146-7 ; 1 Str., 303.
was an information in the nature of a
quo warranto, filled by the Attorney-Gen-
eral against the defendants, for exercising bank-
ing privileges, without authority from the
Legislature. The defendants were incorporated
by an Act of the 29th of March, 1816 (sess. 39,
ch. 52), and as the questions arising and dis-
cussed in this case related principally to the
true construction of the Act of Incorporation,
it becomes necessary to set forth such parts of
it as are material to the points raised on the
argument, and decided by the court. These
are as follows:
" Whereas it has been represented to this
Legislature, that incorporating an insurance
company, which has been formed in the village
of Utica, will tend to mitigate the awful ca-
lamities of fire, to give greater security to
manufacturers, and more confidence to those
who adventure their property on our vast navi-
gable waters. And whereas it doth appear
that these objects are laudable, and that a
company promoting them in the interior of
our country, where the profits must necessarily
be small, should be liberally encouraged;
Therefore,
359*] *I. Be it enacted by the people of
the State of New York, represented in Senate
and Assembly, That all such persons as now
are associated, or hereafter shall associate
together, for the purpose, shall be, and hereby
are constituted and declared to be, from time
to time, and at all times hereafter, from the
passing of this Act until the first Tuesday of
July, which will be in the year 1836, a body
politic and corporate, in fact and in name, by
the name of the ' Utica Insurance Company ;'
and that by the same name, they and their suc-
cessors, during the period aforesaid, shall and
may have continual succession, and shall be
capable in law of suing and being sued, plead-
ing and being impleaded, answering and being
answered unto, defending and being defended,
in all courts and places whatsoever, and in all
manner of actions, suits, complaints, matters
and causes whatsoever; and that they and their
successors may have a common seal, and may
change and alter the same at their pleasure ;
and by the same name be capable of purchas-
ing, holding and conveying any estate, real and
personal, for the use of the said Corporation,
in the convenient transaction of its business,
and subject to the restrictions and conditions
hereinafter contained.
II. And be it further enacted, That this Cor-
poration shall have full power and authority
to make contracts of insurance, with any per-
son or persons, body corporate or politic,
against losses or damages, by fire or otherwise,
of any house or boats, ships, vessels or build-
ings whatsoever, and of any goods, chattels or
personal estate whatsoever, and all kinds of
insurance upon the inland transportation of
goods, wares or merchandise, for such term or
terms of time, and for such premium or con-
sideration, and under such modifications and re-
strictions, as may be agreed on between the said
Corporation and the person or persons agreeing
with them ; and in general, of doing and per-
forming, in these operations, all the business
generally performed by insurance companies;
excepting therefrom, that this Corporation
shall not engage in loaning any money upon
bottomry and respondentia, nor in making any
insurance upon any life or lives; anything that
may be in the practice or charter of any other
insurance company to the contrary nothwith-
standing; *and excepting, further, the [*36O
restrictions and prohibitions hereinafter con-
tained.
V. And be it further enacted, That if, on
any anniversary day of election for Directors,
the stockholders owning two thirds of the
whole amount of the stock subscribed to this
Corporation, shall vote to discontinue the busi-
ness of the said Corporation, it shall be the
duty of the Directors to cease forthwith from
assuming any new risk of insurance, and from
doing any new business, or operations of any
kind whatever, excepting such as may tend to
accelerate the closing of the concerns of the
said Corporation ; and it shall further be the
duty of the said Directors, as soon as may be, to
dispose of all the property of the said Corpora-
tion, and to call in all parts of the funds or
capital stock of the said Corporation, which
may have been loaned by the said Corporation ;
and after the funds and property of the said
Corporation shall have been thus collected
and received, to make an equal division of the
same among the stockholders, in the propor-
tion that they shall be equitably entitled to, by
the number of shares of the stock of the said
Corporation which they may respectively own;
and after all the property of the said Corpora-
tion shall have been thus divided and paid
over, the said Corporation shall cease and be
dissolved.
IX. And be it further enacted, That the
Directors for the time being shall have power
to call and demand from the stockholders, re-
spectively, at such time or times as they shall
think proper, the remainder of all sums of
money by the said stockholders subscribed,
&c. And further, the said Directors shall have
Louis, 29 Barb., 650 ; 18 How. Pr., 125 ; N. Y. Fire-
men Ins. Co. v. Ely, 2 Cow., 678.
"A corporation, being a mere creature of the
law, possesses only those properties which the
charter confers upon it either expressly or as inci-
dental to its very existence." Dartmouth College v.
Woodward, 4 Wheat., 518 ; Beach v. Fulton Bank,
3 Wend., 583 ; N. Y. Firemen Ins. Co. v. Sturges. 2
Cow., (564; C. & A. Ry. Co. v. Remer, 4 Barb., 130;
LeCouteubc v. Buffalo, 33 N. Y., 333; North River
1120
Ins. Co. v. Lawrence, 3 Wend., 482 : Fire & L. Ins.
Co. v. Fire Ins. Co., 7 Wend., 31 ; Utica Ins. Co. v.
Scott, 19 Johns., 1 ; First Parish v. Cole, 3 Pick.. 232;
Fuller v. Plainfleld Academy, 6 Conn., 532 ; Berlin v.
New Britain, 9 Conn., 180; Shawmut Bank v. P. &
M. Ry. Co., 31 Vt., 491 ; Petersburgh v. Matzker, 21
111., 205; White's Bank v. Toledo Ins. Co., 12 Ohio
St., 601; Trustees v. Peaslee, 15 N. H., 330; Downing
v. Mt. Washington R. Co., 40 N. H., 231 : Ry. Co. v.
Seeley, 45 Mo., 220 ; Vandall v. Dock Co., 40 Cal., 83.
JOHNS. REP.. 15.
1818
THE PEOPLE v. UTICA INS. Co.
power to make and pursue such by-laws, rules
and regulations as they shall deem proper,
touching the management of the stock, prop-
erty, estate, effects and concerns of the said
Corporation, the election of Directors, the
transfer of stock, the employment of clerks,
officers, servants and agents of this Corpora-
tion, and the investments of the funds of the
Corporation, which the business of insurance
may not actively employ. Provided, however,
•that, such investments, by-laws, rules and
regulations, shall not be repugnant to the Con-
stitution and laws of this State, or of the United
States, nor forbidden by this Act in the re-
strictions and prohibitions on this Corporation
hereinafter contained.
.'{«!*] *XII. And be it further enacted,
That the said Corporation may receive, take
and hold mortgages on any real estate, chattels
or tenements, if the same shall be bon/i Jide
mortgaged or pledged to the said Corporation,
or to secure the payment of any debt which
may become due to the said Corporation, by
any means howsoever. And the suid Corpora-
tion shall have power to proceed on the said
mortgages, or on any other security, for the
recovery of the money thereby secured to
them, either at law or in equity, as any other
body corporate, or any individual, might, is,
or shall be authorized to proceed, were he or
it the one to whom the securities had been
given. And it shall be lawful for the said Cor-
poration to purchase on sales made by virtue
< -itlicr of a judgment at law, or decree or or-
der of a court of equity, or otherwise, and to
take any real estate, in payment, or towards
satisfaction of any debt, or sum of money due
to the said Corporation, and to hold such real
estate, so to be purchased or received, or taken
as last aforesaid, until they can conveniently
sell, and convert the same into money or
other personal property.
XV. And be it further enacted, That at
every regular meeting of the Board of Direct-
ors, a majority of the directors present shall
be competent to decide on all business and con-
cerns relating to this Corporation ; and on the
occasional or accidental absence of the Presi-
dent, the Board shall be permitted to appoint
one or more presidents, pro tempore, to officiate
in his absence, who shall, on such occasion-;,
be competent to perform all the duties which
ihe President may perform by virtue of any
by-law of the Corporation ; and any policy or
engagement, signed by the President, and at-
tested by the Secretary, when done conform-
ably to any by-laws of the Directors, shall be
valid against, and effectually bind, the said
Corporation, without the presence of a Board
of Directors, and as effectually as if under the
seal of the said Corporation. Provided, how-
ever,
XVI. And be it further enacted, That no
policies or engagements whatsoever, which
shall, as aforesaid, be entered into by this
Corporation, with any individual, body cor-
porate or politic, either without the seal of this
Corporation or otherwise, shall be transferable,
;{<12*] negotiable or assignable, *so as to give
such second holder or assignee a claim on i lie
said Corporation, either in his own name or
the name of the person originally concerned,
unless the consent of this Corporation shall
JOHNS. REP.. 15. N. Y. R.. 5.
have been previously obtained and indorsed in
writing on such instrument, or unless such a
privilege form a part of the original agreement,
and be expressly granted by this Corporation.
XVIII. And be it further enacted, That no
part of the funds or capital of this Corpora-
tion, which the business of insurance may not
actively employ, nor any other part or portion
of the funds or capital of this Corporation,
shall at any time be, by the said Corporation,
either directly or indirectly, employed, to deal
or trade in buying or selling any goods, wares
or merchandise ; or in the purchase or sale of
any grain or other produce, foreign or domes-
tic ; or in buying or selling any funded or
other stock created by any Act of the Congress
of the United States, or of any particular state ;
or in buying or selling the stock of any bank ;
or in loaning any money, and issuing any
notes, as hereinbefore prohibited. Provided,
however,
XIX. And be it further enacted, That the
said Corporation shall be permitted to receive
any such stock or funds, to make up or secure
any part of the capital subscribed to this Cor-
poration, or to secure the payment of any debt
due to the Corporation. And the said stock or
funds, after so received, to sell, when the oc-
casions of the Company shall require it."
The record in this case was entitled of
August Term, 1817, and after the pkiciki pro-
ceeded in the following form:
Albany, ««. Be it remembered, that hereto-
fore, to wit : in the Term of May last past, at
tin- Oily Hall of the City of New York, came
oetore the justice of the Supreme Court of
Judicature aforesaid, Martin Van Buren, At-
torney-General of the people of the State of
New York, and for the said people gave their
said court, before the justices thereof, then and
there to understand and be informed, in man-
ner following; that is to say: Martin Van
Buren, Attorney-General of the people of the
State of New York, who sues for the said peo-
ple in this behalf, comes here before the jus-
tices of the people of the State of New York,
of the Supreme Court of ^Judicature [*3O3
of the same people, on the 16th day of May, in
the said term, at the City Hall of the City of
New York, and for the said people gives the
court here to understand and be informed,
that the Utica Insurance Company, for the
space of six months now last past, and more,
have used, and still do use, without any war-
rant, charter or grant, the following liberties,
privileges and franchises, to wit : that of bo-
coming proprietors of a bank or fund for the
purpose of issuing notes, receiving deposits,
making discounts, and transacting other busi-
ness which incorporated banks may and do
transact by virtue of their respective Acts of
Incorporation, and also that of actually issuing
noii->, receiving deposits, making discounts,
and carrying on banking operations and other
moneyed, transactions which are usually per-
formed by incorporated banks, and which they
alone have a right to do, of all which liberties,
privileges and franchises aforesaid, the MM
Ulica insurance Company, during all the time
aforesaid, have usurped, and still do usurp
upon the said people, to their great damage
and prejudice ; whereupon the said attorney
of the .said people prays advice of the said
71 1121
363
SUPKEME COURT, STATE OF NEW YORK.
1818
court in the premises, and due process of law
against the said Utica Insurance Company, in
this behalf to be made to answer to the said
people by what warrant they claim to have,
use and enjoy the liberties, privileges and fran-
chises aforesaid.
And now at this day, that is to say, on the
fourth day of August, in this same term, to
which day the said Utica Insurance Company
had leave to answer the said information, come
the said Utica Insurance Company, by Nathan
Williams, their attorney, and having heard
the said information, complain that they are,
by color thereof, grievously used and disqui-
eted, and this unjustly, because protesting
that the said information, and the matters
therein contained, are. not sufficient in law, to
which information the said Utica Insurance
Company are not bound by the law of the
land to answer, yet for plea in this behalf, the
said Utica Insurance Company say, that by a
certain Act of the Legislature of the people of
this State, passed on the 29th day of March, in
the year of our Lord 1816, they, the said Utica
Insurance Company, were constituted and
364*] declared to be, *from the passing of
the said Act, until the first Tuesday of July,
in the year of our Lord 1836, a body politic
and corporate, in fact and in name, and by
the name of tiie Utica Insurance Company.
And the Utica Insurance Company further
say, that by the force of the said Act of the
said Legislature, and the provisions thereof,
they shall continue to be, and are a body politic
and corporate, in fact and in name, and are
entitled to do all lawful acts, and to enjoy all
the rights, privileges, franchises and immuni-
ties allowed to them, or conferred on them by
the said Act, or by the law .of the land ; by
virtue whereof the said Utica Insurance Com-
pany, for all the time in the said information
in that behalf mentioned, have used, and still
do use the liberties, privileges and franchises
of becoming proprietors of a bank or fund, for
the purpose of issuing notes, receiving depos-
its, making discounts and transacting other
business, which incorporated banks may do
and transact by virtue of their Acts of Incor-
poration, by investing in the said Bank and
business the funds of the said Utica Insurance
Company, which the business of insurance in
the said Act mentioned did not actively em-
ploy ; and the said Utica Insurance Company
have, during all the said time, used, and still
do use. the liberties, privileges and franchises
of actually issuing notes, other than notes
which grant or stipulate to pay annuities upon
any life or lives, and of actually issuing notes,
receiving deposits, making discounts and car-
rying on banking operations and other mon-
eyed transactions, which are usually performed
by incorporated banks. And the said Utica
Insurance Company have claimed, and yet do
claim, to have, use and enjoy all the liberties,
privileges and franchises to them belonging,
by virtue of the aforesaid Act of the said Leg-
islature, as it was, and is. lawful for them to
do ; without this, that the said Utica Insur-
ance Company have carried on any other mon-
eyed transactions which incorporated banks
alone have a right to do ; and also, without
this, that they have invested any of their funds
which the business of insurance mentioned in
1122
the said Act might actively employ, in the said
Bank or fund for the purposes aforesaid, or
any of them, or for any other purposes repug-
nant to the Constitution and laws of this State
or of the United States, or forbidden by the
*said Act; and also, without this, that [*865
the said Utica Insurance Company have issued
or claimed to issue any notes which grant or
stipulate to pay any annuity or annuities upon
any life or lives ; and without this, that the
said Utica Insurance Company have usurped
the said liberties, privileges and franchises
upon the said people of this State, in manner
and form as by the said information is above
supposed ; all which said several matters and
things, they, the said Utica Insurance Compa-
ny, are ready to verify, as the court shall
award ; whereupon they pray judgment, and
that the aforesaid liberties, privileges and fran-
chises, in form aforesaid, claimed by them,
the said Utica Insurance Company, may for
the future be allowed to them, and that they
may be dismissed and discharged by the court
hereof, and from the premises aforesaid.
And the said Martin Van Buren, Attorney-
General of the people of the • State of New
York, who sues for the said people in this be-
half, comes and says, that the said plea and
answer of the said Utica Insurance Company,
by them above pleaded, and the matters there-
in contained, in manner and form, asthes-ame
are above pleaded and set forth, are not suffi-
cient in law to bar the said people from hav-
ing and maintaining their aforesaid action
thereof, against them, the said Utica Insur-
ance Company ; and that he, the said Martin
Van Buren, Attorney-General as aforesaid, is
not bound by the law of the land to answer
the same, which he is ready to verify ; where-
fore, for want of a sufficient plea and answer
in this behalf, he prays judgment, and that
the said Utica Insurance Company, with the
liberties, privileges and franchises, may in no
way intermeddle, but may be altogether ex-
cluded from the same.
And the said Utica Insurance Company say,
that their said plea and answer, by them above
pleaded, and the matters therein contained, in
manner and form as the same are above plead-
ed and set forth, are sufficient in law to bar
and preclude the said Attorney-General from
having and maintaining his aforesaid action
thereof against them, the said Utica Insurance
Company, and that they, the said Utica Insur-
ance Company, are ready to verify and prove
the same, when, where, and in such manner as
the court here shall *direct and award; [*3(5<>
wherefore, inasmuch as the said Attorney-
General has not answered the said plea and an-
swer, nor hitherto in any manner denied the
same, the said Utica Insurance Company pray
judgment, and that the aforesaid liberties,
privileges and franchises, in form aforesaid,
claimed by them, the said Utica Insurance
Company, may, for the future, be allowed to
them, and that they may be dismissed and dis-
charged by the court hereof, and from the
premises aforesaid.
Mr. Van Buren, Attorney-General, in sup-
port of the demurrer, contended: 1. That the
Act of the Legislature, passed the 29th of
March, 1816, by which the defendants were
incorporated, was not intended by the Legisla-
JOHNS. REP., 15.
1818
THE PEOPLE v. UTICA INS. Co.
366
lure to confer on the defendants the right of
banking, nor did it give that right. As to the
rules to be observed in the construction of
statute-,, it was only necessary to refer to a few
authorities. (Bac. Abr., Statute, I., 5.) The
intention of the makers of the Statute is to be
regarded. A thing within the intention of the
makers, is as much within the statute as if it
were within the letter. If any doubt arises on
the words of the enacting part of a statute, the
preamble may be resorted to for and explana-
tion. (Crespignyv. Wittenoom, 4 T. R, 790,
798; Hyatt v. lioUe, 1 Atk., 174.) Now, the
preamble to this Act clearly points out the ob-
jects of the incorporation, and the purposes
for which the Act was passed. It is not possi-
ble to suppose, from the preamble, that it was
intended to confer banking powers.
It will be said, perhaps, that, as the Act
contains 110 special prohibition of banking, it
is to be inferred that the Legislature intended
to permit it. But there are numerous Acts of
Incorporation passed both before and since
the Restraining Act of the llth of April, 1804,
a note of which will be handed to the court,
which contain no prohibition of the kind ; and
yet it was never imagined that any of those
corporations possessed banking powers.
2. That the Act of the Legislature, entitled
"An Act to Restrain Unincorporated Banking
Associations." passed the llth of April, 1804,
and revised in 1813, was intended to prevent
and restrain all companies and associations,
JJfiT*] whether incorporated or not, from
banking, unless expressly authorized so to do
by the Legislature ; and does so restrain them.
(Sess. 27, ch. 117 ; 8 Webst. ed Laws, 615 ; 2
N. R. L., 234, sess. 36, ch. 71, sec. 2.) This
Statute ought to have a liberal construction ; it
is remedial, and it should be so constructed as
to have its intended effect. A statute, though
penal, if made to remedy an existing evil, will
be liberally expounded. (Jfamrnoiut v. Webb,
12 Mod., 282 ; Attorney General v. Sudell, Prec.
in Ch., 216; 6 Bac. Abr., 391, Statute, I., 9.)
During the same session in which the Restrain-
ing Act was passed, the Legislature (April 10,
1804, sess. 27, ch. 110; 3 Webst. Laws, 611),
declared that nothing in the -aid bill (then just
passed lx>th Houses) should be deemed or con-
strued to prevent any person, association or
company, from transacting or- pursuing any
business other than such as companies or banks
incorporated for the express purpose of bank-
ing, usually do or transact. This legislative
declaration was made on the memorial of the
Chamber of Commerce of the City of New
York, expressing their apprehension that the
Act might be so construed as to subject indi-
viduals to inconvenient restrictions in their
usual commercial business and pursuits.
8. That the defendants, when exercising the
privilege of banking, although they act in
their corporate name, do not act within their
corporate powers, and must, therefore, be re-
garded, as respects their banking business, as
an association of individuals unincorporated,
and therefore, within the words of the Restrain-
ing Act.
4. That the defendants, being a body cor-
porate, have no rights except such as are spe-
cially granted to them, or as are necessary to
carry into effect such as are so granted: the
JOHNB. REP., 15.
right of banking not being granted, either ex-
pressly or by implication, they could not have
exercised it, even if no Restraining Act had
ever been passed. A body corporate can act
only in the mode prescribed by the law creat-
ing it. It must act up to the end and design
of its founder. (Btatty v. Marine Ing. Q>., 2
Johns., 109, 114 ; Jack*on\. J/arttoell, 8 Johns..
424; 1 Bl. Com., 422. 424.)
*Me»*r». Ilaruvn&nd T. A. Emmet, con- [*:}<>H
ira. 1. The acts charged against the defendants
are not the exercise of franchises; and therefore,
an information in the nature of a writ of quo
u>arrantowi\l not lie against them. Fraix-lii-i-
or not, is a question of law, and is not admit-
ted by the demurrer. A franchise is a royal
privilege, or branch of the royal prerogative,
subsisting in the hands of the subject, by grant
from the Crown. A writ of quo warranto is
the King's writ of right, and issues where a
franchise is usurped, or forfeited by misuscr.
(2 Bl. Com., 37; Finch's Law, 38, 164, 166 ; 8
Cruise's Dig., 278. tit. 27. sec. 1.) The word
"franchises" is often used, in common par-
lance, in a yery broad sense, for all liberties ;
but its -legal or technical signification is more
confined. A franchise wax, always, in En-
gland, a gem in the royal diadem. It was in-
herent in the Crown from the first institution
of monarchy. But the right of banking was
never a franchise, or branch, of the royal pre-
rogative. The Bank of England was estab-
lished in 1694, pursuant to an Act of Parlia-
ment (5 W. & M., cap. 20), which authorized
their Majesties, William and Mary, to grant a
commission to take subscriptions from indi-
viduals, and to incorporate them. Had the
power of banking been a royal franchise, this
special authority from Parliament would not
have been necessary.
In 1697 (8 & 9 W. & M., ch. 20, sec. 28) it
was enacted that, during the continuance of
the Bank of England, no other bank, or any
other corporation, society, fellowship, com-
pany or constitution, in the nature of a bank,
should be erected or established, &c., by Act
of Parliament. This still left individuals and
ancient corporations free to bank. But in
1708 (7 Anne. ch. 7, sec. 61) it was enacted
that, during the continuance of the Bank of
England, it should not be lawful for any cor-
poration, erected, or to be erected (other than
the said Bank), or for any other persons in part-
nership, exceeding the number of six persons,
to take up money on their bills or notes, &c.
It is clear, then, that if Parliament had not
interfered, all corporations might lawfully
have carried on banking business ; the Act of
7 Anne, restraining them, does not declare it
unlawful, but merely prohibits the exercise of
the power while the Bank of England contin-
ued. It is manifest, therefore, that in England
banking was not considered *as a [*#<M>
royal franchise ; and private banking is now
carried on in that country by associations of
partnership of not more thnn six persons.
If we look to the Acts of our Legislature,
we shall find that they speak the same doc-
trine. Numerous Acts of Incorporation have
been passed since the Restraining Act of April
11, 1804, each of which contains a special
clause to restrain the corporation from bank-
ing. [Here the counsel enumerated more than
mi
369
SUPREME COURT, STATE OP NEW YORK.
1818
fifty Acts passed since 1804, which, he said,
contained a special restraining clause.] It is
remarkable, also, that in the same session in
which the Restraining Act was passed, there
was an Act of Incorporation passed, containing
a special prohibiton against banking. What
stronger evidence can be wanted of the sense
of the Legislature, that the right of banking is
not a franchise, but exists at large in every
citizen, and may be freely exercised unless ex-
pressly restrained by the Legislature ?
The right was open to every individual, and
the defendants, being created a corporation,
have, as its inseparable incidents, a perpetual
succession, a capacity to sue and be sued, a
right to purchase and hold land, to have a
common seal, and to make by-laws, &c. (Kyd
on Corp., 69, 70.) They might, therefore, as
well as any individual, carry on banking busi-
ness, unless expressly prohibited. If, then,
this is not a royal franchise, no information in
the nature of a writ of quo warranto lies ; for
these informations have been substituted in
the place of that ancient prerogative writ. (2
Co. Inst., 496 ; 1 Bulst., 55, 56 ; Rex v. Mars-
den, 3 Burr., 1817, per Wilmot, J.) Not a case
can be' found in which a writ of quo warranto
had been brought, or an information in the
nature of one filed, for exercising the right of
banking. In The King v. Shepherd, 4 T. R.,
381, Lord Kenyonsaid that the old writ of quo
warranto lay only where there was a usurpa-
tion on the rights and prerogatives of the
Crown ; and that an information in the nature
of a quo warranto could be only granted in
such cases. So, in The King v. The Corpora-
tion of Bedford Level, 6 East, 359, Lawrence,
J., says it has been always understood that a
quo warranto only lay for encroachments on
franchises created by the Crown.
3 7O*] *Again ; for the exercise of any
power incidental to a corporation or associa-
tion, a writ of quo warranto does not lie. As
well might it lie to ascertain by what authority
individuals assembled for political purposes.
A person entitled to a manor need not show by
what title he holds a court baron, for that
is incident to a manor. (Rex v. Stanton, Cro.
Jac., 259, 260.)
But it is said that the Restraining Act has
made banking a franchise, and that no person
can now exercise the right without showing a
legislative grant. Suppose, in England, after
the Restraining Act, more than six persons had
associated as bankers, would an information,
in nature of a quo warranto, have been filed
against them ? No ; their acts would have
been illegal and void. How»have the Legisla-
ture assumed this prerogative and franchise ?
How have they taken to themselves what was
before the common right of every citizen ? By
prohibiting all unincorporated banking asso-
ciations. Is everything which is made the
subject of exclusive right or grant a franchise,
and to be tried by a quo warranto ? Ferries,
running of stages and steamboats are made ex-
clusive rights ; yet it has never been supposed
that an information in nature of a quo war-
ranto would lie in case of an invasion of these
rights.
Again ; the Restraining Act is not in the
conjunctive: it declares that "no person un-
authorized by law shall subscribe to, or become
1124
a member of any association, institution or
company, or proprietor of any bank or fund
for the purpose of issuing notes, receiving de-
posits, making discounts, or transacting any
other business which incorporated banks may
or do transact, by virtue of their respective
Acts of Incorporation. By this Act the Legis-
lature assume the rights specified ; they do not
resume a franchise. If the Legislature can
thus assume all rights common to the citizens,
there is no commercial business whatever
which they may not prohibit ; and so the
Chamber of Commerce apprehended. And on
their petition, the sections to the Act (27 sess.,
ch. 110, sees. 8 and 9) were passed in explana-
tion of the Restraining Act. It was, in effect,
an Act to restrain commercial partnerships or
companies ; but the explanatory sections do
virtually repeal the Restraining Act.
*It may be said that banking is qua$i\*3 71
a franchise or branch of prerogative. But
when every individual has a right to bank,
how can it be, in any degree or shape a fran-
chise ? The Act merely restrains associations.
Every citizen or inhabitant may, if he pleases,
be a banker. Can it be possible that the Leg-
islature may assume to itself the rights of
every citizen ? Such is not the law of En-
gland. If it is the law of any country, it is that
of Turkey, where, alone, it can be imagined
that the common rights of man should be doled
out for the purposes of gain. The mind re-
volts at the idea of a Legislature bargaining out
the common rights of the citizen for money.
If the exercise of the right be injurious, pro-
hibit it. What is granted should be given
freely. A contrary doctrine would be attend-
ed with the most pernicious effects.
2. Even if the power of banking be a fran-
chise, we contend that the act of incorporating
the defendants confers on them authority to
exercise that franchise. The meaning of the
Legislature must be eviscerated from the Act
itself. We must not regard the declaration of
individual members, or information out of
doors. The frame and scope of the Act must
be examined : we must read the title, the pre-
amble, its sections and provisions, compare
and weigh them altogether. We must suppose
that the Legislature meant to grant what is ex-
pressly granted, and to prohibit only what
they have expressly prohibited ; and that
everything not prohibited is left free. It is
said that no banking power is expressly given:
we answer that the exercise of such a power is
not prohibited. Nay, we contend that it is
clearly granted by the Act. If we look at the
preamble, after pointing out the objects of the
incorporation, it says they ought to be liber-
ally.encouraged. What is the liberal encour-
agement intended, unless it be the power to
invest their surplus capital in any business not
expressly prohibited ? There are peculiar
features in the Act which show that the Legis-
lature intended to specify all the restrictions
they thought proper to impose on the defend-
ants. [The counsel here enumerated the re-
strictions and prohibitions contained in the
several sections of the Act.] After those spe-
cific restraints, the defendants *are left [*372
to employ their surplus capital in any manner
which they may deem beneficial. It is not
pretended that the defendants have abused
JOHNS. REP., 15.
1818
THE PEOPLE v. UTICA Ins. Co.
373
their corporate powers, or have diverted funds
which ought to be employed in insurance*
to other objects. When the Legislature spec-
ified, with so much caution and precision,
what the defendants should not do, why did
they not go one step farther, and say that the
defendants should not use their capital in any
banking operations whatever ? From their
silence and forbearance on this point, is it not
to be fairly inferred that they intended to
leave the defendants free to bank, if they
thought tit ; especially when we see in another
Act of Incorporation, passed the same session,
an express prohibition of banking is inserted?
It is true we must so construe a statute as to
find out the intention of the Legislature. But
how is (hat intention to be discovered t Not
by asking the individual members of the Leg-
islature what they intended, but by reading
the words of the Act, and comparing all its
parts together.
8. There is nothing in the Act of Incorpora-
tion, nor in any other Act or law, that re-
strains the defendants from carrying on bank
ing business. There is clearly nothing in the
Constitution or laws of the State that prohib-
its banking, unless it be found in the Act
passed the llth of April. 1804, called the Re-
straining Act. Individuals had devised a
mode of associating and issuing notes, without
incurring an individual responsibility ; and
that Act was passed to restrain unincorporated
banking associations. The defendants, being
a regular corporation, are not. then, within the
title of the Restraining Act. In Bristol v.
Barker. 14 Johns., 205, this court decided that
the Restraining Act applied only to associa-
tions or companies formed for banking pur-
poses, not to an individual who carried on
banking operations on his own credit and ac-
count.
Again ; the Restraining Act inflicts penalties
on persons who become members of such
associations — clearly showing that the Legis-
lature meant only to prohibit on principles of
Eublic policy, %nd to inflict a punishment ;
ut how can the members of a regular corpo-
373*] ration, like that of the defendants, *be
subjected to such penalties ? If this general
Restraining Act was to have this extended ap-
plication, why did the Legislature, in almost
every subsequent Act of Incorporation, insert
special clauses to prohibit banking ? If more
was intended, why not declare at once that no
person should make or discount a promissory
note without a grant from the Legislature, or
a license from the Governor ? Every bank
and moneyed institution in the State discounts
notes. But the real mischief contemplated
by the Restraining Act, was those associations
formed for the purpose of issuing and dis-
counting notes, without any individual respon-
sibility. No corporations were intended to be
restrained ; but merely unincorporated asso-
ciations. The Restraining Act, then, does not
apply to the Utica Insurance Company.
But it is said, that being incorporated for a
specific purpose, the defendants can do noth-
ing but the things specified, or such as are in-
dispensably necessary for those objects ; and
that they derive all their power from the Act
or charter of incorporation, as the mere
creatures of the Legislature. But every cor-
JOHNS. REP., 15.
poration has a right to do every act incident to
a corporate body, which is not expressly pro-
hibited. So far as concerns the disposition of
its property, a corporation has every right and
capacity of an individual person, except so far
as it may be expressly limited or restrained.
If the Act had said that the defendants should
be a body corporate, &c., by the name of, &c.,
without anything further, the powers and ca-
pacities for which we contend follow, as in-
separable incidents. (Kyd. 69.) A special
Act of Incorporation is not so much a grant of
power as a restraint. Every specification of
the rights and powers of the corporation is so
far a restraint on the general powers it pos-
MMen by virtue of its corporate capacity.
Child v. The Hudson's Bay Co., 2 P. Wms.,
207, 209, though a decision against the de-
fendants, contains the principle for which we
contend. Lord Ch. Macclesfield says: "A cor-
poration has an implied power to make by-
laws ; but where the charter gives the Com-
pany a power to make by-laws, they can only
make them in such cases as they are enabled
to do by the charter ; for such power, given
by the charter, implies a negative that they
cannot make any other by-laws ; a fortiori,
they cannot make *by-laws in relation [*374
to projects and insurances, which, by Act of
Parliament, are declared to be illegal." It-
follows, from this reasoning, that if they had
no power to make by-laws expressly given,
they might have made by-laws in regard to
insurances, or any other object not illegal. A
corporation, then, except as to the necessity of
using its common seal, may do everything, in
regard to its property, which an individual
could do ; it may buy, sell, loan, pledge. &c.
If. not, what is the use or meaning of the
various prohibitions inserted in the Act by
which the defendants are incorporated ? They
are incorporated not merely for the purpose of
insurance, but for other objects. They may
lend money, and may make such by-laws,
rules and regulations as they shall deem proper,
touching the management of the stock, prop-
erty, &<x, and the investment of the funds of
the Corporation, which the business of insur-
ance may not actively employ. (Sees. 5 & 9.)
In various other Acts of Incorporation, the
power of making by-laws, &c., is expressly
limited to the single object of the charter.
(Act, sess. 25, ch. 40, sec. 7, Marine Ins. Co. ;
ch. 67, Washington Mutual Ins. Co.; sec. 7,
sess. 28, ch. 72, Commercial Ins. Co. ) They are
incorporated, not for the sole object of making
insurances, but for all other purposes, not un-
lawful, or expressly prohibited. They cannot
loan money on bottomry or rexpondentia, nor
make insurance on lives, nor grant annuities.
(Sec. 2.) They can employ no part of their
funds, not active!}' used in insurance, in trade,
or in buying or selling goods, wares or mer-
chandises, or in the purchase or sale of grain
or other produce, &c., or in buying or selling
stocks, or in loaning money on mortgage.
(Sec. 18.) Yet they may loan money, and
must have some security tor it ; and this must
be by lending it on bills and notes or discount-
ing bills, &c. In what other way can they in-
vest or employ their surplus capital ? Again ;
the 16th section enacts that no policies or en-
gagements whatever, &o., shall be transferable,
1125
374
SUPREME COURT, STATE OF NEW YORK.
1818
negotiable or assignable, so as, &c. , unless the
consent of the Corporation shall have been
previously obtained and indorsed in writing
on such instrument, or unless such a privilege
form a part of the original agreement, <&c.
And in the preceding section it is declared
375*] that any policy or engagement *signed
by the President, and attested by the Secretary,
when done conformably to the by-laws, &c.,
shall be valid against, and effectually bind the
Corporation, without the presence of the
Board of Directors, and as effectually as if
under the seal of the Corporation. Are not
the defendants, then, empowered to make
promissory notes signed by their President
and attested by their Secretary, which shall be
valid and binding ? If so, the defendants
have done 'nothing unlawful. And if they
had, this information is not the proper mode
of calling them to an account.
Mr. Van, Buren in reply. 1. When a party
objects to the jurisdiction of a court, he must
point out some other jurisdiction in which the
cause may be tried. When this case was be-
fore the Court of Chancery, on an application
for an injunction (2 Johns. Ch., 371), the
counsel for the defendants objected to the
jurisdiction of that court, on the ground that
there was an adequate remedy at law, to wit :
by an information in the nature of a quo war-
ranto in this court. It is matter of surprise,
therefore, that the same counsel should now
object, in this place, that an information in
the nature of a quo warranto is not the proper
remedy, without condescending to point out
any other possible remedy whatever. The
general demurrer admits that the power exer-
cised by the defendants is a franchise ; and it
follows that this is the proper remedy. But is
it not a franchise ? The Chancellor had no
doubt on the question. He says that "the
right of banking was, formerly, a common
law right belonging to individuals, and to be
exercised at .their pleasure. But the Legisla-
ture thought proper, by the Restraining Act
of 1804, which has since been re-enacted, to
take away that right from all persons not
specially authorized by law. Banking has
now become a franchise derived from the
grant of the Legislature, and subsisting in
those only who can produce the grant ; if ex-
ercised by other persons, it is the usurpation
of a privilege for which a competent remedy
can be had by the public prosecutor in the
Supreme Court." This ought, perhaps, to be
a sufficient authority on this question. But to
pursue it further : A franchise is a liberty or
376*] privilege. There is *a distinction
between royal and common franchises ; be-
tween those of the sovereign, and those of the
people, as the right of trial by jury. When
the Colony became a sovereign and indepen-
dent State, the people succeeded to all the
rights and privileges of English subjects, and
more : they succeeded to all the rights and
privileges of the Crown or sovereign. The
Legislature have, accordingly, from time to
to time, granted various exclusive liberties and
privileges, or franchises, to citizens. By the
Restraining Act of the llth 1804, the Legisla-
ture did take to itself the right or liberty of
banking. What was before common to all,
ceased to be so, and became a franchise or
1126
privilege in the government, not to be exer-
cised by citizens, unless by grant. Whether
this was a franchise in England or not, it is
made a franchise here ; and the Legislature
were competent to make it so. It is true that
private individuals may bank ; but the de-
fendants are an association carrying on bank-
ing business, in violation of the Act of the
llth of April, 1804, passed expressly to pre-
vent any unauthorized or unincorporated as-
sociation from banking. Being a privilege,
then, which the defendants could not lawfully
exercise without a grant from the Legislature,
it comes within the very definition which has
been given of a franchise. We could not
proceed by indictment, for the Act gives a
penalty, and not to the people, but to the in-
former. If this remedy does not lie, there is
no remedy, civil or criminal. It is, at least, a
liberty, in the nature of a franchise ; and this
is the only and proper remedy.
2. What are the actual rights of these de-
fendants ? What privileges did the Legisla-
ture intend to confer oil them ? The inten-
tion of the Legislature is the great object of
inquiry. It is impossible to 'define all the con-
siderations which the court may take into
view, to find out that intention ; the title, pre-
amble and provisions of the Act itself.; the
mischief existing ; the remedy applied ; the
temper and circumstances of the times.
Mentioning that the objects of the defend-
ants were deserving of liberal encouragement
is, by no means, sufficient to afford the infer-
ence that the Legislature intended to confer
banking powers. If that privilege was in-
tended to be given, *why not say so [*377
in express terms ? Why should it be left to be
made out by implication and inference ? Great
privileges are, in fact, conferred on the de-
fendants, to enable them to carry into effect
the objects of their incorporation, or in-
surances. The form of the Act, compared
with that of all the Acts in -which banking
powers are conferred, is sufficient to satisfy
any reasonable mind, that the Legislature
never intended to give these defendants power
to bank. In all those Acts in which the
power is given, it is done in clear and express
terms, reciting the petition for the privilege of
banking, and granting it, eo nomine. But it is
said that the real intention of the Legislature
is of no importance if the specific powers
which they have given amount to a privilege
to bank. The words "any policies or engage-
ments," in the 15th section, are relied upon ;
but they do not imply a power to issue and
discount notes. The 16th section declares
that no policy or engagement shall be trans-
ferable, negotiable or assignable, without the
consent of the Corporation, &c But this is
not the language in which the Legislature
uniformly express themselves when they in-
tend to confer a power to bank, or to issue
bank bills or notes. When they mean to
speak of banks, they use the words "issuing
notes, receiving deposits, making discounts."
&c., which constitute the proper business of
banking. The 9th section authorizes the de-
fendants to invest the funds of the Corpora-
tion, not actively employed in the business of
insurance. This does not give the power to
discount bills or notes. They may invest
JOHNS. REP., 15.
1818
THE PEOPLE v. UTICA Ins. Co.
877
their surplus funds in stocks, but they cannot
buy aud sell stocks ; they cannot trade nor
traffic. So, they may take mortgages or
pledges for the security of any debts due
the Corporation.
This Act could never have passed the Coun-
cil of Revision if it had been capable of a con-
struction that would give to the defendants the
power of banking.
Again : we say the defendants are clearly
within the Restraining Act. It is true the
word ' 'corporation" is not used in that Act.
It speaks only of any person or persons. But
it is manifest, especially when it is recollected
what was the situation of things at the time,
and what was the mischief intended to be pre-
vented, that it was meant to restrain all
378*] 'associations, except the regularly in-
corporated bunks, from issuing bank notes.
It could not have been the design of the Leg-
islature to leave every petty corporation in the
State free to issue bank paper, at its pleasure.
They meant to regulate and restrain banking,
and to take into their own hands what was be-
fore common and at large. The Explanatory
Act, passed on the petition of the Chamber of
Commerce, shows the intention of the Re-
straining Act. No person, association or com-
pany arc prevented from transacting or pur-
suing any business, other than such as com-
panies of banks expressly incorporated for the
purpose of banking, actually do or transact.
Again ; when the defendants undertook to
carry on banking business, they did not act as
a corporation, for they had no corporate ca-
pacity for that purpose. They are a corpora-
tion, only while they act within their corporate
powers. Would any turnpike or manufact-
uring corporation be allowed to set up a
steamboat, under the pretense that they were
not a person or persons within the words of
the Act made to protect the proprietors of
steamboats ? A corporation is a political per-
son invested with various capacities. (Kyd on
Corp., Ib, 15, 70.)
THOMPSON, Ch. J., delivered the opinion of
the court :
The information filed, in this case, charges
the defendants with engaging in banking
operations, without any authority under the
Act incorporating them, and in violation of the
prohibition in the Act to restrain unincorpo-
rated banking associations. Upon the argu-
ment, two questions were raised and discussed ;
one, involving the general inquiry into the
right of the defendants to carry on banking
business ; and the other, touching the remedy
that has been pursued, if no such right exists.
I think it unnecessary to enter at large into an
examination of the latter question. Upon
this point there is no difference of opinion on
the Bench, and I shall content mvself with
leaving it to Mr. Justice Spencer, while deliv-
ering his opinion on this branch of the case.
I must be permitted, however, barely to re-
mark, that this is rather an ungracious objec-
tion made here, considering the discussion that
this case has undergone in the Court of Chan
379*] eery, *where it was dismissed for
want of jurisdiction in that court to restrain
the defendants, because there was a complete
-and adequate remedy at law, by an informu-
.TOHNB. REP., 15.
tion in the nature of a quo wa-rranto, and that,
too, conceded by the defendants' counsel, as
appears from the opinion pronounced in the
Court of Chancery. (2 Johns. Ch.. 376.) I
do not mean, however, to conclude the party
by that admission. The objection is properly
and rightfully made here, and if well founded,
we are bound to yield to it. But that it is not
well founded is, 1 think, very clear ; and the
Chancellor considered it a question not admit-
ting of any doubt
With respect to the other branch of the
case, as there is some difference of opinion on
the Bench, it becomes proper and necessary
that I should examine it a little more at large.
It may safely lie admitted that formerly the
right of banking was a common law right be-
longing to individuals, and to be exercised at
their pleasure. It cannot, however, admit of
a doubt that the Legislature had authority to
regulate, modify or restrain this right. This
they have done by the Restraining Act of 1804
(sess. 27, di. 117), and which has since been
re-enacted and continued in full force. (2 N.
R. I... 234.) The construction which has been
given by this court to the Act is, that it ex-
tends only to associations or companies formed
for banking purposes, and not to an individ-
ual who carries on banking operations alone,
and on his own credit and account. (14
Johns., 205.) The right of banking, there-
fore, by any company or association, has,
since the Restraining Act, become a franchise
or privilege, derived from the grant of the
Legislature, and subsisting only in such com-
panies or associations as can show such grant.
The defendants have, accordingly, set up, as
their authority, or charter, for the exercise of
this privilege, an Act passed 29th of April,
1816, entitled "An Act to Incorporate the
Utica Insurance Company." The real inquiry
is, whether this Act contains any such grant of
banking privileges.
It must certainly strike every person, on
reading this Act, as a little extraordinary,
that if banking privileges were intended to be
granted, that the usual phraseology of such
charters was not adopted. It certainly could
not have *arisen from the Legislature *[*38O
being unaccustomed to make such grants.
The numerous charters contained in our stat-
ute book precludes any such explanation. We
do not find the word "bank," or any expres-
sion that would naturally suggest to the mind
any such object, used throughout the whole
Act. None of the usual, and what may be
considered the appropriate and technical lan-
guage of such charters, is adopted. If any
such power is contained in this Act, it is cer-
tainly not embraced in the general scope and
avowed object of the grant, but must be col-
lected from separate and detached parts of the
Act ; and it requires the hand of a skillful
workman so to put them together as to frame
anything like the plausible appearance of a
banking statute. If this was one of the hid-
den objects in procuring the incorporation of
an insurance company, it is not going too far
to say the Legislature must have been deceived
and imposed upon ; otherwise no possible rea-
son can be aasigned why such privilege should
be so concealed and obscurely granted. I do
not, however, in construing the grant, mean to
1137
s«o
SUPREME- COURT, STATE OF NEW YORK.
1818
travel out of the Act itself. But when a right
is claimed under it, so manifestly repugnant
to the general scope and object of the grant,
we ought to keep this in view, when we are
looking for the intention of the Legislature.
And if all parts of the Act, and all the terms
made use of, can be made to apply to the
avowed objects of the incorporation, the
sound rules of construction will so limit and
apply them. That in construing a statute, the
intention of the Legislature is a fit and proper
subject of inquiry, is too well settled to admit
of dispute. That intention, however, is to be
collected from the Act itself, and other Acts,
in pan matei-ia. It may not, however, be
amiss to state, and keep in view, some of the
established and well-settled rules on this sub-
ject.
Such construction ought to be put upon a
statute as may best answer the intention which
the makers had in view. And this intention
is sometimes to be collected from the cause or
necessity of making the statute, and some-
times from other circumstances ; and whenever
such intention can be discovered, it ought to
be followed with reason and discretion, in the
construction of the statute, although such
381*] Construction seem contrary to the let-
ter of the statute. Where any words are ob-
scure or doubtful, the intention of the Legis-
lature is to be resorted to, in order to find the
meaning of the words. A thing which is
within the intention of the makers of a statute
is as much within the statute as if it were
within the letter; and a thing which is within
the letter of the statute, is not within the
statute, unless it be within the intention of
the makers. And such construction ought
to be put upon it as does not suffer it to be
eluded. (Bac. Abr., Stat., I., 5, 10, and au-
thorities there cited.) The two latter rules are
deserving of particular notice in the consider-
ation of the case before us. When we are en-
deavoring to find out the intention of the
Legislature, in the Act incorporating the
Utica Insurance Company, we must keep in
view the Restraning Act, which makes it un-
lawful for them to carry on banking business,
unless authorized by their charter so tp do. It
was contended, however, upon the argument,
that the Restraining Act has no application to
this Company. If that be so, I do not know
but that their charter contains all the power
necessary to carry on banking business. But
I am unable to discovery any possible grounds
on which they can claim an exemption from
the prohibitions contained in that Act. It de-
clares that no person, unauthorized by law,
shall subscribe to, or become a member of any
association, institution or company, or pro-
prietor of any bank or fund, for the purpose
of issuing notes, receiving deposits, making
discounts, or transacting any other business,
which incorporated banks may or do transact,
by virtue of their respective Acts of Incorpo-
ration. If the Act incorporating the Utica In-
surance Company gives them the right, of
banking, then, to be sure, they are not within
the prohibition of the Restraining Act, for
they are not unauthorized by law. But if
their insurance charter does not give them
banking powers, so far as they travel out of
their grant, they act as a company of private
1128
persons, and become a mere association, doing
business without any express authority by law.
But although the Restraining Act does not, in
terms, include incorporated companies, by ex-
pressly declaring that no corporation, unau-
thorized by law, shall become a member of or
connected with any banking company, &c.,
yet the term *"person," there used, [*382
will embrace incorporated companies in the
prohibition. It was decided by this court, in
the case of The Clinton Woolen and Cotton
Manufacturing Co. v. Morse & Sennet (October
Term, 1817), that under the Act for the As-
sessment and Collection of Taxes, corporations
are liable to be taxed for property owned by
them; yet the Act speaks only of persons lia-
ble to be assessed, and the term "corporation"'
is not used at all. So, also, in England, a cor-
poration seised of land in fee, for their own
ptoflt, are considered inhabitants or occupiers,
within the meaning of the Statute 42 Eliz., ch.
2, and liable, in their corporate capacity, to be
rated for the poor tax. (Cowp., 73.) And
Lord Coke, in his exposition of the Statute 22
Hen. VIII., ch. 5, for the repair of bridges,
commenting on the word "inhabitants," with
respect to what persons are included under
that description, says every corporation and
body politic, having lands, &c., are inhabit-
ants, within the purview of that Statute. (8
Inst., 703.) If corporations can, under the
term "inhabitants" or "persons," be sub-
jected to the same burdens to which in-
dividuals are subject in the same character,
they may, also, very properly, under the
same term, be included within the pro-
hibitions in the Restraining Act. And
here one of the rules of construction I have
alluded to applies with peculiar force; that
such construction ought to be put upon a stat-
ute as does not suffer it to be eluded. Various
prohibitory statutes might be referred to,
where corporations must necessarily be in-
cluded under the term "person." I shall only
refer to one. The Act for the Encouragement
of Steamboats (sess. 31, ch. 225) declares, that
no person or persons, without the license of
those who are entitled to the exclusive right,
&c. , shall set in motion, or navigate, upon the
waters of this State, any boat moved by steam
or fire. Would the construction be endured,
that this prohibition extended only to individ-
uals and not to corporations? If so, the Act
is but a flimsy protection to those claiming the
exclusive right. But there is no color for such
a construction. Keeping in view, then, the
Restraining Act, and applying the rules of con-
struction I have mentioned, I am persuaded
that we look in vain for banking powers in
the Act incorporating the Utica Insurance
Company.
*It becomes my duty, however, to [*383
notice a little more particularly, the several
parts of the Act which have been relied upon
as conferring such powers. The preamble is
said to contain some such intimation, because
it declares that this Company ought to be lib-
erally encouraged. This is certainly a pretty
forced extension of that expression, and not
warranted by anything contained in the recital,
which states that incorporating an insurance
company which had been formed in Utica,
would tend to mitigate the calamities of fire,
JOHNS. REP., 15.
1818
THK PEOPLE v. UTICA Ins. Co.
383
give security to manufacturers, and confidence
to those who adventure their property on our
vast navigable waters; that those are laudable
objects, and that a company promoting them
ought to be liberally encouraged. But it is
far-fetched, indeed, to suppose that the right
of carrying on banking operations was in-
tended or intimated by this liberal encourage-
ment. The 3d section, which professes to enu-
merate and define the powers of the Com-
pany, does not contain an intimation that the
right of banking is among such powers; and
it cannot grow out of the general clause which
authorizes them to transact all the business
generally performed by insurance companies,
excepting certain specified kinds of business
therein particularly mentioned. It was, how-
ever, contended on the argument, that the
right of carrying on banking operations was
necessarily incident to the Corporation, becaftse
not expressly prohibited, if they had surplus
funds which they could spare for that pur-
pose. But I cannot assent to this rule of con-
struing a charter of incorporation for a spe-
cific object. Such an incorporated company
have no rights except such as are specially
granted, and those that are necessary to carry
into effect the powers so granted. Many
powers and capacities are tacitly annexed to a
corporation duly created; but they are such
only as are necessary to carry into effect the
purposes for which it was established. The
specification of certain powers operates as a
restraint to such objects only, and is an im-
plied prohibition of the exercise of other
and distinct powers. A contrary doctrine
be productive of mischievous consequences,
would especially with us, where charter priv-
ileges have been been so alarmingly multi-
plied.
But it is said that the 9th section of the Act
384*] contains *a direct grant of banking
powers, not, indeed, eo nomine, but by neces-
sary implication, because it gives to the Direct-
ors power to make such by-laws, rules and
regulations as they shall deem proper, touch-
ing the management of the stock, property,
estate, effects and concerns of the Corporation.
&c., and the investment of the funds of the
Corporation, which the business of insurance
may not actively employ. Admitting that
here is a power granted to invest their surplus
funds in banking operations, were it not for
the Restraining Act, yet, when we see that
such a use of their surplus funds would be
directly in the face of that Act, we ought not
to give such a construction to these words, un-
less no other sense or meaning can be attached
to them, and their funds would be obliged to
lie dead and unemployed. Besides, the pro-
viso to this clause, which seems to have been
overlooked, may very fairly admit of a con-
struction, amounting almost to an express pro-
hibition, to employ such funds in banking
business. It declares that such investment
shall not be repugnant to the laws of this State,
nor forbidden by that Act in the restrictions
and prohibitions on this Corporation, therein-
after mentioned. But an investment or em-
Cloyment of these surplus funds in banking
usincHH, if not authorized by law, would be
against the Restraining Act, and so repugnant
to a law of this State, and therefore, coming
.I«>IIV>. REP., 15.
directly within the prohibition contained
within the proviso. But these surplus funds
may be invested in many ways, besides in
banking business, consistently with the pro-
visions of this Act, and not prohibited by any
other law; and it is rather a forced use of the
term "invest," to apply it to an active capital
employed in banking. It is usually applied
to a more inactive and permanent disposition
of funds. And although it might extend to
banking, yet it ought not to receive that in-
terpretation here, when another sense, more
obvious and consistent with the general object
of the incorporation, may be given to it. One
of the rules of construction alluded to may
properly be applied here: that although a
thing be within the letter of the statute, it i-
not within the statute, unless it be within the
intention of the makers. The surplus funds
may, no doubt, be loaned at interest. The 2d
section of the Act prohibits the loaning for
•certain specified purposes; but the 1^*385
loaning for any other purpose, and in any
other way not prohibited by law, is authorized
and included in the general power to invest
the surplus capital; and under the 12th sec-
tion, they have a right to take and hold mort-
gages to secure such loans; for this section ex-
pressly declares they shall have the right so to
do, to secure the payment of any debt which
may become due to the Corporation, by any
means howsoever. A bond or note given to
the Corporation, on a loan of money, creates
a debt due to them, and the payment may be
secured by mortgage, by the express authority
here conferred. There is, then, we see, granted
the right to invest the surplus funds in a man-
ner much more consistent with the ordinary
understanding of the term "investment." than
to employ them in banking business. It would,
therefore, be against every just rule of con-
struction, to give to this term the latter inter-
pretation.
It is under the 15th and 16th sections that
the right to make promissory negotiable notes
is claimed ; and admitting such authority to
be there given, it does not follow that banking
powers are also granted. Any company or
association may enter into an arrangement to
transact their business in a particular manner,
and agree to be bound by any engagement
made and signed bv certain designated agents.
This would be binding on the company. It is
not however, the mere power of making such
notes, or the particular manner in which they
are made, that will confer banking powers,
under the Restraining Act. But it is a very
strained construction of the term "engage-
ment" to suppose it means a bank note. This
is not the usual and ordinary acceptation of
the term. If any such thing had been in-
tended by the Legislature, the more appropri-
ate term would, doubtless, have been em-
ployed. The word "engagement," as used in
the Act, may very fairly be considered as
synonymous with policy. Yet a more enlarged
sense might be given *it, and still limit it to
contracts in and about the business of insur-
ance, and the transactions expressly authorized
by the charter. The 5th section has been sup-
posed to contain, in some degree, words that
help out the construction contended for by the
defendants. By this section, the stockholders
1129
386
SUPREME COURT, STATE OF NEW YORK.
1818
386*] owning two thirds of the stock *may
vote to discontinue the business of the Cor-
poration ; and in such case, the Directors are
required to call in all parts of the funds, or
capital stock of the Corporation, which may
have been loaned, and all debts of any nat-
ure which may be due to the Corporation.
But nothing more is implied, or to be inferred
from this authority or direction, than that the
Corporation may make loans and have debts
due to them. It does not follow that such
loans were made, or such debts created, in the
course of banking operations. They may
have debts owing to them as premiums, and
otherwise ; and it has been shown that they
may also loan money. It would be a gross
violation of the rules' of construction, which I
have noticed, to consider this as necessarily
implying the right of entering at large into
the business of banking.
I have, I believe, noticed all those parts of
the Act on which any reliance has been
placed, to make out the authority claimed
under it by the defendants. And I think I
have shown that there is no power or privilege
conferred by this Act which may not be en-
joyed, nor any one term or expression used
that may not be explained, and receive an ap-
propriate meaning and application, without
assuming that the right of carrying on bank-
ing operations is granted. I am, accordingly,
of opinion that the defendants are unauthor-
ized, by law, to enter info such business, and
that judgment of ouster ought to be rendered
against them.
SPENCER, J. Two questions have been
been brought forward in the argument :
1st. Whether an information in the nature
of quo warranto will lie in this case.
2. Whether the defendants have authority,
under the Act incorporating the Utica Insur-
ance Company, to carry on banking opera-
tions in the manner set forth in their plea.
The Statute (1 N. R. L., 108) gives this writ
against any person who shall usurp, intrude
into, or unlawfully hold and execute, any of-
fice or franchise within this State ; and if
the right set up by the defendants is a fran-
387*] chise, and the Act under *which they
claim to exercise it, does not confer it, then
the defendants are subject to this prosecution.
A franchise is a species of incorporeal her-
editament : it is defined by Finch, 164, to be
a royal privilege, or a branch of the King's
prerogative subsisting in the hands of a sub-
ject ; and he says, that franchises being de-
rived from the Crown, they must arise from
the King's grant, or, in some cases, may be
held by prescription, which presupposes a
grant ; that the kinds are various, and almost
infinite, and they may be vested in natural
persons or in bodies politic.
All the elementary writers agree in adopting
Finch's definition of a franchise, that it is a
royal privilege, or branch of the King's pre-
rogative, subsisting >in the hands of a subject.
An information, in the nature of a writ of
quo warranto, is a substitute for that ancient
writ, which has fallen into disuse ; and the
information which has superseded the old writ,
is defined to be a criminal method of prosecu-
tion, as well to punish the usurper by a fine
1130
for the usurpation of the franchise, as to oust,
him, and seize it for the Crown. It has, for a
long time, been applied to the mere purpose
of trying the civil right, seizing the'franchise,
or ousting the wrongful possessor, for the fine
being nominal only. (2Inst., 281, pi. 12; 3
Burr., 1817 ; 4 T. R., 381 ; 1 Bulst., 55.)
If there are certain immunities and privileges
in which the public have an interest, as con-
tradistinguished from private rights, and
which cannot be exercised without authority
derived from the sovereign power, it would
seem to me that such immunities and privi-
leges must be franchises ; and the Act for
rendering the proceedings upon writs of man-
damns, and informations in the nature of qua
warranto, more speedy and effectual, presup-
poses that there are franchises, other than of-
fices, which may be usurped and intruded
info. If, in England, a privilege in the hands
of a subject, which the King alone can grant,
would be a franchise, with us, a privilege, or
immunity of a public nature, which cannot
legally be exercised without legislative grant,
would be a franchise. The Act commonly
called the Restraining Law (sess. 27, ch. 114),
enacts that no person, unauthorized by law,
*shall subscribe to or become amem-[*388
ber of any association, or proprietor of any
bank or fund, for the purpose of issuing notes,
receiving deposits, making discounts or trans-
acting any other business which incorporated
banks do or may transact, by virtue of their
respective Acts of Incorporation.
Taking it for granted, at present, for the
purpose of considering whether the remedy
adopted is appropriate, that the defendants
have exercised the right of banking, without
authority, and against the provisions of the
Restraining Act, they have usurped a right
which the Legislature have enacted should
only be enjoyed and exercised by authority
derived from them. The right of banking,
since the Restraining Act, is a privilege or
immunity subsisting in the hands of citizens,
by grant of Legislature. The exercise of the
right of banking, then, with us, is the asser-
tion of a grant from the Legislature to exer-
cise that privilege, and consequently, it is the
usurpation of a franchise, unless it can be
shown that the privilege has been granted by
the Legislature. An information, in the na
ture of a writ of quo warranto, need not show
a title in the people to have the particular
franchise exercised, but calls on the intruder
te show by what authority be claims it ; and if
the title set up be incomplete, the people are
entitled to judgment. (2 Kyd on Corp., 399 ;
4 Burr., 2146, 7.)
This position is illustrated by the nature and
form of the information ; the title of the King
is never set forth ; but after stating the fran-
chise usurped, the defendant is called upon to
show his warrant for exercising it.
This consideration answers the argument
urged by the defendant's counsel, that bank-
ing was not a royal franchise in England, and
that it is not a franchise here which the peo-
ple, in their political capacity, can enjoy; for if
their title to enjoy it need not beset out in the
information, it is not necessary that it should
exist in them at all. In the case of Ttie King
v. Nicholson etal., 1 Str., 303, it appeared that
JOHNS. REP., 15
1818
THE PEOPLE v. UTICA INS. Co.
by a private Act of Parliament for enlarging '
and regulating the port of Wbitehaven. sev- 1
eral persons were appointed trustees, and a j
power was given to them to elect others upon
vacancies by death or otherwise. The defend- 1
ants took upon them to act as trustees without
U8J)*] such an election ; and *upon motion
for an information in the nature of a quo tear- \
ranto against them, it was objected, by the
counsel for the defendant*, that the court
never grants these informations but incases!
where there is a usurpation upon some fran-
chise of the Crown ; whereas, in that case, the
King alone could not grant such powers as are
exercised by the trustees, the consequence of ;
which was that this authority was no prio;
franchise of the Crown. To this it was ;
answered, and resolved by the court, that the
rule was laid down too general, for that in- \
formations had been constantly granted when (
any new jurisdiction or public trust was ex- j
«rcised without -authority ; and leave to file,
an information was, accordingly, granted.
This case is a strong authority in favor of this
proceeding.
Many cases might be cited, in which infor-
mations, in the nature of qw> warranty, have
been refused, where the right exercised was
one of a private nature, to the injury only of
some individual. In the present case, the right
claimed by the defendants is in the nature of
a public trust : they claim, as a corporation,
the right of issuing notes, discounting notes
and receiving deposits. The notes they issue,
if their claim be well founded, are not obliga-
tory on the individuals who compose the di-
rection, or are proprietors of the stock of the
Corporation. These notes pass currently, on
the ground that the Corporation have -author-
ity to issue them, and that they are obligatory
-on all their funds. The right claimed is one,
therefore, of a public nature, and, as I con-
ceive, deeply interesting to the community ;
And if the defendants cannot exercise these
rights without a grant from the Legislature ;
if they do exercise them as though they had a
grant, they are, in my judgment, usurping an
authority and privilege of a public kind ; and
we perceive that it it is not necessary that the
right assumed should be a prior franchise of
the Crown, or of the people of the State.
Had the defendants clainted and exercised
the right of banking as private individuals, I
agree that an information would not lie against
them : they would have been subject only to
the penalties inflicted by the Act ; but they
•claim the privilege as a corporation, and un-
der a grant from the Legislature. If they have
ii$M)*]not that grant, they have exercised *and
usurped a franchise, and the remedy pursued
is well adapted to the case.
This brings me to the second question.
The Utica Insurance Company was incor-
porated on the 29th of March, 1816 ; and it is
contended on the one hand, and strenuously
denied on the other, that the Act gives to the
Corporation the power of banking.
The preamble of the Act has been resorted to,
to show the object of the incorporation and the
intention of the legislature, and both parties
draw conclusions favorable to their positions
from it. The true rule on this subject un-
doubtedly is, that the preamble of an Act can-
JOHNS. REP., 15.
not control the clear and positive words of the
enacting part, but may explain them, if am-
biguous. The preamble in question, it seems
to me, cannot be called in to aid the construc-
tion of the enacting clauses ; for, although it
shows that the object of the incorporation was
to insure against losses by fire, and the navi-
gation on the waters of the interior, and de-
clares these objects to In- laudable, vet it adds,
'• that a company promoting them in the in-
terior of our country, where the profits must
necessarily be small, ought to be liberally en-
couraged." What that encouragement was to
be, whether in matters of insurance, strictly,
or whether in the grant of additional powers
and rights, must be matter of mere conjecture.
; I must, therefore, read the Act as if it were
without a preamble, in reference to the points
! now in question.
The principal attributes of a bank are the
right to issue negotiable notes, discount notes
, and receive deposits. Have the defendants a
right to issue negotiable notes without refer-
ence to their right to insure ?
The 2d section of the Act forbids their issu-
' ing any notes which grant or stipulate to pav
i annuities upon any life or lives. The 15th
section provides that any policy or engage-
ment, signed by the President, and attested by
the Secretary, when done conformably to any
by-laws of the Directors, shall be valid against,
and effectually bind, the said Corporation,
without the presence of a Board of Directors,
and as effectually as if under the seal of the
Corporation. The 16th section enacts that no
policies or engagements whatever, which shall
be entered into by the Corporation with
*any individual, body politic or corpo- [*31> 1
rate, shall be transferable, negotiable or assign-
able, so as to gi v«s such second holder or assignee
a claim on the Corporation, either in his own
name, or in the name of the person originally
concerned, unless the consent of the Corpora-
tion shall have been previously obtained, and
indorsed in writing on such instrument ; or
unless such a privilege form a part of the orig-
inal agreement, and be expressly granted by
the Corporation. The 18th section prohibits
the issuing of any notes, as thereinbefore pro-
hibited.
I cannot bring myself to doubt, for a mo-
ment, that the right of issuing negotiable notes,
except in the prohibited case of notes stipulat-
ing to pay annuities upon lives, is given with
entire latitude, depending on the discretion
and will of the Corporation. The grant of the
power is unlimited and unrestricted. The
prohibition not to issue any notes stipulating
to pay annuities upon any life or lives, taken
in connection with the general grant of power
to issue negotiable engagements without re-
straint, shows that the Legislature intended
that there should be no restraint or prohibit ion
but in the specified case. And upon the settled
principle of construction, an exception to a
power otherwise unlimited, shows that it was
intended to In- limited no further than is ex-
pressed in the exception.
It is contended that the power to issue en-
gagements, contained in the 15th and 16th -<•(••
tion of the Act, must be confined to such as
may become necessary in the principal busi-
ness and objects of the incorporation, that is,
1181
3J1
SUPREME COURT, STATE OP NEW YOKK.
1818
upon subjects of insurance, and where losses
happen, which itis not convenient for the Cor-
poration to pay immediately. This argument
supposes that all the powers conferred by the
Act embrace the business of insurance ; and
that idea is only to be collected from a part of
the preamble, rejecting or overlooking that
part of it which declares that a company pro-
moting the objects before enumerated, where
the profits must necessarily be small, should
be liberally encouraged.
The libeVal encouragement, it would seem to
me, meant some benefits beyond the small
profits arising from the insurance against fire,
and of the navigation on our interior waters. I
have already said that I lay no stress on the
392*] preamble, and *all I contend for is,
that if it be called in to aid the construction
of the Act, it must be taken altogether.
Have the Corporation a right to discount
notes V The discounting of notes is one mode
only of lending money, and that they possess
this power appears to me indisputable. By the
9th section of the Act, the Directors have ex-
press power to call and demand from the stock-
holders the remainder of all sums by them
subscribed, and adequate power is given to en-
force the payment : in the same section the
directors are authorized to make and pursue
such by-laws, rules and regulations, as they
shall deem proper, and among other things,
for the investment of the funds of the Corpo-
ration which the business of insurance may not
actively employ.
I know of no technical, legal definition of
the term "investment," as applied to money.
In common parlance, it means the putting out
of money on interest ; and beyond all doubt
the Legislature meant that the Corporation
might put out, or use and employ such part of
their funds as the business of insurance did
not actively employ ; and the plea put in by
the defendants alleges that their discounting
of notes consists in investing the sums of the
Corporation, which the business of insurance
in the Act mentioned did not actively employ,
and no otherwise. If the mode of investment,
by discounting notes, which is nothing else
than lending money on personal security, is not
prohibited by the Act of Incorporation, then
it appears to me to be authorized under the
general and unqualified power of investing the
funds not actively employed in the business of
insurance.
This idea derives confirmation from the 5th
section of the Act, which, after authorizing
the stockholders owning two thirds of the stock
to discontinue the business of the Corporation,
makes it the duty of the Directors to call in
all parts of the funds or capital stock of the
Corporation which may have been loaned by
the Corporation. The 2d section of the Act
forbids their loaning upon bottomry and re-
spondentift ; and, as I read the 12th section of
the Act, the power conferred on the Corpora-
tion to take and hold mortgages extends only
to the taking them when given to secure the
payment of the shares subscribed, or to secure
payment of money which, in the course of
393*] business, actually becomes *due to the
Corporation. The 18th section of the Act for-
bids the employment of any part of their
funds in buying or selling goods and mer-
1132
chandise, or any funded or other stock, created
by Act of Congress, or of any particular stale; or
in buying and selling the stock of any bank,
or in loaning any money, or issuing any notes,
as thereinbefore prohibited.
It would seem to follow, as a necessary con-
sequence from the general provision, that the
Corporation might invest such of their funds
as the business of insurance might not actively
employ, and the denial of the means of in-
vestment, unless by lending money on per-
sonal security, that such lending is authorized.
But the prohibition in the 18th section to the
loaningany money, as thereinbefore prohibited,
by necessary inference, authorizes the loaning
jn any case not within the prohibition ; and
consequently, the discounting of notes, not
being prohibited before, is authorized.
It has been argued that the proviso to the
9th section of the Act operates to prohibit the
discounting of notes by the Corporation, inas-
much as discounting notes by the defendants
is prohibited by the Restraining Act. The
proviso is, "that such investment, by-laws,
rules and regulations shall not be repugnant
to the Constitution and laws of this State or
of the United States, nor forbidden by this Act
in the restrictions and prohibitions on this
Corporation hereinafter contained." The Re-
straining Act provides that no person unau-
thorized by law shall subscribe to. or become
a member of any association, or proprietor of
any bank or fund for the purpose of issuing
notes, receiving deposits, making discounts, or
transacting any other business, which incor-
porated banks do or may transact, by virtue of
their respective Acts of Incorporation.
The offense prohibited by this Act consists
in subscribing to or becoming a member of
any association, or proprietor with others of
any bank or fund unauthorized by law for
banking purposes. But if the subscribing to
or becoming a member or a co-proprietor of
any fund is authorized by law, then the issu-
ing notes, receiving deposits, and making dis-
counts is no violation of the Act. The Act
guards against two things ; the unauthorized
institution *of a fund or bank by an 1*394
association of individuals, and the making use
of that fund for banking purposes. To sub-
ject a corporation or individuals to the opera-
tion of the Act, and to convict them of an
offense against it, both circumstances must
concur. The fund must be unauthorized, and
it must be for the purposes of banking. The
Statute considers the association by individuals
to create, and actually creating a fund or
bank, the principal offense; the purpose for
which it is done, if it be in contravention of
the Act, completes the offense. How, then,
can it be said that this Corporation have vio-
lated the Restraining Act by investing that
part of their captial which the business of
insurance may not actively employ, when the
Act of Incorporation expressly authorizes a
subscription to the stock of the Corporation,
limits the number of shares to two thousand,
and fixes them at $250 each, and empowers
the Directors to call it in ? If the simple act
of loaning money by a corporation legally
possessed of a fund, by way of investing their
surplus capital, is not an offense against the
Restraining Act (and I say, with entire confi-
JOKNS. REP., 15.
1818
SMITH v. PAOB.
394
dence, that it in not), there is an end of the
question : for there is no other law which it is
pretended has been violated.
The same answer is applicable to the objec-
tion against this Corporation receiving deposits ;
there is no express authority in the Act of In-
corporation to receive deposits, as there is to is-
sue negotiable notes, and to loan money . but the
act of receiving money as a bailee or trustee
for another, is an innocent and harmless act,
forbidden by no law, and injurious to no per-
son.
1 have, then, examined the Act incorporating
the defendants, and the Restraining Act, and
if I have taken a correct view of the powers
conferred by the former, and have given a just
construction to the latter, the defendants stand
unaffected by it.
I have totally disregarded all insinuations
or suggestions that the Legislature, in point of
fact, did not intend to grant banking powers.
I know of no other rule by which to construe
a statute, than 'to examine it by the words it
contains, to give to its expressions a fair and
just interpretation, upon the established rules
of construction. Courts of law cannot consider
JJJ)4>*]*lhe motives which may have influenced
the Legislature, or their intentions, any further
than they are manifested by the Statute itself.
It is true that this Act of Incorporation grants
no express power of banking, «> nomine ; nor
is it necessary, to authorize banking operations,
that any particular form of expression should
be used : it is sufficient if the attributes of
banking are conferred.
In considering this case, my opinion does
not rest on any implied powers which the
Corporation possess, merely as a corporation ;
but is founded on the powers expressly
given, and on such as are necessarily implied
from the language of the Act of Incorporation.
And, in my judgment, the defendants have a
very clear title to enjoy the franchise set forth
in their plea.
PLATT, J., being related to some of the de-
fendants, declined giving any opinion.
Judgment of ouster.
Franchises, what are. Cited in— 4 Cow., 380: 5
Wend., 217; 9 Wend., 383; 21 Wend.. 249; 3 Duer.
U:.; 2 Sweeny. 306; 14 Minn., 328; 91 111., 82; 20 Kas..
447.
Quo warranto, when it lie*. Cited in— 19 Johns..
«; 2 Cow., 702: 23 Wend., 238; 104 Mass., 241.
Quo wiirniiito, nceil not *hnw title in netntle. Cited
in 2i Wend., 564; 56 N. Y., 52»; 60 How. Pr., 467 ; 12
Mich.. 395.
Rule* fur construction of statutes. Cited in— 3
Cow., 96; 17 Wend.. 304 ; 2 Hill, 244 ; 13 N. Y., 81 : 31
N. Y., 290 ; 54 N. Y.. .££.' ; 77 N. Y.. 89 : 3 Lans.. 357 ; 1
Hun,. "iSt; 18 Hun, 248: 5 Barb., 476; 15 Barb.. 471) ; ~'l
Htirb.. 438 ; 24 Barb., 134 ; 25 Itarb.. 201 : 28 Barb..32l ; !«
Bart...iVJ : 4^ llurb.. 642 ; 43 Barb., 200. 2H8, 41H : 45 Barb.,
208. 23); 47 Barb., 116; 49 Barb.. 16: 50 Barb.. 600:
51 Barb.. 634 ; 52 Barh., 146 ; 1 T. & C., 201 ; 3 T. &
C., 163 : 4 How. Pr., 8. 58. 104 : 12 How. Pr., 91 ; 13
How. Pr.. 126. 249, 444; 22 How. Pr., 449; 31 How.
Pr., 371 ; 33 How. Pr., 207 : 39 How. Pr., 405: 44 How.
Pr., 191 : 47 How. Pr., 280; 14 Abb. Pr., 4«7: 8 Abb.
N. S., 285 ; 15 Abb. N. 8., 292 ; 2 Park.. 418 ; 2 Rob., 203 ;
1 Sweeny. 440: I Hilt., 274 ; 1 Daly, 240: 1 Kedf.. 386;
2 Co. R.. 27 : 9 How. (U. S.), 384 : 100 U. 8.. 244, 616 ;
101 U. 8., 626: 7 Bank. Keg.. 208; 3 Bi-w.. 234 ; Abb.
Adm., 139 ; 29 Ind., 109 : 2 Kas.. 235 ; 29 Cal.. 304 ; 74
Pa. St., 47 ; 10 Minn., 118 ; 7 Allen. 430.
" PeriMin " in statute iiu-lnil,* cinnmrnUnn. Cited
ln-1 Cow.. 542; 10 Wend.. 191; « Hill. 38; 7 Hill, 282;
•£i X. V.. :r>4 : 1 Keys, 308; 1 Abb. App. Dec.. 202; 27
Barb.. 239 : 40 Barb., 844 ; 56 Barb., 20, 53: 10 How.
JOHNS UK iv. 15.
Pr.. 404; 17 How. Pr.. 208; 28 How. Pr.. 58; 18 Abb.
Pr., 130.
Corporation* Knitted to powers epccially granted
and thine necessary to carry them into effect. Cited
in— 2 Cow., 675, 690 ; 5 Wend., 552 : 1 Ed w.. 532 ; 9 N.
Y., 71 ; 1« N. Y., 168: 24 N. Y.. 275; 71 N. Y.. 167 ; 79
X. Y.,443: 17 Hun. 181; 27 Hun. 383; 4 Barb., 130; 8
Barb.. 133. 149 ; 24 Barb.. '_'4 ; 29 Barb.. 50. 056 ; 5 How.
IT. 72; 18 How. Pr.. 131: 51 How. Pr.. 6; 1 Hall.
525 ; m Mo.. 129 ; 43 Mo., 375.
Act inctirporatino Utiea Ira. Co., construction of .
Critioiaed-8 Cow., 28.
Questioned and distinguished— 12 Blatchf ., 214 ; 13
Bank. Keg.. 126.
Cited in— 1 Wend., 57 ; 4 Wend.. 654 ; 4 Johns. Ch.,
331.
Also cited in— 15 N. Y.. 209 ; 58 N. Y., 315 : 60 N.
Y., 288 ; 3 Wall., 513 ; 17 Wall., 119 ; 23 Minn., 205.
SMITH t>. PAGE.
•
Sales — Of Land upon which Judgment Exists —
Stay of Proceedings — Co»t*.
P. was seised of two farms, which were bound by
a lodgment to 8. One of the farms P. afterwards
sold to W., And the other to T., who, for part of
the consideration money, gave to P. a bond, con-
ditioned to pay off and discharge the judgment
against P.
T. neglected to pay off the judgment, and pro-
cured K. to advance the money, for the balance due
on it. and take an assignment of his security : and
afterwards the judgment was assigned to the son
of T., who issued an execution thereon, which he
caused to be levied on the farm which W. had pur-
chased of P. On motion of W., a rule was granted
to stay proceedings on the execution, as it respected
the farm of W., until the further order of the
court.
IN 1811 the defendant confessed a jugdment
in favor of the plaintiff, on a bond for $10,-
000, conditioned to pay $4,509, with interest.
The defendant was, at that time, seised of two
farms in the County of Herkimer, on which
the judgment became a lien. In January,
1816, he sold one of the farms to Daniel Tilden
for $9,000, and, for part of the consideration,
took the bond of T. in the penal sum of $6,000,
conditioned to pay off and discharge the balance
then due on the said judgment, being $3,000.
About the same time, Sylvester Wilcox pur-
chased *of the defendant the other [*HJ)<>
farm, for $900, for which he paid, and re-
ceived a deed with full covenants and war-
ranty. Wilcox, being indebted to Richard
Gardenier in the sum of $1,000, gave him a
bond with a warrant of attorney to confess
judgment, and which was entered up in this
court. Gardenier issued an execution on thi-
judgment, by virtue of which the farm pur-
chased by Wilcox of Page was sold, and G.
became the purchaser at the sheriff's sale. D.
Tilden, being pressed to pay the balance on
the judgment in favor of Smith, which was
about $1,200, requested R. S. to obtain the
money, and take an assignment of the judg-
ment. R. S. accordingly procured the money,
and took an assignment of the judgment to
himself, to secure the principal due, with the
interest and costs. Afterwards, the son of
Daniel Tilden paid R. S. the money and took
an assignment of the judgment to himself, and
caused an execution to be issued on the judg-
ment, and levied on the farm sold by the de-
fendant, Page, to Wilcox, and 1>\ him to
Gardenier, and which was advertised for sale
under the execution.
1133
396
SUPREME COURT. STATE OF NEW YORK.
1818
Mr. 8. 8. Lush, in behalf of Gardenier, on
his affidavit, stating the above facts, and that
he verily believed that the son of D. Tilden
held the said judgment so assigned to him, in
trust, for the benefit of his father, now moved
that satisfaction of the said judgment should
be entered of record, or for other relief, &c.
THE COURT refused to order satisfaction to
be entered on the jugdment, but granted the
following rule: " That the execution be stayed,
as far as respects the lands purchased by Wil-
cox of Page, until the further order of the
court ; and that no costs of the motion be
allowed to either party."
Cited in— 16 Barb., 539 ; 33 How. Pr., 475.
397*] *!N THE MATTER OF HARWOOD,
an Imprisoned Debtor.
Prisoner — Under Execution — Discharge on
Affidavit.
A person who has been imprisoned more than
thirty or sixty days, as the case may be, on execution
issued on a judgment recovered before a justice of
the peace, and recorded with the clerk of the county,
under the Act Extending1 the Jurisdiction of Jus-
tices of the Peace (sess. 41, ch. 94), is entitled to his
discharge, on the usual affidavit, as to his imprison-
ment, according to the pro visions of the Act for the
Recovery of Debts to the value of Twenty-five Dol-
lars, passed the 5th of April, 1813, all the provisions
of which Act are applicable to the Act above men-
tioned (sess. 41, ch. 94), except so far as it has other-
wise directed.
Citation— Sess. 41, ch. 94. sec. 12.
rPHE prisoner being brought up on a habeas
-L corpus, Mr. Hosford moved for his dis-
charge under the "Act for the Recovery of
Debts to the Value of Twenty-five Dollars,"
passed April 5, 1813 (sess. 36, ch. 53, sec. 12 ;
1 N. R. L., 387), on the usual affidavit. It ap-
peared that he had been imprisoned for more
than sixty days, on an execution issued on a
judgment recovered against him under the late
Act Extending the Jurisdiction of Justices of
the Peace to Demands over Twenty-five Dol-
lars, and not Exceeding Fifty Dollars, passed
April 10, 1818 (sess. 41, ch. 94), which provides
that a transcript Of the judgment of the justice
of the peace may be filed in the office of the
clerk of the county, and recorded by him, who
is directed to issue execution on such judgment
to the sheriff of the county, &c.
Mr. I. Hamilton, contra, contended that the
judgment against the prisoner having been re-
corded in the office of the clerk of the county,
and an execution issued to the sheriff, the
justice had no further power or authority in
the case, and that the provisions of the Act
of the 5th of April, 1813, were not applicable
to this case.
Per Curiam. The 12th section of the last
Act (sess. 41, ch. 94), declares that the form of
proceedings under the Act, shall be, in all
respects, the same as under the aforesaid "Act
for the Recovery of Debts to the Value of
Twenty-five Dollars;" and all the provisions
of the said Act, and the amendments thereto,
are declared to apply to this Act, except as
therein otherwise directed. This clause gives
effect to the provisions of the Act of April,
1813 ; and we are of opinion, therefore, that the
prisoner is entitled to his discharge.
Prisoner discharged.
Cited in— 5 Wend.. 570.
*THE OVERSEERS OF THE POOR [*398
OF PITTSTOWN
0.
THE OVERSEERS OF THE POOR OF
PLATTSBURGH.
Practice — Is»ue in Law — Issue in Fact.
Where there is an issue in law and an issue in fact,
the issue in law ought to be first determined ; but
the plaintiff has his election which shall be first tried:
and the defendant is not entitled to judgment as in
case of nonsuit for not proceeding to the trial of the
issue in fact, while the issue in law remains unde-
termined.
MOTION for judgment as in case of nonsuit,
for not proceeding to trial, &c. There
was an issue in fact and an issue in law, both
of which were joined in the last January vaca-
tion. The venue was laid in Rensselaer County.
The demurrer, it was stated, went to the whole
merits of the case, and had .not yet been
brought on to argument.
It was contended, on the part of the plaintiff,
that the motion ought not to be granted, nor
ought he to be compelled to stipulate to try the
issue in fact until the issue at law was deter-
mined ; and that the plaintiff had his election
to try that issue first. (2 Tidd's Pr., 684.
Mr. Mitchill for the plaintiff.
Mr. Walworth for the defendant.
Per Curiam. Whatever may have been the
ancient practice on this subject, yet, according
to the later authorities, where there is an issue
at law and an issue in fact, the plaintiff may
elect which he will try first ; and we think it
most proper that the issue in law should be
first determined. The defendant cannot, there-
fore, compel the plaintiff to stipulate to try the
issue in fact before the other issue is disposed
of ; nor is he entitled to judgment of nonsuit,
because the plaintiff did not bring that issue to
trial at the last Rensselaer Circuit. It is as
much in the power of the defendant, as in that
of the plaintiff, under the rules of the court,
to bring the demurrer on to argument at the
earliest term after joinder in demurrer. There
is, therefore, no cause for the defendant to ob-
ject delay on the part of the plaintiff, in not
baving the demurrer argued at the last term.
Motion denied.
*JENKS ET AL. i>. J. PAYNE. [*399
Practice — Change of Residence — Notice
of Trial.
If the defendant, living within forty miles of the
place of trial, changes his residence, permanently,
io a place beyond that distance, before issue is joined
in the cause, he will be entitled to fourteen days' no-
JOHNS. REP., 15.
1818
KENT v. M'DONALD.
399
tioe of trial ; but if he change hia residence after
issue joined, he is entitled only to eight days' notice.
Citations— 2 Tidd Pr.. 5C5 ; 1 East, 688.
MOTION, on the part of the defendant, to
set aside the verdict, and all subsequent
proceedings in the cause. The venue was laid
in the County of (Jortlandt, where the defend-
ant was arrested. He afterwards, and before
the declaration was delivered, removed with
his family to Whitestown. in the County of
Oneida, a distance of more that fifty miles from
his former residence, and where he has since
continued to live. The cause was noticed for
trial at the last June Circuit in Cortlandt
County, at whicli an inquest was taken by de-
fault ; but the notice being for less that four-
teen days, a motion was uow made to set aside
the inquest for irregularity.
Mr. DonneUy for the plaintiffs.
Mr. A. Payne for the defendant.
Per Curiam. The defendant, when he was
arrested, resided within forty miles of the place
of trial ; but before issue was joined in the
cause, he removed from Cortlandt County to
a greater distance, and has since permanently
resided at Whitestowu. It does not appear
that the defendant absconded from his former
place of abode. He was. therefore, entitled to
fourteen days' notice of trial. If, however, he
had removed beyond the distance of forty
miles, after issue joined in the cause, he would
have been entitled only to eight days' notice.
And such is the practice of the<Jourt of K. B.
JOHNS. REP., 15.
in England. (2Tidd'sPr., 595; Spencer v. Hall,
1 East, 688.)
Motion granted.1
•KENT v. M'DONALD. [*4OO
Practice.
Where the plaintiff, after obtaining an interlocu-
tory judgment, neglected to proceed further, for
more than two terms, u rule wasirrantfd, on motion
of the defendant, that the plaintiff execute his writ
of Inquiry in thirty days, or be won pruned.
MR. V WILLIAMS, for the defendant,
moved for judgment as in case of non-
suit. It appeared that an interlocutory judg-
ment had IMTII entered, for want of a plea, in
August, 1817, since which the plaintiff had not
proceeded to have his damages assessed, nor
taken any steps in the cause. The defendant
had been surrendered by his bail, and had been
in custody for more than two terms.
Mr. Marcy, contra, read an affidavit, stating
that the plaintiff resided in the Province of
Maine, and he did not know by whom he could
prove his demand ; that the defendant was
insolvent, and unable to pay even the costs of
suit.
Per Curiam. Take your rule, that the
plaintiff proceed to execute his writ of inquiry
of damages in thirty days, or that he be non
prossed.
Motion granted.
1.— See Lloyd v. Hooper, 7 East, 684: Douglass v.
Ray, 4 T. K., 552.
1186
[END OF AUOUBT TERM, 1818.]
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW YORK
IN
OCTOBER TERM, 1818, IN THE FORTY-THIRD YEAR OF OUR INDEPENDENCE.
GARDNER v. CAMPBELL.
Trespass — Refusal of Officer to Return Goods
Levied upon — Replevin does not Lie.
Replevin will not lie against an officer who, having
levied upon, and taken goods in execution, receives
from the defendant the amount due on the execu-
tion, and then refuses to redeliver the goods.
A person taking the goods of another, under law-
ful authority, does not become a trespasser ab initin,
by refusing to restore them, after his authority to
detain the goods is determined.
A mere nonf easance will not make a man a tres-
passer ab initto.
Citations— 10 Johns., 372 ; 8 ,Co., 146 : 14 Johns., 86.
was an action of replevin, for taking
J- certain goods and chattels of the plaintiff -
The defendant pleaded to the declaration,
which was in the ordinary form, 1. Non cepit.
2. An avowry, setting forth that the defend-
ant, on the 31st of December, 1817, was under
sheriff of the County of Cortlandt, on which
day a fi. fa. directed to the sheriff of Cortlandt
was issued out of this court, against the plaint-
iff, at the suit of Aaron Benedict for $8,132,
debt, and $14.43, damages and costs ; that the
writ was delivered to the defendant to be exe-
cuted, who, thereupon, and before the return
day thereof, levied upon the goods in question,
continued in possession of them until the 12th
of January, 1818, and sold them, on the 10th
of January, to satisfy the execution.
3. An avowry, stating the execution and
levy, and that the defendant continued in pos-
session of the goods until the 12th of January,
1818.
4. A cognizance, as bailiff of the sheriff of
Cortlandt, setting forth the execution, levy and
sale.
4O2*] *The plaintiff pleaded : 1 . To the first
avowry, that before the taking of the goods
and chattels mentioned in the declaration, and
while the ./i. fa. was in the defendant's hands,
to wit : on the 7th of January, 1818, he settled
with the defendant as to thcji. fa., and found
that there was due and owing thereon $734.04,
including sheriff's fees, which the plaintiff
tendered to the defendant, and which the de-
fendant accepted in satisfaction and discharge
of the execution.
NOTE.— Replevin against officer. See Thompson v.
Button, 14 Johns., 84, note.
1186
2. A similar plea to the second avowry.
3. To the first and second avowries, that on
the 7th of January, 1818, one Barney, at the
request of the plaintiff, tendered and paid, to
the defendant the sum of $734.04, being the
amount then due and owing on the execution,
including sheriff's fees, which sum the de-
fendant accepted, and gave a discharge in full
satisfaction of the execution.
4 and 5. To the cognizance, the plaintiff
pleaded a settlement with, and payment to the
defendant, by himself, and by Barney, at his
request, as in his first and third pleas.
To the second plea the defendant replied,
denying a settlement and payment of the
amount due on the execution ; and as to the
first, third, fourth and fifth pleas, there was
a demurrer and joinder. The cause was sub-
mitted to the court without argument.
SPENCER, J., delivered the opinion of the
court :
The first objection to the pleas is, that they
admit the original caption to be lawful, and
that when that is the case, replevin does not
lie.
In the case of Hopkins v. Hopkins, 10 Johns.,
372, this court adopted the well-known and
ancient principle, that when a person acts
under an authority or license given by the^
law, and abuse it, he shall be deemed a tres-'
.passer ab initio; but the action is grounded
on a tortious taking ; and The Six Carpenters'
case, 8 Co., 146, recognize a distinction be-
tween the actual and positive abuse of a thing
taken originally by authority of the law, and
a mere nonfeasance, such as a refusal to de-
liver an article distrained.
The conclusive objection to all the pleas is,
that, confessedly, *the defendant took [*4O3
the plaintiff's goods, under and by virtue of
an execution ; and they are, in the language
of this court, in Tliompson v. Button, 14 Johns.,
86, in the custody of the law, and it would be
repugnant to sound principles to permit them
to be taken out of such custody, when the
officer has found them in the possession of
the defendant in the execution, and taken
them out of his possession.
The pretense set up here is, that the exe-
cution was paid and satisfied. Whether it
was or not, makes no difference in the prin-
JOHNS. REP., 15.
1818
GAGE v. RKEI> KT \i..
408
ciple. If the fact be true, the plaintiff is not
without his redress ; he cannot be allowed to
set up that fact to devest the sheriff's posses-
sion ; the goods were lawfully taken by the
defendant, and replevin is not the appropriate
remedy. If it were allowed, the execution of
the writ of fieri fafia* might, in all cases, be
delayed or eluded.
Judgment for t/ui defendant*.
Cited in-l» Johns., 32; 30 Johns., 4«S»; HCow.,2tS3;
1 Wend., Ill ; 2 Wend., 47K ; Itt Wend.. 351 ; 3 Wend.,
SSI : How. Out.. 43H; 11 Barb., MR*, » How. Pr.. 570.
GAGE r. REED KT AI..
Pructife — Wife .}fu*t be Joined with Hn*band
for Dfbt Contracted Dura Sola — Agreement to
Try on Merita — Certiorari.
If the parties In a justice's court aym- to try the
cause on it<* merits, this does not preclude the de-
fendant, who was sued for a debt contracted by his
wilt- before marriage, from objecting, <>» cerlim <u i.
to the Don-Joinder <>f \>\~ wife, although he did not
insist on the non-joinder in the court below ; but
he did not waive the objection ; and the agreement
applies only to fonn:il ami technical objections. A
husband cannot lie .sued for a debt contracted by
his wife rfiim aota, without her being joined as d«v
dcndant: the cause of action surviving against
her ; and the non-joinder of the wife is a sufficient
ground for arresting or reversing' the judgment.
Citations -7 T. K.. 34* ; Alleyn., 72.
N ERROR, on certiorari to a Justice's court.
1 the event of his death, the cause of action
survives against her. The case of Mitchin»on
v. Ileieton, 7 T. R., 348, is directly in point.
i The suit there was against the husband alone.
I for work and labor done for his wife before
I marriage. The plea was the general i^ue.
and a verdict was found for the plaintiff ; and
on a motion in arrest of judgment, the court
said, that according to the test authorities on
the subject, the action against the husband
alone could not be supported, observing that
the case of Drew v. Thorn, Alleyn, 72, was
directly in point ; and they arrested the judg
ment. Whatever is a good cause for arrest-
ing a judgment, is a good cause, also, for re-
versing it.
Judgment reettrted.
Cited in 13 Wend.. 27H.
*MARTIN
9.
HAWKS, sin-riff of OTOKUO.
1*405
I
The defendant* in error brought an aclio*n,
in the court below, against the plaintiff in
error, for goods sold and delivered, in the
year 1815, to Sally Green, who afterwards be-
came the wife of the defendant below. The
defendant pleaded the general issue. At the
trial, in the court below, the defendant stated
that he was under twenty-one years of age ;
and his father, who was present, assenting to
that fact, the justice appointed the father his
guardian, with the defendant's assent. It was
•greed between the parties that the cause
should proceed to trial on its merits. The
account of the plaintiffs below against Sally
Green, prior.to her marriage with the defena-
jfht below, was admitted by the guardian,
4O4*1 *and it was attempted, without suc-
cess, to substantiate a set-off in her favor. No
motion was made for a nonsuit, nor was any
objection raised on the ground of the non-
joinder of the wife of the defendant below.
nor was any objection taken on account of the
defendant's infancy. Judgment was rendered
in favor of the plaintiffs below.
Per dnrintn. The judgment is erroneous ;
for although the defendant below did not in-
sist on the non-joinder of his wife, he did not
waive that objection. The agreement to try
the cause on its merits was a waiver only of
formal and technical objections, and would
operate no further than to cure defects of that
nature.
The only foundation for the liability of the
defendant* below was his marriage with Sally
Green ; and it is well settled, that the hus-
band alone cannot be sued for a debt con-
tracted by his wife before marriage ; for, in
I Attorney— H<i« Lien on Judgment for Co»t* —
Notice to Defendant ,i,,,l t<> Sheriff to Pay
Judgment to Plaintiff"* Att»rniy — Escape —
Itelea*e to Sheriff by Plaintiff, Don n»t /*//
Action against him by Attorney.
A plaintiff obtained a judgment against a defend-
ant for six cents danmgcs,wit h costs. The plaintiff V
attorney gave notice to the defendant to pay tin
amount of the judgment to him, and not to the
plaint ill . and issued a <•«. *".. and directed the sher-
iff to pay over the money, when collected, to him,
and not to the plaintiff, the attorney being entitled
to the whole amount of the judgment, except six
cents, HS his costs. The defendant was arrested ;
' and the sheriff voluntarily suffered him to escape.
i The attorney brought an action for the escape
' against tin- sheriff in the name of the original
plaintiff ; held that the sheriff could not avail him-
self of a release from the original plaintiff, in bar
of the action, such release l»eing a fraud upon the
i attorney, as it was executed, with notice to all the
; parties of his lien for his costs.
The attorney has a lien on a judgment recovered
! by his client for his costs; and if the defendant,
after notice from the attorney, pav the amount of
the judgment to the plaintiff, without satisfying
the attorney for his costs, such payment is in hi-
! own wrong, and he i.« liable to the attorney for the
amount of lite bill.
Where an assignee recovers a judgment in the
name of his assignor, and takes out a «i. an., giving
the sheriff not i«-i- of his equitable interest, and the
sheriff, having arrested the defendant, suffers him
to escape, tin- assignee may maintain an action
against the sheriff for the escape, in the name of
the assignor, which the sheriff cannot defeat, l>\
i taking a release from the nominal plaintiff.
Citations— Johns. Dig., 40 ; 3 Cai., IBft : Doug., 33» :
4T. K.. 12! ; t; T. !{., :»il ; I H. HI., 122: 3 Atk., 71fl :
'Uohns. Tax.. 411.
THIS was an action of debt for an escape.
The declaration stated that the plaintiff
in this action, in August, 1816, recovered a
judgment, in an action of trespass, asault.
battery and false imprisonment, in this court,
against Jeremiah Robinson, for $77.44; that a
fa. m. was issued thereon, and delivered to
the defendant on the 3d of November, 1816.
who, on the 80th of November, arrested Rob-
inson, and on the same dav voluntarily suf-
fered him to escape. The defendant pleaded MI/
debet, with notice of a release from the plaint,
iff. The release was dated the 27th of No.
JOHNS. REP., 15.
N. Y. R., 5.
72
1187
405
SUPREME COURT, STATE OP NEW YORK.
1818
vember, 1818, and was as follows : " I hereby
discharge the sheriff in the above (the original)
suit, and direct him not to proceed any
further with the ca, sa. against the said Jere-
miah Robinson, in my favor, but to return the
same satisfied, as I have received in full of
the debt, and costs on the same. In witness,
&c." The cause was tried at the Otsego Cir-
cuit, before Mr. Justice Platt.
At the trial, the counsel for the plaintiff
offered to prove that the amount of the judg-
ment against Robinson, with the exception of
six cents, was due to Ambrose L. Jordan, the
plaintiff's attorney in the original suit, as tax-
able costs ; that when the ca. sa. was delivered
to the defendant's deputy, this1 fact was ex-
pressly stated, and the deputy was required to
pay the amount, when collected, to the at-
torney, and not to the plaintiff ; that the
deputy, after the arrest of Robinson, suffered
him to go at large, on his promising to pay
the money in a few days ; and that Robinson
had been required to pay the amount of the
judgment to Jordan, and not to the plaintiff.
The plaintiff's counsel also offered to prove
4O6*] *that the release, which was executed
after the escape had been suffered, was exe-
cuted by fraud and collusion between Robin-
son, the plaintiff, and the sheriff, for the pur-
pose of preventing the attorney from collect-
ing his costs. Upon this statement, the judge
nonsuited the plaintiff. It was now moved to
set aside the nonsuit, and the case was sub-
mitted to the court without argument.
SPENCER, «/., delivered the opinion of the
court :
It is fully settled, by a long series of decis-
ions, that courts of law will take notice of
and protect the rights of assignees, against all
persons having either express or implied
notice of the trust. (Johns. Dig., 40, and the
cases there collected.) It is equally well set-
tled that the assignor of a chose in action can-
not defeat a suit brought in his name by his
assignee, by a release to the defendant, who
has notice of the assignment.
If Jordan stands in the situation of an as-
signee, and if Martin is to be regarded as the
mere trustee to Jordan, for the amount of the
judgment again.st Robinson, then, most assur-
edly, Martin could not, by his release, defraud
his cestui que trust of the money to which he
was entitled.
In the case of Finder v. Morris, 3 Caines,
165, this court recognized the principle, that if
the defendant pay to the plaintiff the debt and
costs, after notice from the attorney of the
plaintiff not to do so, he pays the costs in his
own wrong. We referred to Doug., 238 ; 4
T. R., 123; 6 T. R., 361, as establishing that
position.
Lord Mansfield held, in the case of Welsh v.
Hole, Doug., 238, that an attorney had a lien
on the money recovered by his client, for his
costs ; and that, if the attorney gave notice to
the defendant not to pay till his bill should be
discharged, a payment by the defendant, after
such notice, would be in his own wrong, and
like paying a debt which has been assigned
after notice.
In the case of Read v. Dapper, 6 T. R., 361,
Lord Kenyou said, the principle had been set-
1138
tied long ago, that the party should not run
away with the fruits of the cause, without sat-
isfying the legal demands of his attorney, by
whose industry and expense those fruits were
obtained. If *the money, he says, had [*4O7
been paid over, bo-najide, to the plaintiff be-
fore notice from the attorney, such payment
would have been good ; but when it is made in
violation of the notice, it cannot be good ; and
he sanctions Lord Mansfield's comparison of
the case to that of an assignment of a chose in
action ; and in Griffin v. Eyles, \ H. Bl., 122
the same principle was adopted. In Turwin
v. Gibson, 3 Atk., 719, Lord Hardwicke held
that the attorney, in consideration 'of his
trouble, and the money disbursed for his cli-
ent, has a right to be paid out of the duty de-
creed for the plaintiff, and has a lien upon it ;
and that such was constantly the rule of the
court.
It will be observed that the question now be-
fore the court is not whether the lieu of the at-
torney for his costs is superior to the equity of
a defendant, who has a matter of set-off exist-
ing against the plaintiff : a different rule has.
been adopted by this court in such a case.
If the attorney has a lien on the judgment
for his costs, and if he stands in the same
equity that he would have done had the judg-
ment been assigned to him, then I am at a loss
to discover why he should be defrauded of
that lien, and devested of that equity, when
all the parties to this transaction were informed
of his lien, and forbidden to do any act which
should prejudice it.
/The sheriff, by suffering Robinson to go at
large, was inevitably fixed with the debt. (1
Johns. Cas., 411.) He never could retake the
prisoner. Being thus fixed, and to avoid his
responsibility, he avails himself of what he had
been directed not to do. He takes Martin's
discharge of the judgment, knowing that no
part of it belonged to him, except six cents,
and he shelters himself under the release,
which Robinson also obtained fraudulently ;
for the case states that he had been notified not
to pay Martin. Martin, too, was guilty of a
fraud, in discharging the execution ; for he
well knew that he was entitled to no part of it,
except the nominal amount of six cents.
Now, it seems to me, that where a discharge
has been thus obtained, by fraud in all the
parties to it, it cannot be operative, as respects
any of the parties ; and that we should not be
*going further than we have already [*4O8
gone in several cases, in treating the discharge
as fraudulent and void.
It may be objected that Jordan, the attorney,
is not to be regarded as having a lien on the
action for the escape, inasmuch as that is a
tort not assignable. His claim to a 'right to
prosecute this action grows out of his lien and
equity in the original action ; and therefore, it
is no answer to this action to say that it cannot
be assigned. See to what a length that ob-
jection will go ; the assignee of a bond, having
given notice to the obligee not to pay it, sues
on it and obtains judgment. He takes out a
ca. sa., and when he gives it to the sheriff,
notifies him that the debt is his. and to pay it
to him only. The sheriff arrests the defend-
ant and permits him to escape ; and then, to
avoid his liability, takes a release from the
JOHNS. REP., 15.
1818
WALDEK v. SHERBURNE.
408
nominal plaintiff. Will this protect him ? If
it does, then, indeed, the principle that a court
of law will notice and protect the assignee of a
chose in action, amounts to nothing.
I hold that he must be protected throughout,
and that it would be lust as inequitable to suf-
fer him to be cheated out of the fruits of the
judgment, as it would be to suffer the assignor
to cheat him out of the means of obtaining a
judgment. The court are, therefore, of opin-
ion that the judge erred in nonsuiting the
plaintiff, and that the nonsuit must be set aside,
with costs to abide the event.
Motion granted.
Distiniruished-3 Sand.. 4.
Cited in- W Johns.. 52 ; 1 Cow., 174; 4 Cow., 417:
• Wend.. :»«: 13 Wend.. 45, 652 ; 16 Wend., 449: 1
H111.K33; 1 Paiire. M9: IX N. Y., 899; 28 N. Y.,240;
40 N. Y., 5HO; 62 N. Y., 7« ; « Hun, 13»: 11 Hun, 25;
2 Hun. 387; 4 Barb., 49; 5 How., 349; 9 How. Pr..
221; 17 How. Pr., 346 : 14 Abb. Pr., 234 : 9 Abb. Pr.,
:»J5>. n. ; 14 Abb. N. S., 72 ; 3 Sand., 4 ; 4 BOB.. 672 : 1 E.
D .8., «U3 : BlaU-hf. & H.. 450; 42 N. J. L., 521.
4O»*] *WALI>EN AND VVALDEN
'•.
SHERBURNE AND EAKIN.
Partnership — Agreement Amounting to — Part-
ner* in Different Countries — Bond for Duties
on Goods fmpttrted Executed by one Partner —
Both Liable on— Surety— Action by, for Money,
Lent — Admi**ion*of Partner after Dissolution,
do not Hind Firm — Entries made during
Partnership are Admissible Evidence— Liqiti-
dated Account — Interest Alloteed on.
A and B, citizens of the United States, having
lieen in partnership in France, agreed, in Beptem-
t» r. 1806, to dissolve that partnership, and that B
should establish himself in Now York. A remaining
in France; that they should exert themselves to
procure consign incuts from the United States; that
A should ship goods to B; the amount of which,
and such sum as B could procure by association,
loan or credit, were to t>e converted into reasonable
advances on (roods consigned to A ; that on ship-
ni'-nt.s made by A to the United States, by order of
B. B should receive one third of the profits, and on
shipments by B to France, A should receive one
third of the profits: and that B should have one
third of the commissions on consignments from the
United States to A: that a statement of their re-
spective accounts was to be made at the end of each
year, and that if one of the parties had inctirn>d
losses, that the other was not to be answcruble for
them, Ix-yond a forfeiture of the profits of the year.
According to this agreement. B established himself
as a men-limit in Sew York, and having contracted
debts in relation to his business. Held. In an action
against A and B. that by this agreement they were
partners, there being a community of profit and
loss ; that as the debt, being principally for money
lent, had relation to the partnership concerns, the
plaintiff was entitled to recover: and that it was
not nccfnary for him to show that the money lent
or credit given was used for the benefit of the part-
nership : and that the stipulation limiting the ex-
tent of the liability of each of the partners for losses
incurred by the other, although valid between
themselves, could not effect other persons.
When? one of two partners execuU-s a tiond for
duties on goods imported, with a surety, and the
surety advance* his co-obligor money with whieh
he pays the In mil. he may maintain an action atrainst
both the I'artm r> for tne money lent, this being u
partnership transaction: although hud the surety
himself taken up the bond, he could only have
brought an action for money paid against the part-
ner who executed it.
An admission by one partner, after dissolution of
the partnership, of a Imlance due from the firm,
does not bind the firm ; but entries made by one of
JOHNS. REP.. 15.
the partners, during the partnership, in a book of
accounts, are admissible evidence against both.
If a party in a cause, to substantiate a credit in
his own favor, produce an account made out by
the opposite party, he renders it evidence against
himself in the first instance ; but he is still at liberty
to disprove the charges in the account.
Interest is due on a balance of account from the
time it is liquidated ; and it Is to be considered as
li'|iii'l:iti-'| when rendered, if no objections be made
to It. When a verdict is taken subject to the opin-
ion of the court, the court may draw the same con-
clusion from the evidence as trie jury ought to have
done.
Citatlons-2 W. Bl., 947,998; 1 H. III. 37 : 1 Camp.,
1K5; 2 Johns., 213: 3 Johns.. 536: 1 Taunt., 104: 5
Taunt-, 245.
THIS was an action of assumpsit for goods
sold and delivered, money had and re-
ceived, money paid and money lent and ad-
vanced. The defendant Sherburne alone was
taken and appeared. The cause was tried be-
fore Mr. Ju»tice Platt, at the New York sittings,
in November, 1817.
It was admitted that on and before the 29th
September, 1806, the defendants were partners
transacting business at Nantes, in France; and
that on the 30th of September, they entered
into the following agreement :
" We, the undersigned, Samuel Sherburne
and Samuel Hunter Eakin, both natives of the
United States of America, having established
a house of commerce at the City of Nantes, in
France, on the 21st dav of May, 1804, under
the firm of Sherburne & Eakin, and now for
the purpose of promoting the general as well
as individual interest of each party, having
found it expedient to establish a commercial
house in New York, we have unanimously
agreed to dissolve our *foregoing part- [*4 1 0
nership, at this place, on this present day. and
that our future concerns shall be conducted on
the following terms and conditions, viz. :
1. The principal objects of our respective
establishments, tending towards procuring
consignments on commission from the United
States, we hereby pledge ourselves and honor
to use our best endeavors and exertions in the
attainment of this object.
2. In order to facilitate the better its execu-
tion, the said Sherburne engages to ship, from
time to time, such goods as may be deemed
suitable for sale in the United States, directed
to the said Eakin. for account of himself, for
such American citi/ens as he may point out.
8. The said Eakin engages to convert all
such amounts, likewise any sum he may l>e
able to command, arising" from association,
loan or credit, into reasonable advances on
goods consigned for sale to the house of the
said Sherburne ; the said Eakin taking the
needful precaution of causing insurances to l>e
effected thereon.
4. All shipments of goods made by order of
said Eakin, and to his address in the United
Stales, shall be for his account and risk ; but
it is hereby agreed that one third of the net
proceeds arising from the sales of said goods
(if any there are), after deducting two and a
half per cent, commission, shall be carried to
the credit of said Sherburne's account.
5. On all consignments of goods received
from the United States, whether arising from
shipments made directly to the said Eakin, or
from his friends, in consequence of his in-
fluence, and exertions or orders, the said Sher-
11M
410
SUPREME COURT, STATE OF NEW YORK.
1818
burne hereby agrees to account with the said
Eakin for one third of the net commissions
arising from such consignments ; and it is
further understood that the present conditions
shall be made reciprocal.
6. When shipments of goods are deemed
prudent to be made by the said Eakin, on his
own account, consigned to the said Sherburne,
it is hereby agreed that the present voluntary
and mutual exchange is to take place.
The said Sherburne shall receive one third
411*] of the net *profits, when any there
are, on such adventures, and the said Eakin
one third of the net commission arising there-
from, for each of which the respective accounts
of the parties shall be credited ; and in order
that no misunderstanding on discussion may
take place on this head, it is expressly agreed
and obligatory on both parties, that on the
31st day of December, in every year, a letter
should be written, copied aad addressed to
each other, announcing the sum for which the
respective accounts are credited, for such
share of profits or commissions gained during
the year. It is furthermore agreed on between
the parties, that the foregoing arrangement, as
regards a repartition of profits and commis-
sions, Is assimilated to the principles of a com-
mandite ; that is to say, if any losses should
arise on such adventures, they shall be de-
ducted from the account of profits made in
the year ; and in case they should exceed
these last, no further responsibility can be
laid on the said Sherburne than the forfeit of
profits made ; and in like manner, if any
losses should happen to the said Sherburne in
consequence of such consignments received,
either by guaranty or any other direct cause,
then the said Eakin only to be liable to con-
tribute thereto for as much as may be due him,
arising from the same species of profits made in
the year, the result of all which shall be re-
spectively made known at the end of each year,
as aforesaid.
7. The accounts concerning adventures per
Julia Ann and Franklin being the only remain-
ing to settle, the said Eakin engages to settle
the same in the United States, and in case of a
loss thereon (which we have no reason to ex-
pect), it shall be deducted from the gross
amount of first profits, arising from our future
concerns.
8. All other accounts existing between the
contracting parties being settled and acknowl-
edged this day, and the present instrument be-
ing specially to regulate our future concerns,
we have signed it double to this effect, at
Nantes, September 30th, 1806."
The plaintiffs produced and proved an ac-
count current between them and Eakin, on
which there was the following indorsement,
in the handwriting of, and subscribed by
Eakin : " I do hereby certify the foregoing to
412*] be a true account *with Messrs. Jacob
and Thomas Walden and myself, and that there
is a balance due them of $5,802.54, and which
has been contracted since my connection with
Samuel Sherburne of Nantes. New York,
September 15, 1808." It was admitted that
after the foregoing agreement between the de-
fendants was entered into, Sherburne con-
tinued at Nantes and transacted general busi-
ness in his own name, and Eakin removed to
1140
New York and conducted business in his own
name. In order further to establish the exist-
ence of a partnership between the defendants,
the plaintiffs produced in evidence Sherburne's
account current with Eakin, and a number of
letters from Sherburne to Eakin, during the
years 1807 and 1808, the period during which
they were contended to be in partnership, in
which letters the agreement of September 30,
1806, is frequently referred to and recognized ;
but as the court did not consider these letters,
or those of Eakin in answer to them, as of
any material importance, it is thought unneces-
sary to state their contents, except that in a
letter from Sherburne to Eakin, dated Nantes,
30th May, 1808, he says :
" I have received your several letters, &c.
Their contents treat generally on the subjects
of the misfortune of the country at large, of
yours individually, owing to the violent meas-
ures adopted by the powers at war, and finally
of the several drafts you have drawn on me.
for all which I am extremely sorry, and par-
ticularly of your confidence of drawing me
into the common ruin. You have calculated
on too much complaisance on my behalf, even
admitting my means were adequate to your ob
ject ; and after a mature consideration of the
present state of affairs, and prospect of dura-
tion ; of the statement you have made of your
business ; the deficiency and little prospect of
your being able to redeem your losses ; and
finally, that even by advancing a share of
the sum you require, without the whole,
would not alleviate your situation, I have
taken the determination not to accept your
drafts. This resolution is founded principal-
ly on the present state of non-communication
and annihilation of all commerce, and it was
one of the articles *of our convention [*413
that ' no bills are to be drawn on each other
without funds in hand.' In consequence of
what is said heretofore, I shall consider all
our concerns at an end, and beg you will cease
all exertions in favor of my commercial es-
tablishment." By an indorsement on the letter,
it appears to have been received on the 18th of
August, 1808. The letters from Eakin con-
tained advices of bills which he had drawn on
Sherburne, several of which were in favor of
the plaintiffs.
The defendants produced in evidence an ac-
count, entitled as follows : " Messrs. Sher-
burne & Eakin, in account current with Jacob
and Thomas Walden," in the handwriting of
the plaintiff T. Walden. in which the defend-
ants were charged, on the 1st of February,
1817, with a balance of $4,405.20, and were
credited with the sum of $663.37, on the 28th
of December, 1811. There were also other
credits, as well as charges, arising subsequent-
ly to the account rendered to Eakin, and not
included therein. The plaintiffs objected to
the admission of the credit of $663.37, on the
ground that a suit had been brought by Sher-
burne alone, against the plaintiffs, for that
item, and was still pending ; but the judge ad-
mitted the defendants to the benefit of the
credit for that sum.
It appeared that some of the bills mentioned
in the account, drawn by Eakin in favor of
the plaintiffs, upon Sherburne, were given in
payment of money advanced by the plaintiffs
JOHNS. REP., 15.
1818
WALDEN v. SHERBURNE.
413
to Eakiu. The counsel for the defendant* ob-
jected to the allowance of the damages claimed
in the account current, on the bills returned
under protest, on the ground that the plaintiffs,
under the circumstances, were not entitled to
damages, and if they were, they could not re-
cover them under any count in the declaration.
The judge admitted the objection, but gave
l<iave to the plaintiffs to strike out the bills, and
the moneys paid on account of them, from both
sideH of the account current.
The plaintiffs, also, produced in evidence a
w:i-tc !• >.'k. which was proved to be in the
handwriting of Eakin, and a number of entries
were read from it, both by the plaintiffs and
defendants. It appeared that the plaintiff T.
414*] Walden *had become surety with
Eakin, in several custom house bonds, given
for duties on goods imported, and which,
when they fell due, were taken up by Eakin,
but that the plaintiffs had lent and advanced
him money for this purpose ; and it was con-
tended that the money thus lent was not re-
coverable in this action ; but the judge ruled
otherwise, provided the jury shguld find the
existence of a partnership. A verdict was
taken for the plaintiffs, by consent, for $5,000,
subject to the opinion of the court on a case,
and the damages were to be increased or di-
minished as the court should direct.
ifr. Griffin, for the plaintiff. 1. There was
a general partnership between the defendants
when the demand of the plaintiffs arose in
1806. To make Sherburne liable as a partner,
it is sufficient to show that he shared in the
profits of the joint concern. Whether the
profits be more, or less, can make no difference.
The evidence of the fact of a general partner-
ship arises from the articles of partnership,
from general reputation, and from entries in
the books of account.
The limitation in the articles of the liability
of the parties to the amount of profits, though
it may be conformable to the law of France, is
of no" force here, except between the parties
themselves. An American house of trade must
be governed by the laws of this country.
(BaStn*>n v. Bland. 1 W. Bl., 234. 256 ; Smith
v. Smitli, 2 Johns.. 235 : Tkompxm v.
Ketckim, 4 Johns., 285 ; 8 Johns., 189.)
2. As regards third persons dealing with a
partnership, it makes no difference, as to the
responsibility of the partners, whether the
partnership is general or limited ; or whether
the partner who receives the money or prop-
erty applies it to the partnership account or
not. It is enough that the transaction is in the
name of the partnership, and that the advance
is made on its credit ; unless some collusion is
shown between the plaintiffs and the partner.
One partner may bind the firm, without its
ronsent. by a simple contract, not relating to
the partnership, if he deal in the name of the
partnership, with a person who has no notice
that he is dealing on his separate account.
415*| (Mont, on Part., *23 ; 8 Ves.. 540 ; 7
EMt. 210 ; 13 East, 175 ; 1 Campb., 185.)
Again ; there was a general existing partner-
ship between the defendant and E. in and
prior to 1806. and there is no other evidence of
its dissolution than the letters between the par-
ties. These mty be sufficient for that purpose,
as between them ; but, in regard to third per-
JOHNS. REP., 15.
sons, such a private agreement can have no
effect. There should be either a personal no-
tice to persons dealing with the firm, or a pub-
lic notice in the gazette.
Then, as to the proof of the advances made
by the plaintiffs to the firm. The account
current rendered by them, and produced by
the defendants, is sufficient evidence. It con-
tains all the plaintiffs claim, and by introduc-
ing it as evidence, the defendants, priinafitde,
have admitted the justness of the charges.
They are concluded by it, unless they wholly
disprove the items. The plaintiffs, therefore,
must recover the balance as stated. (Handle v.
Blafkbnrn, 5 Taunt., 245 : Phil. Ev.t 79.)
8. The letters from Eakin to Sherburne were
not admissible evidence. By reading the letters
from S. to E., the plaintiffs did not sanction or
admit the answers of E. to S. ; nor are they to
be concluded by them. This, however, is not
a material point, except so far as the defend-
ants may rely on the correspondence, as evi-
dence that there was no partnership. If. in
that view, it should become necessary to ex-
amine it. it will appear to be a most extraordi-
nary and mysterious correspondence ; in-
tended, in consequence of the difficulties at-
tending a commercial intercourse with Europe,
to veil the true situation of the parties.
4. It may be objected that the declarations
of E. wer-e not admissible evidence to charge
S. It is not necessary to combat this objection,
as it may be thought to impeach the case of
Whitney v. Ferris, 10 Johns.. 66 ; though Lord
Ellenborough. ip Ecanti v. Druinmoiid, 4 Esp.
N. P., 89, did admit the declarations of C.,
with whom the plaintiff dealt, to charge D. as
his secret partner. Thus much, however, must
be conceded, that, having first established the
connection in business or partnership between
the parties, the declarations of one of them is
evidence to bind both.
*5. It will be said that the money [*4 1 6
lent E. to take up the custom house bonds, for
which T. W., one of the plaintiffs, had
become surety, is not recoverable ; and the
case of Torn v Goodrich etal., 2 Johns. , 213,
will be relied on as an authority in support of
this objection. But that case proceeds on the
strict technical ground of a payment by a
surety of a bond executed by one of the part-
ners and himself. This case is clearly distin-
guishable. The plaintiffs did not take up the
bond or pay the money to relieve themselves
as sureties. E. himself took up the bond, and
the bond was introduced merely to show that
he applied the money lent by the plaintiffs to
the use of the partnership ; it being admitted
that the goods imported for the duties on
which the bond was given, were for the ac-
count of the partnership.
Mr. 8. Jone*. Jr., contra. There was no
partnership between E. & S. after the 30th of
September, 1806. There had been a limited
partnership between them' in France, 'where
they resided, which being dissolved, they
agreed to establish two distinct and wholly in-
dependent houses, one in France and the other
in the United States, for the sole object of
transacting commission business. In regard to
every other business, each was at perfect lib-
erty to carry it on as he pleased, for his own
individual bent-fit. They were partners onlv in
1141
416
SUPREME COURT, STATE OF NEW YORK.
181s
cases of consignment from one to the other, in
the profits arising from the sales. It is like the
case of two persons purchasing goods and
selling them on their joint account, where the
joint concern or partnership is limited to that
particular object. A special or limited part-
nership may exist, and the responsibility of
the parties is confined to their contracts in re-
gard to such particular business.1 (Lansing v.
Gaine & Ten Eyck. 2 Johns., 300; Livingston
v. Roosevelt, 4 Johns., 256 ; Dubois v. Roosevelt,
lb., note ; Watson on Partners, 54, 184.) If
any doubt exists on this point, it is removed by
the conduct of the parties. S. continued to do
business in France, in all other respects, on his
own separate account. The correspondence
417*J *between S. & E. contains no evidence
of a general partnership. They had no motive
for concealment, or to wrap their concerns in
mystery. One of the letters (December 3d,
1807) is confidential, sent by a friend, and
therefore not exposed to accident. The mere
declarations or acts of one person are no evi-
dence to charge another, or to show a partner-
ship. (10 Johns., 66.) The court, it is true, in
Whitney et al. v. Sterling et al., 14 Johns., 215,
allowed evidence of general reputation, con-
nected with corroborating circumstances, to be
evidence, prima facie, that B. was a partner of
H. S. & Co.; but there notice had been given
to produce the articles of copartnership, which
the defendants refused to do. Where articles
of copartnership are, in fact, produced, gene-
ral reputation can avail nothing.
In Livingston v. Roosevelt, 4 Johns., 278,
Kent, Ch. J., observed that " where the busi-
ness of a partnership is thus defined and pub-
licly declared, and the company do not depart
from that particular business, nor appear to
the world in any other light than the one thus
exhibited, one of the partners cannot make a
valid partnership engagement on any other
than a partnership account. There must be
some authority beyond the mere circumstance
of partnership to make such a contract bind-
ing. Were it otherwise, it would be idle, and
worse than idle, to talk of limited partner-
ships, in any matter or concern whatever."
The plaintiffs have been aware of the necessity
of showing, not only that the advance was
made to one of the partners, but that the
money was applied to the use of the copart-
nership.
The letter of the 14th of October, 1806, from
S. to the plaintiffs, gave them notice that the
partnership, before existing between S. & E.,
was dissolved, and referred the plaintiffs toE.,
who was coming to New York to establish
himself there. The dissolution of the former
partnership, and each party establishing a dis-
tinct house of trade in their separate names, is
evidence that the former partnership did not
exist or continue. If they intended to be
partners, why not continue their former firm ?
By the new agreement, all shipments to
France by E. were to be on his own account
4 1 8*] *and risk ; and all shipments by S. to
the United States on his own account and
risk. Each was to bear the loss, if any, on
their respective shipments. They were to be
jointly concerned in the profits only, if any
1. — See Wallet v. Chambers, Cowp., 814, per Lord
Mansfield.
1142
should arise, from sales. The plaintiffs were
well acquainted with the business and transac-
tions of E., who traded in various ways not
comprehended in the articles of agreement
between him and S. The plaintiffs, then, were
bound to show that all their advances to E.
were for the special object of the partnership,
and were applied to that object.
The special partnership, if any existed, was
finally terminated by the letter of S. of the
30th of May, 1803, to E., and received by him
the 18th of August following. As the plaintiffs
have not given credit to S., as a partner, since
the first notice of the dissolution, they can
have no claim against him for advances made
since he ceased to have any interest in the
profits of E.'s business, even without notice of
that fact.
But it is said that the account current of
1807, rendered by the plaintiffs against S. & E. ,
and produced by S., is conclusive against him;
but it was a mere copy of an account rendered
to E. Besides, the admission of one partner,
after a dissolution of the partnership, cannot
bind his copartner. In Hackley v. Patrick, 3
Johns., 536, the court decided that the ac-
knowledgment of the balance of an account
by one partner, who was authorized, on the
dissolution, to settle the accounts of the part-
nership, did not bind his copartner. Now, the
acknowledgment indorsed on the account by
E. was subsequent to the dissolution.
Again ; it is said that the entries in the waste-
book of E. are evidence; but they can amount
to no more than his private declarations. That
was the private book of E ., and contained en-
tries to his business, generally; subsequent to
as well as during his connection with S.
Again; the moneys charged by the plaintiffs,
as advanced toE., to take up the custom house
bonds on which they were sureties for E., can-
not be recovered against S. , admitting him to
be a partner. The case of Tom v. Goodric/t, 2
Johns., 213, is decisive on this point. The
bond, *being executed by E. alone, [*41J)
was his private debt, for which S. is not liable.
As to the interest on the account, S. , if liable
at all for the debt, ought not to pay interest
until after the demand made of him, in Feb-
ruary, 1817.
Mr. T. A. Emmet, in reply. By their agree-
ment, S. and E. were to share the profits on ail
goods reciprocally shipped for sale ; and on
all goods consigned, thejr were to share in the
commissions. The dissolution of the former
general partnership was merely nominal, and
was obviously intended to protect the prop-
erty of the concern from British capture. The
letter of S. to the plaintiffs, in which he an-
nounces the dissolution, and refers them to E. ,
made the latter 'an agent to state the nature
and extent of the connection.
Again ; the advances by E. to S. constituted
a partnership concern. S. could control all
the profits of the adventures. Partnerships
carried on here are not to be governed by the
laws of a foreign country, or the peculiar laws
of France. The letter of S. of the 30th of
May, 1808, in which he refuses to accept bills,
refers to an article of their agreement not
found in that of September, 1806. The lan-
guage of the correspondence between S. and
E is not that of persons acting separately and
JOHNS. REP., 15.
1818
WALDEN v. SHEKBCKNE.
419
distinctly, and writing to each other ; but is I
that of one person writing to another, about ]
matters in wnich they have a common interest !
and concern.
Reputation is admissible as to partnership ;
and where the parties live in the same place, it i
is strong evidence ; but reputation, connected
with other circumstances, is sufficient evi-
dence. There does not appear any intention
on the part of S. to conceal the fact of his
being a partner of E., as it regards creditors,
but merely for the sake of guarding against the
effect of "British capture. His letter author-
ized E. lo make full disclosures and declara-
tions, as in their connection, to all persons with ,
whom he wished to transact business. In his
letter, also, of April, 1808. in which he speaks '
of the transaction with Bell & Co., he says, j
tliii in case the debt is paid, E. should be cred- j
ited his share of the profits.
In Wood et al. v. Hrmldiek, 1 Taunt , 104, ,
4!iO»] *the Court of C. B., in England, de-
t-ided that the admission made by one of two
partners, after a dissolution of the copartner-
ship, as to what took place during the partner- i
ship, was competent evidence to charge the \
other partner. Heath, ./. , said that the disso-
lution operated only as to the future, not as to
things past, with respect to which the partner-
ship continues, and always must continue.
This is, undoubtedly, the true principle,
though it is true that this court, in flackley v.
Pntrifk, thought otherwise.
The case of Tom v. Goodrich turned on the
technical rule of law as to sealed instruments,
and as to principal and surety ; but the |
plaintiffs, as partners, were not sureties of E.
T. W. signed one bond, and J. W. another.
SPENCER, ./., delivered the opinion of the ,
court :
The verdict being taken by consent, subject '.
to the opinion of the court, we must draw
such conclusions from the evidence as we !
think the jury ought to have drawn. The |
principal inquiry is, whether the defendants
were general partners, in consequence of the i
agreement between them of the 80th of Sep- j
tember, 1806. Regarding the whole of that
instrument, the circumstances of the times, |
and the conduct of the parties under it, I feel
no hesitation in saying they were general part- '
jiers. It appears by the recital to the agree- i
incut, that the defendants had been partners
in a commercial house at Nantes, in France,
from May, 1804. That partnership they agreed
to dissolve ; and for the purpose of promoting
the general as well as individual interest of
each party, they further agreed to establish a
commercial house in New York. It is to
be observed that both the defendants were
American citi/ens, and the articles under con- 1
sideration contemplate that Eakin was to reside
-at New York, and Sherburne in France.
The tirst article of the agreement slates that
the principal object of their respective establish-
ments was intended to procure consignments I
on commission from the United States ; and
they pledged their honor to use their best i
«ndeavors in the attainment of that object.
4121*] *By the second article, Sherburne
eqgagc- !•> -iu|>. trull. linn in linn-. -'K'li goodi
as may be deemed profitable for sale in the 1
JOHNS. REP., 15.
United States, directed to Eakin, for account
of himself, for such American citizens as he
mar point out.
By the third article, Eakin engages to con-
vert all such amounts, likewise any sum be
may be able to command, arising from associa-
tion, loan or credit, into reasonable advances
on goods consigned for sale to the house of
Sherburne — Eakin taking the precaution of
insuring.
Bv the fourth article, all shipments of good*
mane by order of Eakin shall be for his ac
count and risk ; but one third of the net profits
arising from the sales of the goods, after
deducting two and a half per cent, commis-
sions, was to be carried to the business credit.
The fifth article provides that all consign-
ments of goods received from the United
States, whether from shipments made directly
from Eakin, or from his friends in conse-
quence of his influence and exertions or orders,
Sherburne agrees to account with Eakin for
one third of the net commissions arising from
such consignment* ; and it is declared to be
understood that this condition should be made
reciprocal. The sixth article stipulates that
when a shipment of goods is deemed prudent
to be made by Eakiu, on his own account,
consigned to Sherburne, a mutual exchange is
to take place : and the articles proceed to
arrange how the net profits and commissions
are to be divided. Sherburne, in such case, is
to receive one third of the net profits, and
Eakin one third of the net commissions. They
aiso agree that if losses should arise on such
adventures, they are to be deducted from the
amount of the profits made in the year ; and
they agree not to be answerable for the losses on
shipments beyond the profits made in the year.
These are all the stipulations material to this
inqury.
It is very manifest, from the whole agree-
ment, that the defendants meant to keep out
of sight the fact that there was to be a com-
mercial establishment, in which both were in-
terested, in France ; that all goods going to
and from France were to appear to be owned
by Eakin, who was domiciled here, to avoid
the risk of British captures ; but in all the
adventures, whether from America or France,
both *of them were to have the stipu- [*4-ii —
lated profits and commissions, in a manner
promoting the reciprocal interests of each. No
principle is better established, than that every
person is to be deemed in partnership, if he N
interested in the profits of a trade, and if the
advantages which he derives from the trade
are casual and indefinite, depending on the
accidents of trade. (2 W. Bl., 947, 998.) To
constitute a partnership, a community of
profits and loss is essential : the shares must
be joint, though it is not necessary they should
be equal. (1 H. Bl., 87.)
By the third article of the agreement, it was
contemplated by both the defendants that
Eakin was to exert his credit in making ad-
vances on goods consigned to the house of
Sherburne for sale, and both of them were to
participate in the profits and commissions.
This puts it beyond all doubt, not only that the
defendants were partners, but that Eakin had
a right to borrow money, to advance the inter-
ests of the firm.
1143
422
SUPREME COUKT, STATE OF NEW YORK.
1818
It has been contended that the defendants
were limited, not general partners ; and that,
therefore, Sherburne was not bound for the
advances made to Eakin, as it did not appear
that they were made to promote the direct and
specified objects of the partnership. All part-
nerships, in one sense, are limited. They have
particular branches of trade in view ; none
embrace all the varieties of trade. All that is
requisite to render a debt contracted by one of
the partners binding and obligatory on the
others, is that the debt relate to the partner-
ship. The authority delegated by one partner
to another, is to act in the course of their par-
ticular trade or line of business ; and in such
transactions, strangers have a right to act on
on the credit of the partnership fund. It
is not necessary that the money lent, or credit
given, should appear to have been actually
used for the benefit of the partnership : third
persons have no concern with that. This
principle is strongly exemplified in the case of
Bond v. Gibson & Jephson, 1 Camp. , 185, there,
one of the partners, with the intention of
cheating the other, went to the plaintiff 's shop,
and purchased a great number of articles
which might be used in the partnership
business, and instantly converted them to his
423*] separate use. It was a fair sale *in the
ordinary course of business. Lord Ellen-
borough held, that unless the seller is guilty of
collusion, a sale to one partner, with whatever
view the goods may be bought, and to what-
ever purposes they may be applied, is a sale to
the partnership.
The letters from Sherburne to Eakin by no
means tend to disprove the fact of the existence
of a partnership. Considering the necessity
for caution, lest their correspondence might
be intercepted, the letters are not incompatible
with a partnership. Indeed, they seem to me
to take an interest in the business which Eakin
was doing, indicative of a concern in it ; and
Eakin's letters convey the same idea ; although
I do not consider these letters of any material
importance, for, in my judgment, the plaintiff 's
case does not require them.
With regard to the stipulation in the articles
of agreement, that the losses on shipments
should be deducted from the profits of
the year, and that the partner not making
the shipment should be no further answerable;
this was a valid agreement as between the part-
ners, but cannot affect any person dealing
with the partnership. If the transaction was
in the ordinary course of business, and at-
tached on the partners, they are answerable to
the whole extent of their fortunes.
It has been objected that moneys lent to pay
the custom house bonds are not chargeable
upon the partnership, inasmuch as one of the
plaintiffs was a surety in those bonds for Eakin
only. The case of Tom v. Goodrich et al., 2
Johns., 213, has been cited and relied on, in
support of this objection. That case would
have applied with decisive effect, had the cus-
tom house bonds been paid by the plaintiffs ;
• but they do not make the bonds the ground of
their demands. They were paid by Eakin
with money lent and advanced by the plaint-
iffs. This money was applied by Eakin, one
of the partners, to pay a partnership charge.
Had the money been advanced for the same
1144
i purpose, by any other person, no doubt could
; have existed as to the liability of the defend-
j ants ; and the plaintiffs did not* advance the
j money to relieve themselves from the bonds,
i *or because they had become charge- [*424
j able ; but it was money lent in the course of
i business. The objection is untenable.
It has been strongly insisted that the plaint-
I iffs did not produce sufficient evidence to prove
the items of their account. On the 15th of
September, 1808, Eakin, by his certificate, in-
dorsed on an account current, made out by the
plaintiffs, and charged against him alone, ad-
mitted a balance fo be due the plaintiffs for
$5,802.54 ; which he further certifies to have
been contracted since his connection with
Sherburne. This balance was admitted, after
the dissolution of the partnership, which took
place on the 18th of August, 1808 ; for on
that day Eakin received Sherburne's letter dis-
solving the connection. According to the
decision of this court in Hackley v. Patrick et
al., 3 Johns., 536, one partner cannot, after a
dissolution, bind his copartner by acknowledg-
ing an account, any more than he can give a.
promissory note to bind him. It seems that
the Court of Common Pleas, in England, have
held otherwise (1 Taunt., 104); but I believe
j there is more safety in the rule of this court
than in a contrary one.
It appears to me that the proof of the ac-
count is fully made out. The waste-book, in
the handwriting of Eakin, was proved, and
given in evidence. This I take to bean original
book of entries, made at the time the trans-
actions took place ; and this book contained
credits for all the plaintiff's account. The ex-
istence of the partnership being established, it
follows that an admission of the account by
one of the partners, during the continuance of
the partnership, is competent proof. Besides,
the case states that the plaintiff's account
against Eakin was proved and read in evidence,
Now, this account is precisely the account
against both defendants ; and if proved, the
proof avails against both.
Again ; the defendant Sherburne, to gain a
deduction from the plaintiff's account, pro-
duced the account himself ; and by doing so
he made it evidence. He might, indeed, con-
tradict, or disprove it ; but not doing so, it
was evidence in the cause, to the jury. (5
Taunt., 245.)
The only remaining question is as to the in-
terest. We have uniformly decided, that after
an account has been liquidated, *it [*42&
carries interest, and that an account is to be
considered liquidated after it has been rend-
ered, if objections are not made to it. In the
present case, the account was rendered to one
of the defendants on the 15th of September,
1808, and not objected to : indeed, it was ad-
mitted. From that period the plaintiffs are
entitled to interest.
Judgment for the plaintiffs, accordingly.
Partnership, what constitutes. Distinguished— 7ff
N. Y., 351.
Cited in— 4 Paige, 154 ; 58 N. Y., 279 : 47 How. Pr.,
528 ; 8 W. Dig., 559.
Admissions of copartner, made after dissolution of
copartnership* inadmissible against firm. Cited in—
9 Cow., 59, 434; 4 Paige, 22 ; 2 N. Y., 531 : 12 Barb.,
293.
JOHNS. REP., 15.
1818
MYKKS v. MOKMK.
425
.Same made before dtamiution, aJmtanMc. Cited
in— 7 Wend., 445 ; 18 Hun, SOS : 10 BOB., 455.
Entries, mad* In account hook* must l>e taken to-
•jrther. Cited in-4 N. Y.. 248 : 22 Barb.. 148.
Account, when liquidated— Carrie* intercut. Cited
in-3 Cow.. 436 ; 5 Cow., 612 ; 3 Keyes, 335; 1 Abb.
App., Dec., 32« ; 1 Trans. App.. 288 : 4 Barb., 374 ; 37
How. Pr.. 285 ; 3 Abb. X. 8., 3K.
Atao cited in 1 Barb. Ch., 541 ; 6 Duur. 130 : « BOH.
578.
MYERS AND BELLINGER r. MORSE.
Pleading nnd Practice — Statute of frauds —
Agreement to Answer for Debt of Another
Not iritAin Statute where there i* a Neip and
Original Consideration.
In an action of amumjxrtt, where the declaration
sets forth an agreement to answer for the debt, de-
fault or miscarriage of a third person, the defend-
ant may plead the Statute* of Frauds -i •• -i-iaily in
bar.
Where the plaintiff promisee not to require from
t In- defendant the payment of a certain note., in
consideration of which the defendant promises to
indemnify the plaint ill from one third of all loss in
consequence of his indorsement of certain notes
for a third person, this is not a case within the
Matutcof Frauds, here being a new and original
consideration moving between the contracting
parties.
A declaration in owfumjwff stated a promise from
the plaintiffs to the drfrmlant not to require the
payment of a certain note, indorsed by the defend-
unt to the plaintiffs, in consideration whereof the
liefendant promised the plaintiffs to indemnify
them from one third of all loss which they might
sustain in consequence of their indorsement of cer-
tain notes f or a t nird person ; that the plaintiffs had
never required payment of the note, and that they
had sustained a loss to a certain amount. Held
that the declaration was bad. in not stating that the
third person was insolvent: otherwise there was no
consideration for the defendant's promise, either of
benefit to himself or of loss to tne plaintiffs: be-
sides, the insolvency of the maker of the notes
must be averred, because the promise of the de-
fendant must Ix- construed to mean that he would
pay one third part of the loss, provided it could not
be recovered of tin' maker of the notes, and not
merely that the defendant should be liable, in the
tlrst instance, for one third of the loss.
Citation*— 1 Chit. PI., 4WM99 : Bac. Abr. PL, G :
Gilb. C. P., «2, 66 ; 8 Johns., 39. 37«.
THIS was an action of n*snin-innt. The dec-
laration contained two counts.
1. For money paid, laid out and expended
by the plaintiffs, to the use of the defendant.
8. That on the 19th of May, 1815, the plaint-
iffs were liable as the indorsers of a certain
promissory note drawn by Horace Morse, and
made payable to the plaintiffs, at the Bank of
Utica, and by the plaintiffs indorsed to the
Bank ; that the plaintiffs were holders, as in-
dorsees, of a certain other promissory note,
drawn by Horace Morse, and made payable to
the defendant at the Bank of Utica* which
note the defendant had. In-fore the day above
mentioned, indorsed to the plaintiffs ; and that
the plaintiffs, at the special request of the de-
fendant, promised the defendant that they
would not require from him the payment of
the money mentioned in the said note ; and
the defendant, in consideration thereof , on the
4ii<l*J same day, promised *the plaintiffs to
indemnify them from one third of all loss
which they might sustain in consequence of
NOTE.— Ktatntr of Fraud*— I*romi«e t* pat/ debt of
tnmtlier on neir anil nri^inal cotiKittemtfan, not
within. See Farley v. Cleveland. 4 Cow.. 432.
JOHN*. KKP., 15.
their having indorsed any note or notes for H.
M., in the ttica Bank. The plaintiffs averred
that they have not required payment of the
said note, but have canceled the same, and
that they have sustained a loss to the amount
of $600, in consequence of having indorsed
the naid notes for the said H. M., of which
the defendant bad notice, and that, by reason
of the premises, he became liable to pay to
the plaintiffs $200, being the third part of 'the
said loss, when requested ; and that the de-
fendant, being so liable, promised, &c., and
although often requested, hath not paid, &c.
The defendant pleaded : 1. Non iu*ump*tt.
2. To the second count, that the plaintiffs
ought not to have and maintain their action,
because, by the Statute of Frauds, it is enacted
that no action shall be brought whereby to
charge the defendant upon any special prom-
ise to answer for the debt, default or miscar-
riage of any other person, unless such agree-
ment, or some note or memorandum thereof,
shall be in writing, and signed by the party to
be charged therewith, or some other person by
him thereunto lawfully authorized ; that the
plaintiffs have brought their action for the de-
fault of H. M., and for no other purpose what-
ever: and that there is no agreement in writing
touching the promise of the defendant, or
memorandum or note thereof. &c. To the
second plea there was a general demurrer, and
the defendant joined in demurrer.
The cause was submitted, on the points
stated to the court, without argument.
SPENCER, J., delivered the opinion of the
i court :
The first objection taken to the plea is, that
' it amounts to the general issue, and is there-
l fore had. It may well be doubted whether the
plaintiffs can avail themselves of this objection
j under a general demurrer. (1 Chitty's PI.,
I 498, and the cases there cited.) But upon prin-
ciple, the pica is well pleaded if the promise
laid in the second count is nol a valid promise,
unless it be in writing. The rule is this : in
. an action of u&tumprit, matter which shows
| that no such contract was made, cannot be
; pleaded ; but matter which admits the contract
i as laid, but shows thnt it was not binding in
' point of *law, may be pleaded, because, [*4li7
j it being matter of law. it is proper to show it
i to the court. (1 Chitty's PI.. 497. 499 ; Bacon's
I Abr.. Plead., G. ; 3 Gilb. C. P., 62, 66.)
This opens to the inquiry, whether the
promise set forth in the second count is within
the Statute of Frauds and perjuries or not. I
think this a case not affected by that Statute,
for. according to the principle' laid down in
the case of T^eonard \. Vredenburgh, 8 Johns.,
89, where the promise to pay the debt of an-
other arises out of some new and original con-
sideration of benefit or harm moving between
the newly contracting parties, it is not a case
within the Statute. In the case of Slcelton v.
Jirctrxter, 8 Johns., 376, the same principle was
again adopted by the court.
The plea, then, is undoubtedly bad ; but,
though bad, it authorizes the defendant to go
back and examine the declaration, to sec if it
be good.
Although the defendant's promise is not a
collateral, but an original one, there must be a
114*
427
SUPREME COURT, STATE OF NEW YORK.
1818
consideration for that promise ; this is stated
to be the defendant's liability, as an indorser
on a promissory note, given by Horace Morse,
payable to the defendant, and indorsed by
him, which note came to the plaintiffs by in-
dorsement ; and on their promising the de-
fendant not to require of him the payment of
that note, the defendant, in consideration of
the premises, promised to indemnify the
plaintiffs from one third part of all the losses,
in consequence of indorsing, or having in-
dorsed, all notes of Horace Morse ; and the
gravamen of their case is, that they paid $600,
in consequence of indorsing Morse's notes.
The defendant was only contingently liable
to pay the note he had indorsed for Morse ;
that is, on the failure of the maker to do so.
It ought to have been stated that Morse was
insolvent, and unable to pay that note, or else
there is no consideration for the defendant's
promise, either of benefit to him or loss to the
plaintiffs. The allegation that the plaintiffs
have sustained a loss by indorsing Morse's
notes, is liable to the same objection. The
promise, if valid and binding, must be con-
strued to mean, to pay to the plaintiffs one
third of such sum as they should lose by in-
428*] dorsing Morse's notes ; *that is. one
third of what they should be obliged to pay,
and which could not be recovered of Morse,
owing to insolvency, not one third of what
they should pay, and which might be recov-
ered of him. There is no allegation that Morse
was unable to refund to the plaintiffs any
money which they may have paid as indorsers
of his paper. I consider these objections as
insurmountable, and that, therefore, the de-
fendant must have judgment, with leave to the
plaintiffs to amend, on payment of costs.
Judgment for the defendant.
Distinguished— 17 Johns., 339.
Cited in -4 Cow., 438 ; 17 Wend., 173; 21 N. Y., 421 ;
Hi Harb., 649 ; 14 How. Pr., 493.
FARRINGTON AND SMITH ». SINCLAIR.
Fraud — Levy on Article not Easily Removable —
Possession Remaining in Debtor — Fraud as to
Junior Execution — Trover.
. Where a creditor levies, under an execution, upon
the property of his debtor, consisting of a ponder-
ous article not easily removable, and allows it to
continue in his possession, this is not, per se, evi-
dence that the execution and levy were fraudulent,
.so as to render the property liable to be levied on,
under a junior execution against the same debtor;
but if the creditor permit the debtor to consume
the property, being: firewood, this is is a ground for
suspicion of fraud; and to prove the fraud, the
creditor in the junior execution may produce evi-
dence of a permission given to the debtor to use
other property levied upon at the same time.
If the officer who made the first levy brings an
action of trover against the parties who were en-
gaged in the second levy, they may show circum-
stances of fraud to defeat the action, equally as if It
had been brought by the creditor himself.
I
N ERROR, on certiorari to a justice's court.
which had been levied on by the plaintiff be-
low, who was a constable, by virtue of an ex-
ecution in favor of one CaswelT, against one
! Peter Payne, and which was afterwards levied
j on by the defendant Smith, a constable, under
I a junior execution, in favor of the defendant
| Farrington against Payne. At the trial, it was
| proved that the plaintiff having levied on a
| woodpile at Payne's door, Caswell, the judg-
ment creditor, told Payne's family that they
might continue to use the wood for fuel in
Payne's tavern for four fires. They continued
to use the wood for ten days or a fortnight,
when the defendant Smith levied, under Far-
rington's execution, upon such of it as re-
mained, and carried it away. In order to show
fraud in the prior execution and levy, the de-
fendant's below offered to prove that Caswell
gave permission to the family of Payne
*to make use of other property levied [*452i)
on at the same time with the wood ; but the
evidence was objected to, and excluded by the
justice. • A verdict was found for the plaintiff
below, on which judgment was given.
Per Curiam. The mere omission, for a few
days, to remove the wood, it being a ponder-
ous article, was not, per se, sufficient evidence
of fraud ; but the permission given by Cas-
well, the creditor, to consume it for four fires,
in Payne's tavern, excited a just suspicion that
the proceeding was merely to cover the prop-
erty ; and after such a foundation was laid,
the justice ought to have admitted the other
evidence offered by the defendants below. It
is no answer to say that this was an action by
the constable who levied, and that the fraud,
if any, must be imputed to Caswell. If the
real design of Caswell was to protect the prop-
erty of Payne against other creditors, he shall
not succeed in that attempt by employing the
constable as an instrument of his fraud.
Judgment reversed.
Cited in— 3 Paige, 456 ; 65 Barb., 233
FARRINGTON AND SMITH v. SINCLAIR.
Fraud — Execution.
If the creditor in the prior execution levy upon
provisions belonging to his debtor, and permit them
to remain with the debtor, and be consumed in his
family, the execution and levy are, constructively,
if not actually fraudulent, as against a subsequent
attachment or execution.
IN this case, which was between the same
parties, the facts were precisely the same
as in the preceding case, except that the prop-
erty levied on was a barrel of pork, which
Caswell consented should be left in Payne's
possession, and used by his family, who con-
sumed about one quarter of it, when it was
levied upon by Smith, under an attachment at
the suit of Farrington against Payne.
Per Curiam. This is a strong case of con-
structive, if not actual fraud, and the judg-
ment must be reversed.
The defendant, in-error brought an action of
trover, in the court below, against the plaint-
iffs in error, for taking a quantity of firewood,
1146
Judgmenttreversed.
Cited in— 15 Wend., 62
JOHNS. REP., 15.
1818
FARRINGTON v. CASWELL.
430
43O*] »FARRINGTON AND SMITH
CASWELL.
fraud — Purclia*e under Kttcution — Po«ne*st/m
Remaining in Debtor — Prima Facie fraud.
Where a party purchasing (foods levied upon
under an execution which ne has issued, suffers
them to remain in the possession of his debtor, tliis
is i/rima facie evidence of fraud, as luniliwt a subee-
• (in'iii execution.
Where the creditor in the prior execution brinjw
an action of trover aKiiinst the parties enjnwd in
ihc .»ul»iec|ui nt levy, under a junior execution,
they may, to establish the fraud, produce evidence
that the plaintiff |>ermitted other property of the
• l.-iitor. lexied upon at the same time with that
which is the subject of the action, to continue In his
posmaion.
IN this case, the action was brought by Cas-
well, the creditor in the prior execution
mentioned in the two preceding cases, who
produced no evidence, at the trial in the court
below, to show why he had left the property
in the possession of Payne. The defendants
below offered to prove tlhat the plaintiff gave
liberty to Payne's family to use other property
levied, on at the same time with that which
was in question in the present action, in order
to show that the purchase by the plaintiff of
the property sold under his execution was
<:olorable and fradulent. This evidence was
excluded, and a verdict and judgment were
given for the defendant in error.
P»r Curiatn. The continued possession of
the goods in Payne was prima facie evidence
of fraud, as against creditors ; and here was
no evidence to repel that presumption. The
evidence offered by the defendants below was
pertinent, and ought to have been submitted
to the jury.
Judgment retersed.
Cited in-17 Johns.. 334: 15 Wend., 830; 21 Barb.
:W: 47 Super, 273.
4.'J1*1 *FARRINGTON AND SMITH
v.
JOHN PAYNE.
Certiorari — Mutrecital in Return by .lattice, Din-
regarded — Tortiou* Taking.
The mlsrccital by a justice of the peace. In the re-
turn to a ccrtinrarL, of the title of the Act for the
Recovery of Debts to the Value of Twenty-five
Dollars will In* disretrardinl.
A tortioii8 taking In, in itself, a conversion, ami no
subsequent demand Is necessary in order to main-
tain an action of trover.
IN ERROR, on cfrtiorari to a justice's court.
This was an action of trover, brought
bv the defendant in error, against the plaint-
iffs in error, for three bedquihs. The defend-
ants below justified under an attachment, in
favor of the defendant Farrington against
Peter Payne, for debt, by virtue of which the
defendant Smith, as constable, seixed and car-
ried away the bedquilts. The articles were
proved to be the property of the plaintiff be-
low, but I hey were attached while in the posses-
sion of Peter Payne, against whom the attach-
ment issued, having been lent to him. The
defendants below, when serving the attach-
ment, were notified that these articles were not
.Jonxs. REP., 15.
the property of P. Payne ; but they persisted
in seizing and removing them. A verdict and
judgment were rendered for the plaintiff be-
low, and two objections were now raised on
the part of the plaintiffs in error :
1. That the summons and all subsequent
proceedings are stated in the return to have
been by virtue of the Act entitled "An Act
for the more speedy Recovery of Debts to the
Value of Twenty-five Dollars," which was re-
pealed in April, 1813 ; and in the new Revised
Act the words "more sjK'edy" were omitted.
2. That the plaintiff below made no demand
of the goods before suit ; and that no conver-
sion was proved.
Per Ouriam. In giving "judgment accord-
ing as the very right of the case shall appear,
without regarding any imperfection, emission
or defect in the proceedings in mere matter.- <«f
form," we are authorized to disregard the
mistake in the title of the Statute under
which the justice acted.
As to the second objection, it is well settled
that a tortious taking is, in itself, a conver-
sion, and no subsequent demand is necessary.
Judgment affirmed.
•FARRINGTON AND SMITH [*4«!2
v.
J. PAYNE.
Trespass — By Single Act to Several Chattel* —
Sejiarate Actions Cannot be Brought — Sectn,d
Adjournment.
Where there has l>oen a trespass or conversion by
one single individual act, in relation to several chat-
tels, the plaintiff cannot split his claim for dam-
atfco, by bringing- separate actions of trespass or
trover for each particular article seized or convert-
ed ; and a recovery for one part or parcel is a bar
to an action for another part or parcel.
Where the cause has been one* adjourned in a
Justice's court, by consent, and the defendant then
applies for a second adjournment, on account <>t
the want of a material •vitness, but does not show
that due diligence had been used to obtain the wit-
ness, and refuses to disclose who or where the wit-
ness was, it is proper for the justice to refuse the
a<i|)ourninent.
Citation— 15 Johns.. 289.
IN ERROR, on csrtwriiri to a justice's court-
This was an action of trover between the
same parties as in the preceding case, to which
the same justification was pleaded. The
cause was adjourned, by consent, and at the
adjourned day the defendants below asked for
a second adjournment, and offered to give
security, and to swear that they could not
safely proceed to trial for want of a material
witness ; but they refused to name the wit-
ness, or to say where he resided. The justice
denied a further adjournment.
The defendants then pleaded, that since
issue had been joined in this cause, judgment
had been rendered against them in another
action, for the same act and subject matter
complained of in the present suit. The judg-
ment referred to by the plea was that in the
preceding case between the same parties. On
the trial, the same evidence was produced, by
the plaintiff bclcw, a* in the last case, with
1147
432
SUPREME COURT, STATE OP NEW YORK.
181*
this addition, that when the defendants below
took the three bedquilts there mentioned they
also took the bed. The proceedings and judg-
ment in the former suit were admitted. A !
verdict and judgment were given for the de- j
fendant in error for the value of the bed, with
costs.
Per Curium. The justice decided correctly
in refusing the second adjournment, as there
was no proof of due diligence, and as the
party refused to explain who or where the
witness was.
Upon the main question of this cause, we
are clearly of opinion that the judgment in the
first suit was a bar to the plaintiff's claim in
this action. The only evidence of a conver-
sion was the tortious taking under the attach-
ment. The seizure of the bed and the bed-
quilts which then lay on the bed, was one
single, indivisible act ; and the plaintiff ought
not to be permitted to vex the defendants, by
splitting up his claim for damages into sepa-
433*] rate suits for each article so *seized.
There is no difference in this respect between
the actions of trover and trespass. In Smith
v. Jones, ante, 229, the court decided that
where goods were sold, at one time, on an en-
tire contract, the vendor could not maintain
separate suits for separate parcels of the goods
so sold and delivered. There is no reason for
a difference in the rule between torts and con-
tracts. Suppose a trespass, or a conversion of
a thousand barrels of flour, would it not be
outrageous to allow a separate action for each
barrel ? The judgment must be reversed.
Judgment reversed.
Where demand entire, recover}/ of part Itars whole.
Cited in— 16 Johns.. 138 ; 1 Wend., 488 ; 12 Wend., 506 ;
19 Wend., 209; 5 Den., 28; 16 N. Y.. 554: 38 N. Y.,
£53: 11 Hun, 158; 28 Hun, 253; 21 Barb., 318; 42
Barb., 373; 47 Barb., 46; 40 How. Pr., 490; 62 How.
Pr., 343; 2 Abb. Pr., 71 ; 9 Abb. N. S., 309; 23Cal..
:«7 ; 66 Ind., 416 ; 59 Mo., 362 ; 1 Allen, 48 ; 64 Mo.,
339.
FULTON v. MATTHEWS AND WEDGE.
Time Given to Principal, or Discontinuance of
Suit, does not of Itself Discharge Surety , When.
A surety is not discharged by the plaintiff's giv-
ing1 time to the principal debtor, or even by his dis-
continuing a suit commenced against the principal,
without the privity and consent of the surety, un-
less the surety has 'explicitly required him to pro-
ceed against the principal, or the plaintiff has by
some agreement with the principal, precluded him-
self from suing him.
Citation— 13 Johns.. 174.
THIS was an action of asautnpsit on a prom-
issory note, dated October 25th, 1815, by
which the defendant Wedge promised to pay
W. Atherton, or order, $85, by the first of Jan-
uary next, with interest. The note was signed
by Wedge, and underneath his name was sub-
scribed the name of the defendant Matthews,
in the following manner : "Thos. Matthews,
security." On the note was indorsed an as-
signment from the payee to the plaintiff, dated
November llth, 1817. The cause was tried
before Mr. Justice Platt, at the Steuben Cir-
cuit, in June, 1818.
On the part of the defendant Matthews, who
alone had been brought into court, it was
1148
proved that in the autumn before the note
became due, Wedge called on the payee, and
offered to pay him $50 or $55, on account of
the note, in Pennsylvania bank notes ; but as-
they were depreciated in value, Atherton de-
clined taking them, and promised to wait un-
til the next spring for payment. In July,
1816, Atherton placed the note for collection in
the hands of an attorney in Steuben County,
who commenced a suit upon it in the Court of
Common Pleas of that county, in which suit
Matthews pleaded, and a default was entered
against *Wedge. Before any trial in the [*434
cause, Atherton took the note out of the hands
of the attorney, and directed him to desist
from proceeding in the suit, in consequence of
which, Atherton afterwards became nonsuited.
It did not appear that Matthews was privy to-
this transaction. Wedge, who had previously
been solvent, was, at the time the former suit
was suspended, reputed to be insolvent, and
afterwards obtained his discharge under the
Insolvent Law, and had since left the State.
A verdict was found for the plaintiff, sub-
ject to the opinion of the court, and the case
was submitted, on the points and argument*
stated to the court, without argument.
SPENCER, J., delivered the opinion of the
court :
This suit is on a negotiable note, signed by
Wedge, and by Matthews, to whose signature
is attached the word "security."
The defense relied on was, that the payee of
the note, after it became due, and before it
was indorsed, had given time to the principal,
and that a suit had been brought by the origi-
nal payee of the note in Steuben Common
Pleas, which suit was afterwards discontinued ;
and that, probably, had the suit proceeded, a
recovery might have been had against Wedge,
who is now insolvent, and has left the State.
It does not appear that Matthews ever request-
ed the payee or the plaintiff to sue Wedge.
In Pain v. Packard, 13 Johns., 174, we say
that a mere delay in calling on the principal
will not discharge the surety ; and in that case
the opinion of the court was placed wholly on
the fact that the surety requested the holder of
the note to proceed and collect it from the
principal : and the plea averred a loss of the
money as against the principal by such neg-
lect. In this case, there is no proof whatever
that Matthews, the surety, ever urged or re-
quested the holder of the note to proceed
aginst the principal ; and the proof is very
doubtful whether, when the suit was actually
commenced in the Common Pleas, Wedge was
able to pay the money.
The holder of a note ought to be fairly and
fully apprised by the surety that he is required
to prosecute the principal. A delay to sue, or
even a discontinuance of a suit brought, can-
not *absolve the surety from his liabil- [*43&
ity, if he is passive, and takes no measures in-
dicating to the holder of a note that he in-
sists on his proceeding against the principal.
It ought to be put beyond a doubt that the
surety is injured by the delay ; that is, that
the principal was solvent, and able to pay the
debt if he had been prosecuted for it. The
plaintiff has done no act to preclude himself
from suing Wedges at any time. On the
JOHNS. REP., 15.
1818
OVERSEERS OK PrrnrrowN v. OVERSEERS OK PLATTSBITRGH.
435
grounds, then, that the plaintiff has never
been required to prosecute Wedge, and that he
IIH- made no contract with him, that disables
him from suing at any time, we are of opinion
that the plaintiff must have judgment.
Judgment for the plaintiff.1
Disapproved— 3 Craiich, C. C., 147.
Cited in-3 Wend..2«i ; "> \\>n,l . .1U5: <i Wend.. 247;
tt Wend., 124 ; 13 WVnd.. 37H: 4 Hill, ittt: I l>«-n.. 11-:
25 X. Y.. 1«0 ; 64 X. Y., 2M ; 74 X. V., 136 : 4 Lan-.. ]'.<: :
12 Hun. 520; 5 Barb., 590; 21 Barb.. 350 ; 45 Barb.,
217 : 22 How. Pr., 423 : 12 Abb. Pr., 34.
4:«J*J "OVERSEERS, «kc.. OF PITTS-
TOWN
v.
OVERSEERS. &c., OF PLATTSBITRGH.
Pauper — Settlement — Removal — Kxptnxt* Dur-
ing >'/'•/•/<» *.«.
The overseers of the poor of tin- town of Plat is-
btirgh, in the County or Clinton, obtained uu order
of two ju-t ic. •> of that county, adjudicating the 1> -
jpigettieinent of a pauper to lie in Pittstowii, in the
< 'utility iif BeanMlMT, and ordering his removal
i hit her; and he was according! v removed to I'itt>-
town. The pauper had no legal settlement in this
State. The overseers of the poor of Pittstowii ap-
pealed to the Court of General Sessions of the Peace
of the County of Clinton, who quashed the order of
removal ; but the overseers of the poor of the
town of Platteburgh refused to remove the pan per
baek to Plattsburgh, or provide for him and main-
tain him at Pittstowii, he being sick and unable to
be removed; and he had, subsequently to the re-
versal of the order, been maintained by the over-
seem of Pittstown, who brought an aetion on the
case against the overseers of Plattsburgh, to re-
cover their expenses, Jtc., and set forth the above
fact* in their declaration. Held, on a demurrer to
4i special plea of the defendants, that the action
was maintainable, on the principle that a burden
had been unjustly thrown upon Pittstown by the
procurement of the overseers of the poor of Plan s-
bmvfaf and as the pauper had no legal settlement
in this State, it was their duty to exonerate the over-
Men of Pittstown from the burden which they had
cast upon them. But whether the plaintiffs and
•defendants could sue or be sued in their private ca-
pacity for their own official acts or those of their
predecessors. Quwre.
Citations— 11 Johns.. 167 : 13 Johns., 3HO ; 2 East,
504.
THIS was a special action on the case. The
declaration stated that on the 8th of Au-
gust, 1815, one Elijah Briggs, a pauper, hav-
insr no legal settlement in this State, and be-
ing destitute of property, and wholly unable
to support himself , was residing in Plattsburgh:
that Nichols and Palmer, two of the justices
of the peace of the County of Clinton, upon
complaint made to them by the defendant
Morse and one Burk. then overseers of the
town of Plattsburgh, that the pauper, not hav-
1. See Kingv. Baldwin & Fowler, 2 Johns, Ch., 654.
In Orrne v. Young, Holt's A". P., 84, Gibbs, Ch. </.,
says : "The defense which may be set up by a sure-
ty, of time given to the principal, is borrowed from
a court of equity ; there, if a day of payment be
£hrn tn the debtor, the surctii-s arc discharged. It
tin- cmiitahle right of sureties to come into a
court of equity and demand to sue in tin- name of
the creditor. Now, if the- creditor have given time
• to his debtor, the surety cannot sue him." And lir
adds: "What is forbearance and giving time ': It is
an engagement which ties the- hands of the cri-dit-
or. it is not negatively refraining : not exacting
the money at the time; but it is the act of the cred-
itor depriving himself of the power of suing by
something obligatory, which prevents the surety
from coming into a court of equity for relief; IH--
causc the principal having tied his own hands, the
-urc-ty cannot release tin-in." And *••• Hunt v.
United States, 1 Gall., 32. per Story. J.
JOHNS. RKP.. 15.
ing any legal settlement in that town, had
come to reside therein, and was likely to be-
come a charge to the town, did adjudge the
complaint to be true, and did likewise adjudge
that the lawful settlement of the pauper was in
the town of Pitt.stown, in the County of Rens-
salaer ; and made an order dated the 8th of
August, 1815, directed to any constable of the
town of Plattsburgh. reciting the complaint
and their adjudication thereon, and ordering
the removal of the pauper to the town of Peru.
thence to the town of Chesterfield, and in like
manner, by the nearest and most convenient
route, to the town of Pittstown, the constable
of which town was required to receive the pan
per, and to carry and deliver him to the over
seers of the poor of Pittxtown, who were re-
quired to receive the pauper, and provide for
him as an inhabitant of the town of Pittstown.
And the plaintiffs aver that from the dav of
the date of the said order unto the time of the
commencement of this suit, they have been
overseers of the poor of the town of Pittstown:
that by virtue of the before-mentioned order,
the said justices, the defendant Moore, and
the said Burk. on *the 26th of October, [*437
1815, caused the pauper to be removed to Pitts-
town, and delivered to the plaintiffs ; that the
plaintiffs received the pauper, and provided,
and have continued to provide for him food,
&c., from the time of their receiving him un-
til the commencement of this suit ; that believ-
ing themselves aggrieved by the order, they
appealed to the next Court of Sessions of the
County of Clinton, to be holden on the second
Tuesday of May, 1815. at Plattsburgh ; and
that such proceedings were had thereon, that,
at that May Term of the said court, the order
appealed from was ordered to be quashed, and
the defendants were ordered to pay to the
plaintiffs $25 costs, which order of the Court
of Sessions remains unreversed ; of all which
proceedings the defendants had notice ; and
that Briggs, from the time of his removal from
Plattsburgh until the time of the commence-
ment of this suit, has continued to l>e a pau-
per, having no legal settlement in this State ;
and wholly destitute of property and unable
to support himself. The plaintiffs further
averred that from the time of delivering the
pauper to them, and until the time of the com-
mencement of this suit, he was, and has con-
tinued to be so sick, lame and infirm that he
could not be removed from Pittstown to Platts-
burgh or elsewhere, without endangering his
life and exposing him to sudden death ; that
the defendants were overseers of the poor of
the town of Plattsburgh from the time of
quashing the order of removal until the time
of the commencement of this suit ; and al-
though the defendants, as overseers of Platts-
burgh, ought and were bound, within a rea-
sonable time after the determination of the ap-
peal, and quashing the order of removal, and
after they had notice thereof ; and although
it was their duty, as such overseers, within
such reasonable time, either to remove the
pauper from Pittstown or to take care of. re-
lieve and maintain him during his sickness and
lameness ; and although a reasonable time for
that purpose had elapsed ; and although the
defendants, on the first of June, 1816, and
often afterwards, were requested by the plaint-
1149
437
SUPREME COURT, STATE OF NEW YORK.
1818
iffs either to receive the pauper from Pitts-
town or to take care of, relieve and maintain
him during his sickness and lameness ; yet
that the defendants, not regarding their duty,
but craftily, subtly and fraudulently intend-
438*] ing" *to injure the plaintiffs, and com-
pel them to support the pauper, have refused,
and still do refuse to take care of, relieve and
maintain him ; by means whereof the plaint-
iffs have been unjustly, wrongfully and fraud-
ulently injured, and compelled and obliged to
pay a large sum of money, to wit : the sum of
$1*000. in and about the taking care of the
pauper and furnishing him with food, &c.,
and have been put to great trouble and ex-
pense in endeavoring to cure his sickness and
lameness.
The defendants severed in their pleas and
pleaded respectively : 1. Not guilty. 2. That
the pauper was born in Pittstown, and at the
time of his removal was legally settled in the
town of Hoosick, in the County of Rensselaer;
without this, that from the time of his remov-
al from Pittsburgh until the time of the com-
mencement of this suit, the said Briggs was a
pauper, having no legal settlement in this
State, and concluded to the country.
The plaintiffs demurred specially to the sec-
ond plea of the defendants, who joined in de-
murrer.
Mr. Mitchell, in support of the demurrer. 1.
The plea is a technical traverse, vtilh&nabsque
hoc. It is radically bad. It is double ; stating
two independent facts. (3 East, 346.) The
absquehoc, which is the strongest negative, can-
not be followed by a negative. It would
amount to an affirmative. (1 Inst., 126 a ; 1
Chitty's PI., 576.)
Again ; it contains new matter, and con-
cludes to the country, when it ought to con-
clude with a verification. (1 Saund., 103,
note; 1 Salk.,4; 1 Burr., 317 ; Doug., 91, 412;
2 Johns., 428.)
2. But it will be objected that the declaration
is bad. In the case of rl he Overseers of Tioga
v. The Overseers of Seneca, 13 Johns., 380, the
court seemed inclined to think that assumpxit
would not lie on the implied promise result-
ing from the legal or moral obligation on the
part of the town where the pauper was settled
tr> provide for and maintain him. But Mr.
Justice Spencer observed that whether an action
on the case could not be maintained by the
overseers of S. against the overseers of T. ,
would present a different question ; on which,
however, he gave no opinion.
4:39*] *By the Act (1 N. R. L., 279. 284)
it became the" peremptory duty of the town of
P., after the adjudication, to support the pau-
per. Here was a duty imposed by statute,
which has been neglected ; and the common
law gives a remedy by an action on the case.
In the case of the Farmers' Turnpike Co. v.
Coventry, 10 Johns., 389, it was held, that
though a penalty was given by the Act for
Injuring or Destroying the Toll Gates, yet the
plaintiffs had an action of trespass, at common
law, for the injury to their property.
Messrs. C'onc'kling and Foot, contra. 1. The
plea is substantially good. It is admitted that
the pauper had no settlement in this State.
What ground was there, then, for this action?
Even if there was a ground of action, the
1150
Statute has provided an adequate remedy.
We state a fact inconsistent with the aver-
ment in the declaration, and then negative
that fact with an absque hoc.
2. This is a special action on the case for a
nonfeasance ; and the plaintiffs must show the
non-performance of some duty imposed on the
defendants by law. The defendants were not
bound to remove the pauper back to Platts-
burgh. As to the sum awarded by the Ses-
sions for costs, prior to the adjudication, the
Statute provides a remedy. Can they main-
tain an action for expenses subsequent to the
order ? The defendants have done no more
than their duty. Admitting that the pauper
had his settlement in Pittstown, the defend-
ants ordered his removal to that town. ThiK
was not an illegal act, nor any violation of
duty. The duty of the overseers is to give no-
tice to the justices to inquire, who thereupon
make the order. If the order was improper
or illegal, it was not the act of the overseers ;
nor are they responsible for it. If this action
can be maintained, it may be brought against
the successors of the overseers at the time ;
but that will not be pretended. The case of
Atkins v. Barnwell, 2 East,. 505, which was
cited in the case of The Overseers of Tioga v.
Tne Overseers of Seneca, is in point, that this
action will not lie ; and it was a stronger case,
for it was brought against the town where the
pauper was settled. It is true that was an ac-
tion of assumpsit; *but the form of [*44O
the action can make no difference. The prin-
ciple is the same. The law recognizes no ob-
ligation to pay, and of course gives no action.
This suit was, probably, brought in conse-
quence of the observation thrown out by Mr.
Justice Spencer, in the case in 13 Johns., 383.
The 25th section of the Act provides a rem-
edy, and there is nothing shown which will
entitle the plaintiffs to a remedy at common
law.
Mr. Van Vechten, in reply, was stopped by
the court.
Per Our tarn. The plea was confessed to be
bad ; but the defendants insist that the dec-
laration is bad : that, therefore, is the point to
be considered.
In the case of The Overseers of the Poor of
Tioga v. The Overseers of Seneca, 13 Johns. ,
380, we held that assumpsit would not lie in a
case like the present, on the ground that it
did not appear that the pauper was settled in
the town from which he was removed. We
waived any decision on the question whether a
moral obligation was sufficient to sustain the
action, when there was no request to afford
maintenance to the pauper. In that case, too,
we forebore to express an opinion whether a
special action on the case could not be main-
tained for the expenses subsequent to the ad-
judication of the Sessions, provided it should
appear that the pauper had no legal settlement
within the State. This case presents that
question ; for, the plea being radically bad,
we are referred back to the declaration, and
that states the fact, by proper averments, that
the pauper had no settlement within the
State.
The plaintiffs' case, then, is this : a pau-
per has been illegally fixed upon them by the
JOHNS. REP., 15.-
1818
SHERMAN v. BOYCE.
440
agency and instrumentality of the overseers of
the poor of Plattsburgh ; the order removing
the pauper to Piltstown has been quashed;
and the overseers of Pittstown, inconsequence
of the neglect of duty of the overseers of the
poor of Plattsburgh, "in not removing the pau-
per, or providing for him, have been subjected
to heavy expenses in supporting the pauper.
Upon full consideration, we are of opinion
that this action is maintainable, on the princi-
ple that a burden has unjustly been thrown
441*] upon Pittstown, *by the procurement
of the overseers of the poor of Plattsburgh ;
that the pauper having no legal settlement in
this State, it was their duty to have exoner-
ated Pittstown from the burden they had cast
on them. Besides, it may be well doubted
whether Pittstown could make an original
order as to this pauper for his removal to any
other town ; but, at all events, they were not
bound to do so. Whether the plaintiffs can
sue, and whether the defendants ure liable, in
their private capacity, for their own official
acts, or the acts of their predecessors, has not
been made a question, and the court, there-
fore, have not considered the point. The ob-
jection will be open to the defendants, if they
see fit to make it ; at present we express no
opinion upon it. *
There must be judgment for the plaintiff on
the demurrer.
PLATT, J. I concur in opinion that the
special plea is defective ; but cannot agree
with my brethren that the plaintiffs are en-
titled to judgment ; because I think the dec-
laration does not show a right of action.
The declaration states, in substance, the fol-
lowing facts, viz. : that on the 1st of August,
1815, Elijah Briggs was removed, as a pauper,
from Plattsburgh to Pittstown, on an order of
two justices of Plattsburgh, adjudging him to
be legally settled in Pittstown. In May, 1816,
the General Sessions of Clinton County, on
appeal, quashed the order of removal, and
ordered the defendants, then being overseers
of the poor of Plattsburgh. to pay to the
plaintiffs, then overseers of Pittstown, $25 for
their expenses and costs.
The declaration further avers that the pau-
per had no legal settlement in this State ; and
has continued a chars*' UJMHI the town of Pitts-
town ever since he was so removed to that
town, being nick and unable to bear transpor-
tation ; that the defendants have continued to
be overseer* of the poor of Plaltsburgh ever
since '.he said order of the Sessions ; that they
had notice, and were requested by the plaint-
iffs to provide for the sick pauper; but that
the defendants have utterly neglected to pro-
vide for the pauper ; whereby great charge
and expense have fallen upon the plaintiffs, as
overseers of the poor of Pittstown.
442*] *The suit is not for the $25 awarded
by the Sessions, but for neglecting to provide
for the sick paujwr from the date of the order of
the Sessions till the commencement of this suit.
Although the order of removal from Platts-
burgh was erroneous, and has been regularly
quashed by the Sessions, yet it is admitted that
tin- pauper was not legally settled in Platu-
burgh : for the declaration expressly avers that
" he had no legal settlement in this State."
JOHNS. HEP., 15.
The moral obligation, in such a case, is
j upon the overseers of the poor of the town
1 where the sick pauper happens to be. It is
! the misfortune of Pittstown to have such a
! pauper thrown upon it ; but according to the
plaintiffs' own showing, it would be an equal
< hardship upon the town of Plattsburgh, he
I having no settlement in either of those towns.
If it be said that the pauper was impn-<-<l
upon the town of Pittstown by a wrongful
order of the justices of Platt«bufgh, I answer,
first, that the defendants, as overseers of the
poor of Plattsburgh. are innocent in regard to
that order, and in no wise responsible for the
mistake of the justices who made it; and, -rr-
I ond. that those justices had jurisdiction of iln-
I subject, and, for aught alleged, acted honestly
i in their official order of removal ; and, there-
i fore, all ulterior expenses, after the order of
I Sessions (reversing the order of the justices),
| nredtimnitw ab*que injtiria.
In the case of (Vow*- v. Mabbitt & Tripp. 11
I Johns., 167, on rerliorari, it appeared that
! Mabbitt and Tripp, as overseers of the poor of
j the town of Washington, sued Crouse, for
! " that he, without any lawful authority.
! brought into the town "of Washington one
j Wm. Brown, a pauper, having no settlement
| there or within this State ; that the pauper fell
sick, and was supported by them as overseers,
&c., until the death of the pauper; and that
the defendant well knew all those facts." The
justice gave judgment in favor of the over-
seers of the poor ; but this court reversed the
judgment, saying: "There is no principle of
the common law on which the action can be
maintained."
In the casejof Atkins, Ac., v. BarntoeU, d-e..,
2 East, 504, Le Blanc, Justify, said: "There is
a moral as well as legal Obligation to [*443
maintain the pauper, in his illness, in the
parish where he was at the time. "
Besides, I am not prepared to admit that
overseers of the poor, by our law, have the
capacity of suing or being sued, in their official
and representative character, except where
they are specially authorized by statute ; as in
the three cases expressly provided for, in the
30th, 27th and 81st sections of the "Act for the
Settlement and Relief of the Poor." It is an
attribute of a corporation, which, I incline to
believe, does not belong to the overseers of the
poor, upon any principle of the common law.
On the latter point, I do not here think it
necessary to say more. It was not touched on
in the argument; and although it is fairly pre-
sented upon the demurrer, it will still remain
open to the counsel for the defendants, if they
choose to have it more deliberately examined,
upon a motion in arrest of judgment.
Judgment for the plaintiff.
Overrulcd-«8 Johns., 418.
Cited in— 1 Cow.. 882 : 5 Cow., 3W ; 2 Paia-e. 415 ; 18
Itarb., 102 ; 48 Super., 20B.
SHERMAN t>. BOYCE.
Sheriff— Join* Defendant on Note to Satisfy
Judgment — Exerutwn i* Spent and Sheriff
Cannot After mtrrt* .Sp// under it to Reimbur»e
I/iimtflf — (bntrart al*o Illegal.
A deputy-sheriff, having a H. fa. In his hands,
itKives with the defendant in the execution to delay
1151
443
SUPREME COURT, STATE OF NEW YORK.
1818
the sale, and to join with the defendant in making' a
note, on which money should be raised, and applied
to the satisfaction of the Judgment; provided that
he should retain the execution in his nands, and if
he was called on for payment of the note, mis-tit
then proceed to sell for his own indemnity. The
note is, accordingly, made, the money raised and
paid over to the agent for the creditor's attorney, in
satisfaction of the judgment, the officer, at the time,
informing the agent that the execution was still to
be kept in life for his own indemnity. The officer, be-
ing- afterwards called upon for payment of the note,
sells the defendant's property under the execution.
Held that the payment to the judgment creditor,
not being: a conditional payment, was a satisfaction
of the judgment, and therefore the execution was
spent, and could not be used by the officer to enforce
his own agreement with the debtor, such agreement
alSi. being illegal and tending to oppression and
abuse; and that the defendant in the execution might
maintain an action of trespass against the officer for
the property taken and sold by him.
Citations— Noy, 107; 7 Johns., 42U.
was an action of trespass for taking
L three horses. The defendant pleaded not
guilty, with notice of justification under a writ
of feri facias. The cause was tried before Mr.
Justice Yates, at the Washington Circuit, in
June, 1817.
It was proved that the defendant, who was
a deputy-sheriff, took two of the plaintiff's
horses, and sold them, as he alleged, under an
execution against the plaintiff ; that he then
444*] *offered for sale, and sold the third
horse, and directed the purchaser to go the
plaintiff's pasture and take the horse, which
the purchaser did. The plaintiff, previous to
the sale, had forhidden the defendant to sell
the horses.
The plaintiff (due notice having been given
to the opposite party) introduced parol evidence
of a certain receipt, executed by Daniel Shep-
herd, as agent for Calvin Smith, attorney for
Jonathan Allen, the plaintiff in an action
against Christopher Sherman (the plaintiff in
this suit), in the Washington Common Pleas.
Shepherd testified that previous to the sale of
the horses, he received, as agent for C. Smith,
from the defendant in this suit, the amount of
the judgment, in the case of Allen against
Sherman, and paid the same over to Allen;
that at the time of giving the receipt, the de-
fendant told the witness that the money had
been borrowed by the plaintiff, on his signing
with the plaintiff as security; that he had signed
with the plaintiff on condition that he should
be allowed to keep the execution in life ; and
that if he was called on to pay the money, he
might then sell under the execution to indem-
nify himself; that for this reason the defendant
would not have the payment indorsed on the
execution ; and accordingly the witness gave
him a separate receipt.
The counsel for the defendant objected that
trespass would not lie for the hoi^e which the
defendant had not taken into his possession.
The judge decided that the action would lie ;
and the defendant's counsel then offered to
prove that the defendant, as deputy-sheriff, had
levied, under the fi. fa., in the suit of Allen
against the present plaintiff; and after the levy;
the plaintiff desired the defendant not to sell,
and that he could get the money; that the delay
was granted, and that the plaintiff informed
the defendant that he could get the money of
one Barney, if the defendant would sign with
1152
him ; this the defendant agreed to, on certain
terms proposed by the plaintiff; which were,
that the execution should still remain in the de-
fendant's hands, as his security, and that if
Barney should call on him for the money, the
defendant might then sell under the execution;
that the defendant, accordingly, signed with
the plaintiff a note to Barney, received the
money and paid it over to Shepherd, *at [*445
the same time informing Shepherd that the ex-
ecution was not intended to be discharged, and
taking his separate receipt for the money: and
that the defendant, before the sale, was called
on by Barney for payment.
This evidence, being objected to, was over-
ruled, and the defendant's counsel thereupon
submitted the following questions to His
Honor, the Judge; whether the payment of the
money to the judgment creditor precluded the
defendant from selling under the fi. fa. ; and
if so, whether the defendant had not, by virtue
of the agreement before mentioned, so far pos-
sessed himself of the plaintiff's property as to
be entitled to dispose of it, in his individual
capacity ; and whether the plaintiff could de-
prive him of that right by dissenting at the
time of the sale ; and whether trespass would
lie under the circumstances of this case. His
Honor ruled these points in favor of the plaint-
iff, and charged the jury accordingly, who
found a verdict for the plaintiff ; and the de-
fendant tendered a bill of exceptions to the
opinion of the judge.
Mr. Cowen, for the defendant. The justice
of the case is most strongly with the defendant.
We are aware of the decision of the court in
J Reed v. Pruyn & Stoats, 7 Johns., 426. Unless
there is an unbending rule of law which clearly
governs the present case, the plaintiff ought
not to recover. The case of Reed v. Pruyn &
Stoats came before the court on a motion to
set aside the execution; and the court laid stress
on the fraud and abuse practiced. There was
no agreement, as in the present case, between
the deputy-sheriff and the defendant, that the
execution should continue in force for the
deputy-sheriff's security.
Is a deputy absolutely prohibited from mak-
ing any agreement whatever, relative to the ex-
ecution? If not, then every case must depend
on its peculiar circumstances. (Kenner v. Hord,
|2H. &M., 14.)
Here was a pledge with an incidental power
of sale; and that power was irrevocable.
Again ; ought not the plaintiff to have ap-
plied^ to the court, on affidavit, to set aside the
execution, instead of biinging an action of
trespass? If the court, on motion, *had [*446
set aside the execution, they might have di-
rected the party not to bring an action of tres-
pass.
Mr. Z. R. Sliepherd, contra, relied • on the
case of Reed v. Pruyn & Stoats, as conclusive,
and contended that such an agreement between
the deputy-sheriff and the defendant, in the ex-
ecution, was a breach of duty, and a violation
of the Statute.
Mr. Skinner, in reply, attempted to distin-
guish this case from that Reed v. Pruyn d-
Stoats, and contended that even if an action
would lie against the defendant, it should be
trover, not trespass, as the property came into
his possession rightfully, not tortiously.
JOHNS. REP., 15-
18J8
JACKSON, EX DEM., v. HATHAWAY.
446
PLATT. ./., delivered the opinion of the
«ourt:
Although the deputy-sheriff declared, when
he paid the amount due to the creditor, "that
the execution was not intended to be satisfied,"
that declaration could not affect the right of
the creditor to retain the money so paid him,
in satisfaction of his claim upon the execution.
It was not a conditional payment, nor advance
of money by the deputy -sheriff to the creditor.
The fair construction of that conversation
is, that the deputy meant to express his deter-
mination not to waive the rights which he had
acquired, under the agreement with the plaint-
iff in this suit, of using the^i.^a. for his protec-
tion as indorser. The creditor received his
money, and gave a receipt for it to the officer,
without any stipulation or condition. The debt
must, therefore, be deemed satisfied as to the
judgment creditor; and that fact being estab-
lished,the law. founded on wise policy, considers
the officer aafu/ictim officto. The direct and sole
object of the ft. fa. was to raise the money to
satisfy the judgment creditor; that object being
attained, the power conferred by the writ is
s|)ent; and the officer is not permitted to use it
for enforcing any bargains in which he may
think himself aggrieved.
In the case of Weller v. Weedale, Noy, 107,
it was decided that if a sheriff satisfy thu debt
out of his own money, he cannot afterwards
447*] detain the goods of the debtor on.fi.*fa.
for his own indemnity. The same doctrine
was established in this court in Reed v. Pruyn
<b£ttaat*, 7 Johns., 426.
To allow any man to wield the process of
our courts in his own favor, in order to exact
such a measure of justice as he may think due
to himself, would not only lead to-oppression
and abuse, but would tend to subvert the
foundation of private rights and of civil lib
^rty.
The deputy-sheriff, in this case, probably
-acted from benevolent motives : but the agree-
ment must be pronounced illegal. It was well
remarked by Ch. J. Kent, in the case of Reed
v. Pruyn & Stoats, that " such humanity is
imposing ; but it may be turned into cruelty."
VVe are clearly of opinion that the evidence
offered by the defendant was properly ex-
cluded, and that an action of trespass is a
proper remedy in this case.
Judgment for the plaintiff , on thebiU of excep-
tions.
Cited in-t Cow., 341, 640; 4 Wend., 481 : 8 Wend.,
«81 ; 15 Wend.. 323 : 2 Hill. 567 : 5 Hill, 567 ; 11 N. Y.,
«7; 49 5L Y., 558; 12 Barb., 134; 8 How. Pr.. 110; 48
How. Fr.. 5*); 6 Daly. 48; 2 Sawy.. 5«0; 48 Ind., 412;
:;» Ohio St.. 97 ; 47 Mo., 361.
JACK8ON. ex dera. YATES ET AL.,
HATHAWAY.
Highway* — Over Private Property — Public has
Eatetnent only — Fee in Original Owner — Con-
veyance of Land on Both Sides of, d»e* not In-
cltide Land thus Occupied — Discontinuance of
Old /load — New Hood over (Contiguous Land
—Statute.
When a highway is laid out over the land of a
private person, the public acquire* no more than a
JOHNB. RBP., 15. N. Y. R., 5.
right of way. or easement, and the title of the orig-
inal proprietor still continues ; be may use the land
in any manner not inconsistent with the public
right ; is entitled to all mines, Ac., and may main-
tain trespass or ejectment in relation to it.
If a person over whose land a highway is laid out,
convey the land on each side of it, describing it by
such boundaries as do not include the road, or any
part of it, the property in the road does not pass to
the grantee, as it is excluded by the description in
the grunt : and it cannot pass as an incident, being
in ir --It -i distinct parcel of land; and the fee of one
piece of land not mentioned in a deed, cannot pass
as appurtenant to another.
When an old road, the fee of which is in one per-
son, is discontinued, and a new road laid out over
the land of another person, which land is contigu-
ous to the old road, the proprietor of the land is not
••iititled to the old road, as a compensation for the
land taken for the new road, under the 17th section
of the Act to Regulate Highway* (seas. 3tt, ch. 33; 2
N. R. L., 275). which only applies where another
road is substituted over the land of the same pro-
prietor.
Citationa-1 Burr., 143 ; 2 Str.. 1004 : 1 Wils.. 107 :
6 East, 154 : 2 Johns., 383 ; 6 Mass.. 454 ; 2 N R L.
275, sec. 17.
THIS was an action of ejectment, brought to
recover a lot of land in the City of Hud-
son. The cause was tried before Mr. Justice
Platt, at the Columbia Circuit, in September
1817.
By letters patent dated the 4th of March,
1667, a certain parcel of land, including the
premises in question, was *granted to [*448
Jan Franse Van Hoesen. The land came, in
the course of descent, to Johannes Van Hoesen,
who died in 1780. having made a will, one of
the devisees under which is John V. H. Huyck,
one of the lessors of the plaintiffs. It was ad-
mitted that the premises in question had al-
ways been held under title derived from the
original patentee. A witness on the part of
the plaintiff testified that the defendant was in
possession of a lot of land of about five acres,
in the City of Hudson ; that the old Cfever-
ack road runs through the lot, and that the
road had been inclosed by the defendant with-
in sixteen years, and since the year 1801. The
defendant produced in evidence deeds for the
land lying on each side of the old Claverack
road; and it was admitted that, with the excep-
tion of the road, the defendant had, under these
deeds, a good title to all the land in his pos-
session. One of the deeds was from J. V. H
Huyck, dated 25th of July. 1798.
By an order of the Common Council of the
City of Hudson, dated the 23d of April, 1801,
it was resolved that a certain street should be
laid out, provided that the defendant Hath-
away should cede to the Corporation all the
lands which should be taken from him by
laying out the street, in which case the Com-
mon Council would cede to him, in exchange
therefor, the old road before mentioned.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court, whether the
plaintiff was entitled to recover the old road.
Mr. Cantine, for the plaintiff. The free-
holder or fee of a highway belong to the orig-
inal owner of the soil, and he may maintain
trespass or ejectment for it. The public have
not the right of passage, or use of the land for
a highway, which is an easement or servitude
(Cortelyou v. Van Brandt, 2 Johns., 857, 363 ;
iMde v. Shepherd, 2 Sir., 1004; Mayor of
Northampton v. Ward, \ Wils., 107; 2 Str.,
125« ; S. C., 1 Roll. Abr., 892 ; Chemin. Pri.
73 II.-,;;
448
SUPREME COURT, STATE OP NEW YORK.
1818-
vate. B, 6, 1, 2, 3, 4, 5; 8 E. IV., 9; 8 H. VII.,
5, 6 ; Brook's Abr., Chemiu, 9, 10 ; 1 Burr.,
143; Brook's Abr., Nuisance, pi. 28 ; 8 H.
VII., 5 ; 3 Com. Dig., 27, 28, Chemin, A,
2; 3 Bac. Abr., 494, Highway, B; 4 Vin.
44i>*] *Abr., 515, Chemin, B; Fitzherb. Abr ,
Chemin. pi. 1 ; Fitzh. Trespass, pi. 92 ; 2
Inst., 705 ; Wood's Inst., 28.) In the case of
Perley v. Chandler, before the Supreme Court
of Massachusetts, the same doctrine was ex-
pressly laid down by Ch. J. Parsons, who de-
livered the opinion of the court. (6 Mass.,
454.)
Again ; a grant of land to a road, does not
inc lude the half or any part of the road. The
rule as to rivers does not apply.
Mr. E. William*, contra. The court will not
be disposed, in this case, to intend anything
in favor of the plaintiff, unless compelled by
some stubborn and inflexible rule of law. By
the 44th section of the Act to Regulate High-
ways (2 N. R. L., 284), Hudson is declared to
be a town for all purposes intended by the
Act, except that the Mayor, Aldermen and
Commonalty of the City are commissioners of
highways. The Common Council being ex
offlcw commissioners of highways, had power
to shut up the old road. By the 17th section
of the same Act (2 N. R. L., 275), it is enacted
" that where any road shall run through the
lands of any person, or along the boundaries
thereof, in whole or in part, and the same
shall become unnecessary, or be discontinued,
by reason of some other road to be established
and laid out, by virtue of this Act, through
the lands of the same person, the jurors or
commissioners making the assessment shall
take into calculation the value of such road,
so discontinued, or become unnecessary, and
the benefit resulting to such person by reason
of such discontinuance, and make deduction
from the amount of such assessment accord-
ingly ; and the balance, and no more, shall be
the sum to be assessed and paid for the open-
ing and laying out such new road ; and there-
upon it shall be lawful for the owner of the
land to inclose so much of the road so discon-
tinued, or become unnecessary, as shall run
through his land along the boundaries there-
of.'' This Act gives to the person ceding a
new road a right to shut up or inclose and en-
joy the old road through or along his land. If
an actual conveyance or deed of cession, to
the Common Council from the defendant, was
necessary, the court, after this lapse of time,
45O*] *will intend that there was such a con-
veyance. But we contend that it was not
necessary. The law will imply the cession.
The owners of land bounded on roads, riv-
ers and creeks, are bounded on lines, and own
to the middle of the line or road or creek. In
Jackson, ex dem. The Trustees of Kingston, v.
Louw, 12 Johns., 252, one of the boundaries
in the plaintiff's deed was "to a white oak
tree marked, standing near the said kill, then
up the said kill north," &c. Mr. Justice Yates,
in delivering the opinion of the court, says :
" This description or boundary never can be
satisfied by running a direct or straight line;
the terms 'up the same' necessarity imply that
it is to follow the creek, according to its wind-
ings and turnings, and that must be in the
middle or center of it. The rule is well settled
1154
that when a creek not navigable, and which is
beyond the ebb and flow of the tide, forms a
boundary, the line must be so run." The court
looked to the intention of the grantor.
The deed from H. to the defendant conveys
all right, title, &c., reversion and reversions,
remainder and remainders, and with the her-
editaments and appurtenances, &c., to the
premises belonging or appertaining. This is
sufficient to comprehend the old road, in case
a new one should be opened, and the old one
be discontinued. Many things pass by a deed
not specified in it, but which are necessary to
the perfect enjoyment of the premises granted.
It can never be supposed that the grantor
meant to reserve a right to this old road. The
law will intend that it was included in the
grant of the land through which it run. The
lessors entered under the devisees of the pat-
entee, and when they sold the farm the right
to the road also passed. In the ever varying
circumstances of this country, how many old
roads have fallen into neglect and disuse as
new and better roads have been opened I
What a floodgate of litigation will be opened
should it be decided that these old roads do
not belong to the owners of the adjoining-
lands ! New cities and towns are every day
rising, and populous streets cover the ancient,
roads and ways laid out on the first location
of patents. In the case cited from Massachu-
setts, Ch. J. Parsons observed that there was a
defect *in the case, that it was not al- 1*4£>1
leged that C. was seised of the land covered
by the highway ; nor that the water course
was sunk in this land ; nor that the way had
been previously laid out. Besides, there is no-
such Statute in Massachusetts as that of this
State relative to highways.
Mr. Oakley, in reply, contended that the de-
scription and boundaries in the defendant's
deed did, in their very terms, exclude the
road. Can the defendant, by implication, or
by the construction of the Statute, acquire a
title to land which is, confessedly, in the les-
sor of the plaintiff or the persons under whom
he claims ! If the Act does bear such a con-
struction ; if it takes the land of the lessor, and
gives it to H. without his consent, or a just
compensation for it — then the Statute is, so
far, unconstitutional and void. But the Act
admits of a just and reasonable interpretation,,
without involving such a consequence. It ap-
plies to those cases only where the owners of
the land adjoining the highway are, also, own-
ers of the land over which the road passes. It
could never have been intended by the Legis-
lature, that when the fee of the road*was in
one person, he should be devested of it, and
the property transferred to another by (He mere
operation of the Act. Suppose a conveyance
of land made since the passing of that Act, in
which a road running through the land con-
veyed is excepted, in express terms, and that
road is afterwards discontinued and shut up,
would the old road then pass to the owners of
the adjoining lands by virtue of the Statute ?
The terms "running along" the road do not
mean that the road runs "through" the land.
Where land is conveyed with covenants for
quiet enjoyment, against incumbrances, &c.,
the existence of a road or right ot way over
it would be a breach of the covenant. Thus,
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. HATHAWAY.
451
if the deed bounds the premises by or along a
road, it would, according to the argument of
the defendant's counsel, include the road, the
existence of which would be a breach of the
covenant.
The csse of Tlu Trustee* of Kingston v. Loutc
is very different from the present. Cannot a
deed "contain words which will exclude a
creek at which the boundaries begin ? No
words of exclusion can lie stronger than those
452*] in the defendant's *deed. The subject
of the conveyance is the land within the pre-
cise metes and bounds given, and nothing else.
The law may, in a supposed case, give a right
of way as appurtenant to the land granted, De-
cause essential to its enjoyment ; but it does
not give the land over which the right of way
passes as an appurtenant: The usual sweeping
clause in the deed, of all right, title, interest,
reversion, &c., though they may include ease-
ments or privileges, as appurtenant, do not
convey any other land than what is before par-
ticularly described.
The novelty of the case, or its consequences,
as they mav affect others, can furnish no ar-
gument against the plaintiff's right to recover,
if he has shown a legal title to the laud for
which the suit is brought.
PLATT, J., delivered the opinion of the
court :
This is an action of ejectment for a piece of
land in the City of Hudson, over which the
ancient road from Claverack to Hudson River
formerly run.
The plaintiff showed a title in his lessor,
John V. H. Huyck, to an undivided share of
the premises in question, under the patent to
his ancestor, Jan Francis Van Hoesen, dated
the 6th August. 1721. The defendant then
proved a deed of conveyance from John V. H.
Huyck to Ephraim \Vhitaker, dated 25ih of
July, 1793, for "a certain tract of land begin-
ning at a certain stake by the side of the road
called the old Claverack road, &c., from
which stake running east twenty degrees
south, two chains, to another stake ; thence
south twenty-two degrees west, seventeen
chains sixty -four links ; a.nd thence," by spec-
ified courses and distances "to the first-men-
tioned bounds, making twelve acres, two
roods and ten perches of land." It was also
proved that the defendant had acquired a
title, by purchase, to another tract of laud,
which, according to specified courses and
distances, is bounded on the northern side of
the said road.
It appears, that about sixteen years ago, by
an order of the Common Council of the City
of Hudson, the "old Claverack road" was dis-
continued as a public highway ; and that the
defendant then inclosed a lot of about five
acres, so as to include the Whole width of the
45JJ*] old road, together with *a purl of each
of the several tracts before described ; the one
lying on the north, ami the other on the south
side of said road. The plaintiff admits the
defendant's title to all the bind contained in the
five acre lot, excepting the space formerly oc-
cupied as tin: old n*:id.
It is perfectly clear that the fee of the land
was not devested from the patentee, or his
heirs, by the act of the government in laying
JOHNS. Ui.r. 15.
out and opening the road. Highways are re-
garded in our law as easements. Tiie public
acquire no more than the right of way, with
the powers and privileges incident to that
right — such as digging the soil and using the
timber and other materials found within the
space of the road, in a reasonable manner, for
the purpose of making and repairing the road
and its bridges. When the sovereign imposes
a public right of way upon the land of an in-
dividual, the title of the former owner is not
extinguished, but is so qualified that it can be
enjoyed, subject to that easement. The form-
er proprietor still retains his exclusive right in
all mines, quarries, springs of water, limber
and earth, for every purpose not incompatible
with the public right of way. The person in
whom the fee of the road'is, may maintain
trespass or ejectment or waste. (Burr., 143-
2 Str., 1004; 1 Wil., 107; 6 East, 154 ; 2
Johns., 363 ; 6 Mass., 454.) But when the sov-
ereign chooses to discontinue or abandon the
right of way, the entire and exclusive enjoy-
ment reverts to the proprietor of the soil.
In this case, there is nothing in the deeds
for the lots bounded on the sides of the old
road which deqotes any intention to buy or
sell any land not expressly included within the
courses and distances expressly defined ; and
it is conceded that those limits do not include
the space occupied by the old road. A con-
tingency has happened, which, probably, was
not thought of by the grantor or grantee in
those deeds ; that is, the discontinuance of
the road. The grantee, however, has all the
land included in the terms of his purchase ;
but he has lost, by the act of the government,
the privilege of a highway adjoining his lots,
and running between them. The laying out
of roads and their discontinuance, are con-
tingencies to which every man's land is
•liable, and by which its value may [*454
I be essentially affected ; and every sale of land,
by definite boundaries, is subject to those cas-
ualties.
In the present case, I can perceive no prin-
cipleof law to defeat the plaintiff's claim to the
land over which the old road passed. The
government laid a quasi incumbrancc on his
land, and the government has since removed
that incumbrance. Even while the road con-
tinued, the owner of the soil might have main
tained an action of ejectment for an exclu-m-
appropriation of it: a fortiori, he can do so,
after the public right of way is abandoned,
unless by his own act he has become devested
of his title. The only acts imputed to the
plaintiff, or those under whom he claims, are
the two deeds for the parcel* of land bounded
on the north side and on the south side of the
old road. The boundaries in those deeds do
not include the space of the road; and of
course, the plaintiff's title to the intervening
ground remains as |>erfect as if no road had
ever been there. The purchasers under those
deeds have lost an easement, which was public,
not private: but they have, exclusive of the
old road, all the land which they bargained
for.
There arc many cases of loose, vague and
general description in deeds, which, undoubt-
edly, may require a different construction, and
be subject to a different rule. Where a farm
llti
454
SUPREME COURT, STATE OP NEW YORK.
1818
is bounded along a highway, or upon a high-
way, or running to a highway, there is reason
to intend that the parties meant the middle of
the highway; but in this case the terms of de-
scription necessarily exclude the highway.
The owner of the soil incumbered with a road,
has a perfect right to sell it, subject to that in-
cumbrance; and whoever buys laud, without
securing the fee of the adjoining roads, incurs
the risk of such omission. That the original
owner has also a right to retain his estate in
the road, when he sells the adjacent lands,
is a proposition too plain to be denied.
It is impossible to protect the defendant, on
the ground that the adjoining road passed by
the deeds, as an incident to the lands profess-
edly granted. A mere easement may, without
express words, pass as an incident to the prin-
cipal object of the grant; but it would be ab-
surd to allow the fee of one piece of land, not
455*] mentioned in that deed, to pass as Ap-
purtenant to another distinct parcel, which is
expressly granted, by precise and definite
boundaries. The defendant can derive no aid
from the 17th section of the "Act to Regulate
Highways " (2 N. R. L., 275.) The sole ob-
ject of that provision was to. establish a rule
of compensation where an old road is discon-
tinued, and a new one substituted, over the
land of the same proprietor; and it would be
highly disrespectful to suppose that the Leg-
islature meant to take away the land of one
man, and give it to another. Such an act
would be an outrage against justice and the
Constitution. Still less, reason is there for ad-
mitting the principle that the Common Coun-
cil of Hudsou could, by any act, devest the
plaintiff of the fee of the old road, without his
consent.
We are, therefore, of opinion that the
plaintiff is entitled to judgment.
Judgment for the plaintiff.
Right of public in Highways. Distinguished— 50
NCited in-1 Cow., 240; 1 Wend., 270; 3 Wend., 147;
8 Wend., 107; 11 Wend., 502; 22 Wend., 435; 23 Wend.,
449; 3 Hill, 569; Hill & D.. 310; 31 N. Y., 156; 53 N. Y..
4«- 62 N. Y., 388; 64 N. Y., 71; 68 N. Y., 11; 1 Trans.
App , 137; 5 Lans., 201; 27 Hun, 5; 7 Barb.. 302; 11
Barb., 31, 452; 15 Barb., 357; 16 Barb., Ill; 20 Barb.. 34;
25 Barb., 58; 1 T. & C., 544; 3 T. & C., 287; 33 How Pr.,
44 47- 37 Super., 190; 2 Hilt., 363; 5 Mason, 198; 8 Allen,
476; 125 Mass., 222; 23 Minn., 191; 53 Pa. St., 263; 50
Mo., 499.
Land does not pass as appurtenant to land. Cited
in_20 Wend., 163; 4 Hill. 373; 61 N. Y., 390; 62 N. Y.,
531; 2 Keys, 672; 1 Abb. App. Dec., 262; 49 Barb..
505; 3 Sand., 340; 6 Peters, 739; 10 Peters, 54; 18 How.
Conveyance of land, bounding it on highway. Cited
in-23 N Y.,64; 68N. Y.,253: 7 Hun, 243; 15 Hun, 399;
27 Hun 444; 11 Barb., 393; 14 Barb., 220; 16 Barb., 163;
34 Barb., 500, 519, 533; 36 Barb., 155; 42 Barb., 468; 22
How. Pr., 115, 134,fl6; l_Sand^348; 2 Sand., 237; 4
HOW. Jrr., 11D| JOt, 510; j. otuiu., o
Rob., 37; 5 Rob., 205; 20 Wis., 432.
KELLOGG AND REED 0. WILDER.
Juror* — Treating.
A justice of the peace, has no right, during a trial
before him, to permit the parties to treat the jury
with spirituous liquor.
Citations— 13 Johns., 529; 1 N. R. L., 423.
N ERROR, on certwrari to a justice's court.
1
The defendant in error brought an action
of trespass, in the court below, against the
1156
plaintiffs in error, for taking his cow. The
facts proved at the trial are altogether unim-
portant; it is sufficient to state that the plaint-
iff below showed a bare possession, without
any property in the cow; and that the defend-
ant, Kellogg, proved a property in himself;
"'the other defendant acting as his as- [*45O
sistant in driving away the cow.
After the evidence on the trial in the court
below had closed, each of the parties, by per-
mission of the justice, treated the jury with a
bottle of whisky, in order, as the return states,
"to enable them to listen to the remarks of
counsel." A verdict and judgment were ren-
dered for the plaintiff below.
Per Curiam. Independent of the gross mis-
conduct of the justice, in permitting such an
improper use of spirituous liquor at the trial,
for which the consent of parties affords no
excuse, the verdict was decidedly wrong upon
the evidence.
Judgment reversed.
Cited in— 1 Cow., 112; 1 Hill, 209.
BURK ». CAMPBELL.
Sheriff— Liable for Failure to Return Execution.
An action on the case will lie against a sheriff for
not returning an execution, or the party may pro-
ceed by attachment, at his election.
In an action on the case against a sheriff for not
levying and returning a writ of fieri facias, a plea
that the sheriff had never been ruled to return the
writ is bad, for the sheriff is bound to return a writ
without being ruled, and he cannot avail himself of
his own neglect of duty to defeat the plaintiff's ac-
tion.
IN ERROR, to the Court of Common Pleas
of the County of Franklin.
This was an action of trespass oh the case,
brought in the court below, by the plaintiff
in error, against the defendant in error, who
was sheriff of the County of Franklin, for not
executing or returning a writ of fieri facias.
The declaration stated, that in the Term of
October, 1815, of the court below, the plaintiff
obtained a judgment against one Whipple, for
$55.25; that on the 10th of December, in the
same year, he issued &fi.fa. to the defendant,
returnable on the 28th of January then next,
which was delivered to the defendant to be ex-
ecuted; and although there were goods and
chattels, and lands and tenements, on which
the defendant might have levied, yet he did
not levy, nor did he ever return the writ.
The defendant pleaded that before the com-
mencement of this suit, he was not required
by any rule of the said Court of Common
Pleas to return the writ, before the judges
and *assistant justices thereof, accord- [*457
ing to the course and practice of the said
court.
To this plea there was a general demurrer;
the defendant joined in demurrer, and the
court below gave judgment for the defend-
NOTE.— Officers— Ministerial and inferior— Person-
al liability of. See Henderson v. Brown, 1 Cai., 92,
note; Seaman v. Patten, 2 Cai., 312, note; Walls-
worth v. M'Cullough, 10 Johns., 93, note : Warner v.
Shed, 16 Johns., 138, note; Yates v. Lansing, 9
Johns., 395, note.
JOHNS. REP., 15.
1818
STOW v. TIKFT.
457
ant. The cause was submitted without argu-
ment.
THOMPSON, Ch. J., delivered the opinion of
the court :
This case comes before the court on a writ
of error to the Common Pleas of Franklin
County. It was a special action on the case,
against the defendant, as sheriff, for neglect- j
ing to levy and collect the amount of a certain '
fieri facuii, issued out of the said Court of >
Common Pleas, in favor of the plaintiff, j
against Nathaniel Whipple, according to the |
directions and exigency of the writ. The only !
plea interposed by the defendant was, that he
had not been required, by any rule of court,
to return the said writ, according to the course
and practice of the court. To this plea there
was a general demurrer, upon which the court
gave judgment for the defendant.
The judgment was erroneous. There can
be no doubt that an action will lie against a
sheriff for neglect of dut v in not returning an
execution delivered to him. The declaration
in the court below set forth, with all necessary i
certainty, the judgment and execution; the de-
livery of the same to the sheriff, before the
return day; and that the defendant in the ex-
ecution had sufficient goods and chattels,
lands and tenements, within the county, j
whereof the money, required by the execution
to be raised, might have been levied and col-
lected, but which the defendant neglected and
refused to do. It is no answer for the sheriff
to allege that he had not been ruled to return
the execution. This he was bound to do,
without being ruled. The plaintiff had his i
election to proceed either way; and the sheriff j
cannot avail himself of his own neglect of ,
duty to defeat the plaintiff's action. This is a :
principle fully recognized by this court in Hin- '
man v. Brees*., 13 Johns., 529. Our Statute i
Concerning Sheriffs recognizes such an action I
against the officer. It declares that if any
sheriff, or other officer, shall not make due
return to any writ delivered to him to be
4*>8*] executed, he shall not only be *liable
to attachment, or amercement, but also to an
action on the case, for damages, at the suit of
the party aggrieved. (1 N. R. L., 423.) The
judgment of the court below must be re-
versed.
Judgment reversed.
Cited in-1 Wend., 538; 3 Hill, 554: 4., Barb., 500; 3
Abb. Pr., 83; 1 Hilt., 200; 4« Super.. 349.
So, where land is conveyed to the husband dur-
ing coverture, who, at the same time, executes a
mortgage to the grantor, to secure the considera-
tion money, the seisin of the land is but for an iu-
stant in the grantee, and is immediately revested in
the grantor, and consequently, the widow of tlir
grantee cannot claim her dower in the premises.
Where two instruments relating to the same sub-
ject are executed at the same time, they are to be
taken in connection, us forming parts of the same
agreement; as where a conveyance of land and a
il<-«-<| to si-cure the purchase money are executed at
the same time ; the effect of which transaction is,
that if the price of the land shall not be paid at the
stipulated time, the grantor shall be rcselscd of the
lan.d, free of the mortgage ; and whether such an
iiKTifincnt beoootelned in one and the wine instru-
POLLY STOW, Widow of TIMOTHY STOW.
TIFFT.
— 8ei*in — G>nvtvanct — Husband with
Citations-Cro. Jac.. 815; 1 Co.. 77; Cro.. Car. 190 :
1 Johns. CHS.. !«; 4 Mass.. MS. MB; S W. Bl.. 131 ; 6
Johns., 249: 2 Bac. Abr., 371, mrfe; Prest. EsU, tit.
Dower ; Sess. 28, ch. 99 ; Co. Litt., 81 b.
THIS was an action of dower, brought to
recover dower in two lots in Douglas
patent, in the town of Bolton, in the County
of Warren. . The tenant pleaded ne unquts
geisie que d/neer, and ne iinqnet accoupU in loynl
matrimonie. The cause was tried before Mr.
Justice Yates, at the Warren Circuit, in June.
1817.
The marriage of the demandant, and the
death of her husband, in December, 1804,
were proved. Timothy Stow, the husband of'
the demandant, purchased the premises in
question during the coverture, and paid part
of the consideration money; and to secure
the payment of the residue, executed, at the
time of receiving the conveyance, a mortgage
of the same premises to the grantor ; after his
death, the laud was sold under a power con-
tained in the mortgage, and was purchased
by a person from whom the tenant derived
his title.
A verdict was found for the demandant,
subject to the opinion of the court on a case
containing the above facts.
Mr. Wenton, for the plaintiff, contended that
the demandant was entitled.to her dower, not-
withstanding the mortgage by -her husband,
and the sale under it. The Act (sess. 10 ch.
4, sec. 1. N. R. L.) says that the widow shall
have assigned *to her, for her dower, 1*45 J)
the third part of the lands of her husband which
were his at any timeduringthe coverture. If the
land abides in the husband for I he interval of but
a single moment, the wife will be entitled to
her dower. (2 Bl. Com.. 132.) The husband,
in this case, purchased the laud, and paid part
of the consideration money, and received an
absolute conveyance in fee ; and to secure the
remainder of 'the purchase money, he mort-
gaged the same land, on the same day, to the
grantor. There was a moment of time in
which the land was in him, though he imme-
afjer conveyed it to the mortgagee. It
I'.trl* oj
closure — Doieer not AUoiced.
Where the seisin of the husband is instantaneous,
or passes from him to inxtantl that he acquired it,
hi» widow is not entitled to dower.
for his own use. (2 Bac. Abr., 871, Gwillim s
ed., Dower, C, 2, in iwte* ; Preston on Estates,
tit. Dower.) The defendant cannot object to
the seisin of the husband, the mortgagor, as
NOTB.— Dower— Momentary neisin in hudband—
Tim <>r more Instrument* ntnitrwd together.
\\~hrrttht. l«i!<tniit<i'.- !t>-i*iii is but momc-'tary the
right to dower does not attach. Where be gives a
mortgage for the purchase money at the time of
the conveyance to himself, dower does not at(a<-h
as against the grantor, or his assigns. Kittle v.
JOHNS. REP., 15.
Van Dyck. 1 Sand. Cb.,76: Cunningham v. Knight,
1 Rirl.". :?.».»: Holbrook v. Finney.4 Mass.. 508 ; King
v. stctaon, II Allen, 408: Pendleton v. Pomeroy, 4
Allen, 510 : dark v. Munroe, 14 Mass., 351 ; Smith v.
Stmilcy, 37 Me.. 11: Moore v. Rollins, 45 Me.. 498;
(tamnioii v. Freeman. 41 Me., 343: Reed v. Morrison,
K ST*. & R., IK; Sully v. Ray, 18 B. Mon., 107; Oill-
1157
459
SUPREME COURT, STATE OP NEW YORK.
1818
he claims title under him. (Taylor's case,
cited in Sir Wm. Jones, 317; 2 Bac. Abr.,
371, note.)
Mr. Cowen, contra. This very question was
raised in the case of Hitchcock v. Harrington,
6 Johns., 290, but the court did not think it
necessary to discuss or decide it. Dower is a
legal claim or title, and can exist only
where there is a legal seisin or estate. The
seisin of the husband, in this case, being in-
stantaneous, no right of dower vested in the
wife. Coke says a wife shall not be endowed
of a seisin for an instant. (Co. Litt., 3l b.)
As if a tenant for life makes a feoffment in
fee and dies, the wife shall not be endowed.
(Ib., n. 3.) So, in Amcottsv. Catherick, Cro.
James, 615, where a husband, seised jointly
with his wife in special tail, makes a feoff-
ment after her death, to himself for life, re-
mainder to his son in tail, but before livery
to these uses, marries a second wife, and after
livery dies, the second wife was held not to be
entitled to dower ; for the husband gained no
estate, it being eo instanti drawn out of him.
The same principle is recognized in Lord
Cromwell's case, 2 Co., 77 ; there B. covenanted
to suffer a recovery and levy a fine to the
use of A. , and a fine was levied to R. Perkins,
and his heirs, who granted and rendered a
rent, &c., to B. in tail, with remainder in fee,
&c., and granted and rendered to A., in fee,
with proclamations, &c. ; it was held that the
46O*] *seisin of Perkins being but for an in-
stant, and only to the purpose to make the
render, his wife should not be endowed, nor
the land subject to his recognizances or stat-
utes. The same point was adjudged in Dixon
v. Harrison, Vaugh., 41. Blackstone, also,
lays down the same doctrine. The seisin of
the husband, for a transitory instant only,
when the same act which gives him the estate
conveys it, also, out of him again ; as where,
by a fine, land is granted to a man, and he im-
mediately renders it back by the same fine,
such a seisin will not entitle the wife to dower.
(2 Bl. Com., 131.) It is like a feoffment and
defeasance, at common law, which is deemed
but one conveyance (2 Bl. Com., 327 ; Co.
Litt., 238 b.) A wife could not be endowed
of an use at common law ; nor can the wife
of a cestui que trust be endowed. (Claiborne v.
Henderson, 3 Hen. & Mun., 323 ; 2 Bac. Abr.,
361, Gwillim's ed., Dower, B, 2 ; 3 P. Wms.,
339.)
By the Act Relative to Mortgages, passed
the 9th of April, 1805, which is a declaratory
Act, whenever lands are sold and conveyed,
and a mortgage is given by the purchaser at
the same time, to secure the purchase money,
such mortgage is preferred to any previous
judgment which may have been obtained
against such purchaser. This shows that the
Legislature considered such to be the rule of
the common law, though some doubts had
been raised concerning it, which the Statute
intended to remove. The Act confirms and
supports the principle laid down in the cases
already cited, that the seisin being instantane-
ous in the husband, it is not subject to dower,
or judgments and recognizances.
This very question came before the Supreme
Court of Massachusetts, in the case of Hoi-
brook v. Finney, 4 Mass. , 566, in which the
late Ch. J. Parsons delivered the opinion of
the court, that the deed and the mortgage
back to secure the purchase money, were to
be considered as parts of one and the same
contract, and as taking effect at the same
instant, and therefore the wife of the mort-
gagor could not be endowed.
Mr, Wetston, in reply, said that the cases cited
from the English books were those in which the
husband takes the estate for some particular
purpose or use, not for his own benefit ; but
*is the mere instrument of passing the [*4C>1
estate. The case in Wales, mentioned in Cro.
Eliz., 503, supports this distinction. There
the father and son were joint tenants to them
and the heir of the son, and they were both
hanged in one cart ; but because the son died
last, his wife was held entitled to dower. The
seisin, though instantaneous, was for the bene-
fit of the survivor. So, where lands descend
to a man who is married, and a stranger enters
immediately on the death of the ancestor, so
that the seisin is but for an instant, being de-
vested by the abatement, yet the wife of the
heir will be endowed. In the case of Nash v.
Preston, Cro. Car., 190, J. S., seised in fee,
bargained and sold to the husband, for £120,
in consideration that he should redemise it to
J. S. and wife, for their lives, rendering a
peppercorn, and with condition, that if he
paid back the £120, at the end of twenty years,
the bargain and sale should be void. • The
bargainee redemised accordingly, and died ;
and it was held that his wife was entitled to
her dower. It was likened to a mortgage ;
and it was said that if the wife be dowable by
act and rule of law, a court of equity could
not deprive her of her right.
Again ; our courts consider a mortgage merely
as a security for the debt. The mortgagor,
notwithstanding the mortgage, is deemed
seised, and is the legal owner of the land.
(Hitchcock v. Harrington, 6 Johns., 290.) The
wife of the mortgagor may be endowed out of
the lands mortgaged. (Collins v. Torry, 7
Johns., 278. )' The equity of redemption of a
mortgagor may be sold on execution ( Waters
v. Stewart, 1 Caines' Cas. in Er., 47): but lands
mortgaged cannot be sold under an execution
against the mortgagee, before a foreclosure,
though the estate of the mortgagee has become
absolute at law. (Jackson, ex dem. Norton, v.
Wittard, 4 Johns., 41.) Our courts have, in
this respect, gone further than the courts in
England.
SPENCER, J., delivered the opinion of the
court :
1.— See Tabele v. Tabele, 1 Johns. Ch., 45.
iam v. Moore, 4 Leigh., 30: Boynton v. Sawyer, 35
Ala., 497 ; Stephens v. Sherrod, 6 Tex., 297 : Lassen
v. Vance, 8 Cal., 274; Bullard v. Bowers, 10 N. H.,
500; Hinds v. Ballou, 44 N. H., 620: Mayburry v.
Brien, 15 Pet., 39; McCauley v. Grimes, 2 Gill. & J.,
318 ; Welch v. Buckins, 9 Ohio St.. 331 ; Nash v. Pres-
ton, Cro. Car., 190 ; Sneyd v. Sneyd, 1 Atk., 442. But
1158
see, McClure v, Harris, 12 B. Mon., 261 ; Mills v. Van
Vorhis, 23 Barb., 135. See, also, 4 Kent, 39 : 1 Washb.
Real Prop., 219-223.
Two or more instruments, when construed together.
See Jackson v. Dunsbagh, 1 Johns. Cos., 91, note ;
Jackson v. McKenny, 3 Wend., 233.
JOHNS. REP., 15.
1818
STOW v. TIFFT.
461
The demandant's right to recover her dower
• -depends on the nature of her husband's seisin.
Timothy Stow, her husband, purchased the
premises in question after his marriage with
the plaintiff, and paid part of the considera-
4Oti*] tion money ; and *for securing the
residue, he, at the time of receiving his con-
veyance, executed to the grantor a mortgage
of the same premises. After his death, the
premises were sold under a power contained
in the mortgage, and the defendant holds
under tint sale. The question to be decided
is, whether there was such a seisin of the hus-
band of the demandant as to entitle her to
dower. This depends on Mie single point,
whether the seisin of the husband was an in-
stantaneous seisin or not. If it was an instan-
taneous seisin, then, according to all the au-
thorities, the wife is not endowable. This
general position is met with in all our books,
that the husband's seisin for an instant does
not entitle the wife to dower. This is exem-
plified by the case of Amtott* v. Ctitherick, Cro.
Jac., 615. There the husband, who was seised
in special tail, m:ide a deed of teoffment to the
use of liisn-rlf for life, and after to the use of
his son in tail, and made a letter of attorney to
make livery. Before livery, he took the de-
mandant to wife, and after livery was made to
those use*, the husband died, and the question
was, whether the wife was entitled to dower ;
and it was adjudged that she was not, for that
the livery did not gain to the husband any new
estate, but being, fiitm inatanti, drawn out of
him, he gained no seisin whereof his wife was
dowable ; for that having no estate before
the feoffraeut, whereof the wife was dowable,
he gained none by the feoffment of which his
wife could be endowed. Three cases were
there put, in which the wife would not be
••ntitl'-.l to dower, as where a tenant for life,
or a joint tenant, makes a feoffment; so where
a married man took a fine, and by the same
fine rendered the land to another in tail, his
wife shall not be endowed thereof ; because,
although he took it in fee, yet it is instantly
out of him : so if a feoffment be made to oae
and his heirs, to the use of another and his
heirs, the wife of the trustee shall not be
•endowed, for he was the mere instrument, and
had but an instantaneous seisin. (1 Co., 77.)
The case of .V«**A v. Preatnn, Cro. Car., 190,
would seem, at first view, to be opposed to the
proposition, that a deed to the purchaser, and
.a mortgage given back by him to the grantor,
at the same time, would not entitle the wife of
the purchaser to her dower : yet it is observa-
ble that the principle is admitted, that an in
4(J.'J*) stantaneous seisin of the husband *does
not entitle the wife to dower. Croke admits
that if a husband take a fine »ur cognizance de
drtit enne cto, and render arrear, although it
was once the husband's, yet his wife shall not
have dower, for it is in him and out of him,
«»/«»/ nm> Jbitu, and by one and the same act.
That case does not state that the redemise was
made at the name time with the bargain and
sale ; and I presume it was not. That case,
therefore, does not bear on the general prin-
ciple.
I am authorized to say. by the decisinn'of
this court in Jneknon v. Dun*b<igh, 1 Johns.
•Cas.. 95, that where two instruments are exe-
JOHNS. RKP., 15.
c ft ted at the same time, between the same par-
ties, relative to, the same subject matter, they
are to be taken in connection, as forming
together the several parts of one agreement. I
entirely agree in the opinion expressed by Ch.
J. Parsons, in the case of Holhrook v. Finney,
4 Mass., 569, that where a deed is given by the
vendor of an estate, who takes back a mort-
gage to secure the purchase money at the same
time that he executes the deed, that there the
deed and the mortgage are to be considered as
parts of the same contract, as taking effect at
the*same instant, and as constituting but one
act : in the same manner as a deed of defeas-
ance forms, with the principal deed, to which
it refers, but one contract, although it be by a
distinct and separate instrument.
The substance of a conveyance, where land
is mortgaged at the same time the deed is given,
is this : the bargainor sells the laud to the
bargainee on condition that he pays the price
at the stipulated time, and if he does not, that
the bargaiuor shall be reseised of it, free of
the mortgage ; and whether this contract is
contained in one and the 'same instrument, as
it well may be, or in distinct instruments exe-
cuted at the same instant, can make no possi-
ble difference. It is true that courts of equity
have interposed to relieve the mortgagor
against the accident of his non-pavment of the
price, at the stipulated period. It is also true
that courts of law have considered the interest
of the mortgagor as liable to be sold on execu-
tion. This, however, does not interfere with
the question as to how the contract between
the original parties is to be viewed, as between
themselves, when the equity of redemption is
gone and forfeited.
The opinion which the court has formed re-
ceives decisive *support from the dec [*-KJ4
laratory Act of the 28th sess., ch. 99. It re-
cites, that whereas doubts have arisen whether
mortgages given to secure the purchase money
of land sold and conveyed, at the time of the
execution of such mortgages, are to be pre-
ferred to judgments previously obtained
against the mortgagors, for the removal
whereof, it is enacted and declarexl, that when-
ever lands are sold and conveyed, and a mort-
gage is given by the purchaser at the same
time to secure the payment of the purchase
money, such mortgage shall be preferred to
any previous judgment which may have been
obtained against such purchaser.
This Statute conveys the sense of the Legis-
lature, that the seisin'of the mortgagor, under
the circumstances stated in the Act, was a
seisin for an instant only ; for it cannot be
doubted that a judgment will attach on lands,
of which the judgment debtor becomes seised
at any time posterior to the judgment ; and
nothing could prevent a judgment creating a
lien on the subsequently acquired lands of the
judgment debtor, but "the circumstance that
his seisin, in the given case, was instantaneous.
Surely, then, the analogous case of dower can-
not stand on a better footing than a judgment
unsatisfied. As a declaratory Act, this Statute
is entitled to high respect ; and it fortifies and
supports the position, that the demandant's
husband acquired, by the deed to him. a seisin,
which he parted with ••• inxt,mti he acquired
it, and that his wife is not endowabie of the
i'iil
464
SUPREME COURT, STATE OF NEW YOKK.
1818=
premises. The court are very well satisfied
that the law is so, for it would be extremely
inequitable, in most cases, to claim dower on
such purchases. We are, therefore, of opin-
ion that there must be -judgment for the de-
fendant.
THOMPSON, C h. J., dissented. The de-
mandant, as the widow of Timothy Stow, de-
ceased, claims her dower in lands purchased
by her late husband after their intermarriage.
He paid part of the consideration money, and
for securing the residue mortgaged the lands.
After his death, the mortgaged premises were
sold, pursuant to the Statute, and purchased
by the person under whom the defendant
claims ; and the only question is, whether the
husband was so seised as to entitle his wife to
dower.
4G5*] *In the case of Hitchcock v. Harring-
ton, 6 Johns., 249, this point was stated, but
not decided by the court. It has long been
considered the settled law in this State, that a
mortgage is a mere secmity for money, and
the mortgagor is to be deemed seised, notwith-
standing the mortgage, as to all persons, ex-
cept the mortgagee and his representatives.
The seisin of the husband, in this case, cannot
be considered that mere instantaneous seisin
which the books speak of as not being suffi-
cient to entitle the wife to dower. Those are
cases where the husband -is a mere conduit
pipe or instrument of conveyance. This is
evidently the meaning of Lord Coke, where
the rule is laid down. (Co. Litt., 31 6.) . It is
more fully illustrated by Sir Wm. Blackstone,
in his Commentaries (Vol. II., 131), where it is
said that that the seisin of the husband, for a
transitory instant only, when the same act
which gives him the estate, conveys it, also,
out of him; as where, by a fine, land is granted
to a man, and he immediately renders it back
by the same fine, such a seisin will not entitle
his wife to dower ; for the land was merely in
transitu, and never rested in the husband, his
grant and render being one continued act. But
if the land abides in him for the interval of but
a single moment, the wife shall be endowed
ed thereof.
Where a title is conveyed to a person, and
he gives back the mortgage, the fee is certainly
vested in him, substantially and beneficially,
and not nominally ; otherwise, the mortgage
back would convey no title. The case of Nash
v. Preston, . Cro. Car., 190, is very much in
point, to show that the widow is entitled to her
dower. There was a bargain and sale of land
to the husband, under an agreement that the
bargainee was to redemise it to the bargainer
and his wife, during their lives. The bar-
gainee redemised and died, and his widow was
considered entitled to dower. For, say the
court, by the bargain and sale, the land is
vested in the husband, and thereby the wife is
entitled to her dower. This question of in-
stantaneous seisin is well considered by Gwil-
lim, in a note to the late edition of Bacon. (2
Bac. Abr., 371, note.) It is there said that the
proposition that in the case of an instantaneous
seisin, the wife shall not be endowed, though
laid down broadly by Coke, is by no means
46(>*] *general : he confines it to cases where
the husband is a mere instrument of passing
1160
the estate. The transitory seisin gained by
such an instrumentality is not enough to en-
tit-le the wife to dower ; but when the .land
abides in the husband, for a single moment, a*
is said by Sir Wm. Blackstone, or, as a later
writer explains it (Preston on Estates, tit.
Dower), when he has a seisin for an instant,
beneficially for his own use, the title to dower
shall arise in favor of his wife. The case of
Holbrook v. Finney, 4 Mass., 566, has been
cited, and relied upon, as in point against the
claim of dower. Whatever respect may be
due to the opinion of Ch. J. Parsons, he cer-
tainly stands unsupported by any adjudged
cases to be founiiin the English books, or by
any elementary writer, when fairly explained.
In none of the cases referred to by him, in
his opinion, was the husband ever beneficially
seised, for an instant ; and the distinction
which he attempts to make between the case
of Nash v. Preston and the one before him, i»
certainly not well founded. In the case of
Nash v. Preston, the redemising was a part of
the original agreement ; yet the wife of the
bargainee was held entitled to dower. So, in
Holbrook v. Finney, the deed and mortgage
were executed in pursuance of a previous
agreement to the same effect, made between
the parties. The two cases, therefore, in this
respect, are alike. Ch. J. Parsons seems fully
to admit the law as laid down in Nash v. Pres-
ton; and it is a little difficult to understand
what he means, by saying that the giving the
deed, and taking the mortgage back, consti-
tutes but one act, unless the two deeds, being
parts of the same contract, are but one act.
But whatever importance may be attached tc-
this circumstance, the argument cannot be ap-
plied to the case before us, because it formed
no part of the original agreement that a mort-
gage was to be given back.
I do not see how our Statute, to prevent
judgments having a preference to mortgages
given to secure the purchase monev, can in
any manner affect this question. It is true
that the first Act (sess. 28, ch. 99) contained a
recital, purporting that doubts had arisen,
whether mortgages given to secure the pur-
chase money of lauds sold and conveyed at
*the time of the execution of such [*467
mortgages, are to be preferred to judgments
previously obtained against the mortgagors,
and then provides for giving a preference to-
mortgages thus taken. But this Act has no
relation to mortgages in any other respect than
to give them a preference to judgments in that
particular case. And it is to be observed that
the right to sell land under a judgment, the
lien created by such judgment, and the time
such lien is to take effect, are all matters of
statute regulation. This Act only modifies
the former Statute, and suspends the lien of
judgments in such particular cases. But the
right to dower depends on different principles.
It would, no doubt, be competent to the Leg-
islature, -to take away or regulate the claim to-
dower, in cases like the present ; but until that
is done, we must be governed by the common
law rules on this subject ; according to which
I see no grounds upon which the claim to-,
dower in this case can be resisted. I am, ac-
cordingly, of opinion that the demandant is
entitled to judgment,
JOHNS. REP.. l.*L
1818
THE PRESIDENT, ETC.. MECHANICS' AND FARMERS' BANK v. CAPRON.
461;
Sed per Curiam. Judgment for the- defendant.
Disapproved— 32 Ind., 512.
Folio wed- 42 N.J. L., 9; 15 Kas.. 901.
Hisiiiitfuished— 20 N. Y., 417.
Cited in— 1 Cow., 478 : 2 Cow.. 218 : 8 Cow., 317 : 3
Wend.. 235: 1» Wend., 173; 2 Hill. 308; 2 Den.. 133:
lOPrtijfo, 54. 442; 1 Sand. Ch.. 80, 140:7 N. Y., 574;
»N. ¥., 70: 44 N. Y.,202; 57 N. Y., «5; 59 N. Y., 544;
80 N. Y.. 350: 7 I JIMS.. 2ttl ; 8 Hun, 423 ; 1 Uarb., 407 ;
3 Marl... 141: 4 Ifcirl... 271: 5 Barb.. 333; » Burb., 54;
11 Barb.. 2flu 13 Barb., 182; 18 Barb., 24 ; 23 Haiti.,
140; .V, Barb.. Ki: 10 Abb. IV, I.Vi; 2 Bos., 521): 3
Leg- Obs., 127 ; 15 Fetors. 3U : 17 Wall, 108 ; 32 I ml., 521.
THE PRESIDENT. &c., OF THE ME-
CHANICS' AND FARMERS' BANK. IN
TUB CITY OK ALBANY,
».
C APRON.
Negotiable Paper — PromiMory Note — Insolvent
lndor»er — Not Protected by Discharge in
Bankruptcy before Maturity.
The indorscr of a promissory note, who. after his
indorsement, and before the note becomes payable,
obtains his discharge as an insolvent, is not pro-
tected from payment of the note ; the Indorsement
not creating a certain debt, but merely a liability
contingent on the non-payment of the note by the
maker, and which liability could not become fixed
until ;ii i f i the discharge-
Nor does it vary the case that the note was given
by the indorser ai collateral security for the pay-
ment of a debt due the holder, which wits barred by
the discharge.
Citation— 1. Johns. Cas.. 78.
fTMI IS was au act ion of attsumpxit on a promis-
-L sory note drawn by J. ,]. Lansing and H.
Lansing, dated the 27th of October, 1813, for
$400, with interest, payable to the defendant,
four years after date, and indorsed by him.
The cause was tried at the Albany Circuit, in
April, 1818.
4418*] *The signature of the makers and in-
dorser, demand of payment, and notice to the
indorser, and protest for non-payment on the
80th of October. 1817, were proved. The de-
fendant gave in evidence his discharge, as an
insolvent, granted by the Recorder of Albany,
on the 6th of May. 1817. The defendant also
proved that the note had been left by him with
the plaintiffs, as collateral security for the pay-
ment of two other notes, drawn by the de-
fendant in favor of J. Mussel, and indorsed by
Russel, which had been discounted by the
plaintiffs, for the benefit of the defendant, and
that it had been so left before those notes be-
came payable. One of the notes was for $750,
payable in July. 1816, and the other for $370,
payable in September, 1816. Neither of them
were paid, and they still continued in the pos-
session of the plaintiffs. J. J. Lansing, one
of the makers of the note in question, obtained
a discharge under the Insolvent Act on the
18th of February, 1818.
A verdict was" taken for the plaintiffs, sub-
ject to the opinion of the court ; and it was
agreed that if the court should l>e of opinion
that the plaintitTs were entitled to recover,
then judgment should be entered for the plaint-
iffs for $872.83, being the amount of the note,
with interest ; otherwise, that judgment should
be entered for the defendant. The case was
submitted without argument.
JOHNS. REP., 15.
Per Curiam. The only question in this case
is, whether the defendant's discharge under
the Insolvent Act exonerates him from his
liability as indorser of the note on which this
suit is brought. The note was drawn by J. J.
and H. Lansing, dated the 27lh of October,
1813, and payable four years after date. It
fell due, and was protested, on the 80th of
October, 1817, and the defendant was dis-
charged under the Insolvent Act on the 6th of
May, 1817.
In the case of /"Voitf v. Carter, 1 Johns. Cas.,
73, it was held that a discharge under the In-
solvent Act extended only to such debts an
were due at the time of the assignment of the
insolvent's estate, and to debts contracted for
before that time, though payable afterwards.
The same principle has been repeatedly recog-
nized in subsequent cases ; and it seems to be
a general and well-settled rule, that if the
creditor, at the time of.*the assignment [*4«J>
by the insolvent debtor, has not a certain debt
due or owing, to which he can attest by oath
so as to entitle him to a dividend of the insolv-
ent's effects, he will not be barred bv the dis-
charge. In the case before us, the defendant,
at the time of his discharge, was not liable as
indorser, and his eventual responsibility was
altogether contingent. The circumstance that
this note was left as collateral security for
other notes which had become due at the time
of the assignment, does not prevent the appli-
[ cation of this principle. It was analogous to
personal security, where no liability existed
at the time of the discharge. Everything upon
which the defendant's liability rested occurred
I after his discharge. There was no debt exist-
ing against the defendant on this indorsement,
upon which the plaintiffs could have claimed
a dividend. The claim on him was condi-
tional, until the demand was made on the
drawers. The plaintiffs are, accordingly, en-
titled to iudgment for $872.83, according to
the stipulation in the case.
Judgment for the plaintiffs.
Cited in-17 Johns.. 45: 12 Wend., 125; 8 Johns.
Ch.,e0,28G: !Keyes,597; 13 Hun, 529; 3 Barb., 85 ;
2 Abb., N. S., 2«3.
CROSS v. MOULTON.
Practice in Justice Court — Suit by Warrant —
Adjournment — Challenge of Juror* by Jus-
tice.
Where a defendant is sued in a justice's court by
warrant, he is entitled to an adjournment, on jriv-
inirjronil security for his appearance, without mak-
ing oath of the want of a material witness.
A justice has no rijrht , on his own mere motion,
without any exception beiiiR taken by either party,
to challenge the panel of Jurors, und issue a new
venire.
Citations— 1 N. R. L., 389: 8 Johns., 468.
N ERROR, on crrtiorari to a justice's court.
1
The defendant in error commenced an ac-
tion, by warrant, in the court below, against
the plaintiff in error, on a prommissory note.
The defendant below relied on a set-off ; and
*he requested an adjournment, and [*47O
said that he had good bail present. The jus-
tice refused the adjournment, unless the de-
11(11
470
SUPREME COURT, STATE OF NEW YORK.
1818
fendaiit below would not only give bail, but
swear that he could not proceed to trial for
want of a material witness. The defendant
refused to make the oath, and demanded a
trial by jury. A venire was accordingly is-
sued, and after the constable had returned a
panel of jurors, the justice, without any
motion by either of the parties, objected to the
panel, on the ground that the jurors were not
suitable, as only three of them were freehold-
ers, and two of the number near akin to the
plaintiff below ; and he adjourned the court
until the next morning, when he issued a new
venire to the same constable, directing him to
summon only freeholders. The defendant be-
low refused to attend or make any defense ;
and the cause was heard ex-parte before the
second jury. A verdict and judgment were
given for the plaintiff below.
Per Guriam. The justice erred in refusing
an adjournment. The Statute (1 N. R. L.,
389) allows a defendant sued by warrant an
adjournment, on giving security "to appear
and stand trial, &c. ;" and the justice had no
right to require an affidavit of the want of a
material witness. (Sebring v. Wliee.don, 8
Johns., 458).
The justice also committed a gross irregu-
larity in challenging the jurors, on the return
of the first venire, and in issuing a second
venire, merely on the ground of his own ex-
trajudical exceptions.
Judgment reversed.
47 1*] * JACKSON, ex dem. W J. LIVING-
STON,
«.
BARRINGER.
Lease by Metes and Sounds and Number of
Acres — Description by Metes and Bounds, Con-
trols.
Where land is leased, and is described in the lease
by metes and bounds, and as containing a certain
number of acres, the description by metes and
bounds controls the quantity, and the lessee is en-
titled to hold all the land embraced by the descrip-
tion, although exceeding the number of acres ex-
pressed in the deed.
So, where there is a lease of the farm on which A.
B. now lives, to contain eighty acres, and the farm
actually contains more than eighty acres, the lessor
cannot recover the surplus from the lessee, espe-
cially where he has been in possession, and paid rent
for a length of time.
Citation— 2 Johns., 40.
THIS was an action of ejectment, for land
in Livingston, in Columbia County. The
cause was tried before Mr. Justice Spencer, at
the Columbia Circuit, in August, 1815.
The defendant held under a lease from
Robert Livingston, proprietor of the manor of
Livingston, from whom the lessor of the
plaintiff derived his title. The lease was to
the defendant for three lives, and the premises
were described as follows : " All that farm or
tract of land, being part of the said manor,
beginning to wit : the farm on which Jacobus
Jose Decker now lives on, laying east of the
farm of Jacob Miller, west of the farm of
Andries Bartle and Jerry Decker, and south
11G2
of the farm of Teunis Becker, to contain
eighty acres in one piece." The farm occu-
pied by the defendant actually contained one
hundred and forty-nine acres and a half, and
this action was brought to recover the surplus
over eighty acres. It was proved, on the part of
the defendant, by several aged witnesses, that
the boundaries of the farm, and the extent to
which it was occupied, were the same as they
had been for thirty or forty years ; and Jerry
Decker, brother of Jacobus Decker, mentioned
in the lease, a witness of about eighty-one
years of age, testified that the fall before the
trial he went round the farm, and that the
fences were as they had been for forty years.
The defendant also produced receipts from
1773 to 1813 for the rent reserved by the lease.
A verdict was taken for the plaintiff, sub-
ject to the opinion of the court on the above
case.
Mr, E. Williams, for the plaintiff, contended
that as the lease was for only eighty acres of
land, it must be so located as to give the
lessee that quantity, and no more. In Jack-
son, ex dem. Livingston, v. Wiley, 9 Johns.,
267, which was a similar case, the court gave
no opinion as to the construction of the lease,
but granted a new trial, on the ground of a
*want of notice to quit. Here that [*472
question will not arise, as there has been a
regular notice to quit. There can be no
doubt of the intention of the lessor to lease the
quantity of land only mentioned in the lease.
Mr. Van Buren, Attorney-General, contra,
contended that the defendant had a right to
the possession of the land, comprised within
the metes and bounds of the lease. The
quantity of acres is matter of description ;
and the bounds given, being definite and cer-
tain must prevail. (Mann~& Toles v. Pearson,
2 Johns., 37, 40; Jackson, ex dem Staring,
v. Defendorf, \ Cai., 493.) If a man grants
his meadows in dale containing ten acres, and
they, in fact, contain twenty acres, the whole
twenty will pass. (Bacon's Law Tracts, 106,
Reg., 25.)
Again ; there has been an uninterrupted
and undisputed possession for forty years, by
the defendant, paying rent, and without any
claim or question on the part of the lessor
THOMPSON, Ch. J., delivered the opinion of
the court :
It is admitted that the lessor of the plaintiff
is entitled to recover the premises in question,
unless the defendant has a right to hold pos-
session under the lease from Robert Living-
ston to him. The date of this lease is not
stated in the case, but it was mentioned, on
the argument, to have been given in the year
1772. This would seem to be inferable, also,
from the receipts for rent. The description
of the land as mentioned in the lease is : " The
farm on which Jacob J. Decker now lives on,
lying east of the farm of Jacob Miller, west of
the farm of Andries Bartle and Jerry Decker,
south of the farm of Teunis Becker, to con-
tain eighty acres in one piece." The defend-
ant has in his possession about one hundred
and forty-nine acres, and the premises claimed
are the surplus beyond the eighty acres. It is
a well-settled rule, that when a pi*ce of land
is conveyed by metes and bounds, or any
JOHNS. REP., 15.
1818
SPBAGCE ET AL. v. SEYMOUR.
472
other certain description, this will control the
3uantity, although not correctly stated in the
eed. The inference in such case is, that the
473*1 intention was to *convey the whole
tract described ; and the quantity of acres
mentioned must yield to the more certain
description. This is a principle very broadly
laid down, and sanctioned by this court, in
Minn it Tolet v. Pearton, 2 Johns., 40. It is
there stated and adopted as a settled rule, that
if a man lease to another the meadows in D.
and S. containing ten acres, and in truth, they
contain twenty acres, all shall pass.
The principal question growing out of the
OMB before us is, whether it comes within this
rule. It is very clear that if the plaintiff can
recover any part of the land in the defendant's
possession, it must be on the southern part ;
for, on all the other sides, the bounds are cer-
tain and fixed, beinjj on the farms of other
persons mentioned in the description. But
there is a general description or designation of
the land intended to be leased, which is as
certain and more so than the general designa-
tion of a lot by its number. It is the farm
whereon Jacobus J. Decker now lives. It is
reasonably and fairly to be presumed, that
this possession was known to both parties,
and that it was the farm, as an entirety, thus
possessed by Decker, that was intended to be
embraced in the lease ; and that the defend-
ant has no more land in possession than Deck-
er had, is very satisfactorily established by the
testimony. Several aged witnesses were ex-
amined, who had known the farm upwards of
forty years, and testified that the possession
was the same now as it was when they first
knew it. J. Decker, the brother of the Deck-
er mentioned as the former possessor, testified
that he had known the farm more than forty
years ; that he had lately gone round the
fences, and found them where they had been
for forty years ; and that his brother's clearing
was even farther south than the defendant's.
When a conveyance is thus made of an
entire farm, as possessed by another person,
and in reference to such possession, it would
be doing great violence to the presumed in-
tention of the parties, to suppose the whole
was not intended to be conveyed. The rent
has been regularly paid for the whole of the
farm, as it now is, ever since the giving of the
lease ; and if any uncertainty exists with re-
spect to land intended to be included in the
474*] lease, after such a *lapse of time, the
acts and acquiescence of the parties ought to
have a controlling influence in the location of
the premises described in the lease. Under
these considerations, we think that the de-
fendant, at this late day, ought not to be dis-
turbed in his possession, and that he is, of
course, entitled to judgment.
Judgment for the defendant.
Cited ln-6 Cow., 374; 6 Cow., 717; 8 Wend.. 190;
:\ Sand. Ch.. 74; 73 N. Y.. 210: 3 Barb., 357; 8 \V.
nig., 517 ; 81 Ind., 576; 48 Mo., 338.
penalty ; but he caiinut have execution for more
than the original debt, with interest aiid costs.
Citation-Seas. 36, eh. 09. sec. 6.
1
N ERROR, on eertiorari to a justice's court.
SPRAGUE ET AL. r. SEYMOUR.
Bond—For Jail Liberties.
In an action on a bond (riven for the .lull liberties,
judgment for the plaintiff la to be for the whole
JOHNS. REP.. 15.
The defendant in error brought an action,
in the court below, as assignee of the sheriff
of Onondaga, against the plaintiffs in error,
on a bond given bv them for the jail liberties,
in the penalty of $21. The execution of the
bond, and the assignment, and the escape of
Sprague, for whom the bond was given, hav-
ing been proved, the justice rendered judg-
ment for the plaintiff below for $21 and costs.
Per Curiatn. By the 6th section of the Act
Relative to Jails (sess. 36, ch. 69 ; 1 N. R. L.,
429), it is made the duty of the sheriff to take
a bond in the penalty of double the sum for
which the person is confined ; and the 7th
section makes the bond assignable to the
plaintiff in the execution, and declares, that
upon obtaining judgment thereon, lie shall re-
cover the amount due in the original action,
together with the interest and costs accrued
thereon. It does not appear, from any part
of the proceedings or proofs in this case, what
the original debt was ; but the judgment was
correctly entered for the penalty. The plaint-
iff cannot have execution for more than the
original debt, with interest and costs.
Judgment affirmed.
•PIERCE AND PIERCE v. DRAKE. [*475
Contracts — Note in Payment — Fraudulent Rep-
resentation a» to Soltency of Maker — Is no
Satisfaction.
Where the defendant sold the plaintiff a note of
the President and Directors of a certain Company,
and also two shares of the stock of the Company,
for which he was to be paid in whisky, fraudulently
representing the Company to be good and respon-
sible, when, in fact, he knew them to IK- Insolvent,
and the plaintiffs executed their notes or agreements
to deliver the whisky at a future period, which they
delivered accordingly : and having afterwards dis-
covered the insolvency of the Company, tendered to
the defendant the note and stock which they hud
received from him ; it was held that the special con-
tract wus vitiated by the fraud of the defendant, by
which the presumption, that the note and stock
were taken as payment, was repelled : that hail tin-
plaintiffs been sued by the defendant for the non-
delivery of the whisky, his fraud would have been
a defense to the action, and that the plaintiffs, hav-
ing1 delivered the.whisky. might recover the price of
it, under a count for goods sold and delivered.
Where the vendor of goods is induced to take the
promissory note of a third person as payment, by a
fraudulent representation of the solvency of that
person, the note is no satisfaction, and he may main-
tain an action against the purchaser for the price of
the goods.
Citation -6 Johns., 110.
NOTE. — Negotiable JMVCT — Payment by note—
Fratul. See Whitbeck v. Van Ness. 11 Johns., 365:
Murray v. Gouverneur, 2 Johns. Cas.. 438. note;
Herring v. Sanger, 3 Johns. Cas., 71, note.
A bill <tr nnle taken in payment thr>ni<jh framlu-
l> nt > t in < ~i ntntinnx as to tin- solvency of the parties
to it, does not discharge the original can-'- of ac-
tion. Willson v. Foree, it Johns.. 110; Central Bank
v. Pindar, 46 Barb.. 4«7 : Galoupeau v. Kctchmn.a
E. D. Smith. 175; Brown v. Montgomery. 30 N. Y.,
287: Delaware Bank v. Jarvis, 2U N. V., :»»: Bridge
v. Batcheldcr, 9 Allen. 3»4 : Long v. Sprull, 7 Jon. s
(N. C.),96; Gurney v. Wamersley, 4 Kl. & B., 133. 82
Eng. C. L.; Kenn v. Harrison, 3 T. K.. 759 ; Popley
v. Ashlin, 6 Mod., 147.
lit!
475
SUPREME COURT, STATE OF NEW YORK.
1818
was an action of asmmpsit for goods
- sold and delivered. The cause was tried
at the Otsego Circuit, before Mr. Justice Platt.
At the trial, the counsel for the plaintiffs
offered to prove that on the 4th of January,
1815, the defendant proposed to sell the plaint-
iffs a note drawn by the President and Direct-
ors of the Otsego Card and Wire Manufactory,
for $509.92, and also two shares in the stock
of the factory, amounting to $224, and to re-
ceive payment in whisky ; that the defendant
fraudulently represented the Company to be
good and responsible, and the stock to be
worth twelve or fifteen per cent, above par,
knowing the Company to be insolvent, and the
stock worth nothing ; that upon this represen-
tation, the plaintiffs agreed to take the note
and stock, and pay for the same in whisky on
demand ; that soon afterwards the defendant
applied for the whisky, and the plaintiffs, not
having any on hand, made their two notes, or
agreements in writing, by one of which they
promised to pay the defendant, by the 1st of
March then next, $400 in whisky ; and by the
other, to pay him, by the 1st of July then next,
$324.50 in whisky ; that at the time of making
the first verbal agreement, and of the delivery
of the whisky, tile Company was insolvent,
which the defendant knew, and shortly after
the whisky was delivered the Company dis-
continued 'business -.and that when the plaint-
iffs had discovered that the Company was
insolvent, they tendered the note and stock to
the defendant, and demanded payment of the
whisky, which was refused. The counsel for
476*] the defendant objected to the testi-
mony offered, on the ground that it was
inadmissible under the declaration. The
counsel for the plaintiffs then offered to
prove, that at the time the contract was made,
it was expressly agreed that the note was to be
taken by the plaintiffs at the risk of the defend-
ant, and not at their own risk; but the evidence
was overruled, and the plaintiffs were non-
suited.
The plaintiffs moved to set aside the nonsuit,
and the case was submitted without argument.
Per Curiam. The case of Willson v. Force,
6 Johns., 110, is in point to show that a note
taken under such circumstances is no payment.
That case also shows that the special contract,
as to the manner of payment, being void on
account of the fraud, the plaintiff may disre-
gard it, and bring assumpsit for goods sold.
The fraudulent representations made by the
defendants vitiated the whole contract as to
payment. There can be no question that this
would have been the situation of the parties,
had not the plaintiffs given their notes for the
delivery of the whisky at a future day ; but
this cannot alter the situation of the parties.
Those notes were given under the same decep-
tion, occasioned by the fraudulent conduct of
the defendant : they cannot be binding on the
plaintiffs. This fraud would have been a good
defense to these notes, had it been known to the
plaintiffs before the whisky was delivered, of
which, however, there is no evidence.
The nonsuit must therefore be set aside, and a
new trial awarded.
Cited in— 2 Den., 138 ; 2 N. Y., 552 ; 66 Barb., 61.
116*
BROMAGHIN 9. THROOP.
Judgment — Confession of— Must be by Defend-
ant Personally or his Attorney.
A justice of the peace can in no case enter a judg-
ment by confession against a defendant, unless ou
his appearance in court, either in person or by at-
torney, or where he has been duly summoned ;
although the defendant authorize the justice to en-
ter judgment against him by writing under seal, and
his signature is proved before the justice, by the
subscribing witness.
Citation— 6 Johns., 126.
TN ERROR, on certiorari to a justice's court.
The judgment in this case was entered by
the justice on a written authority, or direction,
signed by the defendant *below, under [*47 T
seal, which authority was proved by the sub
scribing witness, before the justice, when the
judgment was entered.
Per Curiam. In the case of Martin v. Moss,
6 Johns., 126, the authority to enter judgment
was also in writing, but no proof of the signa-
ture was given, and the justice acted from his
own knowledge of the defendant's handwrit-
ing. The court, however, did not seem to
place any reliance on that circumstance ; but
laid down the broad principle, that a justice
could not legally enter a judgment, unless the
defendant appeared in person or by attorney
before him in court, and confessed judgment,
or had been duly summoned, as in ordinary
cases. According to this principle, the judg-
ment in question is erroneous, and must be re-
versed.
Judgment reversed.
Cited in-9 Cow., 63, 187; 8 Wend., 570 ; 10 Wend.,
674.
JACKSON, ex dem. BEEBE, v. AUSTIN.
Mortgage for Purchase Money — Priority of, to
Previous Judgment against Purchaser — Is
not Limited to Vendor.
The preference of a mortgage given by the pur-
chaser of lands, sold and conveyed at the same time,,
to secure the payment of the purchase money, to
any previous judgment, which may have been ob-
tained against the purchaser, is not restricted to the
case of a mortgage to the vendor of the land, there
being np restriction in the words of the Statute Con-
cerning Mortgages (sess. 36, ch. 32, sec. 15), by which
this preference is created ; and therefore, if the pur-
chase money be advanced by a third person.to whom
the purchaser, at the same time that the conveyance
is executed to him, executes a mortgage of the same
land, to secure the money advanced, such mortgage
is entitled to the same preference over a prior judg-
ment as the vendor of land would have had, had the
mortgage been executed to him.
Citation— 1 N. R. L., 375
rp HIS was an action of ejectment for part of lot
J- No. 45, in the town of Locke, in the County
of Cayuga ; the parties, by consent, without
trial, made a case for the opinion of the court,
which was submitted without argument.
The plaintiff and defendant both derived
their title from John Van Deusen, who went
into possession of the premises in question a»
assignee of one Bailey, to whom they had been
leased by Isaac Cooper. On the 21st of Octo-
ber, 1815, Van Deusen surrendered the lease
to Cooper, and took a deed from him for the
premises, for the consideration of $500. The
lessor of the plaintiff, on the same day, at the
JOHNS. REP., 15.
1818
DECKER v. LIVINGSTON KT AL.
477
request and for the benefit of Van Deusen,
4?8*] 'executed a note to Cooper, for the
amount of the consideration money, which the
lessor afterwards paid ; and Van Deusen, on
the same day, executed a mortgage to the lessor
of the plaintiff, of the premises in question, as
his indemnity for the note which he had given.
The mortgage was duly recorded on the 31st
of October, 1815. and on the 10th of November,
1817, the premises were sold, under the power
contained in the mortgage, and were bid off by
an agent of the lessor of the plaintiff, to whom
the lessor conveyed them, and he reconveyed
to the lessor.
Previously to the execution of the mortgage,
Walter Wood obtained a judgment in the Court
•of Common Pleas of Cayuga County, against
Van Deusen and one Solomon Austin, for $228
debt and $10 damages and costs, which was
filed and docketed on the 15th of September,
1815. A.fi.fa. was issued, and the premises
in question were levied upon, and were sold
by the sheriff on the 12th of March, 1816, to the
defendant. A deed was executed on the same
day by the sheriff to the defendant, which was
duly acknowledged and recorded on the 22d
of March.-
Per Curiam. The question of priority will
depend on the Statute (1 N. R. L., 375), which
declares that whenever lands are sold and con-
veyed, and a mortgage is given by the pur-
chaser, at the same time, to secure the payment
of the purchase money, such mortgage shall be
preferred to any previous judgment which may
have been obtained against such purchaser.
The mortgage in this case comes within the
letter of the Act. It was executed by the pur-
cha-*er, Van Deusen, to secure the purchase
money, and was given at the same time with
the deed, although not given to Cooper, from
whom Van Deusen derived title. But this
•cannot vary the principle upon which the
Statute appears to be founded. The lessor of
the plaintiff advanced the purchase money,
and took the mortgage to himself. The Act
probably contemplated cases where the mort-
gage was given to the seller of the land. But
the words of the Act are not restricted to such
cases, and a just and fair construction will
47tt*J 'warrant its application to the present
case. The plaintiff is. accordingly, entitled to
judgment.
Judgment for tfie plaintiff. '
Cited in-S Cow.. 431; 4 Hun, 334: 3 Barb., 141,
045 ; 63 Wia., 581 ; 15 Minn., 517.
DECKER v. R. S. LIVINGSTON ET AL.
Action in Regard to Real E*tale of Wife, arising
before Marriage — Wife must be Joined — 7Ve»-
POM by Tenant* in Comma* — Releaneby One —
Dwtrttt — Receipt for Subsequent Rent.
In an action for rent, or any other cause, accru-
ing before marriage, in regard to the real estate of
the wife, -in- must be joined with her husband; but
for rent of her land arising after marriage, she need
nut be joined.
When the husband distrains and avows for rent
arising from the land of his wife, without joining
her in the proceedings, he must show affirmatively
L— See Stow. v. Tint, ante, p. 458; Clark v. Munroe,
14 Mass , 351.
JOHNS.
., 15.
that the rent accrued after the marriage, for this
cannot be intended ; and if that fact be not shown,
the objection may be taken at the trial.
In an action of tn-spiitw brought by tenants in
common, in relation to their land, or in debt for rent
arising out of land, or in any other action merely
persoiiHl, they must all Join us Plaintiffs, and a re-
lease of the action by one of them is a bar to the
others.
But in u distress and avowry for rent, which savor
of the realty, tenants in common ought not to join;
and therefore, if one rek-aseg the rent, it is not a
discharge a.-* to the othera.
One tenant in common may, however, before dis-
tretaand avowry, receive the whole rent, and dis-
charge the lessee; for, until distress and avowry. the
rent is only in the personalty.
A receipt for rent arising at a subsequent period,
is presumptive evidence that ail rent previously
accruing had been paid.
Citations— 1 Chit. PI., 17. 30; 1 Chit., 7, 544; 13 Johns..
388 ; Co. Lltt-, sees. 316, 198 b ; 5 T. R., 249.
THIS was an action of replevin, in which
the defendants made avowry for rent ar-
rear. The cause was tried before Mr. Juntite
Platt, at the Columbia Circuit, in September,
1817.
The defendant held under a lease, from Rob-
ert Livingston, dated May 17, 1775, to Isaac
Spoon and wife, reserving a rent of fifty
skipples of wheat and two hens. In April,
1814, the interest in the term became vested in
the plaintiff by assignment. On the death of
Robert Livingston, Robert C. Livingston be-
came possessed of the reversion, as his devisee,
and on the death of Robert C. Livingston, in
1794, it descended to Robert S. Livingston,
James D. Livingston, Thomas F. Livingston,
John S. Livingston and Catharine Livingston,
his heirs at law. Catharine Livingston, after-
wards, and before the distress on which this
action is founded was made, married John C.
Stevens. Robert S. Livingston, James D. Liv-
ingston, Thomas F. Livingston, John S. Liv-
ingston and John C. Stevens are the defend-
ants in this suit, and they united in making
the distress, but Catharine was not joined.
The defendants distrained upon the plaintiff on
the 16th of October, 1815, for $173, for rent
due on the 1st of January preceding.
*The plaintiff produce'd in evidence F*48O
two receipts, signed by the defendant, John S.
Livingston ; one dated the 10th June, 1815, by
which he acknowledged that he had received
from the plaintiff thirty-seven and a half bush-
els of wheat, for the rent of his farm, due the
1st of January, 1815 ; and the other dated the
6th of April, "1816, for thirty-seven and a half
bushels of wheat, for the rent of his farm, due
the 1st of January, 1816.
A verdict was taken for the plaintiff, by
consent, subject to the opinion of the court on
a case containing the facts above stated.
Mr. Van Buren, Attorney-General, for the
plaintiff. 1. The proceedings were irregular.
The distress was for rent due manv years be-
fore, and before the marriage of Catharine
Livingston with Stevens. She ought, there-
fore, to have been joined. Avowry is in the
nature of an action, and all parties having an
interest must be joined. (PuUen v. Palmer,
Carth.,328; Page v. Stedman, Carth., 864.)
In an avowry for rent upon a lease for life or
years, before coverture, the husband and wife
must join. (2 Com. Dig., 105, Baron and
Feme, V.) It cannot be pleaded in abatement.
(Uarruon v. M'Intoth, 1 Johns., 380.)
lift
480
SUPREME COURT, STATE OF NEW YORK.
1818
2. The receipts offered in evidence, of the
rent for the last two years, are prima facie evi-
dence that the rent for all the former years
had been paid ; and not being explained or re-
butted by any evidence on the part of the de-
fendants, are sufficient to entitle the plaintiff to
judgment, (1 Sid., 44; Co. Litt., 373 a; 3 Co.,
656; 1 Esp. Dig., 71, Debt.)
Mr. Vanderpool, contra. 1. There is no ir-
regularity. It was not necessary for Mrs. S.
to be joined in the avowry. The cases cited
are those of joint tenants or coparceners, and
do not apply to tenants in common. It does
not appear that the rent for which the distress
was made was due before the marriage of
Catherine L. with the defendant S. It is laid
down by Chitty (on Pleadings, 19, 20) that the
rent or other cause of action, accruing during
the marriage, on a lease, or demise, or other
contract, relating to the land or other real
property of the wife, whether such contract
was made before or during coverture, the hus-
band and wife may join, or he may sue- alone.
481*] (Str., 230 ; 1 Wils., *224 ; 2 Lev., 107;
Reeves' Domes., Relat,, 30, 31.) The 19th
section of the Act Concerning Distresses,
Rents, &c. (1 N. R. L., 439, sess. 36, ch. 63),
is express, that husbands, having estates in
right of their wives, may sue for the rents by
action of debt, or distrain and make avowry,
&c. The distinction between joint tenants
and tenants in common is laid down in Fallen
v. Palmer, 3 Salk., 207, which was an action
of replevin ; and the court held that the hus-
band may distrain for rent due to his wife, and
avow for it alone, because the right to the rent
due is in him alone. So, in Bowles v. Poo re.
Cro. James, 282, 283, it was objected that the
avowry was bad, because it appeared that the
rent in arrear was not due to the husband, but
only to the wife dum sola f nit ; but the objec-
tion was overruled. Tenants in common must
sever in their avowries, for their interest is
separate and distinct. (1 Chitty PL, 544; 2
Chitty, 514; 5 Com. Dig., Rent, B, 424; Co.
Litt., 198, 285 ; 3 Bac. Abr., 671. A ; Id., 690 ;
H. 2; Harrison v. Barney, 5T. R., 247.)
2. The receipts of John S. L. can be no bar
to the rents due from the tenant in 1814. The
cases cited do not bear out the doctrine con-
tended for by the plaintiff, and laid down in
some treatises and elementary books. The
cases speak of releases or acquittances under
seal, which may be pleaded in discharge.
Again ; the receipt of J. S. L. alone is no bar
to the rights of the other tenants in common ;
the tenant was not authorized to pay their
proportions of the rent to him. (Harrison v.
Barney, 5 T. R., 247, 249.)
SPENCER, J., delivered the opinion of the
court :
Two questions have been made on the argu-
ment : 1. Whether the wife of John C. Stev-
ens ought to have been a party to the suit ;
and, 3d. Whether the receipts of one of the
tenants in common for the rent of 1815 and
1816 are available as prima facie evidence of
the payment of the rent of the antecedent
years.
The rent for which the distress was made
accrued prior to October, 1815, but the case
does not disclose for what years it grew due.
1166
Mrs. Stevens, who is one of the tenants in
common, is not joined in making the distress
or *avowry with her husband ; and it [*482
does not appear whether the rent claimed ac-
crued before or after their marriage.
We consider the law well settled, that for
rent, or any other cause of action accruing be-
fore marriage, in regard to the real estate of
the wife, she must be joined with her husband
in a suit for such cause of action, but that for
rent of her land arising after the marriage she
need not be joined. (T Chitty PI., 17, 20, and
the authorities there cited.) As it does not
appear affirmatively that the rent in question
accrued after the intermarriage between Stev-
ens and his wife, we cannot intend the fact to
be so ; her husband's right to sue, alone, rest-
ing on the fact, that the rent accrued after the
marriage, his title is defective, if the fact is
not shown ; and this objection may be made
on the trial. (1 Chitty, 7.)
We held in Austin et al. v. Hall, 13 Johns.,
286, that a release by one tenant in common of
a trespass on the lands of another tenant in
common, was a bar to the action brought by
them, on the principle that the action was
strictly personal, and that the plaintiffs were
hound to join in it ; and there can be no doubt
that when there is such a unity of interest as
to require a joinder of all the parties interested
in a matter of a personal nature, the release of
one is as effectual as the release of all.
If two tenants in common make a lease of
their tenement, for a term of years, rendering
rent, if the rent be behind, they shall have an
action of debt against the lessee, and not di-
vers actions, for the action is in the personalty.
(Co. Litt., sec. 316, 198 b.) But in an avowry
for the rent, they ought not to be joined, for
this is in the realty (Co. Litt., sec. 317) ; and
this distinction between debt for rent and an
avowry, appears to have been uniformly recog-
nized. (1 Chitty, 544.) The reason is, that
the avowry savors of the realty ; but until the
distress and avowry, the rent is in the person-
alty, and then it can be released by one of the
tenants in common. It is the distress on the
land which makes the rent partake of the
realty. The case of Harriaon v. Barney, 5 T.
R. , 249, on which very great stress was laid,
simply determines that a tenant, holding under
two tenants in common, cannot pay the whole
rent to *one of them, after notice from [*483
the other not to pay it. If he do, the other
tenant in common may distrain for his share.
Lord Keuyon puts his decision on the justice
of the case, and that the payment was against
conscience.
Whether the receipts for 1815 and 1816 are
presumptive evidence of payment of the rent
of the preceding years, depends on the right of
one tenant in common to receive the whole
rent. If he had such a right, then the pre-
sumption exists ; and it arises from the im-
probability that the former rent remained un-
paid, when rent is specifically received for a
subsequent period ; and this presumption ob-
tains as well where several persons are entitled
to receive money, as in an individual case, for
they are all to be presumed conusaut of their
rights. This presumption may be repelled,
but standing uncontradicted, as it does here, it
is decisive.
JOHNS. REP., 15.
1818
WHITBECK v. COOK.
483
Judgment for the plaintiff.
Cited ln-8 Cow., 308 : 13 Wend., 273 ; 5 Hill. 58 ; 16
N. Y.. 414: 21 X. Y., 288: 37 N. Y.. 373; 4 Trans. App.,
242: 14 Barb., BIO; 17 Barb.. 156; 19 Barb.. 6«6; 20
Harb.. 273 ; 21) Uurb., IV, 121 ; 51 Barb., <H5; 4 Abb. X.
S., 344. |
WHITBECK t. COOK ET ex.
E§ectme.i>t— Covenant of Quiet Enjoyment Ex-
ttndt only to Ho&esMon — Actual l)i*turbance
mv»t be Shown — Ute of Public Highway not
a Breach— Deed by Husband and Wi'e— Wife
cannot be Joined in Action for Breaclt of Cote-
mint.
In assigning a breach of a covenant for quiet en-
joyment. contained in a conveyance of land, the
plaintiff must show an entry and expulsion from, or
8oiiif actual disturbance in the possession.
It is not a breach of the covenants, that the grant-
or was lawful owner of the kind, was well seised.
and had full power to convey; that part of the land
was a public highway. and was used as such ; a pub-
lic highway being a mere easement, and the seisin,
and right to convey, still continuing- in €he owner
<>t the land over which it was laid out.
Where a husband and wife execute a conveyance,
in which they both covenant to the grant<-e, the
wife cannot be joined with her husband in an action
for a breach of the covenant, her acknowledgment
having no further effect than to convey her interest
in the land, and not binding her by tue covenants
contained in the deed.
Where husband and wife arc improperly joined,
as defendants in an action, it seems that if the
plain tiff has a cause of action against the hustiand,
he will bcfttllowed to enter a nolle prmsetfltt, as to the
wife.
Citations— 3 Johns., 471 ; 5 Johns.. 120; 15 Johns.'
447 : 2 Man.. »7.
was an action of covenant, for the
1 breach of the covenants contained in a con-
veyance of land. The cause was brought be-
fore the court on demurrer, on a case made
after verdict, and on a motion in arrest of judg-
ment.
The declaration stated that, by deed, bear-
ing date the 5th of April, 1814, Philip and
Clarissa Cook, the defendants, by the name and
description of Philip Cook and Clarissa Cook,
4H4*] *his wife, in consideration of the sum
of $8,093.25. conveyed to the plaintiff, in fee,
a certain parcel of land, in the town of War-
ren, in the County of Herkimer, containing
two hundred and sixty-nine acres, three quar-
ter* and four roods ; and that the said
Philip and Clarissa, by the said deed, cove-
nanted : 1. That they,* at the time of the seal-
ing the same, were the true and lawful owners
of the premises, with the appurtenances. 2.
And were lawfully seised in their own right
of a i» rl'iM t. absolute and indefeasible estate
of inheritance in the premises. 3. And that
they had, in themselves, good right, full power
ami lawful authority to grant and convey the
same. 4. And also, that the plaintiff, his
heirs and assigns, should and might, forever
thereafter, peaceably have, hold, occupy and
possess the premises, free from hindrance or
molestation of any person or persons lawfully
claiming the same. The plaintiff then assigned
as breaches: 1. That the defendants were not,
at the time of the sealing the deed, the true
and lawful owners of eleven acres, two roods
and twenty perches of the land described and
conveyed in the deed. 2. And were not law-
fully seised, in their own right, &c., of and in
JOHNS. REP., 15.
| eleven acres, two roods and twenty perches
' thereof. 3. And had not good right, &c., to
i grant and convey the said eleven acres, two
| roods and twenty perches. 4. And that the
plaintiff "hath not been suffered to have,
hold, occupy and possess eleven acres, two
roods and twenty perches of the said land and
premises, the same being part and parcel of
the said land and premises, so conveyed as
aforesaid, free from the hindrance or molesta-
tion of any person or persons lawfully claim-
ing the same . but the said eleven acres, two
roods and twenty perches of the said land,
parcel of the said land and premises so con-
veyed, OB aforesaid, were, at the time of the
making the said identure in writing, and for
a long time before that, and ever since, have
been a common and a public highway, agree-
able to the laws and statutes of the State of
New York ; and have, for all the time afore-
said, been used, occupied, possessed and en-
joyed by the people of the State of New York
as sucii common and public highway."
To this declaration the defendants pleaded :
1. Non e*t *faetum. 2. To the first, [*485
second and third breaches, that they were
lawful owners, &c., and were lawfully seised,
&c., and had, in themselves, good right, &c.,
pursuing the words of the breaches assigned
by the plaintiff. To this plea the plaintiff re-
plied, taking issue thereon.
To the fourth breach the defendants demur-
red, and showed, for causes of demurrer, that
it does not allege any eviction, disturbance or
molestation, in the enjoyment, possession or
occupation of the said eleven acres, two roods
and twenty perches ; and that it is, in other
respects, uncertain, informal and insufficient,
&c. The plaintiff joined in demurrer.
The cause was tried before Mr. Justice Platt,
at the Herkimer Circuit, in June, 1817. The
deed declared upon was produced in evidence,
and it appeared to be duly executed and ac-
knowledged by both the defendants. It was
admitted that a part of the land conveyed was.
as mentioned in the declaration, a public high-
way. The counsel for the defendants moved
for a nonsuit, on account of the improper
joinder of the wife, who, it was admitted, had
no interest in the land except a right of dower ;
but the motion was denied. A verdict was
taken for the plaintiff, by consent, subject to
the opinion of the court on the first three
breaches assigned in the declaration, and con-
tingent damages were assessed on the fourth.
The defenclants moved in arrest of judg-
ment, on the ground that the wife was not
bound by the covenants contained in the deed,
though acknowledged according to the Stat-
ute ; or, if she was bound, then the declara-
tion should have stated her acknowledgment.
Mr. Talcot, for the defendants. 1. In sup-
port of the demurrer to the fourth breach as-
signed in the declaration. The breach alleged
is, that some part of the premises conveyed
was and is a public highway and used as such.
But to show a breach of the covenant for
quiet enjoyment, the plaintiff should have al-
leged an entry by the plaintiff, or an eviction,
or some actual disturbance in the possession.
(Waldron v. M'Carty, 3 Johns., 471; Kortz v.
Carpenter, 5 Johns.. 120; Sedgwick v. Hallen-
back, 1 Johns., 380.)
1167
486
SUPREME COURT, STATE OP NEW YORK.
1818
486*] *At the common law, there were two
modes of taking advantage of a warranty — one
by voucher,and the other by the writ of warran-
tia chartae ; but in neither case could the party
recover, unless he was in possession, and had
been evicted or disturbed. Since covenants
have been introduced into conveyances, the rule
is the same. That the grantee cannot get into
possession of his lands, is no breach of the
warranty. A fortiori, there is no breach of
the covenant here, as the highway is a mere
easement. (1 Saund., 322 a, note 2 ; Hob., 12.)
[THOMPSON, Ch. J. You need not argue
this point further. It is settled that there can
be no breach of this covenant unless there has
been an eviction, or disturbance of the pos-
session.]
2. As to the facts of the case. The existence
of a public highway through the premises was
no evidence of a breach of the covenant of
seisin ; it could, therefore, be no measure of
damages for the breaches of covenant, to be
assessed by the jury at the trial. The original
owner of the soil, in laying out a highway,
gives merely the use of the land to the public.
The ownership and seisin still remain in him,
or. his heirs or assigns. He may maintain
trespass for any exclusive appropriation of it
by another. (Cortelyou v. Van Brundt, 2 Johns. ,
357.) To maintain trespass, the plaintiff must
be in possession ; and seisin is the possession
of a freehold. If the defendant, then, had the
seisin, subject only to an easement or right of
way over a part of the premises, it follows
that there has been no breach of this covenant.
Again ; the plaintiff ought to have been
nonsuited. The wife was not liable on the
•covenant, and could not, therefore, be joined
in the action. Both defendants having pleaded
jointly, there can be no judgment against
the husband alone. This misjoinder of the
wife may be taken advantage of under the
general issue. (1 Chitty PI., 32, 45 ; 2 Vin.
Abr., tit. Actions, Joinder, D, d, pi. 8.)
There is an allegation of a contract made by
both defendants, when, in fact, it is a contract
by the husband alone.
3. The judgment must be arrested. The
487*J wife was not *bound by the covenants
in the deed. At common law, the only mode
in which a feme covert could pass her estate
was by fine or common recovery. But in this
country, she may pass her estate, or bar her-
self of dower, by joining in the deed of con-
veyance with her husband. (Fowler v. Shearer,
7 Mass., 14-20.) Our statute has provided
that she may pass her estate, by her deed, on
a previous acknowledgment made by her on
a private examination before certain judges or
officers. (1 N. R. L., 369.) The covenants in
the deed are not necessary to pass the estate ;
and though the wife may be estopped by her
covenants, she is not answerable for a breach
of them. (7 Mass., 191, Colcord v. Swan.)
If she could be liable at all on the covenant,
it can only be when she has duly acknowl-
edged her deed according to the statute ; and
that it is a material fact necessary to be averred
in the declaration, in order to support the ac-
tion. (2 Sand., 176, n. 3 ; Brook's Abr., Debt,
pi. 193.)
If the wife is not to be considered in court,
1168
the plaintiff cannot recover, for the Statute
Regulating Proceedings as to Joint Debtors
does not apply to this case.
Mr. Ford, contra. There was no misjoinder
of the wife. The husband alone was taken.
The plea is non estfactum by the husband, as
to both defendants. The issue is, whether this
is their deed. It is admitted that it is her
deed, for the purpose of passing her estate.
If it is her deed for any purpose, the issue on
the part of the plaintiff is maintained. The
declaration is supported. There is no variance
between the allegation and the proof.
Next, as to the other pleas to the first, second
and third breaches assigned ; the defendants
say that they were lawfully seised, &c. If
they cannot avail themselves of the coverture
under the general issue of non est factum
neither can they under these pleas. The facts
stated in the fourth assignment of breaches, in
the declaration, may be given in evidence to
support the other breaches assigned. The
existence of the public highway was a breach
of the covenant, *that the defendants [*488
were seised of an absolute and indefeasible
state of inheritance in fee simple in the prem-
ises. These words imply that they had the
sole, exclusive, and uncontrolled dominion
and enjoyment of the estate which they so con
veyed. Suppose there had been an outstand
ing term of nine hundred years, would that not
be an incumbrance, and a breach of the cove-
nant ? To support an action on the covenant
of seisin, it is not necessary to aver or prove
an eviction. (Pollard v. Dwight, 4 Cranch,
421 ; Bender v. Fromberger,4:DM., 436; Duvall
v. Craig, 2 Wheat., 45, 61.) If the grantor is
not seised, the covenant is broken immediate-
ly. (Greenby & Kellogg v. Wilcocks, 2 Johns., 1.)
A pre-existing title in another, so as *to 1^*489
hinder the entry of the grantee, is equivalent
to an eviction. A paramount title existing in
another is an incumbrance. (Prescott v. True-
man, 4 Mass., 627.) In Kellogg v. Ingersoll, 2
Mass., 97, it was held by the Supreme Court
of Massachusetts, that a public highway over
the land conveyed was an incumbrance, and a
breach of the covenant that the premises were
free from incumbrances, &c. If the action
cannot be maintained against the wife, it is
supported against the husband, the party be-
fore the court. If the husband is bound by
the covenants, and the action is supported as
to him, then the judgment cannot be arrested
as to him.
Mr. Talcott, in reply, said that in the cases
of Duvall v. Craig, Prescott v. Trueman, and
Kellogg v. Ingersoll, there were special cove-
nants that the premises conveyed were, and
should remain, free from all incumbrances.
There was no such covenant in the pleadings in
this case. By the pleadings, judgment is de-
manded against both defendants. If the wife
is not to be considered a party in court, then
the objection in arrest is well founded.
SPENCER, J., delivered the opinion of the
court:
In this case the defendants have demurred
to the fourth breach assigned in the declara-
tion. A motion has also been made in arrest
*of judgment ; and the parties have [*49O
submitted a third question, whether the plaint-
JOJINS. REP., 15.
1S18
PAVNK v. WHEELEB.
490
iff is entitled to recover, under the facts in the
case, upon the covenants in the deed, that the
defendants, at the time of Helling the indenture,
were the true and lawful owners of the prem-
ises conveyed, and were lawfully seised in
their own right of a perfect, absolute and in-
defeasible estate of inheritance, in fee simple,
of and in the premises ; and that they had
good right, full power and lawful authority to
grant and convey the same. The facts are
admitted to be, that the deed conveys a tract
of land containing two hundred and sixty-nine
acres and three quarters, eleven acres, two
roods and twenty perches whereof, and in-
cluded in the general boundaries, were at the
time of executing the deed, for a long time be-
fore, and ever since have been, a common and
public highway, agreeably to the laws of the
State, and have been so used, possessed and
enjoyed as a public highway.
The fourth breach, to which the demurrer is
taken, is founded on another covenant in the
same dqed, for quiet enjoyment, and the
breach is the same as upon the other covenants,
the existence of the highway. The motion in
arrest of judgment is founded on this— that a
feme covert cannot be used on a covenant con-
taiued in a deed, inasmuch as she is incapable,
during coverture, to bind herself, by deed, to
respond in damages.
The demurrer is well taken. It has been re-
peatedly decided in this court that the cove-
nant for quiet enjoyment extends to the pos-
session only, and not to the title, and is broken
only by an entry and expulsion from, or some
actual disturbance in the possession. (3 Johns.,
471 ; 5 Johns., 120.)
The statute authorizing and making valid a
conveyance of land by A feme cocert, who shall
be duly examined privately and apart from
her husband, before some proper officer, and
who shall, on such examination, acknowledge
tha». she executed such deed freely, without
any fear or complusion of her husband, alters
the common law no further than merely to
enable the feme covert to convey her interest in
the land intended to be conveyed ; it is. in that
respect, a substitute for levying a fine ; but
41) 1*] beyond that, and as "regards collateral
covenants, the rule of the common law pre-
vails, and a feme cocert is not bound by such
covenants.
The principal question relates to the sup-
posed breaches of the covenants, that the 'de-
fendants were lawful owners of the whole
tract, including the road ; that they were
seised, &c., and had full power to convey, &c.
It must strike the mind with surprise, that a
person who purchases a farm, through which
a public road runs at the time of purchase, and
had so run long before, who must be presumed
to have known of the existence of the road,
and who chooses to have it included in his
purchase, shall turn round on his grantor,
and complain that the general covenants in the
deed have been broken, by the existence of
what he saw when he purchased, and what
must have enhanced the value of the farm. It
is hazarding little to say that such an attempt
is unjust and inequitable, and contrary to the
universal understanding of both vcndor> ami
purchasers. If it could Mice/red, a flood gale
of litigation would be opened, and for many
JOHNS. REP., 15. N. Y. R.. 5. 74
I years to come this kind of action would
abound. These are serious considerations ;
I and this court ought, if it can, consistently
with law, to check the attempt in the bud.
We have, after the most mature considera-
tion, in the case of Jachton, exdtm. Yale* etui.,
v. J/,ii/i,itr,iy. ante, 447. decided that the ex-
istence of a road through a person's land was
j a mere easement ; that his fee and title to it.
. subject to the easement, existed in full vigor,
I and that on the disuse of the road he had a
I right to maintain an ejectment.to recover pos-
I session. This decision then establishes that
I the owner of the soil is the lawful owner ; that
I he is seised, and has power to convey. This
I being so, the covenants contained in the deed
under consideration are not broken.
The case of Ketlitgg v. Ingeraoil,.2 Mass.,1 has
I been cited, to show that the existence of a
I town road is a breach of a covenant against
j incumbrances. The first answer to this case is,
that the plaintiff here counts on no such cove
nant, and the second is, that we should choose
to consider *the point further, before [*4i)2
we assented to the doctrine of that case.
If the plaintiff had a right to recover, prob-
ably we would allow him to enter a //«//<-///•«-
*equi, as against the wife, and take judgment
against the Uusband ; but believing the plaint-
iff not entitled to recover, the defendants
mu>t have judgment.*
Judgment for tlie defendant*.
Right of public in highway is only an eauement.
Hud in— 1 Cow . 240; 19 Wend.. 375; 23 Wend., 448;
', „>. *., 1«2; 15 Barb., 357 : :t: SUJMT.. l'.-u ; :i Daly. B4 :
4s Iiid., 56; 50 Mo., 501; 22 Wis., »£*».
Coceiuint of quiet enjoyment. Cited In— 7 Paige,
4«2 ; IN. Y., 574 ; 5 Lans., 201 ; 6 Burb., 171 ; 58 Barb.,
50 ; 3 Daly, 64.
Joint deed by huxlianil and wife— binding force
of covenant*. Cited in— 2 Leg. Obe.. 20B : 61 Ind., 367.
PAYNE v. WHEELER.
Practice in Justice Court — Adjournment.
Where a cause in a justice's court has been once
adjourned by consent of parties, a second adjourn-
ment cannot be granted at the instance of the
plaintiff.
Citation-7 Johns., 381, 530.
N ERROR, on certiorari to a justice's court.
1
The action in the court below was brought
by the defendant in error against the plaintiff
in error. On the return of the summons, the
parties adjourned the cause by consent, and
when they appeared on the adjourned day, the
plaintiff below requested a further adjourn-
ment, and made oath that a material witness
who had been subpoenaed did not attend. The
defendant below objected to the adjournment,
but the justice granted it for six davs ; at the
expiration of that time, the defendant not ap-
pearing, the cause was tried, and a verdict and
judgment rendered for the plaintiff below.
Per Curiam. In Dunham v. Hayden, 7
Johns.. 881, it is said that the only nulhority
to adjourn, unless at the instance of the de-
fendant, is contained in the ?d section of the
1.— See Peck v. Smith, 1 Days' Conn., 103.
2.-Stt! Addemla fn/ro.545.
lift
492
SUPREME COURT, STATE OF NEW YORK.
Act, and such adjournment must not exceed
six days. In Kilmure v. Sudam, 1 Johns., 530,
it is held that the right of the justice to ad-
journ a case on his own motion, must be
claimed and exercised, if at all, at the return
of the process ; and if the first adjournment is
by consent of parties, no subsequent adjourn-
ment can be made on the motion of the justice.
These cases are conclusive to show that the
second adjournment in the case now before us
was without authority; and the judgment
must be reversed, which is much to be re-
gretted, as justice appears to have been done,
and no more has been recovered than the de-
fendant below admitted to be due.
Judgment reversed.
493*]
*WOODWARD
PAINE AND LAKE.
Justice — Liable for Acts in Excess of Jurisdiction
— Admissions of Competent Witnesses Inad-
mixKible — New Trial.
Where a justice of the peace tried an action for
an assault and battery, and {rave judgment for the
plaintiff for $15, and issued execution thereon,
under which the constable levied on and sold a pair
of horses, wagon and harness ; in an action of tres-
pass by the defendant against the justice and con-
stable, in which he obtained a verdict for $270, the
court refused to grant a new trial, although there
was reason to believe that the justice had not acted
maliciously, but under a mistake as to the extent of
his jurisdiction, and there were strong circum-
stances to show that the party himself had, through
his agent, purchased the goods sold under the exe-
cution, at a price about equal to the amount of the
judgment against him, so that he could have sus-
tained no greater injury than the amount of the
judgment ; but still the case admitted of doubt, and
the question was fairly submitted to the jury.
The admissions and declarations of a person, who
is himself a competent witness, cannot be given in
evidence.
rPHIS was an action of trespass, for taking
-L and carrying away a pair of horses, wagon
and harness. The cause was tried at the
Dutchess Circuit, in 1817.
The defendant Paine was a justice of the
peace in the County of Dutchess. In July,
1816, an action was brought before Paine, by
one Hannah Belts, against the plaintiff in this
suit, for an assault and battery. A. written
plea to the jurisdiction of the justice was in-
terposed and overruled ; and during the trial,
the counsel for Woodward strenuously object-
ed to the justice proceeding in the cause, and
stated to him that the judgment would be void,
and all acting under it would be trespassers.
The justice, however, persevered, and H.
Belts obtained a verdict and judgment for $15.
An execution was issued thereon, and deliv-
ered to the defendant Lake, a constable, who
seized the goods in question, but left them
with the plaintiff until the time of sale, when
they were purchased by Hine, for about $19.
Andrew Lake, a witness on the part of the
plaintiff, testified that soon after Hine pur-
chased the horses, he sold them to Daniel Lake
for $225, and that Daniel Luke sold them to the
NOTE.— Q<Wrers— Personal liability of— Justices li-
able for extra judicial- acts. See Wallsworth v. M'Cul-
lough, 10 Johns., 93, note and other notes there cited.
8f«, also, Warner v. Shed. 10 Johns.. 138, note.
1170
witness for $227.50 ; that the witness bought
them for the plaintiff, and that the plaintiff
gave the witness his note for $239, and also $&
in cash; the difference of the price being in-
tended, as the witness alleged, to compensate
him for his trouble. This witness, being
pressed, on his cross-examination, was hesitat
ing and incoherent in his answers, especially
when questioned as to the reason why the
plaintiff had paid him $2 in cash.
Several witnesses were produced on the part
of the defendants, to prove circumstances
from which it might be inferred that Hiue pur-
chased as the agent of, and with money fur-
nished by the plaintiff; as, that Hine, who
lived in the *plaintiff's family, was [*494-
very poor, and unable to pay the money which
he had bid at the constable's sale ; but there
was no direct evidence to this effect. The
counsel for the defendants offered to prove
declarations of Hine, that he had been fur-
nished by the plaintiff with money for the pur-
pose of bidding for the horses ; but tlie judge
rejected the testimony. It also appeared that
Hine had kept out of the way, to avoid being
subpoenaed by the defendants, and that, after
he had been subpoenaed, he absented himself
from the trial.
The judge charged the jury that the plaintiff
was entitled to recover, as the justice had no>
jurisdiction in the cause which he tried, and
therefore his judgment was void, and all act-
ing under it were trespassers ; that if the jury
believed that the justice had acted from igno-
rance merely, and that his intentions'were good,
they ought to give such damagesonly as would
compensate the plaintiff for the actual loss
that he had sustained ; that to determine thif-
point, it would be proper for them to consider
the manner in which the sale was made, and
how the property was afterwards disposed of,
and to determine whether there had been any
collusion between the plaintiff and the pur-
chaser, by which the plaintiff obtained his
property again, without paying more than the
amount of the judgment ; or whether Jie had
actually given the value of it ; that the testi-
mony of Andrew Lake was positive as to the
fairness of the transaction, but it was opposed
by many strong circumstances ; and circum-
stances frequently afforded more satisfactory
evidence than positive proof ; that from the
testimony he was inclined to think that the
sale of the horses was collusive, but this was a
question for the decision of the jury ; and that
if the jury believed, from the testimony, that
the defendants had acted from improper mo-
tives, and knowingly, they might give a ver-
dict, not only for the actual damage sustained
by the plaintiff, but in addition, for smart
money, for the oppression and vexation which
they had created.
The jury found a verdict for the plaintiff
for $270, which was about the value of the
property in question.
Mr. Swift, for the defendants, now moved
to set aside the verdict, *and for a new [*49*>
trial. 1. Because proper testimony had been
rejected. 2. Because the verdict was against
evidence. 3. For the misdirection of the
judge. He contended that the evidence of the
declarations of Hine ought to have been ad-
mitted. If he was an agent of the plaintiff, it
JOHNS. REP.. 15.
BALDWIN v. CARTEH.
495
was, no doubt, admissible (Molt. v. Kip., 10
Johns., 478) ; but if he was not, yet the man-
ner in which he took possession of the prop-
erty, his declaration at the time, and the char-
acter in which he acted, were part of the re»
get,ta. and ought to have been received in evi-
dence. (Waring v. Warren, 1 Johns., 340; 4
Johns.. 230 ; 1 Johns.. 159.)
2. The true measure of damages is what the
plaintiff actually lost — which was $19, and no
more.
Mai*r». Hooker and P. Ruggle*, contra, in-
sisted that the evidence of the declarations of
Hine was properly rejected. Though, in some
cases in ejectment, evidence of the declarations
of a tenant has been received, vet it has been
only to satisfy doubts as to the character of
the possession under the circumstances, and
never as to the title. The declarations admit-
ted were, in tome degree, against the interest
of the person making them. (Phil. Ev., 182,
and note a; 6 Johns., 19-31.)
It is, however, regarded as a dangerous
species of evidence, and the admission of it is
an exception to the general rule.
The counsel next went into examination and
discussion of the facts, to show that the ver-
dict was supported by the evidence
Per Curiam. The motion for a new trial in
thi* rase must be denied. From the nature of
the cause, and the testimony that was given,
there was room for an honest difference of
opinion as to the conduct of the defendants,
and as to the damages sustained by the plaint-
iff. We are inclined to think that the better
conclusion is. that the magistrate acted under
an honest and real impression that he had
jurisdiction of the case before him. The tes-
timony is pretty strong to show that the prop-
erty was purchased in, under the constable's
sale, for the benefit of the plaintiff, so that he
has only sustained damages to the amount of
4J>O*j the 'judgment against him. But the
testimony on both these questions might well
be considered doubtful ; it depended very
much on the credibility of witnesses, and it
was fairly submitted to the jury ; and we can-
not say that they have so much erred as to
warrant us in interfering and setting aside the
verdict.
The declarations and confessions of Hine
were properly excluded. He was a competent
witness, and his confessions could not be re-
ceived in evidence. There was no direct proof
that he was the plaintiff's agent, or acted in
his behalf. Upon the whole, although the dam-
ages are higher than we think they ought to
have been, yet, as it is an action sounding in
tort, the verdict must stand.
Motion denied.
Cited in-6 Cow.. 118 ; 7 Cow., 637 ; 7 Wend., 384 ; 20
Wend., 173: How. Cas., 71: 6 Barb.. 77; 1 Abb. Pr.,
301 ; 4 Duor. 25»; 3 Wood. & M., 188.
BALDWIN ». CARTER.
Juttice Court — Adjournment — Discontinuance —
Deiay doe* not Amount to.
Where, in a Justice's court, the cause has been ad-
journed to a future duy.at a certain hour, when the
defendant up|M-urs, hut the Ju>tiee dues not arrive
until an hour after, and in about twenty minutes la
JOHNS. REP., 15.
followed by the plaintiff, and the defendant, on
seeing the plaintiff, goes away, declaring that the
cause U out of court, although apprised t,y the jus-
tice that he should call It immediately, the delav
does not, under the circumstance* of the case,
amount to a discontinuance, and a judgment ren-
dered for thv plaintiff on an cjr-ptirte hearing, will
not be set aside, as the defendant must U- divined
to have voluntarily abandoned the cause.*
Citation— 12 Johns., 217.
TN ERROR, on certiorari to a justice's court.
The defendant in error brought an action in
the court below against the plaintiff in error,
in which, after issue joined, the cause was ad-
journed to a future day. at 2 o'clock in the
afternoon. The defendant below appeared at
the time, but the justice did not come until :*
o'clock, or a little after, when, the plaintiff
below not having arrived, the defendant urged
the justice to call the cause. The justice,
however, delayed. until about twenty minutes
after three, at which time the plaintiff ap-
peared, and the defendant, on seeing him,
went away, declaring that the cause was out
of court, by reason of the delay, although the
justice apprised him that he should call the
cause immediately. The trial proceeded, and
verdict and judgment were given for the
plaintiff below.
Per Curiam. The only point in this case is,
whether the delay was such as to authorize the
defendant below to consider the cause discon-
tinued ; and we think, under the circumstances
stated in the case, that it was not. The de-
fendant *waited until the justice and [*49 7
plaintiff both arrived, and was apprised by the
justice that he was about calling the partie>.
The defendant, therefore, willfully absented
himself after he knew that the trial was to
take place : he must, therefore, be considered
as having voluntarily abandoned his cause.
(12 Johns., 217.) Had he gone away before
the plaintiff appeared, and under an impres-
sion that the cause would not be called, tin-
delay, perhaps, was such as might now entitle
him to relief ; but the circumstances under
which he withdrew destroy all ground of com-
plaint. The judgment must, accordingly, be
affirmed.
Judgment affirmed.
Cited in-4 Den., 1«2 ; 11 Barb., 660.
SHEPARD t. RYERS.
Contracts— Monty as Inducement to Contract —
Cannot be Recovered «'» Action for Damage*
for Breach of Covenant — Joint Proprietor» —
Partition by Arbitrators — Award.
In an action for the breach of a covenant con-
tained in an agreement, the plaintiff cannot ree .\ er
back from the defendant money which he paid him
to induce him to enter into the aKn-cment. as it is
Mill s\ib-Nt in truii'i unreseinded, rsp.-rially where the
plaintiff in the same action recovers damages fora
breach of the covenant.
The plaintiff and defendant, beinar joint proprie-
tors of a tract of land, of which the plaintiff had
conveyed a part, by deed, with covenant for quiet
•What delay will work a discontinuance: see
M'Carty v. ITPbenoo, 11 Johns.. 407 : \Vilde v.
Dunn. /•/.. ».V.i; M.M r v. Fisher, infra, 504; Stoddard
v. Holmes, 1 Cow., 245.
1171
497
SUPREME COURT, STATE OF NEW YORK.
1818
enjoyment and warranty, agreed to make partition
of the tract in such a manner that the part conveyed
by the plaintiff should be set off in his portion : and
they appointed three persons to make the partition,
and covenanted to execute releases to each other.
The persons appointed having- made partition, the
defendant refused to execute a release. Held that
the plaintiff was not entitled to recover, as damages
for the breach of the agreement to release, any
part of the consideration expressed in the deed, to
his grantee, who had never been evicted, the plaint-
iff's liability being merely contingent; and he can
have no claim against the defendant for damages for
which he may, by possibility, be liable, to his grantee;
besides, it is questionable whether the defendant
would not be estopped by the partition, which,
though it has not the operation of a conveyance,
might be considered in the nature of an award,
from the setting up a title against the plaintiff's
grantee.
Citations— 3 East, 15; 4 Ball.. 20.
THIS was an action of awumpsit. The dec-
laration contained five counts on a special
agreement, and the common indebitai'us
counts. The cause was tried before Mr. Jus-
tice Platt, at the Tioga Circuit, in June, 1817.
At the trial, the plaintiff gave in evidence a
covenant, or agreement, under seal, dated the
2d of November, 1809, and executed by the
plaintiff and defendant, which are as follows :
" Whereas John Shepard, of the town of
Athens, in the State of Pennsylvania, and
John P. Ryers, of the town of Painted Post,
in the State of New York, were joint owners
of a certain tract of land, situated in the town
498*] of Spencer, *in the County of Tioga,
and State of New York, called the Schoolcraft
Location, containing 2,600 acres of land; and
whereas, the said John P. Ryers' part of
share of said tract of land, which was two
thirds, was sold at public auction by the
sheriff of Tioga County, and bid off by John
H. A very and Joshua Ferris, and for which
they have received a deed from the said sheriff:
and whereas, the said John Shepard has agreed
to procure from the said John H. Avery his
claim or title to the said tract of land, re-
leased to the said John P. Ryers, and the
said Ryers agrees to procure the claim or title
of said Joshua Ferris to the said tract of land;
and whereas the said John Shepard and John
P. Ryers have agreed to have the said tract
of land divided — that is to say, the said Rog-
ers to. have two thirds, and the said Shepard
one third, the Voorhes' farm, so called, to be
set off and included in Ryers part, and also
the places or farms occupied by the Sparks,
Dunn, Bates and Spaldiug, to be set off and
included in Ryers', and he to confirm the con-
tracts originally made for the farms in pos-
session of the above-named persons with them
and those under whom they claim. In Shep-
ard's part to be set off and included the farms
in possession of Gibson. English and Rob-
erts. In the division of said tract, the rela-
tive value of said above-mentioned farms,
compared with the other parts of the said
tract, shall be taken into consideration, so as
to form an equal division in quantity and
quality in the proportion aforesaid ; and the
said division shall be made by Emanuel
Coryell (and two other persons, in whose place
the parties, by a subsequent agreement, sub-
stituted Knox and Ferris), or any two of them,
and the expenses of the division to be paid by
the parties in proportion to their rights. Now,
therefore, the said John Shepard and John P.
1172
Ryers do hereby covenant and agree, to and
with each other, and to and with their respect-
ive heirs, &c., to perform, fulfill, and keep,
all and singular the agreements on their parts
and behalf to be performed, fulfilled and kept;
and that they will execute, each to the other,
releases, according to the divisions to be made
by the above-mentioned persons ; and they do
hereby to the said performances of the said
agreements bind themselves, *their [*499
heirs, &c., each to the other, in the penal sum
of $4,000, firmly by these presents. Sealed,
&c."
The plaintiff also produced in evidence the
award of the three persons appointed to make
partition of the Schoolcraft Location, dated the
13th of July, 1811, by which the several lots
contained in the Location were set off to the
parties respectively. It was also proved that
the plaintiff had released to the defendant, in
pursuance of the agreement ; and that the de-
fendant had acknowledged that John II. Avery
had released to him, but that the defendant
refused to execute a release to the plaintiff.
To establish .his claim to damages, the
plaintiff proved (the testimony being objected
to, but admitted by the judge), that he had
paid to the defendant $400, in order to induce
him to enter into the agreement. The plaint-
iff also offered in evidence a deed from him-
self to one Gibson, dated in December, 1800,
the consideration expressed in which was £144,
for the farm in the possession of Gibson, men-
tioned in the agreement, and which, by the
partition, was set off to the plaintiff. The
deed contained general covenants of quiet
enjoyment and warranty, and was offered as
evidence of the plaintiff's liability to repay the
consideration to Gibson, by reason of the de-
fendant's refusal to execute a release. The
evidence was objected to on the part of the de-
fendant, but was admitted by the judge, who
ruled that the plaintiff was entitled to recover
two thirds of the consideration money men-
tioned in the deed, with interest from the date.
The plaintiff, then, for the same purpose, pro
duced in evidence his deeds to English and
Roberts for their farms, mentioned in the
agreement between the parties, both of which
contained general covenants for quiet enjoy-
ment and of warranty.
The judge charged the jury that the plaint-
iff was entitled to recover as damages, sustained
by the defendant's refusal to execute a release,
all money that the plaintiff had been obliged
to pay, or was liable to pay to the purchasers
of the land, and the expenses of the partition ;
and that, therefore, it would be proper for the
jury to allow the plaintiff two thirds of the
amount of the consideration money, expressed
in the several deeds given in evidence, together
with interest from the date of the deeds, and
one third of *the expenses of partition [*5OO
and interest thereon, together with the sum of
$400 paid by the plaintiff at the execution of
the agreement, and interest on the same. The
jury accordingly found for the plaintiff a
verdict comprising those sums.
A motion was made to set aside the verdict,
and for a new trial.
Mr. H. Bleecker, for the defendant. 1. It
was incumbent on the plaintiff to show that he
had performed, or offered to perform, his part
JOHNS. REP., 15.
1818
SHEPARD v. RYEH«.
500
of the agreement. The witness merely says
that his impressions were that the plaintiff
tendered a release to the defendant. But the
fact ought to have been made out by clear and
positive testimony.
2. The plaintiff could not recover damages
merely because he might, possibly, at some
future day, be sued by the persons to whom he
had sold the land. The plaintiff has never been
called on to pay. It was not certain that bis
grantees would ever be evicted. The defend-
ant might have thought proper to release
them. The deeds of the plaintiff contained
covenants for quiet enjoyment and warranty ;
but until the grantees are evicted, they can
sustain no action against the plaintiff, on his
covenants. (2 Johns., 1, 395; 8 John-.. 471 ;
? Johns., 258. 876; 8 Johns., 198.) The de-
fendant, therefore, ought not to be compelled
to indemnify the plaintiff for what he has not
paid, and may never IMJ called to pay.
8. The plaintiff was owner of one third of
the land, and the defendant of two thirds, and
they agreed to make partition. This agree-
ment not being executed, the parties stand
precisely in the same situation as before ; and
if the plaintiff is called on to refund the
money he has received from his grantees, he
retains the land ; and all that he can be enti-
tled to recover as damages, is six years' inter-
est. (CauUcin* v. Harris, 9 Johns., 324.)
4. The damages do not necessarily result
from the breach of contract stated in the dec-
laration. Unless particularly stated in the
declaration, evidence of such damage is inad-
missible. (1 Chitty PI., 882.) Special dam-
ages arising from special causes must be spe-
cially stated.
5. Suppose the plaintiff, after the agreement,
5OI*] had entered *into possession of these
farms, according to the partition, would not
the defendant have been estopped from bring-
ing an action of ejectment ? Though an award
may not operate to convey land, it may con-
clude the defendant from contesting the title
of the plaintiff. (Doe v. Router, 8 East, 15 ;
Calhoun's Ijvuee v. Dunning, 4 Dall., 120 ; Kyd
on Awards, 59.)
6. The plaintiff and defendant arc tenants
in common. Can one tenant in common
maintain an action of ejectment against his
co-tenant ?
[SPENCER, J. No doubt he may, though no
actual ouster proved.]1
7. The deed from the plaintiff to Gibson and
others ought not to have been recieved in evi-
dence, to show particular damages: they are
not mentioned in the declaration. (1 Chitty
PI., 833.)
Afr. Collier, contra. Though the plaintiff
and dcfepdant were, originally, tenants in
common, yet before the agreement about the
partition, the plaintiff had conveyed all his
right and title, so that, at the time of the agree-
ment, he was no longer a tenant in common
with the plaintiff.
The evidence as to the release of the plaintiff
was sufficient. Though one of the witnesses
spoke of his impressions, yet another witness,
Joshua Ferris, proved the release by the plaint
l.-O«te«v. Brydon. 3 Burr., 1896: 13 Mod., «7; 7
Mod.. 39: 1 T. R., 758 ; 3 WiU.. 118.
JOIINB. RKP. 15.
iff, pursuant to the agreement, and that the
defendant had acknowledged to him that Ave-
ry had released to the defendant. The evidence
was unconlradicted, and went to the jury, who
have passed upon it.
As to the damages, the cases cited are tho-r
of bonds of indemnity, or where the question
is technically as to the indemnity. They are
not analogous to the present case.
It is obviously just that the plaintiff should
be restored to the situation in which he would
have stood had the defendant performed his
part of the agreement.
The deeds to Gibson and others were suffi-
ciently referred to in the declaration to entitle
the plaintiff to offer them in evidence.
, Ch. J., delivered the f*5O2
opinion of the court:
The rule of damages by which the recovery
in this case was governed, cannot be sanctioned
in several particulars. The action is founded
upon a covenant entered into by the panic-.
the object of wliich was to effect a division of
certain lands in which the parties were jointly
interested. One item of the plaintiff's claim to
damages was $400, which, it was alleged, he
paid to the defendant to induce him to enter
into the agreement. This sum could not, in
any way, be considered as damages for breach
of the agreement. It formed a part of the con-
sideration of the agreement; and as long as
that is considered a subsisting contract, the
plaintiff can have no claim to recover back the
consideration money. If the covenant had
been rescinded, or an end put to it, in any
manner, without his fault, then the plaintiff
might recover back this money; but as long as
the covenant is considered in force, he can have
no claim to recover back the sum thus paid.
The other items allowed as damages are found-
ed on the supposition that the covenant was in
full force. The plaintiff could not recover
damages to which he might, by possibility, be
liable, in consequence of the covenants in his
deeds to Gibson, English and Roberts. These
were general covenants of warrantv, and for
quiet enjoyment. The deeds were lor farms,
which by the covenant were to be set 'off to
Shepard, and which have been awarded to
him by the persons for that purpose ap-
pointed. But these grantees have not been
disturbed in their possessions, nor has Shep-
ard, in any manner, been made liable for any
damages under his covenants. Indeed, it
does not appear that his covenants have been
broken, as no eviction of his grantees has been
shown. His liability is altogether contingent .
and he may never be exposed to the pavnu-nt
of the damages he has recovered of the de-
fendant. The plaintiff might, possibly, apply
to the Court of Chancery, and compel a spe-
cific performance of the defendant's agree-
ment to release his claim to these farms ; but
as Jong as he chooses to rest upon his covenant
for damages at law, he must show himself
damnified, or he can only recover nominal
damages. Indeed, it is very questionable
whether the defendant ever could set up hi*
title to' these farms. The *partilion [*5O3
made by the persons appointed for that pur-
pose might be considered in the nature of an
award of arbitrators, which, though it might
117:)
503
SUPREME COURT, STATE OF NEW YORK.
1818
not have the operation of conveying the land,
might estop the defendant from setting up his
title to these farms, or disturbing the posses-
sions held under the plaintiff's deeds. (3
East, 15; 4 Dall., 20.) A new trial must,
therefore, be granted, with costs to abide the
event.
New trial granted.
Cited in— 2 Cow., 650; 5 Cow., 387, 484 ; 12 Wend.,
584 ; 32 N. Y., 567 ; 5 Duer, 280.
RICE *. PEET.
Real Property — ExcJuinge of — Is within Statute
of Frauds — Note of Third Person Given on
Parol Agreement is without Consideration —
Incapacity of Maker of Note — Pendency of
another Suit.
In an action to recover the amount of a promis-
sory note, delivered by the plaintiff to the defend-
ant, in pursuance of an agreement between them,'
of which note the defendant had received payment,
the plaintiff may show that he was, at the time of
making the agreement and delivering the note,
insane and incapable of contracting.
An agreement for the exchange of lands is with-
in the Statute of Frauds, and must be in writing;
and therefore, where, on a parol agreement for
such exchange, the plaintiff delivered to the defend-
ant the promissory note of a third person, as a
pledge, to be forfeited in case of the plaintiff's non-
compliance with the agreement, and the defendant
received payment of the note, the plaintiff may re-
cover the amount from the defendant, the delivery
of the note being without consideration.
N ERROR, on, certiorari to a justice's court.
note was obtained from him at a time when he
was incapable of making any contract ; and
the jury have considered that fact as made out
by proof. But there is another ground on
which the plaintiff had good right to recover
the money received by the defendant on that
note. It was received by the defendant with-
out consideration ; the contract for the ex-
change of farms was void by the Statute of
Frauds, being by parol only. The judgment
must, accordingly, be affirmed.
Judgment affirmed.
Cited in-7 Cow., 93; 7 Wend., 172; 13 Wend., 54;
16 Wend., 28; 2 Hill, 488; 10 N. Y., 235; 48 N. Y..
354; 17 Barb., 473; 13 How. Pr., 219 ; 2 Hilt., 10; 48
Super., 81 ; 26 Mich., 421 ; 37 Ohio St., 412 ; 35 Ind., 4 ;
47 Ind., 8 ; 15 Mich., 236.
I
MYER v. FISHER.
Practice in Justice Court — Adjournment — Vol-
untary Absence of Defendant.
Where a cause in a justice's court is adjourned to
a future day, at a certain hour, when the parties
attend, and the justice,- for his own convenience,
and with the consent of the defendant, delays the
trial, and when he is ready to try the cause, informs
the defendant that he intended to bring it on, who
voluntarily absents himself, the delay does not
amount to a discontinuance, and a judgment ren-
dered against the defendant, on an ex-parte trial,
is not erroneous.
N ERROR, on certiorari to a justice's court.
I
The defendant in error brought an action in
the court below against the plaintiff in error,
and declared against him in an action for
money had and received, on a certain promis-
sory note given by David Franklin to the
plaintiff below, and upon which the defend-
ant below had received the money ; and also
alleging that the note was obtained from him,
the plaintiff below, "by management, when he
was insane and of unsound mind. The de-
fendant pleaded the general issue, and that
there was another suit pending before the
same justice, between the same parties, for the
same cause ; and also that the note was re-
ceived by the defendant below in pledge, on
an agreement to exchange farms, to be for-
feited unless the agreement was fulfilled, and
that the plaintiff below failed in performing
his agreement. On the trial, evidence was
given'of the incapacity of the plaintiff below
to contract, at the time the bargain was al-
leged to have been made. The defendant be-
low proved the pendency of another suit be-
tween the same parties, on another note given
by one Parish to the plaintiff below, and
5O4*] which had been pledged in the *same
manner. The jury found a verdict for the
plaintiff below, on which judgment was ren-
dered.
Per Curium. The judgment must be af-
firmed. Admitting the pendency of another i
suit by the same plaintiff against the same de-
fendant to have been duly proved, informed Landlord and Tenant — Lease at Annual Bent —
no objection to this action ; it was for a dis-
tinct matter, and the plaintiff had a right to
After issue joined in this cause, it was ad-
journed to a future day, at 2 o'clock in the
afternoon, at which time the parties appeared,
and the justice having indispensable business
which prevented his attending at the time ap-
pointed, the defendant below, who is the
plaintiff in error, assented to a delay. When
the justice had got through his business, be-
tween 4 and 5 o'clock, he saw the defendant
in the street, and sent word to him and to his
attorney, who was at a short distance off, that
he was ready to proceed ; but neither of them
appeared, and the justice proceeded to try the
cause, and gave judgment for the plaintiff be-
low.
Per Curiam. The judgment must be af-
firmed. The consent *of the defend- [*5O5
ant below to the delay takes away all ground
of complaint. It is evident that he willfully
absented himself, after being apprised that the
cause would be called on to trial. The delay
here is fully and satisfactorily accounted for ;
and if the defendant has sustained any injury,
it has been occasioned by his own fault or
folly, and does not come within the principle
which has governed any of the cases in which
it "has been held that the cause was out of
court, in consequence of the delay of the trial.
Judgment affirmed.
bring separate suits. Nor was there any legal
objection to the plaintiff's showing that this
1174
ABEEL AND ABEEL v. RADCLIFF.
Tenant Holding over, Holds from Year to
Year — Ground Rent.
Where there is a lease at a certain annual rent,
and the tenant holds over, after the expiration of
JOHNS. REP., 15.
1818
Am-.Ki. v. RADCLIKF.
505
the lease, without any new agreement as to the
rent, tbu law implies that the tenant holds, from
year to ymr, ut tin- original rent.
But if the rent reserved in the lease was merely
a ground rent, or for the land exclusive of the
buildings, and tin- landlord, at tin- expiration of the
term, becomes entitled to the building's erected by
the tenant, as well as the land, in that ease a differ-
ent rule will be adopted, and the annual value, of
both the land and buildings is the measure of daui-
Citations— 13 Johns., 297; 6 Johns., 48; 5 T. R., 471.
TMIIS was an action for the use and occupa-
L lion of a lot of ground, dwelling-house and
premises, situate in the town of Catskill, in
the County of Greene.
At the trial, it was proved by a witness on
the part of the plaintiffs that there was a dwell-
ing bouse and barn on the premises in ques-
tion. which he hired of the defendant, and
had occupied them for two years and up-
wards, and paid the rent of $180, exclusive of
taxes, of which $150 were paid in cash, and
the residue in improvements to the buildings.
He testified that this was a high rent, though
the premises were valuable on account of their
-it nation, but that without the buildings the
annual value of the lot would not be more
than $12.25. The premises had been leased
by the plaintiffs to Van Bergen, by deed dated
the 1st April, 1793, for a term of ten years, at
the annual rent of $14.25. It was admitted
on the part of the plaintiffs that they had
served the defendant's tenant with a notice to
quit. For the other facts in this cause, see
the case between the same parties (13 Johns.,
297). the statement in which, it was consented,
should be considered as part of the case in the
oOO*] present suit, except *so far as it relates
to the agreement respecting the valuation of
the rent.
It was contended, on the part of the plaint-
iffs, that they were entitled to receive a rent,
as well for the lot as the buildings thereon,
equal to the sum received by the defendant
from his under tenant ; and it was admitted,
on the part of the defendant, that if such were
to be the rule, the plaintiffs were entitled to
recover $300, l>eing- the two years' rent ; but
the defendant contended that he was liable
only for the use of the lot, exclusive of the
buildings ; and it was proved that the lot
alone was worth from $10 to $12. A verdict
was taken for the plaintiffs for $300, which
was to be modified in conformity to the rule
to be laid down by the court, as to the amount
that the plaintiffs were entitled to recover.
Mr. J. V. D. .Scott, for the plaintiffs. The
court have clearly decided that the plaintiffs
are entitled to this action. (S. C.. 13 Johns.,
297.) The only question here is as to the
amount of rent to be recovered. By the 31st
section of the Act Relative to Rents (36th (tHL,
ch. 63; 1 N. R. L., 435-445), where the demise
is not by deed, the landlord may recover a
satisfaction for the use and occupation. Here
the lease having expired, and the defendant
holding afterwards under an agreement for a
lease, which was void for uncertainty, there is
nothing shown but the mere relation of land-
lord and tenant between the parties. There
being, then, no evidence of any stipulated
rent, the plaintiff is entitled to recover a rea-
sonable compensation for the use and occupa-
tion.
JOHNS. REP., 15.
,Vr. P. Ituggks, contra, admitted that the
only question was how much the plaintiff was
fairly entitled to recover. As the defendant
loses all the buildings he has erected on the
premises, in justice and equity lie ought not
to pay more than the value of the ground rent.
Where a tenant continues in possession after
the expiration of a lease, the fair understand-
ing is that he is to pay rent according to the
lease. (Harding v. Cretlutrn, 1 Esp. N. P.
Cas., 57.)
In Hern v. Tomlin, Peake's N. P. Cas., 192,
where the defendant had entered into posses-
sion under an agreement *to purchase, [*<>O7
and an assurance that the plaintiff had a long
term of years, on the faith of which he in-
curred considerable expenses. Lord Kenyon
ruled that an action for use and occupation
would not lie, as the occupation was not bene-
ficial, but injurious, there being only three
years of the term to run. In Smith v. ntewirt,
6 Johns., 46, where a person entered into pos-
session of land, under a contract for the pur-
chase, which he afterwards refused to com-
plete, it was held that an action of atutumpnit
for the use and occupation would not lie
against him ; and that the plaintiff's remedy
was by an action of ejectment to recover the
SPENCEK, J. The right of the plaintiffs to
recover, as for the use and occupation of the
premises, was settled by the decision of this
court between the same parties (13 Johns.,
297), under the same state, of facts. The
plaintiffs claim the real annual value of the
premises ; the defendant insists that they are
entitled to recover only the rent stipulated in
the original lease for ten years, which is
$11.25, or at most, the annual value of the lot,
without the buildings.
The principle is. undoubtedly, a sound one,
that where a tenant holds over, without any
new stipulation between the parties, an impli-
cation arises that there is a tacit consent on
both sides, that the tenant shall hold, from
year to year, at the former or first rent.
This case, however, stands on different
ground ; and the facts disclosed show that the
principle contended for does not apply. The
parties have agreed to the facts as stated in the
case in 13 Johns. ; and it will be seen, by ref-
erence to those facts, that the rent reserved by
the original lease was exclusively reserved
upon the lot, without regard to the buildings.
Since the expiration of the original lease, and
the subsequent events, the plaintiffs have a
legal title to the buildings, as well as to the
lot. The former rent accruing from the lot
alone, cannot be the criterion in ascertaining
the value of the rent of the house and lot ; and
the law raises no implied agreement in such a
case, that the old rent -hall be the measure of
damages. To test the soundness of i lie rule
insisted on for the defendant, let us suppose
that a landlord *lets a vacant lot for a [*5O8
year, at a stipulated price, and during the
term erects a valuable house on the lot, with
the absent of the tenant ; nothing is said as to
the second year, but the tenant enjoys the lot
and the house ; would the landlord's right to
rent be restricted to the amount he was to
receive during the first year, for the lot ? We
117*
508
SUPREME COURT, STATE OF NEW YORK.
181$
think it would not, but that he might recover
the actual value. No substantial difference is
perceived between the case put and the pres-
ent. The rent agreed upon between the parties
was for the naked lot ; and when/by operation
of law, the plaintiffs have acquired a title to
the house also, a different rule must be estab-
lished ; for a new state of things has arisen
between the parties, repelling the presumption
that they intended that the tenant was to hold
at the old rent. I am, therefore, of opinion
that the plaintiffs are entitled to judgment for
$300, for which the verdict was taken by con-
sent.
VAN NESS and YATES, JJ., concurred.
THOMPSON, C'h. J. It is a settled principle
that the action for use and occupation will lie
only where there is an express or implied con-
tract under which the possession and enjoy-
ment of the land has been held. In the case
of Smith v. Steicart, 6 Johns., 48, it is said by
this court, that the relation of landlord and
tenant must exist, founded on some agreement
creating that relation. In the case before us,
this relation originated by express contract,
and at a specified rent; and the simple question
arising out of the case is, where such a tenant
holds over, after the expiration of his lease,
what is the implied contract as to the amount
of rent ? Upon this point I have supposed no
doubt could exist, that, in the absence of any
express agreement, the implication of law
would be, that each party assented to a con-
tinuance of the tenancy, at the same rent. If
this is the general principle, I see nothing in
the present case which should prevent the ap-
plication of that principle.
There is, certainly, nothing in the opinion
of the court in the former case between the
same parties (13 Johns., 297), which can, in
any measure, take it out of the general
5O9*] *rule. So far as any existing equities
between the parties ought to influence the de-
cision, that case is decidedly against the claim
now set up by the plaintiffs. For, although
we considered the covenant relative to the
renewal of the lea"se and payment for improve-
ments as void, for uncertainty, yet it is ex-
pressly said that the object of the parties
probably was that the lessee should have a
new lease, for such a term as would reimburse,
or indemnify him, for his expenses in the
erection of a house and barn, in case the
plaintiffs did not elect to pay for them, at the
expiration of the former lease. The plaintiffs
not having paid for these buildings, nor given
a new lease, are now seeking to deprive the
defendant of any benefit from the improve-
ments made, at all events, under a belief and
expectation that he was to receive a compensa-
tion for them. This must strike every person
as being highly inequitable and unjust. It is
no answer to say that the plaintiffs may bring
an ejectment and recover possession of the
land, and in that way deprive the defendant
of his improvements. If they choose in that
way to put an end to the tenancy, they may
probably do it. But if they elect to consider
the defendant a tenant, and bring an action
that can only be supported on the supposition
that the relation of landlord and tenant still
exists, the defendant is entitled to the full
117fi
benefit of the rule so explicitly laid down by
Lord Kenyon, in the case of Doe v. 'Bell, 5 T.
R, 471, that where a tenant holds over, after
the expiration of his term, without having
entered into any new contract, he holds upon
the former terms. I am, accordingly, of opin-
ion that the amount of recovery ought to be
regulated by the rent reserved in the former,
or first lease.
PLATT, J '., was of the .same opinion.
Sed per Curiam.
Judgment for the, plaintiffs for $300.
Questioned and distinguished— 2 Duer, 448.
Distinguished— 4 Cow., 350.
Cited in— 2 Wend., 513; 13 Wend., 483; 1 Den., 115 ;
5 Rob., 261 ; 1 Co. R., 71.
*BATES e. SUTHERLAND. [*51O
Turnpike — Exemption from Toll.
Where a Turnpike Act exempts from the payment
of toll persons going- to or returning from mill with
grain or flour for their family use, the exemption
does not apply to a wagon going through the turn-
pike gate loaded with other ai'tieles. and some grain
or flour.
Citations— 7 Johns., 185; 9 Johns., 356.
N ERROR, on certiorari to a justice's court.
I
The defendant in error brought an action of
debt, for $25, against the plaintiff in error, in
the court below. The action was for the re-
covery of penalties from the defendant below
for taking toll of the plaintiff below, when
going and returning from mill, at gate No. 4,
on the Dutchess turnpike, in April, 1817. It
appeared that the plaintiff below, with two
wagons, passed through the gate with grist on
his way to mill ; and that the wagons returned
with shingles and grist on them. The toll was
not paid when they first went through the
gate, but it was afterwards demanded and
paid, though it did not appear whether it wa&
paid for going to mill or not. The sum paid
was sixty-two and a half cents. A verdict
and judgment were rendered for the plaintiff
below for $3.25.
Per Curiam. The judgment must be re-
versed. The evidence contained in the return
does not prove that the toll-gatherer claimed
or demanded toll not authorized by law ; and
it is difficult to discover on what ground the
plaintiff below sought to charge the defendant.
The summons appears to be for a penalty of
$25; but it is not stated, either in the sum-
mons or declaration, under what statute the
claim is founded. No such penalty is given
in the Act establishing the Dutchess Turnpike
Company, passed April 5th, 1802. There is a
penalty of $2, given against the toll-gatherer
who shall demand and receive more toll than
is allowed by the law. The verdict was prob-
ably founded on that part of the Act, and on
the consideration that two penalties had been
incurred ; yet this could not make the verdict
$4.25. If the action is for the recovery of a
penalty, the proof should show satisfactorily
that a penalty had been incurred, whi.ch it cer-
tainly does not. Under the Act incorporating
this Company, persons going to and returning
JOHNS. REP., 15_
1818
SANDS v. GKLSTON.
510
from mill with grain or flour, for their family
51 1*1 use, are exempted *from paying toll.
But it is very evident that the plaintiff, when
returning from the mill with shingles in his
wagon, did not come within this exemption,
although he might also have had grist. This
would be sanctioning A fraud upon the Act,
and would lie contrary to what has lieen fre-
quently held by this court to be the true con
struction of these and similar exemptions in
turnpike Acts. (7 Johns., 185; 8 Johns., 856.)
The judgment must, accordingly, be reversed.
Judgment reeened.
BANDS v. GELSTON.
Statute of Limitation*— Adminion of Receipt
of Money and Existence of Claim, or an Offer
to Compromise with Denial of Validity, doet
Not Take Cote out of Statute.
Where the defendant admits that he has received
the money, which the plaintiff claims, but denies
tli.- vajidity of the claim, such acknowledgment is
not evident1*- of a iu-w promise, so as to take the
case out of th<- Statute of Limitations.
When- tin- defendant says that if the plaintiff has
a claim, either in law or equity, he will compromise
the business, or submit it to arbitration, but at the
same time denies that he has any claim eitherat law
or equity, this is not sufficient to take the case out
of the Statute.
Citations 11 Johns., 146; 13 Johns., 288, 512; 8
Cranch. 72 : 1 Senr. & R.. 179 ; 4 M. & Selw., 457.
THIS was an action of as»ump(rit. The de-
fendant pleaded non atsumpirit, and aetio
non acfrecit infra *ex annos. The plaintiff re-
plied that the action did accrue within six j
years. The cause was tried before Mr. Justice
Spencer, at the New York sittings, in April,
1817.
The plaintiff was formerly Collector of the
Customs of the port of New York, was re-
moved in July, 1801, and was succeeded by
the defendant. The plaintiff had, previously I
t<> lii-i removal from office, caused two vessels, j
the ship Huron, and the schooner Two Friends, i
to be seized for a violation of the Registry Act !
of the United States; and after the plaintiff's
removal they were condemned, and the amount
of the forfeitures was paid over to the defend- j
ant. The plaintiff claimed one third of the
moiety of these forfeitures.
At the time of his removal, the plaintiff de-
livered over to the defendant a number of
bonds which had been taken for duties,
amounting to $8.254,773.24. Of these bonds,
$8.113,101.42 were paid to the defendant, on
or before the 80th of June. 1802, at which time
an Act of Congress allowing the Collector a
salary, instead of a commission of one fourth
per cent., formerly received on moneys col-
lected by him. went into operation. The plaint-
iff, in July and September, 1801, paid over to
the 'defendant large sums in cash, be- [*f» 1 ii
ing money received by him for duties, amount-
ing to $52.168.93. without making any deduc-
tion for commissions. The plaintiff "claimed,
in this action, one fourth per cent, commission,
on the amount of the bonds which be had de-
livered to the defendant, and which the de-
fendant had collected prior to the 30th of June.
1802, and also a commission of one fourth per
cent, on the money paid over by him to the
defendant.
At the trial, several letters between the par-
ties were read. On the 23d of March, 1816,
the plaintiff wrote to the defendant respecting
his claim for forfeitures, proposing a refer-
ence; and the defendant, in his answer of the
29th of the same month, refers to a compro-
mise that had been made between the execu-
tors of Mr. Osgood, formerly naval officer, and
Mr. Ferguson, his successor; and Mr. Schenck,
formerly surveyor, and Mr. Haff, his succes-
sor, by which the proceeds of condemnations
prior to the death of Mr. Osgood, and the re-
moval of Mr. Schenck. were paid to Osgood's
executors and Schenck, and the proceeds of
subsequent condemnations were paid to Fer-
guson and Haff. The defendant then adds:
"If the compromise above stated was to be
taken for a rule, you will perceive that you
have no claim. But to go further, aw you ask
my opinion, which I now give you; and cor-
roborated by whnt I consider good authority,
Mr. Ferguson and Mr. Haff, were entitled in
law to all the forfeitures they have given up
by compromise. Under these circumstances,
I must decline both the trouble and expense of
a reference."
In a previous letter, of May 30th, 1814, the
plaintiff wrote to the defendant on the sub-
ject of his claim for commissions ; to which
the defendant, on the 3d June, answered : "I
did suppose that in the frequent conversations
upon the subject you mention, I had been suf-
ficiently explicit. I never had but one opin-
ion, which is, that the law never contemplated
or intended a payment from me to you. I am
yet of that opinion. If I had thought other-
wise, I certainly would not have delayed it to
the present time."
Samuel Stevens, a witness on the part of
the plaintiff, testified that in 1814 and 1815,
and, perhaps, in the beginning of 1816, he
had, at the request of the plaintiff, several
•conversations with the defendant, in [**"> 1 .'{
relation to the plaintiff's claims, which the
witness offered to compromise or submit to
reference ; and that in these conversations the
defendant admitted that he had received the
NOTE.— Statntr »f Limitation*— Ne\r promise.
An arknmiieiltiinriit mwt Ite. equlrttlent to a prora-
te, to tak.- tli" .l-i.i out of tli" Statute. See Dan-
fortli v. Culver. II Johns.. 146, nnte.
Tin- construction of the Statute was formerly
-met. and almost any recognition of a debt,
barred by It, was held mimclent to take it out of
the Stjiiiit'-. A more liU-ral rule now prevails, an-l
a reasonable const met ion is put upon the laii^uairc
of the party. "Then1 must be a subsisting debt,
which the party Is willing to pay." Allen v. \V'cl>-
Bter. 15 Wend., list*. The above case of Sands v.
iJcNton is considered a leading ease and has been
followed In the following cases : Purdy v. Austin,
JOHNS. REP.. 15.
:t Wend.. 189; Field v. Bradley. 3 Wend., 272; Staf-
ford v. Bryan. 3 Wend., KG; Dean v. Hewitt, 6
Wend., 257; Hancock v. ill ins 7 U'end. .:.'•>; I'att.-r-
SMII v. Choate, 7 \\Vnd.. U">: Soiild>-iiv. Van Ucnssc-
her,»Wend..aM; Alien v. Webster, r. Wend., 284;
llloodirood v. Hruen. s \. V., :*;:.' : Stafford v. Hich-
anlson. 15 Wend.. 302; Deyo v. Jones. 1» W.-nd..4!M;
Van Kruen v. Parmlee, 2 N. V.. 531 : WlncbeUv.
Hicks is N. V., .V.S: Shoemaker v. Item-diet. 11 N.
V.. 17«. See, also. Danforth v. Culver, II Johns..
144), nntr ; Lawrence v. Hopkins, 13 Johns.. 28*: liell
v. Morrison, 1 Pet., 351 ; Wetzell v. liusaurd. 11
Wheat.. :il(t. tuttc in law. ed.; Johnson v. Beardslee,
.1/1.'. . 3, note.
1177
513
SUPREME COURT, STATE OF NEW YOKK.
1818
commissions, and that they had not been paid
over to the plaintiff, and also the receipt of
the forfeitures ; that the defendant frequently
said that if the plaintiff had a claim in law or
equity for the forfeitures or commissions, he
would submit it to reference, or compromise
the business ; but that, in his opinion, the
plaintiff had no claim, in law, or equity, for
either ; and that if he had, he, the defendant,
would not have left the business so long un-
settled ; that the plaintiff had frequently writ-
ten and spoken to him on the subject, but he
considered that he was not entitled to the for-
feitures or commissions ; and the defendant
added, that if the witness would convince him
that the plaintiff was entitled, in law or
equity, to the forfeitures or commissions, he
would submit it. The witness further stated
that in one of their' conversations the defend-
ant said that the plaintiff had been troubling
him a long time on the subject of these claims,
or used words to that effect. The witness
also produced a letter, which he had shown
the defendant. This letter was from the
Comptroller of the Treasury, at Washington,
to the plaintiff. On presenting this letter to
the defendant, the witness claimed of him the
performance of what the witness considered a
conditional agreement to submit the matter to
a reference ; to which the defendant an-
swered, that he had only told the witness that
he would submit the claim, if in his, the de
fendant's, opinion, the plaintiff had an equi-
table claim, and that his opinion was not al-
tered by the opinion of the Comptroller.
A verdict was taken for the plaintiff for the
sum of $20,349.50, subject to the opinion of
ths court on the questions, whether the plaint-
iff was entitled to the forfeitures and commis-
sions, and to what extent ; whether there had
been sufficient evidence to take the case out of
the Statute of Limitations ; and for what pe-
riod of time the plaintiff was entitled to recov-
er interest.
o 14*] *The case was argued by Messrs.
Hoffman and Wells for the plaintiff, and by
Messrs. T. A. Emmet and Baldwin for the de-
fendant.
As the cause was decided solely on the plea
of the Statute of Limitations, it is unnecessary
to state the arguments of the counsel on the
other points in the cause, which involved the
merits of the plaintiff's claim.
For the plaintiff, it was contended that there
had been a sufficient acknowledgment, on the
part of the defendant, to take the case out of
the Statute of Limitations. If the jury, from
any evidence before them, could infer a prom-
ise, the Statute would not apply. The slight-
est admission or acknowledgment is sufficient
for the purpose. Originally, there could be
no express promise ; but the law raises the
promise, on the fact of the defendant having
received the money. It is not like reviving an
express promise by a new promise. In none
of the conversations with the defendant does
he put himself on the Statute or seek its pro
tection, but insists on his legal right to retain
the money. Since the Statute of Limitations
was passed, it has been the object of courts
to apply it, according to its great and benefi-
cial purposes ; not to shelter fraud or encour-
age injustice. After the lapse of six years,
1178
the law presumes the debt to be paid, and
gives that presumption to the party as a de-
fense. But the courts have considered the
slightest acknowledgment of the existence of
the debt sufficient to go to a jury. (2 Burr.,
1099.) Thus, such expressions as : "Prove
it, and I will pay you" (I Salk., 29); "I am
ready to account, but nothing is due to you"
(Cowp., 548) ; have been held sufficient to take
the case out of the Statute. So here the de-
fendant admitted that he had received the
money, but insisted that he was legally enti-
tled to it. It is saying in substance : "It is
true I have got the money which you claim ;
prove that it belongs to you, and I will pay
it." In Loyd v. Maund, 2*T. R., 760, a letter
written by the defendant to the plaintiff's at-
torney, who had brought the suit, couched in
ambiguous terms, neither admitting nor deny-
ing the debt, was left to the jury, to consider
whether it did not amount to an acknowledg-
ment of the debt, so as to take it out of the
Statute. So, in Rucker v. Hannay, 4 East, 60,
in a note, the *defendant, in an affida- [*515
vit, on application to the court for leave to
plead the Statute, stated that "since the bill of
exchange (on which the action was brought)
became due (which was more than six years
before), no demand for payment had been
made of him," which was left to the jury,
who found a verdict for the plaintiff, which
the court refused to set aside.
The doctrine is put on its true ground, by
this court, in Sluby v. Champlin, 4 Johns.,
461, that where enough is shown to repel the
legal presumption of payment, arising from
lapse of time, it takes the case out of the Stat-
ute. That case, also, obviates another objec-
tion, that the new promise must go to the
whole demand. In Dean v. Pitts, 10 Johns.,
35, the defendant admitted that he made the
notes on which the action was brought, but
said that they had been paid ; that he had sent
the money to R. , and supposed he had paid
the plaintiff ; that he would not plead the
Statute of Limitations, unless the money had
been paid ; and he thought he could make
that appear. The court held this to be a suf-
ficient acknowledgment to take the case out
of the Statute. So, in Mosher v. Hubbard, 13
Johns., 510, the defendant, on being called
upon to pay an order, after the lapse of six
years, said that he did not recollect that he
had paid it, but would examine his papers ; he
would write to the witness about it ; but did
not. The court held this to be such an admis-
sion as would take the case out of the Statute.
In Danforlh v. Culver, 11 Johns., 146, the de-
fendant, on being called upon, directly put
himself on the Statute of Limitations, as his
defense ; and in Lawrence v. Hopkins, 13 Johns.,
288, the defendant denied the legality of the
demand, and said it was an unjust debt. In
the late case of Johnson v. Beardnlee, ante, 4,
the promise of one joint debtor to pay a debt
barred by the Statute, was held sufficient to
take the case out of the Statute ; and the prin-
ciple was applied to an acknowledgment by
two of the several defendants, in an action
against them, as heirs and devisees of a de-
ceased debtor, and which was held sufficient
to charge all of them.
Again ; there is a distinction between an ex-
JOHNS. REP., 15.
1818
SANDS v. GELSTON.
515
press and implied contract, which is recog-
5 1O*] nized iu the case of Pease v. * Howard,
14 Johns., 479. Whenever all the facts from
which the law raises the implied promise are
admitted by the defendant, the Statute does
apply. This is a case in which the plaintiff
must recover on an implied promise. May
not an implied promise be revived without an
express promise to pay ? In King v. Riddle, 7
Cranch 168, where a writing, signed and
sealed by the defendant, reciting that the
plaintiff and others had become liis sureties
for a debt due .1. F., and having become ac-
countable, had paid a debt, and he, the de-
fendant, being desirous to secure them, &c.,
assigned to T. V., one of the sureties, certain
bonds, &c. This recital was held to take the
case out of the Statute. (2 Saund., 64 a, note.)
For the defendant, it was argued that noth-
ing had been said or done by the defendant
amounting to such an acknowledgment or
promise as would take the case out of the
Statute of Limitations. The plaintiff is not en-
titled to the favor shown by the law to a vigi-
lant creditor. From 1801 to 1813 he was per-
fectly silent ; he slumbered on his rights, and
even in his slumbers did not dream of any
claim. He again slumbered, until he heard,
in 1816, that the Supreme Court of the United
States had decided that the representatives of
a deceased collector were entitled to a share of
the forfeitures incurred in his lifetime. (Jones
v. Shore, 1 Wheat., 462.)
A distinction has been raised between an
express and implied promise as to the opera-
tion of the Statute. This distinction seems to
have l>een tirst suggested in Clarke v. Brad-
thaw, 8 Esp. , 155, out is not supported by any
adjudged case. Where the law raises an im-
plied promise, it stands pan ratione with an
express contract. The Statute is to be applied
in the same manner, whether the a»»umjmt be
express or implied. Why is an action of as-
ttumjmt within the Statute? Because it is an
action on the case. Then it must be tested as
if it were an action on the case. By the argu-
ment of the plaintiff's counsel, facts, or the
acknowledgment of facts, must be proved, and
then the law raises the implied promise from
the facts ; but if there must l»e an acknowl-
edgment of facts for the purpose of raising
ftI7*] *the implied promise, there can be no
occasion to resort to a proof of facts. It is by
proof that the facts are to be established, and
from the silence of the defendant, his admis-
sion is to be inferred. This would be a per-
version of the Statute. The policy of the Stat-
ute is to repress and put an end to stale de-
mands ; not because the debt is supposed to be
paid. The scale of limitations for different
actions is graduated altogether on principles
of public policy. The court* have gone un-
warrantable lengths to take cases out of the
operation of the Statute, and seem now dis-
posed to tread back their steps, and to look at
the real object, the sound and beneficial policy
of the Statute. The true doctrine is now un-
derstood to be, that there must be an actual
or express promise, or a clear acknowledg-
ment of the debt being due, from which a
promise to pay is implied, not from the orig-
inal contract which is extinguished and
barred by the Statute. Thus, in Cleinent»on. v.
JOHNS. HEP , 15.
\Viii.inn,*. 8 Cranch, 72, where the proof was,
that an account stated was presented to one of
two partners, who said it was due, but sup-
posed it had been paid by his partner, but that
he had not paid it himself, C7«. -/. Marshall
held that the acknowledgment went only (o
the original justice of the account, and VMS
not sufficient proof that the debt still remained
due, so as to take the case out of the Statute ;
that to have that effect, the acknowledgment
must go to the fact that the debt is still due.
Sergeant Williams (2 Saund., 64 a, note), after
stating that it was formerly held that a prom-
ise to pay the debt was alone sufficient to take
it out of the Statute (2 Vent., 152; 6 Mod.,
309. 310; Carth.. 471 ; 2 Sh<5w., 126). but that
now the distinction between a promise to pay
and a bare acknowledgment was no longer re-
garded, the latter being deemed sufficient to
take the case out of the Statute, expresses his
regret at the doctrine which had crept into the
courts ; and he adds, that " it might have been
as well, if the letter of the Statute had been
strictly adhered to ; it is an extremely benefi-
cial one, on which, it has been observed, the
security of all men depend, and is, therefore,
to be favored (2 Salk., 421, 422) ; and though
it will, now and then, prevent a man from re-
covering an honest debt, yet it is his own fault
that he has postponed his action so long ; be-
side *which, the permitting of evidence [*5 1 8
of promises and acknowledgments within the
six years seems to be a dangerous inlet to per-
jury." The case of Lawrence v. IIopkin*, 13
Johns., 288, where there was an offer to com-
promise, which was rejected, the defendant
declaring that the debt was unjust, is a strong
case to sliow that the court requires an admis-
sion of the debt being due to take the case out
of the Statute. This case, and that of Jone»\.
Shore, if their principles are adhered to, must
put a stop to any further attempts to fritter
away the Statute.
• SPENCER. J., delivered the opinion of the
court :
Bein.g of the opinion that the plaintiff has
failed in maintaining the issue, that the de-
fendant has assumed and promised to pay any
part of the demand within six years, it is un-
necessary to consider whether the plaintiff once
had a legal demand or not. To take this case
out of the Statute, the plaintiff relies on the
defendant's letters, written in answer to letters
from him, and on the admissions made to Mr.
Stevens. The defendant admits the receipt of
the Collector's portion of the forfeitures arising
from the condemnation and sale of the Two
Friends and the Huron, vessels seized and
libeled before the plaintiff was superseded in
his ofilce. The proof is very satisfactory, that
the defendant received the commissions on
bonds taken by the plaintiff whilst in office :
but the defendant constantly asserted a right
to retain what he had received, on his con-
struction of the law. Stevens' evidence proves
the defendant's admission of the receipt of the
moneys claimed, and that the same had not
been paid over to the plaintiff ; and that the
defendant said that if the plaintiffs had a claim
in law or equity, for the forfeitures or com-
missions, he would submit it to a reference, or
he would compromise the business : and that,
IK!)
SUPREME COURT, STATE OF NEW YORK.
1818
in his opinion, the plaintiff had no claim, in
law or equity, for the commissions or forfeit-
ures ; and that if he had, he, the defendant,
would not have left the business so long un-
settled. That the plaintiff had frequently
written and spoken to him on the subject, but
he considered that he was not entitled to the
forfeiture, or the commissions ; but if the wit
ness would convince him that the plaintiff was
519*] entitled, in law or equity, *to the for-
feitures or commissions, he would submit it.
This is the substance and amount of the
confessions relied on to take the case out of
the operation of the Statute of Limitations.
Courts of law seem to have been convinced
that the construction which has sometimes
been adopted, to get rid of the operation of the
Statute, has been carried too far ; and hence a
disposition has been evinced to put a reason-
able interpretation upon the language of the
party — an interpretation that shall be con-
sonant to the meaning and intention of the
speaker.
The Statute of Limitations is the law of the
land, and, as has been frequently observed,
was intended as a shield against stale and dor-
mant demands, under the benign supposition
that the party may have lost the evidence
necessary to his own defense by the lapse of
time. I never could see the difference as re-
gards the revival of a debt, between one
barred by the Statute of Limitations and one
from which the debtor had been discharged
under the bankrupt or insolvent laws. The
remedy is equally gone in both cases. The
Statute of Limitations requires all actions on
contract to be commenced within six years
next after the cause of such action accrued,
and not after. The remedy being suspended
after six years, there yet exists a moral duty,
on the part of the debtor, to pay the debt ; and
accordingly, a promise to pay a debt not ex-
tinguished, but as to which the remedy is lost,
is a valid promise, and may be enforced on the
ground of the pre-existing moral duty. There
is, then, no substantial difference between a
debt barred by the Statute of Limitations and
a debt from the payment of which the debtor
is exonerated by a discharge under a Bank-
rupt or Insolvent Act. Both of them rest on
the same principle with a debt contracted by
an infant not for necessaries ; yet it is singular
that in neither of the latter cases will the bare
acknowledgment that the debt once existed,
and has not been paid, support an action — an
express promise to pay being necessary.
I mention this merely to show that in the
single case of a debt barred by the Statute of
Limitations, courts of law have given a con-
struction which would apply, with equal
propriety, to the other cases, and yet have re-
5 2O*] stricted the *rule to the one case, as
though the Statute of Limitations was an
odious Statute, and to be gotten rid of by con-
struction.
I am bound by authority to consider the ac-
knowledgment of the existence of a debt with-
in six years before the suit was brought, as
evidence of a promise to pay the debt. But I
insist, that if, at the time of the acknowledg-
ment of the existence of the debt, such ac-
knowledgment is qualified in a way to repel
the presumption of a promise to pay, then it
11 SO
will not be evidence of a promise sufficient to-
revive the debt, and take it out of the Statute.
In consonance with this distinction, I take it,
the cases of Danforth v. Culver, 11 Johns., 146,
and Lawrence v. Hopkins, 13 Johns., 288, were
decided in this court. In the first case, we
held, that although the defendant acknowl-
edged the execution of the notes, but insist
that they were outlawed, and that he meant
to avail himself of the Statute, no new promise
could be inferred without violating the truth
of the case. In the other case, the defendant
was sued as one of the makers of a joint and
several promissory note ; the Statute of Limi-
tations was pleaded, and it appeared in evi-
dence that the defendant stated he had lately
been sued on a contract made with Whiting
(the payer of the note), and that by the terms
of the contract, he had never considered him-
self holden to pay anything, and that his coun-
sel advised him that the contract could not be
enforced at law. We held the evidence insuf-
ficient to take the case out of the Statute — that
there was neither an express nor an implied
promise to pay the debt ; on the contrary, that
the defendant uniformly considered the de-
mand as unjust from the beginning, and that
he was under no obligation to pay it. That to-
infer a promise to pay, in direct opposition to
the defendant's denial of the justice and fair-
ness of the debt, would be trifling with the
Statute.
We certainly did not mean to overrule these
cases in Mosher v. Hubbard, 13 Johns., 512.
The facts in that case were sufficient to be
submitted to a jury, and for them to presume
that the defendant not only admitted that the
debt was not paid, but that he recognized its ex-
istence, as a debt due from him within six years.
In the case of Johnxon v.'Beardslee et al., antef
4, we recognized the law to *be, that [*521
the acknowledgment of a debt is evidence suf-
ficient for a jury to presume a new promise ;
and we add, that we did not intimate in Dan-
ford v. Culver that an acknowledgment of the
debt would not have been sufficient, unaccom-
panied with a protestation against paying it.
To came back to this case: the whole amount
of the defendant's admission is this, that the
plaintiff had never received what he claimed
as a debt; and that, if the defendant believed
he had a claim in law or equity, he would
submit the matter to reference or compromise
it; but that, in his opinion, the plaintiff had no-
such claim; and that he was not entitled to it in
law or equity, and therefore he would neither
submit nor compromise it.
It would be doing violence to this admission,
to say that there is evidence from which a
promise may be inferred, to pay a demand, the
justice and equity of which, as well as the de-
fendant's liability to pay it, is utterly denied.
I will briefly review some decisions, which
appear to me to place this question in a very
clear light. I am not called upon to reconcile
all the cases upon this subject. My object is,
as far as is possible, to rescue the Statute from
constructions which go to overthrow it, and to
endeavor to place this subject upon rational
grounds.
In the case of Clementson v. Williams, 8
Cranch, 72. Ch. J. Marshall says: "Decisions on
the Statute of Limitations had gone full as fur
JOHNS. REP., 15.
1818
SALTOS ET AL. v. UNITED INS. Co.
521
as they ought, and the court was not inclined
to extend them in this case;" he says, "there is
no promise, conditional or unconditional, but
a simple acknowledgment ;" " the Statute," he
adds, "was not enacted to protect persons from
claims fictitious in their origin, but from ancient
claims, whether well or ill founded, which
may .have been discharged, but the evidence of
discharge may be lost ; it is not then sufficient
to take the case out of the Act, that the claim
should be proved, or acknowledged to have
been originally just; the acknowlegment must
go to the fact that it is still due."
In ftrown v. Campbell, \ Serg. & R., 179, Ch.
./. Tilgham says: "But I can never agree that
a letter which'denies that the defendant ever
was liable to the plaintiff's demand, will avoid
the Act of Limitations, merely because it is not
.">-2*l *denied that payment has not been
made.' In Hoiccroftv. Luma*,\ M. &Selw..457,
the action was for money lent, and the Statute
was pleaded; the plaintiff gave in evidence the
defendant's accountable receipt for £80, to ac-
count for on demand, and proved that in 1814
the receipt was shown to the defendant, and
he was asked if he knew anything of it ; he
said he knew all about it; that it was not worth
a penny, and he would never pay it. He ad-
mitted his signature, and that he never had
paid it, and said he never would, and added,
besides, it is out of date, and no law should
make him pay it. Lord Ellenborough held that
the effect of the receipt was destroyed by the
lapse of six years ; and something more must
be proved than the bare acknowledgment by
the defendant that the thing is unsatisfied, to
give effect to that which is, per se, destroyed.
He adds: "The cases, indeed, have determined
that a debt, the existence of which is extinct,
through lapse of time, may be revived by an
acknowledgment that it is unsatisfied; but there
must first be some acknowledgment that it
ever existed."
It is not correct reasoning to contend that if
the defendant admits that the demand made
upon him has never been satisfied, that, there-
fore be has revived the debt, and waived the
protection of the Statute, when, in the same
breath, he insists that the demand is illegal and
inequitable. Though, indeed, the defendant
may admit that what, the plaintiff claims as a
debt has never been paid, if he protest against
his liability, it would be an outrage on com-
mon sense to infer a promise to pay, in the face
of his denial of his liability to pay. On these
principles, I rest my opinion that the defend-
ant is entitled to judgment ; and such is the
opinion of the court.
Judgment for the defendant.
Distinguished— 20 Johns., 586.
Cited in-3 Cow.. 1K4; 4 Cow.. M2; 9 Cow.. «78:3
Wend.. 189. 273; 7 Wend.. 288; 9 Wend.. 298; 15 Wend.,
288, 30tt; 7 Hill, 47; 6 Johns. Ch.. 2JM; 2 N. V.. :>.»»: II X.
V .. K»; :« N. Y.. W; :>» N. V.. 4-ii : 7:i X. V.. 1 '.«•_': l->
Hun. :«8: 4 Barb.. 172; ti Marl... .V>7, .V<7: 10 Barb.. 5«9:
13 Barb., 505); 15 Barb.. 175: 20 Harb., liVJ: 21 Burb., 368;
:u Barb., 1'X. : 44 Barb., 41(2 : 1 Daly, 188; 1 Peters, 361;
« Peters, 92; 11 Minn., U,H: :i« Cal., 185.
*SALTUS ET AL. «. THE UNITED
INSURANCE COMPANY.
Marine Inmtrante — Jttttraint in Part — Aban-
donment f&r Total Lou — Breaking out of War
JOHNS. REP., 15.
after Commencement of Voyage doe* not Va-
cate Policy.
Where a vessel, in the prosecution of the voyage
insured, puts into a port, at which she is permit t. .1
l>y tin- policy to. -top. ami whilst then-, tin- place is
closely inverted by the cruisers of tin- runny of the.
country to which she belongs, so that if she at-
tempted to escape she would inevitably IK- captured,
this a restraint of princes, or of men-of-war, within
tin- i i*k* enumerated in tin- policy, anil the insured
may break up the voyage, and abandon for u total
loss, althouKii there is tut direct application ol |>!I\M-
cal force to the subject ; and such abandonment is
not liable to the objection that it tomadegufcl tintrt.
If, after the commencement of tin- vo\ a>.'<- iiiMii> c|.
a war breaks out between the country to which the
property IK-IOIIKS. and a foreign country, the jiolk v
is not vacated, ami the insurers are liable for a loss
arising out of the state of war.
Citations— 1 Johns., 249; 3 Wheat., 183; 6 Johns., 252.
•
THIS was an action of a**ump*it upon a
policy of insurance, dated the 8th of May.
1812, underwritten by the defendants, on ac-
count of the plaintiffs, on the cargo of the
American brig Syren. C'obb master, from the
vicinity of Sandy Hook, to her port of dis-
charge in Sweden or Russia, with liberty to
call and wait at Gothenburg!) for orders. In
case of capture or detention, the insured stipu-
late not to abandon in less than six month*
after advice thereof at the office of the defend-
ants, or until after condemnation; nud the de-
fendants assumed the risks usually enumerated
in the printed policies used by the insurance
companies in the City New York. The cause
was tried before Mr. Justice Yates, at the New
York sittings, in November, 1816.
The cargo of the brig Syren was taken on
board at the Spanish Main* from whence she
proceeded towards New York, and having ar-
rived off Sandy Hook, was there detained, by
the direction of the plaintiffs, tOBVoid the opera-
tion of the embargo then existing, for some
days, after which she commenced the voyage
insured, and on the 14th of July, 1812, arrived
in Wingo Sound, near Qothenburgh. Slu- re-
mained at anchor in Wingo Sound until the
24th of July, on which day the master received
intelligence of the late war between this coun-
try and Great Britain. To avoid British capt-
ure, the master took a pilot on board, and im-
mediately proceeded for the town of Got hen-
burgh, as a place of safety, where he arrived
on the 26th of July ; the vessel having in the
meantime struck on a rock, her carco was
necessarily taken out. In consequence of thi*
accident, repairs were required, and the vessel
was again ready for sea, and her cargo re-
loaded, in September ; but it was impossible
for her to pursue her voyage to St. Peters-
burg!), without the certainty of capture. The
Baltic was thronged with British cruisers: sev-
eral were stationed in Wingo Sound, one or
more of which were always in sight from
Gothenburgh, and the vessel must have at-
tempted to pass them to get to *sea. [*<SJi4
The voyage, in consequence, was abandoned
in April, 1813, the vessel sold, and the cargo
stored.
On the 80th of April, 1813. the plaintiffs
wrote to the defendants, informing them that
"the vessel, with the cargo on board, was at
Gothenburgh, and there restrained by shins of
the enemy, which continually blockaded the
port of Gothenburg!), and prevented her pro-
ceeding on the voyage insured;" and also of-
1181
SUPREME COU«T, STATE OF NEW YOKK.
1818
fering to abandon. On the 24th of March,
1814, the plaintiffs abandoned the cargo to the
defendants, and claimed for a total loss. The
requisite preliminary proofs were exhibited.
A verdict was taken for the plaintiffs, by
consent, subject to the opinion of the court on
a case, which either party was at liberty to
turn into a special verdict, or bill of excep-
tions.
Mr. Golden, for the plaintiffs, contended:
1. That the impracticability of pursuing the
voyage, in this case, after war was known, was
a justifiable cause of breaking up the voyage,
and of abandonment, on that ground, for a
total loss. It was true, he said, that there
were cases in which it had been decided that
the fear of capture would not justify an aban-
donment ; yet it was admitted, in those cases,
that if there was such a physical force present
as rendered the capture certain, in case the as-
sured attempted to proceed or encounter the
peril, he might break up the voyage and aban-
don. Thus in Schmidt v. The United Ins. Co.,
1 Johns. , 249, the actual blockade of the port
of destination was held to be sufficient reason
for breaking up the voyage. Though the
court, in the case of Craig v. The United Ins.
Co., 6 Johns., 252, decided that the insured
could not abandon from fear of capture, or
quia timet, where the danger is remote or con-
tingent, yet they recognize the principle that
where there is a" moral certainty of capture, it
will justify the assured in breaking up the
voyage. Kent, C h. J., in delivering the opin-
ion of the court in that case, in which all the
authorities are fully examined, says : " If the
port of B. had been absolutely interdicted, so
that the prosecution of the voyage to a con-
clusion had beC.ome impracticable, or been at-
tended with a moral certainty of seizure and
loss, I should have deemed it equivalent to
actual restraint, to the existence of a vis major
breaking up the voyage." Now, it is a fact in
525*] the present *case that the Syren could
not have pursued her voyage to St. Peters-
burgh without the certainty of capture.
2. The sale of the vessel at G. , and leaving
the cargo in the hands of the agent of the
owners, was no waiver of the right to abandon.
(1 Cai., 292 ; 6 Johns., 310 ; 9 Johns., 1'.)
3. The reason assigned for making the
abandonment was the true one : the restraint
of the enemy by a continual blockade of the
port.
4. If the court should be of opinion that the
plaintiffs cannot recover for a total loss, they
will be entitled to a return of premium, with
interest, according to the terms of the policy,
the risk having ended at Gothenburgh.
Messru. S. Jones, Jr., and Wells, contra. This
is the first attempt to recover on a policy of
insurance for total loss, on the ground that the
intervention of war, and the consequent prob-
ability of capture, is a sufficient cause of aban-
donment, without any attempt on the part of
the insured to proceed on the voyage. No
doubt the war greatly increased the risk; but
that is one of the perils insured against. Such
a fact may justify a deviation or delay, not a
total abandonment of the voyage. The notice
of abandonment is on the ground of a block-
ade of the port. The insured, in making his
abandonment, must assign the true cause. He
I1H2
cannot avail himself of any other cause, or of
any subsequent event. (Suydam v. Mar. Ins.
Co., 1 Johns., 181 ; S. C., 2 Johns., 138.) If.
the plaintiffs have not made out a case to en-
title them to recover for a total loss, neither
have they shown sufficient to recover for a
partial loss.
But we insist that there was no justifiable
cause of abandonment. In Oliver v. The
Md. Ins. Co., 7 Crunch, 487, Marshall, C h.
J., in delivering the opinion of the Supreme
Court of the United States, speaking of the
danger that would justify delay, says: " It
must not be a mere general danger, indefinite
in its application and locality. If it were so,
in time of war, any delay, however long, in a
port, would become excusable; for there would
always be danger of capture from the enemy's
cruisers Nor is it sufficient that the danger
should be extraordinary ; for then *any [*526
considerable increase of the general risk would
authorize a similar delay. The danger, there-
fore, must be obvious and immediate, in refer-
ence to the situation of the ship at the particu-
lar time. It must be such as is then directly
applied to the interruption of the voyage, and
imminent ; not such as is merely distant, con-
tingent and indefinite." Instead of going into
Gothenburgh as soon as the captain heard of
the war, he ought to have proceeded to St.
Petersburg}!. Is the increase of the risk, by
the intervention of war, a justifiable cause of
abandonment in any case ? There is nothing
of the kind in the policy. The term "restraints
of princes," does not embrace the case. It ap-
plies to the restraint of a neutral. A belliger-
ent does not restrain, but captures his enemy.
Blockades and embargoes laid by belligerents
on neutrals, are restraints by the authority of
the law of nations. The neutral has no right
to resist such a restraint, but is bound to sub-
mit to the force : to resist would be an unlaw-
ful act, and subject his property to confisca
tion. Being thus lawfully hindered from
prosecuting his voyage, he may abandon it,
and call on the insurers for his indemnity. A
belligerent owes no submission to the force of
his enemy ; but it is his right and his duty to
resist or evade it, to the utmost of his power.
If an enemy happens to be in possession of the
port of destination, or blockades it, it will not
justify an abandonment of the voyage ; it
only excuses a deviation. This principle has
been settled in the English courts (Hadkiwon
v. Robinson, 3 Bos. & P., 388, 392 : Lubbockv.
Eowcroft, 5 Esp.; 50.) The assured are bound
to* go on, because they may resist or evade a
hostile force ; but as it is contrary to the duty
of a neutral to resist a belligerent restraint,
exercised under the law of nations, he cannot,
therefore, be asked or required to proceed.
The principle laid down in Lubbock v. Row-
croft has since been frequently recognized.
(Blaakenhagen v. London Ass. Co., Park, 6th
ed., 226 ; 1 Camp., 450; Foster v. Christie, 11
East, 205.) In order to bring a loss within the
policy, the peril insured against must act di-
rectly, and no* collaterally, on the thing in-
sured. In the case of Craig v. The United IIK>.
Co., Kent, Ch. J., alludes to the cases just
cited, as denying the *right to the as- [*527
sured to abandon the voyage, if an enemy cre-
ates the impediment, and reserves his opinion
JOHNS. REP.. 15.
1818
SALTCS ET AL. v. UNITED INS. Co.
527
on that point when the case shall arise. (6
Johns., 253.) His observations, therefore,
must be all taken in reference to the particular
case before him. The cases stated by Emerig-
on (1 Emerig., Trait de» AM., 507, 512) are to
show when the vessel and cargo may be abah
doned by the master and crew, as for fear of
being taken and made slaves, when chased by
pirates or corsairs, and there is no chance of
escape or defense ; or on account of the plague
on board ; or where the vessel, having struck
a rock, the lives of the crew wen- in Mich im-
minent danger that they took to the shore as
the only means of safety. The danger, to be
equivalent to that pin mtjor, which will justify
the assured in abandoning the vessel, must be
so imminent and certain as to render escape
morally impossible. The principles laid down
in Oraig v. The United In*. Co. are decisive on
this question, llere was, in fact, no actual
blockade of Gothenburgh. It is true that there
were one or more British ships stationed in
Wingo Sound, and many were cruising in the
Baltic ; but although the risk of capture was
thereby greatly increased, it was not a peril
direct, immediate and certain.
Again ; the voyage was actually broken up,
and the cargo deposited with the agent of the
owners, long before any notice of abandon-
ment. The plaintiffs were too late, after hav-
ing sold the vessel and broken up the voyage,
to make the abandonment ; besides, the plaint-
iffs did not make an actual abandonment un-
til a year after the notice was given. It is
true, in case of a justifiable abandonment duly
made, the master and owners are agents of the
insurers ; yet if they do acts inconsistent with
the character of agents, they will be deemed to
have elected to. act on their own account, and
not for the insurers.
Again ; this is an insurance on the cargo ;
and Swedish vessels were perfectly free to en-
ter and depart from Gothenburg!) ; and the
cargo might have-been sent, under the Swedish
flag, to its port of destination. The plaintiffs
have rendered no account of the cargo ; nor
have they shown what has become of it.
5128*] *Mr. T. A. Emmet, in reply. The
Syren, when the declaration of war was known,
was in a peculiar situation, so surrounded by
the ships of the enemy that it was impractica-
ble for her to get out of Gothenburgh without
the certainty of capture. It is a much stronger.
case of a fear of capture, equivalent to a PM
major, than that of Oraig v. The United In*.
Co., or of any cited from Emerigon. Wingo
Sound was. a fixed station for British ships,
and a place *of rendezvous for British cruisers,
during the whole of the war. Sir James
Saumaraz, with his fleet, wns lying there, when
the master of the Syren was informed of the
war, and he had, three days before, applied
for leave to sail, under the protection of a
British convoy, to avoid capture by Danish
privateers. If there can be a case of just fear
equivalent to that violence which will justify
an abandonment, tlii* is such an one. Was it
reasonable, in a commercial jiew — and poli-
cies of insurance are intended to protect mer-
chants in their reasonable speculations — to
keep t'ie vessel and cargn at (intlienhurgh un-
til the end of the war, the period of which it
was impossible to calculate? The true question
JOHNS. REP., 15.
is, did the master or owner fairly exercise their
judgment, under the circumstances in which
the property was placed ? Was not his con-
duct reasonable and just? Did he not do what
every discreet and prudent man would have
done in the same circumstances ?
There is no material variance between the
grounds stated in the notice of abandonment,
and those on which it was actually made.
There is precisely the same set of* circum-
stances : there are no different or new facts
stated in ih«- abandonment.
The plaintiffs, or their master, have done
no more than to land and warehouse the cargo.
If the abandonment was justifiable, it is no
matter, as regards this action, in whose hands
the cargo was placed.
THOMPSON, Ch. J., delivered the opinion of
the court :
No objection can be made against the suf-
ficiency of the notice and cause of abandon-
ment. A true statement of the facts, with
respect to the situation of the vessel at Goth-
enburgh, was made, and given to the under-
writers. Whether *it was to be deemed, [*52O
in judgment of law, a restraint or a blockade,
would not alter the rights of the assured
growing out of such a state of facts'. The
real question, therefore, is, whether such a
state of things existed as to warrant an aban-
donment, and throw the loss upon the under-
writers. The policy is in the usual form, and
is very broad and comprehensive, in the enu-
meration of the perils insured against. It
would seem to reach alnfost every risk to
which a vessel and cargo may be exposed, in
the course of a voyage. The loss, in this
case, may, I think, fairly fall within the risk
of restraint of princes, or of men-of-war. It
is not necessary, to constitute a loss by this
peril, that actual physical force should be ap-
plied to the subject insured. The case of
Schmidt v. United Inn. Co., 1 Johns., 249, was
considered a loss by restraint of princes, when,
in fact, there was only a blockade of the
port of destination, and no actual physical
force was exercised. A blockade was deemed
equivalent to any other restraint or detention,
which includes every peril arising from a rti»
major, which could not be resisted. It equally
interrupts and destroys the voyage. In a late
case decided in the Supreme Court of the
United States (Olitera v. Union In*. Co., 3
Wheat, 183) it was held, that a vessel within a
port blockaded after the commencement of her
voyage, and prevented thereby from proceed-
ing, sustained a loss by a peril within that
clause in the policy insuring against the ar-
rests, restraints and detainmcnts of Kings,
A:<-.. and the insurers were made responsible
for the loss. Ch. J. Marshall said the term
" restraint," in the policy, does not imply that
the restriction or confinement must bo imposed
by those who are in possession of the thing or
person which is restricted or confined ; but
the term is satisfied by a restriction created by
the application of external force ; that al-
though the blockading force is not in posses-
sion of the vessels inclosed in the harbor, yet
it acts upon and restrains them. It is a t?t»
major applied directly and effectually to them,
which prevents them from coming out of port.
1 1 s:t
529
SUPREME COURT, STATE OF NEW YORK.
1818
This cannot be considered an abandonment
quid timel, when the danger was remote and
contingent. The case shows, very fully, that
the harbor of Gothenburgh was so invested
*>3O*] *by the British squadron as to make it
morally certain that the Syren would have been
captured had she attempted to go out. A
state of war existing between us and Great
Britain, there could be no reasonable grounds
even to hope that she would have been per-
mitted to pass the squadron ; and an attempt
to escape would have been idle. The restraint,
therefore, operated as effectually as if she had
been actually seized. It would, to be sure,
have been no violation of duty, or of national
law, to have attempted to force through or
elude the squadron, but it would have been
madness in the master, and a violation of his
duty to all parties, to have rushed headlong
into the arms of the enemy, when a loss would
have been inevitable. The language of the
late Chief Justice, in the case of Craig v. The
United Ins. Co., 6 Johns., 252, is very strong on
this point ; and the principles laid down in
that case are applicable here. It is there said,
that when such restraint actually exists, and
is ascertained to be effectual, and no doubt
arises of its being exerted, it would be most
unreasonable to require the assured to go on,
and submit to the experiment of a capture.
This would be fatal to the interest of all par-
ties ; it would be against the duty of the as-
sured, and lie would be placed under a moral
inability to do it.
The only circumstance which, in any manner,
distinguishes this case from those I have re-
ferred to, is, that the blockade was by the
squadron of a power at war with this country.
Had not hostilities commenced, there could be
no doubt that the restraint occasioned by the
blockade would have been a loss within the
policy, and justified the abandonment. I can-
not see any substantial reason why that event
should vary the principle. It would have been
lawful to insure against capture by the enemies
of this country. The breaking out of the war
did not dissolve the contract of insurance ;
and I cannot discover, in any of the cases re-
ferred to as supporting such a distinction, any-
thing to warrant the conclusion that has' been
drawn. All those cases came under the re-
view of this court, in the case of Craig v.
United Ins. Co.; and although it is said that
they seem to hold up such a distinction, yet
531*J *it is very far from beingsanctioned or
approved of by this court. We are, accord-
ingly, of opinion that the plaintiffs are entitled
to recover a total loss, and that judgment must
be entered on the verdict.
Judgment for the plaintiffs.
WILLARD v. JUDD.
Affidavit— Of Counsel.
An affidavit taken before a commissioner or re-
corder, who is counsel in the cause, may be read ;
but not if he is the attorney.
Citation— 12 Johns., 340.
MR. J. PAINE, for the defendant, moved to
change the venue in this cause, and read an
affidavit, in support of the motion, taken before
Amasa Paine, Recorder of the City of Troy.
Mr. Demit, contra, objected that the affi-
davit ought not to be read, as it was taken be-
fore A. Paine,who was counsel for the defend-
ant. He cited Taylor v. Hatch, 12 Johns.,
340, in which the affidavit, taken before a com-
missioner, who was attorney for the plaintiff,
was not allowed to be read.
Per Curiam. The rule laid down in Taylor
v. Hatch applies only to the case of the com-
missioner, or officer, being the attorney erf the
party. The attorney is supposed always to
draw the affidavit. There is not the same
reason to object to the counsel.
Cited in- 2 Paige, 337; 3 How. Pr., 221 ; 4 How.
Pr., 153 ; 9 How. Pr., 67.
SHARP 9. DORR.
Practice — Rule to Declare.
Where a rule is entered for the plaintiff to de-
clare, before the end of the next term, the plaintiff
has the whole of the last day of the term in which
to declare ; and his default cannot be entered until
the next day thereafter.
MR. DEY, for the defendant, moved to set
aside the default, entered in this cause,
for want of a plea. He read an affidavit,
^stating that on the 3d of July, 1818, [*532
the defendant's attorney entered a rule for
the plaintiff to declare, before the end of the
next August Term, of which notice was given
to the plaintiff's attorney on the 6th of July.
No declaration having been received, the de-
fendant's attorney, on Saturday, the 15th of
August, being the last day of the term, filed
an affidavit of the service of the notice of the
rule to declare, and entered a default, for not
declaring, after 3 o'clock P. M. of that day.
On Monday, the 17th of August, the defend-
ant's attorney was served with a copy of the
declaration, and notice of a rule to plead,
upon which he gave notice to the plaintiff's
attorney of the default for not declaring hav-
ing been entered, and proceeded to complete
his judgment. The plaintiff's attorney en-
tered a default, for want of a plea, on the 16th
of October, and gave notice of executing a
writ of inquiry of damages on th« 30th of Oc-
tober.
Mr. Caines, contra, insisted that the default
entered for not declaring was irregular, as the
plaintiff had the whole of the last day io which
to declare, so that no default could be entered
until the next day, or Monday following.
Per Curiam. The plaintiff was entitled to
the whole of the last day of the term in which
to declare, so that his default could not be
regularly entered until after that day. But
we grant the defendant's motion on payment
of costs.
Motion granted, onpayment of costs.
*!N THE MATTER OF ELIZABETH [*533
COOPER, Widow, on a Claim of Dower,
&c.
Dower — Application for Admeasurers of — Costs.
Notice in writing of an application to the surro-
gate, for the appointment, of admeasurers of
dower, must be given to the parties interested in the
JOELNS. REP., 15.
1818
ARNOLD ET AL. v. SANDFORD.
5«3
land : otherwise the proceedings will be set niM>M
irn-tf ular. But no costs are allowed on a motion in
this court for that purpose.
Mil. SUFFERS moved to set aside the pro-
ceedings before the surrogate of liockland
County, »* to the admeasurement of dower,
under the Acts Concerning Dower, and the
Act supplementary thereto. (1 N. R. L.. 50,
«0. 61; sens. 10. ch. 168.)
Notice of the motion had been served on the
widow, which stated the several grounds on
which the application was to be made ; some
of these were, that the proceedings before the
surrogate were ex-portt. without any legal no-
tice to the parties interested in the land of the
application to the surrogate ; that no citation
was issued by the surrogate to the parties in-
terested, to show cause against the appoint-
ment of adineasurers of dower.
The counsel cited Baihbun v. MOler, 6
Johns., 883. It appeared from the affidavits
read that the parties were verbally informed on
the 28th of June, by the person employed by
the widow to obtain her dower, that he should
apply to the surrogate on the 3d of July for
the appointment of commissioners to assign
her dower ; but none of the parties appeared
before the surrogate, who, on that day, with-
out any citation or further notice, appointed
admeasurers.
Mr. Drake, contra, contended that there was
sufficient notice in this case, and cited the case
of Watkiiu, 9 Johns., 245.
Per Curiam. The notice in this case was not
sufficient. The application to the surrogate is
a legal proceeding, affecting the rights of the
parties interested in the land, who ought,
therefore, to be duly apprised of it. On gen-
eral principle, the notice ought to be in writ-
ing, and the want of it is a fatal objection to
these proceedings. The motion must be
granted, but without costs, as it is not a case
within the Statute Relative to Costs.
Motion granted accordingly.
Cited in -5 Hill. 105 ; 19 Barb., 540 ; 39 Barb., IBS ; 53
Harb., 411 ; 35 How. Pr. W.
534*] *ARNOLD ET AL. e. SANDFORD.
Practice — Error of Fact — Reversal — Co»U.
Where, in error to a Court of C. P.. the judgment
b'jlow was revoked for error of fact, to wit : the in-
fancy of one of the defendants ; the plaintiff in er-
ror was entitled to costs under the 13th section of
the Act (seas. 86. ch. 96 ; 1 N. R. L.. 343, 346), it N-in*
substantially a reversal of the judgment ; and in
such case, the defendant below may be ordered to
appear and plead <te FWDO to the declaration removed
into this court ; having refused to rejoin to the as-
signment of errors, after leave given for that pur-
pose, on withdrawing a demurrer,
Citation— 11 Johns., 460.
THE COURT, in October, 1817 (14 Johns.,
417), on a demurrer to the assignment of
error* in this cause, which was of an error in
fact, to wit : the infancy of Duncan, one of
the plaintiffs in error, gave judgment that the
judgment of the court below be revoked, re
omsetur ; with liberty to the defendant, if he
chose, to withdraw his demurrer, and rejoin to
the assignment of errors. A certified copy of
the rule for judgment of reversal was served
on the attorney of the defendant, on the 2d of
JOHNS. RJBP., 15. N. Y. R, 5.
November, 1817. but he bad not thought
proper to avail himself of the liberty given to
rejoin to the assignment of errors. A question
having arisen, before the Recorder of New
York, as to the taxation of costs, it was, by
consent of the parties, submitted to the court,
whether the plaintiffs in error are entitled to
their costs, under the 13th section of the Act
passed April 12. 1813(1 N. R. L., 348. 346),
which gives costs to the plaintiff in error, on
reversal. It was also submitted, whether the
lefendant in error, not choosing to rejoin to
the assignment of errors, is not entitled to a
rule on Duncan, the defendant below, to ap-
pear and plead de noeo.
Mr. Sampnon, for the plaintiffs in error. He
cited 6 Johns., 104 ; Styles' P. R, 288 ; a
Saund.. 319 ; 11 Johns., 460.
Mr. Slo»»on, contra, contended that the
plaintiffs in error were not entitled to costs.
Previous to the Statute of the 12th of April.
1813, no costs were ever allowed a plaintiff in
error, on the reversal of the judgment below.
As it is an alteration of the common law rule,
as to costs, it ought to be construed strictly.
The Statute says, that in cases of reversal, the
plaintiff in error, shall be entitled to costs.
Reversal is only for errors in law. Here the
judgment was rewcetur, for an error in fact,
and therefore not within the words of the Act.
If it was a judgment of reversal, *there [*o35
could be no further proceeding in the cause.
But the judgment being revoked for an error
of fact, dehors the record, the party will be al-
lowed to proceed de now, from the time when
the error in fact began. There is no reason,
therefore, for allowing costs in this case.
Per Curiam. The form of the entry of the
judgment ought not to deprive the plaintiff in
error of his costs. It is, substantially, a judg-
ment of reversal ; and therefore within the
Statute.
In Dewitt v. Post, 11 Johns., 460, we decided
that the proceedings might be reversed in part.
The whole cause is removed from the court
below, and the record is here, so that we
might award a venire de now, returnable in
this court. If so, we may direct the infant to
plead de novo.
The costs, on reversal, must, therefore, be
assessed according to the Statute ; and the de-
fendant in error may enter a rule for the de-
fendant below, Duncan, to appear and plead
de now to the declaration removed into this
court.
Motion granted.
Cited in -' Hill. 396.
COSTER t>. WATSON.
Attorneys.
An attorney of this court is not good bail.
Citations— 1 Tidd's Pr., 230 ; 1 Tumi t .. 164, note.
MR DE Y, for the plaintiff, mpved for an at.
tachment against the sheriff of New York_
for not bringing the body of the defendant'
pursuant to the rule entered for that purpose't
a copy of which had^jbeen duly served on him\
75 1185
535
SUPREME COURT, STATE OF NEW YORK.
181S
Mr. E. W. King, contra, objected to the ap-
plication, on the ground that the defendant
had regularly appeared, by putting in special
bail, due notice of which had been given to
the plaintiff's attorney.
It was admitted that special bail had been
put in by the defendant ; but which had been
excepted to by the plaintiff, on the sole ground
that the bail was an attorney of this court.
The counsel for the plaintiff cijted 1 Tidd K.
B. Pr., 230 ; 1 Sell. Pr., 161 ; 1 Taunt., 164 ; 5
Johns., 230 ; 8 Johns., 327.
536*] *Per Curiam. It is a general rule of
the Court of K. B. that no attorney of that, or
any othei; court, shall be bail in any action de-
pending in that court. (1 Tidd's Pr., 230.)
The same rule prevails, also, in the Court of
C. B. (1 Taunt., 164, note.) There appears to
be good leason for the rule, and we, therefore,
adopt it. The motion is granted.
The counsel for the parties agreed that the
rule should be, that the sherift put in other
sufficient bail in four days, or that an attach-
ment issue against him.
Rule accordingly.
Cited in— 2 Bos., 710 ; 4 Bos., 634.
BAKER v. ASHLEY.
Practice — Copy of Affidavit — Costs.
Where a cause is noticed for trial, and as an in-
quest, a copy of the affidavit of defense filed with
the clerk of the sitting-s must be served on the
plaintiff's attorney ; otherwise, the defendant must
pay costs, in case the inquest, taken by default, is,
afterwards, set aside.
Citation— 5 Johns.. 355.
MR. E. WILLIAMS, for the defendant,
moved to set aside an inquest, 'taken by
default in this cause at the last sittings in New
York, and all subsequent proceedings, on the
ground of irregularity.
The inquest was taken out of its order on
the calendar of causes ; and the notice of trial
was, that it would be taken as an inquest.
It appeared that an affidavit of a good de-
fense, on the merits, had been regularly filed
with the clerk of the sittings, but that a copy
of it had not been served on the plaintiff's at-
torney.
Mr. E. H. Ely for the plaintiff.
Pf.r Curiam. The general rule of November
Term, 1808, requires that a copy of the affida-
vit of defense should also be served on the
plaintiff's attorney, in order to excuse the de-
fendant from paying costs, in case the inquest
is set aside ; and it was so decided in Cannon
v. Titus, 5 Johns., 355. The motion is granted,
but it must be on the payment of costs.
Motion granted.
537*1 COMMISSIONERS OF HIGHWAYS
OF THE TOWN OF KINDERHOOK
CLAW ET AL.
Commissioners of Highways — Appeal to Court of
Common Pleas — Certiorari on Behalf of Com-
1186
missioners Lies to Supreme Court — Notice of
Appeal.
On an appeal from the decision of the commis-
sioners of highways to three of the judges of the
Court of Common Pleas, under the 36th section of
the Act to Kesrulate Highways (sess. 36, ch.33; 2 N.
K. L., 282), if the decision of the commissioners is re-
versed, a certiorari will lie on the behalf of the com-
missioners, to remove the proceedings into this
court ; the right to bring a certiorari being recip-
rocal, and belonging- as well to the commissioners
as to the appellants.
On an appeal from the decision of the commis-
sioners of highways, relative to the laying out,
altering, &c., a highway, the appellant must give
notice of the appeal to the commissioners, and if
such notice was not given, the commissioners may
bting a certwrari, on which the proceedings on the
appeal will be reversed.
It is not sufficient that notice was given to the
town clerk.
Wherever magistrates proceed judicially, both
the parties to the proceedings are entitled to be
heard, and notice to both is indispen? ably requisite,
notwithstanding there is no dire ction in the Act by
which the tribunal is constituted, that notice shall
be given.
Citation— 2 Cai.. 179.
IN ERROR, on certiorari to three of the
judges of the Court of Common Pleas, of
the County of Columbia, to whom an appeal
had been made by the defendants in error,
under the 36th section of the Act to Regulate
Highways (sess. 36, ch. 33 ; 2 N. R. L., 282}
against a determination of the plaintiffs in
error, relative to the regulating and altering a
highway in the town of Kinderhook, in the
County of Columbia.
The affidavit of the plaintiffs, on which the
certiorari was allowed, alleged that no notice
had been given to them, or to the town clerk
of the town of Kinderhook, of the appeal, and
that their decision had been reversed on an.
ex-parte hearing. It appeared, however, from
the return of the judges of the Court of Com-
mon Pleas, that the town clerk did attend at
the hearing, and produced the records of the
town in relation to the subject of the appeal ;.
but in their additional return they stated that
they did not know that any notice was given
to the plaintiffs ; and that it was stated to-
them by the attorney for the defendants, that
the Act did not require any notice ; and that
upon examining the Act, they decided that no
notice was required. The decision of the
plaintiffs in error was reversed, solely upon
testimony adduced by the defendants, without
any examination of the road by the judges.
Mr. Vanderpool, for the plaintiffs, contend-
ed that the commissioners of highways ought
to have had notice of the appeal. Although
the Statute did not require notice to be given,
yet the act to be performed being judicial, a
notice was necessary. *(Bouton v. [*538
Neilson, 3 Johns., 474 ; Rathbun v. Miller, 5-
Johns., 281.) A certiorari lies in this case,
to bring the proceeding before this court.
(Lawson v. Commissioners of Highways of Cam-
bi-idge, 2 Cai., 179.)
Mr. Van Buren, Attorney-General, insisted
that as the Statute did not require any notice
to be given either to the owners of the land or
to the commissioners, on an appeal from their
decision, it was not necessary. In all those
cases in which a notice was deemed necessary,
the Act specially required it to be given, as in
the 6th, 20th, 38th and 40th sections!
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. LAWSON.
VAN NESS, J., delivered the opinion of the
court :
The point made by the plaintiffs in error is,
that their proceeding* in regulating and alter-
ing the road in question have been reversed,
on an appeal to three judges of the Court of
Common Pleas, without any notice having
been given to them of the bringing of such an
appeal, and of the time and place for hearing
and deciding it. That a cxrtiorari lies to the
judges to reinove the proceedings bad before
them on an appeal from the commissioners of
highways into this court, was decided in the
case of Isncton etal. v. The Commissioners, &c.,
of the Town of Cambridge, 2 Cai., 179. The
certiorari there was brought by the owners of
the land against the commissioners of high-
ways ; and there can l»e no question that the
right to remove the proceedings on the appeal
into this court is reciprocal. The duty im-
posed upon the judges is strictly judicial :
they are to exercise a discretion, and to decide,
after inquiring into all the circumstances of
the case ; in every proceeding of such a nat-
ure, both parties are entitled to be heard, and
notice to both is indispensably requisite. The
principle has been so long and so frequently
settled, that it is unnecessary to cite cases in
support of it. There is a peculiar propriety in
requiring notice to be given in appeal from the
commissioners under the Highwav Act. They
act under their oath of office, in the discharge
of a public trust, and. it is to be presumed, m
filJi)*] strict conformity *to all the require-
ment of the Statute. An appeal to three
judges opens the whole matter ; and if the
proceedings of the commissioners are liable to
be reversed, without notice, upon the mere ex-
parte allegations and proofs of the plaintiff,
the probability is that their determinations
would be overturned in every instance. If
notice of the appeal be necessary at nil, it |
clearly must be given to the commissioners. ,
It is their act which is sought to be set aside ;
they know the facts upon which they have
founded their proceedings, which it is their
duty to defend and maintain, as the repre-
sentatives of the town, in all matters pertain-
ing to the regulating, altering or laying out
of roads and highways. Notice to the town
clerk would be altogether useless, though, in
this case, no notice of the appeal was even
given to him. The opinion of the court is,
that the decision of the three judges on the
appeal must be reversed.
Judgment accordingly.
Cited in-2 Hill. 25; 4 Johns,. Ch., 358; 36 N. Y.,
310; .Y. N. Y...YSI: 10 Hun. 437: 32 Barb., 130; 36
Itirl... 225; 51 liiirt., 430; 3 How. Pr., 106; 0 How.
Pr.. 176; » How. Pr., 74.
JACKSON, ex dem. BATES, v. LAWSON.
Wills — Devise of hintl* Prcriouxly Conveyed —
Recovery in Ejectment against Devisees —
Record Admi**tkle as Evidence in Subsequent
Action by Qrnntte of mime of the Devisees —
Holder of Life Kutatf and Remainder-men are
Prime* in Estate— Ecidencc of Deceased Wit-
ncit*, in Winner Suit, Admissible.
A devises a farm to bis wife, dtirinK her widow-
hood, remainder to bia children ; 1 1. claiming under
JOHNS. IJi.iv . 15.
a deed of the land from A, brings an action of
ejectment ajraiimt the widow and another person,
In which he recovers on proof of the existence and
contents of the deed from A, which was lost, or
otherwise could not be produced, and goes into
possession on this recovery. After the death of the
widow, C. claiming as the grantee of some of the
devisees in remainder of A. brings an action of
ejectment against U, and on the trial, B produces
the record of the former recovery by him, and
offers evidence of what had been sworn to, on the
trial of that suit, by a witness since deceased, whose
testimony went -to establish the existence of the
deed from A to B. Held that the evidence was ad-
missible: that the widow, and the remaiiidi-riiu-n.
from whom C derived his title, and who all claimed
under the will of A, were privies In estate ; and that
the evidence of a deceased witness, in a former
suit, is testimony, not only where the same point in
•Me afterwards arises between the same parties,
but also for A against persons standing in the re-
lation of privies in blood, privies in estate, or privies
in law.
Citatipn-1 Ld. Kay m., 730.
THIS was an action of ejectment for a farm
in Poughkeepsie, in the County of Dutch-
ess. The cause was tried before Mr. Justice
Van Ness, at the Dutchess Circuit, in Auinist
1817.
On the trial, John C. Brower, a witness on
the part of the plaintiff, testified that he knew
William Lawson, the father of Peter Lawson,
and the grandfather of the defendant ; that
W. Lawson died in possession of the premises
in question *in July, 1791 ; that the [*54O
defendant was in possession of about fifty or
sixty acres of land, the premises in question,
which the defendant recovered in an action of
ejectment against the witness, and Elizabeth
Lawson, widow of W. Lawson; and that he
went into possession by virtue of that re-
covery, seventeen or eighteen years before the
trial, and had continued in possession ever
since ; that when W. Lawson died, he
left his widow, Elizabeth, who is since dead,
in possession ; and that Peter Lawson had
possessed the farm for a long time previous to
his death, and the witness always understood
that he bought the farm of his father, W.
Lawson.
William Lawson, by his will, dated 6th of
May, 1790, devised his real estate, as follows :
"It is my will, that my daughter Catharine,
the wife of Matthew Boyce ; Ippea, the wife
of Benjamin Phillips ; "the heirs of Gertrude
and William Jaycocks, deceased ; the heirs of
Annatje and John Ferdun, deceased ; my son
Simeon Lawson ; the heirs of .my son Johannes
Lawson, deceased (that I, in the lifetime of my
son Peter, have given him his portion, and
that his heirs have no demand on my estate) ;
the rest of the above named to be my lawful
heirs after my decease. Notwithstanding, my
wife, Elizabeth, is to remain in full possession
of all my estate, real and personal, during her
widowhood."
The plaintiff also gave in evidence the fol-
lowing deeds to his lessor : a deed from John
Velie and Catharine, his wife, one of the
children of Annatje, dated December 16th.
1791, which was acknowledged by the wife
only, but was admitted to be read, subject to
all objections ; a deed from Simeon Lawson,
dated 14th Novemlwr, 1791 ; and a deed of the
same date from Thomas W. Jaycocks. one of
the children of Gertrude. These deeds pur-
ported to convey all the right of the grantors
1187
540
SUPREME COURT, STATE OF NEW YORK.
1818
in the farm of W. Lawson, of which the
premises in question formed a part.
Matthew Lawson, a witness on the part of
the defendant, testified that Peter Lawson,
who died before the Revolutionary War, and
before his father William, leaving the defend-
ant his heir at law, bought the farm of his
father, and that after the death of Peter,
William told the witness that he had sold the
land to Peter and since his death had got
541*] *back the deed. He also stated that
Peter died in possession. Another witness
testified that Peter bought the land of his
father in the spring, and died about seed-time,
the same year, in possession, and that his fam-
ily continued in possession a year or two after
his death. The deposition of Simeon Lawson,
one of the sons of W. Lawson, taken under
the Act to Perpetuate Testimony, was also
read on the part of the defendant, whi6h cor-
roborated the testimony of the other witness
on the part of the defendant, and stated that
the witness, during the life of Peter, had heard
his father say that he had sold the south half
of his farm in Poughkeepsie to Peter, and had
given him a deed.
The defendant then gave in evidence the
record of a recovery in an action of ejectment
in this court, for the land in question, wherein
James Jackson, on the demise of John Law-
son, the now defendant, was plaintiff, and
Elizabeth Lawson, the widow of W. Lawson,
and John Brower, were defendants, and which
cause was tried on the 14th of June, 1797, be-
fore Morgan Lewis, Esq., then one of the
justices of this court, and judgment was
signed the 4th of August, 1797. The defend-
ant then offered to prove that the lessor of the
plaintiff was present at the trial in that suit ;
that he was the agent of E. Lawson, in pre-
paring the defense, conducting the trial, and
examining and cross-examining the witnesses ;
and that Peter Dubois, who is since dead, was
sworn as a witness at that trial, on the part of
the then plaintiff, and testified, in the hearing
and presence of the lessor in this suit, that he
surveyed the premises in question on the 14th
of February, 1769, at the request of P. Law-
son, and his father, William, and drew a deed
in fee simple from William to Peter; and a
bond from Peter to William for the purchase
money; and that William told the witness,
some mouths afterwards, that he had con-
veyed the premises to his son, and was afraid
that he would not be able to pay the residue
of the consideration money. This testimony
was objected to, and excluded by the judge.
The jury found a verdict for the plaintiff,
which the defendant now moved to set aside,
for a new trial, on the grounds : 1. That the
verdict was contrary to evidence ; and, 2.
That the judge had rejected proper testimony.
54-J3*J *Mr. Oakley, for the defendant, con-
tended that the defendant, having shown a prior
possession in his father, it was evidence of right,
and ought to prevail against a subsequent pos-
session of W. L., the elder, especially where a
descent had been cast, as in this case. (Smith
v. Lorillard, 10 Johns., 338-356.) Besides,
there was sufficient evidence of a conveyance
from W. L., the elder, to P. L., the father of
the defendant. If there could be any doubt
on this point, that doubt would have been re-
1188
moved by the evidence off ered of what Dubois,
a witness since deceased, swore on a former
trial of the action of ejectment against the
widow of W. L. and J. B. The lessor of the
plaintiff was present at that trial, and examined
the witnesses. The admission of this species
of evidence is a departure from the strict,
technical rules of law, and allowed from ne-
cessity. (Jackson v. Bailey, 2 Johns., 17, 20 ;
Taylor v. Brown, T. Raym., 170.) In Cal-
houn's Lessee v. Dunning, 4 Dall., 120, it was
objected that a record of an action of trespass,
brought by the defendant against one Caruth-
ers, could not be read in evidence, as it was
not between the same parties ; but the objec-
tion was overruled, on the ground that
Caruthers was the person really mteiested, as
the owner of the land ; and that Calhoun, the
lessor, was a mere trustee for him.
A verdict for or against a lessee is evidence
for or against him in reversion ; and a verdict
for him in remainder is evidence against a
subsequent remainderman ; for he claims by
the same deed. (Pike v. Crouch, 1 Ld. Raym.,
730; Com. Dig., Evidence, A, 5; Vin. Abr.,
Evidence, T b, pi. 4.) In the case before the
court, there is the same privity of interest.
Mr. P. Huggles, contra, contended that if the
defendant claimed under a conveyance from
W. L., it was the same source of title as that
of the lessor of the plaintiff, and he could not
defend on the ground of his prior possession,
which could not be adverse. To admit the
parol declarations of W. L., made twenty-five
years ago, would be most dangerous, unless
some account was given of the deed. (Jack-
son v. Shearman, 6 Johns., 19, 21.)
Again ; evidence of what a witness, since
deceased, *swore at a former trial, is [*543
not admissible, unless in an action between the
same parties. (Jackson, ex dem. Schuyler, v.
Vedder, 3 Johns., 8, 14.)1 The only exception
to this rule is the case of a remainderman.
VAN NESS, J., delivered the opinion of the
court :
The first question I shall consider is, whether
the testimony given by Dubois, in the action
of ejectment brought by the present defendant
against the widow of William Lawson and
Brower, and in which the then plaintiff had
judgment in 1797, was properly rejected or
not. By the will of William Lawson, he de-
vised all his estate to his wife during her wid-
owhood, with remainder to certain of his chil-
dren and grandchildren, part of whose estate
the now lessor of the plaintiff purchased in
1791. Both the widow of William Lawson
and the lessor of the plaintiff thus claim under
the same will ; and I am inclined to think that
there is such a privity of estate between them,
and the verdict in that case was, for certain
purposes, evidence (though not conclusive) in
this. It was evidence, at least, to lay the
foundation for admitting the testimony given
by Dubois, more especially as the lessor of the
plaintiff, in point of fact, had notice of and
defended the former ejectment ; was present
at the trial, and had an opportunity of cross-
examining the witnesses, though I lay no par-
ticular stress on these latter facts. The estate
devised to the widow during her widowhood,
and the remainder over, constitute but one
JOHNS. REP., 15.
1818
JACKSON, EX DEM., v. LAWSON.
543
estate carved out of the same inheritance,
created and subsisting together, the one in pos-
session, the other in expectancy. An estate in
remainder is a present interest, though to be
enjoyed in future, and is capable of being
aliened, devised, and otherwise disposed of, in
the same manner as an estate in possession.
The possession of the widow was, for certain
purposes, the possession of the remaindermen,
and the entry of the present defendant, under
the recovery in the ejectment, was a prejudice
to those in remainder, for, in consequence of
it, the estate in remainder has become
a right in action only. The lessor of the
plaintiff had an interest in defeating the re-
covery, and his right was so interwoven with
that of the widow, that the evidence of
944*] *Dubois affected the one almost
equally with the other. My attention was not
called to this view of the subject at the trial ;
and the fact that the present lessor of the
plaintiff had purchased part of the estate in
remainder before the trial in 1797. was over-
looked ; and the counsel for the defendant put
the admissibility of the testimony offeree!, on
the ground that the lessor of the plaintiff was
the agent of the widow, and present at the
trial. It was held by Chief Justice Holt "that
if several estates in remainder be limited in a
deed, and one of the remaindermen obtains a
JOHNS. REP., 15.
verdict for him, in an action brought against
him for the same land, that verdict may be
given in evidence for the subsequent man re-
mainder in action brought against him for the
same land, though he does not claim any
estate under the first remainderman, because
they all claim under the same deed." (Pike v.
Crouch, 1 Lord Hayrn., 730.)
If the verdict in" the former ejectment was
admissible on the trial of this suit, by reason
that the tenants for life and the remaindermen
are privies in estate, it follows that the evi-
dence given in the first suit by a deceased wit-
ness is also admissible. The rule is, that such
evidence is proper, not only when the point in
issuers the same in a subsequent suit between
the same parties, but also for or against per-
sons standing in the relation of privies in
blood, privies in estate, or privies in law. On
this ground, the defendant is entitled to a new
trial ; though, independently of this, I think a
new trial ought to be granted on the other
grounds taken in the argument that the verdict
is against the weight of evidence. The proof
of a conveyance by William Lawson, in his
lifetime, to his son Peter, is very clear and
satisfactory.
New trial granted, with cost* to abide the event.
Cited in -3 Wend., 252 ; 112 Mass., 268.
1189
[END OP OCTOBER TERM, 1818.]
545*]
'ADDENDA.
Citations— 5 Johns., 121, 160; 2 Saund., 177, 180, n.
9 ; 1 Mod., 290, 291 ; 1 Lev.. 301 : Plowd., 258 a.; Cro.
Eliz., 700; Stat., 32 Hen. VIII., ch. 28; Cro. Jac.,
56SJ, 5(i4 ; Cowp., 201, 203 ; 12 Mod., 607 : 1 Sid., 120; 6
Mod., 311 : Salk., 7 ; 2 Mass., 97 ; 7 Mass.. 291.
IN the case of Saltus v. The United Ins. Co. ,
ante, p. 531, add VAN NESS, J., dissented.
In the case of Whitbeck \. Cook, et ux., ante,
p. 488, the following opinion of Mr. Justice
Van Ness should have followed that delivered
by Mr. Justice Spencer, in which the three
other judges concurred.
VAN NESS, J. The questions presented for
the decision of the court on this case arise :
1st. Upon a demurrer to the fourth count in
the declaration ; 2d. Upon a case made at the
trial of the issues taken on the first, second
and third breaches ; and, 3d. Upon a motion
in arrest of judgment.
1st. As to the demurrer. The fourth breach
is assigned upon the covenant for quiet enjoy-
ment, which is alleged to have been broken,
by reason, that at the time of the execution of
the deed, eleven acres, two roods and twenty
perches, parcel of the land conveyed, was, and
for a long time before that time, and ever since,
had been a common and public highway,
agreeable to the laws and statutes of this State;
nnd had been, for all the time aforesaid, used,
occupied, and enjoyed by the people of this
State as such common and public highway,
&c. The objection is, that this breach does
not, in terms, or in substance, aver an evict-
ion of the plaintiff, and it is insisted that no
action can be maintained for a breach of this
covenant, unless the declaration contains such
an averment. This point has been so fre-
quently decided in this court, that it is no
longer open to argument. " The covenant for
quiet enjoyment," say the court, in Kortz v.
Carpenter, 5 Johns., 121, " goes to the posses-
sion, and not to the title. It appears • to be a
technical rule, that nothing amounts to a breach
of this covenant but an actual eviction, or
546*] disturbance *of the possession of the
covenantee." The defendant, therefore, is en-
titled to judgment on the demurrer, and the
contingent assessment of damages on this
breach goes for nothing.
3d. As to the case, upon which the defend-
ant makes three points : 1. That the wife is
not bound by the covenants in the deed de-
clared on. and that she may take advantage of
this on the plea of non estfactum, which is one
of the pleas in this case.
2. The plaintiff having declared on a joint
contract, and one of the defendants (the wife).
not being liable on it, that he should have been
nonsuited.
3. That the existence of such highway as is
stated in the case, is not a breach of the cove-
nants upon which the parties went to trial.
4. That the rule of damages adopted on the
trial (admitting the existence of such road to
be a breach of the covenants on which the
parties went to trial) was not correct.
1190
The first two points involve the same in-
quiry, and may be considered together. Al-
though, in general, it is true that, during co-
verture, the power of the wife to contract is
suspended, so that she is disabled to bind her-
self by any agreement, yet it is equally true
that there are exceptions to this rule. When
the husband and wife unite in afinesur conces-
sit, with a warranty, she is bound by the cove-
nant, and an action may be maintained upon
it against her. This was so decided, after great
consideration, in the case of Wotton v. Hele, 2
Saund., 177, and which is also reported in
several other books (1 Mod., 290 ; 1 Lev., 301).
The facts were, that Hele and his wife levied
afine sur concemt, by which they granted cer-
tain lauds to the plaintiff, Wotton, for ninety-
nine years, if he should live so long, with cove-
nant of warranty. After the death of the hus-
band, a suit was brought on this covenant
against the wife, who survived him, and a ver-
dict was found against her ; and on a motion
in arrest of judgment, one, among other ques-
tions made, was, whether the action of the
covenant would lie upon the warranty, it ap-
pearing that the defendant at the time of the
fine levied was a feme covert. In support of
the motion, it was argued that although femes
covert may pass their right in lands by fine, be-
cause they are examined by a judge of record,
*yet they cannot bind themselves in a [*547
personal security, by covenant ; for that a
feme covert cannot covenant to pay damages.
The court, however, decided "that the action
will lie against the defendant on her warranty
in the fine, although she was covert of baron,
and they did not make any scruple of it." In
the report of the case in 1 Mod., it is stated
that " this point was agreed by the counsel on
both sides that covenant on this warranty
would lie against her." It is not expressly
stated in the report of the case ; but enough is
said to induce a belief that the lands in fact
were the lands of the husband. With respect
to this case, it is to be observed that the war-
ranty was contairied in a fine, which is one of
the highest matters of record, "and for its
worthiness, and the peace and quiet it brings,"
is termed finis, fructus, exitus et effectus legis.
(Plow., 258 > a.) It has grown, in England, to
be the most common assurance or conveyance,
and is the proper mode for a married woman
to dispose of her land ; it partakes of the solem-
nity, and has the same effect as a judgment,
against which there can be no averment,
while it remains unreversed or set aside ; and
it would seem that a power to warrant by a
feme covert, who joins in a fine even of her hus-
band's lands, is incident to that mode of alien-
ation ; at any rate, it appears to be settled that
she is bound by such a covenant as much as
her husband. Between a covenant thus made
and a covenant in a deed, there is a great dif-
ference, and so it was held in the case of Bre-
retonetux.v. Evans, Cro. Eliz., 700, which
will be noticed presently, for another purpose.
JOHNS. REP., 15.
1818
There is another class of cases, which is. in
Home measure, also, an exception to the gener-
al rule of law, namely : where the husband and
wife, before the Statute 32 H. VIII., ch. 28.
make joint lenses of the lands of the latter for
life or years; it having been uniformly held
that if the wife, after the death of her hus-
band, ratify such leases, by the acceptance of
rent, or by any other equivocal act. she is
bound by them, and liable to the covenants
they contain. (Cro. Jac., 5H8, 564; I Mod.,
291; Cowp.. 201: 2 Saund.. 180, note 9. and
cases there cited.) This class of cases has,
however, always been considered as an excep-
tion to the general rule of law, and was
548*] *allowed for the advancement of agri-
culture and tillage. (Ooodright v. Stratum.
Cowp., 203.) In that case, the general position
that the deed of a married woman is void, is
-expressly recognized by Lord Mansfield, in de-
livering the opinion of the court. The ground
upon which the wife is bound in such cases, is
not that the lease was good as to her, at its
•creation, but that she has ratified and con-
firmed it after the death of her husband,
when she was free to affirm or disaffirm it. at
her election. Grants by way of fine are, in a
great measure, unknown in this State, except
for the purpose of strengthening a good, or
guarding against the defects of a doubtful or
•disputed title; and a married woman, with us,
may aliene by any of the common assurances
in use, provided she be examined by certain
•commissioners designated by law for that pur-
pose, in the same manner as is necessary in
levying a fine by the English law: hence it
may be argued, that as this latter mode of
alienation has been adopted as a substitute for
•i fine, that an alteration in the mere form of
the conveyance cannot alter the substance of
it. and that the liability of &feme covert upon
her covenants for the'title, must be the same,
whether such covenants are contained in such
conveyances as are permitted, rather than pre-
scribed, by our law, or 'in a conveyance by
way of fine. This has, however, never been the
understanding of the profession of this State.
The deed of a feme cocerl, executed and ac-
knowledged pursuant to the Statute, is good
to pass all her interest in the land; but it has
n<*ver, I believe, been supposed that she could
bind herself by any of the covenants for the
title which are commonly contained in the
conveyances in use among us. Such covenants
on the part of the wife, I suspect, are never
inserted when the deed is drawn by a profes-
sional man; and whenever they are inserted, it
is where the blanks have been filled up by
some? ignorant scrivener in a printed deed,
who does not know the legal effector meaning
of th« words he makes use of. . It would bo
alarming, indeed, if every married woman
who entered into such covenants, where she is
a party to the conveyance, solely for the pur-
pr.s« of barring her right of dower, should be
hold answerable for the failure of her bus-
•R4W*) band's title. Except the *two classes
of cases which have txren adverted to, and,
perhaps, a few others of a local or trifling nat-
ure, it may be laid down as a universal rule,
that every contract entered into by a ff me covert
is absolutely void, not voidable merely, but void.
It may be useful to advert, somewhat at
JOHNS. REP., 15.
WHTTBECK v. COOK.
[ADDENDA.]
547
large, to some of the cases where this doctrine
has been considered, to show the great tender-
ness of the common law in protecting the
wife, not only against the power and undue
influence of the husband, but also against the
acts and impositions of others. In an anony-
mous case, reported in 12 Mod., 607, Holt, C*.
./.. held, "that though tifeme cttvert seal and de-
liver a deed, yet she may plead non e»t factum,
and give coverture in evidence." "Her con-
tract is merely void as to binding herself,"
say all the judges, in Manby v. Scott, 1 Sid..
120. In the case of Linfh v. Honke, 6 Mod.,
311 ; S. C., Salk.. 7. the defendant, a feme
covert, was arrested by the name of Minors.
and gave a bail-bond by that name, and then
would plead misnomer ; and by the court, "if
& feme covert be arrested by a wrong name,
and gives a bail bond by that name, yet she
may plead misnomer ; for the bond being that
of & feme covert, she may plead non ent factum
to it ; therefore, it will not estop her." In the
case of Brereton et tix. v. Ecnn», Cro. Eliz.,
700, the plaintiff brought debt against the de-
fendant for rent, upon a lease for years made
by the yfem*and her first husband, to the de-
fendant, by indenture. The defendant plead-
ed that the ancestor of the first baron waa
seised in fee, and that it descended to the first
baron, and he was sole seised, and so the feme
covert had nothing at the time of the lease
made, and thereupon the plaintiffs demurred
in law ; "but all the justices resolved that it
was a good plea ; for that where two joined
in a fine or matter of record, he who accepts
of them is concluded to say, but that both
gave it ; but when it is by deed, it is other-
wise ; for that cannot inure from one by way
of interest, and from the other by way of
estoppel ; for one deed cannot so inure to two
intents. Also, when two join in a deed, and
the one only hath an interest, it inures by way
of confirmation from the other, and not by
way of estoppel. But here this can neither be
an estoppel nor a confirmation, for the deed
is utterly void as to the feme, she being
*covert ; and it cannot be an estoppel, [*£>5O
for an estoppel ought to be mutual on both
parts ; and a deed of a feme covert does estop
her, and the deed cannot bind her to any ef-
fect." In Goodright v. Strnhan, Cowp., 203,
before oited, Lord Mansfield, in speaking of
leases made by husband and wife, and of
their binding the wife in case she ratifies them
after her husband's death, says that the au-
thorities to that effect are exceptions to the
general rule of law, which says the deed of a
married woman is void -. and the passage
which he cites from Perkins shows the dif-
ference between the deed of an infant, which
is voidable, and that of A feme cac-ert, which is
void. These cases, to which many more might
be added, show that the deed of a feme corert.
whether executed with or without her hus-
band, is void; and the exceptions to this propo-
sition do not reach the present case. It fol-
lows that the wife is not bound by any of the
covenants upon which the plaintiff has
counted. Whether the plaintiff can have
judgment against the husband alone, is a point
to be considered hereafter. It is proper first
to consider the third point made upon the
1191
550
SUPREME COURT, STATE OF NEW YORK.
1818'.
3. Whether the existence of the public high-
way is a breach of either of the covenants
upon which the parties went to trial. These
covenants are : 1st. That the defendants were
the true and lawful owners of all the land con-
veyed. 2d. That they were lawfully seised
of a perfect, absolute and indefeasible estate,
in fee simple, and that they had, in them-
selves, good right, full power and lawful au-
thority to grant and convey in the manner
aforesaid. It is not necessary, . in order to
maintain an action on either of these cove-
nants, that the plaintiff should aver or prove
an eviction. If it appear on the trial that the
title of the grantor, from any cause, was not,
in point of fact, such as he covenanted it to be,
and any damage has resulted to the grantee,
that is all which is required to be shown.
Whether the fact, which is admitted in this
case, that upwards of eleven acres of the land
conveyed were used and enjoyed as a public
highway before, at. the time, and ever since
the execution of the deed, is a breach of either
or of all these covenants, is the question ; and
it appears to me that the simple statement of
it is sufficient to show that it must be answered
551*] in the affirmative. The *covenant of
seisin implies that the grantor is the exclu-
sive owner. That this is so, is evident from
the nature of the covenant, and the reason of
the thing ; for otherwise, if the grantor had
previously given a lease for years or for lives,
and had a mere reversionary interest, or an
estate in remainder, his covenant would not
be considered as broken. Suppose the plaint-
iff had entered under this deed, and that he
had been evicted by a title derived under a
lease given by the grantor, or some person
from whom he had derived his title, can it
be supposed, for a moment, that such an evic-
tion would not be a breach of the covenant of
seisin ? The books abound in cases to show
that such an eviction is a breach of a covenant
for quiet enjoyment, which differs only, in its
nature and legal import, from a covenant of
seisin, in this, that there can be no breach of
it, so as to give a right of action, unless the
plaintiff has been evicted or disturbed in his
possession. This covenant also implies that
the covenantor has a seisin in fact, and that
the covenantee shall have a right to enter and
enjoy the land, and cultivate and use it as he
sees proper ; and that he may sell and convey
it, in the same manner, to others. The seisin
contemplated by this covenant is, that the
grantor is entitled to the immediate possession
of the land, and to exercise that uncontrolled
and exclusive dominion over it to which the
lawful owner is entitled. Now, where a law-
ful public highway covers part of the land, at
the time such covenants are entered into, the
grantqr has no right of entry, and his grantee,
as long as such road continues (and it is to be
presumed it will continue forever), is as ef-
fectually excluded from the enjoyment of the
land over which the road is laid, as if the
grantor had previously conveyed it in fee
simple. The injury is as great, and the sub-
stance of the covenant is as much broken, in
the one case as in the other. Suppose there
had been no other land conveyed, except that
covered by the road ; would it not be an af-
front to common sense to say that, because,
1192
by possibility, at some future period, the road
might be discontinued, and the grantee's heirs
or assigns might then enter and enjoy it, that,
therefore, the grantors were to be considered
as being, within the meaning and legal intent
of these covenants, the lawful owners seised
*pf a perfect and absolute estate in fee [*552
simple, and having full power- to sell? The
case of Kellogg v. Ingersoll, 2 Mass., 97, is very
much like the present. There the defendant
sold, with a covenant ihat the land was free
from incumbrances ; and the breach alleged is
almost in the very words of the fourth breach
in this case. The counsel for the defendant
there argued, as the counsel has in this case,
that the facts averred in the breach gave no-
right of action ; but the court decided other-
wise, and for reasons which apply, with full
force, to this case. That, it is true, was a cove-
nant against incum brances ; but if the existence
of such a road was a breach of that covenant,
a fortiori, I should suppose it to be a breach
of the covenants in this case. A mortgage
and a judgment are, strictly speaking, incum-
brances. Now, suppose a conveyance to have
been made of lands which had been previously
mortgaged, or against which there was an un-
satistied judgment, and that the land is sold
under the mortgage or judgment and bought
by the grantee or a stranger, whereby the
title under the conveyance is defeated ; can it
be doubted that this would be a breach of the
covenant of seisin, as well as of the covenant
against incumbrances ? It was said that if
the existence of a public highway at the time
of executing this deed is a breach of these
covenants, the laying out a highway after-
wards would be a breach also. This is alto-
gether fallacious. The laying out of a road is
an act of the government, and is not done
through the agency or any default of the-
grantor ; and any person who purchases land,
does so knowing that the government may ap-
propriate such part of it for public use as the
public good may require ; but, in every such
case, the present owner or proprietor receives
an adequate compensation, and has, therefore,
no other claim. It has been argued that
where conveyances include highways, the
grantee takes the land subject to the easement;
and knowing of its existence, it would, there-
fore, be unjust and inequitable that he should
maintain an action on any of the usual cove-
nants in the deed. But, in a court of law,
these considerations can have no influence.
The question here is not whether the grantee
did or did not know of that existence of the
road. Whether the covenant is broken or not,
*cannot depend upon that fact, nor can [*553
it at all be the subject of inquiry. A court of
law must judge from what appears in the deed
itself, and is not permitted to travel out of it
to determine its legal effect. Let us suppose,
however, the grantee to have been an entire
stranger to the land : that he had never seen
it ; that he purchased it by the acre, and that
all the land described in the deed had been
covered by a highway ; how would the equity
of the case then stand ? If, in this case, the
grantee knew of the existence of the road, and
the deed had been executed under mistake or
misapprehension, the grantee might, perhaps,,
have relief elsewhere ; but in this court he is-
JOHNS. REP., 15.
1818 WHITBECK vr. COOK. 553
— f~~ [ADDENDA.]
bound by the terms of his covenants. I am, . warranty, and the court, after deciding that
accordingly, of opinion that the plaintiff has I the action could not be maintained against the
shown aVight to recover against the husband, wife, gave the plaintiff leave to enter a nolle
The next question is, what shall be the rule of proeequi as to her. and to procoed against the
danmgcs ? I have no hesitation to say, the j husband alone. This was done before verdict,
and, as I should infer from the report of the
case, upon the trial.
8. As to the motion in arrest of judgment,
the remarks which have already been made,
dispose of all the objections to the declaration,
except that it is not averred that the deed wan
duly acknowledged by the wife. This, how-
ever, is not material to be decided, because the
wife is not *liable on any event. The [*5o4
course proper to be taken, if the opinions
which I have expressed are correct, would be
to require the defendant to alter the pottea, so
that it should appear that the plaintiff was
nonsuited on the trial, as to the wife, or, that
a verdict was taken for her at the election of
the wife ; and if he did not consent to this,
that the motion in arrest of judgment generally
money, as in other instances.
The existence of the road is equivalent to a
total failure of title. If, however, this is not
the true rule, but the actual damages sustained
is to be the measure, still there ia no reason to
disturb the verdict, because it does not appear
what rule of damages the jury or judge
adopted ; and whatever it was, it was not com-
plained of at the trial. The only remain-
ing question arising upon the case is whether
take judgment against
This is a question of some
difficulty ; but I think the principle estab-
lished by this court in the case of llnrtnes* v.
Thompson et al. embraces the case before us,
and ought to govern its decision. In the ewe
of GAconl el al. v. Swan etux., 1 Mass., 291,
the plaintiff can
the husband alone.
the defendants were
JOHNS. RKP.. 15.
sued on a covenant of ! should be granted.
CASES ARGUED AND DETERMINED
IN THE
Court for the Trial of Impeachments
AND
CORRECTION OF ERRORS
IN THE
STATE OF NEW YORK,
IN
FEBRUARY, MARCH AND APRIL, 1818.
DAVID DUNHAM, Appellant,
v.
ANTHONY DEY. Respondent.
Real Property — Deed as Security for Debt, is
Mortgage — Mortgage for Usui-ious Debt — Re-
newal of Promissory Note does not Affect Mort-
gage to Secure it — Prior Unrecorded Convey-
ance— Notice of, Sufficient — What Amounts to
Notice — Usury.
A deed purporting to be an absolute conveyance
of land, but, in fact, intended as a security for a
debt, is a mortgage.
A party cannot obtain relief in equity, against a
mortgage given for a usurious debt, without offer-
ing to redeem, on payment of the principal and le-
gal interest.
Where a mortgage is given as security for the pay-
ment of promissory notes, which are from time to
time renewed, the renewal is not to be deemed an
extinguishment of the original debt, so as to affect
the continuance of the security.
A person who takes a conveyance of land, with |
notice of a prior unregistered mortgage, is not a
bona fide purchaser who can gain a priority by hav-
ing his deed first recorded.-
Where a person conveyed all his property, real
and personal, without any particular description in
the body of the deed, but in a schedule annexed,
certain lots, previously mortgaged by the grantor
to D. D., were described as "lots of ground in Stuart
Street, the title to which is in D. D.," it was held that
this was notice to the grantee of the prior mortgage
to D. D., which had never been recorded, and that,
therefore, the grantee could not, by having his deed
first recorded, obtain a priority.
Citations— 2 Atk., 275 ; 1 Atk., 275 ; 3 Ves., Jr., 478 ;
3 Atk., 646 ; 10 Johns., 374.
THIS was an appeal from the Court of Chan-
cery. The respondent, in his bill in the
court below, stated that Matthias and William
Ward were copartners in the business of book-
sellers, before, on and after the 27th of Janu-
ary, 1810, on which day M. Ward was seised
of fifty lots of ground in the ninth ward of the
NOTE.— Not ice of unrecorded mortgage destroys
priority of subsequent deed, though recorded. See
Jackson v. Sharp, 9 Johns., 163, note.
Mortgage— W hat constitutes— A deed dhwlute on
its face may operate as a mortgage. See Jackson v.
Green, 4 Johns., 186, note.
Renewal of notes does not affect the mortgage secur-
ity. Brinckerhoff v. Lansing, 4 Johns. Ch., 65 ; Bank
of Utica v. Finch, 3 Barb. Ch., 293.
1194
City of New York, containing each twenty-
five by one hundred feet. That M. Ward gave
to the appellant a deed of conveyance for these
lots, which was absolute on the face of it, but
was intended only as a security, or for some
temporary purpose understood "bet ween them,
and was never registered as a mortgage. That
on the 27th of July, 1810, a *writing, [*556
bearing date on that day, was made and
executed under the hands and seals of M.
Ward and the appellant, reciting that M & W.
Ward were indebted to the appellant in the
sum of $10,000, on three promissory notes,
payable six months after date, and dated re-
spectively the 24th, 25th and 26th of July,
1810; the conveyance from M. Ward to the
appellant, that M. & W. Ward had deposited
with the appellant certain notes of R. Bache
& Co., and declaring that if the notes of M. &
W. Ward should be regularly paid, the con-
veyance and the notes of R. B. & Co. should
be given up, otherwise they were to remain as
security, and the appellant might sell the lots
and collect the money on B. & Co.'s notes ;
but this writing was never registered. That
on the 17th and 25th of June, 1811, M. & W.
Ward made and delivered to the appellant
their other notes, each for $3,333.88, and
which were received by his agent, M. B. Ed-
gar, on account of the notes given by them in
July, 1810, but the latter notes were still re-
tained by the appellant ; that at the same time
they paid the appellant the interest due there-
on, and, in addition thereto, a large sum, by
way of usury, on the substituted notes, which
last, when they fell due, were taken up by the
respondent. The bill further stated that M. &
W. Ward, by indenture of the llth of May,
1812, conveyed and assigned to the respondent
all their estate, real and personal (except wear-
ing apparel, household furniture and certain
specified debts), in trust for the benefit of their
creditors, and a part of the property so con-
veyed was the right and interest of M. Ward
in the fifty lots contained in the deed to the
appellant ; and that, afterwards, by a deed of
the 16th of November, 1812, M. Ward executed
JOHNS. REP.. 15.
1818
DUNHAM v. DEY.
5-V5
another conveyance of those lots, upon the
name trusts, for the more clear description of
the said lots, and to confirm the title of the re-
spondent therein ; and that on the 19th of No-
vember, 1812, the respondent gave a written
notice of the conveyance to the appellant, re-
questing him to give up his deed to be can-
celed, to release bis right in the land, and to
give up the three promissory notes of M. &
W. Ward to he canceled. The bill further
stated that between the 2?th of January, 1810,
and the day of the date of the assignment
557*] from M. & W. *Ward to the respond-
ent, M. & W. Ward had various dealings with
the appellant, by exchanging notes, upon
which transactions the appellant, taking ad-
vantage of their necessities, extorted from
them, under the name of commissions, or some
other name, but in fact for usury and unlaw-
ful interest, contrary to the Statute, $2,000 or
upwards, for which the appellant became and
was accountable to M. & W. Ward, before and
at the time they made the assignment of their
estates in trust to the respondent, and for
which the appellant, in consequence of that
assignment, became accountable to the re-
spondent. The bill prayed that the appellant
might deliver up the said deed of the 27th of
January, 1810, and release to the respondent
all pretense of right in the said fifty lots, and
account with the respondent, for what the ap-
pellant had received for usury or unlawful in-
terest from the said M. & W. Ward, as stated
in the bill.
The appellant, in his answer in the court be-
low, denied that the deed from M. Ward to
him was made on any usurious or illegal con-
tract, or that the purposes of it were fulfilled
on the 27th of July, 1810, or were yet fulfilled.
The' answer stated that on the 27th of Janu-
ary, 1810. M. & W. Ward applied to the appel-
lant to advance them three promissory notes
for $10,000. payable six months after date,
which he agreed to do. and accordingly ad-
vanced them three notes, each for an equal
portion of that sum, dated the 24th, 25th and
26th of January, 1810. payable six months
after date respectively : whereupon M. Ward
conveyed to the appellant the before-men-
tioned fifty lots, by a deed of that date, which
was absolute in its terms, but was intended
only as security for the notes so advanced ;
that on the 25th of July, 1810, M. & W.
Ward applied to the appellant to renew the
notes, which he did by giving their notes for
the same sums, dated the 26th. 27th and 28th
of July, payable in six months ; and there-
upon they gave the appellant their three notes
—two for $3,000 each, and one for $4,000,
dated 'he 24th, 25th and 26th of July, pay-
able six months after date, left the deed in his
hands, and also deposited with him three
notes of R. Bache & Co., of which two were for
*1.40S.42 each, and the other $1.408.41 ; that
558*] the difference in the *dates of the notes
S'ven by the appellant and those taken from
. & W. Ward, in exchange, was to enable
the appellant to collect the latter notes before
his fell due, or to sell the lift v lots to raise the
money ; and that M. & W. Ward took up the
notes which they had given to the appellant
in January, and which he had lodged in the
bank for collection ; but that the notes given
JOHNS. REP.. 15.
in July, being lodged for collection in the
bank, were left unpaid, the Wards having
previously failed, and were taken out of the
bank by the appellant, and retained by him,
with their consent. The appellant admitted
that the deed of the 27th of January. 1810. was
never registered as a mortgage, but that it was
recorded as a deed, on the day it bears date ;
and also that the defeasance had never been re-
corded. He stated that after the notes of M. &
W. Ward, given in July, 1810. had become
payable, M. Ward proposed to the appellant
to raise for him. on his notes, $10,000. to put
him in cash to that amount, and prevent a
sale of the lots; in consequence of which M.&
W. Ward gave to him three notes, one dated
25th of May, 1811, for $3,333.33, at sixty days,
for which they received from him his note for
the same amount, dated the 28th of May, at
sixty days ; another note, dated 12th of June,
1811, at "ninety days, for 3,388.33. for which
they received his note for the same amount,
dated the 15tb of June. 1811 ; and a third note
for $3.333.33, dated the 24th of June, at thirty
days, which he received to meet his note given
.to them payable at five months from the 25th
of February, then last : on which notes, money
was raised by M. Ward, who gave the re-
spondent the proceeds ; but he denied that he
received from them any notes of the 17th and
25th of June, as mentioned in the bill. He
also alleged that at the time the proposition to
raise money on the respondent's notes was
made, M. Ward agreed that the notes given in
July, 1810, should be retained by the respond-
ent, until the lots should be sold, or the loan
or debt discharged, because they corresponded
with the notes described in the defeasance,
and the deed and defeasance were also to re-
main in force till the debt was paid ; but he
denied that the notes of the 25th of Mav, 12th
and 24th of June, 1811, were *given f*55tt
by the Wards, or received by the respondent,
in lieu of the notes of July, 1810. on which
latter notes they paid all the interest that had
accrued ; and he admitted that the notes given
by M. & W. Ward, in May and June, 1811,
had been paid. He admitted that he had re-
ceived from them co'mmissions, varying from
one half to two and a half per cent., but de-
nied all extortion and usury.
The receipt before alluded to, signed by M.
B. Edgar, was in the following terms :
"New York, June. 17th, 1811. Received
from M. & W. Ward, their two notes, viz. : 25th
May, sixty days, thirty-three hundred and
thirty-three -ffg dollars. 12 June, 90 days,
same amount, being on account of their three
notes, 24, 25, 26 July, 1810, at 6 ms., for $10,-
000. D. Dunham, p. M. B. Edgar."
On the back of the receipt there was this in-
dorsement ; "25 June, received note 30 days,
$3.333.33. M. B. Edgar."
The assignment of the llth May, 1812, from
M. &. W. Ward, to the respondent, contained
a grant of "all the estate and property of the
said MHtthias .Ward and William Ward, either
joint or several, and both real and personal,
and whether in possession, reversion or re-
mainder (the wearing apparel und household
furniture of the parties respectively excepted).
and the several debts and demands due to the
said Matthias Ward and William Ward, either
im
559
COURT OF ERRORS, STATE OF NEW YORK.
1818
jointly or severally, whether mentioned and
described in the schedule hereto annexed,
marked B, or otherwise, and more particularly
the stock in trade, now in the house called the
City Hotel, in the said City of New York, or
in the wareroom in the rear of the same. To
have and to hold, &c." In the schedule re-
ferred to, there was the following clause :
" Lots of ground in Stuart Street, the title to
which is in name of David Dunham, given as
collateral security to pay certain notes." The
deed of conveyance of those lots, of the 16th
of November, 1812, from M. Ward, to the re-
spondent, referred to the description of them
as given in the schedule to the assignment.
The testimony in the court below, taken on
the part of the respondent, fully established
5 GO*] the fact that a commission *of two and
a half per cent, had been received by Dunham
from the Wards, on the several exchanges of
notes before mentioned. The transaction,
however, was not regarded by the Chanceellor
as usurious, who did not notice it in his de-
cree, but ordered a conveyance of the lots in
question to be executed by the appellant to
the respondent, and that the appellant pay
the costs of suit. For the decree of the
Chancellor, and the reasons on which it was
founded, see 2 Johns. Ch., 188-196.
Mr. T. A. Etnrnet, for the appellant con-
tended that the question of usury could not be
discussed on the present appeal. If the re-
spondent considered the decree of the -Chancel-
lor erroneous in that respect, he might have
entered a cross appeal, and thus brought the
subject before the court ; but not having done
so, all discussion must be confined to the other
points on which it has been sought to invali-
date the deed from Ward to the appellant.
The deed of the 27th of January, 1810, was
an absolute conveyance, and vested an abso-
lute title in the appellant : it was not until the
following July, that a defeasance was exe-
cuted, and, consequently, in all the intermedi-
ate time, it could have been recorded no other-
wise than as a deed. Had the execution of
the conveyance and the defeasance been simul-
taneous, they would have been, in fact, but
one and the same disposition of the property,
and no more than equivalent to a single instru-
ment, containing both a grant and the con-
dition on which the estate of the grantee was
to be devested, and the transaction could be
regarded no otherwise than as a mortgage.
(Pow. on Mort., 6, 7.) But where the defeas-
ance, as in this case, is subsequently executed,
it cannot vary the nature of the original deed,
as between the parties themselves. It is an
agreement, or trust, which may be enforced ;
but as to third persons, the deed continued an
absolute conveyance ; nor does it, as the
Chancellor supposed, relate back to the original
deed ; the law gives it no such relation (Cot-
terell v. Purchase, cases temp. Talb., 61), and
the parties themselves never intended it to be
retrospective. The instrument, on the face of
it, was only prospective : the appellant might
have sold and conveyed an absolute and irre-
561*] deemable *estate, and it was in the
contemplation of the parties that he should
have that power. There was no actual pos-
session of the lots, and the law will, of course,
deem the possession to be in him who has title.
1196
The respondent was not a bona fide pur-
chaser. Indeed, it nowhere appears, except in
the schedule of the assignment from M. & W.
Ward to him, that he was a creditor ; and
that assignment and schedule are not evidence
against the appellant ; but if he were a pur-
chaser for valuable consideration, he is not,
therefore, necessarily, a bona fide purchaser. As
a trustee for the 'payment of debts, he is not a
purchaser for valuable consideration : he paid
nothing. The Statute means a purchaser — in
the common and vulgar sense, one who lays
out his money ; and admitting that the deed
and defeasance may be coupled, and make
parts of one transaction, as he was affected
with notice, he was not a bona fide purchaser.
The schedule to the deed of assignment itself,
was full intimation of the appellant's claim ;
for it states expressly that the title to the lots
in question was in the name of the appellant,
and that it was given to him as collateral se-
curity to pay certain notes.
Where a person takes a conveyance of the
legal estate, with notice of a 'prior right, he is.
guilty of a fraud. (Le Neve v. Le Neve, 8 Atk..
646; S. C., Ambl., 436; 1 Ves., 64; Burr..
474, per Lord Mansfield ; Jackson, d. Humph-
rey et al., v. Given et al., 8 Johns., 137 ; Jack-
son d. Livingston et al. v. Neely, 10 Johns.,
374), and cannot gain a priority by having his
deed recorded. It is true that Lord Hard-
wicke, in Nine v. Dodd, 2 Atk., 276, says that
" suspicion of notice, though a strong sus-
picion, is not sufficient to justify the court in
breaking in upon an Act of Parliment ;" but
he previously admits "that apparent fraud,
or clear and undoubted notice, would be a
proper ground for relief." The Master of the
Bolls, therefore, in Jolland v. Stainbndge. 3
Ves., 478, was certainly not warranted in as-
serting that Lord Hardwicke, in Hine v. Dodd,
said that " nothing short of actual fraud will
do." Besides, in Hine v. Dodd the defendant
denied notice, and there was but a single wit-
ness to fix it upon him : this alone was a suf-
ficient ground for dismissing *the bill, [*562
and it was unnecessary to go into any further
inquiry. Newland, in his Treatise on Con-
tracts (p. 510), observes that "Lord Hardwicke
did not mean to say that it was necessary to
make out a case of actual fraud, as distin-
guished from the fraud which equity imports,
to a person purchasing with notice of a prior
'title, and endeavoring to defeat it by obtaining
the legal estate, in order to admit evidence in
the case alluded to. Lord Hardwicke plainly
distinguishes between one species of fraud and
the other, and admits that in either case relief
would be given." "The intention of the'
Act," says Mr.Sugden (L. of Vend, and Purch.,
471), "was to secure subsequent purchasers
and mortgagors against prior secret conveyan-
ces and fraudulent incumbrances; and there-
fore, where a person has notice of a prior
conveyance, it is not a- secret conveyance by
which he can be prejudiced ; for he can be
in no danger where lie knows of another in-
cumbrauce; because he might then have stop-
ped his hand from proceeding, and there-
fore is not a person whom the statutes meant
to relieve." If by suspicion of notice, be
meant, what is sufficient to put the party
upon inquiry, that, Lord Hardwicke has him-
JOHNS. REP., 15.
1818
DUNHAM v. DEV.
562
self said, is good notice in equity (Smith v. Low,
1 Atk., 490); and in Le A/ere v. Le Kete. 3
Atk., 646, he proceeds, throughout, on the
ground that the taking a conveyance with
notice of a prior right, makes a person a mala
Jide purchaser, and he decides that notice to
the agent was sufficient to affect the princi-
pal. This case, certainly, went far beyond
the narrow rule laid down in Mine v. Dodd. If
a man purchases the fee in land under a lease,
and is informed of the existence of the lease,
is there n\)t sufficient to put him upon inquiry,
and must he not be bound by all the stipula-
tions and covenants which it contains 1 (Tay-
lor v. Stibbert, 2 Ves., Jr., 487.) The respond-
ent, in the case before the court, was apprised
of the existence of the appellant's deed. He
had sufficient to put him upon inquiry ; and
he cannot protect himself by alleging the want
of that knowledge, which it was his duty to
acquire.
The fan - of the case show that the notes
given by the Wards in July, 1810, have always
remained outstanding and unsatisfied. Such
is the allegation of the answer, and there is
f»O3*] *nothing to repel it but an inference
drawn from an obscure expression in Edgar's
receipt. If the respondent's objections to the
deed of the 27th of January, 1810, are well
founded, he has an adequate remedy at law ;
and the decree of the Chancellor was incor-
rect, in ordering the deed to be delivered up
to be canceled, for it contains covenants which
ought not to be released, and which no in-
solvency would sweep away.
Me«*rs. Kigg* and S. Jones, Jr., contra. The
question of usury is open for discussion in
this court, which, on an appeal from chancery,
will hear and decide on the whole merits of
the case, and finally settle all the matters in
controversy between the parties. (Le Guen v.
Qouverneur <fe Kemble, I Johns. Gas., 436;
M' Vickar et al. v. Wolcott et at, 4 Johns., 510.)
It is the settled practice of the Court of Ap-
peals in Virginia to correct an error to the
injury of the respondent, although he has not
appealed from it. (Day v. Murdoch, 1 Mun-
ford, 460.) A similar practice is adopted in
the Court of Chancery, where, on a rehearing,
although the party petitioning is restricted to
the specific objects of his petition, yet the
whole case is open to his adversary.
The notes, for the securing the payment of
which the mortgage was given, were usurious;
or, if not usurious, there was extortion, and
an undue advantage taken of the situation
and necessity of the Wards. The amount of
interest received, or stipulated to be received,
upon the various transactions between them
and the appellant, exceeds the legal rate of
seven per cent. ; and it is in vain to attempt to
shelter it under the name of commissions. A
creditor is not allowed to make it a condition
of the loan that he should receive a compen-
sation for his services in procuring the money ;
for it tends, most manifestly, as was observed
by the Chancellor in another case, to oppres-
sion and usury, if it is not usury in itself.
(Hint v. Handy, 1 Johns. Ch., 6.) And in a
case between these same parties, the Supreme
Court determined that the taking two and a
half per cent., in the exchange of the appel-
lant's notes, with the notes of the Wards,
Joans. Ili-.r.. 15.
under the name of commission, *was [•5O4
usurious, the commission, in fact, amounting
to more than legal interest. (Dunham v. Dry,
13 Johns., 40.) The bill contains a sufficient
charge under which to introduce the question.
It is objected that the respondent has an ad-
equate remedy at law, as regards the deed of
January, 1810. But where a Court of Equity
has jurisdiction of part of a subject, it may
take cognizance of all the matters connected
with it, although strictly of a legal nature ;
and the exception can be taken no otherwise
than by demurrer. (Ludloui v. Mmond, 2 Cai.
Cas. in Er., 1.) Besides, a court of law could
not, in this instance, have given the requisite
relief ; it could not have directed the deed to
be delivered up, which is one of the principal
objects of the decree.
The next question is, was this instrument a
mortgage. Upon the face of it was an abso-
lute conveyance ; but in fact, and so the
answer admits, it was merely a collateral
security ; it was conditional and defeasible,
although the defeasance was by parol.; and
after the execution of the written defeasance,
in July, 1810, it clearly became a mortgage.
There is no necessity that the two instruments
should be simultaneous, where the convey-
ance derives its effect from the Statute of
Uses, and not from livery of seisin. Being a
mortgage, it must l>e registered as such. As
between the parties themselves, every mort-
gage is a trust ; but when the rights of third
persons are involved, it is no more than a
mortgage, and their respective claims are to
be decided by the provisions of the Act Con-
cerning Mortgages, which does not require the
recording of a trust.
If, then, the transaction be established as a
mortgage, the inquiry remains, whether the
respondent was a bonafide mortgagee; although
the objection comes with an ill grace from the
appellant. He who charges fraud against
another must himself be free from all imputa-
tion ; yet the deed, which is the basis of the
appellant's title, asserts a falsehood ; it pre-
tends to be an absolute, when it is only a de-
feasable conveyance ; and the falsity of an
instrument is sufficient to destroy its efficacy.
(2 Sch. & Lef., 501.) But admitting it to be
available to any intent, notice, at least actual
notice (for the law, in cases of this descrip-
tion, *regards no other), (1 Madd. Ch., [*5Oi>
260, 261), is not brought home to the party.
The rule laid down by the Chancellor, in the
court below, as the result of the numerous
decisions upon the subject, is undoubtedly
correct, that there must be actual fraud ; and
although there may be cases in which notice
devested of fraud has been held sufficient, yet
the proof must be extremely clear. No other
principle can be deduced from the opinion of
Lord Hardwicke in Le Nete v. 7x? ffeve, and
there is nothing to be found in Newland or
Sugden which in the least impugns the doc-
trine ; and it is confirmed by all the decisions
on the subject that have occurred in the Su-
preme Court. (Jackson, d. Bonnell et al., v.
Sharp, 9 Johns., 163; Jafkiton, d. Humphrey
et al., v. Given et al., 8 Johns., 137 ; Jackson, d.
BonneU et al.,v. Wheeler, 10 Johns., 165 ; Jack-
ton, d. GKlbert, v. Burgott, 10 Johns., 457.)
But in this case, the notice arising from the
1197
565
COURT OF ERRORS, STATE OF NEW YORK.
1818
schedule was lame and defective. The Act.
Concerning Mortgages (sess. 36, ch. 32, sec
3 ; 1 N. It. L., 373) makes it indispensable
that the defeasance should be registered with
the deed, at all events, and no question can
occur as to notice. If, however, the case falls
within the second section of the Act, still there
must be actual notice ; a mere implied or con-
structive notice is not sufficient. The cases
cited by the opposite counsel, in support of
his position, are inapplicable ; they are not
cases arising under the Registry Act, which
makes this a question not of fraud, but of
diligence.
The notes, for securing which the deed was
given, were taken up by other notes, which
were afterwards paid, and therefore the con-
dition having been performed, all the appel-
lant's title under it ceased. If there were
other notes outstanding, it was incumbent on
the appellant to produce them. As his deal-
ings with the Wards were multifarious, there
may possibly have been other notes ; but if so,
they are not traced to and connected with the
first notes of July, 1810, for which the security
was given.
Mr. T. A. Emmet, in reply. It is an ac-
knowledged rule that an appeal must state the
grievance ; otherwise there can be no issue on
the point, and the opposite party would be
£>G(i*] *taken by surprise. The reason of
the rule equally applies to the case of a re-
spondent, who should not be allowed to intro-
duce his own complainant, without giving
notice to his adversary by a cross appeal. Nor
is the practice analogous to a rehearing ; for
a rehearing is, to almost every purpose, an
original bill, under wnich new exhibits and
new matter may be introduced. If the decree
be silent as to usury, there is nothing from
which the party can appeal.
But how would the respondent have stood,
supposing a cross appeal had been filed ? He
is not entitled to an account, for the Wards
are not parties, which was particularly requis-
ite here under the circumstances of the case.
An assignor must be party to a bill in rela-
tion to the subject of the assignment. (Ray v.
Fenwick. 3 Bro. Ch. Cas., 25; Cathcartv. Lewis,
1 Ves., Jr., 463 ; Coop. Eq. PL, 34. In. op-
position to this principle, Mr. Riggs cited
Clute v. Robinson, 2 Johns., 595, in which a
bill of foreclosure was tiled by the assignee of
a mortgage, without making the mortgagee
party.) The bill is too vague as to any specific
account ; and besides, the respondent does not
offer to pay the balance, if found against him;
nor is there any person before the court who
can be compelled to satisfy the appellant for
what may be found due to him, on taking an
account. The respondent is not entitled to it
on the ground of usury, as he has not offered
to pay what may be actually due.
The Mortgage Act has no reference to a
parol defeasance, and there is no case to be
found in which it has been held that a parol
understanding would make an absolute deed a
mortgage. Had Ward filed a bill against the
appellant, he could not have been compelled
to answer as to the parol agreement: he might
have pleaded the Statute of Frauds, or even
admitted the fact, and still insisted on the
Statute. By the defeasance, the deed is not
1198
converted into a mortgage, but it raises a trust.
It was subsequent in point of lime; and to
constitute a mortgage, the condition of re-
demption must enter into the contract, in its
first formation. It was, therefore, not neces-
sary that the deed should have been registered
as a mortgage. The priority given by the Act
relates only to mortgagees, and not to pur-
chasers.
*As to the question of notice, it is [*567
said by Haddock (1 Madd. Ch., 261) that it
may be proved by parol evidence* In the
present case, the notice was all in writing, and
it cannot be presumed, nor will the respond-
ent be permitted to suggest, that he never read
his deed. A recital is notice. (Cuyler v. Bradt,
2 Cai. Cas. in Er., 326.) The schedule to this
deed must be taken as if incorporated with it,
and by it the respondent must have learnt that
the legal title was in the appellant; it was not
only notice that he held the legal title, but it
was notice of the quantity of interest vested
in him. and that Ward could only have in-
tended to convey an equitable estate to the
respondent. The second deed was not de-
signed for a mere particular description of the
premises, but is a confirmation of the title,
and therefore it shows that the first was de-
fective.
PLATT, J. The object of the respondent's
bill was to vacate and cancel the title of David
Dunham, on three grounds: 1st. That the debt
for which the lots were pledged to Dunham
had been paid; 2d. That the deed to Dunham
was in violation of the Statute against usury,
and therefore void; and. 3d. That the convey-
ance to Dunham was not registered as a mort-
gage, pursuant to the Statute; and therefore
it cannot defeat or prejudice the subsequent
conveyance to Dey.
The payment and the usury charged in the
bill, are denied in the answer. Whether the
Chancellor has properly decided that the evi-
dence does not support the allegation of usury,
is a question which does not necessarily arise;
because the bill is not framed or adapted for
relief on the ground of usury. The complain-
ant does not ask to redeem by paying the
money actually lent with interest. If that
were his object, there never would have been
any disagreement between the parties;
The course of reasoning pursued by the
ChanceUor did not require him to examine the
question of payment; and he, therefore, ex-
pressed no opinion on that point.
According to my view of the case, the alle-
gation that the debt to Dunham has been paid
is not well founded. The repeated renewal of
the notes, which were the evidence of that
*debt, is to be regarded as an exten- [*56&
sion of the credit, from time to time, but
ought not to be deemed an extinguishment or
satisfaction of the original debt, for which
the conveyance to Dunham was given as se-
curity.
This renders it necessary to examine wheth-
er the Statute Concerning Mortgages, as appli-
cable to this case, required the registry of the
conveyance to Dunham, as a mortgage, in or-
der to preserve his lien against the subsequent
deed to Dey.
The provision of the statute is, "that no
JOHNS REP.. 15.
1818
DUNHAM v. DEY.
mortgage, nor any deed, conveyance or writ-
ing, in the nature of a mortgage, shall defeat
or prejudice the title or interest of any bona
fide purchaser of any lands, tenements or
hereditaments, unless the same shall have been
duly registered," &c. Before this statute,
mortgages gained preference, and took effect
as liens, both at law and in equity, according
to their true dates, independent of any notice,
either actual or constructive. The unregis-
tered mortgage to Dunham, in this case, is
prior in date; and assuming that it was origi-
nally a valid security, it remains to inquire,
whether the statute has deprived him of his
prior lien? The statute annuls a prior un-
registered mortgage, in one case only; and
that is, in favor of a subsequent "bona fide
purchaser." The only question, then, is,
. whether Dey, claiming to defeat the security
of Dunham, is to be regarded as a "bona fide
purchaser" in the true sense of the statute. I
incline to the opinion that he is not. By a
"bona fide purchaser," I understand the Statute
to mean a person who buys without knowledge
of the prior mortgage, and who would, in
fact, be defrauded, if such prior incumbrance
were to stand in opposition to his title. The
manifest object of the statute was to protect
purchasers against prior secret conveyances,
of which such subsequent purchasers had no
notice.
I cannot suppose that the Legislature in-
tended to favor, much k-ss to give priority
to a purchaser who buys with notice of a
prior unregistered mortgage, and with inten-
tion to defeat it, by taking advantage of the
' laches or inadvertence of the prior mortgagee.
Notice supersedes registry, because its effects
the same object, which is to apprise the pur-
oOJ>*] chaser *of the prior incumbrance. An
unregistered mortgage is valid between the
mortgagor or mortgagee; and whoever takes a
conveyance with intent to invalidate such se-
curity, is not a bonufide purchaser but volun-
tarily aids in defrauding the mortgagee.
What degree of particularity or certainty in
the notice, is necessary to affect the purchaser,
and supersede registry, it is often difficult to
decide. In the case of Hine v. Dodd, 2 Atk.,
275, Lord llardwicke says: "The Register
Act is notice to everybody; and the meaning
of this Statute was to prevent parol proof of
notice, or no notice." He admits "there are
cases where the court has broken in upon this"
rule; but insists "it was in cases of fraud."
His Lordship then observes: "There may pos-
sibly have been cases, upon notice, devested
of fraud; but then the proof must be extreme-
ly clear." The luminous mind of that great
man seldom evinced such a want of precision
and perspicuity, as in the opinion which I
have quoted. It would, perhaps, have been
more correct to say, that where the proof of
notice is clear and certain, it is, -perse, evidence
of fraud in him who attempts to defeat a
prior incumbrance, by setting up a subsequent
deed. In this case, the notice of the mortgage
was not particular as to the date, or sum, or
time of payment; but the purchaser was ex-
pressly notified in writing by Ward, the grant-
or, that "the title of the land was in David
Dunham, as collateral security to pay certain
notes." The notice was not only in writing,
JOHNS. REP.. 15.
but contained in a schedule annexed to and
forming part of the deed under which the
purchaser claims. It must receive the same
construction as if it had been incorporated
into the body of the deed. Suppose, then, the
grant had been in this'form: I, Matthias Ward,
grant, bargain and sell to Anthouv Dey. and
his heirs, all my ••estate and property
in the lots in Stewart Street, the title to
which is in the name of David Dunham,
given as collateral security to pay certain
notes;" would such a transposition of the
same words, from the schedule to the body of
the deed, make any difference in the construc-
tion of the who) nstrument? I think not;
and if so, then the purchaser not only bad ex-
press notice of the mortgage to Dunham, but
the very deed itself purported *to con- [*57O
vey no more than a mere undefined equitable
interest in those lots, subject to the prior legal
and equitable title to Dunham. The deed con-
tained a reference to Dunham's title1, not mere-
ly in regard to the sum for which the lots were
pledged, and when payable, but also for the
designation and description of the lots them-
selves; for without examining the title of
Dunham, it is impossible to ascertain what
lands were meant to be conveyed to Dey. The
only description of the premises granted by
that deed, is contained in the schedule: the
deed did not in its terms profess to convey to
Dey the entire estate in those lands, but mere-
ly such portion of equitable interest as re-
mained in Ward, after mortgaging them to
Dunham; or in other words, the conveyance
to Dey expressed no more than an assignment
of the equity of redemption.
Ward, in this case, so far from deceiving
Dey, by pretending to convey to him an estate,
of which he had before devested himself, ex-
pressly informed Dey that he had no legal es-
tate in these lots; for that the title was in
David Dunham. Dey then knew that he
purchased no more than the equitable interest
of Ward, subject to the lien of Dunham,
whatever that might be; and the fair construc-
tion of the transaction is, that Dey voluntarily
took upon himself to investigate the title of
Dunham, and to ascertain the extent of his
lien, so that he might redeem the lots, if 'he
thought proper, for the benefit of the creditors
whom he represented.
I do not tind it necessary to impugn or to
question the decisions in nine v. Dodd, 1 Atk..
275; Jollanil v. Ktainbridge, 8 Ves. , Jr., 478,
or any others cited by the counsel for the res-
pondent. In the case of Le Neve v. Le New,
3 Atk., 646, Lord Hardwicke said: "It would
be a most mischievous thing, if a person, tak-
ing the advantage of the legal form appointed
by an Act of Parliament, might, under that,
protect himself against a person who had a
prior equity, of which he had notice." In the
case of Jackxtm- v. Xeely, 10 Johns., 874, and
several others, in our own courts, the same
construction of our registering and recording
statutes has been sanctioned.
The decree of His Honor, the Chancellor,
in setting aside *the conveyance to [*571
Dunham, is, therefore, in my judgment, er
roneous, and ought to be reversed
This being the unanimous opinion of the
court, it was thereupon ordered, adjudged and
1199
571
COURT OF ERRORS, STATE OF NEW YORK.
1818
decreed that the decree of the Court of Chan-
cery be reversed ; that the respondent's bill be
dismissed: and that he pay to the appellant
his costs in the Court of Chancery, to be
taxed; and that the record be remitted, &c.
Decree of reversal. l
Reversing— 2 Johns. Ch., 182.
Conveyance intended as a mortgage, will so operate.
Cited in— 1 Wend., 437: 13 Wend., 488; 23 How. Pr.,
486; 2 Hall, 14; 1 Daly, 305.
Renewal of notes secured by mortgage, does not af-
fect mortgage. Cited in— 6 Paige, 591; 19 Barb., 144:
3 Mich., 298; 19 Wis., 252.
Conveyance with notice of prior unrecorded jnorf-
oooe, void. Distinguished— 24 Minn., 230.
Cited in— 2 Cow., 290; 19 Wend., 515; 6 Hill, 473: 1
Paige, 654; 27 N. Y,, 354; 42 N. Y., 343; 10 Hun, 417;
6 Bos., 383; 15 Minn., 209.
What sufficient notice. Cited in— 3 Johns. Ch., 443;
Hoffm.. 373; 10 N. Y.. 518; 15 N. Y., 192, 364; 17 N. Y.,
582; 6 Barb., 78; 12 Barb., 609; 8 Bos., 169.
JOHN B. MURRAY, Appellant,
v.
OALEB S. RIGGS, SAMUEL WARD AND
CHARLES McEYERS, JR., Assignees of
ROBERT MURRAY, a Bankrupt, Respondents.
Insolvency — Debtor May Prefer Creditors — As-
signment with Power of Revocation — Voidable
by Creditors — Subsequent Absolute Assignment
Valid — Reservation for Maintenance of As-
signors does not Render Assignment Void —
Set-off.
A debtor in insolvent circumstances may lawfully
prefer one creditor, or set of creditors, to another.
A, on the 23d of March, 1798, assigned property to
B, in trust to pay B and other creditors, with power
of revocation, and to appoint new trust : and on the
24th of March, 1798, the 21st of March, 1799, and the
22d of March, 1799, executed other assignments to
B, all in relation to the same subject, and all reserv-
ing a like power ; and on the 31st of May, 1800, exe-
cuted an irrevocable deed to B in trust. The late
Bankrupt Law of the United States afterwards came
into operation, and A was declared a bankrupt.
His assignees filed a bill against B, to set aside the
several assignments, and to accou nt for the property
received by him. Held that although the revocable
deeds might have been avoided by a person previ-
ously obtaining a title from A, yet that the deed of
1800 was valid, and might be taken in connection
with the first deed, and the other deeds might be laid
out of the question, and therefore, that the assignees
under the Bankrupt Law, whose title subsequently
accrued, could not impeach it ; and that, taking all
the deeds together as parts of one transaction, the
first four could only be regarded as voidable by
creditors, and no rights of creditors having inter-
vened, they were capable of confirmation, and were,
in fact, confirmed by the deed of 1800.
A deed fraudulent in fact is void, and incapable of
confirmation ; but a deed constructively fraudulent,
as being contrary to the policy or provisions of a
particular statute, is voidable only, and may be con-
firmed by matter ex post facto.
An assignment of property in trust, by a debtor,
with power of revocation, is fraudulent only as re-
gards judgment creditors, or such as are taking
measures to obtain payment of their debts.
A reservation in an assignment in trust for the
payment of debts, of a sum for the maintenance of
the assignors, does not render the assignment void ;
though in case of a deficiency, the creditors are en-
titled to have the part reserved applied in satisfac-
tion of their debts.
When there are mutual dealings between A and B,
and A having property of B in his hands, B becomes
1.— The only point determinined in the court be-
low declared to be erroneous by the above decree,
is as to the sufficiency of the notice to the respond-
ent of the prior deed to the appellant, the defeas-
ance of which was not recorded at the time of the
assignment to the respondent in trust.
1200
a bankrupt, A is entitled to set off his debts or de-
mands against the funds in his possession, and can
only be compelled to account to the assignees of B
for the balance ; even though the subject of the set-
off would not be admissible at law.
Citations— 10 Mod., 489, 497 ; 5 T. R., 424 ; 8 T. R.,
528; 3 Johns., 84; 5 Johns., 344: lAtk., 191,228; Salk,
449; 4 Johns., 598; 1 Johns. Ch., 271; 1 Sid., 133; 1
East, 95 ; 1 N. R. L., 77 ; 2 Brownl., 190 : 3 Lev., 146 ;
2 Vern., 510 ; 4 T. R., 14, 211 ; 1 Ves., Jr., 160.
THIS was an appeal from the Court of Chan-
cery. The bill was originally filed by An-
drew Van Tuyl, and the respondents, Ward and
*M'Evers, in the year 1802,as assignees, [*5 7 2
under the Bankrupt Law of the United States,
of Robert Murray, against John B. Murray and
John Innes Clark, and others. Van Tuyl was
afterwards removed by the creditors, and Riggs
substituted in his place. The material facts of
the case are as follows :
On the 23d of March, 1798, Robert Murray,
for himself and as attorney, duly authorized
by his partners, George W. Murray, John R.
Murray and James V. Murray, made an assign-
ment of all their partnership property in the
United States, to John B. Murray and John
Innes Clark. The deed recited that the copart-
ners had become insolvent, and were unable to
pay their debts, and that the assignees had ad-
vanced money, and had become bound for
them in large sums, from motives of pure
friendship, and that they considered themselves
bound in honor to secure the assignees as far
as they were able ; and the deed also admitted
that they had previously made several partic-
ular Assignments to those assignees and others,
for particular purposes, and for their indem-
nity. This assignment was made expressly in
trust, to sell, collect and receive the property,
and to apply the proceeds to the payment of
the balances due to the trustees, and to such
other creditors as the assignors should, by deed r
within one year thereafter, name and specify;
and to each of them, and at such times, and in
such proportions, and on such terms and con-
ditions as they by such deed should direct, and
in default of such direction, then in trust for
the grantors, and further with power to change
the trustees, &c.
On the 24th of March, 1798, the grantors, by
deed, reciting the former deed, appointed and
directed the grantees to pay out of the property
assigned the expenses of the trust, and to retain
and pay to themselves, and for divers other
purposes, therein particularly specified, several
sums of money therein specified ; reserving,
however, to the grantors a power by deed, at
any time before a complete adjustment of the
trust, within one year, to alter or revoke the
appointments.
On the 21st of March, 1799, the grantors, by
deed, revoked and annulled the appointments
and trusts of the deed of the 24th of March,
1798, and appointed and appropriated the
*property before assigned to the .pay- [*573
ment of the charges of the trust, and to the
payment of the trustees and certain other speci-
fied creditors, such sums and in such propor-
tions of the moneys due them respectively as
the grantors should thereafter, by deed, direct
and appoint.
On the 22d of March, 1799, the grantors, by
deed, referring to the former assignment,
directed the trustees to pay out of the property
JOHNS. REP., 15.
1818
MURRAY v. Rioos ET AL.
573
assigned the expenses of the trust, and to pay
themselves and divers other creditors, therein
mentioned, the sums due to them, at the times,
in the proportions, and upon the terms and
•conditions therein expressed ; reserving the
right and power in the grantors, by deed, at
any time before a complete and final adjust-
ment, to alter or revoke all or any of the said
appointments and directions, and to make and
•declare any new appointments or trusts at their
pleasure.
On the 31st of May, 1800, the grantors by
deed, referred to and partly recited the former
deeds of the 23d of March, 1798, and 22d of
March, 1799, and recited further, that the grant-
ors were desirous to alter the appointments
made by the last of those deeds and to make
•other and further appointments and directions;
they did, therefore, by virtue of the power to
them reserved, order and appoint that out of
the proceeds of the property assigned the trust-
«es should pay (1.) All expenses incurred. (2.)
Towards the support of the grantors from the
28th of March, 1798, until they should be re-
spectively discharged from their debts, or until
one year after they should be discharged by
law, a sum not exceeding $2,000 a year for
•each of the grantors. (3.) To pay certain
creditors named. (4.) To pay themselves cer-
tain specified debts. (5.) To pay other debts
due to the trustees and several other creditors
therein mentioned on a due liquidation, «&c.:
and generally to pay all persons who were or
should be bail for the grantors, or either of them.
<6. ) That the assignees should make a final set-
tlement with the creditors last mentioned on
certain terms mentioned, and that the assignees
should hold the balance of trust property sub-
ject to the further order of the grantors, and
th.-it the creditors who should not, in one year,
574*] accept of the conditions or *suould
knowingly embarrass the object aforesaid,
should be forever excluded from any share
under the assignment.
A separate commission of bankruptcy was is-
ssued on the 15th of June. 1801, against Robert
Murray who was then, and since 1796, had been
in confinement for debt, and on the 2d of July
his property was assigned to the plaintiffs. The
respondents in their bill, besides Murray and
('lark, the trustees, also made the grantors de-
fendants. In their bill they charged that
Robert Murray did business in New York, and
that the other partners went abroad to Europe
to avoid and defraud their creditors. That
Robert Murray, partner, had contracted debts
to upwards of $700.000 ; that the assignment
of 1798 was fraudulent and made to delay, hin-
der and defraud the creditors. The bill further
charged that the private property of Robert
Murray, exclusive of his share in the partner-
ship property, was very inconsiderable, and the
bill prayed that the trustees might come
to an account with the respondents for all
moneys received belonging to the partnership
estate, and that they might be directed to de-
liver up all books, vouchersand papers belong-
ing to the estate or firm, and that they might
pay to the respondents what they were entitled
to receive as assignees, and might assign and
deliver over all securities, &c., and that the
sevaral assignments to the trustees might be
declared fraudulent and void.
JOHNS. RKP., 15.
N. Y. R, 5.
To this bill Robert Murray, George W. Mur-
ray and John R. Wheaton. answered gener-
ally, setting forth their bankruptcy and dis-
charge under the Bankrupt Act of the United
States.
The answer of John B. Murray admitted the
several deeds of assignment and appointment,
but denied fraud in any of the transactions. It is
stated that within one year from the date of the
last deed, certain creditors therein named, and
the trustees themselves, did agree and assent
to the terms expressed ; that the first four
deeds were delivered to the defendant Clark,
aad were afterwards mislaid or lost ; that
Robert Murray acted as agent for the trustees,
in several matters relating to the trust ; that
the property assigned was greatly deficient in
paying the *dcbts covered by the as- [*575
signments ; and that James V. Murray, one of
the partners, claimed the funds received by
the trustees and had filed bis bill for that pur-
pose. The amount received was stated, and
the appellant submitted to account and pay
the balance, if any, &c,
Olark having put in a similar answer, died,
and the suit was revived against his executors;
and in 1809 a settlement took place between
the respondents and the executors of Clark,
with the assent of John B. Murray and of all
other parties whose assent was deemed neces-
sary. and a rule was entered by consent, where-
by it was ordered that the e'xecutors were to
retain all sums of money secured by the deeds
of assignment to Clark with interest and costs,
and to pay the balance that might remain of
the money received by him in certain lands, at
a valuation as therein mentioned, and th/it
Clark's estate, thereupon, be discharged : but
the respondents were not thereby to be pre-
cluded from litigating the validity of the as-
signments as to other purposes : but in case the
deeds were valid as to all or any of the trusts
therein mentioned, then the funds were to be
applied, after payment of expenses, in the first
place to pay the amount due to the appellant,
and his late copartner, Mumford. In pursu-
ance of this order, an account was taken of the
sums received by and due to Clark, and the
executors conveyed to the assistant register of
the Court of Chancery, lands valued at $72,-
32v55, and paid the respondents $6,000 in
cash, making together $78,328.55, being the
balance found to be due from Clark.
The cause as to John B. Murray, proceeded
to issue and publication, but no witnesses were
examined on either side ; and on the 16th of
October, 1812, a rule was entered by consent,
referring it to a master to take an account of
the moneys received by the defendant, John B.
Murray, as trustee aforesaid, and of the sums
paid of retained by him and which ought to
be allowed him, in pursuance of the deeds of
trust and the particulars of such receipts, pay-
ments and allowances, and that all questions
be reserved.
The master reported on the 1st of July, 1816,
that he had been attended by both parlies, and
that the appellant had 'received under[*£»76
the trust $81. 836. 99. after deducting all charges
and commissions which accrued thereon ; that
there was due to him and to the firm of Mur-
ray & Mumford. under the assignment, after
crediting all he had received for principal and
71
1201
576
COURT OF ERRORS, STATE OP NEW YORK.
1818
interest on the 1st of September, 1814, the sum
of $95,688.25, and which with interest to the
date of the report, amounted to $102,548.
The cause came on to a hearing before the
Chancellor in June Term, 1817, on the equity
reserved, the exception of the respondents to
the master's report, on the ground that John
B. Murray and Murray & Mumford did not
appear, by anything in evidence before the
master, to be entitled to be paid out of the
property assigned, and also upon a petition to
the appellant, stating his rights under the as-
signment and the history of the cause, and
praying for an order that the respondents pay
to him the $6,000 received by them from the
executors of Clark, and that the lands con-
veyed to the assistant register might be con-
veyed to him or sold, and the proceeds be paid
to him, and that such sale be at the expense of
the respondents if they wish a sale, and the
funds should eventually prove deficient.
On the 30th of September, 1817, the Chan-
cellor made his decree denying the petition of
the appellant and ordering that the appellant
should pay to the* respondents the sum of
$81,836.97 which, it appeared from the mas-
ter's report, he had received under the assign-
ments and deeds in the pleadings mentioned,
with interest thereon from the date of the
master's report, and costs of suits ; and the
several assignments and deeds of trust in the
pleadings mentioned, were thereby declared
null and void.
From this decree an appeal was entered ;
during the pendency of which, and before it
was brought to a hearing in this court, the re-
sjpondents on the 8th of December, petitioned
the Chancellor for leave to tax their costs,
and also to issue execution for the sum de-
creed to be paid to them, notwithstanding the
appeal, unless the appellant should, within
twenty days, pay the principal, interest and
costs into court, or give security to be ap-
proved by a master. The petition was sub-
stantially granted, and an order made in con-
577*] formity, * and from this order an ap-
peal was likewise entered ; but as the decision
of the court rested entirely on the merits of the
case, it will be unnecessary to take any further
notice of the second appeal. For the reasons
assigned by the Chancellor for his decree, see
2 Johns. Ch., 572 ; and for the reasons of the
order on which the second appeal was brought,
see 3 Johns. Ch., 160.
Mr. 8. Jones. Jr., for the appellant, contend-
ed that the deed of the 23d of March, 1798,
was not void, and that the effect of a power of
appointment or revocation was not to render
it void, either at common law or under the
Statute of Frauds, which applies only to con-
veyances of land where bona fide purchasers
are concerned ; but this is not a conveyance of
land, nor are the respondents bona fide pur-
chasers. Besides, after the time limited for
for the revocation, it was certainly valid ; and
it was not a voluntary conveyance but founded
on valuable consideration (Sugd. Vend., 242;
Cro. Jac., 180, 454; Pow. on Pow.,319; Free.
Co., 30; Rob. Fr. Conv., 432.)
At all events, the deed of the 31st of May,
1800, is good. It is denied that that deed must
necessarily be taken in connection with the
former deeds; but it may be regarded as a sep-
1202
arate and independent transaction and is uncon-
taminated.even admitting that they were infect-
ed with fraud. The provision limiting the sur-
plus to the grantors, is no more than the law
would itself have implied. The creditors have
come in and accepted the terms prescribed in
the deed. By this deed the power of revocation
and of appointment, originally reserved, have
been executed ; new trusts were limited and no
new power of revocation being reserved, the
trusts became irrevocable. (Hele v. Bond, Free.
Ch.,474; Zouch v. Woolston, Burr., 1136; 2 Ves.,
77, 2il; 2Fonbl. Tr. Eq., 156, n.; Digge'scase,
1 Rep., 174 ; Comp., 651.) Admitting, how-
ever, that the deed of 1800 must be coupled
with the prior assignments yet, as it is irrevo-
cable, the great objection ceases.
The deed of 1800 is not void by the Statute
of Frauds ; or if it were, it is not competent
for the respondents to raise the question. No
one can take advantage of the statute but a
* judgment creditor, and that only dur- [*578
ing the time that the deed is revocable. (1
Ves., Jr., 160.) A deed, voluntary and void-
able by the statute, may be confirmed and made
valid by a subsequent consideration (Prodgers
v. Langham, 1 Sid., 133; Sugd. Vend., 436);
and marriage has been held a consideration
available for this purpose. (Sterry et ux. v.
Arden et al., 1 Johns. Ch., 261.) To make the
deed void ab initio, there must be fraud in
fact : constructive fraud is not sufficient. (2-
Wils., 354 ; 4 Johns., 598. 599 ; 4 East, 1.) The
bill in this case charges fraud, but it is denied
in the answer ; and as no evidence has been
produced, the only proof of the allegation must
be drawn from the deed itself.
The counsel again insisted on the validity
of the first deed of 179s, and examined the
cases cited by the Chancellor. (Lavender v.
Blackstone, 2 Lev., 146; S. C., 3 Keb., 526 ;.
Tarbuck v. Marbury, 2 Veru., 510 ; Estwick v.
Cattlaud, 5 T. R., 420.) The grantor may
reserve to himself a certain control over the
property conveyed in trust, provided it be not
done with a fraudulent intent (1 Atk., 188 -r
Luckner v. Freeman, Free. Ch., 105; S. C.,
Eq. Cas. Abr., 149 ; S. C., Freeman, 236), and
this position is not contradicted by Hyslop v.
Luirke, 14 Johns., 458. A deed may be void
in part, and valid as to the residue ; the volun-
tary part may be void, and still the parts in-
tended for the benefit of creditors be good
(Fermor's case, 3 Rep., 78 ; Styles, 428) ; and
the question will always be, whether the in-
teniton was to hinder or delay creditors or not.
A preference given to some creditors over
others, is not an evidence of fraud. The Chan-
cellor, although he questions the policy of al-
lowing such preference, admits its legality ;
and, indeed, the point is indisputable. (floUurd
v. Anderson, 5 T. R., 235; 8 T. R., 521 ; 4
East, 1 ; 1 Atk., 95, 154; 5 Johns., 335 ; 3
Johns., 71 ; 6 T. R., 152 ; 1 Ves., 280 ; Small
v. Oudley, 2 P. Wms., 427 ; Hendricksv. Robin-
aon et al., 2 Johns. Ch., 283 ; Wilt v. Franklin,
1 Binn., 502.) It is essential to mercantile
credit ; those persons who have had the ad-
vantage of it are generally iudorsers and
sureties. The business creditor always makes
a profit, which may be deemed *a [*579
premium for the risk that he runs of losing his
debt. Not so the indorser : he derives no
JOHNS. REP., 15.
1818
MURRAY v. RIGOS ET AL.
579
gain from the rasponsibility which he assumes.
The counsel confidently hoped that the deed
would not be set aside on this ground . there
must be other circumstances to render it
fraudulent , and he again asserted that, at all
events, the deed of 1800 may stand alone, and
is valid.
The grantors were the absolute owners of all
their property ; they might have sold and dis-
posed of it as they pleased, and could annex
what trusts and conditions they pleased to the
transfer. There was no necessity for words
of grant or assignment. The appointment of
the uses or trusts carried all their right in the
subject to the trustees, and it amounted to an
equitable assignment of the property. (Peyton
v. HaUett, 1 Cai., 303 ; 1 Ves., 381 ; 1 Yes.,
Jr., 280 ; 8 Johns., 71 ; 1 Cook's Bank. Law,
265, 275; 2 Bro. Ch. Cas., 650 ; 3 Bos. & P.,
40; 1 Atk . 108. 124, 126.) The funds thus
appropriated were in the hands of the creditor
to whom they were transferred ; the debtor
was under no disability to make the transfer ;
and therefore the creditor was entitled to set
off his own debt against the funds in his pos-
session. This principle pervades the whole
law of bankruptcy ; the creditor may retain
for his debt, and is accountable only for the
balance. (1 Atk., 183 ; 1 T. R., 112 ; 4 T. R.,
211.) An actual possession under a fraudulent
deed cannot be impaired, unless there existed
fraud in fact. (1 Bro. Ch. Cas.. 420 ; Free.
Ch.. 80. 142 ; Sands v. Codwiae, 4 Johns., 536.)
The respondents are estopped. They have
affirmed the acts of the appellant ; they seek
an account, and can only claim the balance.
Further, they have affirmed the deed itself, as
far as respects Clark, and have settled with
his representatives. They have submitted to
a reference, and the reservation which they
made does not open the door to them to ques-
tion the validity of the deed. The order of
reference was founded on the idea that it was
valid. All the parties beneficially interested
under the assignment are not before the court ;
and it is not now too late to raise the objection.
(8 Bro. Free. Ch., 122; Uickock v. Scribner, 3
Johns. Cas., 311.)
«">HO*] *Mr. Henry, contra, contended that
there was actual fraud. Robert Murray was
in confinement long before these assignments.
Robert Murray & Co. were insolvent ; some
of the firm went to Europe in 1796, and the
clandestine departure of Wheaton was admit-
ted. The counsel also insisted on the absolute
power of appointment and revocation reserved
to the grantors, and contended that the deed
of 1800 was made in reference to and in fraud
of the Bankrupt Law, which immediately after
came into operation. It was only an assign-
ment of partnership property . and yet the
joint fund was applied to the payment of in-
dividual debts, in subversion of an acknowl-
edged principle of equity, that the partnership
debts must first be paid ; and in this light the
•alignment, on the face of it, was fraudulent.
(4 Ves.. 396 ; 2 Johns.. 282 ; 1 Cooke's Bank.
Law, 538.) In May, 1800, it was an inchoate
deed : it was intended to give a preference to
certain creditors . but the assent of those
creditors was not obtained until 1801, when
the Bankrupt Law was in full operation. Their
assent, eiveu at a subsequent period, when all
JOHNS. REP., 15.
preferences between creditors was illegal, can-
not be carried back, to give effect to a deed
evidently made to place the property of the
! grantors beyond the reach of the statute of
l»ankruptcy. Relation shall never work a
wrong or charge to a third person. Relation is
a fiction of law, and in ficlione juri* semper at
a<fuit<u. (Co. Lilt., 150 a ; 2 Rep., 29 b ; Cro.
Car.. 428.)
The deed was void under the Statute of the
-?tli Eliz., which has been re-enacted here.
(Sess. 10, ch. 44.) It contained a grant of land ;
and so, being void in part, was void in toto, at
least as regards creditors. At common law,
an instrument may be partially void, and good
for the residue ; but if part of it be made void,
by statute, the whole is bad. (13 Yin. Abr.,
57, tit. Fait*; 2 Sir T. Jones, 90, 91 ; Hob.,
14 ; S. C.. Moor. 856 ; S. C., Godb., 212 ; Cro.
Eliz.. 529 ; 1 Mod., 35 ; Plowd., 68, 111 ; Ley,
79, 1 Bac. Abr., 541, 549; Carter, 229; 10
Rep., 100.) The counsel also insisted that the
reservation in the deed of 1800, for the support
of the assignors, rendered it void ; and that, as
the fact was known to the appellant, there
was collusion on his part, which in equity is
the same as fraud. (Cowp., 434 ; 3 Atk., 757 ;
13 Yin. Abr., *57, tit. KtU, pi. 10, [*581
11.) He denied that it was only competent
for a judgment creditor to contest the validity
of the deeds, and insisted that they had not
been ratified by the settlement made with
Clark. He contended that the direction to
pay individual creditors, under the circum-
stances of this case, made the assignment
fraudulent. The coercive cause, held out in
terrorem to the creditors, was a strong feature
in the case to show that it was the intention of
the parties to keep the property locked up, un-
til the assignors could avail themselves of the
Bankrupt Law. Admitting that a debtor has a
right to give a preference, yet it must be an
absolute preference, a complete and indefeas-
ible disposition of the property.
The appellant is not entitled to a set-off
against the funds in his hands. (4T. R., 211.)
Where the assignees affirm the contract of a
bankrupt, the right of set-off may be claimed ;
but where they disaffirm his contract, as by
bringing trover, instead of aiusumpsit, the right
does not exist. In an action founded on tort,
there can be no set-off ; and in
the present case, the bill is founded on an
allegation of fraud in the deed. The appellant
is not charged as a receiver of the property in
question, and called upon to account : he is
charged as claimimg under the deed ; and if
the deed is vacated, every claim falls with it.
Nor can he assert a right to compensation for
disbursements, in relation to the subject, the
whole transaction being tainted with fraud.
The objeetion of the want of proper parties
comes now too late, and the case of Hickok v.
Scribner, 3 Johns. Cas., 311, cited by the oppo-
site counsel, is inapplicable. It is a mere
matter of form, and the objection should have
been made in the court below. (8 Bro. P. C..
122 ; Rogers v. Cruger, 7 Johns., 557.)
Mr. Huffman, in reply, examined, at great
length, the facts in the case. He urged that
the appellant was entitled to a preference, in-
dependent of any assignment. The appellant
was lawfully in possession of the property,
1208
581
COURT OF ERRORS, STATE OP NEW YORK.
1818
and had a right to retain for his own debt ;
yet, had he been an ordinary creditor, the
preference given him cannot be impeached.
582*] *(5 Johns., 413.) The case of Hendricks
v. Kobtnaon et al., 2 Johns. Ch., 283, is strong
and decisive to this point. Admitting that the
deed of 1798 might have been avoided by cred-
itors, yet this not having been done, the coun-
sel contended that it was in the power of the
grantors to affirm it, and make subsequent ap-
pointments. (Sterry v. Arden, 1 Johns. Ch.,
261.) Conveyances can, at most, be deemed
only voidable, unless the grantor himself can
avoid them. But the deed of 1800 was valid ;
and he denied that there was any evidence of
fraud, or of its being made in contemplation
of bankruptcy ; and as to the objection that it
was void under the Stat. 27 Eliz. (sess. 10, ch.
44; 1 N. R. L.. 75), he insisted that the Act only
applied to property within the reach of the cred-
itor, by process out of the courts of his own
country ; but whatever real property was as-
signed in this case was in the State of Virginia,
and admitting that the statute extends to
personalty, the personal funds were abroad.
Should, however, the court vacate the deeds,
the appellant had a right of set-off under the
Bankrupt Law, of which the court would not
deprive him. (Cook's Bank Law, 265, 572,
577; Mont, on Set-Off, 51 ; 1 Ves., 375.) If
they are valid, the bill must be dismissed ; if
invalid, the case must again be referred to a
master, to ascertain and state the balance due
from the appellant, after allowing him the
deductions to which he is entitled.
THOMPSON, Ch. J. It has been correctly
stated that the material question in this case
grows out of the deed of the 23d of March,
1798, taken in connection with the subsequent
deeds between the same parties. But there
have been some matters pressed into the argu-
ment which may be deemed, in some measure,
collateral to the main question, and which it
will be proper to notice, in order to prepare
the mind for a just and correct view of those
instruments. It has been broadly asserted, in
argument, that the appellant was chargeable
with fraud in fact. Upon what this assertion
is bottomed, I have been unable to discover
from an examination of the case. The charge
is, to be sure, made in the bill ; but it is met
583*] and utterly repelled and denied *by
the answer ; and there is not a particle of
proof to make out the charge. We must,
therefore, reject this allegation, as entirely
destitute of foundation, arising from any ex-
trinsic circumstances, which have been shown
either to make out fraud in fact, or even to
cast a suspicion upon the conduct of the ap-
pellant. If the transaction is to be stamped
with the character of fraud, it must arise in-
trinsically from the deeds themselves. When-
ever the fraud, if it exist at all, is to be col-
lected only from the deeds themselves, it then
becomes a question of fraud in law. No
moral turpitude is attached to this species of
fraud ; or if at all, it is in a much less degree
than where actual fraud, or fraud in fact, is
imputable to the transaction.
Again ; the maxim " equality is equity"
has been urged, with much apparent plausi-
bility, against countenancing a sinking debtor,
1204
in giving preference to any of his creditors.
Indeed, His Honor, the Cliancelhr, in this
case, whilst he admits the legality of such
preference, doubts its policy, and enters into
many considerations, showing the abuses to
which this principle may lead. Was this ques-
tion submitted to this court as a question of
policy, different views on the subject might be
presented ; but I do not feel myself at liberty
to indulge in considerations of this kind, lest
the apparent equity of the rule might have
undue weight when misapplied to the case be-
fore us. If there is any principle of law set-
tled, both here and in the English courts, it is,
that a debtor in failing circumstances may
prefer one creditor, or one set of creditors, to
another, except when controlled by the opera-
tion of a bankrupt system. Preferences are
by that system forbidden ; but as we had no
such system at the time the deeds in question
were given, we must decide this cause inde-
pendent of the rules and policy peculiarly
governing such cases. Although the legality
of such preferences are too well established to
require further consideration, it may not be
amiss to notice some few of the adjudged
cases on this question, to see how strongly the
principle is fixed in our system of jurispru-
dence. No stronger cases need be referred to
than those relied upon by the Chancellor. In
the case of Small v. Dudley, 2 P. Wms., 427,
the assignment was made to a *particu [*584
lar creditor, and but the day before the act of
bankruptcy was committed, and was made
even without the knowledge of the assignee.
The Master of the Rolls said there may be just
reason for a sinking trader to give a prefer-
ence to one creditor before another ; to one
that has been a faithful friend, and for a just
debt lent him. in extremity, when the rest of
his debts might be due from him as a dealer in
trade, wherein his creditors may have been
gainers. Cases, says he, may be so circum-
stanced, that the trader honestly may, nay,
ought to give the preference. These observa-
tions apply with peculiar force to the case be-
fore us. A very considerable proportion of
the appellant's claim consists of moneys and
bills advanced, and responsibilities incurred,
as indorser, surety and bail ; all which have
always been considered, in courts of justice, as
having strong claims to priority and protec-
tion. So in the case of Cock v. Goodfellow, 10
Mod,, 489, the assignment was made to secure
the fortunes of children ; and the Lord Chan-
cellor, in answering some of the objections
made to the deed, observes, that the objection
against it, " because made so near the act of
bankruptcy, is a very frivolous one ; for the
deeds meant by the Statute are deeds made to
defraud creditors, whereas this was a deed made
to secure a just debt. But, "says he, "it is ob-
jected that this deed is made to give an undue
preference to children. I know not what law
or reason there is to favor this objection. Any-
body may make his creditor executor, and
then the law gives him a preference ; not only
so, but the law allows the executor to give any
other creditor, in equal degree, a preference."
" A man who knows he must be a bankrupt,
may, by law, pay off any of his creditors; and
this power, as it may be abused, so, on the
other hand, may be very properly exercised.
JOHNS. REP., 15.
1818
MURRAY v. Rioos ET AL.
684
There may be particular objections in point of
gratitude. Ac. Here the broad and unquali-
fied legal right to »ivea preference to creditors,
is explicitly laid down, although, it is said, it
may sometimes be abused.
This, too, is the doctrine of a court of chan-
cery, and not deemed in hostility with the
maxim that equality is equity. The same
principle is recognized and sanctioned in the
courts of common law. In the case of Ektwick
585*] *v. CaiUaud, 5T. K.. 452, Lord Kenyon
says: "It is neither illegal nor immoral to prefer
one set of creditors to another." And again, in
Nunn v. WiUmore. 8 T. R., 538, he says :
" Putting the bankrupt laws out of the case, a
debtor may assign all his effects for the bene-
flt of particular creditors." So, also, in our
Supreme Court, in Af'Menomy & Toictucnd v.
Ferrer*, 3 Johns., 84. Mr. Justice Van Ness, in
giving the opinion of the court, says : " Be-
fore the Bankrupt Law, debtors had a right to
give a preference to bonafide creditors. There
ts nothing in our insolvent, laws to prohibit it,
and the Bankrupt Law left this right until the
1st of June, 1800 ;" but, admitting the deed
was made with a view of giving a preference
to certain creditors, and of which there was no
doubt, "that," says he. "was permitted by
the law of this State, and was not prohibited
by the Act of Congress, and therefore not
fraudulent." This is a very strong case; for
the assignment was made after the passing of
the late Bankrupt Law (4th April, 1800), and
before the time of its going into operation. (1st
June. 1800.) Again; in WUU* & Fontaine v.
Ferri*, 5 Johns., 344, the Supreme Court say
the debtor might lawfully prefer one set of
creditors to another ; that it would be a waste
of time to take notice of all the cases cited in
support of this point ; that of Esticicte v. Cail-
laud fully establishes it.
I think I may, then, assume it as a settled
and unshaken principle, both at law and in
equity, that a failing debtor has a just, legal
and moral right to prefer, in payment, one
creditor, or set of creditors, to another ; and
not to extend the benefit of this rule, so well
and so solemnly settled, to the case before us,
appears to me to be admitting the principle in
theory, but utterly denying to it all practical
application.
With this view of the legal rights of the
debtor and creditor, and stripping the case of
all imputation of actual fraud, which there is
no color or ground to support, I proceed to
notice the deeds under which the appellant
claims to have acquired the preference he now
sets up ; and to examine whether legal fraud
is to be inferred from anything contained in
the deeds themselves. The only circumstance
relied upon in support of the allegation of
<>86*] fraud is, *that in some of the deeds,
the grantors, Robert Murray A Co.. have re-
served a power to revoke and alter the trusts
or appointments therein contained. This ob-
jection does not apply to the deed of the 81st
of May, 1800 ; tliat is absolute and irrevocable.
This, in connection with the first deed of the
28d of March, 1798. would, in my judgment,
be amply sufficient to protect and establish the
appellant's preference thereby gained. I do
not see why the intermediate deeds<of the 24th
of March, 1798, and the 21st and 22d of March,
JOHN*. Kir., 15.
1799, may not be entirely laid out of view, as
it respects the rights and claims set up by the
respondents. Their title accrued after the
81st of May, 1800 ; and if, at that time, as
between Robert Murrav & Co. and John B.
Murray, all the title and interest of the former
was transferred to the latter, there was nothing
to pass under the bankrupt assignment to the
respondents. If the controversy was between
John B. Murray and some person deriving
title from Robert Murray & Co. , prior to the
31st of May, 1800, and whilst the property
was held under the revocable deeds, a very
different question might be presented ; but
that is not the case here. The assignees of the
bankrupt, Robert Murray, can take nothing
but what the bankrupt himself could assign
to them. (10 Mod., 497 ; 1 Atk., 191 ; Salk.,
449.) All these intermediate deeds between
that of the 23d of March, 1798, and the one of
the 81st of May, 1800. if they are taken into
consideration as forming a part of the trans-
action, were not, as between the parties to
them, absolutely void, and incapable of con-
firmation. A deed founded in actual and pos-
itive fraud, as being made under the influence
of corrupt motives, and with an intention to
cheat creditors, may be considered void, ab
initi", and never to have had any lawful exist-
ence. The grantee in the deed may be con-
sidered a particeps criminis, and is not per-
mitted to deduce any right from an act founded
in actual fraud. But this rule is not applied
to contracts which are only considered fraud-
ulent by construction of law, as being against
the policy or provisions of some particular
statutes. Such deeds are capable of confirma-
tion. (4 Johns., 498.) " It has been a princi-
ple of long standing, and uniformly recog-
nized," says the Chancellor, *in the [*587
case of Sterry v. Arden, 1 Johns. CL., 271,
" that a deed voluntary and fraudulent in its
creation, and voidable by a purchaser, may
become good by matter ex pott facto. It is
the constant language of the books and of the
courts, that a voluntary deed, which would
have been void as against creditors, may be
supported and made good by a subsequent
valuable consideration." (1 Sid., 133 ; 1 East,
95.) This doctrine, afterwards, on appeal,
received the sanction of this court. Admitting,
therefore, that the deeds reserving the power
of revocation come within the policy of the
Statute of Frauds (for they do not within the
letter, as the statute relates to conveyances of
land), they were voidable only, and subject to
the control and confirmation of the parties, as
long as the rights of third persons did not in-
tervene and attach. The deed of the 81st of
May, 1800, was such confirmation ; and no
intervening rights of creditors had attached.
Nc judgments ~or execution, or any other legal
lien, was set up. The Statute (1 N. R.' L., 77)
only declares all grants of land, with power
of revocation, void against subsequent pur-
chasers for a valuable consideration. It is to
such cases only that the observations in Tyler
v. Littleton, 2 Brownl.. 190, and in Tmne't
case, which have been cited and relied on, are
to be applied. In Lattnder v. Blackttone, 3
Lev., 146, one of the principal grounds upon
which the conveyance was set aside, was,
because it had a proviso enabling the grantor
1205
587
COURT OP ERRORS, STATE OF NEW YORK.
1818
to make leases for any term without rent ; and
this was considered as putting it in his power
to defeat the whole settlement. But the deed
of the 31st of May. 1800, in this case, contains
no proviso whatever by which the grantors
could defeat its operation.
It ought to be constantly kept in mind that
the conflicting claims of the parties here did
not arise whilst the power of revocation ex-
isted. That power was completely extin-
guished by the deed of 1800, and be'fore the
respondeuts acquired any interest in the sub-
jects embraced in those deeds. There can be
no doubt, but that at that time (May, 1800) an
original assignment might have been legally
made, giving to J. B. Murray all the claim
now set up. If so, there could be no good
reason against his then taking a ratification
588*j *or confirmation of any prior defective
assignment. In the case of Tarbuck v. Mar-
bury, 2 Vern., 510, so much relied on for set-
ting aside these assignments, it was a judg-
ment creditor who was setting up his claim
against the deed, which was set aside, because
the power reserved to the grantor to mortgage
and charge the estate with what sums he
thought fit, was considered as amounting, in
effect, to a power of revocation. Where the
creditor is pursuing his debtor with a judg-
ment and execution, or in any other manner,
to enforce payment of his demand, an assign-
ment of the debtor's property, containing a
power of revocation, may very well be con-
sidered as made to " delay, hinder or defraud
creditors," according to the language of the
Statute of Frauds. But I do not see how it
could, in any sense, be said to delay or hinder
a creditor, who was taking no measures to en-
force payment of his demand, as is the case
now before us. For anything that appears,
all the creditors of Robert Murray & Co.
were satisfied with the assignment, and the
provision there made for the payment of their
debts. This is an important feature, in which
this case is distinguishable from the one of
Clarke v.Hyslop, decided in the Supreme Court,
and on which so much reliance has been placed.
Clark there was a judgment creditor, and had
issued an execution against his debtor, which
was levied on the property assigned to Hyslop.
This levy was made at a time, too, when, by
the very terms of the assignment, the property
was not held under it; that is, after some of
the creditors had refused to come in and ac-
cept the terms proposed, and before any new
trusts were declared, pursuant to the provis-
ions in the assignment. It was with great
propriety there said, that locking up the prop-
erty in this manner was delaying and hinder-
ing creditors. The observations of Lord Ellen-
borough, in Meux, qui tarn, y. Howell, 4 T. R.,
14, would seem to show that no creditor could
be considered as delayed or hindered, within
the sense and meaning of the Statute of Frauds,
except such as were taking some measures to
recover their debt. He says further, that the
statute was meant to prevent the operation of
deeds, &c., fraudulent in their concoction, and
not merely such as, in their effect, .might delay
or hinder other creditors. (1 Ves., Jr., 160.)
589*] *It is said by the Chancellor, that it
may be doubted whether the power of revoca-
tion contained in the prior deeds was not con-
1206
tinued in the deed of the 31st of May, 1800.
This did not, however, seem to be contended
on the argument, and I am not able to discover
anything in this deed to justify such doubt.
It appears to me to be an absolute and irrevo-
cable appropriation of the property and debts
described in the original assignment of the 23d
of March, 1798. It recites and adopts that
deed, and gives a final and absolute direction
as to the payment of the debts therein specified;
and at this time there was no impediment to
the grantors so doing. They were the absolute
and uncontrolled owners of the property. There
was no judgment or other lien upon it. They
could sell and dispose of it at pleasure, and
might, most unquestionably, annex what trusts
they thought proper. If, as I think I have
shown, they had a just, legal and moral right
to give preferences to certain creditors, there
is no principle of law or equity that will jus-
tify taking away the preference thus given.
The grantors having reserved to their own
use, for their maintenance and support, a part
of the property covered by this deed, forms
no objection to the appropriation of the resi-
due. This is fully established by the cases I
have already referred to, and is, indeed, admit-
ted by the Chancellor in the case before us.
Though in case of a deficiency to satisfy the
creditors, they might apply to a court of
equity, for the appropriation of the property so
reserved, towards the payment of their de-
mands.
Briefly to recapitulate what I have said thus
far on this case : if the deed of the 31st of
May, 1800, may be taken in connection with
that of the 23d of March, 1798, laying out of
view, altogether, the intermediate deeds, as I
think they may, in my judgment, there is no
pretense whatever for setting them aside as
fraudulent. They contain a clear, absolute
and irrevocable transfer and appropriation of
the debts and property therein described ; and
this, too, at a time when the grantors were
under no disabilities that disqualified them
from making the assignment. But admitting
that all the intermediate deeds, which contain
the power *of revocation, are to be [*«59O
taken in connection with the others, as form-
ing one entire transaction, still there are no
grounds on which the respondents can now
claim to set them aside. The power reserved
to the grantors to revoke and alter the trusts,
forms the sole ground of exception. This, as
between the parties, makes those deeds void-
able only. If so, they are susceptible of mod-
ification and confirmation ; and were modified
and confirmed, and rendered irrevocable, by
the deed of the 31st of May, 1800. If, as I
have already mentioned, a controversy re-
specting this property had arisen between John
B. Murray and some of the creditors of Rob-
ert Murray & Co., previous to May, 1800, and
whilst these prior deeds were revocable, a very
different question might arise. The transac-
tion might very well, in that case, be consid-
ered as an expedient to lock up the property,
and keep it out of the reach of the prosecuting
creditor. But the respondents come here as
the assignees of Robert Murray, and under a
title derived from him, after his assignment to
John B. Murray was confirmed and made ir-
revocable. In my opinion, therefore.the degree
JOHNS. REP., 15.
ISIS
MfKRAY V. RlOGS ET AL.
590
which declares these deeds null and void,
ought to be reversed.
Admitting, however, the decree, in this re-
spect, to be correct, it cannot be affirmed i
throughout. The cause must, at all events, :
be sent back to a master to take a new ac-
count. The order of reference, and the re j
port of the master, are all founded on the as- j
sumption that the assignment was valid. The j
master is directed to take an account of the
moneys received, and of the moneys paid or
retained by John B. Murray, and which ought
to be allowed him in pursuance of the trust ;
and he has made no discrimination between
the moneys received under this assignment or
otherwise. If the assignment is declared void,
it cannot affect any rights which the appellant
may have acquired under any previous assign-
ments or transactions bet ween him and Robert
Murray & Co. » That he had acquired such
rights, sufficiently appears, from the case be-
fore us, to justify sending the cause back to a
master for a new account of moneys received
and paid under such prior assignment or deal-
ings between the parties.
£>$) I*] *Nor does it appear to me that the
decree ordering the appellant to pay the
$81,836 can be sustained, even within the prin-
ciples laid down by the Chancellor. He does
not profess to make the appellant account for
any more than he received under the assign-
ment. On this part of the case, he says, the
question is, whether I ought not to go further,
and make J. B. Murray account for the prop-
erty he has received under the assignment, and
place that also in the hands of the assignees of
Robert Murray, for general and equal distri-
bution ; and concludes that he cannot perceive
any other alternative, but either to give com-
plete effect to the assignment, as a fair and
valid instrument, or to make J. B. Murray ac-
count for the property received under it. And
the latter, he says, is" the proper conclusion.
Admitting this to be the correct principle, the
decree makes him account for property he
never did receive under that assignment, but
in pursuance of arrangements antecedent to it;
and this, too, without the least imputation of
fraud or unfair conduct. The claim on the
British government, and the negotiation with
Bird, Savage & Bird, fall within this class. I
do not perceive why, even laying aside the as-
signment, J. B. Murray is not entitled to re-
tain a considerable portion of his demand, by
way of set-off, under the Bankrupt Law. That
Act declares that where there has been mutual
credit given by the bankrupt and any other
person, or mutual debts between them at any
time before the person became bankrupt, the
one debt may be set off against the other, and
the balance only claimed. This provision has,
JOHNS. REP., 15.
under the bankrupt system in England, re-
ceived a liberal construction, where such debts
or credits have accrued, without any intention
to defraud the rest of the creditors of the
bankrupt. No such intention has been im-
puted to the appellant, prior to the first as-
signment of the 23d of March, 1798. (1 Atk.,
228 ; 4 T. R., 211 ; 1 T. R., 285.) Lord Hard
wicke, in the case Ex-fxirte Dtfze, 1 Atk., 228,
says : " Notwithstanding the rules of law, as
to bankrupts, reduce all creditors to an equal-
ity, yet it is hard, when a man has a debt due
from a bankrupt, and has, at the same time,
goods of the bankrupt in his hands, which
cannot be got from him without the assistance
of law or equity, that the *assignee [*5i>2
should take them from him, without satisfy-
ing the whole debt ; and therefore, the clause
in the statute relating to mutual credit has
received a very liberal construction ; and there
have been many cases which that clause has
been extended to, where an action of account
would not lie ; nor could the Court of Chan-
cery upon a bill decree an account." That mut-
ual credit was not confined to pecuniary de-
mands, but extended to all cases where the
creditor had goods in his hands of the debtor,
and which could not be got at without an ac-
tion at law, or a bill in equity. Numerous
cases might be cited, both at law and in
equity, which sanction and enforce this princi-
ple. But I think it unnecessary further to
pursue this part of the case, as I place my
opinion principally upon the validity of the
assignments, especially the one of the 81st of
May, 1800, in connection with that of the 23d
of March, 1798. I am, accordingly, of opin-
ion that the decree of the Court of Chancery
ought to be reversed.
SPENCER, J., was absent on account of sick-
ness.
YATES, J., concurred in the opinion of the
Chief Justice.
VAN NESS and PLATT, ./«/., and eight of the
Senators, were of opinion that the decree ought
to be reversed in part only ; but a majority of
the court concurring in the opinion delivered
by the Chief Justice, it was ordered, adjudged
and decreed that the decree of the Court of
Chancery be wholly reversed, on the ground
that the assignment of the 31st of May, 1800,
was legal and valid.
Decree of reversal.
— 2 Johns. Ch., 565.
Doubted-20 Johns., 447; 5 Cow.. 555: 1 Hill, 463;
6 Hill, 439.
Qualified— 47 Barb., 403.
Cited tn-11 Wend., 194, 806; Hopk.. 398 ; 2 Edw.,
184. 292; 15 N. Y.. 116: 32 N. Y., 213; 12 Barb., 187;
37 Barb., 629; 10 Bos.. 649.
1207
END OF THE CASES IN ERROR, 1818.]
INDEX TO NOTES
TO THIS EDITION.
JOHNSON'S REPORTS, VOLUMES 11. 12, 13, 14, 15.
ABATEMENT.
Pendency of suit between same parties in
another territorial jurisdiction ;
Of suit between same parties, in another
court, within same territorial jurisdiction.
Walsh v. Durkin. 317
ACCOMMODATION PAPER.
See BILLS, NOTES AND CHECKS.
ADVERSE POSSESSION.
See REAL PROPERTY and TRUSTS.
ALIENS.
Rights of, in our courts during war ;
Alien enemy, resident in enemy's country ;
In the United States ;
When plaintiff becomes alien enemy after
judgment.
Jackson v. Decker, 205
A8SUMP8IT.
See CORPORATIONS.
AWARD.
Requisites of ;
Effect of, when good in part and void in
port.
Jackson v. Ambler, 788
Strangers to submission not bound.
Vosburgh o. Bame, 874
BANKRUPTCY.
See INSOLVENCY.
BILLS. NOTES AND CHECKS.
Accommodation paper;
Diversion of ;
Parties to, as witnesses ;
Bonafide holder.
SkUding v. Warren, 1087
Consideration ;
When inquired into ;
What amounts to failure of, on notes given
for purchase money, with warranty of
title.
Frisbet v. Hoffnagle, 57
Demand ;
Where to be made, when.
Anderson r>. Drake, 795
Liability of indorser.
Herrick v. Carmen, 341
Notice of dishonor, time to give ;
Where parties reside in same place ;
Where parties reside in different places.
Bryden v. Bryden, 112
As to diligence ;
As to contents of notice;
What excuses notice.
Ireland v. Kipp, 131
JOITNH. REP.. 11. 12, 18, 14, 15.
Payment by note ;
Of precedent debt ;
Of goods sold for ;
Payment for goods sold, by unindorsed
note of third party.
Whitbeck v. Van Ness, 202
Payment by note ;
Fraudulent representations as to solvency
of parties.
Pierce v. Drake, 1163
Payment by negotiable paper ;
Rights of surety.
Witherby v. Mann, 244
Renewal of ;
Does not affect mortgage security ;
Mortgage ;
What constitutes;
Effect of notice of unrecorded mortgage
upon subsequent recorded deed.
Dunham v. Dey, 1194
Transfer ;
Implied warranty of genuineness.
Herrick v. Whitney, 1076
COMMON CARRIERS.
Continuance of liability ;
Delivery ;
What constitutes.
Ostrander v. Brown, 10O3
Masters and owners of vessels as.
Kent v. Caughtry, 79
Who are ;
Forwarders.
Roberts v. Turner, 371
COMMENCEMENT OF SUIT.
Time of.
Van Vechten v. Paddock, 349
CONTRACTS.
See MERGER, RECEIPTS, STATUTE OF
FRAUDS.
Agreement not to bid at sale under execu-
tion, void ;
When consideration may be inquired into.
Thompson v. Davies, 661
Consideration ;
Moral obligation as.
Bently v. Morse, 944
Discharge ;
Debt discharged as consideration for new
promise.
Shippey v. Henderson, 823
Entire ;
Full performance ;
When contract deemed entire;
When deemed severable.
McMillan v. Vanderlip, 343
For sale of land ;
gft
INDEX TO NOTES.
Mutual promises ;
Rescission.
Tucker v. Woods, 354
Where the agreement is alternative, prom-
isor may elect ;
When time is limited, failure to elect within
the time destroys right, or passes it to
other party ;
Election made, \s irrevocable;
If one alternative becomes impossible,
other is still binding.
Smith v. Sanborn, 60
CONSTITUTIONAL LAW.
Foreign judgments, effect of ;
How far conclusive ;
Divorce obtained in other States.
Pawling v. Bird, 584
Insolvency;
Power of States to enact bankrupt and
insolvent laws;
Limitations of.
Uicks v. Brown, 334
CORPORATIONS.
Assumpsit;
On subscription to capital stock ;
Estoppel
Dutches Cotton Manufactory v.
Davis, 848
Powers of ;
Quo Warrants lies against for usurping
public franchise ;
Ultra Vires.
People v. Utica Ins. Co., 1119
COVENANTS.
See REAL, PROPERTY.
1. Warranty — Breach of. 2. Implied;
Broken only by eviction ;
Eviction need not affect whole premises ;
Process of law not necessary ;
Act of stranger under pretense of title
does not amount to breach of ;
Effect of subsequently acquired title by
grantor ;
Effect of express upon implied covenant.
Vanderkarr v. Vanderkarr, 85
DEEDS.
Delivery of ;
Marriage is valuable consideration.
What sufficient.
Verplank v. Sterry, 494
Registration of ;
Lands held adversely.
Jackson v. Elston, 460
Seal necessary;
Cannot be dispensed with by acts or in-
tention of the parties.
Jackson v. Wood, 307
DEMAND.
See BILLS, NOTES AND CHECKS.
DIVORCE.
See CONSTITUTIONAL LAW.
DOWER.
Momentary seisin in husband ;
Mortgage for purchase money ;
Effect of ;
1210
Instruments construed together.
Stow v. Tifft, 1157
ESTOPPEL.
See REAL PROPERTY, and CORPORA-
TIONS.
Admissions by official ;
How far binding in private capacity.
Wood v. Livingston, 51
ELECTION.
See WAGER.
EVIDENCE.
See REAL PROPERTY.
Admissibility of account books ;
Party's own entries.
Vosburgh v Thayer,
Newly discovered ;
New trial on ground of;
Weight of evidence ;
Verdict against.
Pike v. Evans,
Secondary, of contents of will;
Admissibility of.
Jackson v. Hasbrouck,
464
1065
355
EXECUTORY DEVISE.
See WILLS.
EXECUTION.
See CONTRACTS.
FOREIGN JUDGMENTS.
See CONSTITUTIONAL LAW.
FRAUD.
See BILLS, NOTES AND CHECKS.
GENERAL AVERAGE.
See INSURANCE, MARINE.
GIFTS.
Delivery necessary.
Cook v. Husted,
HUSBAND AND WIFE.
See DOWER.
INFANTS.
Conveyances by;
Disaffirmance ;
Grant of lands held adversely.
Jackson v. Burchin,
INSOLVENCY.
See CONSTITUTIONAL LAW.
Discharge does not bar trover.
Kennedy v. Strong,
353
799
801
INSURANCE, MARINE.
Barratry ;
Definitions of ;
Owner may insure against;
Master, who is part owner, cannot commit ;
May be committed against cargo' owned by
ship owner.
Cook v. Com. Ins. Co., 53
Barratry;
Concealment.
Walden v. N. T. Firemen Ins. Co. , 328
Deviation ;
JOHNS. REP., 11, 12, 13, 14, 15.
INDEX TO NOTES.
What constitutes;
What excuses ;
Delay ;
Temporary;
Definition of delay;
What amounts to.
Lawrence v. Ocean Ins. Co., 135
N. Y. Fire In*. Co. v. fjiwrenct, 767
Graham v. Com. Ins. Co., 179
General average;
Loss must be voluntary;
Wages and provisions may be general
average losses.
Dunhttm v. Com. Int. Co., 164
Insured must have interest ;
Part owner can only insure own interest ;
Recovery ;
Is limited to interest of party insured ;
Wager policies ;
Profits and freight ;
May be insured by one having interest.
Murray v. Col. ln». Co., 159
Interruption of voyage;
Effect on contract of affreightment.
lAtrillard f. Palmer, 994
Seaworthiness, implied warranty of ;
What amounts to breach of.
Patrick v. Coin. Ins. Co., 877
Warranty of national character.
Coolidge r. N. Y. Ins. Co., 877
JURORS.
Misconduct of ;
" Chance " verdict.
Hircfy r. Rickett, 1020
Justices liable for cxt r:i judicial acts.
Votburgh v. Welch, 107
LIMITATION.
New Promise;
Acknowledgment must be equivalent to
promise.
Danforth T. Culver, 95
MANDAMUS.
Discretion of inferior tribunal cannot be
controlled by.
People r. Supervisors of Albany, 445
MERGER.
Contracts ;
Higher security, effect of ;
Security of equal degree.
- Day v. Leal, 916
MORTGAGE.
Bee BILLS, NOTES AND CHECKS.
When presumed satisfied;
When presumed to pass.
Jackson r. Wood, 376
Jackson v. De Lancey, 184
NEGOTIABLE PAPER.
See BILLS, NOTES AND CHECKS.
NEW TRIAL.
Sec EVIDENCE.
When allowed.
Brown v. Wilde, 461
OFFICERS.
See REPLEVIN.
Military;
JOHNS. REP., 11, 12, 18, 14, 15.
Personal liability of;
Hyde v. Melnn, 246
Personal liability of judicial officers.
Vanderheyilen r. Young, 97
OFFICERS, PUBLIC.
Personal liability of, on contracts.
Gill v. Brown, 433
PAYMENT.
See BILLS, NOTES AND CHECKS.
PARTNERSHIP.
See STATUE OF LIMITATIONS.
PLEDGE.
Demand and notice ;
Sale, after.
Oarlick r. Jaine*, 336
PRINCIPAL AND AGENT.
Unauthorized act of agent ;
Ratification of by silence.
Cairnes v. Bleecker, 399
PRINCIPAL AND SURETY.
Remedies of surety.
Pain v. Packard, 677
REAL PROPERTY.
See TRUSTS, STATUTE OF FRAUDS, CON-
TRACTS, and DEEDS.
Adverse possession, what constitutes.
Grant of land held adversely, void.
Jackson n. Smith, 67O
Covenant to give deed ;
Conveyance •without warranty, when suf-
ficient ;
Warranty of title;
Grant of lands he'd adversely, void.
Van Eps v. Schenectady, 454
Conveyance by trustee ;
Presumed after many years.
Jackson v. Moore, 714
Practical location of boundaries.
Jackson v. VanCorlaer, 86
When grantor estopped from setting up
subsequently acquired title.
Jacknon v. Wright, 829
QUO WARRANTO.
See CORPORATIONS.
RECEIPTS.
Are not contracts ;
How far conclusive as evidence of payment.
Thomas v. McDaniel, 826
REPLEVIN.
For goods in" custody of officer.
Thompson v. Button, 783
SALES.
See CONTRACTS.
Action for non-delivery ;
Readiness to pay.
Porter r. Rose, 362
Of provisions;
Implied warranty of wholesomeness.
Van Bracklin v. fbnda, 466
1211
INDEX TO NOTES.
SHERIFF.
See REAL PROPERTY.
Sheriff's deed ;
Must be certain.
Jackson v. Delancey, 724
SLANDER.
Words actionable per se;
Charging indictable offense.
Martin v. Stillwett, 618
STATUTE OF FRAUDS.
Parol contract to convey;
Specific performance;
Part performance.
Parkhurst v. Van Cortland, 755
Promise to pay debt of another.
Myers v. Morse, 1145
Writing ;
May be with pencil ;
Signing, sufficiency of.
Merritt v. Clason, 318
STATUTES OF LIMITATION.
See LIMITATION.
Acknowledgment ;
Must be equivalent to new promise.
Sands v. Gelston, 1177
New promise by joint or former debtor,
effect of.
Johnson v. Beardslee, 990
SURETY.
See BILLS, NOTES AND CHECKS, and
PRINCIPAL AND SURETY.
TRUSTS.
Resulting ;
When created at common law;
1212
Purchase by father in name of child, pre-
sumed an advancement ;
Express intention to contrary may be
shown ;
Adverse possession ;
Conveyances as affected by.
Jackson v. Matsdorf, 73
TRUSTEES.
See REAL PROPERTY.
TROVER.
See INSOLVENCY.
USURY.
Jackson v. Dominick, 93O
Law cannot be evaded by " commissions."
Dunham t>. Dey, 523
WAGER.
On event of election is void ;
Not illegal under common law
Recovery from stakeholder ;
By parties from each other.
Yates v. Foot, 279
WARRANTY.
See BILLS, NOTES AND CHECKS and
SALES.
WILLS.
See EVIDENCE.
Executory devise ;
Fee with limitation over
Limitation void.
Jackson v. Delancey, 724
WITNESSES.
See BILLS, NOTES AND CHECKS.
JOHNS. REP.. 11, 12, 13, 14, 15.
GENERAL INDEX
JOHNSON'S REPORTS, VOLUMES 11-15, CONTAINED IN THIS BOOK.
N. B.— Black-faced figures indicate the page of this book on which the marginal paging referred to
U found.
ACCORD AND SATISFACTION.
Discontinuance, under agreement, of pending
cross suits, good accord and satisfaction.
FonUr v. TruU, 12 J. 456, 463
Receipt in full obtained by fraudulent constraint,
is not conclusive evidence of accord and satisfac-
tion, in action for assault and battery by seaman
against master.
Thomas r. 3f Daniel, 14 J. 185, 826
ACCOUNTS.
Account considered liquidated from time it is
rendered if no objections are made to it.
Walden v. Sherburne, 15 J. 409, 1139
Interest due on balance thereafter. Idem, and
Kane v. Smith. 1-' J. 156. 339
ACKNOWLEDGMENT OR PROOF OF DEED.
An acknowledgment of deed after the expiration
of many years, is presumed to have been regular.
Jttckton v. GUchritt, 15 J. 89, 1O21
Certificate of proof of execution of deed need not
state personal knowledge, by officer, of subscribing
witneaa.
Jackson v. Harrow. 11 J. 434, 218
ACTION.
Issuing of writ is commencement of suit.
«ariawi r. Chattle, 12 J. 430. 462
No action lies for statements derogatory to one of
two rival interests.
Johnson v. Hitchcock. 15 J. 185, 1O56
One who in trying to escape enables fellow prisoner
to escape is liable therefor under the Statute.
People n. Rose, 12 J. 339. 415
Corporation may sue on bond given to it in the
name of its committee.
If. Y. African Soc. v. Varlich, 13 J. 39, 522
Count in debt on simple contract and one on Judg-
iin-iit may be joined.
Union Cotton 3ffy v. LobdeU, 13 J. 482, 693
Where causes admit of same plea and same judg-
ment, they may be joined. Idem.
On entire contract, separate actions canot be
maintained.
Smith v. Jones, 15 J. 229. 1O72
In trespass by single act on several parcels, sepa-
rate actions cannot be brought.
Farrinqton v. Payne, 15 J . 432, 1147
Action against constable for not serving or return-
ing execution in justices court, must be in debt.
Pierce v. SMdOM, 13 J . 191, 584
Action for breach of warranty must be founded
upon the warranty.
Thompson v. Atihton, 14 J. 316. 88O
Action on case lies for sale of land not in exist-
ence.
WnrdfU v. Fosdick. 13 J. 325, 638
Mistake in judgment cannot be corrected by new
action for amount omitted.
Plainer v. He*t, 11J. 5%. *49
Arrest without jurisdiction gives action for false
imprisonment against party at whose instance it
was made.
Curry v. Prtnglc 11 J. 444, *16
Party in certiorarl suffering Judgment by default.
may maintain action against Justice for false
return.
Kidzie r. SorArfater. 14 J. 195, 83O
In action for injury from negligence, party may
declare in case or in trespass.
IU in v. Campbell, 14 J. 432, 929
Joans. RKT.. 11, 12, 18, 14, 15.
Notice of Lit Pendtne begins from service of sub-
DOBna.
Jackson v. Dickinson, 16 J. 309, 1 1O»
ADMINISTRATION.
One residing out of the State seven years is not an
inhabitant, though family and property remain, and
judge of court or probate, only, can grant adminis-
tration of his estate.
Weston v. Weston, 14 J. 428, 928
ADVANCEMENT.
See DEED.
ADVERSE POSSESSION.
Possession to be adverse must be hostile in its in-
ception, continued for twenty years, and definitely
bounded.
Jackson r. Waters, 12 J. 365, 425
Entry under claim and color of title, though
title illegal, will constitute.
Jackson v, EOix, 13 J. 118, 554
Adverse possession renders grant or devise void.
Fan Eppx u.Corp. of Scheneetady, 12 J.43tf, 454
Smith v. Van Dursen, 15 J. 343, 1114
The possession of grantee, who had no notice of
partition suit and sale, is adverse, and he is not pre-
cluded from controverting right of purchaser there-
under.
Jackson v. Vrooman, 13 J. 488. 7O3
Possession originally commencing under lease,
but subsequently held for more than 20 years under
agreement in partition, is adverse to lessors, loca-
tion, after such lapse of time, being presumed.
Jackson v. HaUenbeck, 13 J . 499, 7O8
Attornments made to one who enters without
title are void, and possession of such person is not
adverse.
Jackson v. De Lancy, 13 J. 536, 724
One entering under parol contract to convey, hav-
ing paid the consideration money, holds adversely
to every one.
Jackson v. Foster, 12 J. 488, 476
Possession under French grant, not adverse.
• Jackson v. Water*, 12 J. 365, 425
Possession under deed given without right in
grantor is adverse to owners, and will avoid deed
by them during such possession.
Jcir/iww r. Smith, 13 J. 406. 67O
Jackson r. Elston, 12 J. 452, 46O
AFFIDAVITS.
Affidavit taken before commissioner who is also
counsel In the cause, may be read.
WUlard r. Jutld, 15 J. 531. 1184
Affidavits made out of State, read in collateral
matters, arising in progress of suit.
Marshall r. Ifttt, 13 J. 423, 677
ALIEN.
Alien enemy residing in enemy's country, not
entitled to share in personal estate of alien dying
here.
lim.tir.ll v. Weeks, 13 J. 1, 5O7
All rights of such alien sus|>ended during war.
Joe/won v. Decker, 11 J. 418, *O6
AMENDMENT.
Amendment of declaration in libel so as to change
venue, is in discretion of court.
Pain r. Parker, £3 J . 32t>. 639
1218
ii
GENERAL INDEX.
The name of a defendant, omitted by clerk, added
to a j udgment record nunc pro tune, " saving rights
bonaflde acquired by others."
Bank of Newburgh v. Seymour, 14 J. 219, 84O
Amendment to a general verdict, where counts
good and bad, can only be made in trial court.
Cooper v. BisseU, 15 J. 318, 1 1O5
Where mistake in bailpiece not discovered until
after suit brought, plaintiff not allowed to amend
after attempt by bail to surrender.
Morrett v. Pteley, 13 J. 256, 381
Original writ in assumpsit against corporation,
must be by summons, and where by pone or attach-
ment, is not amendable and may be quashed on
motion.
Lynch v. Mechanics' Bk., 13 J. 127, 558
ANIMALS.
Killing ferocious dog, running at large, or dog
bitten by mad animal, is justifiable.
Putnam v. Payne, 13 J. 312, 633
Owner of domestic animal not liable for its inju-
ries, unless on proof of notice that it was accustomed
to do mischief.
Vrooman v. Lawyer, 13 J. 339, 643
APPEAL.
See ERROR.
When it lies.— Every final sentence or decision
of Supreme Court deemed a judgment, and subject
to appellate Jurisdiction of Court of Errors.
Clason v. Shotwell, 12 J . 31, 29O
Decree on bill for specific performance, made on
the coming in of master's report of settlement, is
final.
Travis v. Waters, 12 J. 500. 479
Does not lie from decree of Court of Chancery
made on default in appearance after regular notice.
Sands v. Hildreth, 12 J. 493, 477
Where record made up, general assignment of
errors is suflicient.
Shepard v. Merrill, 13 J. 475, 698
Judgment of court on bill of exceptions necessary
to appeal.
Hasbrouck v. Tappen, 15 J. 182, 1O55
An order for stay of proceedings not necessary.
Idem.
Practice on.— Dismissed where transcript of rec-
ord and certified copies of proceedings, evidence
and papers read in court below, not duly filed in
Court of Errors.
Winter v. Green, 12 J. 497, 478
A respondent may bring on a hearing ex-parte, and
on failure of appellant to appear, the appeal will be
dismissed.
Bissett v. Dennison, 14 J. 483, 951
Appeal from order of chancery dissolving injunc-
tion, staying proceedings at law, does not revive it
so as to operate as a stay of proceedings at law.
Hoyt v. Oelston, 13 J. 139, 562
A point not raised below cannot be noticed on
appeal.
Franklin v. Osgood, 14 J. 527, 968
Gelston v. Hoyt, 13 J. 561, ' 734
APPRENTICE.
Where person relieved on his own application,
sufficient to authorize overseers to bind out children
of such persons as poor apprentices.
Schermerhorn v. Hull, 13 J. 270, 616
In action to recover services of apprentices dis-
charged by order of justices, master may set up in
defense the indentures. Idem.
ARBITRATION AND AWARD.
Under general submission arbitrators may award
as to real property.
Settick v. Addams, 15 J. 197, 1O6O
Boundary of land settled by award, will sustain
action of ejectment, and is a justification in action
of trespass. Idem.
Receiving, without objection, sworn copies of
award, is waiver to right of original award. Idem.
In a general submission, without mention of costs,
arbitrators may award as to costs.
Strang v. Ferguson, 14 J. 161, 816
Award. — A complete sentence written in the
margin of, forms part of the award.
Platt v. Smith, 14 J. 368, 9O1
The omission in one copy of the word "dollars,"
contained in the other copy, held immaterial.
Idem.
Pleadings in action on arbitration bond.
Diblee v. Best, 11 J. 103, 78
12H
not inpeachable as being against law, and
when submission sanctioned by Legislature not ques-
tioned unless executed imperfectly or ultra vires.
Jackson v. Ambler, 14 J. 96, ' 788
may decide more than was submitted, and
be valid in part, but if less it is void in tnto. Idem.
— — certainty in, to a common intent is sufficient.
Idem.
— reference in, to certain extrinsic circum-
stances, is sufficiently certain. Idem.
— may be modified by subsequent agreement
of parties.
Hall v. Brown, 15 J. 194, 1O59
, where "all demands" are submitted, is a
bar to action for any subsisting demand.
Wheeler v. Van Houten, 12 J. 311, 403
must be final, certain and within the sub-
mission.
Solomons v. M'Kinstry, 13 J. 27, 51 7
by two arbitrators, where third dissents is
valid.
Battey v Button, 13 J. 187, 583
must comply with submission.
Stanton v. Henry, 11 J. 133, 9O
misrecital does not vitiate.
Diblee v. Best, 11 J. 103, 78
bar to original cause.
Armstrong v. Mastcn, 11 J. 189, 113
in pleading, in bar, averment of perform-
unnecessary. Idem.
may be void in part.
Martin v. Williams, 13 J. 264, 614
parties privy to submission bound to take
notice of.
Humphreys v. Gardner, 11 J. 61, 61
cannot require party to do an illegal act.
Martin v. Williams, 13 J. 264, 614
not binding upon parties not consenting to
the submission.
Vosburgh v. Bame, 14 J. 302, 874
where a suit is submitted, to be final, must
direct its discontinuance. Idem.
ARREST.
One engaged in affray cannot be arrested after
it is over, except by an officer or under a warrant.
Phillips v. Trull, 11 J. 486, 232
Discharge in another state from assest for debt,
does not preclude arrest for same cause here.
Peck v. Hazier, 14 J. 346, 892
ASSIGNMENT.
See ASSIGNMENT FOR BENEFIT OF CREDITORS.
Rights of cestui que trust under assignment of
chose in action, protected by courts of law against
any one having notice or knowledge of facts suf-
ficient to put him on inquiry.
Anderson v. Van Alen, 12 J. 343, 416
Assignee of chose in action takes subject to
equities existing between original parties.
Caines v, Brisban, 13 J. 9, 51O
Construction of assignment of judgment obtained
in another state against resident there : no implied
warranty of collectability in this State.
Underwood v. Morgan, 11 J. 425, 2O8
Delivery of note by A to B, to collect and apply
in payment of debt due B, is an equitable assign-
ment, and gives authority coupled with interest,
and trover will not lie for refusal to deliver it up
to A.
CanUeld v. Monger, 12 J. 346, * 418
Some v. Same, 12 J. 347, 418
ASSIGNMENT FOR BENEFIT OF CREDITORS.
An assignment to pay creditors giving trustees
power of preferring creditors on refusal of any
creditor to accede to its terms is void.
H yslop v. Clarke, 14 J. 458, 94O
Asignments with power of revocation are void-
able only by creditors, and a subsequent absolute
assignment to same party before rights of creditors
intervening, would confirm such previous assign-
ments.
Murray v. Biggs, 15 J. 571. 12OO
Reservation in assignment for maintenance of
assignor does not render assignment void. Idem.
Insolvent may assign with preferences. Idem.
ASSUMPSIT.
Assumpsit will lie to recover consideration money
of land sold.
Shepherd v. Little, 14 J. 210. 836
Asxumpsit will lie against corporation on implied
promise.
Dun V. Rector, &c., 14 J. 18, 797
Danforth v. Scho. Tk'pe. Co., 12 J. 227, 369
JOHNS. REP., 11, 12, 13, 14, 15.
GKNEKAL INDEX.
iii
Afanimpgit lies by holder of note payable to bearer
or by indorsee against maker.
Pierce r. Crafts, 12 J. W. 313
Whore money partly paid under covenant, cu-
sumpsit will lie for balance ou implied promise.
Idem.
AMumimit lies against subscriber to capital stock
of corporation for installments due,
butche** Cotton Mft'y t>. Dapte, 14 J. 288, 848
Promissory note payable to bearer, evidence under
count of HuuMtdttM tunmrhprtt.
Pierce v. Craft*, 12 J. «». S13
ATTACHMENT.
See JUSTICE'S COURT.
- may issue against property of absconding
partner, for debt of firm, although other partners
ralte to tbto Btate.
Chit/man, matter of, 14 J. 217, 839
ATTORNEY AND CLIENT.
Attorney, served with process during a term of
court, may plead privilege.
Gilbert r. \'anderpool, 15 J. 242, 1O77
- has lien on judgment recovered by client
for his costs.
Martin r. Hawks, 15 J. 405. 1137
jointly sued with another cannot plead in
abatement that his court is then sitting.
Tiffany v. Drtao*. 13 J. 252,
to not good bail.
6O9
Co*«r v. iratam, 15 J. 535, 1 185
may be held to bail, and is not liable for
costs where Judgment against him is less than $50.
/ -•, , r. tint riju |/, l:; .1. tu>. 694
- of one party in a cause, intrusted with
papers by a third person, cannot be required
By the opposite party to produce such papers in
evidence.
Jackson v. Burtis, 14 J. 391, 91 1
- verbal authority to appear, not sufficient
to enable to release interest of witness.
Jfurraw P. House, 11 J. 464. 223
- , in action for fees, items of bill, incontest-
able at trial.
Scott i?. Elmendorf, 12 J. 315, 4O5
- only entitled as between himself and client
to common pleas, costs in suit for sum less than
$250. Idem.
- for plaintiff, under general authority as
attorney, cannot purchase for clients' benefit, land
sold under execution in the cause.
Bciirdriey v. Root, 11 J. 464, 224
- under general retainer, being nonsuited on
first suit has authority to bring second.
Scott v. Elmendorf. 12 J. 317, 4O6
- communications made to, after relation of
attorney and client is at an end, though repetitions
of communications previously made, are admis-
sible.
Yordan v. Hem, 18 J . 482, 7O5
BAILMENT.
Bailee for hire not liable for injuries happening
to chattel while in his possession, without fault or
negligence ou his part.
M Ulon r. Sali*t>ury. 13 J. 211, 592
Bailee for hire cannot maintain action for neglect
to advertise the animal under Act concerning strays,
Mi special property having ceased and no damage
proved.
Palmer v. Weft, 12 J. 18«, 353
A delivery of certain chattels under agreement to
return an equal number of equal value at certain
time, is not a bailment but a bargain and sale.
in/.*.-,, ,-. nnnji. 13 J. 358. 651
BANKS AND BANKING.
Act to restrain unincorporated banking associa-
tions, does not extend to an individual banker,
acting alone.
Bristol v. Barker, 14 J. 205, 834
BAIL.
Attorney is not competent bail.
( <.*r<>r i<. ffotecm, 15J. 535. 1185
In action of debt to recover penalty u nder Stat-
ute concerning distresses, Ac., defendant may be
ii.-l'l to bail.
Watt* v. Taytor, 13 J. 305. 63O
In action for damages for non-delivery of goods
under contract, defendant may be held to bail with-
out judsre's order. •
H<i,,n,,<i v. lit '»i n, 13 J. 425, 678
JOH.NS. HEP., 11. 12. 18, 14, 15.
After signing final judgment defendant has four
days to put in bail.
Bridxin r. Caine*, 11 J. 197. 116
In non-bailable action, affidavit of cause of action
made after arrest, will not support the holding to
bail.
Bunting r. Brown, 13 J. 425, 678
Quo worrtMto lies against a corporation for carry-
Ing on banking operations without legislative
authority.
Pettple r. Utiea Inn. Co., 15 J. 358. 1119
Banking privileges are franchises within control
of legislation. Idem.
BARRATRY.
See SHIPPING.
BASTARDY.
The mother of a bastard child three or four years
old, is entitled to its custody.
Carpenter v. Whitman, 15 J. 208, 1O64
Demanding the child does not exonerate from
maintenance. Idem.
Legal order of maintenance cannot be vacated by
two other justices. Idem.
The place of settlement of a bastard child is where
it was born.
Delavergne v. Noxon, 14 J. 333, 886
After order of filiation and maintenance against
putative father, mother cannot maintain a#ntinpgit
for bastard's support against overseers, unless on
express promise to pay or proof of money received
under the order.
Stevens v. Hoipard. 12 J. 195, 356
Defendants in such action may show child had no
legal settlement In the town. Idem.
BETTING AND GAMING.
Wager on event of horse-race may be recovered
back from depositary by action under general
Statute.
Haywtod p. Sheldon, 13 J. 88, 542
Action properly brought in name of one making
bet, though agent or depositary. Idem.
No action will lie on check given for a wager on
event of an election.
Denniston v. Cook, 12 J. 376, 43O
Wager between electors on event of election is
i I It -iral. and money deposited thereunder by agent
may be recovered back by principal in action
against stakeholder, after event has happened, and
before payment to winner.
Vusher r. Yate*, 11 J. 23. , 46
Overruled, Yate* v. Foot (in error), 12 J. 1, 279
BILL OF EXCEPTIONS.
In Court of Common Pleas must be signed by
three justices.
Ptatt r. Malcolm 13 J. 320, 636
Whether a verdict is against evidence or not can-
not arise upon a bill of exceptions.
Foot v. Winwatl, 14 J. 304, 875
BILL OF PARTICULARS.
Need not embrace matters of defense.
It in-kin, in v. H'H'.ilit. 15 J. 222, 1069
BILLS, NOTES AND CHECKS.
(1) VALIDITY.
(2) LIABILITIES OP PARTIES AND ACTIONS ON.
(3) DEMAND AND NOTICE.
(1) VALIDITY.
Act of Congress authorizing supplies for enemy's
vessel, protects collection of bill of exchange for
same in enemy's country.
Su<-l;l>!i v. Furze, 15 J. 338. i i i :
Note given on Fraudulent sale is without consid-
eration, and void.
Sill r. Rood, 15 J. 230, 1O73
A promissory note given by sureties, is not rend-
ered void by defect in original bond.
Raymond r. .Lent. 14 J. 401. 915
Mutual promissory notes as security for sum
awarded are valid.
Battey r. Button, 13 J. 187. 589
Note for use of billiard table not necessarily void.
Northrop v. Mint urn, 13 J. 85. 54 1
Usury.— Discounting a note at seven per cent, is
not usury.
M,inh,i!t,iii Co. r. O»0oo<f, 15 J. 168. 1O48
.NVtfoiiai.il' piipt-r when valid in its inception, is
lu.i i iiv.-t' .1 by subsequent usurious agreements.
3/tirm r. O •»»!•« uwjon (>., 15 J. 44, 1OO5
Bill or note drawn for puriMiscs of being dis-
counted at a nniirioiiH rate Is void. Idem.
Bennett v. Smith, 15 J. 355,
1118
1215
IV
GENERAL INDEX.
(2) LIABILITY or PARTIES AND ACTIONS ON.
The purchaser of a bill at usurious discount, can
recover from his indorser only the sum advanced,
Munn v. Commission Co., 15 J. 44, 1O05
Payment without surrender conclusive against
subsequent indorsee with notice.
White v. KUtling, 11J. 128, 88
In action on note by holder with notice, parol
evidence of actual consideration admissible.
Olmsted v. Stewart, 13 J. 238, 6O3
Parol release without consideration by holder to
maker after note due, void, and no defense in action
against indorser.
Crawford v. Millspaugh, 13 J. 87, . 541
Holder of promissory note, payable to bearer, or
not negotiable, and indorsed in blank, may write
over indorser's name, a guaranty or promise to
pay, so as to take it out of the statute.
Xeteoti v. jDuoofe, 13 J. 175, 577
Where maker becomes insolvent after note made,
party taking it with knowledge of maker's promise
to accommodation indorser, not to negotiate is not
bona fide holder.
Skilding v. Warren, 15 J. 270, 1O87
Where sale made on one's promise to guaranty
payment of note given for purchase price, held
original undertaking, and guarantor equally liable
with maker.
Nelson v. Dubois, 13 J. 176, 578
One indorsing note warrants it to be genuine.
Herrick v. Whitney, 15 J. 240, 1O76
Where after bill of exchange is protested, the
holder draws on the drawer and drawee thereof for
amount of such bill and damages, acceptance of
second bill by the drawee does not release drawer
on first bill.
Suckleii v. Furse, 15 J. 338, 1113
A payer may nil up with express guaranty, an
indorsement in blank on note.
Campbell v. Butler, 14 J. 349, 893
A written agreement to accept a bill of exchange
is binding in hands of one taking on faith of such
agreement.
Goodrich v. Gordon, 15 J. 6, 991
Indorsee of note can recover from immediate
indorser only amount actually paid.
Braman v. Hess, 13 J. 52, 527
Damages.— Measure of damages, in action on
foreign bill, is amount of bill at rate of exchange at
time of notice of dishonor, with 20 per cent, dam-
ages on nominal amount and interest on these two
sums from time of notice.
Demton v. Henderson, 13 J. 322, 63 7
Offer, by agent of indorsers of foreign bill, to pay
bill, must be before protest, and accompanied by
tender, to defeat recovery for damages.
Denston v. Henderson, 13 J. 322, 637
Holder of bill drawn in New York on England
and returned protested, entitled to recover at rate
of exchange on England at time of return, and
notice to drawer with 20 per cent, damages and
interest.
Graves v. Dash, 12 J. 17, 285
Action on.— Action cannot be maintained against
accommodation indorser for payee by payee's
indorsee with knowledge.
Herrick v. Carman, 12 J. 159, 341
Where prior indorser cannot maintain action
against subsequent indorser, one deriving title
under prior indorser, cannot recover against such
subsequent indorser. Idem.
The payee of promissory note given in payment
for lands, cannot recover thereon where purchas-
ers title extinguished by sale under judgment,
recovered against payee prior to sale.
FrisMe v. Hoffnagle, 11 J. 50, 57
Note indorsed in blank may be sued on by any
one whose name is inserted therein, and if not real
party in interest will be considered as a trustee.
Lovell v. Evertson, 11 J. 52, 57
Indorsement of promissory note transfers legal
title.
Burdick v. Green, 15 J. 247, 1O79
(3) DEMAND AND NOTICE.
Where note is not made payable at any particular
place, demand must be made at maker's residence,
if known to holder and within the State.
Anderson v. Drake, 14 J. 114, 795
Demand of payment to charge indorser must be
made on last day of grace.
Griffin v. Goff, 12 J. 423, 449
Johnson v. Haight, 13 J . 470, 696
If last day falls on Sunday, demand must be made
on Saturday. Idem.
1216
Where demand made on day of payment of note,
but notice not sent until third day of grace, indorser
discharged. Idem.
Where parties reside in same place, notice of dis-
honor must be personal.
Ireland v. Kip. 11J. 231, 131
Where reside in different places, notice must be
sent to nearest postoffice. Idem.
Where resides in place near, but orders mail
delivered at place in town, notice must be served
there. Idem.
Reasonable notice of dishonor, question of law
and fact.
Bryden v. Bryden, 11 J. 187, 112
Notice to indorser residing in same city within
three days after advice of dishonor not sufficient.
Idem.
Notice to indorser must be sent to place of actual
residence.
Bank of Utica v. Demott, 13 J. 432, 68O
Where due diligence used and notice sent to
wrong place, indorser not discharged. Idem.
Notice of dishonor of note can only be dispensed
with where maker's insolvency is known at time of
indorsement.
Agan v. M'Mamis, 11 J. 180, 1O9
Leaving note with indorser after demand, to col-
lect, and offer by him to take up, not a waiver of
notice of non-payment. Idem.
Parol evidence of contents of notice to indorser
of demand and non-payment is admissible.
Johnson v. Haight, 13 J, 470, 696
BOND.
Recovery on bond restricted to amount of penalty
with interest and costs.
Van Wyck v. Montrose, 12 J. 350. 419
Bond construed as indemnity rather than under-
taking to pay off recited bond , see
Douglass v. Clark, 14 J. 177, 822
In action on bond, failure of consideration cannot
be pled.
Dorr v. Munsell, 13 J. 430. 68 O
Bond for security from incumbrances not a cov-
enant for quiet enjoyment.
Jnliand v. Burgott, 11 J. 477, 229
Recovery on may be had without showing evic-
tion. Idem.
BOUNDARIES.
See DEEDS.
Practical location of boundaries conclusive after
nineteen years.
Jackson v. Van Corlear, 11 J. 123. 86
Boundary line not disturbed after fifty-one years.
Jackson v. Hogeboom, 11 J. 163, 1O2
Where boundary is line "to be run up a creek,"
line is through middle of stream.
Jackson v. Louw, 12 J. 252, 379
Parol admissions and declarations as to bound-
aries not sufficient to change possession.
Dunham v. Stuyvesant, 11 J. 569, 265
CASE.
On case subject to opinion of court, court will
draw same conclusions jury would.
Whitney v. Sterling, 14 J. 215, 838
Walden v. Sherburne, 15 J. 409, 1139
Where party making up and settling case fails to
serve copy on the other at or before notice of argu-
ment, the latter is entitled to judgment.
Peck v. Peck, 14 J. 219, 840
CASE, ACTION ON.
Trespass on the case is the proper form of action
against one wrongfully using private way.
Lambert v. Hoke, 14 J. 383, 90 7
CERTIORARI.
A cause of ejectment may be removed from com-
mon pleas to Supreme Court, by certiorari.
Jackson v. Corley, 14 J. 323, 882
In return to certtorari, misrecital by justice of
title to an Act will be disregarded.
Farrington v. Payne, 15 J. 431, 1147
Where on appeal to common pleas, the decision of
commissioners of highways is reversed, certiorari,
on their behalf lies to Supreme Court.
Kinderhook v. Claw, 15 J. 537, 1186
Judgment will be reversed on certiorari for want
of personal notice, on appeal from decision of com-
missioners. Idem.
Defendant may object to non-joinder of wife for
first time on certiorari, although having agreed in
court bel6w to try cause on merits.
Gagev. #eed,15J. 403, 1137
JOHNS. REP., 11, 12, 31, 14, 15.
GENERAL INDEX.
Justice's return to certiorort must state constable
sworn to attend Jury.
UjuuhHtt v. tkuterbrook, 11 J. 532, 25O
On return to certiururL, justice's judgment pre-
sumed correct, unless error appear alhruiativwy.
Clement* v. Benjamin, 12 J. 2»9, 398
Where return imperfect, plaintiff ought to pro-
cure further return. Idem.
The judgment of a Justice court will be neither
affirmed nor reversed on a ctrtbtrart brought
inurelv to throw costs un defendant in error.
I'otter v. Smith, 14 J. 444, 934
Improper evidence admitted without exception
at trial, is not ground of objection, on return of
. Jacob*. 14 J. 484.
»SO
CHAMPERTY AND MAINTENANCE.
Person selling land without knowledge of sub-
gjaflng adverse possession not liable.
HiUMHfrate v. KeUy, 13 J. 4WJ, 695
Knowledge is presumed and want of it must be
shown by defendant. Idem.
Owner of new lands, not liable where selling with-
out knowledge of entry thereon, and sale by one
without claim, or color of title. Idem.
Conveyance of hind not void for chain perty, where
purchaser did not know at the time of pendency of
suit in ejectment-
Clawe* v. HawUn, 12 J. 484, 473
Parties to conveyance of real property held
adversely, liable whether title is good or bad.
Tomb v. ShcrunxKl, 13 J. 28». 684
Penalty is for value of whole land claimed in con-
nection with that held adversely. Idem.
It is not maintenance for one to take deed with
knowledge of prior conveyance made during
infancy, where such prior grantee never was in
possession.
Jtutoon v. BurcMn, 14 J. 124, 799
COMMON CARRIER.
Owners of vessels liable as common carriers.
Kemp v. CouyMrj/, 11 J. 107. 79
Liable as such for money received in payment of
cargo sold. Idem.
Forwarder of goods having no interest in freight
or vessel is not a common carrier.
tt»lwt* v. Turner, 12 J. 232. 371
Tender and acceptance are necessary to delivery
of goads by carrier.
DutrantUr v. Brown, 15 J. 39, 1OO3
Placing goods on a wharf independent of com-
mon usage, is no delivery. Idem.
A general cartuian is not an agent to accept from
•carrier. Idem.
A carrier must stow goods not delivered. Idem.
CONTRACTS.
See AwumpwU, COVENANT, SHIPPING, RELEASE.
(1) GEN EH ALLY.
(2) CONSIDERATION.
(3) PERKiMMAXCK.
(4* RESCISSION AND MODIFICATION.
(5) VALIDITY.
(1) GENERALLY.
A proposition is not a contract.
Tucker v. W,>,>d*, 12 J. 190. 354
The acknowledgment of a debt is presumptive of
a new pro mi -to to pay It.
JnhiitOH P. Beardtlee, 15 J. 3, 9OO
In alternative obligations the debtor has a rignt
to elect.
Smith v. Simtxtrn, 11 J. 59, 6O
Lex b>ci applies only to the construction and
effect of contracts, not to the remedy.
Scooitle o. CanHeld, 14 J. 338. 889
Discharge in insolvency operates according to lee
ioci upon contract where made or to be executed.
Hick* v. Brown, 12 J. 142, 334
Husband not liable for necessaries of wife who
has eloped.
AfCiUcfteno. JTGoAav, 11J.281, 151
Otherwise, after she offers to return. Idem.
Delivery will be presumed where release to
indorsed on the back of original contract in
releasor » hands.
If'itch v. Vorman, 14 J. 172, 82O
(2) CONSIDERATION.
A past consideration beneficial to the defendant,
to which he afterwards amenta, will support an ac-
tion.
Doty v. TFfbon, 14 J. 378, 9O5
JOHNS. HBP., 11, 13, 18, 14. 15.
Where money is paid and receipt given, and in
action for same money, judgment is recovered
through defendant's failure to produce the receipt,
a subsequent promise to refund, on production of
receipt, is binding.
lltittky v. MOim, 14 J. 468. 944
Promise by holder to let indorser's agent have
bill in order to pay it is mtdurn factum.
Denxton v. Henderson, 13 J. 322. 637
Promise by party to suit to pay c«jets is founded
on sufficient consideration, to sustain action.
Warner v. /*••<•</•, 15 J. 233, 1O71
Where a notice was given, of election to incur
penalty rather than complete contract on which
new contract was made. Held sufficient considera-
tion to support new promise.
Lattimore r. Hartten, 14 J. 330. 885
Where promise of one party is consideration for
promise of another, promises must be concurrent
and obligatory.
Keep 9. Gnodrlch. 12 J. 397. 438
Tucker v. Woods, 12 J. 190. 354
Subsequent promise to pay debt barred by dii»-
charge in insolvency is binding and plaintiff may
declare on original cause.
SMpi>cu r. Henderson, 14 J. 178. 823
Where property left as security for judgment and
purchased by trustee on execution sale thereunder,
judgment debtor, under subsequent promise by
j purchaser to pay difference between price on execu-
l lion sale and future sale, may recover in cusiintpsit
that amount.
Delamater v. Rider, 11 J. 533. 25O
(3) PERFORMANCE.
Where father promised to reward his son for
services and provide for him in his will, an action
cannot be maintained by son in father's lifetime
for services.
Pattetaon v. Patterson, 19J.379, 658
Where place of performance at vendor's option,
vendee must have notice of vendor's selection.
Rogers v. Van Hoexen, 12 J. 221. 367
Agreement executed by person without authority,
after 49 years held ratified by subsequent acts of
parties.
Jacfaon v. Richtmiier, 13 J. 367, 654
Contract partly performed by intestate may be
carried out by his legal representatives.
Kline v. Low, 11 J. 74, 66
Agreement to work certain time, to be paid
according to work done, held, entire contract and
performance, condition precedent to recovery for
work done.
ATMiUan v. Vanderlip, 12 J. 165, 343
S. P. Thorite v. White, 13 J. 53, 528
Where special contract is in force, full perform-
ance condition precedent to right of action.
J i- an in <in r. Camp. 13 J. 94, 545
Agreement to receive goods in payment of judg-
ment is waived by issue of execution thereon, and
debtor has right of action for goods delivered.
Garj/v. /fuU.HJ.441. 214
In action for price of services contracted for,
plaintiff must show offer to perform.
Bahenck v. Stanley, 11 J. 178, 1 09
(4) RESCISSION AND MODIFICATION.
Vendee of land may rescind contract upon discov-
ering lease disabling vendor to give agreed title.
Tucker n. Woods, 12 J. 190, 354
Where original contract for hiring Is entire, set-
tlement for part services by giving a note is a modi-
fication of original agreement.
Thorpe r. White, 13 J. 53, 528
An award may be modified by subsequent agree-
ment of parties.
HaU v. Broum, 15 J. 194, 1O59
Such agreement is sufficient consideration for
note given on final settlement. Idem.
Where contract for services Is entire, a part pay-
ment and leaving, before expiration, will be consid-
ered a rescission.
Hoar v. Clittc, 15 J. 224. 1O7O
Acceptance of goods by vendor under agreement
to allow to return within certain time if uninjured,
waives objection to latent injury.
Lord P. Ktnnu, 13 J. 219. 695
Waiver of time for completing contract doe« not
prevent recovery of fixed and liquidated damages
for breach.
Haxhrottck v. Tapj>en, 15 J. 200. 1O61
A subsequent agreement by parol, cannot alter or
modify a previous valid contract under seal. Idem.
77 1217
VI
GENERAL INDEX.
(5) VALIDITY.
A contract for the ransom of a vessel captured in
war is lawful.
Goodrich v- Gordon, 15 J. 6, 991
In pair delicto potior est conditio possidentis.
Vixcher v. Yates, 11 J. 23, 46
Where constable was authorized by plaintiff to
take security, an indorsement on execution by third
person to pay debt and costs, is valid.
Hinman v. Moidton, 14 J. 466, 943
The words " value received" sufficient expression
of consideration. Idem,
Contract by third person to answer for the return
of defendant in execution if officer would release
him, is void.
Wheeler v. Bailey, 13 J. 366, 654
Action cannot be brought on agreement tending
to prevent competition at execution sale, although
made under sufficient consideration.
Thompson v. Davies, 13 J. 112, 551
An action will not lie for debt incurred on a con-
tract illegal and void.
Graves v. Ddaplaine, 14 J. 146, 809
A promise to indemnify sheriff against a volun-
tary escape, already made, is good.
Dot!/ v. Wilson, 14 J. 378. 905
A conveyance void in part, as in violation of a
statute, is void in toto.
Hyxlop v. Clarke, 14 J. 458, 94O
Agreements required to be in writing by the
statute of frauds must be certain in themselves or
capable of being made so by reference to something
else.
Abeel v. Rftdcliffe, 13 J. 297, 627
The illegal purchase of a chose in action in another
state, is sufficient cause for nonsuit here, but does
not bar another suit in name of legal owner.
ScofieM v. Canjteld, 14 J. 338, 889
CONTRIBUTION.
One party paying whole expenses of survey had
under mutual agreement in ejectment may recover
from the other his pro rota share.
Low v. Vrooinan, 15 J. 238, 1O75
A judgment debtor cannot maintain action for
contribution against others not parties to the judg-
ment though jointly liable for the original debt.
Murray v. Bouert, 14 J. 318, 881
CONVERSION.
Pledge of principal's goods by factor for his own
debt is a conversion.
Kennedy v. Strong, 14 J. 128. 801
One obtaining promissory note under pretense
that he wanted to look at it, and converting it, is
liable only civilly.
People v. Miller, 14 J. 371, 902
Action can be maintained by assignee of judg-
ment creditor against one wrongfully converting
property of judgment debtor.
Yates v. Joyce, 11J . 136, 91
CORPORATIONS.
See BANKS AND BANKING.
Corporation has no other powers than those espe-
cially granted and those necessary to carry them
into effect.
People v. Utica Ins. Co.. 15 J. 3oS, 1119
A corp< ration authorized bv an act of incorpora-
ation to employ stock in advancing money on good
and the sale of such goods upon commission, may
accept bills drawn on account of future consign-
ments or deposits of goods.
Munn v. Commission Co., 15 J. 44, 1005
Assumpsit, on implied promise, lies against a cor-
poration.
Dim v. Rector, 14 J. 118, 797
Statute restraining " persons" applies equally to
corporations.
People, v. Utica Ins. Co., 15 J. 358, 1119
Corporation may sue on bond given it in the name
of its committee.
N. Y. African Soc. v. Varick, 13 J. 38, 522
Azxumijsit lies against subscribers to capital stock
for installments due.
Dntcheiss Cotton M'f'O v. Davis, 14 J. 238, 848
One entering into contracts with a corporation is
estopped from claiming it was not duly incorpor-
ated. Idem.
But under general issue, corporation must prove
its corporate existence.
Bill v. Fourth, W Tpke Co., 14 J. 416, 922
Appointment of state inspectors and their report
is not evidence of that fact. Idem.
1218
Where in act of incorporation a payment was
required to be made on subscribing to stock, in
action for subscription, declaration must aver pay-
ment of sum unless subscriber was an officer
qualified to receive payments.
Highland T'p'ke Co. v. M'Kean, 11 J. 98, 76-
COSTS.
Costs in ejectment not recoverable where action
brought before offer to pay for improvements.
Jackson v. M'Connel, 11 J. 424, 2O8
Until improvements paid for, defendant has pos-
session. Idem.
Where action of slander removed by habeas cor-
pus from Common Pleas to this court, costs cannot
exceed judgment where recovery is less than $50.
Waterman v. Van Bemchotten, 13 J. 425, 678
Appeal from taxation is the only remedy for
rejection of items of costs.
Low v. Vrooinan, 15 J. 238, 1075
Where plaintiff brings writ of error and judgment
is affirmed he is entitled only to single costs.
Jackson v. Dclancy, 13 J. 536, 724
Costs on appeal for witnesses examined ex-parte
not allowed.
Clason v. Shotwell, 12 J. 512, 484
Plaintiff in error allowed for four copies appeal
book. Idem.
A defendant, in attendance for executing writ of
inquiry, is entitled to costs, though plaintiff fail
to appear and writ not executed.
Butler v. Kelse)/, 14 J. 342, 891
Where plaintiff discharged in insolvency, after
suit commenced, and judgment of nonsuit given
against him, costs are recoverable.
Stehbins v. Willson, 14 J. 403, 916
In ejectment costs of survey of land by mutual
reference are not admissible in taxation of costs.
Low v. Vrooman, 15 J. 238, 1O75
Death of party in chancery before decree extin-
guishes claim lor costs unless they can be granted
as matter of relief, or are payable from particular
fund.
Trat'fe v. Waters, 12 J. 500, 479
Plaintiff on revivor can only claim the costs when
coming before the court expressly in the character
of a personal representative of deceased. Idem.
Costs in equity are in discretion of Chancellor.
Travte v. Waters, 12 J. 500, 479
Where final decree is silent as to costs, they will
not be granted on application, unless there is a
rehearing on the merits. Idem.
Action on bail-bond may be brought in Supreme
Court though original action was in Common Pleas
and Common Pleas costs will te allowed.
Gardiner v. Burham, 12 J . 459, 463
Laches in obtaining final decree waiver of right to
insist on costs.
Travis v. Waters, 12 J. 500, 479
If judgment or demurrer be given againstexecu-
tor or administrator plaintiff, he pays costs.
Salisbury's E.cr'sv. Phillips' Exr's, 12
J. 289, ' 394
Too late after verdict to ask for security for costs.
Jackson v. BushneU, 13 J. 330, 640
Where judgment in action of debt on bond, is for
the penalty, $500, though damages assessed at $13,
plaintiff entitled to full costs.
Godfry v. Vnncott, 13 J. 345, 646
On arrest of judgment no costs recoverable.
Pangburn v. Ramsey, 11 J. 141, 93
In action of trespass to freehold or nuisance,
where freehold or title not in question and recovery
less than $50, plaintiff pays costs.
Crane v. Comstock, 11 J. 404, 199
Jackson v. Randall, 11 J. 405, 199
Ross v. Dole, 13 J. 306, 93O
Plaintiff allowed to set off damages against costs
notwithstanding attorney's lien. Idem.
Certificate of malice not required under statute to
entitle plaintiff to costs.
Crane v. Comstock, 11 J. 404, 199
No costs allowed on either side where judgment
affirmed in part and reversed in part.
Anonymous, 12 J. 340, 415
Williams v. Sherman. 15 J. 195, 1059
Where judgment is reversed for error in fact
plaintiff in eivor, entitled to costs.
Arnold v. Sandford, 15 J. 534, 1185
COURT MARTIAL.
Where neither subject matter nor person are
within jurisdiction of court martial, proceedings
are void, and all concerned therein are trespassers.
Smith v. Shaw, 12 J. 257, 382
JOHNS. REP.. 11, 12, 13, 1 , 15.
GENERAL INDEX.
vii
But where subject matter alone is within jurisdic-
tion, officer excused unless want of jurisdiction of
person appears on the process. Idem.
Civilians are not amenable to court martial.
liitm.
COVENANT.
See PLEADING, DKKD. DAMAGES, Ac.
Covenant of seisin on conveyance in fee by devisee
for life, who was also one of the other heirs at law,
is broken only in part.
tiiithrrie r. Piitfxfctf, 12J. 126, 327
A sold land with covenant of seisin to H . and I)
sold to C. and on discovering that A was not legal
owner Rave to C power of attorney to sue A in
name of U of which A had notice. Held subsequent
release from B to A was void.
Raymond r. Squtre, 11 J. 47. 65
Bond for security from incuinbrances not a cove-
rumt for quiet enjoyment.
Jnlinnd r. Bvraatt, 11 J.477, 229
Recovery may be had without showing eviction.
Idem.
Parol warranty in writing of quiet enjoyment
intuit i >.x press consideration.
Krrr v. Shatc, 13 J. 23H. 6O2
To constitute breach of warranty of quiet enjoy-
ment. there must be actual ouster.
Kerr r. Sha u; 13 J . S«, 6O2
When.' money partly paid under covenant, <i«-
will lie for balance. on implied promise.
Danforth v. Scho. Tpke Co., 12 J . 227. 369
A covenant of seisin must be broken, if at all, at
the moment it is made.
Altbott r. AUfn, 14 J. 24«, 852
A grantor conveying with covenant of seisin, need
not deliver his title deeds to the g ran tee. Idem.
In action of damages for breach of covenant
money paid, as inducement to contract cannot be
recovered back.
Shepard v. Rfiera. 15 J. 497, 1171
Outstanding judgment is a breach of covenant of
quiet enjoyment andualiMt incuinbrances.
7/.I/1 V. Dean, 13 J. 106, 549
K v |ii-'--.s does awuy with implied.
Vfinderkarr v. Vanderkarr. 11 J. 122, 85
Under general covenant of warranty, covenant of
seisin not implied and lawful eviction must be
shown to sustain action for breach. Idem.
Covenant to give a deed does not imply a warran-
ty deed, nor a joinder of wife therein.
Kttchum v. EocrUK»n, 13 J. 350, 651
Covenant does not lie, between partners, to com-
pel payment of balance due partnership.
atom r. SpuHurmem, 12 J. 401. 44O
Grantor in conveyance of land " supposed to con-
tain " certain quantity, not liable if quantity IK; less.
Smith i'. Ware, 13 J. 257, 611
Promise without consideration to pay for de-
tici'-ncy will not support (uwu/npxif. Idem.
Covenant of quiet enjoyment extends only to
pooeaslon.
ll'/i itlteck r. Cook, 15 J. 483, 11 67
Use of public highway is not a breach. Idem.
in action of breach, actual disturbance must be
shown. Idem.
DAMAQB8.
Exemplary damages may be given for killing
plaintiff's liiiiimil with wunton cruelty.
H'nert r. Jenkinn, 14 J. 352, 894
In trover measure of damaged is the value of the
property at time and place of conversion.
K> n nedu r. Strong, 14 J. 12H, 8O1
For failure to transport goods, difference in price
between |>orts of entry and destination, is proper
measure of damages.
Hnn-l.tt r. .V.Viifr, 14 J. 170, 819
A,m«TH r. M'Gregor, 15 J. 24, 997
Admission of plaintiffs counsel of lack of mallei*
bars claim for vindictive damages.
i,. :-!.,„ r. //">/'. 13 J. 'nil. S. ( '. 141, 734, 563
In action for breach of covenant, in deed after
eviction measure of damages is the consideration
money, with Interest for time mettne profits recover-
able and costs of ejectment suit.
lirnnrt p. Jrnkin*. 13 J. SO, 687
Evidence of restoration or property, admissible
In mitigation of damages in action for its wrongful
taking.
r>Mhtii-(//i r. Wrlch, 11J. 175. 1O7
What damages not recoverable for breach of
covenant in partition of land by arbitration,
Shtpnrd v. li'i'i-. 15 J. 407. 1171
JOHN*. RKP.. 11, 12. 18, 14. 15.
One acting for another's benefit, considered as
his agent and entitled to damages accruing though
transaction was had under his advice.
Ramsay r. Gardner, 11 J. 4J9, 214
In replevin, where plaintiff is nonsuited, oraction
barred, defendant entitled to damages.
I i" 11-1,11 v. Glblm, 14 J. 3H5, 9O8
Measures of damages is the decrease in price of
g*KMls and interest on their entire value. Idem.
Where grantor holds life estate and fee in part.
and conveys entire fee, grantee can recover dam-
ages in proportion to value of part of which title
has failed with interest after deducting value of
I life estate.
Guthrle r. I*U<J»UH, 12 J. 126, 327
In action for price of work and labor, defendant
may show unfaithful and unworkmanlike labor.
Grant r. Button, 14 J. 377, !»«».->
Measure of damages in action for illegal capture
and detention of vessel would be value of cargo at
port of destination, with Interest, deducting pro
rota premium and value of part of cargo restored.
ll'illrl v. .Vifci.i/i. 14 J. 273, 868
DEED.
See COVENANT. MILITARY BOUNTY LANDS. PAT-
ENT, ACKNOWLEDGMENT or DEEDS, BOUNDARIES.
A conveyance void in part, as in violation of a
statute, is void in toto.
Huxlopr. Clarkr., 14 J. 458, 94O
Deed fraudulent in part is void, but deed only
constructively fraudulent is voidable only.
Afiirraj/ i\ Rigys, 15 J. 571, 12OO
Title of hona fide purchaser under execution sale
i not defeated for irregularity in judgment or execu-
; tion.
Jacfann r. Rnserelt, 13 J. 97, 546
Grantor without interest estopped by warranty
from setting up after acquired title.
Jin f.xun v. Stevens, 13 J. 316, 634
Such title inures to benefit of grantee. Idem.
Parol evidence inadmissible to contradict.
Jackson r. Croy, 12 J. 427, 45O
No title not in ease will pass by deed of bargain
and sal«».
STCracken v. n'riyht, 14 J. 193, 829
If it contains a warranty it will operate as estop-
pel. Idem.
Parol evidence admissible to show that the con-
sideration expressed in deed, as having been paid
was not actually paid.
Shephard v. Little. 14 J. 210. 836
Deed absolute on its face, but intended as security
for a debt will operate as a mortgage.
Dunham v. Dey, 15 J. 555, 1 1 94
Delivered as escrow, after condition preformed,
, dates from first delivery.
Ruuulcs v. LaiaxHt, 13 J. 285. 622
| Grantor in conveyance of land "supposed to con-
j tain" certain quantity, not liable if quantity be
less.
Smith v. Ware, 13 J. 257, 61 1
Promise without consideration, to pay for defi-
ciency will not support agmimitfit. Idem.
A deed, with haliendunt to grantor during life,
and to grantee then*after in fee. is valid.
Jackxon i\ SttuH*, 11J. 337, 173
Exception in deed, of mill seats, includes only
natural mill seats.
Jack»>n r. LtniTence, 11 J. 191, 114
A deed with warranty is sufficent to pass a sub-
sequently acquired title by grantor.
Jackmn r. Matxilitrf, if J. 91, 73
Reservation in fee to inhabitants of unineor-
I>onit<'d towns void.
Hornlifck r. Sleight. 12 J. 199. 358
Marriage is a valuable consideration.
Vtntnnk «'• S'erri/. 12 J. 536, 494
Deed not declared void, liecause whole not read to
grantor.
Jack*mv. Crny, 12 J. 427, 45O
I in -.|, to !••• valid and binding, must be delivered.
Jiirkxon r. /»/M';>J»H, 12J. 418. 447
Acceptance requisite to constitute delivery. Idem.
Land does not pass as appurtenant to land-
K'in r. Ha
1153
VtaiDOU, 15 J. 447,
Adverse nowsslon renders grant void.
Von fepfwv. Cnn, of 8eh«nedady,
12 J. Ot. 454
Of two deeds of lands in contiguous forfeited
patents given by State commissioner without regiird
, to In nun l:iri--s of patents, the one of prior date holds
, all land in dispute.
Jack*m v. Harter, 14 J. 231, 842
121ft
GENERAL INDEX.
Where grant made with privilege of election, the
right to elect is personal and cannot be exercised
by heirs or assigns.
Vandenberg v. Van Bergen, 13 J. 212, 592
Deed executed to infant daughter of purchaser
and retained by him, held not an advancement to
her, but a resulting trust for him, and so might
be proved by parol.
Jachsnn v. Matsdorf, 11 J. 91, 73
Deed and mortgage given back for purchased
price are parts of same agreement, and on default
of mortgagor land is wasted in grantor.
Stowv. Ti/f,15J.458, 1157
Recorded deed to hona fide purchaser for value
from owner of military tract will take preference to
prior unrecorded sheriff's deed of same.
Jackson v Terry, 13 J. 471, 697
Special return on execution, where unrecorded
will not affect this right. Idem.
Delivery of deed may be by words or acts.
Verplank v. Sterry,} 2 J. 536, 494
And to third person, \* ithout special authority to
receive, in trust for grantee. Idem.
Conveyance voidable, may.be made valid by mat-
ter ex post facto. Idc m .
Uncertainty in sheriffs deed as to land granted
avoids it, as a grant by general description.
Jackson v. Rosevelt, 13 J. 97, 546
Jackson v. DeLancy, 11 J. 365, 184
But owner may sell by general description.
Jackson v. DeLancy, 11 J. 365, 184
Deed from illiterate man void, if obtained by
misrepresentation of its contents.
Jackson v. Hayner, 12 J. 469, 467
Grant of military bounty lands, without warranty,
does not convey lands subsequently obtained by
act of Legislature.
Jackson, d., v. Wright, 14 J. 193, 889
DEFAULT.
A default for want of a'plea will be set aside, on
affidavit of merits and payment of costs, if 110 trial
lost.
Tallmadge v. Stockholm, 14 J. 342, 891
DEFENSES.
Payment by indprser is no defense to action
against maker or his bail, when agreed to be prose-
cuted for indorser's benefit.
Mechanics' Bank v. Hazard, 13 J. 353, 648
In action on note, maker may show his insanity at
time of making and delivering.
Rice v. Peet, 15 J. 503, 11 74
In action for price of chattel, defendant may
prove deceit in sale in mitigation of damages.
Beecker v. Vrooman, 13 J. 302, 629
A decree to set aside sale on execution for bond
on part of defendant, is no defense to bill by
defendant against judgment creditor, to get rid of
fraudulent assignment of judgment before execu-
tion.
Lyon v. Tallmadge, 14 J. 501, 958
Where prisoner escaped on Sunday, voluntary
return on same day good defense.
Fan Vechten v. Paddock, 12 J. 178, 349
Matter offered as defense and rejected in'a former
suit, cannot be made the subject of a new suit.
Grant v. Button, 14 J. 377, 9O5
Privileges from arrest good defense to action for
escape.
Ray v. Hogeboom, 11 J. 433. 212
In action of trespass by cattle, defective inclosure
which plaintiff was bound to keep in repair, is mat-
ter of defense.
Golden v. Eldred, 15 J. 220, 1O96
Suit pending in U. S. Courts no bar to suit here.
Walxh v. Durkin, 12 J. 99, 317
A discharge in insolvency no bar to trover.
Kennedy v. Strong, 14 J. 128, 8O1
Showing or offer to perform contract to pay for
goods by labor, will defeat action to recover back
the original consideration.
Green v. Ogden, 13 J. 57, 529
DEFINITIONS.
Fee simple, and fee simple absolute, synonymous.
Jackson v. Van Zandt, 12 J. 169, 346
Distinction between virtute offlcii and colore officii.
Seeley v. Birdsall, 15 J. 267, 1O86
A " month" in law as a general rule is a lunar
month.
Loring v. Hailing, 15 J. 119, 1O32
Martial law denned.
Schuneman v. Diblee, 14 J. 235, 846
1220
DELIVERY.
See COMMON CARRIER, CONTRACT, DEED, GIFT.
&c.
DEMURRER.
Departure of a rejoinder from the plea, is fatal on
general demurrer.
Sterna v. Patterson, 14 J. 132, 803
What is a departure; see Idem.
Demurrer does not lie unless objection appears on
face of declaration.
Amory v. M'Gregor, 12 J. 287, 339
Demurrer does not lie on immaterial allegation
Idem.
On demurrer, judgment given against first defect-
ive pleading.
GeMon v. Burr, 11 J. 482. 23O
Spencer v. Southwick, 11 J. 573, 266
On general demurrer, a bad count cannot be
referred to in support of a good one.
Nelson v. Swan, 13 J. 483, 7O1
General demurrer to plea containing good and
bad counts not sustained.
Gidney v. Blake, 11 J. 54, 58
Douglass v. Satterlee, 11J. 16, 43
Martin v. Williams, 13 J. 264, 614
If judgment on demurrer be given against execu-
tor or administrator, plaintiff, he personally pays
costs.
Salisburys' Ex'rs v. Phillips' Heirs, 12 J. 289, 394
DESCENT.
One seised "of reversion expectant after deter-
mination of estate by curtesy, does not become a
new stock of descent until determination of that
estate.
Bates v. Schrccder, 13 J. 260, 612
The title of a military patent issued after death of
patentee, is deemed to have existed in him at time
of death, and where his brother and heir at law
died before patent issued, estate vests in brother's
children as tenants in common.
Jackson v. Howe, 14 J. 405, 917
Devise of lands held adversely is void, and title
descends to heir.
Smith v. Van Dursen, 15 J. 343, 1114
j DEVISE.
Where devise contains no words of perpetuity
and no fee by implication, a life estate passes only.
Jackson v. Embler, 14 J. 198, 831
On devise of fee. subsequent limitation over is
void.
Jackson v. Robins, 15 J. 169, 1O5O
Devise of " estate" passes real and personal estate.
Jackson v. DeLancy, 11 J. 365, 184
And includes debt and mortgage. Idem .
A devise of all real and personal property carries
a fee.
Jackson v. DeLancy, 13 J. 536, 724
A devise over of all property the devisee should
fail to sell, assign, &c., is void. Idem.
Devise of land held adversely is void, and title
descends to heir.
Smith v. Van Dursen, 15 J. 343, 1114
Assignee of heir's share is not an heir or devisee.
Livingston's Ex'rs v. Tremper, 11 J. 101, 77
A devise of testator's farm tl granted to him by
several persons in several lots," held not to include
a small piece not adjoining which had been rented
for a number of years as a separate and distinct lot.
Jackson v. Moyer, 13 J. 531, 722
Where devise is of certain quantity of land with
privilege to elect, it is a personal privilege and dies
with the party, rendering the grant inoperative.
Jackson v. Van Buren, 13 J. 525, 719
Devise of lands, without words of perpetuity,
gives only a life estate.
Guthrie v. Pugsley, 12 J. 126, 327
DISCHARGE.
See INSOLVENCY.
DISCONTINUANCE.
Discontinuance of action may be proved by
extrinsic evidence. Idem.
Foster t), Trull, 12 J. 456, 462
In popular action, plaintiff cannot discharge judg-
ment, without receiving payment, or compound
with defendant without court's leave.
Menton v. Woodworth, 11 J. 474, 227
DIVORCE.
Decree of divorce in another state of persons
domiciled in this state, invalid here.
Pawling v. Bird Ex'rs, 13 J. 192, 584
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
A divorce obtained "in one state from one who
resides in another, who had no notice of proceed-
ings and did not appear, is void and will not legalize
a subsequent marriage contracted here.
Borden v. Fitch, 15 J. 121. 1O33
Where no decree of maintenance of children
made, mother as g uardian can, at most, only main-
tain action for contribution against father.
Pawling p. Bird's Ex'n,U J. 18BJ, 584
DOWER.
Widow ia entitled to dower out of equity of
redemption, of land mortgaged before marriage.
CUM v. Cole*. 15 J. 31ft. 1 1O6
Widow not entitled to dower out of lands moment-
arily seised by husband.
Stow v. Tlfft, 15 J. 458. 1157
As where mortgage is Riven for purchase money.
Idem.
Written notice of application for admeasurers of
dower is required to make nnx-eedings regular.
r.m/irr. Matttr of. 15 J. 538. 1184
Widow entitled to dower in lands alienated by
husband durinir coverture, according to value at
tim-- ot iiliiMiatinn.
Shaw p. !»'/!«<-, 13 J. 179, 579
Dorchester v. Coventrti, 11 J. 510, 241
Where husband was seised in severally, widow
cannot proceed under partition act, or be made a
partv to partition among heirs, \c., of husband.
(Me* v. Cole*. 15 J . 319. 1 1 06
Where A and II purchased land together, but
divide it between them, the fact that A Joins in
deed of B's piece, which he has occupied and bar-
gained for exclusively, is not sufficient evidence of
tenancy in common to bar B's widow of dower in
whole of his part of land.
Dolf v. liaxtet. 15 J. 21, 996
Dower assigned according to value of lands at
time of alienation, Idem.
By whom may be assigned ; sec Idem.
DURH88.
See CONTRACTS, SEAMEN.
Obligee cannot plead duress of co-obligee.
Thompson v. LocfciwxxJ, 15 J. 256, 1O82
Where prisoner is voluntarily released by sheriff,
a bond for jail liberties, on re-arrest without new
process, is void for duress. Idem.
EASEMENT.
See HIGHWAYS, PRIVATE WAYS, &o.
Fee to highway laid out over private property, is
in original owner; public has has only an easement.
Jack»m v. Hat ha tea u, 15 J. 447, 1153
WhiUteck v. Conk, 15 J. 483, 1 167
A patent for an island usually covered by water, is
valid.
Hi nk r. Riyhtmyer, 14 J. 255. 855
Rut is to be taken subject to public easement as of
highway and fishery. Idem.
A. public fishery does not give fisherman a riarht
to draw nets upon the part not covered with water.
Idem.
EJECTMENT.
See EBTOPPEU EVIDENCE.
Title under mortgagor cannot be set up to defeat
the title of one who claims under possession, under
entry as devisee of mort^ragee of forfeited mort-
gage.
Jarkwm v. De Lancy. 13 J. 536. 724
Defendant in ejectment may prove that the
iM-rson claiming as patentee, is not the one intended
by the grant.
Jackiton v. (it**, 13 J. 518, 716
One covenanting to pay purchase price on con-
tract to convey. In action of ejectment by one con-
tracting, is estopped from setting up outstanding
title in another.
Jackfon v. Ai/rr*. 14 J. 224, 842
Purchaser on execution sale, must produce exe-
cution, sheriff's deed and excmplication of judg-
ment.
Jackmn v. Hanhnmck. 12 J. 213, 364
Title under mortgagor cannot be set up to defeat
t h^ title of one who claims under j>oss4'«iion, under
entry as devisee of mortgagee, of forfeited mort-
gage.
Jacktnn r. De Lancy. 13 J. 536, 724
An exemplification of record and certificate that
it cannot be found, is sufficient evidence in eject-
ment.
Jactonn v. irate*, 14 J. 407, 918
JOHNS. REP., 11, 12, 18. 14, 15.
In action of ejectment grounded on forfeiture by
reason of disclaimer of holding under lease, in
action to replevy a distress, evidence is admissible
to show disclaimer was intended to refer only to
place where distress was taken.
Jackson p. Rttgen, 11 J. 83, 5O
Plaintiff estopped by his lessors, release to de-
fendant.
Jackson v. J-Yxrfrr, 12 J. 488. 475
Possession under deed given without right in
grantor, is adverse to owners, and deed by them
during such possession, is void.
Jackson v. Smith. 13 J. 40U. 67O
One In possession, claiming title, may purchase
outstanding title. Idem.
Where mexne, profits sued for. after recovery in
ejectment title, cannot be questioned.
Jackson P. Randall, 11 J. 405, 199
One entering by permission of his co-tenant, can-
not set up adverse title.
Jackiton v. Creal. 13 J. 116, 553
In ejectment to recover land In military tract,
defendant is entitled to recover on showing that
neither the grantee under whom plaintiff claims,
nor another person of same name is the grantee
intended, one never having been a soldier, and the
other l>eing too young to serve.
Jackiton p. Ooe«, 13 J. 518, 716
A continuous possession for thirty years by
defendant and his grantors originally, commencing
under lease in fee, is a bar to ejectment.
Jackson r. Moore, 13 J. 513, 714
Judgment in ejectment must be enforced within
period laid in demise.
Jackson v. Haviland, 13 J. 229, 599
Heirs of executor cannot maintain ejectment
against one entering(into possession under the ex-
ecutor as such.
Jackson v. M'Vey. 15. J. 234. 1O74
Clear paper title will prevail over heterogeneous
Jackson v. Sauie, 13 J. 336, 642
Ejectment, after partition, cannot be maintained
by one against his co-tenant, who previously entered
and made improvements by permission, until after
tender of their value after deducting for use and
occupation.
Jackson v. Creal, 13 J. 116, 553
Purchaser under fl.fa. muat resort to ejectment
to obtain actual possession.
People v A'eWi, 13 J. 340, 643
Improvements not paid for, no defense, where
plaintiff's lessor claims under partition under act of
1801. of hinds in possession of defendant's grantors,
previous to such act.
Jackson v. Tni*dell, 12 J . 248, 377
Separate demises from several lessors may be laid
in declaration, and recovery had accordingly.
Jackfum p. Sidney, 12 J. 185, 352
Lessor in ejectment bound to prove regular
demand or no sufficient distress, where lease con-
tained covenant of re-entry for arrearage of rent
after no sufficient distress found (1 N. R. L., 434):
but a disclaimer of landlord's title, is a waiver of
formal demand of rent.
Jacfaon r. Collini>. 11 J. 1, 37
Mortgagee in possession, let in to defend.
Jackxnn v. Stile*. 11 J. 407, 2OO
Repeated application of defendant to plaintiff's
lessor to purchase premises, presumption of posses-
sion under him.
.l.i-l,.-",, \\ Croy, 12 J. 427. 46O
Notice to quit not necessary where relation of
landlord and tenant docs not exist.
Jnckxnn v. Aldrich, 13 J. 108, 549
Satisfied mortgage paid by defendant, not a bar.
Jackiton v. Crte, 1 1 J . 437, 213
Tenants in common may enter into consent rule.
Langendyck r. Burhant, 11 J. 461, 223
Under the statute, not maintained where lease
contains clause of re-entry for non-payment.
Jack«»n r. Hoaeltoom, 11 J. 163, I <>•,»
In ejectment, costs of survey of land by mutual
reference, are not admissible in taxation of costs.
1.' >ii' v. Vrooman, 15 J. 238, 1O75
ELECTION OF OFFICERS.
Militia not to be ordered out within ten days of
election.
Hyde r. Melrin, 11 J. 521, 846
Orders of superior, ignorance of the law, or omis-
sion of Inferior to obtain regular papers, no defense
in action for penalty under statute. Idem .
I'JlM
GENERAL INDEX.
ENTAILS.
Statute of 1783 to abolish entails, operated pros-
peetively.
Jackson v Van Zandt, 12 J. 169, 346
EQUITY.
Equity will relieve for advantage taken, not
amounting to fraud in law.
Lyons v. Tallmadge, 14 J. 501, 958
ERROK.
See APPEAL.
Infancy at the commencement of suit is sufficient
as assignment of error.
Arnold v. Sanford, U J. 417, 933
Relief in equity from mortgage for usurious debt
oan only be had after tender of principal and legal
interest.
Dunham v. Dey, 15 J. 555, 1194
Where judgment entire it must be affirmed or
reversed in toto.
Richard v. Walton, 12 J. 434, 453
Error lies from judgment of nonsuit in common
pleas, though no costs awarded on record.
Lovell v. Evertson, 11 J. 52, 57
After reversal on error coram vobis, plaintiff may
continue original cause.
DeWitt v. Post, 11 J. 460, 233
Reversal for error in fact gives new trial, but for
error in law is final. Idem.
On error, court will adopt any reasonable con-
struction of pleadings in support of verdict.
Hastings v. Wood, 13 J. 482, 701
It is sufficient that judgment was in fact signed
before writ of error was returned, thougn it
appears on record otherwise.
Arnold v. Sanford, 14 J. 417, 923
Error lies from Common Pleas to Supreme Court
on question of fact. Idem.
Misconduct of jury after retirement, may be
assigned as error in fact.
Harvey v. Rickett, 15 J. 87, 1O2O
Where Supreme Court investigated cause on affi-
davits, no return being had to certiorari, by reason
of death of justice. Court of Error may review on
writ of error on evidence presented to court below.
Clason v. Shotwell, 12 J. 31, 390
ESCAPE.
A former discharge of defendant not plead in
defense by him, is no justification to sheriff for his
escape.
Cable v. Cooper, 15 J. 152, 1O44
Privilege from arrest, good defense to action for
escape.
Ray v. Hogeboom, 11 J. 433. 213
Bond taken by sheriff for prosecution of suit, is
no defense in action for escape of slave.
Skinner v. Fleet, 14 J. 263, 858
The assignment of such a bond is no bar to action
against sheriff, unless accepted as discharge of suit.
Idem.
In debt, for escape, nil debit good plea.
Million v. Woodworth, 11J. 474, 237
Action against sheriff for escape is an election of
remedy in that form, and plaintiff is determined
by it.
AFElroy v. Mancius, 13 J. 121. 555
Irregularity in issuing ca. sa. cannot be availed of
in action for escape.
Hinman v. Brees, 13 J. 529, 721
Application must be made to set it aside. Idem.
Second bond to sheriff for jail liberties, given on
retaking, does not affect sheriff's right of action
against sureties on first bond, when sued for the
escape.
Leal v. Wegiam, 12 J. 88, 313
New process by plaintiff necessary to arrest
defendant in execution, permitted by sheriff to
escape.
Thompson v. Lockwood, 15 J. 286, 1O82
In action of escape parol evidence of issuing and
delivery of execution and arrest of party is admis-
sible after due notice to sheriff to produce ca. so.
which he has failed to file.
Hinman v. Breez, 13 J. 529, • 721
A neglect to return and file ca. sa. cannot be
availed of to defeat plaintiff's action. Idem.
Where prisoner escaped on Sunday, voluntary
return on same day, good defense.
Fan Vechten v. Paddock, 12 J. 178. 349
A promise to indemnify sheriff against a volun-
tary escape already made, is good.
Doty v. Wilson. 14 J. 378, 9O5
1222
Privilege of sheriff from arrest is personal, and a
waiver does not affect his right of action against
sureties or bond for jail liberty.
Leal v. Wit/ram, 12 J. 88, 313
Bond taken by sheriffs for prosecuting of suit is
no defense in action for escape of slave.
Skinner v. Fleet, 14 J. 263, 858
Where judgment is for costs, and attorney directs
sheriff to pay amount collected over to him, and
prisoner is arrested and allowed to escape, a release
by plaintiff to sheriff does not bar attorney's right
of action for escape.
Martin v. Hawks, 15 J. 405, 1137
ESTOPPEL.
Agreement to purchase is acknowledgment of
title, and estops from setting up outstanding title.
Jackson v. Ancrs, 14 J. 224, 843
One entering into contracts with a corporation is
estopped from claiming it was not duly incorpor-
ated.
Dutchess Cotton M'f'ji. v. Davis, 14 J. 238, 848
Where issue joined on demurrer, and judgment
given against defendant by default, his counsel
declining to argue it, on error, defendant cannot
object to judgment.
Gelston v. Hoyt, 13 J. 561, 73 4
Grantor bound in private capacity by boundary
settled by him as trustee, and such deed of settle-
ment is a bar to one claiming under him in opposi-
tion thereto.
Wood, ex dem. Elmendorf, v. Living-
ston, 11 J. 36, 51
Plaintiff estopped by his lessor's release to defend-
ant.
Jackson v. Foster, 12 J . 488, 475
Sheriff having expressly sold under execution on
plaintiff's judgments, but retaining part to satisfy
oudgment prior as to part of plaintiffs, in action to
recover proceeds is estopped by his deed from
claiming sale not made under plaintiffs execution.
Sandfordv. Roosa, 12 J. 162. 343
Grantor without interest estopped by warranty
f r om setting up after acquired title.
Jackson v. Stevens, 13 J. 316, 634
Jackson v. Murray, 12 J. 201. 359
M^Crackin v. Wright, 14 J. 193, 829
In action of trover by principal against agent,
the latter is estopped by admissions, after conver-
sion of property in plaintiff, from showing title in
third person.
Kennedy v. Strong, 14 J. 128, 8O1
Grantee in possession, who had no notice of parti-
tion suit and sale, is not precluded from controvert-
ing right of purchase thereunder.
Jackson v. Vrooman, 13 J. 488, 7O3
Trustee is not estopped by his deed in perform-
ance of trust from claiming title under subsequent
conveyance to himself.
Jackson v. Mills, 13 J. 463. 693
EVIDENCE.
(1) GENERALLY.
(2) DOCUMENTARY.
(3) ADMISSIONS AND DECLARATIONS.
(4) PAROL, TO CONTRADICT OR EXPLAIN WRIT-
TEN INSTRUMENT.
(1) GENERALLY.
Where witness is competent, his declaration or
admissions are inadmissible.
Woodward v. Paine, 1 5 J. 493, 1 1 7O
In justice court, subscribing witness not residing
in that or adjoining counties, proof of grantor's
handwriting is sufficient.
Cook v, Huston, 12 J. 188, 353
Deed produced on notice from opposite party,
prima facie duly executed.
Betts v. Badger, 12 J..223, 368
Fraud as evidence under plea of non est factum,
confined to fraud in execution of the instrument.
Dorr v. Mumell, 13 J. 430, 68O
Sealing of justice's certificate of former trial
inferred, on return to certiorari, where it recites,
" Witness my hand and seal."
M'Leanv. Hugarin, 13 J. 184, 581
Improper evidence may be read in equity, but is
not allowed at law.
Mann v. Mann, 14 J. 1, 749
Payment of less sum though received in full sat-
isfaction cannot be pleaded in payment : no evi-
dence thereof can be given under such plea.
Mechanics' Bank v. Hazard, 13 J. 353, 648
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
Payment without surrender conclusive against
Biibsequent indorsee with notice.
White v. KUMini, 11 J. 12s, 88
Evidence of urn*? is not admissible to vary the
general rules of law.
ThomiMtnn p. A»lii,,n. 14 J. 316. 88O
Hearsay is admissible evidence of death.
MlH«r r. Honeham, 15 J. 226, 1O71
In action of trespass, evidence of justification
•cannot be given under the general issue.
Drake, v. Barrumttre, 14 J. 166, *18
A showing of offer to |>erfonn contract to pay
for goods by labor, will defeat action to recover
trnck the original consideration.
1,1, • n 0. <».;./.,;. 13 J. 57, 329
Testimony of Interested witness not made com-
P<-r.-iit I >>• release given after examination.
Z>iij/ r. W'ii*»n, 14 J. 378, OO5
When* release is objected to on ground of infor-
mulity. and exaininatiiin process without object-
ion while another release is being made out, testi-
mony given is competent. Idem.
Kvidence of deceased witness on former suit,
admissible where same pointy afterwards arises
lietween the parties or privies in blood, estate, or
law.
Jack*>n P. Lawivm, 15 J. 530. 1187
Tenant for life and remainderman are privies in
«f»tate. Idem.
Where A. and 11. purchase land together, but
divide it lietween them, the fact that A joins in
deed of B's piece, which he has occupied and bar-
gained for exclusively, is not sufficient evidence of
tenancy in common to liar B's widow of dower in
whole of his part of land.
Dolf v. BONK. 15 J. 21, 996
Evidence of testimony of deceased witness on
former trial, admissible unaccompanied with postea,
if not objected to.
White v. KUMinu, 11 J. 128, 88
Where one enters under recovery in ejeytment,
the entry and possession of purchaser for valuable
consideration from him, affords strong prima facie
evidence of right.
Jack*on r. Richtmuer, 13 J. 367. 654
An exemplification of record and certificate that
will cannot be found, is sufficient evidence in eject-
ment.
Jackxnn v. ir/iWi. 14 J. 407, 918
In action of ej<*ctment grounded on forfeiture by
reason of disclaimer of holding under lease in
aefion to replevy a distress, evidence is admissi-
ble to show disclaimer was intended to refer only to
place where distress was taken.
Jack»m v. Roger*, 11 J. 33, 6O
(2) DOCUMENTARY.
Plaintiff's books of account, when proved honest
and fair, the entries being made by himself, are
admissible in his favor.
Vothuruh r. Thayer, 12 J. 461, 464
Joint note no evidence of partnership.
H'>i>ktn* v. Smith, 11 J. 161. 101
Deed of surveyor-general executed under act of
legislature primn facte evidence of title.
Jack»>n v. BWmap, 12 J. IM, 315
Deed 44 years old allowed in evidence on proof of
handwriting, and death of one of two subscribing
.In- A-xon P. Burton, 11 J. 64, 62
In action against agent for moneys alleged to be
due plaintiff, defendant may give in evidence parol
• n-iler from principal not to pay over.
Thnrne v. Peck. 13 J. 315. 634
Testimony of justice as to proceeding in certain
<i»u8e, inadmissible when? original papers can be
produced.
Dygert v. Coppernolt, 13 J . 210, 692
Parol evidence of proceedings in justice's court
iiiiiilinissible. record must be produced and may be
verified by Justice's testimony.
Pnattn v. Brown, 11 J. 160, 1O3
Settlement of collector's accounts at Treasury
-of U. 8. prima facie correct.
Hr,,r*t.r r. f ,VWo;i. 11 J. 390, 194
Whole of letters and papers ordered to be pro-
•duced as evidence- must be taken together.
Lawrence v. Ocean Inn. Co., 11 J. 241, 135
Certificate of jury finding encroachment on high-
v. .i\ .- rnnclllsh i- :i> I" thiit t':n-t.
BrDMM r. Mann, 13 J. 46U, 692
Appointment of State inspectors of corporations,
.and their report not evidence ol corporate exist-
ence. Idem.
Bill v. Fourth Western Turnp. Co., 14 J.
416. 922
JOHNS. KKP., 11, 12, 18, 14, 15.
Town register of marriages and births is evidence
of pedigree. Idem.
MUtar r. Boneham, 15 J. 226, 1O71
In action to recover back premium, register of
vessel inadmissible for plaintiff to show title in
others.
Sharp v. United Ins. Co., 14 J. 201, 832
Copy of register of vessel to be admitted as evi-
dence, must be authenticated by oath of witness
who compared it with original.
Coofitlge v. N. Y. Mr-email'* //we. Co., 14 J.
30H, 877
Promissory note payable to bearer, evidence
under count of indetntattuatmmptU,
Pierce v Crafttt, 12 J . flO. 813
Petition by executors and heirs to sell real estate
on account of deficiency of personal assets of
deceased is evidence to show insolvency of deceased
grantor.
Manhattan Co. r. (».«/.««/, 15 j. iK2. 1048
A land patent for military service is prima facie
evidence of such service.
Mirier r. Boneham, 15 .1. 22«, 1O71
Misspelling of name does not affect personal
identity. Idem.
Sentence of restitution of vessel conclusive us to
illegality of seizure.
Unlit r. (lel«tnn, 13 J. 141, 563
Partnership entries are admissible against both
parties.
\\ 'i !•/,/, r. Sherlmrne, 15 J. 400, 1 139
Receipt only prima facie evidence of payment.
Sherman v. ( >•<«/•;/, 11 J.70. 64
A receipt for bond and warrant is sufficient evi-
dence of their existence.
Doj/r. /.•<'. 14 J. 404. 916
Discharge, sufficient evidence of facts therein
contained new*-»ary to give jurisdiction.
Jc n/f* r. Stehhtn*. 11 J. 224, 1 28
The decree of restitution is conclusive that the
seizure was illegal.
Geltton r. Hoyt, 13 J. 561. 734
(3) ADMISSIONS AND DECLARATIONS.
Whole of admission by party must be taken
together.
HopMn* v. Smith, 11 J. 161, 1O1
Plaintiff's declaration of non-residence of sub-
scribing witness Is sufficient foundation for admit-
ting other evidence of execution of deed.
Cook v. Hiutnn, 12 J. 188, 353
Evidence of confessions and declarations, made
by debtor, of previous sales, inadmissible in action
against purchaser at execution sole.
Taylor r. Marshall, 14 J. 204, 834
Declarations claiming land are inadmissible as
evidence of title.
Brown r. -V Vey, 15 J. 234, 1 0 74
Confession of purchase, coupled with alleged
payment will not entitle plaintiff to recover.
Smith r. Junes, 15 J. 221), 1O72
Evidence of declarations of parties to title deeds
as to their loss, inadmissible.
Jackxon r. Crte, 11J. 437, 213
Parol exchange between parties through whom
defendant deduces title, inadmissible. Idem.
Declarations in erfivmix are inadmissible, except
in cases of homicide.
Wilwm v. Boerem, 15 J. 286, 1O94
Parol admissions and declarations as to boundaries
not sufficient to chanire possession.
Dunham D.StuynettMt, 11 J.otfR, 265
Confessions of party, when recognition of title.
Sec
Jackson v. BeUcnap, 12 J. 96, 315
Plaintiff's admission of lack of malice liars claim
for vindictive damages, and evidence of justifica-
tion inadmissible.
Hoyt r. fielnton, 13 J. 141, 5O3
Where parties acknowledge the import of an
agreement between themselves, on their failure to
produce it at trial jury may infer such import.
u' int in- u r. Sterling, 14 J. 215, 838
Evidence of existence of unregistered mortgage
must be clear and explicit, where presumption of
payment attempted to be rejM-lled by acknowledg-
ments of subsequent purchasers.
Jackson v. Wottd, 12 J. 242, 376
(4) PAROL, TO CONTRADICT OR EXPLAIN WRITTEN
INSTRUMENT.
Parol evidence admissible to show that the consid-
eration expressed in deed as having been paid, was
not actually paid.
Shephard r. Little, 14 J. 210, 836
1223
Xll
GENERAL INDEX.
In action on note by holder with notice, parol evi-
dence with actual consideration admissible.
Olmsted v. Stewart, 13 J. 238, 826
Parol evidence inadmissible to contradict justice's
certificate of proceeding before him.
M'Lean v. Hngarin, 13 J. 184, 581
Parol evidence inadmissible to contradict deed.
Jackson v. Croy, 12 J. 427, 450
Parol evidence inadmissible to contradict lease.
Jackson v. Foster, 12 J. 488. 475
Grant to A B where A C was grantee intended,
not such a latent ambiguity as will authorize admis-
sion of parol evidence.
Jackson v. Hart, 12 J. 77, 308
Where ancient patents ambiguous as to land
granted, acts of the parties, the government, and
adjoining owners are entitled to great weight in
locating grant.
• Jackson v. Wood, 13 J. 346, 646
Process cannot be proved by parol.
Foster v. Trull, 12 J. 456, 462
To entitle one to give parol evidence of contents
of will alleged to be destroyed, diligent search
must be shown.
Jackson v. Hasbrouck, 12 J. 192, 355
Commissioner's deed proved by parol without
pi oof of loss.
Jackson v. Wooteeu, 11 J. 446, 217
Due execution by commissioners presumed.
Idem.
In action on contract in writing, parol evidence
of contents, admissible only after due notice to
produce.
Rogers v. Van Hoesen, 12 J. 221, 367
If in plaintiff's possession he is bound to produce
it. Mem.
Parol evidence of contents of notice to indorser
of demand and non-payment is admissible.
Johnson v. HaigM, 13 J. 470, 696
On indictment for stealing notes, &c., parol evi-
dence of contents admissible.
People v. Holbrook, 13 J. 90, 543
After notice to produce deed, lost er in possession
of adverse party, it may be proved by parol.
Jackson v W-ooZsej/, 11 J. 446, 217
One producing as evidence, in his favor, account
made by opposite party, may disprove parts thereof
which in first instance would be taken against him.
Waldron v. Sherlturne, 15 J. 409, 1139
EXCISE.
A license to keep a tavern is a personal trust, and
not assignable to another.
Alger v. Weston. 14 J. 231, 844
But one penalty can be recovered under act to
lay duty on strong liquors, &c., though several
offenses may be laid in declaration.
Tiffany v. Driggs, 13 J. 253, 6O9
Recovery will be bar to all actions for offenses
theretofore committed. Idem.
Not necessary to prove precise day of committing
offense. Idem.
Parol license to sell liquors insufficient.
Lawrence v. Gracy, 11 J. 179, 1O9
EXECUTION.
That property levied on which was a ponderous
article remained in debtors hands, is not proof of
fraud as to junior execution.
Farrington v. Sinclair, 15 J. 428, 1146
Where they are ordinary goods, it is prima facie
evidence of fraud.
Farrington v. Caswcll, 15 J. 430, 1147
Evidence of permission given to debtor to use
other property levied on at same time, admissible
to show fraud.
Farrington v. Sinclair, 15 J. 428, 1 146
And such latter execution in such case is con-
structively, if not actually, fraudulent.
Same v. Same, 15 J. 429, 1146
Ca. xa. issued before fi. fa. where there is no
special bail, only voidable, and where defendant
discharged on plain tiff's suggestion, sheriff entitled
to full poundage.
Scott v. Shaw, 13 J. 378, 659
The undivided part of a tenant in common may be
sold on execution
Merxereau c. Norton, 15 J. 179, 1054
After 27 years the regularity of sale under execu-
tion cannot be questioned.
Jack»m i\ De Lancy, 13 J. 536, 724
Neither can it be questioned at any time in collat-
eral action. Idem.
Conveyance, with creditor's consent, of land
charged in execution is valid under Statute.
Velie v. Myers, 14 J. 162, 816
1224
Necessary cooking utensils of a householder are
exempt from execution and distress for rent.
Fan Sickler v. Jacol>s, 14 J. 434, 93O-
But party claiming exemption must show affima-
tively that they were necessary. Idem.
An inquisition by sheriff is not conclusive of right
of property, but may excuse failure to sell.
Van Cleef v. Fleet, 15 J. 147, 1042
Written indemnity of plaintiff makes it sheriff's
duty to sell. Idem.
Title of hona fide purchaser under execution
sale not defeated for irregularity in judgment or
execution.
Jackson v. Rosevelt, 13 J. 97, 546
Where property left as security for judgment and
purchased by trustees on execution sale thereunder,
judgment debtor, under subsequent promise by
purchaser to pay difference between price on execu-
tion sale and future sale, may recover in assumpxit
that amount.
Delamater v. Rider, 11 J. 533, 25O
During imprisonment of judgment debtor, the
lien of execution is suspended, and a sale of debt-
or's property on execution under junior judgment,
during the imprisonment, is good.
Jackson v. Benedict, 13 J. 533, 722
Validity of title under execution sale cannot be
questioned in collateral action.
Jackson v. MiU-s, 13 J. 463, 693
Where judgments entered on same day, neither
has first preference : but priority is given to execu-
tion first issued.
Waterman v. Hasken, 11 J. 228, 1 20
After first sufficient levy, second cannot be made.
Hoyt v. Hudson, 12 J. 207, 361
Where goods levied on, though insufficient, are
left with third person giving receipt therefor,
second levy cannot be made. Idem.
Money may be levied on under execution.
Holmes v. Nunca»ter, 12 J. 395, 438
Handy v. Dobbin, 12 J. 220, 366
Choses in action exempt. Idem.
Proceeds of levy made after return day, must be
applied on junior execution.
Slingerland v. Swart, 13 J. 255, 61O
Plaintiff in junior execution, having obtained an
order to that effect, can maintain assumpsit against
sheriff and recover interest from time of demand.
Idem-
Justice may renew execution without written
return by indorsing thereon "this execution re-
newed."
Wickham v. Miller, 12 J. 320, 4O7
Execution cannot be levied, even by express
agreement, for greater amount than judgment calls
for with interest and costs.
Fan Wyck v, Monlrose, 12 J. a50, 419
Property in goods remains in judgment debtor
until execution issued.
Hotchkiss v. M* Vickar, 12 J. 403, 44O
Sheriff cannot maintain trover for their tortious
taking before actual levy made. Idem.
In action on bond for jail liberties, judgment is
for whole penalty, butexecution only fordebt,with
interest and costs.
Spraguev. Seymmir, 15 J. 474, 1163
Joint note of sheriff and defendant to satisfy judg-
ment, vitiates execution, notwithstanding defend-
ant's agreement that sheriff should retain lien.
Sherman v. Bonce, 15 J. 443, 1151
Party to second levy may show fraud in first levy
to defeat action of trover by sheriff, or by first
creditor.
Farrington v. Sinclair, 15 J. 428, 1146
Same v. Caswell, 15 J. 430, 1147
Articles of property sold under execution should
be pointed out to bidder and sold separately.
Sheldon v. Soper, 14 J. a52, 894
If not so designated, purchaser acquires no title.
Idem.
Where goods seized and left in possession of debt-
or, seizure void as against subsequent execution.
Storm v. Woods, 11 J.110, 8O
Sale under execution of goods fraudulently
obtained, vests no title in purchaser.
Fan Cleef v Fleet, 15 J. 147, 1 04 2
In stay of proceedings on execution, no costs will
be allowed to either party.
Smith v. Paige, 15 J. 395, 1133
Stay of proceedings under execution, when
granted under peculiar circumstances. Idem.
Delay in selling property under execution does-
not invalidate sale, as regards a subsequent execu-
tion.
Lindendoll v. Doe, 14 J. 222, 84 1
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
ziii
dale, under execution, valid as to all property
present at sale. Idem.
Purchaser on execution sale must produce execu-
tion, sheriff's deed and exemplification of judg-
ment.
Jackson v. Haahrouck, 12 J. 213, 364
EXECUTORS AND ADMINISTRATORS.
Each only liable for assets which have orae to
bis own hands.
/>.«^w» v Satterlee, 11J. 16, 43
Outstanding' debts due the testator are not
regarded M assets in the hands of executor, unless
there has been gross negligence or fraudulent delay
In collecting.
RuWfteM r. Sfirrraan, U J. 446, 935
Judgment by default or confession estops an exec-
utor from denying assets to amount of Judgment,
but is no estoppel in action by another creditor.
/./. in.
The first of several creditors bringing suit against
the executors of an estate, has priority. Idem.
Pie* by executors of no goods of testator to be
administered on exhibition of bill, is good in form
and substance.
F<nrler v. Sharp, 15 J. 323, 1 1O7
Exhibition of bill is tantamount without demurrer
to commencement of suit. Idem.
Administrator who gives order to testator's cred-
itor on debt due intestate, when- allowed amount
thereof in accounting, is personally liable thereon
for money had and received.
Mother r. Huhhard, 13 J. 510, 713
Where two creditors bring suit. Judgment may be
confessed as to one and be pleaded in bar to the
other suit.
RiiWlr* «'• Sherman, 14 J. 446, 935
But can be taken advantage of only by plead-
ing it. hi' in.
If Judgment on demurrer be given against execu-
tor or administrator plaintiff, he pays costs.
SaUtburu'* Kx'rn r. Philip's Heir*, 12 J. 289, 394
Executors and administrators unnecessarily suing
in a representative capacity, liable for costs.
ntUm'i Adm'nv. Wmamt,11 J. 403, 109
Truth or falsity of plea of plene admiHtetravit,
determined by referent* to inventory.
Tappeit v Kain, 12 J. 130, 325
Where whole of real estate ordered sold, proceeds
must be brought in court of probates and dtstribut-
ed part pnxsit. Idem.
Non-payment of Judgment against administrator
may be assigned us breach of surety's bond.
People r. Dunlap, 13 J. 437, 682
Surety on administrator's bond liable for mal-
a.lmiiiiHtration. Idem.
Power, in will, to executors, to sell land, not coup
led with interest, is a naked power, and all must Join
in deed, and on death of one does not survive to the
others.
/>Vun/ciin v. Q*0ood, 14 J. 527, 968
Where power per se is naked power but other parts
of will require sale, the power survives. Idem.
Where executors under will with power to sell
real estatate are also made devisees, it is a power
coupled with an interest, and a major part may exe-
i-uti- it.
./.i. /;.«. U v. Burti*, 14 J . 391, 91 1
Subsequent conveyance to one of the executors,
vests title in him alone, and admissions that he held
as tenant in common with others, inadmissible.
Idem.
IMPRISONMENT.
See ACTION, ARREST.
FENCES.
One bound to keep line fence In repair cannot
maintain trespass for the. entry of his neighbor's
cattle through defect therein.
Shrpherit r. Hee*. 12 J. 433, 453
The cattle laws of a town have no application to
•uch a case. Idem.
FINE AND RECOVERY.
A fine and five years' non-claim gives good title
against all persons not under any legal disability.
Jitrhium V. Smith, 13 J. 420, 678
Fine also is sufficient to support ejectment against
a person entering during the five years without
title. Idem.
FISHERY.
Clearing out fishing place in river does not gvean
exclusive right ol fishery.
n'e«tfaU r. VanAiAer, 12 J. 425, 46O
JOHNS. Ui.iv. 11, 12, 18, 14, 15.
A public fishery does not give fishermen a right
to draw nets upon the shore. Idem.
FORCIBLE ENTRY AND DETAINER.
An indictment for forcible entry and detainer
must uver seisin and possession.
People r .V. /.<•.». 13 J. 340, 643
On the traverse, allegations of estate must be
proved by relator. Idem.
Defendant cannot Justify by showing title In him-
•elf. I'l'in.
But may controvert facts showing title In relator.
Idem.
One entering by force, though having legal title,
liable to indictment for. Idem.
On indictment for peaceable possession sufficient
to entitle complainant to recover.
/'...,./. r /.. MII.II-M. U J. 504, 239
Title cannot be set up in bar. Idem.
FORGERY.
An order to come within the act to prevent
forgery, must be " for the payment of money or the
delivery of goods."
People v. Farrinoton, 14 J. 348, 893
FORMER ADJUDICATION.
Matter offered as defense and rejected in a former
suit, cannot be made the subject of a new suit.
Grant r. Button, 14 J. 377. 9O5
Arrest of judgment after conviction on indict-
ment for felony, no bar to second indictment for
same offense.
People r. CWbOTMB, 13 J. 351, 648
Mistake in judgment cannot be corrected by new
action for amount omitted.
Plainer r. Be«t, 11 J. 530. 249
One entering into possession under defendant dur-
ing pendency of ejectment suit, is liable for rne#n«
profits and cannot set up title in himself in bar.
Jartetm v. Stone, 13 J. 447, 687
Where land recovered by default in ejectment, no
defense can be set up inaction for iiirime profits.
Langendyck v. Burhnns, 11 J. 461, 223
A plea in bar of a former decree must show that
the same point was then in issue.
l.'i'-n v. T'llliiHiil.i,, 14 J. 501, 958
And former decree to be a bar must be pleaded.
Idem.
A Judgment rendered by a court without Juris-
diction is a nulity, and is no bar to another suit by
same plaintiff.
Blin v. Campbell, 14 J. 432. 929
FRANCHISE.
Banking privileges are franchises, under control
of legislation.
People r. Utlca Inn. Co.. 15 J. 358. 1119
In action for usurping franchises, it lies with
defendant to show warrant for using it. Idem.
FORECLOSURE.
See MORTGAGE.
FRAUD.
See FRAUDULENT CONVEYANCE, SALE, VENDOR
AND VENDEE.
Where vendee at execution sale leaves goods in
possession of debtor, prima facie evidence of fraud
as against subsequent execution.
Farringtim r. CVwireU, 15 J. 430, 1147
Where articles levied on were ponderous articles,
otherwise.
'FarringtHn v. Sinclair, 15 J. 428, 1 14e
Evidence of permission given to debtor to use
other property levied on at same time, admissible to
show fraud. Idem.
And such latter execution in such case is con-
structively, if not actually, fraudulent.
S.i in".' v. Same, 15 J. 42!). 1 1 46
Trover lies for goods obtained by fraud by a
creditor from his debtor and applied on the debt,
H'ooilirorf/i r Jvbwiun, 15 J. 186, 1O56
Question of fraud is for Jury. Idem.
Purchase made with view to defeat lien of judg-
ment, void.
Jnv/./iani r. Miller. 12 J. 320, 4O7
A note of third person taken by vendor on false
representations of vendee as to solvency of maker,
is no satisfaction.
Pierce v. Drake, 15 J. 475. 1163
A fraud indictable at common law, must be such
as would affect the public and be not easily guarded
against.
People c. Miller, 14 J. 371, Idem, »ov;
GENERAL INDEX.
One obtaining (roods under pretense of employ-
ment by another, is indictable.
People v. Johnson, 12 J. 393, 395
Damages recoverable for false representations, in
respect to privileges annexed to land sold.
Monell r. Golden, 13 J. 395, 666
Trespass will lie for false representations result-
Ing in seizure and conversion of plaintiffs property
to government uses.
Hastings v. Wood, 13 J. 483, 7O1
FRAUDULENT CONVEYANCE.
A purchaser at sheriff's sale under judgment for
creditor, can maintain bill to set aside a previous
fraudulent conveyance by debtor.
Sands v. HiWreth, 14 J. 493, 955
Conveyance by insolvent debtor to his brother for
inadequate price, which was kept secret, vendor
remaining in possession and exercising acts of
ownership. Held fraudulent and void. Idem.
Where property is conveyed without considera-
tion to quality one as voter, a reconveyance during
pendency of action for tort, is not void.
Jackson, d. Van Allen, v. Ham, 15 J. 260, 1O84
Conveyance to one with notice, made between
rendering and docketing of judgment is void.
Jackson o. Term, 13 J. 471, 697
Conveyance by 9ne who is at the time insolvent is
void as to his creditors.
Manhattan Co. v. Osgood, 15 J. 162, 1048
And such land is assets in hands of heirs or devisees
of grantor. Idem.
FREIGHT.
See SHIPPING.
GIFT.
Gift of slave by mother to son, who reside to-
g-ether, was not perfected for want of delivery and
change of possession.
Cook v. Husted, 13 J. 188, 353
GUARANTY.
See STATUTE OF FRAUDS, BILLS, NOTES AND
CHECKS.
GUARDIAN AND WARD.
A guardian signing the indenture is not liable to
master for a breach by the apprentice.
Ackley v. Hoskins, 14 J. 374, 903
HABEAS CORPUS.
Special bail required of defendant, on removal of
•cause by habeas corpus from Common Pleas.
Caldwell v. Blanc-hard, 14 J. 331, 886
One imprisoned under execution in suit founded
on judgment from which he was once discharged,
cannot be legally discharged under habeas corpus
act, and if discharged, such discharge is no defense
In action against sheriff for escape.
Cable v. Cooper, 15 J. 153, 1O44
Where habeas corpus directed to bring up infant,
•court is bound to set infant free from improper
restraint.
In re Waldon, 13 J. 418, 675
But it is in discretion of court as to whom it shall
be delivered. In this case where infant was in
.grandfather's hands court refused to direct it to be
delivered to father. Idem.
On removal by habeas corpus from Common Pleas
to Supreme Court, defendant must put in bail.
Bell v. Hall, 12 J. 153, 338
HEIR.
Where issue found against heir who pleads non ed-
factum to bond of ancestor, not necessarily liable
de l>onis proprffc.
Jackson v. Rosevelt, 13 J. 97, 546
Assignee of heir's share is not an heir or devisee.
Livingston's Ex'rs v. Tremper,
11 J. 101, 77
HIGHWAYS.
Fee to highway laid out over private property is
in original owner ; public has only an easement
Jackson v. Hathaway, 15 J. 447, 1153
Whitbeck v. Cook, 15 J. 483, 1167
Conveyance of land on both sides of highway,
•does not include land thus occupied. Idem.
New road over contiguous land does not vest old
road in owner of such land. Idem.
In case of an incroachment, when it is not denied,
all commissioners must meet in regard to its re-
122G
raoval, and majority thereof may act, but where it
is denied it is to be tried by jury, and one commis-
sioner may act.
Bronson v, Mann, 13 J. 460, 693
HUSBAND AND WIFE.
Husband not liable for necessaries of wife who
has eloped.
MCutchen v. M'Gahay, 11 J. 281, 151
If wife leave or elope but afterwards returns,
husbands liability for necessaries revives. Idem.
M'Gahay v. Williams, 12 J. 393. 396
Application by third person for wife's return and
refusal on grounds other than authority of person
applying, tantamount to personal application by
wife. Idem.
Husband liable for necessaries furnished wife liv-
ing separate, suitable to his condition in life.
Lockwood v. Thomas, 13 J. 348, 3 78
Wife not liable on covenant in joint deed with
husband.
Whitbeck v. Cook, 15 J. 483, 1167
Wife must be joined with husband for debts con-
tracted dum sola.
Ga)/e v. Reed, 15 J . 403, 1137
Wife must be joined with husband in action in
regard to real estate arising before marriage.
Decker v. Livingston, 15 J. 479, 1165
If arising after marriage, in action by husbaud
alone, that fact must be affirmatively shown. Idem.
IMPRISONMENT OF DEBTORS.
Debtor on judgment for costs not to be impris-
oned more than thirty days.
Cui/ler v. Rust, 12 J. 372, 438
INDIANS.
Conveyance by Indian of land inherited from
State grantee and held in individual capacity is
valid.
Jackson v. Brown, 15 J. 364, 1O85
Jackson v. Sharp, 14 J. 472 946
Approbation of void deed by Surveyor-General
does not preclude subsequent assent to a valid one
of same land.
Jackson v. Brown, 15 J. 264, 1 085
Reasons for indorsement of deed by Surveyor-
General need not be given. Idem.
Brothertown, Oneida, and Stock bridge Indians
can sue and be sued only by their attorney ap-
pointed under Statute.
Jackson v. Reynolds, 14 J. 335, 888
Oneida Indians are protected by Statute from all
suits on contracts, without reference to their resi-
dence.
Dana v. Dana, 14 J. 181, 824
INFANCY.
An infant must defend by his guardian and not
by an attorney.
Arnold v. Sandford, 14 J. 417, 922
Infancy at the commencement of suit is suf-
ficient as assignment of error. Idem .
Proceeding to trial after arrival at full age can-
not be taken as a waiver of infancy unless it appear
on record. Idem.
Conveyance of land by infant may be avoided by
a subsequent conveyance after coming of age.
Jackson v. Burchin, 14 J. 124, 799
But must be by instrument of equal or greater
solemnity. Idem.
Notice to purchaser of the prior conveyance will
not invalidate deed. Idem.
Admission after arrival at full age of conveyance
made during infancy is not an affirmance, idem.
Deed given by infant may be avoided without
entry in case of uncultivated lands.
Jackson v. Carpenter, 11 J. 539. 253
Under act to settle disputes to titles to land in
Onondaga County, infants have three years after
coming of age in which to file dissent.
Jackson v. Leuris, 13 J. 504, 71O
Infancy no defense to desertion by volunteer in-
fant.
Wilbur v. Grace, 12 J. 68, 3O5
INNKEEPERS.
Innkeepers are liable for guests' goods lost by
theft.
ante v. Wiggins, 14 J . 175, 821
INQUEST.
Affidavit of merits made before filing of declara-
tion will not prevent inquest.
Geib v. /cord, 11 J. 82, 69
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
The defendant in inquest, to avoid costs on de-
fault, must ser-. e copy of default on plaintiff's at-
torney.
Baker r. A*hU», 15 J. 538. H86
INSOLVENCY.
See ASSIGNMENT FOB BENEFIT or CREDITORS.
Where all creditors have notice, officer Justified
in ordering assignment on consent of two thirds of
those appearing.
In re Bradttrert, 13 J. 385, «'• -'
Practice under assignment under 9th section of
Insolvent Act (I N. K. L.. 484). Idem.
A first Judge of Common Pleas has no Jurtsdic-
tion under 9th section of Act for Kelief in case of
Insolvency.
V /; mi/, matter of, 14 J. 221, 84O
Affidavit of petitioning creditor of insolvent must
state grown 1 of indebtedness.
Cook, mttfter of, 15 J . 183. 1 055
Statute Hiving payment of costs precedence, ap-
plies only to those in actions by or against assignee.
H"'rt<i,i r. Hlck», K J. 341, 416
Note given by debtor to creditor to withdraw op-
pittition to debtor's discharge in insolvency is void.
Wiggin r. Bu*h. 12 J. 308. 4O1
Where one of three assignees appointed under
Insolvent Act of 1811 refuses to act, others may pro-
ceed without joining him.
Van Valkenhurgh r. JBmendorf, 13 J. 314. 633
Order for assignment of insolvent's estate vacated
by officer making it, for fraud of petitioning credit-
ors, or surprise on opposing creditors.
In rt BnuM reft, 13 J . 385. 662
Discharge includes l>oth joint and several debts.
WM*»n p. Oomports. II J. ML ' ' "•
Discharge sufficient evidence of facts therein con-
tained necessary to give jurisdiction.
Jenkx r. Stelthin*, 11 J. 224, 128
Costs on judgment of nonsuit rendered after dis- !
charge as insolvent, are not barred by the discharge. ;
Steltbiiui r. Will*m, 14 J. 403, 916 i
A discharge in insolvency no bar to trover.
Kennedy r. Strong. 14 J. 128, 8O1
Insolvent iudorser not protected by insolvent dis-
charge in bankruptcy before maturity, even though
note (riven as security for debt barred by discharge.
Mtch't A Fanner* B'k v. Capron,
15 J. 467, 1161
Foreign discharge in bankruptcy does not release
insolvent of debts contracted in this country.
Grave* r. DelapUilm. 14 J. 146, 8O9
Discharge in insolvency operates according to the
lex loci upon contracts where made or to be exe-
cuted.
Hicks r. Brown. 12 J. 142. 334
Assignor's debtor may set off to its full amount a
claim due from assignor.
.Murray v. Riggs, 15 J. 571, 12OO
INSPECTION LAWS.
Inspection laws do not apply to flour transported
through this state to another .-tat.-.
Handcock R.flMvga*, 13 J.331. 64O
INTEREST.
Interest on debt is not recoverable from constable
In action for not returning tin execution.
Thonuvi v. Weed. 14 J. 255. 855
Interest on judgment affirmed in U. 3. Supreme
Court i-allowi-d only to time of affirmance.
/ / • /' o. GcMon. 15 J. 221, 1OG9
Interest due on balance of account from time it
is liquidated.
Walden r. Sherhurnc. 15 J. 409, 11 39
Kane v. Smith, 12 J. 156, 339
Interest on judgment in action for a tort not al-
lowed
Gelxton v. Hoyt, 13 J. 561. 734
JOINDER OF COUNTS.
Count for land sold and conveyed cannot be
joined with common money counts-
.Y.-/J.' , U v. Swan, 13 J . 483, 70 1
Common money counts may be joined in one
count and with them one for goods sold in like
form. Idem.
Cause of action arising during lifetime of testator
cannot be Joined with one arising after his death.
Myer v. Cole. 12 J. 349. 419
JOHNS. RKP., 11, 12, 18. 14. 15.
JUDGMENT.
The clerk, on assessing damages, may take evi-
dence of loss of original paper on which action was
brought.
A nan, U J. 347. 893
Judgment on jreneral verdict arrested, where
counts In declaration were both good and bad, un-
less it can be properly amended by judge's note.
Hiijlil-iwl Tp'ke Co. v. ATAVtiN, 11 J. 9H, 76
Judgment by consent entered up jointly with
security to obtain delay in issuing execution, is
valid.
Lotet v. Green, 12 J. 204, 36O
Where count contains both good and bad matter,
court will intend after verdict that damages were
given only for actionable part.
Borcfen P. Fitch. 15 J. 121, 1O33
Interest on judgment in action for a tort not
allowed.
Qelnton v. //•"/'. 13 J. Ml, 734
Where decree entered by consent there can be no
rehearing,
M'.mll P. Lawrence, 12 J. 521. 488
A judgment of court obtained on false sugges-
tions. Is void.
Borden v. Fitch, 15 J. 121, 1O33
Purchase made with view to defeat Hen of judg-
ment, void.
Wickham r. MiUer. 12 J. 330, 4O7
Where judgment entire, it must be affirmed or
reversed in toto.
Richartt* v. Walton, 12 J. 434, 453
A mold r. Sanfonl, 14 J . 417 , 92*
Judgment binds only parties or privies.
CMbtoli r. Hunt, 13 J. 581, 734
Judgment may be affirmed and reversed in part,
but no costs allowed.
Anonumoux, 12 J. 340, 415
Foreign Judgment.— Judgment of another state
only prima facie evidence of debt.
Parting v. Birds Ex'n, 13 J. 192, 584
When given without jurisdiction of person or
cause, void. Idem.
Borden v. Fitch, 15 J. 121, 1O33
Such judgment no bar to another suit by same
plaintiff.
Win r. Campbell, 14 J. 432, 829
Where defendant never appeared or never had
notice, void.
Borden r. Fitch, 15 J. 121. 1O33
Statute of Limitations may be pleaded in bar to
judgment recovered in foreign states which is con-
sidered as simple contract.
BUwell r. Hatt. 1 1 J . 168, » O4
JURISDICTION.
State courts have jurisdiction of torts committed
on the high seas though both parties are foreigners.
Gardner r. Thomas, 14 J. 134, 8O4
Objection to jurisdiction on plea of contra paeim
is mere matter of form, and not traversable. Idem.
The exercise of jurisdiction rests in the sound dis-
cretion of the court, in such cases. Idem.
State courts have Jurisdiction in action on bond
788
given for duties to the United States.
United State* v. Dodgt, 14 J. 95,
A court of admiralty in England may adjudicate
upon a prize of war held in a captured port of the
enemy-
Page r. Lennx, 15 J. 172, 1O5«
It may also adjudicate upon a prize carried into
the territory of an ally. Idem.
Actions of malicious prosecution not within juris-
diction of assistant justices' court of N. Y. City.
Edward* v. Klhert, 12 J. 466, 466
Mayor's -Court of Albany no jurisdiction under
Act for Relief of Imprisoned Debtors.
WElroy v. Mancili*, 13 J. 121. 555
Courts cannot recognize a revolted colony as an
Independent state, that i» for the government.
GeMon r. Hoj/f. 13 J. 561 , 734
Courts must decide upon the justice and law of
the case, and not merely upon points raised by
counsel.
Luon r. TaUmadgc . 14 J. 501, 958
When- neither subject matter nor person are
within j ii risdicti< »n of court martial, proceedings are
void, and all concerned therein arc trespassers.
Smith r. Shaw, 12 J. 257. 382
Rut where subject matter alone is within juris-
diction, officer excused unless want of jurisdiction
of person appears on the process. Idem.
One imprisoned under the Fifty Dollar Act may
be discharged under the Twenty-five Dollar Act
after thirty days confinement.
Kt, mtUterof, 15J.3V7, 1134
1227
XVI
GENERAL INDEX.
A court of special sessions has jurisdiction over
offenses below the degree of grand larceny.
Peoife v. Miller, 14 J. 371, 9O2
In record of conviction, place of commission of
offense must be stated. Idem.
JUSTICE OF THE PEACE.
See JUSTICE'S COURTS.
Justice liable as trespasser who issues attachment
without legal evidence of debtor's absence or con-
cealment.
Voxtmrghv. Welch, 11 J. 175, 1O7
Objection to justice for interest not tenable on
ground that half of penalty goes to poor fund of
his town.
Corwein v. flames, 11 J. 76, 67
Justice of peace, who in fact keeps tavern at time
of trial, is disqualified.
Clayton v. PeeDun, 13 J. 218, 595
A justice is liable for acts in excess of his juris-
diction.
Woodard v. Paine, 15 J. 493, 11 7O
And when question fairly submitted to the jury,
verdict not set aside for excessive damages. Idem.
A justice is not responsible for the taking by con-
stable of goods exempted in attachment issued
by him.
Collins v. Ferris, 14 J. 246, 851
Action against for false return, sufficiency of alle-
gations, see
Pangburn v. Ramsey. 11 J. 141,
JUSTICES' COURTS.
See Certiorari, JUSTICES OF THE PEACE.
(1) GENERALLY.
(2) TRIAL.
(3) ADJOURNMENT.
(4) DISCONTINUANCE.
(5) JUDGMENT.
(6) APPEAL.
(1) GENERALLY.
Attachment under statute against absent and
absconding debtor, does not apply to occasional
travel.
Dudley v. Staples, 15 J. 196. 1 06O
A copy of attachment must be served at dwelling-
house or last place of abode. Idem.
A plea in abatement in a justice's court, need not
be verified by affidavit.
Gilbert v. Vanderpool, 15 J. 242, 1O77
When plaintiff to prove commencement of suit
in action on recognizance, and admissibility of evi-
dence to show collusion, see
Brown v. Van Duzen, 11 J. 472, 227
Warrant by justice at suit of non-resident, must
be supported by oath.
Money v. Tobias, 12 J. 422, 448
In action in Justice's Court for trespass to land,
plea of title too late after general issue pleaded.
Quimby v. Hart, 15 J. 304, 1 1OO
Variance between process and declaration waived
upon joining issue upon the merits.
Bloodgood v. Overseers of Jamaica, 12 J.
285, , 393
Warrant may be issued on default on return day,
where^ummons served by copy.
Reed v. GiUet,12 J, 296, ' 397
Venire must be executed by constable of town in
which trial had.
L<niw v. Davis, 13 J. 227, 599
Priority of execution depends upon actual levy.
Wylie v. Hyde, 13 J. 249, 6O7
Advertisement of sale sufficient if made within
20 days after receipt of execution, and sale in time
if made before return of writ. Idem. •
Plea alone to jurisdiction on ground of amount
in controversy waives set off.
Sellick v. Fox, 12 J. 205. 361
Juror in justice's court must be freeholder of the
town.
Streeter v. Hearsey, 11 J. 168, 105
Security by non-resident plaintiff in justice's
court may be in shape of money deposited with
justice.
TF7i.ee7oc7<; v. Brinckerhoff, 13 J. 481, 70O
A retaking within the thirty days originally
allowed for an arrest, will not excuse the escape.
Pulver v. Wlntyre, 13 J. 503, 71O
One imprisoned under $50 Act, may be discharged
under $25 Act after 30 days confinement.
Harwood , Matter of, 15 J. 397, 1 1 34
After default on return day, in justice's court,
defendant is only entitled on adjourned day, to give
evidence in mitigation.
Snell v. Louckn, 11 J. 69, 64
1228
In covenant, defendant entitled to oyer before he-
can be called on to plead.
Niven v. Spickerman, 12 J. 401, 44O
A declaration in asxumpsit may be demurred to,
for not stating any time nor averring a request.
Timmerman v. Morrison, 14 J. 369, 9O1
An appearance to object to the sufficiency of a
return to process, is not a waiver of its irregu-
larity.
Wheeler v. Lanipman, 14 J. 481. 949
A person with family exempt from imprisonment
on justices execution, though resident of different
county.
Sp
639
Ipafford v. Griffen, 13 J. 328,
(2) TRIAL.
Defendant may plead any time after return day,
if he appear before actual entry upon trial on mer-
its of cause.
Sweet v. Coon, 15 J. 86, 102O
Where partv appears by attorney in justice's
court, who is called on to produce his power, ite
execution must be proved.
Timmerman v. Morrison, 14 J. 369, 9O1
Justice on his own motion has no right to chal-
lenge jurors.
Cross ». Moulton, 15 J. 469, 1161
Witness may be privately re-examined by jury
after retiring, by consent of parties.
Bruwn v. Cowell, 12 J. 384, 433
Plaintiff may be nonsuited.
Wood-in v . Hoofut, 12 J. 298, 398
Plaintiff may elect to take nonsuit at any time
before flnal submission for judgment of court.
Hess v. Beekmati, 11 J. 457, 221
Justice cannot deliberate privately with jury
except upon express assent of parties.
Taylor v. Betsford, 13 J. 487, 7O3
(3) ADJOURNMENT.
Due diligence in securing material witness, essen-
tial to second adjournment.
Farrington v. Payne, 15 J. 432, 1147
In suit by warrant, security for appearance enti-
tles defendant to adjournment.
Cross v. Moulton, 15 J. 469, 1161
Where trial day agreed on, second adjournment
may be had on sufficient cause shown.
Annin v. Chase, 13 J. 462, 693
Second adjournment to procure witnesses refused,
where no sufficient excuse shown. -
St. John v. Benedict, 12 J. 418, 447
Admission by plaintiff of matters sought to be
proved by absent witness, precludes adjournment
for defendant to secure such witness.
Brill v. Lord, 14 J. 341, 89O
Adjournment of justice's court by consent of
parties, precludes a second adjournment at plaint-
iff's request.
Payne v. Wheeler, 15 J. 492, 1169
Defendant having given security, and showing
absence of material witness and due diligence,
entitled to second adjournment.
Beekman v. Wright, 11 J. 442, 215
Admission of affidavit of third person to obtain
second adjournment on account of absence of
material witness, is in discretion of justice.
Killmer v. Crary, 13 J. 228, 599
(4) DISCONTINUANCE.
Where there is delay in appearance of an hour
and 20 minutes by justice and one party, the other
cannot insist upon a discontinuance, where they
appear before he leaves court room.
Baldwin v. Carter, 15 J. 496, 1171
S. P. Myer v. Fisher, 15 J. 504, 1174
Suspension of trial by justice for twenty hours
in order to enable party to produce further proof,
held to operate as a discontinuance.
Green v. Angel, 13 J. 469. 696
Where cause is delayed by defendant's consent,
his voluntary absence thereafter will not amount
to discontinuance.
Myer v Fii<her, 15 J. 504, 1 1 74
Delay of trial through justice's engagement in
another, will not work discontinuance.
Chamberlain v. Lovet, 12 J. 217, 365
Delay for two hours in opening court, amounts
to discontinuance.
M" Cart/i?/ v. M'Pherson , 11 J . 407, 2OO
Delay of about an hour by justice, who is
informed that plaintiff is near at hand, will not
work a discontinuance.
Wilde v. Dunn, 11 J. 459, 228
(5) JUDGMENT.
After death of justice proved, judgment recov-
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
xvii
«?red before him may be proved by bis minutes,
with proof to verify them.
toililiciH v, Proutu, 13 J. 430, 679
Record of lodgment bar to action on subject mat-
ter of set-otf , ouce adjudicated upon, though im-
properly admitted in such action.
ATLean r. Huoarin, 13 J. 1H4. 581
A Judgment for plaintiff in justice's court, should
not include costs voluntarily incurred by defend-
ant in his defense.
Timinermnn r. .Vorrteon, 14 J. 360, OO1
A claim of exemption from imprisonment after
judgment has been rendered, is too late.
Ixyear r. .VeHfe. 14 J. :»C', 9X>7
A Justice is not authorized to give Judgment in a
question of forgery on a note, on his own inspection
of the note.
\\~hetlfr r. Lampman, 14 J. 481, 940
In Judgment for one party, costs of the other
i»arty cannot be included.
H'lUiarn r. Sherman, 15 J. 195, 1O59
Confession of judgment in Justice's court, must
»te by defendant, personally or his attorney.
H,.,ni<mlnn r. ThrtKip. 15 J. 478, 1164
When- damages proved greater than $25, but
judgment limited to that sum, it is regular.
IWnain r. Shelop, 12 J. 435, 453
Judgment confessed after discontinuance on
defendant's default, by one who had authority to
appear and confess on return day, is void.
Hui>ha>d r. Spencer. 15 J. 344, 1O78
Judgment cannot be rendered on special verdict
in Justice's Court.
H'ylie P. Hyde. 13 J, 249, 6O7
Confession of judgment is waiver of irregularity.
HiU r. Dtiwner, 11 J. 4«1, 222
In judgment for plaintiff, for costs, .defendant's
•«dlto for subixjcnas cannot be included.
0n>NM>n r. Mann. 13 J. 488. 692
In debt on justice's judgment, record of judg-
ment proved by testimony of justice not on oath,
without objection, sufficient.
Reed v. GUM, 12 J. 296, 397
(6) APPEALS.
Judgment not reversed because of opinion
••xpn-ssed before trial.
,U.-/*.ire/l r. Van Tinuen, 12 J. 358. 428
Where defendant mislead by Justice who says
cause is discontinued, judgment entered thereafter
will be reversed.
Tj/Ur r. Oliiej/. 12 J. 378, 431
In action by warrant in trespass where only one
of defendants appears, judgment rendered thereon
against both, reversed in titto.
Itirliunl* r. Hal/on, 12 J. 434, 453
Judgment will be reversed where trial had in
place different from that mentioned in summons.
Stevcart r. A/e<<p, 12 J. 417, 446
Whatever is cause for arresting, is also cause for
reversing judgment.
Gaqev.Reed, 15 J. 403, 1137
Refusal of justice to indorse exemption on exe-
cution, no ground for reversing judgment.
>>iff..rd r. Uriffen, 13 J. 328, . 639
Where whole evidence not returned, but cause
appearing fairly submitted to Jury, Judgment not
reversed.
WimtHn r. Hoofuf, 12 J. 29K. 399
Improper evidence admitted, though Jury directed
to disregard it. ground of reversal.
Penfteld r. Garjxnder, 13 J. 350, 647
Where improper question put to witness and
answered, but immediately corrected by justice,
judgment will not IK- reversed.
Brrncn r. 1 'merit, 12 J. 384, 433
Improper to include plaintiff's costs in judgment
for defendant.
Pen/Wd r. Carpcndcr, 13 J.350, • 647
LANDLORD AND TENANT.
BeeUU AND OCCUPATION.
Where lessee for life covenanted not to dispose of
estate without lessors consent, under penalty of
forfeiture, assignment of leas than whole estate
4O6S not work forfeiture.
Jocfcwm r. SUrernnil, 15 J. 278. 1O9O
Neither does sale of whole estate on execution.
Idem.
Covenants in lease to pay all taxes and assess-
ments. Include assessments for altering street.
OtnroM r. UUfert. 1 1 J . 443, 215
In lease of land by metes and bounds and number
of acres, the nn-t< -s and bounds controls.
Jocfavm v. Btirri nyer, 15 J . 471, 1 162
JOHNS. Kin- . 11, 12, 18, 14, 15.
Tenant for years holding over not entitled to
notice to quit, and cannot question landlord's title.
Jackstm v. M'Leotl, 12 J. 1«2, 351
Otpoorf r. /A !<>•)/, 13 J. 240, 6O4
Notice to quit not necessary where relation of
landlord and tenant does not exist.
JnrJann v. Aldrich, 13 J. 108. 549
Acceptance of new lease is a virtual surrender of
{ old, and lure all claims thereunder.
Sprimfntein v. Schrnnrrhorn, 12 J. 357, 428
Where tenant holds over at expiration of yearly
lease, it will constitute holding from year to year,
under original agreement.
Aheel r. Kii'Mif, 15 J. 505, 1 1 74
Rule is different where rent reserved is only
ground rent and buildings are erected. Idem.
Covenant to let to lessee after expiration of lease,
without stating price or duration of time, void for
uncertainty.
Aheetc. RatMtf, 13 J. 297. 627
Lessor's breach of covenant does not excuse pay-
ment of rent, but eviction does.
Watts r. I'offln, 1 1 J. 495. 235
I Grantor's approving commons, 110 defense in
: action for rent. Idem.
Remedy is on the covenant. Idem.
Lessor after recovery on covenant to pay rent,
and before satisfaction, may distrain.
CMfMMM r. Martin, 13 J. 240,
Goods seized under execution without notice of
arrearage of rent, not subject to distraint.
Alexander r. Million. 11 J. 185, 111
Tenant's possession is possession of landlord.
Jackson r. Harrow, 11 J. 434. 212
LARCENY.
The finder of a lost article is not guilty of larceny,
for conversion.
People v. A nderson, 14 J. 2M, 871
LEASE.
See LANDLORD AND TENANT.
LIREL.
See SLANDER.
LIMITATION OF ACTION.
See STATUTE OF LIMITATIONS.
Where conveyance made by those possessed of
undivided tract to trustees for purpost-s of partition,
and land held generally according to such partition,
after forty years, conveyance from such trustee
presumed.
Jackstm r. Afoorc. 13 J. 513, 714
•Legal disability does not prevent statute from
running, where adverse possession commences in
ancestor's lifetime.
Jackson v. Robins, 15 J. 1«9, 1O5O
A continuous possession for thirty years by
defendant and his grantors, originally commencing
under lease in fee, is a bar to ejectment.
Jackson v. Moore, 13 J. 513. 714
MAINTENANCE.
Bee CHAMPERTY AND MAINTENANCE.
MANDAMUS.
Peremptory mandamwi does not lie against
county supervisors to compel allowance of consta-
ble's account in pauper cases.
PeniAe ejc rel. WUgon r. Super's of
4flMMy.ttJ.4l4, 445
A peremptory mandamus lies against recorder for
refusing to record a deed
Calvin GoodeU, ex-parte, 14 J. 325, 883
MARINE INSURANCE.
(1) GENERALLY.
(2) WARRANTIES. REPRESENTATIONS AND CON-
CEALMENTS.
(3) ABANDONMENT-
(4) Loss, ADJUSTMENT, PROOFS.
(1) GENERALLY.
Insurers are liable for war risk occasioned by war
arising after commencement of vovage.
S.I//IM V. U. S. £rw. Co.. 15 J. 523. 11 81
Breaking out of war after commencement of
voyage, does not vacate policy. Idem.
Insurers not liable for loss by fire through negli-
gence, not amounting to barratry.
. I'll ,i,u In*. Co., 13 J. 451, 688
GENERAL INDEX.
Forfeiture of a vessel under non-intercourse law
deprives owner of insurable interest.
Fontaine v. Phoenix Ins. Co., 11 J. 293, 156
Intention as to disposition of cargo, governs as to
forfeiture. Idem.
Directions to place proceeds of cargo to credit of
another, will not give right of action for insurance
thereon.
Murray v. Col. Ins. Co., 11 J. 303, 159
Under general averment of interest in entire
thing insured, recovery may be for less interest.
Idem.
This applies to both open and valued polices. Mem.
To constitute double insurance it must be on
same subject, for same person, and on same entire
risk.
Columbian Ins. Co. v. Lynch, 11 J. 233, 131
Where voyage divisible and underwriters dis-
charged by act of insured, they must return pre-
mium.
Ogden v. N. Y. Firemens Ins. Co., 12 J.
114, 333
Voyage ends at inner harbor.
Dickey v. Union Ins. Co., 11 J. 358, 181
Under an agreement to allow one to make insur-
ances on adventures and charge to his account, pre-
miums for insurance never actually made, cannot
be charged.
Kane v. Smith, 12 J. 156, 339
Dentation.— Mere intention to deviate vessel, lost
before arriving at point of deviation, does not
constitute deviation.
N. Y. Firemens Ins. Co. v. Lawrence,
14J.46, 767
Lawrence v. Ocean Ins. Co., 11 J. 241, 135
Deviation, necessity to avoid danger, where master
acts bona fide, excuses.
Graham v. Com. Ins. Co., 11 J. 352, 179
Vessel allowed to make reasonable delay at inter-
mediate port.
Laurence v. Ocean Ins. Co., 11 J. 241, 135
Question of reasonable delay one for jury. Idem.
Construction of Policy.—" Return cargo" means
cargo for homeward port.
Fontaine v. Phcenix Ins. Co., 11 J. 293, 156
" Capture only," includes seizure.
Black v. Marine Ins. Co., 11 J. 287, 153
Policy "at and from," held to include^ouly
goods laden at port from which adventure began.
Murray v. Col. Ins. Co., 11 J. 302, 159
Keeping near to convoy without especial effort to
do so, or exchange of signals, is not "sailing under
convoy."
Laurence v. Ocean Ins. Co., 11 J. 241, 135
In action on policies, court will order insured to
produce, under oath, all papers, or copies thereof,
relative to the matters in issue.
Lawrence v. Ocean Ins. Co., 11 J. 246, n. 137
Clause in policy, "no risk in port, but sea risk,"
held to mean any port into which vessel may of
necessity enter, and to cover a loss occasioned by
stranding therein.
Patrick v. Com'l Ins. Co., 11 J. 9, 4O
But where evidence did not sh«w injury to cargo
from such stranding, but showed it was captured
and burned by besieging force, held, insured could
not recover.
S. C., 11 J. 14. 42
(2) WARRANTIES, REPRESENTATIONS AND CONCEAL-
MENTS.
A warranty of the national character of a vessel
imports documents showing such character.
Coolidue v. N. Y. Firemens Ins. Co., 14
J.308, 877
Under warranty against loss by capture, insurer
is not liable for loss through negligence of captors.
Idem.
Going into port to ask permission to land cargo,
prohibited to be landed by decree, not a breach of
warranty against illicit trade.
Grade v. N. Y. Ins Co., 13 J. 161, 572
And an unjust seizure and restraint and subse-
quent condemnation under later decree, no breach
of warranty. Idem. *
Where vessel is wan-anted free from capture,
insured cannot recover where unable to proceed
through fear of capture.
Wilson v. United 1m. Co., 14 J. 227, 843
In marine insurance, warranty to sail under
enemy's license, makes policy void.
Colquhoun v. N. Y. Firemen Ins. Co.,
15 J. 352, 1117
Warranty as to entry, held to mean custom house
entry, not quarantine.
Dickey v. Union Ins. Co., 11 J. 358, 181
1230
What facts should be communicated by assured to
assurers, is a question for the jury.
N. Y. Firemen Ins. Co. v. Walden, 12
J. 513, 485
Judge may express his opinion by way of advice
or assistance. Idem.
Not necessary to disclose to insurers, risks not
assumed or excluded by warranty, express or im-
plied.
Walden v. Firemens Ins. Co., 12 J. 128, 328
To constitute barratry there must be a f raudulent
intent. Idem.
Captain must be competent and of good general
character. Idem .
Facts showing carelessness or want of economy,
not necessary to be disclosed. Idem.
(3) ABANDONMENT.
Detention by embargo, cause for abandonment.
Ogden v. N. Y. Firemen Ins. Co., 12
J. 25, 288
Purchase by insured, waiver of abandonment.
Idem-
Where vessel disabled, master should procure
another in port of distress on contiguous port, if
possible, unless cargo is not fit to reship.
Saltus v. Ocean Ins. Co., 12 J. 107, 32O
Where part of cargo is sent on, insurers on freight
not entitled to deduction, unless it appears goods
reached destination and freight was earned. Idem.
Where place is so closely invested with enemy's
cruisers that vessel in leaving port would certainly
be captured, insured may abandon for total loss.
Saltus v. United Ins. Co., 15 J. 523, 1181
Value of vessel in estimating for purposes of
abandonment, is to be taken as at place where acci-
dent happened.
Fontaine v. Phoenix Ins. Co., 11 J. 293. " 156
Abandonment may be justified and valued,
through ship afterwards recovered. Idem.
Survey not conclusive as to state of vessel. 7dem_
(4) Loss, ADJUSTMENT, PROOF.
After cargo delivered and freight earned, wages
and provisions are not general average losses, nor
chargable to insurers of vessel.
Dunham v. Com. Ins. Co., 11 J. 315, 164
In estimating losses in case of repairs, insured
always entitled to deduction of one third new for
old. Idem.
General average settled abroad, conclusive.
Strong v. N. Y. Firemens' Ins. Co., 11. J. 323, 167
Insured paying his proportion, may recover it of
insurer. Idem.
Letter of advice from merchant as to capture and
condemnation, sufficient proof of preliminary loss.
Laivrencev. Ocean Ins. Co-, 11 J. 241, 135
Expenses of salvage of ship and cargo, are sub-
jects of general average.
Heijliger v. N. Y. Ins. Co., 11 J. 85. 7O
Insurers of cargo are bound to contribute. Idem.
Where cargo taken out at port of necessity to
repair vessel and still remains in specie, though
unfit to be reshipped, insurance on freight not
recoverable.
Saltus v. Ocean Ins. Co., 14 J. 138 8O6
Owners of such cargo liable to contribution for
articles jettisoned for its preservation. Idem.
MARINE LAW.
See MARINE INSURANCE, SHIPPING.
A contract for the ransom of a vessel captured in
war, is lawful.
Goodrich v. Gordon, 15 J. 6, 991
A passport from captors to prevent another capt-
ure, is lawful. Idem.
Where vessel fitted out against country at peace
with U. S., action of trover at common law will lie
for the capture and detention of American vessel,
sailing under other colors.
HqUett v. Kovion, 14 J. 273, 862
Captain inflicting unnecessarily severe punish-
ment on seamen, is liable as a trespasser.
Brown v. Howard, 14 J. 119, 798
MILITARY BOUNTY LANDS.
See PATENT.
MILITARY LAW.
Imprisoned soldier may be compelled to perform
such duti< s as he is capable of, by further restraint.
Si-huneman v. Dillec, 14 J. 235, 846
Rigor of confinement of soldier may be increased
by officer, to prevent escape, or for disobedience of
orders. Idem.
JOHNS. REP.. 11, 12, 13, 14, 15.
GENERAL INDEX.
xix
MILITIA.
Militia officer returning exempt delinquent, not
liable where exemption was not claimed on due
notice.
VantierhUt v. Dtncniny. 11 J. 83. 69
State militia in service of U. S. subject to its rules
and articles of war.
Vanderheuden r. Young. 111. ISO. 97
President of the U. S. is sole judge of necessity
for call of militia, its number and destination.
Idem.
Officers coni|>oe1ng court martial act judicially,
and where they have jurisdiction are not personally
liul ilc. Idem.
Mail contractor not exempt from military duty.
Johiuum r. Hunt, 18 J. 1««. &82
Irregularities in serving summons waived by
appearance. Idem.
MISNOMER.
See PATKST.
MONEV HAD AND RECEIVED.
Money must have been in fact received to support
action tor money had and received.
BmrcW'tf r. Root, 11J. 464, -' - »
Attorney discharging debt due to principal, and
applying money received to payment of person's
own debt, gives right of action for money had and
received. idem.
To recover money lost at gaming, the loser may
declare generally for money had and received.
OMNM P. Ragrcic. 15 J . 5, 00O
Otherwise in action by common informer. Idem.
Money advanced on executory contract may be
recovered back.
Wheeler c. Board, 12 J. 363, 425
OniM on plaintiff to show non-performance.
Idem.
Where seamen pay advance wages to one to indem-
nify him as surety, owner cannot recover from such
person on seaman's default, for money had and
received.
Dotlye r. Lean, 13 J. 508, 712
AministraUir who gives order to testator's cred-
itor on debt due in testate, where allowed amount
thereof, in accounting, is personally liable thereon
for money had and received.
MtMftW r. Huhtmid, 13 J. 510. 713
Where special agreement subsists in full force,
plaintiff cannot recover under money counts.
Raymond r. Bearnard, U J. 374, 388
But where rescinded, money paid may be recov-
ered back under money counts. Idem.
Demand therefor before action unnecessary. Idem.
Tender thereof only precludes interest. Idem.
MORTGAGES.
Deed absolute on its face, but intended as security
for a debt, will operate as H mortgage'
Dunham r. I* a, 15 J. 555, 1 194
Mortgagee has but a chattel interest.
Runuan p. Mercereau, 11 J. 534, 25O
Freehold is in mortgagor. Idem.
Mortgagor, purchaser, or assignee of equity of
redemption, may maintain trespass against mort-
gagee. Idem.
Mortgage assigned by parol. Idem.
Reply of freehold may be to answer of Ifberum
tenemeiitum. Idem.
A bsolute conveyance of land, with separate instru-
ment of defeasance, amounts only to a mortgage.
Petemm r. Clark, 15 J. 205, 1O63
Action for waste does not lie against mortgagor
before forfeiture. Idem.
Mortgagee until foreclosure is trustee for mort-
gagor.
Jnckxon r. De Lnncu, 13 J. 538, . 724
Deed and mortgage given back for purchase price
are parts of same agreement, and on default of
mortgagor land is revested in grantor.
N/..I/- r. 2'«fM5J.4S8, 1157
Owner of land may sell or mortgage by general
description.
./iiri.Miii r. De Lancy, 11 J. 305, 184
Renewal of promissory note does not affect nn>rt-
gage given to secure it.
iJnnlinnt v. Deu{ 15 J.555, 1194
Mortgage presumed satisfied after TO years with-
out «-iitrN , ili-inaiM. or int' r. -t paid.
.1,1,1.^,1, p. WiMnl. 13 J.343, 376
Evldi-noe of existence of unregistered motgage.
must be clear and explicit where presumption of
payment attempted to be repelled by acknowledg-
ments of subsequent purchasers. Idem.
JOHNS. REP., 11, 12, 18, 14, 15.
I Sale, before mortgage due. upon revived judg-
) inents in action on part of debts, which mortgage
was given to secure, and possession by purchaser,
who was devisee of mortgagee, and atornments to
him by tenants, precludes preseumption of payment
of mortgage by la|>ee of time.
jai-kMtn c. De Lamey, ' ' •> • 365, 1 84
But see same case in error. 13 J. 53U. 724
Relief in equity from mortgage for usurious
debt can only be bad after tender of principal and
legal interest.
Dunham r. Deu, 15 J. 555, 1 194
Priority of mortgage for purchase money to pre-
vious judgment against purchaser, is not limited to
vendor, but may extend to third party who
advanced the purchase money.
Jackxon r. Austen, 15 J. 477. 1164
Title under mortgagor cannot be set up to defeat
the title of one who claims under possession under
entry as devisee of mortgagee of forfeited mortgage.
Jackmin v. De Lancy, 13 J. 536. 724
Ftireflmntre.— Where mortgage is given to secure
usurious contract, and mortgagee purchases prern-
, ises under sale under foreclosure : in action by
purchaser of equity of redemption against mort-
gagee, usury may be shown, the sale being conclu-
: sive only in favor of i>mm tide purchaser.
Ja<-k*on r. Diimintck, 14 J. 435, 93O
Notices of mortgage sales must be published for
six successive lunar months.
L'ninii r. Utilliinj. 15 J. 119, 1O32
A mortgagee is not a Imna Me purchaser under
fun -closure of mortgage to secure usurious con-
! tract.
Jacktunt r. Dnminick, 14 J. 435. 93O
Usury may be shown in action by purchaser of
equity of redemption against mortgagee. Idem.
where mortgagee, after decree of sale inequity
entered by consent of defendant, refuse to assign
mortgage to purchaser of equity of redemption on
tender of amount due, and money is deposited with
him, but not as payment and order of stay subse-
quently obtained. Held ln>na tide purchaser under
sale made without notice of stav will be protected.
Mi mell v. Laurence, 12 J. 521. 488
Deeds may be executed to purchasers before
master's report confirmed. Idem.
Where decree entered by consent, there can be no
rehearing. Idem.
Where between sale and execution of deed by
sheriff, mortgage is foreclosed and purchaser not
made a party, in action of ejectment he is not pre-
cluded from showing invalidity of mortgage.
Jactusun v. Dickinnm. 15 J. 309, 11O2
NEGLIGENCE.
Negligence is a mixed question of law and fact.
e'imt f n'imcall, 14 J. 304, 875
Must be submitted to Jury unless evidence
demurred to. Idem.
NEW TRIAL.
Question of advene possession when not sub-
mitted to jury at trial, presumed abandoned and
not ground for new trial.
Jackmm r. Stcidieitf, 13 J. 495, 7O6
New trial refused after judgment regularly per-
fected.
Jackton v. Chart, 15 J. 354, 1118
Chancery may grant a new trial.
Stmmn r. Hart, 14 J. «3, 774
New trial awarded for excessive damages in action
for assault and false imprisonment.
M'Connell r. Hampton. 13 J. 334, 372
Admission ol improper evidence, on trial before
court not ground tor new trial.
OceiMtn of I'lattekill v. Overseen of
yew Paltz, 15 J. 305. 11OO
Cumulative evidence is not ground for new trial.
PUic r. Kmn#, 15 J. 310, 1O65
New trial given on newly discovered evidence,
though cumulative, as to the identity of soldier
entitled to military bounty land.
Jin >..••• i tt r. I'nixliit. 13 J. 354. 421
New trial granted on newly discovered evidence
to Impeach witness in former trial, involving iden-
tity of original patentee of military land.
Jaektun i- Ktnny. 14 J. loa. 826
Affidavits of jurors admissible to show mistake
in takinx and entering verdict.
Jackmm r I >i> l.iii.-<m. 15 J. 309. 1 1O2
Verdict obtained by average of sums set down
; by jurors is Irregular, aixt will be set atude.
Hitrrcu r. fiickclt. 15 J. «7, 1O2O
Objection not taken at trial waived.
Sucklcu v. I'm™. 15 J. 33H, 1112
Ittl
XX
GENERAL INDEX.
Treating jurors to spirituous liquors during trial
vitiates verdict.
Kellogg v. Wilder, 15 J. 455, 1 156
If a person goes to trial without material witness,
new trial will not be granted to let his evidence in.
Jackson v. Malin, 15 J. 393, 1O96
Withdrawal during trial, of material witness who
is proved to be insolvent, is sufficient cause for new
trial.
Ruggles v. Hatt, 14 J. 112, 795
NEW YORK CITY.
Under act granting to New York City power to
regulate keeping, &c., of gunpowder, a greater pen-
alty than $250 cannot be recovered for violation of
the ordinance on one transaction.
Mayor &c., of N. Y. v. Ordrenan, 12 J. 122, 326
NON-INTERCOURSE ACT.
Trespass will not lie against collector of customs
for seizing goods imported contrary to Non-inter-
course Act.
Sailly v. Smith, 11 J. 500, 237
Where seizure may be made, see Idem.
Trading with the enemy is illegal ; but withdrawal
of goods from enemy's country is legal, if not done
personally by owner.
Amory c. M'Gregor, 15 J. 24, 997
Shipment of goods contrary to Non-intercourse
Act, divests title of owner. Idem.
Declaration of war virtually repealed the Act.
Idem.
NONSUIT.
Neglect to comply with order for particulars is
ground for judgment as of non pros.
Fleurot v Durand, 14 J. 329, 885
Court of Common Pleas may nonsuit plaintiff,
where no question of fact exists, and evidence
offered insufficient to support action.
Pratt v. Hull, 13 J. 334, 641
Affidavits used on motion for judgment, as in case
of nonsuit, must state cause could have been tried in
its order or that younger issues were tried.
Russell v. Sanies, 13 J. 156, 569
After interlocutory judgment and delay of two
terms, plaintiff ordered to proceed to inquiry of
damages within thirty days or be nonsuited.
Kent v. McDonald, 15 J. 400, 1135
OFFICERS.
See PRINCIPAL AND AGENT.
Inspectors of election not liable for refusing vote
in absence of malice.
Jenkins v. Waklron, 11 J. 114, 82
Fees of electors of grand assize. See
Bryan v. Seely, 13 J. 123, 556
To entitle officer to shai-e of forfeiture under
Tariff Act of Congress, the information given must
conduce essentially, though not iudependent of
others, to the condemnation.
Brewster v. Gelston, 11 J. 390,. 194
In trespass against officer of revenue for seizure,
he can only plead condemnation or acquittal,, with
certificate of probable cause.
Gelston v. Hoyt, 13 J. 561, 734
The decree of restitution is conclusive that the
seizure was illegal. Idem.
Action lies against public officer for injuries sus-
tained by his neglect of duty.
Bartlett v. Crozier, 15 J. 250,
Process protects officer.
Holmes v. Nuncaeter, 12 J. 395, 438
Public officer liable on express promise to pay for
services rendered government.
GUI v. Brown, 12 J. 385, 433
Where no defect in jurisdiction, officer may justify
under erroneous proceedings.
Suydam v. Keys, 13 J. 444,
1080
685
PARENT AND CHILD.
Where habeas corpus directed to bring up infant,
court is bound to set infant free from improper
restraint.
In re Waldron, 13 J. 418, 675
But it is in discretion of court as to whom it shall
be delivered. Idem.
In this case where infant was in grandfather's
hands, court refused to direct it to be delivered to
father. Idem.
Parent must supply child with necessaries.
Van Valkinburgh v. Watson, 13 J. 480, 7OO
If he fail to do so, third person may supply them
And charge to parent. Idem.
1232
PARTIES.
Wife must be joined with husband in action in
regard to real estate, arising before marriage.
Decker v. Livingston, 15 J. 479, 1 165
If arising after marriage, in action by husband
alone, that fact must be affirmatively shown. Idem
Wife must be joined With husband for debts con-
tracted dum sola.
Gage v. Reed, 15 J. 403, 1137
Assignee under insolvent law of another state
must sue in insolvent's name.
Raymond v. Johnson, 11 J. 488, 333
Suit commenced by insolvent before assignment
will continue after discharge for assignee's benefit.
Idem.
On revival of judgment by set. fa. against original
defendant, terre-tenants not necessary parties.
Jackson v. Shaffer, 11 J. 513, 242
Otherwise where original defendant dead. Idem.
Trover maintained by owner for goods taken
from agent.
Thorp v. Burling, 11 J. 285, 152
Cartraan assisting equally liable. Idem.
Unincorporated company cannot sell in name of
their trustees.
Niven v. Spickerman. 12 J. 401, 44O
Tenants in common of land must join in personal
action, and release by one is bar to others.
Decker v. Livingston, 15 J. 479, 1 165
In distress and avowry for rent, otherwise.
Idem.
But before action any tenant may receive the
rent. Idem.
In action of tort, joint tort-feasors need not be
joined.
Low v. Mumford, 14 J. 426, 927
But where title to realty comes in question, join-
der is necessary. Idem.
Action for breach of covenant made after assign-
ment of land, must be brought by assignee unless
he holds under warranty or has given mortgage for
purchase price.
Kane v. Sanger, 14 J. 89, 785
Action can be maintained by assignee of judg-
ment creditor against one wrongfully converting
property of judgment debtor.
Yates v. Joyce, 11 J. 136, 91
Where Jsale is for joint benefit but fund is separ-
ated, action in relation to fund must be separate.
Martin v. Buck, 11 J. 271, 147
Corporation may sue on bond given it, in the
name of its committee.
N. Y. African Soc. v. Varick, 13 J. 38, 522
The collector and surveyor are necessary privies
to libel suit of vessel seized in their port.
Gelston v. Hoyt, 13 J. 561, 734
Action to recover back money deposited on
wager on event on election, properly brought in
principal's name.
Yates v. Foot, 12 J. 1, 279
Action properly brought in name of one making
bet on horse-race through agent or depositary.
Haywood v Sheldon, 13 J. 88, 542
Overseers of poor cannot maintain action on
promise made to their predecessors.
Shear v. Overseers of Httlsdale, 13 J. 496, 7O7
Action not maintainable by third person on prom-
ise for which he did not advance consideration, nor
was party to be benefited thereby. Idem.
In action for nuisance to laud all the co-tenants
must join as plaintiffs.
Low v. Mumford, 14 J. 426, 927
PARTITION.
Partition after forty-nine years not invalidated
by want of balloting book.
Jaclison v. Richtmyer, 13 J. 367, 654
Where conveyance made by those possessed of
undivided tract, to trustee for purposes of partition,
and land held generally according to such par-
tition, after forty years, conveyance from such
trustee presumed.
Jackson v. Moore, 13 J. 513, 714
Where one of parties applying to make partition
is adult, proceedings are valid.
Jackson v. Woolsey, 11 J. 446, 217
In a partition, all the parties must be tenants in
common of all the lands to be divided.
Jackson v. Myers, 14 J. 354, * 895
If not so interested, partition is void. Idem.
Where husband was seised in severally, widow
cannot proceed under Partition Act or be made a
party to partition among heirs, &c., of husband.
Coles v. Coles, 15 J. 319, 11O6
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
xxi
Grantee in pomeMlnn who had no notice of par-
tition suit and sale, is not precluded from con-
troverting right of purchaser thereunder.
Jack*>n r. FrtXMMM, 13 J. 488, 7O3
His posM-ssion is advene and partition deed to
void. Idem.
adjoining owners are entitled to great weight in
locating the grant.
Jackmm r. Wood, 13 J. 346. 646
A patent for an island usually covered by water,
is valid.
Brink r. Rlchtmutr, 14 J. 255, 855
But is to be taken subject to public casement as of
highway and fishery. Idem.
Patent for land, issued by mistake, only avoided
bv *r(. fa. or other proceeding for that purpose, in
chancery.
. Hurt. 12 J. 77, 3O8
PARTNERSHIP.
Partnership entries are admissible against both
parties.
Wnlarn r. Sherlmrne, 15 J. 40B. 11 39
Joint shares and community of profits and loss, I
are essential to partnership. II. m. \ Grant to A B, where A O was granU-e intended not
M-.th partners liable on bond executed by one, for i 8IK.h a iau»nt ambigulty as will authorize admission
duties on imported goods. MML of paroi evidence. Mem.
Admissions by one. partner, after dissolution, do | j^ ejectment to recover land In military tract.
defendant to entitled to recover on showing that
An agreement for share, of profits and losses on neither the grantee under whom plaintiff claims,
certain business adventures, though in i unequal pro-, nor another j>er8on of samo name could be the
portions will constitute a partnership, notwith- ; jmmt.-e intended, one never having been a soldier
standing an Pxprww stipulation between the parties £nd tnt, other U-ing too young to serve,
limiting the liability of each for the other.
Waliien r Sherburne, 15 J. 409. 1 139
Note made by partner in firm name binds firm.
Doty v. Bates, 11 J. 544. 855
Presumed to be made in partnership business.
Idem.
Partnership between citizens of different coun-
tries suspended by war between them.
Ortmcold r. WailiUnaton, 15 J. 57. 1O1O
Where partnership expires by limitation during
war. notice of dissolution is unnecessary. Idem.
Death, insanity or bankruptcy of. a partner dis-
solves the partnership. Idem.
Attachment mav issue against property of ab- :
sconding partner for debt of firm, although other ;
partners reside in this State..
Chlpman, Matter of. 14 J. 217, 839
Partners cannot sue each other at common law.
Jitrhiuni r. <i<*s, 13 J. 518. 716
A land patent for military service to prir/ia facie
evidence of such service.
Jackson r. Bonchain. 15 J. 220, 1 071
Misspelling of name does not affect personal iden-
tity. Idem.
PAUPER.
Bogert. 14 J. 318, 881
Covenant does not lie between partners to com-
pel! pavinent of balance due nartnership.
Riven v. Spickerman, 12 J. 401, 44O
One can become a partner only by the consent of
all the other partners.
Murray r. B»gert, 14 J. 318, 881
General reputation, with corroborating circum-
•fannflL to competent testimony to determine part-
nership.
Whitney r. Sterling. 14 J. 215, 838
Acknowledgment of other partners is not suf-
ficient to charge one as partner. Idem.
Where one partner receives purchase money on
Joint conveyance., the other may recover his propor-
tion by action of assnmpsil.
Cole* v. Coles, 15 J. 159. 194 7
Partnership real estate to held by partners as ten-
ants in common.
Ode* r. Orfe*. 15 J. 159. 1947
One partner can only sell bis individual interest
In partnership lands held in common.
< . •/••* r. Cole*, 15 J . 159, 1 94 7
The release of a debt by one partner to binding on
the others.
Bulkleu v. Dayton, 14 J. 387. 9O9
PATENTS FOR LAND.
Where patent to issued to testator after death,
title vesta in his devisee or heirs.
Smith, ex dem. Roosevelt, v. Van Dursen.
' 15 J. 343. 1114
Construction heretofore given to Kayaderoaseras
patent is conclusive.
Jaekxnn r. Stephens, 13 J. 495, 7O6
Patent for land relates back to time of its date so
as to give patentee right to maintain trover for
timber cut then-oil by parties having no color of
right.
H..ith r. Ross. 12 J. 140. 333
Rumbout patent bounded on the south by Phillips
l>llt«-J|t.
Action lies for expense of maintaining pauper,
unjustly imposed.
Pit Mown r. Plattslrurgh, 15 J. 4%. 1 149
The payment of $75 in principal and interest on
purchase of estate, to sufficient for legal settlement
of pauper.
Overseers of Wliitestown v. Overseen
of Constable, 14 J . 469, 945
An equitable title as a resulting trust will gain a
Jnrkmm r. Wittnl, 13 J. 34fl.
<;tc>
The title of a military patent issued after death
of tmtentcc to deemed to have existed in him at time
of death.
Jaelann r. Howe, 14 J. 4O5.
!tl 7
The Nine Partners patent to bounded on the south
by the Sanders and Heerinunre patent.
Jndann r. SotrU, 13 J. 336, 642
Defendant in ejectment may prove that the per-
son claiming as patentee is not the one intended by
the grant.
Jncktnn r. Got*. 13 J. 518, 716
Where ancient patent ambiguous as to land
settlement. Idem.
One seised jure ujroris gains a settlement. Idem.
Undisputed title and actual payment of $75. are
necessary to a settlement of pauper by purchase.
Overseen of Schaghticoke v. Oveneen
of Brunswick, 14 J. 199, 83Z
A contract to convey is not sufficient. Idem.
Working a farm on shares to a renting within the
Statute.
Overseen of Fr>rt Ann c. Same of
Kingshurti, 14 J. 385 9OO
• Where owner of farm worked on shares received
$30 in one year and in all others a less sum, this will
not give him a legal settlement under Pauper Act.
Overseen of PlattekiU r. Rev Paltz,
15 J. 305, 1100
Action for penalty under Statute, only remedy
against person bringing into town, pauper having
no legal settlement in State.
Grouse v Mabhett, 11 J. 167. 1O4
The purchase and part clearing and working of
land in another town, in which pauper boarded for
that purpose, does not change place of settlement
under Statute.
Oveneen <tc. of Blenheim v. Oveneen
Ac. of Windham, 11 J. 7. 39
Where order of reversal quashed and pauper
ordered back to town from which be came, owump-
*it will not lie for expenses of taking care of him
after such date, be being too ill to be removed.
Overseen of Tioga v. Oveneen of Seneca,
13 J. 380. 660
Physician attending pauper can only recover
from overseers for his services on express promise
to pay. unless performed at their request.
Everts r. Adams, 12 J. 352, 48O
Infirm slave sold as such and coming into hands of
non-resident by which she was left on the town may
be removed to last place of legal settlement.
Overseen of Claverack v. Overseen of
Hudson, 15 J. 283. 1O9«
A voluntary payment of taxes by collector, not at
pauper's request, will not give him a settlement.
Overseers of Wallkill r. Same of Mama-
kating, 14 J. 87, 784
maintainable against overseer for neo-
granted, acts of the parties, the government, and > per to
. REP., 11. 12, 18, 14, 15. 78
.
eesaries furnished paii|H*r. on his request and prom-
ise to pay therefor.
King r. Butler, 15 J. 281. 1O98
A binding under voidable indenture, and service
for two years gives settlement in town.
Orcrsetn of Hiui»m r. Same of Tagh-
kanac, 13 J. 245, «'•«>«
Town cannot object to validity of binding. Idem.
Sel/in
g and appropriating the property of a pau-
t hi support of bis family by overseers of
N. Y. R, 5.
xxn
GENEBAL INDEX.
poor, bars them from ordering his removal after-
wards.
Overseers of Poor of Fort Ann v.
Overseers of Poor of Kingsbury, 14 J. 365, 90O
PAYMENT.
A note of third person, accepted without indorse-
ment, on sale considered as payment.
Breed v. Cook, 15 J, 241, 1O77
Collateral security of a higher nature does not
extinguish simple contract debt.
Day v. Leal,U J . 404, 916
When higher security is between different parties
and for different amount it will be taken as intended
as collateral. Idem. »
A non-negotiable order, unaccepted, is no extin-
guishment of precedent debt.
Hoar v. Clute, 15 J. 224. 1O7O
Negotiable note extinguishment of precedent
debt only when so expressly received.
Bitrdick v. Green, 15 J. 247, 1O79
Arnold v. Camp, 12 J. 409, 443
Payment of part of debt cannot support promise
to forbear to sue.
Pabodie v. King, 12 J. 426, 45O
Negotiable note so expressly received, extinguish-
ment of judgment debt.
Witherby v. Mann, 11 J. 518, 244
Note of third person taken by vendor at time of
sale is termed payment unless contrary clearly
appears.
Whitbeck v. VanNess, It J. 409, 2O2
Where vendee makes false representations as to
solvency of maker, it is no payment.
v. Drake, 15 J. 475,
Pierce v. Di-ake, 15 J. 475, 1 163
Where submission was under seal with covenant
to credit amount awarded on note, action for
breach of covenant in not crediting will not lie
unless plaintiff show assignment of note to third
party before due.
Flint v. Clark, 12 J. 374, 429
New security of equal or inferior degree, no
extinguishment of debt.
Jackson i\ Shaffer, 11 J. 513, 244
Bond and warrant of attorney on which judgment
entered, no extinguishment of previous judgment.
Idem.
Construction of acts in relation to penalties for
practicing without license.
Ttmmerman v. Morrison, 14 J. 369, 901
PLEADING.
See DEMURRER.
(1) GENERALLY.
(2) THE DECLARATION.
(3) PLEAS.
(4) PROOF UNDER PLEAS.
(1) GENERALLY.
Omission of prisoner under execution to plead
former discharge, is waiver of privilege from im-
prisonment.
Gable v. Cooper, 15 J. 152, , 1O44
In action against surety of administrator for con-
version of goods of deceased debtor, plaintiff may
declare generally as to what goods converted.
People v. Dunlap, 13 J. 437, 682
Non-payment of judgment against administrator
may be assigned as breach of surety's bond. Idem.
Counts in tort and assumpstt where gravamen is
the same, may be joined.
Church v. Mumford, 11 J. 479, 229
Allegation of "chattels of a person" when applied
to notes, sufficient allegation of ownership. Idem.
People v. Holhrook, 13 .7. 90, 543
In action on covenant assigning particular breach,
plea in answer must be special.
Bradley v. Osterhoudt, 13 J. 404, 669
Where one defendant refers to and adopts answer
of another, a reply to former alone would not be
admission that latter is true.
Lyon v. Tallmadge, 14 J. 501, 958
Notice of special matter under general plea must
be full and complete.
Shepard v. Merrill, 13 J . 475, 698
It .is no variance that instrument declared on is
dated at different place than that inserted in the
margin of declaration, as the latter is intended for
the venue.
Alder v. Griner, 13 J. 449, 687
If an entire plea is bad in part, it is bad for the
whole.
Miller v. Merrill, 14 J. 348, 893
Averment in declaration in action against vendee
by rightful owner, that vendor gave evidence on
1284
trial, tantamount to averment of notice of pen-
dency of suit.
Barney v. Dewcy, 13 J. 224. 597
The place of taking a distress for rent is material
and traversable.
Jackson r. Rogers, 11 J. 33, 5O
In action for non-delivery of goods, averment of
" readiness at all times " to pay, is sufficient.
Porter r. Rose, 12 J. 209. 362
Averment of readiness to pay is necessary
whether other party was ready at place of per-
formance or not. Idem.
(2) THE DECLARATION.
Form.— Mutual promises must be pleaded as made
at the same time.
Keep v. Goodrich, 12 J. 397, 438
Declaration in debt on bond concluding by assign-
ment of breaches in covenant is good.
Gale v. O' Bryan, 12 J. 216. 365
Where special agreement subsists in full force
plaintiff cannot recover under money counts.
Raymond v. Bearnard, 12 J. 274, 388
Jennings r. Camp, 13 J. 94, 545
I Remedy for services under special contract unre-
scinded must be upon the contract.
Clark r. Smith, 14 J. 320, 884
Subsequent promise to pay debt barred by dis-
charge in insolvency is binding, and plaintiff mav
declare on original cause, and in replication set
forth subsequent promise.
Shipley r. Henderson, 14 J. 178, 823
Where penal statute gives no form of pleading,
the plaintiff must set forth specially the facts con-
stituting the offense.
Bigelow r, Johnson, 13 J. 428, 679
Proof is confined to offense charged in declara-
tion. Idem.
Declaration on bond, commencing in debt and
ending in covenant, is good on demurrer.
Gale v. O'Brian, 13 J. 189, 583
Sufficiency of Averments.— Where consideration
of promise is executed it is unnecessary to lay
special request in declation.
Doty r. Wilson, 14 J. 378. 9O5
Declaration in slander alleging perjury, need not
aver jurisdiction of justice in the cause, or that
testimony was given on material point.
Niven r. Mvnn, 13 J. 48, 526
•Declaration in assumpsit against subscriber to
capital stock of corporation for installments due,
need not aver consideration, nor that plaintiff was
duly incorporated.
Dut chess Cotton M'f'y. v. Davis, 14 J. 238 848
A declaration on agreement need set forth only
such parts as relate to the breaches assigned.
Henry- v. Cleland, 14 J. 400, 914
In action of covenants, breaches may be assigned
by negativing generally the words of the covenant.
Abbott v. Allen, 14 J. 248, 852
Defendant need not set forth the name of his
title, nor need plaintiff set forth any particular out-
standing title. Idem.
The conveyance of certain premises " in the said
deed particularly mentioned and specified," is a
sufficient description in action for breach of cove-
nant in deed.
Dunham v. Pratt, 14 J. 372, 903
Necessary A rerm ents.— The averment in a decla-
ration must contain all the material facts to be
proven.
Lane v. Hitchcock, 14 J, 213, 837
In action of debt on bond tor breach, special mat-
ter constituting breach must be s<4t forth, mere
negativing words of condition insufficient.
Jidliant r. Burgott, 11J. 6. 39
Where in act of incorporation a payment was
required to be made on subscribing to stock, in
action for subscription, declaration must aver pay-
ment of sum, unless subscriber was an officer qual-
ified to receive payments.
Highland Tp'ke. Co. v. McKean, 11 J. 98, 76
Declaration in asvnimpstt on guaranty must state
insolvency of principal.
Myers v. Morse, 15 J. 425. 1 J 45
In action on covenant, setting forth instrument
verbatim is insufficient ; sealing must be specially
alleged.
Fan Santwood r. Sandford, 12 J. 197, 357
The declaration in covenant must specially state
a sealing, setting forth covenant in full will not
do.
Macomb v. Thompson, 14 J. 207, 835
In action by assignee of mortgagee against uur-
chaser from mortgagor, for removing buildings
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
xziii
after notice of foreclosure sale, insolvency of mort-
gagor must be averred and proved.
Lam r. Hitchcock, 14 J. 213. 837
Omimiloiu.— In declaration in covenant, omission
of material allegation can be taken advantage of
only on demurrer.
Henri/ r. Cl.lon.i. 14 J. 400. 914
Omission of allegation in declaration cured by
verdict, being presumed supplied on trial bv proof.
Bartlett r. fYoiter, 15 J. 250. 1O8O
(3) Pl.EAS.
Inaction on bond failure of consideration cannot
be pleaded.
Don r. Mututll, 13 J. 430 68O
A plea to declaration in breach of covenant in
submission to arbitration, should be as broad as the
submission and the averment in the declaration.
.V.i""/.'. r. Thump* >n, 14 J. 207. 835
In AI>atrment.—Plu& in abatement cannot be
made after verdict or after reinirt of referees.
Alexander r. Mnfc.l* J. 218. 366
Of Acrord.— Plea to alignment of errors, on
cfriinrari, of accord subsequent to judgment, is
good on demurrer.
Potter r. Smith, 14 J. 444 934
/*'/ Administrator .—In action against adminis-
tnitor on debt of intestate, he may plead judgment
sufficient to cover assets in his hands.
Dougla** r. Sattnlre. 11 J. I". 43
Plea by administratior of outstanding judgment
against intestate, jointly with others, must aver
survivorship of intestate. Idem.
At Admission.— Plea of in nuU<> •*< erratum,
admits the fact assigned in error.
Harrey r. Rickett, 15 J. 87, 1O2O
Plea to genera) issue admits character in which
pluintiff sues.
Carpenter r. Whitman, 15 J. 208, 1O64
Alienage may be pleaded in abatement or bar
and given in evidence under general issue.
Jackiton r. Decker, 11 J, 418, 2O5
Unless issue joined before declaration of war,
when it must be pleaded put* dan-leu continuance.
Jack»m r. JrOunnel, 11 J. 424, 2O8
Antuxr.— In action for breach of covenant of
seisin, where defendant 's title was acquired under
forfeited mortgage, answer must show equity of
redemption barred.
Gei*ton r. Burr, 11 J. 483, 23O
In Bar.— Negligence of attorney in bar to suit
for fees, must be specially pleaded.
Hitiin<ut r. .YiY/io/.i, 11 J. 547, 256
A plea in barof a former decree must show that
the same point was then in issue.
Lu>ni r. Tatlmadge, 14 J. 501, 958
And former decree to be a bar must be pleaded.
Idem.
Statute of frauds may be six-chilly pleaded in bar
to action on agreement to answer for another.
.Vj/erx r. Monte, 15 J. 425, 1 145
Plea of payment by negotiable note in bar of
action on original consideration is defective, unless
it be shown to have been so expressed, received, or
to be in existence, and that plaintiff cannot pro-
duce It at trial to be canceled.
Bitrdlck r. Green, 15 J. 247. 1O79
Plea of executor of no goods of testator to be
u<l ministered on exhibition of bill, is good in form
and substance.
Finder r. Sharp, 15 J. 323, 1 1O7
Exhibition of bill is tantamount, without demur-
rer, U> commencement of suit. Idem.
Of Discharge. —Insolvent's discharge must be
specially pleaded.
Session* r. I'himon, 11 J. 162. 1O2
In pleading discharge, notice need only state the
discharge, date of discharge, and commissioner's
name.
llm,* r. Bollard, 11 J. 491, 234
Special matters affecting discharge may be proved
by proceedings on file. Idem.
In Ju*H.Hcatli>H.--ln trespass matter in justifi-
cation must be especially pleaded.
Demtck v. Chapman, 11 J. 132, 89
In action for false imprisonment under court
martial; mitHciency of allegation* in Justification.
\'ini'l' i In i/'l' a r. VIIHIHJ, 11 J. 150, 97
Of Nil debit.— In debt, where the deed is only
Inducement and matter of fact the foundation, nit
debit may be pleaded.
Mutton r. »'<»xt trort/i, 11 J. 474, 227
But where de«d is the foundation, otherwise.
MM,
JOHNS. RKP.. 11. 12, 18. 14. 15.
I A«n e*t factum plea. with notice denying eviction,
requires dcfemlant to prove no eviction.
K'.nif r. S.i/iyf/ , 14 J. 80. 785
.V'ni ilmiiiithititu* plea is good in an action upon a
1 bond of indemnity.
Douglas* r. < Inik, 14 J. 177, 822
Of Payment.— Payment of less sum though re-
! oelved in full satisfaction, cannot be pleaded in
payment, dor evidence of payment given under
such plea.
Mechanic*' Hank r. Hazard, 13 J. 383, 648
Rrply.— Plaintiff in replication may introduce
'new matter to explain or fortify his declaration,
, and may conclude with verification.
H'nllett r. Sli'ltlt, 11J. 5«. 59
Where defendant in trespam pleads only authority
I of statute, a special replication concluding with
I averment, is bad.
f V.wiJu r. Lockui>od, 15 J. 188. 1O57
Reply of freehold may be to answer of llberum
tenementum.
Runyan r. Menereau, II J. 534, ~>">o
A replication of de Injuria, ic., is good only
where matter in plea is by way of excuse, not where
insisted upon as giving a right.
Humb v. M'Cieu, 12 J. 491, 476
In action against heirs and devisees who plead
rim* per descent, plaintitt in replication of assets by
descent, may conclude with verification before
exhibiting bill.
Lalxtgh r. Cantine, 13 J. 272, 61 7
Scirf facias, in plea to the omission of names of
creditors not benefited by former execution, is not
cause of demurrer.
Vellcv. Muer*. 14 J. 162. 816
Of Set-off .—In action founded on tort, set-off
inadmissible.
Duyert r. CoppernoH. 13 J. 210. 211
In action brought by agent's trustee or assignee,
defendant may set-off claim due from principal
1 1. tt ui que truKt or assignor.
t nine* v. Brixban, 13 J. 9. 51O
An Waiver.— Plea to matter in declaration,
waives form of action.
Lambert v. Hoke, 14 J. 383. 9O7
(4) PROOF UNDER PLEAS.
A corporation, in action on a contract, under gen-
eral issue, must prove their corporate existence.
Hill v. Fourth IVfvtern Tp'ke Co., 14 J. 41B, 922
In action on note given on sale of goods, under
general issue defendant may show deceit in sale.
StU r. So**/. 15 J. 230, 1O73
Under issue of non-at<twnipfri/ payment may be
given in evidence, but if as matter of set-off, it
must be pleaded, or notice thereof given.
Drake v. Drake, 11 J. 531, 249
Mutual promissory notes as security for sum
a wanted, are valid.
Battey v. Button, 13 J. 187. 582
Maker after award made, having paid amount of
note to liona fide indorsee,- cannot recover from
payee on ground of invalidity of award, without
showing note transferred before due. Idem.
Under plea of mil tlel record notice of special
matter cannot be given.
I in linn i a- 1 r. Smith, 13 J. 320, 639
In action against constable for false n-t urn by
which judgment WM had against plaintiff without
notice, defendant may offer in mitigation of dam-
ages, evidence of charge in action against plaintiff.
Urecn v. Fergutmn, 14 J. :i-'.i. 91O
In action of debt on bond of deceased against
heirs and devisees generally, plaintiff must show
joint liability or be nonsuited.
UvfHprfmft Kr'm r. Tremper, 11 J. 101. 77
Fraud as evidence under plea of nnn ett factnm,
confined to fraud in execution <>t the instrument.
Dorr r. Muittell, 13 J. 430, 68O
Van Vull.i ni,ui-(ih v. Rottk, 12 J. 337. 414
In action on case under general issue, plaintiff is
bound to prove whole charge laid in declaration.
(,/.,/, r. /•'»•» J/HS.I/I. 14 J. :MI. 91O
Defendant under general issue may show offer to
perform.
M'iH r. Ogden, 13 J. 56. 529
Matte>* which might l«- pleaded in liar in slander,
MBBOt be given in evidence under Rent-nil issue.
Andrt-WH r. Van DUIUT, 11 . 1. 38, 52
In tn-spass against military officer for levying
fin'-, defendant cannot give special matter in evi-
dence as justification, under general issue.
Untttrimrth r. Super, 13 J. 448. 686
PLKDOB.
Creditor with whom promlseory note of third
IStt
XXIV
GENERAL INDEX.
person is deposited as security, has only interest
thereon as pledge.
GarUck v. James, 12 J. 146, 336
Cannot take from maker less than face amount
until after default in redeeming:. Idem.
Wfiere pledged for indefinite period, pledger
must be called on to redeem before pledgee can
dispose of the property, if he is absent judicial pro-
ceeding- must be taken. Idem.
PRACTICE.
See PLEADING.
The recorder of N. Y. or a judge of this court may
grant an order in term time, for enlarging time to
plead.
Dutches* Cotton M'f'V v. Davis, 14 J. 343, 891
A court of chancery, under general prayer, can
grant no relief independent of the special relief
prayed.
franklin y. Osgood, 14 J. 527, 968
General verdict on general issue pleaded will not
be set aside for want of verdict on special matter in
justification.
Thompson v. Button, 14 J. 84, 783
Proceedings in attachment entitled in name of
people only after attachment granted.
In re Broinsuu, 12 J. 460, 463
Verdict aids title defectively set forth.
Pangburn v. Ramsey, 11 J. 141. 93
Attorneys jointly concerned for party must have
joint agent.
Jackson v. Stiles, 11 J. 195, 116
In the other case service of notice by affixing it
in clerk's office, is good. Idem.
Party cannot take advantage of his own misplead-
ing to defeat otuer's suit, after verdict found.
Coan v. Wnitmore, 12 J. 353, 42O
On Removal- of Cause by habeas corpus defend-
ant must give 20 days notice before he can move for
procedendo.
Youlev. Graham, 11 J. 199, 117
To remove cause from Supreme Court to U. S.
Circuit Court, defendant must tile petition at time
of putting in special bail.
Redmond v. Russell, 12 J. 153, 338
On Reversal of judgment in plaintiff's favor,
proper judgment will be given.
Panyourn v. Ramsey, 11 J. 141,
Service.— Rule on sheriff to produce defendant
cannot be served for twenty days after term in
which writ is returned.
Coons c. McManus, 15 J. 181, 1O55
Notice in vacation may be served on attorney in
person : need not be served on agent, residing in
place where court sits.
Caiues r. Gardner, 11 J. 89, 72
Affidavit of service of notice of writ of inquiry in
case of forcible entry and detainer, what sufficient.
Forbes v. Glashan, 13 J. 158, 570
Copy of plea puts darrien continuance must be
served when tiled in term time ; but when matter
of, arises in vacation, service is unnecessary.
Jackson r. Clow, 13 J. 157, >57O
Process not to issue or be served on Sunday.
Van Vechten i\ Paddock, 12 J. 178, 349
Stmiiiter.— A plaintiff, after tendering: issue to
the country and adding a similiter, may notice cause
for trial at once.
Shultys v. Owens, 14 J. 345, 893
A party has no right to strike out a slmUUer,
except bona fide, for the purpose of demurring.
Idem.
Suit Pending in U. S. courts no bar to suit here.
Walsh, v. Durkin, 12 J. 99, 317
Time to declare.— Plaintiff may declare at any
time within one year ; may sooner be compelled by
order on defendant's application.
D.>le v. Younu, 1U.90, 72
Whole of last day of term allowed plaintiff re-
quired to declare before end of term.
Sharp v. Dorr, 15 J. 531, 1184
A defendant must plead in same time after oyer
given, as he had when he demanded it.
Read v. Patterson, 14 J. 338, 885
Trial.— Affidavit taken before attorney in cause
not allowed to be read in support of motion.
Tai/lor v. Hatch, 12 J. 340, 415
Where verdict is taken subject to opinion of court,
on order for stay of proceedings is necessary.
Jackson v. Case, 12 J. 431. 452
Party not limited by rule in time for preparing
caso where verdict taken subject to opinion of
court.
Beardsleys Ex'rs v. Root, 11 J. 406, 2OO
Where verdict taken for plaintiff subject to opin-
ion of court on case to be made by him, and he
neglects to make case, defendant on notice may
move court for judgment.
Jackson v. Vase, 12 J. 431, 452
Waiver.— After plea pleaded too late to object to
variance between declaration and writ.
Garland v. Chattle, 12 J. 430,- 452
Matters in answer, set up merely in avoidance,
must be proved after general replication to avail
defendant.
Simson v. Hart, 14 J. 63, 774
Irregularities in issuing certiarari, should be
taken advantage of by motion to quash ; too late
after return.
Lovet v. Green, 12 J. 201, 36O
Waiver of formal treatment of jiiry. is a waiver
of irregularity in conduct.
Tower v. Hewett, 11 J. 134, 9O
If objection to set-off of debt of one defendant
against joint debt due both be not made at trial,
it is waived.
Sherman v. Crosby, 11 J. 70, 64
Defendant by pleading guilty, waives objection to
jurisdiction.
Vanderheyden v. Young, 11 J. 150, 97
Mistake in certiorari to justice, is waived after
assignment of errors and joinder.
Drake v. Drake, 11 J. 531, «49
PRINCIPAL AND AGENT.
(1) .LIABILITIES AS TO EACH OTHER.
(2) PRINCIPAL'S LIABILITY FOR AGENT'S ACTS.
(3) PERSONAL LIABILITY OF AGENT.
(1) LIABILITIES AS TO EACH OTHER.
One acting for another's benefit, considered as his
agent, and entitled to damages accruing, though
transaction was had under his advice.
Ramsay v. Gardner, 11 J. 439, 214
Consignee to sell who, without authority, on mak-
ing sale, agrees to allow the purchase price as a set-
off of debt due from principal, is personally liable
to principal for purchase price.
Grey v. Oakley, 13 J. 332, 64 O
Where agent delivers goods without receiving
"sufficient security," remedy is by action on the
case, not trover.
Cairnes v. Bleecker, 12 J. 300, 399
Pledge of principal's goods by factor for his own
debt, is a conversion.
Kennedy v. Strong, 14 J. 128, 801
(2) PRINCIPAL'S LIABILITY FOR A.GENT'S ACTS.
Principal is responsible for all acts of general
agent, within general scope of authority ; otherwise
with a special agent.
Munn v. Commission Co., 15 J. 44, 10O5
Third person cannot be affected by private in-
struction from principal to his general agent. Idem.
Where principal notified of agent's acts and
reniiiins silent, his assent is presumed.
Cairnes v. Bleecker, 12 J. 300, 399
Principal must bear loss arising from misconduct
of agent, though it is known to party whom he
deals with.
Jackson v. Leonard, 13 J. 180, 580
Authority of agent need not be in writinsr. Idem.
Merritt v. Clason, 12 J. 102, 318
Principal is a trespasser by ratification of agent's
acts.
Smith v. Shaw, 12 J. 257, 382
(3) PERSONAL LIABILITY OF AGENT
Where principal is disclosed, agent is not person-
ally responsible.
Rathbon v. Budlong, 15 J. 1, 989
One to excuse himself from responsibility on
ground of agency, must aver and prove the author-
ity under which he acted.
White v. Skinner, 13 J. 307, 631
Party excusing himself on ground of agency,
must show facts sufficient to give remedy over
against principal.
Mauri v. Heffernan, 13 J. 58, 53O
Where party gives agent receipt by mistake, on
the faith of which his principal settles with agent,
the party can only look to the agent to rectify the
mistake.
Cheeeer v. Smith, 15 J. 276, 1O9O
One executing bond as agent without authority,
bound personally.
White v. Skinner, 13 J. 307, 631
A decree against the principal binds the agent^
Gelston v. Hoyt, 13 J . 561, 734
JOHNS. REP.. 11, 12, 13, 14, 15.
GENERAL INDEX.
xxv
Where a known public officer hires one with
authority, his intent to bind himself must be very
apparent to make him personally liable.
Walker c. Siraitwout,. l-i J. 444, 457
One to excuse himself on the Kruund that he acted
as public utfriit, must snow distinctly that be acted
••xpivssly or ostensibly as such.
Su-trt r. H»Hkttu>. la J. ats. 633
On breach of contract, surety may pay without
suit and recover of principal.
Maun v. Ucjferntin, 13 J. 58, 53O
Where obligee, after surety's request, neglects to
proceed against principal, and he afterwards be-
comes insolvent, surety is discharged.
l',nn v. Packard, la J. 174. 577
If no injury results, surety not discharged by
eredltor'8 neKlect.
People i\ Bei-ner, 13 J.383, 661
Time given to principal or discontinuance of suit,
does iiol discharge surety,
nUton r. Mattheu*. 15 J. 433, 1148
Surety on judgment debt giving negotiable note.
expressly received in payment, may recover Irom
priucipal.
tl'aherbu r. Mann, 11 J. 518, 244
In action by surety against principal on obliga-
tion entered into in foreign country, copy of obli-
gation authenticated acconiiuK to laws of that
country, with proof of inability to procure original.
and admissions by delendaut of us authenticity
and of breach, sufficient to entitle plaintiff to
recover.
Jtfauri r. Hcffcrnan, 13 J. 58, 53O
Sureties on teller's bond (riven for faithful per-
formance. &c., liable for looses arising from fraud-
lent concealment of transactions originally inno-
cent.
Union Bank c. Ownej/, 11 J. 182, HO
Sureties on administrator's bond, liable for mal-
administration.
r. Dunlap, 13 J. 437. 682
PRIVATE WAY.
One applying for a private road has sole and
exclusive use of it, subject only to its use by the
owner of the land, whose intention to use it was
expressed at the time it was laid out.
Lambert r. Hute, 14 J . 3»3, 9O7
PRIZE.
Capture and immediate recapture, does not devest
owner's titif.
Coofc D. Howard, 13 J. 276, 619
Plunder taken during war belongs to captor's
sovereign. Idem.
PUBLIC OFFICER.
See PRINCIPAL AND AGENT.
QUO WARRAXTO.
Quo Warrants lies against a corporation for
carrying on banking operations without legislative
authority.
People t>. Utica Ins. Co., 15 J. 358, 1119
REAL PROPERTY.
See DEED, WILL, ic.
Conveyance of real property in fee must be by
deed or writing, under seal.
Jackvm r. Wtxid. 12 J. 73. 3O7
No technical words necessary to devise a fee.
Jactoum r. ;*!/•<•• ></,, 12 J. 389, 435
Seisin in fact is not required in case of wild and
uncultivated lands.
J.t. I.. -.,i v. H :..». 14 J. 405. 917
RECEIPT.
Receipt in full obtained by fraudulent constraint,
is not conclusive evidence of payment in action for
assault and buttery bv seaman against master.
Thinna* r. ifDuMUL 14 J. 185, 826
Receipt only i>rima facie evidence of payment.
Shei man v. Cn«/>|/, 11 J. 70, 64
A receipt for bond and warrant is sufficient evi-
dence of their existence.
Day o. Leal, 14 J. 404. 916
A receipt for goods to be paid for on sale at
certain rates, and to return amount unsold at
certain time, without provision for compensation,
is proof of a sale.
Mar*h r. H'ickham, 14 J. 1«7. 818
Such receipt cannot be explained by parol. Idem.
JOHNS. REP.. 11, 12, 13, 14, 15.
I RECORDING OF DEEDS AND MORTGAGES.
Explicit evidence of notice of prior unrecorded
deed must be given to destroy affect of subsequent
'• recorded deed.
Jui-k»m r. EMint, 12 J. 452, 46O
Recorded deed to /•••mi ndt purchaser for value
from owner of military tract, will take preference
: to prior unrecorded sheriff's deed of same.
Jacknun r. Xeiry, la J. 471. 697
Special return on execution where unrecorded.
: will not affect tills right. Ittem.
Prior unrecorded mortgage takes precedence to
i deed to one with notice tuervof.
Dunham r. Dey, 15 J. 555, 1194
What is sufficient notice. Idem.
RECOUPMENT.
See DAMAGE.
REFERENCE.
All of referees must meet to make report valid.
\flnroy v. Benedict, 11 J. \u:. 198
Referees to be taken from county where venue
laid.
Shericwod v. Tremper, 11 J. 408, 2OO
RELEASE.
Release by co-tenants to one who conveyed with-
out title, inure to his grantee's benefit.
JactUHjn v. Smith, la J. 4UM, 67O
Where judgment is for costs, and attorney directs
sheriff to pay amount collected over to him, and
prisoner is arrested and allowed to escape, « release
by plaintiff to sheriff does not bar attorney's right
of action for escape,
Man in i: Hawk», 15 J. 405, 1137
A sold land with covenants of seisin to B, and It sold
to < , and on discovering A was not legal owner, gave
C power of attorney to sue A in name of H. of waich
A iia.; notice. Held subsequent release from U to
A was void.
tiiiHiii'inil v. Squire, 11 J. 47, 55
A release by parol, of contract under seal, by one
of two joint parties, is valid.
Lnliiiii.il> v. jJnis.n, 14 J. 330, 885
A release by one of two joint covenantees is bind-
ing on the other.
FUeh v. format), 14 J. 172, 82O
The release of a debt by one partner is binding on
the others.
BulMey v. Dautnn, 14 J. 387. 9O9
A release to witness by one joint plaintiff renders
witness competent, luem.
Testimony of interested witness not made com-
petent by release given after examination.
Doty V. H'Uoun, 14 J. 378, 9O3
Where release is objected to on ground of infor-
mality, and examination proceeds without objec-
tion, while another is being made out, testimony
given is competent. Idem.
RELIGIOUS CORPORATIONS.
Exemption of churches, &c., from taxation
applies only to public taxes, not to street improve-
ment.
In re Magtrr, dc., ofX. I*., 11 J. 77, 67
But such property ought not to be assessed in pro-
portion to other property. Idem.
REMEDY.
Remedy by distress and sale of beast damage
under statute does not take away common
law remedy by trespass.
Gulden r. EUii al, 15 J. 220. 1O69
REPLEVIN.
Where defendant pays amount of execution after
levy, replevin will not lie against sheriff for failure
to redellver goods.
» i. i ni n. i r. Campbell, 15 J. 401. 1 136
Otherwise where in possession of third party.
ri.'iiiii'X'.n r. Bultun, 14 J. 84, 783
In replevin where plaintiff in nonsuited, or action
barred. •!> tvmlant entitled to damages.
Kim-leu r. Uihtt*. 14 J. 385, 9O8
Measure of damages is the decrease in price of
goods, and interest on their entire value. l>ltn>.
Defendant may plead lion cepit and property in
himself or stranger.
Shuter v. I'alfff, 11J. 196. 116
RES ADJUDICATA.
D. , Ision ..I . oin i -i law upon sumuuur] tffUt *
t ion, is not rex adjudicata.
Simtun v. Hart, 14 J. 63. 774
1287
XXVI
GENERAL INDEX.
REVENUE OFFICER.
A collector of customs may appoint persons
inspectors who do not reside at port of entry or
delivery, within the district.
Rowley v. Gibhs, 14 J. 385, 9O8
Where vessel seized by officer of customs and
acquitted by district court, officer is liable for
abuse after seizure, but the certificate of probable
cause given will protect him from being1 trespasser
aft initio.
» Van Brunt r. Schenck, 13 J. 414, 673
RIGHT OF WAY.
Right of way granted without location, becomes
permanently located by usage.
IVynkoop r. Berger, 12 J. 222. 367
Subsequent change by grantor may become per-
manent by usage. Idem.
Grantee must keep it in repair. Idem.
SALE (OF CHATTELS).
See STATUTE OF FRAUDS.
On sale of provisions to consumer, warranty of
wholesomeness implied.
Van Bracklin v. Fonda, 12 J. 468, 466
In executory contract, property does not pass
until complete execution.
M'Do old v. Hewitt, 15 J. 349, 1116
Where stock is sold without warranty, which
under resolution of the company is credited as
fully paid up, action not maintainable by vendee
against vendor to recover amount subsequent paid
thereon under repeal of such resolution.
Cunningham v. Spier, 13 J. 392, 665
Where ponderous articles sold with land, entry
into possession, with articles thereon, is sufficient
delivery.
De Bidder r. AT Knight, 13 J. 294, 626
Completion of contract for sale of chattels, is
question of fact for jury. Idem.
Vendor's lien for purchase price on goods to be
paid for on delivery, is not defeated by sale of part
thereof by vendee before delivery completed.
Palmer r. Hand, 13 J. 434, 681
A receipt for goods to be paid for on sale at cer-
tain rates and to return amount unsold at certain
time, without provision for compensation, is proof
of a sale.
Marsh v. Wickham, U J. 167, 818
Such receipt cannot be explained byparol. Idem.
On exchange of personal property and a retaking,
trover cannot be brought by one who held as agent.
Dyer v. Vandenbergh, 11 J. 149, 97
SEAMEN.
See SHIPPING.
SERVICE.
See PRACTICE.
SET-OFF.
See PLEADING.
In action brought by agent, trustee or assignee,
defendant may set-off claim due from principal
cestui uue trust, or assignor.
Cainea v. Brisban. 13 J. 9, 51O
Assignor's debtor may set-off to its full amount a
claim due from assignor.
Murry v. Riggs, 15 J. 571, 12OO
Set-off of judgments are allowed by courts of
law, e:c gratia ; in Court of Equity, as matter of
right.
Simson v. Hart, 14 J. 63, 774
Joint judgment may be set off against judgment
in favor of one of joint deptors. Idem.
Bill in chancery sustained to compel Mayor's
Court to allow it. Idem.
Not pleaded in former action cannot afterwards
be made subject of suit.
Canfield v. Monger. 12 J. 347, 418
Set-off of claim against one creating trust not al-
lowed in action by cestui qne trust against trustee.
Weston v. Barker, 12 J. 276, 389
Notice of set-off must be given under general
issue.
Cainen r. Brisban, 13 J. 9, 51O
Judgment in attachment suit cannot be set-off in
subsequent action by defendant therein against
plaintiff.
Miller v. Stark*, 13 J. 517, 716
In action of trover set-off not allowed.
Moore v. Davis, 11 J. 144, 94
Where plaintiff recovers damages, but costs given
against him, he is allowed to set-off damages
against costs, notwithstanding attorney's lien.
ROSBV. Dole, 13 J. 306, 63O
1238
In action founded on tort set-off inadmissble.
Dygert v. Coppernoll, 13 J. 210, 592
SHERIFF.
See ESCAPE.
Sheriff justified in discharge of prisoner on affi-
davit required by statute.
Lolinis V. Jon&s, 11 J. 174, . 1O7
When sheriff may pay rent in behalf of plaintiff
in execution.
Griffith v. Kelchum's, Adm'rs, 12 J. 379, 431
Return on execution is prima facie true and must
be constructed as a whole. Idem.
Ca. sa. issued before fi. fa., where there is no
special bail, voidable only, and where defendant
discharged on plaintiff's suggestion, sheriff entitled
to full poundage.
Scott v. Shaw, 13 J. 378, 659
Remedy against sheriff for failure to return exe-
cution may be by action or attachment at plaintiff's
election.
Burk v. Campbell, 15 J, 456, 1156
And preliminary order to return is unnecessary.
Idem.
Sheriff liable to judgment creditor for proceeds
of sale under execution on junior judgment.
Saitford v. Room, 12 J. 162, 342
Privilege of sheriff from arrest is personal, and a
waiver does not effect his right of action against
sureties on bond for jail liberties.
LeM v. Wigram, 12 J. 88, 312
In sheriff's deed nothing will pass under general
clause of " all other lands, &c., of the defendant."
Jackson r. De Lancy, 13 J. 536, 724
Uncertainty in sheriff's deed as to land granted
avoids it.
Jackson v. Roserelt, 13 J. 97, 546
Levy will be presumed, to support a sheriff's sale.
Jackson v. Shaffer, 11 J. 513, 242
SHIPPING.
Barratry is an act done with fraudulent intent.
Grim v. PhwnLc Ins. Co., 13 J. 451, 688
Barratry may be committed by master, in respect
to cargo as well as the ship, though he be super-
cargo and consignee, and such barratry may be in-
sured against.
Cook v. Com. Ins. Co., 11 J. 40, 53
In charter of vessel for voyage out and home,
for an entire sum, return is condition precedent to
claim for freight.
Penoyer v. Hallett, 15 J. 332, 1 1 1O
Acceptance of outward cargo, does not entitle to
pro rata freight. Idem .
In charter of entire vessel at specified rates per
foot, &c., owner is entitled to freight on full cargo.
Duffle v. Hayes, 15 J . 327, 1 1 08
Seamen.— Where a seaman signed to stay with
vessel " until voyage ended and cargo discharged,"
he forfeits his wages by refusing to assist in unload-
ing at end of voyage after vessel safely moored.
Webb v. Duckingfteld, 13 J. 390. ' 664
Complete interruption of voyage dissolves a con-
tract of affreightment. «
Lorillard v. Palmer, 15 J. 14, 994
No freight is earned unless the voyage is com-
pleted and goods delivered. Idem.
On failure to forward goods, the owner may claim
them without paying freight. Idem.
Vendor not liable for repairs on vessel sold with
immediate possession but without bill of sale.
Leonard v. Himtington, 15 J. 298, 1O98
Master liable for seaman's wages only on special
contract.
Wysham v. Rossen, 11 J. 72. 65
Where voyage is broken up by act of master, sea-
men allowed wages up to such time and reasonable
time for return nome.
SvUivan v. Morgan, 11 J. 66. 63
Seamen lose wages where freight is unavoidably
lost.
Icard v. Goold, 11 J. 279. 15O
Wages cannot be insured, directly or indirectly.
Idem.
New articles for higher wages of seamen, under
threats of desertion, are void.
Bartlett r. Wyman, 14 J. 260, 857
Articles made at the port of departure are the only
evidence of contract, and nothing, not specified
therein, can be recovered. Idem.
Where freight is earned, seamen entitled to full
wages.
Wetmore v. Henshaw, 12 J. 324, 4O9
Capture only suspends contract, recapture revives
it, but proportion of salvage is to be deducted.
Idem.
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
xxvii
Seaman discharged by his own consent, not en-
titled to extra wages.
Oyden v. Orr, 12 J. 143, . 335
SLANDER AND LIBEL.
Declaration in slander alleging perjury need not j
aver Jurisdiction of Justice In the cause or that
testimony was gifen on material point.
\livn r. .Vunn, 13 J. 48. 526
Action lies for charging crime committed in an-
ot her state, though crime l»urred by statute here.
Van A nk in r. We*tfaU, 14 J. 233. 846
And defendant may justify by proving the truth
of crime charged. Idem.
Truth not admissible in mitigation of damages.
Idem.
Action may be brought for charging Indictable '.
oflefMfc
WMrig v. Offer, 13 J. 124. 556 i
In action of slander for statements of perjury,
what sufficient allegations of jurisdiction.
i'ii ii'iii'tn r. Smith, 13J.78, 538
False title, rejected as surplusage. Idem.
Charging one with keeping bawdy house In ac-
tionable.
.If-irMn r. Stilhrell. 13 J. 275. 618
" Your children " embraces all children of person
addressed.
<;H'i. i/ r. Blake, 11 J. 54, 58
Action of slander wilh not He for charging tres-
*' Defter r. Tai*r, 12 J. 239, 374
Whether charge is of a felony or of trespass is for
the Jury. Idem.
Justification in action of slander must be to the
specific charge of crime laid.
Andretrs r. Fan Dtuer. 11 J. 38, 62
Matter which might be pleaded in bar in slander
cannot be given In evidence under general issue.
Idem.
Truth of words as a justification or in mitigation
of damages cannot be given in evidence under gen-
eral issue without notice.
SHephard r. Merrill, 13 J. 475. 698
Justification of charge of theft must allege a
felonious taking. Idem.
LiM.— Where publication refers generally to
officers of a regiment, special damages must be
shown.
Sumner r. Btiel, 12 J. 475. 469
Publication must reflect on particular person to
give special damages. Idem.
Remedy must be by indictment where publica-
tion refers generally to large class of persons.
Idem.
SLAVE.
The sale In this State of a fugitive slave from an-
other State, to an inhabitant of that State, did not
set him free.
Skinner v. Fleet, 14 J. 2U3, 858
Owner of life estate in slave entitled to increase.
Concklln c. Haren*, 12 J. 314, 4O4
Sale of slave under execution valid, but private
•ale void under the Act. (1 N. R. L.. 201.)
7n re Caesar r. Pen/**/)/. 11 J. 68. 64
Child of slave follows condition of mother.
(Jebton r. Rutanell, 11 J. 415, 2O4
SPECIFIC PERFORMANCE.
.Joint promise by trustees to release, to purchaser
under execution waiver of prior claim by either of
them and specific performance decreed.
.11 r. H'jrnc, 11 J. 555, 26O
STATUTES.
• See STATUTE or FRAUDS, or LIMITATION, &c.
The preamble of a Statute may be referred to, to
explain the enacting part, onlv when Its doubtful.
JarkMin r. < Mc.hr M. 15 J. H». 1O21
When.* Stal ute obscure, intention of Legislature is
to be resorted to.
/'. "i>le r. Uttca Inn. Co.. 15 J. *i8, 1119
JncKtnn r Van Znn.lt. 12 J. 109. 346
A thing within the letter is not within the Statute
If contrary to Its intention. Idem.
Statute restraining persons, applies finally to
corporations. Idem.
A Statute which is penal to some persons, pro-
vided It Is generally beneficial may be equitably con-
strued.
Strhlet r. Sharp, 13 J. 497. 7O7
Construction of Statute relative to taxes for com-
mon schools: "Tax list for preceding vear."
Ruder r. CvtWerlmck. 12 J. 412. 444
JOHNS. REP., 11, 12, 18, 14, 15.
Penal Statute, construed'strictly, penalty not im-
plied by reference to another containing such pen-
alty.
BeU r. Dole, 11 J. 173. 1O6
Statute penalty for harboring slaves or servant*
Is cumulative and does not destroy common law
remedy.
Seidmore r. Smith, 13 J. 322. 636
The Charter of 1W3 of. James Duke of York was
not in force after 18*8.
Jaek»m v. UilchrM, 15 J. 80. 1O21
Statute of .1782, to atmlish entails operated pro-
spcctively.
JaabM r. Tan Zandt, 12 J. 189. 346
Construction of Act to Incorporate Utlca Ins. Co.
passed March 29th, 1810.
People r. Ut (ca In*. Co., 15 J . 358. 1119
A Statute giving a penalty implies prohibition of
Act rendered penal.
Hallett r. AWfon, 14 J. 273, *<',7
Penalty under Statute for refusing public office,
can be recovered but once.
•Haiflntnd r. ntiteltr, 11 J. 432, 811
Penal laws are strictly local, and do not operate
beyond State limit*.
ScurUle r. Candid, 14 J. 338. 889
STATUTE OF FRAUDS.
Bare signature to shipping articles of seamen,
under column headed "sureties," will not support
undertaking.
DndQt r . Lea n, 13 J . 608, 712
Where on sale no memorandum made, or earnest
money paid, and chattels remained in vendor, pos-
session at vendee's risk, and afterwards without
notice taken away by vendee, held sufficient deliv-
ery.
Vincent r. Germnnd, 11 J. 283, 151
Parol promise to pay for improvement* to land
not within.
Benedict r. Behce, 11 J. 145, 95
Promise to pay debt of third person must be in
writing, notwithstanding made on sufficient con-
sideration.
Jackson v. Rat/ner, 12 J. 291, 395
So held of promise by assignee. Idem.
Parol contract for sale of lands binding on part
payment of purchase money.
Walker v. Sirarttmut, 12 J. 444, 457
Dowdle r. Camjt, 12 J. 451, 46O
Parol agreement for exchange of lands is within
statute of frauds and void.
Rtce'v. Peet, 15 J. 503, 1 174
Note of third person given thereunder is without
consideration and void. Mem.
Agreement to answer for debt of another is not
within statute where there is a new and original
consideration.
3/j/erx r. J/orw. 15 J. 425. 1 145
Entry on land and improvements made "under
parol agreement to convey, will take case out of
the statute.
Parkhunt r. Van Otrtland, 14 J. 15, 755
Memorandum contract may be supported by
parol evidence. Idem.
Agreements required to be' In writing by statute
of frauds must be certain in themselves, or capable
of being made so by reference to something else.
AheeJ r. Radcliffe, 13 J . 297. 627
Guaranty made on same paper and at same time
with original contract, not within statute of frauds.
Bdilen r. freeman, 11 J.22I. 127
<'i moderation may be shown by parol. Idem.
Statute of frauds may be specially pleaded in bar
to action on agreement to answer for another.
Afwerx r. A/onv. 15 J. 425. 1145
A memorandum written by broker in pencil in
presence of parties, with names and terms in body,
though without signature is sufficient,
Ctattm r. r.< i il> n. 14 J. 4H4. 951
Merritt r. HOMIII. 12 J. 102. 318
Broker Is agent for both parties. Idem.
STATUTE OF LIMITATIONS.
Where there is an adverse possession of 20 years.
Judgment in ejectment not enforced, will not avail
plain i ill to take m.-«- out of statute.
Jaekxon r. HavUand. 13 J. 229. 599
An action of debt upon a judgment in a Justin-'*
Court, is not barred by statute, a* it is a contract
by specialty.
Pea*e r. //'•iwirrf, 14 J. 479, 949
A presentation of claim after six years to debtor,
who says he do»-s not remember paying it, and
will look It up. and If paid will write the party.
1339
GENERAL INDEX
where party does not receive communication, held
sufficient evidence from which to imply promise.
Mosher r. Hubbard, 13 J. 510. 713
Acknowledgment or new promise made after
commencement of suit sufficient to take case out
of.
Danforth r. Culver, 11 J. 146, 95
Admission of original debt coupled with an
expression of intention of being availed of statute
of limitation, is not sufficient. Idem.
To take case out of statute, express or implied
promise necessary.
Laurence r. Hnpklna, 13 J. 288, 623
An offer to compromise which is rejected, is not
such a promise. Idem.
Admission of receipt of money and offer to com-
promise, with denial of validity of claim, does not
take case out of statute.
Sd ml* r. Gelxtnn, 15 J. 511, 1177
Statute of Limitations may be pleaded in bar to
judgement recovered in foreign state, which is con-
sidered as simple contract.
Bitseil v. Hall, 11 J. 168, • 1O4
After 27 years the regularity of sale under execu-
tion cannot be questioned.
Jackson v. De Lancy, 13 J. 536, 724
Neither can it be questioned at any time in col-
lateral action. Idem.
The promise of one of several joint debtors is suf-
ficient to take a case out of the statute of limita-
tions.
Johnson v. Beardslee, 15 J. 3, 99O
Held applicable to promise made by one of several
heirs and devisees. Idem.
STAY OF PROCEEDINGS.
Civil suit for damages no bar to criminal proceed-
ing, and judgment after conviction may be stayed
until decision of civil suit.
People v. Judges of Genesce, 13 J. 85, 541
SUNDAY.
Verdict maybe received, but judgment cannot be
legally entered on Sunday.
Hnghtaling v. Osbwu, 15 J. 119, 1O32
A writ of inquiry cannot be executed on Sunday.
Butler v. K~d.se;;, 15 J. 177, 1O53
A jury cannot assess damages and deliver a ver-
dict on Sunday. Idem.
TAXATION.
Non-resident not liable for support of common
schools.
Suijdam v. Keys, 13 J. 444, 685
TENANTS IN COMMON.
One entering by permission of his co-tenant can-
not set up adverse title.
JarkMon v. Crenl, 13 J. 116, 553
The undivided part of a tenant in common may
be Sold on execution.
Mersereau v. Norton, 15 J. 179, 1054
And purchaser becomes a tenant in common.
Idem.
Action not maintainable between tenants in com-
mon to recover document relative to joint estate.
Clmce* v. Haicley. 12 J. 484, 473
Manumission of slave by two of three tenants in
common, entitles him to his freedom.
OatMd v. Waring. 14 J. 188. 827
One tenant in common cannot maintain trover or
trespass against his co-tenant.
Meraereau v. Norton, 15 J. 179, 1O54
TITLE.
Freehold only conveyed by writing under seal.
Jncktam v. Wendell. 12 J. 355, 421
Complete and uncontrolled possession of property
acquired under promise, vests title.
LinnendoU v. Doe, 14 J. 222, 841
TOWNS.
Towns have no power to prohibit the running at
large of stock on inhabitant's land.
Shepherd v. Hees. 12 J. 43:1, 453
Construction of act to divide town of Kingston.
(April 5, 1811).
Jackson v. Louw, 12 J. 252, 379
TREASON.
Treason against the U. S. is not against the State
of New York.
People v. Lynch, 11J. 549, 257
Not cognizable in State courts. Mem.
May be committed against the State. Idem.
1240
TRESPASS.
See TROVER.
(1) GENERALLY.
(2) To PERSONAL PROPERTY.
(3) ON THE REALTY.
(1) GENERALLY.
Captain inflicting unnecessarily severe punish-
ment to seaman is liable as a trespasser.
Brown v. Howard, 14 J. 119, 798
Principal is a trespasser by ratification of agents
acts.
Smith v. Shaw, 12 J. 257, 382
Where neither subject matter nor person are
within jurisdiction of court martial, proceedings
are void, and all concerned therein are trespassers.
Idem.
But where subject matter alone is within jurisdis-
tion, officer excused unless want of jurisdiction of
person appears on the process. Idem.
Civilian not amenable to court martial . Idem.
The command of a superior to commit a trespass,
is no justification.
Blown v. Howard, 14 J. 119, 798
Tenants in common must join in action of.
Austin v. Hall, 13 J. 286, 623
Release by one bars action. Id-em,
In action of, property in stranger cannot be
shown.
Cook v. Howard, 13 J. 276, 619
Otherwise in trover. Idem.
The abuse of authority given by law makes the
abuser a trespasser ab initio, but not the abuse of
an authority in fact.
Van Brunt v. Schenck, 13 J. 414, 673
Bare possession sufficient to maintain.
Gelxton v. Hotit, 13 J. 561, 734
S. C. below, 13 J. 141, 563
One tenant in common cannot maintain trover or
trespass against his co-tenant.
Mersereau v. Norton, 15 J. 179, 1O54
In trespass on joint plea of not guilty, one defend-
ant may be acquitted and the others convicted.
Drake v. Barrumore, 14 J. 166, 818
Trustees who issue warrant against persons not
liable to support of schools, and collector who
executes it are liable as trespassers.
Sui/dam v. Keyes, 13 J. 444, 685
(2) To PERSONAL PROPERTY.
Where vessel seized by officer of customs and
acquitted by District Court, officer is liable for
abuse after seizure, but the certificate of probable
cause given will protect him from being made tres-
passer ah initio.
Van Brunt v. Schenck , 13 J. 414, 673
Where one takes goods under lawful authority,
refusal to restore them after authority ceases does
not make him trespasser ab initio.
Gardner v. Campbell, 15 J. 401, 1136
Trespass will lie for false representations resulting
in the seizure and conversion of plaintiff's property
to government uses.
Hasting* v. Wood, 13 J, 482, 7O«
A person going or sending on land of another,
and taking away his own property, is a trespasser.
Blake v. Jerome, 14 J. 406, 918
Where property of bailor in hands of bailee is
distrained for rent and used by landlord under
agreement with tenant, action of trespass lies
against owner for taking it away.
Holt v. Johnson, 14 J. 425, 926
Where landlord distrains property in hands of
tenant as bailee, and uses such property under
agreement with tenant, trespass lies against true
owner forcibly taking property out of landlord's
possession. Idem.
Action lies for seducing or harboring a servant or
slave.
Scidmore v. Smith, 13 J. 322, 636
Can not be maintained by vendor after delivery
of goods on sale obtained by fraud.
M'Carty v. Vickery, 12 J. 348. 419
Maintainable against officer for taking without
authority property of U. S. in possession of an-
other.
Cook v. Howard, 13 J. 276, 619
One impounding beast taken damage feasant
before damages assessed is liable to owner in tres-
pass.
Merritt v. O'Neil, 13 J. 477, 699
No defense that poundmaster was the owner.
Idem.
Where vessel seized and justifiably retained by
JOHNS. REP., 11, 12, 13, 14, 15.
INDEX.
xxi : v
customs officer, action not tenable by owner against
one using it with officer's consent.
Tan Brunt v. Schenck, 13 J. 414. 673
(3) ON THE REALTY.
One bound to keep line fence In repair cannot ,
maintain trespass for theento' of his neighbors cat-
tle through defect therein.
Slituheid c. Met*. 12 J. 433, 453
S. P. Colden v. KMreil. 15 J. 220. 1OO»
The cattle laws of a town have no application to
such a case. Li J. 433. 453
Plaintiff recovering less than $50 where freehold
or title not in question, pays com.
Jack#m v. Randall, ll J. 4O5, 199
Plaintiff recovering less than $50 where freehold
title not in question, pays costs.
< '/-.I nt r. t '.i wxt ,*•*. 11J. 404, 1 99
Certificate of malice not required under statute
to entitle plaintiff to costs. Mem.
In trespass under statute for cutting down tim-
ber, plaintiff is entitled to treble costs and treble
damages.
Morris r. Itnuh, 14 J. SM, 884
Person continuing in dwelling house after
requested to leave, becomes trespasser ah initio.
Attain* c. Freemnn, 12 J. 408, 443
Entering dwelling house without license is tres-
pass. Idem.
Keeping an inn amounts to general license to
• •iit'i-; same with familiar intimacy. Idem.
One having title and entering by force not liable
to action of trespass.
lot* v. Ivc*, 13 J. 235. 602
Evidence of a letting by plaintiff, and a re-entry
after tenant had quit, not sufficient to maintain
trespass for act committed between the time of
quitting and the re-entry.
Wikham r. Freeman, 12 J. 183, 351
Plaintiff must have actual possession r>r remainder
or reversion, and if premises are vacated must show
leal title in himself. Idem.
Remainderman may maintain waste against teu-
:int, but trespass only against stranger.
Lioingtton v. Haywood, 11 J. 429. 21O
TRIAL.
See PRACTICE.
A verdict which is the result of chance, is Irregu-
lar.
Harvey r. Rlckett, 15 J. 87, 1O2O
Objection to jurors must be made openly.
Butler v. Kelney, 15 J- 177, • 1O53
Improper evidence may be read in equity, but is
not allowed at law. Idem.
Mann v. Mann, 14 J. 1, 749
Irvine v. Cook, 15 J. 23», 1O76
Where parties acknowledge the import of an
agreement between themselves, on their failure to
produce it at trial, jury may infer such import.
\\'nit»ni r. Sterling, 14 J. 215. 838
Party cannot object to rending in evidence copies
made by him of affidavits on file.
Jack*on r. Harrow, 11J. 434, 212
In a court of chancery, no questions can be put to
a witness that do not arise from some fact charged
.iinl put in issue.
Lyon v. Tallnuidge, 14 J. 501, 958
Change of residence before issue joined beyond
forty miles from place of trial, entitles defendant
to fourteen days notice of trial.
Jcnk* r. Payne, 15 J. 399. 1134
After issue joined, only eight days notice neces-
sary. Idem.
Where there is issue of law and issue of fact,
plaintiff may elect which to try first.
Ocenern nf Pittttown v. Overseers of
llattxlrurgh. 15 J.398, 1134
Plaintiff may waive a cause of action at trial and
bring a new suit for the same.
Louw V. Davis, 13 J. 227. 599
Where plaintiff's witness partly examined and
cause adjourned on account of his sickness, evi-
dence given rejected, unless good excuse for not
appearing on return day be given.
clement* r. Benjamin. 12 J. 2SW, 398
TROVER.
Defendant may show paramount title in .stranger.
Schcrmerhorn v. Van Volkcnburgh,
11 J. 520. «49
Maintainable by asssignee of bond, converted by
obligor.
( 'fc>u>rt r. f fatrfev, 12 J. 484. 4 73
If bond is conditioned for conveyance of land,
damages will be its value. Idem.
.I..IINS. HEP.. 11, 12, 18, 14. 15.
One of two joint leaaors cannot maintain trover
for the lease. Idem.
In trover, defendant may show property in third
person, or that sale under which plaintiff claims
was fraudulent and void.
Hntan r. Fletcher, 15 J. 207. 1O64
In an action of trover, plaintiff must show prop-
erty in himself.
Shcltlin r. Soper, 14 J. 352, 895
In action of trover by principal against agent, the
latter is estopped by admissions after conversion of
property In plaintiff, from showing title in thlnl
penoo.
Kennedy r. Strong, 14 J. 128, 8O1
In action of trover, set-off not allowed.
Moore v. Davl*. 11 J. 144, 94
On exchange of personal property and a retaking,
trover cannot be brought bv one who held as agent .
Ducr r. Fondenbergfc, 11 J. 149, 97
Trover lies for goods obtained by fraud, by a
creditor from his debtor and applied on the debt.
ir-'oiiu-nftlt r. Ki-.-.n,:. 15 J. 180, 1O56
Question of fraud is for jury. Idem. '
When- vessel fitted out against country at peace
with U. 8.. action of trover at common law will lie
for the capture and detention of American vessel
though sailing under other colors.
Hallett r. \orion, 14 J. 278, 863
TRUSTS AND TRUSTEES.
Where A conveys to It in trust to convey to<-
upon performanoe of his contract to purchase, the
trust is revoked upon C's non-performance and
subsequent conveyance by A to another, is valid.
Short r. WUnon, 13 .1. 33, 52O
Trustee may sell to a near relative.
fYnrifcUn v. O*g«»d, 14 J. 527, 968
To support a trustee's sale it is sufficient if it
were In ma fide, and for valuable consideration and
without supine negligence. Idem.
One covenanting on confessed judgment in his
favor to sell debtor's property, and after pu> ing
debts to remit balance of proceeds to debtor, may
himself become purchaser and not be considered as
a trustee.
Sheldon v. Sheldon Ex"r*, 13 J. 220, 596
A trustee may he a bona fldc purchaser of a trust
estate, and legal title passes.
Jackson r. Walsh, 14 J. 407, 918
A purchase from trustee by one co-cestui c/w t runt,
without consent of the others, is valid.
Franklin v. Oxgofxl, 14 J. 527, 968
Trustee is not estopped by his deed in iK>rfonn-
ance of trust, from claiming title under subsequent
conveyance to himself.
Jackson v. Mill*, 13 J. 463, 693
Mortgagee .until foreclosure is trustee, for mort-
gagor.
Jackson v. De Lancy, 13 J. 536, 724
Guardian ad littm may be purchaser at commis-
sioner's sate. Idem.
Jackson v. n ool*ey, 11 J. 446, 817
Joint promise by trustee to release to purchaser
under execution, waiver of prior claim by either of
them and specific performance decreed.
Livingston v. Byrne, 11 J. 565, 26O
Acceptance of trust equivalent to express promise
to cestui oue (rwt on which action may be brought.
Wetton r. Barker, 12 J. 278, 389
Set-off of claim against one creating trust, not
allowed. Idem.
Rights of cestui que trust under alignment of
chose in action, protected by courts of law against
any one having notice or knowledge of facts suffi-
cient to put him on inquiry.
Antlrrmii v. Van Alen, 12 J. 343, 4in
Trust results in favor of one who advances con-
sideration for deed taken in another's name.
Jack.-',,, r. Mill*, 13 J. 463, 693
Such trust maybe proved by parol. Idem.
Deed executed to infant daughter of purchaser
and retained by him, held uot an advancement to
her, but a resulting trust vbr him, and so might be
proved by parol,
Jackam v. Maltdorf, 11 J. 91, 73
Where land was conveyed in trust to secure riott s
and the trustees have elected to consider agreement
to reooiivey, void by exercising acts of ownership.
he cannot maintain action on notes.
Winter r. Uringtton, 13 J. 54, 528
Trust estates will pass under general words in
will, relating to realty.
Jacknon v. De Lancy, 13 J. 536, 7 24
TURNPIKE COMPANIES.
Exemption from toll of wagons carrying certain
79 N. Y. R.,5. 1241
GENERAL INDEX.
articles, does not exempt, wagons carrying there-
with other articles.
Bates P. Sutherland, 15 J. 510, 1176
USE AND OCCUPATION.
Action for use and occupation lies against lessee
holding over after expiration of lease.
Abeel v. Raddiff, 13 J. 297, 627
Same where lease was with covenant of rewewal.
Idem.
Use and occupation lies where holding is upon
implied as well as express permission of landlord.
Otfjood v. Deicey, 13 J. 240, 604
Use and occupation lies only against a tenant.
Bancroft v. Ward-well, 13 J. 489, 7O4
USURY.
Promissory note for larger sum than actually re-
ceived, though given as security, is usurious.
Fordan v. Hess, 13 J. 492, 7O5
Exchange of notes with commission, and interest
amounting to more than legal interest, is usury.
Dunham v. Dey, 13 J. 40, 523
Usage does not avail against statute. Idem.
Practice of banks in issuing port notes, not
usurious.
Dunham v. Dey, 13 J. 40, 523
Discounting a note at seven per cent, is not usury.
Manhattan Co. v. Oxgood, 15 J. 162, 1O48
A mortgagee is not a bona fide purchaser under
foreclosure of mortgage, to secure usurious con-
tract.
Jackson v. Dominick, 14 J. 435, 93O
Usury mav be shown, in action by purchaser of
t-quity of redemption, against mortgagee. Idem.
One may receive commissions for becoming secu-
rity.
Dunham v. Den, 13 J. 40. 523
A bill or note drawn for purposes of being dis-
counted at an usurious- rate, is void.
Mtinn y. Commission Co., 15 J. 44, 1O05
Negotiable paper, when valid in its inception, is
not affected by subsequent usurious agreements.
Idem.
The purchaser of a bill at usurious discount, can
recover from his indorser, only the sura advanced.
Idem.
Accommodation note, made to sell at usurious
discount, is void. Idem.
VARIANCE.
Where name in declaration was Christopher, and
that in note declared on was Christ., held no vari-
ance.
Wood v. Bidkley, 13 J. 486, 7O2
Immaterial variance of proof from facts stated in
notice of evidence, will be overlooked.
Kane o. ganger, 14 J. 89, 785
Variance between nisi prius record and copy of
declaration served, can be taken advantage of ofrly
bv application to set aside verdict.
Wind V. Bulldey, 13 J. 486, 7O2
Objection to variance between declaration and
proof if not made at trial, is waived.
Pike v. Evans, 15 J. 210, 1065
VENDOR AND VENDEE.
See DEED, MORTGAGE, RECORDING, SALE, &c.
(1) GENERALLY.
t2) INTERPRETATION AND EFFECT OF PARTICU-
LAR PROVISIONS.
(3) PERFORMANCE AND RECISSION.
(1) GENERALLY.
Grantee in possession who had no notice of parti-
tion suit and sale is not^recluded from controvert-
ing right of purchaser fflereunder.
Jackxon v. Vrooman, 13 J. 488, 7O3
His possession is adverse and partition deed is
void. Idem.
Vendor not liable for repairs on vessel sold with
immediate possession, but without bill of sale.
Leonard v. Huntington, 15 J. 298, 1O98
Agreement to convey does not transfer title or
import license to enter.
Ives v. Ives, 13 J. 235, 6O2
Agreement to execute deed does not imply deed
with wurranty or covenants.
Fan Epos v. Corp. of Schenectady,
12 J. 436, 454 I
1242
Vendor, and even donor, liable for false affirma-
tion of title.
Barney v. Deicey, 13 J. 224, 597
In an action on the case therefor, unnecessary to
set forth consideration. Idem.
Recovery from vendee by rightful owner, con-
clusive against vendor. Idem.
A bona fide purchaser for value from fraudulent
vendee, has good title.
Jackson v, Walsh, 14 J. 407, 918
(2) INTERPRETATION AND EFFECT OF PARTICULAR
PROVISIONS.
One covenanting to pay purchase price on con-
tract to convey, in action of ejectment by one con-
tracting, is estopped from setting up outstanding
title in another.
Jackson v. Ayers, 14 J. 224, 842
Where grant made with privilege of election, the
right to elect is personal and cannot be exercised
by heir's or assignee's.
Vandenburyh v. Van Bergen. 13 J.212, 592
Where land was conveyed in trust to secure notes,
the trustee having elected to consider agreement to
reconvey void by exercising acts of ownership, he
cannot maintain action on notes.
Winter v. Livingston, 13 J. 54, 528
Deed, bond and mortgage given same day, are
simultaneous acts.
Judsonv. Wass, 11 J. 525, 247
(3) PERFORMANCE AND RESCISSION.
Where vendee under contract to convey, and with
notice of mortgage incuinbranee, enters into pos-
session, and makes payments, he cannot rescind
contract and recover back payments made there-
under, before mortgage foreclosed.
CasweU v. Black R. M'fg Co., 14 J. 453, 938
If vendor cannot convey good title, vendee may
recover consideration money.
Judsonv. Wass, 11 J. 525, 247
Vendee having voluntarily abandoned under
entire contract, cannot recover for part perform-
ance, and after refusal to complete contract, vendor
may sell to another.
Ketchum v. Evertson, 13 J. 359, 651
Under contract to convey with warranty of title.
except as to specified incuinbranee. vendor cannot
maintain assumpsit for money paid where there is a
subsisting mortgage on premises.
Judson v. Wa#s, 11 J. 525, 247
Vendee of land may rescind contract upon discov-
ering lease disabling vendor to give agreed title.
Tucker v. Woods, 12 J. 190, 354
On sale of land by a loan officer for arrears of
mortgage, the property of the owner is altogether
devested.
Sherrill v. Crosby. 14 J. a58, 897
Money paid to purchaser by former owner to re-
convey to him, cannot be recovered back. Idem.
Under covenant to convey land, part payment can
not be recovered back by covenantee on discovery
of mortgage lieu in absence of fraud on covenant-
or's part.
Ellis v. Hoskins, 14 J. 363, 899
Inadequacy of price is not per se good ground for
setting aside a sale.
Franklin v. Osgood, 14 J. 527, 968
Sale of lots at auction separately not an entire
contract, and failure of title to part will not invali-
date sales in toto.
Van Eppsv.Corp. of Schenectady, 12 J. 436, 454
Offer to execute one deed for whole does not
make it entire. Idem.
Conveyance in fee does not ipso facto imply a
warranty. Idem.
VENUE.
Action on recognizance of bail must be brought
in county where original suit was commenced,
where parties to recognizance reside within its juris-
diction.
Burtu* V. M'Carty, 13 J. 424, 677
In action against sheriff for false return, plaintiff
must show cause arose where venue is laid.
Seelj/e v. Birdnall, 15 J. 267, 1O86
On change of venue, copy of order changing
is all that is necessary to be served.
Smith v. Sharp, 13 J. 466, 694
WAGER.
See BETTING AND GAMING.
WASTE.
Remainderman may maintain waste against
tenant, but trespass only against stranger.
Livingston v. Haywood, 11 J. 429, 21O
JOHNS. REP., 11, 12, 13, 14, 15.
GENERAL INDEX.
xxxi
Act for waste does not lie against mortgagor
before forfeiture.
Petemm v. (lark, 15 J. 205, 1O63
Action of waste by heir does not lie against
tissignee of tenant by curtesy.
Ifatis r. Shraedtr. 13 J. 280, 612
Action for waste lies against assignee of lessee.
.Short r. Jl'ilww. 13 T.33, 62O
Action for, under the Statute, does not lie against
trustee for infant son appointed under will.
kin, ami r. Scott, 12 J. 3tf8. I ' 7
WATER COURSES.
Prior occupancy of mill site, unaccompanied with
MI, h length of time as to presume grant, does not
give exclusive right to use of water.
t'iitt r. Johnson, 15 J. 213. 1O66
Property in stream is indivisible, and joint owner
cannot exercise right to use to injury of others.
Vandenlnirg r. Van Beryen, 13 J.212, 592
WILLS.
(1) GENERALLY.
<2) INTERPRETATION AND EFFECT.
(1) GENERALLY.
A will manumitting a slave is revoked by sale of
slave before death of testator.
Kan Mickt I. matter of, 14 J. 324, 883
To entitle one to give parol evidence of contents
of will alleged to be destroyed, diligent search
must be shown.
Jackunn r. Hasttrnuck. 12 J. 192. 355
Alteration, whether material or Immaterial, made
after execution by person interested renders will
void.
Jtic.kxon v. Malin, 15 J. 293, 1O96
A finding by jury that will was alt, -red by some
interested person will not do, it must be specific.
Idem.
The probate of a will, while government was in
the hands of the British; is valid, but will must be
recorded.
Jackson r. Walsh. 14 J. 407, 918
Execution of power to sell real estate in payment
of debts, by executrix, who was devisee of life
estate and who alone qualified, is valid.
Jackxon r. Ferris, 15 J. 340. 1115
(2) INTERPRETATION AND EFFECT.
Trust estates will pass under general words in will
relating to realty.
Jackson v. De Laitcy. 13 J. 530. 724
Construction of will devisinu- lands in expectancy.
Jackson v. Wilson. 12 J. 318, 4O6
"Children " does not include grandchildren.
Jackson r. Stoats. 11 J. 337, 173
False description of subject certain without, will
lx- rejected.
Mann v. Mann, 14 J. 1, 749
Will may be construed in connection with other
writing to which it refers.
Jackson v. IMnock. 12 J. 389, 435
Moneys bemicathed by will must be taken to
mean cash, in its ordinary acceptation.
Affirm v. Ma fit. 14 J. 1. 749
All the provisions of a will should be made to
to harmonize, if possible, by comparison. Idem.
Will devising to testator's wife all of his property
construed in connection with ariffr-nuptial agree-
ment, to which it refers, to confer fee in real
property.
Jacksnn v. Bahcock. 12 J. 38fl, 435
A devise of testator's farm, "granted to him by
several i>er*ons in several lots," held not to include
a small piece not adjoining which had been rented
for a number of years as a separate and distinct lot.
Jackson v. A/o;/*-r, 13 J. 531. 722
Devise of "estate" passes real and personal
estate, and includes debt and mortgage.
Jackson r. /A Lam-ii, 1 1 J. 345. 184
(Construction and execution of particular power.
Jackson v. Veeder. II J. 1H9, 1O5
Powers construed equitably, and general inten-
tion must govern. Idem.
No technical words necessary to devises fee.
Jackson v. Bahcock, 12 J. 389. 435
When- devise Is of certain quantity of land,
with privilege to elect fmm what part of patent
to take same, right to elect Is a iK'rsonal privilege
and dies with the party, rendering the devise in-
oj>erative.
Jacfonnv. Van Beitren, 13 J. 525, 719
.S. /*., \'aniii-ui,nnili i\ Van lieraen, 13 J.
212, 592
In construing, intention of testator is to govern.
Jack«tm v. Stoats, 1 U . 837, 173
JOHNS. RKP . 11, 12, 13, 14, 15.
The intention of a testator must be derived from
the will itself.
Mann I'. .V.imi. 14 J. 1. 749
Parol evidence is inadmissible to contradict,
enlarge or vary the words of a will. This includes
<le< iiiraiiuiiN of testator. Idem.
Jackttnt r. Sill. 1 1 J. 201. 119
But parol evidence is admissible In case of latent
ainliiKuity or to rebut a resulting trust. Idem.
It is not necessary to look at entire will where the
intention is clear and no ambiguity exists. Idem.
Limitation over, held to include real as well as
personal estate.
Jaekxtin r. Stoat*, 11 J. 337. 1 7S
Charging estate devised with payment of money
will not prevent it* limitation over as executor?*
<j evise. I'll in.
WITNESS.
(1) GENERALLY.
(2) COMPETENCY.
(1) GENERALLY.
Where plaintiff's witness partly examined a«d
cause adjourned on account of his sickness, evi-
dence given rejected unless good excuse for not ap-
pearing on return day be given.
Utemtnttv. Benjamin, 12 J. 299, 398
Need not answer questions which would criminate
or disgrace himself.
PtapU v. Herrick, 13 J. 82. 539
A witness at a trial either in supreme or a justice's
court can claim only the fees specified in the fee
bill.
Miller v. Matticc, 14 J. 357, 897
Production of legal testimony by defendant
cures admission of improper testimony of same
facts on plaintiffs part.
Slitter v. Stark*, 13 J. 517, 716
Where one of the parties is sworn and examined
at the request of the other, the latter cannot objei-t
to it. Idem.
Testimony to impeach credit of witness by show-
ing she was or had been a common prostitute is in-
admissible.
Jackson r. iewis, 13 J. 504. 71O
Whether credit of witness to deed impeached by
acknowledgment of signing by himself and co-
witness, where officer's acknowledgment states he
signed for his co-witness, is question for jury.
Idem.
Reasonable supposition is that officer made a mis-
take. Idem.
(2) COMPETENCY.
Competency of, to be determined at trial.
Grace \\ DeLaplfttne, 11 J. 200, 117
In appeal from order of court, in pauper num. a
party to the appeal is not compelled to testify.
Oiv rseerx nf Plattekill r. Orctveers of
New Paltz. 15 J. 305, 1 10O
A bankrupt discharge in a foreign jurisdiction,
cannot be a witness in favor of his trustees ap-
pointed under Absconded and Absent Debtor Act.
Grare* v. DeLarfaine, 14 J. 146, 8O9
One may be a witness who is interested against
the party calling him.
Bulkteu v. Dantim, 14 J. 387, OO9
Payee is not competent witness for holder against
maker, where defense is n«»n aiwumpalt. Idem.
Herrick r. Whitney. 15 J. 240, 1O76
Parol evidence of conviction of felony is inadmis-
sible, to show incompeteney of witness.
Hilts v. Cnlrtn, 14 J. 1KJ, 825
Owner of vessel is competent witness in action
against master.
Caxe r. Reeve, 14 J. 79, 781
In an action against an officer for the escape of a
defendant in execution, the latter is a competent
witness for the former.
Water* r. Burnet, 14 J. 3«2, 898
In action of trover by sheigff against landlord for
distraining goods levied on, tenant Is competent wit-
ness.
Alexander r. Mahnn, 11 J. 185. Ill
Constable competent, in suit relative to settle-
ment of pauper.
Bl'wl&MHl r. Oventeerg nf Jamaica, 12
J. 285. 393
One signing note competent to prove capacity in
which signed, In collateral action to recover price of
consideration.
Htrpkfn* r. Smith. 11 J. 161, 1O1
Parol evidence by witness, of his attending and
examination is admissible In action to recover fees.
Oaker v. lirill. 15 J. 260, 1 084
xxxn
GENERAL INDEX.
One holding power of attorney is competent to
prove its execution.
Caniff v. Miters, 15 J. 246, 1O79
On general issue by joint defendants in tort, one
against whom there is no evidence ought to be dis-
charged so as to become witnesses for others.
Van Dcusen v. Van Stuck, 15 J. 333, 1O7O
Drake v. Barri/more, 14 J. 166, 818
Brown v. Howard, 14 J. 119, 798
A release to witness by one joint plaintiff ren-
ders witness competent.
Bulkley v. Doj/ton, 14 J. 387, 909
Testimony of interested witness not made com-
petent by release given after examination.
Doty r. Wilson, 14 J. 378, 9O5
Where release is objected to on ground of infor-
mality, and examination of witness proceeds with-
out objection, while another is being made out, tes-
timony given is competent. Idem.
Indorsee of note competent to prove payment by
maker.
White v. Kibling, 11 J. 138. 88
Party to negotiable instrument incompetent to
show it void at time of execution but competent as
to facts subsequently arising.
Skelding v. Warren, 15 J. 370, 1 087
In ejectment, where defense was want of posses-
1244
sion when declaration served, defendants tenant in-
competent as to the fact.
Jackson v. TrusdeU, 13 J. 246, 377
One having given bond to plaintiff to indemnify
against costs, incompetent for being interested.
Butter v. Warren, 11 J.57, 59
The indorser of a promissory note is an incom-
petent witness to prove usury.
Mann v. Swann, 14 J. 370, 861
Where attorney for non-resident plaintiff is ob-
jected to on ground of interest, being liable for
costs, competency restored on giving bond for costs.
Brandigee v. Hale, 13 J. 135, 55 T
WRITS.
See EXECUTION, Habeas Corpus, REPLEVIN.
Teste and return day of capias may be entered
before service.
Sloan v. Wattles, 13 J. 158, 57O
A nomine repiecrtondo against a party claimed as a
slave requires sheriff to bring him into court, with
return of writ.
Skinner v. Fleet, 14 J. 263, 858
Notice of writ of inquiry, provided interlocutory
judgment obtained, is good,
Oothout v. Rooth, 12 J. 151, 338
If not obtained and notice not countermanded,
party giving it, pays costs. Idem.
JOHNS. REP., 11, 12, 13, 14. 15.
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